Tredrea and Geller and Ors - [2016] FamCA 634

FAMILY COURT OF AUSTRALIA

TREDREA & GELLER AND ORS

[2016] FamCA 634

FAMILY LAW – ENFORCEMENT – where the applicant seeks enforcement of a term of an order for property settlement – where the respondents seek summary dismissal of the application – where the application involves farming land – where the applicant asserts she is entitled to an option to purchase – where the respondents considers the applicant has a pre-emptive right or a second right of refusal – where the respondents exercised their obligation to offer – where providing the applicant enters into an undertaking as to damages the application for summary dismissal is dismissed.

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) r 10.12

APT SEA Gas Holdings Pty Ltd v ANP SEA Gas Holdings Pty Ltd [2010] NSWSC 1221
Carter v Hyde (1923) 33 CLR 115
Commissioner of Taxation v Guy (1996) 137 ALR 193
Bigg & Suzi (1998) FLC 92-799
Bretton & Bondai [2013] FamCAFC 168
Emmett v Kiely [1946] SASR 17
First Netcom Pty Ltd v Telstra Corporation Ltd (2000) 179 ALR 725
Gitane & Velacruz (2007) FLC 93-309
Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57
Luadaka & Luadaka (1998) FLC 92-830
Mackay v Wilson (1947) 47 SR (NSW) 315
Octra Nominees Pty Ltd v Chipper [2007] FCAFC 92
Pelerman & Pelerman (2000) FLC 93-037
White Property Developments Ltd v Richmond Growth Pty Ltd [1998] FCA 26

APPLICANT:

Ms Tredrea

1st RESPONDENT:

Ms Geller

2nd RESPONDENT:

Ms Merritt

3rd RESPONDENT:

Ms Johns

4th RESPONDENT:

Mr Fuller

FILE NUMBER:

ADC

2149

2016

DATE DELIVERED:

5 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

4 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE 1ST RESPONDENT:

Mr Portway

SOLICITOR FOR THE 1ST RESPONDENT:

Heuzenroeders Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Mr Portway

SOLICITOR FOR THE 2ND RESPONDENT:

Heuzenroeders Lawyers

COUNSEL FOR THE 3RD RESPONDENT:

Mr Portway

SOLICITOR FOR THE 3RD RESPONDENT:

Heuzenroeders Lawyers

COUNSEL FOR THE 4TH RESPONDENT:

Mr Portway

SOLICITOR FOR THE 4TH RESPONDENT:

Heuzenroeders Lawyers

Orders

That conditional upon the applicant entering into an undertaking as to damages within seven (7) days of the date of this order, order 1 of the Response filed 17 June 2016 is dismissed.
In the absence of the undertaking as to damages being given as provided for in order (1) hereof, the Application in a Case filed 14 June 2016 be dismissed.
That upon the filing of the undertaking as to damages, the application be placed in the list of cases awaiting trial NOTING that the Court may accommodate an early listing.
Costs in the cause.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tredrea & Geller and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) 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.

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Details

Case: [2016] FamCA 634
Decision Date: 5 August 2016

CaseChat Overview and Summary

The applicant, Tredrea, sought interlocutory relief against the respondents, Geller and others. The dispute concerned an application filed on 14 June 2016, with a response filed on 17 June 2016. The matter came before Berman J.

The primary legal issue before the court was whether to grant the interlocutory relief sought by the applicant, conditional upon the applicant providing an undertaking as to damages. The court was required to determine the terms upon which any such relief would be granted, or if it would be refused.

Berman J ordered that the relief sought by the applicant would be dismissed unless the applicant provided an undertaking as to damages within seven days. If the undertaking was provided, the application would be dismissed, but the matter would then be listed for trial, with the possibility of an early listing. Costs were reserved.

Orders

Orders of the court

That conditional upon the applicant entering into an undertaking as to damages within seven (7) days of the date of this order, order 1 of the Response filed 17 June 2016 is dismissed.

In the absence of the undertaking as to damages being given as provided for in order (1) hereof, the Application in a Case filed 14 June 2016 be dismissed.

That upon the filing of the undertaking as to damages, the application be placed in the list of cases awaiting trial NOTING that the Court may accommodate an early listing.

Costs in the cause.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.