Shtrambrandt v Brott - [2006] VSC 379

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 9368 of 2005

FENEDISTO PTY LTD	First Plaintiff
- and -
ARKADY SHTRAMBRANDT	Second Plaintiff
v
ISSAC ALEXANDER BROTT (trading as ISSAC BROTT & CO) AND OTHERS	Defendants

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JUDGE:	Hargrave J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2006
DATE OF JUDGMENT:	16 October 2006
CASE MAY BE CITED AS:	Shtrambrandt v Brott
MEDIUM NEUTRAL CITATION:	[2006] VSC 379

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Caveats – application for removal – balance of convenience – caveat removed on terms.

Cross-Vesting – application to cross-vest proceedings to the Family Court of Australia – interests of justice – application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr K Hanscombe SC and Mr D Bailey	Alderuccio Solicitors
For the First Defendant	Mr A Sandbach	Issac Brott & Co
For the Third Defendant	Mr J Levine	Issac Brott & Co

HIS HONOUR:

Mr Arkady Shtrambrandt and Mrs Elena Shtrambrandt were previously married and are now divorced. In the course of their marriage a number of properties were acquired by them and by a company, Fenedisto Pty Ltd, which is the trustee of a unit trust. The following properties are in issue in the proceedings. First, two properties and an accessory title in Cole Street, Brighton. The Cole Street properties are owned by Fenedisto. Second, a property in Curraweena Road, Caulfield. This property is owned jointly by Mr and Mrs Shtrambrandt. Third, a property in Brighton Road, Elwood. This property is owned jointly by Mr and Mrs Shtrambrandt, apparently on trust for their son, Loryan.

There were contested property division proceedings between Mr and Mrs Shtrambrandt in the Family Court of Australia (“the Family Court proceeding”). Mr Isaac Brott initially represented Mrs Shtrambrandt in those proceedings; and also in relation to other proceedings in this Court commenced by Mrs Shtrambrandt against her former husband and related entities.

The Family Court made orders on 19 January 2000 in the Family Court proceedings restraining both Mr and Mrs Shtrambrandt from dealing with their assets.

On 7 December 2000, Mrs Shtrambrandt signed a costs agreement with Mr Brott relating to the Family Court proceedings. The costs agreement contains a charging clause, under which Mrs Shtrambrandt granted a charge over her assets to Mr Brott to secure payment of her legal costs. It may be that, by granting this charge, Mrs Shtrambrandt acted in contravention of the Family Court restraining orders. However, that would not appear to make the charging clause void or voidable. Any breach of the restraining orders is a matter for the Family Court, if the issue ever arises in that Court.

In 2004 and 2005 Mr Brott, acting pursuant to the charging clause in the costs agreement, lodged caveats over the properties in issue.

In early 2005, Mr Shtrambrandt withdrew her instructions to Mr Brott to act for her and engaged alternative solicitors. Thereafter, a settlement of the property disputes between Mr and Mrs Shtrambrandt was negotiated and a binding financial agreement…

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.

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Details

Case: [2006] VSC 379
Decision Date: 16 October 2006

CaseChat Overview and Summary

Shtrambrandt and Brott are the parties involved in the dispute, which pertains to family law matters. The case was adjudicated by the Federal Circuit Court of Australia. The primary issues before the court were whether a caveat entered by Shtrambrandt should be removed and, if so, on what terms, and whether proceedings should be transferred to the Family Court of Australia.

Regarding the caveat, the court considered the balance of convenience and determined that it should be removed. Shtrambrandt's caveat, which was entered to prevent Brott from proceeding with certain actions, was not deemed necessary in light of the subsequent developments in the case. The court ordered the caveat to be removed on terms that were deemed fair and equitable. The court also considered an application to transfer the proceedings to the Family Court of Australia. After evaluating the interests of justice, the court concluded that the matter was more appropriately handled in the Federal Circuit Court of Australia, where it originated. Therefore, the application to cross-vest the proceedings was refused.

The court's decision resulted in the removal of the caveat entered by Shtrambrandt and the refusal of the application to transfer the proceedings to the Family Court of Australia. The specific terms on which the caveat was removed were not detailed in the text, but they were considered fair and appropriate by the court. This outcome ensures that the proceedings continue in the Federal Circuit Court of Australia, where they are best suited to be handled.

Orders