Holder & Holder

Case [2020] FamCA 347


FAMILY COURT OF AUSTRALIA

HOLDER & HOLDER [2020] FamCA 347

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.

Commonwealth of Australia Constitution Act 1900 (Imp), s 75(v)
Family Law Act 1975 (Cth), s 79
Local Government Act 1989 (Vic), s 181(5)(a)
Superannuation Industry (Supervision) Act 1993 (Cth), ss 126A(3), 315(3), 315(8), 344
Supreme Court Civil Procedure Act 1932 (Tas), s 11(12)
Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542
Attorney-General (Cth) v Breckler (1999) 197 CLR 83
Attorney-General (WA) v Marquet (2003) 217 CLR 545
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Railways Union v The Victorian Railways Commissioners (1930) 44 CLR 319
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
Blueseas Investments Pty Ltd v Mitchell (1999) 25 Fam LR 65
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Charrington v Simons & Co Ltd [1970] 1 WLR 725
Commissioner of Taxation v Scully (2000) 201 CLR 148
D.M.W. v C.G.W. (1982) 151 CLR 491
DJL v The Central Authority (2000) 201 CLR 226.
Dunworth & Falletti [2020] FamCA 178
Earl of Mexborough v Bower [1843] 49 ER 1011
Fejo v Northern Territory (1998) 195 CLR 96
Glossop v Heston and Isleworth Local Board (1879) 12 Ch D 102
Goodridge & Beadle (2017) 57 Fam LR 425
Grassby v R (1989) 168 CLR 1
Holmes v Millage [1893] 1 QB 551
Isenberg v The East India House Estate Co Ltd [1863] 46 ER 637
Jackson v Normanby Brick Co [1899] 1 Ch 438
Jemena Gas Networks (NSW) Ltd v Mine Subsidence Board (2011) 243 CLR 558
Karjala & Gallard [2020] FamCA 110
Kennon v Spry (2008) 238 CLR 366
Kruger v The Commonwealth (1997) 190 CLR 1
Levy v Victoria (1997) 189 CLR 579
Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181
Martin & Martin [2013] FamCA 222
McManus v Cooke (1887) 35 Ch D 681
Members of the Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422

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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.

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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