McDermott and McDermott and Anor - [2015] FamCA 574

FAMILY COURT OF AUSTRALIA

MCDERMOTT & MCDERMOTT AND ANOR

[2015] FamCA 574

FAMILY LAW – PROPERTY – LIQUIDATOR/ RECEIVER - where application by liquidator/receiver for declarations – where issue as to source of funds diverted to husband’s bank accounts – where appropriate to make declarations sought.

FAMILY LAW – PROPERTY - INTERIM PROPERTY – where application by husband for interim property distribution in specie – where relevant property subject of receivership – where significant outstanding issues as to the available pool of assets for distribution – where consideration of relevant principles – where interim property application dismissed.

Corporations Act 2001 (Cth) ss 420, 440D, 477, 479(3)
Family Law Act 1975 (Cth) ss 79, 80(1)(k)
Supreme Court Act 1970 (NSW) s 67

Harris & Harris (1993) FLC 92-378
Strahan & Strahan (2011) FLC 93-466; [2009] FamCAFC 166
X Pty Ltd & Milstead and Anor [2015] FamCAFC 50 (30 March 2015)

APPLICANT:

Mr McDermott

RESPONDENT:

Ms McDermott

INTERVENOR:

Mr M

FILE NUMBER:

SYC

2014

DATE DELIVERED:

22 July 2015

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

9 and 10 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Rosic

SOLICITOR FOR THE APPLICANT:

Hancock Alldis Roskov

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SCMs Eldershaw

SOLICITOR FOR THE RESPONDENT:

Campbell Paton & Taylor

SOLICITOR FOR THE INTERVENOR:

Colin Biggers & Paisley

Orders

That the Court declares that any funds deposited into the Australia and New Zealand Bank Limited account number … – … and BSB number … in the name of the Second Respondent from 9 May 2014 are properly the property of the Company, the Partnership and Z on a proportionate split of 72.5 per cent to the Partnership and 27 per cent to the Company and 0.5 per cent to Z and that such property vests in Mr M in his capacity as receiver and manager of the Partnership and liquidator of the Company and Z.
That the husband’s application in a case be dismissed.
That costs of and incidental to the applications before the Court be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym McDermott & McDermott & Anor 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 PARRAMATTA

FILE NUMBER: SYC 70 of 2014

Mr McDermott

Applicant

And

Ms McDermott

Respondent

And

Mr M
Intervener

REASONS FOR JUDGMENT

The present matter for determination is yet another application in the long-running property saga between the husband and wife.
The background to the matter was considered in the context of previous proceedings between the husband and wife in reasons for Judgment delivered on 14 April 2014 (McDermott & McDermott [2014] FamCA 245) and on 5 August 2014 (McDermott & McDermott & Ors [2014] FamCA 615).
On the 21 July 2014 Mr M of M Advisory was appointed as receiver and manager of the income and property of the parties’…

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 McDermott and McDermott and Anor

Details

AGLC: McDermott and McDermott and Anor [2015] FamCA 574
Case: [2015] FamCA 574
Decision Date: 22 July 2015

CaseChat Overview and Summary

In *McDermott and McDermott and Anor*, Foster J of the Supreme Court of New South Wales considered a dispute concerning the beneficial ownership of funds held in a bank account. The applicants sought declarations regarding the entitlement to these funds, which were held in an account in the name of the Second Respondent.

The central legal issue before the Court was to determine the proper ownership of funds deposited into a specific bank account from 9 May 2014. This involved ascertaining the proportionate interests of the Company, the Partnership, and an entity referred to as Z in those funds.

Foster J declared that the funds deposited into the specified ANZ bank account from 9 May 2014 were the property of the Company, the Partnership, and Z, in proportions of 72.5 per cent to the Partnership, 27 per cent to the Company, and 0.5 per cent to Z. The Court further declared that these funds vested in Mr M in his capacity as receiver and manager of the Partnership and liquidator of the Company and Z. The husband's application was dismissed, and costs were reserved.

Orders

Orders of the court

That the Court declares that any funds deposited into the Australia and New Zealand Bank Limited account number … – … and BSB number … in the name of the Second Respondent from 9 May 2014 are properly the property of the Company, the Partnership and Z on a proportionate split of 72.5 per cent to the Partnership and 27 per cent to the Company and 0.5 per cent to Z and that such property vests in Mr M in his capacity as receiver and manager of the Partnership and liquidator of the Company and Z.

That the husband’s application in a case be dismissed.

That costs of and incidental to the applications before the Court be reserved.

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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