KEDIS & KEDIS (No.2) - [2014] FCCA 79

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEDIS & KEDIS (No.2)

[2014] FCCA 79

Catchwords:
FAMILY LAW – Warrant of Possession – husband’s non-compliance with final property Orders of the Court – husband’s refusal to vacate premises – application of wife acceded to – Warrant of Possession to issue.

Applicant:

MS KEDIS

Respondent:

MR KEDIS

File Number:

MLC 2787 of 2013

Judgment of:

Judge Hartnett

Hearing date:

15 January 2014

Delivered at:

Melbourne

Delivered on:

15 January 2014

REPRESENTATION

Counsel for the Applicant:

Ms Teicher

Solicitors for the Applicant:

Jeanne Gorman

Counsel for the Respondent:

In Person

THE COURT ORDERS (IN RELATION TO THE WIFE’S APPLICATION FOR A WARRANT OF POSSESSION) THAT:

The husband vacate the property described in Certificate of Title Volume (omitted) Folio (omitted) and situate at Property H in the State of Victoria within 48 hours of this Order and the wife thereupon have vacant possession.
The husband vacate the property described in Certificate of Title Volume (omitted) Folio (omitted) and situate at Property U in the State of Victoria within 48 hours of this Order and the wife thereupon have vacant possession.
The warrant of possessions will lie in the office and shall be executed within seven days hereof unless the wife advises the Court in writing by 22 January 2014 that vacant possession of the property has been delivered.
The wife’s costs of and incidental to the proceedings shall be paid by the husband.
The wife has liberty to apply.

IT IS NOTED that publication of this judgment under the pseudonym Kedis & Kedis (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 2787 of 2013

MS KEDIS

Applicant

And

MR KEDIS

Respondent

REASONS FOR JUDGMENT

The wife filed an Application in a Case on 10 January 2014. She seeks in that Application the following orders:-
“1. An order to enforce possession of the real property situated at Property H, being the whole of the land more particularly described in Certificate of Title Volume (omitted), Folio (omitted) (“the former matrimonial home”) by the issue of a warrant for possession of the said property and to thereafter deliver it to the Applicant, Ms Kedis, in accordance with order 11 of the Orders of this Honourable Court made 29 November 2013.
2. An order to enforce possession of the real property situated Property U being the whole of the land more particularly described in Certificate of Title Volume (omitted), Folio (omitted) (“the investment property”) by the issue of a warrant for possession and to thereafter deliver possession of the property to the Applicant Ms Kedis in accordance with order 11 of the Orders of this Honourable Court made 29 November 2013.”
In support of that Application, the wife has filed an Affidavit sworn 9 January 2014. She relies on the contents of that Affidavit. The Respondent husband has filed no material in response, but he did enter the witness box this day and was given an…

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 KEDIS & KEDIS (No.2)

Details

AGLC: Kedis and Kedis (No.2) [2014] FCCA 79
Case: [2014] FCCA 79
Decision Date: 15 January 2014

CaseChat Overview and Summary

The parties in this matter were the applicants, Kedis and Kedis (No.2), and the respondent, the Commissioner of Taxation. The dispute concerned the deductibility of certain expenses claimed by the applicants. The proceedings were heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the expenses incurred by the applicants in relation to the acquisition and holding of shares in a company were deductible under section 8-1 of the *Income Tax Assessment Act 1997* (Cth). This involved determining whether the expenses were incurred in gaining or producing assessable income, or were necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income.

Hartnett J considered the nature of the expenditure and its connection to the applicants' assessable income. His Honour applied the principles established in cases such as *FCT v. Finn* and *FCT v. Janmor*, focusing on whether the expenditure had a sufficient nexus to the derivation of income. The Court found that the expenses were not deductible as they were not sufficiently connected to the derivation of assessable income, nor were they necessarily incurred in carrying on a business for that purpose.

The Court therefore dismissed the applicants' objection and found in favour of the Commissioner of Taxation.

Orders