Keach and Keach (No 4)

[2009] FamCA 1376

FAMILY COURT OF AUSTRALIA

KEACH & KEACH (NO. 4) [2009] FamCA 1376

FAMILY LAW – TRIAL – DISCLOSURE – Application of second respondent to tender documents after the respondent’s case closed – documents not produced as part of discovery prior to trial – whether prejudice to respondent if tendered – non-compliance by second respondent with rule 13.02 – application dismissed.

Family Court Act 1975 (Cth)
Family Law Rules 2004 r 13.02

APPLICANT: Mr Keach

RESPONDENT: Ms Keach

THE SECOND RESPONDENT: J Pty Ltd

FILE NUMBER: SYF 2181 of 2006

DATE DELIVERED: 25 September 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Strickland J

HEARING DATE: 25 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE FIRST 

RESPONDENT:

Mr North SC

with Mr Kearney

SOLICITOR FOR THE FIRST RESPONDENT: Barkus Doolan Kelly

COUNSEL FOR THE SECOND RESONDENT

Mr Maiden SC

with Mr Emmett

SOLICITOR FOR THE SECOND RESPONDENT Esplins Solicitors

Orders

1. That the oral application made by the second respondent to tender the general ledger for the loan accounts of the Junior Trust from 2000-2009 be dismissed.

FURTHER ORDER

1. That the document the subject of objection be marked as MFI1.

2. That leave is granted to the second respondent to file the affidavit of Mr P and rely on it for the purpose of these proceedings.

3. That further consideration of all outstanding issues be adjourned to a date to be advised in the week commencing 5 October 2009.

4. That leave is granted to the parties and their legal representatives to attend that hearing by way of telephone.

IT IS NOTED that publication of this judgment under the pseudonym Keach & Keach and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2181 of 2006

MR KEACH

Applicant

And

MS KEACH

First Respondent

And

J PTY LTD

Second Respondent

EX TEMPORE REASONS

1. In this continuing matter I now have an application before me by the second respondent seeking leave to tender what is described as general ledgers for the loan accounts of what has been referred to in these proceedings as the junior trust, from the financial year ending June 2000 to the financial year ending June 2009. 

2. The starting point perhaps in relation to this application is a document contained in the bundle of four volumes of documents which have been tendered jointly by the parties pursuant to orders of Watts J.

3. The relevant document is at tab 59 and is a document headed “Loan [Mr Keach] Junior to [Keach] Junior Trust”, and then there are several columns.  There is a column of years stretching back to 1996 and concluding at 2009.  Then there is a column for opening balance, a column for funds linked to trust, a column for loan repaid and a column for closing balance.  Now that document emanated from the second respondent in this way.  There was an order made by Watts J on 18 November 2008, and in particular…