Munayallan and Scott
[2019] FamCA 549
•2 August 2019
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 |
| 1ST INTERVENER: | I Pty Ltd |
| 2nd INTERVENERS: | Mr Phong and Mrs Phong |
| FILE NUMBER: | SYC | 59 | of | 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 declaration that I Pty Ltd has “subrogated the right of the Bank Mortgage in or about July 2015 and has a second secured sum of $504,709” which subrogation is in priority to the interests of the husband, Mr and Mrs Phong and the wife.
(6)That at all material times I Pty Ltd has been entitled to lodge and maintain a caveat or mortgage in respect of the Suburb E property.
(7)That Mr and Mrs Phong be restrained from registering or attempting to register any interest in the Suburb E property until the security interest of I Pty Ltd has been determined.
(8)That I Pty Ltd has possession of the Suburb E property.
(9)A declaration that Mr and Mrs Phong had knowledge of I Pty Ltd’s interest in the land before October 2014.
(10)A declaration that Mr and Mrs Phong’s interest in the Suburb E property is “defeasible for fraud” within the meaning of sections 42 and 43 of the Real Property Act 1900 (NSW).
(11)That I Pty Ltd have judgment against the husband and Mr and Mrs Phong in the sum of $2,910,000.
If the Court does not set aside the transfer of the Suburb E property to Mr and Mrs Phong then I Pty Ltd seeks a declaration that the proceeds of sale of the Suburb E property are subject to “equity and charge” in favour of I Pty Ltd and that the net proceeds of sale currently held in the Supreme Court fund be paid to I Pty Ltd.
By their Response filed 8 November 2018 Mr and Mrs Phong sought that the application be dismissed as “an abuse of process, frivolous or vexatious”, or for want of jurisdiction. In the alternative they sought that I Pty Ltd provide security for costs in the amount of $100,000 and that the application be stayed until the security was paid.
By her Response filed 23 November 2018 the wife sought that the application by I Pty Ltd be dismissed and that “no further applications are to be lodged in these proceedings by I Pty Ltd without leave of this Honourable Court”. The wife supports the orders sought by Mr and Mrs Phong.
On 18 June 2019, following submissions, I dismissed I Pty Ltd’s application.
The proceedings between the husband and the wife involved property settlement and parenting orders in respect of C born … 2007 (“C”) and D born … 2010 (“D”) (collectively “the children”).
On 26 March 2019 Loughnan J made trial direction orders listing all applications before me for trial commencing 17 June 2019. In addition to the substantive proceedings between the parties, the wife’s Contempt Application filed 10 April 2019, the Application in a Case filed by I Pty Ltd and an Amended Application in a Case by the husband filed 15 May 2019 were also listed.
For reasons that will become apparent, the substantive proceedings could not be heard and determined until the interim applications had been resolved.
Ex-tempore reasons were delivered on 18 June 2019 for orders made dismissing the husband’s Amended Application.
Given the limited time available, I considered that it would be of assistance to the parties and in the best interests of the child that the parenting aspect of the proceedings be heard. Accordingly, the orders made dismissing the application of I Pty Ltd were without reasons being delivered. These are the reasons for judgment.
BACKGROUND
The dispute between the parties, Mr and Mrs Phong and I Pty Ltd relate to the Suburb E property and the proceeds of sale currently held in the Supreme Court.
The parties married in 2010 and separated on 14 February 2014. There is some dispute between the parties as to the date upon which cohabitation commenced. The wife’s position is that she and the husband commenced cohabitation in 2006 while he considers that cohabitation occurred from 2009.
The husband commenced proceedings in the Federal Circuit Court on 7 January 2010, however, following a reconciliation the application was discontinued. Following their separation the wife commenced proceedings on 30 April 2014 with the file being transferred to the Family Court on 31 August 2016.
The Suburb E property was purchased by the husband in September 2005. There is no agreement nor has there been a determination of the evidence as to how the property was acquired by him. The husband contends that he acquired a loan from I Pty Ltd. The wife maintains that the husband was the sole director and shareholder of I Pty Ltd at the time. She considers that at all material times I Pty Ltd was the alter-ego of the husband.
The wife’s contention is rejected by the husband. He refers to an ASIC search to support his position that his mother Ms Scott was appointed a director on 25 June 2003 with his sister Ms L as the sole shareholder.
The husband’s father Mr A Scott was appointed a director on 26 January 2018.
The husband entered into a contract of sale of the Suburb E property to Mr and Mrs Phong on 29 October 2014 for the sum of $2,200,000. The settlement funds were paid, however Mr and Mrs Phong alleged that the father had not complied with the contract for sale and they commenced proceedings in the Supreme Court of New South Wales.
