CAO & TRONG
[2021] FamCA 316
•13 May 2021
FAMILY COURT OF AUSTRALIA
| CAO & TRONG | [2021] FamCA 316 |
| FAMILY LAW – INTERIM PROPERTY ORDER – fourth application for funding – no new circumstances – property settlement unlikely to be reversible – part heard trial recommencing in 10 days – application refused. |
| Armington & Armington and Ors (No. 2) [2020] FamCA 751 Tomlinson v Ramsey Food Processing Pty Ltd (2016) 256 CLR 507 Verdon & Verdon [2020] FamCA 824 |
| APPLICANT: | Mr Cao |
| RESPONDENT: | Ms Trong |
| INTERVENOR | Deputy Commissioner of Taxation |
| FILE NUMBER: | MLC | 2555 | of | 2016 |
| DATE DELIVERED: | 13 May 2021 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 13 May 2021 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Dr R. Ingleby |
| SOLICITOR FOR THE APPLICANT: | Westminster Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr D. Carlile |
| SOLICITOR FOR THE RESPONDENT: | JK Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr P. Sest QC with Mr H. Mazloum |
| SOLICITOR FOR THE INTERVENOR: | Australian Government Solicitor |
Orders
I dismiss the wife’s amended application in a case filed on 13 May 2021.
The resumption of this part heard trial remains fixed for a further nine days on 24 May 2021.
I reserve the costs of today of all parties including Senior Counsel for the trial.
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 Cao & Trong 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 2555 of 2016
| Mr Cao |
Applicant
And
| Ms Trong |
Respondent
And
| Deputy Commission of Taxation |
Intervenor
EX TEMPORE REASONS FOR JUDGMENT
The resumption of the trial of this proceeding was fixed part heard to recommence on 24 May 2021, one business day and a week from today. An application for funding was made by the wife. That was the fourth application for funding. The last one, dealt with by my reasons given on 9 December 2019 was refused.
For there to be a proper basis for this application it was necessary for the wife to advance cogent evidence of new circumstances. In my view none was evidenced on this application.
On the hearing of the last application one of the main reasons for the refusal of the application was the fact that on the arithmetic in this case any order for a part property settlement was unlikely to be reversible.
The wife said new circumstances existed, namely a new sum was sought. She contended among other things that she had to pay the previous counsel’s fees and a new date 14 months after the part heard proceeding had elapsed.
It is abundantly plain to me that reversibility of any part payment remains in issue. The unimpeachable claim advanced by the Deputy Commissioner of Taxation is for $3,237,778.26.
It is highly unlikely that that sum will be reversible. The wife said that the husband earns a vast sum of money. She relied on an inference to that effect. It seemed to me that the inference that she relied on was no more than a choice of guesses and little more.
No real explanation was provided for the unavailability of counsel that had previously been retained nor was an explanation given as to why another set of fees likely to be incurred, warranted or justified the making of the order sought.
The wife squarely put her case as an interim property order rather than a litigation funding application. I surveyed the learning on the point in Verdon & Verdon.[1] It was prudent that the wife cast this case as an interim property application and not otherwise.
[1][2020] FamCA 824.
The wife based her application on the suggestion that funds existed that had not been disclosed. I confess to have found that argument to be difficult to follow at a factual level and I am unwilling to draw the inference that she contended.
In Armington & Armington and Ors (No. 2)[2] I surveyed the learning on the need for finality in litigation of controversies, especially interlocutory controversies. One of the lead cases on point is the High Court’s decision in Tomlinson v Ramsey Food Processing Pty Ltd.[3] That appeared to me to be apposite in the circumstances of this case.
[2][2020] FamCA 751.
[3](2016) 256 CLR 507.
In my view this is a re-agitation of a point already determined adversely to the wife. I do not share Mr Carlile’s enthusiasm, although very well argued, for the existence of new circumstances warranting the granting of the orders sought.
I am not persuaded that new grounds have been made out.
To the contrary I am persuaded that any further interim property order will not be reversible. In those circumstances I dismiss the wife’s application. This part heard proceeding remains listed for trial for a further nine days commencing on 24 May 2021.
I reserve the costs of today of all parties including Senior Counsel for the trial.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 13 May 2021.
Associate:
Date: 18 May 2021
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