Lodokic and Lodokic and Anor

[2008] FamCA 25

FAMILY COURT OF AUSTRALIA

LODOKIC & LODOKIC AND ANOR [2008] FamCA 25

FAMILY LAW – PROPERTY – Interlocutory application to join a third party to the proceedings.  Given the circumstances surveyed by the applicant, orders made for joinder as a second named respondent.

Family Law Act 1975 (Cth) (as amended)
Family Law Rules 2004

APPLICANT: Ms Lodokic

RESPONDENT: Mr Lodokic

SECONDNAMED RESPONDENT: Mr Pavey

FILE NUMBER: MLF 1599 of 2006

DATE DELIVERED: 16 January 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Guest J

HEARING DATE: 16 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Farmer

SOLICITOR FOR THE APPLICANT: Stephen Farmer & Associates

COUNSEL FOR THE RESPONDENT: Mr Mellas

SOLICITOR FOR THE RESPONDENT: McKean & Park

COUNSEL FOR THE SECONDNAMED

RESPONDENT:

Ms Kee

SOLICITOR FOR THE

 SECONDNAMED RESPONDENT:

Arnold Bloch Leibler

Orders

1. That Mr Pavey be joined as a secondnamed Respondent to these proceedings.

2. That the wife have leave to file an Amended Application for Final Orders in the form of the Amended Application for Final Orders annexed to the said Application filed on 10 December 2007.

3. That the costs of all parties this day be reserved.

4. That the Form 2 Application in a Case filed by the wife on 10 December 2007 be otherwise dismissed.

IT IS CERTIFIED

(5) That pursuant to rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel.

IT IS FURTHER ORDERED BY CONSENT OF THE HUSBAND

1. That the husband do provide the wife’s solicitors with a list of discoverable documents on or before 1 February 2008.

2. That the husband provide to Mr K, the appointed Single Expert any further documents as may be reasonably required by him AND THAT such documents be provided on or before 8 February 2008.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Guest delivered this day will for all publication and reporting purposes be referred to as Lodokic & Lodokic.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1599  of 2006

Ms Lodokic

Applicant

And

Mr Lodokic

Respondent

REASONS FOR JUDGMENT

1. I have before me an Application in a Case, pursuant to Rule 5.01 of the Family Law Rules 2004 ("the Rules") and filed by the wife on 10 December 2007. By that application the wife seeks an order that Mr Pavey be joined as a secondnamed respondent to the proceedings and that she be given leave to file an Amended Application for Final Orders in the form annexed to her Application.

2. The application is supported by an affidavit of the wife, also filed on 10 December 2007.

3. The matter comes before me this day by way of case management with Mr Farmer appearing for the applicant wife, Mr Mellas for the respondent husband and Ms Kee for the proposed secondnamed respondent.  I have been helpfully assisted by all practitioners in the matter.  Put simply, the Form 2 Application seeks the joinder of Mr Pavey, who is presently outside the Commonwealth of Australia and is executive chairman of P Pty Ltd, a property development company. 

4. It is alleged, as explained to me by Mr Farmer that Mr Pavey has claimed that as far back as 1991, when the husband was in danger of being rendered bankrupt he assisted the husband with his financial arrangements with the National Australia Bank and advanced to him $200,000.  He maintains that this capital advance is outstanding with accrued interest.  Given the reasonably modest pool of assets, Mr Farmer pointed out that such a claim has the potential to substantially reduce the pool and subsume much of the wife’s entitlements.

5. The wife seeks to investigate the claim and has thus far received certain documents from the National Australia Bank relating to the advance and assignment.  Mr Farmer raises the issue of whether or not the moneys in fact were advanced by Mr Pavey directly or if the debt has been repaid over the intervening years and/or forgiven.  They are matters for investigation. 

6. Mr Mellas informed me that it is asserted by the husband there was a Deed of Release which was signed by the parties and that, for the purpose of the hearing before me this day, he neither opposed nor consented to the order sought by the wife. 

7. Ms Kee has helpfully provided to me an affidavit setting out the position of her firm as solicitors engaged on behalf of Mr Pavey in the proceedings.  She deposed to the fact that Mr Pavey is the Executive Chairman of P Pty Ltd, to which I have earlier referred.  Ms Kee otherwise refers to certain correspondence passing between Mr Farmer and her firm.  She has received instructions from Mr Pavey to accept service on his behalf, advising however that he will not be returning to Australia until 24 January 2008.  Save for that, she has no further instructions on the principal issue.

8. It appears to me that it is appropriate at this stage to make the orders sought. Rule 6.02 of the Rules provides that a person whose rights may be directly affected by an issue in a case and whose participation as a party is necessary for the court to determine all issues in dispute in the case "must be included as a party to the case". 

9. Mr Farmer has further addressed my attention to Rule 11.10(2), providing that:

   “Where a party has filed a Form 1 or Form 1A Application and seeks to add or substitute another cause of action or another person as a party to the case, it must amend the form in accordance with the division.” 

   Reference is also made to Rules 11.10(3) and 11.10(4).  This is a discretionary exercise on my part. 

10. It seems to me appropriate that Mr Pavey be joined as a party to the proceedings and I order accordingly.  The court will take out the order.

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

Associate: 

Date:  25 January 2008