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Rigby & Kingston (No. 3)

Rigby & Kingston (No. 3)

Case [2021] FamCA 146 22 March 2021

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FAMILY COURT OF AUSTRALIA
Rigby & Kingston (No. 3) [2021] FamCA 146

File number(s): BRC 12882/2016

Judgment of: CAREW J

Date of judgment: 22 March 2021

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Disjoinder – Where 20^th, 23^rd, 29^th and 30^th respondents argue that the husband has not complied with his obligation to amend his final relief sought – Where no order is sought against the respondents and no contentions of fact or law have been pleaded to justify the respondents remaining in the proceedings – Where it is found that in the absence of any pleading identifying how the rights of the parties may be directly affected, it is not apparent why the 20^th, 23^rd, 29^th and 30^th respondents should remain as parties to the proceedings – Where the husband has failed to establish how the 20^th, 23^rd, 29^th and 30^th respondents are necessary parties to the proceedings and are to be removed.

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where the other respondents sought a review of the deputy registrar’s decision to dismiss 19 objections to subpoena to produce documents – Where the named persons who are required to produce documents pursuant to subpoena argue that apparent relevant cannot be established, that the subpoenas are oppressive and that the subpoenas have been issued for the purpose of discovery – Where it is found that the objection taken on the grounds of relevance fails as the documents defined have an apparent relevance to the claim made by the husband – Where it is found that the named persons have established oppression in relation to the definition of “related entities” as the named person would be required to make a judgment about what is a “related entity” and a judgment of that nature is not a straightforward task – Where it is found that the subpoenas do not seek to impose on the named persons a process of discovery as the subpoenas seek production of identified documents from defined entities – Where aspects of the 19 objections to the production of subpoenas are upheld.

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas- Conduct Money – Where the husband paid the minimum amount of conduct money to each named person served with a subpoena – Where the named persons incurred further costs – Where it is found that the named persons have incurred a substantial expense that is greater than the amount of conduct money paid – Where the husband is ordered to pay the further specified amount by way of conduct money.

Legislation:
Corporations Act 2001 (Cth)

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Cases cited:
Commissioner for Railways v Small (1938) 38 SR (NSW) 564

Fordyce v Ryan (2017) 2 Qd R 240

Hatton v Attorney General of the Commonwealth of Australia and Ors (2000) FLC 93-038

Moriarty & Moriarty (2009)

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.

Continue reading Rigby & Kingston (No. 3)

Details

AGLC: Rigby & Kingston (No. 3) [2021] FamCA 146
Case: [2021] FamCA 146
Decision Date: 22 March 2021

CaseChat Overview and Summary

This case involved a dispute between a husband and wife in family law proceedings, with numerous corporate entities and individuals joined as respondents. The primary issues before the court concerned the disjoinder of certain respondents and the review of a deputy registrar's decision regarding objections to subpoenas. Specifically, several respondents argued they should be removed from the proceedings as no orders were sought against them and no factual or legal contentions justified their continued involvement. Additionally, named persons subject to subpoenas argued that the requests were irrelevant, oppressive, and constituted an improper attempt at discovery. The husband also sought further conduct money for those served with subpoenas.

The court was required to determine whether the 20th, 23rd, 29th, and 30th respondents should be removed from the proceedings, given the absence of pleaded claims against them and their assertion that their rights were not directly affected. Furthermore, the court had to consider the validity of objections to subpoenas, specifically whether the documents sought were relevant, whether the subpoenas were oppressive, and if they were being used for discovery. The court also needed to address the adequacy of conduct money paid by the husband to those served with subpoenas.

In relation to the disjoinder applications, the court found that the husband had failed to establish why the 20th, 23rd, 29th, and 30th respondents were necessary parties, as no specific claims or contentions of fact or law had been pleaded to justify their continued inclusion. Regarding the subpoenas, the court determined that the documents sought had an apparent relevance to the husband's claims. However, it found that the definition of "related entities" within the subpoenas was oppressive, requiring the named persons to make subjective judgments. The court also clarified that the subpoenas sought production of identified documents rather than imposing a general discovery process. Consequently, aspects of the objections were upheld, and the husband was ordered to pay additional conduct money to cover the substantial expenses incurred by the subpoenaed parties.

