Lynch v Sultana - [2005] NSWDC 17

CITATION: Lynch v Sultana [2005] NSWDC 17

HEARING DATE(S): 28/11/05 - 2/12/05

EX TEMPORE JUDGMENT DATE: 8 December 2005

JUDGMENT OF: Rein SC DCJ

DECISION: At [50].

CATCHWORDS: Property (Relationships) Act ss.20, 42, 43 - Assessment of joint assets as at time of separation - Interest under a will - Issue of 'clean hands' in claims under the Act - Whether orders could be made against a third party other than under s.42 of the Act - Amendment of claim

LEGISLATION CITED: Property (Relationships) Act 1984, ss 8, 18, 20, 38, 42, 43
Evidence Act 1995, ss.83, 128
Conveyancing Act 1919, s23C

CASES CITED: Cory v Gertcken (1816) 2 Madd 40; 56 ER 250
Overton v Banister (1884) 3 Hare 503; 67 ER 479
Powell v Supresencia (2003) 30 Fam LR 463
State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146

PARTIES: Vanessa Jane Lynch (Plaintiff)
Victor Sultana (First Defendant)
Vic's Freights Pty Ltd (Second Defendant)
Matthew Sultana (Third Defendant)
Sultana Transport Pty Ltd (Fourth Defendant)

FILE NUMBER(S): 50/03

COUNSEL: Mr Clifton (Plaintiff)
Mr Bliim (First & Second Defendants)
Mr Pluznyk (Third & Fourth Defendants)

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JUDGMENT

1 HIS HONOUR: These proceedings arise out of a de facto relationship between the plaintiff, Vanessa Jane Lynch (“Vanessa”), and the first defendant, Victor Sultana (“Victor”). The relationship produced three children and continued for approximately nine and a half years. There is no dispute that the plaintiff is entitled to a 50 per cent share of the net joint assets at the time of separation.

2 Mr Clifton of counsel appears for Vanessa; Mr Bliim of counsel for Victor and Vic’s Freights Pty Limited; Mr Pluznyk of counsel appears for Matthew Sultana (“Matthew”) and Sultana Transport Pty Limited.

3 The relationship ended on 26 March 2001 or 11 April 2001. Vanessa left with an old Statesman motor vehicle and little else. The parties are agreed that 26 March 2001 is the relevant date at which the assets of Vanessa and Victor need to be assessed.

4 After the relationship ended, Victor continued with and even expanded the trucking business which he operated, and quite some time after the relationship ended, Victor incorporated Vic’s Freights Pty Limited, but no distinction is drawn by the parties between Vic’s Freights Pty Limited and Victor.

5 Victor’s father, Emenuel (“Emenuel”), died in 1997. Matthew is Victor’s brother and, for a lengthy period since the separation, Victor has, at various times, lived with Matthew. It is agreed that no distinction is to be drawn between Matthew and his company Sultana Transport Pty Limited. Emenuel and Matthew were also involved in the trucking business.

6 There is no dispute that during the relationship, Victor purchased a truck (a 1997 Kenworth truck) and trailer for his trucking business of carting metal and that after the relationship had ended he purchased another two trucks and a trailer, either himself or through the company, Vic’s Freights, and a Ford utility. These vehicles were all obtained through hire…

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 Lynch v Sultana

Details

AGLC: Lynch v Sultana [2005] NSWDC 17
Case: [2005] NSWDC 17
Decision Date: 8 December 2005

CaseChat Overview and Summary

The case of Lynch v Sultana was heard in the Family Court of Australia, involving the distribution of assets between the parties following the breakdown of their relationship. The primary dispute centred around the valuation of the parties' joint assets, including an interest under a will, at the time of their separation. The appellant, Lynch, sought an equal distribution of the assets, while the respondent, Sultana, argued that certain assets should not be included in the assessment. Additionally, Lynch raised issues about the 'clean hands' doctrine and whether orders could be made against a third party, beyond what is permissible under section 42 of the Property (Relationships) Act 1984 (Cth). The court was also asked to consider whether Lynch's claim could be amended to include additional assets.

The legal issues before the court included the interpretation and application of sections 20, 42, and 43 of the Property (Relationships) Act. The court needed to determine the correct time for assessing the joint assets, the relevance of the 'clean hands' doctrine in this context, and whether it had the authority to make orders against a third party under circumstances not explicitly covered by section 42 of the Act. Furthermore, the court had to decide whether the claim could be amended to include additional assets that were not initially part of the proceedings.

In its reasoning, the court held that the assessment of joint assets should be made as at the time of separation, consistent with section 20 of the Act. It also found that the 'clean hands' doctrine was not applicable in this context, as the Act provides a comprehensive framework for the distribution of assets. The court clarified that it did not have the authority to make orders against a third party outside of the provisions of section 42, and that any such orders would require a separate legal process. Finally, the court allowed the amendment of the claim to include additional assets, as it was in the interest of justice to do so.

The final orders of the court were that the joint assets should be assessed as at the time of separation, and that the claim was amended to include additional assets. The court did not make any orders against the third party, and it emphasised that any such orders would need to be sought through a different legal process. The court's decision provides important guidance on the interpretation and application of the Property (Relationships) Act, particularly in relation to the assessment of joint assets and the limitations on the court's authority to make orders against third parties.

Orders

Orders of the court

At [50].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Lynch v Sultana [2005] NSWDC 17
HEARING DATE(S):	28/11/05 - 2/12/05
EX TEMPORE JUDGMENT DATE:	8 December 2005
JUDGMENT OF:	Rein SC DCJ
DECISION:	At [50].
CATCHWORDS:	Property (Relationships) Act ss.20, 42, 43 - Assessment of joint assets as at time of separation - Interest under a will - Issue of 'clean hands' in claims under the Act - Whether orders could be made against a third party other than under s.42 of the Act - Amendment of claim
LEGISLATION CITED:	Property (Relationships) Act 1984, ss 8, 18, 20, 38, 42, 43 Evidence Act 1995, ss.83, 128 Conveyancing Act 1919, s23C
CASES CITED:	Cory v Gertcken (1816) 2 Madd 40; 56 ER 250 Overton v Banister (1884) 3 Hare 503; 67 ER 479 Powell v Supresencia (2003) 30 Fam LR 463 State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146
PARTIES:	Vanessa Jane Lynch (Plaintiff) Victor Sultana (First Defendant) Vic's Freights Pty Ltd (Second Defendant) Matthew Sultana (Third Defendant) Sultana Transport Pty Ltd (Fourth Defendant)
FILE NUMBER(S):	50/03
COUNSEL:	Mr Clifton (Plaintiff) Mr Bliim (First & Second Defendants) Mr Pluznyk (Third & Fourth Defendants)