Jess & Jess (No 4)

Case [2022] FedCFamC1F 530


Federal Circuit and Family Court of Australia

(DIVISION 1)

Jess & Jess (No 4) [2022] FedCFamC1F 530

File number(s): MLF 3444 of 2006
Judgment of: WILSON J
Date of judgment: 29 July 2022
Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – application to set aside 24 September 2009 consent orders pursuant to s 79A(1A) and s 79A(1)(a) – fraudulent deed of declaration of trust – deed intended to cheat the wife out of her s 79 entitlement – consent orders set aside.
Legislation:

Family Law Act 1975 (Cth) ss 79, 79A(1A), 79A(1)(a) and 79A(2)

Matrimonial Causes Act1959 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Part 7

Real Property Act 1861 (Queensland)

Cases cited:

Allan v Transurban City Link Ltd (2001) 208 CLR 167

Ascot Investments Pty Ltd v Harper (1982) 148 CLR 337

B Pty Ltd v K (2008) 39 Fam LR 488

Bacall & Zagar [2020] Fam CA 350

Balnaves v Balnaves (1988) 12 Fam LR 488

Barker v Barker (2007) 36 Fam LR 650

Bigg v Suzi (1998) 22 Fam LR 700

Burns v Burns (1967) 10 FLR 441

Calderbank v Calderbank [1975] 3 All ER 333

Cao & Trong [2019] FamCA 336

Clifton v Stuart (1990) 14 Fam LR 511

Clone Pty Ltd v Players Pty Ltd (in liq)(receivers and managers appointed) [1889] AC 337

Derry v Peek [1889] AC 337

Eaby v Speelman [2015] FamCAFC 104

Farley (Aust) Pty Ltd v J.R. Alexander & Sons (Queensland) Pty Ltd (1946) 75 CLR 487

Federal Commissioner of Taxation v St Helen’s Farm (ACT) Pty Ltd (1981) 146 CLR 336

Gitane v Velacruz (2008) 39 Fam LR 460

Hickox v Hickox [1964] ALR 1095

Hicks & Hicks [2018] Fam CAFA 37

HIH Casualty and General Insurance Ltd v Chase Manhattan Bank [2003] UKHL 6

Hill v Zuda Pty Ltd [2022] HCA 21

In Re Avery's Patent (1887) 36 Ch D 307

In the Marriage of Gebert (1990) 14 Fam LR 62

In the Marriage of Heath; Westpac Banking Corporation Intervening (1983) 9 Fam LR 97

In the Marriage of McCabe (1995) 19 Fam LR 579

In the Marriage of Oastler (1989) 16 Fam LR 674

In the Marriage of Patching (1995) 18 Fam LR 675

In the Marriage of Prowse (1994) 18 Fam LR 348

Jess & Jess (No 3) [2022] FedCFamC1F 408

Jess & Jess (2021) 63 Fam LR 545

Jess & Jess [2022] HCASL 24

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1

Jonesco v Beard [1930] AC 298

Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563

Lazarus Estates Ltd v Beasley [1956] 1 QB 702

Marshall v Director-General, Department of Transport (2001) 205 CLR 603

Marvel v Marvel (2010) 43 Fam LR 348

McNamara (McGrath) v Consumer, Trader and Tenancy Tribunal (2005) 221 CLR 646

Morrison & Morrison (1994) 18 Fam LR 519

Mullane v Mullane (1983) 158 CLR 436

Nocton v Lord Ashburton [1914] AC 932

Ogden Industries…

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AGLC
Jess & Jess (No 4) [2022] FedCFamC1F 530
Case
[2022] FedCFamC1F 530
Decision Date

CaseChat Overview and Summary

In the case of Jess & Jess (No 4), the court addressed the application of the wife, the husband’s personal representative, and the trustees to set aside orders made by Cronin J on 24 September 2009. The respondents, including Mr Jess Jnr and the represented third parties, contested the application, leading to a complex litigation scenario that had been ongoing for a significant period. The court was required to determine whether the orders could be set aside under section 79A(1A) of the relevant act and whether Mr Jess Jnr had a relevant interest to oppose the application. Additionally, the court needed to consider whether a case of miscarriage of justice had been made out under section 79A(1)(a) due to fraud.

