Barrett & Winnie

Case [2021] FamCA 625

FAMILY COURT OF AUSTRALIA

Barrett & Winnie [2021] FamCA 625

File number(s): BRC 13257 of 2007
Judgment of: KENT J
Date of judgment: 26 August 2021
Catchwords: FAMILY LAW – PROPERTY – JUSTICE AND EQUITY – Whether it is just and equitable to make property adjustment orders – Where the applicant contends that property has been dealt with by ante-nuptial or post-nuptial settlements made in relation to the marriage within the meaning of s 85A of the Family Law Act 1975 (Cth) – Where the parties separated almost 16 years ago – Where there has been extensive involvement and contributions made by third parties over a very lengthy period subsequent to the subject marriage – Where the applicant has made no contribution of any significance to the property of the trusts – Where the applicant already holds approximately 95 per cent of the value of the property interests held by the parties.
Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 85A, 106B
Cases cited:

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1

Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555; [2019] HCA 29

Browne v Dunn (1893) 6 R 67

Burnett v Burnett [1936] P 1

[REDACTED]

[REDACTED]

[REDACTED]

Hargreaves v Hargreaves [1926] P 42

Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

Mallard & Mallard [2011] FamCA 876

Mayne & Mayne (2011) FLC 93-479; [2011] FamCAFC 192

Meller v Meller (1967) 10 FLR 12

Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195

Prinsep v Prinsep [1929] P 225

R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82

Rollings & Rollings [2009] FamCAFC 87

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Smith v Smith [1970] 1 WLR 155

Stephens & Stephens & Anor (Enforcement) (2009)
FLC 93-425; [2009] FamCAFC 240

Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Turnbull and Turnbull (1991) FLC 92-258; [1990] FamCA 157

Young v Young (No 1) [1962] P 27

[REDACTED]

 Woodcock v Woodcock (1997) FLC 92-739; [1997] FamCA 5

Woodland and Todd (2005) FLC 93-217; [2005] FamCA 161

Justice Peter Nygh, Section 85A: Is it of much use? (1986) 1 AJFL 10

Number of paragraphs: 280
Date of hearing: 22-26 March 2021; 14 May 2021
Place: Brisbane
Solicitor for the Applicant: Morrow Petersen Solicitors
Counsel for the Respondents: Mr Hackett
Solicitor for the Respondents: Tubaro Lawyers

ORDERS

BRC 13257 of 2007
BETWEEN:

MR BARRETT

Applicant
AND:

MS WINNIE

First Respondent

MR WINNIE

Second Respondent

B PTY LTD

Third Respondent

MS C WINNIE
Fourth Respondent

E PTY LTD PTY LTD
Fifth Respondent

D PTY LTD PTY LTD
Sixth Respondent

ORDER MADE BY:

KENT J

DATE OF ORDER:

26 AUGUST 2021

THE COURT ORDERS THAT:

1.Save for the admission into evidence the Westpac documents and the documents concerning the applicant’s superannuation interests, each annexed to the affidavit of Mr H filed in support…

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AGLC
Barrett & Winnie [2021] FamCA 625
Case
[2021] FamCA 625
Decision Date

CaseChat Overview and Summary

In *Barrett & Winnie*, Mr Barrett (the applicant) sought property adjustment orders against Ms Winnie and several companies (the respondents). The applicant contended that certain property had been dealt with by ante-nuptial or post-nuptial settlements within the meaning of s 85A of the *Family Law Act 1975* (Cth). The parties had separated almost 16 years prior to the proceedings, and there had been extensive involvement and contributions by third parties over a significant period after the marriage. The applicant had made no significant contributions to the property of the trusts, and already held approximately 95 per cent of the value of the property interests held by the parties.

