Bourke and Bourke and Anor
[2009] FamCA 27
•30 January 2009
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 BRISBANE |
FILE NUMBER: MLF 2814 of 2006
| MS BOURKE |
Applicant
And
| MR BOURKE |
Respondent
And
| S PTY LTD |
3rd Party
REASONS FOR JUDGMENT
Property proceedings between the husband and wife have been marked by significant recalcitrance on the part of the husband.
That litigation stretches across more than two years since the wife filed a Form 1 application in this court on 28 September 2006. A miscellany of orders have been made previously.
In an affidavit filed 22 September 2008 the wife sets out at some length that litigation history. It is not challenged. In earlier reasons, by Dessau J, on 15 April 2008 her Honour found:-
“…it is clear to me [the husband] has erred in a number of ways in the way this litigation has been conducted. He has failed to appear on some occasions, he has failed to file material with the court, he has failed to make proper disclosure, and he has failed to comply with some court orders.”
At a hearing before me on 10 October 2008, a solicitor appeared for the husband and indicated that he was seeking instructions. Two weeks later, on 23 October 2008, when the matter again came before me, that solicitor indicated to the Court that he had attempted to obtain instructions from the husband on four occasions and was unsuccessful. He sought, and was granted, leave to withdraw.
The third party in these proceedings is a corporation. A director of it, Mr O, has filed an affidavit in which he deposes to being friends with the husband and in which he also deposes to a business venture, conducted jointly with the husband commencing early in 2002. The third party is a finance broker. The husband operated a company known as B Business.
The business plan, germinated in early 2002, was to see the husband building units at, and the company providing finance in respect of, a development proposed in W. Ultimately a joint venture agreement is said to have been signed between the company and the husband on 4 July 2002.
Mr O deposes to a number of matters in and about the project pertaining to Unit 3 in the development which initially remained in the husband’s name. He deposes to circumstances which, he says, resulted in Unit 3 being transferred to the company in “compensation” for the company not receiving any money pursuant to the agreement relating to the project. A contract of sale is exhibited to the affidavit dated 15 August 2006. The price of Unit 3 is shown as $235,000.
It is said that the project made profit of approximately $675,000 of which half (about $337,000) was owing to each of the husband and the company. Mr O deposes to the fact that $235,000 of that amount is made up of the unit transferred to the company and that the company is, he alleges, owed an additional $100,000.
By reason of the husband’s recalcitrance and refusal to participate in the proceedings, it is not known what the husband’s version of the events just described might be.
The wife seeks orders pursuant to s 106B of the Family Law Act 1975 (Cth) and s 90AE(2)(b) of the Act against the third party. Those orders in effect seek to set aside the transfer of Unit 3, just described.
In the proceedings the subject of these reasons, the third party seeks to strike out the claim against it.
The Erstwhile Progress of the Action
It is necessary to say something of the history of this application.
The matter first became before me, relevantly, on 10 October 2008 when the third party was represented by a solicitor. That solicitor alluded to the possibility of an application to strike out being made.
That position was confirmed at the further mention before me on 23 October 2008. On that date I ordered that the third party file and serve a case application setting out the orders sought in respect of the dismissal of the action against it, with such application to include particulars of the claim in the nature of a pleading.
The matter next came before me on 17 November 2008. It needs to be pointed out that, on the occasions that the original application for dismissal of the action was, respectively, mooted and applied for, the application for final relief sought by the wife was:-
“3(a) That the company [S] Pty Ltd, within 21 days of the date of this order, at the expense of the company, transfer to the wife title and interest in Unit 3…and sign all instruments and documents and do all acts and things necessary to effect such a transfer
(b) Alternatively to the transfer…the property be sold and out of the proceeds of sale, there be distribution to [the wife] of all matrimonial monies properly owing to the respondent by [the company].”
