Blue and Blue and Ors

[2010] FamCA 619

FAMILY COURT OF AUSTRALIA

BLUE & BLUE AND ORS [2010] FamCA 619

FAMILY LAW – PROPERTY – Wife’s claim stayed pending outcome of Supreme Court proceedings – Nature and value of asset pool not able to be established until conclusion of the Supreme Court proceedings

Family Law Act 1975 (Cth) s79

APPLICANT: Ms Blue

FIRST RESPONDENT: Mr Blue

SECOND RESPONDENT: Ms Trent

OTHERS:	Third Respondent to Thirty-fifth Respondent (R Group)
OTHERS:	Thirty-sixth Respondent to Thirty-ninth Respondent (BN Group)

FILE NUMBER: BRF 3188 of 2005

DATE DELIVERED: 7 July 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 7 July 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Hirst

Hirst & Co

THE FIRST RESPONDENT: In person

THE SECOND RESPONDENT: In person

THE THIRD RESPONDENT TO THE THIRTY-FIFTH RESPONDENT (R GROUP): The first respondent in his capacity as a director and/or trustee of each of them

SOLICITOR FOR THE THIRTY-SIXTH RESPONDENT TO THE THIRTY-NINTH RESPONDENT (BN GROUP):

Mr Somers

Russell & Company

Orders

1. The husband’s application for the transfer to this Court of Action No … in the Supreme Court of Queensland (the Supreme Court proceedings) for hearing and determination with these proceedings is dismissed.

2. These proceedings are stayed until the finalisation of the Supreme Court proceedings or earlier order.

3. The matter be removed from the docket of the Honourable Justice O’Reilly and be placed on a List of Non-Active Matters to be maintained by the Registry. 

IT IS NOTED that publication of this judgment under the pseudonym Blue & Blue and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 3188 of 2005

MS BLUE

Applicant

And

MR BLUE

Respondent

And

OTHERS

REASONS FOR JUDGMENT

1. These proceedings were commenced by the wife by application filed on 3 November 2005 for a final property order under s79 of the Family Law Act 1975 (Cth). On 22 August 2008, I dismissed an application by the wife for an order under s79(5) of the Act that the proceedings be deferred until the completion of certain development projects by companies and trusts said to be controlled by the husband and gave reasons for judgment on that date.

2. Since then, however, the matter has not progressed very far.  On 13 February 2009, the trial dates which I had fixed for the matter, 1 to 19 June 2009, were vacated at the request of the parties.  Registrar Bint ordered that no further material be filed by the parties without leave of the Court and further that any application or material lodged in the Court be directed to the Docket Registrar for filing and listing consideration.

3. The husband is the first respondent.  His partner, Ms Trent, is the second respondent.  There are several corporate respondents, namely the third to the thirty-fifth respondents, each or most of which is or are a proprietary company with a discretionary trust sitting under it in what might loosely be called the R Group.  In addition, the thirty-sixth to thirty-ninth respondents, for convenience called the BN Group, are Mrs BN, the thirty-sixth respondent, the Executors of the Estate of her late husband, Mr BN, the thirty-ninth respondent and two companies associated with him or them who are the thirty-seventh and thirty-eighth respondents.

4. It was foreshadowed as long ago as 2008 that Mrs BN would commence proceedings in the Supreme Court of Queensland in relation to a claim that her late husband’s Estate, in effect, was entitled to a 50% or thereabouts interest in the assets of the R Group.  The wife in these proceedings has denied that.  Hence, there was commonality of issue in these proceedings in relation to identification of the nature and assets in the pool, and in the Supreme Court proceedings as to the success or otherwise of Mrs BN’s claim.

5. The proceedings in the Supreme Court, however, which is a surprise to me, were not in fact commenced until 3 February 2010.  The claim and statement of claim are exhibits 1 and 2 tendered today.  The defence in those proceedings of Mr Blue, the husband in these proceedings, is annexure CB4 to the wife’s affidavit filed for the purpose of today’s proceedings, and the unfortunate present state of the R Group is as represented in two updates annexed to the same affidavit and a third update 8 June 2010 tendered today, ex 3.

6. The listing today was one agreed to by me at the parties’ request for a mention to see, in effect, the likelihood of the matter proceeding in this Court or whether these proceedings should be stayed until the outcome of the Supreme Court proceedings are known. 

7. Mr Hirst, Solicitor, who appeared for the wife today, has sought the latter, that is, stayed until the outcome of the Supreme Court proceedings is known.

