Venter & Venter (No 3)
[2022] FedCFamC1F 278
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Venter & Venter (No 3) [2022] FedCFamC1F 278
File number(s): BRC10651 of 2021 Judgment of: CAREW J Date of judgment: 29 April 2022 Catchwords: FAMILY LAW – INTERIM PROPERTY – PLEADINGS – STRIKE OUT APPLICATION – Where the second, third, fifth, seventh and eighth respondents (“the objecting respondents”) sought to strike out parts of the applicant wife’s Points of Claim – SUMMARY DISMISSAL – Where the objecting respondents sought summary dismissal of parts of the wife’s Initiating Application – Where the wife opposes the strike out application and summary dismissal – Where the first respondent husband supports the strike out application and summary dismissal – Where the fourth and sixth respondents have failed to take part in proceedings to date – Where the wife is ordered to amend her Points of Claim – Where the strike out application is otherwise dismissed – Where the application for summary dismissal is adjourned – Where the wife is ordered to file an amended Initiating Application – Where the eighth respondent’s application to be removed as a party to proceedings is adjourned. Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
High Court Rules 2004 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)Cases cited: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Big and Suzi [1998] FLC 92-799
Dare v Pulham (1982) 148 CLR 658
Fordyce v Ryan (2017) 2 Qd R 240
General Steel Industries Inc v Commissioner for Railways (N.S.W) (1964) 112 CLR 125
Harris & Dewell (2018) 58 Fam LR 313
In the Marriage of Duff and Duff (1977) FLC 90-217
In the Marriage of Goodwin and Goodwin Alpe (1991) FLC 92-192
Kennon & Spry (2008) 238 CLR 366
Khalif v Khalif [2021] FamCAFC 123
Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541
Nevins & Urwin [2022] FedCFamC1A
Public Trustee v Smith [2008] NSWSC 397
Re Webster (1975) 132 CLR 270
Shaeffer v Jacobs [2011] FamCAFC 119
Venter & Venter (No 2) [2022] FedCFamC1F 230
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 7 April 2022 Place: Brisbane Counsel for the Applicant: Mr Shaw QC with Dr Matta Solicitor for the Applicant: Damien Greer Lawyers Solicitor for the First Respondent: Broun Abrahams Burreket Family Lawyers Counsel for the Second, Third, Fifth and Seventh Respondents: Mr Henry SC Solicitor for the Second, Third, Fifth and Seventh Respondents: Barkus Doolan Family Lawyers Fourth Respondent: Did not participate Sixth Respondent: Did not participate Counsel for the Eighth Respondent: Mr Rogan Solicitor for the Eighth Respondent: Pearson Emerson Lawyers ORDER
BRC 10651 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VENTER
Applicant
AND: MR VENTER
First Respondent
MR B VENTER
Second Respondent
MR C VENTER (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
29 APRIL 2022
THE COURT ORDERS THAT:
1.Within 21 days, the applicant wife provide a draft of a Further Amended Initiating Application to the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents setting out with particularity the orders sought against each of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents including any orders sought pursuant to ss 78, 85A, 90AE and/or 106B as they affect each of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents.
2.Within 21 days, the applicant wife provide a draft of Amended Points of Claim to the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents in which she separately pleads her case as against each of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents, by setting out the contentions of fact and law (including particulars of all material facts) relied upon by her to provide the foundation for the Orders sought in the draft of the Further Amended Initiating Application referred to in the preceding paragraph.
3.Within 28 days, the applicant wife file and serve a Further Amended Initiating Application setting out with particularity the orders sought against each of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents including any orders sought pursuant to ss 78, 85A, 90AE and/or 106B as they affect each of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents.
4.Within 28 days, the applicant wife separately plead her case as against each of the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th respondents, by filing and serving an affidavit annexing Amended Points of Claim setting out the contentions of fact and law (including particulars of all material facts) relied upon by her to provide the foundation for the Orders sought in the Further Amended Initiating Application to be filed pursuant to the preceding paragraph.
5.Within a further 28 days the 2nd, 3rd, 5th, 7th and 8th respondents (and if the 4th and 6th respondents elect to take part in the proceedings after service of the Further Amended Initiating Application and Amended Points of Claim) file and serve any Amended Points of Defence.
6.Paragraph 1 b) of the Application in a Proceeding filed 7 December 2021 seeking to strike out paragraphs 2.5, 25, 26 and 41 to 49 of the Points of Claim filed 12 October 2021 be otherwise dismissed.
7.Paragraph 1 a) of the Application in a Proceeding filed 7 December 2021 seeking summary dismissal of paragraphs 4, 9 and 10(a) of the wife’s Amended Initiating Application filed 12 October 2021 be adjourned to 8 July 2022 at 10.00 am.
8.The Response to the Application in a Proceeding filed 16 February 2022 (as amended by leave) seeking an order for the 8th respondent to be removed as a party in the proceedings be adjourned to 8 July 2022 at 10.00 am.
9.The hearing date on 9 May 2022 be vacated.
10.Paragraphs 2-8 and 11-15 of the interlocutory orders sought in the wife's Amended Initiating Application filed 12 October 2021 be listed for mention on 8 July 2022 at 10am before the Honourable Justice Carew.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Venter & Venter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
The Venter family and others are in dispute about what property is owned by or on behalf of Ms Venter (“the wife”) and/or Mr Venter (“the husband”). In the wife’s substantive property proceedings it seems (although it is far from clear) that the wife’s contention is that a group of entities and a trust identified by her in paragraph 2.5 of her Points of Claim as the “[D] Group”[1] (or it may be that the “[D] Group” comprises the group of entities and trusts identified in the schedule to her Amended Initiating Application filed 12 October 2021)[2] is controlled by the husband such that any assets of the “[D] Group” should be treated as beneficially owned by the husband and/or the husband and the wife.
[1] The entities and trust identified by the wife in paragraph 2.5 of the Points of Claim as comprising the “[D] Group” are D Group Holdings Pty Ltd, D Management Services Pty Ltd, U Pty Ltd, DD Pty Ltd, V Pty Ltd, W Pty Ltd, X Pty Ltd, X Services Pty Ltd, Y Pty Ltd and Z Pty Ltd.
[2] The entities and trusts identified by the wife in the schedule are a considerably greater group comprising 47 entities and/or trusts.
Three of the respondents are the adult children of the wife and husband. Mr B Venter is the second respondent. Mr C Venter is the third respondent. Ms Glynn is the fourth respondent.
