Agisaliou and Agisaliou

[2007] FamCA 1371

FAMILY COURT OF AUSTRALIA

AGISALIOU & AGISALIOU [2007] FamCA 1371

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment of property proceedings – Supreme Court originating motion filed – Accrued jurisdiction – One justiciable controversy – Application for anti-suit injunction – Directions

Family Law Act 1975 (Cth)
Trustee Act 1958  (Vic)

APPLICANT: Mr Agisaliou

RESPONDENT: Mrs Agisaliou

FILE NUMBER: MLF 3695 of 2004

DATE DELIVERED: 12 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 12 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Moshinsky QC with Mr. J.M. Salamanca

SOLICITOR FOR THE APPLICANT: McKean Park

COUNSEL FOR THE RESPONDENT: Mr G.P.L Thompson

SOLICITOR FOR THE RESPONDENT: Webb Korfiatis

Orders

1. That the wife have leave to file and serve an application and supporting affidavits on the plaintiffs in Supreme Court of Victoria proceedings …/2007 (“the Supreme Court proceedings”) seeking :

   (a)that the plaintiffs be joined as respondents to the proceedings in this Court; 

   (b)an injunction to restrain the plaintiffs from proceeding with the Supreme Court proceedings until further order;  and

   (c)such other orders as the wife sees fit.

2. That if the wife proposes to rely on material previously filed herein in support of an application made pursuant to paragraph (1) hereof, she serve copies of that material upon the plaintiffs in the Supreme Court of Victoria proceedings. 

3. That service on the plaintiffs in the Supreme Court proceedings may be effected by facsimile.

4. That an application filed pursuant to paragraph (1) hereof, together with all other extant applications, be adjourned to 10:00 am. on 15 November, 2007. 

5. That if the plaintiffs, or any of them, in the Supreme Court proceedings seek to oppose an order sought by the wife in an application filed pursuant to paragraph (1) hereof, he or she file and serve a response to the wife’s application and any affidavits on which he or she relies, by 4:15 pm. on 14 November, 2007. 

6. That the wife, the husband (in the event he wishes to be heard in respect of the wife’s application pursuant to paragraph (1) hereof) and the plaintiffs in the Supreme Court proceedings (if they seek to oppose orders sought by the wife in an application filed pursuant to paragraph (1) hereof) file a short summary of argument by 4:15 pm. on 14 November, 2007. 

7. That until further order the husband by himself, his servants and agents be and is hereby restrained from further encumbering the former matrimonial home at H and from accessing the drawdown facility relating to the mortgage over that property.

8. That these orders be expedited forthwith.

1. That a sealed copy of these orders be sent as a scanned attachment to an email addressed to the solicitors for the plaintiffs in the Supreme Court proceedings, being Kennedy Guy, at email address […]. 

2. That all costs of this day be reserved.

3. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

4. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including senior counsel.

AND THE COURT NOTES   the attendance today by Mr. Maloney of counsel, instructed by the solicitor for the plaintiffs in the Supreme Court proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Agisaliou & Agisaliou is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3695 of 2004

MR AGISALIOU

Husband

And

MRS AGISALIOU  

Wife

REASONS FOR JUDGMENT

1. The proceedings between the husband and wife commenced in December 2004.  According to a judgment of Young J, of 18 July 2007, there ensued "a long and tragic history" of litigation about their children.  Final parenting orders were made this year, by Mushin J.

2. The cross-applications for property and financial orders were before Young J on 18 July.  His Honour's judgment suggests there was a deal of discussion between him and counsel for the parties.  In due course the husband sought an adjournment, which was granted and the husband was ordered to pay the wife's costs, which were fixed at $6,200.

3. His Honour's reasons set out his understanding of the parties’ then positions.  In the property proceedings the wife sought the transfer of the former matrimonial home to her; the retention of a car, superannuation, personal assets and a payment of $25,000 earlier received (possibly pursuant to a Barro order);  and the payment of a lump sum, which seems to have started at $600,000 and, by the time his Honour's ruling was made, was at $520,000.  She sought that some part of that lump sum be satisfied by the transfer to her of another real property in G, with an agreed value of $320,000.

4. His Honour's summary records that at that time the husband conceded the transfer of the interest in the former matrimonial home to the wife and the retention by her of the car, superannuation, personal assets and payment already made.  He proposed a lump sum payment to her of some $100,000.  Thus, the parties were a long way apart. 

5. In terms of the pool then identified by his Honour, it was, on the husband's material some $1.71 million and, on the wife's material some $1.8 million.  His Honour referred to the issue of potential capital gains tax and problems arising from uncertainties about the tax returns for the year ending 30 June 2004, and he made a number of orders which went to clarifying those issues. 

6. The principal asset of the parties, as his Honour noted, is a property at F, then with an agreed value of $1 million.  In respect of that asset, his Honour, in paragraph 11 and the following paragraphs, referred to the fact that that property was owned by a family trust, to the portions of the husband's affidavit which dealt with the issue, and to the evidence of the husband's father and sister about the trust. 

