Kavan & Mallery & Anor - [2013] FCCA 210

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAVAN & MALLERY & ANOR

[2013] FCCA 210

Catchwords:
FAMILY LAW – Parenting and property – de facto relationship – claim against second respondent based on equitable estoppel – interlocutory issues.

Objection to production of documents on subpoena – relevance, privacy and privilege – no confidential communication – will or codicil is not a confidential communication.

Adjournment application under s.90SM(5) until death of the second respondent – whether likely change in financial circumstances arises because second respondent might alter his will – whether first respondent has a chose in action constituting property arising out of potential claim under the Succession Act 2006 (NSW) – whether such a claim is a bare right and not a chose in action.

Summary dismissal – whether claim against second respondent based on equitable estoppel has merits – even a weak claim, which is not frivolous or vexatious, is entitled to be heard.

Severance of equitable from family law claim – accrued jurisdiction invoked and now unjust to put in contention the court’s jurisdiction – family law and equitable claims arise out of same substration of facts.

Application for applicant to provide security for costs as it relates to claim against second respondent – to be determined at future date.

Legislation:
Bankruptcy Act 1966 (Cth), ss.5
Evidence Act 1995 (Cth), ss.55, 117, 118
Family Law Act 1975 (Cth), ss.79(5), 81, 90SM(5)
Succession Act (2006) (NSW), ss.4, 57, 59, 60

Cases cited:
Beck v Beck (2007) FLC 83-181
Best & Best [1993] FamCA 107
Bigg v Suzi (1998) FLC 92-799
De Angelis & De Angelis [1999] FamCA 1609
Grace & Grace (1998) FLC 92-792
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541
Mullane & Mullane (1983) FLC 91-303
Official Receiver in Bankruptcy v Schultz (1990) 96 ALR 327
Peleman v Peleman (2000) FLC 93-037
Spellson & Spellson, George & Janango Pty Ltd (1989) FLC 92-046
Spry v Kennon [2008] HCA 56
Unicomb v Official Trustee in Bankruptcy (2000) 99 FCR 1
Warby & Warby (2002) FLC 93-091
White & Tulloch & White [1995] FamCA 127
Zorbas & Zorbas (1990) FLC 92-160

ALRC 26, Vol. 1, para.641.

Applicant:

MS KAVAN

First Respondent:

MR L MALLERY

Second Respondent:

MR J MALLERY

File Number:

SYC 1102 of 2012

Judgment of:

Judge Altobelli

Hearing date:

9 April 2013

Date of Last Submission:

9 April 2013

Delivered at:

Sydney

Delivered on:

10 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr Schonell SC

Solicitors for the Applicant:

Reid Family Lawyers

Counsel for the First Respondent:

Mr Johnston

Solicitors for the First Respondent:

Marks Griffiths & Bova Solicitors

Counsel for the Second Respondent:

Mr Murr SC and Mr Watkins

Solicitors for the Second Respondent:

Shipton & Associates Solicitors

ORDERS

The Applicant’s Application in a Case filed 21 February 2013 be dismissed.
The Second Respondent’s Application in a Case filed 21 March 2013 be dismissed as to order 1, and as to order 2 be listed for hearing by way of submissions on Friday 5 July 2013…

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 Kavan & Mallery & Anor

Details

AGLC: KAVAN & MALLERY & ANOR [2013] FCCA 210
Case: [2013] FCCA 210
Decision Date: 10 May 2013

CaseChat Overview and Summary

In the matter of *Kavan & Mallery & Anor*, Judge Altobelli of the Family Court of Australia considered interlocutory issues arising from parenting and property proceedings concerning a de facto relationship. The applicant sought to pursue a claim against the second respondent based on equitable estoppel, and also raised objections to the production of documents via subpoena.

The court was required to determine several legal issues, including whether a will or codicil constituted a confidential communication for the purposes of privilege, whether an adjournment under s.90SM(5) of the *Family Law Act 1975* (Cth) was warranted due to a potential change in the second respondent's financial circumstances arising from a possible alteration of his will, and whether the first respondent possessed a chose in action or merely a bare right in relation to a potential claim under the *Succession Act 2006* (NSW). Furthermore, the court had to consider whether the equitable estoppel claim against the second respondent had sufficient merit to proceed, and whether the court retained jurisdiction over the equitable claim given its accrued jurisdiction and the common substration of facts with the family law claims. The issue of security for costs in relation to the claim against the second respondent was also before the court.

Judge Altobelli reasoned that a will or codicil is not a confidential communication, thus dismissing the objections to the subpoenaed documents. The court found that even a weak claim, provided it was not frivolous or vexatious, was entitled to be heard, and therefore the equitable estoppel claim against the second respondent had merits. The court also determined that it retained accrued jurisdiction over the equitable claim, and it would be unjust to put that jurisdiction in contention. The application for an adjournment was dismissed, and the application for security for costs was to be determined at a future date.

The court ordered the dismissal of the applicant's application filed on 21 February 2013. The second respondent's application filed on 21 March 2013 was dismissed in part, with one aspect to be listed for hearing by submissions. The court also ordered that the second respondent file and serve further evidence regarding security for costs within 14 days, and the applicant file and serve opposing material within 35 days, with written submissions due seven days prior to the hearing date. Objections to subpoenas were dismissed, with costs reserved to the final hearing, except for costs arising from the notice of objection.

Orders

Orders of the court

The Applicant’s Application in a Case filed 21 February 2013 be dismissed.

The Second Respondent’s Application in a Case filed 21 March 2013 be dismissed as to order 1, and as to order 2 be listed for hearing by way of submissions on Friday 5 July 2013 at 9.00am.

The Second Respondent file and serve any further evidence in support of his application for security for costs within 14 days.

The applicant file and serve any material in opposition of such claim within 35 days.

Written submissions be filed and served no later than seven (7) days before the date listed for determination of the application.

Notices of Objection to subpoena filed 19 November 2012 be dismissed.

Except as regards the applicant’s costs arising out of the Notice of Objection (in respect of which leave to relist for argument on seven (7) days’ notice is granted) all costs arising out of the matters covered these orders are reserved to the final hearing.

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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