Odell & Odell
[2023] FedCFamC1F 717
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Odell & Odell [2023] FedCFamC1F 717
File number(s): NCC 277 of 2021 Judgment of: CAREW J Date of judgment: 25 August 2023 Catchwords: FAMILY LAW – COMPLEX MAJOR FINANCIAL PROCEEDING LIST – Application in a Proceeding filed by the husband seeking interim orders for transfer of funds between various entities and payment of a retirement pension pursuant to ss 200F(aa) and 200G of the Corporations Act 2001 (Cth) – Where the husband has failed to comply with order to file a Points of Claim in the substantive proceedings – Where it is not clear what powers the husband is relying on to pursue various claims – Where, in the absence of Points of Claim and Points of Defence, it is not possible to identify the issues in proceedings – Application dismissed.
FAMILY LAW – DISMISSAL OF PART OF CLAIM – Consideration of dismissal of proceedings pursuant to s 69 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), rr 10.26, 10.27 Federal Circuit and Family Court of Australia (Family Law) Rules 2021(Cth) – Where matter is proceeding by way of pleadings – Where the husband contends that, as he is no longer able to obtain legal representation, he cannot comply with his obligation to file a Points of Claim – Where the husband has had ample time to comply with his obligations – Husband’s amended Response dismissed in part and the second and third respondents removed as parties
FAMILY LAW – COSTS – Where any submissions as to costs should be filed by the second and third respondents, and the husband in reply, with submissions to be considered in Chambers.
Legislation: Corporations Act 2001 (Cth) ss 198F, 200F, 200G, 232, 233, 290
Family Law Act 1975 (Cth) ss 79, 90AE
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.26, 10.27
Cases cited: B Pty Ltd v Ors & K and Anor (2008) 39 Fam LR 488
Dare v Pulham (1982) 148 CLR 658
Dick v Alan Powell Holdings & Ors [2009] QSC 184
Hardcastle v Advanced Mining Technologies Pty Ltd [2001] FCA 1846
Kelly v Lomax [2014] FamCA 431
Krakowsi & Anor v Eurolynx Properties Limited and Anor (1995) 183 CLR 563
Kryiakos & Kryiakos (2013) FLC 93-528
Masoud & Masoud (2016) 54 Fam LR 245
Schweitzerv Schweitzer [2012] FamCA 445
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Wayne & Dillon (2008) 40 Fam LR 543
Number of paragraphs: 54 Date of hearing: 10 August 2023 Place: Brisbane Counsel for the applicant: Mr M Drysdale KC Solicitor for the applicant: Nash Allen Williams & Wotton For the first respondent: Litigant in person Counsel for the second and third respondents: Ms M Murphy Solicitor for the second and third respondents: HopgoodGanim Lawyers ORDER
NCC 277 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ODELL
Applicant
AND: MR ODELL
First Respondent
MR B ODELL
Second Respondent
MR C ODELL
Third Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
25 AUGUST 2023
THE COURT ORDERS THAT:
1.The amended Application in a Proceeding filed by the husband on 24 February 2023 is dismissed.
2.The relief sought by the husband in his amended Response filed 1 March 2022 against the second and third respondents (and entities and assets related to them) is dismissed (being all of the relief sought in Annexure A of the Amended Response filed 1 March 2022, other than the following paragraphs: 1 to 4, 50, 55, 56, 61 to 70, 72 and the parts of 73 which do not concern the second and third Respondents).
3.The second and third respondents be removed as parties to these proceedings.
4.Any extant applications for interim orders are otherwise dismissed.
5.Any submissions (limited to five pages) or any further affidavit relating to costs only are to be filed and served by the second and third respondents within 14 days.
6.Any submissions in response (limited to five pages) or any further affidavit relating to costs only are to be filed and served by the husband within 21 days after receipt by him of the submissions relied upon by the second and third respondents.
7.Unless a request is made by a party for the application for costs to be listed for hearing and oral submissions, the determination of costs will be finalised in Chambers without the need for personal attendance.
8.The pending proceedings between the wife and husband are listed for a case management hearing before the Honourable Justice Carew on 20 October 2023 at 9.30 am.
