Jess & Jess (No 3)

Case [2023] FedCFamC1A 2

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Jess & Jess (No 3) [2023] FedCFamC1A 2   

Appeal from: Jess & Jess (No 4) [2022] FedCFamC1F 530
Appeal number(s): NAA 178 of 2022
File number(s): MLF 3444 of 2006
Judgment of: ALSTERGREN CJ, ALDRIDGE & AUSTIN JJ
Date of judgment: 10 January 2023
Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the parties’ son and other corporations seek to appeal from orders setting aside property settlement orders made consensually between the parties pursuant to s 79A(1A) of the Family Law Act 1975 (Cth) (“the Act”) – Reasonable apprehension of bias – Whether the primary judge erred in finding that all parties to the proceedings in which the order was made consented – Consideration of relevant matters – Whether the applicants were “other persons interested” within the meaning of s 79A(2) of the Act – Where the applicants should have been regarded as interested persons entitled to be heard – Where no substantial injustice would flow if leave was not to be granted since the applicants will be able to defend substantial proceedings against them – Leave to appeal is refused – Applicant to pay the costs of the first respondent in a fixed sum.

FAMILY LAW – CROSS-APPEAL – LEAVE TO APPEAL – Where the cross-appeal is brought by the trustees of the bankrupt estate of the deceased husband on a conditional basis – Where if leave to appeal was granted, the appeal allowed and the appealed order set aside, then the trustees contend by cross-appeal that the appealed order should be upheld in a varied form by instead finding that the consent orders should be set aside under s 79A(1)(a) in lieu of s79A(1A) – Given that leave to appeal was dismissed, the cross-appeal does not require consideration – Leave to cross-appeal is refused.
Legislation:

Family Law Act 1975 (Cth) Pts VIII, VIIIAA, ss 4, 65C, 79, 79A, 106, 106B, 117

Family Law Amendment Act 1983 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Explanatory Memorandum to the Family Law Amendment Bill 1983 (Cth)

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

Argos Pty Ltd v Corbell (2014) 254 CLR 394; [2014] HCA 50

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1

Balnaves and Balnaves (1988) FLC 91-952

Cantrell & North and Anor (2020) FLC 93-976; [2020] FamCAFC 175

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jess & Jess (2021) FLC 94-055; [2021] FamCAFC 159

Jess v Jess [2022] HCASL 24

Jess & Jess (2014) FLC 93-620; [2014] FamCAFC 227

Lancer & Lancer [2008] FamCAFC 112

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Oastler and Oastler (1993) FLC 92-390

Patching and Patching (1995) FLC…

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Details
AGLC
Jess & Jess (No 3) [2023] FedCFamC1A 2
Case
[2023] FedCFamC1A 2
Decision Date

CaseChat Overview and Summary

The case before the court was an application for leave to appeal orders made by the Family Court of Australia concerning property settlement between the parties. The applicants were Mr Jess Jnr, Mr Ban, and GGG Pty Ltd, while the respondents were Ms Jess, Mr Jess Snr in his capacity as the legal personal representative of the late Mr Jess Snr, and PPP Investments Pty Ltd. The applicants sought to appeal the orders setting aside property settlement orders made consensually between the parties. The legal issues before the court were whether the primary judge erred in finding that all parties to the proceedings in which the order was made consented and whether the applicants were "other persons interested" within the meaning of s 79A(2) of the Family Law Act 1975 (Cth). The court held that the primary judge did not err in finding that all parties to the proceedings in which the order was made consented. The court also held that the applicants were not "other persons interested" within the meaning of s 79A(2) of the Family Law Act 1975 (Cth). The court further held that the applicants should have been regarded as interested persons entitled to be heard, but no substantial injustice would flow if leave was not to be granted since the applicants will be able to defend substantial proceedings against them. Therefore, leave to appeal was refused, and the applicant was to pay the costs of the first respondent in a fixed sum. The cross-appeal brought by the trustees of the bankrupt estate of the deceased husband on a conditional basis was also dismissed as leave to appeal was dismissed.

