Manotis & Manotis - [2014] FamCAFC 103

FAMILY COURT OF AUSTRALIA

MANOTIS & MANOTIS AND ORS

[2014] FamCAFC 103

FAMILY LAW – APPEAL – PROPERTY – Where five years after property orders were made for the sale of the matrimonial property the husband and the wife entered into a Deed of Settlement varying the orders – Where the wife filed an application for consent orders seeking to set aside the previous orders and have the Deed of Settlement stand ‘as orders of the court’ – Where the wife’s solicitors sought to intervene at the hearing of the application before the trial judge to oppose the application and to be appointed as trustees for sale of the matrimonial property – Where the second respondent to this appeal also appeared at the hearing of the application for the trial judge in relation to two caveats he had over the matrimonial property, including a lease – Where the trial judge dismissed the application for consent orders, joined the wife’s solicitors as a party to the proceedings and appointed the wife’s solicitors as trustee for sale, in lieu of the wife – Where the husband appealed the trial judge’s orders on the basis that the trial judge had denied procedural fairness to the husband, the wife, and the second respondent to this appeal, had improperly led the wife to resile from the consent orders and placed the solicitors in a position of conflict of interest with the husband and the wife – Where the Full Court so found – Appeal allowed – Matter remitted for rehearing.

Family Law Act 1975 (Cth): ss 90AF, 90AE, 106B and 114
Legal Profession Conduct Rules 2010 (WA): r 15

Cameron v Cole (1944) 68 CLR 571
Harris v Caladine (1991) 172 CLR 84
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1
Redman & Redman [2013] FamCAFC 183

APPELLANT:

Mr Manotis

FIRST RESPONDENT:	Ms Manotis
SECOND RESPONDENT:	Mr Matthews
THIRD RESPONDENT:	X Lawyers

FILE NUMBER:

PTW

2347

2004

APPEAL NUMBER:

2013

DATE DELIVERED::

17 June 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Perth

JUDGMENT OF:

Bryant CJ, Thackray and Ainslie-Wallace JJ

HEARING DATE:

1 November 2013

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT DATE OF ORDERS:

21 January 2013

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

COUNSEL FOR THE FIRST AND THIRD RESPONDENTS:

Mrs Brownlie

SOLICITOR FOR THE FIRST AND THIRD RESPONDENTS:

X Lawyers

COUNSEL FOR THE SECOND In person

RESPONDENT:

Orders made on 1 November 2013

The appellant have leave to rely upon the further evidence as sought by the first three points of his Application in an Appeal filed 2 October 2013.
The appeal be allowed.
Orders 2 to 11 inclusive of the orders made by the Honourable Justice Moncrieff on 21 January 2013 be set aside.
Any monies presently held by X Lawyers be retained in their entirety and not dispersed without an order of a judge of the Family Court of Western Australia.
The application be remitted for rehearing…

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 Manotis & Manotis

Details

AGLC: Manotis & Manotis [2014] FamCAFC 103
Case: [2014] FamCAFC 103
Decision Date: 17 June 2014

CaseChat Overview and Summary

In this appeal, Mr Manotis ("the husband") sought to appeal against orders made by Moncrieff J on 21 January 2013, being orders made nearly five years after property orders were made in proceedings between the husband and Ms Manotis ("the wife"). The property orders made provision for the sale of a farm owned by the husband. After the wife filed an application for consent orders seeking to set aside the previous orders and have a Deed of Settlement stand 'as orders of the court', Moncrieff J dismissed the application, gave leave to the wife's former solicitors to become a party to the proceedings and appointed them as trustee for sale of the property in lieu of the wife. The husband appealed the trial judge's orders on the basis that the trial judge had denied procedural fairness to the husband, the wife, and Mr Matthews, had improperly led the wife to resile from the consent orders and placed the solicitors in a position of conflict of interest with the husband and the wife. The Full Court found the husband's appeal to be well-founded and allowed the appeal, discharging all the orders made by Moncrieff J on 21 January 2013. The Full Court considered that the wife should have been given the opportunity to seek advice about the options available to her, as well as the opportunity to fully understand the ramifications when she gave her affirmative response to Moncrieff J's suggestion that she wanted the solicitors to sell the property so she could get her money. The Full Court found that the wife was led by Moncrieff J into what he treated as consent to the outcome he proposed, without having the ramifications adequately explained to her or having been advised of the desirability of taking independent advice. The Full Court also found that the appointment of the solicitors as trustees for sale in lieu of the wife demonstrated the position of conflict in which they found themselves. Given the clear conflict of interest, the Full Court considered that Moncrieff J should also have given at least some consideration to laying down conditions on which the property was to be sold, rather than simply appointing the solicitors as trustees for sale. The Full Court remitted the matter to a judge of the Family Court of Western Australia other than Justice Moncrieff for rehearing. The Full Court made an order that the solicitors pay the husband's costs of and incidental to the appeal.

Orders