Sarina and Sarina and Ors

[2011] FamCA 85

FAMILY COURT OF AUSTRALIA

SARINA & SARINA AND ORS [2011] FamCA 85

FAMILY LAW – PROPERTY – Repleading of statement of claim

APPLICANT: Ms Sarina

RESPONDENT: Mr Sarina

SECOND RESPONDENT: C Pty Ltd

THIRD RESPONDENT: T Pty Ltd

FOURTH RESPONDENT: P Finance

FILE NUMBER: BRC 226 of 2008

DATE DELIVERED: 22 February 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 6 December 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Curran of Counsel

SOLICITOR FOR THE APPLICANT: Browns Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Erskine of Counsel

SOLICITOR FOR THE FIRST RESPONDENT: Q5 Law

COUNSEL FOR THE SECOND RESPONDENT: Mr Hackett of Counsel

SOLICITOR FOR THE SECOND

RESPONDENT:

Tucker & Cowen, Solicitors

COUNSEL FOR THE THIRD

RESPONDENT:

Ms Miller of Counsel

SOLICITOR FOR THE THIRD

RESPONDENT:

Compass Legal Solutions

COUNSEL FOR THE FOURTH

RESPONDENT:

Mr Hackett of Counsel

SOLICITOR FOR THE FOURTH

RESPONDENT:

Tucker & Cowen, Solicitors

Orders

1. The Statement of Claim filed on 24 August 2010 be struck out.

2. The Applicant have leave to file a fresh Statement of Claim within 21 days of today’s date.

IT IS NOTED that publication of this judgment under the pseudonym Sarina is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 226  of 2008

MS SARINA

Applicant

And

MR SARINA

Respondent

REASONS FOR JUDGMENT

1. On 1 June 2010 an order was made by Federal Magistrate Burnett which inter alia on an application heard ex parte joined C Pty Ltd (receivers and managers appointed) (in liquidation) hereinafter referred to as the second respondent, and leave to proceed was granted in accordance with the relevant section of the Act. 

2. Other orders were made.  Inter alia Order 4(c) is an order restraining the third respondent who I assume is T Pty Ltd, from disposing or selling or transferring any property situated at A.  May I say that these injunctions which are open ended do not appear to have been done by way of notice to either the now second and fourth respondents nor to the third respondent, T Pty Ltd.  Thereafter orders were made for service of various documents, see Order 5, upon the parties and other people allegedly involved in this matter and then forthwith Federal Magistrate Burnett decided to transfer the matter to the Family Court of Australia.

3. On 26 July 2010, I dissolved the orders for injunction made ex parte in orders 4(a) and (b) and authorised the sale by the receivers and managers of the second respondent of the property particularised in paragraph 2(a)-(d) inclusive of that Order.  P Finance, the fourth respondent, was ordered to be joined as a party. 

4. Ms Sarina, the Plaintiff, pursuant to an order made by myself delivered a Statement of Claim.  Incorporated herein is a copy of such Statement of Claim in which the following are respondents:  Mr Sarina, a bankrupt, as first respondent; C Pty Ltd (receivers and managers appointed) (in liquidation); T Pty Ltd, the third respondent; and P Finance, fourth respondent.  These are the parties referred to in the second and fourth respondents’ submissions.

5. Upon receipt of the Statement of Claim a letter was written by Andrew Gaddes who is a member of the firm of Tucker & Cowen, solicitors for the receivers and managers of C Pty Ltd and for the fourth respondent, P Finance.  The letter to which I have hereinbefore referred, or rather facsimile, is dated 9 September 2010 and is exhibit AMG2 of the affidavit of Gaddes referred to hereinbefore.  As appears from that material no reply was received and as a direct result thereof an application was made wherein the second and fourth respondents sought an order striking out the Statement of Claim as against them and a dismissal of the wife’s initiating application against the receivers and managers of the second respondent and fourth respondent.  The orders sought are as follows:

   (1)That the Statement of Claim delivered by the Applicant Wife on 24 August 2010 be struck out for failure to comply with Order 5 of the Orders dated 26 July 2010;

   (2)That the Applicant Wife’s application against the Second and Fourth Respondents be dismissed.

   (3)Such further or other orders as this Honourable Court sees fit.

   (4)That the Applicant Wife pay the Second and Fourth Respondents’ costs of and incidental to this application.

