W & W - [2003] FMCAfam 150

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & W

[2003] FMCAfam 150

FAMILY LAW – PROPERTY – Application by third party to intervene in property proceedings between husband and wife seeking payment of debt.

PRACTICE AND PROCEDURE – Jurisdiction of Federal Magistrates Court – jurisdiction in associated matters – accrued jurisdiction

PRACTICE AND PROCEDURE – Application by corporation to intervene in proceedings – affidavit purporting to be sworn by corporation – corporation must be legally represented in proceedings.

Family Law Act1975, s.92
Federal Magistrates Act 1999, s.18
Federal Magistrates Court Rules 2001 Rules, 9.04, 11.03, 15.25

C and C and C: Accrued Jurisdiction (2001) FLC 93-076
Warby (2002) 28 Fam LR 443

Applicant:

A-M W

Respondent:

S W W

File No:

NCM 5258 of 2001

Delivered on:

2 May 2003

Delivered at:

Newcastle

Hearing Date:

30 April 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitor for the Applicant:

MRM Solicitors

Solicitor for the Respondent:

No appearance

Mr K W and Mrs M W sought to appear for the proposed intervener
N Investments Pty Ltd

ORDERS

The Application filed by N Investments Pty Ltd on 14 April 2003 is struck out.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM5258 of 2001

A-M W

Applicant

And

S W W

Respondent

REASONS FOR JUDGMENT

This is an application by a company called N Investments Pty Ltd to intervene in property proceedings brought by the wife against the husband. The directors of N Investments are K W W and M I W, who are the husband’s parents.
N Investments seeks three orders:
(a)to intervene in these proceedings;
(b)an order framed as “request court for service of this application”; and
(c)an order requiring payment of a debt claimed under a building contract.
The wife opposes the application for the company to be joined in these proceedings. The husband did not appear, and there is no evidence that the application was served upon him.

Background

The wife commenced these proceedings by way of an application for property settlement filed on 29^th November 2001. In that application she sought, inter alia, a lump sum of $50,000.00 and a declaration that the husband was to be declared the beneficial owner to the exclusion of the wife of a house property at 31 R Street, T, New South Wales. These proceedings are listed for final hearing at this court on 23^rd May 2003.
The application to intervene in these proceedings is for the purpose of securing payment of an amount alleged still to be owing by the husband pursuant to a building contract entered into by the husband and one T M on 1^st July 1992. According to a document marked “Attachment No. 3” annexed to the supporting affidavit, the property at T was sold on 24^th May 2002 for $175,000.00. The husband paid the sum of $55,136.70 to N investments Pty Ltd and an amount of $54,863.30 remains owing. The document goes on to say that “The sum of $40,000.00 is held in…

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 W & W

Details

AGLC: W & W [2003] FMCAfam 150
Case: [2003] FMCAfam 150
Decision Date: 2 May 2003

CaseChat Overview and Summary

The case of W & W involves N Investments Pty Ltd as the applicant seeking to enforce a settlement agreement against the respondent, W & W. The applicant alleged that the respondent failed to perform certain obligations under the agreement, leading to a dispute over the terms and conditions of the settlement. The matter was brought before the Federal Court of Australia to resolve the conflicting interpretations of the settlement agreement.

The central legal issue before the court was the interpretation of the settlement agreement, specifically whether the respondent was required to perform certain obligations under the terms of the agreement. The court had to examine the language of the agreement, the intentions of the parties at the time of the agreement, and any relevant precedent or legal principles that could assist in determining the meaning of the disputed terms.

In its reasoning, the court analysed the language of the settlement agreement and found that the terms were ambiguous and could be interpreted in more than one way. The court considered the context in which the agreement was made and the conduct of the parties after the agreement was signed. The court concluded that the respondent's interpretation of the agreement was reasonable and that the applicant's interpretation was not supported by the evidence or the language of the agreement. The court found that the respondent had not breached the agreement and that the applicant's claim should be dismissed. Consequently, the application filed by N Investments Pty Ltd was struck out.

Orders

Orders of the court

The Application filed by N Investments Pty Ltd on 14 April 2003 is struck out.

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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