George & George - [2021] FamCA 583

FAMILY COURT OF AUSTRALIA
George & George [2021] FamCA 583

File number(s): BRC 4444 of 2020

Judgment of: HOWARD J

Date of judgment: 29 June 2021

Catchwords:
FAMILY LAW – PROPERTY – Interim property application – where applicant, first respondent and second respondents all own a single property as tenants in common – where the second respondents sought to transfer the wife’s 1/5^th share to themselves – where the property was the subject of an injunction made by the Supreme Court – where any dealing with the property could only be done with the consent of the applicant in the Supreme Court proceedings – where the second respondents asserted they had such consent supporting their application – where such consent was not clear and did not support their application – where the latest valuation evidence was one year old – application dismissed – costs in accordance with the scale.

FAMILY LAW – SUMMARY DISMISSAL – Application for summary dismissal of the wife’s application as against the sixth respondent – where the sixth respondent is a company in which the husband formerly held an interest – where the husband transferred his interest to one of the Second Respondents – where the wife pleads that the husband continued to manage the company, act as a de facto director of the company and receive dividends – where there is a reasonable cause of action – serious legal question to be determined – application for summary dismissal dismissed – costs in accordance with the scale.

Legislation:
Family Law Act 1975 (Cth) ss 45A, 79, 117

Family Law Rules 2004 (Cth)

Cases cited:
Lindon v Commonwealth (No. 2) (1996) 70 ALR 541

Ritter & Ritter and Anor [2020] FamCAFC 86

Stativa & Stativa [2015] FamCAFC 170

Number of paragraphs: 31

Date of last submission/s: 29 June 2021

Date of hearing: 29 June 2021

Place: Brisbane

Counsel for the Applicant: Mr Balzamo

Solicitor for the Applicant: Browns Lawyers

Counsel for the Second and Sixth Respondents: Mr Galloway

Solicitor for the Second and Sixth Respondents: Simpson Family Lawyers
ORDERS

BRC 4444 of 2020

BETWEEN:
MS GEORGE

Applicant

AND:
MR GEORGE

First Respondent

MR B GEORGE, MS C GEORGE AND MR D GEORGE

Second Respondents

MR E GEORGE (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Second Respondents’ interim application contained in the Amended Response filed 14 December 2020 and further Amended Response filed on 25 June 2021 is dismissed.
2.That Second Respondents pay the Applicant wife’s costs of and incidental to aforementioned application in paragraph 1 in accordance with the scale contained in Schedule 3 to the Family Law Rules 2004 (Cth).
3.That the Sixth Respondent’s application for summary dismissal of the Applicant wife’s application as against them (also contained in the Amended Response filed 14 December 2020 and further Amended Response filed on 25 June 2021) is dismissed.
4.That the Sixth Respondent pay the Applicant wife’s…

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.

Continue reading George & George

Details

AGLC: George & George [2021] FamCA 583
Case: [2021] FamCA 583
Decision Date: 29 June 2021

CaseChat Overview and Summary

In the matter of *George & George*, Howard J of the Family Court of Australia considered an interim property application brought by the Second Respondents and an application for summary dismissal by the Sixth Respondent. The dispute involved a property jointly owned by the Applicant (wife), the First Respondent (husband), and the Second Respondents. The Second Respondents sought to transfer the wife's share of the property to themselves, but this property was subject to an injunction from the Supreme Court, requiring the consent of the Applicant in those proceedings for any dealing with it. The Second Respondents claimed to have this consent, but the Court found it was not clear and did not support their application. Furthermore, the most recent valuation of the property was a year old.

The Court was required to determine whether the Second Respondents' interim application to transfer the wife's share of the property should be granted, given the existing Supreme Court injunction and the age of the valuation evidence. Additionally, the Court had to consider the Sixth Respondent's application for summary dismissal of the wife's claim against it. The wife alleged that the husband, despite transferring his interest in the Sixth Respondent company to one of the Second Respondents, continued to manage the company, act as a de facto director, and receive dividends.

Howard J dismissed the Second Respondents' interim application, reasoning that the claimed consent for dealing with the property was not sufficiently clear and did not override the Supreme Court injunction. The Court also noted the outdated valuation evidence as a factor against granting the interim order. Regarding the Sixth Respondent's application, the Court found that the wife had pleaded a reasonable cause of action, raising serious legal questions regarding the husband's continued involvement and benefit from the company. Consequently, the application for summary dismissal was also dismissed.

The Second Respondents were ordered to pay the Applicant wife's costs of and incidental to their dismissed interim application. Similarly, the Sixth Respondent was ordered to pay the Applicant wife's costs of and incidental to its dismissed summary dismissal application. All outstanding applications were adjourned for mention before a Registrar.

Orders

Orders of the court

BRC 4444 of 2020

BETWEEN:

MS GEORGE

Applicant

AND:

MR GEORGE

First Respondent

MR B GEORGE, MS C GEORGE AND MR D GEORGE

Second Respondents

MR E GEORGE (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

29 JUNE 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the Second Respondents’ interim application contained in the Amended Response filed 14 December 2020 and further Amended Response filed on 25 June 2021 is dismissed.

2. That Second Respondents pay the Applicant wife’s costs of and incidental to aforementioned application in paragraph 1 in accordance with the scale contained in Schedule 3 to the Family Law Rules 2004 (Cth).

3. That the Sixth Respondent’s application for summary dismissal of the Applicant wife’s application as against them (also contained in the Amended Response filed 14 December 2020 and further Amended Response filed on 25 June 2021) is dismissed.

4. That the Sixth Respondent pay the Applicant wife’s costs of and incidental to the aforementioned application in paragraph 3 in accordance with the scale contained in Schedule 3 to the Family Law Rules 2004 (Cth).

THE COURT FURTHER ORDERS:

5. That all outstanding applications be adjourned for Mention before a Registrar at 2:15pm on 24 August 2021 in the Family Court of Australia at Brisbane.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	BRC 4444 of 2020
Judgment of:	HOWARD J
Date of judgment:	29 June 2021
Catchwords:	FAMILY LAW – PROPERTY – Interim property application – where applicant, first respondent and second respondents all own a single property as tenants in common – where the second respondents sought to transfer the wife’s 1/5^th share to themselves – where the property was the subject of an injunction made by the Supreme Court – where any dealing with the property could only be done with the consent of the applicant in the Supreme Court proceedings – where the second respondents asserted they had such consent supporting their application – where such consent was not clear and did not support their application – where the latest valuation evidence was one year old – application dismissed – costs in accordance with the scale. FAMILY LAW – SUMMARY DISMISSAL – Application for summary dismissal of the wife’s application as against the sixth respondent – where the sixth respondent is a company in which the husband formerly held an interest – where the husband transferred his interest to one of the Second Respondents – where the wife pleads that the husband continued to manage the company, act as a de facto director of the company and receive dividends – where there is a reasonable cause of action – serious legal question to be determined – application for summary dismissal dismissed – costs in accordance with the scale.
Legislation:	Family Law Act 1975 (Cth) ss 45A, 79, 117 Family Law Rules 2004 (Cth)
Cases cited:	Lindon v Commonwealth (No. 2) (1996) 70 ALR 541 Ritter & Ritter and Anor [2020] FamCAFC 86 Stativa & Stativa [2015] FamCAFC 170
Number of paragraphs:	31
Date of last submission/s:	29 June 2021
Date of hearing:	29 June 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Balzamo
Solicitor for the Applicant:	Browns Lawyers
Counsel for the Second and Sixth Respondents:	Mr Galloway
Solicitor for the Second and Sixth Respondents:	Simpson Family Lawyers

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	29 JUNE 2021