In a written Summary of Argument filed by leave at the hearing on 17 November 2008, a case was outlined in what might be described as traditional s 79 terms making no mention of the third party until a section entitled “The Effect of the Orders Sought”. There, included as an asset to be retained by the wife, was the unencumbered Unit 3 earlier referred to. In the section entitled “Case Law to be Relied Upon” it is asserted: “husband has in this case distributed prematurely to himself Unit 3 / the proceeds of sale of Unit 3…”
It is subsequently asserted that:-
“The third party has refused to make any reasonable disclosure pursuant to r 13.01, 13.04, 13.07 (the court can simply exclude the third party’s evidence or dismiss the third party’s response pursuant to r 13.14) its affidavit material on the salient issue of the transfer of Unit 3 from the Husband lacks any source documents and does not genuinely attempt to sensibly account for the [W] project or show how the transfer was in any way genuine.”
Thereafter s 106B is mentioned in that document for the first time.
In a similar vein, Part VIIIAA of the Act is mentioned, without any further reference, in the section dealing with the orders sought in the application.
I delivered reasons for judgement in relation to orders made by me that required the wife to file a second further amended application “in the nature of a pleading” which properly set out and particularised her case against the third party.
I ordered the third party to respond to that pleading within seven days of its receipt. I then ordered that:-
“The further hearing of the third party’s application to strike out the claim against it, be adjourned to 10.00am (Melbourne time) on 15 December 2008 and that such a hearing be held by telephone…”
I also made an order that the wife provide $20,000 by way of security for the costs of the third party in respect of the future conduct of the action and that the wife pay the costs of third party thrown away on 17 November 2008 fixed in the sum of $4,000.
In part of the proceedings on that day, unconnected with the third party, I made orders which I expressed to be by way of partial property settlement that had the effect of dividing between the husband and the wife the property otherwise available for distribution excluding Unit 3 in the W development.
Pleadings
I am aware that the court’s use of pleadings ceased amidst differing views, including a view with which I respectfully disagreed, and continue to disagree, namely that they “didn’t work”. To the extent that the assertion is true, I consider it is because pleadings were not properly utilised or adhered to.
In cases such as this, where specific “causes of action” are pursued against third parties, pleadings have, in my respectful view, an important and highly useful role. The proper pursuit, and ordering of, particulars, equally serves a vitally important role in defining—and very frequently confining—the issues for determination by the court.
I note with interest that the Full Court in a decision handed down at the beginning of this year in B Pty Ltd and Ors v K and K (2008) FamCA FC 113 held:-
“44. However, the narrative or descriptive nature of evidence is often unsuited to formulate or particularise a cause of action against a third party. Something resembling a statement of claim will generally be necessary.
45. In Gould v Gould: Swire Investments Ltd (1993) FLC 92-434 Fogarty J (with Nicholson CJ and Finn J agreeing) said (at 80,451):-
“I conclude, consistently with Buckeridge and Barro, that the correct procedure, where an applicant in proceedings under the Family Law Act seeks relief against a person who is a stranger to marriage or relationship, is to name that person as an additional respondent in the proceedings and set out the nature of the claim and the basis of it in the ordinary way in the application” [emphasis added by the Full Court in B Pty Ltd].
46. Of relevant to the procedure adopted in the instant case, Fogarty J had also earlier said (at 80,448):-
“…good case management and fairness to the parties, in particular to the third party, suggests that in appropriate circumstances the claim against the third party, or more particularly the jurisdictional base of that claim, be determined as a preliminary issue where it is appropriate and practical to do so…” ”
In any event, as my orders made clear, I ordered on 17 November that, in effect, pleadings be delivered.
Of course, although that order was made, the court, generally described, is not a “court of pleading”. That is to say, it’s rules and procedures do not accommodate in the usual course, a course of pleadings.
In this case the third party did not file, within the time prescribed in my order, a response to the pleading of the wife which was filed on 1 December 2008. A further amended application in Form 1 was filed by the wife with a statement of claim attached.
