Moreton and Moreton and Anor

[2019] FamCA 945

FAMILY COURT OF AUSTRALIA

MORETON & MORETON AND ANOR [2019] FamCA 945

FAMILY LAW – PRACTICE AND PROCEDURE – Application to transfer Supreme Court proceedings to the Family Court – Cross-Vesting legislation

Family Law Act 1975 (Cth) s, 75(2), 79, 90AA, 90AE
Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) s, 5(4)

Acton Engineering Proprietary Ltd v Campbell & Ors [1991] FCA 610
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Bankinvest AG v Seabrook (1998) 14 NSWLR 711
Chapman & Jansen (1990) FLC-92-139
James Hardie & Co Pty Ltd v Barry (2000) NSWSC 353
Kenda & Johnson (1992) 107 FLR 19
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Philip Morris Inc v Brown Male Fashions Pty Ltd (1981) 148 CLR 457
Valceskiv Valceski [2007] NSWSC 440
Warby & Warby [2001] FamCA 1469
Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143

APPLICANT: Ms Moreton

FIRST RESPONDENT: Mr Moreton

SECOND RESPONDENT: B Pty Ltd

FILE NUMBER: SYC 5424 of 2019

DATE DELIVERED: 12 December 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 19 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd SC

SOLICITOR FOR THE APPLICANT: Edwards Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Self-represented Litigant

COUNSEL FOR THE SECOND RESPONDENT: Mr Leopold SC

Orders

1. The wife’s Application in a Case filed 24 September 2019 is dismissed.

2. The parties’ final property settlement proceedings are stayed pending finalisation of Supreme Court proceedings commenced by B Pty Ltd against the husband.

3. In the event all parties agree to transfer the proceedings to the Supreme Court Consent Orders will be made in Chambers.

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 Moreton & Moreton 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: SYC 5424 of 2019

Ms Moreton

Applicant

And

Mr Moreton

First Respondent

And

B Pty Ltd

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the wife, consented to by the husband, to have proceedings commenced against the husband by B Pty Ltd in the Supreme Court of New South Wales in January 2019, to which the wife was joined in March 2019, transferred to the Family Court to be heard with family law proceedings commenced by the wife on 16 August 2019.

2. B Pty Ltd does not consent to the transfer and seeks that the proceedings in the Family Court be either stayed until the Supreme Court proceedings are finalised, or that there be a partial stay in that the respondent accepts that the wife by her application seeks to have the husband removed from the former matrimonial home and that she ought not be precluded from bringing such applications whilst the Supreme Court proceedings are ongoing.

3. Mr Lloyd SC of Counsel represented the wife, the husband was self-represented and Mr Leopold SC represented B Pty Ltd.

4. The material read:

   a)For the applicant wife:

   i)Initiating Application filed 16 August 2019 together with a Financial Statement;

   ii)Application in a Case and Affidavit filed 24 September 2019;

   iii)Affidavit filed 20 September 2019; and

   iv)Case outline.

   b)For the respondent husband:

   i)Response to Application a Case filed 14 November 2019 together with a Financial Statement.

   c)For the second respondent, B Pty Ltd:

   i)Response to Application in a Case filed 1 November 2019;

   ii)Affidavit of Ms C together with a bundle of exhibits filed 1 November 2019; and

   iii)Case outline prepared by Counsel.

5. In addition, I was handed a copy of the amended statement of claim filed in the Supreme Court together with a document headed, “Explanatory memoranda dated 2002 to 2003” in relation to the Parliament’s intention regarding section 90AA and the following sections relating to the Family Court’s power to make orders binding on a third party when exercising power under section 79 of the Family Law Act 1975 (Cth).

6. It is important to fully set out the substantive orders sought by the wife at the hearing before me and contained in her application in a case filed 24 September 2019. They are as follows.

   That the second respondent B Pty Ltd forthwith pass all resolutions and do all acts and things as are necessary to stay the proceedings commenced by it in suit number …/… in the Supreme Court of New South Wales pending the resolution of any judgment or compromise of the proceedings in this Court.

   Upon the staying of the proceedings B Pty Ltd forthwith cause the proceedings commenced by it in the Supreme Court to be transferred to the Sydney registry the Family Court of Australia.