NOTATION:
A.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
B.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
There are pending property settlement proceedings in this Honourable Court between Ms Odell (“the wife”) and Mr Odell (“the husband”) arising out of their 38 year marriage which ended upon their separation in 2012 (at the latest). On 12 May 2022, the adult children of the marriage, Mr B Odell and Mr C Odell were joined to the proceedings and the husband was ordered, by consent, to file Points of Claim by 27 June 2022, pleading the particular provisions of the Family Law Act 1975 (Cth) (“FLA”) or any other Act relied upon by him and any contentions of law or fact contended by him to support the relief sought by him against his sons and the wife. The husband has not done so.
There are two matters requiring determination at this stage of the proceedings:
(1)The application by the husband for various interim orders including for the appointment of a forensic expert, payment of monies between corporate entities (not parties to the proceedings), payment of monies to the husband by corporate entities (not parties to the proceedings), in default of payment the winding up of corporate entities (not parties to the proceedings), disclosure by the wife and Mr C Odell, with the “characterisation of the payments made to [the husband] … [to] be determined by the trial judge”; and
(2)The application by Mr B Odell and Mr C Odell to dismiss the claims against them in the substantive proceedings given the continued failure of the husband to file Points of Claim as ordered.
For the following reasons the interim relief sought by the husband in his amended Application in a Proceeding filed 24 February 2023 will be dismissed and the claims against Mr B Odell and Mr C Odell in the husband’s amended response filed 1 March 2023 will be dismissed.
As no submissions were made about costs, and in particular indemnity costs sought by Mr B Odell and Mr C Odell, any submissions by them in support of costs is to be filed and served within 14 days and any submissions resisting a costs order is to be filed and served by the husband within 21 days after service upon him of any submissions relied upon by Mr B Odell and Mr C Odell.
BACKGROUND
The husband and wife entered into a financial agreement on 1 April 2020, which dealt with only part of the property and financial resources of the husband and wife.
The substantive property proceedings were commenced by the wife on 2 February 2021. The wife contends that the property about which a property settlement order can be made include a modest unit in which she lives (which she wishes to retain) and a home owned by the husband and his fiancé, Ms E. The wife contends that the husband contributed most of the funds for the purchase of that property, which the wife contends is worth about $3,000,000. In the husband’s most recent, but now dated, financial statement filed 22 September 2022, the husband contends he has a 50 percent interest in that property, which he values at an estimated $1,000,000, and shares a 50 percent liability on that property of $43,476. The husband also discloses outstanding legal fees of $121,503. The husband indicates he is without any income and is financially reliant on his fiancé.
As part of the substantive relief sought by the husband, he seeks a declaration that the financial agreement is not binding or that it be set aside. This is resisted by the wife.
Throughout their marriage, the husband and wife were involved in a business operated via various corporate entities. The husband seeks to challenge, among other things, the legitimacy of various loans and payments between the entities dating back many years.
An organisational chart of the Odell family ownership structure is annexed to the affidavit of Mr Jess Owen filed 28 April 2023.
On 28 February 2022, the husband filed an Application in a Proceeding to join the adult children of the relationship, Mr B Odell and Mr C Odell, to the proceedings.
On 1 March 2022, the husband filed a further amended Response, largely seeking relief against Mr B Odell and Mr C Odell either personally or in their capacity as directors of corporate entities controlled and owned by them. The further amended Response seeks 73 different orders, some of which remain completely un-particularised e.g. by paragraph 71, the husband seeks “further or other relief under the common law of Australia, in equity (including as may be necessary an order for the taking of accounts or equitable compensation) or otherwise under statute, including damages under the Corporations Act 2001 as against [Mr B Odell] … and [Mr C Odell] … for breach by them of their directors’ duties owed to the [husband]”. The husband’s allegations include negligence, deception, fraud, abuse: all of which remain un-particularised.
As already noted, on 12 May 2022, an order was made by consent joining Mr B Odell and Mr C Odell as second and third respondents and directing that the matter proceed by way of pleadings. The husband was ordered to file a Points of Claim by 27 June 2022 and the wife, Mr B Odell and Mr C Odell were to then file Points of Defence. The husband did not file Points of Claim by the due date nor by the further extended date, namely 13 June 2023. The husband has still not filed Points of Claim.
On 14 June 2022, the husband’s solicitor filed a Notice of Ceasing to Act. The husband has been self-represented since that time.
On 18 August 2022, the matter returned to Court, with the husband submitting he could not file his Points of Claim without legal assistance. The husband foreshadowed filing an application for litigation funding and an order was made that the husband file and serve any such application by 23 September 2022.
