Gray and Samuel and Anor - [2010] FamCA 962

FAMILY COURT OF AUSTRALIA

GRAY & SAMUEL AND ANOR

[2010] FamCA 962

FAMILY LAW – PROPERTY – Release of funds – Interim distribution of monies – Case management orders

APPLICANT / INTERVENOR:

M Gray

WIFE:

Ms Samuel

HUSBAND:

Mr Gray

FILE NUMBER:

MLC

5770

2009

DATE DELIVERED:

16 SEPTEMBER 2010

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

16 SEPTEMBER 2010

REPRESENTATION

COUNSEL FOR THE WIFE:

MR KIERNAN

SOLICITOR FOR THE WIFE:

GRIFFIN SWEENEY LAWYERS

COUNSEL FOR THE HUSBAND:

MR CLARK

SOLICITOR FOR THE HUSBAND:

ZERVOS LAWYERS

COUNSEL FOR THE APPLICANT/INTERVENOR:

MR MORT

SOLICITOR FOR THE APPLICANT/INTERVENOR:

PHILLIPS & WILKINS

Orders

IT IS ORDERED:

As to the undertakings provided to the Court and contained within the Orders pronounced 3 September 2010 the following shall continue to apply:
i.Pursuant to paragraph 2 thereof, the Second Named Respondent and the Third Named Respondent Intervenor (“the Intervenor”) be released from their respective undertakings which shall then be discharged;
ii.Pursuant to paragraphs 1 and 3 thereof, the undertakings there provided by the husband are to continue in full force and effect.
THAT the husband be released from his undertaking given by him to the Court on 14 September 2010 and such undertaking be otherwise discharged.
PURSUANT to the Orders made 14 September 2010 paragraph 3 thereof be varied so as to provide that the requirement of the husband to file and serve his Response and affidavit be extended to 4 October 2010 and such affidavit respond in detail to the affidavits now filed on behalf of the Intervenor and the wife and provide all facts relied upon by the husband as to the financial and commercial matters in dispute in these proceedings.
THAT each of the husband and wife make, file and serve an updated financial statement on or before 4 October 2010.
THE husband and the Intervenor forthwith instruct and authorise the proper officer of the Laiki Bank (Australia) Limited to release the total funs credited in the account in the name of the Second Respondent (acc no. …24) and any accrued interest thereon, to the trust account of the solicitors for the Intervenor and there to be dispersed as follows:
iThe sum of $10,500.00 to the Intervenor;
ii.the sum of $10,500.00 to the solicitors for the husband, but always subject to the requirements of Order 6 hereof;
iii.in payment of the corporate accounts outstanding as follows:
·Land tax $5,167.00;
·GST payable on behalf of the Second Respondent and for the months of March, June and September 2010;
·all fees and monies owing to ASIC;
·the accounting fees payable to Mr G;
·the council rates for the first floor apartment at S;
·the building and structural insurance on the whole of that S property.
iv.And with the balance of any and all monies remaining to be retained on trust by the Intervenor’s solicitors pending further Order of the Court or agreement of all parties.
PURSUANT to paragraph 5.2 hereof, and from the monies that were…

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: [2010] FamCA 962
Decision Date: 16 SEPTEMBER 2010

CaseChat Overview and Summary

This matter came before Young J concerning undertakings and financial matters in proceedings involving the husband, the wife, and an intervenor. The dispute centred on the discharge and continuation of various undertakings previously given to the Court, the filing of responsive affidavits, the provision of updated financial statements, and the disbursement of funds from a specific bank account.

The Court was required to determine the extent to which existing undertakings should be discharged or continue, and to vary procedural orders regarding the filing of the husband's response and affidavit. A key issue was the proper distribution of funds held in the Second Respondent's bank account, including payments to the intervenor, the husband's solicitors, various corporate and personal accounts, and outstanding debts. The Court also needed to address the payment of costs and the consolidation of outstanding applications.

