Tomczak & Tomczak - [2025] FedCFamC1F 109

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tomczak & Tomczak [2025] FedCFamC1F 109

File number: WOC 1138 of 2022

Judgment of: CAMPTON J

Date of judgment: 24 February 2025

Catchwords:
FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks to amend her substantive relief to include the setting aside of the disposition of a real property by a corporation of the parties in the shadow of the trial that she contends was not bona fide or at arm’s length – Where the wife seeks the joinder of three additional respondents to the proceedings pursuant to r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where the joinder is resisted by one of the proposed respondents – Proposed additional respondent is a corporation whose interests are affected by the wife’s relief sought pursuant to s 106B of the Family Law Act 1975 (Cth) – Where two of the proposed three additional respondents are necessary parties for the purposes of r 3.01 of the Rules – Wife’s application for leave to amend granted – Application for joinder allowed in part.

FAMILY LAW – PRACTICE AND PROCEDURE – Notice of Objection to subpoena – Where the wife issued a subpoena to a corporation of the husband’s brother to produce documents relevant to her contention that the husband has sought to disguise the control and benefit of his property through his brother’s corporation, while maintaining de facto use and control of it – Where the wife contends that the husband’s brother’s corporation is the property of the husband and that his brother and the corporation are “a puppet” of the husband – Where the corporation filed a Notice of Objection to set aside the subpoena on the basis of an absence of apparent relevance, as to the scope of the subpoena being unduly onerous, as to the terms of the subpoena being vague, and as to privacy – Where the contentions as to absence of apparent relevance, the subpoena being unduly onerous, and as to privacy are not accepted – Where the terms of the subpoena may be varied such that its terms are not vague – Amendments to schedule of documents subpoena ordered.

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 79, 106B and 114

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.50, 3.01 and 6.04

Cases cited:
National Employers’ Mutual General Insurance v Waind [1978] 1 NSWLR 372

Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710

Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128

White & Tulloch & White (1995) FLC 92-640; [1995] FamCA 127

Division: Division 1 First Instance

Number of paragraphs: 55

Date of hearing: 24 February 2025

Place: Sydney

Counsel for the Applicant: Mr Mathews

Solicitor for the Applicant: Lander & Rogers

Counsel for the First Respondent: Mr Alexander

Solicitor for the First Respondent: Rita Thakur & Associates

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 Tomczak & Tomczak

Details

AGLC: Tomczak & Tomczak [2025] FedCFamC1F 109
Case: [2025] FedCFamC1F 109
Decision Date: 24 February 2025

CaseChat Overview and Summary

The case of Tomczak & Tomczak involves the wife's application to amend her substantive relief to include setting aside the disposition of a real property by a corporation in the shadow of the trial, and the joinder of three additional respondents to the proceedings. The wife sought to amend her relief to include the setting aside of the disposition of a real property by a corporation of the parties, contending that the disposition was not bona fide or at arm's length. Additionally, she sought the joinder of three additional respondents to the proceedings, which was resisted by one of the proposed respondents. The court was required to decide whether the wife could amend her relief and whether the additional respondents should be joined to the proceedings. The court also had to determine whether a Notice of Objection to a subpoena should be upheld.

The court granted the wife leave to amend her substantive relief to include setting aside the disposition of the real property by the corporation. The court found that the wife's contention that the disposition was not bona fide or at arm’s length had merit and that the amendment was necessary to ensure a fair and just resolution of the proceedings. Regarding the joinder of additional respondents, the court found that two of the three proposed respondents were necessary parties for the purposes of r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and that the joinder should be allowed. However, the court denied the joinder of one of the proposed respondents, finding that the proposed respondent's interests were not directly affected by the wife's relief sought. In relation to the Notice of Objection to the subpoena, the court found that the contentions as to absence of apparent relevance, the subpoena being unduly onerous, and as to privacy were not accepted. However, the court found that the terms of the subpoena could be varied to address the concerns raised by the objecting party and ordered amendments to the schedule of documents subpoena.