The court ordered the removal of the 20th, 23rd, 29th, and 30th respondents as parties to the proceedings. It dismissed an application seeking a review of the deputy registrar’s decision to hear objections to subpoenas in chambers without an oral hearing. The court also upheld objections to the production of documents in accordance with certain subpoenas to the extent that the definition of "related entities" was found to be oppressive, limiting the scope of documents to be produced. Finally, the husband was ordered to pay a specified additional amount for conduct money.

Orders

Orders of the court

1. The 20th, 23rd, 29th and 30th respondents be removed as parties to the proceedings.

2. The application in a case filed 4 March 2021 seeking a review of the Deputy Registrar’s decision to hear the objections to subpoena in chambers without an oral hearing be dismissed.

3. Paragraph 2 of the husband’s Response to the Applications in a Case filed 10 March 2021 as amended by leave on 11 March 2021, to discharge the stay of the third party respondents’ obligations, including any disclosure obligations, be adjourned for mention on 13 April 2021 at 10.00am.

4. The order made on 5 March 2021 be discharged.

5. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by T Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, T Pty Ltd in its own right and/or in its capacity as trustee for the Kingston Group Super Fund, and/or in its capacity as trustee for the Kingston Pty Ltd Super Fund and/or in its capacity as trustee for the U Unit Trust and/or in its capacity as trustee for the V Unit Trust, is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, T Pty Ltd in its own right is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(c) In relation to subparagraph 3(c) of the subpoena, T Pty Ltd in its capacity as trustee for the Kingston Group Super Fund is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(d) In relation to subparagraph 3(d) of the subpoena, T Pty Ltd in its capacity as trustee for the Kingston Pty Ltd Super Fund is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(e) In relation to subparagraph 3(e) of the subpoena, T Pty Ltd in its capacity as trustee for the U Unit Trust is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(f) In relation to subparagraph 3(f) of the subpoena, T Pty Ltd in its capacity as trustee for the V Unit Trust is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

6. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by S Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, S Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, S Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

7. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by Q Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, Q Pty Ltd in its own right and/or in its capacity as trustee for the Kingston Finance Unit Trust is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, Q Pty Ltd in its own right is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(c) In relation to subparagraph 3(c) of the subpoena, Q Pty Ltd in its capacity as trustee for the Kingston Finance Unit Trust is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

8. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by O Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, O Pty Ltd in its own right and/or in its capacity as trustee for the P Unit Trust is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, O Pty Ltd in its own right is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(c) In relation to subparagraph 3(c) of the subpoena, O Pty Ltd in its capacity as trustee of the P Unit Trust is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

9. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by Kingston (NSW) Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, Kingston (NSW) Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, Kingston (NSW) Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

10. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by Kingston Constructions Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, Kingston Constructions Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as they are not defined.

(b) In relation to subparagraph 3(b) of the subpoena, Kingston Constructions Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as they are not defined.

11. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by Kingston Developments Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, Kingston Developments Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, Kingston Developments Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

12. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by Kingston Group Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, Kingston Group Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, Kingston Group Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

13. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by Kingston Holdings Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, Kingston Holdings Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, Kingston Holdings Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

14. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by Kingston Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, Kingston Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, Kingston Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

15. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by N Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, N Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, N Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

16. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by Kingston Consolidated Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, Kingston Consolidated Pty Ltd in its own right and/or in its capacity as trustee for the Kingston Group Trust is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, Kingston Consolidated Pty Ltd in its own right is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(c) In relation to subparagraph 3(c) of the subpoena, Kingston Consolidated Pty Ltd in its capacity as trustee for the Kingston Group Trust is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

17. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by K Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, K Pty Ltd in its own right is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, K Pty Ltd in its own right is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(c) In relation to subparagraph 3(c) and 3 (d) of the subpoena, K Pty Ltd in its capacity as trustee for the Kingston Family Trust and /or in its capacity as trustee for Kingston Special Trust is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

18. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by J Holdings Pty Ltd (Registered Number …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, J Holdings Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, J Holdings Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

19. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by J Pty Ltd Registered Number … on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, J Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, J Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

20. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by R Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, R Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, R Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

21. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by L Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, L Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, L Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

22. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by H Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, H Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, H Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

23. The objection to the production of documents in accordance with a subpoena issued 21 December 2020, filed by M Pty Ltd (ACN: …) on 11 January 2021 be upheld to the following extent:

(a) In relation to subparagraph 3(a) of the subpoena, M Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

(b) In relation to subparagraph 3(b) of the subpoena, M Pty Ltd is not required to produce any documents for ‘related entities’ of the wife as defined in the subpoena other than the following:

(i) Kingston Testamentary Trust;

(ii) E Pty Ltd;

(iii) Ms Kingston Family Trust; and

(iv) D Pty Ltd.

