MEETA & SIBI (NO, 2)

[2012] FamCA 589

FAMILY COURT OF AUSTRALIA

MEETA & SIBI (NO, 2) [2012] FamCA 589

FAMILY LAW – PRACTICE & PROCEDURE - Joinder

Family Law Act 1975 (Cth)

APPLICANT: Ms Meeta

RESPONDENT: Mr Sibi

FILE NUMBER: MLC 9309 of 2012

DATE DELIVERED: 12 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 12 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hannan

SOLICITOR FOR THE APPLICANT: Aughtersons

THE RESPONDENT: In person

Orders

1. That the application by the applicant filed 14 October 2011 is adjourned for further final hearing at 10.00 am on 3 August 2012.

2. That BC Pty Ltd and BI Pty Ltd together with H Sibi be joined as parties to these proceedings.

3. That forthwith the solicitor for the applicant serve upon the two companies and H Sibi a copy of this order and a copy of each document including any minute of proposed final orders relied upon and sought by the applicant.

4. That by 4.00 pm on 25 July 2012, the said companies and H Sibi file and serve a reply and any affidavit upon which they intend to rely and failing compliance with these orders by either or all of the said respondents, the applicant may proceed on an undefended basis against that entity of person who has failed to so comply.

5. That by 4.00 pm on 18 July 2012, the first respondent Mr Sibi comply with paragraph 2 and 3 of the orders made on 6 June 2012.

6. That the applicant’s costs of this day and of 11 July 2012 be further reserved to be determined on the return date.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That as soon as possible a copy of this order be served by ordinary post to the first respondent Mr Sibi.

3. That the reasons be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9309 of 2011

Ms Meeta

Applicant

And

Mr Sibi

Respondent

REASONS FOR JUDGMENT

1. This long running saga is a property dispute arising out of a de facto relationship between Mr Sibi, as the first respondent and Ms Meeta as the applicant.  Ms Meeta commenced the proceedings in October 2011 and the Court file shows there have been numerous attendances by her, no doubt running up significant costs, endeavouring to resolve the matter.  As I have previously said, the first respondent, Mr Sibi, comes in and out of the proceedings at will and ironically, that is exactly what is happening at the moment.

2. The matter was listed before me this morning and although I had another commitment that took some time, we began the proceedings around 11.00 am and, after considerable discussion, stopped at 1 o’clock for a lunch break.  It is now 2.35 pm, the Court having re-convened at 2.25 pm.  The delay from 2.15 pm to 2.25 pm was because Mr Sibi had not returned and as I said at 2.35 pm, he is still not here and there is no explanation for his absence.  Mr Hannan of counsel, on behalf of the applicant, has conceded that the only sensible course is for some orders to be made to join a company, which is the owner of property along with the husband’s brother, H Sibi.

3. He says that they should be joined and he does so reluctantly because the first respondent, Mr Sibi, has not been at all cooperative in respect of the provision of documents that might have assisted in the resolution of the matter. 

4. Rule 6.02 of the Family Law 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 that case, must be included as a party to the case. As a result of discussions this morning involving both parties, it is abundantly clear that this matter will not be able to be sorted out on a permanent basis without, at least, the joinder of BC Pty Ltd because it is the registered proprietor of two of the properties in the pool of assets.

5. I say “seem to be” because Mr Sibi, the first respondent who has not been represented of late, certainly indicated that it was his view that half of the equity in the real properties belongs to him and that the other half belongs to his brother.  Whilst that may be the layman’s view of things, it is certainly not the legal position.  The title, a copy which has been produced by the applicant, clearly shows that the registered proprietor is BC Pty Ltd and a further ASIC search shows that the directors and secretaries of BC Pty Ltd are the two brothers, and more importantly, the two brothers are shareholders, each, having six shares.

6. Each is shown on the ASIC shares certificate as holding those shares beneficially; they do not hold them for any trust, notwithstanding Mr Sibi seemed to have some view to the contrary this morning.  In the circumstances, there seems little choice but to have the company as a party but it is also sensible to have H Sibi as a party, having regard to the rule that I have just referred to because it may be that he believes he is a half owner of those properties, notwithstanding the registered proprietor is the company.

7. Out of an abundance of caution, therefore, I propose to join, at the request of the applicant, both the company and H Sibi and to order that they provide a response and an affidavit, upon which they might intend to rely, by no later than 4 pm on 25 July. 

8. Because the controversial evidence arises from an affidavit of the wife’s adversarial expert, Mr W, who has previously given oral evidence and been cross-examined, mostly by me, I think it is important that he have the necessary documents to enable him to complete his expert task.

9. With the joinder of the company and H Sibi, it occurs to me that they will have access to the same documents that the applicant seems to have difficulty getting from Mr Sibi.  It is, therefore, my intention simply to join them but to leave the applicant the responsibility of pursuing the documents from those new parties. 

10. I propose to also order, very reluctantly, that the first respondent, Mr Sibi, comply with paragraphs 2 and 3 of the orders I made on 6 June 2012.  He has failed to comply with those orders in the past but having regard to the discussions this morning, it seems to me sensible that they should be completed.

11. The applicant has also incurred costs for yesterday and today, I propose to simply reserve those costs to the determination on the next return date, which will be 3 August.  These reasons will be transcribed and a copy will be sent to the parties in due course.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 July 2012.

Associate: 

Date:  26 July 2012