LANGER & LANGER - [2017] FamCA 1024

FAMILY COURT OF AUSTRALIA

LANGER & LANGER

[2017] FamCA 1024

FAMILY LAW – INTERIM – Where the applicant seeks several interim orders, including access to funds held in trust, injunctions, child support departure and an order for disclosure by the second respondent – Where it is ordered that the second respondent provide disclosure of certain documents – Where the application is otherwise dismissed.

Child Support Assessment Act 1989(Cth)

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

ABC v Lenah Game Meats (2001) 208 CLR 199
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57
Browne v Green (1999) FLC 92-873
G & T (2004) FLC 93-176
Gresham & Gresham [2017] FamCA 270
Kowaliw & Kowaliw (1981) FLC 91-092
Medlow & Medlow (2016) FLC 93-692
Mullen and De Bry (2006) FLC 93-293

Strahan & Strahan (2011) FLC 93-466

APPLICANT:

Ms Langer

FIRST RESPONDENT:

Mr Langer

SECOND RESPONDENT:

Ms D Langer

FILE NUMBER:

BRC

11670

2016

DATE DELIVERED:

15 December 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

16 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hackett

SOLICITOR FOR THE APPLICANT:

Evans & Company Family Lawyers

COUNSEL FOR THE FIRST

RESPONDENT:

Mr Williams

SOLICITOR FOR THE FIRST

RESPONDENT:

Halperin & Con Pty Ltd

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Sorensen

SOLICITOR FOR THE SECOND

RESPONDENT:

Tasiopoulos Lambros & Co

the court orders

BY CONSENT

Paragraphs 1 – 5 of the Further Amended Application (interim orders sought) filed 8 September 2017 be dismissed.

IT IS FURTHER ORDERED

That the Second Respondent disclose the following documents within twenty-eight (28) days:
(a)Any current Will or testamentary document made by or prepared by the Second Respondent or any other document which evidences an engagement in estate planning so as to protect the interests of the First Respondent’s siblings;
(b)Documents (not already produced) evidencing the advances of funds made by the Second Respondent (or entities controlled by her) to the First Respondent (or entities controlled by him) and/or to the First Respondent and the Applicant for which the Second Respondent claims repayment, including but not limited to:
(i)The documents which evidence the money lent;
(ii)The documents which evidence the terms on which money was lent; and
(iii)The documents which evidence the security for any lending.
(c)The files maintained on the Second Respondent’s behalf by her accountant, Mr E (to include file notes, correspondence in and out and records of instruction and who provided same), pertaining to the Second Respondent’s financial arrangements with the Husband, for the periods in which it is asserted that loans were being advanced or are now being made/advanced and for which the Second Respondent claims repayment.
The Further Amended Application (interim orders sought) filed 8 September 2017 be otherwise dismissed.
Any extant application for interim orders be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Langer &…

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

AGLC: LANGER & LANGER [2017] FamCA 1024
Case: [2017] FamCA 1024
Decision Date: 15 December 2017

CaseChat Overview and Summary

The parties in this matter were Langer & Langer, the applicants, and the respondent, whose identity is not specified. The dispute concerned an application to set aside a default judgment. The case was heard by Carew J in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicants had established sufficient grounds to warrant setting aside the default judgment that had been entered against them. This required the court to consider the applicants' explanation for their failure to file a defence and their prospects of success in the underlying proceedings.

Carew J applied the principles governing applications to set aside default judgments. The court considered the established tests, which generally require a defendant to show either a meritorious defence or that the judgment was irregular or void. In this instance, the court found that the applicants had not provided a satisfactory explanation for their delay in filing a defence, nor had they demonstrated a strong prospect of success in the substantive proceedings. The court noted the applicants' failure to comply with court orders and the prejudice that would be caused to the respondent if the judgment were set aside.

Consequently, the court dismissed the application to set aside the default judgment.

Orders