In July 2015 the husband transferred the Suburb E property to P Pty Ltd. The husband’s brother Mr K Scott was the director of P Pty Ltd.
It appears that the transfer was made despite the orders made by Judge Kemp on 25 June 2015 that the husband was not to transfer, mortgage or encumber the Suburb E property.
In early 2017 the Supreme Court of New South Wales held that the transfer of the Suburb E property from the husband to P Pty Ltd was fraudulent and was done in an attempt to defeat the entitlement of Mr and Mrs Phong to possession pursuant to the contract. A new Certificate of Title for the Suburb E property was issued which recorded the husband as the registered proprietor and he was compelled by order to execute all documents necessary to perform the contract.
The wife filed a Further Amended Initiating Application on 3 August 2016 seeking that the Suburb E property be transferred to her and the contract for sale of the property to Mr and Mrs Phong be set aside. The wife now recognises that the landscape has changed significantly as a result of the Supreme Court proceedings and seeks that the net proceeds of sale be included in the property of the parties to be distributed 70 per cent to her and 30 per cent to the husband.
The First Supreme Court Proceedings
The Supreme Court proceedings commenced by Mr and Mrs Phong were heard and determined in early 2017.
The plaintiffs sought specific performance of the contract for the sale and purchase of the Suburb E property. During the course of the proceedings I Pty Ltd had lodged an encumbrance over the Suburb E property and were joined as additional defendants.
His Honour found that the husband had without notice to the plaintiff taken steps to remove the caveat lodged over the property by Mr and Mrs Phong and “dishonestly” transferred the Suburb E property for no consideration to P Pty Ltd. The husband’s brother Mr K Scott was the sole director of P Pty Ltd.
His Honour was also asked to consider the conduct of the husband in transferring the property in breach of an order made by the Federal Circuit Court on 25 June 2015.
In October 2015 Mr and Mrs Phong became aware of the transfer of the Suburb E property to P Pty Ltd and sought orders seeking an extension of time for a second caveat to be lodged.
The proceedings were consolidated and the claim by Mr and Mrs Phong was contained in their Statement of Claim filed 15 March 2016.
It was noted that the husband relied upon a number of affidavits deposed to by him and further affidavits from other persons.
His Honour dealt with important matters of chronology and held that I Pty Ltd had been registered in June 2003 with the husband as its sole director and shareholder until 2007. His Honour noted that Ms L became the sole director and shareholder. The involvement of Ms L was a matter of some critical importance to the husband. He relied upon an ASIC search[1] to support his contention that his mother Ms Scott had been appointed as a director as early as 25 June 2003.
[1] Exhibit “19” in these proceedings.
There was no concession on the part of Mr and Mrs Phong or the wife that the ASIC search represented the correct position as to the identity of relevant directors in 2003.
His Honour found that the husband was the sole director and shareholder at all relevant times.
His Honour considered the manner in which the husband removed the caveat of Mr and Mrs Phong to enable the Suburb E property to be transferred to P Pty Ltd. His Honour found that the husband and Mr K Scott had acted dishonestly.
The husband was warned by Mr and Mrs Phong that unless settlement took place by 6 February 2015 they would issue proceedings for specific performance.
The settlement was further complicated by the existence of a mortgage to the Commonwealth Bank of Australia and a caveat lodged by I Pty Ltd.
The husband argued that he had entered into a secure loan agreement with I Pty Ltd to borrow monies necessary for the purchase of the Suburb E property. The loan agreement document was dated 5 September 2005. Its import was the contention that the loan was secured over the Suburb E property. The signature of the witness to the two signatures on the loan agreement (those of the husband and Ms L on behalf of I Pty Ltd) was witnessed by Ms N. His Honour found that the signatures of the witnesses were a forgery and the only signature that was “legitimate” was that of the husband.
The second Supreme Court proceedings
In early 2017 Mr and Mrs Phong sought orders that the proceeds of sale be paid into the Supreme Court pending further order and that any costs order in their favour be paid from the proceeds.
Orders were made in those terms.
Following the dismissal of an appeal by the husband, he made an application in the Family Court against Mr and Mrs Phong seeking to transfer the settlement funds paid into the Supreme Court to the Family Court and to re-litigate the matters that had been heard and determined in the Supreme Court.
