Levy & Levy
[2023] FedCFamC2F 1456
•16 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Levy & Levy [2023] FedCFamC2F 1456
File number(s): PAC 1943 of 2023 Judgment of: JUDGE NEWBRUN Date of judgment: 16 November 2023 Catchwords: FAMILY LAW – property proceedings – threshold hearing – leave granted to husband to commence property proceedings out of time. Legislation: Family Law Act 1975 (Cth) ss 44(3), 79 Cases cited: Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216
Skelton & Lindop (2022) 64 Fam LR 617
Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 3 November 2023 Place: Parramatta Counsel for the Applicant: Mr J Shaw Solicitor for the Applicant: Hutchison Lawyers Counsel for the Respondent: Mr R D Turnbull Solicitor for the Respondent: Abbas Jacobs Lawyers ORDERS
PAC 1943 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LEVY
Applicant
AND: MS LEVY
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
16 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), leave is granted to the Applicant Husband to make an application for Orders under s 79 of the Act out of time.
2.The proceedings are adjourned to 19 February 2024 at 9.30 am for mention.
AND THE COURT NOTES THAT:
A.The Applicant Husband commenced proceedings on 20 April 2023. There is no need for him to file a fresh Initiating Application pursuant to the above Order granting leave.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
These reasons for judgment relate to the Applicant husband’s application, pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”), seeking leave to commence property adjustment proceedings under s 79 of the Act out of time.
In these reasons, for ease of reference, the Applicant husband shall be referred to as the husband and the Respondent wife shall be referred to as the wife.
The husband was born in 1976, and is now aged 47 years.
The wife was born in 1984, and is now aged 39 years.
The parties had married in Country B in 2004.
The parties had two daughters, X now aged 17 years, and Y now aged 14 years.
Their divorce became absolute in September 2021. Accordingly, he should have commenced property adjustment proceedings by September 2022. The husband commenced these proceedings on 19 April 2023. Thus he was about 7 months out of time.
MATERIAL RELIED UPON
The husband relied upon:
(a)His Amended Initiating Application filed 19 April 2023;
(b)His affidavit filed 26 August 2023;
(c)Affidavit of Mr C filed 28 October 2023;
(d)Affidavit of Mr D filed 28 October 2023;
(e)Affidavit of Mr E filed 28 October 2023;
(f)His Amended Case Outline filed 2 November 2023.
The wife relied upon:
(a)Her Response filed 2 June 2023;
(b)Her affidavit filed 27 October 2023;
(c)Her Case Outline filed 31 October 2023.
The following exhibits became evidence in the proceedings:
(a)Exhibit A: Undertaking as to disclosure filed on 24 August 2023 by the wife;
(b)Exhibit B: Husband’s amended tender bundle containing 53 pages;
(c)Exhibit C: Wife’s tender bundle containing 37 pages;
(d)Exhibit D: Caveat no. … and loan offer of Westpac banking corporation.
LEGAL PRINCIPLES
In Hardwick & Hardwick (No 2) [2022] FedCFamC1A 216 at [23]–[31], the Full Court stated:
23The decision as to whether leave should be granted to commence or continue proceedings pursuant to Pt VIII of the Act essentially involves balancing two competing principles of public policy. The first is that the Commonwealth Parliament has stated that, ordinarily, such proceedings should be commenced within 12 months of the date of the divorce. The second is that relief from the operation of s 44 of the Act should nonetheless be granted out of time in order to avoid hardship to a spouse or a child of the relationship.
24In respect to that second consideration, s 44(4)(a) of the Act provides that an extension of time should not be granted under s 44(3) of the Act unless the Court is satisfied “that hardship would be caused to a party to the relevant marriage… if leave were not granted”.
25 In Whitford & Whitford (1979) FLC 90-612 at 78,145, the Full Court said:
In ordinary parlance, hardship means something more burdensome than “any appreciable detriment”. We consider that in subsec. 44(4) the word should have its usual, though not necessarily its most stringent, connotations. It is impossible to lay down in advance what particular facts may or may not amount to hardship in the relevant sense.
26We observe that in Family Law (2022, 7th ed) at [36.120], Riethmuller and Smith note that what constitutes appreciable detriment necessarily depends upon the circumstances of each case, stating that:
In many cases the substantial detriment is the inability of a spouse to pursue a claim for maintenance or an alteration or property interests where the resulting loss is significant in the light of his or her financial circumstances.
