FAMILY COURT OF AUSTRALIA
| KENDLING & KENDLING AND ORS | [2008] FamCA 31 |
| FAMILY LAW – COSTS - Between parties |
| Family Law Act 1975 (Cth) |
| Marriage of Poletti (unreported, 2 March 1990) |
| APPLICANT: | Mrs Kendling |
| RESPONDENT: | Mr Kendling | |||||
| SECOND RESPONDENT | T Pty Ltd | |||||
| THIRD RESPONDENT | Jeremy Kendling | |||||
| FOURTH RESPONDENT | Penelope Kendling | |||||
| FIFTH RESPONDENT | L Pty Ltd | |||||
| SIXTH RESPONDENT | A Pty Ltd | |||||
| SEVENTH RESPONDENT | Mr Z | |||||
| EIGHTH RESPONDENT | B Ltd | |||||
| NINTH RESPONDENT | I Pty Ltd | |||||
| TENTH RESPONDENT | Mr PS | |||||
| FILE NUMBER: | SYF | 2903 | of | 2003 | ||
| DATE DELIVERED: | 25 January 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice O'Ryan |
| HEARING DATE: | 14 December 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Richardson |
| SOLICITOR FOR THE APPLICANT: | Michael Conley Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Baron |
| SOLICITOR FOR THE RESPONDENT: | Dorrough Smart Solicitors |
Orders
By 4.00 pm on 29 February 2008 the Husband pay into the trust account of the Wife’s Solicitors, Messrs Michael Conley Solicitors, the sum of $1,000,000.
The determination as to whether the sum referred to in Order 1 hereof be treated as part of the Wife’s entitlement to property settlement, the provision of maintenance for the Wife, or in payment by the Husband of the costs of and incidental to these proceedings, be reserved to the trial judge at the final hearing of these proceedings.
Any monies received by or on behalf of the Wife pursuant to Order 1 hereof be utilised on account of the Wife’s costs in prosecuting her claims in these proceedings, including costs (outstanding and future) in relation to solicitors, counsel, accountants, valuers, and other legal costs and disbursements including process servers fees and conduct money.
The Wife is to account at the final hearing for monies so received and disbursed
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Ryan delivered this day will for all publication and reporting purposes be referred to as Kendling & Kendling and Ors
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2903 / of 2003
| Mrs Kendling |
Applicant
And
| T Pty Ltd |
Second Respondent
And
| Mr Kendling |
Third Respondent
And
| Penelope Kendling |
Fourth Respondent
And
| L Pty Ltd |
Fifth Respondent
And
| A Pty Ltd |
Sixth Respondent
And
| Mr Z |
Seventh Respondent
And
| B Ltd |
Eighth Respondent
And
| I Pty Ltd |
Ninth Respondent
And
| Mr Pearce |
Tenth Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing is an application for costs filed on 30 November 2007 by Mrs Kendling, who I shall refer to as the Wife. The Wife is seeking an amount of $1,484,650. The Respondent is Mr Kendling who I shall refer to as the Husband.
There are pending proceedings for property settlement which were commenced by an amended Response filed by the Wife on 10 March 2006. In an earlier judgment I set out the final orders sought by each of the Wife and the Husband.
There are a number of respondents. The Second Respondent is T Pty Ltd. The Third Respondent is Jeremy Kendling. The Fourth Respondent is…
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- AGLC
- Kendling and Kendling [2008] FamCA 31
- Case
- [2008] FamCA 31
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the immediate disposition of funds pending a final determination of property settlement, maintenance, and costs. Specifically, the court had to decide whether to order the husband to pay a substantial sum and how that payment should be provisionally treated.
Justice O'Ryan ordered that the husband pay $1,000,000 into the trust account of the wife's solicitors by 4:00 pm on 29 February 2008. The court reserved the determination of whether this sum would be considered part of the property settlement, maintenance for the wife, or payment of costs to the trial judge at the final hearing. Crucially, any monies received by the wife were to be utilised on account of her costs in prosecuting her claims, including solicitor, counsel, accountant, valuer, and other legal costs and disbursements. The wife was required to account for these monies at the final hearing.
Orders
Orders of the court
1.
By 4.00 pm on 29 February 2008 the Husband pay into the trust account of the Wife’s Solicitors, Messrs Michael Conley Solicitors, the sum of $1,000,000.
2.
The determination as to whether the sum referred to in Order 1 hereof be treated as part of the Wife’s entitlement to property settlement, the provision of maintenance for the Wife, or in payment by the Husband of the costs of and incidental to these proceedings, be reserved to the trial judge at the final hearing of these proceedings.
3.
Any monies received by or on behalf of the Wife pursuant to Order 1 hereof be utilised on account of the Wife’s costs in prosecuting her claims in these proceedings, including costs (outstanding and future) in relation to solicitors, counsel, accountants, valuers, and other legal costs and disbursements including process servers fees and conduct money.
4.
The Wife is to account at the final hearing for monies so received and disbursed
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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