Sudetto and Sudetto - [2011] FamCA 46

FAMILY COURT OF AUSTRALIA

SUDETTO & SUDETTO

[2011] FamCA 46

FAMILY LAW – PROPERTY – Interim – Litigation funding

Family Law Act 1975 (Cth)

Bing and Bing [2007] FamCA 418
Strahan and Strahan [2009] FamCAFC 166

APPLICANT:

Mr Sudetto

RESPONDENT:

Ms Sudetto

FILE NUMBER:

MLC

6708

2010

DATE DELIVERED:

9 FEBRUARY 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

7 FEBRUARY 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR DICKSON

SOLICITOR FOR THE APPLICANT:

LANDER & ROGERS

COUNSEL FOR THE RESPONDENT:

MR BARTFELD QC

SOLICITOR FOR THE RESPONDENT:

MILLS OAKLEY LAWYERS

Orders

That the application in a case filed by the husband on 17 December 2010 is dismissed.
That the husband pay to the wife by way of litigation funding order, the sum of $50,000 to be used by her in and for the proceedings to cover costs and expenses such sum to be taken into account by the trial judge as is then deemed appropriate.
That save as to the issue of costs, the wife’s response filed 20 January 2011 is dismissed.
That should the wife seek any order for costs, she do so by way of written submissions to be filed by no later than 4.00pm on 28 February 2011 with such submission endorsed with a certification by the solicitor for the wife that such submission has been served upon the solicitors for the husband and the husband have until 4.00pm on 7 March 2011 to file and serve any reply and such reply shall be endorsed with a certification by the solicitors for the husband that such document has been served upon the solicitors for the wife.
That all outstanding final applications be listed for a first day hearing at 10.00am on 1 April 2011.

AND THE COURT NOTES

A.For the purposes of the first day hearing referred to in these orders, the parties’ attention is drawn to the notice attached to these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6708 of 2010

MR SUDETTO

Applicant

And

MS SUDETTO

Respondent

REASONS FOR JUDGMENT

On 17 December 2010, the husband filed an application seeking an order that the wife sign finance documents in her capacity as a director of Sudetto Pty Ltd for the purposes of enabling the company to lease plant and equipment for a shop business.
By her response dated 20 January 2011, the wife sought a variety of orders. Some of those were not pursued. A significant dispute arose out of the wife’s opposition to the leasing of the equipment. There was little dispute about the setting up of the business and the acquiring of the plant and equipment. The dispute was about whether it was necessary to finance the acquisition by a commercial lease rather than from paying for it through accrued earnings or cash flow. In…

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 Sudetto and Sudetto

Details

AGLC: Sudetto and Sudetto [2011] FamCA 46
Case: [2011] FamCA 46
Decision Date: 9 FEBRUARY 2011

CaseChat Overview and Summary

In *Sudetto and Sudetto*, the Honourable Justice Cronin considered an application filed by the husband on 17 December 2010 and a response filed by the wife on 20 January 2011. The precise nature of the dispute between the parties is not detailed, but the orders indicate it involves proceedings where litigation funding and costs were significant considerations.

The court was required to determine the disposition of the husband's application and the wife's response, as well as to make orders regarding litigation funding and costs. The court also needed to set a date for the hearing of outstanding final applications.

Justice Cronin dismissed the husband's application and, save for the issue of costs, dismissed the wife's response. The court ordered the husband to pay the wife $50,000 for litigation funding, to be considered by the trial judge. Directions were also given for the parties to make written submissions regarding costs, with specific timelines for filing and service. Finally, the court listed all outstanding final applications for a first-day hearing on 1 April 2011, drawing the parties' attention to a notice attached to the orders.

Orders

Orders of the court

That the application in a case filed by the husband on 17 December 2010 is dismissed.

That the husband pay to the wife by way of litigation funding order, the sum of $50,000 to be used by her in and for the proceedings to cover costs and expenses such sum to be taken into account by the trial judge as is then deemed appropriate.

That save as to the issue of costs, the wife’s response filed 20 January 2011 is dismissed.

That should the wife seek any order for costs, she do so by way of written submissions to be filed by no later than 4.00pm on 28 February 2011 with such submission endorsed with a certification by the solicitor for the wife that such submission has been served upon the solicitors for the husband and the husband have until 4.00pm on 7 March 2011 to file and serve any reply and such reply shall be endorsed with a certification by the solicitors for the husband that such document has been served upon the solicitors for the wife.

That all outstanding final applications be listed for a first day hearing at 10.00am on 1 April 2011.

AND THE COURT NOTES

A. For the purposes of the first day hearing referred to in these orders, the parties’ attention is drawn to the notice attached to these orders.

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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