RYLAN & SHELBY - [2020] FamCA 965

FAMILY COURT OF AUSTRALIA

RYLAN & SHELBY

[2020] FamCA 965

FAMILY LAW – PROPERTY – Interim Application

Family Law Act 1975 (Cth)

Luadaka v Luadaka (1998) FLC 92-830
Malcher & Malcher(Security for Costs) (2017) FLC 93-803
Mullen & De Bry (2006) FLC 93-293
Norton & Locke (2013) FLC 93-567
Waugh & Waugh (2000) FLC 93-052

APPLICANT:

Mr Rylan

RESPONDENT:

Ms Shelby

FILE NUMBER:

LEC

701

2018

DATE DELIVERED:

13 November 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

13 November 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Wilkin, Family Law Solutions

SOLICITOR FOR THE RESPONDENT

Mr Tyndall, Tyndall & Co

Orders

IT IS ORDERED THAT

By 4.00 pm on Friday, 20 November 2020 Ms Shelby particularise in writing those paragraphs and annexures of the affidavit filed 8 October 2020 upon which she intends to rely at the final hearing of this matter listed to commence at 10.00 am on 15 February 2020.
The following Orders are discharged:
(a)       Order 2 of the Order made on 5 February 2019; and
(b)       Orders 5 of the Order made 8 April 2019; and
(c)       Order 7 of the Order made on 13 November 2019.
Mr Rylan be released from the Undertaking given to the effect that he cause C Pty Ltd to withhold from commencing any proceedings in respect of a Deed of Loan between Ms Shelby and C Pty Ltd dated 1 June 2017 only to enable any such proceedings to be commenced in this Court.
The costs of and incidental to the Application in a Case filed 14 October 2020 and the Response to an Application in a Case filed 10 November 2020 are reserved.
The Application in a Case filed 14 October 2020 and the Response to an Application in a Case filed 10 November 2020 are otherwise dismissed.

NOTATION

(A)The Court today raised with the legal representatives for the parties whether the issue of Ms Shelby’s asserted indebtedness to C Pty Ltd (an entity controlled by Mr Rylan) pursuant to Loan Agreement dated 1 June 2017 could be resolved by the Court if C Pty Ltd sought to intervene in the proceedings.

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 Rylan & Shelby 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 BRISBANE

FILE NUMBER: LEC 701 of 2018

Mr Rylan

Applicant

And

Ms Shelby

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me today a number of matters sought by way of interim order.…

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 RYLAN & SHELBY

Details

AGLC: RYLAN & SHELBY [2020] FamCA 965
Case: [2020] FamCA 965
Decision Date: 13 November 2020

CaseChat Overview and Summary

In the matter of RYLAN & SHELBY, Hogan J of the Family Court of Australia considered an interim application concerning property division. The dispute involved Mr Rylan and Ms Shelby, with the court addressing several interlocutory matters and the potential for a related entity to join the proceedings.

The court was required to determine the extent to which Ms Shelby should particularise her affidavit for the final hearing, discharge specific prior orders, and release Mr Rylan from an undertaking concerning proceedings involving C Pty Ltd. Additionally, the court considered whether C Pty Ltd could intervene to resolve an asserted indebtedness to it by Ms Shelby under a loan agreement. The costs of the recent applications were reserved, and the applications themselves were otherwise dismissed.

Hogan J ordered Ms Shelby to particularise her affidavit by a specified date. Several previous orders were discharged, and Mr Rylan was released from his undertaking to prevent C Pty Ltd from commencing proceedings regarding a loan deed, specifically to allow such proceedings to be initiated in the Family Court. The court noted its inquiry regarding the potential for C Pty Ltd to intervene to resolve the loan dispute.

Orders

Orders of the court

IT IS ORDERED THAT

By 4.00 pm on Friday, 20 November 2020 Ms Shelby particularise in writing those paragraphs and annexures of the affidavit filed 8 October 2020 upon which she intends to rely at the final hearing of this matter listed to commence at 10.00 am on 15 February 2020.

The following Orders are discharged:

(a) Order 2 of the Order made on 5 February 2019; and

(b) Orders 5 of the Order made 8 April 2019; and

Mr Rylan be released from the Undertaking given to the effect that he cause C Pty Ltd to withhold from commencing any proceedings in respect of a Deed of Loan between Ms Shelby and C Pty Ltd dated 1 June 2017 only to enable any such proceedings to be commenced in this Court.

The costs of and incidental to the Application in a Case filed 14 October 2020 and the Response to an Application in a Case filed 10 November 2020 are reserved.

The Application in a Case filed 14 October 2020 and the Response to an Application in a Case filed 10 November 2020 are otherwise dismissed.

NOTATION

(A) The Court today raised with the legal representatives for the parties whether the issue of Ms Shelby’s asserted indebtedness to C Pty Ltd (an entity controlled by Mr Rylan) pursuant to Loan Agreement dated 1 June 2017 could be resolved by the Court if C Pty Ltd sought to intervene in the proceedings.

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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