X Company and Mathers and Ors

[2013] FamCA 350

FAMILY COURT OF AUSTRALIA

X COMPANY & MATHERS AND ORS [2013] FamCA 350

FAMILY LAW – PRACTICE AND PROCEDURE – The applicant company and the third respondent company granted leave to publish with respect to the interest of each other in property that the rights of the other are the subject of Court proceedings.

Family Law Act 1975 (Cth), s 121(9)(g)

APPLICANT: X Company

1^ST RESPONDENT: Mr Mathers

2^ND RESPONDENT: Ms Graham

3^RD RESPONDENT: C Pty Ltd

FILE NUMBER: SYC 2405 of 2011

DATE DELIVERED: 20 May 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Fowler J

HEARING DATE: 8 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Newlinds SC

SOLICITOR FOR THE APPLICANT: Karras Partners, Lawyers

1^ST RESPONDENT: Excused from attendance

SOLICITOR FOR THE 1^ST RESPONDENT: Capon & Hubert

COUNSEL FOR THE 2^ND RESPONDENT: Mr Simpson SC

SOLICITOR FOR THE 2^ND RESPONDENT: Pigdon Norgate

COUNSEL FOR THE 3^RD RESPONDENT: Mr Brereton SC with
Mr Roche

SOLICITOR FOR THE 3^RD RESPONDENT: Barkus Doolan Kelly

Orders

1. Pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth) each of the applicant company and the third respondent company are granted leave to publish with respect to the interest of each other in the Property T lands that the rights of the other are the subject of Court proceedings in which those rights are sought to be set aside.

IT IS NOTED that publication of this judgment by this Court under the pseudonym
X Company & Mathers and Ors has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2405 of 2011

X Company

Applicant

And

Mr Mathers

1^st Respondent

And

Ms Graham

2^nd Respondent

And

C Pty Ltd

3^rd Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court are interim proceedings brought by the applicant, X Company, against the third respondent, C Pty Ltd.

2. The primary proceedings are ones in which the transfer of a certain interest in land (“the Property T lands”) by the second respondent (“the wife”) to C Pty Ltd is sought to be set aside on the basis that it was made contrary to the rights of X Company under agreements made in relation to the interest.

3. In the proximate proceedings, the orders sought by X Company as set out in its Amended Application in a Case filed on 3 May 2013 were amended on hearing and are now sought in the following terms:

1.        [Order no longer sought]

2.That the third respondent, by its officers, employees, agents, contractors and servants, be forthwith restrained from advising, stating or in any manner whatsoever representing to any statutory authority, corporation or other entity or person, that the [sic] of the properties known as the [Property T] lands (as specified in the Schedule below) other than if a [sic] accompanied by a statement that the alleged interest of the third respondent in the said lands is in dispute and that there are presently proceedings before a Court in which that issue is to be determined.

3.In the alternative to Order 2, and in the event that such Order is refused by this Honourable Court, an Order pursuant to Section 121(9)(g) of the Act permitting the applicant to publish accounts of these proceedings, save and except any account that identifies either the first or the second respondent and to the extent that prior undertakings given in these proceedings are inconsistent with such Order, the applicant is forthwith released therefrom.

SCHEDULE

·Certificates of Title Folios Identifier …;

·Certificates of Title Auto Consolidated Folios …; (“the [Property T] lands”).

1. The Court declines to make the injunctive order sought against

   
   

   C Pty Ltd restraining it from representing that it has any interest in the Property T lands other than if accompanied by an assertion that its interest is the subject of Court proceedings.

2. The Court will, however, make a permissive order that each of the parties be allowed to publish that this is so, in terms of the Order set out above.

3. X Company and C Pty Ltd are locked in a commercial dispute with respect to ownership of an interest in the Property T lands. They are also in conflict as to the use of such land – that is to say, whether for residential or other purposes.

