Farro and Goff and Ors - [2019] FamCA 959

FAMILY COURT OF AUSTRALIA

FARRO & GOFF AND ORS

[2019] FamCA 959

FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Whether the Family Court should exercise its accrued jurisdiction power – Whether a claim of negligence against the fourth, fifth and sixth respondents for their role in enabling the first respondent to fraudulently appropriate the identity of the applicant to give effect to various property purchases and the establishment of finance facilities is part of the single justiciable controversy between the applicant and first respondent – Consideration of relevant case authorities – No single justiciable issue found – fourth, fifth and sixth respondents removed as parties to the proceedings

Family Law Act 1975 (Cth) ss 90SF, 90SM
Limitation Act 1969 (NSW) s 14

Noll& Noll & Anor [2013] FamCAFC 24

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Re Wakim; Ex parte McNally (1999) 198 CLR 511
Ruane & Bachman-Ruane and Ors (Accrued Jurisdiction) [2012] FamCA 369
Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28

APPLICANT:

Ms Farro

FIRST RESPONDENT:

Ms Goff

SECOND RESPONDENT:

Mr Cabler as Trustee in Bankruptcy of Ms Goff

THIRD RESPONDENT:

B Pty Ltd (ABN …)

FOURTH RESPONDENT:

Mr C trading as ‘C Firm’

FIFTH RESPONDENT:

Mr D

SIXTH RESPONDENT:

E Pty Ltd trading as ‘F Business’ (ABN …)

FILE NUMBER:

PAC

4297

2013

DATE DELIVERED:

12 December 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

12 August 2019 and by way of written submissions last received on 4 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC

SOLICITOR FOR THE APPLICANT:

Malcolm McDonald & Co

SOLICITOR FOR THE FIRST RESPONDENT:

No appearance

SOLICITOR FOR THE SECOND RESPONDENT:

No appearance

SOLICITOR FOR THE THIRD RESPONDENT:

No appearance

COUNSEL FOR THE FOURTH RESPONDENT:

Mr Othen

SOLICITOR FOR THE FOURTH RESPONDENT:

Mullane & Lindsay Solicitors

COUNSEL FOR THE FIFTH RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE FIFTH RESPONDENT:

Colin Biggers & Paisley

COUNSEL FOR THE SIXTH RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE SIXTH RESPONDENT:

Colin Biggers & Paisley

Orders

That the Fourth, Fifth and Sixth Respondents be removed from these proceedings as parties.
That any application for costs arising from the above order be made by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within 14 days thereafter and upon completion of submissions judgment as to costs be reserved to chambers.

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 Farro & Goffe 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)),…

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 Farro and Goff and Ors

Details

AGLC: Farro and Goff and Ors [2019] FamCA 959
Case: [2019] FamCA 959
Decision Date: 12 December 2019

CaseChat Overview and Summary

In *Farro and Goff and Ors*, Foster J of the Supreme Court of New South Wales was required to determine an application to remove certain respondents from the proceedings. The applicants sought this removal, and the court considered the grounds upon which such an order could be made.

The central legal issue before the court was whether the Fourth, Fifth, and Sixth Respondents were properly joined as parties to the litigation and, if not, whether they should be removed from the proceedings. This involved an assessment of the applicants' claims against these respondents and the necessity of their continued participation in the case.

Foster J reasoned that the Fourth, Fifth, and Sixth Respondents were not necessary parties to the proceedings. The court applied principles relating to the joinder and removal of parties, determining that the claims against these respondents lacked a sufficient nexus to the main dispute or that their involvement was otherwise inappropriate. Consequently, the court ordered the removal of the Fourth, Fifth, and Sixth Respondents from the proceedings. The court also made orders regarding the making of any applications for costs arising from this decision, requiring written submissions to be filed within specified timeframes.

Orders

Orders of the court

That the Fourth, Fifth and Sixth Respondents be removed from these proceedings as parties.

That any application for costs arising from the above order be made by way of written submissions filed and served within one month from this date with any submissions in response to be filed and served within 14 days thereafter and upon completion of submissions judgment as to costs be reserved to chambers.

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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