Elgin and Elgin (Re-opening) - [2012] FamCA 898

FAMILY COURT OF AUSTRALIA

ELGIN & ELGIN (RE-OPENING)

[2012] FamCA 898

FAMILY LAW – Property – Application in a Case – Leave to re-open – where property has been sold after trial – whether the sale price should be taken as value – whether the purchase of the property should bet taken as a premature distribution of capital and “added back” – where the applicant had not disclosed to the court that the property was on the market at time of trial – where the application is opposed – whether the interest of justice require re-opening a case – whether the loss should be born by the applicant – where the property was purchased with the use of joint funds – where the loss should be born by the applicant – where the amount is less than 0.15 per cent of the property pool – where the amount is not so material that the interests of justice require re-opening – where prejudice to the respondent if the application is successful – where the application is dismissed

Family Law Act 1975 (Cth) s 79

In the Marriage of Kowaliw (1981) FLC 91-092
Aheb & Aheb (No 3) [2009] FamCA 524
Challen and Challen[2007] FamCA 1292
Cook and Cook (No 6) [2010] Fam CA 810
EB v CT (No 2) [2008] QSC 306

Gaskin v Ollerenshaw [2010] NSWSC 788

Gelley & Gelley (1992) FLC 92-290

Murray v Figge (1974) 4 ALR

Omacini v Omacini (2005) FLC 93-218

Reid v Brett [2005] VSC 18

Summitt & Summit (Re-opening) [2009] FamCA 365
Townsend v Townsend [1995] FLC 92-569
Watson v Metropolitan (Perth) Passenger Transport Trust [1965] WAR 88

APPLICANT:

Mr Elgin

RESPONDENT:

Ms Elgin

FILE NUMBER:

BRC

2909

2010

DATE DELIVERED:

31 October 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

10 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamwood

SOLICITOR FOR THE APPLICANT:

Reaburn Solicitors

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Glezer Lanteri & Associates

Orders

The husband’s Application in a Case filed 19 September 2012 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 2909 of 2010

Mr Elgin

Applicant

And

Ms Elgin

Respondent

REASONS FOR JUDGMENT

Introduction

The three-day trial of the wife’s application for property settlement was heard by the Court from 18 – 20 July, 2012. When it ended, a timetable was set for the delivery of written submissions by the parties. The issues in the case concerned valuation of the property of the parties, as well as determination of the contributions of the parties and their impact on the ultimate division of in excess of $40,000,000 in property.

Whilst the written submissions of the parties were still being prepared, the husband filed an Application in a Case in…

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 Elgin and Elgin (Re-opening)

Details

AGLC: Elgin and Elgin (Re-opening) [2012] FamCA 898
Case: [2012] FamCA 898
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard an Application in a Case brought by Mr Elgin (the applicant husband) seeking leave to re-open property settlement proceedings against Ms Elgin (the respondent wife). The dispute arose after the conclusion of a three-day trial concerning the division of over $40 million in property. The husband sought to adduce evidence regarding the sale of an apartment property, which had been sold shortly after the trial concluded. He contended that the net proceeds of this sale should be included in the property pool for division, rather than the higher figure that had been considered during the trial. The wife opposed this application.

The legal issues before the Court were whether the interests of justice required the re-opening of the proceedings to admit evidence of the apartment's sale price, and whether the loss incurred on the sale should be borne by the applicant. The Court was required to consider established legal principles governing applications to re-open property settlement proceedings, including whether the further evidence was material, could have been discovered earlier, and would cause prejudice to the other party. The Court also considered the husband's prior conduct, including his failure to disclose the apartment's sale status at the time of trial and a potential breach of an undertaking given to the Court regarding significant transactions.

The Court reasoned that while common law principles govern such applications, the discretion to re-open is guided by the interests of justice. It noted that evidence of a change in asset value shortly after trial could be material, but also considered the husband's lack of disclosure regarding the apartment being on the market at the time of trial. The Court found that the loss on the sale, approximately $200,000, represented a very small percentage of the total property pool and was not so material as to necessitate re-opening the case, particularly given the prejudice to the respondent. Furthermore, the Court considered an alternative argument that the funds advanced by the husband for the purchase of the apartment could be notionally "added back" to the pool, rendering the sale price irrelevant.

Ultimately, the Court dismissed the husband's application. It found that the amount in question was not sufficiently material to warrant re-opening the case, especially considering the husband's conduct and the potential prejudice to the wife. The Court concluded that the interests of justice did not require the re-opening of the proceedings.

Orders