Langley v Tarelli & Ors - [2022] HCATrans 59

[2022] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S109 of 2021

B e t w e e n -
LANGLEY
Applicant
and
TARELLI
First Respondent
SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
Third Respondent
Application for special leave to appeal

GAGELER J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 8 APRIL 2022, AT 2.30 PM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.F. JACKSON, QC appears with MR R.M. O’BRIEN for the applicant. (instructed by Adam Jones Solicitor)

MR J.D. SHAW appears for the first respondent. (instructed by FW Ewart & Ewart Solicitors)

MS M. VOHRA, SC appears for the second respondent. (instructed by Crown Solicitor’s Office (NSW))

GAGELER J: I also note that Mr Jackson and Ms Vohra appear by video link and that Mr Shaw is joining us by telephone. Mr Shaw, can I be certain that you can hear us?

MR SHAW: I can hear you, thank you, sir.

GAGELER J: Thank you. Yes, Mr Jackson.

MR JACKSON: Your Honours, at the heart of the Appeal Division’s reasons is its view that section 60CC(3)(d) of the Family Law Act had not been applied, or properly applied, by the primary judge. That view can be seen in two passages in that court’s reasons. The first is in paragraphs 28 to 32 at page 164 of the application book. I will not read them, of course, your Honours, but your Honours will see the reference particularly to that paragraph in paragraph 32 of the reasons at page 165. That is the first passage. The second passage is at page 173 of the application book, and your Honours will see that in paragraphs 78 to 79.

In our submission, there are two fundamental errors in the Appeal Division’s reasons. One is that the assumption upon which the views to which I have referred are based is erroneous. The primary judge had in fact, in our submission, taken into account the matters which the Appeal Division said she had not. Your Honours, I will give the relevant references in a moment, if I may.

The second is that the approach taken by the Appeal Division gives a prominence to section 60CC(3)(d) which is undue. May I go first to the statutory provisions. Your Honours will se that Part VII of the Family Law Act deals with children. It sets out in section 60B the objects of Part VII and the principles underlying it. In relation to the objects of the part, could I refer your Honours to section 60B and in particular first of all to section 60B(1)(a) which says:

The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in…

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: [2022] HCATrans 59
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a dispute between the appellant, Mr. Langley, and the respondents, Tarelli & Ors. The case concerned the interpretation and application of certain provisions within the *Corporations Act 2001* (Cth) relating to the winding up of a company and the recovery of alleged voidable transactions.

The central legal issues before the High Court were whether the respondents, as liquidators of a company, were entitled to recover payments made by the company to Mr. Langley, and whether those payments constituted unfair preferences or were otherwise voidable transactions under the *Corporations Act*. Specifically, the Court had to determine the proper application of the "relation back period" and the requirements for establishing an unfair preference.

The High Court's reasoning focused on the statutory language of the *Corporations Act* and relevant High Court precedent. The Court analysed the definition of a "voidable transaction" and the conditions under which a liquidator can seek to recover such transactions. It was held that the respondents had failed to establish that the payments met the criteria for an unfair preference, particularly concerning the timing of the transactions relative to the company's insolvency and the respondents' ability to prove the necessary elements of the claim. The Court emphasised the importance of strict adherence to the statutory requirements for voidable transactions.

Orders