FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Curtain & Curtain [2022] FedCFamC1F 186
File number(s): ADC 4409 of 2013 Judgment of: MEAD J Date of judgment: 25 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Application by husband for summary dismissal of application brought by the wife pursuant to provisions of section 79A(1)(a) of the Family Law Act 1975 – Where it is sought that a final order for settlement of property made in April 2016 be set aside – Where it is submitted that the wife’s documents prima facie do not disclose any fraud or suppression of evidence – Where it is submitted that if the documents do disclose any fraud or suppression of evidence in any event it did not result in a miscarriage of justice – Where it is submitted that there is no reasonable chance of success – Where the wife submits that the husband did not properly disclose his interest in an entity – Where the husband submits that the wife had possession and/or access to documents in question – Where it is found that the wife has established that the husband failed to disclose evidence – Where it is found that the husband intentionally misled the wife and the Court – where the Court is unable to be satisfied that the wife has no reasonable prospect of success – Where the application for summary dismissal is dismissed Legislation: Family Law Act 1975 (Cth) ss 45A, 45A(2), 45A(3), 79, 79A, 79A(1)(a)
Family Law Rules 2004 (Cth) rr 10.12(d), 10.14(a)
Cases cited: Barker & Barker [2007] FamCA 13
Bigg v Suzi (1998) FLC 92-799
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
Ritter & Ritter & Anor (2020) FLC 93-957
Division: Division 1 First Instance Number of paragraphs: 84 Date of hearing: 23-24 August 2021 Place: Adelaide Counsel for the Applicant: Ms Pyke QC Solicitor for the Applicant: Jordan & Fowler Family Lawyers Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: C M Tucker & Associates ORDERS
ADC 4409 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CURTAIN
Applicant
AND: MR CURTAIN
Respondent
ORDER MADE BY:
MEAD J
DATE OF ORDER:
25 MARCH 2022
THE COURT ORDERS THAT:
1.That the Application in a Case filed herein on 18 January 2021 be dismissed.
2.That the question of costs be reserved.
3.That trial directions be adjourned to 6 May 2022 at 9.15am.
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…
Continue reading Curtain & Curtain
Sign in free to access the full text
Details
- AGLC
- Curtain & Curtain [2022] FedCFamC1F 186
- Case
- [2022] FedCFamC1F 186
- Decision Date
CaseChat Overview and Summary
The case of Curtain & Curtain involved the husband's application to summarily dismiss the wife's substantial application for the Court to set aside the final order for settlement of property made by Berman J on 15 July 2016 and make a new order. The wife's application contended that the husband had failed to properly disclose his interest in the Q Trust and had concealed the real nature of his equitable interest prior to the 2016 trial, leading to a miscarriage of justice. The central legal issue was whether the wife's application had a reasonable prospect of success. The husband argued that there was no fraud, suppression of evidence, or material non-disclosure, while the wife contended that the husband's concealment warranted a new trial. The Court considered the evidence and submissions from both parties, particularly focusing on the provisions of s 45A(2) and s 45A(3) of the Act and r 10.12(d) and r 10.14(a) of the Rules. After careful consideration, the Court found that the wife's application presented a reasonable argument and a good chance of success, primarily due to the husband's failure to disclose the nature and value of his interest in the Q Trust. Therefore, the husband's application for summary dismissal was rejected. The Court will proceed to determine the merits of the wife's application in a future hearing.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The husband was represented by Mr McQuade of Counsel and the wife by Ms Pyke of Queen’s Counsel.Background The background to this matter was set out in detail in my earlier judgment of 4 December 2019 to which I have referred. I incorporate the particular paragraphs of that judgment to which I have referred in the introduction to these reasons to avoid a repetition of the relevant facts. It was the position of the husband at the hearing on 23 and 24 August 2021 that the wife’s substantial application filed on 29 November 2017 be summarily dismissed. In that application the wife sought that the Court set aside the final order for settlement of property made by Berman J on 15 July 2016 (as amended on 26 July 2016) and in place thereof make such order for settlement of property or adjustment of interests in property as the Court deems just and equitable. It was submitted by the husband’s counsel that it is apparent on the face of the wife’s documents that they do not disclose any fraud or suppression of evidence or if they do, no miscarriage of justice occurred, resulting in the wife’s claim having no reasonable chance of success.