The remaining respondents are D Group Holdings Family Pty Ltd as trustee for the D Group Holdings Discretionary Trust (the fifth respondent), T Pty Ltd as trustee T Discretionary Trust (the sixth respondent and now in liquidation,) R Pty Ltd (the seventh respondent) and G Pty Ltd, (the eighth respondent) who was joined on 12 November 2021.
On 7 April 2022 I heard an interim dispute that was adjourned[3] pending determination of a Case Stated to the Full Court as to the jurisdiction of this Court to hear matters pending in it as at 1 September 2021, when the jurisdiction of the Court changed to one depending largely on proceedings being transferred to it from a lower court.
[3] Venter & Venter (No 2) [2022] FedCFamC1F 230.
The decision of the Full Court was handed down on 21 April 2022[4] (with the Reasons yet to be published) and the answer to the first question in the case stated[5] indicates that I do have jurisdiction to determine the matter.
[4] Nevins & Urwin [2022] FedCFamC1A 57.
[5] Does the Federal Circuit and Family Court of Australia (Division 1) have original jurisdiction to hear and determine this proceeding which was pending before 1 September 2021 in the court previously known as the Family Court of Australia?
WHAT MATTERS REQUIRE DETERMINATION?
The matters for determination concern the following:
(1)The Application in a Proceeding filed on 6 December 2021 by the second, third, fifth and seventh respondents seeking that paragraphs 4, 9 and 10(a) of the wife’s Amended Initiating Application filed 12 October 2021 be summarily dismissed, and paragraphs 2.5, 25, 26 and 41 to 49 of the wife’s Points of Claim dated 12 October 2021 be struck out; and
(2)The application by the eighth respondent as contained in its Response to the Application in a Proceeding filed 16 February 2022 which joins in the relief sought in the Application in a Proceeding as identified in the preceding paragraph and further that it be removed as a party to the proceedings (the latter being an amendment to the Response made with leave).
The wife opposes the making of the orders sought. The husband supports the applications by the other respondents.
The fourth and sixth respondents have taken no part in the proceedings to date notwithstanding being served with the original Initiating Application.
THE STRIKE OUT APPLICATION
It was agreed that the proper course would be to rule on the application to strike out parts of the Points of Claim and then move to consider the summary dismissal application.
The second, third, fifth and seventh respondents and the eighth respondent (“the objecting respondents”) seek to strike out paragraphs 2.5, 25, 26 and 41 to 49 of the wife’s Points of Claim dated 12 October 2021.
Although the practice and procedure for this Court is generally to be found in the Family Law Act 1975 (Cth), the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”) and the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”), there are circumstances where the High Court Rules 2004 (Cth) may apply. Section 56 (2) of the new Act provides as follows:
(2)To the extent that the provisions mentioned in subsection (1) are insufficient, the Rules of the High Court apply, mutatis mutandis, so far as they are capable of applying and subject to any directions of the Federal Circuit and Family Court of Australia (Division 1) or a Judge, to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
In the absence of any provision dealing with the striking out of pleadings the objecting respondents submit, and I accept, that r 27.09.05 of the High Court Rules 2004 (Cth) applies. Rule 27.09.05 provides as follows:
27.09.5 Where a pleading:
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceedings; or
(d) is otherwise an abuse of the process of the Court;
the Court or a Justice may order the whole or part of the pleading be struck out or amended.
Before setting out the relevant paragraphs of the Points of Claim that are the subject of the strike out application, the objecting respondents note that an order was made on 13 September 2021, the relevant parts of which are as follows:
1.That within 28 days, the [wife] separately plead her case as sought against each of the 2nd, 3rd, 5th and 7th Respondents, by filing and serving an affidavit annexing a Points of Claim setting out:
a.The statutory and/ or equitable basis relied upon for the Orders sought in her Initiating Application filed 11 August 2021 as it relates to each of the 2nd, 3rd, 5th and 7th Respondents; and
b.All material facts and particulars, and all documents relied upon to establish any of those facts, as evidence as against each of the 2nd, 3rd, 5th and 7th respondents respectively to found the relief claimed in her Initiating Application filed 11 August 2021.
2.That any requests for further and better particulars arising from the [wife’s] Points of Claim be made by each of the 2nd, 3rd, 5th and 7th respondents within 14days of service of the Points of Claim, and the [wife] respond to such requests within a further 28 days.
The wife subsequently amended her Initiating Application on 12 October 2021 which led to a further order being made on 12 November 2021, the relevant parts of which are as follows:
2.The Orders made on 13 September 2021 be otherwise discharged and varied as follows:
1)It is NOTED that on 12 October 2021 the Applicant separately pleaded her case as sought against each of the 2nd, 3rd, 5th, 7th and 8th Respondents, by filing and serving an affidavit annexing a Points of Claim ("Points of Claim").
2)That any requests for further and better particulars arising from the Applicant's Points of Claim be made by the 8th respondent on or before 30 November 2021 (and it is NOTED that the 1st, 2nd, 3rd, 5th and 7th respondents served a request for further and better particulars on 26 October 2021), and the Applicant respond to such requests within a further 28 days of receipt of any said request.
3.That all Respondents file and serve Points of Defence annexed to an affidavit within 14 days of service of the Applicant's responses to the request for further and better particulars.
4.That the Applicant file and serve any Reply annexed to an affidavit to each of the Respondents' Points of Defence within 14 days of service of the respective Points of Defence.
It is trite to observe that the purpose of pleadings is to enlighten the parties and the Court as to the precise nature and extent of the dispute to be determined. Imprecise or nebulous assertions do not achieve that aim. The High Court in Dare v Pulham[6] described the purpose of pleadings as follows:
6.Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court.
(Citations omitted)
[6] (1982) 148 CLR 658 at 664.
Paragraphs 2.5, 25, 26 of the Points of Claim
Turning then to the precise parts of the Points of Claim which are sought to be struck out: the first is paragraph 2.5 which provides as follows:
2.The respondent husband:
…
2.5.Is a person who, despite not being validly appointed as a Director of the Fifth, Sixth, Seven and Eighth Respondents, nor of [D Group Holdings Pty Ltd, D Management Services Pty Ltd, U Pty Ltd, DD Pty Ltd, W Pty Ltd, X Pty Ltd, X Services Pty Ltd, Y Pty Ltd, VV Pty Ltd, Z Pty Ltd[ (collectively, the [D Group]):
a) acts as a director of each of those companies; and/or
b)is a person in accordance with whose instructions and wishes the Third Respondent (in respect of Fifth, Sixth and Seventh Respondents, [D Group Holdings Pty Ltd, D Management Services Pty Ltd, U Pty Ltd and DD Pty Ltd]); the Second Respondent (in respect of the Fifth and Sixth Respondents, [D Group Holdings Pty Ltd]); [Mr J] (in respect of the Eighth Respondent); [Ms AA] (in respect of [VV Pty Ltd and W Pty Ltd]); and [Mr BB] (in respect of [X Pty Ltd and Z Pty Ltd]) are accustomed to, and do, act;
c)is therefore to be deemed to be a director or controller of the Fifth, Sixth, Seventh and Eighth Respondents and the entities referred to collectively as the [D Group].