   That B Pty Ltd be joined as a party to these proceedings.

7. On 22 November 2019 I heard the wife’s application to make further submissions limited to matters that were not put to the Court on the last occasion or clarifying previous submissions made, which submissions were to be filed by 29 November 2019 and thereafter the husband and B Pty Ltd were to respond by 6 December 2019 and the husband’s submissions were so limited, as were the wife’s.

8. Over the objection of the representatives of B Pty Ltd I granted this leave and have now received those written submissions.

9. The husband’s written submissions do not assist me as they merely go to the substantive family law proceedings which are yet to be dealt with.

10. The wife’s written submissions fundamentally change the case that was put to me at the hearing of this matter on 19 November 2019.

11. At two places of the transcript at the hearing on 19 November 2019, pages 6 and 11, Mr Lloyd submitted that there was no application by the wife or any other person or entity to transfer the family law proceedings commenced by the wife on 16 August 2019 to the Supreme Court pursuant to section 5 of the Jurisdiction of Courts (Cross Vesting) Act 1987.

12. Although this is a course open to the Court, Mr Lloyd’s submissions were clear, at that time, the wife sought the proceedings commenced by B Pty Ltd in the Supreme Court be transferred to the Family Court and heard with the wife’s family law proceedings and no application to transfer was made by the wife despite the concession by B Pty Ltd there would be no opposition to the family law proceedings being transferred to the Supreme Court and joined with the proceedings by B Pty Ltd against the husband and wife.

13. The wife’s written submissions seek to change the orders that had been sought in the hearing before me on the basis of some oblique reference to my concerns regarding the specific wording of the orders then sought. The wife sought to amend her order to read as follows:

    1. That the court exercises accrued jurisdiction and join proceedings currently pending in the Supreme Court of New South Wales to be heard concurrently with these property settlement proceedings.

14. Further, at paragraph 18 states:

    In the alternative, this Court has power to enliven the provisions of s.5(4) of the Jurisdiction of Courts (Cross Vesting) Act 1987 referred to this Courts power to transfer the existing proceedings to the Supreme Court.

    Which position had been squarely resisted when raised by me at the hearing on 19 November.

15. At paragraph 21 states, in part:

    If the proceedings are transferred to the Supreme Court by order of the Family Court they are (subject to any order of the Court) to be assigned to the relevant division and list of the Supreme Court.

16. At paragraph 22 states, in part:

    Counsel for the second respondent has, in fairness, indicated there would be no opposition to these current proceedings in the Family Court being “joined” to the Supreme Court proceedings.

17. In making these submissions on behalf of the wife Mr Lloyd SC implicitly and fundamentally changed the position taken before me on 19 November 2019 and these submissions fell well with outside the ambit of the leave I had granted to him to make further submissions.

18. However, I note the written submissions provided by the second respondent on 6 December 2019 provide as follows.

19. At paragraph 12 it is pointed out that the wife has abandoned in the supplementary submissions her initial relief sought and seeks, without leave, to amend the orders sought in her Initiating Application which it was submitted are orders that no court would have a power to make. I accept that submission.

20. At paragraph 14, the submissions turn correctly to the only relief this Court could grant which is to cross vest the Family Court proceedings to the Supreme Court to be joined with the proceedings in that court pursuant to my powers under section 5(4)(b)(i) of the Jurisdiction of Courts (Cross Vesting) Act 1987 a position the wife did not seek and argued against at the hearing on 19 November 2019.

21. Thirdly, it was submitted by the second respondent that if the Court was prepared to grant the wife leave to amend her application and seek to transfer the family law proceedings to the Supreme Court that it would be in the interests of justice to do so rather than leave the wife to make a separate application to that effect on another day and at paragraph 16 this course would not be opposed by them.

22. Thus, the outcome and orders I make will now be very much influenced by the position taken by the second respondent on the wife’s supplementary submissions and fundamentally changed application. I propose to deliver a judgment in relation to the matters that were submitted to me on 19 November 2019 and those parts of the wife’s written submissions that fell within the leave granted.