[1][1] The Husband’s Outline dated 22 August 2021 – pp 3 and 5. It was submitted by counsel for the wife that on any view the wife’s case shows a reasonable argument and a good chance of success in circumstances where the husband had failed to make proper disclosure of his interest in the Q Trust, that he had taken active steps to conceal the real nature of his equitable interest in that entity prior to the 2016 trial, that he had deliberately misled the Court at trial as to the nature of his involvement/interest with the entity, and that the failure to disclose both the nature and value of that entity and funds due to PP Pty Ltd were both material non-disclosures.[2][2] Case Outline filed on behalf of the Wife on 20 August 2021 – pp 5 and 6.Documents relied on The husband relied on his Application in a Case to which I have referred together with an affidavit filed on 18 January 2021 and a further affidavit filed without leave on 12 August 2021. The husband also relied on a Book of Documents. The wife relied upon her Response to the Application filed on 19 April 2021 to which I have referred together with affidavits filed on each of 29 November 2017, 11 November 2019 and 11 May 2021 as well as Volumes 1 and 2 of her Book of Documents and a Supplementary Book of Documents.Legal principles pertaining to summary dismissal The Act deals with the issue of summary decrees in s 45A. The relevant sections for the purposes of these proceedings are in the following terms:45A Summary decrees…No reasonable prospect of successfully prosecuting proceedings(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:(a)the first party is defending the proceedings or that part of the proceedings; and(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.When there is no reasonable prospect of success(3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:(a) hopeless; or(b) bound to fail;to have no reasonable prospect of success.…Costs(6)If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.Action by court on its own initiative or on application(7)The court may take action under this section on its own initiative or on application by a party to the proceedings.This section does not limit other powers(8)This section does not limit any powers that the court has apart from this section.
Evidence
Evidence Before The Court
For the purposes of this matter the Court must have regard to the provisions of s 45A(2) and s 45A(3) of the Act and r 10.12(d) and r 10.14(a) of the Rules in circumstances where the husband seeks an order dismissing the entirety of the wife’s Initiating Application.The husband’s evidence The husband relied on the evidence contained in his affidavit filed on 18 January 2021 and on 12 August 2021. In that filed on 18 January 2021 he deposed to:·the history of his involvement with Mr LL, Ms QQ and their associated corporate entities including W Pty Ltd the trustee of the Q Trust, and discussions with the wife prior to separation regarding inducements offered to him commencing in 2010 to join W Pty Ltd;·he and the wife’s social interactions with Mr LL and Ms QQ;·the wife’s dismissive attitude expressed to him of the concept of the J Town development proposed by W Pty Ltd;·the various reasons the wife gave him for her dismissive attitude towards the concept;·him continuing nevertheless to promote the benefits of the proposed development of J Town and the offers he had received from Mr LL and Ms QQ to the extended family and to the wife;·receiving a written offer of employment from W Pty Ltd in 2012 when he, the wife and their children were holidaying interstate with the wife’s younger brother and partner and discussing the email and the offer with the wife and her brother;·both he and the wife being suspicious as to the offer not divulging the total number of shares he was being offered in the company although the value of the shares was said to be $1.5 million;·further discussions in RR Town with the wife and friends about the J Town development proposal and offer from W Pty Ltd during the family’s time there after the interstate holiday;·the wife confirming to him prior to Christmas in 2012 that she intended to separate from him and move to Adelaide with the children;·receiving correspondence from W Pty Ltd by email dated 18 February 2013 offering him a twenty per cent equity in the Q Trust at the commencement of any employment and a further twenty per cent equity in any further transport facility entity subject to performance;·printing the letter out, signing it on 1 March 2013 and hand delivering it at his initial board meeting for the W Pty Ltd Board at SS Town, Queensland in 30 May 2013;·resigning as “CEO” of the JJ Board in 2013, and returning to the Board his work laptop and car;·the wife being critical of his resignation from the JJ Board as expressed in correspondence from her solicitor (letter from the wife’s previous solicitors to the husband dated 16 October 2013 – Document 2 in the husband’s Book of Documents);·being appointed as an officer of W Pty Ltd on 1 May 2013 and commencing employment with that company on 27 May 2013;·deleting all files and emails from his JJ Board laptop on returning same