In summary, the court granted the wife leave to amend her substantive relief to include setting aside the disposition of the real property by the corporation. The court also allowed the joinder of two of the three proposed additional respondents to the proceedings and ordered amendments to the schedule of documents subpoena. The court's orders reflect a balanced approach to the issues raised by the wife's application, ensuring that the proceedings are conducted fairly and justly while also considering the interests of all parties involved.

Orders

Orders of the court

WOC 1138 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS TOMCZAK

Applicant

AND:

MR TOMCZAK

First Respondent

B PTY LTD

Second Respondent

TOMCZAK PROPERTY HOLDINGS PTY LTD

Third Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

24 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The wife be granted leave to file, on or before 4.00 pm on 25 February 2024, the Further Amended Response to an Initiating Application annexed to her Application in a Proceeding filed on 19 February 2025.

2. B Pty Ltd be joined as the second respondent to the proceeding.

3. Tomczak Property Holdings Pty Ltd be joined as the third respondent to the proceeding.

4. On or before 10 March 2025, the husband file any Amended Initiating Application in response to the wife’s Further Amended Response to Initiating Application filed pursuant to Order 1 and Tomczak Property Holdings Pty Ltd is to file and serve any Response thereto. It is anticipated Tomczak Property Holdings Pty Ltd will not file a Response pursuant to this order.

5. On or before 27 March 2025 B Pty Ltd, file any Response to the wife’s Further Amended to an Initiating Application filed pursuant to Order 1.

6. Pending further order, B Pty Ltd be restrained from transferring, selling, mortgaging, encumbering, or otherwise dealing with, the property at 3 C Street, Suburb D New South Wales, save and except as to leasing the property for a period of not greater than the current residential lease of the property.

7. The Amended Application in a Proceeding of the wife as filed 19 February 2025 otherwise be dismissed.

8. All parties’ costs to the wife’s Application in a Proceeding as amended 19 February 2025 be reserved to trial.

Subpoena objection:

9. The objection filed on 4 February 2025 to the subpoena issued at the request of the wife on 23 December 2024 directed to Tomczak Constructions Pty Ltd to produce documents be upheld in part, such that the schedule to the subpoena be amended as follows:

(a) In paragraph 2, the words “or other style of account whatsoever kind and whatsoever nature” are deleted;

(b) In paragraph 3, the words “including but not limited to” are deleted and the word “being” is inserted;

(d) In paragraph 5, the words “documents verifying any and all” are deleted;

(e) Paragraphs 6 and 7 are deleted;

(f) In paragraph 8, the words “any and all” are deleted;

(g) In paragraph 12, the word “verifying” is deleted and the word “recording” is inserted.

