Roberts v Mawabe Pty Ltd - [2025] NSWSC 374

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Roberts v Mawabe Pty Ltd [2025] NSWSC 374
Hearing dates: 10 December 2024
Date of orders: 22 April 2025
Decision date: 22 April 2025
Jurisdiction: Equity
Before: Slattery J
Decision:
Orders made allowing expert evidence to be adduced by the plaintiff although the parties are encouraged to seek to agree to a single court-appointed expert to be appointed under UniformCivil Procedure Rules 2005 r 31.46. But the plaintiffs are directed to modify the questions proposed for the expert to take account of the reconciliations undertaken by the defendants. No amendment to pleadings required in the short term. Plaintiffs will be required to elect once the evidence is complete and before the matter is set down for hearing to (a) apply to transfer the proceedings to the Federal Circuit and Family Court of Australia, (b) commence proceedings in the Federal Circuit and Family Court of Australia and apply to transfer them to this court, or (c) eliminate the claim for relief under Family Law Act s 90K. Subject to further submissions (in respect of which the parties will be at risk as to costs) the order for costs of the present application will be that the plaintiffs’ costs of the application will be part of the plaintiff’s costs of the proceedings, if and only if, the plaintiffs are otherwise successful in the proceedings.

Catchwords:
CIVIL PROCEDURE — Expert evidence – Leave to adduce –– the first plaintiff is the former wife of the second defendant and the other 5 plaintiffs are their children – the first defendant is the corporate trustee of their family trust – the first plaintiff and the second defendant divorced in 2016 and their matrimonial property dispute resolved by agreement in 2017 – under that agreement certain payments were made to the plaintiffs and the second defendant took sole control of the first defendant trustee company – the plaintiffs claim that the first defendant has failed to pay distributions from the family trust that were due to them and payable between 2004 and 2021 – the plaintiffs allege that this nonpayment was part of a dishonest and fraudulent scheme made between the first defendant and the second defendant to unlawfully divert trust income that would otherwise have been distributed to the plaintiffs – defendants contend that the plaintiffs have received full payment of amounts due to them from the first defendant – accounting dispute about what income is due from the first defendant to the plaintiff and whether what income that is found to be due has been paid to the plaintiffs – contentious allegations in the plaintiffs’ and the defendants’ evidence about what is due to the plaintiffs and whether it has been paid – plaintiff applies for liberty to adduce expert evidence – choice of the best methodology to resolve the accounting dispute in accordance with the objectives of Civil Procedure Act 2005 Part 6.
CIVIL PROCEDURE — Pleadings — Amendment – proceedings within…

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 Roberts v Mawabe Pty Ltd

Details

AGLC: Roberts v Mawabe Pty Ltd [2025] NSWSC 374
Case: [2025] NSWSC 374
Decision Date: 22 April 2025

CaseChat Overview and Summary

The case of Roberts v Mawabe Pty Ltd involved a complex dispute between former spouses and their children concerning the administration of a family trust. The plaintiffs, who are the former wife and children of the second defendant, alleged that the first defendant, the corporate trustee of the family trust, failed to make required distributions from 2004 to 2021, which was part of a fraudulent scheme with the second defendant. The defendants denied these allegations and argued that the plaintiffs had already received all amounts due from the trust. The plaintiffs sought leave to adduce expert evidence to resolve the accounting dispute and also filed for amendments to their pleadings, seeking to set aside the 2017 settlement under the Family Law Act.

The court had to determine whether the plaintiffs could present expert evidence to resolve the accounting dispute, considering the objectives of the Civil Procedure Act 2005 Part 6. Additionally, the court needed to decide whether the 2017 settlement, which the defendants claimed made the current proceedings non-maintainable, should be set aside for fraudulent nondisclosure. The court also considered whether the issue of jurisdiction was appropriate for the Supreme Court or should be struck out as a false issue, potentially requiring the cross-vesting of jurisdiction to the Federal Circuit and Family Court of Australia.

In its reasoning, the court held that the plaintiffs could present expert evidence to address the complex accounting dispute, as it was necessary to achieve a just resolution of the case. The court found that the 2017 settlement did not necessarily bar the current proceedings if there were grounds to set it aside for fraudulent nondisclosure. The court concluded that the issue of jurisdiction was not a false issue and could be properly addressed within the Supreme Court, provided the necessary jurisdictional cross-vesting occurred.

The court granted the plaintiffs leave to adduce expert evidence and allowed the amendment to the pleadings to set aside the 2017 settlement for fraudulent nondisclosure, with conditions for cross-vesting of jurisdiction as necessary. This decision ensures that the complex issues of trust administration and potential fraud can be thoroughly examined and resolved in the appropriate forum.

Orders