Peters and Peters and Ors - [2011] FamCA 856

FAMILY COURT OF AUSTRALIA

PETERS & PETERS & ORS

[2011] FamCA 856

FAMILY LAW – INTERLOCUTORY PROCEEDINGS – contravention, damages and penalties under Corporations law - order for the issue of a replacement Certificate of Title - mandatory injunctions for restoration of funds - injunctions in relation to practice and procedure - declaration of proceedings as vexatious.

Family Law Act 1975 (Cth) ss 114, 118
Corporations Act 2001 (Cth) ss 1317E & 1317J
Real Property Act 1900 (NSW) s 138

One.Tel Limited (In Liquidation) v John David Rich and Ors [2005] NSWSC 226 (23 March 2005); Rich v ASIC (2004) 209 ALR 271; Scott Darren Pascoe in his capacity as liquidator of Charter Workforce Pty Ltd (In Liq) and Anor v Divisional Security Group Pty Ltd and Ors [2007] NSWSC 211 (14 March 2007); The Attorney-General and Wentworth (1988) 14 NSWLR 481 at 491; Oceanic Sun Line Special Shipping Co Inc v Fay (1998) 62 ALJR 389; 79 ALR; Vlug & Poulos [1997] FCA 92-778; Lindberg & Scott [2009] FamCA 465.

APPLICANT:

Ms Peters

RESPONDENT:

Mr Peters

FILE NUMBER:

TVC

1541

2007

DATE DELIVERED:

11 March 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

28 January 2011

REPRESENTATION

THE APPLICANT:

Wife in person

COUNSEL FOR THE RESPONDENT:

Mr B Mr Rs

SOLICITOR FOR THE RESPONDENT:

Ms F Lawyers Pty Limited

Mr R Peters in person

SOLICITOR FOR MINISTER NSW

NSW State Crown Solicitor

SOLICITOR FOR SUNDRY

RESPONDENTS:

Mr C. Dimock

Orders

An order is made in terms of the order sought at paragraph 3 of the husband’s Application in a Case filed 9 September 2010 as follows:
3.That in furtherance of Order 3 of the Orders made by Federal Magistrate Kemp on 27 October 2010 the Court make the following Order to require that the Registrar General of NSW do all things and sign all documents to:
3.1In accordance with Section 138 of the Real Property Act 1900 issue a new edition of Certificate of Title in relation to the property being that parcel of land contained in Certificate of Title Folio Identifier … and known as B Street, Suburb C, Sydney (Suburb C).
3.2That upon the Certificate of Title being issued the Registrar General process the Application for Transfer of the property to D Pty Ltd (as Trustee of the E Super Fund).
3.3That upon completion of the Certificate of Title pertaining to Suburb C to D Pty Ltd the Certificate of Title issued in the name of D Pty Ltd be forwarded to F Pty Ltd, P.O. Box ... G Suburb to be held in safety custody.
Otherwise the Applications in a Case filed on behalf of the wife on 2 August 2010 and 24 September 2010 and her Responses filed 17 September 2010 and 21 September 2010 and the husband’s Application in a Case filed 9 September 2010 and his Response filed 2 November 2010 are dismissed.

IT IS NOTED that publication of this judgment under the…

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: [2011] FamCA 856
Decision Date

CaseChat Overview and Summary

In *Peters and Peters and Ors*, the New South Wales Supreme Court, Equity Division, considered the standing of parties to apply for declarations of contravention and compensation orders under the *Corporations Act 2001* (Cth). The case involved an application by a liquidator, which raised questions about who is empowered to seek such declarations and orders.

The central legal issue before the Court was to determine the correct interpretation of sections 1317E and 1317J of the *Corporations Act 2001*, specifically concerning which parties have standing to apply for a declaration of contravention and a compensation order. The Court was required to ascertain whether a corporation or its liquidator could apply for a declaration of contravention, or if such applications were exclusively reserved for the Australian Securities and Investments Commission (ASIC).