On 11 December 2008 an amended response was filed which sought orders in terms that:-
“That the wife’s amended application for final orders provided to the third party’s solicitors by fax on 9 December 2008, so far as the orders sought in the paragraphs 2, 3, 4, 6, 7, 9, and 12 thereof be struck out and paragraphs 5, 8 thereof be discharged.”
In very broad terms paragraphs 5 and 8 of the further amended application seek orders pursuant to s 106B of the Act whereas the balance of paragraphs referred to seek orders (including consequential orders) pursuant to s 90AE(2)(b) of the Act.
An affidavit sworn by the solicitor for the third party and filed on 12 December 2008 deposes that the affidavit is made “in support of my client’s application the orders sought in paragraphs 2, 3, 4, 6, 7, 9 and 12 of the wife’s further amended application…be struck out, and that paragraphs 5 and 8 thereof be discharged”.
Objection was taken to the form of the “pleading” by the applicant by that solicitor in earlier correspondence (it was contended that the amendments had not been properly identified).
It was submitted on behalf of the wife that the third party ought to be taken as having admitted that there was a case to pursue at trial with respect to the s 106B claim by reason of failing to file a responsive pleadings within the time specified. I disagree.
I indicated during the course of the hearing, my view that, there being no rules of practice and procedure relating to pleadings in this court, there was the possibility of error in the interpretation of what was required in the amended response and leave ought probably be sought to amend it, which was done orally.
I determined, after hearing argument, that there was no prejudice to the wife in that occurring because, it seemed to me, the thrust of the applications was well known to the wife and had been for some time. In any event, the order I made on 17 November, together with my reasons, made it clear that, although the wife was being given an opportunity to properly particularise and outline a claim pursuant to the two named sections of the Act, the further hearing of the third party’s application to strike out would be heard on 15 December.
In addition, further written submissions prepared on behalf of the wife addressed (in roughly equal measure) both the claim in respect of s 106B and the claim in respect of s 90AE(2)(b).
The Argument with respect to Part VIIIAA
Mr Davis, who appears as counsel for the third party, summarises his argument by saying that the power of the court to make orders directly affecting the rights and interests of third parties (s 90AE(2)(b)) is circumscribed by a significant limitation, namely that any such order must be, as the section itself stipulates, “in relation to the marriage”.
It is submitted that s 90AE “cannot be used as a device to increase the property pool” otherwise available for potential division between the parties. Here, it is submitted, that pre-condition cannot be met unless there is an arguable case made out by the applicant in respect of s 106B. It is submitted that here, there is not.
Significant reliance is placed upon the decision of B Pty Ltd v K and K and Ors referred to earlier.
Whilst consideration of the section is important, it is in this case, important to bear in mind precisely what the Full Court indicated was important to be kept in mind in that case:-
“5. While much of the argument properly focuses on the wording of s 90AE and other sections in Part VIIIAA of the Act and the scope of the powers thereby granted, we think it important to keep in mind that the ultimate question is 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”.
The wording used by the Full Court is a reference to the principles applicable in cases where the court is asked to deprive a party of their right to prosecute litigation in pursuit of a legitimate claim. The importance of that right has been consistently emphasised. (See eg Lindon v Commonwealth of Australia (No. 2) (1996) 136 ALR 251, eg at 256; Bain Pacific Association and Ors v Kay and Ors [2006] FamCA 518).
The Full Court in B Pty Ltd said, in relation to the section under consideration:-
“16. …taken in isolation, the term in s 90AE(2)(b), in relation to the marriage, is puzzling. Even so, we are inclined to think that they are words of limitation rather than expansion…
20. In our view, the terms clearly circumscribe the use of the power.
21. Moreover, insofar as the words in s 90AE(2)(b) “property interests of a third party in relation to the marriage” may be unclear, we note again the object of the Part in s 90AE, namely to allow the court make orders under s 79 that is directed to the property interests of a third party in relation to property of a party to a marriage.” [Emphasis in original].