Relevant chronology

1. The husband and wife are aged 56 and 51 respectively.

2. In 1986 the parties commenced cohabitation.

3. In 1992 the parties marry.

4. The parties have four children Mr D aged 22, Mr E aged 20, X aged 16 and Y aged 13.

5. The parties purchased their property at Suburb F in about September 1998.

6. In addition, the husband owns properties at Suburb H in Queensland, G Street and J Street, a Motor Vehicle 1 worth $120,000, a home in Town M, worth $156,000 and has $350,000 in superannuation.

7. The parties assert they separated under the one roof in 2007 and have remained living at the same premises although in separate areas of the house since that time.

8. In January 2019 the husband is served with a Statement of Claim issued by B Pty Ltd seeking an amount of $2,098,607.50 from the husband which they allege he has fraudulently misappropriated from the company whilst working as a national sales manager and a declaration that he holds that sum on trust for B Pty Ltd together with any interest earned on that sum.

9. Freezing orders are made in the Supreme Court freezing the husband’s assets and his access to his multiple bank accounts and allowing the husband to pay up to $2,000 a week on his ordinary living expenses and $20,000 on reasonable legal expenses.

10. In March 2019 the wife is served with a summons joining her to the proceedings.

11. The wife pays the sum of $392,897.45 into Court on 26 March 2019, being the remainder of monies advanced to her by the husband in or about December 2018 in the sum of $400,000 or thereabouts.

12. There is no doubt that B Pty Ltd was then seeking orders against the wife in their initial summons being declarations that she held property and/or monies on trust for them.

13. On 28 May 2019 the second respondents file an amended Statement of Claim consequent upon the wife paying that money into Court, seeking only a declaration against the wife that if she holds any trust funds or interest on the trust funds those monies are held on trust for the plaintiff.

14. On 8 July 2019 the parties attend mediation in Supreme Court which is unsuccessful.

15. 19 September 2019 B Pty Ltd served its expert evidence in the Supreme Court proceedings in which it is asserted they can trace $405,000 having been stolen from the company and paid by the husband to his wife of which she has repaid $392,280 into Court.

16. On 16 August 2019 the wife commences family law proceedings seeking by way of final order at this stage that the husband transfer the Suburb F property to her, he vacate that property that the wife receive 100% of the husband’s superannuation.

17. The husband agrees his interest in the Suburb F property be transferred to the wife.

The Findings

1. The wife asserts that these proceedings came as a complete shock to her and she was completely unaware of what is now alleged to be her husband’s illegal activities in respect of his former employer. She believed that the money he provided to her in December 2018 came from a termination payment when he left his employment. It is clear on her evidence that the husband was the major breadwinner throughout the marriage, she was the parent and homemaker and has a limited income earning capacity.

2. It is correct that the wife took some five months to bring her application in this Court for property division and there is little in her Affidavit which sets out the reason for this delay. However, the delay is of small compass and I accept Mr Lloyd SC’s submissions that in these circumstances the wife needed to obtain legal advice in relation to not only her rights as a separated spouse under the Family Law Act 1975 (Cth) but also her defence to the Supreme Court proceedings when the full extent of the claim against the husband by B Pty Ltd was made known to her.

3. The effective orders for the transfer sought by the wife in her Application in a Case begin at order 3 and are as follows:

   3. That the second respondent B Pty Ltd Proprietary Limited, forthwith pass all resolutions and do all acts and things as are necessary to stay the proceedings commenced by it in suit number …/… in the Supreme Court of New South Wales pending resolution of any judgment or compromise of the proceedings in this Court.

   4. That upon staying of the proceedings as sought in order B Pty Ltd proprietary limited forthwith cause the proceedings commenced by it in suit number …/… in the Supreme Court of New South Wales to be transferred to the Sydney registry of the Family Court of Australia.

   6. That B Pty Ltd be joined as a party to these proceedings.

4. B Pty Ltd appeared in the proceedings and filed a Response and Affidavit in support as they have been named by the applicant in her application. They do not consent to be joined to the proceedings between the husband and wife in relation to their matrimonial dispute.

