Berfield & Berfield
[2024] FedCFamC1F 193
•11 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Berfield & Berfield [2024] FedCFamC1F 193
File number(s): SYC 482 of 2021 Judgment of: HARPER J Date of judgment: 11 March 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where husband’s Amended Response was dismissed for non-compliance and final hearing listed to proceed as if undefended – Where husband made an application to rely upon his Amended Response and affidavit evidence on first day of final hearing – Where expert evidence was not available at the time of the hearing – Where expert evidence argued to be essential to a just and equitable determination of the relief sought on a final basis – Where wife sought adjournment of the final hearing – Where the final hearing proceeded to hear the oral evidence of the parties – Leave granted for the husband to rely upon his Amended Response and affidavit material – Where following the conclusion of the parties’ oral evidence the proceedings are to be stood over part heard to allow for the receipt of the valuation evidence. Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 11 March 2024 Place: Sydney Solicitor for the Applicant: Mr Reeve of Marsden Law Group Counsel for the First Respondent: Mr Duane Solicitor for the First Respondent: Agostino & Co Counsel for the Second and Third Respondents: Mr Katsinas Solicitor for the Second and Third Respondents: Simone Legal ORDERS
SYC 482 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B BERFIELD
Applicant
AND: MR C BERFIELD
First Respondent
MR D BERFIELD
Second Respondent
MS E BERFIELD
Third Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
11 MARCH 2024
THE COURT ORDERS THAT:
1.Order 1 of the orders made by Justice Campton on 8 March 2024 be vacated.
2.Leave be granted to the Applicant Wife (“the wife”) to apply orally during the trial in relation to any prejudice she claims cannot be cured by allowing further time in responding to the husband’s affidavit evidence.
3.The taking of oral evidence on the parties will commence at 10.00 am on 12 March 2024.
4.The solicitor for the wife prepare a proposed minute attaching an appropriate letter of instruction setting what Mr F is to value in relation to the property at Suburb G and the time by which such valuation can be completed.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Berfield & Berfield has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are property proceedings listed in a rolling list commencing on 11 March 2024 in the Sydney registry of this Court.
The applicant is the wife (“the wife”), and the first respondent is the husband (“the husband”). The second and third respondents are siblings, being brother and sister of the husband.
A central asset in contention in the proceedings is a parcel of real estate at Suburb G in New South Wales. The husband and his brother and sister are the registered proprietors. There is no dispute that the property was purchased in about 1998, well before the husband and wife formed a relationship.
There was also no dispute that at some point in the early 2000s, there were discussions to the effect that the property should be the subject of a subdivision. The terms and content of conversations surrounding subdivision are in contention, but there was no dispute that at some point, pegs were inserted into parts of the property, which roughly coincided with one proposed lot in a subdivision. Within the confines of the pegged boundaries, the husband and wife built what became the matrimonial home.
Part of the relief sought by the wife is based upon contentions that the property is subject to a constructive trust or other equitable relief by reason of a pleaded contract regarding subdivision, or representations that were made to her or in her presence said to ground a form of estoppel, leading to equitable relief. Of importance for present purposes is that in quantifying the relief she claims on a final basis, the wife argues, and it appeared to be not subject to great contention, that she needed expert evidence which valued the real estate on an improved basis and on the alternative basis that the improvements, being the matrimonial home, were ignored, both as at the date of the trial.
This evidence will support, ultimately, a submission that the difference in value represents at least part of her entitlement on a final basis. For that reason, expert evidence is said to be essential to a just and equitable determination of these proceedings.
As noted, the proceedings were listed to commence on 11 March 2024 in a rolling list. On 13 November 2023, orders were made for the preparation of affidavit material and valuation evidence for final hearing. As it transpired, the parties who were due to file their affidavit material by 5 February 2024 were all in default.
The second and third respondents filed their material on 27 February 2024 and the wife on 28 February 2024, over 20 days late in each case, but, it is important to note, approximately two weeks prior to the commencement of the final hearing. The husband, however, did not file any material until 8 March 2023, being the Friday prior to the commencement of the trial on Monday 11 March 2024. As a consequence of his non-compliance, Campton J, on 8 March 2024, struck out his response and made an order that the proceedings were to be heard as if undefended, at least by him. When the matter was called before me on 11 March 2024, two preliminary applications were made which required determination before the proceedings could progress.
The first was an application by the husband, in effect, to permit his Amended Response to be reinstated and for leave for him to rely upon the affidavit that he filed on 8 March 2024. In support of that application, he read the affidavit of Domenico Agostino filed 11 March 2024, who is the solicitor on the record for the respondent husband. That affidavit contains evidence in short compass in which the husband’s solicitor claims that the failure to comply by the husband was the responsibility of his lawyers, and that Mr Agostino himself was ill for a period of about four weeks in February 2024. This rendered him incapable of taking any steps to comply with the directions for final hearing.
