Antoun & Antoun (No 3)

Case [2025] FedCFamC1F 38

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Antoun & Antoun (No 3) [2025] FedCFamC1F 38

File number: PAC 796 of 2017
Judgment of: WILLIAMS J
Date of judgment: 31 January 2025
Catchwords: FAMILY LAW – PROPERTY – Major complex financial proceedings list – Interim applications – Where the wife alleges the husband has divested himself of the matrimonial pool – Application for joinder – Application to strike out pleadings – Application for security for costs – Order made for the proposed respondents to be joined as parties to the proceedings – Leave granted to amend the wife’s further amended points of claim.
Legislation:

Family Law Act 1975 (Cth) ss 78, 79, 102QAB, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 56, 69

High Court Rules 2004 (Cth) r 27.04

Legal Profession Uniform Law Australians Solicitors’ Conduct Rules 2015 r 21.4

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.03, 12.02, 12.15

Cases cited:

Akbar & Gandega (2023) 67 Fam LR 593; [2023] FedCFamC1A 174

Antoun & Antoun [2023] FedCFamC1F 129

Antoun & Antoun (No 2) [2024] FedCFamC1F 354

Frazier & Valdez (2016) FLC 93-729; [2016] FamCAFC 163

Hohol & Hohol (1980) FLC 90-824; [1981] VR 221

Quincey & Quincey [2023] FedCFamC1A 30

Wayne & Dillon & Anor (2008) Fam LR 543; [2008] FamCAFC 204
Division: Division 1 First Instance
Number of paragraphs: 86
Date of hearing: 16 December 2024
Place: Melbourne
Counsel for the Applicant: Mr Ford
Solicitor for the Applicant: Lewarne & Goldsmith
Counsel for the First Respondent: Ms Clark
Solicitor for the First Respondent: Brooklyn Bennett
Counsel for the Second Respondent: Mr Dura SC
Solicitor for the Second Respondent: Dentons
Counsel for the Third Respondent: Mr Dura SC
Solicitor for the Third Respondent: Dentons
The Fourth Respondent: Did not participate
The Fifth Respondent: Did not participate
The Sixth Respondent: Did not participate
Counsel for the Eighth Respondent: Ms Samolej
Solicitor for the Eighth Respondent: Thomson Geer
Counsel for the Proposed Ninth Respondent: Mr Dura SC
Solicitor for the Proposed Ninth Respondent: Kennedys Law
Counsel for the Proposed Tenth Respondent: Mr Dura SC
Solicitor for the Proposed Tenth Respondent: Dentons
Counsel for the Proposed Eleventh Respondent: Mr Dura SC
Solicitor for the Proposed Eleventh Respondent: Dentons
The Twelfth Respondent: Did not participate
Counsel for the Thirteenth Respondent: Mr Dura SC
Solicitor for the Thirteenth Respondent: Dentons
Counsel for the Proposed Fourteenth Respondent: Mr Dura SC
Solicitor for the Proposed Fourteenth Respondent: Dentons
Counsel for the Proposed Fifteenth Respondent: Mr Dura SC
Solicitor for the Proposed Fifteenth Respondent: Kennedys Law
Counsel for the Seventeenth Respondent: Mr Dura SC
Solicitor for the Seventeenth Respondent: Dentons

ORDERS

PAC 796 of 2017

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

MS ANTOUN
Applicant
AND:

MR ANTOUN

First Respondent

B PTY LTD

Second Respondent

MR C (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

31 JANUARY 2025

THE COURT ORDERS THAT:

1.Ms…

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Antoun & Antoun (No 3) [2025] FedCFamC1F 38
Case
[2025] FedCFamC1F 38
Decision Date

CaseChat Overview and Summary

The case of Antoun & Antoun (No 3) involved a complex family law dispute concerning the division of assets between the parties, Ms Antoun and Mr Antoun. The matter before the Court was a series of interim applications filed by Ms Antoun, seeking to join additional respondents, strike out certain paragraphs of her pleadings, and secure costs against the respondents. The proposed respondents, including Ms AE, PP3 Holdings, AF Pty Ltd, H Group, and QQ1 Holdings Pty Ltd, opposed the joinder and sought their own costs if the application failed. The primary legal issues before the Court were whether the additional respondents should be joined to the proceedings and whether certain paragraphs of the wife's pleadings should be struck out. The Court also considered the appropriate costs orders.

