Glover & Webster - [2021] FedCFamC1A 69

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Glover & Webster [2021] FedCFamC1A 69

Appeal from: Webster & Glover [2021] FamCA 127

Appeal number(s): NOA 23 of 2021

File number(s): BRC 11228 of 2016

Judgment of: STRICKLAND, AINSLIE-WALLACE & ALDRIGE JJ

Date of judgment: 19 November 2021

Catchwords: FAMILY LAW – APPEAL – BANKRUPTCY – Appeal from a declaration – Whether the appellant has standing to appeal – Where the authorities state that a bankrupt lacks sufficient interest to prosecute the appeal – Appeal dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 85, 90SM

Bankruptcy Act 1966 (Cth) ss 58(1)(b), 60

Cases cited:
Cummings v Claremont PetroleumPty Ltd (1996) 185 CLR 124; [1996] HCA 19

Guirguis v Guirguis (1997) FLC 92-726; [1997] FamCA 6

O’Neill v O’Neill and Ors (1998) FLC 92-811; [1998] FamCA 67

Number of paragraphs: 39

Date of last submissions: 9 November 2021

Date of hearing: 26 August 2021

Place: Brisbane (via video link), delivered in Sydney

The Appellants: Self-represented litigant

Counsel for the Respondents: Mr Bunning

Solicitor for the Respondents: Damien Greer Lawyers
ORDERS

NOA 23 of 2021
BRC 11228 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS GLOVER

First Appellant

R PTY LTD

Second Appellant

AND:
MR WEBSTER

First Respondent

S PTY LTD

Second Respondent

ORDER MADE BY:

STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ

DATE OF ORDER:

19 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The appeal be dismissed.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Glover & Webster has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, AINSLIE-WALLACE & ALDRIDGE JJ:
INTRODUCTION

On 8 April 2021 a judge of the Family Court of Australia (now known as the Federal Circuit and Family Court of Australia (Division 1)) made a declaration that a Binding Financial Agreement (“the BFA”) entered into between Ms Glover (“the first appellant”) and Mr Webster (“the first respondent”) on 1 July 2010, covered all the assets, liabilities, superannuation, financial interests and financial resources of them or each of them and, as a consequence there were no interests not covered by the terms of that financial agreement. The effect of the decision was that there was no available property about which to make a property settlement order pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) as sought by the first appellant. Although joined as second appellant and second respondent respectively, R Pty Ltd and S Pty Ltd…

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 Glover & Webster

Details

AGLC: Glover & Webster [2021] FedCFamC1A 69
Case: [2021] FedCFamC1A 69
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) Appellate Jurisdiction considered an appeal from a declaration that a Binding Financial Agreement (BFA) between Ms Glover and Mr Webster covered all the assets, liabilities, superannuation, financial interests, and financial resources of the parties, leaving no available property for a property settlement order. Ms Glover, the first appellant, argued the BFA did not cover certain assets, while Mr Webster, the first respondent, maintained the agreement was binding. The appeal was dismissed, focusing on the issue of whether Ms Glover, having become bankrupt, had standing to prosecute the appeal.

The court had to decide if Ms Glover, now a bankrupt, could appeal the declaration regarding the BFA. The appeal's legal foundation hinged on whether Ms Glover had the requisite interest in the order to proceed with the appeal, considering her bankruptcy and the subsequent vesting of her property in her trustee. The court examined precedents, notably Cummings v Claremont Petroleum Pty Ltd, Guirguis v Guirguis, and O'Neill v O'Neill and Ors, which established that a bankrupt lacks the necessary interest to appeal orders concerning property that vests in the trustee.

The court held that Ms Glover, as an undischarged bankrupt, lacked the standing to prosecute the appeal. The decision in Cummings clarified that a bankrupt's contingent interest in a surplus post-bankruptcy does not confer the right to appeal. The court further noted that while Ms Glover could potentially seek a property settlement if the appeal were successful, any property received would vest in her trustee, depriving her of the interest necessary to appeal. The trustee had also elected not to prosecute the appeal, reinforcing the conclusion that Ms Glover had no standing to continue the appeal. Consequently, the appeal was dismissed.

Orders