Cook and Cook (No. 6)

[2010] FamCA 810

FAMILY COURT OF AUSTRALIA

COOK & COOK (NO. 6) [2010] FamCA 810

FAMILY LAW – PRACTICE AND PROCEDURE – Application to re-open case and adduce further evidence – Opposed by other party – Cross application to adduce other facts and evidence – Complex financial and legal circumstances that have arisen post hearing but prior to judgment – Appointment of liquidator and receiver/manager to property development entities – Sale of property not yet settled – Personal guarantees given by husband – Supreme Court proceedings instituted by mortgagee and defence and set-off filed by husband and others – Wife in difficult financial circumstances – Examination of financial embarrassment and prejudice to wife and her other ongoing concerns – Issue of finality of proceedings and cost and delay to date – Overall assessment of the basis upon which a case is re-opened and evidence adduced – Overall justice to the parties

Family Law Act 1975 (Cth)

Watson v Metropolitan (Perth) Passenger Transport Trust [1985] WAR 88
Murray v Figge (1974) 4 ALR 612
Reid v Brett (2005) VSC 18
Smith v NSW Bar Association (1992) HCA 36
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Gaskin v Ollerenshaw [2010] NSWSC 788
Australian Securities and Investments Commission v Rich & Ors [2006] NSWSC 826
Emmett & Emmett [2010] FamCA 56;
Aheb & Aheb (No. 3) [2009] FamCA 524
Summitt & Summitt & Ors [2009] FamCA 365
EB v CT (No. 2) [2008] QSC 306
Gelley and Gelley (No. 1) (1992) 15 FamLR 747

APPLICANT: MS COOK

RESPONDENT: MR COOK

FILE NUMBER: MLF 1997 of 2003

DATE DELIVERED: 14 SEPTEMBER 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 30 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SPICER

SOLICITOR FOR THE APPLICANT: KENNEDY WISEWOULDS

COUNSEL FOR THE RESPONDENT: MR ST JOHN SC

SOLICITOR FOR THE RESPONDENT: MARSHALLS & DENT

Orders

IT IS ORDERED:

1. THAT leave be granted to the husband to re-open his case and adduce further evidence by affidavit(s) upon the commercial, financial and legal issues and outcomes of the XC project, now in liquidation and under receiver management.

2. THAT the wife be granted leave to file evidence on affidavit in response thereto.

3. THAT liberty be reserved to both parties to make application to file and serve further and relevant affidavit evidence in the proceedings.

4. THAT the proceedings be relisted for mention and case management by the husband before Young J, upon proper notice given to the Court and the other party, on a date within 45 days after the settlement of the sale of the XC land.

5. THAT the husband’s Application in a Case filed 8 July 2010 and the wife’s Cross Application in a Case filed 10 August 2010 be otherwise dismissed (save that the wife be granted leave to re-apply for the orders identified in paragraph 3 of her orders sought).

6. RESERVE liberty to both parties to apply generally upon proper material filed and served.

7. THAT within ten (10) days of the date hereof each…