Leventis & Leventis (No 5) - [2023] FedCFamC1F 285

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leventis & Leventis (No 5) [2023] FedCFamC1F 285

File number MLC 7710 of 2018

Judgment of WILSON J

Date of judgment 19 April 2023

Catchwords
FAMILY LAW – PRACTICE AND PROCEDURE – application by second and third respondents to again rely on a proposed affidavit the draft of which was already the subject of a ruling rendering large portions of the draft inadmissible.

FAMILY LAW – TRUSTS AND TRUSTEES – evidence purportedly of the reasons for the creation of a family trust and of its intended operation is inadmissible where a comprehensive executed deed of trust is before the court and where no claim of rectification, fraud or non est factum is advanced.

Legislation Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rules 1.04, 8.19 and 8.20

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

Byrnes v Kendle (2011) 243 CLR 253

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

Curley v Duff (1985) 2 NSWLR 716

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Dunne v English (1874) LR 18 Eq 524

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

Goodridge v Beadle (2017) 57 Fam LR 425

GPI Leisure Group Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

Honeysett v R (2014) 253 CLR 122

In the Marriage of Chang & Su (2002) 29 Fam LR 406

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

Keevers & Keevers [2021] FedCFamC1F 338

Kioa v West (1985) 159 CLR 550

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

The Parisian (1887) 13 PD 16

Willans & Enmore (No 2) [2021] FamCA 340

Books cited John Levingstone, The Law of Affidavits (2013), Federation Press, chapter 18 entitled “Attendance by Deponent”

Division Division 1 First Instance

Number of paragraphs 74

Date of last submission 12 April 2023

Date of hearing 12 April 2023

Place Melbourne

Counsel for the applicant Dr E. Kelly

Solicitor for the applicant Lander and Rogers

Solicitor for the first respondent Vadarlis & Associates

Counsel for the second and third respondents Mr S. K. Wilson KC with Mr P. Panayi

Solicitor for the second and third respondents Ms W Conveyancing & Legal
ORDERS

MLC 7710 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MS LEVENTIS

Applicant

AND
MR LEVENTIS

First Respondent

MR B LEVENTIS

Second Respondent

MS C LEVENTIS

Third Respondent

order made by

WILSON J

DATE OF ORDER

19 APRIL 2023

THE COURT ORDERS THAT –
1.The second and third respondents’ application for leave to rely on the affidavit of Mr J made on 2 March 2023 is granted.
2.The second and third respondents’ application for leave to rely on the affidavit of Mr N made on 5 April 2023 is refused.
3.The second and third respondents’ ore tenus application in…

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 Leventis & Leventis (No 5)

Details

AGLC: Leventis & Leventis (No 5) [2023] FedCFamC1F 285
Case: [2023] FedCFamC1F 285
Decision Date

CaseChat Overview and Summary

Leventis & Leventis (No 5) is a family law proceeding in the Federal Circuit and Family Court of Australia. The case involves disputes over the admissibility of certain affidavits and expert reports. The applicants sought leave to rely on affidavits from Mr N and Mr J, and also sought orders to limit the use of an expert report by Mr K. The court was required to determine whether the second and third respondents should be granted leave to rely on the affidavits of Mr N and Mr J, and whether to limit the use of Mr K's expert report. In relation to the affidavit of Mr N, the court found that the majority of it was inadmissible, as it largely repeated evidence that had already been ruled inadmissible, and contained no new, relevant information. The court also found that the second and third respondents had not provided a sufficient explanation for the late introduction of this evidence. The court refused the application for leave to rely on the affidavit of Mr N. The court did, however, grant leave for the second and third respondents to rely on the affidavit of Mr J. In relation to the expert report of Mr K, the court found that there was no basis for the prescriptive orders sought by the second and third respondents, and that the cross-examination of Mr J should be assessed on a question-by-question basis. The court refused the application to limit the use of information from the K Report. The trial is set to resume on 8 May 2023.

Orders