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

1. 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

1. 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.

2. 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.

3. 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

1. 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.

2. 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 trust at Baker Love Lawyers in accordance with Family Law”.

3. There was an agreement between the husband and Ms M that she transfer her interest in the property to him for a nominal amount of $1.00 in 1995.

Issues

1. Mr Bray, the wife’s solicitor, asks the Court not to give leave for the company to intervene in the proceedings. It is agreed that the company has commenced proceedings against the husband in the District Court of New South Wales for recovery of the debt claimed, but those proceedings have not been finalised. Mr Bray argues that the District Court is the proper venue for the company’s claim, not these proceedings.

Principles to be applied

1. Any person may apply to intervene in proceedings other than for principal relief (Family Law Act, s.92). The purpose of intervention is to allow a third party who may be affected personally by the proceedings to intervene to protect their own interests (Rogers and Rogers; Fernandez and Borowicz (1988) FLC 91-963). There appears to be no reason why a company, in an appropriate case, should not be permitted to do so.

2. Section 18 of the Federal Magistrates Act 1999 gives the Federal Magistrates Court jurisdiction in respect of matters not otherwise within its jurisdiction that are associated with matters in which jurisdiction of the Federal Magistrates Court is invoked. It is necessary to decide whether the claim brought by N Investments has a sufficient association with the present matter in order to attract the jurisdiction given by s. 18.

3. Again, there is authority that the Family Court has, in a proper case, an accrued jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part (Warby (2001-2002) 28 Fam LR 443). There is also authority from the Full Court of the Family Court that accrued jurisdiction not only exists in the Family Court, but there is no reason for distinguishing the Family Court from any other federal court, which would clearly include the Federal Magistrates Court (C and C and C: Accrued Jurisdiction (2001) FLC 93-076).

Conclusions

1. The company seeking to intervene has the status of an unsecured creditor of the husband. The company has no interest in the real estate, which has, in any event, been sold. The contract between the husband and the company was entered into prior to the marriage, and the wife was never a part of that transaction.

2. I am not satisfied that the claim by N Investments Pty Ltd has a sufficient connection with the present property proceedings to attract the jurisdiction given to the Court by s.18 of the Federal Magistrates Act.

   
   

   I am not satisfied, either, that the claim by N Investments against the husband is part of a single justiciable controversy which would invoke the accrued jurisdiction of this Court. It is a claim of an unsecured debt owing by the husband before the marriage. It would appear to me that the proceedings commenced in the District Court against, presumably, the husband would be the appropriate means of pursuing this claim.

3. Even if there were some connection sufficient to attract the jurisdiction of this Court, the application and the supporting documents are defective. Mr K W stated in court that he had received legal advice before commencing this application, but he declined to reveal the identity of his legal adviser. He did not explain why there was a need for this person to remain anonymous.

4. The Application does not comply with the Federal Magistrates Court Rules. Rule 9.04 provides that, except as provided by an Act or regulations, or by leave of the Court, a corporation may not start or carry on proceedings otherwise than by a lawyer. There is no reason why N Investments Pty Ltd should be given leave to be a self-represented litigant in these proceedings.

5. Rule 11.03 requires an application to be included as a party to a proceeding to be supported by an affidavit stating a variety of matters. Subrule 11.03(3) requires the proposed intervener to serve a copy of the application and affidavit on each party in the proceeding. As I mentioned in paragraph 3 above, there is no proof of service on the husband

6. The affidavit in support of the application is defective. The affidavit purports to be sworn by N Investments Pty Ltd and bears the common seal of the company, although it is trite law that only a natural person can swear an affidavit. The text of the affidavit reads as if it were a joint affidavit from Mr and Mrs W rather than the company.

7. The application is misconceived. There is no basis to grant leave to the company to intervene in this matter.

8. The application is struck out.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  6 May 2003