The court, presided over by Kent J, was required to determine whether it was just and equitable to make property adjustment orders, particularly in light of the applicant's claim regarding settlements under s 85A. A key issue was the applicant's attempt to reopen evidence after judgment had been reserved, concerning matters such as superannuation, the application of funds from property sales, capital gains tax liability, parenting contributions, and the applicant's involvement in Westpac borrowings. The court also had to consider the extraordinary delay in the proceedings and attribute responsibility for it.

Kent J found that the applicant had been dilatory in prosecuting his application, and this delay was relevant to considerations of justice and equity. While the applicant sought to reopen evidence, the court allowed the admission of Westpac documents and documents concerning the applicant's superannuation interests by consent. However, the court rejected the applicant's broader application to reopen evidence. The court noted that the applicant had made no contribution to loan repayments or the maintenance of a property despite occupying it, and that the applicant already held the vast majority of the parties' property interests.

Consequently, the court dismissed the applicant's application to reopen evidence, save for the admitted Westpac and superannuation documents. The Further Amended Application for Final Orders filed on 18 March 2010 was also dismissed. Any party seeking costs was required to file and serve a separate application.

Orders

Orders of the court

BRC 13257 of 2007

BETWEEN:

MR BARRETT

Applicant

AND:

MS WINNIE

First Respondent

MR WINNIE

Second Respondent

B PTY LTD

Third Respondent

MS C WINNIE

Fourth Respondent

E PTY LTD PTY LTD

Fifth Respondent

D PTY LTD PTY LTD

Sixth Respondent

ORDER MADE BY:

KENT J

DATE OF ORDER:

26 AUGUST 2021

THE COURT ORDERS THAT:

1. Save for the admission into evidence the Westpac documents and the documents concerning the applicant’s superannuation interests, each annexed to the affidavit of Mr H filed in support of the Application in a Case filed on 22 April 2021, that application is otherwise dismissed.

2. The Further Amended Application for Final Orders filed on 18 March 2010 be dismissed.

3. Any party seeking any order with respect to costs of the proceedings is to file and serve an Application in a Case in accordance with rule 19.08(2)(b) of the Family Law Rules 2004 (Cth).

