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Melville & Dent (No.2)

Melville & Dent (No.2)

Case [2009] FamCA 81 12 February 2009

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FAMILY COURT OF AUSTRALIA

MELVILLE & DENT (NO. 2)

[2009] FamCA 81

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Adjournment with costs – Indemnity costs – Determination of costs thrown away as a result of the adjournment – Order for the sale of a real property on the basis of husband being unlikely to be able to make mortgage payments at a time of impecuniosity – Payments to be made as a condition of an adjournment

Family Law Act 1975 (Cth)

Black and Kellner (1992) FLC 92-287
Brown & Brown (2004) FamCA 1067
Colgate-Palmolive Company and Anor v. Cussons Pty. Limited (1993) 46 FCR 225
LGM and CAM (Contempt) [2008] FamCAFC 1
Penfold v Penfold (1980) FLC 90-800
Tate v Tate (2000) FLC 93-047
Weir and Weir (1993) FLC 92-338
Yunghanns (2000) FLC 93-029

APPLICANT:

Ms Melville

RESPONDENT:

Mr Dent

FILE NUMBER:

MLF

3157

2006

DATE DELIVERED:

12 February 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

2 & 3 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR STRUM

SOLICITOR FOR THE APPLICANT:	MARSHALLS & DENT
COUNSEL FOR THE RESPONDENT:	MR HOULT

SOLICITOR FOR THE RESPONDENT:

FORTE FAMILY LAWYERS

Orders

That by 4.00pm on 10 March 2009, the husband pay the wife’s costs thrown away fixed in the sum of $31,025.
That by 4.00pm on 10 April 2009, the husband pay the arrears of mortgage payments to National Australia Bank (Asia) Ltd up to the payments due immediately before that date and provide evidence to the wife that that has been done.
That the husband forthwith do all things necessary and sign any necessary document to consent to the sale of the real property at H in the United States of America.
That in default of agreement between the parties as to the terms and conditions of the sale, these proceedings be relisted before me on short notice by application supported by affidavit setting out what orders are sought.
That there be general liberty to apply.
That if the husband:
(a)fails to make proper disclosure of all documents in his power, possession or control; or
(b)fails to comply with the provisions of any of paragraph (1), (2) or (3) hereof,
the wife have liberty to seek to have the case relisted prior to 6 May 2009 and to have it proceed on an undefended basis on such terms as may then be determined.
I certify for the attendance of counsel.

IT IS NOTED that publication of this judgment under the pseudonym Melville & Dent is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3157 of 2006

MS MELVILLE

Applicant

And

MR DENT

Respondent

REASONS FOR JUDGMENT

The final hearing of this matter was adjourned on its second day for reasons which I gave ex tempore. Unashamedly, the husband was given a significant indulgence.
The wife sought that any adjournment be conditional or at least closely allied…

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 Melville & Dent (No.2)

Details

AGLC: Melville & Dent (No.2) [2009] FamCA 81
Case: [2009] FamCA 81
Decision Date: 12 February 2009

CaseChat Overview and Summary

In *Melville & Dent (No.2)*, the Honourable Justice Cronin considered orders relating to costs, mortgage arrears, and the sale of real property in the United States. The dispute concerned the financial and property settlement between the husband and wife.

The court was required to determine the terms of the orders concerning the husband's financial obligations, including the payment of costs, the discharge of mortgage arrears, and the facilitation of the sale of a specific property. The court also had to consider the consequences of the husband's potential non-compliance with these orders.

Justice Cronin ordered that the husband pay the wife's costs thrown away by a specified date. Further, the husband was ordered to pay outstanding mortgage arrears on a property and provide evidence of this payment to the wife. The husband was also directed to take all necessary steps to consent to the sale of a property located in the United States, with provisions made for relisting the proceedings if the parties could not agree on the sale terms. Liberty to apply was granted generally, and specific liberty was given to the wife to relist the case on an undefended basis if the husband failed to make proper disclosure or comply with the orders regarding costs, arrears, or the property sale. The court also certified for the attendance of counsel.

Orders

Orders of the court

That by 4.00pm on 10 March 2009, the husband pay the wife’s costs thrown away fixed in the sum of $31,025.

That by 4.00pm on 10 April 2009, the husband pay the arrears of mortgage payments to National Australia Bank (Asia) Ltd up to the payments due immediately before that date and provide evidence to the wife that that has been done.

That the husband forthwith do all things necessary and sign any necessary document to consent to the sale of the real property at H in the United States of America.

That in default of agreement between the parties as to the terms and conditions of the sale, these proceedings be relisted before me on short notice by application supported by affidavit setting out what orders are sought.

