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
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
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
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- AGLC
- Jess & Jess (No 4) [2022] FedCFamC1F 530
- Case
- [2022] FedCFamC1F 530
- Decision Date
CaseChat Overview and Summary
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
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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.