FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scott & Munayallan (No 11) [2023] FedCFamC1F 601
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 various declarations relating to an undertaking given in the Supreme Court of New South Wales by himself and other parties and entities – 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 that this Court does not have jurisdiction to make the declarations sought – Finding further there was no prospect of success in prosecuting the application and it was an abuse of process – Application summarily dismissed – No order as to costs. Legislation: Corporations Act 2001 (Cth) ss 471B, 477.
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).
Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 36.16(3C).
Cases cited: Amery & Kedrina (2021) 63 Fam LR 1; [2021] FamCAFC 79
Curtain & Curtain [2022] FedCFamC1A 134
Hearne & Hearne (2015) 53 Fam LR 454; [2015] FamCAFC 178
Klearchos & Klearchos [2021] FamCA 375
Lindon v Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14
Munayallan & Scott (No 5) [2021] FedCFamC1F 284
Munayallan & Scott (No 6) [2022] FedCFamC1F 345
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
Scott & Munayallan (2021) 62 Fam LR 504; [2021] FamCA 79
Scott & Munayallan [2021] FedCFamC1F 104
Scott & Munayallan (No 3) [2021] FedCFamC1F 121
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34.
Division: Division 1 First Instance Number of paragraphs: 66 Date of hearing: 18 July 2023 Place: Sydney The First Applicant: Litigant in person 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 M
First Applicant
CC PTY LTD
Second Applicant
AND: MR AB IN HIS CAPACITY AS LIQUIDATOR OF I PTY LTD
Respondent
order made by:
HENDERSON J
DATE OF ORDER:
20 JULY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by Mr M and CC Pty Ltd on 6 July 2023 is summarily dismissed.
2.The oral application made by Mr M to be joined to the Application in a Proceeding filed by Mr Hatem on 8 May 2023 is dismissed.
3.There be no order as to costs.
Note: The form of the order is subject to…
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- AGLC
- Scott & Munayallan (No 11) [2023] FedCFamC1F 601
- Case
- [2023] FedCFamC1F 601
- Decision Date
CaseChat Overview and Summary
The Family Court, drawing on a previous decision by Black J in the Supreme Court of New South Wales, found that the time limit for varying a judgment or order as outlined in Rule 36.16(3C) was indeed non-extendable. Black J had previously held that unless the consent order was set aside, the consent judgment delivered by Sackar J would remain in place and binding on the parties. This previous ruling reinforced the notion that the Family Court's jurisdiction was circumscribed by the specific provisions of the Uniform Civil Procedure Rules. The Family Court further reasoned that while it could exercise its own jurisdiction over issues arising before it, it could not undermine a judgment delivered by another court in respect of the same issues. This reasoning was pivotal in concluding that the Family Court lacked the jurisdiction to set aside the order in question.
In light of the above, the Family Court dismissed Mr Scott's application to set aside the order made by Sackar J. The court's decision underscored the importance of adhering to jurisdictional boundaries and the limitations set by procedural rules. The court held that the Family Court could not interfere with the judgment of another court in the absence of consent or other exceptional circumstances not present in this case. Consequently, the order made by Sackar J remained in effect, binding the parties to its terms.
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