Warin & Warin (No 9) - [2023] FedCFamC1F 538

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Warin & Warin (No 9) [2023] FedCFamC1F 538

File number MLC 7368 of 2020

Judgment of WILSON J

Date of judgment 30 June 2023

Catchwords FAMILY LAW – JOINDER APPLICATION – allegations that four transactions each of $50,000, made to the proposed party from the husband, form part of the matrimonial property pool – transactions were not adequately explained by the proposed party – held, the proposed party is joined as a respondent to this proceeding.

Cases cited
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Toma & Doyle (No 2) [2023] FedCFamC1F 477

John Alexander’s Clubs Pty Ltd v White City Tennis Club (2010) 241 CLR 1

Division Division 1 First Instance

Number of paragraphs 39

Date of last submission 30 June 2023

Date of hearing 26 & 30 June 2023

Place Melbourne

Solicitor for the applicant Mr E. Vadarlis of Vadarlis & Associates

Solicitor for the first respondents Mr G. Johns of Fair Family Law

Solicitor for the third respondents Mr S. Rubera of Sebastian Rubera & Associates Pty Ltd

Solicitor for the fourth, fifth and sixth respondents Mr B. McNab of Diamonds Solicitors

Counsel for the prospective respondent Mr C. Horsfall
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 (and others named in the Schedule)

AND
MS E
Prospective Respondent

order made by

WILSON J

DATE OF ORDER

30 JUNE 2023

THE COURT ORDERS THAT –
1.Leave is granted to the wife to join Ms E as a respondent to this proceeding in the form of the wife’s second further amended initiating application.
2.The wife must file and serve on all parties by noon on 7 July 2023 the second further initiating application.
3.By noon on 7 July 2023, the wife must serve on Ms E the second further amended initiating application, together with a copy of all other documents filed to date, unless the solicitors for Ms E inform the wife’s solicitors that service of such additional documentary material is not required.
4.By noon on 7 July 2023, the wife must file and serve her further amended statement of claim.
5.All respondents must file and serve their responses to the wife’s second further amended initiating application and her further amended statement of claim by noon on 7 August 2023.
6.Ms E must give disclosure of all documents referable to the sum of $200,000 by 4:00pm on 28 July 2023.
7.I adjourn the further hearing of this proceeding for mention at 10:00am on 1 September 2023.
8.Costs of this application are reserved.

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…

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 (No 9)

Details

AGLC: Warin & Warin (No 9) [2023] FedCFamC1F 538
Case: [2023] FedCFamC1F 538
Decision Date

CaseChat Overview and Summary

This case involved an application by Ms Warin to join Ms E as a respondent to the proceeding. The application was made on the basis that four payments, each of $50,000, made by the husband to Ms E in January 2019 form part of the matrimonial property pool. The primary legal issue was whether it was necessary to join Ms E to finally determine all issues in the litigation. The court considered the evidence of Mr Vadarlis, who deposed that the wife had no knowledge of the four payments totalling $200,000 and that the wife sought a declaration that the sum constitutes and forms part of the matrimonial pool of assets. The court also considered Ms E's affidavit, in which she admitted receiving each of the four payments and paying them to MM Pty Ltd, formerly RR Pty Ltd, and that she no longer holds any part of those funds. The court was not satisfied with the explanations provided by Ms E about the circumstances of her receipt of the sum of $200,000 and her alleged disposal of that sum. The court held that it was necessary to join Ms E in order to finally determine all issues in the litigation. Leave was granted to the wife to join Ms E as a respondent to the proceeding in the form of the wife’s second further amended initiating application. The wife must file and serve on all parties by noon on 7 July 2023 the second further initiating application. By noon on 7 July 2023, the wife must serve on Ms E the second further amended initiating application, together with a copy of all other documents filed to date, unless the solicitors for Ms E inform the wife’s solicitors that service of such additional documentary material is not required. By noon on 7 July 2023, the wife must file and serve her further amended statement of claim. All respondents must file and serve their responses to the wife’s second further amended initiating application and her further amended statement of claim by noon on 7 August 2023. Ms E must give disclosure of all documents referable to the sum of $200,000 by 4:00pm on 28 July 2023. The further hearing of this proceeding was adjourned for mention at 10:00am on 1 September 2023. Costs of this application were reserved.

Orders