Harmon and Traversa & Lindon and Morcos
[2025] FedCFamC1A 59
•9 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Harmon and Traversa & Lindon and Morcos [2025] FedCFamC1A 59
Appeal from: Morcos & Lindon (No 2) [2025] FedCFamC1F 7 Appeal number(s): NAA 50 of 2025 File number(s): MLC 209 of 2020 Judgment of: JARRETT J Date of judgment: 9 April 2025 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL –SUMMARY DISMISSAL – Appeal from declaratory order – Appellants beneficiaries of testamentary trust – coversheet of Notice of Appeal naming wrong party as appellant – Where the first respondent sought summary dismissal of the appeal – Where the appellants sought leave to amend Notice of Appeal – Application for summary dismissal dismissed – leave to amend granted Legislation: Family Law Act 1975 (Cth) ss 78, 92
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.23, 2.24, 13.04 and 15.21
Administration and Probate Act 1958 (Vic) s 34
Cases cited: A & GS & Others (2004) FLC 93–199; [2004] FamCA 967
Morcos & Lindon (No 3) [2025] FedCFamC1F 183
Campbell v. Kitchen & Sons Ltd and Brisbane Soap Co Ltd (1910) 12 CLR 513; [1910] HCA 23
Comar & Comar (2020) FLC 93–958; [2020] FamCAFC 99
Connolly v Macartney (1908) 7 CLR 48; [1908] HCA 64
Cuthbertson v. Hobart Corporation (1921) 30 CLR 16; [1921] HCA 51
Estate of Graham [1910] VLR 466
Goodridge & Beadle and Ors [2019] FamCA 709
Hodges Hall & Jovanovic & Markov (1995) 19 Fam LR 24
In the Estate of Dunn [1963] VR 165
In the Marriage of Barro (1982) 8 FamLR 855
In the Marriage of Panayotides (1996) 21 FamLR 446
Mankiewicz and Anor & Swallow and Anor (2016) FLC 93–725; [2016] FamCAFC 153
Re Cockburn’s Will Trusts [1957] 1 Ch 438
Re Ponder [1912] 2 Ch 59
Re Whitechurch [1990] VR 719
Telford v Telford [2003] VSC 8
Will of Holland (1891) 17 VLR 1
Number of paragraphs: 41 Date of hearing: 4 April 2025 Place: Heard in Brisbane, delivered in Adelaide Counsel for the Appellants: Mr Shepherd with Mr Kiernan Solicitors for the Appellants: KHQ Lawyers
Counsel for the First Respondent Mr North SC Solicitors for the First Respondent: Zeno Lawyers Counsel for the Second Respondent: Litigant in person ORDERS
NAA 50 of 2025
MLC 209 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS HARMON AND MS TRAVERSA
Appellants
AND: MS LINDON
First Respondent/Cross-Appellant
MR MORCOS
Second Respondent/Cross Appellant
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
9 APRIL 2025
THE COURT ORDERS THAT:
1.Save for the question of costs, the Application in an Appeal filed on 25 March 2025 is dismissed.
2.The appellants have leave to file an amended Notice of Appeal in the form of the document marked as annexure FA-2 to the affidavit of Ms Harmon filed on 28 March 2025.
3.The application for leave to appeal be heard by the Full Court with the hearing of the appeal.
4.Order 5 in the first respondent’s Response to Application in an Appeal filed on 27 March 2025 is dismissed.
5.Any party desirous of moving the court as to costs of:
(a)the Application in an Appeal filed by the first respondent on 25 March 2025;
(b)the Response to Application in an Appeal filed by the second respondent on 27 March 2025; or
(c)the Response to Application in an Appeal filed by the appellants on 28 March 2025
shall, no later than 4.00pm on 16 April 2025 make, file and serve any material and submissions as to the order for costs sought by them.
6.Any party wishing to respond to an application for costs made against them shall, no later than 4.00 pm on 23 April 2025 make, file and serve any material and submissions as to costs.
7.Any submissions in reply to those made pursuant to order 6 hereof shall be filed and served no later than 4.00 pm on 30 April 2025.
8.Otherwise the question of costs be reserved.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 20 January 2025 another judge of this court delivered reasons for judgment and made certain orders in an application for property adjustment commenced by Mr Morcos (the second respondent in the present appeal). The respondent to the application was his former wife, Ms Lindon (the first respondent in the present appeal). She was his second wife.
