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PADANOWSKA & PADANOWSKI (No.3)

PADANOWSKA & PADANOWSKI (No.3)

Case [2020] FCCA 3451 23 December 2020

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FEDERAL CIRCUIT COURT OF AUSTRALIA

PADANOWSKA & PADANOWSKI (No.3)

[2020] FCCA 3451

Catchwords:
FAMILY LAW – Injunctions – preservation of property – balance of convenience – risk of asset dissipation – where first respondent has disbursed without the applicant’s consent or knowledge approximately 83% of the proceeds of sale of the former matrimonial home – where current solicitors acting were paid legal fees from the proceeds of sale – where first respondent’s brother and father were paid back an alleged loan from the proceeds of sale – where applicant seeks injunctive relief – matters to be considered.

INJUNCTION – Application to restrain solicitor from acting – interests of the administration of justice.

Legislation:

Family Law Act 1975 (Cth), ss.79, 106B, 114

Evidence Act 1995 (Cth) s.75

Cases cited:

Blue Seas Investments Pty Ltd v Mitchell & Ors [1999] FamCA 745

Harris & Harris; Re Banaco Pty Ltd (No. 2) (1981) FLC 91-100

Holborow v MacDonald Rudder [2002] WASC 265

Jones v Dunkel [1959] HCA 8

Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181

Martin & Martin & Ors [2013] FamCA 222

Meeks & Meeks & Anor [2019] FCCA 638

Mitchell v Burrell [2008] NSWSC 772

Naczek & Dowler [2011] FamCAFC 179

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia

[1998] HCA 30

Sheehan & Sheehan [2019] FCCA 1085

Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729

Applicant:

MS PADANOWSKA

First respondent:

MR PADANOWSKI

Second Respondent:

BN LAW LTD T/AS BARRY.NILSSON

Third Respondent:

MR DALECKI

Fourth Respondent:

MR BB PADANOWSKI

Fifth Respondent:

MR CC PADANOWSKI

File Number:

PAC 5760 of 2019

Judgment of:

Judge Obradovic

Hearing date:

2 December 2020

Date of Last Submission:

2 December 2020

Delivered at:

Parramatta

Delivered on:

23 December 2020

REPRESENTATION

Counsel for the Applicant:

Mr Fermanis

Solicitors for the Applicant:

Phillip A Wilkins & Associates

Appearing for the First respondent:

Mr Dalecki

Solicitors for the First respondent:

Barry Nilsson Lawyers

Counsel for the Second and Third Respondents:

Mr Williams QC

Appearing for the Fourth Respondent:

In person

Appearing for the Fifth Respondent:

In person

THE COURT ORDERS THAT:

Pursuant to section 114 of the Family Law Act 1975 (Cth):
(a)BN Law Limited trading as Barry.Nilsson is restrained by injunction from transferring, dispensing or otherwise dealing with the sum of $65,704.23 received by it from the first respondent on or about 10 September 2020;
(b)Mr BB Padanowski is restrained by injunction from transferring, dispensing or otherwise dealing with the sum of $20,000 received by him from the first respondent on or about 3 September 2020; and
(c)Mr CC Padanowski is restrained by injunction from transferring, dispensing or otherwise dealing with the sum of $50,000 received by him from the first respondent on or about 2 September 2020.
Within 48 hours:
(a)BN Law Limited trading as Barry.Nilsson shall transfer the sum of $65,704.23 to the trust account of Phillip A. Wilkins & Associates;
(b)Mr BB Padanowski shall transfer the sum of $20,000 to the trust account of Phillip…

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 PADANOWSKA & PADANOWSKI (No.3)

Details

AGLC: PADANOWSKA & PADANOWSKI (No.3) [2020] FCCA 3451
Case: [2020] FCCA 3451
Decision Date: 23 December 2020

CaseChat Overview and Summary

In the matter of *Padanowska & Padanowski (No.3)*, the applicant sought injunctive relief against the first respondent, Mr BB Padanowski, and others, concerning the disbursement of proceeds from the sale of the former matrimonial home. The dispute arose after the first respondent allegedly disbursed approximately 83% of these proceeds without the applicant's consent or knowledge, including payments to his current solicitors for legal fees and repayment of alleged loans to his brother and father.

The court was required to determine whether to grant injunctive relief to preserve property, considering the balance of convenience and the risk of asset dissipation. A further issue was whether to restrain the first respondent's solicitors from acting in the proceedings, in the interests of the administration of justice.

Judge Obradovic applied the principles governing the grant of injunctions, particularly in the context of family law proceedings under section 114 of the *Family Law Act 1975* (Cth). The court found that the first respondent's actions in disbursing significant funds without the applicant's knowledge or consent created a sufficient risk of asset dissipation, tipping the balance of convenience in favour of granting injunctive relief. The court also considered the potential prejudice to the administration of justice if the solicitors were permitted to continue acting for the first respondent.

Consequently, the court ordered that BN Law Limited trading as Barry.Nilsson, Mr BB Padanowski, and Mr CC Padanowski be restrained from dealing with specific sums of money they had received. Furthermore, BN Law Limited and Mr Dalecki were restrained from acting for the first respondent in the proceedings. The applicant's application for costs was reserved for determination at the conclusion of the substantive proceedings, which were scheduled for a final hearing in May 2021.

Orders

Orders of the court

Pursuant to section 114 of the Family Law Act 1975 (Cth):

(a) BN Law Limited trading as Barry.Nilsson is restrained by injunction from transferring, dispensing or otherwise dealing with the sum of $65,704.23 received by it from the first respondent on or about 10 September 2020;

(b) Mr BB Padanowski is restrained by injunction from transferring, dispensing or otherwise dealing with the sum of $20,000 received by him from the first respondent on or about 3 September 2020; and

(c) Mr CC Padanowski is restrained by injunction from transferring, dispensing or otherwise dealing with the sum of $50,000 received by him from the first respondent on or about 2 September 2020.

