Palau & Ors and Palau & Anor - [2017] FamCA 961

FAMILY COURT OF AUSTRALIA

PALAU AND ORS & PALAU AND ANOR

[2017] FamCA 961

FAMILY LAW – PRACTICE AND PROCEDURE – INJUNCTION – Where the applicants seek to be joined to the proceedings currently on foot between the first and second respondents – Where certain injunctions were also sought against the Husband – Whether the applicants are a necessary party to the proceedings – Where the Husband has provided an undertaking not to cause the reappointment of a receiver or controller – Whether sufficient evidence to warrant further injunctions

Family Law Rules 2004 (Cth)

Mullen and De Bry (2006) FLC 93-293
Waugh and Waugh (2000) FLC 93-052

FIRST APPLICANT:

Mr A Palau

SECOND APPLICANT:

Mr Dylan

THIRD APPLICANT:

B Pty Ltd ACN …

FIRST RESPONDENT:

Ms C Palau

SECOND RESPONDENT:

Mr D Palau

FILE NUMBER:

BRC

6537

2017

DATE DELIVERED:

28 November 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

27 November 2017

REPRESENTATION

COUNSEL FOR THE FIRST, SECOND, AND

THIRD APPLICANTS:

Mr Coulsen

SOLICITOR FOR THE APPLICANT:

Stone Group Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Jordan

SOLICITOR FOR THE FIRST

RESPONDENT:

Phillips Family Law

COUNSEL FOR THE SECOND

RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Upon the continuation of the undertaking given by the applicants on 14 November 2017

and upon undertaking of the husband not to cause the reappointment of a receiver or controller to BPL projects pty ltd until further order

Orders

That Mr A Palau, Mr Dylan and B Pty Ltd (“the interveners”) be joined to the proceedings pursuant to Rule 6.02 of the Family Law Rules 2004 (Cth).
That on or before 4.00pm 31 January 2018 Mr D Palau file and serve an Amended Initiating Application setting out the orders sought against the interveners and a Statement of Claim particularising his claim against the interveners.
That on or before 4.00pm 28 February 2018 the interveners file and serve a Response to the Amended Initiating Application and a Defence to the Statement of Claim.
That paragraphs 8, 9 and 10 of the Application in a Case (as amended by leave) filed 24 November 2017 be adjourned to the trial judge.
That paragraph 11 of the Application in a Case (as amended by leave) filed 24 November 2017 be dismissed.
That the Application in a Case (as amended by leave) filed 24 November 2017 be otherwise dismissed.
That any extant application for interim orders be dismissed.

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 Palau and Ors & Palau and Anor 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…

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.

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Details

Case: [2017] FamCA 961
Decision Date: 28 November 2017

CaseChat Overview and Summary

In the Family Court of Australia, His Honour Justice Carew considered an application by Mr A Palau, Mr Dylan, and B Pty Ltd seeking to be joined as interveners to proceedings between Mr D Palau and another party. The primary dispute involved Mr D Palau's claim against these proposed interveners, which was to be particularised in an amended initiating application and statement of claim.

The court was required to determine whether to grant the interveners leave to join the proceedings and to establish the procedural steps for the subsequent pleadings. Additionally, the court had to consider specific paragraphs of an existing application filed by Mr D Palau, deciding which should be adjourned to trial and which should be dismissed.

Justice Carew ordered that the interveners be joined to the proceedings pursuant to Rule 6.02 of the Family Law Rules 2004 (Cth). The court directed Mr D Palau to file and serve an amended initiating application and statement of claim detailing his claims against the interveners by 31 January 2018. The interveners were then required to file and serve their response and defence by 28 February 2018.

The court further ordered that paragraphs 8, 9, and 10 of Mr D Palau's amended application be adjourned to the trial judge, while paragraph 11 of that application was dismissed. The application in a case filed on 24 November 2017 was otherwise dismissed, as were any extant applications for interim orders.

Orders

Orders of the court

That Mr A Palau, Mr Dylan and B Pty Ltd (“the interveners”) be joined to the proceedings pursuant to Rule 6.02 of the Family Law Rules 2004 (Cth).

That on or before 4.00pm 31 January 2018 Mr D Palau file and serve an Amended Initiating Application setting out the orders sought against the interveners and a Statement of Claim particularising his claim against the interveners.

That on or before 4.00pm 28 February 2018 the interveners file and serve a Response to the Amended Initiating Application and a Defence to the Statement of Claim.

That paragraphs 8, 9 and 10 of the Application in a Case (as amended by leave) filed 24 November 2017 be adjourned to the trial judge.

That paragraph 11 of the Application in a Case (as amended by leave) filed 24 November 2017 be dismissed.

That the Application in a Case (as amended by leave) filed 24 November 2017 be otherwise dismissed.

That any extant application for interim orders be dismissed.

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

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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