Naillon & Naillon - [2022] FedCFamC1F 781

Federal Circuit and Family Court of Australia
(DIVISION 1)
Naillon & Naillon [2022] FedCFamC1F 781

File number(s): ADC 3408 of 2021

Judgment of: BERMAN J

Date of judgment: 18 October 2022

Catchwords: FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Where the applicant seeks that the farming land owned by the 2nd to 4th respondents is held on constructive trust or that it be subject to an equitable charge – Where the 2nd to 4th respondents seek for the Application in respect of them, be dismissed – Where the respondent supports the 2nd to 4th respondent’s claim – Where the 2nd to 4th respondents seek a disjoinder on the basis that there is insufficient evidence to establish a constructive trust – Where the applicant contends that the nature of the orders sought by the 2nd, 3rd and 4th respondents is an application for summary dismissal – consideration s 45A(1) of the Act – consideration of summary dismissal – Orders made.

Legislation:
Family Law Act 1975 (Cth) s 45A(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.09

Cases cited:
Baumgartner v Baumgartner (1987) 164 CLR 137

Bigg v Suzi (1998) FLC 92-799

Bretton & Bondai [2013] FamCAFC 168

Gitane & Velacruz (2007) FLC 93-309

Giumelli v Giumelli [1999] 196 CLR 101

Len Lindon v The Commonwealth of Australia(No 2) [1996] 136 ALR 251

Pelerman v Pelerman (2000) FLC 93-037

Shepherd v Doolan & Ors [2005] NSWSC 42

Sidhu v Van Dyk [2014] 251 CLR 505

Division: Division 1 First Instance

Number of paragraphs: 43

Date of hearing: 2 September 2022

Place: Adelaide

Counsel for the Applicant: Mr Heinrich

Solicitor for the Applicant: Kelly Kelly Legal

Counsel for the First Respondent: Ms Ross

Solicitor for the First Respondent: Alex Mandry Legal Group

Counsel for the Second, Third & Fourth Respondents: Mr Roberts

Solicitor for the Second, Third & Fourth Respondents: KP Lawyers
ORDERS

ADC 3408 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS NAILLON

Applicant

AND:
MR NAILLON

First Respondent

MR B NAILLON

Second Respondent

MS C NAILLON (and another named in the Schedule)

Third Respondent

order made by:

BERMAN J

DATE OF ORDER:

18 October 2022

THE COURT ORDERS THAT:
1.The interim orders sought in the Amended Response filed 9 August 2022 be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment…

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 Naillon & Naillon

Details

AGLC: Naillon & Naillon [2022] FedCFamC1F 781
Case: [2022] FedCFamC1F 781
Decision Date

CaseChat Overview and Summary

The case of Naillon & Naillon involved a dispute between the applicant and several respondents regarding the equitable interests in certain farming properties. The applicant claimed that the second and fourth respondents held the properties on trust for the benefit of the applicant and the first respondent. The applicants sought a declaration to this effect, along with other relief. The second to fourth respondents argued that the applicant's claim had no reasonable prospect of success and sought to have the claim dismissed. The court was required to determine whether the applicant's claim had a reasonable likelihood of success and if the interim orders sought by the second to fourth respondents should be dismissed.

The primary legal issue before the court was whether the applicant's claim had a reasonable prospect of success. The court had to consider the representations made by the second and third respondents, the reliance placed on those representations by the applicant and the first respondent, and the detriment suffered as a result of that reliance. The court also had to consider the criteria set out in section 45A(1) of the Family Law Act 1975 (Cth), which provides for the making of summary decrees if the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings. The court had to assess whether the applicant's claim, if the evidentiary basis for the representations, reliance, and detriment were accepted, had a reasonable likelihood of success.

The court found that although the relief sought by the applicant was ambitious, it could not be said that the claim had no reasonable prospect of success if the evidentiary basis for the representations, reliance, and detriment were accepted. The court noted that the detriment suffered by the applicant involved life-changing decisions with irreversible consequences of a profoundly personal nature, which went beyond the measure of money. The court held that the second to fourth respondents' interim orders seeking to have the applicant's claim dismissed should be dismissed. The court made the order as appears at the commencement of the reasons.