24. Subject to the provisions of this order, leave is granted to the legal representatives for the parties to inspect and copy documents produced by the following named persons required to produce documents pursuant to subpoenas issued on 21 December 2020:

(a) T Pty Ltd;

(b) S Pty Ltd;

(d) O Pty Ltd;

(e) Kingston (NSW) Pty Ltd;

(f) Kingston Constructions Pty Ltd;

(g) Kingston Developments Pty Ltd;

(h) Kingston Group Pty Ltd;

(i) Kingston Holdings Pty Ltd;

(j) Kingston Pty Ltd;

(k) N Pty Ltd;

(l) Kingston Consolidated Pty Ltd;

(m) K Pty Ltd;

(n) J Holdings Pty Ltd;

(o) J Pty Ltd;

(p) R Pty Ltd;

(q) L Pty Ltd;

(r) H Pty Ltd; and

(s) M Pty Ltd.

25. The husband shall pay within 90 days an additional $7,367.45 to the named persons required to produce documents pursuant to subpoenas issued on 21 December 2020.

26. The Applications in a Case filed 3 March 2021 and 8 March 2021 and the Response filed 10 March 2021 as amended by leave on 11 March 2021 be otherwise dismissed save as to costs.

27. Any application for costs be determined in chambers upon the filing of written submissions within 14 days unless a party requests the matter to be listed for an oral hearing.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The wife took no active part in the hearing although she was represented and present. BACKGROUND It may be useful to set out some background to this dispute which involves not only the husband and wife but also her two brothers (the 2nd and 3rd respondents) and eight corporate entities, although some of the entities are the same but joined in different capacities. For convenience I produce the following history which was set out in my reasons for judgment dated 13 November 2020[2] at [3] – [14]:[2] Rigby & Kingston and Ors (No 3) [2020] FamCA 958 citing Rigby & Kingston and Ors (No 2) [2020] FamCA 695 (anonymised).3. The background to the dispute is set out in my Reasons for the factual findings delivered on 18 August 2020 at [7] to [15]. In short, after a long marriage which produced two children, the husband retains very few assets and is currently an unemployed chartered accountant living in a share house while the wife estimates her wealth to be in the vicinity of $7,000,000, including superannuation, and her average weekly income is $3,749. The husband and wife separated in 2015. 4. In my Reasons earlier referred to, I have described this case as unique, in circumstances where: a)The wife’s wealth was largely derived from her father; b)After their marriage in 1991 and until 2007, the husband and wife kept their finances separate and shared joint living expenses;c)After 2007, the wife assumed a greater than equal share of the joint expenses and there was some minimal intermingling of their financial arrangements;d)The joint expenses throughout the marriage did not include accommodation expenses which were met solely by the wife;e)The husband and wife never owned property jointly nor operated joint bank accounts;f)They maintained ledgers of their respective expenditure which were adjusted at regular intervals;g)There were significant periods throughout their marriage when the husband was unemployed or underemployed;h)Despite his greater availability, the husband’s contributions as homemaker and parent did not exceed those of the wife; andi)The wife worked in her family’s business throughout the marriage and her financial contributions during the marriage greatly exceeded those of the husband. In recounting the above matters, I am referring to matters of common ground or the factual findings made by me on 18 August 2020 as set out in the Reasons at [33], [38], [61] – [64], [88] – [89], [92], [94], [100]. [101], [104], [111], [118], [119], [121], [123]. 5. Prior to his death in 2008, the wife’s father made it clear to her and her two brothers, Mr G Kingston and Mr F Kingston (both of whom are respondents in these proceedings), that he did not want the wealth created by him over his lifetime distributed to any spouse of his children or grandchildren. His Will reiterated those intentions and the testamentary trust established by him (the Kingston Testamentary Trust) sought to protect that wealth in accordance with those stated intentions. 6. Under the testamentary trust, the wife and her two children and the wife’s two brothers and their children are included as beneficiaries, as are any company in which any of the identified beneficiaries are a shareholder and any trust of which they are eligible beneficiaries. As at July 2019, Mr G Kingston had four children and Mr F Kingston had two children and four grandchildren. 7. The trustees of the trust are the wife and her two brothers. 8. On 13 February 2014, the testamentary trust was varied by the wife and her two brothers and one consequence of the variation was to extend the cessation date of the trust from 2026 to 2040 or a date unanimously agreed in writing by the wife and her two brothers (so long as they remain ‘active members’ as defined therein). The deed is referred to as the “Umbrella Deed”. 9. The Umbrella Deed recites that: a)The wife and her two brothers are the remaining trustees appointed under their father’s Will (their mother having passed away);b)Each of them work in the business/es of the Kingston Group and is entitled to share in any income or capital distributions made under the Will; c)They have certain intentions in regards to:i.Their ongoing entitlements until 2040;ii.Their ongoing entitlements in the event that they retire etc;iii.The ultimate winding up of the Kingston Group on the cessation date. 10. The Kingston Group is defined by reference to schedule 1 to the Umbrella Deed.11. The underlying principles for the arrangement set out in the Umbrella Deed include (unless the wife and her two brothers unanimously agree in writing to the contrary) that:a)The wife and her two brothers shall remain active in the Kingston Group and share in the management;b)They shall administer the Will according to its terms;c)They shall each be paid an equal minimum annual dividend determined in accordance with an annual program and a share of profits not exceeding ten percent of net profits (the annual program relates to the Kingston Group);d)In addition, they shall each be paid a salary;e)No other directors are to be appointed;f)No further shares or units will issue in any entity within the Kingston Group;g)No shares or units will be transferred or redeemed; andh)They must do everything required to wind up the Kingston Group on 30 June 2040.12. Upon the winding up of the Kingston Group, the net amount realised is to be distributed equally among the wife and her two brothers subject to any adjustments required under the Umbrella Deed. 13. The husband commenced the substantive proceedings in 2016 and by his Initiating Application he seeks 35% of the property of the wife and himself (although the property in his name is de minimis). The wife argues that it is not just and equitable to make any property order. 14. A major source of dispute in this matter relates to the nature of the wife’s interests in the Kingston Group. The wife concedes that she has a right to due consideration as an eligible beneficiary of certain trusts within the Kingston Group and a right to due administration, but argues that as she does not control the Kingston Group, her interests represent, on a practical level, at best, a financial resource. The husband argues that the wife’s interests represent ownership of one third of the value of the Kingston Group. As such, he seeks, among other things, to bring forward the vesting date of various trusts within the Kingston Group, including the Kingston Testamentary Trust and a distribution to the wife of one third of the value thereof.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