5. Only if I determine that the application sought by the wife is competent will I order B Pty Ltd be joined to these proceedings.

6. At the outset I raised my concern with Mr Lloyd SC as to the source of my power to make the orders sought in the wife’s Application in a Case. His assurances that I had the power to make the orders did not satisfy me at all.

7. I am concerned in relation to the orders the wife asks I make at many levels.

8. The first is B Pty Ltd is a publicly listed company which has a board of directors and whose governance I have assumed is controlled by that board of directors. There may be other issues in relation to the governance and the carrying out of the business of B Pty Ltd of which I am totally unaware. I have no knowledge of the board of B Pty Ltd, the individuals who make up that board or the respective powers obligations and duties of those individuals and with which individual or individuals the power to carry out the obligation set out in orders 3 and 4 of the wife’s Application in a Case would reside.

9. These would be basic matters I would need to be informed of before I considered whether I exercise my discretion to use the power I have under accrued jurisdiction to compel third parties to a marriage to comply with orders I am making pursuant to the exercise of my power under section 79 and having regard to section 90AE of the Family Law Act 1975 (Cth). I do not have these basic matters before me in any form whatsoever, let alone in a satisfactory form.

10. Secondly, and as submitted by B Pty Ltd, the consequence of the orders the wife asks the Court to make would act as an anti-suit injunction in relation to the Supreme Court proceedings as the wife asks B Pty Ltd, “to pass all resolutions and do all acts and things as are necessary to stay those proceedings.” To do so, as I see it, would offend the enshrined principle of Comity between courts and would be an inappropriate exercise of my discretion in the context of an integrated federal judicature of which this Court and the Supreme Court of New South Wales form a part for the following.

11. To that end I was referred to the decision of Wileypark Pty Ltd v AMP Ltd [2018] FCAFC 143 in which the Chief Justice of the Federal Court his Honour Justice Allsop said at paragraph 11:

    Comity between the Supreme Courts of the states and territories and the Federal Court in the concurrent exercise of federal jurisdiction is of the utmost importance. Indeed, to put it thus may be to suffer understatement. In an integrated federal adjudicator such comity is a constitutional assumption of the utmost practical and institutional importance.

12. His Honour goes on to say paragraph 13:

    The reality and practical significance of this Constitutional assumption is made clear in circumstances where a party seeks, or it is otherwise suggested, that one court in Australia would, or should, entertain an anti-suit injunction against proceedings in another court with the possible interference with the integrity of the processes of that other court, and so, of the integrated judicature itself. The undesirability of that course has a number of other unwarranted features which are unnecessary to canvass.

13. If I make the orders sought by the wife this is precisely the effect they will have, an anti-suit injunction. This reality is of itself sufficient for my refusal to exercise my discretion to make orders joining a third party to proceedings in a family law dispute, then enforce orders against that third party pursuant to the exercise of my power under section 79 and having regard to section 90AE of the Family Law Act 1975 (Cth).

14. This reality also demonstrates that the wife’s remedy is to seek an order in the Supreme Court for proceedings commenced by her in the Family Court to be transferred to the Supreme Court and heard with the proceedings against her husband and B Pty Ltd. Such an application would not offend the important principle of Comity between courts and would not operate as an anti-suit injunction as the wife who commenced the proceedings in the Family Court would be the one seeking to have proceedings removed to another court.

15. However, there are even more reasons why I will not exercise my discretion in this matter and have come to the conclusion that the wife’s application is incompetent.

16. B Pty Ltd submitted that now that the wife has paid the cash monies into Court that the husband paid her in December 2018 the claim against her is now ‘gone’ to use Mr Leopold’s words.

17. It is clear to me that the proceedings in the Supreme Court will be able to be dealt with to finality far earlier than a proceedings in the Family Court which can take up to 3 years from filing to be heard to finality. I see no basis for this matter to be expedited given the number of matters awaiting allocation of hearing dates and the issues involved in this matter a property settlement dispute. The evidence was that in the Supreme Court if the matter was ready for trial at the directions hearing on 2 December 2019 it would be allocated a date prior to June 2020. I take from that it is about six months from a directions hearing to when a matter can be listed for trial and that is not an advantage litigants in the Family Court enjoy.

