Gadde and Gadde and Anor (No. 3) - [2016] FamCA 608

FAMILY COURT OF AUSTRALIA

GADDE & GADDE AND ANOR (NO. 3)

[2016] FamCA 608

FAMILY LAW - INTERIM PROPERTY – distribution
FAMILY LAW - solicitor's lien - interests of creditor
FAMILY LAW - INJUNCTION
FAMILY LAW - COSTS - full indemnity basis

Family Law Act 1975 (Cth)

Firth v Centrelink (2002) 55 NSWLR 451
Grier v Malphas [2016] FAMCAFC 84
Mullen & De Bry (2006) FLC 93-293
Quickley & Pelissier [2016] FamCAFC 124
Strahan & Strahan (2011) FLC 93-466
Waugh and Waugh (2000) FLC 93-052 [45]

APPLICANT:

Ms Gadde

RESPONDENT:

Mr Gadde

INTERVENOR:

Meyer Partners Pty Limited

FILE NUMBER:

SYC

417

2015

DATE DELIVERED:

27 July 2016

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Gill J

HEARING DATE:

12 & 20 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sweeney 12 July 2016
Mr Kearney SC 20 July 2016

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Family Lawyers

FOR THE RESPONDENT:

No appearance by or on behalf of the respondent

COUNSEL FOR THE INTERVENOR:	Mr Alexander 12 July 2016
Ms Carter 20 July 2016

orders

IT IS ORDERED THAT:

Forthwith on the making of these orders the parties do all acts and things and sign all documents necessary so as to cause the sum of $300,000 standing to the credit of the National Australia Bank account number … BSB … held in the joint names of the husband and the wife to be paid to the wife, or as she may direct in writing.
Should the husband refuse or neglect to sign any document to give effect to these orders within a period of seven days of the making of these orders then a Registrar of this Court is authorised pursuant to s 106A to sign such documents to give effect to these orders.
Upon the wife filing an undertaking to pay the damages incurred by any person or entity as a result of this order, being the damages the court ultimately finds arose as a result of the order and should be met by her, until further order of the Court the husband is restrained in relation to the EE Company account in the name of Mr Gadde, Client Number …, as follows:
(a) From any dealing with the cash component of that account;
(b)From dealing with the shares, securities or the like in relation to that account other than to sell them and retain the proceeds of their sale in the account.

IT IS FURTHER ORDERED THAT:

The wife has leave to serve a copy of these orders upon EE Company.
The husband shall pay the costs of the wife of 20 July 2016 assessed on an indemnity basis in the sum of $5,700 and of the Intervenor of 20 July 2016 assessed on an indemnity basis in the sum of $330 within a period of 28 days from the date of these orders.
All outstanding matters in relation to the current applications in a case are adjourned for case management before Justice McClelland on 28 July…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FamCA 608
Decision Date: 27 July 2016

CaseChat Overview and Summary

In *Gadde and Gadde and Anor (No. 3)*, Gill J of the Federal Circuit Court of Australia made orders concerning the division of marital assets and the restraint of certain company accounts. The dispute involved the husband and wife, with an intervenor also involved, regarding the disposition of funds held in joint and individual accounts, as well as shares within a company.

The court was required to determine the appropriate orders for the immediate transfer of a significant sum of money from a joint bank account to the wife, and to impose restraints on the husband's dealings with a specific company account. The court also had to consider the terms of any such restraint, including the need for the wife to provide an undertaking for potential damages. Furthermore, the court addressed the costs of the proceedings and the future case management of outstanding matters.

Gill J ordered the immediate payment of $300,000 from a joint NAB account to the wife, authorising a Registrar to sign necessary documents if the husband failed to do so within seven days. The court also restrained the husband from dealing with the cash component of the EE Company account and limited his dealings with shares in that account to selling them and retaining the proceeds within the account, subject to the wife filing an undertaking to pay any damages ultimately found to have arisen from the restraint. Leave was granted to serve the orders on EE Company, and the husband was ordered to pay the wife's and intervenor's costs on an indemnity basis. All outstanding matters were adjourned for case management, with liberty to relist concerning the EE Company account restraint.

Orders

Orders of the court

IT IS ORDERED THAT:

Forthwith on the making of these orders the parties do all acts and things and sign all documents necessary so as to cause the sum of $300,000 standing to the credit of the National Australia Bank account number … BSB … held in the joint names of the husband and the wife to be paid to the wife, or as she may direct in writing.

Should the husband refuse or neglect to sign any document to give effect to these orders within a period of seven days of the making of these orders then a Registrar of this Court is authorised pursuant to s 106A to sign such documents to give effect to these orders.

Upon the wife filing an undertaking to pay the damages incurred by any person or entity as a result of this order, being the damages the court ultimately finds arose as a result of the order and should be met by her, until further order of the Court the husband is restrained in relation to the EE Company account in the name of Mr Gadde, Client Number …, as follows:

(a) From any dealing with the cash component of that account;

(b) From dealing with the shares, securities or the like in relation to that account other than to sell them and retain the proceeds of their sale in the account.

IT IS FURTHER ORDERED THAT:

The wife has leave to serve a copy of these orders upon EE Company.

The husband shall pay the costs of the wife of 20 July 2016 assessed on an indemnity basis in the sum of $5,700 and of the Intervenor of 20 July 2016 assessed on an indemnity basis in the sum of $330 within a period of 28 days from the date of these orders.

All outstanding matters in relation to the current applications in a case are adjourned for case management before Justice McClelland on 28 July 2016 at 9:30am.

The parties are at liberty to relist the matter at short notice in relation to the terms of the restraint on the EE Company account.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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