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Oscar & Traynor

Oscar & Traynor

Case [2007] FamCA 1019 4 September 2007

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FAMILY COURT OF AUSTRALIA

ALLEN & ALLEN (EXTENSION OF TIME APPLICATION)

[2007] FamCA 1018

FAMILY LAW - APPLICATION TO EXTEND TIME TO APPEAL PROPERTY ORDERS, COSTS ORDERS AND ENFORCEMENT ORDERS - Whether appropriate to exercise discretion in favour of the husband - Consideration of principles applicable to exercise of discretion as discussed in Gallo v Dawson (1990) 93 ALR 479 - Whether strict application of the rules would cause injustice - Whether conduct of the parties relevant - Husband's conduct militated against granting leave - Whether merit in husband's proposed grounds of appeal - Property and costs appeal lacked prospects of success - Whether prejudice to either party in refusing leave - Whether prejudice can be overcome by costs order - Whether the proposed appeal against enforcement orders rendered moot - Whether appropriate to exercise discretion in favour of applicant to extend time – Application to extend time dismissed.

FAMILY LAW - APPLICATION TO VARY ORDERS MADE BY FULL COURT RESTRAINING DISPERSAL OF PROCEEDS OF SALE - Whether appropriate to vary orders made by Full Court - Where undertaking given by husband - Proceeds retained pending outcome of application for extension of time - Application to extend time dismissed - Appropriate to vary Full Court orders.

FAMILY LAW - COSTS - Where husband wholly unsuccessful - Where adjournment necessitated by wife filing extensive material shortly prior to hearing - Appropriate to make costs order in favour of wife, except for adjourned hearing day.

Family Law Act 1975 (Cth) s 75(2), s 94(1A), s 94(2D), s 94(2E), s 94(2F), s 117(1), s 117(2), s 117(2A)
Family Law Rules 2004 Chapter 22, r 22.02, r 22.03, r 22.42

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; (1993) 118 ALR 248
De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605; (1979) 4 Fam LR 583
Farmer v Bramley (2000) FLC 93-060; (2001) 27 Fam LR 316
Gallo v Dawson (1990) 93 ALR 479
House v The King (1936) 55 CLR 499
Kowalski and Kowalski (1993) FLC 92-342
Munday and Bowman (1997-1998) 22 Fam LR 321
Pierce v Pierce (1999) FLC 92-844; (1998) 24 Fam LR 377
Tormsen and Tormsen (1993) FLC 92-392
Yunghanns & Ors v Yunghanns & Ors (2000) FLC 93-029

APPELLANT:

Mr Allen

RESPONDENT:

Ms Allen

FILE NUMBER:

PAF

5923

1995

APPEAL NUMBER:

2006

DATE DELIVERED:

3 September 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

20 July 2007, 8 August 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 May 2004
24 December 2004
6 March 2006

LOWER COURT MNC:

[2004] FamCA 449
[2004] FamCA 1180
[2006] FamCA 101

REPRESENTATION

ADVOCATE FOR THE APPELLANT:

Mr Allen in person

SOLICITOR FOR THE RESPONDENT:

Mr Phair

Orders

The husband’s application filed 29 March 2006 is dismissed.
That the solicitor acting for the husband and the wife in relation to the sale of the Hills District property release to the wife 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 Oscar & Traynor

Details

AGLC: Oscar & Traynor [2007] FamCA 1019
Case: [2007] FamCA 1019
Decision Date: 4 September 2007

CaseChat Overview and Summary

In *Oscar & Traynor*, Boland J considered applications by the husband to extend time to appeal property, costs, and enforcement orders, and an application to vary orders made by the Full Court restraining the dispersal of sale proceeds. The wife sought to have the husband's application dismissed and for costs.

The primary legal issues before the court were whether it was appropriate to exercise discretion in favour of the husband to extend the time for appeal, and whether it was appropriate to vary the Full Court's orders. The court also considered the wife's entitlement to costs.

In determining whether to grant an extension of time, Boland J applied the principles discussed in *Gallo v Dawson*, considering whether strict application of the rules would cause injustice, the conduct of the parties, and the merits of the proposed grounds of appeal. The court found that the husband's conduct militated against granting leave, and that his proposed appeals against the property and costs orders lacked prospects of success. The appeal against the enforcement orders was also considered moot. Consequently, the application to extend time was dismissed. The court also varied the Full Court's orders, noting an undertaking given by the husband.

