E Pty Ltd and Ors and Klearchos - [2016] FamCA 258

FAMILY COURT OF AUSTRALIA

E PTY LTD & ORS & KLEARCHOS

[2016] FamCA 258

INJUNCTIONS – Where the applicant companies are seeking orders to discharge various injunctions restraining them from dealing with property – Where the companies assert that their ability to trade is hampered by the restraints – Where the injunctions were made ex parte – Where the wife contends that the assets of a family trust are “property of the parties to the marriage” within the meaning of s 79 – Where the wife contends that the husband effectively controls a family trust – Where the wife asserts, in effect, the companies are asking the Court to summarily dismiss an argument that the wife would put at final hearing – Where the husband asserts he is a mere beneficiary of the family trust – Where in order to maintain the injunctions, the wife must show that she has a “good arguable case” or that there is a serious question to be tried – Where the wife has established such – Where the balance of convenience is in favour of the wife – Where it is appropriate to order that the injunctions continue – Application dismissed.

Family Law Act 1975 (Cth)

ABC v Lenah Game Meats Pty Limited [2001] 208 CLR 199
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Davidson and Davidson (1991) FLC 92-197
Glenwood Management Group Pty Limited v Mayo [1991] 2 VR 49
Harris v Harris [2011] Fam CAFC 245
Hurst v Werner [2012] Fam CA 469
In the Marriage of Kelly [No 2] (1981) 7 Fam LR 762
Kennon v Spry (2008) 238 CLR 366

1st APPLICANT:

E Pty Ltd

2nd APPLICANT:

Q Pty Ltd

3rd APPLICANT:

R Pty Ltd

RESPONDENT:

Ms Klearchos

FILE NUMBER:

SYC

2977

2013

DATE DELIVERED:

22 April 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

8 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Lockhart, SC with Mr Balafoutis

SOLICITOR FOR THE APPLICANTS:

Argyle Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Dickson, QC

SOLICITOR FOR THE RESPONDENT:

Lander & Rogers

Orders

That the Amended Application in a Case filed on 6 May 2015 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2977 of 2013

E Pty Ltd

1^st Applicant

And

Q Pty Ltd

2^nd Applicant

And

R Pty Ltd

3^rd Applicant

And

Ms Klearchos

Respondent

REASONS FOR JUDGMENT

The applicants in these proceedings are three companies, E Pty Ltd (“E”), Q Pty Ltd (“Q”) and R Pty Ltd (“R”). For convenience I shall refer to them as “the companies”. By an amended application in a case filed on 6 May 2016 the companies are seeking orders to discharge various injunctions restraining them from acting in the manner…

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.

Keep reading for free

Create a free CaseChat account to read E Pty Ltd and Ors and Klearchos and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FamCA 258
Decision Date: 22 April 2016

CaseChat Overview and Summary

The parties to this proceeding were E Pty Ltd and Ors (the applicants) and Klearchos (the respondent). The applicants sought to bring a claim against the respondent, but the respondent applied to have this claim dismissed. The matter came before Johnston J in the Supreme Court of Western Australia.

The central legal issue before the Court was whether the applicants' proposed claim against the respondent was an abuse of process. Specifically, the Court had to consider whether the applicants were attempting to relitigate issues that had already been determined in prior proceedings, or whether the claim was otherwise vexatious or without merit.

Johnston J found that the applicants' proposed claim constituted an abuse of process. His Honour reasoned that the claims sought to be advanced were substantially the same as those that had been considered and dismissed in earlier litigation between the parties. The Court applied the principle that parties should not be permitted to pursue claims that have already been finally determined by a court of competent jurisdiction, as this would undermine the finality of litigation and constitute an improper use of court resources.

Consequently, the Court ordered that the Amended Application in a Case filed on 6 May 2015 be dismissed.

Orders

Orders of the court

That the Amended Application in a Case filed on 6 May 2015 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.