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Kingsley & Kendle & Ors

Kingsley & Kendle & Ors

Case [2010] FamCA 598 16 July 2010

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FAMILY COURT OF AUSTRALIA

KINGSLEY & KENDLE AND ORS

[2010] FamCA 598

FAMILY LAW – PRACTICE AND PROCEDURE – wife seeks that solicitors acting for the Trustee in Bankruptcy be restrained from continuing to act – conflict of interest – husband’s parents seek to intervene – third party creditors – accrued jurisdiction – wife seeks to restrain second respondent in relation to proceedings against the wife in respect of a debt owed by her

Bankruptcy Act 1966 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Uniform Civil Procedure Rules 2005 (NSW).

Bishop and Bishop (2003) FLC 93-144
Bransdon and Davis and Gilbert (2007) FLC 93-328
Dempsy and Dempsy and Others [2008] FamCA 1065
Doisy v Wilmont-Doisy and Another (2009) 40 Fam LR 655
Giannarelli v Wraith (1988) 165 CLR 543
In the Marriage of Hender and Hender; Moore (1992) FLC 92-321
Kallinicos & Another v Hunt and Others (2005) 64 NSWLR 561
In the Marriage of Lanceley and Lanceley (1994) FLC 92-491
In the Marriage of Moran (1995) FLC 92-559
Puddy & Grossvard & Anor [2010] FamCAFC 54
Sora & Sora and Ors [2010] FamCA 465
Trustee for the Bankrupt Estate of N Lasic & Lasic (2009) FLC 93-402
Trustee of the Property of G Lemnos, A Bankrupt, &Lemnos and Anor (2009) FLC 93-394
Warby and Warby (2001) FLC 93-091

APPLICANT:

Mr Kingsley

RESPONDENT:

Ms Kendle

2nd RESPONDENT:

M Limited

OTHERS:

Mr and Mrs Kingsley Snr

FILE NUMBER:

SYF

4206

2006

DATE DELIVERED:

16 July 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Le Poer Trench

HEARING DATE:

30 June 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Hodgkinson

COUNSEL FOR THE RESPONDENT:

Mr Seresier

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Fernon

SOLICITOR FOR OTHERS:

Mr Cohen

Orders

Eddy Neumann Lawyers are restrained from further acting for the Trustee of the husband’s bankrupt estate.
Leave is granted to the husband’s parents to intervene in the proceedings.
Pending further order and pursuant to section 90AF of the Family Law Act 1975 (Cth) the 2^nd respondent, M Limited, is retrained from taking any further proceedings against the wife to recover its debt, before 17 September 2010.
Leave is granted to the 2^nd respondent to apply to set Order 3 herein aside, upon giving 7 days notice, in the event of any change in circumstances of the wife or her assets or resources which might prejudice the ability of the 2^nd respondent to recover its’ debt, or in the event of the trial dates set down for 13 September 2010 and following, being vacated.
The wife’s Undertaking given to the Court in writing and dated 26 February 2010 is to continue for so long as the injunction made against the 2^nd respondent herein continues.
The wife is to file and serve a Financial Statement within seven (7) days.
Pending further order the wife is restrained from further encumbering her interest in the property at C in the State of…

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 Kingsley & Kendle & Ors

Details

AGLC: Kingsley & Kendle [2010] FamCA 598
Case: [2010] FamCA 598
Decision Date: 16 July 2010

CaseChat Overview and Summary

In the matter of *Kingsley & Kendle & Ors*, Le Poer Trench J considered an application involving a wife, a husband's bankrupt estate, and a company, M Limited, to which the husband owed a debt. The proceedings concerned the wife's financial position and her assets, particularly a property at C in New South Wales, which was the former matrimonial home. The application also involved an application by the husband's parents for leave to intervene.

The court was required to determine several issues, including whether to restrain the legal representatives of the husband's trustee in bankruptcy from acting further in the proceedings, whether to grant leave to the husband's parents to intervene, and whether to restrain M Limited from taking further proceedings against the wife to recover its debt. Additionally, the court had to consider the wife's undertaking to the court and the need for her to file a financial statement, as well as whether to restrain the wife from further encumbering her interest in the former matrimonial home.

Le Poer Trench J applied principles relating to the proper conduct of legal representatives in bankruptcy proceedings and the court's power to grant leave for intervention and to issue injunctions under section 90AF of the *Family Law Act 1975* (Cth). The court reasoned that it was necessary to restrain Eddy Neumann Lawyers from acting for the trustee to avoid any conflict of interest or appearance of impropriety. Leave was granted for the husband's parents to intervene, recognising their potential interest in the proceedings. The court also imposed a restraint on M Limited from pursuing the wife for her debt, pending further order, while allowing M Limited to apply to set aside this order under specific circumstances. The wife's undertaking was continued, and she was ordered to file a financial statement and was restrained from encumbering her interest in the former matrimonial home.

Orders

Orders of the court

Eddy Neumann Lawyers are restrained from further acting for the Trustee of the husband’s bankrupt estate.

Leave is granted to the husband’s parents to intervene in the proceedings.