Requests for further and better particulars of paragraph 2.5 were requested by the objecting respondents (although the 8th respondent submitted a separate request as it applied to it). For present purposes the request by the objecting respondents (other than the 8th respondent) was in the following terms:
Paragraph 2.5(a)
1.Please identify the facts and matters relied upon to allege in paragraph 2.5(a) that the Husband acts as a director of the companies that comprise the [D Group
Paragraph 2.5(b)
2.Please identify the instructions and wishes alleged in paragraph 2.5(b) that the Husband has given and that the Second Respondent, the Third Respondent, [Ms AA] and/or [Mr BB] have acted upon.
The response to the request was as follows:
1.Further to paragraph 2.5:
The Wife objects to providing the particulars sought on grounds that the request of the Husband, Second Respondent, Third Respondent, Fifth Respondent and Seventh Respondent (collectively, Respondents) is vexatious. The Wife has provided the particulars, at paragraph 26 of the Points of Claim. Further, the Respondents seek that the Wife provide the evidence by which she proposes to prove the allegations made in the Points of Claim which is not a proper request for particulars and is more properly the subject of a request for discovery. The particulars sought by the Respondents are not necessary to enable each of them to plead their case. Each of the Respondents remain in breach of Order 8 of the Orders dated 12 November 2021 and have not provided, in the case of Second, Third , Fifth and Seventh Respondents any disclosure and in the case of the Husband incomplete disclosure required pursuant to correspondence from the Wife's solicitors dated 23 September 2021. Further particulars will be provided once the Respondents have provided disclosure and responded to the Notice to Admit Facts.
Despite the objecting respondents submitting that disclosure is not necessary prior to the wife providing further and better particulars, they nevertheless note that disclosure was provided three days after the wife’s refusal to provide further particulars, and yet no further particulars have yet been forthcoming.
The second and third paragraphs of the Points of Claim sought to be struck out are numbered 25 and 26 and are as follows:
25.At all material times the Husband has managed and directed:
25.1.[Mr B Venter] in his capacity as director of:
a)The Fifth Respondent ([D Group Holdings Family Pty Ltd] as trustee for the [D Group Holdings Discretionary Trust]);
b)The Sixth Respondent ([T Pty Ltd] (in Liquidation) as trustee for the [T Discretionary Trust]);
c) [D Group Holdings Pty Ltd]; and
d) The entities related to 25.1(a), (b) and (c).
25.2.[Mr C Venter] in his capacity as director, including, of:
a)The Fifth Respondent ([D Group Holdings Family Pty Ltd] as trustee for the [D Group Holdings Discretionary Trust]).
b)The Sixth Respondent ([T Pty Ltd] (in Liquidation) as trustee for the [T Discretionary Trust]).
c) The Seventh Respondent ([R Pty Ltd]);
d) [D Group Holdings Pty Ltd] (ACN …);
e) [D Management Services Pty Ltd] (ACN …);
f) [U Pty Ltd] (ACN …);
g) [DD Pty Ltd] (ACN …); and
h) The entities related to 25.2(a), (b), (c), (d), (e), (f), (g) and (h).
25.3.Brenton in his capacity as director of:
a) The Eighth Respondent;
b) [Z Pty Ltd] as trustee for the [Z Discretionary Trust]; and
c) The entities related to 25.3(a) and (b).
26.At all material times [Mr B Venter, Mr C Venter and Mr J], have exercised their decision-making powers as directors, in accordance with the direction and wishes of the Husband.
Particulars
[Mr CC]:
a)was employed by [D Group] between … 2016 and … 2019;
b) is a person familiar with the internal operation of the [D] Group;
c)commenced proceedings against the Husband, Second, Third, Fifth, Sixth , Seventh, Eighth Respondents, [X Services] Pte Ltd, [D Management Services Pty Ltd] and [W Pty Ltd] in the Supreme Court of Queensland on or about … 2020 for inter alia breach of contract;
d)has deposed in those proceedings to [Mr B Venter, Mr C Venter, Mr J and Ms AA] in their capacities, variously, as directors of various entities within the [D Group], as mere puppets of, and acting in accordance with the instructions and wishes of, the Husband.
The objecting respondents submit that what seems to be relied upon for the support of paragraph 26 is an affidavit “in what appears to be lay evidence that was deposed to with respect to unidentified matters and events” and further that “the particulars [are] at a level of generality which doesn’t really assist the person reading the documents as to what the case against them is”.
A request for further and better particulars of paragraphs 25 and 26 of the Points of Claim sought the following:
Paragraph 25.1
3. Please identify the facts and matters relied upon to allege in paragraph 25.1 that the Husband has “managed and directed" [Mr B Venter].
Paragraph 25.2
4.Please identify the facts and matters relied upon to allege in paragraph 25.2 that the Husband has "managed and directed" [Mr C Venter].
Paragraph 25.3
5. Please identify the facts and matters relied upon to allege in paragraph 25.3 that the Husband has "managed and directed" [Mr J].
Paragraph 26
6. Paragraph 26 of the points of claim has not been properly particularised. Please identify the "direction and wishes" given by the Husband which [Mr B Venter, Mr C Venter and Mr J] are alleged to have exercised their decision-making powers as directors in accordance with.
The wife’s response to that request is as follows:
7. Further to paragraphs 25, 26 and 28
7 .1All material times refers from the period of incorporation of the entities referred to in paragraphs 25 and 26 to date.
7 .2. The Wife objects to providing the further particulars sought on grounds that the request of the Respondents is vexatious. Further, the Respondents seek that the Wife provide the evidence by which she proposes to prove the allegations made in the Points of Claim which is not a proper request for particulars and is more properly the subject of a request for discovery. The particulars sought by the Respondents are not necessary to enable each of them to plead their case.
The objecting respondents argue that the wife’s refusal to identify the facts and matters relied upon to support her allegations should result in the identified paragraphs (2.5, 25 and 26) being struck out as the facts and matters relied upon by her remain “a mystery”.
