Bow & Gally
[2024] FedCFamC1F 608
•10 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bow & Gally [2024] FedCFamC1F 608
File number: SYC 7261 of 2022 Judgment of: BEHRENS J Date of judgment: 10 September 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Anti-suit injunction – Where the respondent is the sole director and shareholder of a company – Application for stay of proceedings between the company and the applicant in another court – Where the two proceedings are not concerned with the same sub-stratum of facts or an integral part of the same controversy – Where the other proceedings are not vexatious or oppressive – Interests of justice and balance of convenience do not favour the grant of the injunction – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 39A, 90SM, 114
Civil Procedure Act 2005 (NSW) s 100
Cases cited: Akbar & Gandega (2023) 67 Fam LR 593; [2023] FedCFamC1A 174
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33
Eastburn & Eastburn [2022] FedCFamC1F 706
Grier & Malphas (2016) 55 Fam LR 107; [2016] FamCAFC 84
Henry v Henry (1996) 185 CLR 571; [1996] HCA 51
Kent & Kent (2017) FLC 93-792; [2017] FamCAFC 157
Kowaliw & Kowaliw (1981) FLC 91-092
Kwon & Lee (2006) FLC 93-287; [2006] FamCA 730
Lan & Hao (No 2) (2017) FLC 93-795; [2017] FamCAFC 175
Pichard & Pichard [2022] FedCFamC1F 549
Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann (1999) 198 CLR 511; [1999] HCA 27
Teo & Guan (2015) FLC 93-653; [2015] FamCAFC 94
Townsend & Townsend (1995) FLC 92-569; [1994] FamCA 144
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55
Zha & Wun [2021] FamCA 143
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 15 August 2024 Place: Sydney Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: McCabe Partners Lawyers Counsel for the Respondent: Ms Clifford Solicitor for the Respondent: Gayle Meredith & Associates Counsel for the Prospective Respondent: Represented by the respondent ORDERS
SYC 7261 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BOW
Applicant
AND: MS GALLY
Respondent
B PTY LTD
Prospective Respondent
ORDER MADE BY:
BEHRENS J
DATE OF ORDER:
10 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 22 March 2024 is dismissed.
2.In the event the Respondent presses her claim for the costs of and associated with the Application in a Proceeding then the Respondent shall file and serve an Application in a Proceeding and affidavit in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
3.The matter remains listed on a date to be advised before Judicial Registrar Buttriss for further directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BEHRENS J:
INTRODUCTION
The applicant in the substantive proceedings and in the Application in a Proceeding (“the Application in a Proceeding”) with which these reasons deal is Mr Bow. The respondent is Ms Gally. By way of the Application in a Proceeding, Mr Bow sought orders including the joinder of B Pty Ltd (“the company”), making the company a prospective respondent.
Mr Bow and Ms Gally were in a de facto relationship from 2011 until about November 2021. At all relevant times they have lived in New South Wales. Mr Bow is aged 69. Ms Gally is aged 66.
On 14 October 2022, Mr Bow filed an Initiating Application in this Court seeking final property orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”), including for the sale of properties owned by Ms Gally, distribution of the proceeds and for a superannuation split in his favour. By her Response to Initiating Application filed 9 November 2022, Ms Gally seeks the following orders:
1.That within 14 days that the de facto husband do all acts and execute all documents necessary to resign as co-appointor of [C Trust].
2.That the de facto husband be restrained from making any claim against [C Trust] in the capacity as a potential beneficiary of the Trust both now and in the future.
3.That within 14 days that the de facto husband do all acts and execute all documents necessary to cause to be transferred to the de facto wife the whole of his interest in [a vehicle] in the joint names of the de facto husband and the de facto wife and that the de facto wife do all necessary to cause the de facto husband to be removed from the loan from [D Limited] relating to the [vehicle].
4.That the de facto husband pay the wife’s costs.
It is an agreed fact that Ms Gally is the sole director and shareholder of the company which operates the business E Company.
