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Simmons & Simmons

Simmons & Simmons

Case [2008] FamCA 1088 12 December 2008

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FAMILY COURT OF AUSTRALIA

SIMMONS AND ANOR & SIMMONS

[2008] FamCA 1088

FAMILY LAW – PRACTICE AND PROCEDURE – SUMMARY DISMISSAL – Rule 10.12 of the Family Law Rules 2004 and the doomed to fail test - Property - What constitutes? – The interest of an object of a non-exhaustive discretionary trust with an open class of beneficiaries – Part VIIIAA

Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Magistrates Act 1999 (Cth)

B Pty Ltd and Ors & K and Anor 219 FLR 107
Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270
Beck and Beck (2004) FLC 93-181
Bestv Best (1993) FLC 92-418
Bigg v Suzi (1998) FLC 92-799
C v B and W (2006) 35 Fam LR 547
Custodio and Pinto & Ors (2006) FLC 93-279
Duff and Duff (1977) FLC 90-217
Evans and Public Trustee for the State of Western Australia as Legal Personal Representative of Evans (deceased) (1991) FLC 92-223
Fisher v Fisher (1986) 161 CLR 438
Gartside v Inland Revenue Commissioners [1986] AC 553
Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227
Gitane and Velacruz (2007) FLC 93-309
Hauff and Hauff (1986) FLC 91-747
Hunt v Hunt & Lederer (2006) 36 Fam LR 64
In the Marriage of Davidson (1991) FLC 92-197
Jacobs & Vale [2008] FMCAfam 641
JB & BW [2006] FamCA 639
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others (2008) 167 FCR 372
Jones v Skinner (1835) 5 LJ Ch 87
Kennon v Spry; Spry v Kennon [2008] HCA 56
Korsky & Bright and Anor (No. 2) (2007) FLC 93-352
Law-Smith and Seinor (1989) FLC 92-050
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
Mullane v Mullane (1983) 158 CLR 436
Pelerman v Pelerman (2000) FLC 93-037
R and I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd [1992] 10 WAR 59
Raftland Pty Ltd as trustee of the Raftland Trust v Commissioner of Taxation (2008) 82 ALJR 934
Ramsay v Ramsay (1997) FLC 92-7423
Re Smith; Public Trustee v Aspinall [1928] Ch 915

R and R (unreported, Simpson, Strauss and Smithers JJ, 27 April 1990)

Richstar Enterprises Pty Ltd and Others; Australian Securities and Investments Commission v Carey (No 6) (2006) 153 FCR 509
Spellson v Spellson (1989) FLC 92-046

Yanner v Eaton (1999) 201 CLR 351

APPLICANT:

L Pty Ltd

APPLICANT HUSBAND:

Mr Simmons

RESPONDENT WIFE:

Ms Simmons

FILE NUMBER:

MLF

1269

2005

DATE DELIVERED:

12 December 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Watt J

HEARING DATE:

19 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Glick QC with Mr Strum

SOLICITOR FOR THE APPLICANT:

Kennedy Wisewoulds

COUNSEL FOR THE APPLICANT HUSBAND:

Mr Melilli

SOLICITOR FOR THE APPLICANT HUSBAND:

Kenna Teasdale Lawyers

COUNSEL FOR THE RESPONDENT WIFE:

Mr North SC with Mr Sweeney

SOLICITOR FOR THE RESPONDENT WIFE:

Landers & Rogers

Orders

That paragraphs 1 and 2 of L Pty Ltd’s amended…

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 Simmons & Simmons

Details

AGLC: Simmons & Simmons [2008] FamCA 1088
Case: [2008] FamCA 1088
Decision Date: 12 December 2008

CaseChat Overview and Summary

In the matter of *Simmons & Simmons*, Watt J of the Supreme Court of New South Wales considered applications made by L Pty Ltd and the husband. The specific nature of the underlying dispute is not detailed, but the proceedings involved an amended response filed by L Pty Ltd and a similar application filed by the husband.

The primary legal issues before the court concerned the validity and efficacy of paragraphs 1 and 2 of L Pty Ltd’s amended response and the husband’s application. The court was required to determine whether these specific pleadings should be permitted to stand or be dismissed.