4. C Pty Ltd has gained a shareholding interest in X Company, albeit a small one. C Pty Ltd has also made public statements that it holds an interest in the Property T lands without identifying that the holding of that interest is the subject of dispute.

1. X Company asserts that in the pursuit of its legitimate commercial aims it is prohibited from publishing public statements as to the existence of the dispute by reasons of the operation of section 121 of the Family Law Act 1975 (Cth) (“the Act”).

2. The primary dispute relates to the transfer to C Pty Ltd of an interest in the Property T lands by the wife following the making of an order that that interest be transferred to her by the husband.

3. X Company asserts that it had a prior subsisting interest of which both the husband and the wife were aware pursuant to what is described as a joint venture agreement. It is asserted by X Company that any transfer of the interest by the wife had to be subject to the rights of X Company under that agreement. That dispute is listed for hearing later this year.

4. In the meantime, there have been extra curial moves by C Pty Ltd to gain a shareholding in X Company. It has successfully procured it seems about

   
   

   1.5 per centum of the issued share capital and recently sought to acquire more shares.

5. It is asserted by X Company that the dispute is also being fought out in the

   
   

   Fourth Estate with statements being made by C Pty Ltd to the effect that it holds a shareholding in Property T and has a strategic interest in the land, and that no decisions about the use of the land can be made without its consent.

6. The Court is also told that there was an unsuccessful application by

   
   

   C Pty Ltd in the Land and Environment Court of New South Wales in which it had opposed X Company’s plans for the development of the land.

7. It seems that those who wield legislative and perhaps executive power are also being approached and called in aid of the parties to this commercial dispute.

8. After judgment was reserved in the present proceedings, the Court was notified by way of a letter sent on behalf of X Company and C Pty Ltd jointly that the dispute between the parties had continued following the conclusion of the hearing. The Court has read the correspondence attached to that letter but does not at this stage wish to make any further comment on that material.

9. It is asserted by C Pty Ltd that it only seeks to exercise its rights as a citizen to tell the truth. In the commercial reality of this case X Company has no objection to that, providing that what C Pty Ltd says constitutes a semblance of the whole truth and does not leave listeners or readers with the impression that there is no dispute surrounding C Pty Ltd’s interests in the property. In any event, X Company asserts that it does not mind the truth being told, so long as the truth approaches more fairly “the whole truth”.

10. In response, C Pty Ltd asserts that if they do make false or misleading statements then the remedy for X Company lies elsewhere in other proceedings and in a different jurisdiction.

11. Those who choose to use the facilities (quite properly) of this Court to have their rights declared and enforced must understand that it is not the intention of this Court to permit (if not required) multiple litigation about the same subject matter. The Court has a practice of seeking to preserve the rights of those before it pending the determination of the cause or causes of action.

12. It is in the Court’s view proper to limit the litigation having to be borne by the parties to the proceedings, even the corporate and commercial ones.

13. Those who come to this Court are constrained by s 121 of the Act from publishing accounts of any proceedings under the Act. Those provisions have a good basis for existence in the protection of people who bring the problems of their lives and their relationships (including those with their children) to this Court for determination. It is a worthwhile provision and a departure from its tenents should not be undertaken lightly.

14. In this case, I propose to make a limited departure from s 121 in terms of the Order set out above. That order will permit both X Company and C Pty Ltd to state the whole truth and will provide a measure of balance in the dispute until their rights can be determined.

15. Whether they do so or not might be the subject of further consideration in the final hearing before this Court or in proceedings in other jurisdictions, however, for the time being some balance of fairness is in the Court’s view restored by the Order set out above.

16. Given the nature of this case, although each of X Company and C Pty Ltd will be permitted to publish details of land to which they as parties have an association, it is no more than a necessary permission to redress the balance of fairness and it is unlikely to cause harm to the other parties to the proceedings who have not addressed the Court on this subject.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 20 May 2013.

Associate: 

Date:  20 May 2013