Levy and Prain - [2012] FamCAFC 92

FAMILY COURT OF AUSTRALIA

LEVY & PRAIN

[2012] FamCAFC 92

FAMILY LAW ─ APPEAL ─ FINANCIAL ORDER ─ Where the wife challenged the interlocutory order made by the trial Judge that the wife pay $250,000 by way of litigation funding to the husband ─ Whether the trial Judge identified the source of power to make the order under challenge ─ Whether the trial Judge erred in principle in the exercise of power ─ Whether the trial Judge adequately dealt with the question of the wife’s capacity to pay the sum sought by the husband by way of litigation funding ─ Whether the trial Judge erred in relation to the “clawback” of such sum ─ Whether the trial Judge adequately revealed the reasons for making the litigation funding order ─ No ground for possible appellate intervention demonstrated ─ No error of principle demonstrated ─ Not established that, if undisturbed, the trial Judge’s decision would cause the wife a substantial injustice ─ Application for leave to appeal and Notice of Appeal dismissed.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the wife’s application for leave to appeal was unsuccessful ─ Wife to pay the husband’s costs of and incidental to the appeal as agreed or assessed on a party and party basis ─ Execution of the order for costs stayed pending order of the Full Court or a judge of the Court exercising original jurisdiction.

Family Law Act 1975 (Cth) ss 79, 93A, 117

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Apps and Another v Pilet (1987) 11 NSWLR 350
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Harris and Harris (1993) FLC 92-378
Pettitt v Dunkley [1971] 1 NSWLR 376
Rutherford and Rutherford (1991) FLC 92-255
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Strahan and Strahan (interim property orders) (2011) FLC 93-466
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Tatmar Pastoral Co Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155
Zschokke and Zschokke (1996) FLC 92-693

APPELLANT:

Ms LEVY

RESPONDENT:

Mr PRAIN

FILE NUMBER:

MLC

3288

2011

APPEAL NUMBER:

SOA

2011

DATE DELIVERED:

27 June 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Coleman & Kent JJ

HEARING DATE:

16 May 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

14 September 2011

LOWER COURT MNC:

[2011] FamCA 745

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richardson SC with Ms Johns

SOLICITOR FOR THE APPELLANT:

Kenna Teasdale Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Geddes QC with Ms Stewart

SOLICITOR FOR THE RESPONDENT:

Kennedy Partners Lawyers

Orders

That the application for leave to appeal and the Notice of Appeal filed 5 October 2011 be dismissed.
That the wife pay the husband’s costs of and incidental to the Notice of Appeal as agreed or assessed on a party and party basis.
That…

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 Levy and Prain

Details

AGLC: Levy and Prain [2012] FamCAFC 92
Case: [2012] FamCAFC 92
Decision Date: 27 June 2012

CaseChat Overview and Summary

In the matter of Levy and Prain, the wife appealed against an interlocutory order made by the trial Judge, which required her to pay $250,000 by way of litigation funding to the husband. The legal issues that the court was required to decide included whether the trial Judge correctly identified the source of power to make the order under challenge, whether the trial Judge erred in principle in the exercise of power, whether the trial Judge adequately dealt with the question of the wife’s capacity to pay the sum sought by the husband by way of litigation funding, and whether the trial Judge erred in relation to the “clawback” of such sum. The court also had to consider whether the trial Judge adequately revealed the reasons for making the litigation funding order.

The court held that there were no grounds for possible appellate intervention and no error of principle demonstrated in the trial Judge’s decision. It was also not established that, if undisturbed, the trial Judge’s decision would cause the wife a substantial injustice. Therefore, the application for leave to appeal and Notice of Appeal were dismissed. The court ordered that the wife pay the husband’s costs of and incidental to the appeal as agreed or assessed on a party and party basis. The execution of the order for costs was stayed pending further order of a judge of the Full Court or a judge of the Court exercising original jurisdiction.

Orders

Orders of the court

That the application for leave to appeal and the Notice of Appeal filed 5 October 2011 be dismissed.

That the wife pay the husband’s costs of and incidental to the Notice of Appeal as agreed or assessed on a party and party basis.

That pending further order of a judge of the Full Court or a judge of the Court exercising original jurisdiction, execution of the order for costs be stayed.

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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