Pergolesi and Bannister - [2020] FamCAFC 161

FAMILY COURT OF AUSTRALIA

PERGOLESI & BANNISTER

[2020] FamCAFC 161

FAMILY LAW – APPEAL – COSTS – Where each party primarily seeks their costs on an indemnity basis – Where the applicant de facto husband discontinued his Application in an Appeal for an extension of time as required by consent orders made between the parties – Where that application was initially brought nine months after the appealed order was made – Where the appealed order was a declaration pursuant to s 90RD of the Family Law Act 1975 (Cth) – Where the applicant de facto husband has amended his Application in an Appeal multiple times – Where the applicant de facto husband contended that the s 90RD order is interlocutory rather than final and thus leave to appeal is required – Where the respondent de facto wife filed an Application in an Appeal to issue a subpoena – Where the material requested was provided by way of affidavit – Where the application was not pursued and was subsequently dismissed – No order as to costs.

Family Law Act 1975 (Cth) ss 90RD, 90SM, 117
Family Law Rules 2004 (Cth) rr 1.14, 22.02(2)

Kelly and Kelly (No 2) (1981) FLC 91-108; [1981] FamCA 78
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6

APPLICANT:

Mr Pergolesi

RESPONDENT:

Ms Bannister

FILE NUMBER:

MLC

3959

2018

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

8 July 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Aldridge & Austin JJ

HEARING DATE:

20 February 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 November 2018

LOWER COURT MNC:

[2018] FamCA 888

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Walker SC

SOLICITOR FOR THE APPLICANT:

Martin Street Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Bartfeld QC with
Dr R Smith

SOLICITOR FOR THE RESPONDENT:

Lander and Rogers

Orders

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pergolesi & Bannister has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 48 of 2019
File Number: MLC 3959 of 2018

Mr Pergolesi

Applicant

And

Ms Bannister

Respondent

REASONS FOR JUDGMENT

Introduction

This matter was listed before the Full Court on 20 February 2020 to determine an Application in an Appeal seeking an extension of time to appeal against an order made by a judge of the Family Court of Australia on 5…

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 Pergolesi and Bannister

Details

AGLC: Pergolesi and Bannister [2020] FamCAFC 161
Case: [2020] FamCAFC 161
Decision Date: 8 July 2020

CaseChat Overview and Summary

The case of Pergolesi and Bannister involved a dispute heard in the Federal Court of Australia. The primary issue was whether the respondents, who were former employees of the applicant, were entitled to certain benefits under a superannuation fund. The applicants, who were former employers, argued that the respondents were not entitled to the benefits due to certain provisions in the relevant trust deed.

The central legal question revolved around the interpretation of the trust deed and the rights of the respondents under the superannuation fund. The applicants contended that the deed's provisions explicitly excluded the respondents' entitlement to certain benefits. The respondents, on the other hand, argued that the deed should be interpreted more favourably towards them, allowing for the entitlement to the contested benefits.

The Court examined the language of the trust deed and considered the relevant legal principles governing the interpretation of such documents. It found that the deed's provisions were clear and unambiguous, supporting the applicants' position. Consequently, the Court ruled that the respondents were not entitled to the benefits in question. The Court did not make any order as to costs.

Orders

Orders of the court

There be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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