FAMILY LAW – ALTERATION OF PROPERTY INTERESTS – three day trial consumed largely by settlement negotiations – parties announce a resolution at the end of the second day of the trial – on the morning of the third day the parties announce the case is not resolved – applicant applying to amend – applicant seeking time to adduce further evidence to support amendment application – directions given.
D. Hayton, P. Matthews & C. Mitchell, Underhill and Hayton: Law of Trusts and Trustees (LexisNexis, 19th ed, 2016) The Honourable J. D. Heydon AC QC & The Honourable Justice M. J. Leeming, Jacobs' Law of Trusts in Australia (LexisNexis, 8th ed, 2016)
APPLICANT:
Ms Coles
RESPONDENT:
Mr Coles
FILE NUMBER:
SYC
5785
of
2018
DIRECTIONS MADE:
19 March 2021
REASONS GIVEN:
22 March 2021
PLACE DELIVERED:
Sydney
PLACE HEARD:
Sydney
JUDGMENT OF:
Wilson J
HEARING DATE:
17, 18 & 19 March 2021
REPRESENTATION
COUNSEL FOR THE APPLICANT:
Mr L. O’Reilly
SOLICITOR FOR THE APPLICANT:
Jo-Anna F S Moy Solicitor
COUNSEL FOR THE RESPONDENT:
Mr P. Batey
SOLICITOR FOR THE RESPONDENT:
ATW Family Law
Orders
Leave is granted to the parties to file and serve any further subpoenae on or before 4:00pm on 26 March 2021 and the inspection of documentation produced in response thereto must be completed by 4:00pm on 30 April 2021.
On or before 4:00pm on Friday 14 May 2021 the…
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.
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Details
AGLC
COLES & COLES [2021] FamCA 144
Case
[2021] FamCA 144
Decision Date
CaseChat Overview and Summary
In the proceeding before Wilson J, the parties were Coles and Coles. The nature of the dispute and the specific legal claims are not detailed in the provided text, which focuses solely on procedural orders.
The court was required to determine the timeline for the filing and service of further subpoenae, inspection of documents, and affidavit material by both the applicant and the respondent. Additionally, the court needed to set dates for the filing of written submissions and schedule a further hearing.
Wilson J granted leave for the parties to issue further subpoenae and set deadlines for their response and the inspection of produced documents. The court also established a timetable for the exchange of further affidavit evidence and the filing of written submissions by both the applicant and the respondent. A further hearing was adjourned for an interim defended hearing, with leave granted to either party to relist the proceeding on seven days' notice for any variation to prior orders. Costs thrown away by reason of an amendment application were reserved.
Orders
Orders of the court
1.
Leave is granted to the parties to file and serve any further subpoenae on or before 4:00pm on 26 March 2021 and the inspection of documentation produced in response thereto must be completed by 4:00pm on 30 April 2021.
2.
On or before 4:00pm on Friday 14 May 2021 the applicant must file and serve any further affidavit material on which she wishes to rely.
3.
On or before 4:00pm on Friday 28 May 2021 the respondent must file and serve any further affidavit material on which he wishes to rely in reply.
4.
On or before 4:00pm on Monday 7 June 2021 the applicant must file and serve written submissions.
5.
On or before 4:00pm on Thursday 17 June 2021 the applicant must file and serve written submissions.
6.
The further hearing of this proceeding is adjourned to 10:00am on Thursday 24 June 2021 for an interim defended hearing.
7.
Leave is granted to either party to relist this proceeding before me on seven days’ notice in respect of any variation to the orders of Henderson J made on 6 June 2019.
8.
I reserve costs thrown away by reason of the amendment application on 24 June 2021.
Note: The form of the order is subject to the entry of the order in the Court’s records.