7. His Honour noted that when the trust was established, its principal asset was the F property.  He noted the conflict in the evidence about it and, in paragraph 12, recorded:

   I now well and truly understand and on instructions Mr Thompson has indicated,  that his (the husband’s) statement of assets and liabilities to the court is correct and the court can regard the assets of the […] Family Trust as those of the husband and/or available for adjustment in this case. 

8. His Honour referred to a discrete, but live, issue, relating to a sum of $50,000 allegedly due to the husband’s sister.  His Honour made a number of orders aimed at getting the matter ready for trial and adjourned it to today. 

9. Last Friday, the husband's sister and her two children (they by litigation guardians) issued an originating motion in the Supreme Court of Victoria, seeking relief under the Trustee Act 1958.  In the originating motion the plaintiffs allege that the trustee of the Family Trust, which is the husband, did not properly administer the trust between 2002 and 2007 and breached obligations to the plaintiffs.  It seeks the husband's removal as trustee, guardian and appointor and the appointment of either named other relatives or other fit and proper people in his stead. 

10. The husband, who is the defendant to that application, has obviously not had time to enter an appearance in the Supreme Court.  I am told Mr Thompson's instructor will be acting for him in that case; that is, he will be represented by the same solicitor in the proceedings in this court and in the Supreme Court.  Mr Moloney has appeared this morning.  He is counsel for the plaintiffs in the Supreme Court action and has indicated his preparedness to assist this court with advice about that litigation; he has not sought leave to intervene in these proceedings and I take his presence here as a courtesy.

11. The husband's case is simple.  On his behalf it is submitted that this court cannot determine the competing claims between the husband and wife until the asset pool is established.  As the asset pool cannot be established until the Supreme Court proceedings are determined, there must be an adjournment of these proceedings until those proceedings are determined. 

12. The wife's submission is that this is an abuse of process of the Supreme Court and contemptuous of this court.  Factually, it is put that both the husband's sister and the husband’s father have sworn affidavits filed in these proceedings.  There is no mention in that material of this alleged claim or the alleged breaches of the trustee's duties and indeed, the husband’s father swore an affidavit deposing to the reasons the husband became the trustee and appointor of the trust.  It is submitted that this is simply a ploy to delay further the determination of proceedings between husband and wife and to deny the wife her proper entitlement.  If that is found to be the case, that would sound in costs and, one could well imagine, indemnity costs.  Perhaps more importantly, one can imagine such a finding having the capacity to do significant damage to the husband’s credit in the substantive proceedings between husband and wife in this court. 

13. Further, it is submitted that the Supreme Court does not have the jurisdiction to deal with the issue, because the matter is already vested in this court.

14. On the bare material before me, it is certainly arguable that the competing claims in respect of the trust assets under State law fall within the accrued jurisdiction of this court.  The relevant law is rehearsed in numerous cases, some of which have been referred to by senior counsel for the wife.  It is put that there is one justiciable controversy and that questions of alleged third party entitlements under a family trust are routinely litigated in this court as integral to the determination of applications by parties to a marriage. 

15. Reference has also been made to the recent amendments to the Family Law Act1975 contained in Part VIIIAA, which relate to third parties; it is said they “reinforce” the jurisdiction. 

16. A number of options were foreshadowed in the course of submissions.  One could be an application by the husband, who is a party to the Supreme Court proceedings, for transfer to this court under the State legislation.  Another is what is commonly called an anti‑suit injunction. 

17. The problem the wife faces is that the plaintiffs in the Supreme Court proceedings are not represented today.  I do not take Mr Moloney's presence here to constitute an appearance for the husband’s sister or on behalf of the other plaintiffs.  I do not believe I can do so.  The wife's submission is that her absence is part of the husband’s tactical and strategic ploy.

18. Senior counsel for the wife has said - I do not do his submissions justice to summarise them in this way - "Enjoin the plaintiffs today on an interim ex-parte basis from proceeding further with the Supreme Court proceedings.  Start the case between the husband and wife today, because there are many other matters in dispute, referable to matters such as contributions and s.75(2) factors.  Bring the application for the anti-suit injunction back, possibly later this week, and proceed." 

19. While that is a tempting scenario, in my judgment it is not feasible.  It is not feasible, because to do so would be to prejudge the outcome of the application for an anti-suit injunction.  If the wife were successful, what is proposed by senior counsel could perhaps be seen as unorthodox, but efficient.  But if she were not successful, the potential for a lengthy delay before the Supreme Court proceedings were determined could mean that this case would be part‑heard before me for a very long time.  Indeed, on recent experience of a not dissimilar case, it could still be part‑heard when I retire. 

20. Although I have a deal of sympathy with the wife, who is facing yet another adjournment, and understand the reasons for her scepticism, I believe I have no option but to put in place a process which will allow the wife to apply for orders which would enable the whole of the controversy to be dealt with in this court.  The orders will require the solicitors for the wife and those for the plaintiffs to act swiftly in the preparation of material and co-operatively in terms of service.  I will then consider that application later in the week.

I certify that the preceding 20 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

12 November 2007