Scott & Munayallan (No 10)

Case [2023] FedCFamC1F 600

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Scott & Munayallan (No 10) [2023] FedCFamC1F 600

File number: SYC 59 of 2010
Judgment of: HENDERSON J
Date of judgment: 20 July 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Where the first applicant sought orders against a person acting as a liquidator of a company in liquidation – Where the first applicant sought to appear for the second applicant company – Where the Court moved on its own motion to minimise costs with an intention to hear a summary dismissal application without the appearance of the respondent – Finding on the evidence the first applicant has no standing to bring the application nor appear for the second applicant – Finding further there was no prospect of success in prosecuting the application and it was an abuse of process – No appearance by the applicant on the adjourned hearing date – Application summarily dismissed – No order as to costs.
Legislation:

Corporations Act 2001 (Cth) ss 471B, 477, 482.

Family Law Act 1975 (Cth) s 45A, 45A(2), 45A(4), 45A(5), 45A(6), 45A(7), 102QB, 102QB(3).

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 46, 67, 67(1)(b).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.18, 2.24, 3.09.

Federal Court (Corporations) Rules 2000 (Cth) r 2.13(1)(a).

Vexatious Proceedings Act 2008 (NSW).
Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Australian Securities and Investments Commission v Rich (2006) 235 ALR 587; [2006] NSWSC 826

Bigg v Suzi (1998) FLC 92-799; [1998] FamCA 14

Curtain & Curtain [2022] FedCFamC1A 134

Lindon v Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14

Mohsen & Collings [2020] FamCA 1072

Munayallan & Scott (No 5) [2021] FedCFamC1F 284

Munayallan & Scott (No 6) [2022] FedCFamC1F 345

Pelerman v Pelerman (2000) FLC 93-037; [2000] FamCA 881

Quinn & Lawson [2023] FedCFamC1F 164

Re Australasian Meat Industry Employees' Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491; [1986] FCA 323

Re Sails Corp Pty Ltd [2021] NSWSC 1241

Reid v Brett [2005] VSC 18

Saracuna & Siddele (No 4) [2023] FedCFamC1F 165

Scott & Munayallan (2021) 62 Fam LR 504; [2021] FamCA 79

Scott & Munayallan [2021] FedCFamC1F 104

Scott & Munayallan (No 3) [2021] FedCFamC1F 121

Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36

Stativa & Stativa [2015] FamCAFC 170

Stephens & Stephens (2009) FLC 93-425; [2009] FamCAFC 240
Division: Division 1 First Instance
Number of paragraphs: 72
Date of hearing: 18 July 2023
Place: Sydney
The First Applicant: Litigant in person (did not participate)
The Second Applicant: Litigant in person (did not participate)
Solicitor for the Respondent: ERA Legal, Commercial, Insolvency and Litigation Lawyers (excused from attending)

ORDERS

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR HATEM

First Applicant

CC PTY LTD

Second Applicant
AND:

MR AB IN HIS CAPACITY AS LIQUIDATOR OF I PTY…

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AGLC
Scott & Munayallan (No 10) [2023] FedCFamC1F 600
Case
[2023] FedCFamC1F 600
Decision Date

CaseChat Overview and Summary

In the matter of Scott & Munayallan (No 10), the court was required to decide on the validity of a Hatem Application made by the respondents, Mr M and CC Pty Ltd, against Mr AB, who was acting as the receiver and liquidator of I Pty Ltd and the JJ Trust. The application sought injunctions against Mr AB, which would have impeded his execution of legal obligations under orders made by Black J in the Supreme Court of New South Wales. The application was also seen as an attempt to circumvent the Vexatious Proceedings Act 2008 (NSW), to which Mr M and CC Pty Ltd were subject.

The court considered the evidence presented and found that there was no reasonable prospect of success for the Hatem Application, as it sought to re-open proceedings that had already been determined in another superior court. The liquidation of I Pty Ltd and the receivership of the JJ Trust were orders of a higher court and remained in force. The court held that it did not have the jurisdiction to interfere with these orders and emphasised the importance of adhering to the rule of law. The only available recourse for the applicants would be to make an application to the High Court.

The court exercised its power under section 45A of the Family Law Act 1975 (Cth) to summarily dismiss the Hatem Application. The court found that the application was frivolous, vexatious, or an abuse of process, as it sought to circumvent the orders of a superior court. Consequently, the court dismissed the application on its own motion and made orders as set out in the Reasons for Judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I find that taking the evidence at its highest, there is no case to warrant the proceedings being re-opened.Evidence in support of making injunctions against Mr AB Mr AB is carrying out his obligation as receiver and liquidator of I Pty Ltd and the JJ Trust, pursuant to orders made by Black J in the Supreme Court of New South Wales in January 2022, and in February 2022, respectively. There is no basis to support the injunctions sought unless the Court was satisfied that the proceedings should be re-opened and the Court is not. To grant the injunctions sought would compromise Mr AB carrying out his legal obligations. The Hatem Application had no prospect of success at the outset and is an attempt to circumvent the order of Williams J pursuant to the Vexatious Proceedings Act 2008 (NSW), which Mr M and CC Pty Ltd are subject to. The liquidation of I Pty Ltd has occurred. The JJ Trust is in receivership, and the orders behind those two acts are orders of a superior court, and there is no appeal from either of these orders and they remain in force. This Court cannot and would not embark upon hearing matters already determined to finality in another superior court. To do so would be improper and offend the rule of law. The only avenue is to make an application to the High Court, as this Court does not on the evidence have the jurisdiction to interfere, in any way, with the orders made concerning the liquidation of I Pty Ltd and the winding up of the JJ Trust.DISMISSING THE HATEM APPLICATION SUMMARY SUMMARILYThe law on summary dismissal Section 45A of the Family Law Act 1975 (Cth) (“the Act”) provides the Court power to summarily dismiss proceedings, with the relevant parts set out below:45A Summary decrees…No reasonable prospect of successfully prosecuting proceedings(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:(a)the first party is defending the proceedings or that part of the proceedings; and(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.…Proceedings that are frivolous, vexatious or an abuse of process(4)The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.(5)To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse of process merely because an application relating to the proceedings or the part is made and later withdrawn.Costs(6)If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.Action by court on its own initiative or on application(7)The court may take action under this section on its own initiative or on application by a party to the proceedings.… Such power is also contained in section 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

Decision

Reasons for decision

On the Courts own motion, and having regard to all the circumstances above, the Hatem Application is dismissed.CONCLUSION I make the orders as set out in the forefront of these Reasons for Judgment.

Ratio Decidendi

Legal Principle Established

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