Vail and Vail (No 2)

Case [2020] FamCA 1070

FAMILY COURT OF AUSTRALIA

VAIL & VAIL (NO. 2) [2020] FamCA 1070
FAMILY LAW – PROPERTY – interim injunctions  – where the Husband seeks discharge of various interim injunctions – where an undertaking as to damages was not given at the time the interim orders were made – whether the failure to proffer an undertaking as to damages is grounds for the orders to be discharged – contempt application on foot – whether the Court ought to hear the contempt application before the interim applications – orders not to be discharged – undertaking as to damages proffered and accepted nunc pro tunc.
Family Law Act 1975 ss 34, 75(2), 79
Family Law Rules 2004 r. 21.08
Blueseas Investments Pty Ltd and Mitchell & McGillivray [1999] FamCA 745
Cameron v Cole [1944] ALR 130
Cheltenham & Gloucester Building Society v Ricketts [1993] 1 WLR 154
European Bank Ltd v Robb Evans of Robb Evans and Associates [2010] HCA 6
Finlayson & Finlayson [2002] FamCA 898
Jensz & Jensz (No 2) [2018] FamCA 353
Johnson & Johnson [1997] FamCA 32
Kerridge v Foley [1968] 1 NSWR 628
Medlow & Medlow [2017] FamCAFC 159
National Australia Bank Ltd v Bond Brewing Holdings Ltd [1991] 1 VR 386
Re F: Litigants in person guidelines [2001] FamCA 348
Robb Evans of Robb Evans and Associates v European Bank Ltd [2009] NSWCA 67
Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health [1989] FCA 556
APPLICANT: Ms Vail
RESPONDENT: Mr Vail
FILE NUMBER: SYC 5604 of 2020
DATE DELIVERED: 14 December 2020
PLACE DELIVERED: Wollongong via Microsoft Teams
PLACE HEARD: Wollongong
JUDGMENT OF: Altobelli J
HEARING DATE: 1 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey of Counsel with  Mr Wong of Counsel
SOLICITOR FOR THE APPLICANT: Finn Roache Lawyers
COUNSEL FOR THE RESPONDENT: Mr Moses of Senior Counsel with Mr Roberts of Counsel
SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

  1. The application to discharge the orders made 9 September 2020 is dismissed.

  2. The Court grants leave to the Applicant to file in Court an Undertaking as to Damages expressed to apply nunc pro tunc to the date the injunctive orders were made on 9 September 2020.

NOTATION

A.The Court notes the Undertaking referred to in order 2 above.

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 Vail & Vail has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5604 of 2020

MS VAIL

Applicant

And

MR VAIL

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Vail and Vail (No 2) [2020] FamCA 1070
Case
[2020] FamCA 1070
Decision Date

CaseChat Overview and Summary

In *Vail and Vail (No 2)*, Altobelli J of the Family Court of Australia considered an application by the Husband to discharge interim injunctions previously made on 9 September 2020. The dispute centred on the validity of these interim orders, particularly in light of the absence of an undertaking as to damages at the time they were granted, and the existence of a separate contempt application.

The primary legal issues before the Court were whether the failure to provide an undertaking as to damages when the interim orders were made constituted grounds for their discharge, and whether the Court should hear the contempt application before determining the applications to discharge the interim orders.

Altobelli J reasoned that the absence of an undertaking as to damages at the time of the original orders did not automatically necessitate their discharge, especially when such an undertaking could be provided retrospectively. The Court determined that it was appropriate to grant the Applicant leave to file an undertaking as to damages *nunc pro tunc*, meaning it would have effect from the date the original injunctive orders were made. This approach addressed the legal deficiency without invalidating the prior orders. The Court also indicated that the contempt application would be heard in due course.

Consequently, the Court dismissed the Husband's application to discharge the interim orders made on 9 September 2020. The Court further granted the Applicant leave to file the undertaking as to damages, to be effective retrospectively from the date of the original injunctive orders.

Orders

Orders of the court

1.

The application to discharge the orders made 9 September 2020 is dismissed.

2.

The Court grants leave to the Applicant to file in Court an Undertaking as to Damages expressed to apply nunc pro tunc to the date the injunctive orders were made on 9 September 2020.

NOTATION

A. The Court notes the Undertaking referred to in order 2 above.

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

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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