Kent and Marshall - [2012] FamCA 1038

FAMILY COURT OF AUSTRALIA

KENT & MARSHALL

[2012] FamCA 1038

FAMILY LAW - PROPERTY – Proceeds of sale – The remainder of the proceeds to be kept on trust by the Wife’s solicitors – Where payment for the costs of a subpoena has been demanded – Where it was legitimate for such costs to be demanded – Where it was necessary in the circumstances for the Wife to issue the subpoena – Costs of the subpoena to be paid out of the remainder of the proceeds of sale

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Zova & Elliot and Anor [2008] FamCA 166

APPLICANT:

Ms Kent

RESPONDENT:

Mr Marshall

FILE NUMBER:

BRC

9692

2010

DATE DELIVERED:

10 December 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

10 December 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Littles Lawyers

Orders

That the sum of $7,893.60, being part of the net proceeds of the sale of the former matrimonial home at B Street, Suburb C, currently held in the trust account of Gadens Lawyers be paid to Gadens Lawyers in satisfaction of their tax invoice number 121829 addressed to HSBC Bank Australia Limited.
That the sum of $30,640.23 being part of the net proceeds of sale of the former matrimonial home at B Street, Suburb C, currently held in the trust account of Gadens Lawyers be paid into the trust account of the applicant wife’s lawyers, Littles Lawyers, to be held in trust on behalf of the applicant and respondent pending either the written agreement of both parties or further order of the court.
Costs of and incidental to this application be reserved.
All other outstanding applications interim be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Marshall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9692 of 2010

Ms Kent

Applicant

And

Mr Marshall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

In this matter the parties married in 2000 and separated on 12 September 2010. The Husband is aged 52 years and is an airline pilot and the Wife is aged 44 years and is responsible for home duties. The family immigrated from Asia in 2008 and the Husband remained employed in the Middle East for D Pty Ltd. The Wife commenced both property and parenting proceedings on 29 October 2010.
The property at B Street, Suburb C (“the Suburb C property”) is the former matrimonial home. On the 28 March 2011, Justice Barry made a number of orders including, in relation to the property that, one; the Husband was to be restrained from dealing with the Suburb C property and two; the Husband was to continue to pay all amounts due under the Hong Kong Shanghai Banking Corporation Bank mortgage until settlement of any sale of the property, and pay all premiums as and when they…

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.

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Details

Case: [2012] FamCA 1038
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Kent (the applicant wife) and Mr Marshall (the respondent husband) were before the court concerning the distribution of the net proceeds from the sale of their former matrimonial home. The dispute centred on the payment of costs incurred by HSBC Bank Australia Limited in responding to a subpoena issued by the wife, and the holding of the remaining sale proceeds.

The court was required to determine whether the costs claimed by HSBC Bank for complying with the subpoena were legitimate and payable from the sale proceeds. Additionally, the court needed to decide how the remaining net proceeds of the sale should be held pending further agreement or court order, specifically addressing the husband's initial opposition to the funds being held by the wife's solicitors.

Justice Kent reasoned that the wife was justified in issuing the subpoena to HSBC Bank because the husband had failed to provide full and frank disclosure regarding the mortgage and the bank's position concerning the property, which was in his sole name. The court found that the bank had incurred costs of $7,893.60 in complying with the subpoena, and pursuant to rule 15.23 of the Family Law Rules 2004, the bank was entitled to reimbursement for these substantial costs. The court also accepted that the wife's solicitors could hold the remaining proceeds on trust, noting that solicitors are officers of the court and bound by trust obligations.

Consequently, the court ordered that $7,893.60 be paid to Gadens Lawyers (acting for HSBC Bank) in satisfaction of their tax invoice. A further sum of $30,640.23 was ordered to be paid into the trust account of the applicant wife's lawyers, Littles Lawyers, to be held on trust for both parties. Costs of the application were reserved, and all other outstanding interim applications were dismissed.

Orders