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Hazell-Wright v 32 Domain Pty Ltd

Hazell-Wright v 32 Domain Pty Ltd

Case [2020] VSCA 129 22 May 2020

Interlocutory Orders

Abuse of Process

Issue Estoppel

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0070

CLARE HAZELL-WRIGHT	Applicant
v
32 DOMAIN PTY LTD (ACN 163 035 603)	Respondent

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JUDGES:	TATE, McLEISH and HARGRAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 February 2020
DATE OF JUDGMENT:	22 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 129
JUDGMENT APPEALED FROM:	[2019] VCC 629 (Judge A Ryan)

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PRACTICE AND PROCEDURE – Interlocutory appeal – Harman undertaking – Whether documents filed in Family Court proceeding subject to Harman undertaking – Where documents proposed to be used in subsequent proceeding – Where proposed defence in subsequent proceeding pleads abuse of process and estoppel – Whether sufficient connection between proposed defences and issues in Family Court proceeding – Unnecessary to decide.

PRACTICE AND PROCEDURE – Interlocutory appeal – Refusal to allow filing of amended pleadings – Pleadings likely to cause real difficulty at trial – Pleadings embarrassing – Leave to appeal refused.

PRACTICE AND PROCEDURE – Interlocutory appeal – Joinder – Refusal to grant leave to join director of respondent corporation – Not a necessary or proper party – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T J North QC with Mr E Kelly	Nicholes Family Lawyers
For the Respondent	Mr C E Shaw SC with Mr D Porteous	SBA Legal

TATE JA

McLEISH JA

HARGRAVE JA:

This application for leave to appeal involves a proceeding commenced by the respondent company in the County Court. Following numerous interlocutory steps in a Family Court proceeding between the applicant and her ex-husband Ian Wright — who is the sole director, secretary and shareholder of the respondent — agreement was reached and consent orders were made in the Family Court disposing of all matrimonial property and child custody issues between them. A key issue in the Family Court proceeding concerned the applicant’s claim to be entitled to an interim, and then final, right to occupy an apartment owned by the respondent which had been the family home occupied by the applicant, Mr Wright and their children at the time the marriage irretrievably broke down. In summary, Mr Wright relied upon a pre-nuptial Binding Financial Agreement between him and the applicant made pursuant to s 90B of the Family Law Act 1975 (Cth) (‘the Act’), which provided that the assets of the respondent would not form part of the matrimonial pool of assets available for distribution between the parties in the event that their marriage failed. In response, the applicant sought to set aside the binding financial agreement and, in addition, claimed that the apartment was owned on a constructive trust for her. She lodged a caveat to protect that asserted interest.

In the result, the Family Court proceeding was resolved on the basis of consent orders that Mr Wright would pay the applicant a lump sum and the applicant and their children would vacate the apartment within 60 days of receipt of that sum, and child custody and access orders. On the face of it, these…

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 Hazell-Wright v 32 Domain Pty Ltd

Details

AGLC: Clare Hazell-Wright v 32 Domain Pty Ltd (ACN 163 035 603) [2020] VSCA 129
Case: [2020] VSCA 129
Decision Date: 22 May 2020

CaseChat Overview and Summary

Hazell-Wright sought an interlocutory appeal against the decision of the Family Court, which had refused to allow the filing of amended pleadings and had denied leave to join the director of the respondent corporation, 32 Domain Pty Ltd, as a party to the proceeding. The amended pleadings sought to use documents filed in a previous Family Court proceeding, which were subject to a Harman undertaking, in the current proceeding. The proposed defences in the amended pleadings included abuse of process and estoppel. The primary issue before the court was whether the documents filed in the Family Court proceeding were subject to the Harman undertaking and if there was a sufficient connection between the proposed defences and the issues in the Family Court proceeding. Additionally, the court had to determine whether the director of the respondent corporation was a necessary or proper party.

The court found that it was unnecessary to decide whether the documents filed in the Family Court proceeding were subject to the Harman undertaking, as the proposed defences in the amended pleadings were not sufficiently connected to the issues in the Family Court proceeding. Furthermore, the court held that the proposed defences of abuse of process and estoppel were not sufficient to warrant the use of the documents in question. The court also determined that the director of the respondent corporation was not a necessary or proper party to the proceeding. Consequently, the court refused leave to appeal the Family Court’s decision.

The court further considered the potential for real difficulty at trial and embarrassment caused by the proposed amended pleadings. It found that the proposed pleadings were likely to cause such difficulties and embarrassment, which reinforced the decision to refuse leave to appeal. The court emphasised that the decision was based on the specific circumstances of the case and did not set a precedent for similar cases.

The court made no orders for costs in relation to the interlocutory appeal.

Orders