Within 48 hours:

(a) BN Law Limited trading as Barry.Nilsson shall transfer the sum of $65,704.23 to the trust account of Phillip A. Wilkins & Associates;

(b) Mr BB Padanowski shall transfer the sum of $20,000 to the trust account of Phillip A. Wilkins & Associates; and

BN Law Limited trading as Barry.Nilsson and Mr Dalecki are restrained by injunction from acting for and on behalf of the first respondent in these proceedings.

The applicant’s application for costs is stood over to be determined at the conclusion of the substantive proceedings.

THE COURT NOTES THAT:

A. The proceedings are listed for final hearing at 10am on 10, 11, 12 and 13 May 2021, as a reserve.

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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Citations

AGLC Citation

PADANOWSKA & PADANOWSKI (No.3) [2020] FCCA 3451

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Cases cited in this decision · 14 of 14 shown

SHEEHAN & SHEEHAN
[2019] FCCA 1085 Para 1

…rom acting for a party in proceedings before it where the interests of justice so require.[5] [5] See for example the discussion in Sheehan & Sheehan [2019] FCCA 1085…
Meeks and Meeks and Anor
[2019] FCCA 638 Para 4

…The relevant principles in respect such injunctions may be summarised as follows[20]: [20] Meeks & Meeks & Anor [2019] FCCA 638 per Judge Brown at [40] a)It is a drastic remedy, which should not be granted lightly; b)This is because it imposes a severe restriction upon a party’s entitlement to deal with his/her as…
Martin & Martin and Ors
[2013] FamCA 222 Para 5

…ages should be required.[21] [21] Blue Seas Investments Pty Ltd v Mitchell & Ors [1999] FamCA 745; (1999) FLC 92 -856; see also Martin & Martin & Ors [2013] FamCA 222…
Naczek & Dowler
[2011] FamCAFC 179

…Ors [2005] NSWSC 1181 Martin & Martin & Ors [2013] FamCA 222 Meeks & Meeks & Anor [2019] FCCA 638 Mitchell v Burrell [2008] NSWSC 772 Naczek & Dowler [2011] FamCAFC 179 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30 Sheehan & Sheehan [2019] FCCA 1085 Shercliff v Engadine Accept…
Mitchell v Burrell
[2008] NSWSC 772 Para 5

…aterial witness, even on a controversial matter, does not of itself justify restraining a solicitor from continuing to act.[7] [7] Mitchell v Burrell [2008] NSWSC 772 per Brereton J at [20] (“ Mitchell ”)…
Kallinicos v Hunt
[2006] NSWSC 723 Para 2

…e, including the appearance of justice.[6] [6] Naczek & Dowler [2011] FACAFC 179 (“ Naczek ”); Kallinicos & Anor v Hunt & Ors; [2005] NSWSC 1181; (2005) 64 NSWLR 561 per Brereton J at [76] (“ Kallinicos ”)…
Kallinicos v Hunt
[2005] NSWSC 1181 Para 2

…istration of justice, including the appearance of justice.[6] [6] Naczek & Dowler [2011] FACAFC 179 (“ Naczek ”); Kallinicos & Anor v Hunt & Ors; [2005] NSWSC 1181; (2005) 64 NSWLR 561 per Brereton J at [76] (“ Kallinicos ”)…
Holborow v MacDonald Rudder
[2002] WASC 265 Para 10

…nt’s opponent[10], the paramount duty of all legal practitioners is to the proper administration of justice.[11] [10] Holborow v MacDonald Rudder [2002] WASC 265 at [30] referred to in Naczek at [68]. [11] Rule 3 of the Legal Profession (Solicitors) Conduct Rules 2015…
Cardile v LED Builders Pty Ltd
[1999] HCA 18 Para 3

…Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1; Cardile v LE Builders Pty Ltd [199] HCA 18; (1999) 198 CLR 380…
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia
[1998] HCA 31 Para 3

…aid in the administration of justice.[19] [19] See generally Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1; Cardile v LE Builders Pty Ltd [199] HCA 18; (1999) 198 CLR 380…
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia
[1998] HCA 30 Para 3

…ing order is to aid in the administration of justice.[19] [19] See generally Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1; Cardile v LE Builders Pty Ltd [199] HCA 18; (1999) 198 CLR 380…
Jones v Dunkel
[1959] HCA 8 Para 10

…In the circumstances of this case the Court draws a Jones v Dunkel[4] inference in respect of evidence in the respondents’ cases. [4] [1959] HCA 8…
[1999] FAMCA 745
[1999] FAMCA 745 Para 5

…pplicant. In the circumstances of this case, no undertaking as to damages should be required.[21] [21] Blue Seas Investments Pty Ltd v Mitchell & Ors [1999] FamCA 745; (1999) FLC 92 -856; see also Martin & Martin & Ors [2013] FamCA 222…
[1994] 1 WLR 512
[1994] 1 WLR 512 Para 11

…[12]Dal Pont, Lawyers Professional Responsibility (Thomson Reuters, 5 th ed, 2013), [1.75] [13] Ibid at [1.85] quoting Bolton v Law Society [1994] 1 WLR 512 at 519 per Sir Thomas Bingham MR [14] Ibid at [1.85]…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
106B, 114, 79 4 mentions (from Para 1)
Evidence Act 1995 (Cth)
75 1 mention (from Para 1)
Legal Profession (Solicitors) Conduct Rules 2015 (ACT)
1 mention (from Para 10)