“The case that [the husband is] bringing, which is not a fanciful case – it is a contested case, but it’s not a fanciful case, based on the terms of the will, the terms of the umbrella deed, and the pattern of distributions – it is absolutely, fairly and squarely requiring the trusts to be part of the proceedings”.Conclusion - disjoinder The only reference to the Unit Trusts in the Initiating Application is as follows:1. That pursuant to sections 79, 90AE and/or 90AF of the Family Law Act 1975 (“the Act”) the first, second and third respondents in their capacities as: (a) trustees of the Last Will and Testament of Mr Kingston dated 5 May 2005 (“the Will”); (b) Active Members under the Umbrella Deed entered between the first, second and third respondents and dated 13th day of February 2014 (“the Umbrella Deed”); and (c) Directors of the 8th, 9th, 12th, 20th, 23rd, 29th and 30th Respondents cause the 8th, 9th, 12th, 20th, 23rd, 29th and 30th Respondents to make such payment to the Husband as is required to effect a property settlement in his favour representing 35% of the total of A plus B plus C where: A = the assets in the name of the Wife; B = the assets in the name of the Husband; and C = one-third of the value of the Kingston Group.…4. In the alternative to paragraphs 1, 2 and 3 above, that this Honourable Court: …(d) pursuant to section 90AF of the Act, order the first, second and third respondents in their capacities as: …(3) Directors of the 8th, 9th, 12th, 20th, 23rd, 29th and 30th Respondents; provide the Husband with:(4) annual financial statements of the 8th, 9th, 12th, 20th, 23rd, 29th and 30th Respondents, including without being limited to taxations returns, profit and loss statements and balance sheets within 7 days of such documents being produced; and(5) 14 days’ notice of any intended distribution from any of the 8th, 9th, 12th, 20th, 23rd, 29th and 30th Respondents.5. In the alternative to paragraphs 1, 2, 3 and 4 above, that this Honourable Court: …(c) pursuant to section 90AF of the Act, order the first, second and third respondents in their capacities as:…(3) Directors of the 8th, 9th, 12th, 20th, 23rd, 29th and 30th Respondents;to provide the Husband with:(4) annual financial statements of the 8th, 9th, 12th, 20th, 23rd, 29th and 30th Respondents, including without being limited to taxations returns, profit and loss statements and balance sheets within 7 days of such documents being produced; and(5) 14 days’ notice of any intended distribution from any of the 8th, 9th, 12th, 20th, 23rd, 29th and 30th Respondents.(emphasis added) Apart from pleading matters of identification in respect of the Unit Trusts no facts or contentions of law are pleaded to justify the joinder of the Unit Trusts. When a number of other respondents were removed as parties on 26 May 2020[6] I noted the following at [58]:58. With the consent of the third party respondents, the husband will nevertheless have a further opportunity to state with precision the order sought against each of the remaining third party respondents and to plead the factual basis to support the orders sought.[6] Rigby & Kingston (n 3).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Rigby & Kingston (No. 3) [2021] FamCA 146

