FAMILY LAW – PRACTICE AND PROCEDURE – AMICUS CURIAE – legal basis for permitting a person to appear as amicus curiae – recital of key authorities.
FAMILY LAW – SUPERANNUATION – private self-managed superannuation fund – disputed evidence about ownership of real property in rural Victoria – applicant and respondent contending that the land was transferred to them in their capacity as trustees of private superannuation fund – transfer not registered on title – local shire council levying rates over property – respondent saying superannuation fund should pay – rates remaining unpaid – local council threatening to sell land unless rates paid – SMSF having cash-at-bank to pay rates.
FAMILY LAW – INJUNCTION – MANDATORY INJUNCTION – balance of convenience overwhelmingly favouring order for payment of rates from cash-at-bank – review of authorities on mandatory injunctions.
FAMILY LAW – INJUNCTION – to prevent abuse of this court’s process – review of authorities.
[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
AGLC
Holder & Holder [2020] FamCA 347
Case
[2020] FamCA 347
Decision Date
CaseChat Overview and Summary
In the matter of *Holder & Holder*, Justice Wilson of the Family Court of Australia considered a dispute between a husband and wife concerning the payment of rates on a rural property held within a self-managed superannuation fund (SMSF). The local shire council had levied rates on the property, which remained unpaid, and the council threatened to sell the land. Both the applicant husband and respondent wife contended that the land was transferred to them in their capacity as trustees of the private superannuation fund, although this transfer was not registered on the title. The SMSF possessed sufficient cash reserves to satisfy the outstanding rates.
The court was required to determine whether to grant a mandatory injunction compelling the husband to pay the outstanding rates from the SMSF's cash reserves. Additionally, the court considered the legal basis for permitting an amicus curiae to appear and the principles governing the grant of mandatory injunctions, particularly in circumstances where such an order might prevent an abuse of the court's process.
Justice Wilson reasoned that the balance of convenience overwhelmingly favoured the granting of a mandatory injunction to ensure the payment of the rates. The court reviewed relevant authorities on mandatory injunctions, emphasizing the need for clear evidence and a strong case to justify such an order. The judge also considered the principles surrounding the court's power to prevent abuse of process.
The court ordered that the husband forthwith pay the B Shire Council the sum of $22,101.99 from funds held within the Holder Superannuation Fund. The husband's application for orders sought in his response filed on 7 April 2020 was dismissed. The proceeding was added to the judge's judicial docket and listed for directions on 1 June 2020, with a compliance hearing previously scheduled before the Chief Justice vacated.
Orders
Orders of the court
1.
I order that the husband forthwith pay the B Shire Council the sum of $22,101.99 from funds in the Holder Superannuation Fund in satisfaction of its notice dated 15 January 2020.
2.
I dismiss the husband’s application for the orders sought by him in his response filed on 7 April 2020.
3.
This proceeding is added to my judicial docket.
4.
This proceeding is listed for directions on 1 June 2020 at 10am to be conducted by a telephone conference.
5.
The compliance hearing before the Honourable Chief Justice Alstergren on 21 May 2020 is vacated.
Note: The form of the order is subject to the entry of the order in the Court’s records.