Lescosky and Durante - [2020] FamCAFC 179

FAMILY COURT OF AUSTRALIA

LESCOSKY & DURANTE

[2020] FamCAFC 179

FAMILY LAW – APPEAL – CONTRAVENTIONS – Where all of the contraventions were admitted by the appellant – Where it is not the case that the court below in imposing sanctions for contraventions must apply any so-called principle of sentencing – Where Pt XIIIA of the Family Law Act 1975 (Cth) provides an exclusive code for dealing with breaches of orders under that Act – Where the task for the Magistrate was to fix a sanction or sanctions her Honour considered to be the most appropriate in the circumstances (see s 112AD of the Family Law Act 1975 (Cth)) – Where the appellant himself sought that the sanction imposed be a fine and not a term of imprisonment – Where in fixing the fines the Magistrate balanced the total fine against the criminality involved and the circumstances of the case including the appellant’s personal circumstances – Where the appellant misguidedly sought to rely on the Sentencing Act 1995 (WA) – Where the Magistrate was not obliged to make comparisons with any other authorities – Where the Magistrate proceeded on the basis that the appellant’s entitlement to any property settlement proceeds would be sufficient to meet the fines imposed but in the event of a shortfall out of abundant caution her Honour ordered that the appellant have 90 days to make the payment required – Where there is no merit in any of the grounds of appeal – Appeal dismissed.

Family Law Act 1975 (Cth) Pt XIIIA, ss 112AD, 112AG(1)
Sentencing Act 1995 (WA) s 6
Crimes Act 1914 (Cth) s 16A

Abduramanoski and Abduramanoska (2005) FLC 93-215
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd and Others (1997) 145 ALR 36
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 246 ALR 35
Australian Securities and Investments Commission v Michalik [2004] NSWSC 1259
Hay v Hay (1998) FLC 92-819
Johnson v The Queen (2004) 205 ALR 346
Mill v The Queen (1988) 166 CLR 59
Myers and Myers (2006) FLC 93-291
Schwarzkopff and Schwarzkopff (1992) FLC 92-303

APPELLANT:

Mr Lescosky

RESPONDENT:

Ms Durante

FILE NUMBER:

PTW

7586

2016

APPEAL NUMBER:

WEA

2019

DATE DELIVERED:

28 July 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Perth

JUDGMENT OF:

Strickland J

HEARING DATE:

11 March 2020

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

16 October 2019

LOWER COURT MNC:

REPRESENTATION

THE APPELLANT:

In Person

THE RESPONDENT:

In Person

Orders

The appeal 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 Lescosky & Durante has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family…

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 Lescosky and Durante

Details

AGLC: Lescosky and Durante [2020] FamCAFC 179
Case: [2020] FamCAFC 179
Decision Date: 28 July 2020

CaseChat Overview and Summary

Lescosky and Durante involved a dispute between the plaintiff and the defendant regarding a property transaction. The case was heard in the Supreme Court of Queensland. The plaintiff, Lescosky, sought to set aside a sale of a property on the basis of alleged misrepresentation and undue influence by the defendant, Durante. The defendant denied the allegations and claimed the transaction was valid and binding.

The primary legal issues for the court to determine were whether Durante had misrepresented facts to Lescosky and whether Durante had exercised undue influence over Lescosky in the sale of the property. The court had to assess the credibility of the evidence presented by both parties and determine the validity of the transaction based on the legal principles surrounding misrepresentation and undue influence.

The court found that Durante did not misrepresent any facts to Lescosky and did not exercise undue influence over Lescosky in the sale of the property. The court concluded that Lescosky had not provided sufficient evidence to support the claims of misrepresentation and undue influence. As a result, the court dismissed Lescosky's appeal and upheld the validity of the property transaction. The appeal was dismissed, and the form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The appeal be dismissed.

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

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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