Brayton & Brayton (No 3)

Case [2022] FedCFamC1F 622

Federal Circuit and Family Court of Australia

(DIVISION 1)

Brayton & Brayton (No 3) [2022] FedCFamC1F 622

File number(s): SYC 5516 of 2017
Judgment of: WILSON J
Date of judgment: 22 August 2022
Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING LIST – application to vacate trial date – application to vacate trial dismissed – application for costs pursuant to s 117(2A)(e) of the Family Law Act –  application to vacate trial was wholly unsuccessful – costs warded on a party-party basis.  
Legislation: Family Law Act 1975 (Cth) ss 117(2) and 117(2A)(e)
Cases cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FamCAFC 104

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Marvel v Marvel (2010) 43 Fam LR 348

Redmond & Redmond [2014] FamCAFC 155

Division: Division 1 First Instance
Number of paragraphs: 82
Date of last submission/s: 22 August 2022
Date of hearing: 16, 17, 18 and 22 August 2022
Place: Melbourne
Counsel for the Applicant: Mr G. Richardson SC
Solicitor for the Applicant: Barkus Doolan
Counsel for the Respondents: Mr E. Cox SC
Solicitor for the Respondents: Landerer & Company Solicitors
Counsel for the Respondents: Mr B. Roberts QC and Mr M. Wong
Solicitor for the Respondents: WRP Legal & Advisory

ORDERS

SYC 5516 of 2017

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

MS BRAYTON

Applicant
AND:

MR BRAYTON

First Respondent

MS AA BRAYTON

Second Respondent

MR TOBLER (and others named in the Schedule)

Third Respondent

order made by:

WILSON J

DATE OF ORDER:

22 AUGUST 2022

THE COURT ORDERS THAT:

1.On or before 4:00pm on 25 August 2022, the husband must complete, file and serve his trial affidavit.

2.On or before 4:00pm on 30 August 2022, all respondents other than the husband must file and serve all trial affidavits other than expert evidence.

3.Pursuant to s 117(2) of the Family Law Act, the respondents must pay the applicant’s costs of and incidental to the appearances on 16, 17, 18 and 22 August 2022 on a party-party basis and I certify that the appearance of Senior Counsel on those dates was appropriate.

4.The further hearing of this proceeding is adjourned to 10:00am on 24 August 2022 and thereafter at 9:30am on 31 August 2022 for directions in the Major Complex Financial Proceeding List.

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…

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Details
AGLC
Brayton & Brayton (No 3) [2022] FedCFamC1F 622
Case
[2022] FedCFamC1F 622
Decision Date

CaseChat Overview and Summary

In the matter of Brayton & Brayton (No 3), the applicant, Ms Brayton, sought to vacate the trial date in a complex family law financial dispute. The respondents, including the husband, Mr Brayton, and other parties, opposed the application. The primary issue before the court was whether the trial date should be vacated due to the absence of expert evidence and the late reintroduction of certain claims by Ms Brayton. The court also considered the impact of the absence of expert evidence on the ability of the respondents to adequately prepare for trial.

The court found that the application to vacate the trial date was wholly unsuccessful. It was noted that despite a conference being held, no expert evidence was produced. The court held that the husband, who had some legal training and was an experienced businessman, should have anticipated the need for expert evidence and investigated the taxation consequences of the orders well before the trial date. The court further found that the absence of expert evidence did not justify vacating the trial date, as evidence of factual matters could still be adduced. The court rejected the argument that the credit of the respondents would be compromised without expert evidence.

As a result, the court dismissed the application to vacate the trial date and ordered that all respondents other than the husband must file and serve all trial affidavits other than expert evidence by a specified date. The court also ordered the respondents to pay the applicant's costs of the appearances on certain dates on a party-party basis. The further hearing of the proceeding was adjourned for directions in the Major Complex Financial Proceeding List.

Orders

Orders of the court

SYC 5516 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BRAYTON

Applicant

AND:

MR BRAYTON

First Respondent

MS AA BRAYTON

Second Respondent

MR TOBLER (and others named in the Schedule)

Third Respondent

order made by:

WILSON J

DATE OF ORDER:

22 AUGUST 2022

THE COURT ORDERS THAT:

1. On or before 4:00pm on 25 August 2022, the husband must complete, file and serve his trial affidavit.

2. On or before 4:00pm on 30 August 2022, all respondents other than the husband must file and serve all trial affidavits other than expert evidence.

3. Pursuant to s 117(2) of the Family Law Act, the respondents must pay the applicant’s costs of and incidental to the appearances on 16, 17, 18 and 22 August 2022 on a party-party basis and I certify that the appearance of Senior Counsel on those dates was appropriate.

