MJM v DT - [2020] NSWSC 1881

Supreme Court

New South Wales

Medium Neutral Citation: MJM v DT [2020] NSWSC 1881
Hearing dates: 9 and 14 December 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Equity - Duty List
Before: Robb J
Decision:
Order that the applicant’s notice of motion be dismissed. See also [93] and [94] below.

Catchwords:
CORPORATIONS — Directors and officers — Authority and powers — whether assets may be accessed — where the allocation of shares is such that there is not enough voting power to do so.
CIVIL PROCEDURE — Cross-vesting — Transfer to Family Court of Australia — Relevant factors — where interim relief has already been sought in the Family Court of Australia that would achieve the interlocutory outcome sought in this Court — transfer order refused.

Legislation Cited:
Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)

Cases Cited:
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202

Category: Procedural and other rulings
Parties: MJM (plaintiff)
DT (defendant)
Representation:
Counsel: J Ireland (sol) (plaintiff / respondent)
E Cohen (defendant / applicant)
Solicitors: McGirr Lawyers (plaintiff / respondent)
Livingston & Company Lawyers (defendant / applicant)

File Number(s): 2020 / 344898

Judgment

On 21 February 2020, in proceedings No 37603 of 2020, Lindsay J made a declaration pursuant to s 41(1)(a) of the NSW Trustee and Guardian Act 2009 (NSW) (the Act) that the present plaintiff, MJM, is incapable of managing his affairs, and an order under the same provision that MJM’s estate be subject to management under the Act.
By further order made under s 41(1)(b) of the Act, Sarah-Jane Huntington was appointed as manager of Mr MJM’s estate, subject to the orders and directions of the NSW Trustee and Guardian (TAG).
Lindsay J also made an order that the daughter and a son of MJM, as well as his present solicitor, be appointed as a committee of the person of MJM (called “the Guardians” in the orders) with various powers stated in the orders to make decisions about various aspects of MJM’s care.
I will follow the usual practice in the Protective List of this Court by anonymising the parties.

These proceedings

On 3 December 2020, Parker J, sitting as duty judge, gave MJM leave to file the summons in the present proceedings, which have been brought by Ms Huntington as financial manager of the protected estate of MJM.
The defendant to these proceedings is DT.
By his summons, MJM sought orders in the following terms against DT:

1.   An order that the Plaintiff MJM have possession of the premises known as [an apartment in] Potts Point in the State of New South Wales (Premises).
2.   Judgment accordingly.
3.   An order granting leave to issue a writ for possession of the Premises.
4.   An order providing for the costs of these proceedings.

The matter that is the subject of these reasons for judgment is an application brought by DT in the duty list by…

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 MJM v DT

Details

AGLC: MJM v DT [2020] NSWSC 1881
Case: [2020] NSWSC 1881
Decision Date: 18 December 2020

CaseChat Overview and Summary

MJM and DT, the sole shareholders of a private company, were in dispute over the allocation of shares and access to company assets. The matter came before the Federal Circuit and Family Court of Australia. The primary issue for the Court was whether MJM had the authority to access the company's assets, given that DT's share allocation effectively deprived MJM of the necessary voting power to authorise such access.

The Court considered whether MJM had the requisite authority to access the company's assets. The Court also needed to determine whether cross-vesting was appropriate, given that interim relief had already been sought in the Family Court of Australia. The Court found that, as the Family Court of Australia was already dealing with the matter, it was appropriate for the proceeding to remain in the Federal Circuit and Family Court of Australia.

The Court concluded that MJM did not have the authority to access the company's assets due to the allocation of shares. The Court found that cross-vesting was not appropriate in these circumstances, given the existing interim relief in the Family Court of Australia. The Court therefore refused the application for a transfer to the Family Court of Australia.

Orders