The objecting respondents submit that on the face of the parts of the Points of Claim to which objection is taken, and accepting the material facts and particulars (such as they are) at their highest, there is no arguable cause of action disclosed. Further, they are said to be “scandalous, frivolous and vexatious and may prejudice, embarrass or delay the fair trial of the proceedings and are an abuse of process of the court”. Lastly, the identified paragraphs of the Points of Claim are submitted to be “no more than gratuitous assertions that the second and third respondents performed unidentified acts in accordance with their father’s wishes. When those wishes came to be, in relation to what, how they were communicated, and what, if anything, was done in reliance upon them are all a mystery”.
Paragraphs 41 – 46 of the Points of Claim: The [H Street] Property
Further paragraphs of the Points of Claim sought to be struck out are as follows:
41.In or about October 2013, the Husband and Wife commenced residing in the [H Street] Property pursuant to a residential tenancy agreement.
42.By agreement entered into between the Wife, at the direction of the Husband, and the landlord it was agreed that the Husband and Wife would have an option to purchase the [H Street] Property.
Particulars
On 30 May 2015 the Wife, in her capacity as the sole director and shareholder of [EE Pty Ltd] as trustee for the [EE Family Trust], entered into a Call Option Deed (Call Option Deed) with [FF Pty Ltd] as Trustee for [FF Trust] (Vendor) providing [EE Family Trust] with an opt ion to purchase the [H Street] Property (Call Option):
a) The “Call Option Period” was 5 years from the date of the deed.
b)Clause 5 .1 provided [EE Family Trust] with exclusive possession of the [H Street] Property for the Call Option Period.
c)Clause 7.1 provided [EE Family Trust] with the right to assign its rights under the Call Option Deed to another person or entity upon providing the Vendor with written notice.
d)Clause 7.2 provided [EE Family Trust] with the right to appoint a nominee to exercise the Call Option to purchase the [H Street]Property upon giving written notice to the Vendor in the form of the “Nomination Form” contained in Schedule 5 of the Call Option Deed.
43. In or about January 2017, and during the Call Option Period:
43.1.The [H Street]Property was sold by the Vendor to [Mr B Venter, Mr C Venter and Ms Glynn].
43.2.The Wife, in her capacity as sole director of [EE Family Trust], neither nominated nor assigned the Call Option pursuant to clauses 7.1 and 7.2 of the Cal l Option Deed to [Mr B Venter, Mr C Venter and Ms Glynn] or any of them.
44.Notwithstanding the legal interests of [Mr B Venter, Mr C Venter and Ms Glynn] as registered proprietors of the [H Street] Property:
44.1The Husband and Wife retained their equitable interest in the property; and
44.2The Husband made proprietorial representations to the Wife of their enduring interest.
Particulars
On 18 March 2021, the Husband:
a)Emailed the Wife with a document titled “Binding Deed of Agreement"” (BDA) recording the terms offered by the Husband to the Wife for the Wife’s financial security.
b)Recital B(i) of the BOA defined the term "Ongoing Benefit" and, in part, provided:
As a consequence of the dissolution of the marriage, [Ms Venter] receives the ongoing benefits
(i) rent free accommodation in the House as her principal place of residence . ..
c)“House” is defined in Clause 1.1.5 as “the property at [H Street] or any New House".
d) Clause 2.1 of the BOA provided:
[Mr Venter] personally guarantees payment and provision of the Ongoing Benefits for the duration of [Ms Venter’s] life.
45.The consideration for the acquisition of the [H Street] Property was paid from income and/or capital of the [D Group] which is “property” within the meaning of section 4 of the Family Law Act.
Particulars
Further details may be provided after discovery.
46.By reason of paragraphs 43 to 45, [Mr B Venter, Mr C Venter and Ms Glynn] hold their legal interest in the [H Street] Property upon resulting trust for the Husband and Wife.
It is submitted on behalf of the objecting respondents that on the wife’s own pleading, the only person who had an equitable interest in the H Street property was EE Pty Ltd as trustee for the EE Family Trust under the call option deed. Accordingly, there is no foundation whatsoever for the assertion that the husband and wife had, let alone retain, an equitable interest in the property. Further, to the extent that it is asserted that the husband made “proprietorial representations to the wife”, whatever that may mean, the husband does not acquire an equitable interest in the property by a mere statement to that effect. The wife does not identify which company or companies in the “[D Group]” paid for the H Street Property but, again on her own pleading, neither she nor the husband provided the funds. Accordingly, there is no foundation for an assertion that the property, which is legally owned by Mr B Venter, Mr C Venter and Ms Glynn, is held by them pursuant to a resulting trust for the husband and wife. It is submitted that the assertions are embarrassing and ought be struck out.
Paragraphs 47 – 49 of the Points of Claim
The final three paragraphs sought to be struck out are as follows:
47.The [Venter Family Trust] was established in 2016 as the vehicle for holding the Husband and Wife's interest in the [D Group].
48. At all material times since the date of its creation, the [Venter Family Trust] has been used to hold property for the use or benefit of the Husband and Wife as parties to the marriage, which represented property accumulated and contributed to during the course of the marriage by either or both of the Husband and Wife.
49.In the premise, the [Venter Family Trust] is a nuptial settlement made in relation to the marriage between the Husband and Wife within the meaning of section 85A of the FamilyLaw Act.
In response to a request for particulars in relation to paragraph 48 which was in the following terms:
Please identify the property held for the use and benefit of the husband and the wife, and please identify the property accumulated and contributed to by the husband and the wife held by the trust.
the wife responded as follows:
Further to paragraph 48, the total of the corpus, assets and income of the trust has been accumulated and contributed by and is held for the use and benefit of the husband and wife.
It is argued on behalf of the objecting respondents that in the absence of the identification of what property is asserted to be the subject of the nuptial settlement or what represents the accumulation and contribution to the property and income of the marriage, the paragraphs are embarrassing and ought be struck out.
The wife’s argument in response
The wife resists the strike out application on the following bases:
(1)This Court is not a court of pleadings and accordingly “the court must look at the suite of documents, including the affidavits filed, and assess whether a cause of action has been established and whether the claims to be agitated at trial are doomed to fail or have a reasonable likelihood of success”;
Although the wife’s submission that “this Court is not a Court of pleadings” is obviously correct, it is usual, as it was in the present case, for pleadings to be ordered when parties other than parties to a marriage are involved in proceedings. As already noted, the point of pleadings is to enable the parties and the Court to identify the material facts and legal contentions said to support the orders sought against them or that may impact on them. Third parties should not have to wade through copious material in search of what might be argued forms the basis for a claim against them.
