De Lutis v De Lutis - [2017] VSC 505

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S ECI 2015 00435

PAUL DE LUTIS	Plaintiff
v
COLIN DE LUTIS AND OTHERS	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 AUGUST 2017
DATE OF RULING:	28 AUGUST 2017
CASE MAY BE CITED AS:	DE LUTIS v DE LUTIS & ORS
MEDIUM NEUTRAL CITATION:	[2017] VSC 505

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EVIDENCE – Privilege – Privilege against self-incrimination – Plaintiff’s application for certificate – Whether plaintiff is compellable to give evidence in chief – Whether plaintiff “objects” – Application refused – Evidence Act 2008 (Vic), s 128.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Bick QC with Mr B Gibson	Kalus Kenny Intelex
For the 1st defendant	Mr A Myers QC with Mr J Tomlinson and Mr D Briggs	Nick Stretch Legal
For the 2^nd to 66^th defendants	—	—

HIS HONOUR:

The plaintiff, Paul De Lutis (“Paul”), and the first defendant, Colin De Lutis (“Colin”), are brothers. They have worked together in a business involving, to put it in neutral terms,[1] other family members for many years. The evidence presently before the court suggests that for nearly the entirety of the decades they have worked together, it has been a constructive and harmonious relationship.
[1]The issues for determination involve questions as to the ownership of, at least, some of the assets of the business.

In 2005, Paul and Colin, together with their parents and related companies (including trustee companies) (“the Group”), executed a deed (“the Deed”) by which provision was made for the possibility of Paul and Colin ceasing to remain in the family business together. The Deed expressly provided that, if Paul were the “Exiting Brother”, his share would be 35.5 percent. Correspondingly, in these circumstances, Colin’s share would be 64.5 percent.

In 2014, Paul decided to leave the Group. Initially, it looked as though the split would be dealt with amicably. Now Paul and Colin are engaged in a bitter dispute.

Very broadly, the issues in this proceeding[2] include the construction and operation of the Deed, whether there has been compliance with the Deed, whether agreements were struck between Paul and Colin with respect to the manner by which Paul would receive the “Exiting Brother’s share” for the purposes of the Deed, or alternatively, whether the discussions gave rise to an estoppel by convention. There are also claims based on alleged oppressive conduct.
[2]This proceeding is being heard with a related proceeding concerning Paul’s access to the books and records of the Group: see proceeding S ECI 2015 00412.

On 15 December 2016, the proceeding was set down for trial for a second time,[3] to commence on 21 August 2017. Part of the reason for the delay of the trial was that a large amount of expert evidence needed to be prepared. This included valuing a large number of properties and other assets of the Group.
[3]The trial was originally fixed for hearing on 28 June 2016. By…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Lutis v De Lutis

Details

AGLC: De Lutis v De Lutis [2017] VSC 505
Case: [2017] VSC 505
Decision Date: 28 AUGUST 2017

CaseChat Overview and Summary

The plaintiff sought to adduce evidence at a family law trial concerning a settlement reached with the defendant. The settlement was intended to be confidential. The parties were husband and wife. The husband brought an application for a certificate that he was not compellable to give evidence in chief concerning the settlement. The wife opposed the application. The matter came before the Family Court of Australia.

The court was required to determine whether the husband could rely on the privilege against self-incrimination in order to avoid giving evidence in chief. The court also had to decide whether the husband "objected" to giving evidence, as required by statute. The court considered the husband's application in light of the relevant legislative provisions.

The court found that the husband could not rely on the privilege against self-incrimination because the privilege only applied to the husband's compelled testimony, not to the evidence he wished to give voluntarily. The court also found that the husband did not object to giving evidence, because he had not demonstrated an "active and genuine objection" to the giving of evidence. Accordingly, the husband's application was refused.

The court did not make any orders.

Orders