Wickens and Brewer and Ors - [2014] FCCA 373

FEDERAL CIRCUIT COURT OF AUSTRALIA

WICKENS & BREWER & ORS

[2014] FCCA 373

Catchwords:
FAMILY LAW – De facto property claim – respondent dies day after filing – dispute between applicant and deceased’s legal personal representatives about use and occupation of property and management of a business conducted in partnership with deceased – letters of administration contemplated but not granted yet – application under s.90SM(8) contemplated but not yet made – jurisdiction of court to make interim orders in these circumstances – whether s.90AE(2) is source of power – rights and states and property interests of all parties considered – impact of death on partnership – relevance of Partnership Act 1958 (Vic).

Legislation:
Family Law Act 1975 (Cth) – ss 90SM, 79, 114, 90AE, 90TA and Part VIIIAB

Partnership Act 1958 (Vic) – ss 37, 42

Cullen & Cullen [2011] FMCAfam 375
Warby & Warby (2002) FLC 93-091
B Pty Limited & K and Anor [2008] FamCAFC 113

Applicant:

MS WICKENS

First Respondent:

MR H BREWER

Second Respondent:

MR L BREWER

Third Respondent:

MR A BREWER

File Number:

MLC 10906 of 2013

Judgment of:

Judge Altobelli

Hearing date:

12 February 2014

Date of Last Submission:

12 February 2014

Delivered at:

Melbourne

Delivered on:

14 February 2014

REPRESENTATION

Counsel for the Applicant:

Mr Wraith

Solicitors for the Applicant:

HBH Legal

Counsel for the Respondents:

Mr Dunlop

Solicitors for the Respondents:

Just Whyte & Moore

ORDERS

Until further order, the applicant MS WICKENS be entitled to sole use and occupation of the residence and surrounding farming property situated at and known as Property M, in the State of Victoria.
Until further order, the applicant MS WICKENS be solely responsible for the management of the farming enterprise conducted upon the said property including but not limited to management of the assets of the partnership previously operated under the style [Mr D Brewer & Ms Wickens].
Until further order:
(a)The applicant maintain clear records of account of all transactions involving the acquisition and sale of partnership assets, the payment of partnership expenses and liabilities, and the receipt and distribution of partnership income; and
(b)The applicant provide to Mr A Brewer (or subsequent to a grant of probate or letters of administration being made in respect of the estate of the respondent husband, such person or persons as may be appointed executor or administrator thereof) copies of such records of account on at least a quarterly basis.
Until further order, the applicant be permitted to have recourse to the assets of the partnership, and any funds deposited in accounts held in the name of the First Respondent for her reasonable day to day support and expenditure.
Mr H Brewer, Mr L Brewer and Mr A Brewer do all things and sign all documents necessary to facilitate compliance with orders 1, 2 and 3 hereof.

AND THE COURT NOTES THAT:
A.The matter remains listed in the Warrnambool Circuit commencing 17 March 2014 at 10.00 am in the Duty list.

IT IS NOTED that publication of…

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 Wickens and Brewer and Ors

Details

AGLC: Wickens and Brewer and Ors [2014] FCCA 373
Case: [2014] FCCA 373
Decision Date: 14 February 2014

CaseChat Overview and Summary

In the matter of *Wickens and Brewer and Ors*, heard before Judge Altobelli, the applicant, Ms Wickens, sought orders concerning the occupation of a residence and farming property, the management of a farming enterprise, and access to partnership assets. The respondent was Mr Brewer, and other parties, Mr H Brewer, Mr L Brewer, and Mr A Brewer, were also involved. The dispute appears to relate to the management and disposition of assets within a farming partnership.

The court was required to determine the appropriate interim orders regarding the use and occupation of the jointly held property, the management of the farming business, and the financial arrangements for the applicant's support and the maintenance of partnership accounts. The court also needed to ensure that the other named respondents facilitated compliance with any orders made.

Judge Altobelli ordered that Ms Wickens be entitled to the sole use and occupation of the residence and farming property, and be solely responsible for the management of the farming enterprise. Ms Wickens was also ordered to maintain clear records of all partnership transactions and provide these to Mr Brewer (or the executor/administrator of his estate) quarterly. She was permitted to use partnership assets and funds for her reasonable day-to-day support. The other named respondents were directed to do all things necessary to comply with these orders. The matter was listed for further hearing.

Orders

Orders of the court

Until further order, the applicant MS WICKENS be entitled to sole use and occupation of the residence and surrounding farming property situated at and known as Property M, in the State of Victoria.

Until further order, the applicant MS WICKENS be solely responsible for the management of the farming enterprise conducted upon the said property including but not limited to management of the assets of the partnership previously operated under the style [Mr D Brewer & Ms Wickens].

Until further order:

(a) The applicant maintain clear records of account of all transactions involving the acquisition and sale of partnership assets, the payment of partnership expenses and liabilities, and the receipt and distribution of partnership income; and

(b) The applicant provide to Mr A Brewer (or subsequent to a grant of probate or letters of administration being made in respect of the estate of the respondent husband, such person or persons as may be appointed executor or administrator thereof) copies of such records of account on at least a quarterly basis.

Until further order, the applicant be permitted to have recourse to the assets of the partnership, and any funds deposited in accounts held in the name of the First Respondent for her reasonable day to day support and expenditure.

Mr H Brewer, Mr L Brewer and Mr A Brewer do all things and sign all documents necessary to facilitate compliance with orders 1, 2 and 3 hereof.

AND THE COURT NOTES THAT:

A. The matter remains listed in the Warrnambool Circuit commencing 17 March 2014 at 10.00 am in the Duty list.

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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