Malaka and Lasso

[2019] FamCA 775

FAMILY COURT OF AUSTRALIA

MALAKA & LASSO [2019] FamCA 775

FAMILY LAW – INJUNCTION – Anti-suit injunction – Where there are proceedings between the parties in this Court and in a court in Country B – Where the wife seeks an anti-suit injunction against the husband in respect of him continuing the proceedings in Country B – Where the proceedings in Country B are based on a different head of jurisdiction and involve different parties – Consideration of the test set out in Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538 – Court finds that the Country B proceedings are not oppressive or vexatious in the relevant sense – Where the wife submits that she will have difficulty in defending further proceedings about property in Australia, Country C and Country D – Orders made to restrain the husband from instituting a claim outside this Court without four months’ prior notice to the wife – Wife’s application otherwise dismissed.

Family Law Act 1975 (Cth) ss 34, 114(3)

CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345
Henry v Henry (1996) 185 CLR 571
Lan & Hao (No. 2) (2017) FLC 93-795
Voth v Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538

APPLICANT: Ms Malaka

RESPONDENT: Mr Lasso

FILE NUMBER: SYC 5913 of 2017

DATE DELIVERED: 25 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 2 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Heras Law

SOLICITOR FOR THE RESPONDENT: ALP Lawyers

Orders

1. Until further order of the Court, Mr Lasso (also known as Mr Lasso) (“the husband”) is restrained from commencing legal proceedings in any jurisdiction other than the Family Court of Australia, including any proceedings for the registration and or enforcement of orders, being proceedings in relation to the properties described below or that would impact on the wife’s claims in respect of those properties, without giving Ms Malaka (“the wife”) through her solicitors at least four months’ prior written notice:

   (a)E Street, Suburb F, New South Wales, Australia (Folio Identifier …);

   (b)G Street, Suburb H, New South Wales, Australia (Folio Identifier …);

   (c)J Street #..., Suburb I, Country C (Folio Identifier …);

   (d)P Street, Suburb Q City O, Country D.

2. The Court Notes that there are proceedings before the Family Court of Australia at Sydney, commenced by the wife in 2017, which include competing claims for property settlement by the wife and the husband.  In these proceedings:

   (a)The wife contends that proceedings commenced by the husband and others on 5 July 2019 in the Central City N District Court (Item number …) are intended by the husband to defeat the claims of the wife in respect of property settlement in this Court;

   (b)The wife is a resident and citizen of Australia and contends that she is not able to take meaningful part in the Country B proceedings;

   (c)Notwithstanding his role in the Country B proceedings, the husband has joined in the Australian proceedings and has not applied to dismiss or stay these proceedings;

   (d)Despite the relief he seeks in the Country B proceedings, in the proceedings before this Court the husband contends that the properties at Suburb F and Suburb H [(1)(a) & (1)(b) above] comprise matrimonial assets of the husband and the wife and he seeks orders in relation to the Suburb F property, consistent with that contention.  For example, the husband asks the Australian Court to order that the Suburb F property be transferred to the children of the husband and the wife.

3. Otherwise the wife’s Application in a Case filed 27 August 2019 is dismissed.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malaka & Lasso has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC5913 of 2017

Ms Malaka

Applicant

And

Mr Lasso

Respondent

REASONS FOR JUDGMENT

Introduction

1. There are proceedings for settlement of property between Ms Malaka (“the wife”) and Mr Lasso (“the husband”).  In the context of those proceedings the wife seeks to restrain the husband from continuing legal proceedings against the wife in Country B.  In those proceedings orders are sought in respect of properties in Australia (at Suburb F and Suburb H in New South Wales) and in Country C and Country D.