27The applicant for relief’s prospects of success in the proceedings, if leave is granted, is relevant to both the question of hardship and the second task undertaken by the Court, which is to consider matters going to the exercise of discretion generally. This is because “[if] the probable result of the hearing on the merits is that hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant would suffer hardship if leave were not granted”: V and S [2006] FCWA 2 (“V and S”), per Thackray J at [6].
28As recently noted by Austin J in Skelton and Lindop (2022) 64 Fam LR 617 (“Skelton and Lindop”) at [16]–[21], there is differing authority as to the test to be applied in determining the prospects of success. Those tests range from the need to establish “prima facie claim” to the need to establish “a real probability of success.” We respectfully acknowledge and adopt the reasoning of Austin J that the appropriate test to apply is whether the applicant for relief had “sufficient likelihood of success” to prove hardship.
29In the event of the trial judge finding that the applicant for relief would suffer hardship if an extension of time was not granted, it is then necessary for the trial judge to consider those matters going to the exercise of discretion. In V and S, Thackray J noted at [7] that, in addition to prospects of success, other potentially relevant considerations to the exercise of discretion may include the following:
•The extent of the delay and the reasons (or absence of reasons) for the delay: Althaus & Althaus (1982) FLC 91-233;
•The extent of the hardship the applicant would experience if leave were not granted: Carlon & Carlon (1982) FLC 91-272; and
•The extent of the prejudice that would be caused to the respondent if leave were granted.
30In Frost & Nicholson (1981) FLC 91-051 (“Frost & Nicholson”) at 76,425, Nygh J said that prejudice, in this context, “means that a party is faced with an action which he or she had no reason to expect or had been led to believe would not be brought”. However, in Atwill & Atwill (1981) FLC 91-107 (“Atwill & Atwill”) at 76,794, Nygh J stated that the relevant prejudice would need to be “distinctly observable hardship, such as financial commitments made on the basis that no liability existed”. It appears to us that the extent of any prejudice is simply one of the relevant factors to consider and that Nygh J’s comments in these two cases should be read as descriptive of circumstances where prejudice is likely to be a weighty factor, not a test for the relevance of evidence of prejudice. Additionally, in Atwill & Atwill, his Honour also pointed out that the fact that the respondent will suffer prejudice does not necessarily mean that the discretion will be exercised in their favour.
…
31Applications seeking an interlocutory order under s 44(3) of the Act are generally dealt with on the basis that the applicant’s evidence is presumed to be correct “unless it is inherently unbelievable or contradictory” (Jacenko & Jacenko (1986) FLC 91-776 at [14]; Skelton & Lindop at [36]). It is important to appreciate that it is only in the event of leave being granted that the Court, at final hearing, will make a determination in respect to the accuracy or otherwise of the parties’ competing factual contentions.
In Skelton & Lindop (2022) 64 Fam LR 617 (see above), Austin J had stated inter alia:
21 It may be in this case the primary judge was saying no more than that the appellant did not demonstrate her case had “sufficient likelihood of success” to prove hardship, which would be the correct test, but his Honour’s reference in the reasons for judgment to not being satisfied “on the balance of probabilities” (at [82]), nor that the appellant’s claim has “a real probability of success” (at [87]), has the flavour of demanding more from the appellant than she needed to give. She certainly did not have to prove it was more probable than not that her claim for property settlement relief would succeed if allowed to proceed.
…
37 It is true the appellant did not lead evidence to explain why she omitted to bring her claim with the two-year limitation period, which is of course usually an influential factor, but it is not of itself necessarily fatal (Emerald & Emerald [2018] FamCAFC 217; (2018) FLC 93-870 at [128]; Carlon & Carlon [1982] FamCA 60; (1982) FLC 91-272 at 77,533). Significantly, the appellant sent a letter to the respondent in March 2018 (just before the limitation period expired) foreshadowing her intention to bring a claim, so he was on notice. The primary judge was satisfied the further eight months which then elapsed before the claim was actually filed in November 2018 was “not substantial” (at [94]). Moreover, the primary judge found the only prejudice the respondent would suffer if the appellant’s claim was allowed to proceed out of time would be the legal costs he would bear in defending her claim – but he would have been put to that expense anyway if the appellant’s claim was brought within time.
DISCUSSION
Does the husband have a “sufficient likelihood of success” to prove hardship?