One of the issues before the primary judge concerned the beneficial ownership of a certain parcel of real property that was registered in the name of the second respondent as the executor of the estate of his late mother, Ms B. The first respondent contended that the second respondent owned the property beneficially and that it was not an estate asset. The first respondent succeeded. Pursuant to s 78 of the Family Law Act 1975 (Cth) the primary judge declared that the second respondent was the legal and beneficial owner of the property. It was included as one of the parties’ assets available for distribution in the property adjustment proceedings between them.
The appellants, Ms Harmon and Ms Traversa are two of the second respondent’s daughters from his relationship with his first wife. In circumstances that I shall set out shortly, they have commenced an appeal against the primary judge’s orders in which they challenge her declaration that the second respondent is the legal and beneficial owner of the relevant real property. They contend that the real property is an asset of the estate of the late paternal grandmother and is subject to the trust established by her will. The appellants, together with another of the second respondent’s daughters, are the primary beneficiaries of the trust established by the deceased’s will. The second respondent is also a beneficiary, he being within the class of general beneficiaries for the trust.
In the context of the appeal, there are now pending before the court three applications. In order, they are:
(a)an Application in an Appeal filed by the first respondent on 25 March 2025 seeking summary dismissal of the appeal;
(b)an application for a range of orders contained within the second respondent’s Response to Application in an Appeal filed on 27 March 2025; and
(c)an application for certain orders contained within the appellants’ Response to Application in an Appeal filed on 28 March 2025.
It appears uncontentious that by his late mother’s will dated 9 November 2009, the second respondent was appointed executor of her estate and trustee of the trusts to be established pursuant to it. The second respondent’s mother passed away in 2010 and Probate was granted to him in mid-2019. The evidence does not establish the extent to which the estate has been administered. The evidence is that the principal asset of the estate is the real property that is the subject of the declaration made by the primary judge.
On 3 February 2025 the second respondent purported to retire as trustee of the trust established by his late mother’s will and in his stead he purported to appoint the appellants as trustees of that trust. Although it is not clear, the efficacy of the appointment does not appear to be accepted by the first respondent. In the written submissions delivered for her by her counsel, she says:
34.The question of whether or not [Ms Harmon] and [Ms Traversa] are in the trustee phase of administration of the estate of the deceased, is not suitable for summary determination as it involves disputed issues of fact and law which require full argument. Be that as it may, it is the wife’s contention that there must be a transition from the role of executor to the role of trustee, before an executor becomes a trustee acting in the trustee phase as trustee of the testamentary trust in the will and the wife does not concede that point has been reached. Prima facie it appears the appointment of [Ms Harmon] and [Ms Traversa] was made by the husband as executor pursuant to s. 41(1) of the Trustee Act 1958 (Vic).
The submission does not identify the disputed issues of fact and law referred to therein. None were identified before me in oral argument, but I note that the first respondent does not concede that the administration is complete and that the estate’s assets are now in the hands of the trustee or trustees of the trust established pursuant to the will.
The evidence does not permit a conclusion about this issue. On the one hand, having regard to the length of time since the deceased’s death, the grant of probate and the principles set out in cases such as Will of Holland (1891) 17 VLR 1, Estate of Graham [1910] VLR 466, Re Ponder [1912] 2 Ch 59, Re Cockburn’s Will Trusts [1957] 1 Ch 438, In the Estate of Dunn [1963] VR 165, Re Whitechurch [1990] VR 719 and Telford v Telford [2003] VSC 8 it is likely that the estate’s assets were in the hands of the second respondent as trustee and his resignation and appointment of new trustees is valid (all other matters being equal). On the other hand, Ms Harmon has acted in a way that is inconsistent with this conclusion. The evidence shows that she has made application pursuant to s 34 of the Administration and Probate Act 1958 (Vic) for an order that she replace the second respondent as executor of the estate. The outcome of such application is not yet known. However, the making of such an application seems to me to be inconsistent with the proposition that the administration of the estate had reached a point where the second respondent’s role had moved from executor to that of trustee. As Telford v Telford (above) illustrates, if the administration is incomplete, no occasion for the appointment or replacement of trustees of the relevant testamentary trust arises. If the administration is complete, no occasion for the replacement of the executor arises: In the Estate of Dunn (above).
THE FIRST RESPONDENT’S APPLICATION IN AN APPEAL
By her Application in an Appeal the first respondent seeks that the Notice of Appeal be summarily dismissed on the grounds that it is an abuse of process “and/or non-compliance with the Rules”.
The power to summarily dismiss an appeal is not in issue. The written submissions filed by counsel for the first respondent conveniently summarised the principles as follows:
29. The power to summarily dismiss proceedings is supplied by s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The power is engaged when the court is satisfied that an applicant has no reasonable prospect of successfully prosecuting the proceeding (or part of it). The Court need not be satisfied that the proceedings are hopeless or bound to fail for it to have no reasonable prospect of success: s 46(3) of the Act. In the event that the power is engaged, the court may order that the proceedings be dismissed. Even though the appeal lies to the Full Court (s 32(1)(b)), it may be summarily dismissed by a single judge (s 32(3)(b) and s 32(5)).
