B Pty Ltd and Ors & K and Anor

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FAMILY COURT OF AUSTRALIA

B PTY LTD AND ORS & K AND ANOR [2008] FamCAFC 113

FAMILY LAW - APPEAL – Application for permission to appeal – From decision of Family Court Judge – PROPERTY SETTLEMENT –The wife sought leave to amend her application to join six new respondents and to claim further relief against some third parties already respondents – Some of the third parties were trustee corporations and some were (with the husband in some instances) among appointors of discretionary trusts, of which the husband was a member of the class of beneficiaries – The wife sought that each of the directors jointly and severally cause the trustees of the trusts to make a capital distribution in favour of the husband in such sum as the court deemed appropriate – The wife further sought that the husband hold such sums distributed to him upon trust for the wife and forthwith upon receipt of the said sum pay it to the wife or at her direction – The third parties and the husband opposed the amendment on the basis that such powers as were contained in s 90AE could not found the orders that the wife sought – The parties and the court treated the stance taken by the third parties and the husband as analogous to an application for summary dismissal of the wife’s proposed claim – The trial Judge allowed the amendment – Against that order the third parties and the husband seek permission to appeal

FAMILY LAW - APPEAL – Application for permission to appeal – From decision of Family Court Judge – Question of constitutional validity of s 90AE – Appeal adjourned to enable notices to be given to Attorneys-General – Appeal resumed with Attorneys-General not seeking to be heard

FAMILY LAW - APPEAL – Application for permission to appeal – From decision of Family Court Judge – The scope of the powers deriving from s 90AE – Wording and meaning of s 90AE and Part VIIIAA – Whether, on the approach agreed by the parties, Part VIIIAA could arguably have supported the orders sought by the wife on the wife’s material then before the court and any non-contentious facts material to the claim – Permission to appeal granted – Appeal allowed – Application of wife to amend dismissed

Family Law Act 1975 (Cth), Part VIIIAA, s 4(ca)(i), s 79, s 90AA , s 90AC,
s 90AC(1), s 90AD, s 90AE, s 90AE(1), s 90AE(2),  s 90AE(2)(a), s 90AE(2)(b),
s 90AE(3), s 90AE(3)(a), s 90 AK
Family Law Rules 2004, r 10.12
Judiciary Act 1903 (Cth) s 78B
The Constitution paragraph 51(xxxi)
Dougherty and Dougherty v Dougherty (1987) FLC 91-823
General Steel v Commissioner for Railways (1964) 112 CLR 125
Gould v Gould; Swire Investments Ltd (1993) FLC 92-434
Hunt v Hunt and Others (2006) (2007) 36 FamLR 64
Law-Smith and Seinor (1989) FLC 92-050
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Spellson (1989) FLC 92-044
APPLICANTS: B PTY LTD AND…
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Details
Case
[2008] FamCAFC 113
Decision Date

CaseChat Overview and Summary

The case of B Pty Ltd and Ors v K and Anor involves a family law dispute in which the wife sought leave to amend her application for property settlement to join six new respondents and to claim further relief against existing respondents. The respondents, which included trustee corporations and appointors of discretionary trusts, opposed the amendment, arguing that the powers provided by section 90AE could not support the wife's claims. The Family Court allowed the amendment, and the respondents sought permission to appeal this decision. The appeal raised questions about the constitutional validity of section 90AE and the scope of the powers deriving from it. The appeal was adjourned to allow the Attorneys-General to be notified, but they did not seek to be heard.

The legal issues before the court were whether section 90AE could support the wife's claims and whether the wording and meaning of section 90AE and Part VIIIAA could arguably have supported the orders sought by the wife based on the material before the court. The respondents argued that the trial judge had erred in allowing the amendment, as the powers of the court under section 90AE did not extend to ordering the trustees to make a capital distribution in favour of the husband or to hold the sums distributed to him on trust for the wife. The wife, on the other hand, argued that the court had the power to make such orders under section 90AE and Part VIIIAA.

The court found that the appeal raised arguable points of law and that it was in the interests of justice to grant permission to appeal. The court held that section 90AE did not provide the court with the power to order the trustees to make a capital distribution in favour of the husband or to hold the sums distributed to him on trust for the wife. The court also held that the wording and meaning of section 90AE and Part VIIIAA did not support the orders sought by the wife. The appeal was therefore allowed, and the application by the wife to amend her application for property settlement was dismissed. The wife was ordered to pay the costs of the application for permission to appeal and the appeal.

The final orders of the court were that the applicants had permission to appeal the orders of Morgan J, that the appeal be allowed, that the application by the wife to amend her application for property settlement be dismissed, and that the wife pay the husband’s and the 2nd to 24th respondents’ costs of and incidental to the application for permission to appeal and of the appeal as agreed and in default of agreement, as assessed.

Orders

Orders of the court

1.

That the applicants have permission to appeal the orders of Morgan J.

2.

That the appeal be allowed.

3.

That the application by the wife to amend her application for property settlement in terms of the Minute dated 31 March 2005 be dismissed.

4.

That the respondent wife pay the husband’s and the 2nd to 24th respondents’ costs of and incidental to the application for permission to appeal and of the appeal as agreed and in default of agreement, as assessed.

Background

Background to the litigation

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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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