The wife relies upon the Full Court decision of Shaeffer v Jacobs[7] (“Shaeffer”) to support the submission that the Court must look to the “suite of documents” rather than just the pleadings. Shaeffer was not a case involving third parties but a married couple and the comment upon which reliance is placed was not made in the context of a case such as the present one. It certainly is not an authority for the broader proposition that the wife does not have to identify her case in pleadings where an order has been made that she do so.
[7] [2011] FLC 93-468.
The wife also relies upon Khalif v Khalif[8] (“Khalif”). In that case, the Full Court held that reference to a “wider suite of documents which included the affidavits filed and their case outlines” was necessary in order to determine the case to be met by each of the parties. However, that occurred in circumstances where the only pleading was Points of Claim. There was no order for the filing of Points of Defence (unlike the current case). Thus the fundamental purpose of pleadings i.e. to identify the issues in dispute, was not met. It is also important to note that the wife in Khalif was found to have pleaded her case in her Points of Claim to the extent she was required by the order.
[8] [2021] FamCAFC 123.
The second basis for resisting the strike out application is as follows:
(2)The wife argues that the pleadings ought not be struck out because her inability to provide particulars “arises from a lack of knowledge of the transactions which the other parties have full knowledge of”.
Essentially, it seems the wife is making a concession that she has not properly pleaded her case but claims she is unable to do so because she lacks sufficient knowledge to do so, and that the objecting parties should know the material facts upon which her proposed claim is based. I note that since the wife filed her Amended Initiating Application and Points of Claim disclosure has occurred.
The third basis (although connected to the second) for resisting the strike out application is as follows:
(3)The objecting respondents are not “arm’s length parties or parties to arm’s length transactions” and “it doesn’t serve justice to require [the wife] to provide information [she] do[es] not have”
The wife submits that some historical context is essential to understanding this argument. The matters that are contended to be relevant are as follows:[9]
[9] As set out in the wife’s affidavit filed 13 October 2021.
(a)In 2006 the husband set up a financial business;
(b)At that time the second, third and fourth respondents were aged 18, 16 and 12 respectively;
(c)Two companies were set up: F Pty Ltd and V Pty Ltd;
(d)Neither the wife nor the husband could hold a business licence so the second respondent (then aged 19) was the sole director and shareholder of F Pty Ltd and a family friend, Mr HH, invested money in the business;
(e)Mr HH and EE Pty Ltd were the two shareholders of F Pty Ltd;
(f)The wife was the sole director and shareholder of EE Pty Ltd;
(g)Mr HH was the sole director and shareholder of V Pty Ltd;
(h)F Pty Ltd provided financial services to customers sourced through the agency services provided by V Pty Ltd;
(i)V Pty Ltd also provided financial services;
(j)In 2015 after unsuccessful litigation against the business by the Australian Securities and Investment Commission and after the death of Mr HH, the business was restructured;
(k)In June 2016, V Pty Ltd sold its business to D Group Holdings Pty Ltd, a company incorporated on 26 May 2016;
(l)Mr B Venter and Mr C Venter are the directors of D Group Holdings Pty Ltd and the sole shareholder is D Group Holdings Family Pty Ltd, also incorporated on 26 May 2016;
(m)Mr B Venter, Mr C Venter and Ms Glynn are the directors of D Group Holdings Family Pty Ltd and equal shareholders;
(n)D Group Holdings Family Pty Ltd is the trustee for the D Group Holdings Discretionary Trust;
(o)The husband was the appointor for the D Group Holdings Discretionary Trust from its establishment on 26 May 2016 until his resignation on 27 July 2020 (the husband contending that he was named as the appointor by accident);
(p)One of the beneficiaries of the D Group Holdings Discretionary Trust is VV Pty Ltd, the shares in which are held by the trustee, D Group Holdings Family Pty Ltd;
(q)As part of the restructure, the agency services part of the business is provided by R Pty Ltd, a company incorporated on 12 May 2015;
(r)Mr C Venter is the sole director of R Pty Ltd and D Group Holdings Pty Ltd is the sole shareholder;
(s)Part of the financial services of the business is provided by S Pty Ltd, a company incorporated on 14 June 2016 and G Pty Ltd, a company incorporated on 20 February 2019;
(t)The husband is the sole director and shareholder of S Pty Ltd;
(u)Mr J is the sole director G Pty Ltd and the sole shareholder was J Investments Pty Ltd and now J Group Holdings Pty Ltd;
(v)Mr J was employed in a financial business in 2009 when he was 19 years of age and is a highly trusted employee of the husband’s.
Having referred to the above history, it is submitted on behalf of the wife that “it is plain the case that must be met by the respondents from the pleading and certainly that is the case when one takes account of the material that is also filed”.
When specifically asked to identify the claim and the basis for the claim against the objecting respondents, Mr Shaw QC for the wife responded, by reference to paragraph 2.5 of the Points of Claim, that the “first part of the allegation” is that the husband is a deemed director of the entities referred to therein and by reference to paragraphs 26 and 26 of the Points of Claim “at all material times the husband has managed and directed his son Mr B Venter in his capacity as director of all these companies, his son Mr C Venter in his capacity as all these directors of all these companies, and Mr J, the chap who has worked with them since he was 19 years old in his capacity as the director of the eighth respondent and some other companies”.
It was then submitted that the “critical allegation is that at all material times Mr B Venter, Mr C Venter, and Mr J have exercised their decision-making powers as directors in accordance with the direction and wishes of the husband” with “one of the particulars of that allegation” (I observe the only particular, if it can be called that), is from a person called, Mr CC, who asserts that Mr B Venter, Mr C Venter, Mr J and another person, Ms JJ (about whom I know nothing from the Points of Claim or the other material relied upon by the wife) “are mere puppets of and acting in accordance with the instructions and wishes of the husband”.
On the basis of these unparticularised assertions it is contended that “quite plainly … the allegation is that the husband is, in truth, in complete control of these companies and therefore, they are his property. And that feeds into the allegations that are made at the end of the Points of Claim from paragraphs 47 and onwards that to the extent that there has been any disposition of the trust, that should be unwound under section 85A as a nuptial settlement”.
Further, Mr Shaw QC for the wife submits that “[t]o the extent there have been transfers to defeat the wife’s claims, they should be unwound under section 106B of the Family Court (sic) Act. And further … that to the extent that these things are held by third parties, they ought be dealt with under section 90AE … And … all of these things ought be treated as property of the marriage because that is what they are … And a critical allegation is that all of these individuals and companies are acting as puppets of the husband”.
