Filip & Filip

Case [2025] FedCFamC1F 35

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

FIRST INSTANCE

Filip & Filip [2025] FedCFamC1F 35

File numbers: BRC 11696 of 2018
BRC 9373 of 2023
Judgment of: CAREW J
Date of judgment: 30 January 2025
Catchwords: FAMILY LAW – PROPERTY – Joinder – Where there is a Family Trust – Where an agreement had been reached and a  property order made by consent – Where a party to a property order dies – Where an estate has insufficient funds to meet the outstanding debt in full – Where a party failed to provide security for payments as required by a property order – Where the trustee resists being a party to the proceedings – Where factual or legal contentions in pleadings are insufficient – Where an application to add a party is dismissed – Where an application to remove a party from a proceeding is granted
Legislation:

Family Law Act 1975 (Cth) ss 79, 79A(1), 79A(1)(b), 79A(1)(c), 85A, 90AE, 90AE(2), 90AF, 90AG, 114(3)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.03(4), 3.05, 14.05

Cases cited:

B Pty Ltd & K (2008) 39 Fam LR 488

Dare v Pulham (1982) 148 CLR 658

Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223

R v Watson; Ex parte Armstrong (1976) 136 CLR 248

Wayne & Dillon (2008) 40 Fam LR 543

Number of paragraphs: 62
Date of hearing: 7 June 2024 and 11 November 2024
Counsel for the Applicant: Mr Alexander and Ms Murphy
Solicitor for the Applicant: McInnes Wilson Lawyers
Counsel for the First and Fourth Respondents: Mr Looney KC and Ms Horsley
Solicitor for the First and Fourth Respondents: Hillhouse Legal Partners
Counsel for the Second and Third Respondents: Mr Drysdale KC and Mr Gordon
Solicitor for the Second and Third Respondents: Gear & Co Lawyers

ORDER

BRC 11696 of 2018
BRC 9373 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS FILIP

Applicant
AND:

MR B FILIP AS LEGAL PERSONAL REPRESENTATIVE FOR THE ESTATE OF THE LATE MR FILIP

First Respondent

MR C FILIP

Second Respondent

MS BARAN (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

30 JANUARY 2025

THE COURT ORDERS THAT:

1.The application for D Pty Ltd as trustee for the Filip Family Trust to be added as a party in proceedings numbered BRC 11696 of 2018 be dismissed.

2.The application for D Pty Ltd as trustee for the Filip Family Trust to be removed as a party in proceedings numbered BRC 9373 of 2023 be granted.

3.The proceedings in both matters be listed for a case management hearing before the Honourable Justice Carew on a date to be advised.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court…

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AGLC
Filip & Filip [2025] FedCFamC1F 35
Case
[2025] FedCFamC1F 35
Decision Date

CaseChat Overview and Summary

The case before the court involved parties from two separate proceedings, BRC 11696 of 2018 and BRC 9373 of 2023, related to family law property matters. The central dispute was whether the trustee for the Filip Family Trust should be joined as a party in the first proceeding and removed from the second proceeding. The trustee had initially been included as a party but was resisted by the parties seeking to add or remove them. The core legal issue was whether the trustee's involvement was necessary given the terms of the existing property order and the insufficiency of the estate to meet the outstanding debt.

The court examined the arguments presented by the parties, particularly focusing on the adequacy of the pleadings provided by the wife and Mr C Filip and Ms Baran. The court noted that the wife and Mr C Filip and Ms Baran had failed to articulate sufficient factual or legal contentions in their pleadings to justify the trustee's continued involvement in the proceedings. The court found that the proposed property order, which had been signed by all parties, did not require the trustee to be a party and that the obligations under the order were to be met by the husband and the E Group. Furthermore, the court determined that the trustee’s resistance to being a party was justified due to the insufficient basis provided in the pleadings.

Consequently, the court dismissed the application to join the trustee in the 2018 proceedings and granted the application to remove the trustee from the 2023 proceedings. The court decided that ordering amended pleadings would be unnecessary and potentially burdensome for the trustee. The court proposed to list the matter for a case management hearing to determine the future progress of the remaining proceedings. The court issued orders accordingly, dismissing the application to add the trustee as a party and granting the application to remove the trustee, while scheduling a case management hearing for the remaining parties.

The court's orders were that the application for D Pty Ltd as trustee for the Filip Family Trust to be added as a party in proceedings numbered BRC 11696 of 2018 be dismissed, and the application for D Pty Ltd as trustee for the Filip Family Trust to be removed as a party in proceedings numbered BRC 9373 of 2023 be granted. The proceedings in both matters were to be listed for a case management hearing before the Honourable Justice Carew on a date to be advised.

Orders

Orders of the court

1. The application for D Pty Ltd as trustee for the Filip Family Trust to be added as a party in proceedings numbered BRC 11696 of 2018 be dismissed.

2. The application for D Pty Ltd as trustee for the Filip Family Trust to be removed as a party in proceedings numbered BRC 9373 of 2023 be granted.