The Court concluded that the wife's claims, although not perfectly articulated, were based on allegations that the husband had orchestrated the transfer of matrimonial assets through his relatives and corporate entities. The Court decided to allow the joinder of the proposed respondents, emphasizing that the determination of the merits of the wife's claims would occur at trial. The Court also dismissed the application to strike out certain paragraphs of the wife's pleadings, noting that the allegations against the proposed 14th respondent as a "phoenix" company warranted further investigation. The Court ordered Ms Antoun to amend her pleadings to more precisely state her claims against the proposed respondents and set a timeline for these amendments. Additionally, the Court dismissed the respondents' application for costs.

The Court's orders included joining Ms AE, PP3 Holdings, AF Pty Ltd, H Group, and QQ1 Holdings Pty Ltd as respondents in the proceedings. The wife was required to file further amended points of claim and an amended initiating application within 28 days, with the respondents then having 28 days to file amended defences. The wife's initial and amended applications in the proceeding were dismissed, as was the respondents' response. The Court emphasised the importance of timely and clear pleadings in complex financial proceedings.

Orders

Orders of the court

PAC 796 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ANTOUN

Applicant

AND:

MR ANTOUN

First Respondent

B PTY LTD

Second Respondent

MR C (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

31 JANUARY 2025

THE COURT ORDERS THAT:

1. Ms AE be joined as the 9th respondent in these proceedings.

2. PP3 Holdings be joined as the 10th respondent in these proceedings.

3. AF Pty Ltd be joined as the 11th respondent in these proceedings.

4. H Group be joined as the 14th respondent in these proceedings.

5. QQ1 Holdings Pty Ltd be joined as the 15th respondent in these proceedings.

6. On or before 28 days from the date of these orders, if she seeks to do so, the wife

file and serve any further amended points of claim.

7. On or before 28 days from the date of these orders, the wife file and serve an Amended Initiating Application setting out the relief sought against each of the 9th, 10th, 11th, 14th, and 15th respondents.

8. Within 28 days of service of a Further Amended Points of Claim or Amended Initiating Application, any respondents affected, file and serve an amended defence or Response.

9. The wife’s Application in a Proceeding filed 28 August 2024 and her Amended Application in a Proceeding filed 16 October 2024 are otherwise dismissed.