The court ordered that the husband's application filed on 29 March 2006 be dismissed. The solicitor holding sale proceeds was ordered to release $100,000 to the wife. The husband was ordered to pay the wife's costs of the application, save for the adjourned hearing day. The court noted an undertaking given by the husband and that he might seek to vary its terms.

Orders

Orders of the court

The husband’s application filed 29 March 2006 is dismissed.

That the solicitor acting for the husband and the wife in relation to the sale of the Hills District property release to the wife the sum of $100,000.00 retained from her share of the proceeds of sale of the property.

The husband pay the wife’s costs of the application filed 29 March 2006 save and except costs of 20 July 2007 on a party/party basis, as agreed, and failing agreement, as assessed.

AND THE COURT NOTES the undertaking of the husband given to the Court before Collier J on 27 July 2007 and that the husband may seek to vary the terms of that undertaking to limit the sum so affected by the undertaking to $40,000.00.

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

Oscar & Traynor [2007] FamCA 1019

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Townsend v Townsend
[2006] NSWCA 352 Para 6

…e in any event, the property which the husband has not explained the fate of can, if need be by reliance upon the decision of the Full Court in Townsend v Townsend (1995) FLC 92-569, be brought to account sufficiently to enable the Court to properly evaluate the contributions of the parties and the relevant s 75(2) factors.…
Yunghanns v Yunghanns
[2000] FamCA 681 Para 2

…The power to make an indemnity costs order in an appropriate case is recognised (see Yunghanns & Ors v Yunghanns & Ors (2000) FLC 93-029 at paragraph 31). The principles which apply to the making of an indemnity costs order are not limited to cases where fraud or collateral purpose is established against one party. What is required is tha…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 2

…the making of an order for payment of costs other than on a party and party basis”: per Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 at 233; (1993) 118 ALR 248 at 257. Generally the departure from the ordinary rules relating to costs will require exceptional circumstances (see Munday a…
Gallo v Dawson
[1990] HCA 30 Para 1

…The relevant principles to be applied by a trial Judge in deciding whether it is appropriate to extend time for lodging an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. The granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of…
Jess v Scott
[1986] FCA 473

…s of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5 ; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects o…
Penfold v Penfold
[1980] HCA 4 Para 4

…The trial Judge set out the relevant statutory provision dealing with costs (s 117) and cited relevant authority ( Penfold v Penfold (1980) 144 CLR 311 at 315). Thereafter his Honour considered in detail each relevant provision of s 117(2A) and turned his attention to offers of settlement. His Honour referred to two…
Gronow v Gronow
[1979] HCA 63 Para 4

…resumption of her occupation of the matrimonial home which could be said to vitiate his Honour’s discretion (see De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605; (1979) 4 Fam LR 583)…
Mitchelson v Mitchelson
[1979] FCA 48

…o consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested rig…
House v R
[1936] HCA 40 Para 18

…osed appeal is an appeal against a discretionary judgment. Limits on appellant interference with such judgments are well known. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5: The manner in which an appeal against an exercise of discretion should be determined is governed by establ…
[2004] FAMCA 449
[2004] FAMCA 449

…[2004] FamCA 449 [2004] FamCA 1180 [2006] FamCA 101…
[1965] 1 WLR 8
[1965] 1 WLR 8

…d that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12 ; [1964] 3 All ER 933 at 935: The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which som…
[1973] 2 NZLR 86
[1973] 2 NZLR 86

…, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 5 ; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always…
House v The King
63 WN 176 Para 18

…he husband’s proposed appeal is an appeal against a discretionary judgment. Limits on appellant interference with such judgments are well known. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5: The manner in which an appeal against an exercise of discretion should be determined is governe…
Vilenius v Heinegar
(1962) 36 ALJR 200

…piry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the ap…
Pierce v Pierce
Para 3

…Both in his oral and written submissions the husband referred to the decision of the Full Court in Pierce v Pierce (1999) FLC 92-844; (1998) 24 Fam LR 377 as support for his argument that the trial Judge had erred in his assessment of the parties’ relative contributions.…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
75(2) 2 mentions (from Para 1)
De Facto Relationships Act 1984 (NSW)
1 mention (from Para 20)
Family Law Rules 2004 (Cth)
1 mention (from Para 10)
Property Law Act 1958 (Vic)
1 mention (from Para 20)