FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jess & Jess (No 11) [2023] FedCFamC1F 1027
File number MLF 3444 of 2006 Judgment of WILSON J Date of judgment 8 December 2023 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – practice and procedure.
FAMILY LAW – DISCLOSURE – applicant pressing for orders appearing in the annexure to these reasons – orders made.
Legislation Corporations Act 2001 (Cth) s 50AA
Family Law Act 1975 (Cth) ss 79, 106B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 6.03(b)
Cases cited Barnes v Addy (1874) LR 9 Ch App 44
Dare v Pullham (1982) 148 CLR 658
Flight v Robinson (1844) 50 ER 9
Goodridge v Beadle (2017) 57 FamLR 425
ICT Pty Ltd & Buquebus International Ltd v Sea Containers Ltd (1995) 39 NSWLR 640
Jess & Jess (No 4) [2023] FedCFamC1A 189
Jess & Jess (No 7) [2023] FedCFamC1F 291
Jess & Jess (No 9) [2023] FedCFamC1F 713
Lazarus Estates Ltd v Beasley [1958] 1QB 702
Odtojan v Glynn [2023] NSWCA 276
Peate v Federal Commissioner of Taxation (1964) 111 CLR 443
Pigozzo v Mineral Resources Ltd [2022] FCA 1166
Reddaway v Banham [1896] AC 199
Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449
Tarkington Pty Ltd v Kingdrake Pty Ltd [2000] VSCA 98
Wheeler v Le Marchant (1881) 17 Ch D 675
Division Division 1 first instance Number of paragraphs 91 Date of last submission 6 December 2023 Date of hearing 18 September, 15 November, 1 and 6 December 2023 Place Melbourne Counsel for the applicant Mr Dickson KC Solicitors for the applicant Kenna Teasdale Lawyers Counsel for the second respondent Mr J Mereine and Mr C Lum Solicitors for the second respondent HWL Ebsworth Lawyers Counsel for the interveners Ms N Papaleo Solicitors for the interveners Lander and Rogers ORDERS
MLF 3444 of 2006 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS JESS
ApplicantAND MR J AS LEGAL PERSONAL REPRESENTATIVE FOR MR JESS SNR (DECEASED)
First RespondentMR JESS JNR & ORS (SECOND TO TWENTY-NINTH RESPONDENTS - THE REPRESENTED THIRD PARTIES)
Second RespondentMR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR
First Intervener
ORDER MADE BY
WILSON J
DATE OF ORDER
8 DECEMBER 2023
FOR THE PURPOSE OF THESE ORDERS THE FOLLOWING DEFINITIONS APPLY -
A.Mr Jess Jnr Entities refer to Mr Jess Jnr personally and all entities -
(a) controlled by Mr Jess Jnr as defined in s 50AA of the Corporations Act 2001 (Cth); and of which Mr Jess Jnr is a director and/or shareholder (beneficially or otherwise).
B.Schedule B entities refer to the respondents to proceedings MLF3444/2006 listed in the attached schedule B.
C.Schedule C entities refer to the entities listed in the attached schedule C.
D.Schedule D entities refer to the entities listed in the attached schedule D, being respondents to proceedings MLF3444/2006 that are now deregistered and are removed as parties to…
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- AGLC
- Jess & Jess (No 11) [2023] FedCFamC1F 1027
- Case
- [2023] FedCFamC1F 1027
- Decision Date
CaseChat Overview and Summary
The court was required to decide whether to grant the extensive disclosure orders sought by Ms Jess, which included the provision of financial documents and other relevant records from multiple entities associated with the deceased's estate. The legal issues included the scope and necessity of the disclosure, the relevance of the documents to the applicant's claims, and whether the orders were proportionate and necessary for the resolution of the proceedings. The court had to balance the applicant's right to information with the potential burden on the respondents.
Wilson J found that the applicant had demonstrated a clear need for the detailed disclosure to properly assess and manage the financial aspects of the estate. The court concluded that the orders were necessary for the just resolution of the proceedings and that the respondents were in possession of the relevant documents. The orders mandate specific entities to provide comprehensive financial records, including tax returns, financial accounts, profit and loss statements, and details of corporate ownership and structure, among other documents. The court made orders removing certain parties from the proceedings, directing specific respondents to provide detailed financial and corporate documents, and setting deadlines for compliance with these disclosure requirements.
