B Pty Ltd and Ors & K and Anor

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.