FAMILY LAW – PROPERTY – JOINDER – SUMMARY DISMISSAL - application to join an individual and a corporate trustee of a discretionary trust to the proceedings – cross application to summarily dismiss the Husband’s application made pursuant to s106B – where there were dispositions made to remove the Wife as a beneficiary of a discretionary trust that the Husband seeks to set aside - consideration as to whether the Wife had equitable rights to ‘consideration and due administration’ that were brought to an end when she was removed as a beneficiary of the Trust – whether the Husband’s application has no prospect of success – whether the individual and the corporate trustee are necessary parties.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR FREDERIC
Applicant
AND:
MS BRISSET
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
10 OCTOBER 2023
THE COURT ORDERS THAT:
1.Mr C — in his capacity as sole director and shareholder of D Pty Ltd and D Pty Ltd ATF Brisset Family Trust, be joined as parties to proceedings number LNC600 of 2022 as the Second and Third Respondent’s respectively.
2.The Husband’s Application in a Proceeding filed 23 May 2023, the First Respondent’s Wife’s Response filed 22 June 2023 and the Second and Third Respondents Response filed 13 September 2023, be otherwise dismissed.
3.Noting that paragraphs 2 and 3 of the Husband’s Application in a Proceeding filed 23 May 2023 have not been litigated nor determined, the Husband has leave to file an application seeking orders in the nature of paragraphs 2 and 3, if such an application becomes necessary.
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)
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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AGLC
Frederic & Brisset [2023] FedCFamC2F 1291
Case
[2023] FedCFamC2F 1291
Decision Date
CaseChat Overview and Summary
In the Family Court of Australia, the case of Frederic & Brisset involved a dispute over the disposition of assets within a discretionary trust. The wife sought to have certain dispositions set aside, which had resulted in her removal as a beneficiary of the trust. The husband applied to set aside these dispositions, and the wife responded by filing a cross-application to dismiss the husband's application as having no prospect of success. The individual and corporate trustee of the discretionary trust also filed a response, asserting their position in the proceedings.
The court was tasked with determining whether the individual and corporate trustee of the discretionary trust were necessary parties to the proceedings and whether the husband's application had any prospect of success. The central legal issue revolved around whether the wife had equitable rights to "consideration and due administration" that were brought to an end when she was removed as a beneficiary of the Trust. The court also had to consider whether the husband's application was likely to succeed and if the individual and corporate trustee were essential to the resolution of the dispute.
The court found that Mr C, as the sole director and shareholder of the corporate trustee, and the corporate trustee itself, were necessary parties to the proceedings. Consequently, they were to be joined as the second and third respondents, respectively. The court dismissed the husband's application but granted leave for him to file a new application if necessary regarding certain unspecified paragraphs of his original application. The cross-application to summarily dismiss the husband's application was also dismissed.
The court's final orders included the joining of Mr C and the corporate trustee as parties to the proceedings, the dismissal of the husband's application and the wife's cross-application, and the granting of leave to the husband to file a new application concerning specific paragraphs if needed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. Mr C — in his capacity as sole director and shareholder of D Pty Ltd and D Pty Ltd ATF Brisset Family Trust, be joined as parties to proceedings number LNC600 of 2022 as the Second and Third Respondent’s respectively.
2. The Husband’s Application in a Proceeding filed 23 May 2023, the First Respondent’s Wife’s Response filed 22 June 2023 and the Second and Third Respondents Response filed 13 September 2023, be otherwise dismissed.
3. Noting that paragraphs 2 and 3 of the Husband’s Application in a Proceeding filed 23 May 2023 have not been litigated nor determined, the Husband has leave to file an application seeking orders in the nature of paragraphs 2 and 3, if such an application becomes necessary.