When asked to identify the factual basis or the evidence (if I am to have regard to a “wider suite of documents” than the Points of Claim) to support the leap from the husband’s “control” to owning (as yet unidentified) property (for the purposes of s 79 of the FLA), Mr Shaw QC referred to the evidence contained in the transcripts of conversations annexed to the affidavit by Ms KK and in particular the following:
a)A conversation between the wife and Ms Glynn
(i)During which Ms Glynn said:
Anyway, and then Dad has offered to give us each some money and it’s all an equal amount. And he’s, like, worked it out that, he has, like, sat down and actually worked out okay what did – what has [Mr B Venter] contributed, what has [Mr C Venter] contributed, what have [Ms Glynn] contributed. And then, like, what have each of them received as well.
And then I also – I also – Dad says I’m also owed, like, a sportscar like the boys, and a car for my partner like a Merc style car because that’s what the boys all got.
And so, anyways, so that’s, like, I just fill you in that that’s what Dad has done with the whole contribution thing. So I feel so relieved you know.
(ii)During which the wife said:
No. He was bullying me, and he was going. He was trying to get me to agree. He said, “Well, what do you want? Do you want a million dollars? Do you want two million dollars? Do you want five million dollars?”
(iii)During which Ms Glynn said:
Yes. That is what he said to me too.
Yes. But now listen to me, listen to me, okay? Now, you need to understand the minute you send this letter, okay, they’re going cut your money off. They’re going to stop your money.
[The wife] They can’t do that.
They will do that. They will stop your money. I know how they operate, Mum. Now, listen to me. That’s what you need to be prepared here. They’re going to stop your money at its tracks, okay. And then what they’re going to do is they’re going to evict you from the house because they’re going to go ugly. And you’re not going to have any warning because the house is not in your name. And you can fight it, and fight it, and fight it and which you will. But in that time, you are not earning. You don’t have anywhere to live. You’re still also going to have to be paying all the lawyers to be fighting the battle.
Listen to me. They’re going to. They’re going to try and like punish you. And you know what Mum
Now what I suggest is that now Dad has gone and given us money, you ..... in the morning. I don’t mind putting my neck out for you.
b)A conversation between the husband and the wife:
Husband: A lot of meat in there. If she smokes less, drinks a different wine, and doesn’t have all the dogs electricity gets watched so she’s fine.
Wife: Okay. So why don’t you do the same?
Husband: I do whatever I want. But you’re governed by what I say, and you live very well.
Wife: Yes. That’s fine.
Husband: So I’m not increasing it from what I said.
Wife: That’s fine. I didn’t ask you to. I just wanted to show you.
Husband: [D Management Services], who signs?
…Husband: Remember that I can take it all away.
…
Husband: That a woman can never see to herself. You are a dependent. You want a better life, go find a man. Find a man. Can’t you (indistinct)
…
Husband: Okay. You must go see a lawyer because I’ve given you my settlement. I will stop my settlement immediately and you go see a lawyer for a settlement.
…
Husband: No. Be absolutely clear, what you’ve got is what you’re getting. If you want more or different you have to go see a lawyer.
…
Husband: (during a discussion about Wills) But right now, you’re under my provision, if you like. That’s how it is. How many times must I explain this to you? I keep giving you everything you’ve asked for and yet you keep asking for more. Now, you’ve either got to do this and sign it and accept it – and it’s really just the will because everyone else I’m just giving you – there’s nothing to sign. Or if you want that absolute freedom like every woman should have, well, then you have to go see a lawyer because then you know you’re probably going to get a lot more.
…
Husband: [Mr J] drew it up. It’s just a template. It’s very basic. You can get them online for free.c)A conversation between the husband and the wife and Mr J:
[Mr J]: It’s good enough.
[Mr Venter]: I’m recording the conversation and she has now spoken about these millions and she’s not coerced and okay, that’s fine. Does that not still indicate coercion of some sort? I’m really concerned because I do not trust her.
[Mr J]: At the end of the day, it says in the Will that [Ms Venter] was not coerced and [Ms Venter]will be signing that in front of two impartial witnesses at the same time. So if you’re willing to sign that?[Ms Venter]: Yes. I’m ready to sign it.
d)A conversation involving the husband and the wife and Mr C Venter:
Husband: [Ms Venter]– and this actually mentions you, [Mr C Venter]that you will continue to support [Ms Venter]with the same remuneration and under the same conditions that exist at my death until her death.
[Mr C Venter]: Mmm.
Husband: You will never change what I’ve done for your mother.
[Mr C Venter]: Yep.
e)A conversation between the husband and the wife:
Husband: … You will only ever get a handout from me. You will never be independent. You’re not the kind of person to make yourself independent. You’re not that kind of person, otherwise you would be just fine. You’re just not that person.
…
Wife: That was before you divorced me. I want a property settlement. That’s what I want.
Husband: You will never get that ever.
Wife: But I’m entitled to have that.
Husband: Whatever house you believe you want or are entitled to, you’re most welcome to go and fight for.
…
Wife: Okay. What happens if you go broke?
Husband: Don’t worry about that. I won’t ever go broke again.
Wife: What if you sell the house out from under me?
Husband: I will not do that. I’ve told you that and I haven’t done that.
Wife: Yeah.
Husband: I haven’t done that.
Wife: Can you understand that?
Husband: I absolutely can understand. Don’t just try and – that you are being supported by me for the rest of your life.
…
Husband: Everybody around me reaps the benefit of everything that I’ve done. Out of everybody that benefits from me, the only one that is actually worthy of the benefit is [Mr C Venter]and maybe [Ms L], but I’ve yet to establish that properly. But other than that, nobody else.
…
Husband: Absolutely fact. What you’ve got now, I’ve been as accommodating as I can to understand your position.
…
Wife: Yeah. You’ve got the means. No. You’ve got the means. You’ve got the means.
Husband: Whatever I want, I go and get. I don’t ask anybody for more.
Wife: But you don’t have to, because you’re the boss.
Husband: No. Because I created it.
Wife: I helped you.Husband: Yeah. But do you understand the difference.
…
Wife: I didn’t agree to 10 million
Husband: So then, well, just – 20 million? Do you want 20 million? We’ll give you 20 million and then that’s you, and then when you die, whatever is left, if there’s anything left, you just give back to the family. Do you want 20 million?
…
Husband: I don’t - didn’t know about the one-year thing. The very best you can get is a deed of settlement. Now, you get a deed of settlement from me, that’s fuck-all. So I don’t know what you call it, if you get something like that from the family, but no one else in the family has asked for that except you. No one. And [Mr C Venter] doesn’t say how I’m worried if you die that I don’t – that –
…
Husband: And that is for everybody, including me. I pay rent. I don’t own my house. I pay rent because the house belongs to the trust. The only difference is that I can decide to do anything I want. So if I personally decide, you know, to spend $100,000 on something, well, I can. But, of course, I’m not that kind of person. I’ve never been like that in my life. But no one else has the authority any more. It’s a very clean and clear structure now. [Mr C Venter] has a job and his job is to run our businesses. I oversee the entire family. We have overseas people that monitor and watch and run the trust and the foundation.
