Cao & Trong

Case [2019] FamCA 336


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
Achurch v R (2015) 253 CLR 141
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Applicant A26 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1050
Applicant NACT of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 316
B Pty Ltd v K (2008) 39 Fam LR 488
Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279
Botany Municipal Council v Department of Arts Sport & Environment (1992) 31 FCR 412
Bourke v Bourke (2010) 43 Fam LR 139
Buckeridge & Buckeridge (No 2) (1981) 7 Fam LR 958
Castanho v Brown & Root (UK) Ltd [1981] AC 557
Chen & Chen (No 2) [2017] FamCA 285
Christodoulou v Disney Enterprises Inc [2006] FCAFC 183
Collins & Collins (1987) 11 Fam LR 382
Commissioner of Taxation v Worsnop (2009) 40 Fam LR 552
Dare v Pulham (1982) 148 CLR 658
Deputy Commissioner of Taxation v Kliman (2002) 29 Fam LR 301
Dougherty v Dougherty (1987) 163 CLR 278
Dylan and Bryson [2018] FamCA 269
Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506
Friar & Friar (2014) 52 Fam LR 275
Gould & Birkbeck & Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490
Gould & Gould; Swire Investments Ltd (1993) 17 Fam LR 156
Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Ltd [2000] VSC 415
Martin v Martin (2015) 54 Fam LR 548
Miller v Cameron (1936) 54 CLR 572
NACU of 2001 v Minister for Immigration andMulticultural and Indigenous Affairs [2004] FCA 1444
Owners of Cargo of the Kronprinz v Owners of the Kronprinz (The Kronprinz and The Ardandhu) (1887) 12 App Cas 256
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
R v Essex Quarter Sessions Appeals Committee; Ex parte Larkin [1961] 3 All ER 930
R v Medway [1976] 1 All ER 527
R v Moore [1957] 2 All ER 703,
Rodgers & Rodgers (No 2) (2016)…

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AGLC
Cao & Trong [2019] FamCA 336
Case
[2019] FamCA 336
Decision Date

CaseChat Overview and Summary

In the matter of *Cao & Trong*, the Honourable Justice Wilson of the Supreme Court of Victoria considered an application by the husband to set aside a notice of discontinuance filed by himself in respect of the whole of the claims in his initiating application. The wife sought to have the husband's application dismissed.

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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