Most Recent Citation

Ristani & Ristani [2025] FedCFamC2F 569

Cases citing this decision · 2 of 2 shown

Ristani & Ristani
[2025] FedCFamC2F 569 Para 7

…Senior counsel also helpfully referred me to the matter of Rigby & Kingston (No 3) [2021] FamCA 146 (‘ Rigby ’) where Carew J referred to legislation relied upon by senior counsel: 41In my reasons for judgment dated 26 May 2020 I quoted the following authorities from [15]: 15. In Wayne & Dillon , Warnick J (sitting…
Ramirez & Ramirez
[2024] FedCFamC1F 403 Para 13

…r proper or just and convenient. These are matters which ought to have been addressed pursuant to the reasoning of Rigby & Kingston (No. 3) [2021] FamCA 146. SUBMISSIONS OF THE PROPOSED SECOND RESPONDENT…

View all 2 citing cases →

Cases cited in this decision · 10 of 10 shown

Rigby and Kingston & Ors
[2020] FamCA 958 Para 7

…uce the following history which was set out in my reasons for judgment dated 13 November 2020[2] at [3] – [14]: [2] Rigby & Kingston and Ors (No 3) [2020] FamCA 958 citing Rigby & Kingston and Ors (No 2) [2020] FamCA 695 (anonymised). 3. The background to the dispute is set out in my Reasons for the factual finding…
Rigby and Kingston & Ors (No. 2)
[2020] FamCA 695 Para 7

…s for judgment dated 13 November 2020[2] at [3] – [14]: [2] Rigby & Kingston and Ors (No 3) [2020] FamCA 958 citing Rigby & Kingston and Ors (No 2) [2020] FamCA 695 (anonymised). 3. The background to the dispute is set out in my Reasons for the factual findings delivered on 18 August 2020 at [7] to [15]. In short,…
Rigby & Kingston
[2020] FamCA 415 Para 11

…ended “until the husband complies with his obligations pursuant to paragraph 3 of the Order dated 13 December 2019”. [3] Rigby & Kingston and Ors [2020] FamCA 415 at [39] – [44] (“ Rigby & Kingston ”) (anonymised). [4] Ibid at [45] – [50].…
Fordyce v Ryan
[2016] QSC 307 Para 29

…in nature because the trustee and some beneficiaries subsequently choose no longer to abide by the obligations of the trust relationship”.[9] [9] Fordyce v Ryan (2017) 2 Qd R 240 at 248, [39].…
X Pty Ltd and Ors & Merhi
[2015] FamCA 622

…[2020] FamCA 958 Santos Limited and Ors & Pipelines Authority (1996) 66 SASR 38 X Pty Ltd v Merhi [2015] FamCA 622 Number of paragraphs: 92 Date of last submission/s: 15 March 2021 Date of hearing: 11 March 2021 Place: Brisbane Counsel for the Applicant: Dr Ingleby Solicitor for the Applicant: HopgoodGanim Lawyers…
Perdaman Chemicals and Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd [No 6]
[2012] WASC 450