The Full Court there went on to approve passages from the decision of O’Ryan J in Hunt v Hunt and Ors [2007] 36 FamLR 64 and in particular that:-
“113. When s 90AE(2) is read in conjunction with s 90AE(3), s 79, and Part VIIIAA generally, it is clear that what is contemplated is not some arbitrary invasion of the rights of a third party but an alteration of those rights where they are sufficiently connected to the division of the property between the parties.
…
119. The power and discretion of the court is carefully controlled and confined. The requirement in s 90A(3)(a) (and see the identical requirement in s 90AE(3)(a)) that the making of the order be “reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage” in and of itself ensures that far from the discretion being “unlimited” or “unrestricted”, it is carefully linked, and certainly sufficiently connected, to the subject matter of marriage and matrimonial causes. In particular, it is bound up in, or at least sufficiently connected to, the central area of the marriage power, namely the effecting of a division of property between the parties to the marriage”.
In what I, with great respect, consider to be a centrally important passage in B Pty Ltd, the Full Court said:-
“That the elements of the “action” which the wife seeks to initiate cannot be identified is a powerful argument against a position for which Mr North contends [that is that the section, in effect, creates a new “cause of action”]. In our view, all that s 90AE(2)(b) does of relevance to the wife’s claim here, is to enable the court to adjust the property interests of a third party for the purpose of effecting a division of the present property of the parties to the marriage, between those parties. Only in the sense that altering interests may leave a bundle of rights or interests that are consequent upon the alteration, may the exercise of power create interests, but these “new” interests will be the residue of what already existed at law. Except in this sense, the subsection does not create a new cause of action derived from rights not previously known to the law. In this sense, the subsection resembles a machinery provision, though in our opinion it is more than that”. [Emphasis in original]
It can be seen that, particularly in the passage just identified, considerable support is given to the central argument made by Mr Davis on behalf of the third party.
Put another way, it seems to me unlikely that the section could be used to attack property owned by a third party in circumstances where no other “cause of action” existed or might exist in respect of that property. In the absence of that “cause of action” the nexus required by s 90AE(3)(a) that “the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage” would unlikely be present.
It follows that I consider there is merit in the argument made on behalf of the third party that, if there is no arguable case (in the sense referred to in Lindon, Bain Pacific and, for example, Bigg v Suzi (1998) 22 FamLR 700), s 90AE(2)(b) cannot be used so as to attack Unit 3, which is clearly property of the third party.
If the required nexus is to be established, it is because (relevantly) s 106B brings the property, as it were, back into the pool of property available for division.
I turn, then, to consider the claim pursuant to s 106B of the Act.
The Claim Pursuant to Section 106B
It is argued on behalf of the third party that, when one examines the totality of the evidence presented by the wife, it is not possible to discern any admissible evidence from which the wife might argue that a case pursuant to s 106B can be sustained at a trial.
As the Full Court said in B Pty Ltd & Ors v K & K:-
“…sufficient facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought”.
As pleaded, the wife alleges collusion in the transfer of the W property between the husband and the director of the third party. Indeed it is pleaded that the transfer to the third party is a sham. In a similar vein, it is also pleaded that the third party did not pay any, or any adequate, consideration for the transfer.
The third party responds by referring to evidence contained in an affidavit of Mr O as to the basis of the transaction including what is alleged by the third party to be valuable consideration for it.
It is not for me, in the context of the current application, to make or indicate, any findings about the likely veracity or otherwise of those assertions.
I said in my earlier reasons for judgement in this matter that, on the then state of the pleadings and evidence, the s 106B case appeared “somewhat thin”. That is, however, an entirely different matter to asserting that there is no arguable case in respect of s 106B fit to be tried.
It is important in my view to focus upon what must be proved in order for a s 106B case to be sustainable. A crucially important consideration in that respect is that perfectly innocent transactions can be caught by the section (see eg In the Marriage of Abdullah [1981] FLC 91-003 especially at 76,085; In the Marriage of Gould [1993] 17 FamLR 156).