The final orders include the removal of certain entities from the proceedings, specific directions for the provision of detailed financial and corporate documents by various respondents, and a deadline for compliance with these disclosure requirements. The court's decision underscores the importance of transparency and thorough disclosure in complex financial matters, particularly in the context of estate administration and family law disputes.
Orders
Orders of the court
MLF 3444 of 2006
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN
MS JESS
Applicant
AND
MR J AS LEGAL PERSONAL REPRESENTATIVE FOR MR JESS SNR (DECEASED)
First Respondent
MR JESS JNR & ORS (SECOND TO TWENTY-NINTH RESPONDENTS - THE REPRESENTED THIRD PARTIES)
Second Respondent
MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR
First Intervener
ORDER MADE BY
WILSON J
DATE OF ORDER
8 DECEMBER 2023
FOR THE PURPOSE OF THESE ORDERS THE FOLLOWING DEFINITIONS APPLY -
A. Mr Jess Jnr Entities refer to Mr Jess Jnr personally and all entities -
(a) controlled by Mr Jess Jnr as defined in s 50AA of the Corporations Act 2001 (Cth); and of which Mr Jess Jnr is a director and/or shareholder (beneficially or otherwise).
B. Schedule B entities refer to the respondents to proceedings MLF3444/2006 listed in the attached schedule B.
C. Schedule C entities refer to the entities listed in the attached schedule C.
D. Schedule D entities refer to the entities listed in the attached schedule D, being respondents to proceedings MLF3444/2006 that are now deregistered and are removed as parties to the proceedings pursuant to these orders.
THE COURT ORDERS AS FOLLOWS -
1. That the 10th, 12th, 14th, 15th, 20th, 22nd, 23rd, 24th, 25th and 26th respondents are removed as parties to the proceeding.
2. By 30 January 2024, the relevant respondents shall provide to the applicant wife the discovery as required by paragraphs 3 to 11 of these orders.
3. Each of the respondents listed in the Schedule B Entities shall provide to the applicant wife the following documents from 1 July 2009, to the extent that they have not already been provided:
(a) signed taxation returns;
(b) financial accounts;
(c) profit and loss statements;
(d) signed minutes of meetings;
(e) loan account ledgers;
(f) company registers;
(g) signed trust deeds and amending trust deeds;
(h) valuation of assets owned by the entity; and
(i) details of all trademarks owned by the entity;
(j) all documents relating to all changes in corporate ownership and structure including but not limited to –
(i) changes of directors; and
(ii) changes of ownership of shares.
4. Insofar as any of the Schedule C Entities have received funds directly or indirectly from any Schedule B entity, any Schedule C Entity or any schedule D entity, or from the 2nd, 4th or 29th respondents, the second respondent provide signed copies of the following documents from 1 July 2009 to date -
(a) signed taxation returns;
(b) financial accounts;
(c) profit and loss statements;
(d) signed minutes of meetings;
(e) loan account ledgers;
(f) company registers;
(g) signed trust deeds and amending trust deeds;
(h) valuations of assets owned by the entity;
(i) details of all trademarks owned by the entity;
(j) all documents relating to all changes in corporate ownership and structure including but not limited to -
(i) changes to directors; and
(ii) changers of ownership of shares.
5. In respect of the Schedule D Entities, the second respondent shall provide to the applicant wife the following documents from 1 July 2009 to date, to the extent they have not already been provided -
(a) signed taxation returns;
(b) financial accounts;
(c) profit and loss statements;
(d) signed minutes of meetings;
(e) loan account ledgers;
(f) company registers;
(g) signed trust deeds and amending trust deeds;
(h) valuations of assets owned by the entity;
(i) details of all trademarks owned by the entity;
(j) all documents relating to all changes in corporate ownership and structure including but not limited to -
(i) changes of directors; and
(ii) changes of ownership of shares.
6. The second respondent shall provide to the applicant wife copies of all documents, including but not limited to authorities and discharges, that he signed and completed in order to enable Mr Jess Snr to make the payment to the applicant wife in accordance with Order 2 of the orders dated 24 September 2009.
