Beadle and Goodridge and Ors

[2018] FamCA 737

FAMILY COURT OF AUSTRALIA

BEADLE & GOODRIDGE AND ORS [2018] FamCA 737

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder of liquidator – transfer to Federal Circuit Court of Australia operates to vest that court with original jurisdiction in Corporations Law.

APPLICANT: Ms Beadle

RESPONDENT: Mr Goodridge

SECOND RESPONDENT: The Trustee of the Property of Mr Goodridge (A Bankrupt)

THIRD RESPONDENT: Mr Celan and Mr Handke in their capacity as Joint and Several Liquidators of J Pty Ltd (Acn …) (In Liquidation)

FILE NUMBER: MLC 10573 of 2015

DATE DELIVERED: 14 March 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 14 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Berry Family Law

COUNSEL FOR THE RESPONDENT: Mr R.D. Guy in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE SECOND RESPONDENT	Mr N McGibbon
SOLICITOR FOR THE SECOND RESPONDENT	Jirsch Sutherland Advisory & Consulting

COUNSEL FOR THE THIRD RESPONDENT: Ms Gobbo

SOLICITOR FOR THE THIRD RESPONDENT: Mills Oakley Lawyers
DX 558
MELBOURNE

Orders

So in the matter of Goodridge & Beadle, I make the following orders

IT IS ORDERED THAT

(1)The directions hearing on 23 March 2018 in this Court (being the first return date of the proceedings upon their transfer into this Court) be and is hereby vacated.

(2)The Bankruptcy Trustee of Mr Goodridge, being Mr Mulry, be joined as a party to these proceedings and hereinafter be known as the second named respondent.

(3)Pursuant to s 500(2) of the Corporations Act (2001) leave be granted to join J Pty Ltd (ACN 105 988 427) as a party to these proceedings NOTING THAT Mr Celan and Mr Handke are jointly and severally liquidators of the company and hereinafter be referred to as the third named respondent.

(4)The leave referred to in the previous paragraph of this Order is leave to join the company in liquidation. Any further steps not be taken in the proceedings without further leave being considered and granted by the Court.

(5)Pursuant to s 33B(1) of the Family Law Act this proceeding is hereby transferred to the Federal Circuit Court of Australia NOTING THAT the matter has been allocated a mention date by the Chambers of Judge Wilson on 12 April 2018.

(6)The costs of all parties be reserved.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beadle & Goodridge and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10573 of 2015

Ms Beadle

Applicant

And

Mr Goodridge

Respondent

And

The Trustee of the Property of Mr Goodridge (A Bankrupt)
Second Respondent

And

Mr Celan and Mr Handke in their capacity as Joint and Several Liquidators of J Pty Ltd (Acn …) (In Liquidation) and J Pty Ltd (Acn …) (In Liquidation)
Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes to me out of the judicial duty list and the orders sought today by the wife are to join a company in liquidation and a bankruptcy trustee in proceedings which have been heard for seven days by Judge Wilson of the Federal Circuit Court of Australia in the Melbourne Registry, but in respect of which no orders have been made altering property interests between the husband the wife.  Today, Mr Williams appears on behalf of the wife who attends Court with her mother.  The husband appears in person.  Mr Mulry was made the husband’s bankruptcy trustee on 7 December 2017 and remains so and he is before the Court without legal representation.

2. The liquidators (jointly and severally) of J Pty Ltd as trustee for the Goodridge Trust are Messrs Mr Handke and Mr Celan of C Accountants in Melbourne.  Ms Gobbo of counsel appears on behalf of the liquidators.

3. The husband is 43 years old and the wife is 48 years old.  The husband and wife were operating a farm in the region of D Town.

4. The husband and wife entered a de facto relationship in 2002 and never legally married.  They separated in 2015.  There is one child of the relationship, X, born in 2014.  She resides predominantly in the care of the mother and sees the father for at least one overnight period per week.  The father lives at Property B, D Town in Victoria and the mother lives with her mother, the maternal grandmother at F Street, G Town, which is near H Town.  The husband and wife, therefore, live approximately 180 kilometres away from each other.  As indicated, after separation there were proceedings in the Federal Circuit Court.  These were at the initiation of the wife and ran for some seven days before Judge Wilson, commencing on 7 August 2017 and concluding on 11 September 2017.  To date, no final orders have been made in relation to those proceedings.

5. On 29 November 2017, a liquidator was appointed to J Pty Ltd as trustee for the Goodridge Trust.  This was a voluntary liquidation at the hands of the husband.  He cited a statutory demand from the Australian Tax Office of in excess of $300,000 as the reason for entering into voluntary liquidation.  On 5 December 2017, Mr Mulry was appointed bankruptcy trustee for the husband on the husband’s own petition.  The proceedings before Judge Wilson, in respect of which the judge had reserved his decision, were mentioned on 19 December 2017 with no particular application to be determined before the Court.

6. On that day, I am informed from the bar table by counsel for the wife, that his Honour handed down reasons for decision. He asked the parties to provide proposed orders, which I gather were in the tradition of having counsel settle orders which were otherwise indicated.  However, no orders have been proffered, none have been accepted and none have been made. 

7. In 2017, there was a hearing in the Supreme Court in which the liquidator to J Pty Ltd was appointed and various other orders made.  The fairly extensive orders appear at page 180 to 182 of the affidavit of Mr Handke, sworn 6 March 2018.  The orders were made in those proceedings and Ms Gobbo, who appears today for the liquidators, appeared for the liquidators. 

