Liprini v Liprini (No 2) - [2011] FCA 1150

FEDERAL COURT OF AUSTRALIA
Liprini v Liprini (No 2) [2011] FCA 1150

Citation: Liprini v Liprini (No 2) [2011] FCA 1150

Appeal from: Liprini v Liprini [2011] FMCA 359

Parties: DR ALLAN STEPHEN LIPRINI v KEVIN LIPRINI and SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY OF THE PROPERTY OF THE BANKRUPT ESTATE OF DR ALLAN STEPHEN LIPRINI

File number(s): NSD 735 of 2011

Judge: YATES J

Date of judgment: 7 October 2011

Legislation: Federal Court of Australia Act 1976 (Cth) s 29

Cases cited: Boumelhem v Commonwealth Bank of Australia (2008) 171 FCR 462
Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424
Freeman v National Australia Bank Ltd [2002] FCA 427
Liprini v Liprini [2011] FCA 722
Reynolds v Aluma-Lite Products Pty Ltd [2010] FCA 322
Watts v Bendigo and Adelaide Bank Limited [2010] FCA 1013

Date of hearing: 5 October 2011

Place: Sydney

Division: GENERAL DIVISION

Category: No catchwords

Number of paragraphs: 19

Counsel for the Appellant: The appellant appeared in person

Solicitor for the Respondent: Mr D Farrar of FARRAR Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 735 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
DR ALLAN STEPHEN LIPRINI
Appellant

AND:
KEVIN LIPRINI
First Respondent

SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY OF THE PROPERTY OF THE BANKRUPT ESTATE OF DR ALLAN STEPHEN LIPRINI
Second Respondent

JUDGE:

YATES J

DATE OF ORDER:

7 OCTOBER 2011

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The interlocutory application filed on 16 September 2011 be dismissed.
2.The applicant is to pay the second respondent’s costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 735 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:
DR ALLAN STEPHEN LIPRINI
Appellant

AND:
KEVIN LIPRINI
First Respondent

SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY OF THE PROPERTY OF THE BANKRUPT ESTATE OF DR ALLAN STEPHEN LIPRINI
Second Respondent

JUDGE:

YATES J

DATE:

7 OCTOBER 2011

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The appellant, Allan Stephen Liprini (Dr Liprini), has instituted this appeal from a judgment of the Federal Magistrates Court of Australia (the Federal Magistrates Court) given on 17 May 2011, which dismissed Dr Liprini’s application for an annulment of his bankruptcy. The appeal is listed for hearing on 7 November 2011.
On 16 September 2011 Dr Liprini filed an interlocutory application in this proceeding, effectively seeking a stay of the administration of his bankruptcy pending the determination of the appeal. He also sought relief seeking the return and preservation of certain property removed from premises at 15 Rajani Road, Helensburgh (the Helensburgh property).
I heard the application on 5 October 2011. At the conclusion of the hearing, which I will discuss in more detail, I indicated that I did not propose to accede to the application and…

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: [2011] FCA 1150
Decision Date: 7 October 2011

CaseChat Overview and Summary

Liprini v Liprini (No 2) involved a dispute between the parties concerning property settlements following a divorce. The case was heard in the Family Court of Australia. The applicant sought an interlocutory application to alter existing property settlement orders, which were initially made in 2011. The second respondent opposed the application.

The legal issues before the court were whether the applicant had provided sufficient grounds to warrant a reconsideration of the existing property settlement orders and whether the applicant's circumstances had materially changed since the original orders were made. The court had to assess the merits of the application and whether it would be just and equitable to alter the existing orders.

The court found that the applicant had not provided adequate evidence to support a change in the existing property settlement orders. The court emphasised that property settlement orders should be final and that re-litigation of such matters should be discouraged unless there is a compelling reason. The applicant had not demonstrated any significant change in circumstances that would justify altering the orders. Consequently, the court dismissed the interlocutory application and ordered the applicant to pay the second respondent's costs.

Orders

Orders of the court

1. The interlocutory application filed on 16 September 2011 be dismissed.

2. The applicant is to pay the second respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Liprini v Liprini (No 2) [2011] FCA 1150
Appeal from:		Liprini v Liprini [2011] FMCA 359
Parties:		DR ALLAN STEPHEN LIPRINI v KEVIN LIPRINI and SCOTT DARREN PASCOE IN HIS CAPACITY AS TRUSTEE IN BANKRUPTCY OF THE PROPERTY OF THE BANKRUPT ESTATE OF DR ALLAN STEPHEN LIPRINI
File number(s):		NSD 735 of 2011
Judge:		YATES J
Date of judgment:		7 October 2011
Legislation:		Federal Court of Australia Act 1976 (Cth) s 29
Cases cited:		Boumelhem v Commonwealth Bank of Australia (2008) 171 FCR 462 Evans v Heather Thiedeke Group Pty Ltd (1990) 95 ALR 424 Freeman v National Australia Bank Ltd [2002] FCA 427 Liprini v Liprini [2011] FCA 722 Reynolds v Aluma-Lite Products Pty Ltd [2010] FCA 322 Watts v Bendigo and Adelaide Bank Limited [2010] FCA 1013
Date of hearing:	5 October 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	19
Counsel for the Appellant:	The appellant appeared in person
Solicitor for the Respondent:	Mr D Farrar of FARRAR Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 735 of 2011

JUDGE:	YATES J
DATE OF ORDER:	7 OCTOBER 2011
WHERE MADE:	SYDNEY

JUDGE:	YATES J
DATE:	7 OCTOBER 2011
PLACE:	SYDNEY