Ivers & Sethi

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FAMILY COURT OF AUSTRALIA

Ivers & Sethi [2021] FamCA 293

File number(s): DGC 4056 of 2019
Judgment of: WILLIAMS J
Date of judgment: 13 May 2021
Catchwords: FAMILY LAW – JOINDER – Application to join the respondent’s former wife as a second respondent to property proceedings in circumstances where the applicant alleges that a property settlement entered into between the respondent and his former wife, during the de facto relationship between the parties was to minimise any claim the applicant may have to a property settlement – where the proceeds of sale of a property were distributed 80% as to the respondent’s former wife and 20% to the respondent and the respondent’s wife applied the proceeds of sale to the purchase of another property – applicant alleges the respondent has an equitable interest in the property currently held by the respondent’s formal wife, or alternatively, the transaction between the respondent and his former wife should be set aside – Held respondent’s formal wife should be joined as a second respondent to the substantive proceedings.
Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 rr. 6.02, 6.03

Federal Magistrate’s Court Rules 2001 r. 11.01(1) 

Cases cited:

B Pty Ltd and Ors & K and Anor [2008] FamCAFC 113

Wayne & Dillon and Anor [2008] FamCAFC 204
Number of paragraphs: 26
Date of hearing: 12 April 2021
Place: Melbourne
Counsel for the Applicant: Mr Nagalingam, Solicitor
Solicitor for the Applicant: Pentana Stanton Lawyers
Counsel for the Respondent: Mr Ibrahim, Solicitor
Solicitor for the Respondent: Rjs Legal Group Pty Ltd

ORDERS

DGC4056 of 2019
BETWEEN:

MS IVERS
Applicant
AND:

MR SETHI
Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

13 MAY 2021

THE COURT ORDERS THAT:

1.Ms B Sethi be joined as a second respondent to these proceedings.

2.Within 28 days of these Orders, the applicant file and serve a Statement of Claim against the second respondent.

3.The Application in a Case filed 18 November 2020 be otherwise dismissed.

4.All extant applications be listed before a Registrar of the Family Court of Australia for mention as soon as practicable.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

Williams J

  1. This matter was listed for determination in the Judicial Duty List on 12 April 2021.

  2. The applicant de facto wife sought to join the husband’s ex-wife, with whom he has since recommenced a relationship, as a second respondent to the proceedings.

  3. The substantive application is for a property settlement between the…

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Details
Case
[2021] FamCA 293
Decision Date

CaseChat Overview and Summary

In *Ivers & Sethi*, the applicant, Ms Ivers, sought a property settlement following the breakdown of a de facto relationship with the respondent, Mr Sethi. The central dispute concerned allegations that Mr Sethi and his former wife, Ms B Sethi, had colluded to dissipate assets during the de facto relationship. Specifically, the applicant alleged that a property settlement between Mr Sethi and Ms B Sethi, which resulted in Ms B Sethi receiving the majority of the proceeds from the sale of a jointly owned property, was designed to minimise any claim Ms Ivers might have to a property settlement. Ms Ivers further contended that Mr Sethi retained an equitable interest in a property subsequently purchased by Ms B Sethi, or alternatively, that the transaction between Mr Sethi and Ms B Sethi should be set aside. The matter came before Williams J of the Family Court of Australia.

The primary legal issue before the court was whether Ms B Sethi should be joined as a second respondent to the substantive property proceedings. This joinder was sought on the basis that Ms B Sethi's rights could be directly affected by the outcome of the property settlement proceedings, and her participation was necessary for the court to determine all issues in dispute, particularly concerning the alleged dissipation of assets and potential equitable interests. The court was required to consider the principles governing the joinder of parties under rules 6.02 and 6.03 of the *Family Law Rules 2004* (Cth).

Williams J reasoned that Ms B Sethi was a necessary party to the proceedings because the applicant's case involved allegations of a conspiracy to defeat her claim, and the distribution of property between Mr Sethi and Ms B Sethi was central to these allegations. The court applied rule 6.02(1) of the *Family Law Rules 2004*, which mandates that a person whose rights may be directly affected by an issue in a case, and whose participation is necessary for the court to determine all issues in dispute, must be included as a party. Given the applicant's assertion that Mr Sethi held an equitable interest in the property purchased by Ms B Sethi, or that the prior transaction should be set aside, Ms B Sethi's involvement was deemed essential for a just and complete determination of the matter.

