Eliot and Eliot and Anor - [2014] FamCA 1090

FAMILY COURT OF AUSTRALIA

ELIOT & ELIOT & ANOR

[2014] FamCA 1090

FAMILY LAW – PROPERTY SETTLEMENT – Interlocutory Application – where the wife sought an order restraining the liquidators of the parties’ company from pursuing proceedings in the Supreme Court of New South Wales – where the Court is satisfied that where Family Law proceedings were commenced prior to the death of the husband and remain outstanding, and where there is an arguable case for the wife to establish that she should not be subject to debts incurred by the husband post-separation, that it is just and convenient to grant the injunction – Orders made joining the liquidators as second respondents – liquidators restrained from taking any further steps in relation to the proceedings filed in the Supreme Court of New South Wales

Family Law Act 1975 (Cth) ss 90AF, 114

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Keene & Scofield & Anor [2013] FCCA 540
Lederer v Hunt (2007) 36 Fam LR 587

APPLICANT:

Ms Eliot

FIRST RESPONDENT:

Ms B Eliot as the legal representative of the Estate of Mr C Eliot (Deceased)

SECOND RESPONDENT:

Mr D and Mr E (as Liquidators of F Pty Ltd)

FILE NUMBER:

(P)NCC

593

2012

DATE DELIVERED:

8 December 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

13 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bithrey

SOLICITOR FOR THE APPLICANT:

Catherine Henry Partners

SOLICITOR FOR THE FIRST RESPONDENT:

Mr Piggott

COUNSEL FOR THE SECOND RESPONDENT:

Mr Levick

SOLICITOR FOR THE SECOND RESPONDENT:

Mullane & Lindsay

Orders

That Mr D and Mr E (as liquidators of F Pty Ltd) be joined as a party to these proceedings as second respondents pending further order.
That pending further order, the second respondents be and are restrained pursuant to s 114 of the Family Law Act from taking any step in the proceedings filed in the Supreme Court of New South Wales Case Number ….

IT IS NOTED that publication of this judgment by this Court under the pseudonym Eliot & Eliot and Anor 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 NEWCASTLE

FILE NUMBER: (P)NCC593 of 2012

Ms Eliot

Applicant

And

Ms B Eliot as the Legal Representative of the Estate of Mr C Eliot (Deceased)

First Respondent

And

Mr D and Mr E (as Liquidators of F Pty Ltd)

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the applicant wife for orders restraining second parties from pursuing proceedings in the Supreme Court of New South Wales. For the purpose of the application, liquidators of the company F Pty Ltd (‘the Liquidators’) were joined as second respondents. The second respondents presently have a common law claim in the Supreme Court (Case No. …) listed for directions on 10 December 2014.
The first respondent, Ms B Eliot, is the personal legal representative of the Estate of…

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.

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Details

Case: [2014] FamCA 1090
Decision Date: 8 December 2014

CaseChat Overview and Summary

In the matter of *Eliot and Eliot and Anor*, heard before Cleary J, the proceedings concerned an application to join liquidators of F Pty Ltd as parties and to restrain them from taking steps in separate Supreme Court proceedings. The applicants sought these orders in the context of ongoing family law litigation.

The central legal issues before the Court were whether the liquidators of F Pty Ltd should be joined as parties to the family law proceedings, and whether the Court had the power to restrain those liquidators from continuing with proceedings in the Supreme Court of New South Wales. This involved considerations of the Court's jurisdiction and its ability to manage related litigation to prevent prejudice to the parties in the family law proceedings.

Cleary J ordered that Mr D and Mr E, in their capacity as liquidators of F Pty Ltd, be joined as second respondents to the family law proceedings. Furthermore, the Court made an interlocutory order restraining the second respondents, pursuant to section 114 of the *Family Law Act 1975* (Cth), from taking any further steps in the proceedings that had been filed in the Supreme Court of New South Wales. These orders were made pending further order of the Court.

Orders

Orders of the court

That Mr D and Mr E (as liquidators of F Pty Ltd) be joined as a party to these proceedings as second respondents pending further order.

That pending further order, the second respondents be and are restrained pursuant to s 114 of the Family Law Act from taking any step in the proceedings filed in the Supreme Court of New South Wales Case Number ….

Background

Background to the litigation

Full text does not contain this section.

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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