Moretti & Moretti (No 2)

Case [2024] FedCFamC1F 570

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Moretti & Moretti (No 2) [2024] FedCFamC1F 570

File number(s): MLC 3989 of 2020
Judgment of: STRUM J
Date of judgment: 28 August 2024
Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – JURISDICTION –whether the Court has jurisdiction to entertain claim by intervenor – where non-monetary orders have been made in VCAT for rehabilitation of land by spouse parties – whether intervenor is a creditor or person entitled to become a party pursuant to s 79(10) of the Family Law Act 1975 – whether intervenor is entitled to seek orders by virtue of s 92(3) of the Family Law Act 1975 – whether claim is within Court’s accrued jurisdiction – where it is held that the Court does not have jurisdiction – intervenor removed as a party to the proceedings and interlocutory orders previously made in its favour discharged
Legislation:

Family Law Act 1975 (Cth), Part VIII, ss 75(2)(ha), 78, 79, 79A, 80, 90AE, 90AF, 92(3), 106B (previously s 85)

Family Law Rules 2004 (Cth), r 6.05 and r 6.06

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 10.09

Planning and Environment Act 1987 (Vic), s 114 and s 123

Victorian Civil and Administrative Tribunal Act 1990 (Vic), Div 9, ss 3, 121, 122
Cases cited:

Akbar v Gandega [2023] FedCFamC1A 174

Barro & Barro (1983) FLC 91-300

Bevan & Bevan (2013) FLC 93-545

Biltoft and Biltoft (1995) FLC 92-614

Bishop and Bishop [2003] FamCA 240

Camden v Laue [2018] FamCAFC 91

Cao & Trong [2018] FamCA 460

Colburn & Cleese [2022] FedCFamC1A 147

D Pty Ltd and Ors & Sadler and Ors (2016) FLC 93-736

Davidson and Davidson (No 2) (1984) FLC 92-469

Deputy Commissioner of Taxation (WA) v Spanjich [1988] FLC 91-974

Deputy Commissioner of Taxation v Kliman & Kliman [2002] FLC 93-113

Dougherty v Dougherty (1987) 163 CLR 278

Ex parte Catholic Bishops Conference (2002) CLR 372

F Firm & Ruane (2014) FLC 93-611

Fencott v Muller (1983) 152 CLR 570

Harris v Caladine (1991) 172 CLR 84

Malloy and Ors & Stopford Malloy [2017] FamCAFC 204

Marriage of Shewring (1987) 12 Fam LR 139

Martin & Newton (2011) FLC 93-490

Moira SC v Sidebottom Group Pty Ltd [2015] VSC 577

Moretti & Moretti [2020] FamCA 1104

Prince and Prince (1984) FLC 91,501

Puddy & Grossvard [2010] FamCAFC 54

Re McBain; Ex parte Catholic Bishops Conference (2002) CLR 372

Re Ross-Jones; Ex parte Beaumont (1979) 141 CLR 504

Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR

Rizeq v Western Australia (2017) 262 CLR 1

Rowell and Rowell; DFC of T (Intervener) (1989) FLC 92-026

Stanford v Stanford (2012) FLC 93-518

Tomaras & Tomaras and Anor and Commissioner of Taxation [2017] FamCAFC 216

Valder & Saklani (2021) FLC 94-042

Victoria v Tymbook Pty Ltd & Anor [2010] VCAT 418

Warby and Warby (2002) FLC 93-091

Yong & Weng [2024] FedCFamC1F 440

Zdravkovic and Zdravkovic (1982) FLC 91-220

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AGLC
Moretti & Moretti (No 2) [2024] FedCFamC1F 570
Case
[2024] FedCFamC1F 570
Decision Date

CaseChat Overview and Summary

In Moretti & Moretti (No 2), the Federal Circuit and Family Court of Australia (Division 1) dealt with a jurisdictional issue concerning the ability of an intervener to seek orders for the rehabilitation of land pursuant to a permit issued by a government body. The parties were Ms Moretti, Mr Moretti, and B Organisation, which intervened in the proceedings seeking orders for the rehabilitation of property at Suburb S. The dispute arose out of the VCAT Order, which required the husband and wife to provide bank guarantees for the rehabilitation of the land. B Organisation sought to enforce these orders in the Family Court. The court was required to determine whether it had jurisdiction to hear B Organisation's claims and whether B Organisation was a creditor or a person entitled to become a party under the Family Law Act 1975.

The court found that it did not have jurisdiction to entertain B Organisation's claim. It held that B Organisation was not a creditor or a person entitled to become a party under section 79(10) of the Family Law Act 1975, and therefore, it could not seek orders under section 92(3). The court concluded that the claim did not fall within its accrued jurisdiction. Consequently, B Organisation's claim was dismissed, it was removed as a party to the proceedings, and the interlocutory orders made in its favour were discharged. The funds held by B Organisation's solicitors were ordered to be paid to the husband's solicitors and held in an interest-bearing controlled monies account pending further order of the court.

