FAMILY COURT OF AUSTRALIA
| VAN WYK & SPARKS AND ANOR | [2007] FamCA 495 |
| FAMILY LAW - JURISDICTION - Proceedings between parties before Family Court and Supreme Court - Supreme Court proceedings stayed - Whether Family Court should exercise its accrued jurisdiction - Consideration of delay and cost to parties |
| Family Law Act 1975 (Cth) ss 34, 78, 79, 80 & 90AE Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 |
| APPLICANT: | MR VAN WYK |
| RESPONDENT: | MS SPARKS |
| SECOND RESPONDENT: | MR SPARKS |
| FILE NUMBER: | ADF | 895 | of | 2004 |
| DATE DELIVERED: | 29 May 2007 |
| PLACE DELIVERED: | Adelaide |
| JUDGMENT OF: | BURR J |
| HEARING DATE: | 3 May 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR McGINN |
| SOLICITOR FOR THE APPLICANT: | JEREMY MOORE AND ASSOCIATES |
| COUNSEL FOR THE RESPONDENT: | MR BERMAN |
| SOLICITOR FOR THE RESPONDENT: | MINTER ELLISON |
COUNSEL FOR THE SECOND RESPONDENT: | MR WHITTLE |
| SOLICITOR FOR THE SECOND RESPONDENT: | WALLMANS |
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the Judgment of the Court delivered this day will for all publication and reporting purposes be Referred to as Van Wyk & Sparks.
Orders
That paragraphs 2, 3, 4 and 6 of the husband’s Amended Amended Application for Final Orders filed 1 May 2006 be dismissed.
That paragraph 1 of the wife’s Form 2 application filed 16 March 2006 be dismissed.
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 895 of 2004
| MR VAN WYK |
Applicant
And
| MS SPARKS |
Respondent
And
| MR SPARKS |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Proceedings are presently before this court between the applicant husband and respondent wife with respect to both parenting and financial orders.
The applicant husband has also brought proceedings in the Supreme Court of South Australia, against the respondent wife, second respondent and the company incorporated by the parties. He seeks orders in relation to the company and partnership conducted by the parties and land held by the respondents.
The applicant husband also seeks orders relating to the company, partnership and land in this court by way of property settlement.
Upon the application of the applicant husband, the Supreme Court proceedings have been stayed.
This matter comes before me to determine whether this court should exercise its accrued jurisdiction to determine the whole issue.
Background to proceedings
The respondent wife and…
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- Case
- [2007] FamCA 495
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court included whether it should exercise its accrued jurisdiction to grant the extensive relief sought, which involved winding up a company and dissolving a partnership, and making declarations of constructive trusteeship. The husband also sought alternative relief under the accrued jurisdiction and section 78 of the Family Law Act, including declarations of joint property ownership and orders for the transfer of shares. Furthermore, the husband sought orders for property settlement under section 79 of the Family Law Act, including a lump sum payment and the transfer of his interests in various assets.
Burr J considered the husband's application for an extension of time to institute proceedings and the joinder of third parties. The Court was asked to determine whether it possessed the jurisdiction to make orders concerning the winding up of a company and the dissolution of a partnership, and to make declarations of constructive trusteeship, by way of its accrued jurisdiction. The Court also had to consider the alternative claims for property division under the Family Law Act. The Court's reasoning focused on the scope of its accrued jurisdiction and the appropriate forum for resolving disputes involving company and partnership affairs, particularly in light of potential delays and costs to the parties.
Orders
Orders of the court
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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
On 1 May 2006 the husband filed an Amended Amended Application for Final orders. The husband now seeks the following orders: “1.That the Applicant Husband be granted an extension of time in which to institute proceedings in relation to matrimonial property settlement.2.That the following be joined as third parties to these proceedings:2.1the Respondents’ husband […];2.2the company [B] Pty Ltd (ACN […])(“the company”)3.That this Honourable Court pursuant to the exercise of its accrued jurisdiction make the following order:-3.1An order for the winding up of the company, pursuant to the Corporations Act sections 232, 233, 461 and on just and equitable grounds and in the inherent jurisdiction of the Court.3.2A declaration that the partnership between the Applicant […], the Respondent, […] and […] was dissolved on […] May 2004, such declaration to be made pursuant to the Partnership Act section 35 and the Supreme Court Act section 31.3.3The appointment of a receiver to the Partnership Act section 39.3.4An order for the winding up of the affairs of the partnership and an account and inquiry pursuant to the Partnership Act sections 28, 29, 39, 42 and 44.3.5A declaration that the second defendants […] and […] are constructive trustees of the land for themselves and the plaintiff and hold the land on trust for themselves and the plaintiff in proportions to be determined by the Court (such declaration pursuant to section 31 of the Supreme Court Act).3.6Vesting and any other consequential orders.4.In the alternative to the orders sought in paragraph 3 hereof and pursuant to the accrued jurisdiction of this Honourable Court and/or pursuant to s 78 of the Family Law Act:-4.1That the company and all assets of the partnership “[First and Second Respondents] and [the Applicant]” (“the partnership”) be declared the joint property of the Applicant Husband, the Respondent Wife and [Second Respondent].4.2That the land wholly described in Certificate of Title Register Book Volume […] Folio […] and known as [P], South Australia (“the former matrimonial home”) be declared the joint property of the Applicant Husband, the Respondent Wife and [Second Respondent].4.3That the Applicant Husband transfer all of his shares in the company to the Respondent Wife and [Second Respondent] in exchange for such fair and equitable sum as this Honourable Court deems fit.5.That by way of settlement of property pursuant to s79:-a)That the husband receive such lump sum from the wife as this Honourable Court thinks just and equitable.That the husband be granted leave if necessary to further amend this application upon completion of Valuation reports.b) That the Applicant husband on receipt of such sum referred to in paragraph 5(a) herein, transfer any right or interest in law and equity in the former matrimonial property, the company and partnership to the wife.6.That pursuant to the Corporations Act 2001 an Order for the winding-up or the Company pursuant to sections 232, 233 and 461 of the said Act and/or on the just and equitable grounds and in the inherent jurisdiction of the Court.”