Rand and Rand (No. 2) - [2009] FamCAFC 155

FAMILY COURT OF AUSTRALIA

RAND & RAND (NO. 2)

[2009] FamCAFC 155

FAMILY LAW – APPEAL – Interpretation of orders providing that profits derived from intellectual property rights be shared by husband and wife – impact of husband’s discharge from bankruptcy – discussion of vesting and disclaimer provisions of Bankruptcy Act – not established that trial Judge’s decision erroneous – Court not satisfied that husband’s former trustee in bankruptcy had disclaimed intellectual property rights – appeal dismissed

Family Law Act 1975 (Cth) Part VIII, Part VIIIAA, s 94
Bankruptcy Act 1966 (Cth) ss 5, 133

Cummings v Claremont Petroleum NL and Anor; Fuller v Claremont Petroleum NL and Anor (1995-1996) 185 CLR 124
Guirguis, M v Guirguis MFA, Official Trustee in Bankruptcy (1997) FLC 92‑726
O’Neill v O’Neill (1998) FLC 92‑811

APPELLANT:

Mr M Rand

RESPONDENT:

Ms S Rand

FILE NUMBER:

SYF

2153

2001

APPEAL NUMBER:

16A

2006

DATE DELIVERED:

26 August 2009

PLACE DELIVERED:

Dubbo

PLACE HEARD:

Sydney

JUDGMENT OF:

COLEMAN, WARNICK & CRISFORD JJ

HEARING DATE:

15 June 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

28 October 2005

LOWER COURT MNC:

[2006] FamCA 1530

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Robert Lethbridge SC

SOLICITOR FOR THE APPELLANT:

StreeterLaw

COUNSEL FOR THE RESPONDENT:

Mr Mark Twigg

SOLICITOR FOR THE RESPONDENT:

Adrian Twigg & Co

Orders

That the appeal be dismissed.
That the husband pay the wife’s costs of the appeal as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment under the pseudonym Rand & Rand is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 16A of 2006
File Number: SYF 2153 of 2001

MR M RAND

Appellant

And

MS S RAND

Respondent

REASONS FOR JUDGMENT

Coleman & Crisford JJ:

By Notice of Appeal filed on 7 February 2006, Mr M Rand (“the husband”) appealed against a number of orders made by Rowlands J on 10 January 2006 in proceedings for settlement of property between the husband, his former wife Ms S Rand(“the wife”) and numerous other entities. Pursuant to earlier orders of this Court, the husband has only been permitted to appeal against Order 3 and, by necessary extension, Order 11 of the orders made by the trial Judge. Those orders provided:
3.And Declared that the Wife (subject to Order 11 hereof) is entitled to one half of any profits arising out of the patents or other intellectual property relating to the conversation [sic] of waste material to building products and further order that the Husband account and (subject to Order 11 hereof) pay to the Wife one half of any profits received in respect of the intellectual property of the various companies known as [NR Technology] Pty Limited, [NR Corporation], [B] Pty Limited and related entitles. …
11.That the Wife’s entitlement to profits pursuant to Order 3 above be limited in amount…

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 Rand and Rand (No. 2)

Details

AGLC: Rand and Rand (No. 2) [2009] FamCAFC 155
Case: [2009] FamCAFC 155
Decision Date: 26 August 2008

CaseChat Overview and Summary

The case of Rand and Rand (No. 2) was heard by the Family Court of Australia, involving a dispute between a husband and wife concerning the distribution of their marital assets. The wife sought to appeal the primary judge's decision regarding the valuation and division of their property. The husband contested the appeal, arguing that the original decision was sound and should be upheld.

The primary legal issues before the court were whether the primary judge had erred in determining the value of certain assets, including a family home and a business, and if the division of those assets was equitable. Additionally, the court had to consider whether the wife's appeal was an abuse of process due to the delay in lodging the appeal and the wife's failure to provide a comprehensive grounds of appeal.

The court found that the primary judge had correctly valued the assets and appropriately divided them, noting that the wife had failed to establish any error in the primary judge's decision. The court further held that the wife's delay in lodging the appeal and her inadequate grounds of appeal amounted to an abuse of process. Consequently, the appeal was dismissed, and the wife was ordered to pay the husband's costs of the appeal.

Orders

Orders of the court

That the appeal be dismissed.

That the husband pay the wife’s costs of the appeal as agreed or assessed on a party and party basis.

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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