Leventis & Leventis (No 4)

Case [2023] FedCFamC1F 58


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Leventis & Leventis (No 4) [2023] FedCFamC1F 58

File number MLC 7710 of 2018
Judgment of WILSON J
Date of judgment 14 February 2023
Catchwords

FAMILY LAW – EVIDENCE – admissibility of evidence at trial – husband's parents as second and third respondents seeking to adduce evidence of a witness in an affidavit prepared on the Sunday prior to the Monday start of trial – the failure to provide the affidavit earlier and in accordance with trial directions unexplained – Aon Risk Services Australia Ltd v Australian National University principles applied – no medical evidence to explain the late provision of affidavit evidence – whether the failure to provide the witness's evidence earlier and in accordance with trial directions was a deliberate tactical decision – held affidavit inadmissible.

FAMILY LAW – TRUSTS AND TRUSTEES – evidence sought to be adduced by the husband’s parents as second and third respondents about the reason why the Leventis Family Trust was created and to interpret its terms – held, in accordance with Byrnes v Kendle (2011) 243 CLR 253, evidence ruled inadmissible.

Legislation

Family Law Act 1975 (Cth) ss 69ZT, 79, 79(1)(a) and 79(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rule 1.04

Cases cited

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Ashby v Slipper [2014] FCAFC 15

Ashton v Pratt (2015) 88 NSWLR 281

Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588

Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297

BNMB Transport Pty Ltd v Mercedes-Benz Australia Pacific Pty Ltd & Anor [2016] FCCA 2047

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Byrnes v Kendle (2011) 243 CLR 253

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) (2007) 162 FCR 466

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155

Harris v Dewell (2018) 58 Fam LR 313

Holloway v McFeeters (1956) 94 CLR 470

Honeysett v R (2014) 253 CLR 122

Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896

J & A Vaughan Super Pty Ltd (Trustee) v Becton Property Group Ltd [2014] FCA 581

Jenyns v Public Curator (Qld) (1953) 90 CLR 113

Jess & Jess (No 3) [2023] FedCFamC1A 2

Jess & Jess (No 4) [2022] FedCFamC1F 530

John Buttery & Co v A & J Inglis (1877) 5 R 58

Jones v Dunkel (1959) 101 CLR 298

Kauter v Hilton (1953) 90 CLR 86

Kennon v Spry (2008) 238 CLR 366

Lithgow City Council v Jackson (2011) 244 CLR 352

Luxton v Vines (1952) 85 CLR 352

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mills v Sportsdirect.com…

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Details
AGLC
Leventis & Leventis (No 4) [2023] FedCFamC1F 58
Case
[2023] FedCFamC1F 58
Decision Date

CaseChat Overview and Summary

In the Family Law Court, Ms Leventis, the applicant, brought proceedings against Mr Leventis, the first respondent, and Mr and Ms Leventis, the second and third respondents. The case involved complex family law matters, including property adjustment applications under the Family Law Act 1975 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The second and third respondents, Mr and Ms Leventis, sought to adduce evidence from a witness, Mr N, on the eve of the trial, which raised significant evidentiary objections. The primary issue before the court was the admissibility of Mr N's late affidavit and the proposed unsworn evidence, which was objected to by the wife. The court had to decide whether the evidence was admissible, relevant, and whether admitting it would be just and equitable.

The court held that Mr N's 5 February 2023 affidavit was inadmissible. The affidavit contained vague and unsubstantiated statements, lacked specific details, and failed to provide any meaningful information that would assist in determining the issues in the case. The court found that the affidavit did not meet the necessary standards of admissibility, and its admission would not serve any useful purpose in the litigation. The court also refused leave for Mr N to make, file, and serve an affidavit in the form of the document styled "unsworn evidence of [Mr N]." The unsworn evidence contained irrelevant and inadmissible content, including hearsay, subjective opinions, and irrelevant personal details. The court found that admitting such evidence would not contribute to the resolution of the case and would likely cause unnecessary delays and complications.

However, the court held that evidence about the advances made by the second and third respondents was admissible as it went to their claim that they were owed over $2 million. The court also found that evidence about a second, different version of the Leventis Family Trust was relevant as it was critical that the correct version of the trust deed was in evidence. The three documents dated 6 February 2011 were relevant to the husband's contentions that he resigned as trustee. Whether those instruments were effective or invalid remained live issues for the trial to determine.

The court's decision ensured that the trial proceeded in a manner consistent with the overarching purpose of the Family Law Act and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, which is to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible. The court's ruling on the admissibility of evidence aimed to maintain the integrity of the trial process and prevent unnecessary delays and complications that could arise from admitting irrelevant or unsubstantiated evidence.

Orders

Orders of the court

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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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