On 22 September 2022, the husband filed an Application in a Proceeding seeking interim orders including spousal maintenance which was later abandoned. The application was amended on 24 February 2023 and seeks interim orders including for the transfer of funds between various entities and payment by D Pty Ltd of a retirement pension to the husband pursuant to ss 200F (aa) and 200G of the Corporations Act 2001 (Cth) (“the Corporations Act”) in the sum of $3,500 per week. No interim financial relief is sought by the husband against the wife, nor is any order sought for litigation funding.
The matter first came before me on 12 May 2023, when I further extended the time for the husband to file Points of Claim to 27 June 2023, and listed the husband’s interim application and the application to dismiss the claims against Mr B Odell and Mr C Odell for hearing on 7 July 2023. On 7 July 2023, the parties indicated that they had reached a settlement on all matters but would require time to settle the terms of an order. Unfortunately, the negotiations broke down and a decision is now required on the matters previously listed for hearing.
INTERIM APPLICATION BY HUSBAND
By his amended Application in a Proceeding filed 24 February 2023 the husband seeks the following interim relief:
(a)That Mr C Odell cause D Pty Ltd to pay for F Accountants to prepare a forensic report to determine the party liable to G Pty Ltd for a loan originally of $2,300,000 advanced to D Pty Ltd and purportedly assigned to H Pty Ltd and subsequently extinguished by journal entries in the books of G Pty Ltd;
(b)That Mr B Odell as sole director of H Pty Ltd and Mr C Odell as the sole director of D Pty Ltd provide all documents requested by F Accountants and authorise and direct their accountant, Mr J, to provide all documents and information requested by F Accountants;
(c)Pursuant to s 79 of the FLA or alternatively pursuant to s 233 of the Corporations Act:
(i)Mr B Odell cause H Pty Ltd to pay to K Pty Ltd the sum of $1,918,102;
(ii)Mr B Odell and Mr C Odell (sic) cause K Pty Ltd to declare and pay to each shareholder a dividend per share fully franked at a rate sufficient to exhaust the company’s franking account balance of $713,760;
(iii)Mr B Odell cause K Pty Ltd to pay the husband his share of the dividend declared pursuant to the preceding subparagraph;
(d)In default:
(i)K Pty Ltd be wound up pursuant to s 233 of the Corporations Act;
(ii)Mr L of M Accountants be appointed for the purposes of the winding up;
(iii)Mr B Odell indemnify the husband and the liquidator in respect of any liability of them for any income tax;
(e)Pursuant to s 200F(aa) and s 200G of the Corporations Act and until further order, Mr B Odell cause D Pty Ltd to pay the husband a retirement pension of $3,500 per week;
(f)The wife disclose her bank statements from February 2022 to date;
(g)Within seven days, Mr C Odell cause D Pty Ltd to disclose:
(i)Those parts of its General Ledger that record and classify all deposits made to the wife’s bank accounts in the last 3 years;
(ii)All agreements, tax invoices and loan accounts relating to payments made to the wife for “interest” and “transport fees”;
(iii)All records of funds paid to the trust or general account of Nash Allen Williams & Wotton, Solicitors.
(iv)The characterisation of the payments to the husband be determined by the trial judge.
Mr C Odell is the sole director of D Pty Ltd. The three shareholders are Mr B Odell (10 ordinary shares), the husband (45 ordinary shares) and the wife (45 ordinary shares).
The husband, wife, Mr B Odell and Mr C Odell are directors of G Pty Ltd. The husband holds four A class shares (100 percent), 1000 B class shares (100 percent), 1000 C class shares (100 percent) and Mr N holds one D class share (100 percent) and Mr P holds one E class share (100 percent).
Mr B Odell is the sole director and shareholder of H Pty Ltd.
Mr B Odell and the husband are directors of K Pty Ltd and Mr B Odell holds 3001 ordinary shares (75 percent) and the husband holds 1000 ordinary shares (25 percent).
