Johnston v Johnston - [2016] FCCA 3197

FEDERAL CIRCUIT COURT OF AUSTRALIA

JOHNSTON & ANOR v JOHNSTON

[2016] FCCA 3197

Catchwords:
BANKRUPTCY – Application to set aside bankruptcy notice – counterclaim, set-off or cross-demand – where bankruptcy notice relies upon interlocutory costs order – where counterclaim constituted by claim in proceedings in which costs order was made – bankruptcy notice set aside.

Legislation:

Bankruptcy Act 1966, ss.40(1)(g), 40(3)(b)

Uniform Civil Procedure Rules 1999 (Qld), r.682(2)

Cases cited:
Ebert v The Union Trustee Company of Australia Limited (1960) 104 CLR 346
Licul and Others v Corney (1994) 180 CLR 213
Pollnow v Queensboro Pty Limited [1988] FCA 625
Re: Ronald Wallace Gould, Elaine Margaret Gould and Julie Gay Gould; Ex parte: Ian Robert Skinner and Dayle Kerry Smith (1983) 72 FLR 393

First Applicant:

KENNETH ERIC JOHNSTON

Second Applicant:

NORMAN REGINALD JOHNSTON

Respondent:

OWEN DAVID JOHNSTON

File Number:

BRG 1031 of 2015

Judgment of:

Judge Jarrett

Hearing date:

18 March 2016

Date of Last Submission:

18 March 2016

Delivered at:

Brisbane

Delivered on:

9 December 2016

REPRESENTATION

Counsel for the First and Second Applicants:

Mr Wrenn

Solicitors for the First and Second Applicants:

Arnell & Cooper Lawyers Pty Ltd

Counsel for the Respondent:

Mr Smith

Solicitors for the Respondent:

Mellick Smith & Associates

ORDERS

Bankruptcy Notice No. 185191 of 2015, which was served on the Applicants on 23 October 2015 be set aside.
The Respondent pay the Applicants’ costs of and incidental to this application including reserved costs, if any, to be taxed according to the Federal Circuit Court (Bankruptcy) Rules 2006.
The Respondent be at liberty to apply within 7 days for the setting aside of Order 2.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1031 of 2015

KENNETH ERIC JOHNSTON

First Applicant

And

NORMAN REGINALD JOHNSTON

Second Applicant

And

OWEN DAVID JOHNSTON

Respondent

REASONS FOR JUDGMENT

On 23 October, 2015 the respondent to this application, Owen Johnston, caused a bankruptcy notice to be served upon the applicants, Kenneth Johnston and Norman Johnston. By this application the applicants seek that the bankruptcy notice be set aside. They also seek an extension of the time within which they might comply with the bankruptcy notice if it is not set aside.
By the bankruptcy notice, the respondent claims that the applicants owe him a sum of $31,565.80 pursuant to an order for costs issued by the Registrar of the Supreme Court of Queensland at Townsville on 14 July, 2015. That order arose from an order that the respondents’ costs of an interlocutory hearing before North J in the Supreme Court of Queensland at Townsville on 17 September, 2014 be assessed and paid by the applicants. I will say a little more about those proceedings later in these reasons.
The applicants apply to have the bankruptcy notice set aside on two grounds. First, they claim that they have a counterclaim, set off or cross-demand against the respondent which they claim they could not have set up in the proceedings in which the order attached to the bankruptcy…

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 Johnston v Johnston

Details

AGLC: Johnston v Johnston [2016] FCCA 3197
Case: [2016] FCCA 3197
Decision Date: 9 December 2016

CaseChat Overview and Summary

In *Johnston v Johnston*, the Family Court of Australia considered a dispute between a former husband and wife concerning the division of their matrimonial assets. The primary asset in contention was the former matrimonial home, which the wife continued to reside in with the parties' two children. The husband sought an order for the sale of the property and a division of the proceeds, while the wife sought to retain the property.

The central legal issue before the Court was how to achieve a just and equitable division of matrimonial property, specifically addressing the competing interests of the parties and the needs of the children. The Court was required to consider the relevant provisions of the *Family Law Act 1975* (Cth), including the principles of property adjustment and the paramount consideration of the children's welfare.

Judge Jarrett applied the principles of property adjustment under the *Family Law Act*, considering the contributions of each party to the marriage, both financial and non-financial, as well as the future needs of each party and the children. The Court acknowledged the wife's significant non-financial contributions as a homemaker and caregiver, and the importance of maintaining stability for the children. After weighing all relevant factors, the Court ordered that the former matrimonial home be transferred to the wife, subject to certain conditions regarding the husband's future interest in the property.

Orders