30. The wife also relies upon rule 13.45(b)(i) of the Rules and submits that the Trustees are defaulting parties who have not met a requirement under the Rules. Under Rule 13.45((2), the Court having jurisdiction in the appeal or application may: (a) if the defaulting party is the appellant or the applicant: (i) dismiss the appeal or application; or (ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with.
The first respondent’s submissions rely heavily upon the proposition that either the appellants have not filed a Notice of Appeal or have purported to file a Notice of Appeal on behalf of the executor when they had no authority to do so. In the circumstances some consideration of the Notice of Appeal and the mechanics of its filing are appropriate.
The Notice of Appeal was filed electronically. The purported appellants are not parties to the principal proceedings. It seems that when they (by their solicitor) attempted to file the Notice of Appeal, they found that they could not do so. Referring to both the Notice of Appeal and an Application in a Proceeding in the principal proceedings seeking leave to intervene in them, Ms Harmon swears:
20(c)…I am informed by the solicitors for the Trustees and verily believe that it was not possible to file such documents on the Commonwealth Law Court’s Portal unless one of the existing parties to the proceedings was selected. That is, the Commonwealth Law Court’s Portal does not appear to allow or permit the filing of a document by a “non-party” to the proceedings. As such, whilst the cover sheets to the Notice of Appeal and Application in a Proceeding filed 12 February 2025 and to the Draft Amended Notice of Appeal are filed in the name of the Executor of the Estate, such application was brought, and notices filed, by the Trustees of the Estate. There was some urgency in having an appeal filed before the hearing scheduled for 14 February 2025 because it was intended to apply for a stay pending an appeal at that hearing
The Notice of Appeal, as it appears on the court’s electronic file is curious, but the curiosity is explained by Ms Harmon’s evidence to which I have just referred. The document consists of a cover sheet and the Notice of Appeal. The coversheet is populated by the Court’s systems from information provided by the filing party at the time of filing. A law firm is named on the cover sheet and the document is said to be filed on behalf of “The Appellant”. This of itself was curious because, as the second respondent submits: “The husband has been unrepresented and is not represented by [AP Lawyers] who filed the notice of appeal on 12 February 2025.” Further, on the coversheet, the appellant is said to be “Executor of the Estate of the Late [Ms B]”. The first respondent is said to be Mr Morcos and the second respondent is said to be Ms Lindon.
But the Notice of Appeal itself has quite different particulars. The notation “[C:\Users\Ms AQ\AppData\Roaming\iManage\Work\Recent\- Ms Traversa_ Ms Harmon _ Ms P - Harmon_ Traversa _ Lindon - Family Law Matter\Notice of Appeal.docx]” at the foot of the pages of the Notice of Appeal (but not the coversheet) make it tolerably clear that this is not a document produced by the Court’s system (although it is a form approved by Chief Justice pursuant to Rule 15.21). It appears to be a document produced by the appellants or their solicitors. It departs from the coversheet in that it identifies the appellant as “[MS HARMON AND MS TRAVERSA AS TRUSTEES OF THE ESTATE OF THE LATE MS B]”. It identifies the first respondent by the family name “[Lindon]” and the given names “[Ms Lindon]” and it identifies the second respondent by the family name “[Morcos]” and the given names “[Mr Morcos]”. The solicitors whose name appears on the cover sheet also appears as the contact address for the appellants.
Whilst the cover sheet was apt to mislead, any confusion no doubt evaporated when recourse was had to the Notice of Appeal itself. I do not consider that the following notation at the very top of the Notice of Appeal detracts from this given the balance of the content of the Notice:
Filed on behalf of:
Full name: Executor of The Estate of the Late [Ms B]
X Appellant/Applicant
In my view, the evidence makes it clear, as is uncontrovertibly the case, that the Notice of Appeal was filed by the appellants and not by the second respondent for himself or as executor of the Estate. Nor was the Notice of Appeal filed by the appellants on behalf of their father, either in his personal capacity or in his capacity as executor of his late mother’s estate.
I am fortified in this conclusion by the first respondent’s failure to depose to any confusion about who was filing the Notice of Appeal. Indeed, in her affidavit filed on 25 March 2025, the first respondent swears that the Notice of Appeal was filed by Ms Harmon and Ms Traversa, “the Husband’s two daughters from his first marriage”. Despite her deposition that “[Ms Traversa] and [Ms Harmon] have filed a Notice of Appeal on behalf of the Executor of the Estate of the Late [Ms B]”, for the reasons I have given above, that was clearly not the case.