Thus, whilst it might be part of the wife’s case that the husband and Mr O on behalf of the third party colluded in behaviour designed to diminish the pool of assets available for distribution, and to have effectively concocted a document to that effect, that allegation is not an essential part of the “cause of action” pursuant to s 106B.
Simply, the case for collusion, concoction and sham might fail, yet the s 106B claim nevertheless succeed.
In the current context the wife’s evidence need only establish sufficient facts which, if proved, would permit a s 106B case to be argued at a trial – a “fairly arguable case”.
Accordingly, by reference to the terms of the section, I need to be satisfied that there is evidence upon which a trial judge could conclude that:-
· There are proceedings under this Act;
· There is an instrument or disposition sought to be attacked;
· That the instrument or disposition was made by or on behalf of, relevantly, the husband;
· That the disposition was, relevantly, made to defeat an existing or anticipated order in the proceedings;
· The disposition was, irrespective of intention, likely to defeat any such order.
There is no question that there is sufficient evidence to establish proceedings under the Act, the making of an instrument or disposition (being the transfer by the husband to the third party) and that such a transfer was made by a party, namely the husband.
If the third party’s application is to succeed it will be because there is insufficient evidence to conclude at a trial that there was an intention to defeat an existing or anticipated order, or irrespective of intention, that the transfer was likely to defeat any such order.
Because of the nature of these proceedings I do not propose to consider (albeit that it is, in effect, pleaded) whether there is sufficient evidence which would permit of a conclusion by a trial judge of the relevant intention: The alternative limb – effect irrespective of intention – can be seen as encompassing findings of significant less gravity.
The question, then, becomes whether there is a fairly arguable case – based on the wife’s evidence – that the transfer of the husband to the third party was likely to defeat an existing or anticipated order pursuant to s 79.
Section 106B(3) must also be considered. It provides:-
“The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested”.
Clearly enough that provision is mandatory. That is to say, the consideration of those interests and that protection is mandatory.
It is, in effect, asserted by the third party that the wife has no arguable case that the third party is anything other than a bona fide purchaser for value. However, in assessing whether in an application to strike out, a party ought be permitted to pursue a case to trial, that assertion is irrelevant by reason of what was highlighted in Heath & Heath Ex Parte Westpac Banking Corporation (No 2) (1984) FLC 91-517.
There, the Full Court said, at 79,196:-
“We also refer to the passage of the judgement of Stark J in Burns v Burns (1967) 10 FLR 441 quoted by the trial judge and in particular that portion which reads as follows (at page 446):
“I do not read this provision to mean that if I am unable to make any order to protect the interests of the third party I have no power to make any order under s 120(1).”
In our view there is no reason to interpret s 85(3) of the Family Law Act [now s 106B(3)] in a contrary manner. Accordingly the court has a discretion under that subsection in regard to the type of protection it considers appropriate to afford a bona fide purchaser or other person interested including a discretion to set aside the relevant instrument without making any protection order”.
Put another way, relevant to this case, even if it is correct that the wife has no evidence in support of an assertion that the transfer lacks bona fides, that is not an impediment, in the context of an application such as this, to the matter proceeding to a trial if, otherwise, the court is satisfied that (relevant to this case) the transfer was likely to defeat an anticipated order under s 79.
The parties commenced living together in 1995, married in 1999 and separated in 2006. As outlined earlier, the wife’s prosecution of s 79 proceedings, which commenced with an application for final orders filed on 28 September 2006, has been marked by recalcitrance on the part of the husband.
The wife makes a number of allegations with respect to the property in the s 79 proceedings. The husband has filed no evidence in that respect save for a statement of financial circumstances filed in May 2007.
The wife, in sworn material, makes out a case that her entitlement exceeds that which is available from the pool in the absence of the W unit.
