FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morcos & Lindon (No 3) [2025] FedCFamC1F 183
File number(s): MLC 209 of 2020 Judgment of: BENNETT J Date of judgment: 21 March 2025 Catchwords: FAMILY LAW – PROPERTY –substitution of parties – joinder of parties – where second respondent is the Executor of the husband’s mother’s Estate – where the Executor was the husband – where following final judgment the husband resigned as Trustee and appointed two beneficiaries in his place – where the Trustees seek to be joined in the name of Trustee or substituted as second respondent – where clarified in outline of case that trustees no longer seek substitution and seek to be joined – where application not pressed at hearing as relief sought is duplicitous of husband’s relief sought – where application should be an Application in an Appeal – application dismissed, wife’s costs reserved.
FAMILY LAW – PROPERTY – application for stay pending appeal – where trustee has filed a Notice of Appeal – application for stay of final orders sought by husband and trustees – where trustees does not press stay application – where husband presses stay application -where stay granted.
FAMILY LAW – PROPERTY – slip rule application – where wife and husband seek different relief pursuant to the slip rule – where some orders sought are not slip rule matters – where trial judge is functus officio with respect to non-slip rule matters including making adjustments for CGT where there was no evidence of CGT before the Court – where order provided for non-existent caveat to be removed and amended to refer to correct caveat pursuant to slip rule – where mechanism for distribution of property sought by wife amended pursuant to slip rule.
Legislation: Family Law Act1975 (Cth)
Federal Circuit and Family Court of Australia Rules 2021 (Cth)
Cases cited: Gould v Vaggelas [1985] 157 CLR 215
Harrell & Nesland [2020] FamCAFC 21
Jackson & Balen [2009] FamCAFC 131
Morcos & Lindon (No 2) [2025] FedCFamC1F 7
Division: Division 1 First Instance Number of paragraphs: 85 Date of hearing: 14 February 2025 Place: Melbourne Counsel for the Applicant: Litigant in Person Counsel for the First Respondent: Mr Wells SC with Ms James Solicitor for the First Respondent: Zeno Lawyers Counsel for the Second Respondent: The Applicant appearing on behalf of the Executor of the Estate Counsel for the Proposed Third Respondent: Mr North SC Solicitor for the Proposed Third Respondent: KHQ Lawyers ORDERS
MLC 209 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MORCOS
Applicant
AND: MS LINDON
First Respondent
EXECUTOR OF THE ESTATE OF THE LATE MS B
Second Respondent
TRUSTEES OF THE ESTATE OF THE LATE MS B
Proposed Third Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
21 MARCH 2025
THE COURT ORDERS THAT:
1.The application of the Trustees of the Estate of the Late Ms B dated 12 February 2025…
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- AGLC
- Morcos & Lindon (No 3) [2025] FedCFamC1F 183
- Case
- [2025] FedCFamC1F 183
- Decision Date
CaseChat Overview and Summary
The court first considered the application by the Trustees to be substituted or joined in place of the Executor, who was also the husband, following his resignation and appointment of new beneficiaries. The court clarified that the Trustees were seeking to be joined rather than substituted. However, the application was not pursued as it was redundant to the husband's relief. The court found that the Trustees' application should have been framed as an Application in an Appeal, and thus dismissed it. Regarding the stay pending appeal, while the Trustees did not pursue the stay, the husband did, and the court granted the stay on specific paragraphs of the final orders.
In relation to the slip rule application, the court examined the differing reliefs sought by the wife and husband and determined that some orders were not appropriate for the slip rule process. The trial judge was deemed functus officio concerning non-slip rule matters, such as making adjustments for capital gains tax (CGT) where no CGT evidence was presented before the court. The court also amended orders to refer to the correct caveat and adjusted the mechanism for property distribution as per the slip rule. The court ultimately dismissed the Trustees' application for substitution or joinder, granted a stay pending appeal on specific paragraphs, amended certain orders, and reserved the wife's costs for later determination.
The court ordered that the application by the Trustees seeking substitution or joinder be dismissed. Additionally, the court stayed certain paragraphs of the final orders pending the final appeal. The orders made on 20 January 2025 were amended in accordance with the court's reasons, and the wife's costs for responding to the Trustees' applications were reserved until after the determination of the appeal. These orders were subject to review or variation as per the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Orders
Orders of the court
MLC 209 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR MORCOS
Applicant
AND:
MS LINDON
First Respondent
EXECUTOR OF THE ESTATE OF THE LATE MS B
Second Respondent
TRUSTEES OF THE ESTATE OF THE LATE MS B
Proposed Third Respondent
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
21 MARCH 2025
THE COURT ORDERS THAT:
1. The application of the Trustees of the Estate of the Late Ms B dated 12 February 2025 seeking substitution or joinder is dismissed.
2. Paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of my orders of 20 January 2025 in this matter are stayed pending final appeal.
3. The Orders made on 20 January 2025 be amended pursuant to 10.13 of the Federal Circuit and Family Court Rules 2021, in accordance with my reasons set out in paragraphs [47] to [51] and [61] to [67] and be reissued to the parties and practitioners.
4. The wife’s costs of answering the applications of the Trustees, fixed in the sum of $8,700, are reserved until after the determination of the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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