Scott & Munayallan

In the Family Court of Australia, Henderson J considered applications by Mr Scott and I Pty Ltd to set aside orders made by Justice Berman, alleging those orders were obtained by fraud pursuant to rule 17.02 of the Family Law Rules 2004 (Cth). The applicants sought declarations regarding an equitable and charge interest in a property, the setting aside of a transfer of that property, and various other orders including a substantial monetary judgment. The core of the dispute revolved around whether Justice Berman's previous findings were vitiated by fraud.

The legal issues before Henderson J were whether the applicants had established the alleged fraud, and if not, whether the applications constituted an abuse of process. The applicants contended that Justice Berman's decisions of 2 August 2019 and 23 October 2019 were obtained by fraud. This involved an analysis of the relief sought in the Family Court application by I Pty Ltd, which bore significant similarities to relief previously sought in a cross-claim filed in the Supreme Court of New South Wales.

Henderson J found that the counts of fraud alleged by the applicants were not made out. His Honour concluded that the applications were brought for an ulterior purpose, specifically as an attempt to re-litigate proceedings that had already been determined to finality in the Supreme Court of New South Wales. Consequently, the Court found the applications to be an abuse of process.

The applications filed by I Pty Ltd and Mr Scott were dismissed. The question of costs for these applications, and Mr Phong's application for costs, was reserved.