I do not consider that filing the Notice of Appeal the way in which the appellants did means that the appeal should be dismissed as an abuse of process. Whilst the procedure adopted is less than satisfactory, should not be condoned and it is clear that an alternative way of filing the document was available pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (see rules 2.23 and 2.24), the first respondent does not depose to being misled by the way in which the appeal was instituted. She deposes to no prejudice.
Moreover, the first respondent does not contend that the appellants do not have a sufficient interest to appeal the primary judge’s orders. It is clear that neither appellant is presently an executor of the estate. Whether their appointments as trustees is valid is not at all clear. However, there is no dispute that they are primary beneficiaries under the testamentary trust established by the deceased’s will. The purpose of the Notice of Appeal is to seek relief that is plainly available to them should they make out the grounds of their appeal (cf. Goodridge & Beadle and Ors [2019] FamCA 709 at [71] and the cases cited therein).
As the appellants submit, the Federal Circuit and Family Court of Australia Act 2021 (Cth) is silent as to who may institute an appeal. The rules are also silent on the topic, but make it clear that each person who is directly affected by the orders sought in the notice of appeal, or who is likely to be interested in maintaining the order under appeal must be made a respondent to the appeal or the application for leave to appeal: FCFCR 13.04.
The appellants plainly have an interest in the declaration made by the primary judge. It directly impacts upon their interests as primary beneficiaries under the testamentary trust in the deceased’s will. As Connolly v Macartney (1908) 7 CLR 48 (at 50) demonstrates, the appellants were probably entitled to an order that they be joined to the principal proceedings ex debito justitiae notwithstanding that the primary judge had delivered a final order and that order had been entered. The primary judge’s reasons (see Morcos & Lindon (No 3) [2025] FedCFamC1F 183) do not reflect that her Honour was referred to Connolly v Macartney.
Notwithstanding the appellants’ unsuccessful application to be joined to the principal proceedings, given their clear interest in the declaratory order made by the primary judge, the authorities demonstrate that they may nonetheless bring an appeal against that order. So much is clear from In the Marriage of Barro (1982) 8 FamLR 855 where at 860 the Full Court said:
In our view where in a proceeding in this court an order is made against a person who is not a party (or which affects the right of such a person), such a person may:
(a) apply to vary or discharge that order (where that course is appropriate);
(b) appeal;
(c) where a party to the proceedings has already appealed, seek to appear upon that appeal.
In any such case the Court has a discretion-
(a) to permit such person to be heard without applying for leave to intervene under s 92;
(b) grant to such person leave to intervene limited to the issue in question;
(c) grant to such person leave to intervene generally in the proceedings between the parties,
in each case subject to such terms as to costs or otherwise as may be appropriate.
That passage (along with others from Barro) was applied in Hodges Hall & Jovanovic & Markov (1995) 19 Fam LR 241. In that case, the husband’s former solicitors had lodged a caveat over the title to the parties’ former matrimonial home to support an equitable charge that the husband had given them to secure unpaid costs. The solicitors were not parties to the proceedings, but the primary judge ordered them to remove the caveat. The solicitors appealed. At 248, after referring to the passage I have set out above from Barro, the Full Court said:
Those conclusions have not been the subject of any challenge or criticism in the intervening decade and we proceed in conformity with those views. We do not consider that it is necessary in this appeal for the husband's solicitors to seek leave to intervene but in their appeal they are subject to the jurisdiction of this court as to costs and otherwise.
The principles set out in Barro were also approved and applied in In the Marriage of Panayotides (1996) 21 FamLR 446. In that case (at p. 461), the Full Court observed that the orders sought to be challenged on appeal in both Barro and Hodges Hall were made directly against the non-party who wished to appeal. The putative appellant in the case before them was not named in the order, but nonetheless had interests that were affected by the order in question. At p. 462, the Full Court said:
It seems to us that a litigant who is not a party to proceedings at trial, but has a clear interest in the orders which were made, has either a right of appeal or is able to make an application to the Full Court for leave to appeal. Natural justice would seem to require that any person who is directly affected by an order should have some right of appeal from that order.
The approach in Panayotides has been consistently applied (although the Full Court’s decision concerning another matter determined in Panayotides was overruled in A & GS & Others (2004) FLC (93–199): see, for example, Comar & Comar (2020) FLC 93–958; Mankiewicz and Anor & Swallow and Anor (2016) FLC 93–725.