That there be general liberty to apply.

That if the husband:

(a) fails to make proper disclosure of all documents in his power, possession or control; or

(b) fails to comply with the provisions of any of paragraph (1), (2) or (3) hereof,

the wife have liberty to seek to have the case relisted prior to 6 May 2009 and to have it proceed on an undefended basis on such terms as may then be determined.

I certify for the attendance of counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Melville & Dent (No.2) [2009] FamCA 81

Most Recent Citation

Gadde & Gadde [2015] FamCA 617

Cases citing this decision · 6 of 6 shown

RIMAC & RIMAC
[2020] FamCA 675 Para 2

…Laskari and Ors [2015] FamCA 398 at [106] where reference is made to Prantage (2013) FLC 93-544. … 78. In Melville & Dent (No.2) [2009] FamCA 81, Cronin J discussed the basis upon which the question of indemnity costs arise and referred to, at [33], the decision of Sheppard J in Colgate Palmolive Company and Anor…
TALBOTT & TAPP
[2020] FamCA 391 Para 1

…In Melville & Dent (No.2) [2009] FamCA 81 at [33], Cronin J discussed the basis upon which the question of indemnity costs arises and referred to the decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 (“ Colgate-Palmolive ”) as providing a “pertinent observation” of the “court-endor…
Hanas and Jolaha (No 5)
[2019] FamCA 1001 Para 2

…reference to the non-exhaustive list of statutory considerations set out in s 117 the Act before any such order is made.[1] In Melville & Dent (No.2) [2009] FamCA 81, Cronin J discussed the basis upon which the question of indemnity costs arise and referred to, at [33], the decision of Sheppard J in Colgate-Palmol…
Berger and Tallis
[2019] FamCA 154 Para 2

…In Melville & Dent (No.2) [2009] FamCA 81, Cronin J discussed the basis upon which the question of indemnity costs arise and referred to, at [33], the decision of Sheppard J in Colgate Palmolive Company and Anor v Cussons Pty Limited (1993) 118 ALR 248 (“ Colgate-Palmolive Co ”) as providing a “pertinent observati…
Burnham and Mullane
[2016] FamCA 908 Para 1

…In Melville & Dent (No.2) [2009] FamCA 81 at [33], Cronin J discussed the basis upon which the question of indemnity costs arises and referred to the decision of Sheppard J in Colgate Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225 (“Colgate Palmolive Company” ) as providing a “pertinent observa…
Gadde & Gadde
[2015] FamCA 617 Para 3

…In Melville & Dent (No.2) [2009] FamCA 81, Cronin J discussed the basis upon which the question of indemnity costs arise and referred to, at [33], the decision of Sheppard J in Colgate Palmolive Company and Anor v Cussons Pty Limited (1993) 46 FCR 225 as providing a ‘pertinent observation’ of the ‘court-endorsed c…

View all 6 citing cases →

Cases cited in this decision · 4 of 4 shown

LGM & CAM (Contempt) (No 2)
[2008] FamCAFC 1 Para 30

…In the recent Full Court decision of LGM & CAM (Contempt) [2008] FamCAFC 1, the Court referred to what was said in Kohan and Kohan (1993) FLC 92-340 at 79,611 where their Honours said: …We are of the opinion that in an appropriate case, the Court has a discretion to order costs on an indemnity basis and that such c…
Tate v Tate
[2000] FamCA 1040 Para 2

…An undefended hearing means literally that the respondent does not participate at all. In Tate v Tate (2000) FLC 93-047, the Full Court said that this court is all too frequently confronted with litigants who fail in their duties of full and frank, as well as prompt, disclosure of their financial affairs. The Full Co…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801

…Black and Kellner (1992) FLC 92-287 Brown & Brown (2004) FamCA 1067 Colgate-Palmolive Company and Anor v. Cussons Pty. Limited (1993) 46 FCR 225 LGM and CAM (Contempt) [2008] FamCAFC 1 Penfold v Penfold (1980) FLC 90-800 Tate v Tate (2000) FLC 93-047 Weir and Weir (1993) FLC 92-338 Yunghanns (2000) …
Penfold v Penfold
[1980] HCA 4 Para 6

…In Penfold v Penfold (1980) FLC 90-800 High Court of Australia said that the general rule expressed by s 117(1) was not paramount to s 117(2). That is, when a court finds circumstances justifying an order for costs, the principle that each party should bear their own costs should give way.…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
1 mention (from Para 4)
Family Law Rules 2004 (Cth)
1 mention (from Para 25)