6. A similar application was made by T Pty Ltd.  It was filed on 30 November 2010.  It sought as follows:

   (1)That the Statement of Claim delivered by the Applicant Wife on 23 August 2010 be struck out for failure to comply with Order 5 of the Orders dated 26 July 2010.

   (2)That the Applicant Wife’s application against the Third Respondent be dismissed.

   (3)      Such further or other orders as this Honourable Court sees fit.

   (4)That the Applicant Wife pay the Third Respondent’s costs of and incidental to this application.

7. I say in passing that it appears to me, and I make it quite clear in my view that the Statement of Claim is confusing in the extreme, but I must confess to a great extent so are the submissions of the Second and Fourth Respondents, particularly in relation to whom they consider parties.

8. I will deal with the application of the second and fourth respondents first but note there is an application by T Pty Ltd which is the third respondent and perhaps it may be said couched in similar terms.

9. The Statement of Claim is lengthy in the extreme.  It consists of 107 paragraphs.  It is extremely difficult to make any sense of the Statement of Claim generally.  However, it appears there is such illumination in that paragraph 17 of the Statement of Claim indicates that the derivation of the name D Trust, was the name of the husband’s dog, namely D.  I am surprised that the dog is not partaking in these proceedings as a party.

10. It appears that the second respondent, ie C Pty Ltd shares are held by the fourth respondent, P Finance.  It is alleged, see paragraph 30 of the Statement of Claim, that P Assets Pty Ltd is a company controlled by the husband, as is C Pty Ltd and D Trust.  Both C Pty Ltd and P Pty Ltd are, as I understand, in liquidation and receivers and managers have been appointed.  Consequently, it would not appear to me that the husband controls the assets of either C Pty Ltd or P Pty Ltd.

11. There appears to be a gratuitous reference to a company known as S Services Pty Ltd which do not appear as parties to the Statement of Claim but paragraphs 32-40 inclusive of the Statement of Claim seem to set out some banal history in relation to S Services and at paragraph 39 it appears that the 30 fully paid ordinary shares in this company are now held by a Mr E and Mr H, neither of whom appear as parties at all in this Statement of Claim.

12. At paragraph 41 the history of P appears to be endeavoured to be set out.  Once again it is alleged that P Assets Pty Ltd is a company controlled by the husband, notwithstanding that paragraph 46 of the Statement of Claim indicates that P Assets has 1000 fully paid ordinary shares which are held by F Pty Ltd.  This F Pty Ltd appears to have 10 prepaid ordinary shares which are held by P Assets Pty Ltd, a company in liquidation.  At paragraph 56 a bland statement is made that the company is controlled by the husband.  There is no fact alleged in any of the subparagraphs referring to F Pty Ltd that would support that the company is controlled by the husband.

13. At paragraph 73 of the purported Statement of Claim, the wife indicated that she made an application for the winding up of C Pty Ltd and seeking the appointment of a liquidator.  She seems to have been trumped by P Finance since they have appointed receivers and managers of C Pty Ltd on 11 February 2010 and C Pty Ltd was ordered to be wound up by the Supreme Court of Queensland, according to the Statement of Claim, on 12 February.  It is further alleged that C Pty Ltd has certain properties acting as trustee for the D Trust in north Queensland and they are particularised in paragraphs 77(a)-(c).

14. The Statement of Claim also refers to C Pty Ltd allegedly owning property at A and the Statement of Claim complains of a purported transfer of the A property from C Pty Ltd as trustee of the D Trust and the third respondent T Pty Ltd.  More of T Pty Ltd at a later stage.

15. At paragraph 99 it is alleged that a motor cruiser known as the R was owned by C Pty Ltd as trustee of the D Trust and this was named after the child, R (see paragraph 102).  And statements were made that improvements were made by the husband and wife to the motor cruiser.  The Statement of Claim seeks that it be sold.

16. I have done the best I possibly can out of this mish-mash of a Statement of Claim but it appears that the second and fourth respondents are seeking an order that I have already referred to the letter of 9 September 2010 and in particular I generally précis this by saying that the solicitor to the parties to whom I have referred, ie the second and fourth respondents, seems as confused as I am about the inadequacies of the Statement of Claim and it is made quite clear that the aforesaid solicitors Tucker & Cowen act on behalf of the receivers and managers and the liquidators and have requested in the last but one paragraph on page 21 that the wife re-plead the Statement of Claim in light of the complaints particularised in paragraphs 1-13.

