Jarvis v Farmland Investments Pty Ltd as trustee for the Murray Jarvis Trust [No 2]
[2022] WASC 389
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: JARVIS -v- FARMLAND INVESTMENTS PTY LTD AS TRUSTEE FOR THE MURRAY JARVIS TRUST [No 2] [2022] WASC 389
CORAM: CURTHOYS J
HEARD: 26 JULY 2022
DELIVERED : 22 NOVEMBER 2022
FILE NO/S: CIV 1519 of 2021
BETWEEN: BRIAN EDWARD JARVIS
Plaintiff
AND
FARMLAND INVESTMENTS PTY LTD AS TRUSTEE FOR THE MURRAY JARVIS TRUST
First Defendant
MURRAY EDWARD JARVIS by guardian ad litem THE PUBLIC TRUSTEE
Second Defendant
SALLY MCKIE
Third Defendant
Catchwords:
Cross-vesting - Transfer of proceedings to Family Court of Western Australia - Futility of Supreme Court proceedings
Legislation:
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5(4)
Result:
Proceedings transferred to the Family Court of Western Australia
Category: B
Representation:
Counsel:
| Plaintiff | : | J F Park |
| First Defendant | : | No appearance |
| Second Defendant | : | R J Nash |
| Third Defendant | : | R Guerrini |
Solicitors:
| Plaintiff | : | Dentons Australia |
| First Defendant | : | KD Legal |
| Second Defendant | : | Public Trustee |
| Third Defendant | : | Lawley Legal |
Cases referred to in decision:
Access Group Australia Pty Ltd v Topper Hydraulic Platforms Pty Ltd [2019] WASC 265
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Fell v Fell [2007] WASC 157
H v D [2012] WASC 291
Mrowka v Format Finishing Pty Ltd [2009] WASCA 184
CURTHOYS J:
On 4 April 2022, the third defendant, Sally McKie, applied to have this action (Supreme Court Action) transferred to the Family Court of Western Australia (Family Court Action) pursuant to s 5(4) of the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA) (JC Act). Ms McKie relies on the existence of proceedings underway in the Family Court (Family Court Action) that she says concern similar issues to the Supreme Court Action.
The second defendant, the Public Trustee as guardian ad litem for Murray Jarvis, supports the application. The first defendant, Farmland Investments Pty Ltd (Farmland Investments), did not seek to be heard.
The plaintiff, Brian Jarvis, opposes the application.
For the reasons that follow, I have concluded that the Supreme Court Action should be transferred to the Family Court.
Background
Brian Jarvis is the son of Murray Jarvis. Sally McKie was in a de facto relationship with Murray Jarvis from about 2003 until 2021.
Murray Jarvis is the sole shareholder and until 3 August 2021, the sole director, of Farmland Investments.[1]
[1] Affidavit of Brian Edward Jarvis dated 11 June 2021 [6].
Farmland Investments is the trustee of the Murray Jarvis Trust (the Trust). Murray Jarvis and Brian Jarvis are beneficiaries of the Trust. The Trust was created by deed on 3 April 1992 (Trust Deed) and amended by deed of variation on 14 July 2009 (Deed of Variation).
On 3 August 2021, the State Administrative Tribunal appointed the Public Trustee as administrator of the estate of Murray Jarvis by reason of Murray Jarvis' mental disability.
On 5 August 2021, Justice Strk appointed the Public Trustee as guardian ad litem of Murray Jarvis in the Supreme Court Action.
On 5 May 2022, Desmond Frank Crawley was appointed as the sole director of Farmland Investments.[2]
[2] Affidavit of Nicolas D'Adamo sworn 3 June 2022, 133.
Supreme Court Action
The Supreme Court Action was commenced by Brian Jarvis on 13 June 2021.
The relief sought in the Supreme Court Action is set out in the originating summons as follows:
1.[Farmland Investments] provide to [Brian Jarvis] copies of:
(a)the Trust Deed; and
(b)the Financial Reports for the Trust for the:
(i)2014/2015 financial year;
(ii)2015/2016 financial year;
(iii)2016/2017 financial year;
(iv)2017/2018 financial year;
(v)2018/2019 financial year; and
(vi)2019/2020 financial year.
2.[The Public Trustee] make available to [Brian Jarvis] for inspection and copying all of the books and records of the partnership known as: 'M.E. Jarvis & Son', ABN 82 133 032 109.
3.[Brian Jarvis] be appointed the Appointor and/or Guardian of the Trust, as appropriate, in place of Murray Edward Jarvis …
4.Further and in the alternative, [Farmland Investments] be removed as Trustee of the Trust under section 77 of the Trustees Act 1962 (WA) and a new Trustee, or new trustees, be appointed to conduct and administer the affairs of [the Trust].
