CULL & LENZ - [2020] FamCA 50

FAMILY COURT OF AUSTRALIA

CULL & LENZ

[2020] FamCA 50

FAMILY LAW – SUMMARY DISMISSAL – Where the third party Trustee seek the wife’s case be summarily dismissed – Where the wife’s application seeks orders against the Trust and the Trustees in proceedings between the husband and the wife – Where the wife asserts the husband exercised de facto control of the Trust –Where the husband’s parents were at all times in control of the Trust – Where the Trust was not “made in relation to” the marriage – Where the wife asserts the husband has a claim in restitution against the Trust – Where the wife lacks standing to pursue the husband’s right – Where the wife claims the Trustee has been unjustly enriched by unpaid efforts of the husband and wife – Where there was no application to accrue jurisdiction for the equitable doctrine – Orders for Summary Dismissal – Orders for the Trust and Trustee to be removed from proceedings.

Family Law Act 1975 (Cth) ss 79, 85A, 90AE
Family Law Rules 2004 r 10.12

Arthurman & Arthurman [2019] FamCAFC 214
Full Court in Public Trustee (S.A) and Keays 91985) FLC 91-651
Harris & Dewell [2018] FamCAFC 94
Kennon & Spry (2008) CLR 366
Knight & Knight, Amglow Pty Ltd as trustee of the Jack Knight Family Trust (Intervenor) 1987 FLC 91-854

APPLICANT:

Ms Cull

RESPONDENT:

Mr Lenz

SECOND RESPONDENT:

THIRD RESPONDENT:

Lenz Investments Pty Ltd

Lenz Family Trust

FILE NUMBER:

SYC

6598

2017

DATE DELIVERED:

5 February 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

9 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Coulton

SOLICITOR FOR THE APPLICANT:

Finn Roache Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Nolan Lawyers

COUNSEL FOR THE 2^ND& 3^RD RESPONDENTS:

Mr McInerney SC with Mr Ford

SOLICITOR FOR THE 2^ND & 3^RD RESPONDENTS:

Andrews & Holm

Orders

IT IS ORDERED

That the application of the wife contained in Paragraphs 3, 7 and 8 of the Second Further Amended Initiating Application filed 15 March 2018 be dismissed pursuant to the provisions of Rule 10.12 of the Family Law Rules 2004.
That orders joining Lenz Investments Pty Limited and the Lenz Family Trust as parties in these proceedings be vacated.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cull & Lenz has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6598 of 2017

Ms Cull

Applicant

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CULL & LENZ

Details

AGLC: CULL & LENZ [2020] FamCA 50
Case: [2020] FamCA 50
Decision Date: 5 February 2020

CaseChat Overview and Summary

In proceedings between a husband and wife, the third party, Lenz Investments Pty Limited (the Trustee) and the Lenz Family Trust (the Trust), sought summary dismissal of the wife's application against them. The wife's application sought orders against the Trust and its Trustees, asserting that the husband exercised de facto control over the Trust. However, the husband's parents were at all material times in control of the Trust, and the Trust was not established in relation to the marriage. The wife also claimed the husband had a right of restitution against the Trust and that the Trustee had been unjustly enriched by the unpaid efforts of both parties. The matter came before Rees J of the Family Court of Australia.

The primary legal issues before the court were whether the wife had standing to pursue the husband's alleged claim in restitution against the Trust, and whether the wife's claims for unjust enrichment against the Trustee were properly before the court. The court was required to determine if the wife's application, in so far as it sought to join the Trust and Trustee as parties and pursue claims against them, should be summarily dismissed.

Rees J reasoned that the wife lacked the legal standing to pursue a claim in restitution that belonged to the husband. Furthermore, the wife's claims of unjust enrichment against the Trustee were not properly brought before the court, particularly as there was no application to accrue jurisdiction for the equitable doctrine. Consequently, the court found that the wife's application against the Trust and Trustee should be dismissed.

The court ordered the dismissal of the wife's application contained in specific paragraphs of her Second Further Amended Initiating Application, pursuant to Rule 10.12 of the Family Law Rules 2004. Additionally, orders joining the Lenz Investments Pty Limited and the Lenz Family Trust as parties to the proceedings were vacated.

Orders

Orders of the court

IT IS ORDERED

That the application of the wife contained in Paragraphs 3, 7 and 8 of the Second Further Amended Initiating Application filed 15 March 2018 be dismissed pursuant to the provisions of Rule 10.12 of the Family Law Rules 2004.

That orders joining Lenz Investments Pty Limited and the Lenz Family Trust as parties in these proceedings be vacated.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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