Orders

Orders of the court

NAA 178 of 2022

MLF 3444 of 2006

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR JESS JNR

First Applicant

MR BAN

Second Applicant

GGG PTY LTD (and others named in the Schedule)

Third Applicant

AND:

MS JESS

First Respondent

MR J HIS CAPACITY AS THE LEGAL PERSONAL REPRESENTATIVE OF THE LATE MR JESS SNR

Second Respondent

PPP INVESTMENTS PTY LTD (and others named in the Schedule)

Third Respondent

MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR (INTERVENERS)

Intervener

ORDER MADE BY:

ALSTERGREN CJ, ALDRIDGE & AUSTIN JJ

DATE OF ORDER:

10 JANUARY 2023

THE COURT ORDERS THAT:

1. The application for leave to appeal the orders made on 29 July 2022 is dismissed.

2. The application for leave to cross-appeal the orders made on 29 July 2022 is dismissed.

3. The applicant is to pay the costs of the first respondent fixed in the sum of $39,303.54.

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).

Background

Background to the litigation

For the reasons which follow, both applications for leave to appeal will be dismissed.BACKGROUND After the wife and the deceased separated many years ago, the deceased and Mr Jess Jnr entered into a deed concerning the proprietorship of certain assets. Amongst other things, it provided that Mr Jess Jnr was the beneficial owner of the 103 ordinary units and one Class D unit in the Jess Retail Unit Trust (“JRUT”) which were registered in the name of the deceased husband. The trustee was obliged to amend the register of unitholders to record Mr Jess Jnr as the holder instead of the deceased husband. The deed purported to have been executed on 28 February 2002 (“the trust deed”). Much later, in proceedings between the spouses in the Family Court of Australia (as the Court was then known) for financial relief under Pt VIII of the Act, on 15 November 2019, another judge found and declared this:2.I declare that the Deed of Declaration of Trust dated 28 February 2002 was not executed on the date that it bears.… The trust deed was made to look as though it had been executed before the marital separation of the wife and the deceased, but it was executed afterwards. An application for leave to appeal from that declaration was dismissed (Jess & Jess (2021) FLC 94-055) and the High Court later dismissed an application for special leave to appeal from the Full Court decision (Jess & Jess [2022] HCASL 24). There was a live issue before the primary judge during the hearing in June 2022 about whether or not the trust deed was found by the first judge to have been a fraudulent attempt to portray the deceased’s divestiture of assets so as to try and put them beyond the reach of the wife in property settlement proceedings between the spouses under Pt VIII of the Act, because that issue was not settled by the express terms of the unsuccessfully appealed declaration made in November 2019. However, in the earlier appeal, the Full Court was satisfied a finding of fraud was made by the first judge (Jess & Jess (2021) FLC 94-055 at [73]–[79], [84] and [143]). Financial proceedings between the wife and the deceased were first commenced in 2006. Relevantly for present purposes, the wife and the deceased consensually entered into the 2009 orders to resolve the financial cause under Pt VIII of the Act, with the wife then accepting (because she was unable to prove otherwise) that the trust deed was valid and binding and so Mr Jess Jnr owned assets which were formerly owned by the deceased. Running in parallel with the litigation before the Family Court of Australia was litigation before the Supreme Court of Victoria, commenced by Mr Jess Jnr in 2007, seeking declaratory relief against both spouses concerning the validity of the trust deed and his ownership of assets the subject of the trust deed. On 20 September 2009, just four days before the 2009 orders were made by the Family Court of Australia, the Supreme Court proceedings were settled by deed (“the settlement deed”) (Wife’s affidavit filed on 1 April 2022, Annexure “MJ 1”), within which Mr Jess Jnr, the wife and the deceased all mutually acknowledged Mr Jess Jnr’s beneficial ownership of the assets the subject of the trust deed including the units in the JRUT. Days later, upon that premise, the 2009 orders were made between the wife and the deceased.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MR J

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Ratio Decidendi

Legal Principle Established

Established by: MR J

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