2. The husband opposes the wife’s application.

Applications

1. The wife relies on her Application in a Case filed 27 August 2019 in which she relevantly seeks:

   …

   3.Pursuant to s 34 or s 114(3) of the Family Law Act 1975 (Cth) or by virtue of the Family Court of Australia’s implied powers, that the Respondent Husband, Mr Lasso (also known as Mr Lasso), be restrained and an injunction issued restraining him from continuing legal proceedings in Country B (proceedings in the District Court City N Country B, commenced on or about 5 July 2019) against the Applicant Wife, Ms Malaka, in which he seeks orders with respect to the following properties:

   (a)E Street, Suburb F, New South Wales, Australia (Folio Identifier …)

   (b)G Street, Suburb H, New South Wales, Australia (Folio Identifier …)

   (c)J Street #..., Suburb I, Country C (Folio Identifier …)

   (d)P Street, Suburb Q, City O, Country D

   4.Pursuant to s 34 or s 114(3) of the Family Law Act 1975 (Cth) or by virtue of the Family Court of Australia’s implied powers, that the Respondent Husband, Mr Lasso (also known as Mr …), be restrained and an injunction issued restraining him from commencing any other legal proceedings in any jurisdiction other than the Commonwealth of Australia which has the intention of defeating any anticipated order in the present proceedings SYC5913/2017, or is likely to defeat such order irrespective of intention, with respect to the adjustment of property interests or spousal maintenance.

   5.That the Respondent Husband pay to the Wife her taxed costs of and incidental to this application.

2. By his Response to an Application in a Case the husband seeks:

   1.The Court not exercise its discretion to grant an injunction refraining [sic] the respondent from continuing legal proceedings in Country B.

   2.The Court not exercise its discretion to grant an injunction refraining [sic] the respondent from commencing or continuing legal proceedings in any other jurisdiction other than the Commonwealth of Australia.

   3.That the application in a case be dismissed with costs for the respondent.

   4.The Applicant bears the costs of and incidental to this application.

Written Evidence

1. The wife relies on:

   Affidavit of the wife sworn on 20 August 2019 together with exhibits;

   Affidavit of the wife sworn on 24 January 2019;

   Affidavit of the wife sworn on 20 August 2019 together with exhibits.

2. The husband relies on:

   Affidavit of the husband sworn on 4 September 2019.

Short History

1. The wife is 51 years of age.  The husband is 56 years of age.  They were married and commenced to live together in 1991.  They migrated to Australia from Country B in 2001.  The parties separated on or about 30 September 2016.  The parties have three children:

   Mr R who is 24 years of age;

   Mr S who is 22 years of age; and

   X who was born in 2002 and is 17 years of age.

2. The wife commenced proceedings for property settlement when she filed an Initiating Application in the Federal Circuit Court of Australia on 9 September 2017.

Background Facts

1. The parties were married and commenced to live together in Country B in 1991.

2. It is the wife’s evidence that the parties bought five properties in Country B.  The parties lived in one and rented out the rest.

3. The wife worked in the husband’s computer business but was not paid a separate wage.

4. The wife ceased working in the business before the birth of Mr R, which occurred in 1995.

5. Mr S was born in 1997.

6. The husband’s father died in 2000.  I could not find any reference to that fact in the evidence before the Court but was told it by the husband’s counsel in response to my question.  The husband is the holder of inheritance rights and authorities of his father’s estate for the beneficiaries of that estate.

7. The parties migrated to Australia in August 2001.

8. It is the wife’s evidence that after moving to Australia the husband told her that he had sold the five properties in Country B.

9. In August 2001 the parties bought vacant land at Suburb T in the State of New South Wales for $116,000.  They built a home on the land.  They sold the Suburb T property for $357,500 in February 2007.  In January 2007 the parties bought a property at E Street, Suburb F, New South Wales for $473,500.

10. On 16 January 2009 the husband bought a property at Suburb V, New South Wales, in his sole name for $540,000.

11. In May 2009 the husband bought a property at G Street, Suburb H, New South Wales in his sole name for $603,000.

12. The husband sold the Suburb V property in around August 2013 for $790,000.

13. In or around October 2013 the husband signed a contract to purchase an off the plan apartment number FF Street, Suburb M, Victoria for the price of $366,658.

14. In December 2013 the husband bought a property at W Street, Suburb Y, Queensland for $287,900.

15. In or around 10 April 2015 the parties entered into contracts to purchase off the plan, apartments numbered 1 and 2, Z Street, City AA for the price of $482,160 and $483,140, respectively.

16. Property settlement proceedings were commenced by the wife on 9 September 2017 in the Federal Circuit Court of Australia.

