FAMILY COURT OF AUSTRALIA
| CAO & TRONG | [2019] FamCA 336 |
| FAMILY LAW – PRACTICE AND PROCEDURE – notice of discontinuance – setting aside notice – notice filed by applicant in respect of the whole of the claims in his initiating application – grounds for setting aside notice of discontinuation – none prescribed by Family Law Rules – extensive review of authorities – discretionary consideration. FAMILY LAW – PLEADINGS – not limited to third party claims – nature and purpose of pleadings – utility of statement of claim in a case of complex factual or legal contentions – extensive review of authorities. FAMILY LAW – ORDERS – Self-Executing Orders – trial date vacated – husband ordered to file statement of claim within certain time – if he fails to comply wife’s application will be heard on an undefended basis. |
| Family Law Act (Cth) 1958, ss 38, 79, 119 Family Law Rules (Cth) 2004 ,r 1.09 Property Law Act (Vic) 1958, s 172 |
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- AGLC
- Cao & Trong [2019] FamCA 336
- Case
- [2019] FamCA 336
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant the husband's application to set aside his own notice of discontinuance, and if so, what orders should be made to progress the proceedings. This involved considering the nature and purpose of pleadings, particularly the utility of a statement of claim in cases involving complex factual or legal contentions, and the discretionary considerations applicable to setting aside a notice of discontinuance in the absence of prescribed grounds in the Family Law Rules.
Justice Wilson reasoned that while the Family Law Rules do not prescribe specific grounds for setting aside a notice of discontinuance, the court retains a broad discretion to do so. The court reviewed extensive authorities on the nature and purpose of pleadings, emphasizing the importance of a detailed statement of claim in complex matters to ensure clarity and fairness. The court ultimately granted the husband's application to set aside the notice of discontinuance, ordering him to file a statement of claim with full particulars of his allegations, particularly concerning equitable claims in real and personal property, by a specified date. The court also made orders for a partial property settlement payment to the wife, vacated the trial date, and stipulated that the proceeding would proceed on an undefended basis if the husband failed to comply with the filing requirements.
Orders
Orders of the court
1.
The husband’s application to set aside the notice of discontinuance filed 7 November 2017 is granted.
2.
On or before 4pm 17 June 2019 the husband is to file a statement of claim in accordance with the Rules of the Supreme Court of Victoria setting out with full and proper particulars all allegations of facts on which he relies to support his claims, especially equitable clams, in real and personal property including choses in action.
3.
Payment is to be made, from the controlled monies account, to the wife’s solicitors of the sum of $317 946.52, such sum to be released within seven days and such sum to be characterised as a partial property settlement order.
4.
On or before 4pm on 3 June 2019 the parties bring in a minute that gives effect to these orders.
5.
The trial date of 12 June 2019 is vacated.
6.
This proceeding is to remain in my docket.
7.
This proceeding will be heard for directions at 10am on 19 June 2019.
8.
If the husband fails to provide a statement of claim in accordance with these orders (as to content and by the date ordered) this proceeding will go forward to trial on an undefended basis.
9.
The further hearing on the question costs of and incidental to this application to will be adjourned to 19 June 2019.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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