17. In the submission put before the court on behalf of the second and fourth respondent at paragraph 9, counsel sets out the necessary subsection of the Corporations Act which at least has been recognised by the applicant (see paragraph 107(2)).  But in that paragraph the applicant only seeks an order for leave to proceed against the second respondent.  I believe that this in itself is fatal as it is impossible for the Court to determine against whom they are seeking the various orders as particularised hereinbefore and consequently I would strike out the Statement of Claim as against the second and fourth respondent as it stands.  However, taking into consideration procedural fairness and notwithstanding what I consider to be a disaster of a Statement of Claim, I feel that the plaintiff should be entitled to re-plead the Statement of Claim as against the second and fourth respondent.

18. Insofar as the third respondent is concerned, it appears to me that similar complaints are made (see the submissions on their behalf) wherein it says that the plaintiff has no justiciable cause of action against the third respondent.  The only order sought by the plaintiff as against the third respondent in relation to the property situated at A (see para 107(1)(a) and a general catch-all set out in para 107(1)(b)) but in order sought 3, further orders are made endeavouring as is set out there to persuade the Court that they should set aside a chance whereby the second respondent or the third respondent, that is by C Pty Ltd or T Pty Ltd.  There is no material in the Statement of Claim that suggests that the transfer of the property was other than bona fide and for value and consequently it would be impossible for the Court on the Statement of Claim to come to the conclusion that there is any claim against the third respondent for those orders as sought in the Order 3 and 4.

19. Consequently, I am of a similar opinion that the Statement of Claim is so riddled with inconsistencies, bad drafting and the impossibility of a court being able to adequately consider the matter without it being re-pleaded then I would strike out the Statement of Claim as it stands at present, but once again give leave to the plaintiff to re-plead, such re-pleading to be done within 21 days of the date of this Order.

20. The application to dismiss the application of the wife as against the parties referred to immediately hereinbefore is pursuant to the provisions of Rule 10.12 wherein that rule says that a party may apply for summary orders in relation to the application and response:  (a) that the court has no jurisdiction; or (c) and (d), it is frivolous, vexatious or an abuse of process; or (b) there is no likelihood of its success.

21. Obviously insofar as Rule 10.12 is concerned the parties have not filed a response to the claim of the applicant since they allege that the applicant’s claim as particularised in the Statement of Claim should be struck out.  Consequently I am not considering the application pursuant to 10.12.  However, insofar as the Statement of Claim is concerned I have already indicated that to me it is exceptionally confusing.  The Statement of Claim reads more like an affidavit than a statement of claim which of course is an allegation of facts upon which the claim is to be substantiated.  It is not to be statements of the evidence to support such facts.  I find it totally unilluminating. 

22. Whilst I have perhaps cavalierly dismissed the thrust of the Statement of Claim, at page 12, line 26 Curran of counsel suggests that the application can only be an application for further and better particulars.  Does he concede that in fact the Statement of Claim requires some cleaning up, some elucidation, as requested in the letter to which I have hereinbefore referred?  Hackett of counsel for the second and fourth respondents submits at page 15, line 5 to 10, that no cause of action is raised as against the fourth respondent.  That is so.  Curran of counsel further submits that I can by looking at an affidavit which has not been put before me of, I believe, the applicant, to be able to expand upon and elucidate the confusion as set out in the Statement of Claim.  I do not believe that that is the province of a court to use documents other than the Statement of Claim to explain the Statement of Claim. 

23. Another example of the ill-drafting of the Statement of Claim appears in Order Sought No 5(a) wherein the applicant requires that “the applicant do all such acts and sign all such documents as are necessary to effect the sale of the following…”.  Another matter is that the wife in paragraph 91 alleges that after the Mazda motor vehicle was repossessed from the wife in December 2008, “the husband gave the Mazda motor vehicle to Ms [O]” (my underlining).  She thereafter alleges in paragraph 93 of the Statement of Claim that the D Trust has not received the proceeds of the sale of the Mazda motor vehicle.  Nowhere in the material before me does it appear that the Mazda other than was given to Ms O.  Consequently, there should be no monies owing.

24. I make it quite clear that the matters to which I have hereinbefore referred are only a few of the matters which could be particularised as being fatal to the existence to the Statement of Claim in its present form.

25. Notwithstanding that I have taken some considerable time to consider this matter, after reading and re-reading the Statement of Claim I cannot make sense out of it at all.  I will give to the applicant 21 days in which to file a Statement of Claim setting out in particular her claims against each of the respondents.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 22 February 2011.

Associate:     

Date:              22 February 2011