At the outset the Court recognises that there are numerous factual disputes between the parties, including whether it was the husband or the wife that made relevant financial contributions towards the purchase of the former matrimonial home and towards the payment of mortgage loan repayments thereafter, and there is a dispute about separation date. The Court, consistent with legal authority, will take the evidence of the husband at its highest where in conflict with the wife’s evidence.
The husband asserts that the parties finally separated on about 21 August 2020.
In 2006 the husband asserts that he purchased a property at Suburb F for $300,000. He borrowed $205,000 by way of mortgage loan. At this time the parties and their eldest child were living at Suburb G, the husband was working in a shop at Suburb F, and the wife was a housewife looking after this child.
The wife, in her affidavit filed 27 October 2023, states that in either late 2006 or early 2007 the husband saved for a deposit and purchased a unit in Suburb G. She states that the husband had been working and got a loan off his friends.
In about late 2008 the husband asserts that he sold the property at Suburb F for approximately $300,000 and with the balance of proceeds of sale of about $130,766 (which he had banked to the parties’ joint account with Westpac in early 2009) in late 2009 he paid $24,500 to the wife’s Westpac bank account. He used $120,000 to purchase a business called H Business at Suburb J. The lease for that business commenced in late 2009. He made improvements to the premises and bought additional equipment in the sum of $15,000. He asserts that he ran this business until 2016 when he sold it for $160,000.
The husband asserts that whilst he was operating the business, he purchased a property at K Street, Suburb L (the former matrimonial home) in 2012 for over $500,000. He asserts that he paid the deposit of 10% from his savings plus a further amount of about $80,000, total over $130,000, and borrowed the balance purchase price of about $400,000 from Westpac. He asserts he allowed the wife to become the sole registered proprietor of the property. The Court observes that the formal loan application with Westpac was in the name of the wife and that the husband’s email address is stated on the information sheet signed by the wife for provision to the conveyancers for the purchase, M Conveyancers. He asserts that he executed a guarantee of the loan from Westpac to enable the Westpac loan to be made.
An affidavit witness of the husband, Mr D, asserts, inter alia, that in about early 2012 the husband approached him and told him that the parties were going to buy a house and asking whether cash from the husband’s business could be given to him for transfer to the wife’s bank account. He asserts that thereafter he and the parties met at Westpac where $60,000 was deposited into his account with Westpac and then he transferred those funds at the wife’s request to her account held with Westpac. There is at least a significant suggestion from this evidence of Mr D, in combination with the husband’s evidence of paying “the deposit of 10% from my savings plus a further amount of approximately [$80,000]” towards the purchase of the former matrimonial home, that the $60,000 was used to assist in this purchase.
An affidavit witness of the husband, Mr E, asserts, inter alia, that in about mid-2012 the husband came to his home and requested a loan of $25,000 for his intended purchase of the former matrimonial home. He asserts that shortly thereafter his parents attended the parties’ home and provided a loan of $25,000 in an envelope to the parties. He asserts that the husband repaid the loan to his parents in about late 2012.
The husband asserts that at the time of the above purchase of the former matrimonial home the wife was the primary carer of the children. He asserts that the wife was not in employment at the time of purchase and in fact the wife had not worked during the parties’ marriage. He asserts that the wife never had financial capacity to purchase the former matrimonial home other than money he had given to her.
The husband asserts that in 2015 he spent about $55,000 in improvements to the former matrimonial home by installing a new kitchen and new laundry. He asserts that in about early 2020 he made further improvements to the former matrimonial home by providing a new bathroom at a cost of about $35,000.
The husband asserts that by late 2016 or early 2017 the mortgage loan on the former matrimonial home was almost 90% to 95% paid off. He asserts that he made regular payments, sometimes up to $5,000 per month or more, which he gave directly to the wife to pay the mortgage. His income was solely from his business. He asserts that his income from his business paid for the entire mortgage to Westpac and all the payments were made when the parties were living together as husband and wife. He asserts that there was less than $4,000 owing under the mortgage loan from Westpac at the time of the parties’ final separation in August 2020.
The husband asserts that the wife has never been employed in Australia and made no financial contribution towards the mortgage loan from Westpac, nor towards the purchase of furniture, payment of rates and charges, nor payment of the children’s school fees, clothing, tutoring or other expenses. The husband asserts that he was making all the mortgage repayments throughout the parties’ marriage and until he vacated the former matrimonial home in 2020.
