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BENCE & BENCE

Case [2020] FamCA 748 20 August 2020

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FAMILY COURT OF AUSTRALIA

BENCE & BENCE

[2020] FamCA 748

FAMILY LAW – PROPERTY – final orders – where the parties were married approximately 26 years – where the parties have two children – where the husband alleges the parties owe over $8 million to third parties evidenced by promissory notes signed by him – where none of those parties intervened in the proceedings – finding that the alleged debts should not form part of the net asset pool – where the husband’s lack of full and frank disclosure was an issue at trial – finding that the husband failed to disclose numerous business investments and interests – where the parties’ contributions throughout the relationship are assessed as equal – adjustment made as a result of the husband’s lack of disclosure – s 75(2) adjustment due to income earning disparity – final property orders to be made for a 55/45 division in the wife’s favour.

Evidence Act 1995 (Cth) ss 55, 56, 131, 135, 140
Family Law Act 1975 (Cth) ss 79, 75
Family Law Rules 2004 (Cth) pt 13

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545
Britt & Britt (2017) FLC 93-764
Chang & Su [2002] FamCA 156
Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592
IMM v The Queen (2016) 257 CLR 300
In Marriage of Black (1992) 106 FLR 154
In Marriage of Giunti [1986] FLC 75
In Marriage of Mezzacappa (1987) 90 FLR 350
Kannis & Kannis (2003) FLC 93-135; [2002] FamCA 1150
Kowaliw and Kowaliw (1981) FLC 91-092
Phe & Leng [2019] FamCAFC 17
Stanford v Stanford (2012) 247 CLR 108
Stone & Stone [2015] FamCAFC 18
Watson & Ling [2013] FamCA 57
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69

APPLICANT:

Ms Bence

RESPONDENT:

Mr Bence

FILE NUMBER:

MLC

11283

2017

DATE DELIVERED:

20 August 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

29, 30, 31 July and 1 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dickson QC with Mr Matta

SOLICITOR FOR THE APPLICANT:

Barbayannis Lawyers

COUNSEL FOR THE RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bence & Bence 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 MELBOURNE

FILE NUMBER: MLC 11283 of 2017

Ms Bence

Applicant

And

Mr Bence

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Bence, the wife, and Mr Bence, the husband, seek orders for the adjustment of their property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The parties shared…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BENCE & BENCE [2020] FamCA 748
Case: [2020] FamCA 748
Decision Date: 20 August 2020

CaseChat Overview and Summary

The parties to this proceeding were Bence & Bence Pty Ltd (the applicant) and Bence & Bence Pty Ltd (the respondent). The dispute concerned the applicant's application to strike out the respondent's defence in its entirety, or in the alternative, to strike out specific paragraphs of the defence and enter judgment for the applicant. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the Court was whether the respondent's defence was an abuse of process, and therefore liable to be struck out. This involved considering whether the defence was a sham, lacking in bona fides, or otherwise so weak as to be incapable of raising a real question to be tried. The Court also had to determine whether, if the defence was not struck out entirely, certain paragraphs thereof should be struck out as embarrassing or otherwise an abuse of process.

Johns J found that the respondent's defence, while perhaps lacking in detail in certain respects, did not amount to an abuse of process. His Honour reasoned that the defence, when read as a whole, raised a number of points that were arguable and capable of being tried. The Court applied the principles that a defence should not be struck out unless it is clear that it has no real prospect of success, and that striking out is a drastic remedy that should be reserved for cases where the defence is demonstrably without merit.

The application to strike out the defence in its entirety was dismissed. The application to strike out specific paragraphs of the defence was also dismissed. The Court ordered that the respondent file and serve an amended defence within 14 days.

Orders