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Filipovic & Filipovic (No 2)

Filipovic & Filipovic (No 2)

Case [2023] FedCFamC2F 825 7 July 2023

Jurisdiction

Joinder of Parties

Restraint of Dealing with Assets

Financial Disclosure

Single Expert Valuations

Section 106B of the Family Law Act 1975 (Cth)

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Filipovic & Filipovic (No 2) [2023] FedCFamC2F 825

File number(s): MLC 13771 of 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 7 July 2023

Catchwords: FAMILY LAW – property & section 106B proceedings – joinder application – whether an undertaking to be bound by result means joinder is not necessary – overarching agreement or partnership alleged over companies and trusts – whether possible at law- whether assets of trusts “property” of a party to the marriage – arguable case found – joinder necessary – proposed parties joined.

Legislation:
Family Law Act 1975 (Cth), ss 79, 106B

Federal Circuit and Family Court Act 2021 (Cth), s 26

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, rr 3.01, 3.03, 7.06, 10.18(5)

Partnership Act 1895 (WA)

Partnership Act 1958 (Vic)

Cases cited:
B Pty Ltd v Ors & K and Anor [2008] FamCAFC 113; [2008] FLC 93-380; (2008) 39 Fam LR 488

Beecham Group Ltd v Bristol Laborities Pty Ltd [1968] HCA 1

Chen & Chen & Or Anor [2017] FamCA 285

Commissioner of State Revenue v Rojoda Pty Ltd (2020) 268 CLR 281; [2020] HCA 7.

Friend v Brooker [2009] HCA 21; (2009) 239 CLR 129

Ganem & Ganem [2014] FamCA 1177

Genasalio & Genasalio [2023] FedCFamC1F 160

Hancock Family Memorial Foundation Limited v Fieldhouse (No 3) [2005] WASCA 93

Harris & Dewell and Anor (2018) FLC 93-839

Ingles & Ingles & Ors [2019] FamCA 33

Love & Thwaites (No 4) [2014] VSCA 56

Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366; (2008) FLC 93-388; (2008) 40 Fam LR 1

Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251; (1996) 70 ALJR 541

Mir v Mir [2023] NSWSC 408

Nickson & Kessell [2020] FamCA 931

Palermo v Palermo [2015] WASA 49

Pleash (Liquidator) v Tucker [2018] FCAFC 144

Re Webster (1975) 132 CLR 270

Rigby & Kingston [2020] FamCA 8

Southern & Southern [2017] FamCA 128

Tsiang & Wu [2019] FamCAFC 128

Wayne & Dillon [2008] FamCAFC 204; (2008) 40 Fam LR 543

Woodcock & Woodcock No 2 [2022] FedCFamC1F 173

Division: Division 2 Family Law

Number of paragraphs: 128

Date of hearing: 12 December 2022 & 21 March 2023

Date of last submissions: 16 June 2023

Place: Melbourne

Counsel for the Applicant: Mr A.M. Dinelli SC

Counsel for the Applicant: Ms H. Dellidis

Solicitor for the Applicant: Mills Oakley Lawyers

Counsel for the First Respondent: Mr J. Mellas

Solicitor for the First Respondent: Kenna Teasdale Lawyers

Counsel for the Second, Third and Fourth Respondents: Mr L. Glick KC

Solicitor for the Second, Third and Fourth Respondents: Russell Kennedy Lawyers
ORDERS

MLC 13771 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS FILIPOVIC

Applicant

AND:
MR FILIPOVIC

First Respondent

MR B FILIPOVIC

Second Respondent

C PTY LTD

Third Respondent

D PTY LTD

Fourth Respondent

order made by:

JUDGE O'SHANNESSY

DATE…

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 Filipovic & Filipovic (No 2)

Details

AGLC: Filipovic & Filipovic (No 2) [2023] FedCFamC2F 825
Case: [2023] FedCFamC2F 825
Decision Date

CaseChat Overview and Summary

The case of Filipovic & Filipovic (No 2) [2023] FedCFamC2F 825 is a complex family law matter involving property disputes, joinder applications, and potential relief under section 106B of the Family Law Act 1975 (Cth). The Federal Circuit and Family Court of Australia was required to determine whether third parties, who were not originally parties to the proceedings, should be joined as parties and if so, what orders should be made in respect of those parties. The court also had to decide on ancillary issues such as financial disclosure, restraint injunctions, and property valuations.

The court found that the application for joinder of third parties was arguable. The third parties, including the husband's brother and companies associated with their business dealings, were deemed necessary parties to the proceedings because their participation was required to determine the issues in dispute. The court found that the wife's claims, including an alleged partnership agreement, an overarching agreement or partnership, and an interest in the property, were sufficiently arguable to warrant joinder of the third parties. The court also found that the wife's alternative contentions regarding the husband's rights to due administration and due consideration under the trusts were arguable.

The court granted the wife's application for joinder of the third parties, subject to her undertaking as to damages. The court also made orders for disclosure of documents by the third parties, granted restraining injunctions to prevent disposal of assets, and ordered single expert valuations of the relevant properties. The court's decision was based on the arguable nature of the wife's claims and the necessity of the third parties' participation to determine the issues in dispute. The court noted that the complexity of the legal arguments and factual disputes would be addressed at a later stage in the proceedings.

Orders