5.Such other Order as this Honourable Court thinks fit.
6.Costs.
I note that a copy of the Trust Deed is attached to the affidavit of Brian Jarvis in the Family Court Action sworn 13 May 2022.[3]
[3] Affidavit of Brian Jarvis sworn 13 May 2022, annexure BEJ3.
On 18 March 2022, Brian Jarvis sought an order that, pursuant to O 32 r 4 of the Rules of the Supreme Court 1971 (WA), the question whether Ms McKie is included in the class of general beneficiaries of the Trust under the Trust Deed and the Deed of Variation be tried as a preliminary issue.
Family Court Action
On 23 February 2022, Ms McKie commenced the Family Court Action against Murray Jarvis by initiating application.[4] Ms McKie sought the following orders in respect of a property at 346 Merredin-Nungarin Road, Merredin, held by Farmland Investments as trustee for the Trust (the Property):
1. There be a declaration that [the Property] registered in the name of Farmland Investments as Trustee for the…Trust, is the property of the parties of this Application.
2.By way of Property Settlement:-
(a)'The property' above described in paragraph 1 is to be sold and after payment of all selling costs and charges, the net proceeds are to be divided between the parties as the Court sees fit so as to give justice and equity between the parties;
(b)There be liberty to apply within 14 days after conferral with respect to this Order …
[4] Affidavit of Sally McKie sworn 4 April 2022, attachment SMK2.
By application dated 17 May 2022, Brian Jarvis sought to intervene in the Family Court Action. That application was supported by an affidavit sworn by him in which he asserts an equitable interest in the Property (and in the proceeds of sale of other land owned by the Trust) based on a proprietary or equitable estoppel.
The Public Trustee consented to Brian Jarvis intervening in the Family Court Action and sought to join Farmland Investments to the Family Court Action in its capacity as trustee of the Trust.
The evidence
The following affidavits were filed into evidence for the purposes of this application:
(a)affidavit of Brian Edward Jarvis affirmed 11 June 2021;
(b)affidavit of Giuseppe Lacarenza sworn 12 August 2021;
(c)affidavit of Shaun William Conlin sworn 8 October 2021;
(d)affidavit of Sally McKie sworn 4 April 2022; and
(e)affidavit of Nicolas D'Adamo sworn 3 June 2022.
Although numerous objections have been made to the affidavits it is not necessary to resolve those objections for the purpose of resolving the defendants' application.
Transfer of proceedings to the Family Court under the JC Act
By s 4(6) of the JC Act, if the Supreme Court Action is transferred to the Family Court, it will have the same jurisdiction as the Supreme Court.
Section 5(4) of the JC Act provides:
(4)Where -
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court or the State Family Court (in this subsection referred to as the first court); and
(b)it appears to the first court that -
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the other of the courts referred to in paragraph (a) and it is more appropriate that the relevant proceeding be determined by that other court;
(ii)having regard to -
(A)whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in that other court; and
(B)the interests of justice,
it is more appropriate that the relevant proceeding be determined by that other court; or
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by that other court,
the first court shall transfer the relevant proceeding to that other court.
Section 5(4)(b) provides three alternative bases upon which the power to transfer proceedings may be exercised.[5]
[5] Fell v Fell [2007] WASC 157 [1] - [3].
In this matter, the question is whether the Supreme Court action should be transferred under s 5(4)(b)(i) or s 5(4)(b)(iii). That requires the court to consider whether the Supreme Court action should be transferred because it arises out of or is related to the Family Court Action and is more appropriately dealt with by the Family Court (s 5(4)(b)(i)), or on the ground that it is otherwise in the interests of justice that the Supreme Court Action be determined by the Family Court (s 5(4)(b)(iii)).
If the requirements of either s 5(4)(b)(i) or s 5(4)(b)(iii) are satisfied, then the court must transfer the Supreme Court proceedings and has no further discretion in the matter.[6]
[6] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 [14] (Gleeson CJ, McHugh & Heydon JJ), [62] (Gummow J, Hayne J agreeing), [222] (Callinan J); Mrowka v Format Finishing Pty Ltd [2009] WASCA 184 [106] (Buss JA).
As to the option to transfer proceedings under s 5(4)(b)(i), the Supreme Court proceedings must 'arise out of' or be 'related to' the Family Court proceedings. It is well established that for proceedings to be 'related' they must have some nexus or association; it is not necessary for there to be a direct relationship between the proceedings.[7]
[7] H v D [2012] WASC 291 [31] - [32]; Fell [12].
