Murillo & Murillo (No 2) - [2022] FedCFamC1F 757

Federal Circuit and Family Court of Australia
(DIVISION 1)
Murillo & Murillo (No 2) [2022] FedCFamC1F 757

File number(s): SYC 3325 of 2017

Judgment of: SCHONELL J

Date of judgment: 5 October 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties were in agreement about the sale of property but were at issue as to who should be involved in the sale – Orders made for independent trustee to be appointed – Where payment of the single expert’s fees remain outstanding – Orders made for the husband to pay the fees within 7 days – Where the second respondent sought a range of documents by way of disclosure – Where the second respondent has not yet filed a Response to Final Orders – No orders for provision of documents made until position of each party and their claims is more clear – Orders made for parties to file Points of Claim in relation to declaratory relief sought by the wife.

Division: Division 1 First Instance

Number of paragraphs: 24

Date of hearing: 30 September 2022

Place: Sydney

Counsel for the Applicant: Mr Todd

Solicitor for the Applicant: Mills Oakley

Solicitor for the First Respondent: Sarah Bevan Family Lawyers

Counsel for the Second Respondent: Mr Lo Schiavo

Solicitor for the Second Respondent: Cruz Clowry Law Group
ORDERS

SYC 3325 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MURILLO

Applicant

AND:
MR MURILLO

First Respondent

MS B

Second Respondent

order made by:

SCHONELL J

DATE OF ORDER:

5 OCTOBER 2022

THE COURT ORDERS THAT:
1.By consent, I make an order in terms of a document described as “Minute of Order” as follows:
1.That within 1 business day of the making of these Orders, the Husband is to sign and return to the Wife’s solicitors the draft joint letter to [Company E] dated 27 September 2022 in relation to payment to the single expert, Ms [C], in the sum of $51,000.

2.The first respondent husband (“the husband”) shall within 7 days pay to F Accounting Firm the sum of $40,160.72. One of the issues at trial shall be whether the applicant wife (“the wife”) shall be required to reimburse the husband for 50% of this amount.
3.The second respondent is to file and serve within 14 days a Response to Application for Final Orders.
4.The wife is to file and serve within 14 days Points of Claim in relation to the declaratory relief she seeks as against the husband and second respondent in relation to the Suburb N property.
5.The husband is to file a Response to the Points of Claim within 14 days together with any cross-claim asserting relief as against the wife and/or the second respondent.
6.The second respondent is to file and serve a Response and any cross-claim identifying the relief she seeks as against the wife and/or the husband within a further 14 days.
7.I direct the parties to submit within 7 days a joint Minute for the sale of the…

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 Murillo & Murillo (No 2)

Details

AGLC: Murillo & Murillo (No 2) [2022] FedCFamC1F 757
Case: [2022] FedCFamC1F 757
Decision Date

CaseChat Overview and Summary

The case of Murillo & Murillo (No 2) [2022] FedCFamC1F 757 was heard by Justice Schonell of the Federal Circuit and Family Court of Australia. The case involved a dispute between the applicant, Ms Murillo, the first respondent, Mr Murillo, and the second respondent, Ms B, a former partner of Mr Murillo. The proceedings related to the sale of a property and the payment of fees to a single expert, as well as the provision of documents by the second respondent. The parties were in agreement about the sale of the property but disagreed about who should be involved in the sale. The wife contended that the legal title to the property was held by the second respondent beneficially for Mr Murillo, and sought declaratory relief. There was also an issue about the payment of approximately $40,000 to the single expert, who was undertaking a valuation and tracing exercise. The second respondent sought a range of documents to understand the issues in the proceedings.

Justice Schonell decided to appoint an independent trustee to act on the sale of the property, with the balance of the proceeds of sale to be invested by the solicitor on behalf of the second respondent in an interest-bearing deposit account. The husband was ordered to pay the balance of the single expert's fees within 7 days, with the wife's contribution of 50% of that sum to be an issue at trial. No orders were made for the provision of documents to the second respondent until the position in respect of the claims as between the parties were clearer. The wife was ordered to file and serve Points of Claim in relation to the declaratory relief she sought as against the husband and second respondent in relation to the Suburb N property.

The final orders made by Justice Schonell included the appointment of an independent trustee for the sale of the Suburb N property, orders for the husband to pay the single expert's fees within 7 days, orders for the second respondent to file a Response to Application for Final Orders, orders for the wife to file Points of Claim in relation to the declaratory relief sought, and orders for the husband and second respondent to file Responses and any cross-claims within 14 days. The parties were also ordered to submit a joint Minute for the sale of the Suburb N property, including a provision for the appointment of an independent trustee for sale, and the parties were granted liberty to restore on three days written notice. All outstanding interlocutory applications were dismissed.

Orders