Xin and Qinlang & Ors

[2020] FamCA 374

FAMILY COURT OF AUSTRALIA

XIN & QINLANG AND ORS [2020] FamCA 374

FAMILY LAW – PRACTICE AND PROCEDURE – joinder of third party respondents – undertaking as to damages – granting of a stay to enable third party respondents to pursue interest in property – disposition of property – pursuit of claim by third party respondents falls within accrued jurisdiction of Court.

Family Law Act 1975 (Cth)

APPLICANT: Mr Xin

1st RESPONDENT: Ms Qinlang

2nd RESPONDENT: Mr B Xin

3rd RESPONDENT: Ms Wang

FILE NUMBER: CAC 1782 of 2018

DATE DELIVERED: 12 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 12 May 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Hijazi Curran Cameron Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Mr J Haddock

SOLICITOR FOR THE 1ST RESPONDENT: Dobinson Davey Clifford Simpson

SOLICITOR FOR THE 2ND & 3RD RESPONDENTS: Farrar Gesini Dunn

Orders

1. Notwithstanding any noncompliance in respect of rules of court, and without opposition, Mr C and Mr B, the proposed Third Party Respondent 1 and Third Party Respondent 2 are joined to the proceedings.

2. On the filing of an undertaking as to damages by the Second and Third Respondents, being an undertaking as to damages accrued by the Applicant or Respondent by virtue of the granting of a stay in this matter today, that a stay is granted upon the operation of Order 5(a) of the Orders made by Judge Hughes on 24 February 2020 to continue until the further hearing of this matter on 19 May 2020. 

3. The proceedings are otherwise adjourned to 2pm on 19 May 2020 for further hearing.

4. I reserve each of the parties’ costs in the proceedings. 

5. The Second and Third Respondents are to file an Application in a Case setting out the orders they seek by midday on 14 May 2020.  The Second and Third Respondents are to file and serve by 4 pm on Monday 18 May 2020 a document setting out the factual and legal basis upon which they assert an interest in the Page property. 

6. By 4 pm on 14 May 2020 the Husband is to file and serve the affidavit material he relies upon in relation to the ongoing stay in respect of Order 5(a) and if the stay is granted as to his position on the disposition of property, noting that the Wife will pursue the sale of the Suburb E property.

7. The Wife is to file and serve the affidavit material she intends to rely upon by 4 pm on Friday 15 May 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1782 of 2018

Mr Xin

Applicant

And

Ms Qinlang

Respondent

And

Mr B Xin

2^nd Respondent

And

Ms Wang

3^rd Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the Second and Third Respondents who have been joined to the proceedings today make an oral application, which was foreshadowed last week when the matter first came before me and an adjournment was obtained in order to deal with the question of the joinder of the Second and Third Respondents.  On that day it was foreshadowed that an application for a stay of the operation of Order 5 of the Orders made by Judge Hughes on 24 February 2020 would be sought today and I foreshadowed to the parties that the matter would be listed for further hearing the following week.  I can indicate that the matter will be listed for further hearing on Wednesday[1] of next week which will be 19 May 2020. 

   [1] When actually listed for

2. The application for a stay is on the basis that the Second and Third Respondents were not parties to the orders made by Judge Hughes, and on the basis that they are now joined and pursue an interest in respect of the property that was specifically the subject of the Orders made by Judge Hughes.  At this stage, given the nature of the proceedings, I am unable to definitively conclude as to the nature of their interest in the proceedings, noting that the underlying evidence may well be the subject of challenge in any event. 

3. However, the interest that they point to in respect of the property may be a constructive trust or a resulting trust, on the basis of the provision of the purchase price of the property, although the property was put into the names of the Husband and Wife. 

4. The Orders that were made by Judge Hughes would cut across the equitable interests that may be held by the Second and Third Respondents.  This will necessarily be a matter for further submissions on the next occasion I suspect.  Those matters would be sufficient to ground the very temporary relief that is being granted today. 

5. The Wife sets forward four objections to the granting of that relief.  The fourth matter is perhaps not strictly an objection, but the identification of a potential significant issue in the proceedings that arises from the firm representing the Second and Third Respondents having previously represented the Husband in the proceedings.  This may or may not be a matter simply for the Husband, or it may or may not be a matter for the Court’s supervision of the conduct of legal practitioners.  That will be a matter that will be necessary to resolve on a later occasion if it is necessary to resolve the matter. 

6. The complaint was made on behalf of the Wife that the material does not disclose an interest in respect of the Second and Third Respondents in relation to the relevant property.  As indicated already, there are matters that are raised which may give rise to a constructive trust or a resulting trust.  Whether they do give rise to that will be a matter for further submissions in due course and a matter, no doubt, for further evidence in due course. 

7. The second complaint that arises is one as to forum shopping.  I note that the Orders made by Judge Hughes, prior to the transfer of the matter to this Court and the joinder of the Second and Third Respondents, dealt with an interim relief in the sale of the property, the subject of the stay application today, following contested litigation.  It is contested litigation where I am informed by the solicitor for the Second and Third Respondents that she was present for that litigation, as was at least one of her clients.  She says that she sought to be heard in those proceedings but was refused to be heard in those proceedings.  Again, that is a matter to be resolved on another day. 

8. The most important of the submissions to be grappled with in opposition relates to the jurisdictional basis for the making of the Orders.  It is suggested that the relief as sought, being the temporary stay of the Orders made by Judge Hughes and, perhaps by extension, the application for an ongoing stay or substitution in respect of those orders should properly be a matter for appeal.  I am not yet persuaded that that is the case.  I am not persuaded that is the case in part because the Second and Third Respondents were not parties to that original litigation.  That gives a different shape to the proceedings. 

9. The second is that their pursuit of a claim of an equitable interest in an item of property which, by virtue of the Orders made by Judge Hughes, it may be suggested, could be considered to be part of the pool of property held by the Husband and Wife is a pursuit of a matter which impacts upon the ascertainment of the legal and equitable interests held by the Husband and Wife in property which is a necessary precursor to determining whether or not orders should be made for the distribution of property.

10. Accordingly, the pursuit of the claim by the Second and Third Respondents falls within the jurisdiction of the Court as part of the accrued jurisdiction of the Court in the determination of the interest between the parties to determine whether or not there should be a property distribution. 

11. I note the argument made that this is in fact a matter that should be dealt with in the appellate jurisdiction of the Court.  However, I note also that it is an application to stay what is an interlocutory order.  The nature of that order is as an interlocutory order subject to variation.  That subjectness of that order to variation is not necessarily a matter for the appellate consideration of the Court but as an aspect of the Court dealing with matters on an interlocutory basis. 

12. Accordingly, I do not accept the submission that the application is made without jurisdiction. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 May 2020.

Associate: 

Date:  15 May 2020