Zubcic and Zubcic and Anor

[2018] FamCA 880

FAMILY COURT OF AUSTRALIA

ZUBCIC & ZUBCIC AND ANOR [2018] FamCA 880

FAMILY LAW – PROPERTY – REVIEW OF A REGISTRAR DECISION – where final orders have been made – where Supreme Court proceedings are on foot – where the applicant seeks to restrain Trustees from selling the property – where the applicant believes the Trustees are selling the property below market value – where the applicant believes the trustees have breached their fiduciary duty – where the Registrar ordered the matter to be dealt with by the Supreme Court – where the Registrar’s decision is upheld.

Family Law Act 1975 (Cth)

APPLICANT: Mr Zubcic

1^ST RESPONDENT: Ms Zubcic

2^ND RESPONDENT: Mr B Zubcic

FILE NUMBER: SYC 6290 of 2013

DATE DELIVERED: 30 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: Dealt with in chambers

REPRESENTATION

THE APPLICANT: Mr Zubcic

Orders

1. The Application in a Case filed by the husband on 22 October 2018 is dismissed.

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 Zubcic & Zubcic and Anor 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 SYDNEY

FILE NUMBER: SYC 6290  of 2013

Mr Zubcic

Applicant

And

Ms Zubcic

1^st Respondent

And

Mr B Zubcic

2^nd Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 22 October 2018 the husband, Mr Zubcic, sought to file an Application in a Case and obtain an urgent hearing date.  The applicant sought the following orders:

   1.That the decision of Registrar McNamara of 16 October 2018 be over turned [sic].

   2.That the Application in a Case presented to the Court on 15 October 2018 be filed with the Court.

   3.That the Applicant be granted leave to the serve the Application in a Case presented to the Court on 15 October 2018 with short notice on the First and Second Respondent.

2. On 16 October 2018 the Registrar rejected for filing the husband's Application in a Case, on the following two bases:

   1.Justice Rees has made orders finalising all issues in the proceedings save the issue of costs.  Her Honour has already dealt with the issues you seek to raise again in the Application in a Case.

   2.The Trustees have brought proceedings in the Supreme Court of NSW in relation to the sale of the property and any concerns you have regarding their conduct of the sale can be ventilated in those proceedings.

3. Written submissions submitted by the husband stated that the Trustees for the sale of the property B Street, Suburb C, New South Wales filed an application in the Supreme Court of New South Wales which is listed later this year.  The written submissions stated that the Trustees seek orders to cause the husband to remove a caveat which he has lodged on the title to the property.

4. The husband alleges that the Trustees have exchanged a contract for the sale of the property at a price below its market value.  The husband contends that the Trustees, accordingly, are in breach of their fiduciary duty.

Consideration and conclusion

1. I agree with the two reasons given by the Registrar for rejection of the husband's Application in a Case.  It is correct that the only outstanding issue is the question of costs, as Rees J made final orders in the substantive proceedings.  It appears there has been an appeal but I am not aware of the progress of appellate proceedings.

2. I agree with the Registrar that the husband could raise any of his concerns in relation to the conduct of the Trustees for sale in the Supreme Court.  The husband is at liberty to seek orders, for example, to restrain the Trustees from taking steps to complete the sale of the property in those proceedings.

3. In terms of practicality, proceedings are already on foot in the Supreme Court and have been allocated a date.  It is highly unlikely that any hearing time could be allocated in this jurisdiction prior to 1 November 2018 for any application which the husband may bring in relation to the alleged conduct of the Trustees.

4. For these reasons, I confirm the decision of the Registrar made on 16 October 2018.  I will dismiss the Application in a Case filed by the husband on 22 October 2018.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 30 October 2018.

Associate: 

Date:  30 October 2018