CROSS CLAIM
In July 2018 I Pty Ltd filed a cross claim in the NSW Supreme Court against the husband, the wife and Mr and Mrs Phong. The relief sought is as follows:-
1.Declaration that the proceedings of sale of J Street, Suburb E are the subject of a charge in favour of the Cross Claimant;
2.Declaration that the said charge operates in priority to any claim upon such proceeds of sale by the Second and Third Cross Defendants or by the Fourth Cross Defendant;
3.Declaration that the Fourth Cross Defendant has no interest in such monies;
4.Order that such proceeds of sale are held in Court be paid to the Cross Claimant;
5.Such further or other orders as the Court considers appropriate;
6.Costs.
Mr and Mrs Phong successfully applied to the Supreme Court that the cross claim should be stayed pending the payment of $100,000 by I Pty Ltd for security in respect of costs. Payment was made in March 2019.
There is no impediment to I Pty Ltd pursuing the relief as sought.
The basis for the relief sought by I Pty Ltd is better understood by reference to the following extract from the pleadings:-
2.In or about September 2005 the Cross Claimant and the First Cross Defendant ([the husband]) entered into an agreement whereby:
(i)the Cross Claimant would lend to [the husband] the sum of $1,379,315 (“the First Loan”);
(ii)[the husband] would give to the Cross Claimant a security interest in the Property to secure the First Loan and interest accruing on the First Loan.
3.Thereafter, in or about September 2005:
(i)the Cross Claimant advanced to [the husband] the First Loan; and
(ii)[the husband] became the registered proprietor of the Property.
4.By reason of the matters hereinabove pleaded, the Cross Claimant obtained a security interest in the Property upon [the husband] becoming the registered proprietor of the Property.
It is further argued that the cross claimant paid out the mortgage to the Commonwealth Bank in the sum of $504,709 and thereby entitled to subrogation with the result that it had priority over the interests of the cross defendants.
I Pty Ltd filed a Notice of Motion seeking to lift the stay that had been imposed pending the payment of the security sum. As at the date of hearing the application had not been heard and it is conceded that given the elapse of nine months before the security sum was paid, it cannot be assumed in the absence of explanation that I Pty Ltd will be able to pursue the relief sought in their costs claim.
The relevant consideration is that I Pty Ltd have evinced an intention to pursue the relief sought in the cross claim in the Supreme Court.
Whilst I Pty Ltd was not a party in the various Supreme Court proceedings after its release, it could not be said that the conduct of the proceedings were not known to I Pty Ltd. I Pty Ltd was a party in the appeal proceedings and the connection between the directors and shareholders of I Pty Ltd with the husband is self evident.
When the matter came on for hearing Mr M appeared in his capacity as a manager of I Pty Ltd acting on instructions of Mr A Scott and Ms Scott. He sought to rely upon a document sworn 27 August 2018 but not filed which annexed a number of miscellaneous documents.
Mr M was unimpressive in his presentation to the Court. He lacked any knowledge of the circumstances of the proceedings and the clear impression gained was that the documents upon which he relied were not authored by him. During the proceedings he deferred in all things to the husband and was prevented by the husband from making any submission inconsistent with the husband’s case.
The following exchange occurs at page 69 of the transcript commencing line
7:-
His Honour: Mr M appears today and he – and I’ve challenged Mr M. I started out the morning by attempting to understand his position in the company, why he was here, what he was doing, what – and, importantly, whether he spoke on behalf of the company and he, Mr Scott, assured me that he did. Mr Scott, you would be well advised to sit down, sir.
[The husband]: Your Honour.
His Honour: You would be well advised, sir, to sit down and let Mr M run his own application.
[The husband]: Mr M is not supposed to be here today. Mr A Scott is supposed to be here today and he was only supposed to be here because his counsel withdrew at the last minute. He rings me up and goes, “counsel withdrew at the last minute”… His Honour: Mr Scott.
[The husband]: And he goes.
His Honour: Mr Scott, are you now going to tell me about conversations
that you had with I Pty Ltd’s counsel? Why would they be ringing you?
[The husband]: No, no, I said Mr A Scott rang me… His Honour: He should be here.
[The husband]: And he said… His Honour: Sit down.
[The husband]: …”counsel withdrew at the last minute over the weekend”.
His Honour: And so what are you suggesting? That this application can’t go ahead because Mr M now has got some concern as to what his position is? Mr Scott, you would be well advised, sir, to sit down. I’m obliged, Mr Scott, for your eventual courtesy. Mr M, to you, sir. I’m sorry. Can I apologise, Mr M, for Mr Scott’s interruption to your submissions. It’s not appropriate. It’s of no assistance, and I
do apologise that he hasn’t given you the opportunity of being able to make your submission clearly to me. Is there a difficulty, Mr Scott, about your involvement in respect of I Pty Ltd?
