Dang & Tok

[2007] FamCA 1060

FAMILY COURT OF AUSTRALIA

DANG & TOK [2007] FamCA 1060

FAMILY LAW – Summary Dismissal
FAMILY LAW – COSTS – Party/party basis – Leave given to husband to set aside orders at his own risk as to costs

Family Law Act 1975 (Cth) S 79A(1)(a) and (d)

APPLICANT: MR DANG

RESPONDENT: MS TOK

FILE NUMBER: CAF 1474 of 2002

DATE DELIVERED: 27/08/2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Watts J

HEARING DATE: 27/08/2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: No appearance by or on behalf of Husband

COUNSEL FOR THE RESPONDENT: Ms Tonkin

SOLICITOR FOR THE RESPONDENT: Lessli Strong & Associates

Orders

1. The Application filed by the husband on 14 April 2005 pursuant to Section 79A be summarily dismissed.

2. The husband pay the wife’s costs in relation to the Application filed by the husband on 14 April 2005 on a party/party basis as agreed or assessed. 

3. The husband may within 21 days after service of a sealed copy of these orders upon him by email to the following email address: …, seek the Court’s leave to set aside orders 1 and 2 at his own risk as to costs.

IT IS NOTED THAT:

1. Order 2 in relation to costs ranks in priority after any order made against the husband in current proceedings in the Supreme Court of the Australian Capital Territory. 

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Watts delivered this day will for all publication and reporting purposes be referred to as Dang & Tok.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF1474/2007

MR DANG

Applicant

And

MS TOK

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the wife appears today represented by counsel with instructing solicitor.  The husband has failed to appear. 

2. I mark as exhibit A a document from the Court file which consists of an email sent to the husband by the Client Service Manager of this Registry on 10 August.  That email enclosed a copy of the directions made by Rose J on 16 July 2007.  The Client Service Manager notes that those directions had previously been sent to the husband's residential address, but were returned to sender.  I was handed a document marked B, where Lesley Strong and Associates on 13 August also had a similar result from the letter sent on that day enclosing an affidavit.  I will mark that document exhibit B.

3. The orders of 16 July 2007 required the husband to provide written grounds to the solicitor for the wife of precisely the grounds relied upon by him pursuant to s.79A no later than 5 pm 30 July 2007, and informed him that an application by the wife for summary dismissal of his application for final orders filed on 14 April 2007 was fixed for hearing on 27 August 2007 at 2.15 pm.

4. Exhibit A also shows that the husband received the email on 10 August 2007 and he responded.  His response to the Client Service Manager was:

   Thank you for your email and kindly accept my acknowledgement of receiving this email of you.  I will read the attachment and get back to you very soon.  However I only came out of hospital the second time only a few days ago.

5. The husband has failed to attend today or arrange any representation on his behalf and there is no explanation as to why he has not turned up. 

6. The matter had a very long and somewhat sorry history, and I have had handed to me a copy of an affidavit which the husband filed on 14 April 2005.  It, on its face, seems to claim that the consent orders should be set aside on the basis that neither party was aware at the time the consent orders were entered into of a claim made by his brother and his brother's company against the parties.  He calls that claim a changed circumstance.  Clearly in this case the provisions of s.79A(1)(d) FLA do not apply.  It may in fact be prima facie under s.79A(1)(a), a mutual mistake, as it seems clear the wife was also unaware at the time the consent orders were entered into that this claim was going to be made by the husband's brother.  There is no indication, however, in the husband’s material as to why, if this mistake has been made it has led to a miscarriage of justice. 

7. The second claim that he makes is that the list of creditors that the wife annexed and which the order says were to be paid from the gross proceeds of sale were in some way a fraud.  He has not given any detail as to the basis upon which he alleges fraud.

8. I am asked on an ex parte basis to summarily dismiss this application that was made in 2005 by the husband.  The test for summary dismissal is quite stringent.  The test is that the claim is “doomed to fail” as distinct from weak or unlikely to succeed.  An order of this nature can only be made with caution. 

9. Whilst it might be that the husband, if he more properly particularised his claims, might make clear how it is he might have a claim under s.79A(1)(a).  He has done so to date.  He has not complied with the direction of Rose J made on the last occasion, even though he did not receive notice of that requirement until after the date that it was due, had expired.  Had he attended or arranged an attendance today he may well have made an application for an extension of time, but he has just not chosen to attend at all in any way. 

10. Counsel for the wife sets out in written submissions the chronology of events in paragraphs 5 through to 16 of her submissions.  That document is marked exhibit C and the paragraphs are as follows:

    “5.In support of his s.79A application the husband relied on a ‘change of circumstances’ (H#3) due to proceedings brought by his brother in the Supreme Court (H#6).  He claimed some 2 years after the event that the debts alleged by the wife in the consent orders were ‘fictitious’ (H#11).  He also sought to alter the percentage allocated on behalf of the children an order to which he had formerly agreed (H#13).  The husband’s application failed to particularize the grounds relied upon in support of his application regarding a change of circumstances.

