Megalos and Katsaros & Ors - [2015] FamCA 1094

FAMILY COURT OF AUSTRALIA

MEGALOS & KATSAROS AND ORS

[2015] FamCA 1094

FAMILY LAW – ENFORCEMENT – Whether consent property order bind one or other of two companies (now in liquidation) who were parties to the property proceedings and the settlement

FAMILY LAW – CORPORATIONS – Trustee in Bankruptcy seeks leave pursuant to s 471B of the Corporations Act 2001 (Cth) to enforce property orders against a liquidator

FAMILY LAW – JURISDICTION – Questions of original jurisdiction under Corporations Act 2001 (Cth) and Bankruptcy Act 1966 (Cth) and accrued jurisdiction in equity

FAMILY LAW – BANKRUPTCY – Application for payment of monies by the Liquidator and further discovery from the two companies in liquidation – Application by the Liquidator for enforcement proceedings to be stayed until such time as s 471B or s 500(2) of the Corporations Act 2001 (Cth) leave is granted

Family Law Act 1975 (Cth)

Corporations Act 2001 (Cth) ss 471B, 511
Bankruptcy Act (Cth) ss 35A, 134(4)

Warby v Warby (2001) 166 FLR 319
C Pty Ltd and Ors & PGW as Liquidators of S Pty Ltd (in Liq) [2011] FamCAFC 231
Hewson & Douglas Pty Ltd (in Liq) [1993] 2 Qd R
In the matter of Motor ACN 005 188 054 Pty Ltd (in Liq) [2006] FCA 1497
Commonwealth v Davis Samuel Pty Ltd [No 5] (2008) 68 ASCR 336
Hewitt v Court [1983] 149 CLR 639 at 668
Official Trustee in Bankruptcy v Mateo [2003] FCAFC 26
Re Crown Meats Pty Ltd (in liq) [2013] VSC 118

Mr Timothy North SC in his paper ‘A Consideration of Aspects of the Jurisdiction and Powers of the Family Court of Australia’ presented in May 2015 - North Queensland Law Association Conference, Queensland

Tyler, Young & Croft Fisher and Lightwood’s Law of Mortgage, Lexis Nexis, 3^rd Australian Edition 2014, page 51

APPLICANT:

Ms Megalos

1st RESPONDENT:

Mr Katsaros

2nd RESPONDENT:

Mr B Katsaros

3rd RESPONDENT:

C Pty Ltd (ACN …)

4th RESPONDENT:

D Pty Ltd (ACN …)

5th RESPONDENT:

E Pty Ltd (ACN …)

6th RESPONDENT:

F Pty Ltd (ACN …)

7th RESPONDENT:

Mr Calas as Trustee of the Bankrupt Estate of Ms Megalos

FILE NUMBER:

MLC

6793

2012

DATE DELIVERED:

9 December 2015

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

20 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hall

SOLICITOR FOR THE APPLICANT:

Ronald Segal & Associates

COUNSEL FOR THE 1ST RESPONDENT:

In person and excused

SOLICITOR FOR THE 1ST RESPONDENT:

COUNSEL FOR THE 2ND RESPONDENT:

In person and excused

SOLICITOR FOR THE 2ND RESPONDENT:

COUNSEL FOR THE 3RD RESPONDENT:

Ms Andrea Mapp

SOLICITOR FOR THE 3RD RESPONDENT:

Ascot Solicitors

COUNSEL FOR THE 4TH RESPONDENT:

Ms Andrea Mapp

SOLICITOR FOR THE 4TH RESPONDENT:

Ascot Solicitors

COUNSEL FOR THE 5TH RESPONDENT:

Excused

SOLICITOR FOR THE 5TH RESPONDENT:

COUNSEL FOR THE 6TH RESPONDENT:

Excused

SOLICITOR FOR THE 6TH RESPONDENT:
COUNSEL FOR THE 7TH RESPONDENT:	Mr Peter Fary

SOLICITOR FOR THE 7TH RESPONDENT:

Zervos Lawyers

Orders

Pursuant to s…

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

Case: [2015] FamCA 1094
Decision Date: 9 December 2015

CaseChat Overview and Summary

In the Family Court of Australia, Benjamin J considered a dispute concerning the enforcement of a consent property order made on 7 December 2012. The primary parties involved were the applicant wife, the first respondent husband, and two companies, D Pty Ltd and C Pty Ltd, which were in liquidation. The seventh respondent, acting as the Trustee in Bankruptcy for the applicant wife, sought to enforce the property order against the liquidators of the companies.

The court was required to determine several key legal issues. Firstly, it had to ascertain whether the consent property order, which involved the two companies, was binding on them, particularly given their subsequent liquidation. Secondly, the court considered the application by the Trustee in Bankruptcy for leave under section 471B of the *Corporations Act 2001* (Cth) to pursue enforcement proceedings against the liquidators. This also involved questions of original jurisdiction under the *Corporations Act* and the *Bankruptcy Act 1966* (Cth), as well as accrued jurisdiction in equity.

Benjamin J reasoned that the property located at G Street, Suburb H, was appropriated in favour of the applicant wife to discharge the first respondent's obligations under the 2012 consent order. Consequently, the property was declared to be charged with the satisfaction of that obligation. The court granted the seventh respondent leave pursuant to section 471B of the *Corporations Act 2001* (Cth) to continue proceedings against the liquidators of D Pty Ltd and C Pty Ltd. Furthermore, the court declared that any monies received by the liquidators from the sale of the G Street property were held in trust for the benefit of the seventh respondent as trustee for the bankrupt estate of the applicant wife. The proceedings were listed for further mention to determine outstanding orders sought by the Trustee in Bankruptcy.

Orders

Orders of the court

Pursuant to s 471B of the Corporations Act 2001 (Cth) the seventh respondent is granted leave to pursue and continue proceedings in this Court against the liquidators for the D Pty Ltd and C Pty Ltd (the third and fourth respondents).

The Court declares that the property at G Street, Suburb H (namely G Street, 1 and 2 I Street, Suburb H) were appropriated in favour of the applicant wife to discharge the first respondent’s obligations pursuant to amounts respectively attributed under order 2 made 7 December 2012 and is thereby charged with the satisfaction of that obligation.

Pursuant to the provisions of the Bankruptcy Act 1966, the Court declares that all monies received by the liquidator for the D Pty Ltd and C Pty Ltd (the third and fourth respondents) in relation to the sale of G Street Suburb H (namely G Street, 1 and 2 I Street, Suburb H) are held in trust for the benefit of the seventh respondent as trustee for the bankrupt estate of the applicant wife.

These proceedings be listed for further mention before the Court in Melbourne on 27 January 2016 at 4.00pm for further determination of the orders sought by the Trustee in Bankruptcy filed 16 October 2015.

Background

Background to the litigation

Full text does not contain this section.

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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