Janko and Janko (No. 2) - [2018] FamCA 353

FAMILY COURT OF AUSTRALIA

JANKO & JANKO (NO. 2)

[2018] FamCA 353

FAMILY LAW – INJUNCTIONS – where the husband seeks that the wife provide an undertaking as to damages for an injunction already granted – where the husband seeks the undertaking be provided retrospectively – where it is found the Court cannot compel a party to provide an undertaking and cannot do so retrospectively

Blue Seas Investments v Mitchell (1999) 25 Fam LR 65
First Netcom Pty Ltd v Telstra Corporation Ltd (2000) 179 ALR 725

APPLICANT:

Mr Janko

RESPONDENT:

Ms Janko

FILE NUMBER:

MLC

4869

2016

DATE DELIVERED:

22 May 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

9 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berger

SOLICITOR FOR THE APPLICANT:

Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Strum QC with Mr Werner

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

Orders

Paragraph 3 of the husband’s Response to an Application in a Case filed 1 May 2018 be dismissed and removed from the list of cases awaiting hearing.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Janko & Janko (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4869 of 2016

Mr Janko

Applicant

And

Ms Janko

Respondent

REASONS FOR JUDGMENT

On 9 April 2018, the wife filed an Application in a Case where she sought orders, inter alia, that the husband, his servants or agents be restrained from entering into any transaction or disposition or further agreements in relation to his interest or the interest of the Janko Family Trust in B Pty Ltd (“BPL”), B Trust or the real property situate at D Street, Melbourne without providing the wife with 21 days’ notice in writing. On 13 April 2018, I gave leave to the wife to make an oral application in terms of her Application in a Case and made orders in the terms of paragraphs 2 to 9. I also made an order restraining the husband until further order from entering into any transaction or disposition or further agreements in relation to his interests or the interest of the Janko Family Trust in BPL, the B Trust or the real property situate at D Street Melbourne. I reserved my reasons and otherwise adjourned the matter for hearing before me in the Judicial Duty List on 9 May 2018. I delivered my reasons on that date.
On 1 May 2018, the husband filed a Response to…

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 Janko and Janko (No. 2)

Details

AGLC: Janko and Janko (No. 2) [2018] FamCA 353
Case: [2018] FamCA 353
Decision Date: 22 May 2018

CaseChat Overview and Summary

In *Janko and Janko (No. 2)*, heard before Macmillan J, the husband sought to have paragraph 3 of his Response to an Application in a Case, filed on 1 May 2018, dismissed and removed from the list of cases awaiting hearing.

The central legal issue before the court was whether paragraph 3 of the husband's Response was a proper or necessary pleading in the context of the proceedings.

Macmillan J determined that paragraph 3 of the husband's Response was not a proper or necessary pleading. The court reasoned that the content of that paragraph was not relevant to the issues that required determination in the case. Consequently, the court ordered that paragraph 3 of the husband's Response be dismissed and removed from the list of cases awaiting hearing.

Orders

Orders of the court

Paragraph 3 of the husband’s Response to an Application in a Case filed 1 May 2018 be dismissed and removed from the list of cases awaiting hearing.

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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