Osferatu & Osferatu (No 3) - [2013] FamCA 1035

FAMILY COURT OF AUSTRALIA

OSFERATU & OSFERATU (NO 3)

[2013] FamCA 1035

FAMILY LAW – Interim property order (2^nd) sought halfway through a ten week trial– large dispute about the value of net assets ($40 million or $108 million) – application of principle in Strahan case and Stanford case – whether “claw back” could be achieved if wife ultimately restricted to the orders sought by the husband – In such circumstances is the court restricted to considering the husband’s application as possibly the “high water mark” for the wife’s case – relevance of alleged extravagant expenditure by the wife with the first $5million of interim property provision

Bevan & Bevan [2013] FamCAFC 116
Dinci & Smith [2012] FamCA 840
Gabel v Yardley (2008) FLC 93-386
Harris and Harris (1993) FLC 92-378,
Hickey and Hickey (2003) FLC 93-143
Levy & Prain [2012] FamCAFC 92
Marchant & Marchant [2012] FamCAFC 181
Stanford v Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466
Toft & Royce [2013] FamCA 372
Zschokke & Zschokke (1996) FLC 92-693

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

APPLICANT:

Ms Osferatu

RESPONDENT:

Mr Osferatu

FILE NUMBER:

SYC

2318

2011

DATE DELIVERED:

18 December 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

28, 29, 30 31 October, 1 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC; Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

On or before the 27^th January 2014 the husband is to pay to the wife’s solicitors, Watts McCray, for account to her, the sum of $850,000. Such sum is payable as interim property pursuant to a determination under section 79 and 80(1)(h) of the Act.
Should the husband require the wife to enter into a mortgage or other security arrangements in order to raise funds necessary to meet the orders made herein then the wife is to sign all documents necessary to complete such mortgage and/or security but only to the extent that the sum so secured is the amount of the sum to be paid to the wife by the orders made today together with the cost of obtaining the mortgage.
Each party has liberty to apply, on short notice, should there be any matter arising between the parties as to the operation of or implementation of the above orders.
The wife may apply on short notice for orders as may be necessary to enforce the order made by the court herein.
Paragraphs 3 and 4 of the wife’s application in a case filed 22 October 2013 are adjourned and may be relisted by the wife on short notice should the husband fail to meet his obligations under the orders made herein.
Paragraphs 7, 8 and 9 of the husband’s Response to the wife’s application in a case filed 22 October 2013 is consolidated with the orders sought by the husband…

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 Osferatu & Osferatu (No 3)

Details

AGLC: Osferatu & Osferatu (No 3) [2013] FamCA 1035
Case: [2013] FamCA 1035
Decision Date: 18 December 2013

CaseChat Overview and Summary

In the matter of Osferatu & Osferatu (No 3), Le Poer Trench J considered an application concerning property settlement between a husband and wife. The dispute centred on the wife's entitlement to a significant sum of money from the husband, which the court determined was payable as interim property.

The court was required to determine the quantum of interim property to be paid by the husband to the wife and to make orders regarding the security for such payment. Additionally, the court addressed the liberty to apply for both parties, the wife's ability to enforce the orders, and the adjournment and relisting of specific paragraphs of prior applications. The court also considered the consolidation of certain aspects of the husband's response with the principal property proceedings and the continuation of a previous order.

Le Poer Trench J ordered the husband to pay $850,000 to the wife's solicitors on or before 27 January 2014, designating this sum as interim property pursuant to sections 79 and 80(1)(h) of the relevant Act. The court further ordered that if the husband required the wife to enter into mortgage or other security arrangements to raise these funds, she was to sign all necessary documents, but only to the extent that the secured sum covered the ordered payment and the costs of obtaining the mortgage. Liberty to apply on short notice was granted to both parties for matters arising from the operation or implementation of these orders, and the wife was permitted to apply for enforcement orders. Certain paragraphs of prior applications were adjourned and could be relisted if the husband failed to meet his obligations, while other paragraphs were consolidated with the principal property proceedings. Finally, the court clarified that a previous order made on 31 May 2012 would continue until further order, without affecting other orders made on that date.

Orders

Orders of the court

On or before the 27th January 2014 the husband is to pay to the wife’s solicitors, Watts McCray, for account to her, the sum of $850,000. Such sum is payable as interim property pursuant to a determination under section 79 and 80(1)(h) of the Act.

Should the husband require the wife to enter into a mortgage or other security arrangements in order to raise funds necessary to meet the orders made herein then the wife is to sign all documents necessary to complete such mortgage and/or security but only to the extent that the sum so secured is the amount of the sum to be paid to the wife by the orders made today together with the cost of obtaining the mortgage.

Each party has liberty to apply, on short notice, should there be any matter arising between the parties as to the operation of or implementation of the above orders.

The wife may apply on short notice for orders as may be necessary to enforce the order made by the court herein.

Paragraphs 3 and 4 of the wife’s application in a case filed 22 October 2013 are adjourned and may be relisted by the wife on short notice should the husband fail to meet his obligations under the orders made herein.

Paragraphs 7, 8 and 9 of the husband’s Response to the wife’s application in a case filed 22 October 2013 is consolidated with the orders sought by the husband in the principal property proceeding.

For abundant clarity, the court orders that order 7 made 31 May 2012 is to continue until further order.

Nothing in order 7 hereof affects any of the other order made by the Court on 31 May 2012

Background

Background to the litigation

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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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