Brennan v McGuire (No 3) [2011] FCA 505

Brennan v McGuire (No 3) [2011] FCA 505

Because the time for appeal had expired, Ms McGuire had appropriated money from the Ord Minnett account affecting Mr Brennan's intended superannuation entitlement, the orders concerning Mr Kaufline may have been unnecessary and may impede settlement, and Mr Brennan had incurred substantial legal costs from Ms McGuire's post-judgment conduct, the Court was justified in supplementing or potentially reopening the final orders under s 28 of the Domestic Relationships Act 1994 (ACT) or its inherent or implied power to avoid injustice and achieve the intended settlement. Further evidence and submissions were required before deciding the final variation.

Jurisdiction
Australia
Judgment Date
16 May 2011
Procedural Posture
Practice and Procedure; Domestic Relationship Property Orders / Post Judgment Relisting After Final Orders to Consider Show Cause, Supplementation, Variation or Reopening of Final Orders
Outcome
Show cause and procedural orders made; proceedings stood over to 27 May 2011 for further hearing on whether cause had been shown and what further orders should be made, including possible orders to give effect to or vary the final orders made on 24 February 2011.
Legal Topics
['reopening or Varying Final Orders' 'domestic Relationships Act 1994 (act) S 28' 'implementation of Property Settlement Orders' 'superannuation Fund Member Balances and Rollovers' 'trustee Control of Superannuation Fund' 'costs After Final Orders']
['practice and Procedure' 'domestic Relationships' 'superannuation' 'trusts'] ['reopening or Varying Final Orders' 'domestic Relationships Act 1994 (act) S 28' 'implementation of Property Settlement Orders' 'superannuation Fund Member Balances and Rollovers' 'trustee Control of Superannuation Fund' 'costs After Final Orders']

Case Brief

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Procedural Posture

Practice and Procedure; Domestic Relationship Property Orders / Post Judgment Relisting After Final Orders to Consider Show Cause, Supplementation, Variation or Reopening of Final Orders

Legal Issues

  1. 1 ['Whether final orders made on 24 February 2011 should be supplemented, varied or reopened because subsequent circumstances made implementation impractical or risked injustice.' 'Whether Ms McGuire and Wayne Kaufline had any continuing interest in the Rob Brennan Superannuation Fund after rollover payments were banked by MFK SuperFund by 26 August 2009.' "Whether Ms McGuire's removal of money from the Ord Minnett account required adjustment to restore Mr Brennan to the position intended by the final orders." "Whether further orders were needed to separate the parties' financial affairs and avoid further proceedings."]

Ratio Decidendi

Because the time for appeal had expired, Ms McGuire had appropriated money from the Ord Minnett account affecting Mr Brennan's intended superannuation entitlement, the orders concerning Mr Kaufline may have been unnecessary and may impede settlement, and Mr Brennan had incurred substantial legal costs from Ms McGuire's post-judgment conduct, the Court was justified in supplementing or potentially reopening the final orders under s 28 of the Domestic Relationships Act 1994 (ACT) or its inherent or implied power to avoid injustice and achieve the intended settlement. Further evidence and submissions were required before deciding the final variation.

Court Disposition

Show cause and procedural orders made; proceedings stood over to 27 May 2011 for further hearing on whether cause had been shown and what further orders should be made, including possible orders to give effect to or vary the final orders made on 24 February 2011.

Orders

  • ['Each of Ms McGuire and Wayne Kaufline show cause by filing and serving an affidavit on or before 24 May 2011 as to any asserted current interest in the Rob Brennan Superannuation Fund and documents concerning payments, rollovers or requests for payment by the fund before 26 August 2009.' 'Ms McGuire serve Mr...