1. I see little commonality of fact or substratum of same fact between the proceedings in the Supreme Court and the parties family law dispute. The outcome of proceedings in the Supreme Court may affect the property pool for division, however, other than that there is no commonality or common substratum of fact between the two causes of action. The Supreme Court proceedings relate to a claim for the return of monies wrongfully removed by an employee the husband. The Family Court proceedings relate to the division of property acquired by the parties during their marriage.

2. I accept the Supreme Court is seized of jurisdiction to entertain the totality of the proceedings and only if the Family Court exercises its accrued jurisdiction does it have jurisdiction to entertain the totality of the proceedings. I accept the submission of second respondent in their supplementary submissions that the proceedings have a relation or connection to each other.

3. In the decision of Philip Morris Inc v Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 34 his Honour the Chief Justice Garfield Barwick stated:

   It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter that jurisdiction extends to resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place attracted the federal jurisdiction. It extends in my opinion to the resolution of the whole matter between the parties…This exercise of this jurisdiction, which for want of a better term I shall call “accrued” jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter.

4. The decision of the Full Court of the Family Court in Warby & Warby [2001] FamCA 1469 (“Warby”) was a seminal decision in relation to the Family Court’s accrued jurisdiction to hear and determine matters which covered state law and of which a family law dispute was also a part.

5. Their Honours held at 79:

   We have formed the view that as a matter of law, the Family Court of Australia is not restricted to the determination of the family law claim or proceeding; it may exercise accrued jurisdiction to determine the non-federal aspects of adjustable controversy of which the family law claim or cause of action forms a part. The factual circumstances of the case will determine whether the jurisdiction arises and whether it is appropriate to exercise the jurisdiction.

6. The relevant principles which were called “indicia, factors or considerations” to a decision of whether or not a Court would exercise its accrued jurisdiction was set out by their Honours at paragraph 90 and are as follows:

   1. What the parties have done;

   2. The relationships between or among them;

   3. The laws which attach rights or liabilities to their conduct in relationships;

   4. Whether the claims are part of a single justiciable controversy and in determining the question whether the claims are “attached” and not “severable” or “disparate”; and

   5. Whether the claims are severable from the matrimonial cause and arise out of the common substratum of facts.

7. On the facts of this matter it is clear that claim by B Pty Ltd in the Supreme Court against the husband for stealing monies whilst their employee is severable from the matrimonial cause commenced by the wife and does not form part of the justiciable controversy between the parties in the Family Court.

8. The importance of the Supreme Court proceedings in the family law dispute is that the outcome of that matter may have a significant impact upon the size of the liquid assets making up the matrimonial pool but will have no impact upon the superannuation assets making up the pool which is some $350,000. Otherwise, there is only a minimal connection between the proceedings. This is particularly so as the wife claims no knowledge of her husband’s activities and that B Pty Ltd has submitted that as the wife has paid money into court their claim against her is effectively over.

9. Secondly, what is a single controversy depends on what the parties have done, the relationship between them and the laws which attach rights to or liabilities that arise from conduct in their relationships, see the decision of Re Wakim; Ex parte McNally (1999) 198 CLR 511. These parties were in a marriage in which the husband earnt the majority of the income used to support the family and acquire assets. The wife’s case is that she had no idea her husband was stealing vast sums of money from his employer and she is blameless in this regard. Thus, in relation to the claim by B Pty Ltd the wife and husband’s relationship and actions have no connection with each other. There is no commonality of fact between them in relation to the B Pty Ltd claim and the family law proceedings are clearly severable from this claim.

10. The family law proceedings could not be finalised without the B Pty Ltd claim being first determined and that is clearly a matter within the original jurisdiction of the Supreme Court to hear and determine and not the original jurisdiction of the Family Court to hear and determine and thus the proceedings are related in that sense.

11. The determination of the B Pty Ltd claim if successful will have an impact on the determination of the size of the matrimonial pool in terms of the husband’s assets, otherwise these two causes of action have no connection with each other, other than that the parties were married and that monies B Pty Ltd allege the husband has stolen from them has been used to acquire matrimonial assets.