The husband contends that in 1998, G Pty Ltd lent D Pty Ltd approximately $2,300,000 and that until March 2020, and for the previous 20 years, D Pty Ltd paid G Pty Ltd weekly interest payments on the loan. The husband contends that G Pty Ltd also funded the purchase of a fleet of vehicles by D Pty Ltd in respect of which monthly hire fees were paid up until November 2021. The husband contends that certain decisions made by his sons have left him without any income and have left them in control of a multimillion dollar business which he, and before him, his parents, operated. It is common ground that Mr B Odell and Mr C Odell have operated the Odell family business for at least the last ten years. The husband concedes that he signed numerous documents that brought about the various changes but contends he did so in circumstances of failing health and that his sons had been exerting financial control over him since 2016. The husband now seeks, among other things, to have a forensic accountant “report on the disappearance of a $2,300,000 loan owed to [G Pty Ltd] and other significant financial issues”.
Mr J is a chartered accountant who has been in practice for over 15 years. Despite making numerous allegations against Mr J, the husband relies upon Mr J affidavit filed on behalf of Mr B Odell and Mr C Odell on 22 December 2022. The husband nevertheless appears to dispute much of Mr J evidence although the extent of that is unclear.
Since 2015, Mr J has provided accounting services to the Odell family and to various entities controlled and owned by members of the Odell family, including D Pty Ltd, H Pty Ltd, G Pty Ltd, and K Pty Ltd.
Mr J provides the following relevant evidence:
(a)The books and financial reports of the various entities making up the ‘Odell Family Group’ reveal the following:
(i)as at 30 June 2014, there was a loan payable to G Pty Ltd by D Pty Ltd in the sum of $2,327,947 and for the year ended 30 June 2015 the balance of the loan was reduced to nil;
(ii)as at 30 June 2015 the debt by D Pty Ltd to G Pty Ltd was assigned from D Pty Ltd to H Pty Ltd;
(iii)as at 30 June 2015 H Pty Ltd owed G Pty Ltd $2,277,947 (which did not exist in the previous financial year);
(iv)at the beginning of 2018, various loans owed by several Odell entities and members of the Odell family were refinanced through H Pty Ltd and the National Australia Bank;
(v)as a consequence of the refinance many of the loans were consolidated into a single loan between the National Australia Bank and H Pty Ltd e.g. one of the loans in existence was a home loan from Westpac Bank in the name of the husband and the wife in the sum of $2,101,189.46 (although Mr J contends he was never told what the loan was for), and as part of the refinance, in January 2018, the National Australia Bank paid out the home loan to Westpac and at the same time, H Pty Ltd assumed liability for the loan previously owed by the husband and wife to Westpac;
(vi)for the financial year ended 30 June 2018, the balance of the loan payable by H Pty Ltd to G Pty Ltd was $112,063;
(vii)for the financial year ended 30 June 2019, a loan in the sum of $155,258.33 was payable by G Pty Ltd to H Pty Ltd;
(viii)the husband signed various letters dated 5 November 2018 and 19 September 2019 confirming for auditing purposes the accuracy of the above information regarding the loans;
(ix)at about the same time as the refinance, Mr J contends he was instructed by the Odell Family to consolidate all loans between members of the Odell family and Odell entities and to set them off against each other where possible e.g. as the husband held 99.99 percent of the shares in G Pty Ltd, the assigned loan from H Pty Ltd to G Pty Ltd was set off against the loan owing from the husband and wife to H Pty Ltd bringing the balance of each loan to nil;
(x)if the two loans had not been set off against each other they would remain on the books;
(xi)H Pty Ltd owes K Pty Ltd $1,918,377 which H Pty Ltd does not currently have the capacity to repay;
(xii)D Pty Ltd owes H Pty Ltd $7,490,760.07.
Mr J contends that if the H Pty Ltd loan to K Pty Ltd is called in, it will have a domino effect including the calling in of the loan by H Pty Ltd owed to it by D Pty Ltd. Mr J contends that the net effect of the inter-entity loans seem to benefit the husband.
Mr J also contends that notice was given to the husband on or about 4 August 2021, that the equipment, being Motor Vehicle 1 and a trailer, was no longer required by D Pty Ltd and was available for collection by the husband. The equipment has not been collected.
DISCUSSION
The interim relief sought by the husband is problematic for a number of reasons.
It is not clear what powers the husband is relying on to pursue the various claims for interim relief. Contrary to the suggestion as contained in paragraph 11 of his amended Application in a Proceeding, the Court must identify the power being exercised at the time of its exercise.[1]
[1] Kryiakos & Kryiakos (2013) FLC 93-528 at 86,937, [37].