In 2023, the company commenced proceedings in the District Court of New South Wales (“the District Court proceedings”). Mr Bow is the defendant in the District Court proceedings. The Statement of Claim which initiated those proceedings was tendered and accepted into evidence (Exhibit A1). It reveals a claim for unspecified damages, or alternatively equitable compensation for a fixed sum, interest up to judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and costs on an indemnity basis. The claim arises in circumstances where it is uncontroversial that Mr Bow was retained and then employed by the company during the parties’ de facto relationship.
Broadly speaking, the District Court proceedings involve claims that Mr Bow, whilst an employee of the company, caused various unauthorised payments to be made from the company’s accounts to him or to his benefit. The proceedings involve multiple claims. In 2024, Mr Bow filed a Defence in the District Court proceedings. The Defence was tendered and accepted into evidence (Exhibit A2). By his Defence Mr Bow pleads, in part, that all payments were made with knowledge, consent and agreement and that the claim is statute barred. Mr Bow also pleads that “[b]y reason of sections 90SM and 90AE of the Family Law Act 1975 (Cth)” the District Court proceedings “are an abuse of process” (Exhibit A2, paragraph 29(b)).
In 2024, Mr Bow filed the Application in a Proceeding which is the subject of these Reasons. In addition to seeking that the company be joined as a party to the proceedings in this Court, Mr Bow seeks that the company be restrained from taking further steps in the District Court proceedings.
During the hearing of the Application in a Proceeding, counsel for Ms Gally confirmed that she also appeared for the prospective respondent company.
In evidence in the Application in a Proceeding were:
·Affidavit of Mr Bow filed 15 March 2024 without its Exhibits;
·Affidavit of Ms Gally filed 28 May 2024 without its Exhibits; and
·Affidavit of Ms F filed 29 April 2024.
Mr Bow had also filed a lengthy affidavit in reply on 13 August 2024, notwithstanding a direction made on 29 July 2024 which provided that “[n]o party is to file any further affidavit for the purpose of the Interim Hearing without leave of the Court.” Counsel for Mr Bow did not seek leave to rely on that affidavit in reply.
Tendered and received into evidence were the Exhibits referred to in the Reasons below.
I also have had regard to the Initiating Application filed 14 October 2022 and the Response to Initiating Application filed 9 November 2022.
Both parties filed Case Outlines- the Applicant on 13 August 2024 and the Respondent on 7 August 2024.
ORDERS SOUGHT
By the Application in a Proceeding, Mr Bow sought the following orders:
1. That [the company] be joined as a party to the proceedings.
2.That upon the making of Order 1 above, that [the company] be restrained from taking any step in [the District Court proceedings] other than:
2.1 adjourning or discontinuing; and/or
2.2seeking an Order for the transfer of those proceedings to the Federal Circuit and Family Court of Australia at Sydney and that the Applicant de facto Husband, by way of consent, is restrained from taking any steps to oppose such transfer application.
At the hearing, counsel for Mr Bow indicated that the Order 2 now sought was simply an order that the company be restrained from taking any further steps in the District Court proceedings other than discontinuing them.
No submission was made that the District Court proceedings constituted a “de facto financial cause”, such that it could only be instituted under the Act (s 39A(5)). Such a submission would have faced the difficulty that - as Austin J has expressed in the context of marriage - “[c]laims grounded solely in contract, tort, equity, or some other form of non-matrimonial relationship…are not likely to attract jurisdiction as a matrimonial cause when the spouses’ marriage is purely coincidental to the dispute” (Akbar & Gandega (2023) 67 Fam LR 593 (“Akbar & Gandega”) at [28], McClelland DCJ and Wilson J agreeing).
