CONNOR & LANGTON

[2011] FamCA 1091

FAMILY COURT OF AUSTRALIA

CONNOR & LANGTON [2011] FamCA 1091

FAMILY LAW – FINANCIAL – Adjournment

Family Law Act 1975 (Cth)

APPLICANT: Ms Connor

RESPONDENT: Mr Langton

FILE NUMBER: SYC 5094 of 2008

DATE DELIVERED: 21 June 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 21 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

COUNSEL FOR THE RESPONDENT: Mr Grieve QC

Orders

1. The proceedings be adjourned to a date to be fixed.

2. The wife’s costs of the adjournment are reserved.

3. The matter is adjourned to chambers before me, Justice Le Poer Trench on 29 June 2011 at 8am for the making of directions to progress the matter to a further hearing.

IT IS NOTED that publication of this judgment under the pseudonym Connor & Langton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC 5094 of 2008

Ms Connor

Applicant

And

Mr Langton

Respondent

REASONS FOR JUDGMENT

1. On the second day of the final hearing the respondent husband applied for an adjournment of the hearing, in order that he might obtain and provide to the Court and/or the single expert, Mr BB, evidence contrary to the evidence contained in Mr BB’s report dated 17 June 2011.

2. In support of the application, the husband relies on an affidavit by his solicitor sworn and filed today. He also tenders further copies of correspondence and a copy of an email from Ms J to the husband and his counsel, that email dated 20 June 2011.  The application is opposed by the applicant wife.

3. The husband submits that without an adjournment, the prospect of a substantial injustice arising to the husband is significantly increased.  The husband’s counsel will be unable to cross-examine the single expert in any meaningful manner, and in a manner required, because the husband’s counsel is not armed with any of the relevant information necessary for that task.  That information or evidence will have to come from the husband’s accountant as the principal source, and probably from other sources as well.  The husband submits that the accounts for the company, O Pty Limited, are confusing in their current form and, at least in one respect, are erroneous.  It is submitted on behalf of the husband that any costs associated with the adjournment should be reserved until all the facts can be put before the Court and tested. 

4. The wife opposes the adjournment and wishes to proceed.  She says the husband has had ample opportunity to put all necessary evidence before the Court, or before the single expert, and provide same to his counsel, if necessary.  The wife says any adjournment cannot be laid at her feet.  If granted, the wife argues that it is entirely the fault of the husband and that he should pay the costs lost by her.  She also complains that the adjournment, if granted, will mean in a practical sense that it will be a considerable time before a further hearing can be scheduled and she will be denied her property settlement and a release from this litigation. 

Conclusion

1. Regretfully, it seems the Court, on balance, is required to adjourn the hearing.  The prejudice to the wife of an adjournment is delay and cost.  She has not illustrated an urgent financial need to conclude the hearing.  She has substantial assets in her possession and a substantial income.  She and the husband are both considerably involved in the care and support of their children.  The injustice which potentially flows to the husband of refusing the adjournment is very considerable.  The single expert has opined that the husband’s loan account has an immediate and substantial value.  The expert has further opined that the discounted value of the future loan repayment to the husband is some $1,591,000. He has opined that the husband had a contingent benefit worth $883,000 in the form of a carried forward tax loss.  Should the expert be proved wrong in those opinions, it would probably have a considerable impact on the range of possible outcomes or orders which may arise from the hearing. 

2. Therefore, on balance, the potential injustice to the husband outweighs the impact of delay and cost on the wife.  The wife’s loss of costs may be recompensed by an order for costs, should that be found to be appropriate.  I propose, therefore, to order that the proceedings be adjourned to a date to be fixed.

Costs

1. The wife applies for an order that the husband pay the costs of the adjournment. The husband opposes that application and applies for costs to be reserved. Determination of any costs application is made pursuant to section 117 of the Family Law Act 1975(Cth).  Subsection (2A) sets out the matters to be taken into account when considering a costs application.  In this case it is clear that the wife relies upon the husband’s conduct as a principal ground to base a costs order in her favour.  It is reasonable to conclude that if an order for costs is made it would give rise to a requirement for the husband to pay a significant amount of money.  If an order is made now, and later, following a hearing of all the evidence where matters may be tested, it becomes apparent that such an order should not have been made, it is very difficult in those circumstances to recompense that error.   In the circumstances, I consider, on balance, the wife’s costs of the adjournment should be reserved. I will so order.

2. It remains now for the legal representatives to frame any directions which need to be made to progress the matter to a point where it might return for further hearing.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 21 June 2011.

Associate:

Date:  18 July 2011