LL and Anor & MR and Anor - [2006] FamCA 690

[2006] FamCA 690

FAMILY LAW ACT 1975

IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. EA 60 of 2005

File No. SYF 6709 of 2000

IN THE MATTER OF:

First Applicant

- and -

PK PTY LTD

Second Applicant

- and -

First Respondent

- and -

Second Respondent

REASONS FOR JUDGMENT

BEFORE:Finn, Coleman and Boland JJ
HEARD:8 September 2005; and by way of written submissions 11 October 2005 and 9 November 2005

JUDGMENT: 21 July 2006

APPEARANCES:

Mr Broun QC and Mr Gramelis of Counsel (instructed by Tsavdaridis Lawyers, Level 1, 181 Enmore Road, Enmore NSW 2042) appeared on behalf of the Appellants.
Mr Whittemore, solicitor (of Coyne & Whittemore Solicitors, 7/17-19 Mooramba Road, Dee Why NSW 2099) appeared on behalf of the First Respondent.
Mr Russo, solicitor (of Russo & Partners, Solicitors, 12 Smalls Road Arcadia NSW 2159) appeared on behalf of the Second Respondent.

APPEAL SUMMARY

MATTER:LL and PK Pty Ltd and MR and CR
APPEAL NUMBER: EA 60 of 2005; SYF 6709 of 2000
CORAM:Finn, Coleman and Boland JJ
DATE OF HEARING: 8 September 2005; and by way of written submissions 11 October 2005 and 9 November 2005

DATE OF JUDGMENT: 21 July 2006

CATCHWORDS:

APPLICATION – For leave to appeal interlocutory orders in property proceedings

(a)dismissing application of third parties to bring proceedings under the Corporations Act 2001 (Cth), and in reliance on accrued jurisdiction at same time as s 79 proceedings between husband and wife;
(b)costs orders; and
(c)subsequent orders made which were asserted to affect third parties’ interests

Consideration of proposed grounds of appeal in determination of application – Application dismissed.

CORPORATIONS ACT / ACCRUED JURISDICTION

Per Finn J:

Whether trial Judge erred in holding claims of appellants did not fall within the accrued jurisdiction of the Family Court - Whether trial Judge erred in declining to exercise his power under the Corporations Act 2001 (Cth) – Appellants’ proposed grounds of appeal met by trial Judge’s conclusion that even if he was wrong on the accrued jurisdiction or Corporations Act grounds, he would transfer the proceedings to the Supreme Court pursuant to s 1337J of the Corporations Act, his Honour’s reasoning having been based on the assumption that the appellants had been granted leave to intervene - His Honour’s reasoning also proceeded on the basis that s 1337J is not discretionary – No error by trial Judge in making the orders that he did.

Per Coleman and Boland JJ:

Corporations Act - Whether the trial Judge erred in exercise of discretion in rejecting the appellants’ statutory claims under the Corporations Act 2001 (Cth) – Consideration of whether appellants sufficiently identified their case before the trial Judge –Whether matters contended by appellants formed a different case than that presented to the trial Judge.

Whether the fact that the trial Judge was aware of, and referred to, the transitional provisions and s 124 of the Companies Act 1961 (NSW) negatived or derogated from…

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: [2006] FamCA 690
Decision Date: 21 July 2006

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an application for leave to appeal interlocutory orders made by O’Ryan J. The applicants, LL and PK Pty Ltd, sought leave to appeal orders dismissing their application to intervene in property settlement proceedings between CR and MR, and refusing their application for various declarations and orders. LL is the daughter of CR, and PK Pty Ltd is a company with origins tracing back to a company formerly directed and held by CR and her first husband, JL. The applicants sought to prosecute applications under section 1337C of the Corporations Act 2001 and the accrued jurisdiction of the Family Court, alleging that CR had breached her duties as a director of PK Pty Ltd and as a trustee, which they contended would diminish the property available for the CR and MR settlement proceedings.

The primary legal issues before the Full Court were whether the trial judge erred in holding that the appellants' claims did not fall within the accrued jurisdiction of the Family Court, and whether the trial judge erred in declining to exercise his powers under the Corporations Act 2001. Specifically, the court considered whether the trial judge correctly identified the claims presented to him, whether his awareness of transitional provisions affected the general principles of appellate review, and whether it was necessary for him to determine the availability of relief under section 1324(10) of the Corporations Act. The court also examined whether the trial judge erred in making subsequent orders without notice to the appellants, thereby denying them natural justice, and whether he erred in ordering one of the appellants to pay the husband's costs.

The Full Court reasoned that the trial judge's conclusion that the appellants' claims did not fall within the accrued jurisdiction was sound, particularly as the appellants did not suggest these claims could be maintained independently of their Corporations Act claims. Regarding the Corporations Act claims, the court found no error in the trial judge's assessment that the case presented to him was not specifically pleaded under section 124 of the Companies Act 1961 (NSW). Furthermore, the court noted that even if the trial judge had erred on the jurisdiction or Corporations Act grounds, he indicated he would have transferred the proceedings to the Supreme Court of New South Wales pursuant to section 1337J of the Corporations Act, a decision the Full Court found was not outside the reasonable ambit of his discretion. The court also found no merit in the grounds of appeal concerning the subsequent orders, as there was no evidence that the appellants sought a stay or relisting of the matter, and the costs order was based on the appellants' lack of success.

Consequently, the Full Court dismissed the application for leave to appeal, finding no error by the trial judge in his determination of the jurisdiction issues and that the tests for granting leave were not satisfied.

Orders