E Pty Ltd & Ors & Zunino - [2020] FamCAFC 216

FAMILY COURT OF AUSTRALIA

E PTY LTD AND ORS & ZUNINO AND ANOR

[2020] FamCAFC 216

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Application for leave to appeal against dismissal applications seeking summary dismissal of the wife’s claim - Removal of parties – Where decision not attended by sufficient doubt to warrant leave being granted – Question of whether entities constitute alter ego or mere puppet of husband – Evidence of “uncommercial” transactions between husband and entities – Where the primary judge was not satisfied that the wife had no reasonable likelihood of success – Leave to appeal not given – Costs to be determined by way of written submissions.

Family Law Act 1975 (Cth) Pt VIII
Family Law Rules 2004 (Cth) rr 6.02, 6.03, 10.12

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1
Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229
Gould and Gould (1993) FLC 92-434; [1993] FamCA 126
Harris & Dewell and Anor (2018) FLC 93-839; [2018] FamCAFC 94
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Stein and Stein (1986) FLC 91-779; [1986] FamCA 27
Zao & Lee [2019] FamCAFC 169

FIRST APPELLANT:

E Pty Ltd

SECOND APPELLANT:

F Pty Ltd

THIRD APPELLANT:

F2 Pty Ltd

FIRST RESPONDENT:

Mr Zunino

SECOND RESPONDENT:

Ms Zunino

FILE NUMBER:

PAC

1885

2019

APPEAL NUMBER:

EAA

134

2019

DATE DELIVERED:

1 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Ryan & Tree JJ

HEARING DATE:

10 July 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

15 November 2019

LOWER COURT MNC:

[2019] FamCA 845

REPRESENTATION

COUNSEL FOR THE FIRST TO THIRD APPELLANTS:

Mr Cummings SC

SOLICITOR FOR THE FIRST TO THIRD APPELLANTS:

Matthews Folbigg Pty Ltd

FIRST RESPONDENT:

No appearance

COUNSEL FOR THE SECOND RESPONDENT:

Mr Coleman SC with Mr O’Brien

SOLICITOR FOR THE SECOND RESPONDENT:

Hammond Nguyen Turnbull

Orders

The application for leave to appeal filed 12 December 2019 be dismissed.
Within fourteen (14) days of the date of these orders, the wife file and serve by email an affidavit in relation to her application for costs together with written submissions in support of that application of no more than three (3) pages.
Within fourteen (14) days of service of the documents referred to in Order 2, the appellants shall file and serve by email any affidavit in reply and written submissions of no more than three (3) pages.
The wife may file any submissions in response of no more than two (2) pages which are to be filed and served by email within seven (7) days of service of the appellants’ submissions.
All parties are directed to give written notice to the Eastern Appeals Registrar of the date of service of any documents filed in accordance with these orders.
The wife’s application for costs will be determined without further oral hearing.

Note: The…

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.

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Details

Case: [2020] FamCAFC 216
Decision Date: 1 September 2020

CaseChat Overview and Summary

E Pty Ltd and others have applied to appeal against a decision in a family law matter, with Zunino as the other party. The application for leave to appeal was filed on 12 December 2019. The Family Court of Australia considered the application and issued orders dismissing the appeal and directing the parties to engage in a process of affidavits and submissions regarding an application for costs made by Zunino.

The court needed to determine whether the applicants were granted leave to appeal the decision and whether the application for costs should proceed. The primary focus was on the procedural aspects of the application for leave to appeal and the costs application. The court's task was to assess the merits of the appeal application and to manage the process for the costs application effectively.

The court dismissed the application for leave to appeal, finding no grounds to permit the appeal to proceed. It then directed the parties to engage in a specific process for the costs application, setting out a timeline and requirements for the exchange of affidavits and written submissions. The court emphasised that the costs application would be determined without a further oral hearing and mandated that all parties notify the Eastern Appeals Registrar of the service of relevant documents. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The application for leave to appeal filed 12 December 2019 be dismissed.

Within fourteen (14) days of the date of these orders, the wife file and serve by email an affidavit in relation to her application for costs together with written submissions in support of that application of no more than three (3) pages.

Within fourteen (14) days of service of the documents referred to in Order 2, the appellants shall file and serve by email any affidavit in reply and written submissions of no more than three (3) pages.

The wife may file any submissions in response of no more than two (2) pages which are to be filed and served by email within seven (7) days of service of the appellants’ submissions.

All parties are directed to give written notice to the Eastern Appeals Registrar of the date of service of any documents filed in accordance with these orders.

The wife’s application for costs will be determined without further oral hearing.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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