He asserts that in 2016, whilst living under the same roof as husband and wife, he took the wife and their children to Country N, Country P and Country B for a holiday. They stayed overseas for about two months. He purchased the airline tickets and paid for all the accommodation costs totalling between $25,000–$28,000.
The husband asserts that he purchased in late 2016 a new car for $30,000, which in 2018 he transferred to the wife.
The husband asserts that in mid-2022 the wife departed for Country B leaving the children in his care. The children lived with him until the wife’s return the following month. He asserts he paid for the children’s health care and well-being during the wife’s absence.
The husband asserts that he has worked all his life during his marriage to the wife. He asserts that the wife has not worked (in employment) and has been the primary carer of the children.
The husband asserts that he has made direct financial contribution and non-financial contribution to the family since the parties’ marriage in 2004 including his contribution to the development and education of the parties’ children to date. He asserts he has a very good relationship with the children.
An affidavit witness of the husband, Mr C, makes assertions broadly consistent with the husband’s assertions in relation to the date of the parties’ final separation. He asserts that he and his wife visited the parties regularly at the former matrimonial home up until August 2020. He asserts that in April 2020 he was told by his wife that the wife had contacted her inviting himself and his wife to the parties’ home for a barbecue, and he referred to himself and his wife proposing to attend a barbecue at the parties’ residence at the end of May 2020.
The affidavit witness, Mr C, refers to his wife and himself, and his parents, visiting the parties up until February 2020.
The husband asserts that he has no assets in his name as at the date of swearing his affidavit filed 26 August 2023, whereas the wife remains the registered proprietor of the former matrimonial home valued at about $1,200,000 with the mortgage loan predominantly paid off. He is now aged 47 years. He states that his current occupation is manager. He states that his gross weekly amount from his employment is $1,100. He asserts the parties had a relationship spanning the period from 2004 to August 2020; a relationship of some 16 years.
Taking the husband’s evidence at its highest, and taking into account the above discussed evidence, he probably has a “sufficient likelihood of success” to prove hardship. The Court finds that the husband would likely suffer hardship if he was not permitted to pursue his claim for property adjustment Orders.
The Court will now discuss relevant matters going to discretion.
The husband asserts, inter alia, that he was informed and believed that his solicitors were engaged in negotiation with the wife’s solicitors for the purpose of resolving the property settlement dispute. He asserts that it was his belief that he was under no obligation to commence proceedings whilst those negotiations were in train and still awaiting the disclosure from the wife.
The husband asserts that he has been trying to negotiate the issue of property settlement with the wife well before the time limit under s 44(3) of the Act to avoid costly proceedings since about March 2021 when the wife was represented by previous solicitors, Q Lawyers. He asserts that there was no progress made, and the wife then appointed her present firm of lawyers namely Abbas Jacobs Lawyers. This appointment occurred in about April 2022.
The husband asserts that to avoid unnecessary legal costs he instructed his solicitors and requested mediation in about May 2022 to resolve the issue of division of matrimonial assets.
In paragraph 32 of the husband’s affidavit filed 26 August 2023, he refers to an offer made by the wife to him representing a percentage of the value of the former matrimonial home which offer was rejected by the husband on the basis that it was an unjust and inequitable division.
The husband’s solicitors wrote an email letter to the wife’s solicitors on 7 April 2022 referring, inter alia, to an even division of the matrimonial home and mediation. The letter stated that if the mediation proposal was rejected they were instructed to commence proceedings immediately.
On 21 April 2022 the husband’s solicitors sent an email letter to a proposed mediator, Mr R, a former justice of the Family Court of Australia, and stating in that letter, “It is not a complex matter and I believe there are good prospects of settlement. There is a single asset, being the matrimonial home.”
The husband’s solicitors sent an email letter to the wife’s solicitors on 3 May 2022 referring, inter alia, to the wife’s solicitor’s letter of 4 or 5 April 2022. In that letter the husband’s solicitors referred to the husband’s request for a mediation as part of the pre-action procedure. Further in that letter it was stated that if the husband’s proposal for mediation was rejected (with a time limit of 6 May 2022 being given), the husband’s lawyers were instructed to commence proceedings immediately. The husband’s solicitors, in that letter, referred to its unanswered telephone calls to the wife’s solicitor’s office and a bounceback of an email from them to the wife’s solicitor’s office.