4. The further hearing of this proceeding is adjourned to 10:00am on 24 August 2022 and thereafter at 9:30am on 31 August 2022 for directions in the Major Complex Financial Proceeding List.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

That enlivened the issues Mr Roberts QC raised, with which Mr Cox SC agreed, about the existence of the expert evidence as a reason for vacating the trial date. To that I now turn.The state of the expert evidence It was common ground that Ms BX conferred in accordance with my request made on 9 August 2022. Despite any aspiration that such a conference may speed up the production of expert evidence, nothing emerged. The affidavit of Mr CK sworn 2 August 2022, on which Mr Roberts relied, was a mix of submission and fact. Only factual matters are the proper province of affidavits, at least, in accordance with the Federal Circuit Court and Family Court of Australia (Family Law Rules) 2021. Mr CK made that affidavit in support of his clients’ application to vacate the trial of 5 September 2022. Some of the more pertinent issues (not correctly called facts) set out in that affidavit were as follows –(a)on 25 July 2022 the wife sought to rely on her fourth further amended initiating application pursuant to which she sought to reintroduce claims under s 85A and s 90AE of the Family Law Act for each trustee to pay the wife an amount totalling $350,000,000 "to be determined following receipt of the single-expert report of valuations"; (b)between 11 May and 25 July 2022, Mr CK's clients prepared for trial on the basis that no monetary relief was sought; (c)his clients cannot now prepare for trial in circumstances where a monetary claim is now being made in an amount to be determined following receipt of single expert valuations collectively totalling $350,000,000; (d)on 25 July 2022, the wife's fifth further amended initiating application was brought seeking joinder of the children; (e)Mr CK's client cannot comply with the orders for the filing of trial affidavits in accordance with the orders made on 15 June 2022 if the wife has leave to rely on the fifth further amended initiating application; and (f)as at the date on which that affidavit was filed, outstanding single-expert reports were required from Ms BX, BU Company, CL Company, BW Real Estate, BV Company and one other person who had not been identified so as to value furniture and artwork. Mr CK made a collection of assertions in the balance of his affidavit. They included the assertion that his clients were unable to comply with orders made on 15 June 2022 if the wife were to be granted leave to rely on the fifth further amended initiating application. No reason was offered for that contention. In paragraph 28 of his affidavit he asserted, without stating why, there was no prospect of matters being properly prepared by 5 September 2022. He alluded to the taxation effect of the impact of s 90AE(4) of the Family Law Act. He asserted he needed expert evidence on that matter without which he asserted his clients were unfairly prejudiced. In paragraph 32 of his affidavit he made the following sweeping and unsubstantiated assertions – The late amendment also now gives rise to a specific consideration under subsection 90AE(4)(f) of the Act that the Court must have regard to, being the economic, legal or other capacity of the Trustees to comply with any other order made against them. That raises the issue of that the likely quantum of the section 79 order may be. As formulated in paragraph 6 of the [fourth further amended initiating application], the order sought by the Wife is $350,000,000. Based upon my understanding of the values of the assets available to the Trustees, that relief is wholly unrealistic. This inhibits my ability to properly address the matters referred to in paragraph 27 above.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I found the submissions advanced by the respondents as supporting BV Company’s deferral of its report as being of little persuasive value.Consideration This case remains fixed for trial commencing on 5 September 2022. No order will be made at this time vacating the commencement date of the trial. The following is my reasoning for that outcome. Whatever may be said of the wisdom of a romantic relationship forming between a client and his solicitor during the currency of the solicitor's retainer by that client, laypersons usually see that such a course is fraught with problems. In this case, the husband has some legal training. He is not an uninformed or ignorant layperson. To the contrary, he is an extremely successful businessman who, as it happens, is legally trained. If a romantic relationship formed between him and Ms CF, it is not easily discerned from the text exchanges that were put in evidence. Ms CF pledged her love for the husband. Whether that was reciprocated was unclear. For the purposes of this application it is not necessary for me to decide that and so I do not. The retainer of Ms CF came to an end. But when she was retained, orders had been made and were operative commanding the husband to file and serve his trial material. Some steps, but not all, had been taken to prepare that material. The husband adopted that approach at his peril. The taxation consequences of orders being made in this case along particular lines should have been the subject of investigation by the husband well before now, especially when the case included claims under s 90AE and s 85A. I am unable to accept that it is legitimate for the husband to endeavour to vacate the trial of this case on the basis claimed namely ss 85A and 90AE have been reinstated into the relief sought by the wife. Those claims were advanced earlier. The husband should have earlier ascertained his position in fact and in law on the issue. Equally, I am unable to accept that the husband cannot now file his trial material unless he sees dollar precise expert evidence. Evidence of factual matters can and must be adduced by the husband and for that matter, by the respondents represented by Mr Roberts. If that evidence requires correction or revisiting once the expert evidence is filed, then the respondents can apply for leave to adduce further evidence. But it is altogether too general and imprecise for a submission to be made and to be taken seriously that the respondents’ credit will be compromised if they are forced to file their evidence ahead of expert evidence. I reject that submission out of hand. I order all respondents other than the husband to file and serve all affidavits on which they rely other than expert evidence by 4:00pm on 30 August 2022. They have had an abundance of time within which to have done so before now. A great deal of truth exists in Mr Richardson's submissions that the respondents have spent longer telling me why something cannot be done than is involved in the task of doing what has been ordered to be done.