12. Although it is correct that where proper disputes between parties ought to be heard at one time and in the one place there are principles to be considered in applying this practical approach.

13. Going now to the law and relevant principles in relation to transfer of proceedings. The Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) had no application to the proceedings on 19 November 2019. However by the amended submissions of the wife and the position taken by the by the second respondent this Act may now be relevant and I will refer to that later :

14. No one party bears an onus in respect of an application for transfer as was held in the decision of Bankinvest AG v Seabrook (1998) 14 NSWLR 711 (“Bankinvest AG v Seabrook”) at 727B. The decision of Chapman & Jansen (1990) FLC-92-139 (“Chapman & Jansen”) is authority that a decision to transfer or not is an administrative decision, not appealable

15. In Valceskiv Valceski [2007] NSWSC 440 (“Valceski”) and Warby the central issue in those proceedings was the ownership of a single asset a home and whether a third-party, who was not on the title had an interest in property by way of a constructive, resulting, express or implied trust. This is not the issue in this matter. Here, it is a repayment of monies alleged to be stolen by the husband from his employer which if proven results in the husband holding his interest in property on trust for B Pty Ltd.

16. The matter of Valceski concerned the transfer of proceedings commenced in the Supreme Court for a declaration of third party’s equitable interest in matrimonial property to the Family Court to be determined with the parties’ matrimonial dispute and this is a remedy open to the wife.

17. The wife here seeks I do the reverse, effectively uplift proceedings by way of ordering a public company to pass resolution to transfer and stay proceedings they have commenced in another court.

18. In his determination Justice Brereton in Valceski enquired, did the equity suit form part of the justiciable controversy in respect of the matrimonial proceedings? His Honour found it did.

19. Thirdly, His Honour found that justice would be best served by the controversy being dealt with in one court.

20. Fourthly, that the equity proceedings formed a smaller part of the larger controversy being the family law dispute between the parties.

21. The findings I have come to are precisely the opposite to those his Honour found in Valceski.

22. Firstly, the equity suit in the Supreme Court commenced by B Pty Ltd does not form part of the controversy in respect of the matrimonial proceedings.

23. Secondly, the matrimonial proceedings form no part of the much larger controversy between the parties and B Pty Ltd save for a likely impact upon the pool for division.

24. Thirdly, to require a public company to pass a resolution to transfer and stay proceedings that have commenced in another court is effectively to seek to uplift from another court proceedings properly commenced in that court and to do so offends Comity between courts and would be a gross miscarriage of justice and an improper exercise of the jurisdiction I exercise under the Family Law Act 1975 (Cth) be it accrued or original.

25. Going now to the impact of the written submissions filed by the wife and responded to by B Pty Ltd on the orders to be made.

26. The applicant has sought via written submissions to amend the application to seek an order that I am satisfied after having read B Pty Ltd’s written submissions I have no power to make and I will not grant the wife leave to make that application. It is merely a re-forming of orders which, if granted, would effectively constitute an anti-suit injunction for B Pty Ltd continuing with their Supreme Court proceedings and for the reasons given above that order is incompetent.

27. The wife has not sought to amend her application and seek to transfer her family law proceedings to the Supreme Court pursuant to the cross vesting legislation. The only amendment to her application is the amended orders sought in paragraphs 17 of the written submissions which is an order on its face I have no power, nor does any court have to make.

28. The parties can consent to these proceedings being transferred to the Supreme Court and I would make those consent orders in Chambers. That may be the outcome that best serves the interest of justice for all the parties given the one court would deal with the totality of the controversy and all parties agree one court dealing with both matters is a preferable outcome.

29. Given the wife did not seek to amend her application to transfer her family law proceedings to the Supreme Court and the only amendment sought by her is rejected by me I:

    a)Dismiss the wife’s Application in a Case filed 24 September 2019;

    b)Stay proceedings for final property settlement pending finalisation of Supreme Court proceedings commenced by B Pty Ltd against the husband; and

    c)In the event all parties agree to transfer the proceedings to the Supreme Court I will make those Consent Orders in Chambers.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 10 December 2019.

Associate:

Date: 12 December 2019