The claim against Mr B Odell and Mr C Odell is yet to be particularised, which makes the basis for the interim relief sought difficult to assess. The husband also seeks orders against entities that are not parties to the proceedings.
An order appointing a forensic accountant to examine all books and records necessary to determine the party liable to G Pty Ltd for a loan originally in the sum of $2,300,000, really seems to be an order seeking an audit of accounts. Until the husband has particularised his claim, it is impossible to determine if such an exercise would be warranted. It certainly would not be the forensic accountant’s role to determine “the party liable”, that would be a matter for the Court. Mr J has provided an explanation about the fate of the loan which, at least on its face, appears reasonable.
An order against Mr B Odell to cause H Pty Ltd to repay a loan to K Pty Ltd will trigger, according to Mr J, a domino effect which will result in the call in of loans owing by D Pty Ltd to H Pty Ltd, which far exceeds the loan owing by H Pty Ltd. Such a consequence would, according to Mr J, be detrimental to the husband. On its face, that seems likely to be correct. In any event, is not clear how s 79 of the FLA would support the order sought or, in the alternative, s 233 of the Corporations Act.
Section 79 empowers the Court to make an order “with respect to property of the parties to the marriage or either of them”. It has not been established that the order sought is one with respect to the property of the parties or either of them. The capacity to bind third parties pursuant to s 90AE of FLA is subject to significant limitations and conditions, none of which are apparent at this stage of the proceedings.
Section 233 sets out various orders the Court may make in circumstances where there are grounds for such an order under s 232, which is in the following terms:
The Court may make an order under section 233 if:
(a) the conduct of a company’s affairs; or
(b) an actual or proposed act or omission by or on behalf of a company; or
(c)a resolution, or a proposed resolution, of members or a class of members of a company;
is either:
(d) contrary to the interests of the members as a whole; or
(e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.
For the purposes of this Part, a person to whom a share in the company has been transmitted by will or by operation of law is taken to be a member of the company.
Whether there has been a breach of s 232 could only be determined at trial upon the proper particularisation of a case by the husband.
The power of the Court relied upon by the husband, to make an order for D Pty Ltd to pay the husband a pension of $3,500 per week is said to be s 200F(1)(aa) and s 200G of the Corporations Act.
Section 200F(1)(aa) provides:
(1) Section 200B(1) does not apply to:
…
(aa) a benefit given under an order of a court …
Section 200G is a lengthy provision, the relevance of which remains unclear. Section 200B essentially provides that retirement benefits generally need membership approval. Sections 200F and 200G do not provide a substantive right to any kind of payment. The husband has not established the basis upon which he is entitled to a retirement pension and in any event, such a right would be a matter for trial, after the husband has particularised his case.
To the extent the husband seeks disclosure orders against D Pty Ltd via Mr C Odell as a director, counsel for Mr C Odell submits that he does not have the “requisite possession and control of the documents” in the sense identified by the Full Court in Masoud & Masoud.[2] Mr C Odell is a director only. Sections 198F and 290 of the Corporations Act provide directors with a statutory right of access to books and financial records of a company however, the weight of authority suggests that a director’s access is limited to circumstances where the access is for a purpose directly related to the interests of the company, or where a director is defending a claim made against him/her by the company.[3]
[2] (2016) 54 Fam LR 245 at 251, [20].
[3] Schweitzerv Schweitzer [2012] FamCA 445; Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 at [251]–[254]; Dick v Alan Powell Holdings & Ors [2009] QSC 184 at [111]–[115]; Hardcastle v Advanced Mining Technologies Pty Ltd [2001] FCA 1846 at [23]–[25]; cf Kelly v Lomax [2014] FamCA 431.
Further, I would observe that a party only has an obligation to disclose documents that are relevant to an issue in the proceedings. Until the husband has filed Points of Claim and Points of Defence have been filed by Mr B Odell and Mr C Odell, it is not possible to identify the issues in the proceedings.
In the circumstances, the relief sought by the husband in his amended Application in a Proceeding filed on 24 February 2023 as against Mr B Odell and Mr C Odell will be dismissed.