Watt J ordered the dismissal of paragraphs 1 and 2 of L Pty Ltd’s amended response and the husband’s application. Following this determination, his Honour transferred all pending applications in the matter to Justice Cronin for further mention.

Orders

Orders of the court

That paragraphs 1 and 2 of L Pty Ltd’s amended response to an application in a case filed 17 June 2008, and the husband’s application in similar terms filed 18 April 2008, be dismissed.

I transfer all pending applications to Justice Cronin for mention on 17 December 2008 at 2:15pm or such other date as his Honour may appoint.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Actions

Citations

Simmons & Simmons [2008] FamCA 1088

Most Recent Citation

Massalski & Riley [2022] FedCFamC1F 36

Cases Citing This Decision

Read & Fry [2025] FedCFamC1F 259
Citation 1

…) FLC 93-037; [2000] FamCA 881 Ritter & Ritter and Anor (2020) FLC 93-957; [2020] FamCAFC 86 Simmons and Anor & Simmons (2008) 40 Fam LR 520; [2008] FamCA 1088 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Division: First Instance Number of paragraphs: 11 Date of hearing: 21 August 2023 Place…
Abano & Abano [2024] FedCFamC1F 331
Citation 2

…ffidi v Montevento Holdings Pty Ltd (2011) 6 ASTLR 446; [2011] WASC 146 Simmons v Simmons (2008) 40 Fam LR 520; [2008] FamCA 1088 Soulos v Pagones [2023] NSWCA 243 Spellson and Spellson [1989] FLC 92-046; [1989] FamCA 99 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Townson v Tickell (1819) 106 E.R. 575 Valc…
Genesalio & Genesalio [2023] FedCFamC1F 160
Citation 3 (Para 38)

…do not relate to the question of whether a third party ought be joined in the proceedings. For example, the decision of Simmons and Anor & Simmons [2008] FamCA 1088, relates to an application by a third party for summary dismissal of the wife’s claims against it. That application was refused on the basis that there…
Newett & Newett (No 8) [2023] FedCFamC1A 7
Citation 4

…k Bros Pty Ltd v State Electricity Commission (Vic) (1943) 67 CLR 1; [1943] HCA 2 Simmons & Simmons (2008) 40 Fam LR 520; [2008] FamCA 1088 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Walpole & Secretary, Department of Communities and Justice (2020) FLC 93-950; [2020] FamCAFC 65 Number of p…
Morse & Duarte (No 2) [2022] FedCFamC1F 152
Citation 5

…FamCA 84, (1979) FLC 90-725, 6 Fam LR 570 Ritter & Ritter [2020] FamCAFC 86 Simmons & Simmons (2008) 232 FLR 73; [2008] FamCA 1088 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52 Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR…
Massalski & Riley [2022] FedCFamC1F 36
Citation 6

…mmons (2008) 40 Fam LR 520; [2008] FamCA 1088 Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549 Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507; [2015] HCA 28 Tzirinis & Tzirinis (No 2) [2008] FamCA 697 UBS AG v Tyn…
Baros & Baros [2021] FamCA 534
Citation 7 (Para 36)

…00] FamCA 881 at [46]; Korsky & Bright (No 2) (2007) FLC 93-352; (2007) 28 Fam LR 106; [2007] FamCA 1512; Simmons & Simmons (2008) 40 Fam LR 520; [2008] FamCA 1088 at [51]; Friar & Friar [2011] FamCAFC 71 at [51]; Ebner & Pappas [2014] FamCAFC 229 (“ Ebner ”) at [57]. Olman and Anor & Teitzel [2020] FamCAFC 136 at […
BAILEY & BAILEY [2018] FamCA 318
Citation 8 (Para 38)

…in that case at all, and also that the quotes extracted from Simmons [2008] FamCA 1088 do not, in contrast with what is implied in the submissions made on behalf of the Husband, appear in sequence. 19.In essence, I find that there is no satisfactory justification for the Husband’s attempt to subpoena the documents…
Mansfield & Mansfield [2017] FCCA 13
Citation 9 (Para 25)

…f them is a matter dependent upon the facts and circumstances of each particular case …’ (citations removed) [21] Simmons & Simmons [2008] FamCA 1088 at [115] – [116]…
MacDowell & Williams & Ors [2012] FamCA 479
Citation 10 (Para 1)

