Clifton & Aspen (No 2) - [2023] FedCFamC1F 594

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Clifton & Aspen (No 2) [2023] FedCFamC1F 594

File number(s): SYC 760 of 2021

Judgment of: ALDRIDGE J

Date of judgment: 19 July 2023

Catchwords: FAMILY LAW – PROPERTY – Interim hearing – Application by the wife to amend her Points of Claim and Initiating Application – Where the relevant transaction is sought to be set aside pursuant to s 106B of the Family Law Act 1975 (Cth) – Where the respondents have brought an application to strike out significant parts of the documents on the grounds that the amendments went beyond the leave which was granted – Where some paragraphs of the amended Points of Claim and Initiating Application are stuck out – Applications are otherwise dismissed.

Legislation: Family Law Act 1975 (Cth) s 106B

Cases cited: Clifton & Aspen [2023] FedCFamC1F 376

Division: Division 1 First Instance

Number of paragraphs: 50

Date of hearing: 11 July 2023

Place: Sydney

Counsel for the Applicant: Mr Sirtes SC with Mr Auld

Solicitor for the Applicant: Delaney Lawyers

Counsel for the First Respondent: Mr Hollo

Solicitor for the First Respondent: Pearson Emerson

Counsel for the Second and Third Respondents: Mr Sulan SC with Ms Jeliba

Solicitor for the Second and Third Respondents: Barkus Doolan Winning
ORDERS

SYC 760 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CLIFTON

Applicant

AND:
MR B ASPEN

First Respondent

D PTY LTD

Second Respondent

MR C ASPEN

Third Respondent

ORDER MADE BY:

ALDRIDGE J

DATE OF ORDER:

19 JULY 2023

THE COURT ORDERS THAT:
1.Paragraphs 82, 86–111 inclusive of the Second Further Amended Points of Claim filed on 25 June 2023 are struck out.
2.The amendments to paragraph 14 of the Second Further Amended Initiating Application filed on 25 June 2023 are struck out.
3.The applicant’s Application in Proceeding filed 8 July 2023, the second respondent’s Application in a Proceeding filed 3 July 2023, the third respondent’s Application in a Proceeding filed 3 July 2023 and the first respondent’s Application in a Proceeding filed 4 July 2023 are otherwise dismissed.

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 Clifton & Aspen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:

This is a further application by the applicant wife…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clifton & Aspen (No 2)

Details

AGLC: Clifton & Aspen (No 2) [2023] FedCFamC1F 594
Case: [2023] FedCFamC1F 594
Decision Date

CaseChat Overview and Summary

The case of Clifton v Aspen [2023] FedCFamC1F 594 involved an application by the wife to amend her Points of Claim and Initiating Application in family law property proceedings. The application was to include a claim that K Pty Ltd, a company owned and controlled by the husband, had disposed of its equitable interest in land to or in favour of V1 Pty Ltd, a company jointly owned by Mr T and, at that time, interests associated with the husband’s mother. The transaction was sought to be set aside under s 106B of the Family Law Act 1975 (Cth). The respondents sought to strike out significant parts of the wife's amended documents on the grounds that the amendments went beyond the leave granted. The court was required to determine whether the proposed amendments were permissible under the circumstances.

The court found that the leave granted on 15 May 2023 covered only one block of land excised from Lots EE1 and EE2, specifically the land upon which the V4 Facility now stands, Lot...40/DP...73. The proposed amendments sought to include claims regarding transactions that occurred in 2019 and 2020, which were not covered by the leave. The court considered that the wife had been hampered by inadequate and late disclosure of documents by the husband but held that this did not justify an amendment if the matters were known to the wife at the time of the application for amendment. The court further held that the late disclosed document, a letter from the lawyers for K Pty Ltd dated 23 February 2016, did not support the claim that K Pty Ltd had an equitable interest in the entirety of Lots EE1 and EE2. The court found that the proposed amendments as to the 2019 and 2020 transactions were not permissible as they went beyond the scope of the leave granted. The court also struck out a pleading in the alternative that was considered speculative and redundant. The amendment relating to the extramarital affair was allowed as it was relevant to a claim under s 106B.

The court made an order striking out paragraphs 82, 86–111 inclusive of the Second Further Amended Points of Claim and the amendments to paragraph 14 of the Second Further Amended Initiating Application. The Applications in a Proceeding filed by the applicant, the second respondent, the third respondent and the first respondent were otherwise dismissed.

Orders