APPLICANT SEEKS FOR THE REPONDENT’S FATHER TO JOIN THE PROCEEDINGS
Manderville & Borah [2019] FCCA 2752 (26 September 2019)
In this matter between Ms Manderville (‘the applicant’) and Mr Borah (‘the respondent’), the Court is asked to decide whether the respondent’s father, Mr H, (‘Mr H’) should be joined as the second respondent to the proceedings.
Facts:
In 1988, the respondent and Mr H purchased a property in the UK. the respondent deposes that the property was registered in the joint names of his father, mother and him. In 2007, the parties commenced cohabitation and lived rent free in the UK property until 2008. In 2009, the respondent transferred his interest in the UK property to Mr H for no consideration. The parties separated in April 2014. Proceedings in the Federal Circuit Court with respect to parenting and property issues commenced
Applicant seeks a declaration that the declaration of trust with respect to the UK property is a sham and anticipates that there will be a question of whether the respondent owns, by way of trust, a half interest in the UK property, which is submitted is worth 600,000 pounds in total, and therefore 300,000 pounds for the respondent. Applicant submits that it is necessary for Mr H to be joined as a party to the proceedings to ensure he is afforded procedural fairness before the Court makes orders which alters the rights and liabilities of the respondent’s property.
Mr Dodd contended that the applicant had not sufficiently particularised her claim to establish that it was necessary for Mr H to be joined in these proceedings. That is, it was not enough for the applicant to present her case by relying on certain parts of various affidavits she had filed previously rather than providing a statement of claim which set out the basis upon which the trust existed.
Issue: Should the respondent’s father be joined?
Law:
- Federal Circuit Court Rules 2001 2001 RR.11.01, 13.07
- Family Law Act 1975 SS.79, 90SM
Analysis:
The applicant had not sufficiently particularised her claim to establish to the Court that it would be necessary for Mr H to be joined as the second respondent in the proceedings. It is significant that applicant has had ample opportunity to properly particularise her claim against the proposed second respondent and has failed to do so. It is not enough to simply refer to a couple of paragraphs in an affidavit and the details of any claim and the relief sought to be revealed at trial.
The court is inclined to accept the respondent’s submission. Save for the Historical Copy of Register of Titles on the UK property, and an extract of the declaration of trust, the applicant has failed to formulate a statement of claim, and specify the basis and nature of such a claim.
Having regard to her failure in taking the opportunity to adequately particularise her claim, in circumstances where this is the third time she has brought a joinder application, the prejudice to Mr H outweighs the prejudice to the applicant.
Conclusion: Court orders that the application be dismissed.