8. On 13 February 2018, the matter came back before Judge Wilson in the Federal Circuit Court at Melbourne.  The upshot of that hearing was that the proceedings pending before Judge Wilson in respect of which his decision still remain reserved was transferred to this Court. 

9. One element of the transfer was that it was then necessary for the wife to seek leave to join the company in liquidation. Section 500, subsection (2) of the Corporations Law provides that:

   After passing of a resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the court and subject to such terms as the court imposes.

10. For the purpose of that section, the Federal Circuit Court of Australia is not a “Court”. However, the Family Court is, as the Family Court has original jurisdiction in Corporations Law.

11. Today, before me is the wife’s Application in a Case filed 20 February 2018 in which she seeks a raft of orders.  Relevantly for today, she seeks that there be leave and joinder of the company in liquidation and that the trustee in bankruptcy also be joined.  She seeks various restraining orders against the company in liquidation and the bankruptcy trustee, however, both have said from the bar table that they will not be in any position to call in or distribute any funds to unsecured creditors or in circumstances that would prejudice the wife for some months, and certainly not before the date which I have been fortunate to ascertain from Judge Wilson’s chambers, is available to have this matter mentioned before Judge Wilson.  Therefore, whilst the restraining orders are sought and the application certainly not abandoned, they are not pressed by the wife today. 

12. A further raft of orders is sought by the wife in relation to disclosure. 

13. I have already discussed with the parties my intention to transfer this matter back to the Federal Circuit Court of Australia.  I have considered whether it would be sufficient to make only that order and leave it to Judge Wilson to consider the application for joinder.  I have decided against that course because it seems to me that there is some economy in the parties being able to be governed by rules of court, that is, the Federal Circuit Court, between now and the mention date, and to take advantage of any matters around disclosure and discovery.  That said, I’ve been informed by counsel for the liquidators of the company that any information requested by the wife will be made available to her so it may be that ultimately discovery in a formal sense is not required.  Again, orders for discovery form part of the wife’s application in a case and though those have not been abandoned, the wife is not pressing for those particular orders today. 

14. In relation to joinder, the trustee in bankruptcy takes no issue. However, the liquidators have taken issue with the wife’s application to join them. Ms Gobbo, on behalf of the liquidators, submits that it is not apparent why the company in liquidation needs to be joined and relies on the previous Supreme Court orders made in 2017 as giving the liquidator power to deal with all of the property of the trust of which the liquidator is now the trustee, and providing liberty to any other party to apply to the Supreme Court in the event that they seek other or further orders.  I do not accept those grounds as being valid grounds to oppose a joinder. The effect of the joinder is to subject the liquidator to all the rights and responsibilities of a party to the proceedings. The liquidator will be bound by orders of the court.

15. Assets of the trust may ultimately be found by this Court, or the Federal Circuit Court, to be the property in which the wife has a legal or equitable interest.  It seems to me that it is essential that the liquidator of the trustee company be a party to these proceedings, however, in case I’ve missed something, or misconstrued something, I will make only an interim joinder. That is, I will join the company now but specify that joinder can be re-agitated in the Federal Circuit Court rather than my order needing to be appealed.

16. It is not my intention to see them financially disadvantaged in having to navigate between two courts which administer the one body of law in now concurrent jurisdictions, even including Corporations Law. I trust that will be the case as the proceedings progress

    RECORDING   :   NOT TRANSCRIBED

17. It has been clarified for me that both the bankruptcy trustee and the liquidators have a copy of Judge Wilson’s reasons.  Now they are parties to the proceedings, they are also entitled to all other documents on the court file.  Mr Williams tells me that no transcript has been ordered or obtained by his client.  I don’t know whether any has been ordered or obtained by the court for the seven days of trial.

18. They are obviously entitled to all documents on the court file, and my court officer has agreed to photocopy the court file index for them before they leave court today.  They will be able to use that to check what documents they should have.  Mr Williams for the wife has indicated that his instructing solicitor will provide them with all “relevant documents” from the proceedings.  But relevance, as considered by the wife, does not necessarily bind them.  You can go and look for other documents yourself.  But the documents from the wife would appear to be a good way to start. 

    I took the opportunity to stand the matter down and contact Judge Wilson’s chambers.  I’m informed that the duty list on Thursday, 12 April 2018 is full or is at capacity for duty list matters and for abridged matters, but that there is a directions “bucket” (not my term) into which this matter can be placed, and it will accordingly be listed on 12 April 2018 for directions only. 

    ORDERS DELIVERED

19. As indicated, I will make an order transferring these proceedings to the Federal Circuit Court of Australia. I do so pursuant to section 33B of the Family Law Act 1975.

20. Section 33B(8A) of the Family Law Act provides that the Federal Circuit Court of Australia has jurisdiction in a matter that is the subject of a proceeding transferred to the Court under section 33B and is a matter in which that court does not have jurisdiction apart from this sub-section. Further, to avoid doubt, the Federal Circuit Court’s jurisdiction under this sub-section is not subject to limits set by another provision. Accordingly, the transfer operates to vest in the Federal Circuit Court of Australia with the jurisdiction that this court has in relation to this matter including its original jurisdiction in Corporations Law.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 14 March 2018.

Associate: 

Date:  17 September 2018