10. The Response filed 12 December 2024 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The proposed respondents (9th, 10th, 11th, 12th and 14th) filed a Response on 12 December 2024 ( the Response), seeking the Amended Application in a Proceeding be dismissed, a costs order or alternatively a costs order against the solicitors for the applicant wife pursuant to Rule 12.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), paragraphs [181]-[202] (inclusive) and [203]-[206] (inclusive) of the Further Amended Points of Claim (“FAPC”) filed 28 August 2024 be struck out, and the applicant cause the sum of $1,756,986.30 to be deposited into Dentons Trust Account as security of costs for the 2nd, 3rd, 13th and 17th respondents to the FAPC. During the hearing, the Response was effectively treated as having been filed on behalf of the additional respondents and the proposed respondents.BACKGROUND The extensive background of the dispute between the parties is set out in paragraphs [5]-[7] of my reasons in Antoun & Antoun (No 2) [2024] FedCFamC1F 354 (“Antoun & Antoun (No 2), and by Riethmuller J in Antoun & Antoun [2023] FedCFamC1F 129 at [13]-[68], which I incorporate and rely on in these reasons. THE JOINDER APPLICATION The wife seeks to join the companies referred to respectively in paragraph 4 hereof as the 10th, 11th, 12th and 14th respondents and Ms AE as the 9th respondent. Although the application refers to QQ1 Holdings as the proposed 12th respondent, Ms G, was joined as the 12th respondent by orders made 16 November 2022. I will therefore now refer to the proposed respondent, QQ1 Holding sas the proposed 15th respondent. All proposed respondents oppose joinder and indeed, if the wife is unsuccessful in this regard, seek costs against her, and in the alternative, against her solicitors. The husband also opposed the joinder of the proposed respondents. Documents relied upon The wife relied upon the following documents:(i)Amended Application in a Proceeding filed 16 October 2024;(ii)Affidavits of the wife filed 28 and 29 August 2024;(iii)Outline of Case document filed 14 October 2024; and(iv)Documents from the wife’s tender bundle tendered during the hearing. The husband did not file any documents, but his counsel sought to make submissions. The proposed respondents (9th, 10th, 11th, 14th, and 15th) relied upon the following documents:(i)Response to an Application in a Proceeding filed 12 December 2024; (ii)Affidavit of solicitor filed 12 December 2024; and(iii)Outline of Case Document (not filed).Legal Principles Section 79(10)(b) of the Family Law Act 1975 (Cth) (“the Act”) states that “any other person whose interests would be affected by the making of the order, as sought by the parties, are entitled to become a party to proceeding”. Rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) addresses the procedure to join a party to proceedings. That Rule provides: A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in the proceeding, must be included as a party to the proceeding.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Secondly, the trial date has been set for May and if the trial is unable to proceed on the scheduled date because of the latest round of applications, the Court must balance the cost-effective resolution of the dispute and the prejudice to the other litigants, when considering whether to join the proposed respondents.Conclusion Whilst I acknowledge the wife’s case against each of the proposed respondents could have been more precisely and clearly articulated, it is evident that the basis of her claims is that the husband has manoeuvred and orchestrated his relatives and, in some instances, their corporate entities, to divert the claimed matrimonial assets of the husband and wife, from the asset pool. The wife relies on the involvement of the husband’s relatives as shareholders and directors in corporate entities and the involvement of the husband himself in the financial and business transactions of the various entities, in her attempt to claw back into the asset pool, what she asserts are matrimonial assets. It is regrettable that the wife’s claims and assertions did not come to light much earlier in the tortured interlocutory history of this proceeding. However, notwithstanding the unsatisfactory delay in bringing the applications, I do not propose to deny the wife the opportunity to prosecute her perceived claims. Whether or not her suspicions and assertions come to fruition will be a matter for the trial, evidence, and robust cross-examination. The wife is well aware of the cost consequences she may face if she is ultimately unsuccessful. If on the other hand, she is able to successfully assert her claim, the respondents may well themselves face significant cost consequences. The veracity of the claims cannot, in this Court, be determined on an interim basis, and because of less-than-optimal technical pleadings. This Court will determine the claims and counterclaims of all parties on the evidence presented at trial. I will make orders joining the proposed respondents as parties to the proceedings, and for the wife to file and serve an Amended Points of Claim should she seek to further particularise her claim. I will also order the wife to file and serve an Amended Initiating Application particularising the relief sought against the proposed Respondents to address the submissions of their counsel referred to at [32]. 28 days should be sufficient time to enable the wife to do so.STRIKE OUT APPLICATION The additional and proposed respondents seek to strike out paragraphs [181]–[202] (inclusive) and paragraphs [203]–[206] (inclusive) of the wife’s FAPC. The relevant paragraphs are found at pages 75-77 of the wife’s affidavit filed 29 August 2024. They pertain to the wife’s claim against H5 Group [181]-[202], the proposed 14th respondent, and her assertion of a common intention constructive trust with respect to H5 Group [203]–[206]. The strike out application was opposed by the wife. She asserts the proposed 14th respondent is a “phoenix” company of the former core electrical business previously operated by the husband and wife, H Group. The wife alleges H Group was allegedly sold by the husband to the 3rd respondent, his brother-in-law, Mr C, and the proposed 14th respondent has been transferred the website, social media account and projects of H Group, absent market consideration. Documents relied upon

Ratio Decidendi

Legal Principle Established

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