Gallieni & Gallieni & Ors
[2013] FamCAFC 79
FAMILY COURT OF AUSTRALIA
| GALLIENI & GALLIENI AND ORS | [2013] FamCAFC 79 |
| FAMILY LAW – APPEAL – Redetermination of the issue of the apportionment of a liquidator’s costs – Where the appellant husband did not make any submissions and the first and second interveners declined to make any submissions on the issue – Where the respondent wife submitted that an order should be made as to the apportionment of the liquidator’s costs in the same terms as that made by the trial judge |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Gallieni |
| RESPONDENT: | Ms Gallieni |
| FIRST & SECOND INTERVENERS: | Mr D and Ms D |
| APPEAL NUMBER: | SA | 76 | of | 2011 |
| FILE NUMBER: | MLC | 7541 | of | 2008 |
| DATE DELIVERED: | 21 May 2013 |
| PLACE DELIVERED: | Sydney |
| DATE HEARD: | By written submissions |
| PLACE HEARD: | In Chambers |
| JUDGMENT OF: | Thackray, Strickland & Ainslie-Wallace JJ |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 October 2011 |
| LOWER COURT MNC: | [2011] FamCA 791 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Gallieni |
| SOLICITOR FOR THE RESPONDENT: | Slater & Gordon |
| SOLICITOR FOR THE FIRST & SECOND INTERVENERS: | King & Wood Mallesons |
Orders
The orders made by Justice Benjamin on 5 October 2011 (as varied by the order of the Full Court made on 7 December 2012 ) be further varied to include the following order, to be numbered 15:
15. As to the costs of the liquidator:
(a)one-third of the costs of the liquidation will be paid out of the assets of the company,
(b)two-thirds of the costs of liquidation are to be set off against the amount otherwise payable on liquidation to the husband and the wife (in equal shares).
(c)if there is insufficient capital due to the husband and wife on liquidation, such shortfall shall be paid out of the capital due to Mr D and Ms D (the First and Second Interveners). They in turn are indemnified, as to half each by the husband and the wife.
(d)if the capital due to the husband is insufficient to meet the whole or part of his share of the two-thirds cost of liquidation then the shortfall shall be paid out of the capital to be otherwise paid to the wife, who in turn is indemnified by the husband in respect of such sum.
(e)the liquidator shall be entitled to draw against the assets and income of the company to pay his fees as and when they fall due.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gallieni & Gallieni and Ors has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: SA 76 of 2011
File Number: MLC 7541 of 2008
| Mr Gallieni |
Appellant
And
| Ms Gallieni |
Respondent
And
| Mr D and Ms D |
First and Second Interveners
REASONS FOR JUDGMENT
On 7 December 2012, we delivered our reasons for judgment in this appeal.
We found no merit in any of the grounds of appeal save for one aspect of Ground 8; namely, that the trial judge denied the appellant husband procedural fairness in making an order as to the apportionment of a liquidator’s costs to wind up K Pty Ltd (a significant asset of the parties and principal subject of the proceedings) where no party sought that order nor was any party given an opportunity to make submissions about it.
We thus allowed the appeal to that limited extent and proposed to re-determine the issue. While redetermination can be undertaken on the evidence before the trial judge, we required submissions from the appellant husband, the respondent wife and the first and second interveners as to whether or not an order for the apportionment of the costs of the liquidation should be made and, if so, in what terms.
By letter to the Regional Appeals Registrar dated 18 December 2012, the first and second interveners declined to make any submissions on the issue.
On 24 December 2012 the solicitors for the respondent wife filed written submissions on her behalf seeking that this court make an order for the apportionment of the liquidator’s costs in the same terms as that which had been made by the trial judge. His Honour had ordered as follows:
…
15.As to the costs of the liquidator:-
(a)one-third of the costs of the liquidation will be paid out of the assets of the company,
(b)two-thirds of the costs of liquidation are to be set off against the amount otherwise payable on liquidation to the husband and the wife (in equal shares).
(c)if there is insufficient capital due to the husband and wife on liquidation, such shortfall shall be paid out of the capital due to [Mr D] and [Ms D] (the First and Second Interveners). They are in turn are indemnified, as to half each by the husband and the wife.
(d)if the capital due to the husband is insufficient to meet the whole or part of his share of the two-thirds cost of liquidation then the shortfall shall be paid out of the capital to be otherwise paid to the wife, who in turn is indemnified by the husband in respect of such sum.
(e)the liquidator shall be entitled to draw against the assets and income of the company to pay his fees as and when they fall due.
…
The respondent wife’s written submissions were served on the appellant husband on 21 December 2012 and, pursuant to our orders of 7 December 2012, the appellant husband was to file and serve written submissions in response within 28 days of receipt of those of the respondent wife. That period has expired and no submissions have been filed on behalf of the appellant husband.
On the evidence before the trial judge and in the absence of any submissions by the appellant husband on the point, we consider it appropriate to make an order for the apportionment of the liquidator’s costs as sought by the respondent wife.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland and Ainslie-Wallace JJ) delivered on 21 May 2013.
Associate:
Date: 21 May 2013
0
0
0