Hilary and Hilary and Ors

[2007] FamCA 1568

FAMILY COURT OF AUSTRALIA

HILARY & HILARY AND ORS [2007] FamCA 1568

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment out of judicial duty list pending transfer of proceedings from Supreme Court to be determined here pursuant to this court’s accrued jurisdiction

Family Law Act 1975 (Cth)

APPLICANT: Ms D Hilary

1st RESPONDENT: Mr A Hilary

2nd RESPONDENT: Ms R Hilary

3rd RESPONDENT: W Pty Ltd

4th RESPONDENT: Mr W

FILE NUMBER: MLF 2398 of 2006

DATE DELIVERED: 6 December 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 6 December 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: No Appearance

SOLICITOR FOR THE APPLICANT: Wilsons Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Mr P. Le Moing-Ross

SOLICITOR FOR THE 1ST RESPONDENT: Westminster Lawyers

COUNSEL FOR THE 2ND RESPONDENT: No Appearance

SOLICITOR FOR THE 2ND RESPONDENT: Westley Di Giorio

COUNSEL FOR THE 3RD AND 4TH

RESPONDENTS:

Ms E. Lau

SOLICITOR FOR THE 3RD AND 4^TH

RESPONDENTS:

Maddocks Lawyers

Orders

1. That the headnote to the proceedings be as appears in the Order of

   
   14 November 2007

   that there be added thereto a third named respondent W Pty Ltd (ACN …) and fourth named respondent Mr D. 

2. That the further hearing of all extant proceedings be adjourned to 18 February 2008 at 9:30am in the Registrar’s Procedural List, that being a date by which the parties are to have effected any transfer of the Supreme Court proceedings into this Court or alternatively to have instituted in this Court the proceedings sought to be determined pursuant to this Court accrued jurisdiction in this Court. 

3. That the firm Maddocks Lawyers of 140 William Street, Melbourne be given leave to withdraw as solicitors for the third and fourth named respondents. 

4. That the third and fourth named respondents forthwith file a Notice of Address for Service and pending them so doing the address for service of each of them is to be recorded in records of the Court as …, H. 

5. That my reasons for judgment this day be transcribed and when transcribed a copy be sent to each of the parties.

IT IS NOTED that publication of this judgment under the pseudonym Hilary & Hilary and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2398 of 2006

MS D HILARY  

Applicant

And

MR A HILARY  

First Respondent

And

MS R HILARY  

Second Respondent

And

W PTY LTD

Third Respondent

And

MR W  

Fourth Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the judicial duty list and I have adjourned it to the Registrar’s procedural list on 8 February 2008 at 9:30am for directions.  These comments should provide the context in which the matter is adjourned. 

2. Mr Le Moing-Ross appears on behalf of the husband. 

3. There is no appearance by, or on behalf of, the wife. 

4. There is no appearance on behalf of the second named respondent. 

5. Ms Lau, solicitor, appears on behalf of the W Pty Ltd and Mr D and filed a Notice of Address for Service to that effect, however it had earlier been agreed that her firm, Maddocks Lawyers of Melbourne, would no longer act for the third and fourth named respondents due to a conflict of interest.  They are not otherwise represented today.  

DISCUSSION

1. I am informed by the solicitor for the husband that the wife and the second named respondent, who is the husband's mother, have not appeared today because their interests were not material to the dispute before the court which was whether Maddocks Lawyers ought continue to act for the other respondents. 

2. I am informed by Mr Le Moing-Ross that the marriage of the husband and the wife was of some 27 years.  The principal asset is a farm at P where the husband and wife and the second named respondent (the husband's mother) operate a farm in partnership.  The farm is called T.  Some time ago, the husband has obtained a valuation of the land at $1.9 million.  The farming business is principally livestock and there has been no valuation of the livestock.  Similarly there is no valuation of plant and equipment. 

3. It appears that at some point the parties (the husband and the wife and the husband’s mother) should decide whether or not they wish to appoint a single expert witness to value the three major components of what assets appear to be divisible between the husband and the wife or, alternatively, each have valuers. 

4. The husband and wife had a mediation with Mr Rosen of counsel last year in an effort to resolve the dispute between themselves.  That was not successful.  Matters are now more complicated by the intervention of the respondents. 

5. The husband's mother is the second respondent, and she has been a partner in the business. 

6. The second named respondent claims an interest in the land under the will of her late husband, together with an interest in the partnership business. 

7. The fourth named respondent is the wife's father and the third named respondent is a company which by its name would appear to be related to the wife’s father. 

8. Together the third and fourth respondents are plaintiffs in proceedings in the Supreme Court of Victoria in which they are suing the husband, wife and the second named respondent in debt for approximately $400,000. There are contemplated or actual cross-claims against that amount. The parties have agreed that the issue of the debt attributable to the farming operation and to the third and fourth named respondents will be determined in this Court pursuant to its accrued jurisdiction. 

9. I am advised by Mr Le Moing-Ross that, principally, the matter needs to be managed following the debt proceedings being transferred from the Supreme Court into this Court.  It is not clear whether the Supreme Court proceedings will actually be transferred or the third and fourth named respondents will merely institute their cause of action in this Court.  The parties requested an adjournment of two months in which to make whatever arrangements need to be made so all issues are before this Court or at least at the stage when this Court can be requested to accept the issues which the parties seek be determined pursuant to accrued jurisdiction.  Accordingly, I have adjourned the matter to the Registrar's procedural list on 18 February 2008 at 9:30am for directions. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate 

Date:  15 January 2008