…s appearing in the case of Blue & Blue [2007] FamCA 1444 does not in fact appear in that case at all, and also that the quotes extracted from Simmons [2008] FamCA 1088 do not, in contrast with what is implied in the submissions made on behalf of the Husband, appear in sequence.…
Dillon & Dillon [2012] FamCA 319
Citation 11 (Para 15)

…ve some indication as to whether distributions would be made in future. Counsel relied on Kennon v Spry (2008) FLC 93-388, Simmons and Anor v Simmons [2008] FamCA 1088 and Read and Chang and Anor (2010) FLC 93-450; [2010] FamCA 876 (specifically on the issue of memoranda relating to wishes). Senior counsel for the o…

See all citing cases →

Cases Cited

Ward v Davey [2023] WADC 78
Citation 1 (Para 15)

…to consider, as where the trustee improperly delegates or releases the power or exercises it capriciously: Hardingham and Baxt, pp 11-12; Re Hodges; Davey v Ward (1878) 7 Ch D 754; Re Roper's Trusts (1879) 11 Ch D 272; Re Lofthouse (an infant) (1885) 29 Ch D 921. As the object of a mere power possessed by a trustee h…
Kennon v Spry [2008] HCA 56
Citation 2

…B Pty Ltd and Ors & K and Anor 219 FLR 107 Bain Pacific Associations & Ors and Kelly & Ors (2006) FLC 93-270 Beck and Beck (2004) FLC 93-181 Best v Best (1993) FLC 92-418 Bigg v Suzi (1998) FLC 92-799 C v B and W (2006) 35 Fam LR 547 Custodio and Pinto & Ors (2006) FLC 93-279 Duff and Duff (1977) FLC 90-217 Ev…
Jacobs & Vale [2008] FMCAfam 641
Citation 3 (Para 10)

…With respect to the Federal Magistrates Act 1999 , Jarrett FM in Jacobs & Vale [2008] FMCAfam 641 observed at 13: It will immediately be appreciated that the power possessed by the Federal Magistrates Court pursuant to the Federal Magistrates Act and the Federal Magistrates Court Rules is fundamentally different to t…
Raftland Pty Ltd v Federal Commissioner of Taxation [2008] HCA 21
Citation 4 (Para 4)

…ld be raised at final hearing based on the judgment of the High Court in Raftland Pty Ltd as trustee of the Raftland Trust v Commissioner of Taxation (2008) 82 ALJR 934.…
Lygon Nominees Pty Ltd v Commissioner of State Revenue [2007] VSCA 140
Citation 5 (Para 18)

…ed upon the following passage from the reasons for judgment of Owen J in R and I Bank of Western Australia Ltd v Anchorage Investments Pty Ltd [1992] 10 WAR 59 at 79, which was also adopted by French J in Richstar Enterprises Pty Ltd and Others; Australian Securities and Investments Commission v Carey (No 6…
JB & BW [2006] FamCA 639
Citation 6 (Para 4)

…have considered summary dismissal. The Full Court has, however, applied the “doomed to fail” test. These judgments include Bain Pacific , JB & BW [2006] FamCA 639, Gitane and Velacruz (2007) FLC 93-309 and Korsky & Bright and Anor (No. 2) .…
Australian Securities and Investments Commission v Carey (No 6) [2006] FCA 814
Citation 7 (Para 8)

…Counsel for L Pty Ltd directed the court to Richstar Enterprises Pty Ltd and Others; Australian Securities and Investments Commission v Carey (No 6 ) (2006) 153 FCR 509. That case concerned an application by the Australian Securities and Investments Commission (ASIC) pursuant to s 1323 of the Corporations Act 2001. A…
Hunt v Hunt [2006] FamCA 167
Citation 8 (Para 5)

…Senior Counsel for the wife directed the court’s attention to Hunt v Hunt & Lederer (2006) 36 Fam LR 64, whereby O’Ryan J upheld the constitutionally validity of s 90AE(2)(b). His Honour concluded at 65: When s 90AE(2) was read in conjunction with s 90AE(3), s 79, and Part VIIIAA generally, it was clear that what was contempla…
Pelerman v Pelerman [2000] FamCA 881
Citation 9 (Para 1)