…WLR 372 Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd (No 6) [2012] WASC 450 Rigby & Kingston and Ors [2020] FamCA 415 Rigby & Kingston and Ors (No 2) [2020] FamCA 695 Rigby & Kingston and Ors (No 3) [2020] FamCA 958 Santos Limited and Ors & Pipelines Authority (1996) 66 SASR 3…
Moriarty & Moriarty
[2009] FamCA 369

…v Attorney General of the Commonwealth of Australia and Ors (2000) FLC 93-038 Moriarty & Moriarty (2009) 243 FLR 409 National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mining Company Pty Ltd (No 6) [2012] WASC 450 Rigby &…
Hatton v Attorney-General of Commonwealth of Australia & Ors
[2000] FamCA 892

…cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Fordyce v Ryan (2017) 2 Qd R 240 Hatton v Attorney General of the Commonwealth of Australia and Ors (2000) FLC 93-038 Moriarty & Moriarty (2009) 243 FLR 409 National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 Perdaman Chemicals & Fertilisers Pty Ltd v The Griffin Coal Mini…
Santos Ltd v Pipelines Authority of South Australia
[1996] SASC 5578

…695 Rigby & Kingston and Ors (No 3) [2020] FamCA 958 Santos Limited and Ors & Pipelines Authority (1996) 66 SASR 38 X Pty Ltd v Merhi [2015] FamCA 622 Number of paragraphs: 92 Date of last submission/s: 15 March 2021 Date of hearing: 11 March 2021 Place: Brisbane Counsel for the Applicant: Dr Ingleby Solicitor for t…
Commissioner for Railways v Small
(1938) 38 SR 564

…n: Corporations Act 2001 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Cases cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Fordyce v Ryan (2017) 2 Qd R 240 Hatton v Attorney General of the Commonwealth of Australia and Ors (2000) FLC 93-038 Moriarty & Moriarty (2009) 243 FLR 409 National Employers' Mutual G…

Legislation cited in this decision · 3

Corporations Act 2001 (Cth)
1 mention
Family Law Act 1975 (Cth)
1 mention (from Para 9)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)

File number(s):	BRC 12882/2016
Judgment of:	CAREW J
Date of judgment:	22 March 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Disjoinder – Where 20^th, 23^rd, 29^th and 30^th respondents argue that the husband has not complied with his obligation to amend his final relief sought – Where no order is sought against the respondents and no contentions of fact or law have been pleaded to justify the respondents remaining in the proceedings – Where it is found that in the absence of any pleading identifying how the rights of the parties may be directly affected, it is not apparent why the 20^th, 23^rd, 29^th and 30^th respondents should remain as parties to the proceedings – Where the husband has failed to establish how the 20^th, 23^rd, 29^th and 30^th respondents are necessary parties to the proceedings and are to be removed. FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where the other respondents sought a review of the deputy registrar’s decision to dismiss 19 objections to subpoena to produce documents – Where the named persons who are required to produce documents pursuant to subpoena argue that apparent relevant cannot be established, that the subpoenas are oppressive and that the subpoenas have been issued for the purpose of discovery – Where it is found that the objection taken on the grounds of relevance fails as the documents defined have an apparent relevance to the claim made by the husband – Where it is found that the named persons have established oppression in relation to the definition of “related entities” as the named person would be required to make a judgment about what is a “related entity” and a judgment of that nature is not a straightforward task – Where it is found that the subpoenas do not seek to impose on the named persons a process of discovery as the subpoenas seek production of identified documents from defined entities – Where aspects of the 19 objections to the production of subpoenas are upheld. FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas- Conduct Money – Where the husband paid the minimum amount of conduct money to each named person served with a subpoena – Where the named persons incurred further costs – Where it is found that the named persons have incurred a substantial expense that is greater than the amount of conduct money paid – Where the husband is ordered to pay the further specified amount by way of conduct money.
Legislation:	Corporations Act 2001 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth)
Cases cited:	Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Fordyce v Ryan (2017) 2 Qd R 240 Hatton v Attorney General of the Commonwealth of Australia and Ors (2000) FLC 93-038 Moriarty & Moriarty (2009)