Scott & Munayallan (No 9) - [2023] FedCFamC1F 106

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Scott & Munayallan (No 9) [2023] FedCFamC1F 106

File number: SYC 59 of 2010

Judgment of: HENDERSON J

Date of judgment: 20 February 2023

Catchwords:
FAMILY LAW – JURISDICTION – Want of jurisdiction – Where the first respondent in the substantive proceedings filed an Application in a Proceedings (“the Application”) seeking damages – Where the Application named a real estate agent, his employer, and the purchaser of a property as respondents – Where the Application is inter partes between the parties listed in the Application and is not related to or is a part of the substantive proceedings before the Court – Finding the Court does not have jurisdiction to hear the Application – Estoppel – Finding that even if the Court had accrued jurisdiction, the applicant is estopped from making the application – Vexatious litigants – Finding that if the Court had accrued jurisdiction, the applicant has been declared a vexatious litigant on the same cause of action raised in the Application – Abuse of process – Where the Application is an abuse of process – Orders made dismissing the Application.

FAMILY LAW – COSTS – Where the first respondent sought costs against the applicant – Where the second respondent conceded he could not seek costs as he is a self-represented litigant – Costs reserved.

Legislation: Vexatious Proceedings Act 2008 (NSW) s 8(7)(b).

Cases cited: Scott & Munayallan (No 8) [2023] FedCFamC1F 106

Division: Division 1 First Instance

Number of paragraphs: 13

Date of hearing: 20 February 2023

Place: Sydney

The First Applicant: Litigant in person (did not participate)

The Second Applicant: Litigant in person (did not participate)

Solicitor Advocate for the First Respondent: Mr Docker

Solicitor for the First Respondent: Clyde and Co

The Second Respondent: Litigant in person
ORDERS

SYC 59 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS SCOTT

First Applicant

MR SCOTT

Second Applicant

AND:
AQ REAL ESTATE AND AR PTY LTD

First Respondent

MR PHONG AND MS PHONG

Second Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

20 FEBRUARY 2023

THE COURT ORDERS THAT:
1.The Application in a Proceeding filed by Mr Scott in respect of the respondents on 20 January 2023 be dismissed with costs.
2.AR Pty Ltd, Mr AS and Mr and Mrs Phong are excused.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that…

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 Scott & Munayallan (No 9)

Details

AGLC: Scott & Munayallan (No 9) [2023] FedCFamC1F 106
Case: [2023] FedCFamC1F 106
Decision Date

CaseChat Overview and Summary

Mr Scott filed an application on 20 January 2023 in this Court, naming Mr AS and AR Pty Ltd as the first respondent and the second respondents Mr Phong and Mrs Phong. The application sought the joining of Mr AS and AR Pty Ltd to the proceedings and damages against them for selling a property at J Street, Suburb E, New South Wales below market value. The application was inter partes between Mr Scott and the named respondents and unrelated to the substantive proceedings before the Court. The application was filed many months after the proceedings were transferred to this Court by way of order. The Court found it did not have jurisdiction to hear the application as it was not related to the substantive proceedings.

The legal issues before the Court were whether it had jurisdiction to hear the application and whether Mr Scott was estopped from bringing the application. The Court found that even if it could accrue jurisdiction, Mr Scott was estopped from doing so due to a prior decision by the Supreme Court of Rothman J in June 2022 on the same issues. Rothman J had dismissed Mr Scott's application and named him as a vexatious litigant, prohibiting him from bringing any further proceedings against AR Pty Ltd, Mr AS, or anyone relating to the sale of the property at J Street, Suburb E. The Court found that Mr Scott's conduct in bringing the application was disgraceful, an abuse of process, and offensive to common decency.

The Court dismissed the application and found that it was appropriate for Mr Scott to pay the costs of AR Pty Ltd and Mr AS. The costs that are sought will be provided in a schedule of costs. The Court will approach Mr Scott about this issue and the schedule when he returns and will deliver a decision on that when it can. The application was dismissed and costs will be determined in the course of these proceedings. The Court ordered that the application filed by Mr Scott be dismissed with costs.

Orders