Warin & Warin - [2021] FedCFamC1F 269

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Warin & Warin [2021] FedCFamC1F 269

File number(s): MLC7368/2020

Judgment of: WILSON J

Date of judgment: 10 December 2021

Catchwords:
FAMILY LAW – STANDING – standing of the first respondent who is an undischarged bankrupt.

FAMILY LAW – JOINDER – joinder application refused.
FAMILY LAW – DISCLOSURE – respondent must provide disclosure.

Legislation:
Bankruptcy Act 1996 (Cth) ss 30, 58(1), 60 and 116

Family Law Act 1975 (Cth) s 79(12)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Cases cited:
Bacall & Zagar [2020] FamCA 350

Cummings v Claremont Petroleum NL (1996) 185 CLR 124

Glover v Webster [2021] FedCFamC1A 69

In the Marriage of O’Neill (1988) 23 FamLR 326

Division: Division 1 First Instance

Number of paragraphs: 34

Date of last submissions: 3 December 2021

Place: Melbourne

Solicitor for the Applicant: Vadarlis & Associates

Solicitor for the First Respondent: Sebastian Rubera & Associates

Solicitor for the Second and Third Respondents: Maddocks Lawyers
ORDERS

MLC 7368 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS WARIN

Applicant

AND:
MR WARIN

First Respondent

MR STANTON & MR BASFIELD IN THEIR CAPACITY AS TRUSTEES IN BANKRUPTCY OF THE BANKRUPT ESTATE OF THE RESPONDENT HUSBAND

Second Respondent

MS INSTON

Third Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

10 DEMBER 2021

THE COURT ORDERS THAT:
1.The further hearing of this application is adjourned to 9:30am on 1 February 2022.
2.The determination of the question of the first respondents standing is stood over to 1 February 2022.
3.The application to join Mr N and Ms P is dismissed.
4.On or before 4:00pm on 24 December 2021 the first respondent must provide disclosure in response to the requests made by the applicant’s solicitor’s letter to the first respondent’s solicitors dated 14 May 2021, 20 August 2021, 13 September 2021, 20 October 2021, 4 November 2021, 12 November 2021 and 19 November 2021.
5.If the applicant or the trustees in bankruptcy of the first respondent seek to agitate a costs application, any material in support of that application must be filed and served by 4:00pm on 14 January 2022.
6.Any material to be filed in opposition by the third respondent must be filed and served by 4:00pm on 28 January 2022.

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…

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 Warin & Warin

Details

AGLC: Warin & Warin [2021] FedCFamC1F 269
Case: [2021] FedCFamC1F 269
Decision Date

CaseChat Overview and Summary

Warin & Warin was a case heard in the Supreme Court of New South Wales. The dispute involved the applicant seeking to set aside the bankruptcy of the first respondent, as well as seeking declarations regarding the first respondent's equitable interests in several companies and a property. The second respondents, appointed as trustees of the first respondent's bankrupt estate, and the third respondent, the first respondent's partner, were also parties to the case. The applicant contended that the first respondent had falsely declared debts to various creditors, including ANZ bank, in order to present his own petition in bankruptcy. The applicant further claimed that the first respondent divested himself of over $118,000 two days prior to presenting his petition in bankruptcy and was operating or deriving benefits from several companies, including one owned and controlled by his son from a previous relationship.

The primary legal issues before the court were whether the first respondent had standing to be separately represented in the litigation, whether the application to join additional parties should be granted, and whether sufficient disclosure regarding the deed had been provided. The court determined that, due to the lack of disclosure by the first respondent, it was not possible to ascertain whether he had standing to be separately represented or whether the second respondents adequately represented his interests. Consequently, the application to join Mr N and Ms P was dismissed. The court also noted the necessity for further disclosure concerning the deed to adequately address the applicant's claims.

