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 |
| 2ND RESPONDENT: | Southwell Investments Pty Ltd |
| FILE NUMBER: | MLC | 1893 | of | 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 2ND RESPONDENT: | Mr Riordan SC with Mr Strum |
| SOLICITOR FOR THE 2ND 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
(2nd Respondent)
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…
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- AGLC
- Southwell and Jane (No 2) [2011] FamCA 734
- Case
- [2011] FamCA 734
- Decision Date
CaseChat Overview and Summary
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
1.
That Southwell Pty Ltd be joined as a party to the proceedings.
2.
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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