In paragraph 9 of his amended Application in a Proceeding, the husband seeks specific disclosure against the wife. No submissions were made in relation to this relief either by the husband or the wife. The wife has an ongoing obligation to disclose information and documents relevant to the proceedings. Whether these particular documents are relevant to the s 79 proceedings or the application relating to the financial agreement is not apparent. Further, it is not apparent that the wife has failed to meet her obligations for disclosure. In those circumstances, I propose to dismiss the application in its entirety.
THE POWER TO DISMISS ALL OR PART OF A CLAIM
Section 69 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) empowers the Court to “make such order or direction as the Court thinks appropriate” including “dismiss[ing] the proceedings in whole or in part”, if a party fails to comply with a direction about the practice or procedure to be followed in relation to a civil proceeding.
Rule 10.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:
10.26 When a party is in default
(1)For the purposes of rule 10.27, an applicant is in default if the applicant fails to:
(a) comply with an order of the court in the proceeding; or
(b) file and serve a document required under these Rules; or
(c) produce a document as required by Division 6.2.2; or
(d) do any act required to be done by these Rules; or
(e) prosecute the proceeding with due diligence.
Rule 10.27 of the Rules provides:
10.27 Orders on default
(1) If an applicant is in default, the court may order that:
(a)the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or
(b)a step in the proceeding be taken within the time limited in the order; or
(c)if the applicant does not take a step in the time referred to in paragraph (b)—the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant.
(2) If a respondent is in default, the court may:
(a)order that a step in the proceeding be taken within the time limited in the order; or
(b) give judgment or make any other order against the respondent; or
(c)make an order referred to in paragraph (b) to take effect if the respondent does not take a step ordered by the court in the proceeding in the time limited in the order.
(3)The court may make an order of the kind referred to in subrule (1) or (2), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
DISCUSSION
In Wayne & Dillon,[4] Warnick J (sitting as the Full Court) said:
17. … Any person joined to a proceeding ought, at that point, be able to take advice on whether the facts pleaded (if established) would lead to a successful claim. Joinder to litigation is a serious step with often significant financial consequences.
[4] (2008) 40 Fam LR 543.
In B Pty Ltd v Ors & K and Anor,[5] the Full Court allowed an appeal by third parties concerned with relief sought under Part VIIIAA of the FLA and said:
52. We do not accept that it is proper to allow joinder of third parties merely upon the formulation of a paragraph in, or to be added to, an application, on the basis that at trial facts to support the application may be asserted and proved. Sufficient facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought.
[5] (2008) 39 Fam LR 488.
The very point of pleadings is to enlighten a party as to the case they will meet at trial. As the High Court said in Dare v Pulham[6]:
Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it …; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial …; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings…
(citations omitted)
[6] (1982) 148 CLR 658 at 664.
Allegations of fraud, in particular, must be pleaded distinctly and with particularity and clearly proved.[7]
[7] Krakowsi & Anor v Eurolynx Properties Limited and Anor (1995) 183 CLR 563 at 573.
The husband contends that as he no longer has legal representation, he cannot comply with his obligation to file Points of Claim. The husband gives no evidence of what attempts he has made to obtain legal representation since 14 June 2022 (when his previous lawyer filed a Notice of Ceasing to Act) and in this context, I note the husband’s evidence that, as at 22 September 2022, he had equity in his home of nearly $1,000,000.
To date Mr B Odell and Mr C Odell have incurred legal fees of nearly $285,000.
Mr B Odell and Mr C Odell are entitled to know with precision the case against them. The husband has had more than ample time to comply with his obligation to file Points of Claim. Accordingly, I propose to dismiss those parts of the husband’s Amended Response filed 1 March 2022 which seek orders against Mr B Odell and Mr C Odell (and entities and assets related to them) (being all of the relief sought in Annexure A of the Amended Response filed 1 March 2022, other than the following paragraphs: 1 to 4, 50, 55, 56, 61 to 70, 72 and the parts of 73 which do not concern Mr B Odell or Mr C Odell). Mr B Odell and Mr C Odell will be removed as parties.
COSTS
In the absence of any submissions relating to costs, I will provide an opportunity for Mr B Odell and Mr C Odell and the husband to file brief written submissions (no more than five pages). Unless the parties request otherwise, any order for costs will be considered in Chambers without the need for any party to attend in person.
MISCELLANEOUS
The proceedings as between the husband and the wife remain pending and I propose to list the matter for mention in order to make directions for trial or otherwise.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 25 August 2023
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