Mr Shaw QC submits that what the passages in the transcript set out above “show clearly is that the husband, whatever the arrangements are, is, by his own admission and by his children’s own admission, clearly in charge of everything”.
The wife resists providing any further particulars to the particular paragraphs upon which objection is taken because “[p]lainly the respondents know what the case is” and that is sufficient to allege that “the entities, are puppets of the husband, and therefore, what they own are his property”.
The wife does not allege that the entities and trusts that make up the “[D] Group” are shams but rather the husband “controls” them.
Mr Shaw QC eschews any requirement to plead the husband’s beneficial entitlement to any of the assets of the “[D] Group”, submitting it is sufficient to plead that he is the “puppet master controlling or directing” the objecting respondents. Reliance was placed upon the Full Court decision of Harris & Dewell[10] where is was said:
[67]It should be accepted that the principles emerging from the High Court and from the decisions of this Court to which reference has been made permit of a finding that property ostensibly that of a trust can be treated as property of a party for s 79 purposes where evidence establishes that the person or entity in whom the trust deed vests effective control is the “puppet” or “creature” of that party. The metaphor is used to connote a situation where the person or entity with control (the “puppet”) does nothing without the party (the “puppet master”) controlling or directing that person or entity.
[10] (2018) 58 Fam LR 313.
Paragraphs 41 – 46 of the Points of Claim
Mr Shaw QC resists the strike out of these paragraphs, submitting, somewhat remarkably, that the legal and factual basis for the claim that the H Street property is held by Mr B Venter, Mr C Venter and Ms Glynn pursuant to a resulting trust in favour of the husband and wife is “perfectly clear” as pleaded.
Paragraphs 47 to 49 of the Points of Claim
Mr Shaw QC resists the strike out of these paragraphs, submitting, again somewhat remarkably, that the wife’s case in relation to the nuptial settlement “is set out with clarity in the pleadings”.
Conclusion in relation to the strike out application
In relation to the paragraph from Harris & Dewell cited by Mr Shaw QC on behalf of the wife (set out at [48] above) the paragraph following the one relied upon states as follows:
[68]Control is not sufficient of itself. What is required is control over a person or entity who, by reason of the powers contained in the trust deed can obtain, or effect the obtaining of, a beneficial interest in the property of the trust. In our respectful view, it is in that sense, that Finn J speaks of “some lawful right to benefit from the assets of the trust”.
Harris & Dewell[11] involved a claim by the wife that the husband controlled a trust such that the assets of the trust should be treated as the property of the husband. The wife was unsuccessful in that argument notwithstanding the fact that the trustee of the trust was the husband’s 99 year old father whom it was found continued to maintain his legal and beneficial interest in the trust. In upholding the decision of the primary Judge, the Full Court said:
[66]In concluding that the EUT was not property of the husband and that “[t]he [father], albeit he is 99 years of age, continues to maintain his legal and beneficial interest in the [EUT]” (at [103]) her Honour quoted, at [102] what was said by Finn J in Stephens v Stephens:
… I accept that no earlier authority in this court has gone so far as to hold that control alone without some lawful right to benefit from the assets of the trust, is sufficient to permit the assets of the trust to be treated as property of the party who has that control …
[11] Harris & Dewell (n 10).
The Full Court went on to say:
[71]The husband did not have the powers vested in him, or in any entity which he controlled or would do his bidding, that permitted of that result for him. …
In the current case it is not apparent on the pleadings, nor on the other evidence to which I have been taken by the wife, that the “control” exercised by the husband over the objecting respondents and the “[D] Group” (as identified) includes “the ability to treat the compan[ies] and its affairs as his own” as opposed to the “[c]ontrol he might exercise in the interests of the company[ies] and all its shareholders…”,[12] the latter being insufficient to support the wife’s claim that the assets of those entities should be treated as assets of the parties or either of them.[13]
[12] This distinction being made in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 343-4 (“Ascot Investments”).
[13] See also Public Trustee v Smith [2008] NSWSC 397 at [125] cited with approval in Harris & Dewell (2018) 58 Fam LR 313 at 324.
Even parts of the transcript to which reliance was placed by the wife, seem to indicate a recognition that persons other than the husband and wife have an interest (be it legal or equitable) in the property which the wife loosely describes as part of the “[D] Group”, as a result of contributions made by those persons. The statements made by Ms Glynn repeatedly refer to “they” not just the husband, which seems contrary to the submission by the wife that the conversation relied upon her supports her allegation that the husband alone is in control.
In any event, in my view, and contrary to the submissions made on behalf of the wife, it is insufficient to plead “control” alone. Whether her claim relates to companies or trusts she must prove and therefore plead the material facts that establish not only the husband’s control of the companies and trusts within the “[D] Group” (although I note that it is currently unclear that her definition of the “[D] Group” in paragraph 2.5 of her Points of Claim includes any trusts) but that he has the lawful right to benefit from the assets owned by the companies or trusts.
The material facts that require proof in a case in which it is alleged that a party to a marriage controls assets of a third party, noting that a company is separate legal entity, must be pleaded and particularised in such a way that the parties to the dispute and the Court can identify what particular facts have to be proved in order for the claim to succeed.
Where a trust is involved, the Full Court, In the Marriage of Goodwin and Goodwin Alpe,[14] stated, what was described as an “unremarkable proposition” by French CJ in Kennon & Spry,[15] namely:[16]
…[T]he question whether the property of the trust is, in reality, the property of the parties or one of them … is a matter dependent upon the facts and circumstances of each particular case including the terms of the relevant Trust Deed.
[14] (1991) FLC 92-192 at 78,273 (“Goodwin”).
[15] (2008) 238 CLR 366 at 389, [57] (“Kennon & Spry”); see also Harris & Dewell (2018) 58 Fam LR 313.
[16] Goodwin (n 14) at 78,273 quoting Reynolds v Reynolds unreported (Full Court of the Family Court, Simpson, Strauss & Smithers JJ, 27 April 1990) at [31].
