Bush and Bush and Ors

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BUSH & BUSH & ORS [2008] FMCAfam 1167

FAMILY LAW – Property – undefended – where lacking evidence regarding liabilities – liabilities to third party creditors – parties to file further evidence and put third party creditors on notice.

Family Law Act 1975, s.79

Ascot Investments v Harper (1981) FLC 91-000
Biltoft & Biltoft (1995) FLC 92-614.
Hickey Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
DCT v Kliman & Kliman (2002) FLC 92-113
Zdravkovic v Zdravkovic (1982) FLC 91-220

Applicant: MS BUSH

First Respondent: MR BUSH

Second Respondent: [A] PTY LTD

Third Respondent: [I] PTY LTD

File Number: SYC 7462 of 2007

Judgment of: Altobelli FM

Hearing date: 28 August 2008

Date of Last Submission: 28 August 2008

Delivered at: Sydney

Delivered on: 4 November 2008

REPRESENTATION

Counsel for the Applicant: Ms Winfield

Solicitors for the Applicant: Equity Lawyers

First Respondent: No Appearance

Second Respondent: No Appearance

Solicitors for the Third Respondent: York Family Law

ORDERS

1. Within 42 days the wife is to file and serve evidence about the extent of any current liability owed by either of the respondents to Citigroup Pty Ltd and Westpac Banking Corporation.

2. Within 42 days the wife is to notify Citigroup Pty Ltd and Westpac Banking Corporation of these proceedings and of the orders sought by her insofar as those orders potentially affect their position as creditors of the respondents, and to file and serve an affidavit of service within 49 days of these orders.

3. The matter be adjourned to 19 December 2008 at 9.30am for mention.

4. The wife have leave to provide to the creditors referred to above a copy of these orders and these reasons.

5. Parties have leave to restore on seven days notice.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 7462 of 2007

MS BUSH

Applicant

And

MR BUSH

First Respondent

[A] PTY LTD

Second Respondent

[I] PTY LTD

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. The wife’s application for property orders against the first and second respondents was heard by me on an undefended basis on 28 August 2008. On that date I also granted leave to [I] Limited (“[I] Pty Ltd”), a significant creditor of the wife, to intervene in these proceedings. I dealt with the issues existing between the wife and [I] Pty Ltd by making notations to the effect that I would give to all parties seven days notice of my intention to deliver judgment in the property proceedings and would also stay final orders for 14 days after making to enable [I] Pty Ltd and the wife to consider the effect of my proposed orders on them. I heard all the wife’s evidence and reserved my judgment.

2. During my consideration of this matter, which included a detailed review of the evidence filed by the wife…