Keene and Scofield - [2012] FMCAfam 28

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEENE & SCOFIELD

[2012] FMCAfam 28

FAMILY LAW – Costs – application for security for costs pending trial – matters to be considered – what is just – application for injunction prior to trial – balance of convenience – de facto property proceedings – proceeding set for trial in respect of issue as to the existence of such a relationship between the parties – impossible to assess parties’ respective chances of success at interim stage.

Family Law Act 1975, ss.4A(1); 90RD(1); 90SM; 114(3); 117(1); 117(2)
Family Law Rules, r.19.05
Federal Magistrates Court Rules, r.1.05(2)
The Commonwealth Powers (Defacto Relationship) Act 2009 (South Australia)

Luadaka & Luadaka (1998) FLC 92-830
Jones & Jones (2001) FLC 93-080
Bryan E Fencott Pty Ltd v Eretta Pty Ltd (1987) 6 FCR 497
Brown & Brown; Eley & Henty (Intervenors) (1991) FLC 92-265
Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd (2006) 236 ALR 770

Applicant:

MR KEENE

Respondent:

MS SCOFIELD

File Number:

ADC 983 of 2011

Judgment of:

Brown FM

Hearing date:

19 December 2011

Date of Last Submission:

19 December 2011

Delivered at:

Adelaide

Delivered on:

13 January 2012

REPRESENTATION

Counsel for the Applicant:

Mr Berman SC

Solicitors for the Applicant:

Angela Ferdinandy

Counsel for the Respondent:

Mr McGinn

Solicitors for the Respondent:

Howe Martin & Associates

ORDERS

UNTIL FURTHER OR OTHER ORDER

The applicant be restrained and an injunction issued restraining him from further mortgaging, encumbering, charging, borrowing money on the security of, or in any other way dealing with the following properties:
(a)[1] Property D being the whole of the land comprised and described in Certificate of Title Register Book Volume [omitted]; and
(b)Units [numbers omitted] at Property M being the whole of the land comprised and described in Certificates of Title Register Book Volume [omitted].
The interim application filed 1 November 2011 and the response filed 30 November 2011 other than Mr Keene’s application for the delivery of items of property to him are dismissed.
Order 2 of Mr Keene’s response filed 30 November 2011 is adjourned to 1 March 2012 for further hearing.
The costs of these proceedings are reserved to the conclusion of the trial scheduled for 1 & 2 March 2012.
The final hearing before Federal Magistrate Brown on 1 & 2 March 2012 at 10.00am is confirmed.
The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 2 February 2012.
The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 16 February 2012.
That on or before 2 February 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.
The applicant pay such daily hearing fee as required pursuant to the Federal Magistrates Regulations 2000.

IT IS NOTED that publication of this judgment under the pseudonym Keene &…

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 Keene and Scofield

Details

AGLC: Keene and Scofield [2012] FMCAfam 28
Case: [2012] FMCAfam 28
Decision Date: 13 January 2012

CaseChat Overview and Summary

The parties involved in this case are Keene and Scofield, with the dispute primarily concerning the enforcement of an injunction against further dealings with specific properties. The court involved in this matter is the Federal Circuit Court of Australia. The central issue before the court was whether an interim injunction should be granted to prevent the applicant from mortgaging, encumbering, charging, borrowing money on the security of, or otherwise dealing with two specified properties. The legal issues that the court had to address included the enforceability of the injunction and the appropriate procedural steps to be taken in the interim period before the final hearing.

The court considered the arguments presented by both parties, focusing on the necessity of the injunction and the balance of convenience. The court determined that the injunction was necessary to prevent the applicant from dealing with the specified properties in a manner that could prejudice the respondent's rights. It was found that the applicant's actions, if allowed to continue, would undermine the respondent's position and potentially result in significant financial loss. The court also noted that the balance of convenience clearly favoured the respondent, as the applicant's continued dealings with the properties could lead to irreparable harm.

In light of the above considerations, the court issued the requested injunction, restraining the applicant from further encumbering the specified properties. The court also set out detailed procedural orders, including deadlines for the filing and serving of affidavit evidence, the payment of fees, and the confirmation of the final hearing date. The court reserved costs until the conclusion of the trial, ensuring that all relevant evidence and arguments would be considered before any determination on costs is made.

Orders

Orders of the court

UNTIL FURTHER OR OTHER ORDER

The applicant be restrained and an injunction issued restraining him from further mortgaging, encumbering, charging, borrowing money on the security of, or in any other way dealing with the following properties:

(a) [1] Property D being the whole of the land comprised and described in Certificate of Title Register Book Volume [omitted]; and

(b) Units [numbers omitted] at Property M being the whole of the land comprised and described in Certificates of Title Register Book Volume [omitted].

The interim application filed 1 November 2011 and the response filed 30 November 2011 other than Mr Keene’s application for the delivery of items of property to him are dismissed.

Order 2 of Mr Keene’s response filed 30 November 2011 is adjourned to 1 March 2012 for further hearing.

The costs of these proceedings are reserved to the conclusion of the trial scheduled for 1 & 2 March 2012.

The final hearing before Federal Magistrate Brown on 1 & 2 March 2012 at 10.00am is confirmed.

The applicant file and serve all affidavit evidence he proposes to rely on at trial on or before close of Registry filing on 2 February 2012.

The respondent file and serve all affidavit evidence she proposes to rely on at trial on or before close of Registry filing on 16 February 2012.

That on or before 2 February 2012 the applicant do pay the setting down fee or file an exemption certificate in respect thereof.

The applicant pay such daily hearing fee as required pursuant to the

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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