Dovgan and Dovgan & Anor - [2020] FamCA 589

FAMILY COURT OF AUSTRALIA

DOVGAN & DOVGAN AND ANOR

[2020] FamCA 589

FAMILY LAW – PROPERTY – Where the wife sought orders for litigation funding and disclosure from the Second to Third Respondents and leave to appoint adversarial experts in relation to real property and a number of companies associated with the husband or interests of his – where on the day of the interim hearing the wife did not press most of the relief she sought and the husband agreed to pay the wife six hundred thousand dollars in tranches – where orders were made for the husband to pay the amount to the wife in one lump sum – where orders were made dismissing the balance of the relief sought by the wife and for the wife to articulate precisely the relief she seeks with respect to the Second, Third and Fourth Respondents – where orders were made reserving the costs of the parties

Family Law Rules 2004 (Cth)

APPLICANT:

Ms Dovgan

FIRST RESPONDENT:

Mr Dovgan

SECOND RESPONDENT:

B Pty Ltd (ATF C Family Trust)

THIRD RESPONDENT:

D Pty Ltd (ATF Dovgan Trust ATF Dovgan Investment Trust)

FOURTH RESPONDENT:

F Pty Ltd

FILE NUMBER:

SYC

866

2017

DATE DELIVERED:

9 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

9 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Coleman SC

SOLICITOR FOR THE APPLICANT:

Ferrer Lawyers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Newlinds SC

SOLICITOR FOR THE FIRST RESPONDENT:

Barkus Doolan

COUNSEL FOR THE SECOND, THIRD AND FOURTH RESPONDENTS:

Mr Moses SC

SOLICITOR FOR THE SECOND, THIRD AND FOURTH RESPONDENTS:

Gordon & Barry Lawyers

Orders

The First Respondent husband pay to the Applicant wife six hundred thousand dollars ($600,000) by 5:00 pm by 31 July 2020 as partial property settlement.
The Applicant wife’s Application in a Case filed on 6 July 2020 be otherwise dismissed together with the Responses of the other parties.
The Amended Application in a Case filed by the husband on 2 July 2020 be dismissed together with the Responses of the other parties.
The time for the filing of the Applicant wife’s evidence be extended up to and including close of registry filing on 27 July 2020.
The time for the filing of the First Respondent husband’s evidence be extended up to and including close of registry filing on 15 August 2020.
Within seven (7) days of the date of these orders the Applicant wife file an Amended Initiating Application to identify and articulate precisely the relief she seeks with respect to the Second, Third and Fourth Respondents.
The costs of the parties relating to the Amended Application in a Case filed by the husband on 2 July 2020 and the Application in a Case filed by the wife on 6 July 2020 be reserved NOTING that the wife in substance pressed only for provision of litigation funding at the hearing on 9 July 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dovgan & Dovgan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 866 of 2017

Ms Dovgan

Applicant

And

Mr Dovgan

First Respondent

And

B Pty Ltd (ATF C Family Trust)

Second Respondent

And

D Pty Ltd (ATF Dovgan Trust ATF Dovgan Investment Trust)

Third Respondent

And

F Pty Ltd

Fourth Respondent

EX TEMPORE REASONS FOR JUDGMENT

A.These reasons were delivered ex tempore and corrected for literal and grammatical errors.