The Court's reasoning, drawing on previous decisions in *One.Tel Limited (In Liquidation) v John David Rich and Ors* and *Scott Darren Pascoe (as liquidator of Charter Workforce Pty Ltd) v Divisional Security Group Pty Ltd and Ors*, clarified that section 1317J(1) of the *Corporations Act 2001* grants ASIC the exclusive right to apply for a declaration of contravention. Section 1317E, while requiring the court to make a declaration if satisfied of a contravention, operates in conjunction with section 1317J(1) and is therefore contingent on an application being made by ASIC. Consequently, neither a corporation nor its liquidator possesses the standing to apply for a declaration of contravention under section 1317E.

Orders

Orders of the court

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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

Section 1317J of the Corporations Act 2001 provides as follows:Who may apply for a declaration or order Application by ASIC (1) ASIC may apply for a declaration of contravention, a pecuniary penalty order or a compensation order. Application by corporation (2) The corporation, or the responsible entity for the registered scheme, may apply for a compensation order. Note: An application for a compensation order may be made whether or not a declaration of contravention has been made under section 1317E. (3) The corporation, or the responsible entity for the registered scheme, may intervene in an application for a declaration of contravention or a pecuniary penalty order in relation to the corporation or scheme. The corporation or responsible entity is entitled to be heard on all matters other than whether the declaration or order should be made. Compensation order relating to financial services civil penalty provision--any other person who suffers damage may apply (3A) Any other person who suffers damage in relation to a contravention, or alleged contravention, of a financial services civil penalty provision may apply for a compensation order under section 1317HA. Note: An application for a compensation order may be made whether or not a declaration of contravention has been made under section 1317E. No one else may apply (4) No person may apply for a declaration of contravention, a pecuniary penalty order or a compensation order unless permitted by this section. (5) Subsection (4) does not exclude the operation of the Director of Public Prosecutions Act 1983 . In One.Tel Limited (In Liquidation) v John David Rich and Ors [2005] NSWSC 226 (23 March 2005), Bergin J of the New South Wales Supreme Court, Equity Division, said at paragraph 26 referring to the joint judgment of the Chief Justice, Justices Gummow, Hayne, Callinan and Heydon, in Rich v ASIC (2004) 209 ALR 271:26 …. The joint judgment referred to s 1317E as giving the power to “seek” declarations. With the greatest respect, that appears to be a typographical error or slip because s 1317J(1) is the section giving the power, or entitlement, to ASIC to “seek” declarations of contravention. Section 1317E is a section requiring the Court to make a declaration of contravention if it is satisfied that there has been a contravention of the civil penalty provision listed in the subsection. Later at paragraph 28 Justice Bergin went on:28. Importantly the joint judgment identified the respective "relief" provided by the two sections. The so-called "relief" provided for in s 1317E could only be the declaration of contravention, for which it is necessary to demonstrate contravention of a civil penalty provision. Only ASIC has standing to make such an application. … In Scott Darren Pascoe in his capacity as liquidator of Charter Workforce Pty Ltd (In Liq) and Anor v Divisional Security Group Pty Ltd and Ors [2007] NSWSC 211 (14 March 2007), Justice White of the NSW Supreme Court, Equity Division, said at paragraph 14:14.Neither the corporation nor its liquidator has standing to apply for a declaration of contravention under s 1317E (ss 1317J(1) and (4)). Accordingly, the Court could not make a declaration of contravention under s 1317E upon an application by the liquidator under s 588M (One.Tel Limited (In Liq) v Rich at [67]). Section 1317E deals with a case where an application is made by ASIC under s 1317J(1) for a declaration under s 1317E. In other words, it is to be understood as providing that if in a proceeding brought for a declaration under that section, a Court is satisfied that a person has contravened a civil penalty provision, then the Court must make a declaration of contravention.