Reamy and Anor and Milne

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REAMY & ANOR & MILNE [2012] FMCAfam 143

FAMILY LAW – Question of construction of s.90UM – exercise of discretion required on issue of setting aside BFA – principles of equity applicable to rescission apply – can restituto in integrum be effected or the parties be substantially restored to the status quo – material differences between s.121 Bankruptcy Act 1966 and s.90UM Family Law Act 1975 – consideration of practice relevant to non suit.

Bankruptcy Act 1966 (Cth), s.121
Family Law Act 1975 (Cth), s.90UM

Alani v Kruger (1955) 94 CLR 216
Alexander v Rayson [1936] 1KB 169
Bell Group Ltd (In Liq) v Westpac Banking Corporation (No.9) (2008) 39 WAR 1
Cadogan v Kennett (1776) 2 Cowp 432
Cannane v Cannane Pty Ltd (1998) 192 CLR 557
Combis, Trustee of the Property of Peter Jensen (a Bankrupt) v Jensen [2009] FCA 778
Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17
James v ANZ Banking Group Ltd (1985-1986) 64 ALR 347
Jones v Dunkel (1958) 101 CLR 298
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation(No.3) [2011] FCA 366
Re Barnes; Ex parte Stapleton [1962] Qd R 231
Reamy & Reamy v Milne & Anor [2010] QSC 283

First Applicant: MR REAMY

Second Applicant: MS REAMY

Respondent: MR MILNE

File Number: BRC 10962 of 2010

Judgment of: Burnett FM

Hearing date: 9 February 2011

Date of Last Submission: 9 February 2011

Delivered at: Brisbane

Delivered on: 24 February 2012

REPRESENTATION

Counsel for the Applicant: Mr M.R. Bland

Solicitors for the Applicant: QBM Lawyers

Counsel for the Respondent: Dr A.J. Greinke

Solicitors for the Respondent: Morgan Conley Solicitors

ORDERS

1. Application filed 22 November 2010 be adjourned for directions to 9.30am on 14 March 2012.

2. Respondent’s application for summary dismissal of the application filed 22 November 2010 be dismissed.

3. Each of the applicant and respondent agree proposed orders for directions for the prosecution of the application on or before 4.00pm on 9 March 2012.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 10962 of 2010

MR REAMY

First Applicant

MS REAMY

Second Applicant

And

MR MILNE

Respondent

REASONS FOR JUDGMENT

Introduction

1. In 2010 Mr Milne was a defendant to proceedings brought against him in the Supreme Court of Queensland by the applicants, Mr Reamy and Ms Reamy.  By those proceedings the applicants sought to recover from Mr Milne and his associated corporate entity, [W] a sum of approximately $350,000.00 damages for negligent investment advice.  His defence was unsuccessful and a judgment of $321,323.78 together the with plaintiff’s costs in the proceeding on an indemnity basis were awarded against Mr Milne and [W].

2. In 2007 Mr Milne left his wife and took up with Ms A, an employee of [W] and commenced a de facto relationship with her.  On or…