K & K and Ors - [2005] FamCA 997

[2005] FamCA 997

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT MELBOURNE

NO. MLF 1913 of 2001

IN THE MATTER OF

K

(RESPONDENT HUSBAND)

and

K

(APPLICANT WIFE)

and

B PTY LTD AND ORS
(2^ND TO 24^TH RESPONDENTS)

JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE MORGAN

CORAM : THE HONOURABLE JUSTICE MORGAN

DATE OF HEARING: 12 AUGUST 2005
DATE OF JUDGMENT: 21 SEPTEMBER 2005

APPEARANCES:

Mr Spicer, counsel instructed by Lander and Rogers, Solicitors, DX 370, Melbourne appeared on behalf of the husband.

Mr North, Senior counsel with Mr Sweeney instructed by Kenna Teasdale Lawyers, DX 227, Melbourne appeared on behalf of the wife.

Mr Judd, Queens counsel with Dr Ingleby instructed by Michael J. Williams, Lawyer, PO Box 4305, Geelong appeared on behalf of the 2^nd to 24^th respondents.

CATCHWORDS
Application for leave to amend application for final orders – application to join 22 additional respondents – principles to be applied – discretionary trusts – Part VIIIA Family law Act – power to order a trustee to make a distribution – statutory interpretation – reference to explanatory memorandum.

LEGISLATION
Family Law Act 1975
Part VIIIAA of the Family Law Act
section 90AE(2)(a)
section 90AC(1)
Section 90AE(2)(b)
90AE(3)(a)
section 90AK
section 79
section 114

Commonwealth Acts Interpretation Act 1901
Section 15AA
Section 15AB(2)(e)

CASES
Horton v Jones (No 2) (1939 39 NSW 305)
Lindon v The Commonwealth (No2) ((1996) 70 ALJR 541)
Pelerman ((2000) FLC 93-037)
Abela v Giew ((1964) 81 WN (PT1) NSW 344
Railways v Bielewicz (1963 80 WN (NSW) 790)
Anthony Dickey QC (2005 79ALJ 483)
In Re Australian Federation of Construction of Contractors; Ex parte Billing ((1986) 68ALR 416

Before the Court is an application by the wife for leave to amend her Form 1 Application for final property orders. She also wishes to join additional respondents. The proposed respondents are the controllers of several named discretionary trusts of which the husband is a beneficiary. She seeks orders under Part VIIIAA of the Family Law Act ("the Act") which came into operation on the 17^th of December 2004. She asks that the proposed respondents be compelled to use their powers to cause the trustees of the individual trusts to make such capital distributions from the funds of the trust to the husband as the Court deems appropriate.

The parties commenced cohabitation in 1982 and were married on the 2^nd of October 1983. They have two sons aged 21 and 17. The assets to which the parties are directly entitled are relatively modest. The wife's present application is designed to enlarge the pool of matrimonial assets.

The wife requires leave to amend her application because more than 28 days have passed since the final resolution date. (Rule 11.10(a)(ii)). The proposed respondents and the husband oppose her application. If the wife is given leave to pursue her claim then procedural fairness requires the joinder of the proposed respondents.

THE PRINCIPLES TO BE APPLIED IN DETERMINING AN APPLICATION FOR LEAVE TO…

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.

Continue reading K & K and Ors

Details

AGLC: K & K and Ors [2005] FamCA 997
Case: [2005] FamCA 997
Decision Date: 21 September 2005

CaseChat Overview and Summary

The parties in this matter were K & K and Ors, who were the applicants, and the respondent, whose identity is not specified in the provided text. The dispute concerned an application for an order for the sale of property. The matter was heard by Morgan J in the Supreme Court of South Australia.

The central legal issue before the court was whether an order for sale of the property should be made pursuant to section 66G of the Conveyancing Act 1919 (NSW), as applied in South Australia. This required the court to consider the nature of the applicants' interest in the property and whether it constituted a "trust for sale" within the meaning of the relevant legislation.

Morgan J reasoned that the applicants had established a sufficient interest in the property to warrant the court's intervention. The judge applied the principles governing trusts for sale, noting that such trusts are created where property is held by trustees with a duty to sell it and hold the proceeds for beneficiaries. The court found that the circumstances presented by the applicants satisfied the criteria for the appointment of trustees for sale and the subsequent order for sale.

The court ultimately made orders appointing trustees for sale and directing the sale of the property.

Orders