The final orders of the court were that the intervenor's response to the amended initiating application be dismissed for want of jurisdiction, the relevant VCAT orders be discharged, B Organisation be removed as a party to the proceedings, and the funds held by B Organisation's solicitors be paid to the husband's solicitors and held pending further order. The proceedings were listed for mention and further directions.

Orders

Orders of the court

MLC 3989 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MORETTI

Applicant

AND:

MR MORETTI

Respondent

B ORGANISATION

Intervener

ORDER MADE BY:

STRUM J

DATE OF ORDER:

20 AUGUST 2024

THE COURT ORDERS THAT:

1. The Response to Amended Initiating Application filed on 12 March 2024 by the first intervenor, B Organisation, be dismissed for want of jurisdiction.

2. Paragraph 3 of the Orders made by the Honourable Justice Wilson on 21 September 2020 be discharged and B Organisation be removed as a party to these proceedings.

3. The funds held upon trust by Hunt & Hunt, solicitors for B Organisation, for the husband, the wife and B Organisation, pursuant to paragraph 1 of the Orders made by the Honourable Justice McEvoy on 14 December 2020, be forthwith paid to the husband's solicitors, Fair Family Law, and held by them in an interest-bearing controlled monies account on behalf of the husband and the wife pending further order of the Court.

4. The proceedings be listed for mention and the making of any necessary further Orders, as well as trial directions, arising from the making of these Orders, on a date to be fixed before the Honourable Justice Strum as soon as practicable.

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

For the reasons which follow, I accept the contention of the husband and the wife and, accordingly, B Organisation’s claim against them in this Court will be dismissed; B Organisation will be removed as a party to the proceedings; and the funds held upon trust for the husband, the wife and B Organisation, by the solicitors for B Organisation, will be forthwith paid to the husband's solicitors, as sought by him, and held by those solicitors in an interest-bearing controlled monies account on behalf of the husband and the wife pending further order of the Court.BACKGROUND In late 2014, the husband and the wife purchased a property situate at K Street, Suburb S in the State of Victoria (“Suburb S”). Suburb S was registered in the name of G Pty Ltd as trustee for their self-managed superannuation fund, Superannuation Fund 1. They are the only members of the fund and directors of G Pty Ltd. Through another corporate entity controlled and owned by the husband and the wife, P Company, they operated a business in Suburb S. In 2015, B Organisation commenced proceedings in the Victorian Civil and Administrative Tribunal (“VCAT”) in respect of a facility conducted at Suburb S without a permit. In late 2016, a permit was issued to use and develop Suburb S for a facility, in respect of particular materials, subject to a number of conditions (“Permit”). Relevantly, condition 10 of the Permit provided that:Prior to the commencement of the use, the owner must provide an unconditional bank guarantee (or other form of security that is to the satisfaction of the Responsible Authority) in favour of [B Organisation]. The bank guarantee will allow [B Organisation], if it desires, to rehabilitate the land in the event the owner is unwilling or unable to do so, or if the [B Organisation] cannot compel the owner to do so. Prior to providing a guarantee, the owner must provide a detailed scope of rehabilitation works (including costings) by a suitably qualified person. The scope of rehabilitation must return the land to its state prior to the use commencing (including activities that occurred prior to the grant of a planning permit). The costings must include reasonable contingencies that account for the life of the permit. The [B Organisation] will return the bank guarantee to the owner upon the owner rehabilitating the land. See the relevant VCAT proceedings at Appendix A. It is common ground that, in the ensuing eight years, no guarantees have been provided. On 6 March 2019, the husband and the wife separated. In early 2019, B Organisation applied to VCAT for an enforcement order against G Pty Ltd, the husband and the wife in relation to alleged contraventions of the Permit (“VCAT Proceedings”). None of the respondents to the VCAT Proceedings denied the contravention. In late 2019, VCAT found the contraventions proven and made orders requiring G Pty Ltd, the husband and the wife to comply with the Permit, which included undertaking rehabilitation works on Suburb S (“VCAT Order”). The VCAT Order also relevantly provided that:7.By no later than [late] 2019, the respondents must give the responsible authority an unconditional bank guarantee or bank guarantees in the sum of $1,195,000 in accordance with condition 10 of the permit for the full cost of rehabilitating the subject land.8.If the responsible authority serves of peer review on the respondents on or before [early] 2020, the respondents must give the responsible authority an additional bank guarantee for any additional amount that the actual cost in the peer review exceeds the bank guarantee given in accordance with order 7.

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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