Anderson v McPherson - [2009] WASC 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ANDERSON -v- McPHERSON [2009] WASC 35

CORAM: JOHNSON J

HEARD: 24 JULY 2008

DELIVERED : 25 FEBRUARY 2009

FILE NO/S: CIV 2210 of 2007

BETWEEN: BRUCE WILLIAM ANDERSON
First Plaintiff
CAROLYN ANDERSON
Second Plaintiff
AND
STEPHANNIE MARRIEE McPHERSON
First Defendant
TROY KENNON ANDERSON
Second Defendant

Catchwords:

Cross-vesting - Actions related to more appropriate court - Interests of justice - Action arising out of other action

Legislation:

Family Law Act 1975 (Cth), s 79, s 90AE
Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 4, s 5, s 10
Family Law Rules 2004 (Cth)

Result:

Application refused

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr A P Rumsley
Second Plaintiff             :     Mr A P Rumsley
First Defendant              :     Mr D J Morris
Second Defendant         :     Ms S M Holgate

Solicitors:

First Plaintiff                  :     Alan Rumsley
Second Plaintiff             :     Alan Rumsley
First Defendant              :     Bruce Havilah & Associates
Second Defendant         :     Slater & Gordon

Case(s) referred to in judgment(s):

Bourke v State Bank of NSW (1988) 85 ALR 61
Carey v Carey (Unreported, WASC, Library No 8307, 14 June 1990)
Commonwealth v Silverton Ltd (1991) 103 FLR 251
Dawson v Baker (1994) 120 ACTR 11
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Osmond v Osmond (1988) FLC 91‑953
Re Chapman & Jansen (1990) 13 Fam LR 853
Seymour v Devine [2003] WASC 260
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460

JOHNSON J: The first defendant, Stephanie Marriee Anderson, has applied to this court under s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) (the Act) to have the above action (the Supreme Court action) transferred to the Family Court of Western Australia to be heard together with an action already commenced by the first defendant in that court against the second defendant in this action (the Family Court proceedings). The second defendant, Troy Kennon Anderson, was the first defendant's de facto partner, and is the son of the first and second plaintiffs.

The facts

On 14 April 1994 the plaintiff and the defendants purchased a property at 44 Anstey Road, Forrestdale (the property). The title reflects the fact that the two plaintiffs own one undivided half share in the property and the two defendants own the other undivided half share.
The price paid for the property was $223,455.45 inclusive of stamp duty and fees. The purchase price was paid from the proceeds of sale of the plaintiffs' two properties in Palmyra, a total sum of $183,455.38, and a loan in the sum of $40,000 taken out by the plaintiffs and the defendants jointly from the ANZ Bank, and secured over the property.
A meeting had been held between the plaintiffs and the defendants in December 1993, at which time it was agreed that the plaintiffs would build a second house on the property. The cost of the house would be paid by way of another loan from the ANZ Bank for…

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 Anderson v McPherson

Details

AGLC: Anderson v McPherson [2009] WASC 35
Case: [2009] WASC 35
Decision Date: 25 FEBRUARY 2009

CaseChat Overview and Summary

The matter of Anderson v McPherson was heard in the Family Court of Australia. The dispute arose between the parties regarding the ownership of property, specifically a property that was jointly owned by the husband and wife. A third party, who had an interest in the property, sought to intervene in the proceedings in the Family Court, which were originally commenced in the Supreme Court. The third party argued that their participation was necessary for the Family Court to determine the issues in dispute, and that the Family Court should have jurisdiction to make orders regarding their rights in relation to the property.

The legal issues before the court were whether the Family Court had jurisdiction to hear the third party's claims, and whether the third party's participation was necessary for the Family Court to determine the issues in dispute. The court considered the relevant provisions of the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth), as well as relevant case law. The court noted that under s 79(10) of the FLA, a third party may apply for appropriate orders regarding their rights in relation to real property. However, the court also noted that the Family Law Rules 2004 (Cth) require that the participation of the third party be necessary for the court to determine all issues in dispute. The court held that where the third party’s entitlement to property jointly owned by the husband wife is first determined in the Supreme Court, it would not be ‘necessary’ for the third party to be joined in the Family Court proceedings.

The court refused the application by the third party to intervene in the proceedings in the Family Court. The court found that the third party's entitlement to the property had already been determined in the Supreme Court proceedings, and that their participation was not necessary for the Family Court to determine the remaining issues in dispute. The court held that the Family Court did not have jurisdiction to hear the third party's claims, and that the application should be dismissed.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 79 relevantly provides:79 Alteration of property interests(1)In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them ‑ altering the interests of the party to the marriage in the property; or(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage ‑ altering the interests of the bankruptcy trustee in the vested bankruptcy property;including:(c)an order for settlement of property in substitution for any interest in the property; and(d)an order requiring:(i)either or both of the parties to the marriage; or(ii)the relevant bankruptcy trustee (if any);to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.…(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and(e)the matters referred to in subsection 75(2) so far as they are relevant; and(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage....(10)The following are entitled to become a party to proceedings in which an application is made for an order under this section:(a)a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made;(b)any other person whose interests would be affected by the making of the order.It can be seen that, under s 79(10) of the FLA a third party may apply for appropriate orders regarding their rights in relation to real property. In Carey v Carey [8], Franklyn J noted that an order under s 79 of the FLA can only be made in respect of 'the property of the parties to the marriage or either of them'. Franklyn J also noted, with the respect to the relevant issue in the Supreme Court proceeding, that the validity of the contract was a matter necessarily to be established before any order was made under either s 79 or s 85 of the FLA and that, in his opinion, that could be done with out any injustice to the plaintiff 'just as well in these proceedings by judges well conversant by experience with the law and equitable principles involved, and indeed such a preliminary determination might well be of considerable assistance to the Family Court when it comes to consider the matters before it': Carey v Carey [9].The Family Law Rules 2004 (Cth) also deal with the involvement of third parties in proceedings in the Family Court. Rule 6.02 provides:6.02Necessary partiesA person [who is not an applicant or a respondent, but] whose rights may be directly affected by an issue in a case and whose participation as a party is necessary for the court to determine all issues in dispute, must be included as a party.It can be seen that there is an express requirement that the participation of the third party be necessary for the court to determine the issues in dispute. Therefore, where the third party’s entitlement to property jointly owned by the husband wife is first determined in the Supreme Court, it would not be ‘necessary’ for the third party to be joined in the Family Court proceedings.