Sresbodan and Sresbodan & Ors - [2016] FamCAFC 88

FAMILY COURT OF AUSTRALIA

SRESBODAN & SRESBODAN AND ORS

[2016] FamCAFC 88

FAMILY LAW – APPEAL – PROPERTY – Where the appellant is a discharged bankrupt but the estate is not finalised – Where the trustees and previous lawyers of the appellant are parties to the proceedings – Where the trial judge made orders for property settlement, with moneys to be variously distributed to the first respondent, trustees and the third and fourth respondents – Where the grounds of appeal do not identify appellable error – Where the appellant continues to challenge the bankruptcy in circumstances where it has been finalised in the Federal Court of Australia – Where the appellant asserts the trial judge did not allow him to subpoena various parties – Where the transcript reveals the appellant was afforded every opportunity to present his case – Where on appeal the appellant could not identify the evidence the subpoenas would have produced – Appeal dismissed.

FAMILY LAW – COSTS – INDEMNITY – Where first respondent sought costs – Where the second, third and fourth respondents sought costs on an indemnity basis as these proceedings fell within the range of matters described in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 – Where the appellant has been wholly unsuccessful and did not present an arguable case – Where the appellant has constrained financial circumstances and is on a pension, but where the appellant’s own conduct has contributed to this position – Where an order for costs of each of the respondents should be made, but not on an indemnity basis – An order for costs will be made in favour of each of the respondents, of and incidental to the appeal, to be assessed.

Bankruptcy Act 1966 (Cth) s116
Family Law Act 1975 (Cth) ss 75(2)(o), 117

Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
D & D (Costs) (No. 2) (2010) FLC 93-435
Limousin v Limousin (Costs) [2007] 38 Fam LR 478
Munday v Bowman (1997) FLC 92-784

APPELLANT:

Mr Sresbodan

FIRST RESPONDENT:

Ms Sresbodan

SECOND RESPONDENT:

The Trustees for the Bankrupt estate of Mr Sresbodan

THIRD RESPONDENT:	D Attorneys
FOURTH RESPONDENT:	R Lawyers

FILE NUMBER:

SYF

4345

2006

APPEAL NUMBER:

121

2015

DATE DELIVERED:

27 May 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Strickland & Kent JJ

HEARING DATE:

15 February 2016

5 April 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 July 2015

LOWER COURT MNC:

[2015] FamCA 515

REPRESENTATION

FOR THE APPELLANT:

Mr Sresbodan (in person)

COUNSEL FOR THE FIRST RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE FIRST RESPONDENT:

Vizzone Ruggero Twigg Lawyers

COUNSEL FOR THE SECOND RESPONDENT:	Ms Judge
SOLICITOR FOR THE SECOND RESPONDENT:	Goldrick Farrell Mullan Lawyers

SOLICITOR FOR THE THIRD RESPONDENT:

D Attorneys

SOLICITOR FOR THE FOURTH RESPONDENT:

R Lawyers

Orders

The appeal be dismissed.
The husband pay the costs of the wife, the trustees for the bankrupt estate of Mr Sresbodan, D Attorneys and R…

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 Sresbodan and Sresbodan & Ors

Details

AGLC: Sresbodan and Sresbodan & Ors [2016] FamCAFC 88
Case: [2016] FamCAFC 88
Decision Date: 27 May 2016

CaseChat Overview and Summary

In the Family Court of Australia, Sresbodan appealed against a property settlement order made by the primary judge. The appellant was a discharged bankrupt, and the trustees and previous lawyers of the appellant were parties to the proceedings. The primary judge had made orders for the distribution of moneys to the first respondent, the trustees, and the third and fourth respondents. The appeal was based on the grounds that the primary judge did not allow the appellant to subpoena certain parties, but the appeal did not identify any appellable error. The appellant continued to challenge the bankruptcy, which had been finalised in the Federal Court of Australia. The appellant claimed the primary judge did not allow him to subpoena various parties, but the transcript revealed that the appellant was afforded every opportunity to present his case. The appellant could not identify the evidence that the subpoenas would have produced.

The court found that the appeal did not identify any appellable error, and the appellant's continued challenge of the bankruptcy was irrelevant. The primary judge had given the appellant every opportunity to present his case, and the appellant had failed to identify the evidence that the subpoenas would have produced. The appeal was dismissed, and the costs of the appeal were to be paid by the appellant to each of the respondents. The court found that the respondents were entitled to costs, but not on an indemnity basis, as the appellant had been wholly unsuccessful and did not present an arguable case. The appellant's financial circumstances were constrained, but the court found that his own conduct had contributed to this position.

The court made an order for costs in favour of each of the respondents, of and incidental to the appeal, to be assessed. The court found that the first respondent was entitled to costs, as the proceedings fell within the range of matters described in Colgate-Palmolive Company v Cussons Pty Limited. The second, third, and fourth respondents were also entitled to costs, as the appellant had been wholly unsuccessful and did not present an arguable case. The court found that the costs should not be on an indemnity basis, as the appellant had constrained financial circumstances and was on a pension, but his own conduct had contributed to this position. The court made an order for costs in favour of each of the respondents, of and incidental to the appeal, to be assessed.

Orders

Orders of the court

The appeal be dismissed.

The husband pay the costs of the wife, the trustees for the bankrupt estate of Mr Sresbodan, D Attorneys and R Lawyers of and incidental to the appeal, to be assessed.

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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