Young J ordered the discharge of certain undertakings given by the Second Named Respondent and the Intervenor, while maintaining the husband's undertakings. The deadline for the husband to file and serve his Response and affidavit was extended, requiring him to address the intervenor's and wife's affidavits in detail. Both the husband and wife were ordered to file updated financial statements. Crucially, the Court directed the release of funds from the Second Respondent's bank account to the intervenor's solicitors for disbursement, prioritising payments to the intervenor, the husband's solicitors (subject to further orders), and specified corporate and personal debts. The remaining balance was to be held on trust. Further directions were given regarding the payment of specific sums from the funds allocated to the husband's solicitors, including payments to the wife's solicitors and a registered valuer, with the balance to be retained by the husband's solicitors. The intervenor was ordered to file an affidavit detailing payments made, and costs were awarded against the husband. All outstanding applications were adjourned and consolidated with proceedings before Cronin J.

Orders

Orders of the court

IT IS ORDERED:

As to the undertakings provided to the Court and contained within the Orders pronounced 3 September 2010 the following shall continue to apply:

i. Pursuant to paragraph 2 thereof, the Second Named Respondent and the Third Named Respondent Intervenor (“the Intervenor”) be released from their respective undertakings which shall then be discharged;

ii. Pursuant to paragraphs 1 and 3 thereof, the undertakings there provided by the husband are to continue in full force and effect.

THAT the husband be released from his undertaking given by him to the Court on 14 September 2010 and such undertaking be otherwise discharged.

PURSUANT to the Orders made 14 September 2010 paragraph 3 thereof be varied so as to provide that the requirement of the husband to file and serve his Response and affidavit be extended to 4 October 2010 and such affidavit respond in detail to the affidavits now filed on behalf of the Intervenor and the wife and provide all facts relied upon by the husband as to the financial and commercial matters in dispute in these proceedings.

THAT each of the husband and wife make, file and serve an updated financial statement on or before 4 October 2010.

THE husband and the Intervenor forthwith instruct and authorise the proper officer of the Laiki Bank (Australia) Limited to release the total funs credited in the account in the name of the Second Respondent (acc no. …24) and any accrued interest thereon, to the trust account of the solicitors for the Intervenor and there to be dispersed as follows:

i The sum of $10,500.00 to the Intervenor;

ii. the sum of $10,500.00 to the solicitors for the husband, but always subject to the requirements of Order 6 hereof;

iii. in payment of the corporate accounts outstanding as follows:

· Land tax $5,167.00;

· GST payable on behalf of the Second Respondent and for the months of March, June and September 2010;

· all fees and monies owing to ASIC;

· the accounting fees payable to Mr G;

· the council rates for the first floor apartment at S;

· the building and structural insurance on the whole of that S property.

iv. And with the balance of any and all monies remaining to be retained on trust by the Intervenor’s solicitors pending further Order of the Court or agreement of all parties.

PURSUANT to paragraph 5.2 hereof, and from the monies that were to be payable to the husband’s solicitors, there first be paid the following:

i. The sum of $2,900.00 to the wife’s solicitors pursuant to paragraph 8 of the Orders of this Court pronounced 7 January 2010;

ii. the sum of $3,400.00 to the wife’s solicitors pursuant to paragraph 3 of the Orders pronounced 20 August 2010;

iii. the further sum of $2,750.00 to be paid to Mr R, Registered Valuer, pursuant to the Consent Orders pronounced 7 January 2010;

iv. the balance of monies to be retained by the husband’s solicitors on his behalf.

THAT the intervenor make, file and serve a further affidavit prior to the adjourned hearing setting out all accounts paid by him on behalf of the Second Respondent or pursuant to these Orders.

THAT the husband pay the wife’s costs of this day fixed in the sum of $900.00 and the costs of the Intervenor fixed in the sum of $1,500.00.

ALL extant applications be otherwise adjourned and consolidated with proceedings listed before Cronin J on 12 October 2010 at 10:00 a.m.

10.

THAT the ex tempore reasons for judgment be transcribed, be placed upon the Court file and made available to all parties.

IT IS CERTIFIED

11.

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the wife, husband and Intervenor.

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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