S & M & Ors

[2003] FamCA 1387

[2003] FamCA 1387

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT BRISBANE

Appeal No. NA55 of 2002
File No. BRF6967 of 2002

IN THE MATTER OF:

MS S

Appellant/Wife

- and -

MR M and MR G

First Respondents/Liquidators

- and -

MR B

Second Respondent/Husband

REASONS FOR JUDGMENT

BEFORE:Ellis, Coleman and O’Ryan JJ

HEARD:27 February 2003

JUDGMENT:         24 December 2003

APPEARANCES:      Mr North SC (instructed by Hirst & Co, Family Lawyers, Level 1, 293 Queen Street, Brisbane, Queensland, 4000) appeared on behalf of Appellant Wife.

Mr Kent and Mr Schulte of Counsel (instructed by McCullough Robertson, Lawyers, Level 12, Central Plaza 2, 66 Eagle Street, Brisbane, Queensland, 4000) appeared on behalf of the First Respondents.

Mr Eleftheriou, Solicitor (Hawthorn Cuppaidge & Badgery, Solicitors, Level 7, 160 Edward Street, Brisbane, Queensland, 4000) appeared on behalf of the Second Respondent.

S & M and Ors  -          Appeal No. NA55 of 2002

Coram:  Ellis, Coleman and O’Ryan JJ.
Date of Hearing:  27 February 2003
Date of Judgment:  24 December 2003

Catchwords: Family law – Property – Whether jurisdictional error – Notice to third party creditors – Whether miscarriage of justice under s 79A(1) 

Family law – Costs – Conduct

Introduction

1. This is an appeal by Ms S (“the wife”) against the following order made by May J on 5 December 2002, namely:

“1. Pursuant to s.79A the orders made on 8 May 2002 in paragraph 4 as they refer to [A] Pty Ltd are set aside.

2.        Within seven days the husband’s shares in [A] Pty Ltd be transferred to the wife.

3.        Should the husband refuse or neglect to execute a document necessary to implement this order within seven days after the document has been tendered to him, the Registrar of this Court is appointed to execute on his behalf all documents necessary to implement the order on proof by affidavit of such refusal or neglect and such Registrar is also appointed to do all acts and things necessary to give validity and operation to any such documents.

4.        Until such transfer the husband is restrained from dealing in any manner with the shares in [A] Pty Limited.

5.        Any debt due to the husband from the company, [A]Pty Limited, be assigned to the wife.

6.        The injunction made on 22 November 2002 be extended to 4.00 pm 13 December 2002 and if no appeal is filed on or before 4.00 pm on 12 December 2002 then the injunction expires and the monies be paid from the trust account to the liquidators.

7.        The husband and the wife each pay half of the applicant’s costs, to be taxed.

8.        That pursuant to Order 38 Rule 26 of the Family Law Rules this matter reasonably required the attendance of Senior Counsel.”

1. The First Respondent to the appeal, Mr M and Mr G (“the liquidator”), are the liquidators of [A] Pty Limited ACN …. (in liquidation) (“[A Pty Ltd}”).  The Second Respondent to the appeal,…