· 2023-02-07T00:00:42+0000 · 664 posts

Decision Made in Absence of Joined Party in Legal Proceedings

Anand & Chaudhary (No 3) [2022] FedCFamC1F 903 (17 November 2022)

Anand & Chaudhary (No 3) [2022] FedCFamC1F 903 is a case about an application for orders in a legal proceeding where the joined party was served with the order but did not appear at the hearing and did not file any material in response. The court made a decision on the application based on the evidence presented. The matter involved property orders only, and the Independent Children’s Lawyer was excused from attendance. The first respondent did not consent to the orders but did not oppose them, while the second respondent consented. The case focused on whether the application should succeed when a necessary party did not participate. The court determined that the application should succeed, and the joined party was restrained from resigning as an officeholder, directing or causing any dealings with the parties' interests in any company, or directing the issue of any shares that may reduce or dilute the parties' interests in a company.

Facts:

An Application in a Proceeding was filed by the applicant on 12 October 2022, and the applicant sought paragraphs 3 and 5 of the orders sought. The matter was heard by the court on 15 November 2022, and the orders were made on that day. The applicant relied on various materials including the Application, an Affidavit in support, reasons for judgment delivered on 15 September 2022, an Affidavit of Service, and written submissions.

On 27 October 2022, the court made an order for substituted service of the Application and supporting material on Mr. F, which was served via electronic communication on that day. The matter proceeded on 15 November 2022, with the Independent Children’s Lawyer being excused from attendance. The first respondent husband did not oppose the orders but did not consent to them, while the second respondent consented to the orders. The served proposed joinder party, Mr. F, did not appear at the hearing and filed no material in response or opposition to the orders.

The court determined that the Application should succeed due to the served proposed joinder party not appearing at the hearing and filing no material in response or opposition. The Independent Children’s Lawyer was excused from attendance as the Application pertained to property orders only. The first respondent husband did not consent to the orders but did not oppose them, while the second respondent consented to the orders.

On 27 October 2022, an order was made for substituted service of the Application and supporting material on Mr. F, which was served via electronic communication on that day. The court heard the matter on 15 November 2022, and the orders were made on that day. The applicant relied on various materials including the Application, an Affidavit in support, reasons for judgment delivered on 15 September 2022, an Affidavit of Service, and written submissions.

Issue:

Whether or not the application should succeed when the independent children's lawyer and second respondent consented to the orders, while the first respondent husband did not oppose but did not consent. The joined party, Mr. F, was served with the order but did not appear at the hearing and did not file any material in response.

Applicable law:

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.01 - provides that a person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.03 - provides that a party who seeks to add another party to the proceeding, after the first court date, may only do so with the leave of the Court.

Wayne & Dillon & Anor [2008] FamCAFC 204 - provides that if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.

Analysis:

It is conceded by the husband that he made transfers of shareholdings and units to [Ms Sarai] post the making of restraining orders on 21 January 2021. [Ms Sarai] is a relevant person necessary to determine the dispute between the parties as to share and unit ownership, and accordingly will be joined as a party to the proceeding. Shares in C Pty Ltd and units in C Trust were transferred by the husband to Mr F in breach of the orders made on 21 January 2022. To effect any return of the shareholdings and unit holdings transferred to Mr F by the husband, it is necessary to join him to the proceeding. Mr F is a relevant person necessary to determine the dispute between the parties as to share and unit ownership, and accordingly the wife’s application succeeds and Mr F will be joined as a party to the proceeding.

Conclusion:

According to Rule 3.03 of the Federal Circuit and Family Court of Australia, Mr. F has been joined to the proceedings and is restrained from resigning as an officeholder of any company, directing or causing any dealings with the parties' interests in any company, dealing with the parties' shareholdings or interests in any company, or directing the issue of any shares that may reduce or dilute the parties' interests in a company, except by written agreement or court order. Mr. F must be served these orders within 48 hours and must comply with the trial orders by filing a response, affidavit, evidence, and financial statement by 4 PM on 16 January 2023, or the application will be dismissed.

#CourtProcesses

Case: Anand & Chaudhary (No 3) [2022] FedCFamC1F 903

Judgment of: HARTNETT J

Counsel:

Counsel for the Applicant: Dr Ingleby

Solicitor for the Applicant: Aitken Partners Pty Ltd

Counsel for the First Respondent: Mr Mellas

Solicitor for the First Respondent: Shapra Lawyers

Solicitor for the Second Respondent: Asher Freeman Lawyers

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