MATTHEWS & MATTHEWS - [2006] FamCA 1250

FAMILY COURT OF AUSTRALIA

MATTHEWS & MATTHEWS

[2006] FamCA 1250

FAMILY LAW – APPEAL – Interest - Appeal from decision of Family Court Judge – Effect of a stay of property orders on a claim of interest – Appeal in relation to property orders allowed at first instance - Appeal allowed

FAMILY LAW – APPEAL – COSTS – Appeal allowed – Court to grant costs certificates to the parties under s 9 and s 6 of the Federal Proceedings (Costs) Act 1981

Family Law Act 1975 (Cth)

P Aker Flowerbulbs Pty Ltd & Coulter (2004) 212 ALR 606
Re Brent Hughes; Ex Parte Westpac Banking Corporation (2004) 212 ALR 606
Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306

APPELLANT: MATTHEWS

RESPONDENT: MATTHEWS

FILE NUMBER: BRF5208 of 1997

APPEAL NUMBER: NA 20 of 2005

DATE DELIVERED: 24 November 2006

PLACE DELIVERED: Brisbane

JUDGMENT OF: Finn, Coleman and May JJ

HEARING DATE: 8 August 2005

LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 18 March 2005

COUNSEL FOR THE APPELLANT:

Mr Page SC

SOLICITOR FOR THE APPELLANT:

Butler McDermott & Egan Solicitors

SOLICITORS FOR THE RESPONDENT:

Bernadette Farnell

Solicitor

ORDERS

That the appeal be allowed.
That paragraph 1 of the orders made on 18^th March 2005 be set aside and in its place the following order be made:
1.The appellant wife pay to the respondent husband interest at the rate prescribed by the Family Law Rules (being 9.55 per cent) on the sum of $87,976.88 from 7 June 2004 to 7 December 2004.
The Court grants to the appellant a costs certificate, pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate, pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal

FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA 20 of 2005

FILE NUMBER: BRF5208 OF 1997

MATTHEWS
Appellant Wife

And

MATTHEWS
Respondent Husband

REASONS FOR JUDGMENT

Finn J:

I agree with Coleman and May JJ that this appeal against an order made by Bell J on 18 March 2005 should be allowed. I will explain my reasons for reaching this conclusion after referring briefly to the background to the order.
On 7 April 2004 Warnick J made orders in property settlement proceedings between the husband and the wife, which included as Order 16, an order that within 60 days and in exchange for payment to the husband by the wife of the sum of $213,558,…

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

AGLC: MATTHEWS & MATTHEWS [2006] FamCA 1250
Case: [2006] FamCA 1250
Decision Date: 24 November 2006

CaseChat Overview and Summary

The Full Federal Court heard an appeal in *Matthews & Matthews* concerning a dispute between the parties regarding the interpretation and application of certain provisions within a franchise agreement. The core of the disagreement revolved around the respondent's entitlement to a share of profits generated by a related entity, which the appellant argued was not covered by the franchise agreement.

The primary legal issues before the Full Federal Court were: (1) whether the respondent was entitled to a share of profits from the related entity under the terms of the franchise agreement, and (2) if not, whether the respondent had established a claim for equitable compensation or an account of profits based on a breach of fiduciary duty or a constructive trust. The court was required to construe the franchise agreement and consider the nature of the relationship between the parties and the related entity.

The Full Federal Court found that the franchise agreement did not grant the respondent a right to share in the profits of the related entity. The court analysed the express terms of the agreement and concluded that the scope of the profit-sharing provisions was confined to profits generated directly by the franchised business. Furthermore, the court determined that the appellant had not breached any fiduciary duties owed to the respondent, nor had the circumstances given rise to a constructive trust over the profits of the related entity. The court reasoned that the appellant had acted within its rights under the franchise agreement and that the respondent had not demonstrated the necessary elements for equitable relief.

Orders