8. The husband, who appeared for himself, sought to enliven relief in a document styled points of claim filed 13 November 2009 which in effect seeks (although this is not what the document in its terms seeks) that the BN proceedings in the Supreme Court be brought here for hearing and determination by order by me. 

9. Ms Trent, the second respondent, submitted that she simply seeks clarification as to whether the matter is going to proceed in this Court or await the determination of the Supreme Court proceedings. 

10. Apart from the Supreme Court proceedings which I have mentioned, there is a second set of Supreme Court proceedings in which the BN Group makes a separate claim against Ms Trent in relation to a house property at O.

11. Mr Somers, Solicitor, who appeared for the BN Group, provided a brief written outline.  Mr Somers pointed to the circumstance that by an order made by me on 8 October 2008 the husband was to file points of claim against the BN Group by 19 November 2008, the BN Group file points of response by 3 December 2008 and any application in a case by the BN Group for their removal as respondents, on the basis of objection to jurisdiction or otherwise, together with supporting material was then to be filed and served by 17 December 2008 but the husband at no stage complied with those orders by filing points of claim against the BN Group. 

12. Mr Somers submitted, which is correct, that the points of claim filed by the husband on 13 November 2009 is differently directed and does not match the points of claim the subject of my order.  Mr Somers resists the husband’s application that the BN Supreme Court proceedings by any order of mine should be brought here and properly raised that if such an application were to be more earnestly explored then he would need opportunity with proper notice to argue matters of jurisdiction and cross vesting. 

13. Mr Somers also had no notice today of the wife’s application for a stay of her own proceedings here.  He seeks that having regard to the existence of the BN Supreme Court proceedings, the wife’s claim against the BN Group now be struck out. 

14. Dealing with each of the applications in turn, it seems to me to be not just sensible, but rather inevitable, that unless I allow the husband’s application that the BN Supreme Court proceedings be transferred here, which could only occur by way of accrued jurisdiction, if such be found to attach, the wife’s proceedings in this Court be stayed until the outcome of the BN Supreme Court proceedings is known. The reason for that, plainly enough, is that until the outcome of the claim by the BN Group is known, whether determined here or in the Supreme Court, then the pool, for the purpose of the s79 proceedings, simply cannot be identified.

15. In relation to the husband’s claim that I order the BN Supreme Court proceedings to be transferred here, although the argument was not fully developed, that is not an application which I would favourably entertain even if there were demonstrated accrued jurisdiction for me to order that, which I would doubt.  That is because the BN parties are free to choose the forum for their litigation and they have chosen the Supreme Court of Queensland.  Secondly, the proceedings there are relatively well developed, at least to the extent of close of pleadings, and the pleadings are complex and extensive.  Thirdly, there has been no challenge by the husband in the Supreme Court to jurisdiction of the Supreme Court, or application by the husband made to the Supreme Court that the proceedings there be stayed and transferred here, and if there were such, then Mr Somers has made clear there would be strong resistance by the BN parties. 

16. Finally, the husband has said in submissions today that the state of solvency of the R Group may seriously be doubted at this stage.  One of the projects is potentially in debt to the extent of $117 million.   In relation to others, there is a banker standing behind awaiting completion such that possibly after sale there would be not much left.  Although these matters were stated from the Bar table, and were not in evidence, if that is the state of things then that would not augur well for the prospect of the BN proceedings being dealt with here any more expeditiously than in the Supreme Court, whereas, as I have said, they are well developed in the Supreme Court at least to the close of pleading stage.  So without more, leaving aside the question of jurisdiction here, and even for the sake of argument assuming it to exist, in the exercise of my discretion I would not order the BN proceedings to be stayed in the Supreme Court and litigated here and accordingly I dismiss the husband’s application. 

17. As to whether the wife’s claim against the BN parties in these proceedings should now be struck out because of the existence of the BN Supreme Court proceedings, or whether that should be left until another day pending the finalisation of the BN Supreme Court proceedings, it seems to me that the latter is the appropriate course, particularly as the husband did not have notice today of that application.  Further, if the proceedings here are stayed, which plainly from all that I have said I propose to do, then there is no hardship or prejudice to the BN parties other than being named in the proceedings. An end should not be put to that until the BN Supreme Court proceedings are finalised. 

18. I will make orders accordingly.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly

Associate:                 

Date:    22 July 2010