Con Mourd v Atlantis Nominees Pty Limited Sca [1990] ACTSC 28; (1990) 100 FLR 478 (3 August 1990)

SUPREME COURT OF THE ACT

CON MOURD v. ATLANTIS NOMINEES PTY LIMITED
S.C.A. No. 781 0f 1989
Practice and Procedure
[1990] ACTSC 28; (1990) 100 FLR 478

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Practice and Procedure - Jurisdiction of Courts (Cross Vesting) Act 1987 - Action for account of Debt - Application to transfer matter to Family Court - "Interests of justice"

Super v Super (1989) FLC 92-048

Hallawi v Australian Guarantee Corporation Limited and Anor (1988) FLC 92-045

Lambert v Dean (1989) FLC 92-037

Staples v McCall (1989) FLC 92-039

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

Waterhouse v ABC (1989) 86 ACTR 1

HEARING

CANBERRA
3:8:1990

Counsel for the applicant: Mr S. Walmsley

Instructing solicitors: Messrs Wood Fussell, Mr E. Lees

Counsel for the respondent: Mr Searle

Instructing solicitors: Messrs Gallens Crowley Chamberlain, Mr C. Crowley

ORDER

The proceedings in this matter be transferred to the Family Court.

DECISION

This is an application by Atlantis Nominees Pty Limited that proceedings commenced between Con Mourd as plaintiff and it as defendant, be transferred from this Court to the Family Court of Australia, Canberra Registry.

2. I will refer to the company as "Atlantis". The plaintiff I will refer to by name.

3. The application is brought pursuant to s.5 of the Jurisdiction of Courts (Cross Vesting) Act 1987 (the Act).

4. Jurisdiction is conferred on the Family Court of Australia (the Family Court) to hear and determine the substantive proceedings in this matter by virtue of s.4 of the Act.

5. Sub-section 5(1) permits this Court to order the transfer of the proceedings in question if it appears to this Court that:-
(i) the relevant proceeding ... is related to another

proceeding pending in the ... Family Court and it
is more appropriate that the relevant proceeding
to determined by the ... Family Court;
(ii) it is otherwise in the interests of justice that
the relevant proceeding be determined by the
Family Court.

6. It is common ground that Mr Mourd could not have sought the relief he claims in the Family Court, (save insofar as that Court has jurisdiction by virtue of the Act).

7. The "relevant proceedings" are an application by Mr Mourd against Atlantis claiming that an account be taken of the sums (if any) due from Atlantis to him.

8. He complains, in his affidavit of 22 December 1989 (of even date with his originating Summons), that Atlantis will not or cannot tell him what he is owed by it. Mr Searle, for Mr Mourd, contends that it is or should be a simple matter for Atlantis to say what is owed, one way or the other.

9. Needless to say, matters are not so simple. Atlantis is one of four companies controlled by the Gerakiteys family. Mrs Mourd is a member of that family. She and her child, Agapy, as well as Mr Mourd (so long as he remains married to Mrs Mourd) are beneficiaries of certain discretionary trusts originally controlled by Mrs Mourd's parents. The latter are now deceased. Following their deaths, it seems that their surviving children decided to wind up the family trusts, no doubt with a view to distributing the holdings thereof.

10. The other three companies relevant for present purposes are:-

(i) Pothety Pty Ltd - trustee of the Pothety
Gerakiteys Family Trust. It purchased a
property, "Heradale", from Kythera Pty Ltd
for the benefit (apparently) of Mr and
Mrs Mourd. Mrs Mourd was known as
Pothety Gerakiteys before her marriage to
Mr Mourd. Its directors are
Steven Gerakiteys and Pothety Mourd.
(ii) Kythera Pty Ltd - is a company which built
and owned the Kythera Motel. That Motel has
been transferred to Steven Gerakiteys.
Pothety Pty Ltd has, it seems, a debt to
Kythera Pty Ltd in which company Mrs Mourd
has an interest.

(iii) Gatesville Holdings Pty Ltd - ran the

restaurant at the Kythera Motel. Its
directors are Mr and Mrs Mourd. It ceased to
trade in 1988. There are debts said to be
due to or from the directors and that
company.

11. Atlantis is the trustee for the Gerakiteys Family Trust. The beneficiaries would seem to include the children, spouses (where appropriate) and grandchildren of the late Mr and Mrs Gerakiteys. This company apparently received moneys from the Gerakiteys family businesses and distributed those funds to various of the beneficiaries.