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The point of emphasis for present purposes is that I reject any proposition to the effect that responsibility for the extraordinary delay in these proceedings and their progression can be sheeted home to the respondents. The applicant has been dilatory in prosecuting his application and his contribution to such extraordinary delay is, in my judgment, relevant to considerations of justice and equity.Application to reopen evidence heard on 14 May 2021 As noted, the trial proceeded for five days commencing on 22 March to 26 March 2021 when judgment was then reserved. Whilst judgment was reserved, on 21 April 2021 the applicant filed an Application in a Case to reopen the evidence which application was heard on 14 May 2021. The applicant sought to reopen the evidence at trial concerning the following matters:(a)The identification of the amount of the applicant’s pre and post-separation superannuation;(b)The application of funds received by the applicant from the sale of two investment properties owned as at separation – relevant to a question of add-backs and the payment of legal fees discussed further below;(c)The quantum of liability or potential liability for capital gains tax from the sale of certain investment properties;(d)The applicant’s parenting contributions over a period of about two years post-separation; and(e)Whether the applicant participated in giving guarantees or mortgages to Westpac to support borrowings, a topic further discussed below. The principles in relation to an application to reopen evidence once judgment has been reserved are well settled in a number of authorities.[10][10] See, for example, Stephens & Stephens & Anor (Enforcement) (2009) FLC 93-425; Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365; Mallard & Mallard [2011] FamCA 876 and the authorities referred to in those judgments. In general the discretion to reopen a hearing and allow fresh evidence is engaged where:(a)The fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence;(b)The fresh evidence is so material that the interests of justice require it;(c)If believed, the fresh evidence would most probably affect the result of the trial; and(d)There would be no prejudice to the other party by reason of its introduction at a late point in time. On the hearing of the application the further evidence concerning the parenting aspect became nugatory when it was accepted by the parties that the Court could proceed on the basis that the applicant continued to play a role with Ms I post-separation for a period of about two years, but ceased to do so thereafter. That is, it became unnecessary to adduce any additional evidence in that respect on the stated acceptance by the parties as to these being agreed facts. Also in the course of argument it was accepted by counsel for the respondents that the unsatisfactory state of the evidence as at trial concerning documents obtained from Westpac (“the Westpac documents”) had the potential for the Court to proceed on an erroneous basis without the additional documents, that is, additional Westpac documents attached to an affidavit of the solicitor for the applicant, Mr H. It was thus acknowledged that those documents could be received into evidence by consent, although debate remained as to the interpretation of them as will be discussed.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In July 1999 Suburb NN unit was sold and a property at RR Street, Suburb SS was purchased by the fifth respondent for $300,000.[50]Affidavit of Mr Winnie filed on 28 January 2021, paragraph 7; affidavit of Ms C Winnie filed on 28 January 2021, paragraph 20.Deregistration and business On 22 December 1999 the first respondent was deregistered following disciplinary proceedings commenced by a professional organisation. Thereafter the first respondent pursued an appeal to the Queensland Court of Appeal (which was unsuccessful) and a likewise unsuccessful application for special leave to the High Court.[51][51] Affidavit of the first respondent filed on 28 January 2021, paragraph 36; affidavit of Mr Winnie filed on 28 January 2021; paragraph 5; and affidavit of the applicant filed on 18 November 2020, paragraph 17. The first respondent deposes that in this period, in about early 2000, she and the applicant were “living separate lives” and effectively separated under the same roof.[52] I accept the first respondent’s evidence in this respect.[52] Affidavit of the first respondent filed on 28 January 2021, paragraph 35. In 2000 arrangements were made, in circumstances where the first respondent was unable to continue to practice as a professional, for her business partner, Mr TT to undertake the business pending the qualification of Mr Winnie, the second respondent to undertake the business in his own right.[53][53] Affidavit of the first respondent filed on 28 January 2021, paragraph 37; affidavit of Mr Winnie filed on 28 January 2021, paragraph 5.V Street property In May 2001 the fourth respondent, Ms C Winnie, purchased V Street, Suburb G for $650,000. It is Ms C Winnie’s evidence that the purchase was funded by $200,000 provided to her by the P Family Trust, which had been received from the sale of OO Street, Suburb PP, and a loan from Westpac obtained in her name.[54] [54] Affidavit of Ms C Winnie filed on 28 January 2021, paragraphs 21 and 72. It is the applicant’s case that he “signed documents in [his] name that were required by Westpac for the purposes of” the purchase of V Street, Suburb G, which were either a guarantee or provision of BB Street, Suburb CC owned by him as security.[55] Ms C Winnie denies this was the case and says that while she obtained a mortgage from Westpac to fund the purchase of V Street, Suburb G,[56] the applicant did not provide a guarantee and could not have provided BB Street, Suburb CC as security as he did not own the property at the time.[57][55] Affidavit of the applicant filed on 18 November 2020, paragraph 20. See also Transcript 22 March 2021, p.96 lines 12–18.[56] Transcript 24 March 2021, p.219 lines 41–44.[57] Affidavit of Ms C Winnie filed on 28 January 2021, paragraph 21; Transcript 24 March 2021, p.219 line 46 to p.220 line 1; Transcript 24 March 2021, p.221 lines 36–38. The Westpac documents, part of the evidence the subject of reopening on 14 May 2021, confirm that the applicant signed Westpac documents as a co-borrower with respect to the loan from Westpac for V Street, Suburb G. Ms C Winnie is therefore incorrect in denying that the applicant signed any documents from Westpac for the loan, although Ms C Winnie is correct that BB Street, Suburb CC was not given as security. Notably though, the applicant made no contribution to loan repayments and indeed made no contribution to the maintenance or conservation of V Street, Suburb G despite his occupation of it.