Medlow and Medlow (No 2) - [2014] FamCA 530

FAMILY COURT OF AUSTRALIA

MEDLOW & MEDLOW (NO 2)

[2014] FamCA 530

FAMILY LAW – PROPERTY – Interim – Where the applicant husband sought an interim property order for a disbursement of $2.9 million – Where the husband is engaged in other litigation and sought funds to be applied to such litigation and for other purposes – Where the respondent wife opposed the application – Where the wife claimed the husband failed to make full and frank disclosure – Whether just and equitable in the circumstances of the case to make an order for the interim distribution of funds – Where an interim distribution of funds is conservatively within the ambit of the parties’ likely entitlements under s 79 – Where the husband’s application is granted – Where the wife sought an order for interim costs – Where interim costs granted to the wife.

Family Law Act 1975 (Cth) s 79

Bevan & Bevan (2013) FLC 93-545
Cerini & Cerini [1998] FamCA 143
Chapman & Chapman [2014] FamCAFC 91
Chorn v Hopkins (2004) FLC 93-204
Harris and Harris (1993) FLC 92‑378
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
In the Marriage of Omacini (2005) FLC 93-218
Norman & Norman [2010] FamCAFC 66
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

APPLICANT:

Mr Medlow

RESPONDENT:

Ms Medlow

FILE NUMBER:

SYC

7742

2010

DATE DELIVERED:

18 July 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

15 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Sirtes SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

Orders and notations are made in terms of paragraphs 2, 4, 5 & 6 of the Application in a Case filed by the husband on 30 June 2014, as follows:
2.The court NOTES:
2.1That on 10 June 2014 the property situated at and known as B Street, Suburb C was sold for the amount of $37,000,000, with settlement of the sale of this property expected to occur on 9 September 2014.
2.2That the Husband intends to procure from Medlow Pty Ltd and/or nominee of the directors of Medlow Pty Ltd a loan in the amount of $1,250,000, on the basis of interest being charged at a rate of 7.5 per cent per annum ("the loan");
2.3That the loan is proposed on the basis of the principal plus interest being discharged from the proceeds of the sale of the property situated at and known as B Street, Suburb C; upon settlement;
2.4That the loan is intended to be applied in the manner and for the purposes provided for in the Orders made by Justice Loughnan dated 8 April 2014, pending settlement of the sale of the B Street, Suburb C property.
4.That the Husband and Wife shall do all acts and things and sign all documents to ensure that the sum of $1,250,000 from the loan…

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 Medlow and Medlow (No 2)

Details

AGLC: Medlow and Medlow (No 2) [2014] FamCA 530
Case: [2014] FamCA 530
Decision Date: 18 July 2014

CaseChat Overview and Summary

In *Medlow and Medlow (No 2)*, the applicant husband sought an interim property order for a disbursement of $2.9 million from the proceeds of a property sale. The husband intended to apply these funds towards other litigation and for unspecified purposes, while the respondent wife opposed the application, alleging the husband had failed to make full and frank disclosure. The matter came before Loughnan J in the Family Court of Australia.

The primary legal issue before the court was whether it was just and equitable to make an order for the interim distribution of funds, considering the husband's stated intentions and the wife's allegations of non-disclosure. The court was also required to determine the wife's application for interim costs.

Loughnan J reasoned that an interim distribution of funds, conservatively within the ambit of the parties' likely entitlements under section 79 of the *Family Law Act 1975* (Cth), could be made. The court granted the husband's application for an interim disbursement, noting that the proposed loan and its application were intended to align with previous orders made by the court. The wife's application for interim costs was also granted.

The court made orders reflecting the husband's application, including provisions for a loan of $1,250,000 to be paid into a trust account and invested, to be applied in accordance with previous orders. Upon settlement of the property sale, the proceeds were to be applied first to discharge the loan, then to sale costs, rates, a further $1,650,000 as per previous orders, with the balance to be held in an interest-bearing account pending further court order. The court also ordered payment of $173,188.39 to the wife's solicitors for interim costs. Otherwise, the court refused to make further orders at that time and granted leave to restore the proceedings to the list.

Orders

Orders of the court

Orders and notations are made in terms of paragraphs 2, 4, 5 & 6 of the Application in a Case filed by the husband on 30 June 2014, as follows:

2. The court NOTES:

2.1 That on 10 June 2014 the property situated at and known as B Street, Suburb C was sold for the amount of $37,000,000, with settlement of the sale of this property expected to occur on 9 September 2014.

2.2 That the Husband intends to procure from Medlow Pty Ltd and/or nominee of the directors of Medlow Pty Ltd a loan in the amount of $1,250,000, on the basis of interest being charged at a rate of 7.5 per cent per annum ("the loan");

2.3 That the loan is proposed on the basis of the principal plus interest being discharged from the proceeds of the sale of the property situated at and known as B Street, Suburb C; upon settlement;

2.4 That the loan is intended to be applied in the manner and for the purposes provided for in the Orders made by Justice Loughnan dated 8 April 2014, pending settlement of the sale of the B Street, Suburb C property.

4. That the Husband and Wife shall do all acts and things and sign all documents to ensure that the sum of $1,250,000 from the loan is paid into the trust account of Watts McCray Lawyers and such funds shall be invested in a controlled monies investment account for that purpose until applied in accordance with these Orders ("The Trust Monies").

5. Unless otherwise agreed in writing by the Husband and Wife, the Trust monies shall be applied in accordance with paragraph 5 of the Orders dated 8 April 2014.

6. That upon settlement of the sale of B Street, Suburb C, on or about 9 September 2014, the proceeds of the sale of the B Street, Suburb C property be paid and/or applied in the following manner and priority:

6.1 The amount required to discharge the loan secured by the second mortgage referred to in order 3 herein provided to the Husband by Medlow Pty Ltd and/or nominee of the directors of Medlow Pty Ltd;

6.2 All costs and expenses of the sale including legal costs and disbursements for the conveyance, agents' commission, and valuers' fees;

6.3 The amounts required to pay all municipal and water rates outstanding with respect to the property;

6.4 Per Paragraphs 5 and 6 of the Orders dated 8 April 2014, in the further amount of $1,650,000, which further sum is intended to represent the balance of the moneys required and anticipated in those orders dated 8 April 2014;

6.5 With the balance (of an amount of not less than $15,500,000) to be held in an interest bearing account in the names of the parties, in compliance with paragraph 1(c) of the Orders made in the Supreme Court proceedings being Case Number … between Medlow Pty Ltd and D Pty Ltd, such funds not to be disbursed except by further Order of the court.

Notwithstanding the above orders the husband and wife shall do all things and sign all documents necessary to authorise a payment from the funds the sum of $173,188.39 to the trust account of the solicitors for the wife by way of interim costs.

Otherwise the Court refuses to make orders at this time in accordance with the husband’s Application in a Case and the Response to an Application in a Case filed on behalf of the wife on 14 July 2014.

Leave is granted to the parties to restore the proceedings to the list in relation to the Application or Response or otherwise on giving the Court and each other at least 48 hours prior written notice.

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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