FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nicotra & Nicotra [2023] FedCFamC2F 1548
File number(s): SYC 7967 of 2021 Judgment of: JUDGE MONAHAN Date of judgment: 19 December 2023 Catchwords: FAMILY LAW – ANTI-SUIT INJUNCTION – where wife allegedly borrowed monies from the wife’s partner –
where the former matrimonial home was used as security for the alleged loans – where the wife has allegedly defaulted on the loan agreements – where the husband has exclusive occupation of the former matrimonial home and seeks to retain the property on a final basis – where debt recovery proceedings were commenced in the District Court of NSW against the wife by the wife’s partner – where the husband seeks an injunction to prevent the wife’s partner continuing the current proceedings or commencing further proceedings in the District Court of NSW.FAMILY LAW – JOINDER APPLICATION – where it is alleged that the wife borrowed money from the wife’s partner secured against real property occupied by the husband – where the husband seeks to retain the property on a final basis – where the wife has allegedly defaulted on the loan agreement – where the wife’s partner seeks payment of the loan monies.
Legislation: Family Law Act 1975 (Cth) Part VIII, Part XIV, ss. 72(1), 74, 75, 75(1), 75(2), 75(3), 79, 80, 80(1)(b), 80(1)(h), 80(1)(k), 90AB, 90AC, 90AE, 90AF(3), 106B, 114(1), and 114(3)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 43
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 3.01
Cases cited: AC & VC (2013) FLC 93-540
Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1
Arida v Arida [2015] NSWCA 170
CSR Ltd v Cigna Insurance Australia (1997) 189 CLR 345
Dovgan & Dovgan [2021] FamCA 306
Eastburn & Eastburn [2022] FedCFamC1F 706
Jordan & Sutton (No 2) [2022] FedCFamC1F 850
Pencious & Pencious [2010] FamCA 605
Division: Division 2 Family Law Number of paragraphs: 123 Date of hearing: 18 September 2023 Place: Sydney Counsel for the Applicant: Mr Dura Solicitor for the Applicant: O’Sullivan Legal Counsel for the First Respondent: Mr Macarounas Solicitor for the First Respondent: CK Lawyers Counsel for the Second Respondent: Mr Macarounas Solicitor for the Second Respondent: CK Lawyers Counsel for the Proposed Third Respondent: Mr Heazlewood Solicitor for the Proposed Third Respondent: MLC Lawyers ORDERS
SYC 7967 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS NICOTRA
Applicant
AND: MR NICOTRA
First Respondent
CC PTY LTD
Second Respondent
MR GULL
Third Respondent
ORDER MADE BY:
JUDGE MONAHAN
DATE OF ORDER:
19 DECEMBER 2023
THE COURT ORDERS THAT:
1.Mr Gull (“the Third Respondent”) be joined as a party to the proceedings.
2.Pending determination of these proceedings in the Federal Circuit and Family Court of Australia, the Third Respondent be restrained from continuing the legal proceedings against Ms Nicotra (“the Applicant”) in the proceedings numbered … and … in the District Court of NSW other than to…
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- Nicotra & Nicotra [2023] FedCFamC2F 1548
- Case
- [2023] FedCFamC2F 1548
- Decision Date
CaseChat Overview and Summary
The legal issues addressed by the court include whether an anti-suit injunction should be granted to prevent Mr Gull from continuing or commencing further proceedings against Ms Nicotra in the District Court of NSW, and whether Mr Gull should be joined as a party in the family law proceedings. The court also had to consider the procedural aspects of the case, including the timing of affidavits, the preparation of an Outline of Case Document, and the requirements for a joint electronic tender bundle.
The court found in favour of Ms Nicotra, granting the anti-suit injunction against Mr Gull and ordering his joinder as a party in the proceedings. The court restrained Mr Gull from continuing or initiating further legal proceedings against Ms Nicotra until the final determination of the family law proceedings. Additionally, the court provided detailed directions for the preparation of affidavits, the creation of an Outline of Case Document, and the compilation of a joint electronic tender bundle. The court also outlined the process for parties to engage in discussions and resolve any issues in dispute.
The final orders of the court include the joining of Mr Gull as a party, the restraint of Mr Gull from continuing or commencing further legal proceedings against Ms Nicotra, and the provision of specific directions for the preparation of documents and the conduct of the interim hearing. The court further noted that the form of the order is subject to entry in the court’s records and that any minor errors may be corrected or variations recorded in accordance with the relevant rules.