The court ordered that Ms B Sethi be joined as the second respondent to the proceedings. The applicant was directed to file and serve a Statement of Claim against Ms B Sethi within 28 days of the order. The application in a case filed on 18 November 2020 was otherwise dismissed, and all extant applications were to be listed before a Registrar for mention.

Orders

Orders of the court

DGC4056 of 2019

BETWEEN:

MS IVERS

Applicant

AND:

MR SETHI

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

13 MAY 2021

THE COURT ORDERS THAT:

1. Ms B Sethi be joined as a second respondent to these proceedings.

2. Within 28 days of these Orders, the applicant file and serve a Statement of Claim against the second respondent.

3. The Application in a Case filed 18 November 2020 be otherwise dismissed.

4. All extant applications be listed before a Registrar of the Family Court of Australia for mention as soon as practicable.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The substantive application is for a property settlement between the parties to a de facto relationship. The applicant asserts that the first respondent and the proposed second respondent conspired to take advantage of the applicant, by entering into an informal property settlement with each other in 2014, during the de facto relationship, so that the proposed second respondent received the majority of the proceeds of sale of a property situated at Suburb D. She asserts that the informal property settlement did not reflect the proper entitlements of the first respondent. Background The applicant and the respondent commenced a relationship on 4 September 2012 and separated on 26 June 2018, when the respondent recommenced a relationship with his ex-wife, the proposed second respondent. The respondent and the proposed second respondent were married for 35 years. At the commencement of the relationship, the applicant asserts that she was the registered proprietor of the three properties and that the respondent was a co-registered proprietor of the property situated at C Street Suburb D (“the Suburb D property”). In November 2014, just over two years after the commencement of the de facto relationship, the respondent and proposed second respondent sold the Suburb D property for $509,000. At that time, there was a mortgage of approximately $120,000 encumbering the property and the applicant asserts that the equity was there for approximately $389,000. The proceeds of sale of the Suburb D property were distributed so that the respondent received $80,000 and the proposed second respondent received in excess of $300,000. The respondent distributed his share of the proceeds of sale, into superannuation accounts and approximate $30,000 into a joint business venture. Around November 2015, the proposed second respondent purchased a property situated at F Street, Suburb G, for the sum of $370,000. It is asserted that the purchase price was funded by $280,000 from the proceeds of sale of the Suburb D property and the balance of $90,000 was obtained by way of mortgage from the Commonwealth Bank.Documents relied on by the parties The applicant relied upon the following documents:(a)Application in a Case filed 18 November 2020;(b)Applicant’s affidavit filed 16 November 2020. The respondent relied upon the following documents:(a)Response filed 29 January 2021;(b)affidavit of respondent filed 28 April 2020;(c)affidavit of respondent’s lawyer filed 19 November 2020 (filed in support of the respondent’s application for summary dismissal);(d)affidavit of proposed second respondent filed 9 April 2021.Relevant Legal Principles In order to consider the relevant principles for joinder of a party to the proceedings, I must have regard to rule 6.02(1) and 6.03 of the Family Law Rules 2004, which are as follows:6.02 Necessary parties(1)A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.Example:If a party seeks an order of a kind mentioned in section 90AE or 90AF of the Act, a third party who will be bound by the order must be joined as a respondent to the case.(2)If an application is made for a parenting order, the following must be parties to the case:(a)the parents of the child;(b)any other person in whose favour a parenting order is currently in force in relation to the child;(c)any other person with whom the child lives and who is responsible for the care, welfare and development of the child;(d)if a State child order is currently in place in relation to the child—the prescribed child welfare authority.(3)If a person mentioned in subrule (2) is not an applicant in a case involving the child, that person must be joined as a respondent to the application.Note 1: The court may dispense with compliance with a rule (see rule 1.12).Note 2:Pre‑action procedures must be complied with by all prospective parties under rule 1.05.6.03 Adding a party(2)A party may add another party after a case has started by amending the application or response to add the name of the party.(3)A party who relies on subrule (2) must:(a)file an affidavit setting out the facts relied on to support the addition of the new party, including a statement of the new party’s relationship (if any) to the other parties; and(b)serve on the new party:(i)a copy of the application, amended application, response or amended response; and(ii)the affidavit mentioned in paragraph (a); and(iii)any other relevant document filed in the case.Note 1: For amendment of an application, see Division 11.2.2.Note 2:If a Form is amended after the first court date, the Registry Manager will set a date for a further procedural hearing (see subrule 11.10(3)).Note 3:Pre‑action procedures must be complied with by all prospective parties under rule 1.05.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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