Property – Husband’s estate unable to pay wife’s entitlement in full – Majority of wealth held in family trust – Application by wife and adult children for joinder of trustee of family trust dismissed – Trustee was not a party to the order that created wife’s entitlement.
In Filip [2025] FedCFamC1F 35 (30 January 2025), Carew J heard an application for joinder in proceedings where property orders were made by consent between a husband and wife and their adult children in 2022.
The husband died unexpectedly in 2023 but had not discharged his obligation to pay the wife and two children pursuant to the 2022 orders.
The wife and two children sought to recover the unpaid amounts from D Pty Ltd (a trustee for the Filip Family Trust which was one of the entities forming the E Group). The trustee resisted the application for joinder. The wife sought enforcement and orders for variation pursuant to s 79A ([22]).
Carew J said (from [52]):
“These proceedings raise an interesting conundrum. At first blush it would seem inconceivable that the wife and [the children] could not recoup that which they are owed pursuant to the 2022 property order, but … [t]here must be a principled legal basis … identified in the pleadings. …
( … )
[54] As to the claim for relief pursuant to … ss 79A(1)(b) or (c) of the Act [the Court must be satisfied that] … the pleadings identify a factual and legal basis for a variation or a setting aside … so as to … make the trustee or the E Group liable for the payments due to the wife and [the children] … when neither the trustee nor the E Group were parties to the 2022 property order…
( … )
[57] … [I]t is not in dispute that a new trustee is bound by the obligations of the old trustee but the distinction in this case is that the husband was not the trustee. If it is to be contended that s 90AG of the Act has some broader application … the pleadings would need to articulate the factual and legal contentions.”
Her Honour concluded (from [60]):
“The wife and [the children] have failed to establish … that the trustee is a necessary party to the proceedings. …
[61] I propose to dismiss the application to join the trustee …”
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