Kapoor and Kapoor

[2013] FamCA 669

FAMILY COURT OF AUSTRALIA

KAPOOR & KAPOOR [2013] FamCA 669

FAMILY LAW – PRACTICE AND PROCEDURE – Whether an extension of time to file an affidavit should be granted where the material contained in that affidavit had been available to the husband for a period of eighteen months – Whether leave should be granted to file an expert report that does not comply with the Family Law Rules 2004 (Cth) – Order that application for leave be dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) rr 15.51, 15.52, 15.53, 15.54, 15.56, 15.57 and 15.58

APPLICANT: Mr Kapoor

RESPONDENT: Ms Kapoor

FILE NUMBER: HBC 90 of 2011

DATE DELIVERED: 15 July 2013

PLACE DELIVERED: Launceston

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 15 July 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr W Ayliffe

SOLICITOR FOR THE APPLICANT: Blissenden Lawyers

COUNSEL FOR THE RESPONDENT: Mr F Dixon S.C.

SOLICITOR FOR THE RESPONDENT: PWB Lawyers

Orders

1. The application in a case filed 20 June 2013 by the husband for permission for extension of time to file an affidvait of Mr B is dismissed.

   IT IS DIRECTED

2. A copy of the reasons for these orders be taken out and placed on the court file.      

   IT IS NOTED

3. The husband be given leave to file and serve the affidavit of Dr C.

4. The question as to whether there is an agreement as to the valuation of the property D Street, Suburb E, City F and whether a valuation may be needed has been adjourned to the hearing commencing 22 July 2013.

   IT IS CERTIFIED

5. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kapoor & Kapoor 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 LAUNCESTON

FILE NUMBER: HBC 90 of 2011

Mr Kapoor

Applicant

And

Ms Kapoor

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These reasons relate to an application in a case in which the husband sought an extension of time to file an affidavit sworn by Mr B, an Country G barrister.  These are property proceedings between Mr Kapoor and Ms Kapoor which were commenced in the Federal Magistrates Court, as it then was, in 2011.  These proceedings had been the subject of a number of endeavours to advance the matter to final hearing and in 2012 were transferred to the Family Court for hearing.  They came before me on 3 December 2012, when I was told that this was a complex property matter which involved significant issues, including issues as to the employability of the husband.

2. At that time, I was informed that expert evidence may be required in relation to the husband’s health and employment prospects. I was notified that there were potential issues in regard to Country G law; however I do not recall the precise discussion that occurred, regarding this.

3. Accordingly, I listed this matter for a five day hearing, to commence on 22 July 2013; almost eight months ahead in time. I warned the parties to be ready for hearing and that there should be no reason why the matter was not ready for hearing. I directed that the parties file all material upon which they sought to rely, by 12pm on Friday 15 March 2013.

4. I noted that an expert on Country G law may need to be engaged and I directed that any expert must depose that they had read and understood the requirements under the Family Law Rules 2004 (Cth). The matter came back before me on 14 May 2013. At that time, Mr Blissenden sought leave to file an affidavit by an Country G lawyer, in relation to Country G law and the impact of the occupation of others on the value of the property in Suburb E, City F.

5. I note my orders at that time, which may have some impact on the later valuation aspect and said:

   2.The Court extends, until 10.00am Monday 20 May 2013 for the husband to file an affidavit of a [Country G] expert in relation to [Country G] law relating to the impact of occupation of others on the agreed value of the real estate in [City F], such affidavit will deal with the question of property and trusts.

6. I note the reference to “agreed value” in that order and anticipate that this may be something that the parties will reflect upon during deliberations as to the issue of valuation, at hearing.

7. The application for an extension of time was hotly opposed by Ms Daniels, solicitor for the wife.  However, I extended the time until 20 May 2013 and I indicated to the parties that I was going on leave on 28 May, returning Monday, 15 July.  I advised the solicitors that if an issue arose, it would need to be dealt with before I went on leave, otherwise it would not be dealt with until my return.

8. Unfortunately, the affidavit of Mr B was not available until 23 May 2013, when Mr Blissenden sent a letter to Ms Daniels, that letter being annexure A to his affidavit.  In his affidavit, Mr Blissenden annexed a copy of the affidavit of Mr B, sworn 16 May 2013.  The affidavit did not comply with my directions of 3 December 2012, although in part Mr B has endeavoured to address that matter in paragraphs 7 and 8 of his affidavit.  The contents of his affidavit itself, are somewhat unremarkable, in some respects and remarkable in other respects.

9. In his affidavit, Mr B deposes that he is a barrister and was instructed by the husband in London.  It is of value to note that Mr Blissenden says that in taking instructions from the husband, he relied upon the assistance of the husband’s brother, Mr H Kapoor, who, on Mr Blissenden’s evidence, is a practicing solicitor in Country G. Mr Blissenden deposed that in many respects, Mr H Kapoor performed the role of an instructor.  In effect, the husband has had the assistance of his brother, as solicitor and Mr Blissenden.  Mr B annexed his curriculum vitae and made some amendments to it.  He annexed a list of documents referred to in his advice and provided copies of those documents.  In addition, Mr B annexed two separate written advices, both given by him of 20 February 2012.  That is the extent of Mr B’s affidavit.

10. In regard to that affidavit, there are a number of matters to which I turn my mind.  Firstly, that the first the wife has seen of those advices, was when they were annexed to the affidavit and yet those advices had been available to the husband from February 2012; a period of approximately 18 months prior to filing.

11. Secondly, that the evidence is not being adduced as a single expert, but by an expert.  It does not contain, as one would have anticipated, the brief, or any of the documents one would have expected in terms of such instructions.  The affidavit does not disclose to whom the advice was provided, other than to the husband.  Therefore it is unknown whether Mr B’s advice was commissioned through the husband’s brother as solicitor, or some other firm or whether it was some direct brief.

12. I note that r 15.51 of the Family Law Rules 2004 (Cth) states that a party must seek the Court’s permission to adduce an expert’s report. Mr B’s affidavit does not address the matters set out in r 15.51 through to r 15.58.

13. I see few reasons why this material ought not to have been made available to the wife through her solicitor, months ago, let alone some six or eight weeks before a hearing.  This also occurred in circumstances where the parties were aware that I, as the judge hearing the trial, was going on leave less than one week after the material was provided.

14. I was surprised that counsel for the husband did not make an application for permission to use that expert report and the evidence contained within, particularly having regard to the age of the material.

15. It is the husband’s assertion that this evidence was significant in terms of the value of the property, particularly having regard to a number of pieces of Country G legislation.  It beggars belief, that if that was the husband’s substantial position, that he would not have provided this material to the wife earlier and, perhaps more importantly, to the Court.

16. I bear in mind that the husband was in possession of this information when this matter first came before me for trial directions in December 2012.  Whist the delay in filing is relatively minor in the context of the difference between 20 May and 23 May, it is the nature of the content of that material, particularly in the circumstances of the advice being available to the husband since February 2012.

17. I am not satisfied that leave should be extended to enable that affidavit to be filed.  I have had regard to the submissions as to the law regarding this, made to me by Mr Dixon on behalf of the wife and I refuse permission for the husband to rely upon the affidavit of Mr B.

18. I have reserved the question of costs and also the issue of valuation until further material is provided.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 15 July 2013.

Associate:     

Date:              15 July 2013