    6.The husband filed a further affidavit on 23^rd June 2005 alleging that he had spoken to various members of the family regarding the loans.  The applicant objects to the hearsay evidence contained in that affidavit.  The husband provided no evidence to support his alleged denials by creditors though he was apparently in a position to obtain that evidence.

    7.On 27^th June 2005 FM Brewster transferred proceedings to the Family Court.  In addition he made orders restraining the proceeds of sale.  On 29^th August 2005 the matter came before Justice Rose.  He ordered that the parties obtain a date for hearing of the application for summary dismissal and ordered the parties to file an outline of written submissions.  The husband was represented by Counsel at that time.

    8.It is unclear why the proceedings were delayed for a period of 18 months.

    9.On 12^th January 2007 the husband’s solicitors filed a Notice Ceasing to Act.  The husband filed a further affidavit on 30^th January 2007 (almost 2 years since he filed his s.79A application) containing major inconsistencies to his previous affidavit.

    10.On 9^th February 2007 the matter came before DR Routh and was listed for hearing on 16^th April 2007.  Affidavits were to be filed by 16^th March 2007 and a brief outline of case filed by 6^th April 2007.

    11.On 16^th April 2007 the husband failed to attend the hearing and failed to comply with previous directions.  He filed an affidavit on 11^th April 2007 on the basis that he lacked the funds to prosecute his case.

    12.On 16^th April 2007 DCJ Faulks made orders extending the time the husband had in which to file material to noon on 15^th June 2007.  On the basis that the husband’s evidence was inadequate to set aside the consent orders then leave would be granted to the wife to file an application for summary dismissal.  On 15^th June 2007 the husband sought a further adjournment of the proceedings to ‘mid August’ to ‘recover my health’ on the basis of a medical certificate referring to high blood pressure dated 14^th June 2007.

    13.The wife filed an application on 22^nd June 2007 seeking leave in accordance with directions made by DCJ Faulks (though an application for summary dismissal had already been filed).  The matter was set down for hearing on 16^th July 2007.  The wife relies on the affidavit of Melinda Luke filed on 22^nd June 2007 opposing any further adjournment of the proceedings.

    14.The matter came before Justice Rose on 16^th June 2007.  The wife’s solicitor tendered documents evidencing an attempt to serve the husband with notice of the proceedings on 16^th July 2007.  Justice Rose made the following orders:-

    1.The application for summary dismissal is fixed for hearing on 27^th August 2007 at 2.15pm;

    2.The husband provide written notice to the solicitor for the wife of precisely the grounds relied upon by him pursuant to s.79A no later than 5.00pm 30^th July 2007;

    3.The parties may file and serve such further affidavits that he or she seeks to rely upon by 4.00pm 13^th August 2007;

    4.Costs reserved;

    5.The Registrar provide immediate written notice to the husband of the orders made this day.’

    15.To date the husband has again failed to comply with the orders of the court.

    16.The proceedings in the Supreme Court against the husband as first defendant and the wife as second defendant were heard in August 2007 before Justice Gray.  The wife for her part settled the claim against her by the plaintiffs in full and following the lodgement of consent orders took no further part in the proceedings.  The first defendant did not appear at the hearing and the matter proceeded against him on an undefended basis.  Justice Gray was informed that an application for summary dismissal of the husband’s application to set aside consent orders made in April 2003 was pending in the Family Court.  Justice Gray reserved his decision pending the outcome of the application for summary dismissal.”

11. I am told that there is an amount of about $506,000 in some type of trust or controlled moneys account.  The orders, as they currently stand, require the payment out of debts.  Both parties have operated on the basis that the debts referred to are the debts listed in the document which formed the basis of the consent orders, being an application filed on 28 April 2003.  There are 16 debts set out there.  Counsel for the wife tells me they add to$ 324,000.  There will be about $182,000 left ($506,000 - $324,000). 

12. The effect of the orders, therefore, would be that the wife would receive about $91,000 (50%).  I am told that she has compromised the claim in the Supreme Court of the ACT made against her by the husband's brother for $85,000.  So there is little left for her.  Thirty per cent of the $182,000 will go to the children, one of whom is now 21 years of age.  The husband will receive 20 per cent, which is about $36,400.

13. On the material before me, I can not see how the husband’s claim could succeed.  The test for summary dismissal, in my view, is therefore satisfied.

14. I am told the husband is overseas.  His latest email intimates he may recently have been hospitalised.  Notwithstanding the chances he has already been given it is appropriate to give him leave to set aside the order for summary dismissal within a limited period at his own risk as to costs. 

15. Counsel for the wife seeks an order for costs but not one that would rank in priority above any order the husband’s brother obtains against him in the Supreme Court.  The husband has been wholly unsuccessful in these proceedings.  Notwithstanding the provisions of s.117(1), given the provision of s.117(2A)(e) it is appropriate to make the order sought even though I am told that enforcement of that order is unlikely to be successful.

16. The husband will also be given leave to set that order aside within a limited period. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate: 

Date:  12.9.07