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 publication of this judgment by this Court under the pseudonym Scott & Munayallan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX-TEMPORE REASONS FOR JUDGMENT

HENDERSON J:

1. Mr Scott filed an application on 20 January 2023 in this Court on his behalf and purportedly on behalf of his mother, Ms Scott, naming Mr AS and AR Pty Ltd as the first respondent and the second respondents Mr Phong and Mrs Phong.

2. The application seeks the following orders:

   (1)That Mr AS and his employer, AR Pty Ltd, be joined to these proceedings;

   (2)Damages to Mr Scott in the sum of $700,000, to be paid by AR Pty Ltd and Mr AS for selling the property at J Street, Suburb E, New South Wales “below market value”; and

   (3)Damages to Mr Scott in the sum of $1,600,000, to be paid by AR Pty Ltd and Mr AS for “out-of-pocket” expenses.

3. The application relates to Mr Scott’s decision, which is the genesis of the entirety of the litigation before this Court, the Supreme Court of New South Wales (“the Supreme Court”) and the Federal Court of Australia over ten years to sell his property at J Street, Suburb E, to Mr Phong. Mr Scott must have had second thoughts about selling that property because he tried every which way to avoid that contract for sale being specifically performed. Mr Scott transferred the property out of his name into a company and tried at every turn to avoid doing that which he had by way of entering into a contract for sale he agreed to do.

4. Mr Phong sought specific performance and various judges of the Supreme Court agreed with Mr Phong and ultimately the contract was specifically performed. Mr Phong had the property transferred to his name when he paid the appropriate contract price into Court.

5. Mr Scott has not since that time accepted that decision by Pembroke J, and litigation has continued in the Supreme Court and in this Court since 2014, and has involved multiple people, and most sadly, from my point of view, his former wife, Ms Munayallan and his two children, and the costs that have been incurred in this matter are truly breathtaking.

6. Had Mr Scott honoured his agreement to sell this property to Mr Phong in 2014, Ms Munayallan and Mr Scott would have had some $2,200,000 available between them to distribute between themselves, together with valuable share portfolio in one of the companies, I Pty Ltd – a company Mr Scott had an involvement in – and a valuable property at Suburb MM, to divide up between them upon the dissolution of their marriage.

7. The receivers and liquidators in this matter, who have been embroiled in this litigation and filed multiple affidavits and attended court on multiple occasions, tell me there may only be some $400,000 to $500,000 left after their costs are paid. This wasting of resources has been a significant concern to the receivers and liquidators in this matter since that part of the proceedings commenced and it is one of the reasons the Supreme Court proceedings, in their entirety were transferred to this Court, so this matter could be finalised, dealt with to finality, and Mr Scott and Ms Munayallan get on their way after their marriage breakdown. But Mr Scott continues in this vein and has filed an application seeking damages against a real estate business, the employer of that business and the persons who bought his property, Mr and Mrs Phong, who are entirely innocent in this matter.

8. This Court has no jurisdiction to entertain the claim brought by Mr Scott for damages. I exercise power under the Family Law Act1975 (Cth) and various other acts such as the Corporations Act 2001 (Cth). I can have jurisdiction conferred upon me such as has occurred with the Supreme Court transferring their proceedings to this Court to be determined. Mr Scott’s application was filed many months after those proceedings were transferred to this Court by way of order. I can have jurisdiction accrued to me if it is important and necessary to exercise jurisdiction in order to determine substantive proceedings. I need not determine the issues in the filed application as it has nothing to do with the liquidation or the matrimonial cause. It is an inter partes dispute between Mr Scott and a real estate agent for damages and nothing to do any of the matters before me.

9. Even if I could accrue jurisdiction, I would be estopped from so doing because there has been a decision of the Supreme Court of Rothman J in June 2022 on the very issues Mr Scott seeks to agitate again today. His application is almost word-for-word the same application before Rothman J, whereby his Honour dismissed the application then against AR Pty Ltd and Mr AS, and importantly, proceeded to name Mr Scott as a vexatious litigant,[1] that he was estopped, prevented, prohibited from continuing proceedings against or bring any proceedings against AR Pty Ltd, Mr AS, relating or in any way connected with the sale of the property at J Street, Suburb E.

   [1] Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW).

10. What has Mr Scott done? Commenced those same proceedings in this Court. This is most disgraceful conduct and behaviour. It is an abuse of processes of all courts. It offends all common decency and the proceedings must be dismissed. Mr Phong has nothing to do with the proceedings. Mr Phong is the registered owner of J Street, Suburb E, having expended an extraordinary amount of money to have that property transferred to his name.

11. In these circumstances, the proceedings will be dismissed. Mr Scott appeared at the commencement of the hearing today,[2] and told me it was more important that he went to a mention on a Notice of Motion in the Supreme Court about a leave to appeal and a stay in a matter where he has absolutely no standing. That is a matter entirely for Mr Scott. He can choose to be at the Supreme Court and not at this Court in a five-day hearing concerning the division of and ownership of property, including his matrimonial property. That is a matter entirely for him and I told him I will continue these proceedings in his absence.

    [2] See Scott & Munayallan (No 8) [2023] FedCFamC1F 106 (Henderson J).

12. There has been an application made that the costs of AR Pty Ltd and Mr AS be paid by Mr Scott. It is without doubt appropriate that I make an order that he pay costs. The costs that are sought will be provided in a schedule of costs. I can approach Mr Scott about this issue and the schedule when he returns and I will deliver a decision on that when I can.

13. The application filed is dismissed and costs will be determined in the course of these proceedings.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Henderson delivered on 20 February 2023.

Associate:

Dated:       11 August 2023