Gallieni and Gallieni and Ors - [2012] FamCA 54

FAMILY COURT OF AUSTRALIA

GALLIENI & GALLIENI AND ORS

[2012] FamCA 54

FAMILY LAW - PROPERTY – STAY OF PROCEEDINGS – Application by husband seeking a stay of orders pending determination of an appeal

Family Law Act 1975 (Cth)
Corporations Act 2001 (Cth)

Aldridge v Keaton(stay appeal) [2009] FamCAFC 106
Carlin v Carlin (1977) FLC 90-321
Kelly v Kelly (1981) FLC 91-007
Warby v Warby (2002) FLC 93-091
ANC 078272 867 Pty Limited (in liquidation )(formerly Advance Finances Pty Ltd & Anor) and Deputy Commissioner of Taxation & Anor [2011] HCA 46

APPLICANT:

Mr Gallieni

RESPONDENT:

Ms Gallieni

FIRST INTERVENOR:

Mr D

SECOND INTERVENOR:

Ms D

THIRD INTERVENOR:

Mr H

FORTH INTERVENOR:

Ms H

FILE NUMBER:

MLC

7541

2008

DATE DELIVERED:

14 February 2012

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

14 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Dickson

SOLICITOR FOR THE APPLICANT:

Septimus Jones & Lee

COUNSEL FOR THE RESPONDENT:

Mr O’Shannessy

SOLICITOR FOR THE RESPONDENT:

Slater & Gordon

COUNSEL FOR THE 1^ST & 2^ND INTERVENORS:

Ms Smallwood

SOLICITOR FOR THE 1^ST & 2^ND INTERVENORS:

Mallesons Stephen Jacques

COUNSEL FOR THE 3^RD INTERVENOR:

Did not appear

COUNSEL FOR THE 4^TH INTERVENOR:

Did not appear

Orders

UNTIL FURTHER ORDER the liquidator of K Pty Ltd is directed not to make final distributions to the parties pending further direction of the Court.
UNTIL FURTHER ORDER and pending the outcome of the appeal:-
(a) order 21 of the property orders (as between the husband and wife) made 13 October 2011 is stayed, subject to the husband paying the normal monthly repayments of principal and interest on the St George Bank housing loan secured against the home, … S Street in E, as and from the first repayment due after the date of this order and until such time as this stay is lifted;
(b)leave is given for the wife to have the question of the continuation of the particular stay order relisted before the Court in the event that the husband does not make any one or other of the repayments in accordance with this order.

NOTATION:

(c)Nothing in this stay order shall prevent the liquidator from otherwise undertaking the steps towards liquidation of the company including the sale of the real estate owned by K Pty Ltd, payment of lawful debts of the company, the sum of $28,000 due to the third and fourth intervenors and liquidator’s expenses.

IT IS FURTHER ORDERED

(d)The costs of the husband, the wife and the first and second intervenors in respect of the stay application are reserved pending the determination of the appeal. Any application for costs must be made within twenty eight (28) days of the determination of the appeal.

IT IS CERTIFIED

(e)Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment under the pseudonym Gallieni & Gallieni and Ors

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: [2012] FamCA 54
Decision Date: 14 February 2012

CaseChat Overview and Summary

In the matter of *Gallieni and Gallieni and Ors*, Benjamin J of the Supreme Court of Victoria was required to determine applications concerning the distribution of assets and the continuation of property orders in the context of a liquidation and an impending appeal. The dispute involved the husband, the wife, and intervenors, with the liquidator of K Pty Ltd playing a significant role in the proceedings.

The primary legal issues before the Court were whether to stay certain property orders made between the husband and wife, specifically in relation to a property secured by a housing loan, and whether to restrain the liquidator from making final distributions pending further directions. The Court also considered the extent to which the liquidation process could continue, including the sale of real estate and payment of debts, notwithstanding the stay sought.

Benjamin J reasoned that it was appropriate to impose interim measures to preserve the status quo pending the outcome of the appeal. The Court ordered that the liquidator be restrained from making final distributions to parties until further direction. Furthermore, a stay was granted on specific property orders between the husband and wife, conditional upon the husband continuing to meet the monthly repayments on the housing loan. This stay was subject to the wife’s liberty to relist the matter if the husband defaulted on these payments. The Court clarified that the stay would not prevent the liquidator from proceeding with the liquidation, including the sale of assets and payment of company debts and intervenor claims. The costs of the stay application were reserved pending the determination of the appeal.

Orders

Orders of the court

UNTIL FURTHER ORDER the liquidator of K Pty Ltd is directed not to make final distributions to the parties pending further direction of the Court.

UNTIL FURTHER ORDER and pending the outcome of the appeal:-

(a) order 21 of the property orders (as between the husband and wife) made 13 October 2011 is stayed, subject to the husband paying the normal monthly repayments of principal and interest on the St George Bank housing loan secured against the home, … S Street in E, as and from the first repayment due after the date of this order and until such time as this stay is lifted;

(b) leave is given for the wife to have the question of the continuation of the particular stay order relisted before the Court in the event that the husband does not make any one or other of the repayments in accordance with this order.

NOTATION:

(c) Nothing in this stay order shall prevent the liquidator from otherwise undertaking the steps towards liquidation of the company including the sale of the real estate owned by K Pty Ltd, payment of lawful debts of the company, the sum of $28,000 due to the third and fourth intervenors and liquidator’s expenses.

IT IS FURTHER ORDERED

(d) The costs of the husband, the wife and the first and second intervenors in respect of the stay application are reserved pending the determination of the appeal. Any application for costs must be made within twenty eight (28) days of the determination of the appeal.

IT IS CERTIFIED

(e) Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

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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