The submissions in support of the Application in a Proceeding focused on what was said to be the significant inconvenience brought about by there being two sets of proceedings in different courts. Notwithstanding the orders sought in the Application in a Proceeding, counsel for Mr Bow conceded that there was in fact no mechanism available for the transfer of those proceedings to this Court (such a process being available on application to the Supreme Court but not on application to the District Court). He indicated to the Court that Mr Bow’s position was that if Order 2.1 sought in the Application in a Proceeding was made and the company, through Ms Gally, nevertheless wished to pursue the claim the subject of the District Court proceedings, an Amended Response to Final Orders in this Court which embodies that claim and seeks the exercise of this Court’s accrued jurisdiction could be filed. Counsel for Mr Bow indicated to the Court that he was instructed Mr Bow would not oppose such a course. No submissions were made regarding the fact that the Defence filed in the District Court proceedings already pleads that the claim is statute barred.
Accordingly, this Court is being asked to restrain the continuation of the District Court proceedings, in circumstances where the only Application currently before this Court is a claim for property adjustment pursuant to Part VIIIAB. The Court is not being asked to make orders requiring or facilitating the joining of those proceedings with the proceedings on foot in this Court. Indeed, there is no mechanism by which it could do that. For the reasons set out below, I am not persuaded that I should make the injunction restraining the District Court proceedings.
THE “ANTI-SUIT INJUNCTION”
Legal principles
The substantive order sought by Mr Bow is what is commonly described as an “anti-suit injunction”. I was not directed to the particular source of power I was being asked to use to make the injunction sought. An anti-suit injunction may be granted by this Court in the exercise of the implied powers of the Court to protect the integrity of its processes (CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 (“CSR v Cigna Insurance”) at 391–392; Teo & Guan (2015) FLC 93-653 (“Teo & Guan”) at [67]; Lan & Hao (No 2) (2017) FLC 93-795 (“Lan & Hao”) at [36]–[37]). The Full Court has recognised that s 114 of the Act may also be available as a source of power to make an anti-suit injunction (Teo & Guan at [68]). In Zha & Wun [2021] FamCA 143 (“Zha & Wun”), Watts J assumed that there was such a power in s 114(3) which was described as “a wide power which is available to be exercised in aid of the jurisdiction otherwise conferred upon the [C]ourt” (at [35]).
It does not appear that there is any distinction in the principles that are applicable, depending on whether the implied power or s 114(3) is being used- notwithstanding that s 114(3) empowers the Court to grant an injunction “in any case in which it appears to the [C]ourt to be just or convenient to do so”. While “[i]n the end s 114(3) requires the application of the principles that relate to any interlocutory injunction” (Zha & Wun at [64], per Watts J), it appears clear that the question is not just the balance of convenience (Eastburn & Eastburn [2022] FedCFamC1F 706 (“Eastburn”) at [28], per Christie J), and “generally the principles to be applied in respect of an application for a stay or anti suit injunction are those applicable at common law” (Kwon & Lee (2006) FLC 93-287 at [83(i)]). The onus is on the applicant to persuade me that the injunction should be granted.
An anti-suit injunction can be granted in circumstances where different issues are involved in the two sets of proceedings with which the application is concerned, but the two sets of proceedings must “arise out of the same sub-stratum of fact” (CSR v Cigna Insurance at 400) or be “with respect to the same controversy” (Henry v Henry (1996) 185 CLR 571 (“Henry”) at 591). Were I to be satisfied as to either of those matters, I would then need to be satisfied that the District Court proceedings are “vexatious” or “oppressive”, in the sense that they are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment” (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 (“Voth”) at 555). That is not an entirely separate question from the first, because the fact that there are simultaneous proceedings with respect to the same controversy is highly relevant to the question of whether proceedings are “vexatious or oppressive” (Henry at 591). Either as part of that inquiry, or separately, I am required to consider a range of matters which go broadly to questions of justice and convenience.
Do the proceedings before this Court and the District Court proceedings arise out of “a common sub-stratum of facts” or are they with respect to the same controversy?
The task of determining whether the matters involved in litigation pertain to the same controversy or emerge out of “a common sub-stratum of fact” also arises when establishing whether this Court has jurisdiction to deal with non-federal aspects of a matter; the law on that topic is applicable here.
