Adamson & Korac

Case [2022] FedCFamC1F 528

Federal Circuit and Family Court of Australia

(DIVISION 1)

Adamson & Korac [2022] FedCFamC1F 528

File number(s): SYC 4996 of 2019
Judgment of: CAMPTON J
Date of judgment: 22 July 2022
Catchwords: FAMILY LAW – PROPERTY – Application in a proceeding to join the husband’s partner (or former partner) and a company as parties to the proceedings, and to have that company valued by the single expert forensic accountant – Where the wife contends that the husband’s partner (or former partner) operates the relevant company for the benefit of the husband – Where the wife does not presently seek final relief against the husband’s partner (or former partner) or the company – Where the wife’s claim as presently articulated is broad and unspecific – Where the wife ought to amend her relief with sufficient particularity so as to afford the proposed additional respondents the opportunity to understand and respond to her case – Application to amend relief granted – Trial dates vacated.
Legislation:

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 2.50

Cases cited: Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Division: Division 1 First Instance
Number of paragraphs: 52
Date of hearing: 21 July 2022
Place: Sydney
Solicitor for the Applicant: Farrar Gesini Dunn
Solicitor for the Respondent: Family Law Practice Australia Pty Ltd
Solicitor for the proposed additional respondents: Lander & Rogers

ORDERS

SYC 4996 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS ADAMSON

Applicant
AND:

MR KORAC

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

22 July 2022

THE COURT ORDERS THAT:

1.By 29 July 2022 the wife shall file and serve:

(a)any Amended Application in a Proceeding as she elects, annexing any proposed Amended Initiating Application that she will seek leave to file pursuant to Pt 2.8 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), specifying with precision the relief she seeks as against the husband and any proposed additional respondent and pleading by way of Points of Claim with the particulars of the relief sought;

(b)An Outline document identifying with precision the paragraphs of her trial affidavit and her affidavit filed on 13 July 2022 relevant to her Amended Application in a Proceeding; and

(c)if required, a single further affidavit restricted to only updating evidence subsequent to 23 July 2022.

2.By 9 August 2022:

(a)the husband shall file and serve:

(i)any Response to an Amended Application in a Proceedings as may be filed by the wife pursuant to these orders; and

(ii)an outline document identifying with precision the paragraphs of his trial affidavit and his affidavit filed on 19 July 2022, relevant to the wife’s Amended Application in a Proceeding; and

(iii)if required, a single further affidavit relating only to updating evidence subsequent to 23 July 2022.

(b)Any additional proposed respondent identified in the wife’s Amended Application in a Proceeding filed pursuant to these orders shall file and serve:

(i)any…

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AGLC
Adamson & Korac [2022] FedCFamC1F 528
Case
[2022] FedCFamC1F 528
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the applicant, Ms Adamson, sought to join the husband’s partner, Ms B, and her company, C Company, as parties to the proceedings. She sought to have C Company valued by a single expert forensic accountant. Ms Adamson contended that Ms B operated C Company for the benefit of the husband, Mr Korac. The wife did not presently seek final relief against Ms B or C Company. The husband opposed the wife’s application to join the additional respondents and to have C Company valued. The wife’s claim as currently articulated was broad and unspecific. The wife ought to amend her relief with sufficient particularity to afford the proposed additional respondents the opportunity to understand and respond to her case. The court considered that the wife’s application was premature and that it ought to be amended to provide the proposed additional respondents with an opportunity to understand and respond to the wife’s case. The court granted the wife leave to amend her relief and vacated the trial dates.

The court found that the wife’s claims were broad and unspecific. The wife had not provided sufficient particulars of the relief she sought against the proposed additional respondents. The wife ought to amend her relief with sufficient particularity to afford the proposed additional respondents the opportunity to understand and respond to her case. The court ordered that the wife file and serve an Amended Application in a Proceeding, specifying with precision the relief she sought as against the husband and any proposed additional respondent. The court also ordered that the wife file an Outline document identifying the paragraphs of her trial affidavit and her affidavit filed on 13 July 2022, relevant to her Amended Application in a Proceeding. The court vacated the trial dates and listed the wife’s Amended Application in a Proceeding for hearing before the court. The court reserved each party’s and any proposed additional parties’ costs of and incidental to the hearing before the court on 21 July 2022.

