McCormack v Newburg Enterprises Pty Ltd

FEDERAL COURT OF AUSTRALIA

McCormack v Newburg Enterprises Pty Ltd [2002] FCA 457

Superannuation Industry (Supervision) Act 1993 (Cth) ss 147, 148, 313, 314
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 3(2), 4(3), 5(4)

Re Sabri:  ex parte Sabri v Brien (1995) 60 FCR 131 cited

Carter v Vos [1999] FCA 1703 cited

Official Trustee in Bankruptcy v Higgins [2000] FCA 1850 cited

CHRISTINE ANNE MCCORMACK v NEWBURG ENTERPRISES PTY LTD (ACN 056 497 860) and FREDERICK CHRISTOPHER PATRICK MCCORMACK
W536 of 2001

LEE J
12 APRIL 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W536 OF 2001

BETWEEN:

CHRISTINE ANNE MCCORMACK
APPLICANT

AND:

NEWBURG ENTERPRISES PTY LTD (ACN 056 497 860)
FIRST RESPONDENT

FREDERICK CHRISTOPHER PATRICK MCCORMACK
SECOND RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

12 APRIL 2002

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

The proceeding be transferred to the State Family Court of Western Australia.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W536 OF 2001

BETWEEN:

CHRISTINE ANNE MCCORMACK
APPLICANT

AND:

NEWBURG ENTERPRISES PTY LTD (ACN 056 497 860)
FIRST RESPONDENT

FREDERICK CHRISTOPHER PATRICK MCCORMACK
SECOND RESPONDENT

JUDGE:	LEE J
DATE:	12 APRIL 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

1. In this matter the applicant (“the wife”), in proceedings commenced in this Court on 29 November 2001, seeks a declaration that the first respondent (“the Trustee”) and the second respondent (“the husband”) contravened s 147 of the Superannuation Industry (Supervision) Act 1993 (Cth) (“the Act”) and an order under s 148 of the Act that the Trustee and the husband pay damages for the loss or damage suffered by the wife by reason of the contravention. Injunctive orders are also sought pursuant to ss 313 and 314 of the Act. The proceedings relate to the management of the Western Airfreight Superannuation Fund (“the Fund”).

2. The wife and husband are parties to a proceeding in the Family Court of Western Australia (“the State Family Court”) commenced on 9 November 1998.  On 1 June 2001 the Full Court of the Family Court of Australia made certain orders relating to the rights in property of the wife and husband.  On 31 October 2001 the wife sought further orders in the State Family Court in respect of property of the marriage, which inter alia, included the following:

   (a)The husband provide the wife with valuations of all assets in the Fund as at 30 June 2000 and 30 June 2001 within 28 days;

   (b)the husband provide the wife with details of the calculations of her superannuation entitlement under the Fund within 14 days of the valuations being provided to the wife.

3. When the proceeding in this Court came on for directions the parties were asked to provide submissions on whether the proceeding should be transferred to the State Family Court. The applicant submits that an order should be made under s 5 of the Jurisdiction of Courts…