…ourt (Ellis, Lindenmayer and Rose JJ) set out the following principles in Bigg v Suzi (1998) FLC 92-799. These principles were cited with approval in Pelerman v Pelerman (2000) FLC 93-037 at 87,582: (a) The power for summary dismissal is a discretionary one. (b) Relief “is rarely and sparingly provided.” (c) The parties seek…
Yanner v Eaton [1999] HCA 53
Citation 10 (Para 1)

…directed the court’s attention to the different senses in which the term “property” could be used throughout legal discourse. In Yanner v Eaton (1999) 201 CLR 351 at 365 - 366, (references omitted), a majority of the High Court (Gleeson CJ, Gaudron, Kirby and Hayne JJ) noted: The word "property" is often used to refe…
Lindon v Commonwealth of Australia [1996] HCATrans 165
Citation 11 (Para 2)

…roval the following legal principles which govern the exercise of summary relief which were enunciated by Kirby J in Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 at 255-6 (references omitted): The approach to be taken by the court to the Commonwealth's application for summary relief is not in doubt: 1. It is a…
Spellson v Spellson [1989] HCATrans 302
Citation 12

…thers JJ, 27 April 1990) Richstar Enterprises Pty Ltd and Others; Australian Securities and Investments Commission v Carey (No 6 ) (2006) 153 FCR 509 Spellson v Spellson (1989) FLC 92-046 Yanner v Eaton (1999) 201 CLR 351…
Fisher v Fisher [1986] HCA 61
Citation 13

…(1977) FLC 90-217 Evans and Public Trustee for the State of Western Australia as Legal Personal Representative of Evans (deceased ) (1991) FLC 92-223 Fisher v Fisher (1986) 161 CLR 438 Gartside v Inland Revenue Commissioners [1986] AC 553 Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227 Gitane and Velacruz (2007) F…
Mullane v Mullane [1983] HCA 4
Citation 14 (Para 4)

…In response to this submission, Senior Counsel for the wife directed the court’s attention to the decision of the High Court in Mullane v Mullane (1983) 158 CLR 436 at 445: In our opinion, section 79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the p…
Gazzo v Comptroller of Stamps (Vic) [1981] HCA 73
Citation 15 (Para 9)

…Senior Counsel for the wife submitted that the authority in Gazzo v Comptroller of Stamps (Vic) (1981) 149 CLR 227 at 234–5 and 248, is that whether a law which affects the property of parties to a marriage is a law with respect to marriage is dependent on the strength of the connection between the law and the marita…
Lindon v Commonwealth (No 2) [1996] HCA 14
Citation 16 (Para 2)

…The Full Court (Warnick, May and Boland JJ) in Korsky & Bright and Anor (No. 2) (2007) FLC 93-352 cited with approval the following legal principles which govern the exercise of summary relief which were enunciated by Kirby J in Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 at 255-6 (reference…
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 372
Citation 17 (Para 6)

…f the Full Court of the Federal Court (Finkelstein, Rares and Gordon JJ) in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd and Others (2008) 167 FCR 372, which was illustrative of the operation of s 31A of the Federal Court of Australia Act 1976 (Cth), which governs the Federal Court with respect to sum…
[1986] AC 553 [1986] AC 553
Citation 18 (Para 17)

…Senior Counsel for the wife and L Pty Ltd both made reference to the judgment of Lord Wilberforce in Gartside v Inland Revenue Commissioners [1986] AC 553 at 617 which was adopted by French J in Richstar Enterprises Pty Ltd and Others; Australian Securities and Investments Commission v Carey (No 6 ) at 518: No d…

Legislation Cited

Family Law Act 1975 (Cth)
2 mentions
Corporations Act 2001 (Cth)
1 mention (from Para 8)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)
Federal Court Act 1976 (Cth)
1 mention (from Para 12)
Federal Court of Australia Act 1976 (Cth)
1 mention (from Para 6)
Federal Magistrates Act 1999 (Cth)
1 mention (from Para 9)
Federal Magistrates Court Act 1999 (Cth)
1 mention (from Para 12)