That being so, the transfer can be seen to, arguably, lead to the likely defeat of an order. In my view she makes out a fairly arguable case for the potential application of principles such as those discussed by the Full Court in:
· Townsend (1994) 18 FamLR 505 and Omicini & Omicini (2005) FLC 93-218 (eg in respect of the D property Draw Down);
· Kowaliw & Kowaliw (1981) FLC 91-092 and Omicini (in respect of alleged damage to the former matrimonial home);
· Weir (1993) FLC 92-338 and Black & Kellner (1992) FLC 92-287 (in respect of alleged significant non-disclosure by the husband);
· Alleged significant domestic violence perpetrated on her by the husband (eg Doherty & Doherty (1996) FLC 92-652; Kennon & Kennon (1997) 22 FamLR 1).
Put another way, in my view, the wife makes out a fairly arguable case that, if a s 106B application by her was successful, the wife’s s 79 claim could see a legitimate claim to the W unit.
The wife deposes to the fact that the husband “regularly [left] the matrimonial home for periods of one day to two weeks at a time…”. She further deposes that “in or around May 2000 I applied for, and obtained, an order for child support which commenced 9 May 2000”. In mid 2002 the husband and wife separated for several months. The parties reconciled in September 2002.
However, in July 2002 the wife had made a complaint for an intervention order. She also alleges that, at about this time, the husband “no longer involved [her] in much of his business affairs and would disappear from the matrimonial home for periods of time without explanation”.
The wife further deposes that, between about 2002 and 2006, she applied for and obtained, a number of intervention orders and that the police attended during that period on different occasions moving the husband on a number of those occasions.
The wife alleges that the husband was charged with assault following an incident on 26 August 2005 and, in March 2006, that he head-butted her because she refused to sign a document allowing the criminal charges against him for assault to be dropped.
Decisions of this court make it clear that proceedings need not have been instituted at the time of the transfer in order for the section to apply. The section is intended to apply to all transfers or dispositions made at a time when proceedings could reasonably have been foreseen. For example, in Pflugradt [1981] FLC 91-052 Elliot J held:-
“In the instant matter before me it is not a question of whether the husband expected or foresaw a subsequent property application by the wife and anticipated an order being made, but whether, considering all the circumstances at the time of the disposition, such an application by her at some time, with a consequent order, was objectively to be foreseen or to be expected by him as being likely or reasonably probable…it should be noted that s 85 requires an order to be anticipated—not merely a claim”.
It seems to me on the facts and circumstances of this case that the wife has a fairly arguable case that an order pursuant to s 79 of the Act could, in the sense just described, reasonably have been foreseen by a reasonable person in the position of the husband.
Accordingly, I find that the wife has a fairly arguable case that an order was reasonably “anticipated” when the transfer between the husband and the third party was made.
That finding, in combination with my earlier finding that a case can be argued reasonably that the transfer was likely to defeat a claim by removing from the pool property needed to meet the wife’s claim, leads to a finding that the wife has a fairly arguable case pursuant to s 106B of the Act.
It follows, in my view, that the wife also has a fairly arguable case with respect to s 90AE(3)(a) of the Act.
Accordingly, I dismiss paragraph 1 of the amended response to an application for final orders filed 11 December 2008.
Paragraph 2 of that response seeks an order that paragraph 1 of the orders of Dessau J made 3 June 2008 be discharged. That order joined the third party to the proceedings.
Given my findings that there is a fairly arguable case on the part of the wife pursuant to both s 106B and directly as against the third party pursuant to s 90AE(3)(a) I consider it clearly inappropriate to discharge that order. Accordingly paragraph 2 of the amended response to an application for final orders is also dismissed.
The third party sought, in the event that its applications in that respect were dismissed, to be given an opportunity to plead to the statement of claim pleaded by the applicant wife.
I grant leave for that to occur, such pleading to be filed and served within 28 days of the date of these orders.
I will order that any application for costs be made and supported by written submissions forwarded by email to my associate. I propose to allow 28 days for each party to file and serve any such submissions.
I will order that any reply to any such submissions, restricted to issues of law and errors of fact, be filed within the further seven days thereafter.
If neither party files any such application and submissions in the time frame specified, and in the absence of, in the alternative, any order by consent in that respect, I will order 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.
I will further order that 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.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 30 January 2009
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