Jordan & Sutton (No 4) - [2023] FedCFamC1F 656

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jordan & Sutton (No 4) [2023] FedCFamC1F 656

File number(s): SYC 6819 of 2018

Judgment of: HARPER J

Date of judgment: 9 August 2023

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where primary proceedings concern property adjustment between husband and wife – Where there are a number of third parties who have been joined to the proceedings – Wife seeks leave to file a Further Amended Initiating Application – Where the current Amended Initiating Application includes complex claims expressed as Alternatives A and B – Wife seeks to include an Alternative C to be pressed only if Alternatives A and B fail – Where Alternative C seeks an adjournment of the proceedings until 31 March 2023 pursuant to s 79(5) of the Family Law Act 1975 (Cth) and injunctive orders preventing the entry into further financing agreements – Where the respondents opposed leave to amend on the basis that it was ultra vires and thus doomed to fail and it would cause immediate prejudice to the respondents who are third parties to the marriage – Where the objectives of the overarching purpose are best served by allowing the amendment – Court not persuaded of immediate prejudice to the respondents arising from allowing the amendment – Where allowing the amendment would enable the Court and the parties to better understand the scope of the issues – Amendment allowed – Costs reserved.

Legislation:
Family Law Act 1975 (Cth) Pts VIII, VIIIAA, ss 79(5), 79(6)

Federal Circuit and Family Court of Australia Act2021(Cth) ss 67(1), 67(3), 67(4)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 2.50

Cases cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Blue & Blue [2008] FamCA 787

Grace v Grace (1998) FLC 92-792

HMT & FHL [2006] 197 FLR 335; [2006] FamCA 2006

Jordan & Sutton [2022] FedCFamC1F 553

Jordan & Sutton (No 2) [2022] FedCFamC1F 850

McGraw‑Hill Financial Inc v Clurname Pty Ltd (2017) 123 ACSR 467; [2017] FCAFC 211

Page v McKensey [2004] NSWCA 437

Tian & Fong [2010] FamCAFC 255

Division: Division 1 First Instance

Number of paragraphs: 33

Date of hearing: 25 May 2023

Place: Sydney

Counsel for the Applicant: Mr Richardson SC with Mr Gray

Solicitor for the Applicant: Barkus Doolan Winning

Counsel for the First Respondent: Mr Henry SC with Mr Roberts

Solicitor for the First Respondent: Pearson Emerson Family Lawyers

Counsel for the Fourth Respondent: Mr Giles SC with Mr Thomson

Solicitor for the Fourth Respondent: Clayton Utz

Counsel for the Fifth to Twentieth Respondents: Mr Dick SC with Mr Ford

Solicitor for the Fifth to Twentieth Respondents: Herbert Smith Freehills
ORDERS

SYC 6819 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS JORDAN

Applicant

AND:
MR SUTTON

First Respondent

B PTY LTD

Second Respondent

D PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE…

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 Jordan & Sutton (No 4)

Details

AGLC: Jordan & Sutton (No 4) [2023] FedCFamC1F 656
Case: [2023] FedCFamC1F 656
Decision Date

CaseChat Overview and Summary

These proceedings concern property adjustment between the wife, Ms Jordan, and the husband, Mr Sutton. A number of third parties who have been joined to the proceedings are also involved. The wife seeks leave to file a Further Amended Initiating Application, which would introduce an alternative set of relief claims to be considered if the existing claims fail. The respondents opposed leave to amend on the basis that it was ultra vires and would cause immediate prejudice to the respondents. The court was required to determine whether the proposed amendment should be allowed. The court considered the objectives of the overarching purpose of the Family Law Act 1975 (Cth) and the relevant case law. The court found that the proposed amendment was not bound to fail and that there was no immediate prejudice to the respondents. The amendment would enable the court and the parties to better understand the scope of the issues to be agitated at trial, promoting more effective case management and the overarching purpose. The court granted leave to file the Further Amended Initiating Application. Costs of the application were reserved.

Orders