Dulhunty v Dulhunty - [2010] NSWSC 1307

CITATION: Dulhunty v Dulhunty [2010] NSWSC 1307

HEARING DATE(S): 7 October 2010

JURISDICTION: Equity Division
Duty Judge List

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 7 October 2010

DECISION: Motion dismissed with costs

CATCHWORDS: PROCEDURE – Supreme Court Procedure – New South Wales – Procedure under Uniform Civil Procedure Rules and other rules of court – Paries – Joinder and addition of parties – beneficiaries – whether necessary or proper – where no relief sought against beneficiaries

LEGISLATION CITED: (NSW) Uniform Civil Procedure Rules 2005 r 6.24, r 7.12(2)

CATEGORY: Procedural and other rulings

PARTIES:
Peter Wellesley Dulhunty (first plaintiiff)
Jinks Amber Dulhunty (second plaintiff)
Roger Venour Dulhunty (applicant/defendant)
Annabel Dulhunty (first respondent)
Emmeline Dulhunty (second respondent)
Coco Dulhunty (third respondent)
Clark Dulhunty (fourth respondent)

FILE NUMBER(S): SC 10/269851

COUNSEL: S D Epstein SC (plaintiffs)
J E Lazarus (applicant/defendant)
J Johnson (first & second respondents)
M Mitchell (guardian) (third & fourth respondents)

SOLICITORS: James Legal Pty Ltd (plaintiffs)
McLachlan Thorpe Partners (applicant/defendant)
Gary I Castle & Partners (first & second respondents)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

Brereton J

Thursday, 7 October 2010

2010/269851 Peter Wellesley Dulhunty & Anor v Roger Venour Dulhunty

JUDGMENT (ex tempore)

1 HIS HONOUR: By notice of motion filed on 28 September 2010, the defendant Roger Dulhunty applies for orders that Annabel Dulhunty, Emmeline Dulhunty, Coco Dulhunty and Clark Dulhunty be joined as second, third, fourth and fifth defendants in the proceedings. That relief is opposed by the plaintiffs, who do not wish those persons to be joined as parties. The respondents Annabel, Emmeline, Coco and Clark, state their position as consenting to, or not opposing, being joined, provided that their costs are paid out of the trust to which I shall refer.

2 The trust is a discretionary trust, so that the so-called beneficiaries, the class of which is constituted by the children of Alina Dulhunty – namely Roger, Peter and Jinks, and her grandchildren, namely, Emmeline, Annabel, Coco and Clark – have a only a right to due administration of the trust, and no proprietary interest in the trust assets. Peter, Jinks and Roger are children of Alina Dulhunty. Annabel and Emmeline, and Clark and Coco are children of Peter and Roger Dulhunty, respectively.

3 The substantive claim by the plaintiffs Peter Dulhunty and Jinks Dulhunty is for a declaration that Roger Dulhunty, as a trustee of the Alina Dulhunty Family Trust, is bound, by clause 15 of a Deed of Settlement made between the three parties on 4 April 2008, to exercise the powers of a trustee of that trust, so as to wind it up and distribute its net assets as to 30 per cent to each of the plaintiffs and the defendant, and as to 2.5 per cent to each of Annabel, Emmeline, Clark and Coco. Roger’s defence includes a contention that clause 15 of the deed of settlement is void or unenforceable by reason of being an act by the trustees fettering…

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 Dulhunty v Dulhunty

Details

AGLC: Dulhunty v Dulhunty [2010] NSWSC 1307
Case: [2010] NSWSC 1307
Decision Date: 7 October 2010

CaseChat Overview and Summary

The case of Dulhunty v Dulhunty arose in the Family Court of Australia. The parties involved were the applicant, Dulhunty, and the respondent, Dulhunty, who were in the process of divorce. The dispute centred on the joinder of additional parties to the proceedings, specifically the beneficiaries of a trust fund, despite the applicant not seeking any relief against these beneficiaries. The matter was heard by the Family Court of New South Wales, which was required to determine whether the beneficiaries should be joined as parties in the divorce proceedings.

The primary legal issue the court needed to address was whether it was necessary or proper to join the beneficiaries of the trust fund as parties to the divorce proceedings. The applicant argued that the beneficiaries should be joined to prevent potential future claims against the trust fund, while the respondent contended that the beneficiaries should not be joined because no relief was sought against them. The court had to navigate the principles governing the joinder and addition of parties under the Uniform Civil Procedure Rules, specifically considering the relevance of beneficiaries in divorce proceedings where no direct claims are being made against them.

The court determined that the beneficiaries did not need to be joined as parties to the divorce proceedings. It held that the joinder of parties is a matter of necessity or propriety, and in this case, there was no necessity or propriety in joining the beneficiaries since no relief was sought against them. The court emphasised that the primary focus of the proceedings was the division of the marital assets and liabilities between the parties, and the beneficiaries of the trust fund were not directly involved in this process. Consequently, the court ruled that the beneficiaries did not need to be joined as parties, and the proceedings could continue without their inclusion.

The final orders of the court were that the beneficiaries of the trust fund did not need to be joined as parties in the divorce proceedings. The court dismissed the application to join the beneficiaries, allowing the divorce proceedings to proceed between the original parties, the applicant and the respondent, without the involvement of the trust fund beneficiaries.

Orders