Orders

Orders of the court

SYC 4996 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ADAMSON

Applicant

AND:

MR KORAC

Respondent

order made by:

CAMPTON J

DATE OF ORDER:

22 July 2022

THE COURT ORDERS THAT:

1. By 29 July 2022 the wife shall file and serve:

(a) any Amended Application in a Proceeding as she elects, annexing any proposed Amended Initiating Application that she will seek leave to file pursuant to Pt 2.8 of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), specifying with precision the relief she seeks as against the husband and any proposed additional respondent and pleading by way of Points of Claim with the particulars of the relief sought;

(b) An Outline document identifying with precision the paragraphs of her trial affidavit and her affidavit filed on 13 July 2022 relevant to her Amended Application in a Proceeding; and

(c) if required, a single further affidavit restricted to only updating evidence subsequent to 23 July 2022.

2. By 9 August 2022:

(a) the husband shall file and serve:

(i) any Response to an Amended Application in a Proceedings as may be filed by the wife pursuant to these orders; and

(ii) an outline document identifying with precision the paragraphs of his trial affidavit and his affidavit filed on 19 July 2022, relevant to the wife’s Amended Application in a Proceeding; and

(iii) if required, a single further affidavit relating only to updating evidence subsequent to 23 July 2022.

(b) Any additional proposed respondent identified in the wife’s Amended Application in a Proceeding filed pursuant to these orders shall file and serve:

(i) any Response to an Amended Application in a Proceedings as may be filed by the wife; and

(ii) an outline document identifying the material upon which they may seek to rely for the purpose of the hearing of the wife’s Application in a Proceedings; and

(iii) any such affidavit as they consider necessary, noting that no restriction is placed on the material to be relied upon by the said additional proposed respondent.

3. The trial dates listed on 10 and 11 August 2022 are vacated.

4. The wife’s Application in a Proceeding filed 13 July 2022 or any amendment thereto is listed for hearing before me, in person, at 10.00 am on 10 August 2022.

5. Each party’s and any proposed additional parties’ costs of and incidental to the hearing before me on 21 July 2022 are reserved.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

At the hearing before me, Ms B withdrew her objections to the subpoenas issued at the request of the wife. The objections were dismissed. Hence, part of the wife’s relief in her Application in a Proceeding fell away.Background The parties were married in 1999. They have not yet divorced. They have two children together, Ms X who is now 20 years of age, and Y who is now 17 years of age. The children have lived with the wife since separation. Between 2009 and July 2020, the husband operated a franchise business, D Company through his company E Pty Ltd (“E Company”). The ASIC search of E Company exhibited to the wife’s affidavit records the husband is the sole owner of the issued shares in E Company. The wife asserts that she assisted in the operation of D Company during the parties’ marriage. The extent of her involvement is put into issue by the husband. D Company operated from a leased office premise at F Street, Suburb G. That lease was to expire on 30 June 2022, with an option to renew until 30 June 2025. In early 2018 the husband renegotiated the lease for F Street, amending it to terminate in June 2020. As part of the negotiation, he was offered a two-year rent-free period in exchange for the shortened lease term. It is the wife’s case that the husband “negotiated the reduced lease knowing that it would give him the option to surrender the franchise”. That is disputed by the husband. Ms B was employed at D Company from 2011 until mid-2020. She completed a business diploma in 2014. Ms B became the office manager of D Company in 2016 and remained in that position until 2020. On the husband’s evidence, he and Ms B were engaged in a “personal relationship” between late 2018 and early 2020. In his affidavit filed for the final hearing before me, he records that he moved into Ms B’s property in Suburb H in early 2018. He described Ms B as a “work colleague and friend” at that time. They subsequently lived in a hotel together for one month, before obtaining rental accommodation in late 2018. The wife puts the termination of the husband’s personal relationship with Ms B into issue. She contends the relationship commenced prior to, and was the cause of, the parties’ separation in December 2017 or January 2018, and that it had continued since that time. She adduced evidence from a private investigator going to this issue of fact. Ms B deposes to her relationship with the husband commencing “in or around May 2018”. This will be a matter for determination at trial. Between early 2020 and mid-2020 Ms B undertook a process to obtain the D Company franchise. This included lodging an application with K Company, completing various “tests” in March 2020, and incorporating a company. She registered C Company on 2 April 2020 for this purpose. Ms B is the sole director and shareholder of C Company. On 16 April 2020 Ms B was notified by way of an email from the husband that her employment with E Company would cease on 30 June 2020. On that same date, the husband provided written notice to K Company of his intention to terminate the franchise agreement from 30 June 2020.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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