Goreshter & Goreshter

[2024] FedCFamC1F 245

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Goreshter & Goreshter [2024] FedCFamC1F 245

File number(s)	PAC 2908 of 2020
Judgment of	WILSON J
Date of judgment	16 April 2024
Catchwords	FAMILY LAW – PROPERTY – joinder application by the applicant filed after commencement of trial – no meaningful explanation for delay – application dismissed.
Legislation	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rule 3.01
Case cited	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Division	Division 1 First Instance
Number of paragraphs	19
Date of last submissions	15 April 2024
Date of hearing	15 April 2024
Place	Melbourne
Solicitor for the applicant	Ms L. Zhang, CFS Legal
Counsel for the respondent	Ms E. Dalrymple
Solicitor for the respondent	Kamara Lawyers & Advisors

ORDERS

PAC 2908 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS GORESHTER

Applicant

AND

MR GORESHTER

Respondent

ORDER MADE BY	WILSON J
DATE OF ORDER	16 APRIL 2024

THE COURT ORDERS THAT -

1. The applicant’s joinder application filed 9 April 2024 is dismissed.

2. The trial will proceed on 12 June 2024.

   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).

   Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

   IT IS NOTED that publication of this judgment by this Court under a pseudonym Goreshter & Goreshter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

   EX TEMPORE REASONS FOR JUDGMENT

   WILSON J

3. On 26 November 2021, a senior judicial registrar of this court ordered the applicant to serve any amended application by 18 December 2021 including a statement of claim setting out her claim against Mr B in his capacity as trustee of his late mother’s estate.

4. The applicant failed to do that.

5. On 13 November 2023 the Honourable Justice Riethmuller ordered the applicant to join the executor of the husband’s late mother’s estate within 28 days of that date, being a date in late December 2023.

6. The applicant failed to comply.

7. The trial of this proceeding was listed on 11 March 2024. I was assigned to hear the trial.

8. During the first two unproductive days of the trial counsel for the applicant sought to press an application for the joinder of the trustee of the respondent’s late mother’s estate. That application was not well formulated. Once a proper joinder application had been prepared, it came before me on 9 April 2024. By then the proposed parties to be joined had not been served with the joinder application so I ordered them to be served which was done and no complaint about service was raised.

9. The husband objected to the joinder because the case is presently fixed for trial on 12 June 2024. If the joinder is allowed, it is likely that the proposed new parties will need more than two months to prepare to meet a trial date in early June which, in all possibility, will or may lead to the trial date being vacated.

10. The applicant relied on rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Relevantly synthesised, that rule requires the joinder of a person whose rights may be directly affected by an issue in a proceeding and whose participation is necessary for the court to determine all issues in dispute in the proceeding. Rule 3.01 is expressed in mandatory terms if the prerequisites to its operation are satisfied. The applicant’s solicitor argued that those prerequisites were in fact satisfied.

11. It was said in support of the joinder application that the respondent and his two brothers are beneficiaries under their late mother’s will, probate in respect of which was granted in mid‑2023.

12. The three brothers, that is to say the respondent and his siblings, are alleged to be entitled to a one third interest in a parcel of real estate their mother owned. She died in 2018. Precisely why probate took so long to be granted was not stated in any affidavit material filed before me. So it is alleged by the applicant, the husband and wife renovated the late mother’s home (described simply as C Street) and that, upon the grant of probate, each brother now has an interest in that property as to one third.

13. The value of C Street was not the subject of evidence.

14. If orders for the joinder of the husband’s brothers are not made, so it was said, the property in issue in this proceeding is likely limited to superannuation totalling something in the order of $120,000 – a very modest pool in current parlance. The applicant’s solicitor submitted that unless the value of C Street was known it is not possible for the applicant to know whether to seek an order for the sale of C Street nor was it possible for the applicant to do as the senior judicial registrar previously ordered, namely file a statement of claim in respect of the claims the applicant advances against the proposed new respondents and the former husband.

15. I confess to having trouble understanding that last point. Irrespective of the quantum of the one third interest, the manner in which the applicant’s claim is to be cast especially against the husband’s brothers must be known to her, even now. The fact that the applicant has refused to articulate her claims against the proposed respondents when previously ordered to do so indicates to me that the applicant does not fully comprehend the basis or merits of her proposed claim.

16. On behalf of the respondent, Ms Dalrymple forcefully resisted the proposed joinder. She  argued –

    (a)the marriage was very short;

    (b)the parties’ assets are very modest;

    (c)the parties did not engage in any meaningful asset building during the marriage;

    (d)the relevant criteria of Aon Risk Services Australia Ltd v Australian National University[1] had not been proved by the applicant; and

    (e)if joinder were permitted, the trial of this proceeding will almost certainly go off.

    [1] (2009) 239 CLR 175.

17. I raised with Ms Dalrymple whether my discretion under s 79 was at risk of miscarrying if I fail to have regard to a relevant consideration, namely the husband’s interest under his late mother’s will. Ms Dalrymple submitted that the Aon considerations, especially unexplained delay operated with greater force in such manner as to lead to the refusal of the joinder application. She also submitted that even if it be correct to factor in the husband’s one-third interest in C Street, that interest would be construed at best as a contribution made by the husband which in the context of a very short marriage would lead to almost no adjustments in the wife’s favour in any event.

18. In my view, there is considerable merit in that contention.

19. It seems readily apparent to me that the two brothers proposed to be joined (that is to say, not the husband), if joined would be put to the expense of participating in this litigation in circumstances where their aggregated two-third interest in C Street was not likely to be the subject of any order yet the diminution in the value of the asset was at risk. It was equally apparent that if, after trial, an adjustment was made in favour of the wife that could not be satisfied out of the matrimonial parties’ superannuation funds and it became necessary for the husband’s one third interest in C Street to be realised, his brothers may buy out his interest so as to produce a result that the brother’s interests in the property would be enhanced without the need to join them.

20. The applicant has had long enough to activate any joinder application and she had only chosen to do so after the trial of her proceeding commenced. She offered no meaningful explanation for her delay. She has failed to plead her claim against the proposed brothers, not being the husband. Despite my invitation to do so, she was unable to articulate the claim she made against them. In my view she is not entitled to delay the proper prosecution of this application further by the proposed joinder. Had she been serious about the joinder, she would and should have taken steps to do so in pursuance of the orders of the senior judicial registrar. The husband’s one third interest in C Street should be brought to account for balance sheet purposes but that does not mean the husband’s brothers must also be joined. It is perfectly competent for this court to make orders in respect of the husband’s one third interest without embroiling the other brothers in relation to their other two thirds holding.

21. I dismiss the applicant’s joinder application. The trial will proceed on 12 June 2024.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       16 April 2024