On 5 May 2022, the wife’s solicitors sent an email letter to the husband’s solicitors referring, inter alia, to the Court’s pre-action procedures, stating that mediation was premature because the parties were yet to exchange financial disclosures pursuant to the Courts rules, and setting out in some detail various disclosure documents required by the wife, with a deadline of 19 May 2022 being given.
In a further email letter from the wife’s solicitors to the husband’s solicitors of 5 May 2022, the husband’s lodging of a caveat on the former matrimonial home was referred to, with the wife’s solicitors stating, “We are instructed that our client will not deal with her home, either by using it as security or disposing until such time the parties have resolved their family law matter or by written consent of the parties.” They requested a response to this letter by 11 May.
On 28 June 2022 the wife’s solicitors sent an email letter to the husband’s solicitors stating inter alia that pursuant to pre-action procedures in the event that the husband remains to be non-compliant and their office had received a response by Friday then the wife will initiate proceedings without any further notice.
On 25 August 2022 the husband’s solicitors sent an email letter to the wife’s solicitors advising, inter alia, that they had been provided with relevant disclosure documents in the possession of the husband as requested. The email letter asked the wife’s solicitors to confirm that the wife would provide certain disclosure documents within 14 days, as outlined in the letter. The letter stated that it was the husband’s instructions that the wife has not worked at all during the marriage nor has she made any contribution, financially, to acquiring the former matrimonial home.
In an email letter from the husband’s solicitors to the wife’s solicitors dated 8 September 2022, the husband’s solicitors attached their further letter of even date, and also attached Schedule 1 Pre-action procedures for the wife’s attention.
The wife’s solicitor’s email letter dated 8 September 2022 stated, inter alia, that they had “now received your email today”, stated that they were not sure why the husband’s solicitor’s previous emails had not been received and asked them to forward those emails “to this email”. The letter further stated that the disclosures sought by the husband may require more than 14 days. The wife’s solicitors confirmed that it would have most of the disclosures in the next 14 days and will advise of any disclosures that may require further time. Finally, the letter stated that, “We note that we are open to a discussion about resolving this matter however, our client will require basic disclosures to be exchanged prior to any settlement negotiations.”
On 15 September 2022, the wife’s solicitors sent an email letter to the husband’s solicitors, referring to the husband’s solicitor’s email of even date, and stated that they were instructed that they will be able to exchange documents on 21 September 2022. They asked the husband’s solicitors to confirm that they will be able to do the same noting their telephone conversation last week.
On about 20 September 2022 the husband’s solicitor telephoned the wife’s solicitor and told him that he had the husband’s disclosure documents and they were ready to exchange. The wife’s solicitor stated that he had the wife’s disclosure documents that were not yet compiled and asking for a couple of days which was agreed to.
On 20 October 2022 the husband’s solicitor attended the offices of the wife’s solicitors and provided the husband’s disclosure documents. The husband’s solicitor handed over his letter dated 19 August 2022 to which were annexed the husband’s disclosure documents and a secretary of the wife’s solicitors signed a receipt on that letter. The letter referred to sending a formal offer of compromise the next day, 21 October 2022, and in the event of rejection, the husband would proceed to filing an initiating application.
On 20 March 2023, the husband’s solicitors sent an email letter to the wife’s solicitors stating, inter alia, that the husband to date has genuinely attempted to resolve the issue of division of matrimonial assets between himself and the wife. The letter referred to the many attempts by the husband to at least have a mediation to limit exposure to costly proceedings. The letter referred to the wife threatening that the husband has no claim whatsoever against the former matrimonial home. The letter provided the brochure pre-action procedure and in that context stated that the husband had clearly made every attempt to comply with the pre-action procedure and further had made full disclosure to the wife. The letter stated that in response, the husband’s solicitors had not received a single disclosure document from the wife’s solicitors office relating to the wife. The letter finally stated that the husband will now proceed with the filing of an Initiating Application.
On 29 March 2023 an email letter was sent by the wife’s solicitors to the husband’s solicitors referring, inter alia, to the previous provision of disclosure documents by the husband’s solicitors to the wife’s solicitors in about late September 2022, and stated that the substantive disclosures sought by the wife’s solicitor’s office are yet to be provided despite the initial request made on 5 May 2022. The letter also referred to the wife providing the husband’s solicitors office with financial disclosures on 10 October 2022. The letter referred to the husband’s lodging a caveat against the former matrimonial home in March 2021 asserting an interest in that property.