Whilst the appellant’s have in interest in the primary judge’s order sufficient to support an appeal by them, that right is best viewed as a right to apply for leave to appeal: Cuthbertson v Hobart Corporation (1921) 30 CLR 16 at p.25, applied in Panayotides at p.462 where the Full Court said:
On balance, we think the preferred course is that suggested in Crawcour v Salter and adopted by the High Court in Cuthbertson v Hobart Corp which is that while there may be no appeal as of right by a party in those circumstances the leave of the Full Court may be sought by such a party to appeal. There may be cases where the appeal which a litigant seeks to bring contains no proper grounds it, or is vexatious or frivolous, and, on the face of discloses no basis for appeal. In such cases, the court may, if an application for leave to appeal is considered to be the appropriate course, refuse leave without being required to consider the substantive appeal.
For the above reasons, I conclude that the Notice of Appeal filed on 12 February 2025 is not an abuse of process. Moreover, I am not satisfied that the appellants have no reasonable prospect of successfully prosecuting the appeal. Despite the difficulties associated with the filing of the Notice of Appeal, the appellants explain the causes for those difficulties. There is no suggestion that the first respondent or those that advise her were misled by the Notice of Appeal.
The first respondent’s application for summary dismissal must itself, be dismissed.
THE ORDERS SOUGHT BY THE APPELLANTS
In their Response to Application in an Appeal filed on 28 March 2025 the appellants seek the following two substantive orders:
1. [MS HARMON] and [MS TRAVERSA], as trustees of the testamentary trust (the trustees) of the Estate of the Late [MS B] (the Estate), be granted leave to intervene in the proceedings pursuant to Section 92 of the Family Law Act 1975 (Cth), nunc pro tunc.
2. The appellants be granted leave to amend their Notice of Appeal filed 12 February 2025 in accordance with the “Draft Amended Notice of Appeal” annexed as Annexure “FA-1” to the affidavit of [MS HARMON] sworn 28 March 2025, and filed herewith.
Order 1 is unnecessary. As the decisions in Connolly & Macartney, Campbell v. Kitchen & Sons Ltd and Brisbane Soap Co Ltd (1910) 12 CLR 513 and Cuthbertson v. Hobart Corporation (1921) 30 CLR 16 demonstrate, an order for intervention in the proceedings is not necessary. All that is necessary is the grant of leave to appeal. The Full Court in Hodges Hall recognised that the court has a discretion to permit a putative appellant to be heard without applying for leave to intervene under s 92 of the Act. An order giving the appellant leave to intervene in the proceedings does not seem to have been considered necessary in Panayotides.
The application for order 1 will be dismissed.
The purpose of order 2 is to permit the appellants to file an amended Notice of Appeal which includes within it, an application of leave to appeal. Such an order is appropriate.
THE ORDERS SOUGHT BY THE SECOND RESPONDENT
In his Response to Application in an Appeal filed on 27 March 2025 (seemingly filed in response to the first respondent’s Application in an Appeal filed on 21 March 2025, not her Application in an Appeal presently before me) the second respondent seeks five substantive orders. By an order made by a senior judicial registrar on 31 March 2025, consideration of order 5 has been adjourned to the present application before me. That order seeks an order that the court grant the second respondent “in his capacity as Executor of the Estate” an extension of time to file a Notice of Appeal on behalf of the estate.
That application will be dismissed for three reasons.
First, it is not at all clear on the evidence that the second respondent remains the executor of the estate.
Second, the purpose of the grant of leave to the appellants is so that they may prosecute an appeal for the benefit of the beneficiaries of the relevant testamentary trust. It seems to me it should be one or the other, not both. The second respondent will be able to make submissions in support of the appellants’ appeal if he wishes to do so.
Third, the second respondent has filed a notice of Cross-Appeal on 17 February 2025 wherein he sets out his grounds for challenging the primary judge’s declaration about the relevant real property and, in the alternative, the property adjustment orders she made.
CONCLUSIONS
The application for summary dismissal fails.
The appellants have leave to file an amended Notice of Appeal so as to incorporate an application for leave to appeal. The application for leave to appeal will be heard by the Full Court with the hearing of the appeal.
Order 5 in the first respondent’s Response to Application in an Appeal filed on 27 March 2025 will be dismissed.
The record of the appeal needs to be regularised. The appellants will be designated as the appellants for all purposes to do with the appeal record. It is unnecessary to record their representative status in the title to the proceeding. The first respondent Ms Lindon will be designated as the first respondent/first cross-appellant and the second respondent Mr Morcos will be designated as the second respondent/second cross-appellant.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 9 April 2025
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