I was referred to the decision in Akbar & Gandega, where Austin J (with whom McClelland DCJ and Wilson J agreed) explored the extent of this Court’s jurisdiction to decide non-federal aspects of a justiciable dispute in circumstances “when such non-federal aspects are an integral part of the same controversy” (at [30]). Justice Austin quoted the following passage of the decision in Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann (1999) 198 CLR 511:
140.In Fencott it was said that “in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.” The references to “impression” and “practical judgment” cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy “depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships”. There is but a single matter if different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide”. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are “completely disparate”, “completely separate and distinct” or “distinct and unrelated” are not part of the same matter.
(Citations omitted, emphasis added by Austin J)
His Honour further indicated:
32.More recently, the High Court has emphasised the need to determine the ambit of the federal “matter” by advertence to the conduct of the parties, the relationships between them, and the laws which attach rights or liabilities to such conduct and relationships.
(Citation omitted, emphasis added by Austin J)
In Akbar & Gandega, the Full Court found that the husband’s claims against an unrelated third party, who had been joined to the proceedings, were not an integral part of the same controversy, with the consequence that the primary judge did not have jurisdiction to deal with them. In determining that matter, Austin J referred to the following considerations (at [33]):
there was no relationship at all between the wife and the appellant… and [t]he relationship between the husband and the appellant arose exclusively out of their mutual business activities and their commercial conduct affected only their individual rights and interests.
…
[t]he husband’s legal grievance with the appellant could easily have been litigated independently from his legal dispute with the wife.
…
[t]here was no common substratum of facts between the spouses’ matrimonial cause and the husband’s civil suits against the appellant at common law and in equity.
…
[n]o fact or issue determinable between the husband and the appellant in the common law and equity causes of action is able to be identified as a ‘common transaction or fact’ within the matrimonial cause between the spouses.
…
[t]he federal and non-federal suits are not ‘so related that the determination of one is essential to the determination of the other’...
Ultimately, the Full Court found (at [33]) that as a “matter of impression and of practical judgment, the common law and equity causes of action...seem ‘distinct [from] and unrelated [to]’ the matrimonial cause between the spouses”.
This matter is less clear. The parties to the two sets of proceedings, while formally different, in substance are the same- there being no controversy that the company which is the plaintiff in the District Court proceedings is the “alter ego” of Ms Gally, who is the respondent in these proceedings. There are, however, the following significant differences between the two sets of proceedings:
(a)The relief:
By the District Court proceedings, Ms Gally seeks the payment (effectively) to her of damages or equitable compensation, the return of a fixed sum, interest up to judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and costs on an indemnity basis. By the proceedings in this Court, Mr Bow seeks an adjustment of property interests from Ms Gally to him. Ms Gally does not seek any significant adjustment in her favour in the proceedings in this Court (save for the transfer of a vehicle).
(b)The issues:
The issues in the proceedings in the District Court turn broadly on a series of particular transactions which, it is claimed, were made without the company’s consent. The nature of any such transactions, Mr Bow’s intent in relation to them, the terms of Mr Bow’s retainer or employment contract, and whether Ms Gally consented to the transactions appear to be the key issues in those proceedings. Whether any relevant limitation period had expired prior to the commencement of the District Court proceedings is also an issue. The issues in the proceedings in this Court turn on (broadly speaking) whether it is just and equitable to alter the parties’ interests in property, the parties’ respective contributions and their future needs. In particular, part of Mr Bow’s case in the proceedings in this Court is that he made significant contributions to the business, which increased significantly in value during the relationship.
Counsel for Mr Bow submitted that the issues involved in determining the claim the subject of the District Court proceedings overlap with the issues which will be the subject of the proceedings under the Act. Counsel highlighted that Ms Gally could pursue a “premature distribution” argument in these proceedings and that the Court will be asked to assess Ms Gally’s contributions to the business operated by the company.
In relation to the “premature distribution” argument, I was referred by counsel for Mr Bow to the authorities of Townsend & Townsend (1995) FLC 92-569 (“Townsend”) and Grier & Malphas (2016) 55 Fam LR 107 (“Grier & Malphas”). Both Townsend and Grier & Malphas deal with distributions which occurred after separation and before trial and so are not apposite; it is not in dispute that the employment relationship between the company and Mr Bow, with which the District Court proceedings are concerned, ended at around the time the de facto relationship broke down.