In conclusion, the court found that the applicant's claim had a reasonable prospect of success if the evidentiary basis for the representations, reliance, and detriment were accepted. The court dismissed the interim orders sought by the second to fourth respondents, which sought to have the applicant's claim dismissed. The applicant's claim that the second and fourth respondents held the farming properties on trust for the benefit of the applicant and the first respondent will proceed to trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Sidhu v Van Dyk [2014] 251 CLR 505, the High Court considered the situation where a party had been induced to make small quantifiable outlays of money. The following appears:-84.If the respondent had been induced to make a relatively small, readily quantifiable monitory outlay on the faith of the appellant’s assurances, then it might not be unconscionable for the appellant to resile from his promises to the respondent on condition that he reimburse her for her outlay. But this case is one to which the observations of Nettle JA in Donis v Donis are apposite:“[H]ere, the detriment suffered is of a kind and extent that involves life-changing decisions with irreversible consequences of a profoundly personal nature… beyond the measure of money and such that the equity raised by the promisor’s conduct can only be accounted for by substantial fulfilment of the assumption upon which the respondent’s actions were based.” (Citations omitted) conclusion Section 45A(1) of the Family Law Act 1975 (Cth) (“the Act ”) provides for the following in respect of summary decrees:-(1) The court may make a decree for one party against another in relation to the whole or any part of the proceedings if:(a) the first party is prosecuting the proceedings or that part of the proceedings; and(b) the court is satisfied that the other party has no reasonable prospect of successfully defending the proceedings or that part of the proceedings. The test is not that the defence or proceedings are either hopeless or bound to fail. The applicant sets out the representations made by the second and third respondents, the purported reliance by the applicant and the first respondent on those representations and the detriment sustained as a result of their reliance. Whilst it may be considered that the relief sought is ambitious, given that it seeks that a declaration be made that the entirety of the properties are held on trust by the second and fourth respondents for the benefit of the applicant and the first respondent, it could not be said that if the Court accepted an evidentiary basis for the representations, the reliance and the detriment, that the applicant’s claim has no reasonable likelihood of success. Accordingly, the interim orders sought by the second to fourth respondents, that the claim by the applicant seeking a declaration that the applicant and the first respondent have an equitable interest in the farming properties, should be dismissed. I make the order as appears at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

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File number(s):	ADC 3408 of 2021
Judgment of:	BERMAN J
Date of judgment:	18 October 2022
Catchwords:	FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Where the applicant seeks that the farming land owned by the 2nd to 4th respondents is held on constructive trust or that it be subject to an equitable charge – Where the 2nd to 4th respondents seek for the Application in respect of them, be dismissed – Where the respondent supports the 2nd to 4th respondent’s claim – Where the 2nd to 4th respondents seek a disjoinder on the basis that there is insufficient evidence to establish a constructive trust – Where the applicant contends that the nature of the orders sought by the 2nd, 3rd and 4th respondents is an application for summary dismissal – consideration s 45A(1) of the Act – consideration of summary dismissal – Orders made.
Legislation:	Family Law Act 1975 (Cth) s 45A(1) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.09
Cases cited:	Baumgartner v Baumgartner (1987) 164 CLR 137 Bigg v Suzi (1998) FLC 92-799 Bretton & Bondai [2013] FamCAFC 168 Gitane & Velacruz (2007) FLC 93-309 Giumelli v Giumelli [1999] 196 CLR 101 Len Lindon v The Commonwealth of Australia(No 2) [1996] 136 ALR 251 Pelerman v Pelerman (2000) FLC 93-037 Shepherd v Doolan & Ors [2005] NSWSC 42 Sidhu v Van Dyk [2014] 251 CLR 505
Division:	Division 1 First Instance
Number of paragraphs:	43
Date of hearing:	2 September 2022
Place:	Adelaide
Counsel for the Applicant:	Mr Heinrich
Solicitor for the Applicant:	Kelly Kelly Legal
Counsel for the First Respondent:	Ms Ross
Solicitor for the First Respondent:	Alex Mandry Legal Group
Counsel for the Second, Third & Fourth Respondents:	Mr Roberts
Solicitor for the Second, Third & Fourth Respondents:	KP Lawyers

ADC 3408 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS NAILLON Applicant
AND:	MR NAILLON First Respondent MR B NAILLON Second Respondent MS C NAILLON (and another named in the Schedule) Third Respondent

order made by:	BERMAN J
DATE OF ORDER:	18 October 2022