Counsel for the husband candidly conceded that even before the illness of Mr Agostino, the husband was already in default. I note that the affidavit does not explain what happened between 11 November 2023 and the onset of Mr Agostino’s illness in February 2024. There was no explanation as to what steps, if any, were taken to prepare an affidavit for final hearing in that period. There is nothing to suggest that either the husband or his solicitor were labouring under any disability which made preparation for final hearing unachievable. In those circumstances, it would have been my clear conclusion that the application of the husband for reinstatement or at least to rely upon his affidavit should be refused. However, the matter has some unusual features.
As counsel for the husband pointed out, there were really two things to be considered. The first was the Amended Response, and they sought leave for that to be reinstated, irrespective of the fate of the affidavit. That was consented to by the second and third respondents, and not objected to in any strong fashion by the wife. In those circumstances, I will accede to that part of the application.
However, the affidavit presents more difficulties. The wife, justifiably in my view, says if that affidavit is received into evidence, it will embarrass her, because she was not in a position to consider it in any meaningful way between its service and the commencement, or the expected commencement, of the trial on 11 March 2024. That would have been a further reason to refuse the receipt of the husband's affidavit.
But returning to the somewhat unusual features of this case, the second application made on 11 March 2024 was by the applicant wife, who sought to have the matter adjourned. The basis for the adjournment was the absence of the essential expert evidence of valuation, referred to above.
I note here that my chambers received a communication from all parties on Thursday 7 March 2024, which embodied a joint application for the final hearing to be adjourned because of the absence of expert evidence. I note here also that the matter has had in excess of 25 procedural hearings in this Court, and the prospect of it consuming any more court or judicial time beyond what was absolutely necessary to bring it to finality would be extremely hard to justify.
When the wife’s application for adjournment was heard on 11 March 2024, the respondents all changed their positions and contended that the matter should proceed. Clearly, there is considerable force in the wife’s submission that this should be viewed as opportunistic, rather than as a seriously considered position.
Be that as it may, the Court is left in the position that there is an expensive parcel of real estate which will form an important part of final relief claimed by the wife and in which all the respondents have a significant interest. When pressed by the Court on the question of whether it will be simplest to order the property to be sold, all parties, including the wife, made clear that it was not their position that the property should be sold at all. The wife conceded that as a protection against any default in payment of a cash settlement in her favour, an order for sale might be considered. The fact is that, as she currently formulates her case, she does not seek a sale of the real estate. All of the respondents clearly do not want it to be sold. I infer that, although they now claim that the cost of subdivision is too high, they may well wish to proceed with a subdivision at some point in the future.
Accordingly, the Court is left in the position that although, all things being equal, it would be appropriate to refuse the husband leave to rely upon his affidavit served so late, the wife, in any event, wants an adjournment, which, if granted, clearly would ameliorate any prejudice that may flow from the late service of the affidavit.
In light of the position taken by all parties in relation to the parcel of real estate, I have come to the conclusion that the preferable course would be to permit enough time for the valuation evidence to be prepared. I was informed that a valuer who had already undertaken valuations in these proceedings in the past had received a joint letter of instruction to undertake a further valuation. But that letter of instruction did not include a request to value the property as at the date of trial, ignoring the improvements made by the construction of the matrimonial home.
The solicitor for the wife tendered evidence which demonstrated that at the beginning of February 2024, he sought to have the letter of instruction finalised and sent to Mr F of H Valuers.
But there was slow and at times obtuse responses by the solicitor for the husband. This may have been as a result of illness he was suffering at the time, but he was, I note, well enough to respond to emails. However, there is force in the submission of counsel for the husband that on any view, the necessary evidence which the wife identified in submissions before me today, that is, evidence of the value of the real estate without the improvements upon them, or assuming the improvements have not been made, was not something that anyone thought of instructing the valuer to prepare, even as late as 22 February 2024, when a joint letter of instruction to the expert was signed by the solicitors for all the parties.
I have come to the conclusion that the appropriate course is to permit the husband to rely upon his affidavit evidence, to commence the trial on 12 March 2024 for the purpose of taking the oral evidence of the parties already on affidavit. Subject to any application made by the wife for further time to consider the husband’s affidavit material, proceedings will then have to be adjourned part heard in order for the valuer to complete the valuation evidence more fully on all the bases which the parties require.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper delivered 11 March 2024. Associate:
Dated: 21 March 2024
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