Crafter and Crafter and Ors (No 2)

[2009] FamCA 1298

FAMILY COURT OF AUSTRALIA

CRAFTER & CRAFTER AND ORS (NO. 2) [2009] FamCA 1298

FAMILY LAW – PROPERTY – Procedural orders for filing amended applications

Family Law Act 1975 (Cth)

APPLICANT: Ms Crafter

1^ST RESPONDENT: Mr Crafter

2^ND RESPONDENT: M Crafter

3^RD RESPONDENT: W Crafter

4^TH RESPONDENT: D Pty Ltd

5^TH RESPONDENT: P Crafter

FILE NUMBER: ADC 142 of 2007

DATE DELIVERED: 10 December 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Strickland J

HEARING DATE: 10 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr K Tredrea

SOLICITOR FOR THE APPLICANT: Jo-Ann Milen & Associates

COUNSEL FOR THE RESPONDENT: Mr J McGinn

SOLICITOR FOR THE RESPONDENT: Lindley Solicitors

COUNSEL FOR 2^ND TO 5^TH RESPONDENTS: Mr G Stevens

SOLICITOR FOR 2^ND TO 5^TH RESPONDENTS: Stokes Legal

Orders

1. That the respondent husband have leave to amend his Amended Response filed on 19 November 2008 in accordance generally with the proposed amendments set out in the annexure to his affidavit filed on 24 November 2009 such amendment to be effected by the respondent husband filing and serving a Further Amended Response by 4:00pm on 18 December 2009.

2. That the time for the respondent husband to file and serve an affidavit responding to the affidavits of M Crafter, J Crafter, P Crafter and W Crafter be extended to 4:00pm on 18 December 2009.

3. That paragraph 4 of the Application in a Case filed by the respondent husband on 24 November 2009 be dismissed.

4. That the applications for costs by the 2^nd 3^rd 4^th and 5^th respondents and the applicant be reserved to the adjourned hearing date.

5. Leave is granted to the applicant wife and the 2^nd 3^rd 4^th and 5^th respondents to file and serve respectively an Amended Application and a Further Amended Response by 4:00pm on 3 February 2010.

6. That any further affidavits of evidence in chief to be relied upon by the applicant wife and the 2^nd 3^rd 4^th and 5^th respondents be filed and served by 4:00pm on 3 February 2010.

7. That further consideration of this case be adjourned to 9:00am on 11 February 2010.

IT IS NOTED that publication of this judgment under the pseudonym Crafter & Crafter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 142 of 2007

MS CRAFTER

Applicant

And

MR CRAFTER

First Respondent

M CRAFTER

Second Respondent

W CRAFTER

Third Respondent

D PTY LTD

Fourth Respondent

P CRAFTER

Fifth Respondent

EX TEMPORE REASONS

1. I have an application before me by the husband seeking leave to amend his response, also seeking an extension of time to file a responding affidavit and seeking an order for costs. That application, insofar as it seeks amendment of the response and costs, is opposed by the other respondents. Insofar as the amendment is sought, that application is also opposed by the applicant, the wife in this case.

2. I have before me the affidavit material to which I have been taken. Mr McGinn has complained about the lateness of an affidavit by Mr P Crafter, but Mr Stevens has put that into context, namely, that the affidavit of the husband was late. I can say that I have read the affidavits and the material, and I take everything in those affidavits into account in the decision I have made today.  Mr McGinn has handed up a helpful aide memoire providing dot points of his submissions in support of the application to amend.

3. My view about the amendment is that I propose to give leave to amend. A number of issues have been raised both in support of and in opposition to the application which has taken me back to the earlier pleadings and the affidavits filed by the parties.

4. My clear position though is that is an eleventh hour application. I cannot see how it could not have been brought earlier. I do not accept the submission that it’s a matter that was raised or the issue joined either in any previous pleading or affidavit, despite Mr McGinn’s valiant attempts to convince me otherwise, and albeit Mr McGinn has put on the table, and it’s on the transcript, that if the amendment is allowed, then his client will not be presenting any further evidence, affidavit or otherwise, including any documentary evidence, in support of the amended claim, and there is no further discovery to make. But, of course, that is only his position. With the other respondents their position is, on the basis of the amendment being made, they will need to consider, and probably will, file further affidavit material, and also instruct their expert, Mr C, to look at the issues that they say arise as a consequence of this amendment.

5. Now, at the level that this is being heard, namely, on an interlocutory application, I am not able to look at in any detail at the merits of the applications and responses that are before me. Obviously though, I have to look in general terms at that in assessing the application for an amendment, but to my mind, this is a case where I need to address the fact that this application is being made late in the piece, and I need to address any prejudice to the other respondents and the applicant if I allow the application. The prejudice relates to delay in this matter, and to costs issues, particularly in relation to the further evidence that the respondents say they will need to present to meet the amended claim.

6. In that regard, Mr Stevens does make an application for costs. My position in relation to that is that I am with him as the matter stands today. However, I propose to reserve the question of costs to await the outcome of the consequences of this amendment in terms of further affidavit material and further reports before I finally determine the issue of costs. I can see no basis whatsoever for the husband to have an order for costs, and I propose to dismiss his application set out in his application.

7. I note that I also have an application for costs of and incidental to the hearing today by the wife, but that’s sought to be reserved, and that’s what I will do in relation to that. In relation to the application to extend the time to file the responding affidavit, there is no opposition to that, and I will grant that leave.  The other issue before me today was to look at when this matter can be listed for trial. Unfortunately, my earlier confidence about the matter being heard in February or March has not come to pass, and I am looking at April to list this. I propose to list this, subject to checking some issues in my chambers, for eight days commencing on 12 April. There is only one expert at this stage in this case, and that’s Mr C, and inquiries will be made by Mr Stevens’s instructor as to Mr C’s availability in that timeframe.

8. I should also note that in relation to the B properties, it is agreed that the relevant value is $210,000.

9. In terms of then an adjourned date, I propose to look at a date in mid-February, when I would hope that any further affidavits by the other respondents have been filed and also any further report that might be obtained from Mr C would have been filed. Also, as Mr Stevens has said, there may be further discovery required of his clients, and if there is, that should be attended to by this adjourned date as well.

10. Finally, in looking at the precise wording of the amendment sought, Mr McGinn has conceded that there are some gaps, as I have described it, in the detail of the amendment, and that will need to be attended to when the amendment is formally made. 

I certify that the preceding 10 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 10 December 2009.

Associate