12. Mrs Mourd claims that, whatever may be the position between Atlantis and Mr Mourd, the latter also owes money to Gatesville Pty Ltd and to Pothety Pty Ltd. She claims, also, that Atlantis is owed money by Mr Mourd.

13. The financial statements adduced in evidence before me do show that the financial affairs of these various companies and the financial position of Mr and Mrs Mourd with respect to them is complex though calculable. However, it would give a misleading or potentially misleading picture if one was to conclude either that fixing on the correct figure in respect of one company established the mutual financial relations between Mr and Mrs Mourd in relation to some or all of the companies other than Atlantis or themselves.

14. I am satisfied that the determination of Mr Mourd's position with respect to Atlantis will involve an examination of his entitlements to and from the other Gerakiteys family companies, as well as other family business arrangements.

15. On 7 June 1990, Mrs Mourd commenced proceedings in the Family Court. She claims a property settlement, custody of and maintenance for the child of the marriage. The extent of the property interests of the Gerakiteys family may be judged by the terms of paragraph 9.4 of Mrs Mourd's application.

16. Notwithstanding this, Mr Searle for Mr Mourd, contends that the Originating Summons raises only a narrow issue, the determination of which will have little impact on the Family Court proceedings but will be of help to that Court because it will provide a useful preliminary determination of at least some of the relevant financial circumstances of the parties. He also complains that the Family Court proceedings are not as advanced as the proceedings in this Court. The inference is that there will be more delay if these proceedings are attached to the Family Court proceedings.

17. Mr Walmsley, for Atlantis, submits that there will, in any event, be proceedings in the Family Court, in which the financial position of the husband and the wife relative to each of the companies mentioned will need to be ascertained. He further submits that whilst the husband, Mr Mourd, and Atlantis will be bound by the findings and orders of this Court, the wife and the other companies will be free to contend for a different finding concerning Mr Mourd's financial position with respect to Atlantis. It is to be concluded that embarking on the determination of Mr Mourd's financial relationship with Atlantis will not save any time or cost in the Family Court and may be, to an extent, an embarrassment.

18. There can be no doubt, in my opinion, that the current proceedings are "related" to the proceedings in the Family Court. There is a connection between the parties and the subject matter; the only question is whether it is "more appropriate" to transfer these proceedings to the Family Court. An additional consideration is whether it is "in the interests of justice" that these proceedings be so transferred.

19. Whilst it must be recognized that the cross-vesting legislation is to be applied in a non-technical and co-operative fashion, some assistance can be derived from a consideration of previous authorities.

20. Unlike Super v Super (1989) FLC 92-048, there are no third parties whose interests would be adversely affected by a transfer of these proceedings to the Family Court. As in Hallawi v Australian Guarantee Corporation Limited and Anor (1989) FLC 92-045, it appears that the parties to these proceedings are going to be directly involved in the Family Court proceedings in any event.

21. As McLelland J noted in Lambert v Dean (1989) FLC 92-037, it is relevant that the Family Court is a specialist court better suited to dealing with a matter which is, in reality, a family dispute. Indeed, the Supreme Court proceedings may be seen as merely complementary or ancillary to the Family Court proceedings (see Staples v McCall (1989) FLC 92-039).

22. The only matter against that is the issue raised by Mr Searle concerning delay. I do not accept that the Family Court proceedings are merely "a ruse" to deny his client information concerning the financial affairs of Atlantis. However, it seems to me that, if these proceedings are transferred to the Family Court, there is nothing to prevent Mr Mourd from seeking particulars, including access to documents, in respect of Atlantis alone or each of the other companies and partnerships which have been referred to, in the affidavit evidence.

23. On the other hand, it seems undesirable to create, by taking accounts, a binding debtor/creditor relationship between Mr Mourd and Atlantis in advance of and separately from the Family Court proceedings. If, for example, execution or winding up proceedings were taken to recover a balance due in Mr Mourd's favour, Mrs Mourd may well be moved to intervene to claim that Mr Mourd should be ordered to pay that balance to her for maintenance or to have it declared unenforceable for reasons which could only be given effect to in the Family Court.

24. The real question is what is dictated by the interests of justice. That is centrally involved in deciding which court is "more appropriate" (see Bankinvest AG v Seabrook (1988) 14 NSWLR 711; Waterhouse v ABC (1989) 86 ACTR 1).

25. Applying this test, I am of the opinion that it is more appropriate for these proceedings now to be transferred to the Family Court. I am also satisfied that it is in the interests of justice that these proceedings be so transferred.

26. It is ordered accordingly. I will hear the parties as to costs.