Vincent and Vincent and Anor - [2016] FCCA 227

FEDERAL CIRCUIT COURT OF AUSTRALIA

VINCENT & VINCENT & ANOR

[2016] FCCA 227

Catchwords:
TRUSTS AND TRUSTEES – PRACTICE AND PROCEDURE – Application by beneficiary of a Trust in Bankruptcy to bring proceedings in its own name – beneficiary seeking to intervene on behalf of Trustee in family property proceedings pursuant to section 79 of the Family Law Act 1975 (Cth) – Where cause of action is generally available only to the Trustee – Whether leave is granted – whether exceptional circumstances exist.

Legislation:
Bankruptcy Act 1966 (Cth), ss.58(3), 178
Family Law Act 1975 (Cth), ss.75(2)(ha), 79
Corporations Act 2001 (Cth), s.1321
Civil Procedure Act 2010 (Vic)

Chahwanv Euphoric Pty Ltdtrading as Clay & Michael & Anor [2009] NSWSC 805
Randa Lee Investments Pty Ltd & Anor v Ballan & Ors [2015] VSC 178 Carpenter v Pioneer Park Pty Ltd [2008] NSWSC 551
Cadima Express v DCT [1999] NSWSC 1143

Applicant:

MS VINCENT

First Respondent:

MR VINCENT

Intervenor:

MS EATON

File Number:

MLC 8051 of 2014

Judgment of:

Judge Riethmuller

Hearing date:

14 July 2015

Date of Last Submission:

17 August 2015

Delivered at:

Melbourne

Delivered on:

12 February 2016

REPRESENTATION

Counsel for the Applicant:

Ms Campbell

Solicitors for the Applicant:

Forte Family Lawyers

The Respondent:

No Appearance

The Intervenor:

Appearing in person

ORDERS

The Trustee in Bankruptcy be joined to the proceedings and hereinafter referred to as the Second Respondent.
The Second Respondent file and serve a Notice of Address for Service within 7 days hereof.
The Applicant file and serve a Further Amended Application including the Second Respondent and setting out the actual orders sought with respect to both the First Respondent and the Second Respondent.

IT IS NOTED that publication of this judgment under the pseudonym Vincent & Vincent & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8051 of 2014

MS VINCENT

Applicant

And

MR VINCENT

First Respondent

And

MS EATON

Intervenor

REASONS FOR JUDGMENT

The applicant and respondent in these proceedings are Wife and Husband, having married on (omitted) 2002 and separated on 8 September 2013.
The parties have three children, born 1999, 2002 and 2003. The applicant brought proceedings on 9 September 2014, seeking property settlement orders pursuant to s.79 of the Family Law Act 1975 (Cth). Despite having filed an Amended Application and a Further Amended Application (the latter on 20 November 2014), the Wife has not particularised her claim beyond a:
‘… property settlement as this court deems just and equitable.’
The Wife says that the Husband left the former matrimonial home on 10 December 2013 and has resided separately since then.
The Respondent Husband filed a Response on 28 November 2014, also seeking orders in the most general terms: ‘orders which this honour court deems fit (sic)’. At the time he was employed by (employer omitted) as a (occupation omitted) and largely agreed with the facts and circumstances alleged by the Wife in her affidavits.
On…

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.

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Details

Case: [2016] FCCA 227
Decision Date: 12 February 2016

CaseChat Overview and Summary

In the matter of *Vincent and Vincent and Anor*, the applicant sought orders against the first respondent, and the court ordered that the Trustee in Bankruptcy be joined as the second respondent to the proceedings. The court also directed the second respondent to file and serve a notice of address for service within seven days, and the applicant to file and serve a further amended application that included the second respondent and specified the actual orders sought against both respondents.

The central legal issue before the court was the appropriate joinder of the Trustee in Bankruptcy to the existing proceedings and the subsequent procedural steps required to define the relief sought against all parties. This involved determining how the application should be amended to properly reflect the inclusion of the new respondent and to clearly articulate the specific orders the applicant intended to pursue.

The court's reasoning, as evidenced by its orders, focused on ensuring that all necessary parties were formally before the court and that the scope of the dispute was clearly defined. By ordering the joinder of the Trustee and requiring an amended application, the court aimed to facilitate a fair and efficient resolution of the matters in dispute, ensuring that all relevant interests could be considered and addressed. The orders made were procedural in nature, designed to advance the substantive hearing of the application.

Orders

Orders of the court

The Trustee in Bankruptcy be joined to the proceedings and hereinafter referred to as the Second Respondent.

The Second Respondent file and serve a Notice of Address for Service within 7 days hereof.

The Applicant file and serve a Further Amended Application including the Second Respondent and setting out the actual orders sought with respect to both the First Respondent and the Second Respondent.

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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