but retaining a copy of the letter from W Pty Ltd dated 18 February 2013 signed by him on 1 March 2013;·keeping that copy in correspondence in his filing cabinet at the Suburb TT property;·preparing a contract of employment between he and W Pty Ltd as requested of him by Mr NN, the accountant and business associate of Mr LL and Ms QQ, signed by him on 10 June 2013 and by Mr NN on 21 June 2013 (Document 3 in the husband’s Book of Documents);·at all times thereafter being paid as a contractor;·the wife’s solicitors requesting a copy of the contract by correspondence dated 2 December 2014;·the copy being included in his discovery as and from 5 December 2014;·in the correspondence of 2 December 2014 the wife’s former solicitors requesting a copy of the correspondence to the husband from W Pty Ltd dated 18 February 2013 containing the offer of equity in the Q Trust;·being unable to find the copy of the correspondence after searching in a manila file marked “W Pty Ltd – Contracts” but the document not being in that file;·his attention thereafter being diverted to farm harvest, the construction of the J Town development and the wife’s signing of a contract for the purchase of a property at Suburb G;·there being no further requests from the wife’s solicitors for that document;·trying to comply with extensive requests from the wife and her solicitors for discovery and production of documents;·the wife being able to access his personal documentation when she attended at the Suburb TT property in February 2013, May/June 2013, November 2013, May 2014 and on or about 6 January 2015;·further discovery being given to the wife’s solicitors and the wife leading up to the date of trial in 2016;·no further requests being made by the wife or her solicitors for the correspondence of 18 February 2013;·not looking for the correspondence of 18 February 2013 again until November 2016 upon receiving a phone call from Mr NN asking for a copy of the correspondence;·searching for the document in the office at the Suburb TT property and not being able to find the document;·later going through his old phone and finding a photograph of the correspondence;·the wife having knowledge of his interest in the Q Trust during the proceedings resulting in the trial in April 2016 including:·a file note relating to discussions between the wife and her solicitors on 11 September 2013 wherein they spoke about the Q Trust, the wife referring to a letter dated 4 May 2013 and thinking that the husband had a share in the Trust (Document 7 in the husband’s Book of Documents);·a file note of a discussion between the wife and her solicitors on 20 November 2013 recording the wife reporting the husband had been given a job offer with Q Trust and offered a share in late 2011 involving a transport facility entity (Document 8 in the husband’s Book of Documents);·a letter from the wife to her solicitor dated 1 December 2014 under the heading of “[W Pty Ltd] – [Manager] [Mr Curtain]”;·in the letter asking why discovery of the letter dated 18 February 2013 was not made, why discovery of the employment agreement dated 10 June 2013 between the husband and W Pty Ltd was not made, and asking why discovery of invoices were not made (page 4 of Document 9 in the husband’s Book of Documents);·a file note regarding discussions between the wife, her solicitors and counsel on 2 June 2015 regarding the wife doing a list of what is outstanding in terms of discovery and talking about a subpoena to W Pty Ltd (Document 10 in the husband’s Book of Documents)·a file note of discussion between the wife, her solicitor and counsel at court on 4 June 2015 including discussing the need to issue a subpoena to the Q Trust and to W Pty Ltd (Document 11 in the husband’s Book of Documents);·a file note regarding discussions between the wife, her solicitor and counsel on 27 March 2014 recording discussions about transport facility entities (Document 13 in the husband’s Book of Documents);·a letter from the wife’s counsel to the wife’s solicitor dated 15 April 2014 including the following[3]:…I understand from your client’s instructions that whilst the parties were attending at the conference, the parties adult daughter [Ms Z] was [in DD Region] at the […] property taking photos and making copies of financial information in the house. Your client indicated that she wished to have regard to same before making any decision in relation to the husband’s offer. On the face of it, the offer fails to take into account any value regarding the husband’s future business interest. The husband asserts that he has no proprietorial interest in [W Corporation] and that he is simply an employee. Your client understands that he has received an offer of employment which includes a 15% share holdings interest which she considers may be of significant value as that enterprise develops.…and;·an Interim Case Outline filed on behalf of the wife dated 5 August 2015, in the list of assets at Item 14 (page 5) “[Q Trust] (trustee [W Pty Ltd]) (H)” with a value of “NK” (Document 16 in the husband’s Book of Documents).[3] Document 14 in the husband’s Book of Documents.