Pending further order and pursuant to section 90AF of the Family Law Act 1975 (Cth) the 2nd respondent, M Limited, is retrained from taking any further proceedings against the wife to recover its debt, before 17 September 2010.

Leave is granted to the 2nd respondent to apply to set Order 3 herein aside, upon giving 7 days notice, in the event of any change in circumstances of the wife or her assets or resources which might prejudice the ability of the 2nd respondent to recover its’ debt, or in the event of the trial dates set down for 13 September 2010 and following, being vacated.

The wife’s Undertaking given to the Court in writing and dated 26 February 2010 is to continue for so long as the injunction made against the 2nd respondent herein continues.

The wife is to file and serve a Financial Statement within seven (7) days.

Pending further order the wife is restrained from further encumbering her interest in the property at C in the State of New South Wales (the former matrimonial home).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Kingsley & Kendle [2010] FamCA 598

Most Recent Citation

Imagatec P/L v Gosley-Fuller [2012] QDC 15

Cases citing this decision · 1 of 1 shown

Imagatec P/L v Gosley-Fuller
[2012] QDC 15 Para 1

…t leave of the Court, although without opposition, the applicant drew the Court’s attention to the later single Judge decision in Kingsley v Kendle [2010] FamCA 598. Trench J, in dealing with an application brought against a company (which thereby became a party to the proceedings), made an order against that compa…

View all 1 citing cases →

Cases cited in this decision · 9 of 9 shown

SORA and SORA & Ors
[2010] FamCA 465 Para 14

…decision relating to the use of section 78 of the Act by the court to make a declaration sought by a third party. The decision is Sora & Sora and Ors [2010] FamCA 465. It is a first instance judgment of Cronin J delivered on 10 June 2010. In that case the learned trial Judge noted that there was an issue as to whet…
Puddy & Grossvard & Anor
[2010] FamCAFC 54 Para 3

…re one of the factors in s75(2)(ha) for the Court to have regard to in balancing the exercise of the discretion. However, in Puddy & Grossvard & Anor [2010] FamCAFC 54, the Full Court of the Family Court of Australia (Coleman, Warnick and Boland JJ) considered (at 60) that s79(10)(a) and s75(2)(ha) both appear to re…
Dempsy & Dempsy and Ors
[2008] FamCA 1065 Para 6

…In Dempsy and Dempsy and Others [2008] FamCA 1065, Murphy J considered property proceedings between the husband and wife, to which the wife’s parents had been joined as the second and third respondents. It was the application of the second and third respondents that the claim made against them be summarily dismissed…
Lasic and Lasic (No. 2)
[2007] FamCA 1188 Para 1

…In Lasic and Lasic [2007] FamCA 1188, the husband’s trustee in bankruptcy sought to set aside consent orders made between the husband and wife, which had the effect of transferring the husband’s interest in parcels of real property to the wife. The trial Judge required the wife to pay monies to the creditor.…
Worsnop and Worsnop
[2007] FamCA 244 Para 2

…vour with respect to such debts or interests. Some support for that proposition can be gained from the decision of the Court in Worsnop & Worsnop [2007] FamCA 244. Whether the Court would make such orders in a particular case is another question. Accepting the submission now made on behalf of the husband would at l…
Kallinicos v Hunt
[2006] NSWSC 723 Para 13

…The wife referred me to the following decisions: · Kallinicos & Another v Hunt and Others (2005) 64 NSWLR 561. · Bransdon and Davis and Gilbert (2007) FLC 93-328.…
Holborow v MacDonald Rudder
[2002] WASC 265 Para 17

…The Full Court further said (at 81,659); 70. We agree with the discussion and findings of Heenan J in Holborow v Rudder [2002] WASC 265 and adopt, with respect, his Honour's view that the court would only restrain the appearance of a legal representative because of his or her duty to the court in a clear case. We…
Giannarelli v Wraith
[1988] HCA 52

…ransdon and Davis and Gilbert (2007) FLC 93-328 Dempsy and Dempsy and Others [2008] FamCA 1065 Doisy v Wilmont-Doisy and Another (2009) 40 Fam LR 655 Giannarelli v Wraith (1988) 165 CLR 543 In the Marriage of Hender and Hender; Moore (1992) FLC 92-321 Kallinicos & Another v Hunt and Others (2005) 64 NSWLR 561 In the Marriage…
Ascot Investments Pty Ltd v Harper
[1981] HCA 1 Para 4

…the section. Some support for such a narrow interpretation can be gained from the judgment of the High Court in Ascot Investments v Harper (1981) 148 CLR 337. Although, for reasons which are later suggested, it is not necessary to express a concluded view about the matter, such a limited interpretation of s90AE woul…

Legislation cited in this decision · 6

Family Law Act 1975 (Cth)
2 mentions (from Para 6)
Bankruptcy Act 1966 (Cth)
1 mention (from Para 13)
Evidence Act 1995 (Cth)
1 mention (from Para 4)
Family Law Amendment Act 2003 (Cth)
1 mention (from Para 5)
Family Law Rules 2004 (Cth)
1 mention (from Para 8)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 10)