17. On 8 November 2017 the husband sold the property at Suburb Y, Queensland for $480,005.10. 

18. On 28 December 2017 the husband’s solicitor advised the agent for the City AA high rise building sale that the husband would not proceed with the purchase and sought that the contract be rescinded.  On 23 January 2018 the agent advised the parties that the owners were not prepared to release the parties from the contracts.

19. On 5 February 2018 the husband filed an Amended Response seeking that the Suburb F property be “transferred to my three children as tenants in common”.  It necessarily follows that the husband contends that the Suburb F property is matrimonial property, owned by the husband and wife.

20. On 20 September 2018 orders were made in terms agreed between the parties as follows:

    1.That within eight (8) weeks of these Orders, the Respondent deliver a copy or produce for inspection, to the Applicant, the following documents:-

    a.A copy of statements for the last 36 Months for all bank accounts in which the Respondent has an interest and which the Respondent has not yet provided to the Applicant including:

    i.Any and all accounts held with BB BANK in the last thirty-six (36) months;

    ii.Any and all accounts held with CC BANK in the last thirty-six (36) months;

    iii.Any and all accounts held with DD Bank and EE Bank in the last thirty-six (36) months;

    iv.Any and all accounts held with any other bank, whether in Australia or overseas, not yet disclosed in these proceedings in the last thirty-six (36) months;

    v.Or confirmation from the bank that no further accounts exist.

    b.A copy of statements from OO Business in the last thirty-six (36) months.

    c.A copy of rental receipts and records for the last thirty-six (36) months for the property situate at J Street, Suburb I, Country C and more particularly described as Lot … in Volume … Folio … (“the Country C property”).

    d.A copy of statements for the last thirty-six (36) months for the bank account in which rental income for the Country C property has been and is currently received.

    e.In regards to the respondent’s role as executor of the estate of his deceased father Mr L:

    i records relating to the administration and distribution of Mr L’s estate including inventory, accounts, bank statements and any other wills.

    f.A copy of bank transaction transfers, histories or statements evidencing the receipt of monies and to what these monies were applied, by the respondent from the respondent’s brother Mr K in the sum of AUS$446894.

    g.A copy of bank transaction transfers, histories or statements evidencing the receipt of monies and to what these monies were applied, by the respondent from the GG Business Account in the approximate sum of AUS$400,000.

    h.A copy of receipts and records from 1 January 2009 until the current date evidencing goods sold or services provided to, or monies received for whatsoever reason from, the businesses is operated at the following premises:

    i.HH Street, City N;

    ii.JJ Street Property;

    iii.Unit 1, KK Shopping Centre;

    iv.Unit 2, KK Shopping Centre;

    v.LL Property;

    vi.Unit 3, KK Shopping Centre;

    vii.MM Property

    viii.Unit 3, KK Shopping Centre;

    ix.Unit 1, NN Property

    x.Unit 2, NN Property;

    xi.Unit 5, KK Shopping Centre.

    2.A copy of bank transaction histories evidencing what the US $211,000 transferred from the parties’ joint BB BANK account (number 143 – 486710 – 221) in February 2017 has been applied to or transferred to.

    3.The Respondent agrees not to deal with any real property overseas or in Australia.

    4.The Respondent agrees to provide market appraisals for any and all overseas properties for which he may have a proprietary interest including the Country C, Country D and Country B properties as follows:

    a.J Street, Suburb I;

    b.P Street, Suburb Q, Country D;

    c.PP Street, City N, Country B.

    5.The Respondent agrees to retain rental income received from 23 August 2018 from the Country C in an Australian bank account and not deal with, transfer or otherwise authorise a transfer of same.

    6.The Respondent agrees to provide the applicant with a copy of any correspondence between the Respondent and the agent in respect of the rental income of the Country C property including in respect of transfer of rental income to another bank account. 

    Notation:

    A.The Respondent agrees to resolve the matter on the outstanding contracts for sale for units 1 and 2, Z Street, City AA, Queensland (“the City AA units”) through a roundtable discussion with the Applicant with a view to minimising losses to the relationship property pool. 

21. At some point the husband was advised that the developer of the Suburb M property could not complete the construction.