Decision
Reasons for decision
Part 10.3 of the Family Law Rules 2004 (“the Rules”) set out the practice and procedure and the Court’s powers in relation to an application for a summary order. Part 10.3 is in the following terms:Part 10.3 – Summary orders and separate decisionsNote:An application under this Part is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).10.12 Application for summary ordersA party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:(a) the court has no jurisdiction;(b) the other party has no legal capacity to apply for the orders sought;(c) it is frivolous, vexatious or an abuse of process; or(d) there is no reasonable likelihood of success.10.13 Application for separate decisionA party may apply for a decision on any issue, if the decision may:(a) dispose of all or part of the case;(b) make a trial unnecessary;(c) make a trial substantially shorter; or(d) save substantial costs.10.14 What the court may order under this PartOn an application under this Part, the court may:(a) dismiss any part of the case;(b) decide an issue;(c) make a final order on any issue;(d) order a hearing about an issue or fact; or(e)with the consent of the parties, order arbitration about the case or part of the case.Note:This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10). For the purposes of this matter the Court must have regard to the provisions of s 45A(2) and s 45A(3) of the Act and r 10.12(d) and r 10.14(a) of the Rules in circumstances where the husband seeks an order dismissing the entirety of the wife’s Initiating Application.The husband’s evidence The husband relied on the evidence contained in his affidavit filed on 18 January 2021 and on 12 August 2021. In that filed on 18 January 2021 he deposed to:·the history of his involvement with Mr LL, Ms QQ and their associated corporate entities including W Pty Ltd the trustee of the Q Trust, and discussions with the wife prior to separation regarding inducements offered to him commencing in 2010 to join W Pty Ltd;·he and the wife’s social interactions with Mr LL and Ms QQ;·the wife’s dismissive attitude expressed to him of the concept of the J Town development proposed by W Pty Ltd;·the various reasons the wife gave him for her dismissive attitude towards the concept;·him continuing nevertheless to promote the benefits of the proposed development of J Town and the offers he had received from Mr LL and Ms QQ to the extended family and to the wife;·receiving a written offer of employment from W Pty Ltd in 2012 when he, the wife and their children were holidaying interstate with the wife’s younger brother and partner and discussing the email and the offer with the wife and her brother;·both he and the wife being suspicious as to the offer not divulging the total number of shares he was being offered in the company although the value of the shares was said to be $1.5 million;·further discussions in RR Town with the wife and friends about the J Town development proposal and offer from W Pty Ltd during the family’s time there after the interstate holiday;·the wife confirming to him prior to Christmas in 2012 that she intended to separate from him and move to Adelaide with the children;·receiving correspondence from W Pty Ltd by email dated 18 February 2013 offering him a twenty per cent equity in the Q Trust at the commencement of any employment and a further twenty per cent equity in any further transport facility entity subject to performance;·printing the letter out, signing it on 1 March 2013 and hand delivering it at his initial board meeting for the W Pty Ltd Board at SS Town, Queensland in 30 May 2013;·resigning as “CEO” of the JJ Board in 2013, and returning to the Board his work laptop and car;·the wife being critical of his resignation from the JJ Board as expressed in correspondence from her solicitor (letter from the wife’s previous solicitors to the husband dated 16 October 2013 – Document 2 in the husband’s Book of Documents);·being appointed as an officer of W Pty Ltd on 1 May 2013 and commencing employment with that company on 27 May 2013;·deleting all files and emails from his JJ Board laptop on returning same but retaining a copy of the letter from W Pty Ltd dated 18 February 2013 signed by him on 1 March 2013;·keeping that copy in correspondence in his filing cabinet at the Suburb TT property;·preparing a contract of employment between he and W Pty Ltd as requested of him by Mr NN, the accountant and business associate of Mr LL and Ms QQ, signed by him on 10 June 2013 and by Mr NN on 21 June 2013 (Document 3 in the husband’s Book of Documents);·at all times thereafter being paid as a contractor;·the wife’s solicitors