The assessments of whether it is more appropriate that the Supreme Court proceedings be determined by the Family Court in s 5(4)(b)(i) or it is otherwise in the interests of justice that the Supreme Court proceedings be determined by the Family Court in s 5(4)(b)(iii) involve overlapping considerations. As Le Miere J observed in respect of identical provisions concerning the transfer of Supreme Court proceedings to the Federal Court in Access Group Australia Pty Ltd v Topper Hydraulic Platforms Pty Ltd:[8]
the interests of justice capture not just the interests of the parties - competing or conflicting - but may also capture interests wider than those of either party. The interests of justice concern those of both parties and, rather than the selection of the most advantageous or least disadvantageous forum for one of them, the interests of justice are to be judged by more objective factors which facilitate identification of the 'natural forum', in which objectively judged, the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be.
Each case turns on its particular facts when determining the more appropriate court or 'natural forum'. Connecting factors are relevant. Connecting factors include factors indicating that justice can be done in one forum at substantially less inconvenience or expense such as the availability of witnesses. Connecting factors also include factors which may make a forum the 'natural forum' as being the forum with which the action has the most real and substantial connection, such as where the relevant transactions took place and where the parties carry on business. An important consideration is which forum can provide more effectively for the complete resolution of the matters in issue between the parties.
[8] Access Group Australia Pty Ltd v Topper Hydraulic Platforms Pty Ltd [2019] WASC 265 [25] - [26].
Notwithstanding the similar practical considerations that arise in respect of s 5(4)(b)(i) and s 5(4)(b)(iii), the latter ultimately operates as a catch-all provision intended to capture matters that might not be relevant to whether a court is more 'appropriate' but nonetheless support a finding that it is 'otherwise in the interests of justice' for the proceedings to be determined by the Family Court.
Is it appropriate that the Supreme Court Action be determined by the Family Court or is it otherwise in the interests of justice to transfer the proceedings?
The Supreme Court Action and the Family Court Action are related for the purposes of s 5(4)(b)(i) of the JC Act. Both proceedings concern how the assets of the Trust are to be dealt with.
As mentioned, the question of whether Supreme Court proceedings be determined by the Family Court and whether it is in the interests of justice that proceedings be determined by the Family Court involve similar considerations.
I have concluded that it is more appropriate that the Supreme Court Action be dealt with by the Family Court because the Family Court has broader powers over the Trust assets than the Supreme Court in that the Family Court can make orders concerning the Trust assets irrespective of whether Ms McKie is or is not found to be a named beneficiary of the Trust. Even if the Supreme Court finds that Ms McKie is not a named beneficiary, that finding would not exclude the powers of the Family Court.
This consideration also goes to the utility of the Supreme Court Action, a significant factor in determining whether the transfer of proceedings is in the interests of justice.
Even if Brian Jarvis is successful in the Supreme Court Action, the Trust assets will not be immune from an order by the Family Court. Even if Ms McKie is not a beneficiary of the Trust, the Family Court's jurisdiction over the assets of the Trust is not excluded.
Since this matter was adjourned, Murray Jarvis has died. His death does not prevent the Family Court having jurisdiction over his estate.
I have further concluded that it is in the interests of justice that the Supreme Court Action be transferred to the Family Court for the following reasons:
(a)even if the Supreme Court Action is taken to judgment, the Trust assets will still be subject to the jurisdiction of the Family Court;
(b)the Family Court is able to resolve the issue concerning the treatment of the Trust assets;
(c)the Supreme Court Action will incur costs for no appreciable benefit;
(d)the facts relating to the Trust are likely to be substantially similar to the facts then subject of the Family Court;
(e)although I accept there may be delay in the Family Court, the fact that the Supreme Court Action will not resolve the issue of the Family Court's jurisdiction means that a quick resolution of the Supreme Court Action will not resolve the matter; and
(f)Brian Jarvis is a party to the Family Court Action.
Orders
I accordingly make the following orders:
(1)The whole of this proceeding, being Supreme Court of Western Australia CIV 1519 of 2021, be transferred to the Family Court of Western Australia (WA Family Court), pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA).
(2)This proceeding, as transferred to the WA Family Court, shall, so far as possible, be managed with WA Family Court Proceeding PTW 1493/2022.
(3)The plaintiff pay the second and third defendants' costs of the application for transfer to the WA Family Court.
(4)Save in respect of costs orders already made by this Court, the costs of the proceeding in this Court be reserved to the WA Family Court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
22 NOVEMBER 2022
0
5
0