Lauriano Querobino Mendonca and SUZZANE Mason - [2013] HCATrans 235

[2013] HCATrans 235

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M130 of 2013

B e t w e e n -
LAURIANO QUEROBINO MENDONCA
Applicant
and
SUZZANE MASON
Respondent
Application for an injunction

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 4 OCTOBER 2013, AT 2.30 PM

MR J.M. SELIMI: May it please the Court, I appear for the applicant in this matter. (instructed by the applicant)

MR W.G. STARK: If your Honour pleases, I appear for the respondent. (instructed by Moores Legal)

HIS HONOUR: Yes, Mr Selimi, it is your application, I think, on the summons issued today, supported by the affidavit of Mr Mendonca sworn today. Is that right?

MR SELIMI: That is so, your Honour. Firstly, may ‑ ‑ ‑

HIS HONOUR: Just a moment, Mr Selimi. Is there any objection to my receiving the affidavit, Mr Stark?

MR STARK: No, your Honour.

HIS HONOUR: Yes, very well. I have read the affidavit. I have read the reasons of the Court of Appeal. I have read the reasons of the primary judge. Mr Selimi.

MR SELIMI: Thank you, your Honour. Your Honour, in my submission, it is imperative to preserve the subject matter of the proposed - of the actual application for special leave to appeal which has been filed this afternoon. The application for special leave to appeal, in my respectful submission, raises an important question or questions of law of general public importance which, indeed, extend well beyond the particular interests of the parties before this Court.

If I can go to the crux of the matter, your Honour, it is my submission that the approach adopted by the Court of Appeal below sets a dangerous precedent which has the effect of undermining and violating an ancient principle in relation to the protection of proprietary interests. If I may take your Honour directly to the part of the judgment which we seek to attack in due course, at page 8 of the decision of the Court of Appeal, paragraph 27, their Honours state:

With respect to grounds 5 to 7, counsel submitted that, in the circumstances of the case, the judge should have found that damages were not an adequate remedy. The appellant, it was submitted, had an ‘emotional attachment’ to the premises, he having lived there for 20 years. He submitted that principle established that a threatened interference with the appellant’s proprietary right ought prima facie entitle him to injunctive relief.

HIS HONOUR: Yes, I have read that and I read it as recording what counsel submitted.

MR SELIMI: Yes, and the relevant cases which were relied upon below are cited at footnote 4 of his Honour’s judgment.

HIS HONOUR: Yes.

MR SELIMI: Now, I would contrast, with great respect, that correct summary of the position with what has been stated at page 13, paragraph 42, dealing with the same point, the point being the adequacy of damages. At…

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: [2013] HCATrans 235
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Lauriano Querobino Mendonca and SUZZANE Mason. The dispute concerned an application for leave to appeal against a decision of the Full Court of the Supreme Court of South Australia. The High Court of Australia was the court required to determine whether to grant leave to appeal.

The central legal issue before the High Court was whether the Full Court of the Supreme Court of South Australia had erred in its interpretation and application of the relevant provisions of the *Family Law Act 1975* (Cth) concerning the valuation of a party's interest in a discretionary trust in the context of property settlement proceedings. Specifically, the court was asked to consider whether the Full Court had correctly determined the extent to which a party's potential entitlement from a discretionary trust could be considered an asset for the purposes of division under the Act.

Hayne J, in considering the application for leave, focused on whether there was a reasonably arguable ground of appeal. His Honour noted that the established principles for dealing with discretionary trusts in family law proceedings generally require a high degree of certainty regarding a party's ability to access trust funds before such an interest can be treated as a divisible asset. The application for leave was ultimately dismissed, indicating that the High Court found no sufficiently arguable error in the Full Court's decision to warrant a full appeal.

Orders