The court found that an order should be made to set aside the orders made by Cronin J, as Mr Jess Jnr did not have a relevant interest to oppose the application. The court held that Mr Jess Jnr was not a party to the orders made by Cronin J and, therefore, had no standing to oppose the application. Furthermore, the court noted that there was no mandatory requirement compelling a s 79A application to be dealt with concurrently with the s 79 proceeding. The court also found that while an arguable case of miscarriage of justice had been made out, the represented third parties had not sought an order in relation to their interests. As such, the court concluded that setting aside the orders was appropriate.

The final orders of the court were that the orders made by Cronin J on 24 September 2009 were set aside, and Mr Jess Jnr and the represented third parties were to have the opportunity to put their case in a subsequent s 79 proceeding. The court emphasised that the represented third parties had not sought an order to protect their interests, which further supported the decision to set aside the orders. This ruling ensures that the application is dealt with expeditiously, in line with the principles governing the Major Complex Financial Proceedings List.

Orders

Orders of the court

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Background

Background to the litigation

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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

Mr Dickson then addressed the issue of “other person interested” in s 79A(2). He contended that the represented third parties have a direct interest in the s 79 proceeding once the case converts to the “blank canvas” phase. But he said the represented third parties have not identified any interest in the setting aside of the 24 September 2009 orders. Mr Dickson submitted that Mr Jess Jnr acquired no rights or benefits from the settlement that were compromised by the orders of Cronin J. Further, Mr Dickson argued that Mr Jess Jnr resisted his joinder when application was made to join him. Yet the represented third parties had filed no affidavit material identifying a relevant interest and that fact was a matter that should not persuade the court against making an order under s 79A(1A).Consideration Despite this litigation having been on foot for as long as it has, I am conscious that more than a month has elapsed since this application was argued on 16 and 17 June 2022. Consistent with the imperatives underpinning the expeditious hearing and determination of trials and applications in a case in the Major Complex Financial Proceedings List, it is necessary for me to rule on this application without further delay. As has already been observed, in my view – (a)an order should be made in pursuance of s 79A(1A) setting aside the orders made by Cronin J on 24 September 2009;(b)Mr Jess Jnr does not have a relevant interest to oppose the consent application put forward by the wife, the husband’s personal representative and the trustees because Mr Jess Jnr was not a party to the orders made by Cronin J, irrespective of the interest he understandably wishes to agitate in his case in relation to the units in JRUT once a later s 79 proceeding is commenced;(c)no mandatory requirement exists in the learning compelling a s 79A application to be dealt with at the same time as the s 79 proceeding is conducted;(d)in complex litigation of which this is an exemplar, Nicholson CJ’s observations in Patching should be applied to the effect that there is no immutable rule forbidding bifurcation; (e)Mr Jess Jnr and the represented third parties will have the opportunity of putting their case with all its factual and legal implications in a s 79 proceeding in which all parties participate to raise such material interest each is advised to raise;(f)while the forgoing in relation to s 79A(1A) disposed of the need to embark upon a consideration of the litany of sophisticated arguments in relation to s 79A(1)(a), I take the view that a case of miscarriage of justice may have been made out by reason of the fraud engaged in by Mr Jess Jnr and the husband in relation to the units in JRUT, for the reasons Bennett J found in respect of fraud; (g)the deed of declaration of trust may not be invalid by being made on a date other than the date it bears, (on which I express no concluded view) but that does not detract from the fact that the settlement was procured in circumstances where the wife was wholly ignorant for reasons beyond her control of the true value of the asset pool in respect of which her interest was compromised; (h)an arguable case has been made out under s 79A(1)(a); and (i)the represented third parties have not sought an order in relation to their interests which they argue needs protection.