Pera & Pera - [2007] FamCA 783

FAMILY COURT OF AUSTRALIA

PERA & PERA

[2007] FamCA 783

FAMILY LAW – ORDERS - Enforcement of orders - Variation of property orders where expenses to discharge a mortgage not explicitly referred to in orders - Machinery provisions - Superannuation: party entitled to "the fund" in final orders but subsequent dispute about what was in the fund - Right of party to seek to recover superannuation fund assets rather than trustee

FAMILY LAW – COSTS - Costs thrown away where party not ready to proceed - The Elias “principle”.

Family Law Act 1975 (Cth)

Dawes (1990) FLC 92-108; 13 Fam LR 599
Elias v Elias (1977) FLC 90-267
Fountain v Alexander (1982) 8 Fam LR 67
Jordan (1997) FLC 92-736; 21 Fam LR 382
Langford v Coleman 1993) FLC 92-346; (1992) 16 Fam LR 228
Molier and Van Wyke (1980) FLC 90-911

APPLICANT:

MR PERA

RESPONDENT:

MRS PERA

FILE NUMBER:

MLF

6059

2003

DATE DELIVERED:

3 AUGUST 2007

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

31 JULY 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR MORT

SOLICITOR FOR THE APPLICANT:

NEDOVIC & CO

COUNSEL FOR THE RESPONDENT:

MR HAMMETT

SOLICITOR FOR THE RESPONDENT:

OAKFAIR LAWYERS

Orders

That the wife forthwith make available to the husband for delivery to the P Superannuation Fund, the following paintings (or an agreed sum of money in lieu thereof):
(a)The painting known to the husband as “[R]” which is called by the wife “[N]”; and
(b) The painting known as “[W]”.
That by 4pm on 17 August 2007:
(a)The wife be responsible for and pay one half of the “Delayed establishment fee” sought by AT Limited (known as AT); and
(b)The husband be responsible for and pay the other one half of the “Delayed establishment fee” and the other fees required by AT referred to in the email of Mr D to Mr M sent on 28 June 2007 at 12.17 pm.
That the wife pay the husband’s costs thrown away in respect of the hearing on 5 July 2007.
That for the purposes of paragraph 3 of these orders, the costs thrown away shall be the husband’s counsel’s marked brief fee and any solicitor costs incurred by the husband fixed according to the Schedule to the Family Law Rules 2004.
That the application of the husband filed 14 June 2006 and the response of the wife filed 28 June 2007 be otherwise dismissed save as to any application for costs by either party.
That any issue as to costs be determined upon written submission to the Honourable Justice Cronin and any such application for such costs:
(a)Be filed with the Associate to Justice Cronin by 4 pm on 17 August 2007, and
(b) Be served upon the other party by that date.
That in the event that an application is made for costs by either party pursuant to paragraph 6 hereof, the other party shall have until 4 pm on 24 August 2007 to reply.
If…

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 Pera & Pera

Details

AGLC: Pera & Pera [2007] FamCA 783
Case: [2007] FamCA 783
Decision Date: 3 August 2007

CaseChat Overview and Summary

In the matter of *Pera & Pera*, heard by Justice Cronin, the dispute concerned the enforcement and variation of property orders, specifically relating to the discharge of a mortgage and the division of superannuation assets. The wife was ordered to make certain paintings available to the husband for delivery to a superannuation fund, or an agreed sum in lieu thereof. Additionally, the parties were to share responsibility for fees associated with the superannuation fund.

The court was required to determine whether the property orders could be varied to account for expenses not explicitly mentioned, such as those for discharging a mortgage, and to resolve disputes regarding the contents of a superannuation fund where one party was entitled to "the fund" in the final orders. The court also considered the right of a party to seek recovery of superannuation assets directly, rather than through the trustee. Furthermore, the court addressed the issue of costs thrown away due to a party not being ready to proceed, applying the principle established in *Elias*.

Justice Cronin reasoned that the property orders could be varied to address the expenses for discharging the mortgage, treating these as machinery provisions necessary for the effective implementation of the orders. The court also clarified that a party entitled to a superannuation fund could seek to recover assets directly. Regarding costs, the court ordered the wife to pay the husband's costs thrown away for the hearing on 5 July 2007, specifying these costs to include the marked brief fee and solicitor costs as per the Family Law Rules. The husband's application and the wife's response were otherwise dismissed, with further submissions on costs to be made by a specified date.

Orders

Orders of the court

That the wife forthwith make available to the husband for delivery to the P Superannuation Fund, the following paintings (or an agreed sum of money in lieu thereof):

(a) The painting known to the husband as “[R]” which is called by the wife “[N]”; and

(b) The painting known as “[W]”.

That by 4pm on 17 August 2007:

(a) The wife be responsible for and pay one half of the “Delayed establishment fee” sought by AT Limited (known as AT); and

(b) The husband be responsible for and pay the other one half of the “Delayed establishment fee” and the other fees required by AT referred to in the email of Mr D to Mr M sent on 28 June 2007 at 12.17 pm.

That the wife pay the husband’s costs thrown away in respect of the hearing on 5 July 2007.

That for the purposes of paragraph 3 of these orders, the costs thrown away shall be the husband’s counsel’s marked brief fee and any solicitor costs incurred by the husband fixed according to the Schedule to the Family Law Rules 2004.

That the application of the husband filed 14 June 2006 and the response of the wife filed 28 June 2007 be otherwise dismissed save as to any application for costs by either party.

That any issue as to costs be determined upon written submission to the Honourable Justice Cronin and any such application for such costs:

(a) Be filed with the Associate to Justice Cronin by 4 pm on 17 August 2007, and

(b) Be served upon the other party by that date.

That in the event that an application is made for costs by either party pursuant to paragraph 6 hereof, the other party shall have until 4 pm on 24 August 2007 to reply.

If no further application by either party is filed by the date referred to in paragraph 6, all applications shall be deemed to be dismissed.

That all proceedings be otherwise removed from the list of cases awaiting a hearing.

IT IS CERTIFIED

10.

That pursuant to Rule 19.50 of the Family Law Rules it was reasonable to engage a lawyer as counsel.

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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