22. On 15 May 2019 the wife filed an Application in a Case seeking that the husband be restrained from leaving Australia until the conclusion of the property proceedings in this Court and that he surrender his Country B passport to the Registrar pending further order.  On 20 May 2019, for reasons given that day, the wife’s application was dismissed.

23. On 5 July 2019 proceedings were commenced in the Central City N District Court by six plaintiffs, including the husband, classified as “Inheritance/Will” proceedings, in respect of the four properties described in the wife’s Application in a Case.  It appears that the plaintiffs seek orders declaring that the four properties represent their inheritance from Mr L (the husband’s late father) and that one of the plaintiffs replace the husband as the holder of inheritance rights and authorities for the beneficiaries of that estate.

24. On 6 September 2019 the following orders were made:

    1.The proceedings for hearing on the issue of an antisuit injunction in relation to the husband and proceedings in Country B, hearing estimated half a day, is listed on 2 October 2019.

    2.Any further material on which the wife seeks to rely be filed and served within 14 days.

    3.Without leave neither party is to rely on any other affidavits that have not already been filed.

    4.Not later than seven days before the hearing date the parties provide to each other and the associate to Justice Loughnan a case outline document setting out the orders sought, the documents relied on and a summary of the arguments to be made in relation to the relief sought.

    5.In the event that either party becomes aware of any matter that would prevent the hearing commencing and concluding on that day that party is to forthwith restore the matter to the list on short notice.

Relevant Law

1. The wife seeks an anti-suit injunction whereby the husband would be restrained from continuing proceedings in Country B in relation to the property of the parties.  The wife also seeks an anti-suit injunction whereby the husband would be restrained from commencing proceedings in relation to the property of the parties.  The husband opposes the making of those orders. 

2. It is not disputed that there is power to grant injunctions of the type sought by the wife.

3. Injunctions are granted where it is proper to do so.  Here the ultimate criteria involve the interests of justice.

4. An anti-suit injunction will be granted where similar proceedings are before this Court and another court, in this instance a foreign court and where the continuation of both proceedings would be vexatious in the sense described in Voth v Manildra Flour Mills Pty Ltd and Anor(1990) 171 CLR 538 (“Voth”).

5. In Lan & Hao(No. 2) (2017) FLC 93-795 the Full Court of this Court quoted the decision of the majority in Henry v Henry (1996) 185 CLR 571 wherein the terms of “vexatious or oppressive” in the context of Voth were discussed as follows:

   ……….

   And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.

6. In cases where the issues at hand were deemed to not be identical, the Full Court adopted the approach in CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 as follows:

   In cases such as the present, where different issues are involved in the local and foreign proceedings, albeit that the different proceedings arise out of the same sub-stratum of fact, the question is not whether the Australian court is a clearly inappropriate forum for the litigation of the issues involved in the Australian proceedings. Rather, the question must be whether, having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense of those terms, namely, that they are “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging”.[1]

   [1]Voth v Manildra Flour Mills Pty Ltd and Anor(1990) 171 CLR 538 at [81].

7. The Full Court set out that the path to be taken by the trial judge was[2]:

   ….to consider the nature of the proceedings in [the overseas jurisdiction] to determine whether they raised the same or a different controversy, whether or not there was something to be gained in them, and whether there was complete relief available in Australia.

   Ordinarily, if this consideration leads to the finding that it is vexatious and oppressive for the two proceedings to continue in parallel, in the sense that they would be productive of serious and unjustified trouble and harassment, or seriously burdensome, prejudicial or damaging, then the Court must consider the course to be taken in relation to these proceedings.

   [2]Lan & Hao(No. 2) (2017) FLC 93-795 at [45]-[46].

1. Although the husband opposes the injunctions sought by the wife, he does not seek a stay in respect of the proceedings in this Court.  Had he sought such a stay, that application should be determined first, and by reference to whether or not, Australia is a clearly inappropriate forum for the proceeding on foot.  That consideration is not required here.

Discussion

1. The wife has submitted that she will not be able to properly participate in the Country B proceedings in any meaningful way.

2. Although there are common features of the Country B and Australian proceedings, they cannot be said to be similar proceedings.  They involve the husband and the wife and the ownership of four properties but that is the extent of the similarities.  Otherwise the proceedings involve some different parties and the heads of jurisdiction are different.  The Country B proceedings do not seek to litigate the same controversy that is the subject of proceedings in this Court and accordingly, cannot be said to be prima facie vexatious or oppressive in the Voth sense.