10. The time for Tomczak Constructions Pty Ltd to comply with the subpoena issued on 23 December 2024 as amended be extended to 6 March 2025.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The parties married in 2000, separated on a final basis on 31 December 2021, and were divorced in 2023.BACKGROUND Giving context to the subject matter of the dispute pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) and to these reasons, over the period of their marriage the husband and the wife, by way of corporate and trust structures, engaged in real property development, including building residential properties, commercial premises, and a service business, and completing renovations, extensions, and other constructions. On 21 March 2024 a senior judicial registrar, after a defended hearing, made orders pursuant to s 114 of the Act regulating the conduct of a corporation, Tomczak Developments Pty Ltd, of which the husband and the wife are the equal shareholders and directors. The orders provided for each of them to receive $2,307 per week from the corporation, and for the sale of a property at E Street, Suburb F NSW with $150,000 of the sale proceeds to be distributed to the wife and the balance to be paid to an NAB account in reduction of a corporate loan. The wife filed an Application for Review on 8 April 2024. On 14 June 2024 the Review was consensually resolved, confirming the orders of the senior judicial registrar on 21 March 2024 and providing for the sale proceeds of a different property at G Street, Suburb H to be distributed such that the wife receive $150,000. The joint balance sheet filed on 14 November 2024 by the husband and the wife records that they owned, at that time either personally or thorough corporations, six real properties and had recently sold three. Prior to the transfer of the proceeding to this Court on 14 November 2024, Judge Campbell recorded:B. This matter involves complex evidence concerning:i. The nature of the husband’s equitable interest in [Tomczak Constructions Pty Ltd];ii. The value of [Tomczak Developments Pty Ltd], including whether the business holds goodwill;iii. The value of the [Tomczak Investment Trust];iv. The Wife’s argument in relation to the Husband’s wastage and whether any notional addbacks are required;v. The characterisation of funds received by the Wife pursuant to interim orders;vi. The quantum and accuracy of each party’s directors’ loan through [Tomczak Developments Pty Ltd]; and vii. The legitimacy of loans asserted by the Husband. The husband and the wife, by way of corporations, either directly or indirectly have common interests with Mr J (described by the wife as the husband’s business partner) held by four adjoining real properties, being:(a)1 C Street, Suburb D, New South Wales owned by K Pty Ltd;(b)2 C Street, Suburb D, New South Wales owned by L Pty Ltd;(c)3 C Street, Suburb D, New South Wales (“the 3 C Street property”) previously owned by Tomczak Property Holdings Pty Ltd, and was sold to B Pty Ltd for the sum of $875,000 pursuant to a contract exchanged on 23 October 2024 and which was completed on 13 December 2024; and(d)4 C Street, Suburb D, New South Wales owned by K Pty Ltd.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	WOC 1138 of 2022
Judgment of:	CAMPTON J
Date of judgment:	24 February 2025
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where the wife seeks to amend her substantive relief to include the setting aside of the disposition of a real property by a corporation of the parties in the shadow of the trial that she contends was not bona fide or at arm’s length – Where the wife seeks the joinder of three additional respondents to the proceedings pursuant to r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) – Where the joinder is resisted by one of the proposed respondents – Proposed additional respondent is a corporation whose interests are affected by the wife’s relief sought pursuant to s 106B of the Family Law Act 1975 (Cth) – Where two of the proposed three additional respondents are necessary parties for the purposes of r 3.01 of the Rules – Wife’s application for leave to amend granted – Application for joinder allowed in part. FAMILY LAW – PRACTICE AND PROCEDURE – Notice of Objection to subpoena – Where the wife issued a subpoena to a corporation of the husband’s brother to produce documents relevant to her contention that the husband has sought to disguise the control and benefit of his property through his brother’s corporation, while maintaining de facto use and control of it – Where the wife contends that the husband’s brother’s corporation is the property of the husband and that his brother and the corporation are “a puppet” of the husband – Where the corporation filed a Notice of Objection to set aside the subpoena on the basis of an absence of apparent relevance, as to the scope of the subpoena being unduly onerous, as to the terms of the subpoena being vague, and as to privacy – Where the contentions as to absence of apparent relevance, the subpoena being unduly onerous, and as to privacy are not accepted – Where the terms of the subpoena may be varied such that its terms are not vague – Amendments to schedule of documents subpoena ordered.
Legislation:	Family Law Act 1975 (Cth) Pt VIII, ss 79, 106B and 114 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.50, 3.01 and 6.04
Cases cited:	National Employers’ Mutual General Insurance v Waind [1978] 1 NSWLR 372 Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corp Ltd [1984] 1 NSWLR 710 Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128 White & Tulloch & White (1995) FLC 92-640; [1995] FamCA 127
Division:	Division 1 First Instance
Number of paragraphs:	55
Date of hearing:	24 February 2025
Place:	Sydney
Counsel for the Applicant:	Mr Mathews
Solicitor for the Applicant:	Lander & Rogers
Counsel for the First Respondent:	Mr Alexander
Solicitor for the First Respondent:	Rita Thakur & Associates