Pencious & Pencious and Anor - [2014] FamCAFC 171

FAMILY COURT OF AUSTRALIA

PENCIOUS & PENCIOUS AND ANOR

[2014] FamCAFC 171

FAMILY LAW – APPEAL – PROPERTY – where the husband appeals orders effecting a property settlement between the parties – where the husband contends the trial judge failed to give sufficient weight to various contributions of the husband – whether the trial judge so erred – where no error demonstrated – where the husband further submitted that the trial judge erred in the treatment of various loans alleged by the husband – where no error demonstrated – where the final challenge made by the husband was to the weight given by the trial judge to the wife’s interest in a discretionary trust – whether the trial judge so erred – where no error demonstrated – appeal dismissed – husband ordered to pay the wife’s and the intervener’s costs of the appeal.

FAMILY LAW – APPEAL – COSTS – where the husband appeals an order that he pay the intervener’s costs – where the husband contends that the intervener chose to participate in the proceedings and its participation was not required – where the husband sought orders that directly affected the intervener – where it was proper for the intervener to participate in the proceedings – where no error demonstrated – appeal dismissed – husband ordered to pay the intervener’s costs of the appeal.

Family Law Act 1975 (Cth), s 79, s 75(2)

Albion Hotel Pty Ltd v Federal Commissioner of Taxation (1965) 115 CLR 78
AC and Ors & VC and Anor (2013) 49 Fam LR 276
De Angelis & De Angelis (2003) FLC 93-133
Fox v Percy (2003) 214 CLR 118
Gronow v Gronow (1979) 144 CLR 513
Kelly & Kelly (No 2) (1981) FLC 91-108
Kowaliw and Kowaliw (1981) FLC 91-092
Lend Lease Corporation Ltd v Commissioner of Taxation (1990) 95 ALR 427
Norbis v Norbis (1986) 161 CLR 513
Prantage & Prantage (2013) Fam LR 197
Rosati & Rosati (1998) FLC 92-804
Townsend and Townsend (1995) FLC 92-569
White and Tulloch v White (1995) FLC 92-640

APPELLANT:

Mr Pencious

RESPONDENT:

Ms Pencious

INTERVENER:

Searle Pty Ltd

FILE NUMBER:

MLC

11069

2008

FIRST APPEAL NUMBER:

SOA

2013

SECOND APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

10 September 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Murphy and Tree JJ

HEARING DATE:

2 July 2014 and written submissions filed 9 and 16 July 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 May 2013 and 13 September 2013

LOWER COURT MNC:

[2013] FamCA 375
[2013] FamCA 754

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Dickson QC

SOLICITOR FOR THE APPELLANT:

Altona Legal

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Adrian Abrahams Family Lawyers

COUNSEL FOR THE INTERVENER:

Mr Flynn

SOLICITOR FOR THE INTERVENER:

Halperin & Co Pty Ltd Lawyers

Orders

In respect of the appeal in SOA 36 of 2013:
(a)The appeal be dismissed;
(b)The appellant husband pay the respondent wife’s costs of…

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.

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Details

Case: [2014] FamCAFC 171
Decision Date: 10 September 2014

CaseChat Overview and Summary

In the matter of Pencious & Pencious and Anor, the husband appealed against the orders made in the Family Court regarding a property settlement between the parties. The husband contested the trial judge’s allocation of property and argued that the judge did not sufficiently account for his contributions. He also argued that the judge mishandled certain loans and the wife's interest in a discretionary trust. The wife and an intervener responded, maintaining that the trial judge's decisions were correct and that the intervener's participation in the proceedings was justified.

The legal issues before the court were whether the trial judge erred in the assessment of the husband's contributions, the treatment of the loans, and the wife's interest in the discretionary trust. The court examined the evidence and submissions presented and found no basis for the husband's claims of error. The court held that the trial judge correctly evaluated the contributions and the loans, and properly considered the wife's interest in the trust. The intervener's participation was also deemed appropriate given the husband's actions.

The court dismissed the husband's appeal and ordered him to pay the wife's and the intervener's costs of the appeal. This included the costs for the separate appeal concerning the order that the husband pay the intervener’s costs. The court found no merit in the husband's arguments and upheld the original orders made by the trial judge.

The orders of the court were that the appeals be dismissed, and the husband pay the wife's and the intervener's costs of the appeals, either by agreement or as assessed if no agreement is reached.

Orders

Orders of the court

In respect of the appeal in SOA 36 of 2013:

(a) The appeal be dismissed;

(b) The appellant husband pay the respondent wife’s costs of and incidental to the appeal in an amount agreed in writing or, failing agreement, as assessed; and,

(c) The appellant husband pay the intervener’s costs of and incidental to the appeal in an amount agreed in writing or, failing agreement, as assessed.

In respect of the appeal in SOA 55 of 2013:

(a) The appeal be dismissed; and,

(b) The appellant husband pay the intervener’s costs of and incidental to the appeal in an amount agreed in writing or, failing agreement, as assessed.

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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