Petridis and Petridis - [2019] FamCA 484

FAMILY COURT OF AUSTRALIA

PETRIDIS & PETRIDIS [2019] FamCA 484

FAMILY LAW – PROPERTY – Variation to an existing dispute resolution order sought – where the application is wholly unsuccessful – where the enforcement of existing interlocutory orders is just.

Family Law Act 1975 (Cth) s 114

Adam P. Brown Male Fashion Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.
In the Marriage of Farr (1976) FLC 90-133.
Iphostrou & Iphostrou and Ors[2011] FamCA 20.
Jeeves & Jeeves (No 2) [2008] FamCA 1148.
Kelleher & Anderson[2007] FamCA 137.
Mertens & Mertens [2016] FamCAFC 136.
Philips & Samuels [2017] FamCA 125.
Martin & Martin and Ors [2013] FamCA 222.
Tripp & Tripp [2013] FamCA 1107.
Woodgate (Trustee) v Northop Hall Pty Ltd [2016] FCA 370.

APPLICANT: Ms Petridis

RESPONDENT: Mr Petridis

INTERVENOR: Mr Tamson as Trustee in Bankruptcy for Mr Petridis

FILE NUMBER: HBC 133 of 2018

DATE DELIVERED: 23 July 2019

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: McClelland DCJ

HEARING DATE: 5 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr McKenna

THE FIRST RESPONDENT IN PERSON

COUNSEL FOR THE INTERVENOR: Mr Trezise

Orders

The Court declares that the dispute resolution procedures set out in paragraph (d) of the document “Terms of Proposed Sale of Real Estate” annexed to the consent orders made on 3 July 2018 are applicable to the dispute between the parties documented in the Application in a Case by the Fourth Respondent, dated 2 July 2019.
The Fourth Respondents’ Application in a Case dated 2 July 2019 and the wife’s oral application made on 5 July 2019 consistent with that set out in her Affidavit filed on 4 July 2019 in response to the aforementioned Application in a Case are both dismissed.

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 Petridis & Petridis 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).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 133 of 2018

Ms Petridis

Applicant
And

Mr Petridis

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns competing applications by the Fourth Respondent and the Applicant wife, Ms Petridis (‘the wife’) for orders relating to the sale of two properties that are the subject of these proceedings. The Trustee in Bankruptcy for Mr Petridis, the Applicant’s husband, is the Fourth Respondent (‘the trustee’). Mr Petridis (‘the husband’) was given a limited right of appearance for the purpose of today’s hearing. He argued that, for various reasons including fraud, that his…

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 Petridis and Petridis

Details

AGLC: Petridis and Petridis [2019] FamCA 484
Case: [2019] FamCA 484
Decision Date: 23 July 2019

CaseChat Overview and Summary

In the matter of *Petridis and Petridis*, heard by McClelland DCJ, the dispute concerned the applicability of specific dispute resolution procedures to a disagreement between the parties. The Fourth Respondent initiated proceedings with an Application in a Case dated 2 July 2019, which the wife responded to with an oral application and an affidavit filed on 4 July 2019.

The central legal issue before the court was whether the dispute resolution procedures stipulated in paragraph (d) of the "Terms of Proposed Sale of Real Estate" document, annexed to consent orders made on 3 July 2018, were applicable to the dispute that had arisen. This required the court to interpret the scope and intent of the dispute resolution clause in light of the subsequent application.

McClelland DCJ reasoned that the dispute resolution procedures outlined in paragraph (d) were indeed applicable to the current disagreement. Consequently, the court dismissed both the Fourth Respondent's Application in a Case dated 2 July 2019 and the wife's subsequent oral application and affidavit. The court declared that the specified dispute resolution procedures were applicable to the dispute.

Orders

Orders of the court

The Court declares that the dispute resolution procedures set out in paragraph (d) of the document “Terms of Proposed Sale of Real Estate” annexed to the consent orders made on 3 July 2018 are applicable to the dispute between the parties documented in the Application in a Case by the Fourth Respondent, dated 2 July 2019.

The Fourth Respondents’ Application in a Case dated 2 July 2019 and the wife’s oral application made on 5 July 2019 consistent with that set out in her Affidavit filed on 4 July 2019 in response to the aforementioned Application in a Case are both dismissed.

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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