Relevant, however, is a potential “waste” argument. The question of whether a party “has acted recklessly, negligently or wantonly with matrimonial assets” is relevant to a waste argument (Kowaliw & Kowaliw (1981) FLC 91-092 at [10]), and so it might be said that there is a common sub-stratum of facts arising by reason of the availability of that argument in proceedings in this Court.
Similar arguments have been rejected where it was sought to join a claim for damages in the tort of assault with a Part VIII or VIIIAB claim (see the decision of Riethmuller J in Pichard & Pichard [2022] FedCFamC1F 549 and the authorities referred to therein), notwithstanding that the Full Court is yet to explore the question. Whilst there are facts which will inevitably be relevant to both sets of proceedings involved in this matter, the process of assessing contributions under s 90SM of the Act is not a process of quantifying loss or harm in the same way as is required by the claim in the District Court proceedings. The broad question in the proceedings in this Court is the extent of contributions made including- in the context of a “waste” argument- what was done with property, and whether what was done ought to be taken into account in the contribution assessment exercise or in some other way. Conversely, the claim the subject of the District Court proceedings turns on particular transactions and their legality.
The fact that, as part of proceedings under Part VIIIAB of the Act, this Court must determine the legal and equitable interests in property of the parties to the proceedings was found by the Full Court in Akbar & Gandega to be insufficient to make the husband’s claim against the third party amendable to the jurisdiction of this Court; the husband’s claim represented property as a “chose in action” and “placing a value on that property interest for the purpose of resolving the spouses’ matrimonial dispute did not demand the determination of the causes of action brought against [the third party]” (at para 25). That is also the case here- although, as set out below, it appears likely that the District Court proceedings will crystallise that issue before these proceedings are determined.
(c)The law:
It scarcely needs to be said that the law which applies to the resolution of the issues in the two sets of proceedings is quite different. The District Court proceedings require the application of common law, equity and statutory provisions establishing limitation periods. The proceedings in this Court require the application of the provisions of Pt VIIIAB of the Act.
(d)The relationship of the parties:
The claim in the District Court proceedings is brought against Mr Bow in his capacity as an employee of the company and as a finance professional. The claim in these proceedings is a “de facto financial cause” and brought in the parties’ respective capacities as former parties to a de facto relationship that has broken down. It is not in dispute that Mr Bow was an employee of the company, and that he was dismissed from that employment shortly after separation. This is the case notwithstanding his evidence that “my attitude was that I was now a member of [Ms Gally’s] family, and so I did what had to be done to help the business” (affidavit, para 28).
Because of the matters set out above, I am not persuaded that the two sets of proceedings with which this application is concerned arise out of the same sub-stratum of facts, nor that they are with respect to the same controversy. I therefore decline to make the anti-suit injunction. In those circumstances, the course proposed by Mr Bow, namely that the District Court proceedings effectively be recommenced in this Court, faces the difficulty that this Court would not have accrued jurisdiction to deal with them.
Are the District Court proceedings “vexatious or oppressive”?
In case I am wrong about the question of whether the proceedings arise out of the same sub‑stratum of facts or are concerned with the same controversy, I will also consider whether the District Court proceedings are “vexatious or oppressive”, in the sense that they are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment” (Voth at 555). Either as part of that inquiry or separately, I consider a range of matters which go broadly to questions of justice and convenience (Lan & Hao at [42]–[43]). In circumstances where no undertaking as to damages was sought and where I was not asked to take into account the fact that no undertaking had been proffered, I am not required to do so (Teo & Guan at [155]). I need to be cautious in restraining a party from continuing proceedings which have been validly instituted in another Australian court (Eastburn at [60], per Christie J).