The court concluded that the first respondent's status as an undischarged bankrupt, coupled with his lack of standing to participate in the proceedings, meant that he could not be separately represented in the litigation. The trustees in bankruptcy, the second respondents, were deemed to adequately represent the first respondent's interests. Additionally, the court emphasized the importance of providing adequate disclosure concerning the deed to properly assess the applicant's claims. In light of these findings, the court dismissed the application to join additional parties and mandated further disclosure regarding the deed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

As these reasons explain, in my view – (a)by reason of the paucity of disclosure by the first respondent, it is presently not possible to say whether he has or does not have standing to be separately represented in this litigation or whether the second respondents as his trustees in bankruptcy represent his interests; (b)the application to join Mr N and Ms P is dismissed; and (c)disclosure in respect of the deed must be provided.RELEVANT BACKGROUND In view of the complex claims and cross claims advanced in this litigation on 6 July 2021, I ordered the applicant to file and serve a statement of claim, which she did. Relevantly paraphrased, the applicant made the following contentions in her statement of claim –(a)she commenced living with the first respondent in 2015, they married in 2008 and separated in 2018;(b)the second respondents were appointed trustees of the bankrupt estate of the first respondent on 17 July 2020;(c)the third respondent is the first respondent’s partner;(d)when presenting his own petition in bankruptcy, the first respondent falsely stated that he owed debts to a collection of alleged creditors including ANZ bank, M Pty Ltd, O Group, J Solicitors and his lawyers;(e)the amount allegedly owed to ANZ bank was wrong and no demand for payment of any debts had been made by M Pty Ltd, O Group, J Solicitors and his lawyers;(f)two days prior to his presenting his own petition in bankruptcy, the first respondent divested himself of over $118,000 in the manner set out in paragraph 21 of the statement of claim;(g)the first respondent is operating, or deriving benefits from, several companies one of which is owned and controlled by his son from a previous relationship;(h)the first respondent spends $10,000 monthly on acquisitions through credit cards as well as $72,660 per annum on private school fees for another son;(i)the applicant seeks orders setting aside the first respondent’s bankruptcy; (j)the third respondent purchased B Street, D Town for more than $2,380,000 in circumstances where she lacked the financial capacity to source and supply such an amount from her own capital; (k)funds provided for the acquisition of B Street, D Town were joint funds owned by the applicant and the first respondent; and (l)the third respondent holds her interest in B Street, D Town on trust for herself, the applicant and the first respondent. The applicant sought orders setting aside the first respondent’s bankruptcy pursuant to s 30 of the Bankruptcy Act. She sought declaratory relief to the effect that the first respondent holds an equitable interest in four named companies and the applicant sought a declaration concerning the first respondent’s registered proprietorship of B Street, D Town especially the applicant’s entitlement to an equitable interest in that property. In his defence filed on 6 September 2021 the first respondent admitted to his status as an undischarged bankrupt and that – (a)by operation of s 60 of the Bankruptcy Act he is prohibited from initiating or continuing a proceeding in his name; (b)by operation of s 79(12) of the Family Law Act, he is not entitled to participate in this proceeding; and (c)he has no standing in this proceeding.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	MLC7368/2020
Judgment of:	WILSON J
Date of judgment:	10 December 2021
Catchwords:	FAMILY LAW – STANDING – standing of the first respondent who is an undischarged bankrupt. FAMILY LAW – JOINDER – joinder application refused. FAMILY LAW – DISCLOSURE – respondent must provide disclosure.
Legislation:	Bankruptcy Act 1996 (Cth) ss 30, 58(1), 60 and 116 Family Law Act 1975 (Cth) s 79(12) Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited:	Bacall & Zagar [2020] FamCA 350 Cummings v Claremont Petroleum NL (1996) 185 CLR 124 Glover v Webster [2021] FedCFamC1A 69 In the Marriage of O’Neill (1988) 23 FamLR 326
Division:	Division 1 First Instance
Number of paragraphs:	34
Date of last submissions:	3 December 2021
Place:	Melbourne
Solicitor for the Applicant:	Vadarlis & Associates
Solicitor for the First Respondent:	Sebastian Rubera & Associates
Solicitor for the Second and Third Respondents:	Maddocks Lawyers

MLC 7368 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS WARIN Applicant
AND:	MR WARIN First Respondent MR STANTON & MR BASFIELD IN THEIR CAPACITY AS TRUSTEES IN BANKRUPTCY OF THE BANKRUPT ESTATE OF THE RESPONDENT HUSBAND Second Respondent MS INSTON Third Respondent

ORDER MADE BY:	WILSON J
DATE OF ORDER:	10 DEMBER 2021