Legal Research
Cases
Martin & Martin and Ors

Martin & Martin and Ors

Case [2013] FamCA 222 9 April 2013

Type to search within this case.

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN & ORS

[2013] FamCA 222

FAMILY LAW – INJUNCTIONS – third parties to the substantive property proceedings between husband and wife seek to rely upon the continuance of injunctive orders as between husband and wife – Husband calls for discharge of injunction unless third parties provide an undertaking as to damages – Opposition by third parties to giving an undertaking as to damages – Consideration of principle of clean hands – Injunctions should be discharged unless undertaking given.

Family Law Act 1975 (Cth)

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Black Uhlans Incorporated v New South Wales Crime Commission and Ors [2002] NSWSC 1060
Blue Seas Investments Pty Ltd v Mitchell and McGillvray (1999) FLC 92-856
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380;
Commission of Taxation and Worsnop [2009] FamCAFC)
Commonwealth v Verwayen (1990) 170 CLR 394, 411
Dow Securities Pty Ltd v Manufacturing Investments Ltd (1981) 5 ACLR 501, 508
Frigo v Culhaci [1998] MSWSC 383
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
King v Lynpete Australia Pty Ltd & Ors [2012] VSC 140
Mullen v DeBry [2006] FamCA 1380
Prince and Prince (1984) FLC 91-501
Robb Evans of Robb Evans & Associates v European Bank Ltd [2009] NSWCA 67, [28]
Stanford v Stanford [2012] HCA 52
Waugh and Waugh (2000) FLC 93-052

APPLICANT:

Ms Martin

RESPONDENT:

Mr Martin

1^ST INTERVENOR:

X Firm

2^ND INTERVENOR:

QF Pty Ltd

FILE NUMBER:

MLC

9829

2007

DATE DELIVERED:

9 April 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

14 February; 5 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Taylor

SOLICITOR FOR THE APPLICANT:

Cahill & Rowe Family Law

COUNSEL FOR THE RESPONDENT:

Mr Glick SC

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie Fildes

COUNSEL FOR THE 1^ST INTERVENOR:

Dr Ingleby

SOLICITOR FOR THE 1^ST INTERVENOR:

Nedovic & Co

COUNSEL FOR THE 2^ND INTERVENOR:

Mr Kohn

SOLICITOR FOR THE 2^ND INTERVENOR:

Hopkins Lawyers

Orders

That paragraph 8 of the orders made on 10 December 2010 as subsequently varied be discharged unless by 4.00pm on 1 May 2013 QF Pty Ltd and X Firm provide an undertaking as to damages in the usual form.
That all interim applications are otherwise dismissed.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel including senior counsel, to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9829 of 2007

Ms Martin

Applicant

And

Mr Martin

Respondent

And

X Firm

1^stIntervenor

And

QF Pty Ltd

2^nd Intervenor

REASONS FOR JUDGMENT

In proceedings between Ms Martin (“the wife”) and Mr Martin (“the…

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 Martin & Martin and Ors

Details

AGLC: Martin & Martin and Ors [2013] FamCA 222
Case: [2013] FamCA 222
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Martin (the wife) and Mr Martin (the husband) were the primary parties to property proceedings. The dispute before the court concerned an application by the husband for the discharge of an existing injunction, unless two third-party intervenors, X Firm and QF Pty Ltd, provided an undertaking as to damages. The intervenors, who were creditors of the wife, opposed the discharge of the injunction and resisted providing an undertaking.

The court was required to determine whether the existing injunctive orders, originally made between the husband and wife, should continue to bind the husband in circumstances where the intervenors sought to rely on those orders but refused to provide an undertaking as to damages. A key legal issue was whether the principles governing undertakings as to damages in commercial litigation applied equally to family law proceedings, particularly when third-party creditors intervened. The court also considered the relevance of the "clean hands" principle in this context.

Justice Cronin reasoned that the injunctive principles applicable in family law financial disputes should be treated similarly to those in commercial disputes. The court noted that while injunctions are discretionary remedies under the *Family Law Act 1975* (Cth), they are not unfettered and must be exercised according to law. The judge found that the requirement for an undertaking as to damages is a fundamental equitable principle designed to protect a restrained party from potential losses if an injunction is later found to have been wrongly granted. The court rejected the intervenors' arguments that the husband's conduct or the specific history of the proceedings negated the need for an undertaking, stating that the clean hands principle was not relevant to the question of whether an undertaking should be required.

The court ordered that paragraph 8 of the orders made on 10 December 2010, as subsequently varied, be discharged unless QF Pty Ltd and X Firm provided an undertaking as to damages in the usual form by a specified date. All other interim applications were dismissed.

Orders