Atkins and Hunt and Ors

[2019] FamCA 822

FAMILY COURT OF AUSTRALIA

ATKINS & HUNT AND ORS [2019] FamCA 822

FAMILY LAW – PRACTICE AND PROCEDURE – EVIDENCE – Leave to file and serve affidavit out of time.

Family Law Act 1975 (Cth)

APPLICANT: Ms Atkins

RESPONDENT: Mr Hunt

2^nd RESPONDENT: Mr J Hunt

3^rd RESPONDENT: Mr D Hunt

4^th RESPONDENT: N Pty Ltd

5^th RESPONDENT: T Pty Ltd

6^th RESPONDENT: H Pty Ltd

7^th RESPONDENT: Mr EE Hunt

FILE NUMBER: SYC 425 of 2012

DATE DELIVERED: 7 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 24 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura, counsel

SOLICITOR FOR THE APPLICANT: Mills Oakley

SOLICITOR FOR THE RESPONDENT: Sexton Family Law

COUNSEL FOR 2^ND – 7^TH RESPONDENTS Mr Sirtes

SOLICITOR FOR 2^ND – 7^TH RESPONDENTS HWL Ebsworth Solicitors

Orders

Order made 24.10.2019

1. Order 7 of the orders by the court on 8 August 2018 (as varied by order 27 September 2018) be varied such that the time for the 2^nd to 7^th respondents to file and serve an affidavit in the form of Exhibit 163 be extended and I note that that affidavit has already been filed on 12 September 2019 and has been served on the applicant.

Notation made in chambers

1. Exhibit 163 shall be remarked as Exhibit 48.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Atkins & Hunt and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 425 of 2014

Ms Atkins

Applicant

And

Mr Hunt

Respondent

And

Mr J Hunt

2^nd Respondent

And

Mr D Hunt

3^rd Respondent

And

N Pty Ltd 

4^th Respondent

And

T Pty Ltd 

5^th Respondent

And

H Pty Ltd

6^th Respondent

And

Mr EE Hunt

7^th Respondent

REASONS FOR JUDGMENT

1. On 24 October 2019, I made an order and notation in the following terms:

   4. Order 7 of the orders by the court on 8 August 2018 (as varied by order 27 September 2018) be varied such that the time for the 2^nd to 7^th respondents to file and serve an affidavit in the form of Exhibit 163 be extended and I note that that affidavit has already been filed on 12 September 2019 and has been served on the applicant

2. Reasons for making this order were reserved and I now provide those reasons.

3. On 30 September 2019, pursuant to leave that had been granted, the 2^nd to 7^th respondents filed an Application in a Case seeking an order in the following terms (as amended on 24 October 2019):

   Order 7 of the orders made by the Court on 8 August 2018 (as varied by order 1 on 27 September 2018) be varied such that the time for the 2^nd to 7^th respondents to file and serve any affidavit setting out the evidence upon which each respondent relies, including any indexed and paginated tender bundle, be extended to 3 days after the day the court determines this application or such other time as the court deems fit.

4. The application was opposed by the wife but not opposed by the 1^st respondent.

5. The Application in a Case was supported by an affidavit of Mr AA filed 30 September 2019, who indicated that the evidence sought to be relied upon was an affidavit of the 3^rd respondent which became an exhibit in this application (Exhibit 163).

6. During cross examination of the husband in the substantive proceedings (which are currently part heard before me), counsel for the wife asked the husband questions about the following transactions:

   a)N Pty Ltd purchasing a property at S Street, Town M (“the S Street, Town M property”);

   b)N Pty Ltd selling a property at 1 & 2 PH Street, Town W to F Pty Ltd (as trustee of the superannuation fund) in June 2003 and subsequently repurchased this property from F Pty Ltd in June 2010; and

   c)N Pty Ltd purchasing a property at ZZ Street, Town K.

7. On 3 August 2017, I made an order that the wife provide the husband and the other parties to the proceedings, a statement setting out all the matters and facts relevant to the wife’s claim “including to any alter ego claim to be made by her in the proceedings, the identity of the entity to which the claim relates and each of the facts that is said to establish that entity as the alter ego of the husband.”

8. On or about 4 September 2017, the wife served the document entitled Points of Claim. That document indicated that it was the wife’s position that N Pty Ltd was the alter-ego of the husband. The Points of Claim did not particularise the transactions referred to above as being facts said to establish that N Pty Ltd was the husband’s alter-ego. Paragraph 15 of the Points of Claim, however, did contain catchall subparagraphs in the following terms:

   15. At all material times, prior to the share transfers made by the Husband or at his direction on 7 September 2015, the nature, degree and extent of the Husband’s control of N Pty Ltd and T Pty Ltd which arose from the express rights attaching to the Husband’s shares, was such that:

   …

   viii)for all practical purposes, the Husband dealt with the assets of N Pty Ltd, including its cash, as if they were the Husband’s own assets;

   ix)the claim will be further particularised, as necessary, upon service by the parties of the evidence they intend to rely upon at the hearing.

9. Correspondence was exchanged between the parties about the appropriateness of paragraph 15 of the Points of Claim.

10. The wife filed and served her trial affidavit on 9 October 2018. The affidavit did not contain any evidence about the relevant transactions nor was there any further particularisation in respect of these transactions.

11. It did not seem to be controversial that there is a large amount of documentation that the respondents have made available to the wife, including prior to the first hearing of the matter by Justice Aldridge.

12. The 2^nd to 7^th respondents had not filed any evidence in relation to the transactions referred to above. Their submission is that had the wife in her Points of Claim and/or evidence highlighted the fact that she intended to rely upon these transactions as an indication of N Pty Ltd being the alter-ego of the husband, they would have filed the evidence that they now seek to have leave to file.

13. Counsel for the wife submitted that the Points of Claim made clear that the husband treating assets as those of his own was going to be the subject of cross examination during the trial and that this cross examination fell within that category. Accordingly, it was submitted that the 2^nd to 7^th respondents had ample notice and it was abundantly clear that these types of transactions would be the subject of cross examination and the fact that cross examination about these matters was not the subject of particularisation in the Points of Claim is not a basis upon which the current application should be granted.

14. In addition, counsel for the wife argued that the affidavit of Mr Hunt should not be admitted on the basis that it had no probative value and it was an undue waste of time to allow that evidence (that is, an objection under s 135 of the Evidence Act). As indicated during submissions, that objection is premature. The application with which I am dealing is whether or not the 2^nd to 7^th respondents be permitted to file and rely upon the affidavit (subject to any objection that then might be taken to its contents).

15. I am satisfied that it is appropriate to make an order in the terms as sought in the Application in a Case filed 30 September 2019. 

16. I also note that the document which has been referred to as Exhibit 163 is the Casetrack exhibit number and the actual exhibit number in the proceedings before me should have been Exhibit 48. I will remark Exhibit 163 as Exhibit 48 before me.

I certify that the preceding Sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 November 2019.

Associate: 

Date:  7 November 2019