Liatos and Liatos - [2007] FamCA 945

FAMILY COURT OF AUSTRALIA

LIATOS & LIATOS

[2007] FamCA 945

FAMILY LAW – PROPERTY – Injunctions

Family Law Act 1975 (Cth)

Mullen and De Bry (2006) FLC 93-293
American Cyanamid Co v Ethicon [1975] AC 396 at 407
Patrick Stevedores v MUA [1998] 195 CLR 1 at 24
Mareva Compania Naveriera SA v International Bulkcarriers SA (The Mareva) [1980] 1 All ER 213
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Waugh and Waugh (2000) FLC 93-052
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Hickey and Hickey (2003) FLC 93-143

APPLICANT:

Mrs Liatos

RESPONDENT:

Mr Liatos

SECOND RESPONDENT:

J Capital Ltd

FILE NUMBER:

SYC

579

2007

DATE DELIVERED:

28 August 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

O'Ryan J

HEARING DATE:

9, 17, 24 and 27 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC with Mr W Lloyd

SOLICITOR FOR THE APPLICANT:

Prosilis Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC with Mr Richards

SOLICITOR FOR THE RESPONDENT:

Fritchley Solicitors

COUNSEL FOR THE SECOND RESPONDENT:

Mr J Lloyd

SOLICITOR FOR THE SECOND RESPONDENT:

Newnhams Solicitors

Orders

The Husband in his capacity as the sole director of Liatos Group Pty Limited as trustee for the A Property Trust on completion of the sale of the property situate at and known as the A property in Brisbane execute all documents and writings and do all acts and things necessary to cause the proceeds of sale to be paid in the following priority:
1.1in payment of any agents commission;
1.2in payment of the conveyancing costs and disbursements;
1.3in payment of the amount to discharge the mortgage to Suncorp Ltd;
1.4in payment of any statutory charges including any possible GST paid in addition to the purchase price;
1.5in payment of the balance to an interest bearing controlled monies account in the joint names of the solicitors for the Husband and the Wife.
Pending the hearing of the applications for a final property order each of the Husband and the Wife including the Husband in the capacity as the sole director of Liatos Group Pty Limited as trustee for the A Property Trust be restrained from assigning, transferring, encumbering by mortgage or charge or otherwise or in any way dealing with the amount in the controlled monies account referred to in Order 1.5 hereof.
Upon compliance with Order 1.5 hereof Orders 2.2 and 2.3 made on 2 August 2007 in relation to restraining the Husband from leaving the Commonwealth of Australia be discharged.
The Wife file within 48 hours an undertaking as to damages and that such undertaking be extended to J Capital Limited.
Liberty to all parties to apply in relation to these orders on giving written notice to the Court and all parties.

IT IS FURTHER ORDERED:

Until further order, Order 3 made on 28 August 2007 be stayed.
The Wife file and serve by 4.00 pm on Friday 31 August 2007 an application…

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 Liatos and Liatos

Details

AGLC: Liatos and Liatos [2007] FamCA 945
Case: [2007] FamCA 945
Decision Date: 28 August 2007

CaseChat Overview and Summary

In *Liatos and Liatos*, O'Ryan J considered applications concerning the distribution of proceeds from the sale of a property and related interlocutory orders. The dispute involved the Husband, acting as the sole director of Liatos Group Pty Limited (trustee for the A Property Trust), and the Wife, concerning the priority of payments from the sale of the A property in Brisbane. The court was required to determine the appropriate order for the disbursement of these sale proceeds and to make orders regarding the preservation of funds and the continuation of existing restraints.

The primary legal issue before the court was the establishment of a clear and enforceable priority for the distribution of the property sale proceeds. This involved determining the order in which various claims, including agent commissions, conveyancing costs, mortgage discharge, statutory charges, and potential GST, should be satisfied before any remaining balance was secured. Additionally, the court had to consider whether to continue restraining orders against the parties, particularly concerning the funds held in a controlled monies account, and to address the discharge of other existing orders, such as those preventing the Husband from leaving the Commonwealth.

O'Ryan J ordered that the Husband, in his capacity as trustee, must ensure the proceeds of sale were paid in a specific priority: first, agent commissions; second, conveyancing costs and disbursements; third, the amount to discharge the Suncorp Ltd mortgage; fourth, statutory charges including any GST; and finally, the balance to a controlled monies account in the joint names of the solicitors for both parties. Pending final property orders, both parties, including the Husband as trustee, were restrained from dealing with the funds in this controlled monies account. The court also ordered the discharge of previous restraints on the Husband leaving Australia upon compliance with the distribution order, and required the Wife to file an undertaking as to damages. Further orders were made staying a previous order and requiring the Wife to file an application for a stay of execution, with the matter listed for mention and case management.

Orders

Orders of the court

The Husband in his capacity as the sole director of Liatos Group Pty Limited as trustee for the A Property Trust on completion of the sale of the property situate at and known as the A property in Brisbane execute all documents and writings and do all acts and things necessary to cause the proceeds of sale to be paid in the following priority:

1.1 in payment of any agents commission;

1.2 in payment of the conveyancing costs and disbursements;

1.3 in payment of the amount to discharge the mortgage to Suncorp Ltd;

1.4 in payment of any statutory charges including any possible GST paid in addition to the purchase price;

1.5 in payment of the balance to an interest bearing controlled monies account in the joint names of the solicitors for the Husband and the Wife.

Pending the hearing of the applications for a final property order each of the Husband and the Wife including the Husband in the capacity as the sole director of Liatos Group Pty Limited as trustee for the A Property Trust be restrained from assigning, transferring, encumbering by mortgage or charge or otherwise or in any way dealing with the amount in the controlled monies account referred to in Order 1.5 hereof.

Upon compliance with Order 1.5 hereof Orders 2.2 and 2.3 made on 2 August 2007 in relation to restraining the Husband from leaving the Commonwealth of Australia be discharged.

The Wife file within 48 hours an undertaking as to damages and that such undertaking be extended to J Capital Limited.

Liberty to all parties to apply in relation to these orders on giving written notice to the Court and all parties.

IT IS FURTHER ORDERED:

Until further order, Order 3 made on 28 August 2007 be stayed.

The Wife file and serve by 4.00 pm on Friday 31 August 2007 an application for a stay of execution of Order 3 made on 28 August 2007 together with any affidavit material in support.

The matter be listed for mention or hearing before me at 9.30 am on Thursday 6 September 2007.

The application for property settlement be listed for mention before me for case management purposes at 9.30 am on 6 September 2007 and that as far as possible each of the Husband and the Wife have available a minute of the orders which they seek in relation to the future conduct of those proceedings.

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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