Malta and Malta - [2008] FamCA 279

FAMILY COURT OF AUSTRALIA

MALTA & MALTA

[2008] FamCA 279

FAMILY LAW – PRACTICE AND PROCEDURE – Orders – Slip rule – Jurisdiction of the Family Court of Australia under Bankruptcy Act 1966 – Order made outside statutory time limits – Operation of the Federal Court Rules 1979; Order 35 rule 7 – Inference as to intention of judge in simply adjourning the proceedings in the absence of a petitioning creditor who was unaware of the hearing.

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth)

Elyard Corp Pty Ltd v DBB Needham Sydney Pty Ltd (1995) 61 FCR 385
Griffiths v Boral Resources (Qld) Pty Ltd [2006] FCAFC 149

APPLICANT:

MR MALTA

RESPONDENT:

MRS MALTA

SECONDNAMED RESPONDENT:

GOULBURN-MURRAY RURAL WATER AUTHORITY

PETITIONER:

MR TRIM

R GROUP PTY LTD

FILE NUMBER:

MLF

4121

2002

DATE DELIVERED:

14 APRIL 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

14 APRIL 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR INDOVINO

SOLICITOR FOR THE APPLICANT:

ACQUARO & CO

COUNSEL FOR THE RESPONDENT:

MR RANDLES

SOLICITOR FOR THE RESPONDENT:

LENNON MAZZEO

Orders

That the petition by Mr Trim against the wife presented in the Federal Magistrates Court of Australia at Melbourne on 28 September 2006 be extended such that it will lapse on 27 September 2008.
That the costs of the petitioner applicant and the wife of and incidental to this application be reserved to be determined by me upon the further hearing of the petition or as otherwise may be agreed between the parties.
That the further hearing of the petition be adjourned for mention by telephone before me on 24 June 2008 at 9.00am.
That for the purposes of the mention hearing referred to, all parties provide a telephone number at which they may be contacted by no later than 4.00pm on Friday 20 June 2008 to the Associate to Justice Cronin.
That the interim applications otherwise as between the petitioning creditor and the wife be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Malta & Malta is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4121 of 2002

MR MALTA

Applicant

And

MRS MALTA

Respondent

REASONS FOR JUDGMENT

In what is already a complex web of proceedings in this Court and the Supreme Court of Victoria, a bankruptcy petition against the wife which had been presented in the Federal Magistrates Court of Australia on 28 September 2006 lapsed by effluxion of time.
The petitioner has an interest in the proceedings under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) by virtue of his claim against the wife. The discrete issue I am asked to determine is whether the petition can be extended retrospectively having regard to the statutory provisions in the Bankruptcy Act 1966 (Cth) that otherwise provide that an expired petition cannot be extended. I am asked to decide whether I can and then…

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 Malta and Malta

Details

AGLC: Malta and Malta [2008] FamCA 279
Case: [2008] FamCA 279
Decision Date: 14 April 2008

CaseChat Overview and Summary

The matter of *Malta and Malta* concerned an application before Justice Cronin in the Federal Magistrates Court of Australia. The primary dispute involved a petition presented by Mr Trim against the wife, which had been filed on 28 September 2006. The court was required to consider the continuation and management of this petition.

The central legal issue before the court was whether to extend the lapse date of Mr Trim's petition against the wife. Additionally, the court had to determine the disposition of costs associated with the application and the dismissal of other interim applications between the parties.

Justice Cronin ordered that the petition by Mr Trim against the wife be extended, allowing it to lapse on 27 September 2008. The costs of both the petitioner applicant and the wife were reserved for determination at a later hearing or by agreement. The court also adjourned the further hearing of the petition for a telephone mention on 24 June 2008, with directions for parties to provide contact numbers. Finally, all other interim applications between the petitioning creditor and the wife were dismissed.

Orders

Orders of the court

That the petition by Mr Trim against the wife presented in the Federal Magistrates Court of Australia at Melbourne on 28 September 2006 be extended such that it will lapse on 27 September 2008.

That the costs of the petitioner applicant and the wife of and incidental to this application be reserved to be determined by me upon the further hearing of the petition or as otherwise may be agreed between the parties.

That the further hearing of the petition be adjourned for mention by telephone before me on 24 June 2008 at 9.00am.

That for the purposes of the mention hearing referred to, all parties provide a telephone number at which they may be contacted by no later than 4.00pm on Friday 20 June 2008 to the Associate to Justice Cronin.

That the interim applications otherwise as between the petitioning creditor and the wife be dismissed.

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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