Tandler and Cooper - [2004] FMCAfam 246

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TANDLER & COOPER

[2004] FMCAfam 246

FAMILY LAW – Injunction – husband’s solicitor agrees to hold proceeds of sale of the former matrimonial home on trust for both parties – sale proceeds partly distributed without notice to the wife – prima facie breach of trust obligation by respondent’s solicitor – injunction sought – solicitor ordered to file affidavit concerning disposition of trust money.

Family Law Act 1975

Waugh & Waugh (2000) FLC 93-052
Blue Seas Investments Pty Limited v Mitchell & McGilvray (1999) FLC 92-856

Applicant:

SAMANTHA TANDLER

Respondent:

BRETT COOPER

File No:

SYM693 of 2003

Delivered on:

25 March 2004

Delivered at:

Wollongong

Hearing date:

25 March 2004

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr P. Chodat

Solicitors for the Applicant:

Kells The Lawyers

Counsel for the Respondent:

Mr P. Donnelly

Solicitors for the Respondent:

Donnelly Lawyers

ORDERS

Pending further order:

that Donnelly and LBC Lawyers are restrained from authorising, withdrawing, disposing or encumbering the net proceeds of sale of
18 Kiarama Avenue, Kiama Downs, held in trust by them, other than in accordance with Orders of this Court for the consent of both parties in writing;
that Donnelly and LBC Lawyers, together with Kells Lawyers, shall deposit the net proceeds of sale of 18 Kiarama Avenue, Kiama Downs, presently held in trust pursuant to O 1 into a controlled moneys account, the wife's solicitors to nominate the institution into which those moneys shall be paid;
thereafter the moneys shall be held on trust jointly by Kells Lawyers and Donnelly and LBC Lawyers and shall not be paid out other than in accordance with the written agreement of the parties or pursuant to an Order of this Court;
the applicant wife shall file an undertaking as to damages in the usual form by 4 pm, 31 March 2004;
in relation to the wife's application to restrain the husband from travelling overseas I refuse that application;
the Court notes that should the husband fail to return then the hearing will still proceed;
I direct that the husband's solicitor provide a statement verified by affidavit detailing the receipt and disposition of all moneys received by him from the sale of 18 Kiarama Avenue, Kiama Downs, which affidavit is to be filed by 4 pm, 31 March 2004;
I list the matter for mention for further interim hearing before me at
10 am, 1 April 2004;
I order that the respondent husband pay the applicant's costs in the sum of $1000 of this application, which moneys are to be paid from the moneys held in trust, pursuant to O 1 of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
WOLLONGONG

SYM693 of 2003

SAMANTHA TANDLER

Applicant

And

BRETT COOPER

Respondent

REASONS FOR JUDGMENT

These reasons were delivered orally.

Introduction

This is an application by Samantha Tandler (“the applicant”) filed yesterday. In it the applicant asked for a series of urgent ex parte injunctions restraining the further distribution of the proceeds of sale of the…

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 Tandler and Cooper

Details

AGLC: Tandler and Cooper [2004] FMCAfam 246
Case: [2004] FMCAfam 246
Decision Date: 25 March 2004

CaseChat Overview and Summary

The case of Tandler and Cooper was heard in the Family Court of Australia. The dispute between the parties involved the distribution of the proceeds from the sale of a property at 18 Kiarama Avenue, Kiama Downs, which was held in trust. The applicant, the wife, sought various orders including the restraint of certain actions regarding the proceeds of sale and the prevention of the husband from travelling overseas. The court had to determine whether the requested restraints on the sale proceeds and travel were appropriate and necessary.

The legal issues before the court included whether the applicant was entitled to the requested restraints on the sale proceeds and the husband's travel. The court had to consider the relevant trust arrangements, the necessity of the requested measures, and the potential consequences of granting or refusing the application. Additionally, the court needed to assess the application of the costs and the appropriate conditions for the deposit and handling of the sale proceeds.

The court determined that the requested restraints on the sale proceeds were necessary to ensure the equitable distribution of the funds. It held that the proceeds should be deposited into a controlled moneys account, jointly held by the solicitors of both parties. The court refused the application to restrain the husband from travelling overseas, noting that the hearing would proceed regardless of his presence. The court ordered the husband's solicitor to provide a verified affidavit detailing the receipt and disposition of all moneys from the sale. The court also ordered the husband to pay the wife's costs of the application, which were to be paid from the held funds.

The court issued several interim orders pending further hearing, including the restraint of certain actions regarding the sale proceeds and the direction for the husband's solicitor to file a verified affidavit. The matter was listed for further mention, and the court emphasised that the hearing would continue even if the husband failed to return.

Orders

Orders of the court

Pending further order:

that Donnelly and LBC Lawyers are restrained from authorising, withdrawing, disposing or encumbering the net proceeds of sale of

18 Kiarama Avenue, Kiama Downs, held in trust by them, other than in accordance with Orders of this Court for the consent of both parties in writing;

that Donnelly and LBC Lawyers, together with Kells Lawyers, shall deposit the net proceeds of sale of 18 Kiarama Avenue, Kiama Downs, presently held in trust pursuant to O 1 into a controlled moneys account, the wife's solicitors to nominate the institution into which those moneys shall be paid;

thereafter the moneys shall be held on trust jointly by Kells Lawyers and Donnelly and LBC Lawyers and shall not be paid out other than in accordance with the written agreement of the parties or pursuant to an Order of this Court;

the applicant wife shall file an undertaking as to damages in the usual form by 4 pm, 31 March 2004;

in relation to the wife's application to restrain the husband from travelling overseas I refuse that application;

the Court notes that should the husband fail to return then the hearing will still proceed;

I direct that the husband's solicitor provide a statement verified by affidavit detailing the receipt and disposition of all moneys received by him from the sale of 18 Kiarama Avenue, Kiama Downs, which affidavit is to be filed by 4 pm, 31 March 2004;

I list the matter for mention for further interim hearing before me at

10 am, 1 April 2004;

I order that the respondent husband pay the applicant's costs in the sum of $1000 of this application, which moneys are to be paid from the moneys held in trust, pursuant to O 1 of 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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