requesting a copy of the contract by correspondence dated 2 December 2014;·the copy being included in his discovery as and from 5 December 2014;·in the correspondence of 2 December 2014 the wife’s former solicitors requesting a copy of the correspondence to the husband from W Pty Ltd dated 18 February 2013 containing the offer of equity in the Q Trust;·being unable to find the copy of the correspondence after searching in a manila file marked “W Pty Ltd – Contracts” but the document not being in that file;·his attention thereafter being diverted to farm harvest, the construction of the J Town development and the wife’s signing of a contract for the purchase of a property at Suburb G;·there being no further requests from the wife’s solicitors for that document;·trying to comply with extensive requests from the wife and her solicitors for discovery and production of documents;·the wife being able to access his personal documentation when she attended at the Suburb TT property in February 2013, May/June 2013, November 2013, May 2014 and on or about 6 January 2015;·further discovery being given to the wife’s solicitors and the wife leading up to the date of trial in 2016;·no further requests being made by the wife or her solicitors for the correspondence of 18 February 2013;·not looking for the correspondence of 18 February 2013 again until November 2016 upon receiving a phone call from Mr NN asking for a copy of the correspondence;·searching for the document in the office at the Suburb TT property and not being able to find the document;·later going through his old phone and finding a photograph of the correspondence;·the wife having knowledge of his interest in the Q Trust during the proceedings resulting in the trial in April 2016 including:·a file note relating to discussions between the wife and her solicitors on 11 September 2013 wherein they spoke about the Q Trust, the wife referring to a letter dated 4 May 2013 and thinking that the husband had a share in the Trust (Document 7 in the husband’s Book of Documents);·a file note of a discussion between the wife and her solicitors on 20 November 2013 recording the wife reporting the husband had been given a job offer with Q Trust and offered a share in late 2011 involving a transport facility entity (Document 8 in the husband’s Book of Documents);·a letter from the wife to her solicitor dated 1 December 2014 under the heading of “[W Pty Ltd] – [Manager] [Mr Curtain]”;·in the letter asking why discovery of the letter dated 18 February 2013 was not made, why discovery of the employment agreement dated 10 June 2013 between the husband and W Pty Ltd was not made, and asking why discovery of invoices were not made (page 4 of Document 9 in the husband’s Book of Documents);·a file note regarding discussions between the wife, her solicitors and counsel on 2 June 2015 regarding the wife doing a list of what is outstanding in terms of discovery and talking about a subpoena to W Pty Ltd (Document 10 in the husband’s Book of Documents)·a file note of discussion between the wife, her solicitor and counsel at court on 4 June 2015 including discussing the need to issue a subpoena to the Q Trust and to W Pty Ltd (Document 11 in the husband’s Book of Documents);·a file note regarding discussions between the wife, her solicitor and counsel on 27 March 2014 recording discussions about transport facility entities (Document 13 in the husband’s Book of Documents);·a letter from the wife’s counsel to the wife’s solicitor dated 15 April 2014 including the following[3]:…I understand from your client’s instructions that whilst the parties were attending at the conference, the parties adult daughter [Ms Z] was [in DD Region] at the […] property taking photos and making copies of financial information in the house. Your client indicated that she wished to have regard to same before making any decision in relation to the husband’s offer. On the face of it, the offer fails to take into account any value regarding the husband’s future business interest. The husband asserts that he has no proprietorial interest in [W Corporation] and that he is simply an employee. Your client understands that he has received an offer of employment which includes a 15% share holdings interest which she considers may be of significant value as that enterprise develops.…and;·an Interim Case Outline filed on behalf of the wife dated 5 August 2015, in the list of assets at Item 14 (page 5) “[Q Trust] (trustee [W Pty Ltd]) (H)” with a value of “NK” (Document 16 in the husband’s Book of Documents).[3] Document 14 in the husband’s Book of Documents.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.