Munayallan and Scott - [2019] FamCA 549

FAMILY COURT OF AUSTRALIA

MUNAYALLAN & SCOTT

[2019] FamCA 549

FAMILY LAW – PRACTICE AND PROCEDURE – Abuse of process – Where a cross claim filed in the supreme court is almost identical to the relief sought in an application in a case in this court – Where at all material times the company was aware of the litigation – Orders.

Dowling v The Colonial Mutual Life Society (1915) 20 CLR 509
Five D v Impact Building [2007] NSWSC 993
Goldsmith v Sperrings Ltd& Ors [1977] 1 WLR 478
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231

APPLICANT:

Ms Munayallan

RESPONDENT:

Mr Scott

1^ST INTERVENER:

I Pty Ltd

2^nd INTERVENERS:

Mr Phong and Mrs Phong

FILE NUMBER:

SYC

2010

DATE DELIVERED:

2 August 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Berman J

HEARING DATE:

17 and 18 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Duc

SOLICITOR FOR THE APPLICANT:

Not applicable

COUNSEL FOR THE RESPONDENT:

Litigant in Person

PERSONAL REPRESENTATIVE 1ST INTERVENER:

Mr M

COUNSEL FOR THE 2ND INTERVENERS:

Mr Zipser

SOLICITOR FOR THE 2ND INTERVENERS:

V Lawyers

Orders

UPON NOTING that the Application in a Case filed 22 August 2018 is dismissed

IT IS ORDERED

That there be written submissions on the question of costs filed within (28) days of this order.

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 Munayallan & Scott 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 59 of 2010

Ms Munayallan

Applicant

And

Mr Scott

Respondent

And

I Pty Ltd

1st Intervener

And

Mr Phong and Mrs Phong

2nd Interveners

REASONS FOR JUDGMENT

INTRODUCTION

By Application in a Case filed 22 August 2018 I Pty Ltd, a duly incorporated company registered in New South Wales on 24 June 2003 sought orders summarised as follows:-
That as against Mr Scott (“the husband”) and Mr Phong and Mrs Phong (“Mr and Mrs Phong”):-
(1)A declaration that I Pty Ltd as and from September 2005 “had equity and [a] charge interest” in land at J Street, Suburb E (“the Suburb E property”).
(2)That the said “equity and charge” in the Suburb E property operates in priority to the husband, Mr and Mrs Phong and Ms
Munayallan (“the wife”).
(3)A declaration that Mr and Mrs Phong hold the Suburb E property on trust for I Pty Ltd.
(4)That the transfer of the Suburb E property to Mr and Mrs Phong in May 2018 be set aside.
(5)A…

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 Munayallan and Scott

Details

AGLC: Munayallan and Scott [2019] FamCA 549
Case: [2019] FamCA 549
Decision Date: 2 August 2019

CaseChat Overview and Summary

The matter of *Munayallan and Scott* concerned an application filed on 22 August 2018, which was subsequently dismissed by Berman J. The precise nature of the dispute between the parties, Munayallan and Scott, is not detailed in the provided text, nor is the specific court in which the application was heard, beyond the presiding judge.

The primary legal issue before the court, as indicated by the orders made, related to the question of costs. The court was required to determine how the costs of the dismissed application should be allocated between the parties.

Berman J ordered that written submissions on the question of costs were to be filed within 28 days of the order. This indicates that the court deferred the final determination of costs, allowing the parties an opportunity to present their arguments on the matter. The form of the order was noted as being subject to the entry of the order in the Court’s records.

Orders

Orders of the court

UPON NOTING that the Application in a Case filed 22 August 2018 is dismissed

IT IS ORDERED

That there be written submissions on the question of costs filed within (28) days of this order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.