FAMILY COURT OF AUSTRALIA
| BOURKE & BOURKE AND ANOR | [2009] FamCA 27 |
| FAMILY LAW – PROPERTY – Practice and procedure – Application to strike out – Claim against Third Party – Claim pursuant to s 106B – Claim pursuant to Part VIIIAA – Principles applicable to Part VIIAA claims |
| Family Law Act 1975 (Cth) ss 106B, 90AE(2)(b), 90AE(3)(a) |
| B Pty Ltd and Ors v K and K (2008) FamCA FC 113 BA P Association and Ors v K and Ors [2006] FamCA 518 Bigg v Suzi (1998) 22 FamLR 700 Black & Kellner (1992) FLC 92-287 Burns v Burns (1967) 10 FLR 441 Doherty & Doherty (1996) FLC 92-652 Heath & Heath Ex Parte Westpac Banking Corporation (No 2) (1984) FLC 91-517 Hunt v Hunt and Ors [2007] 36 FamLR 64 In the marriage of Abdullah [1981] FLC 91-003 In the marriage of Gould [1993] 17 FamLR 156 Kennon & Kennon (1997) 22 FamLR 1 Kowaliw & Kowaliw (1981) FLC 91-092 Lindon v Commonwealth of Australia (No. 2) (1996) 136 ALR 251 Omicini & Omicini (2005) FLC 93-218 Pflugradt [1981] FLC 91-052 Townsend (1994) 18 FamLR 505 |
| APPLICANT: | Mr Bourke |
| RESPONDENT: | Ms Bourke |
| 3rd PARTY: | S Pty Ltd |
| FILE NUMBER: | MLF | 2814 | of | 2006 |
| DATE DELIVERED: | 30 January 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 15 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr O'Connor |
| SOLICITOR FOR THE APPLICANT: | Callahans Lawyers |
| SOLICITOR FOR THE RESPONDENT: | No appearance by the Husband |
| COUNSEL FOR THE INTERVENOR: | Mr Davis |
| SOLICITOR FOR THE INTERVENOR: | McBain Lawyers |
Orders
Paragraph one (1) of the Amended Response to an Application for Final Orders filed 11 December 2008 is dismissed.
Paragraph two (2) of the Amended Response to an Application for Final Orders filed 11 December 2008 is dismissed.
Leave be granted to the Third Party to plead to the statement of claim of the applicant wife, to be filed and served within 28 days of the date of these orders.
Any application for costs by either party be made and supported by written submissions forwarded by email to my associate and to the other parties within 28 days of the date of these orders.
Any reply to any such submissions, restricted to issues of law and errors of fact, be filed within a further seven days thereafter.
If neither party files either any such application and submissions in the time frame specified, or any order by consent in that respect, it is ordered that the costs of and incidental to the hearing of the application by the third party on 15 December 2008 be reserved to the trial.
The matter be adjourned to a registrar at a time and on a date to be advised for further directions, such date to be on or after 11 March 2009.
IT IS NOTED that publication of this judgment under the pseudonym Bourke & Bourke is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT… |
Continue reading Bourke and Bourke and Anor
Sign in free to access the full text
- AGLC
- Bourke and Bourke and Anor [2009] FamCA 27
- Case
- [2009] FamCA 27
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the third party should be granted leave to plead to the statement of claim filed by the applicant wife. This involved determining whether the third party had a sufficient interest in the proceedings to warrant their intervention and participation in the litigation.
Murphy J reasoned that leave should be granted to the third party to plead to the statement of claim. This indicates the court found that the third party had demonstrated a legitimate basis for their involvement in the proceedings. The court's orders reflect a procedural step to allow the third party to formally respond to the wife's claims, thereby advancing the litigation.
Consequently, the court dismissed paragraphs one and two of the Amended Response to an Application for Final Orders filed by the third party. Leave was granted to the third party to file and serve their response to the wife's statement of claim within 28 days. The court also made detailed orders regarding the timing and procedure for any applications for costs and adjourned the matter for further directions.
Orders
Orders of the court
1.
Paragraph one (1) of the Amended Response to an Application for Final Orders filed 11 December 2008 is dismissed.
2.
Paragraph two (2) of the Amended Response to an Application for Final Orders filed 11 December 2008 is dismissed.
3.
Leave be granted to the Third Party to plead to the statement of claim of the applicant wife, to be filed and served within 28 days of the date of these orders.
4.
Any application for costs by either party be made and supported by written submissions forwarded by email to my associate and to the other parties within 28 days of the date of these orders.
5.
Any reply to any such submissions, restricted to issues of law and errors of fact, be filed within a further seven days thereafter.
6.
If neither party files either any such application and submissions in the time frame specified, or any order by consent in that respect, it is ordered that the costs of and incidental to the hearing of the application by the third party on 15 December 2008 be reserved to the trial.
7.
The matter be adjourned to a registrar at a time and on a date to be advised for further directions, such date to be on or after 11 March 2009.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.