These are complex property proceedings which are listed for final hearing on 17 August 2020.
Listed before me on 9 July 2020 were a range of applications and responses which can be summarised as follows.
The first was an Application in a Case filed by the wife on 6 July 2020 seeking a raft of orders which included leave to obtain experts’ reports from adversarial experts in relation to real property and a number of companies which are said to be associated with the husband or his interests. It also included an application for funding of various types amounting to over $1,000,000.
The husband filed a Response to the wife’s application as well as his own Amended Application in a Case on 2 July 2020.
The Second to Fourth Respondents were also the subject of proposed orders in the wife’s Application in a Case relating to disclosure.
When the matter was called on and came before me on 9 July 2020, it became apparent that the wife did not press most of the relief that she sought in her Application in a Case. The primary contention she made was for the provision of litigation funding on the basis that in the absence of such funding it was highly likely that she would be unrepresented when the trial commenced on 17 August 2020.
The husband informed the Court that an open offer was made in the total amount of $500,000 with $100,000 to be paid immediately, $100,000 to be paid upon receipt of the wife’s evidence and the balance of $300,000 to be paid on the first day of the trial. After further submissions were made the offer increased to $600,000 with the wife contending it should be paid in one lump sum and not be the subject of payments in tranches.
There was no dispute that the husband had the financial wherewithal to meet the payment of $600,000. In my view, it’s not desirable for a series of tranches to be paid and no particularly persuasive reason was put forward for a regime of tranches.
The senior counsel for the wife, quite properly, then informed the Court that the balance of the relief set out in the wife’s Application in a Case was not pressed on 9 July 2020. However, an issue remained as to whether it should be dismissed or whether some of the relief sought should be permitted to remain undetermined up to and including the first day of the final hearing on 17 August 2020.
The relief which the wife seeks to remain on foot is expressed in proposed orders 4, 7 and 8 of her Application in a Case. Those orders, broadly speaking, deal with a proposal for leave to be granted to the wife to instruct adversarial experts in relation to the valuation of various entities and trusts and parcels of real property.
The husband resisted the application for those orders remaining on foot, as did senior counsel for the Second to Fourth Respondents. The resistance was based upon the argument that the evidence upon which the wife relied upon to justify orders of that nature could not, on any view, satisfy the Family Law Rules 2004 (Cth) relating to the circumstances in which an adversarial expert would be permitted.
The Second to Fourth Respondents also submitted that it would be undesirable from a procedural perspective to permit the wife’s application to remain on foot in any incarnation and that if the wife wished to press for any relief relating to an adversarial expert, she could do so at a later date.
In this regard, I note that I was informed that the husband and wife had reached agreement that further authorisations were to be given to existing experts in the proceedings for the purpose of updating experts’ reports. But that agreement was specifically made on the basis that it was without prejudice to the wife’s right to seek the appointment of adversarial experts in the future.
In my view, in light of the very complex nature of these proceedings and the imminent final hearing date, it is not desirable to have these aspects of the wife’s Application in a Case remaining on foot in circumstances where the relief that’s set out in or proposed in orders 4, 7 and 8 may never be invoked.
I also note that the husband and the Second to Fourth Respondents are both content for their applications and responses to be dismissed. Accordingly, I propose to dismiss the balance of the wife’s Application in a Case.
There has been some slippage in the timetable for preparation for final hearing and after some varying submissions the wife also sought a direction from the Court that she be granted leave to obtain an expert opinion to identify rectification work needed at the property at G Road, Suburb H and to quantify the cost of undertaking such work. In my view, such a direction is not required by the Court. There was no dispute that the parties have agreed, now, that the property at Suburb H should be sold and there is no impediment to the wife obtaining her own rectification report if she deems it appropriate or necessary in some respect in relation to the sale of the property. If this remains an issue which cannot be agreed between the parties, it is something that can be raised at a later point towards the end of the final hearing.
Another issue that is outstanding is that the wife has yet to formulate an application setting out the relief she seeks against the Second to Fourth Respondents. Senior counsel for the wife sought time up to 24 July 2020 to provide such a document whereas senior counsel for the Second to Fourth Respondents submitted that such documents should be provided within seven days.
In my view, there is considerable force in the submissions of senior counsel for the Second to Fourth Respondents, that the relief which the wife proposes to seek against the Second to Fourth Respondents ought, by now, to be well known and should be capable of articulation in a formal Court document within seven days and I will make an order to that effect.
Both the husband and the Second to Fourth Respondents sought an order for costs against the wife in relation to her application on the basis that it was contended the relief she sought was always likely to fail and aspects, at least, of her application should never have been brought.
Against that, the wife submitted that the hearing before me on 9 July 2020 actually achieved some useful outcomes and that part, at least, of her application included an amount sought for litigation funding, a matter upon which she ultimately had some success. I am not satisfied that it is appropriate to make a costs order in relation to these applications at this time.
Accordingly, I make the orders set forth at the commencement of this judgment.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 9 July 2020.

Associate:

Date: 27 July 2020