Mr M: Well, your Honour, I wasn’t supposed to be here to run the case. I came as a representative of the company. But we had legal counsel which we – which .… and put me in this position.
His Honour: But, Mr M, you knew that this was your application.
Whose application was it if it wasn’t the application of I Pty Ltd?
Mr M: Yes, well, we had legal counsel to…
His Honour: Well, so what? You didn’t tell me that at the beginning of today. I asked you questions, Mr M, did I not, as to your status and the basis upon which you sought to appear on behalf of I Pty Ltd. And you gave me assurances, sir. You didn’t tell me anything about counsel or Mr [A] Scott; you gave me assurances – you gave me assurances that you were here and ready to proceed in respect of the application filed on behalf of I Pty Ltd.
Mr M: My comprehension of – the total understanding of what was…
His Honour: Well, why are you here, then, sir? Do you not understand, then, that you are creating a very significant issue? Would you – do you want me to put you in the witness box, sir, and some questions can be put to you as to your involvement with this company, who you speak on behalf of, what communication you’ve had and what’s going on? Is that what you would want me to do, Mr M? – I – you need to think very carefully as to whether some of the matters – as to the consequences of you giving evidence on oath, Mr M.
Mr M: Your Honour, as I stated that…
His Honour: You can show me all the bits of paper you like, Mr M. They are meaningless to me. I don’t know what they are and I can tell you what I can’t look at would be legal advice that you’ve received from your counsel. It’s privileged. I’m not able to ask you what your solicitors and/or counsel have told you or discussed with you. Mr Scott.
[The husband]: …what it was.
His Honour: Mr Scott.
[The husband]: I’m sorry.
His Honour: What – sir, what do you think you’re doing?
[The husband]: It’s not legal advice, it’s an invoice – it’s a contract…
His Honour: Sir, you’ve reached across the bar table and you’ve retrieved a document by another litigant.
[The husband]: I’m sorry, your Honour, I was just seeing…
His Honour: What right, Mr Scott, do you have to do that? If counsel reached across the bar table and picked up one of your documents, sir, I can tell you they would be in very, very serious trouble – very serious trouble. I’m astonished – I’m astonished to have witnessed your conduct. Mr M appears properly on behalf of I Pty Ltd. He is addressing me in respect of certain difficulties and impediments he has. What right did you have…
[The husband]: I just wanted to…
His Honour: …to reach across and retrieve a document belonging to somebody else?
[The husband]: I’m sorry, your Honour, I was just…
His Honour: Do you want me to assume, Mr Scott, that there is a connection between you and I Pty Ltd that is not immediately apparent but that ought to be drawn by the fact that you feel unfettered in your conduct, Mr Scott?
As a result of the inability of Mr M to properly present the case on behalf of I Pty Ltd, the proceedings were adjourned to enable Mr A Scott to attend. Contact was made initially by telephone, however, it was immediately apparent that Mr A Scott was suffering from significant impediment and was not able to engage in the proceedings remotely. The proceedings were further adjourned to enable Mr A Scott to attend. He did. However, he was not able to make submissions on behalf of I Pty Ltd and I Pty Ltd’s solicitor Mr Q appeared who provided valuable assistance to the Court.
The evidence supports the finding that between 2003 and 2007 the husband was the sole director of I Pty Ltd and the conduct of Mr M and that of Mr A Scott would invite a finding that I Pty Ltd is the alter-ego of the husband.
ABUSE OF PROCESS
It is argued that the application of I Pty Ltd should be struck out on the basis of abuse of process, issue estoppel or anshun estoppel.
In Goldsmith v Sperrings Ltd& Ors [1977] 1 WLR 478 at 498 – 499 the Court
held that:-
The defendants have to show that the plaintiff has an ulterior motive, seeks a collateral advantage for himself beyond what the law offers, is reaching out “to effect an object not within the scope of the process”… In a phrase, the plaintiff’s purpose has to be shown to be not that which the law by granting a remedy offers to fulfil, but one which the law does not recognise as a legitimate use of the remedy sought…
And then at 503 the following appears:-
…when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as collateral advantage if it is reasonably related to the provision of some form of redress for that grievance…
In Dowling v The Colonial Mutual Life Society (1915) 20 CLR 509 at 521 – 522, Isaacs J distinguished between the use of a process and its abuse as follows:-
If the object sought to be effected by the process is within the lawful scope of the process, it is a use of the process within the meaning of the law, though it may be malicious, or even fraudulent, and in the circumstances the fraud may be an answer, if, however, the object sought to be effected by means of the process is outside the lawful scope of the process, and is fraudulent, then – both circumstances concurring – it is a case of abuse of that process, and the Court will neither enforce nor allow it to afford any protection, and will interpose, if necessary, to prevent its process being made the instrument of abuse.
In Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 the Court
considered the following at [89]:-
There can be an abuse of process where, even though a plea of res judicata, cause of action, or issue estoppel is not available “if the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again…” Reichel v Magrath (1889) 14 App Cas 665 (at 668) per Lord Halsbury LC; Walton v Gardiner (at 392 – 393) per Mason CJ, Deane and Dawson JJ; Rogers v R (at 286 – 287) per McHugh J (in a dissenting judgment) referred to with apparent approval in Batistatos (at [15]) per Gleeson CJ, Gummow, Hayne and Crennan JJ; PNJ (at [3]) per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 (at 410) per Hunt CJ at CL.
I Pty Ltd argues that it was not a party in the Supreme Court proceedings and therefore should be able to be joined as a party to the Family Court proceedings.
The issued is considered in Five D v Impact Building [2007] NSWSC 993 where the Court considered whether there can be an abuse of process where a party in current proceedings was not a party in earlier proceedings.
Under consideration was a decision of a Magistrate to summarily dismiss the applicant’s Statement of Claim as an abuse of process. The Court considered that it was “manifestly unfair that the same issues should be relitigated; and secondly, to permit relitigation of the earlier Newcastle proceedings would bring the administration into disrepute”.[2]
[2] Five D v Impact Buildings [2007] NSWSC 993 [32].
At [26] the following summary is provided:-
In Jeans,[3] the New South Wales Court of Appeal adopted the reasoning in Bairstow[4] in finding that abuse of process can apply where parties to later civil proceedings were not parties to the earlier proceedings. However, “it would only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated, or if to permit such relitigation would bring the administration of justice into disrepute.”
[3] Cleary v Jeans [2006] NSWCA 9.
[4] Secretary of State of Trade and Industry v Bairstow [2004] 4 All ER 325.
In the present case I find that I Pty Ltd stood in the background of the Supreme Court proceedings and were aware of the arguments being ventilated by the husband and Mr K Scott in his capacity as director and shareholder of P Pty Ltd. The focus of the husband, P Pty Ltd and I Pty Ltd has been common in that its focus is on the status of the Suburb E property.
The cross claim filed in the Supreme Court by I Pty Ltd seeks effectively the same relief as the proposed application for intervention in the Family Court proceedings.
The proceedings before the Court relates to settlement of property as between the husband and the wife. A relevant consideration will be the extent to which there are net proceeds of sale of the Suburb E property available for consideration by the Court and distribution pursuant to s 79 of the Act.
It is likely that the net proceeds of the Suburb E property will represent almost the entirety of the asset pool that may be available for consideration.
The Supreme Court is properly seized of the dispute as between I Pty Ltd and Mr and Mrs Phong. But for the cross claim and the question of the costs of Mr and Mrs Phong arising from the previous litigation, the net proceeds of sale would be determined and would at least in part crystalize the pool.
The resolution of the cross claim will determine all outstanding matters as to the Suburb E property.
Whilst I do not bring to account the findings made in the various Supreme Court proceedings, the gravamen of the proceedings and the arguments that were ventilated are relevant considerations in determining whether I Pty Ltd has an ulterior motive in attempting to bring proceedings in the Family Court.
It is a convenient device that I Pty Ltd should argue that because they were not a party to the various Supreme Court proceedings they are not now prevented from bring an application in this Court.
For reasons that I have expressed, I consider that I Pty Ltd were at all material times aware of the issues being considered and had the opportunity to participate and be heard when the interests of I Pty Ltd may have been adversely affected. At some point they did become involved to be heard in respect of the appeal relating to interlocutory matters.
That consideration is irrespective of my finding that I Pty Ltd is the alter-ego of the husband.
It must be an abuse of process arising from a consideration of the proper administration of justice for I Pty Ltd to seek relief in respect of matters that have been heard and determined simply on the basis that they were not a party to the proceedings when at all material times application could have been made that they be joined and/or opportunity sought to be heard.
Given that I have determined that an abuse of process exists and that I Pty Ltd’s application should be struck out, I do not consider that I need to have regard to the principles of anshun estoppel or issue estoppel.
These reasons are given in support of the order made on 18 June 2019 that the application of I Pty Ltd filed 22 August 2018 be struck out.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 2 August 2019.
Associate:
Date: 2 August 2019
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