Abdullayev & Abdullayev

Case [2024] FedCFamC1F 706

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Abdullayev & Abdullayev [2024] FedCFamC1F 706

File number(s): BRC 11011 of 2022
Judgment of: BAUMANN J
Date of judgment: 23 October 2024
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – JOINDER – Injunctive relief sought – Orders made for joinder of some parties – Applications for injunctions dismissed
Legislation:

Family Law Act 1975 (Cth) ss 79, 90AF, 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.01, 3.03

Cases cited:

Anderson & Kelleher and Anor (No. 3) [2007] FamCA 724

Cassar v New South Wales Crime Commission [2014] NSWCA 356

Palmer v Parbery & Ors; QNI Metals Pty Ltd & Ors v Parbery & Anor [2019] QCA 27

Patton & Patton [2015] FamCA 1083

Tsiang & Wu and Ors (2019) FLC 93-911

Wayne & Dillon & Anor (2008) 40 Fam LR 543

Division: Division 1 First Instance
Number of paragraphs: 54
Date of hearing: 20 November 2023
Place: Brisbane
Counsel for the Applicant & proposed Fifth Respondent: Mr Shoebridge
Solicitor for the Applicant & proposed Fifth Respondent: Toomey Family Law
Counsel for the First Respondent: Mr Williams KC, assisted by Mr Eade
Solicitor for the First Respondent: Barry Nilsson Lawyers
Counsel for the proposed Second, Third, Fourth, Ninth & Tenth Respondents: Mr Kearney SC & Mr Gray
Solicitor for the proposed Second Third, Fourth, Ninth & Tenth Respondents: Phillips Family Law
Counsel for the proposed Sixth Respondent: Mr Rogan
Solicitor for the proposed Sixth Respondent: Pearson Emerson Family Lawyers
Counsel for the proposed Seventh & Eighth Respondents: Mr Barnett
Solicitor for the proposed Seventh & Eighth Respondents: Broun Abrahams Burreket

ORDERS

BRC 11011 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ABDULLAYEV

Applicant
AND:

MS ABDULLAYEV

First Respondent

D1 PTY LTD

Second Respondent

C PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

23 OCTOBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That pursuant to r 3.03(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the following corporate entities are joined to these proceedings as parties and to be identified as follows:

(a)D1 Pty Ltd as Second Respondent;

(b)C Pty Ltd as Third Respondent;

(c)E Pty Ltd as Fourth Respondent;

(d)F Pty Ltd as Fifth Respondent;

(e)G1 Pty Ltd as Sixth Respondent; and

(f)D2 Pty Ltd as Seventh Respondent.

2.That the Application to join Ms B Abdullayev, Ms J and Ms K as parties to these proceedings is dismissed.

3.That the wife’s application for injunctive relief set out in the proposed orders 3 to 16 inclusive (marked Exhibit 1 on 20 November 2023), be dismissed.

4.That these proceedings be adjourned for Case Management Hearing at 9.30am (AEST) on 13 November 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane, with a view to determining any further hearing dates for other pending applications.

5.That the competing applications for orders for costs be…

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AGLC
Abdullayev & Abdullayev [2024] FedCFamC1F 706
Case
[2024] FedCFamC1F 706
Decision Date

CaseChat Overview and Summary

In the case of Abdullayev & Abdullayev, the Federal Circuit and Family Court of Australia addressed several issues related to joinder and injunctive relief in a complex family law matter involving multiple parties and corporate entities. The case was brought by the husband, Mr Abdullayev, who sought various declarations and orders under the Family Law Act. The wife, Ms Abdullayev, responded with Points of Claim and also sought injunctive relief. The dispute involved the management and distribution of a substantial estate left by the husband's late father, which included landholdings, livestock, and numerous corporate entities.

The primary legal issues before the Court were whether certain parties and corporate entities should be joined to the proceedings and whether injunctive relief should be granted. Specifically, the Court had to decide whether to join F Pty Ltd as the Fifth Respondent, several interrelated corporate entities as the Second to Fourth, Ninth and Tenth Respondents, the husband's mother Ms B Abdullayev as the Sixth Respondent, and the husband's sisters Ms J and Ms K as the Seventh and Eighth Respondents. Additionally, the Court had to determine whether to grant the injunctive relief sought by the wife.

The Court ruled that certain corporate entities should be joined to the proceedings, specifically D1 Pty Ltd as the Second Respondent, C Pty Ltd as the Third Respondent, E Pty Ltd as the Fourth Respondent, F Pty Ltd as the Fifth Respondent, G1 Pty Ltd as the Sixth Respondent, and D2 Pty Ltd as the Seventh Respondent. However, the applications to join Ms B Abdullayev, Ms J, and Ms K as parties were dismissed. The wife's application for injunctive relief was also dismissed, and the proceedings were adjourned for a Case Management Hearing to determine further hearing dates for other pending applications. The Court further ordered that the competing applications for orders for costs be listed on a date to be fixed.

