LACEFIELD & ALGRIM - [2021] FCCA 681

FEDERAL CIRCUIT COURT OF AUSTRALIA

LACEFIELD & ALGRIM

[2021] FCCA 681

Catchwords:
FAMILY LAW – Property proceedings – application to vary final de facto property orders made by consent in August 2019 – respondent wife seeks to vary the orders such that she is able to sell chattels belonging to the husband still on her property as he has failed to collect them as envisaged by the final orders – applicant seeks to set aside the consent orders – he alleges he did not consent to the orders as he could not read them and his legal representative failed to read them to him – consideration of whether there has been a miscarriage of justice – application for indemnity costs.

Legislation:

Family Law Act 1975 (Cth), ss.90SN, 90SS, & 117

Federal Circuit Court of Australia Act 1999 (Cth), s.17A

Federal Circuit Court Rules 2001 (Cth), rr.13.10, 21.02, 21.10, 21.15, & 21.16

Cases cited:

Colgate Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Dey v Victorian Railway Commissioners (1949) 78 CLR 62

Gebert & Gebert (1990) FLC 92-137

Kohan & Kohan (1993) FLC 92-340

Lancer & Lancer [2008] FamCAFC 112

McKellar v Container Terminal Manager Services Limited (1999) 165 ALR 409

Suiker & Suiker (1993) FLC 92-436

Webster v Lampard (1993) 177 CLR 598

Applicant:

MR LACEFIELD

Respondent:

MS ALGRIM

File Number:

ADC 298 of 2017

Judgment of:

Judge Brown

Hearing date:

4 December 2020

Date of Last Submission:

4 December 2020

Delivered at:

Adelaide

Delivered on:

7 April 2021

REPRESENTATION

Solicitors for the Applicant:

Mr Kruse / Kruse Legal

Counsel for the Respondent:

Mr Anders

Solicitors for the Respondent:

Griffins Lawyers

ORDERS

That the injunction contained in Order 33 of the Final Orders made on 14 August 2019 (Final Orders) restraining the wife, her servants or her agents from disposing of the items located at the Farm and referred to in Order 20 (g) and Schedule A of the Final Orders (Chattels) be lifted.
That the wife may dispose of the Chattels however the wife sees fit provided that:
(a)The wife account to the husband for the proceeds received from such disposal less all reasonable expenses incurred by the wife in disposing of the Chattels;
(b)In the event the reasonable expenses incurred in disposing of the Chattels exceeds the proceeds received by the wife in disposing of the Chattels, the husband shall reimburse the wife for such expenses within 14 days of a demand for payment being made.
That pursuant to Order 35 of the Final Orders, the Registrar execute the transfer of registration papers on the part of the husband for each of the following vehicles, so that the said vehicles may be legally transferred to the wife.
(a)Motor Vehicle 1;
(b)Boat;
(c)Motorbike;
(d)Motor Vehicle 2; and
(e)Boat Trailer.
That the South Australian Registrar-General remove Caveat Number ... from Certificates of Title Register Book Volume ... Folios ... and ... .
That pursuant to Order 35 the Registrar execute a deed of assignment,…

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 LACEFIELD & ALGRIM

Details

AGLC: LACEFIELD & ALGRIM [2021] FCCA 681
Case: [2021] FCCA 681
Decision Date: 7 April 2021

CaseChat Overview and Summary

In the Family Court of Australia, Judge Brown considered applications by both the applicant husband and the respondent wife concerning final de facto property orders made by consent in August 2019. The wife sought to vary the existing orders to permit the sale of certain chattels still located on her property, which the husband had failed to collect as per the original agreement. Conversely, the husband sought to set aside the consent orders, alleging he had not truly consented as he was unable to read the documents and his legal representative had not read them aloud to him.

The court was required to determine two primary legal issues. Firstly, whether the husband's allegations constituted a miscarriage of justice sufficient to warrant setting aside the consent orders. Secondly, the court had to consider the wife's application to lift an injunction preventing her from disposing of the chattels and to make consequential orders regarding their sale and the transfer of certain vehicles and a loan interest to her. The question of indemnity costs was also before the court.

Judge Brown reasoned that the husband's claim of not consenting due to his inability to read the orders, without more, did not meet the threshold for setting aside consent orders, particularly given the passage of time and the wife's subsequent actions based on those orders. The court found that the husband had not established a miscarriage of justice. Consequently, the court ordered that the injunction restraining the wife from disposing of the chattels be lifted, allowing her to sell them and account for the proceeds, with the husband liable for any shortfall. The court also ordered the Registrar to execute transfer documents for several vehicles and a deed of assignment for a loan interest to the wife, as contemplated by the original orders. The husband was ordered to pay the wife $8,000 in costs.

Orders

Orders of the court

That the injunction contained in Order 33 of the Final Orders made on 14 August 2019 (Final Orders) restraining the wife, her servants or her agents from disposing of the items located at the Farm and referred to in Order 20 (g) and Schedule A of the Final Orders (Chattels) be lifted.

That the wife may dispose of the Chattels however the wife sees fit provided that:

(a) The wife account to the husband for the proceeds received from such disposal less all reasonable expenses incurred by the wife in disposing of the Chattels;

(b) In the event the reasonable expenses incurred in disposing of the Chattels exceeds the proceeds received by the wife in disposing of the Chattels, the husband shall reimburse the wife for such expenses within 14 days of a demand for payment being made.

That pursuant to Order 35 of the Final Orders, the Registrar execute the transfer of registration papers on the part of the husband for each of the following vehicles, so that the said vehicles may be legally transferred to the wife.

(a) Motor Vehicle 1;

(b) Boat;

(d) Motor Vehicle 2; and

(e) Boat Trailer.

That the South Australian Registrar-General remove Caveat Number ... from Certificates of Title Register Book Volume ... Folios ... and ... .

That pursuant to Order 35 the Registrar execute a deed of assignment, assigning a 50% interest in the loan from the husband to Mr B, made pursuant to a loan agreement dated 2 September 2014 and described in Order 15 of the Final Orders.

The applicant de facto husband pay to the respondent de facto wife costs in the amount of eight thousand dollars ($8,000.00) within 28 days of the date of these orders.

All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

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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