Orders
Orders of the court
SYC 7967 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS NICOTRA
Applicant
AND:
MR NICOTRA
First Respondent
CC PTY LTD
Second Respondent
MR GULL
Third Respondent
ORDER MADE BY:
JUDGE MONAHAN
DATE OF ORDER:
19 DECEMBER 2023
THE COURT ORDERS THAT:
1. Mr Gull (“the Third Respondent”) be joined as a party to the proceedings.
2. Pending determination of these proceedings in the Federal Circuit and Family Court of Australia, the Third Respondent be restrained from continuing the legal proceedings against Ms Nicotra (“the Applicant”) in the proceedings numbered … and … in the District Court of NSW other than to discontinue those proceedings.
3. The Third Respondent be otherwise restrained from commencing any legal proceedings against the Applicant (including any recovery proceedings pursuant to an alleged loan between the Third Respondent and the Applicant) either on his own behalf or via the company C Pty Ltd until further orders of this Court.
4. If pressed, the question of the costs arising from the Amended Application in a Proceeding filed on 14 September 2023, and the responses thereto, be reserved to the final hearing.
5. All extant applications be adjourned to this Court on 31 January 2023 at 12:00pm by Microsoft Teams for directions, and for interim hearing with respect to issues raised in the Response to an Application in a Proceeding filed by the Applicant on 11 September 2023 (“the interim hearing”).
6. Any Application in a Proceeding or Objection to Subpoena made returnable by the Registry from the date of these orders until the date of the interim hearing will not be heard on that date without the express leave of Judge Monahan, however directions in respect of that Application or Objection may be given.
AND THE COURT DIRECTS THAT:
7. By no later than 4:00pm on 17 January 2024, the First Respondent make, file and serve:
(a) one brief affidavit in response to paragraphs 32 to 42 of the Applicant’s Affidavit filed on 11 September 2023 and, if required, a further Amended Application in a Case limited to the issues raised by the Applicant in her Response to an Application in a Proceeding filed on 11 September 2023; and
(b) an Amended Response to Final Orders, and one Affidavit in support setting out any relief sought against the Third Respondent and the factual basis for that relief.
8. If required, the Applicant file a brief Affidavit in reply by no later than 4:00pm on 24 January 2024.
9. The Third Respondent make, file and serve a Response to Final Orders, and one Affidavit in support by no later than 4:00pm on 24 January 2024.
10. By no later than 4.00pm on 29 January 2024 the solicitors for the Applicant and the First Respondent (or, if unrepresented, the parties themselves) file on the Commonwealth Courts Portal and forward to Chambers at associate.judgemonahan@fcfcoa.gov.au and each other party an Outline of Case Document (Interim Hearing) in Microsoft word format (not PDF). The Outline of Case Document (Interim Hearing):
(a) may be downloaded from the Court’s website;
(b) is to be no longer than 15 pages;
(c) is to include a brief chronology listing significant events in Part B of the form (following the list of documents relied upon section of the document); and
(d) must be emailed to Chambers and served on each other party, even if the document is filed through the Commonwealth Courts Portal.
11. In the event the Applicant and the First Respondent proposes to tender relevant material they do all acts and things necessary to prepare a joint electronic tender bundle and forward such bundle to the Chambers of Judge Monahan by email at …@... by no later than 4:00pm on 29 January 2024. The joint tender bundle should not be of unreasonable length and must be arranged chronologically, paginated, indexed and in text searchable PDF format.
12. The legal representatives have inspection and photocopy access to documents produced under subpoena (“the material”) for the purposes of preparing a joint tender bundle in accordance with paragraph 11 herein. Such access is granted on the condition that:
(a) the legal representatives provide an undertaking to not provide the parties or any third parties paper or electronic copies or photographs of the material;
(b) all copied material is destroyed at the conclusion of the hearing; and
(c) if any party is to become self-represented, then leave must be sought by the self-represented party to photocopy the material.
13. The parties through their legal representatives are to engage in discussions prior to the interim hearing.
14. The parties have liberty to approach Chambers with a Minute of Orders that resolves any issues in dispute.
15. Subject to these Orders, all interim applications be otherwise dismissed.
THE COURT NOTES THAT:
A. These Orders followed a contested interlocutory hearing heard by the Court on 18 September 2023.
B. If an Affidavit or document relied upon does not comply with these directions and/or the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as amended by the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) then it is at the discretion of this Court as to whether certain parts of the Affidavit of document can be relied upon during the interim hearing.
C. The interim hearing will be limited to the issues raised in the Response to an Application in a Proceeding filed by the Applicant on 11 September 2023 and the question of whether the length of the final hearing can be limited to not more than three to four days.
D. If any party requires an interpreter at the interim hearing they are to inform the Court 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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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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