Lint & Lint

[2009] FamCA 1315

FAMILY COURT OF AUSTRALIA

LINT & LINT AND ORS [2009] FamCA 1315

FAMILY LAW – PRACTICE AND PROCEDURE – Property Proceedings – Interim Application to allow valuer to enter certain property – Value of property in issue does not have sufficient connection with order sought – Application dismissed

APPLICANT: Ms Lint

1^st RESPONDENT: Mr Ling

2^nd RESPONDENT: R Lint

3^rd RESPONDENT: T Lint

4^th RESPONDENT: E Lint

5^th RESPONDENT: Lint Stores Pty Ltd

6^th RESPONDENT: Lint Holdings Pty Ltd

FILE NUMBER: BRF 1875 of 2006

DATE DELIVERED: 3 December 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 3 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk SC

SOLICITOR FOR THE APPLICANT: Hemming & Hart

COUNSEL FOR THE 1^ST RESPONDENT: Mr Bland

SOLICITOR FOR THE 1^ST RESPONDENT: Murdoch Lawyers

COUNSEL FOR THE 2^ND, 4^TH, 5^TH AND 6^TH  RESPONDENT: Mr Couper QC with Mr North

SOLICITOR FOR THE 1^ST RESPONDENT: Hopgood Ganim Lawyers

IT IS NOTED that publication of this judgment under the pseudonym Lint & Lint and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 1875 of 2006

MS LINT

Applicant

And

MR LINT

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In pending proceedings between husband and wife, under section 79 of the Family Law Act, a number of other parties are joined.  Two are corporations and the others are persons who are shareholders, as well as, in at least one case, an office bearer of the corporations, or one of them.

2. The husband was required to construct a document which set out his claims against the third parties.  Mr Bland appearing for the husband today says that that is not his pleading, in the strict sense, such as amounting to a statement of claim asserting material facts. 

3. Whatever its description, its intent was clear and that was to alert, in particular, the third party respondents to the issues that the husband sought be determined against them.  No issue related to the respondent R Lint’s ownership of a home purchased in October 2006, albeit the major funds used for the purchase could be traced back through his mother to a dividend from one of the corporate respondents.

4. The application for determination at the moment seeks an order that R Lint, the second respondent, forthwith permit a valuer to attend and inspect the residence purchased in October 2006 and undertake a valuation.  The property is said in submissions, but not, as I have pointed out, in any more formal document raising an issue for determination in the forthcoming trial, to be held by R Lint on a constructive trust, arising from a breach of his fiduciary and statutory duties in relation to the receipt by him of the moneys in accordance with the path that I briefly described.

5. The end result is that it is not suggested that, in the trial, the court will be called upon to determine whether or not a constructive trust relevant property exists, but it may be submitted that, on some level of satisfaction, perhaps possibility or perhaps probability, such a position exists and, therefore, it should be addressed by including, on some basis, the value of the property in the assets of the company which, in turn, would affect the value of shares in that company.

6. It is an interesting prospect that an issue not to be determined, in the sense of a legal issue, or by the application of law to facts, but to be somehow considered at some other level of satisfaction will be abroad in the trial.  That prospect places Mr R Lint in an unusual situation where he will not have to mount a case, so to speak, to meet an assertion of constructive trust because he need fear no declaration about that, or specific finding being made in respect of it, but nonetheless will be concerned to avoid a finding that it is a possible, or probable, situation. 

7. Whilst the level of inconvenience, in what is in effect injunctive type relief, to R Lint in opening his residence for inspection  might not be considered great, nonetheless, an order interfering with the rights of a third party, even to the degree that I have suggested, ought not be made unless there is a sufficiently cogent reason for it. 

8. Because of what I have said of the issues which are to be determined, or not determined, as between husband and Mr Lint and the other respondents, I am not satisfied here that there is sufficient nexus between the value of the property, whatever that be, and the order sought, to justify its making.  There may, in any event, be alternatives which satisfy the rather broad relevance of the value of the relevant property anyway. 

9. Mr Lint may well be questioned.  He may be questioned about matters that would bear upon a valuation of the property.  It may well be sufficient for the purposes, as perceived on behalf of the husband, that a drive-by valuation, informed by such information as might be derived, if cross-examination on the issue is permitted, would be sufficient for the husband and wife’s position to be protected.  In other words the value of the property, even if ascertained, will, one imagines, as against either husband or wife have a rather diluted impact because, at best, it is an asset of the company.  There are various shareholders in the company and any difference between what was paid for the property and its present value will not have the same dollar impact on the entitlements as between husband and wife.

10. In essence the issue of the value of the property is currently altogether too remote from the issues joined between the parties.  I dismiss the application of the husband filed 23 November 2008.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate: 

Date:  22 December 2009