Mrowka v Format Finishing Pty Ltd
[2007] WADC 59
•30 APRIL 2007
MROWKA -v- FORMAT FINISHING PTY LTD [2007] WADC 59
| Link to Appeal : | [2007] WADC 201 |
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 59 | |
| Case No: | CIV:2438/2006 | 20 MARCH 2007 | |
| Coram: | REGISTRAR KINGSLEY | 30/04/07 | |
| PERTH | |||
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Defendant's stay of proceedings granted | ||
| PDF Version |
| Parties: | IRENEUSZ MROWKA FORMAT FINISHING PTY LTD (ACN 059 243 948) |
Catchwords: | Practice Summary judgment pursuant to O 14 Application for stay by defendant Proceedings relate to property Previous Family Court orders |
Legislation: | Nil |
Case References: | Duff v Duff (1977) FLC 90-217 Jones v Skinner (1835) 5 LJCH 87 Tuck v Tuck (1981) FLC 91-021 Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
FORMAT FINISHING PTY LTD (ACN 059 243 948)
Defendant
Catchwords:
Practice - Summary judgment pursuant to O 14 - Application for stay by defendant - Proceedings relate to property - Previous Family Court orders
Legislation:
Nil
Result:
Defendant's stay of proceedings granted
(Page 2)
Representation:
Counsel:
Plaintiff : Mr C P Stokes
Defendant : Mr B W Ashdown
Solicitors:
Plaintiff : Chris Stokes & Associates
Defendant : Meredith Hunter & Associates
Case(s) referred to in judgment(s):
Duff v Duff (1977) FLC 90-217
Jones v Skinner (1835) 5 LJCH 87
Tuck v Tuck (1981) FLC 91-021
(Page 3)
1 REGISTRAR KINGSLEY: The plaintiff Mrowka has brought an application dated 15 January 2007 seeking judgment pursuant to O 14 be entered for the plaintiff against the defendant in the sum of $98,745.43 together with interest on that sum from 30 November 2006. The application is supported by an affidavit sworn by the plaintiff on 15 January 2007. The affidavit annexes a copy of the Directors Loan Account of the Format Trust showing the amount of $98,745.34 owing to the plaintiff. The defendant, through its sole director Violetta Siudek, in an affidavit sworn 1 February 2007, opposes the application for summary judgment and seeks that the proceedings in this Court be stayed.
History
2 Mrowka and Siudek were in a defacto relationship. Mrowka and Siudek established the defendant as trustee for the Format trust which was the legal owner of a print finishing business that Mrowka and Siudek operated together during the relationship.
3 The defacto relationship ended in October 2004 and in June 2006 a Form 11 application for consent orders was executed by the parties and filed in the Family Court of Western Australia on 26 June 2006. Orders were granted by the Family Court by consent ("the consent orders") on 28 June 2006.
4 The application for consent order, made 23 June 2006 by Siudek, at Part 6 gives the best estimate of the gross market value of the business.
5 The consent orders provided, inter alia, at par 12.1 that each party was solely entitled to the exclusion of the other party to all property (including a chose of action) in the possession of such party as at the date of these orders.
The defendant's application for determination of jurisdiction
6 The defendant has brought an application dated 19 December 2006 seeking orders that the writ of summons and statement of claim be set aside or stayed on the grounds that it is beyond the jurisdiction of the District Court. The defendant's application is based on the fact that the Family Court has made the consent orders.
7 The Family Court Act at s 205ZJ provides that the Family Court must, as far as practical, make such orders as will finally determine the financial relationships between defacto partners. A matrimonial cause within the Act is defined as proceedings between the parties to marriage with respect to the property of the parties to the marriage, or either of
(Page 4)
- them, being proceedings in relation to concurrent pending or completed proceedings for principal relief between those parties.
8 Section 205T of the Family Court Act defines property, in relation to defacto partners or either of them, as property to which those parties are, or that party is, as the case may be, entitled whether in possession or reversion. The defendant's counsel argues that as the subject matter of this dispute, the loan account, is the property of one or both of the former defacto partners and it is within the jurisdiction of the Family Court then by virtue of s 36(8) of the Family Court Act that jurisdiction is exclusive.
9 Property in the family law context is defined with a wide meaning. The meaning of property within the general law was stated in Jones v Skinner(1835) 5 LJCH 87 at 90, where Lord Langdale MR said that property:
"is the most comprehensive of all terms which can be used in as much as it is indicative and descriptive of every possible interest which the party can have".
10 That general approach has been adopted within the Family Court. In Duff v Duff (1977) FLC 90-217 at 76, 133 the Full Court stated that the quote from Lord Langdale commends itself to them as being descriptive of the nature of the concept of property to which it is intended that the Family Law Act1975 should relate. Thus, property means property both real and personal and includes a chose of action.
11 In relation to property interest and corporations in Tuck v Tuck (1981) FLC 91-021 at 76, 219 the Court commented that where property interests of parties to a marriage are bound up with their interests in a private company, the Court often faced with a difficulty that it may not be able to make direct orders for the transfer or settlement of property held in the name of the companies. Nevertheless, the Court can and should look at the whole property relationship of the parties, and the part which the company and its interests play as a part of that whole relationship.
The jurisdictional question
12 In my opinion, the Directors Loan Account of the defendant remains the subject matter for the Family Court. Whilst the consent order approved by the Family Court was intended by the parties to finally determine the financial relationship between the parties, and to avoid further proceedings, it does not mean that property properly categorized as within the jurisdiction of the Family Court is thereby removed from the
(Page 5)
- jurisdiction. The Directors Loan Account was part of the property that could have been considered and dealt with by the Family Court. The fact that it was not, does not thereby take it out of the jurisdiction of the Family Court. Further, there is a question as to whether the Director Loan account is property in the possession of Mrowka at the time of making the consent order. That question should be resolved by the Family Court and not this court.
Conclusion
13 In my opinion, the appropriate jurisdiction in relation to the loan account is the Family Court.
14 For these reasons, in my opinion, it is unnecessary to consider the issue of the O 14 application as this Court does not have jurisdiction to deal with the subject matter of the dispute.
15 I will grant the stay as sought by the defendant.
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