7. In respect of the Mr Jess Jnr Entities, the second respondent shall provide to the applicant wife the following documents, to the extent not already provided -
(a) signed copies of all documents executed on 20 September 2009;
(b) signed copies of all documents executed on 24 September 2009;
(c) tax returns and financial statements for the period 1 July 2009 to date;
(d) for the period 1 July 2009 to date all documents relating to -
(i) receipt of income, remuneration and emoluments from any related corporate source identifying the date and amount of each receipt;
(ii) acquisition and/or disposition of real property including the name of the parties, identity of the asset, consideration paid, whether such acquisition or disposition is of a legal or beneficial interest, the date the asset was acquired or disposed of, whether the asset is currently held and copies of all valuations;
(iii) acquisition and/or disposition of real property overseas including the names of the parties, identity of the asset, consideration paid, whether such acquisition or disposition is of a legal or beneficial interest, the date the asset was acquired or disposed of whether the asset is currently held and copies of all valuations;
(iv) copies of all loan account ledgers;
(v) identification and copies of trust deeds, including all deeds of amendment, of any trust of which that party/entity is an appointor, shareholder of a trustee company, trustee or beneficiary;
(vi) dispositions of real property or income provided to Ms D Jess; and
(vii) dispositions of real property of income provided to Ms LL.
8. The second respondent shall provide to the applicant wife copies of any declarations of trust between -
(a) Mr Jess Jnr or any of the Mr Jess Jnr Entities as to one parts and
(b) Ms LL, Ms D Jess, Mr CK, Mr CL, Mr CM and/or any other person or entity as to the other part from 1 July 2009 to date in relation to any shares held;
(c) the twenty-ninth respondent shall provide to the applicant wife copies of the following documents -
(i) signed copies of all documents executed on 20 September 2009;
(ii) signed copied of all documents executed on 24 September 2009;
(iii) personal tax returns and financial statements for the period 1 July 2009 to date;
(iv) for the period 1 July 2009 to date, all documents relating to -
A. receipt of income, remuneration and emoluments from any corporate source or any individual identifying the date and amount of each receipt;
B. acquisition and/or disposition of real property including the name of the parties, identity of the asset, consideration paid, whether such acquisition or disposition is of a legal or beneficial interest, the date the asset was acquired or disposed of, whether the asset is currently held and copies of all valuations;
C. copies of all loan account ledgers; and
D. identification and copies of trust deeds, including all deeds of amendment, of any trust of which that individual is an appointor, shareholder of a trustee company, trustee or beneficiary;
(d) the fourth respondent shall provide the applicant wife copies of the following documents -
(i) signed copies of all documents executed on 20 September 2009;
(ii) signed copies of all documents executed on 24 September 2009;
(iii) personal tax returns and financial statements for the period 1 July 2009 to date;
(iv) for the period 1 July 2009 to date all documents relating to -
A. receipt of income, remuneration and emoluments from any corporate source identifying the date and amount of each receipt;
B. acquisition and/or disposition of real property including the name of the parties, identity of the asset, consideration paid, whether such acquisition or disposition is of legal or beneficial interest, the date the asset was acquired or disposed of, whether the asset is currently held and copies of all valuations;
C. acquisition and/or disposition of real property overseas including the name of the parties, identity of the asset, consideration paid, whether such acquisition or disposition is of a legal or beneficial interest, the date the asset was acquired or disposed of whether the asset is currently held and copies of all valuations;
D. copies of all loan account ledgers; and
E. identification and copies of trust deeds, including all deeds of amendment, of any trust of which that individual is an appointor, shareholder of a trustee company, trustee, or beneficiary.
(e) by 30 January 2024, the second respondent shall file and serve an affidavit, with supporting documentation, disclosing -
(i) in relation to the units in the Jess Retail Unit Trust following their transfer to him pursuant to the Deed of Settlement dated 20 September 2009 ("the Units") -
A. whether he remains the legal and/or beneficial owner of all, or if not, how many of the Units;
B. for the period from 20 September 2009 to date, dealing with and/or treatment of the Units; and
C. in the event the Units (or any of them) have been disposed of or transferred, the details of any such disposal or transfer including any terms of sale or transfer, date of same, identity of purchaser or transferee, and consideration paid;
(ii) for the period from 20 September 2009 to date, the property, income, remuneration, emoluments payments, dividends, consideration or benefits arising from the Units and/or traceable to those Units, together with the current estimated value of the Units.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: MR J
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