Southwell and Jane (No 2) - [2011] FamCA 734

FAMILY COURT OF AUSTRALIA

SOUTHWELL & JANE (NO 2)

[2011] FamCA 734

FAMILY LAW – Joinder of a Third Party after a case has begun – If a requirement of the Court is that a statement of claim is to be filed, is it just the pleading that should determine the joinder or is it the extensive evidence?

Civil Procedure Act 2010 (Vic)
Family Law Act 1975 (Cth)
Federal Court of Australia Act 1976 (Cth)

B Pty Ltd & Ors v K & Anor [2008] FamCAFC 113
Beck and Beck (2004) FLC 93-181
Custodio v Pinto & Ors (2006) FLC 93-279
Dey v Victorian Railways Commissioners (1948) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Moore v Lawson [1915] 31 T.L.R. 418
Pelerman v Pelerman (2000) FLC 93-037
Webster v Lampard (1993) 177 CLR 598

APPLICANT:

Mr Southwell

RESPONDENT:

Ms Jane

2^ND RESPONDENT:

Southwell Investments Pty Ltd

FILE NUMBER:

MLC

1893

2007

DATE DELIVERED:

20 September 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

CRONIN J

HEARING DATE:

12 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bick QC with Mr Thompson

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Mr Wood

SOLICITOR FOR THE RESPONDENT:

Pinto Law

COUNSEL FOR THE 2^ND RESPONDENT:

Mr Riordan SC with Mr Strum

SOLICITOR FOR THE 2^ND RESPONDENT:

Middletons

Orders

That Southwell Pty Ltd be joined as a party to the proceedings.
That all extant issues be listed as soon as practicable for directions as to the resumption of the trial.

IT IS NOTED that publication of this judgment under the pseudonym Southwell & Jane (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1893 of 2007

Mr Southwell

Applicant

And

Mr Jane

Respondent

Southwell Pty Ltd
(2^ndRespondent)

REASONS FOR JUDGMENT

By application filed 14 June 2011 Ms Jane (“the wife”) sought to join Southwell Pty Ltd (“the company”) as a party to property proceedings involving Mr Southwell (“the husband”).
The application was filed as a result of orders I made on 1 June 2011. The application is opposed by the company.
The company is the trustee of a family discretionary trust known as Southwell Trust (“the trust”). The directors of the company are the husband’s parents. The husband along with his siblings and parents, is a beneficiary of the trust.
The present dispute giving rise to the joinder issue arose during the running of the final hearing of the property proceedings between the husband and the wife. The Court needs to determine whether the husband has a loan account in his favour in the trust which has stood at $215,000 without earning interest and without being varied in the books of accounts for about 16 years and which must therefore be added to the…

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 Southwell and Jane (No 2)

Details

AGLC: Southwell and Jane (No 2) [2011] FamCA 734
Case: [2011] FamCA 734
Decision Date: 20 September 2011

CaseChat Overview and Summary

In *Southwell and Jane (No 2)*, the Supreme Court of Victoria, constituted by Cronin J, considered an application to join Southwell Pty Ltd as a party to existing proceedings. The specific nature of the dispute between the original parties is not detailed in the provided text, but the application to join a new party indicates a potential expansion or clarification of the legal contest.

The primary legal issue before the court was whether Southwell Pty Ltd ought to be joined as a party to the proceedings. This determination would likely involve an assessment of the company's interest in the subject matter of the litigation and whether its joinder was necessary for the court to effectively and completely adjudicate upon all the questions involved.

Cronin J ordered that Southwell Pty Ltd be joined as a party to the proceedings. Furthermore, the court directed that all outstanding issues be listed for directions as soon as practicable, with the clear intention of resuming the trial. This indicates that the joinder of Southwell Pty Ltd was considered a necessary step before the substantive trial could continue.

Orders

Orders of the court

That Southwell Pty Ltd be joined as a party to the proceedings.

That all extant issues be listed as soon as practicable for directions as to the resumption of the trial.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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