3. The proceedings in both matters be listed for a case management hearing before the Honourable Justice Carew on a date to be advised.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

When the matter was first before me on 7 June 2024, it was ordered by consent that the wife and Mr C Filip and Ms Baran file a Statement of Facts, Issues and Contentions to identify the factual and legal basis of their claims against the trustee and/or the E Group and that the trustee file a Response thereto. A Statements of Facts, Issues and Contentions was filed by the wife on 19 July 2024, and by Mr C Filip and Ms Baran on 26 July 2024. A Response to the Statements of Facts, Issues and Contentions was filed by the trustee on 23 August 2024 and a Reply to the trustee’s Response was filed by Mr C Filip and Ms Baran on 14 October 2024. Unfortunately, due to commitments of counsel and the Court, the matter was unable to return for further hearing until 11 November 2024 when the decision about whether the trustee should be a party was reserved. OTHER RELEVANT BACKGROUND The parties to the 2018 proceedings attended a mediation and entered into heads of agreement on 11 October 2022. The husband’s lawyers drafted the proposed property order and Mr C Filip and Ms Baran’s lawyers sought certain amendments, among other things, to impose positive obligations on the E Group to make the cash payments. In correspondence dated 11 November 2022, the husband’s lawyers rejected the proposed amendments on the basis that “none of the entities are a party to the proceedings or the Orders. For the same reason, those Orders, as amended by your clients, are unenforceable”. Notwithstanding the rejection of the amendments, the husband’s solicitors, “made it clear that [the husband] in any capacity will do certain things, such as in relation to the cash payments to [the wife and [Mr C Filip and Ms Baran]]”. The amendments proposed by Mr C Filip and Ms Baran’s lawyers were not pressed and the draft property order was signed by all parties. On 26 October 2022, the husband’s lawyers authored the letter to the Court addressing issues of justice and equity for the purposes of s 79 of the Family Law Act 1975 (Cth) (“the Act”) and included the following statement:It is not possible to precisely identify the net value of the property pool. However: •The property pool primarily consists of a group of entities collectively referred to as the [E Group]. •…•It is the [husband’s] position that the net pool between the [wife] and [the husband] is in the vicinity of $52.5M … Pursuant to the 2022 property order, several things occurred/were to occur including the following:(a)The husband retained his interests in the E Group (paragraph 4); (b)The husband retained/received the E Group free of any claim from the wife, Mr C Filip and Ms Baran (paragraph 13);(c)The wife, Mr C Filip and Ms Baran fully released and discharged the husband, personally and in any other capacity, from any claim they have or may have against the husband and/or E Group (paragraph 14);(d)The wife, Mr C Filip and Ms Baran relinquished all right, title or interest they have or may have, whether legal or equitable, in or relating to the E Group (paragraph 15);(e)The husband was to pay, or cause to be paid by the E Group $8,000,000 to the wife and $6,500,000 to each of Mr C Filip and Ms Baran (paragraph 24);(f)The cash payments were to be made in six tranches, namely on 10 November 2022, 4 February 2023, 5 April 2023, 1 July 2023, 1 July 2024, and 1 July 2025 (paragraph 24); (g)The husband was to provide security for the cash payments, by providing a first registered mortgage over a property in his sole name and in addition “a Security Interest over all of the [E Group] entities’ present and after-acquired property” (paragraph 25); (h)Any obligation created by the 2022 property order applies to the parties in their personal capacities as well as to the parties in whatever other capacity that they may have (paragraph 31); and(i)To the extent any obligation imposed upon the husband and the E Group requires other persons to execute documents or to action, the husband will procure such signatures and/or such action from such persons (paragraph 32).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Lastly, in relation to the alternative relief claimed by the wife under ss 90AE(2), 90AF, and s 114(3) of the Act the wife is silent in her pleading as to any factual or legal contentions. In relation to the alternate relief sought by Mr C Filip and Ms Baran under those sections, only s 90AE(2) of the Act is mentioned but the pleading does not articulate any factual or legal contentions that would enliven its application. No submissions addressed this alternative relief.CONCLUSION The wife and Mr C Filip and Ms Baran have failed to establish on their current pleadings that the trustee is a necessary party to the proceedings. The purpose of the adjournment in June last year was to afford the wife and Mr C Filip and Ms Baran an opportunity to provide a Statement of Facts, Issues and Contentions which, if proved, could arguably justify the relief sought. The pleadings filed by the wife and Mr C Filip and Ms Baran fail to do so. I propose to dismiss the application to join the trustee to the 2018 proceedings and to remove the trustee from the 2023 proceedings. That course seems to be more appropriate than ordering amended pleadings to be filed which would require the trustee to remain involved in the proceedings and incur further costs, perhaps unnecessarily. I propose to list the matter for a case management hearing at a time convenient to the remaining parties to determine the future progress of the matter.

Ratio Decidendi

Legal Principle Established

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