Clearly, to be a party to litigation is burdensome and involves significant trouble and expense. To be a party to litigation in two courts, even more so. That, however, is not a sufficient basis to find that the District Court proceedings are vexatious or oppressive. The District Court proceedings do not actually or effectively prevent Mr Bow from pursuing his application in this Court. If there was nothing to be gained by the District Court proceedings over and above what may be gained in these proceedings, that would support a finding that the District Court proceedings are vexatious or oppressive. That is not the case here. Ms Gally pursues a lump sum payment in the District Court proceedings; she seeks no substantial adjustment in her favour in the proceedings in this Court. A person is “perfectly entitled to invoke the jurisdiction of a court to which they and their property are amendable” (Kent & Kent (2017) FLC 93-792 (“Kent”) at [56]). As in Kent, it has not been established that the District Court proceedings “constitute a challenge to the Family Court’s orders or processes” (at [60]).
The fact that the District Court proceedings were commenced after the initiation of proceedings in this Court goes to the question of whether the District Court proceedings are vexatious or oppressive, but cannot of itself make them so. Mr Bow gave evidence that the District Court proceedings were commenced shortly after a valuation of the business was obtained for the purposes of the proceedings in this Court. Ms Gally gives evidence that the company had sought repayment of money it said he had wrongly taken from the business and, when that was not repaid, the company commenced the District Court proceedings. I was not invited to, and do not attach any significance to the timing of the commencement of the District Court proceedings. The fact that a party may have acted strategically in pursuing litigation properly brought cannot mean that the litigation should be restrained.
Other relevant matters
A matter of relevance to the exercise of my discretion is when the respective proceedings are likely to be heard. The District Court proceedings are now relatively well progressed. Following the filing of the Statement of Claim, further and better particulars were sought and provided. Mr Bow subsequently filed a Defence. In these proceedings, there was in evidence an affidavit of Ms F, the solicitor for the company in the District Court proceedings. Ms F deposed that in the District Court proceedings, there was a pre-trial conference in 2024 and that the proceedings were adjourned for mention later in 2024 on the basis that the first return date of the Application in a Proceeding in this Court was 13 May 2024. Ms F deposed that the Status Conference remained listed in 2024, and that an estimated hearing date would be some months after the Status Conference. There is no evidence before me as to whether the Status Conference went ahead, nor when it is likely to occur if it was adjourned pending this judgment, but I am satisfied that the District Court proceedings will likely be heard within a matter of several months and before the matter can be heard in this Court. That is a factor which tells against the grant of the injunction.
Recognition of the judgment in the District Court
Another matter which tells against the issuing of the anti-suit injunction is that, when ascertaining the property and liabilities of the parties as part of the determination of the s 90SM claim, this Court will recognise the judgment in the District Court. The District Court proceedings will crystallise that aspect of the parties’ property that is currently constituted by Ms Gally’s (or the company’s) chose in action against Mr Bow. The District Court proceedings will determine whether Mr Bow has a liability to the company, which will need to be included on the Balance Sheet. This Court will then be able to engage in the distinct exercises of determining whether it is just and equitable to adjust the parties’ interests in property and, if so, in what way. This factor tells against the grant of the anti-suit injunction.
No other matters were raised in submissions which go to the justice and convenience of making the injunction sought.
For the reasons set out in paragraphs 26–32 above, even if I had found that the two sets of proceedings concerned the same sub-stratum of facts or the same controversy, I would still have declined to make the anti-suit injunction.
SHOULD THE COMPANY BE JOINED AS A PARTY TO THESE PROCEEDINGS?
As orders were sought against it, the company was a prospective respondent to the Application in a Proceeding and had rightly been served with the Application. Ultimately, counsel for Ms Gally confirmed that she was also appearing for the company in relation to the Application.
Mr Bow sought that the company be joined to the main proceedings. In circumstances where no final orders are, at this stage, sought against the company, leave is not granted to join the company to the main proceedings.
DISPOSITION
I am not persuaded that I should make an injunction restraining the District Court proceedings nor an order joining the company to the proceedings. Accordingly, the Application in a Proceeding will be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens. Associate:
Dated: 11 September 2024
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