Orders

Orders of the court

BRC 11011 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ABDULLAYEV

Applicant

AND:

MS ABDULLAYEV

First Respondent

D1 PTY LTD

Second Respondent

C PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

23 OCTOBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That pursuant to r 3.03(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the following corporate entities are joined to these proceedings as parties and to be identified as follows:

(a) D1 Pty Ltd as Second Respondent;

(b) C Pty Ltd as Third Respondent;

(c) E Pty Ltd as Fourth Respondent;

(d) F Pty Ltd as Fifth Respondent;

(e) G1 Pty Ltd as Sixth Respondent; and

(f) D2 Pty Ltd as Seventh Respondent.

2. That the Application to join Ms B Abdullayev, Ms J and Ms K as parties to these proceedings is dismissed.

3. That the wife’s application for injunctive relief set out in the proposed orders 3 to 16 inclusive (marked Exhibit 1 on 20 November 2023), be dismissed.

4. That these proceedings be adjourned for Case Management Hearing at 9.30am (AEST) on 13 November 2024 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane, with a view to determining any further hearing dates for other pending applications.

5. That the competing applications for orders for costs be listed on a date to be fixed.

Background

Background to the litigation

The issues crystalised as being:(a)should the Court join F Pty Ltd (the proposed Fifth Respondent) as a party to these proceedings. This Application is consented to by the husband, represented by Mr Shoebridge of Counsel (as he then was);(b)should the Court join the interrelated corporate entities, described at proposed orders 1.1, 1.2, 1.3, 1.8 and 1.9 (hereafter described as the proposed Second, Third, Fourth, Ninth and Tenth Respondents) and described at the commencement of these Reasons). These parties, through their Counsel Mr Kearney SC, submitted that whilst they did not oppose joinder, there was no necessity for them to be joined;(c)whether Ms B Abdullayev (the husband’s mother) should be joined as a party. Counsel for Ms B Abdullayev (the proposed Sixth Respondent), Mr Rogan of Counsel, submitted she should not be joined;(d)whether the husband’s sisters Ms J and Ms K should be joined as parties. Counsel for these proposed Seventh and Eighth Respondents, Mr Barnett, submitted they should not be joined; and(e)in circumstances where undertakings were offered by entities and persons who may not become parties (depending on the result of the joinder applications), should instead the Court make the injunctions/restraining orders as identified in the minute of order.BACKGROUND Reflective of the complexity of the issues in this property case, at Appendix Two to these Reasons is attached a diagram of the “[E Group] Structure”. The interconnection between the entities so depicted is clear, and for the purpose of these discrete Reasons, it is not presently necessary to provide a description of each entity. Although the wife’s engagement formally arose from her responding to the husband’s Initiating Application seeking various s 78 declarations and ancillary orders under s 79 of the Act, the wife has filed on 3 April 2023 Points of Claim (“POC”) to which the proposed Second to Fourth and Ninth and Tenth Respondents have each filed a Response. The POC comprise 92 pages of pleaded facts or relief. I regard it as fairly uncontroversial to adopt the succinct summary in the wife’s outline of case document filed 10 November 2023 at paragraphs19 to 25, as follows:19.Throughout the marriage, the parties resided on (and worked in furtherance thereof) [livestock] properties operated by the husband’s family in […] Queensland. The husband, and his two sisters, are the children to his mother and late father, the latter of whom passed away [in] 2017.20.[In early] 2017 the husband’s late father executed his Last Will, and which followed estate planning advice received by the husband’s parents (the husband’s father had then been diagnosed as suffering [a medical condition]) at some time prior to [early]2016. One objective of the husband’s father was for his two daughters to receive a cash payment, and the balance of the estate to pass to the husband and to ensure there was no legal impediment to the husband “taking over 100% of the [agricultural] operations”. The husband’s late father was concerned to protect his estate from any claim by his children’s spouses.21.On his death, the husband’s late father left a significant estate consisting of landholdings and [livestock], which was subsequently managed by the husband and wife during the marriage and supplemented by the acquisition of other real property.22.In further of that stated objective, aside from a $2m cash payment to the husband’s mother and her retention of other specified personal assets, by his Last Will, inter alia, three testamentary trusts were established (comprising one for each of the husband and his two sisters). The trusts to benefit the husband’s sisters were to each receive $3,000,000 in cash (payable in instalments), and the [N Trust] (being that for the husband) was to receive the balance of the Estate.23.Annexed hereto is a corporate diagram prepared to identify the inter‑relationship of four trust and sixteen entities in which the husband directly or indirectly holds an interest which the wife has estimated to have an approximate value of $500,000,000.24.The husband estimated the land holdings and [livestock] bequeathed to the [N Testamentary Trust] at $100,000,000.25.That notwithstanding, he quantifies the parties’ property standing for alteration pursuant to sec 79 at just $2,413,604.(As per the original)

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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