The husband asserted that he was advised by his solicitors that there was no record of any disclosure made by the wife until 29 March 2023, and there was no record of postal receipt by the husband’s solicitors of any letter of 10 October 2022 from the wife’s solicitors purportedly providing financial disclosure by the wife. In this context, the husband asserts that all communications for over 16 months (from the wife’s solicitors) had been by way of email correspondence and not by way of post.
In this case, in the Court’s view, there is a reasonable explanation for delay whilst acknowledging that it is not uniformly fulsome.
Again, inter alia, the husband sought to negotiate a property settlement with the wife, to avoid costly legal proceedings, through her former solicitors, from about March 2021 with no progress made. Thus, the wife was on notice of the husband’s intention to pursue a claim against her before the limitation period expired.
In April 2022 the wife appointed new solicitors. Thereafter his lawyers sought to negotiate a resolution of the husband’s claim with the wife’s lawyers. He asserts that it was his belief that he was under no obligation to commence proceedings whilst those negotiations were in train and still awaiting the disclosure from the wife. Mediation was suggested by the husband’s lawyers to the wife’s lawyers in about April 2022 however the wife’s lawyers stated that mediation was premature and that financial disclosure was needed.
Thereafter financial disclosure was sought by each side from the other. The husband’s side provided particular financial disclosure to the wife’s solicitors on 20 October 2022. The Court infers that thereafter the husband’s solicitors were probably awaiting particular financial disclosure from the wife’s solicitors until 20 March 2023 when the husband solicitor’s sent an email letter to the wife’s solicitors referring, inter alia, to the lack of disclosure by the wife’s side, and the husband’s previous genuine attempts to resolve the issue of property adjustment with the wife.
In any event, even if the Court is incorrect in finding that the husband has provided a reasonable explanation for delay, the extent of his delay is not particularly substantial. And further, the husband’s evidence suggests that he relied upon his solicitors to seek to negotiate a property adjustment settlement with the wife’s side and believed that he was under no obligation to commence proceedings whilst those negotiations were in train and still awaiting the disclosure from the wife. In particular, in these circumstances, if the husband’s solicitor unreasonably delayed in commencing proceedings by waiting some 5 months from 20 October 2022 until 20 March 2023 to receive the wife’s disclosure documents, such delay by the solicitor should not reasonably be sheeted home to the husband.
As to the husband’s solicitor’s statements to the wife’s solicitors, in various previous correspondence, to the effect that proceedings would be immediately commenced in the absence of certain action by the wife, there is a significant suggestion, viewing the husband’s solicitor’s overall conduct holistically (e.g. see the husband’s solicitor’s letter to the proposed mediator expressing good prospects of settlement) on behalf of the husband, that proceedings were not commenced earlier by reason of the prospect of there being successful settlement negotiations.
And finally, there is some force to the submission by the husband (the husband not conceding that a reasonable explanation for delay has not been given) that in this case the degree of hardship to be suffered by the husband, if not permitted to proceed with his property adjustment claim, would outweigh any found inadequate delay explanation; inter alia, assuming the parties’ relationship was some 16 years in duration, with the main asset of the relationship being the former matrimonial home valued at about $1.2 million, with no significant associated mortgage loan, the husband, if not permitted to proceed with his property adjustment claim, will be left with no assets and the wife would retain that property alone.
As to prejudice to the wife if the husband is granted leave to prosecute his property adjustment proceedings, it was submitted on behalf of the wife that the husband’s property adjustment evidential case was weak and that the wife would have to incur substantial legal costs to meet that case, if leave were granted, with no significant prospect of recovering her legal costs from the husband. Further, it was submitted by the wife that she had previously given an undertaking to the Court not to dispose of the former matrimonial home until the proceedings were determined and the Court would infer that she has and/or will suffer prejudice in not being able to dispose of that property. The Court’s impression of the husband’s property adjustment claim is that it is not weak, and the wife would have been put to the expense of legal costs anyway if the husband’s claim was brought within time. As to the above undertaking, the wife adduces no express evidence that previously she had intended to sell the former matrimonial home, or that she is proposing to sell that property.
Taking into account the above matters, it will be in the interests of justice that the Court exercise its discretion to grant leave to the husband under s 44(3) of the Act to make an application for Orders under s 79 of the Act out of time. The Court will make Orders accordingly.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Deputy Associate:
Dated: 16 November 2023
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