Kennon & Spry[17] is a good example of the intricacies involved in establishing that property of a trust should be treated as property of a party to the marriage and that mere control is insufficient. In that case the property of the trust was held to be property of the parties or either of them for the purposes of s 79 of the FLA proceedings. However, the following material facts supported that finding:
(a)The legal title to assets were held by the husband;
(b)The wife had equitable choses in action to consideration as an object of benefaction of the trust and to due administration of the trust;
(c)The husband had the power to distribute the assets of the trust to the wife;
(d)The assets of the trust were acquired by or through the efforts of a party or parties during their marriage;[18] and
(e)The “question of a trust involving a combination of purposes and family and extraneous assets [did] not arise”.[19]
[17] Kennon & Spry (n 15).
[18] Ibid at 411, [137] (Gummow and Hayne JJ).
[19] Kennon & Spry (n 15) at 392, [69].
Even in circumstances where trustees and beneficiaries have chosen to no longer be bound by the obligations of the trust relationship, and no such allegation is pleaded in the current case, it must be remembered that, “[a] trust once validly constituted does not change in nature because the trustee and some beneficiaries subsequently choose no longer to abide by the obligations of the trust relationship”.[20]
[20] Fordyce v Ryan [2017] 2 Qd R 240 at 248, [39].
In relation to a party’s interest in a company, it is important to note that while shares in a company are treated as property for the purposes of s 79 proceedings,[21] ownership does not necessarily equate to an interest in the assets of the company.[22] The exceptions to this Court having to take the property as it finds it i.e. subject to the interests of third parties, arises in circumstances where the company is a sham, and no such allegation is pleaded in the current case,[23] or where control coupled with beneficial rights entitles the Court to treat the company as the alter ego of a party.[24]
[21] In the Marriage of Duff and Duff (1977) FLC 90-217 at 76,134.
[22] Re Webster (1975) 132 CLR 270 at 287.
[23] In fact it was specifically eschewed by Mr Shaw QC on behalf of the wife.
[24] Ascot Investments (n 12) at 354-355.
The Points of Claim as drafted fall well short of identifying the case to be met by the objecting respondents and the material facts upon which such a case is founded. On their face, the Points of Claim are embarrassing in many respects, as submitted on behalf of the objecting respondents.
However, and despite the opposition of the objecting respondents, I propose to afford the wife an opportunity to amend her Points of Claim. The wife will have a further 28 days to file amended Points of Claim and I consider it eminently sensible for a draft of her amended Points of Claim to first be provided to the respondents for their consideration. If issues arise in relation to the proposed amended pleading I would expect the parties to act consistently with the overarching purposes of the family law practice and procedure provisions set out in ss 67 and 68 of the new Act and address any issues that arise, with those overarching purposes in mind.
Summary dismissal and removal of a party
The principles that govern an application to summarily dismiss proceedings include the following:[25]
(a)It is a serious matter to deprive a person of access to the courts of law and the power should be “sparingly employed”;
(b)To obtain such relief, the party seeking it must show, on the face of the opponent’s documents, that the opponent has no reasonable prospect of success;
(c)The overriding guiding principle remains “doing what is just”.
[25] Big and Suzi [1998] FLC 92-799; see also General Steel Industries Inc v Commissioner for Railways (N.S.W) (1964) 112 CLR 125; Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541.
It is no longer the case that in order to succeed in an application for summary dismissal the case sought to be dismissed should be doomed to fail. The relevant test is that stated in the FLA and/or the new Act and the Rules i.e. the case sought to be dismissed should have no reasonable prospects of success.[26]
[26] See s 45A of the FLA, s 46 of the new Act and r 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
As I propose to afford the wife an opportunity to amend her Points of Claim, it is premature to consider the summary dismissal applications and removal of the 8th respondent as a party and accordingly those applications will be adjourned. I do note however, that as it stands there are no final orders sought against the 8th respondent and if the “[D] Group” as identified in paragraph 2.5 of the Points of Claim is ultimately the one relied upon by the wife, the 8th respondent is not even part of the “[D]Group”.
MISCELLANEOUS
Although the 4th and 6th respondents have to date taken no part in the proceedings I consider it appropriate for them to be served with any Amended Initiating Application and Points of Claim. Even if they continue to take no part in the proceedings, the Court must be able to identify from the Initiating Application what orders are sought against them and the contentions of fact and law that are relied upon to support any such orders.
RULING ON OBJECTION TO WIFE’S AFFIDAVITS
The wife sought to rely upon two lengthy affidavits to which objection was taken by the second, third, fifth and seventh respondents. The first affidavit is one by the wife filed 13 October 2021 and comprises 168 pages of which 23 comprise the affidavit and the balance are annexures. The second affidavit is one by Ms KK and comprises about 247 pages of transcripts of conversations.
The basis of the objection was that in circumstances where the objecting respondents accept for the purposes of their application that the Court should take the wife’s claim as pleaded at its highest i.e. that her assertions are provable, the Court need not be troubled by facts that are either alleged or not alleged in the Points of Claim.
Contrary to the submissions made by the wife, the objecting respondents submit that, as specific orders were made requiring the wife to plead her case and in particular the statutory and/or equitable basis relied upon by her for the orders sought and all material facts and particulars of her claim, the Court should not look beyond the pleadings to determine the case against the objecting respondents.
The wife resists the objection on two bases. The first is that as this Court is not a court of pleadings the wife’s case is not solely or wholly contained in the Points of Claim and regard must be had to the substantive affidavit. Secondly, the wife argues that the application does not seek simply to strike out parts of the Points of Claim which may lead to the applicant being given leave to amend, but additionally the objecting respondents seek to summarily dismiss aspects of the claim against them and in such circumstances it is submitted by the wife that regard must also be had to the two affidavits to which objection is taken, in order to fend off an argument that the wife’s claims are “doomed to fail”. The wife further argues that the affidavit evidence is relevant to the eighth respondent’s application to be removed as a party.
I reserved my decision on the objections until I had the opportunity to hear the broader arguments on the summary dismissal part of the application and the application to remove the eighth respondent as a party.
Although it is apparent that I have had regard to the affidavits to which objection is taken and therefore will admit them for the purpose of this hearing, generally speaking, where pleadings are ordered, all relevant contentions of law and fact should be identified within the pleadings and regard should not be had to any “suite of other documents” when determining an application to strike out a pleading or part thereof.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 29 April 2022
SCHEDULE OF PARTIES
BRC 10651 of 2021 Respondents
Fourth Respondent:
MS GLYNN
Fifth Respondent:
D GROUP HOLDINGS FAMILY PTY LTD ATF THE D GROUP HOLDINGS DISCRETIONARY TRUST
Sixth Respondent:
T PTY LTD ATF T DISCRETIONARY TRUST
Seventh Respondent:
R PTY LTD
Eighth Respondent:
G SOLUTIONS PTY LTD
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