Gee and Luxford and Anor - [2015] FCCA 2944

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEE & LUXFORD & ANOR

[2015] FCCA 2944

Catchwords:
FAMILY LAW – Property – Interim Orders – application to join parties to the proceedings – application to set aside transfers of real estate – application for injunction – application for costs – indemnity costs – application to appoint court expert valuer – security for costs – application for security for costs.

PRACTICE AND PROCEDURE – Joinder of parties – necessary – whether necessary to be a party to the proceeding – necessary witness.

PRACTICE AND PROCEDURE – Transfer to Family Court – whether proceedings should be transferred – where final hearing anticipated to take in excess of four days – protocol between Family Court and Federal Circuit Court considered – rules of court considered.

COSTS – Application for costs – indemnity costs – conduct of parties to the proceedings – where Respondents failed to disclose transactions that may defeat anticipated property orders – parties to show cause why costs orders should not be made – whether costs should be ordered on an indemnity basis.

PRACTICE AND PROCEDURE – Unsatisfactory professional conduct – whether solicitor’s actions amount to unsatisfactory professional conduct – where solicitor required to show cause why a complaint should not be made to the Office of the Legal Services Commissioner.

Legislation:

Family Law Act 1975 (Cth), ss.79, 90AE, 106B, 114, 117

Legal Profession Act 2004 (NSW), s.496
Family Law Rules 2004 r.6.02
Federal Circuit Court Rules 2001, rr.8.02, 11.01, 15.09, Sch. 1, Part 1

Cases cited:
Brown & Brown; Eley and Henty (interveners) (1991) 15 Fam LR 69; FLC 92-265
Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225; 118 ALR 248
Gee & Luxford [2013] FCCA 271
Hankinson & De Vries & Ors [2013] FamCA 455
In the Marriage of Kohan (1992) 16 Fam LR 245; (1993) FLC 92-340
Prantage & Prantage [2013] FamCAFC 105; (2013) 49 Fam LR 197; FLC 93-344
VC & GC & Ors [2010] FamCAFC 62; FLC 93-434
Wayne & Dillon & Anor [2008] FamCAFC 204

Applicant:

MS GEE

First Respondent:

MR LUXFORD

Second Respondent:

MR F LUXFORD

Third Parties:

MR G LUXFORD & MS R LUXFORD

File Number:

SYC 6710 of 2012

Judgment of:

Judge Scarlett

Hearing date:

19 August 2014

Date of Last Submission:

19 August 2014

Delivered at:

Sydney

Delivered on:

2 November 2015

REPRESENTATION

Counsel for the Applicant:

Ms Beck

Solicitors for the Applicant:

James & Associates

Counsel for the First Respondent:

Ms Pender

Solicitors for the First Respondent:

Newtown Solicitors

Counsel for the Second Respondent:

Mr Friedlander

Solicitors for the Second Respondent:

Christie Law, Solicitors

Solicitors for the Third Parties:

Giles Payne & Co Solicitors & Public Notaries

ORDERS

The Application to join Mr G and Ms R Luxford as parties to the proceeding is dismissed.
UNTIL FURTHER ORDER the Application to set aside the Transfers from Mr Luxford the First Respondent to Mr F Luxford the Second Respondent of the First Respondent’s interest…

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: [2015] FCCA 2944
Decision Date: 2 November 2015

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Scarlett considered an application by the applicant, Mr Gee, against the first respondent, Mr Luxford, and the second respondent, Mr F Luxford. The dispute involved an application to join Mr G and Ms R Luxford as parties, an application to set aside transfers of real estate, an application for an injunction, an application for costs, an application for security for costs, and an application to appoint a court expert valuer. The court also considered whether the proceedings should be transferred to the Family Court, given the anticipated length of the final hearing.

The primary legal issues before the court were whether Mr G and Ms R Luxford were necessary parties to the proceedings, whether the transfers of the first respondent's interests in properties at Property D and Property B to the second respondent should be set aside, and whether an injunction should be granted to restrain dealings with the proceeds of those sales. The court was also required to determine whether costs should be ordered against the respondents, and if so, whether on an indemnity basis, and whether the solicitor for the first respondent had engaged in unsatisfactory professional conduct warranting a complaint to the Office of the Legal Services Commissioner.

Judge Scarlett dismissed the application to join Mr G and Ms R Luxford as parties, finding they were not necessary parties. However, the application to set aside the transfers of the first respondent's interests in Property D and Property B was adjourned to the final hearing. An injunction was granted restraining the first and second respondents from dealing with the proceeds of the sale of these properties until further order. The court also ordered the first and second respondents to show cause why they should not pay the applicant's costs of the application, including on an indemnity basis, and directed the solicitor for the first respondent to show cause why a complaint of unsatisfactory professional conduct should not be made to the Office of the Legal Services Commissioner.

Orders

Orders of the court

The Application to join Mr G and Ms R Luxford as parties to the proceeding is dismissed.

UNTIL FURTHER ORDER the Application to set aside the Transfers from Mr Luxford the First Respondent to Mr F Luxford the Second Respondent of the First Respondent’s interest in the property at Property D being the whole of the land contained in Folio Identifier (omitted) and the First Respondent’s interest in the property at Property B being the whole of the land contained in Folio Identifier (omitted) under the provisions of section 106B of the Family Law Act 1975 is adjourned to the final hearing of these proceedings.

UNTIL FURTHER ORDER The First Respondent and the Second Respondent are restrained by injunction from dealing in any way with the proceeds of the sale by the First Respondent to the Second Respondent of his interests in the said properties AT Property D and Property B.

Within fourteen (14) days of the Date of these Orders the First Respondent must file and serve a Written Submission to show cause why an Order should not be made that he pay all or a part of the Applicant’s costs of this Application and, if such Order be made by the Court, why such costs should not be assessed on an indemnity basis.

Within fourteen (14) days of the Date of these Orders the Second Respondent must file and serve a Written Submission to show cause why an Order should not be made that he pay all or a part of the Applicant’s costs of this Application and, if such Order be made by the Court, why such costs should not be assessed on an indemnity basis.

The Principal Registrar is requested to forward a sealed copy of these orders and a copy of the Court’s Reasons for Judgment by ordinary pre-paid post to SERGIO NICOLAU, solicitor of NEWTOWN SOLICITORS, 5 Stanmore Road, Enmore NSW 2042 PO Box 221 Enmore NSW 2042

Within fourteen (14) days of the date of receipt of the Orders and Reasons set out in the immediately preceding Order SERGIO NICOLAU, solicitor, must file and serve a Written Submission to show cause why the Court should not make a complaint to the Office of the Legal Services Commissioner for unsatisfactory professional conduct in connection with his representation of the First Respondent.

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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