Joubert and Anor & Verhoeven and Anor - [2020] FamCA 53

FAMILY COURT OF AUSTRALIA

JOUBERT AND ANOR & VERHOEVEN AND ANOR

[2020] FamCA 53

FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife joined a company and the husband’s brother to the substantive proceedings as the Second and Third Respondents – Where the Second and Third Respondents seek that the proceedings be bifurcated to determine the issue of whether the husband is a beneficial owner of any ordinary shares in the Second Respondent – Where this issue had already been adjudicated by a Judge in the Family Court of Australia – Where the Second and Third Respondents allege that there was a material difference in the case put before the Court in the previous interim hearing –Where the wife argues that the application is an abuse of process – Principle of finality discussed – Whether the application should alternatively be dismissed in the exercise of discretion – Application dismissed.

Family Law Act 1975 (Cth) ss 79, 90AE
Family Law Rules 2004 (Cth) rr 1.06, 10.13, 10.14

Uniform Civil Procedure Rules 2005 (NSW)

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256
Brimaud v Honeysett Instant Print (1988) 217 ALR 44
Farina & Lofts and Ors [2018] FamCA 763
Ghosh v NineMSN Pty Ltd [2015] NSWCA 334
Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225
Jess & Garvey (2018) FLC 93-827
Joubert and Anor & Verhoeven and Anor [2018] FamCA 879
Liu v The Age Company Limited [2016] NSWCA 115
Malcher & Malcher (No. 2) [2012] FamCA 1115
Paris King Investments Pty Ltd & 1 ors v Michael Norman Rayhill & 2 ors [2006] NSWSC 578
P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) [2009] FCA 413; (2009) 255 ALR 466
Southwell v Bennett [2010] NSWSC 1372
Tomlinson v Ramsey Food Processing Pty Limited (2015-16) 256 CLR 507

APPLICANTS:

Mr C Joubert & B Pty Ltd

FIRST RESPONDENT:

Ms Verhoeven

SECOND RESPONDENT:

Mr A Joubert

FILE NUMBER:

SYC

4981

2016

DATE DELIVERED:

14 February 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

29 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANTS:

Mr Schonell SC

SOLICITOR FOR THE APPLICANTS:

Blanchfield Nicholls

COUNSELS FOR THE FIRST RESPONDENT:

Mr Condon SC

Ms Gerace

SOLICITOR FOR THE FIRST RESPONDENT:

Somerset Ryckmans

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE SECOND

RESPONDENT:

Holmes Donnelly & Co Solicitors

Orders

The Application in a Case filed by Mr C and B Pty Ltd on 28 August 2019 be dismissed.
All extant applications be adjourned to 10 March 2020 at 10:45am for mention before the Docket Registrar.
If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FamCA 53
Decision Date: 14 February 2020

CaseChat Overview and Summary

In the matter of *Joubert and Anor & Verhoeven and Anor*, Harper J of the Supreme Court of Victoria was required to determine an application filed by Mr C and B Pty Ltd. The precise nature of the dispute between the parties is not detailed in the provided text, however, the application filed by Mr C and B Pty Ltd was ultimately dismissed by the Court.

The central legal issue before Harper J was whether to grant the application made by Mr C and B Pty Ltd. The Court also considered the disposition of other extant applications and the question of costs.

Harper J dismissed the application brought by Mr C and B Pty Ltd. The Court ordered that all other extant applications be adjourned for mention before the Docket Registrar on 10 March 2020. Regarding costs, the Court stipulated that any party seeking an order for costs must make an application within 28 days of the decision, supported by documentary material, and filed and served within that timeframe. If no such application were made, no order as to costs would be made.

Orders

Orders of the court

The Application in a Case filed by Mr C and B Pty Ltd on 28 August 2019 be dismissed.

All extant applications be adjourned to 10 March 2020 at 10:45am for mention before the Docket Registrar.

If any party seeks an order for costs, an appropriate application to the Court may be made within 28 days of today’s date (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my Chambers. If no such application is made within the time period specified, no order will be made as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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