Passey and Passey & Anor - [2009] FamCA 616

FAMILY COURT OF AUSTRALIA

PASSEY & PASSEY AND ANOR

[2009] FamCA 616

FAMILY LAW - PROPERTY - Review of Judicial Registrar’s decision which required the applicant to pay equitable compensation for breach of trustee obligations - Applicant did not participate in the hearing before the Judicial Registrar and at the review hearing sought to rely on the defences of equitable estoppel, waiver and election or alternatively the doctrine of unconscionability but did not dispute the breach of trust - Applicant failed to establish his entitlement to relief as a consequence of any of the equitable defences upon which he relied - Equitable compensation ordered for breach of trust

Family Law Act 1975 (Cth) ss 44(3), 79, 106a
Family Law Rules 2004 r 17.03
Real Property Act 1900 (NSW) S 74I

Allen v Snyder (1977) 2 NSWLR 685
Bloch v Bloch (1981) 180 CLR 390
Calverley v Green (1984) 155 CLR 242
Commonwealth v Vermayen (1990) 170 CLR 394
Dann v Spurrier [1802] EngR 233; (1802) 7 Ves. Jun. 231; 32 E.R. 94
Gissing v Gissing [1971] AC 886
Re Dawson (deceased) [1966] 2 NSWR 211
Re Mulligan (deceased) [1998] 1 NZLR 481
Re Permanent Trustee Australia Ltd (1997) 137 FLR 190
Svenson vPayne (1945) 71 CLR 531
Target Holdings Ltd v Redferns (a firm) [1996] AC 421
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

APPLICANT:

Ms Passey

FIRST RESPONDENT:

Mr Passey

SECOND RESPONDENT:

Mr Fyve

FILE NUMBER:

(P)NCC

3672

2007

DATE DELIVERED:

15 July 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Ryan

HEARING DATE:

17 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr S Austin

SOLICITOR FOR THE APPLICANT:

H Firm

FIRST RESPONDENT:

No appearance

COUNSEL FOR THE SECOND RESPONDENT:

Mr T Bates

SOLICITOR FOR THE SECOND RESPONDENT:

Attwaters

Orders

That order 2 dated 6 May 2008 is set aside.
That judgment and verdict is entered in favour of Ms Passey against Mr Fyve in the sum of $133,257.00.
Until Mr Fyve satisfies judgment interest on the amount outstanding is payable at the applicable rate set out in the Family Law Rules 2004.
Subject to any application for costs all outstanding applications are dismissed.
Any application for costs by the applicant shall be made in writing and filed and served with supporting material and submissions no later than 24 July 2009.
That the second respondent shall file and serve material and submissions in reply by 7 August 2009.
That the applicant shall file and serve any further material and submissions in reply by 14 August 2009.
THE COURT NOTES the parties invite the Court to determine any costs application without further hearing.
The Principal Registrar of the Court is directed to provide a copy of my Reasons and note that at my request the Legal Services Commission of New South Wales and the President of the Law Society of New South Wales are asked to investigate the conduct of Mr G.

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 Passey and Passey & Anor

Details

AGLC: Passey and Passey & Anor [2009] FamCA 616
Case: [2009] FamCA 616
Decision Date: 15 July 2009

CaseChat Overview and Summary

In the matter of *Passey and Passey & Anor*, Justice Ryan of the Family Court of Australia reviewed a decision of a Judicial Registrar concerning a property dispute. The applicant, Mr Fyve, sought to challenge the Judicial Registrar's order that he pay equitable compensation for a breach of trustee obligations. Mr Fyve had not participated in the hearing before the Judicial Registrar and, at the review hearing, sought to rely on defences of equitable estoppel, waiver and election, or unconscionability, without disputing the breach of trust itself.

The primary legal issue before Justice Ryan was whether Mr Fyve had established any entitlement to relief based on the equitable defences he raised. The court was required to determine if these defences could negate or mitigate the equitable compensation ordered for his admitted breach of trust.

Justice Ryan found that Mr Fyve failed to establish his entitlement to relief under any of the equitable defences he relied upon. The court applied established principles of equitable estoppel, waiver, election, and unconscionability, concluding that the facts presented did not support their application in this instance. Consequently, the court upheld the finding of a breach of trust and the consequent obligation to pay equitable compensation.

The court set aside the order of the Judicial Registrar dated 6 May 2008 and entered judgment in favour of Ms Passey against Mr Fyve for the sum of $133,257.00, with judgment interest payable. All other outstanding applications were dismissed, subject to any application for costs, with directions given for the filing and service of submissions regarding costs. The court also noted that the parties invited the Court to determine any costs application without further hearing and directed the Principal Registrar to provide a copy of the reasons, noting a request for the Legal Services Commission of New South Wales and the President of the Law Society of New South Wales to investigate the conduct of Mr G.

Orders

Orders of the court

That order 2 dated 6 May 2008 is set aside.

That judgment and verdict is entered in favour of Ms Passey against Mr Fyve in the sum of $133,257.00.

Until Mr Fyve satisfies judgment interest on the amount outstanding is payable at the applicable rate set out in the Family Law Rules 2004.

Subject to any application for costs all outstanding applications are dismissed.

Any application for costs by the applicant shall be made in writing and filed and served with supporting material and submissions no later than 24 July 2009.

That the second respondent shall file and serve material and submissions in reply by 7 August 2009.

That the applicant shall file and serve any further material and submissions in reply by 14 August 2009.

THE COURT NOTES the parties invite the Court to determine any costs application without further hearing.

The Principal Registrar of the Court is directed to provide a copy of my Reasons and note that at my request the Legal Services Commission of New South Wales and the President of the Law Society of New South Wales are asked to investigate the conduct of Mr G.

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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