3. As to whether there is anything to be gained by the overseas proceedings and whether complete relief is available in Australia; the proceedings in Country B apparently seek to clarify disputes arising out of a deceased estate as opposed to a dispute arising from the breakdown of a marital relationship and thus there is something to be gained in the Country B proceedings which could not be addressed in this Court.  Complete relief of the dispute as between husband and wife can be found in the proceedings before this Court, but the Country B controversy cannot be properly resolved through these family law proceedings.  Therefore it cannot be said that complete relief of all of the disputes is offered through either set of proceedings and accordingly, there is no basis for interfering in the Country B proceedings.

4. In any event, it appears that it would be futile to restrain the husband in respect of the Country B proceedings.  He is but one of a number of plaintiffs in those proceedings.  The anti-suit injunction sought by the wife, if granted, would at most restrain only the husband in personam but could have no effect on the proceedings themselves.

5. Furthermore, there is no provision under the Family Law Act 1975 (Cth) for this Court to recognise orders with respect to property that are made by a court in Country B, nor is Country B party to a treaty or similar arrangement wherein reciprocal recognition of orders is in place. It is submitted (on behalf of the husband) and conceded (on behalf of the wife) that a declaration from the City N District Court is likely to have no effect on the proceedings in this Court, which in my view, highlights the futility of granting the injunction in the terms sought by the wife.

6. I do, however, note that the wife is concerned about the effect of a declaration from a Country B court on the properties in Country C and Country D.  It is submitted on her behalf that Country C is heavily influenced by English law and that a foreign judgment in rem (including a declaration of title or possession of a thing) will be recognised in Country C if the subject property was, at the time of the proceedings, in the jurisdiction of the foreign court.  It is further contended that there is a legal mechanism in place in Country D for the recognition of overseas judgments, though it is conceded that the outcome of that process is not certain.  

7. Without seeking to be disrespectful to the author of the articles submitted in the wife’s case, they cannot be substituted for probative expert evidence about the contentions raised in the wife’s case. 

8. While I do not find that the above factors would result in the proceedings being “productive of serious and unjustified trouble and harassment” or “seriously and unfairly burdensome, prejudicial or damaging” to the wife, I accept that she faces some difficulty in participating in the Country B proceedings and acknowledge the uncertainty of the effect on the properties in Country C and Country D if orders are made by the Country B court.  Nevertheless, the application will be dismissed.

9. As to the injunction sought by the wife to prevent the husband from commencing or continuing any further proceedings, the background facts give rise to some concerns.  Two years after the commencement of Australian proceedings between husband and wife about their property, without prior notice to her, proceedings have been commenced against the wife in Country B by the husband and his siblings about the interest the husband holds in four properties, allegedly as part of the deceased estate of the husband’s father, who died about 19 years ago.

10. The facts beg more questions than they address.  Putting aside the apparent lack of action on the part of the husband to administer his father’s estate, he would seem to be seeking inconsistent orders in the two sets of proceedings.  In the Country B proceedings an order is sought that the Suburb F property be taken out of the name of the husband and placed in the name of his sibling.  In these proceedings the husband seeks that the Suburb F property be transferred to the children of the husband and the wife.  The wife says that she was given no prior notice of the Country B proceedings and discovered them through a search conducted by her Australian solicitor.  No explanation is provided for that lack of notice.

11. Those circumstances give rise to a fear that the husband may take action in another jurisdiction to defeat the wife’s claims.  I will grant the injunction sought, at least to provide the wife with appropriate notice in order that any resulting issues can be agitated before this Court, before the problem arises.

Conclusion

1. The application for an anti-suit injunction in respect of the Country B proceedings will be dismissed.  As to the second order sought by the wife, I will make an order, at least in the interim, restraining the husband from commencing proceedings that would affect the rights of the wife to the subject properties without providing at least four months’ prior notice to the wife’s solicitors.  This will allow for the wife to be given notice of the husband’s intention to commence proceedings that could affect her rights to those properties.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 25 October 2019.

Associate:

Date:  25 October 2019