Mendicino and Mendicino and Ors (No 2)

[2015] FamCA 428

FAMILY COURT OF AUSTRALIA

MENDICINO & MENDICINO & ORS (NO 2) [2015] FamCA 428

FAMILY LAW – PROPERTY – Practice and procedure – Wife’s application for leave to file an amended application in relation to her claim for relief under s 106B of the Family Law Act 1975 (Cth) – Where the reasons for delay in seeking the amendment are explained satisfactorily – Where no specific prejudice is identified by the respondents should leave to amend be granted – Where the prospects of success of the amended relief sought by the wife is a question for trial – Leave granted.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Mendicino

FIRST RESPONDENT: Mr Mendicino

SECOND RESPONDENT: Mr D Mendicino

THIRD RESPONDENT: Ms E Mendicino

FOURTH RESPONDENT: Mr F Mendicino

FIFTH RESPONDENT: G Pty Ltd

FILE NUMBER: BRC 875 of 2013

DATE DELIVERED: 5 June 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 5 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk QC with
Mr SJ Williams of Counsel

SOLICITOR FOR THE APPLICANT: Cooper Grace Ward

COUNSEL FOR THE FIRST RESPONDENT: Mr Richardson SC with Dr Ingleby of Counsel

SOLICITOR FOR THE FIRST 

RESPONDENT:

HopgoodGanim Lawyers

COUNSEL FOR THE SECOND, THIRD AND

FIFTH RESPONDENTS:

Dr J Brasch QC

SOLICITOR FOR THE SECOND AND

THIRD RESPONDENTS:

Phillips Family Law

COUNSEL FOR THE FOURTH 

RESPONDENT:

Mr M Kearney SC with Mr Alexander of Counsel

SOLICITOR FOR THE FOURTH AND

FIFTH RESPONDENTS:

Emanate Legal

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. Leave is given to the Wife to file and serve an amended claim containing a claim for relief pursuant to s 106B of the Family Law Act 1975 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mendicino & Mendicino & Ors (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 875 of 2013

Ms Mendicino

Applicant

And

Mr Mendicino

First Respondent

And

Mr D Mendicino

Second Respondent

And

Ms E Mendicino

Third Respondent

And

Mr F Mendicino

Fourth Respondent

And

G Pty Ltd

Fifth Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In relation to the application by the wife seeking to amend her claim in the substantive proceedings and seeking further orders, specifically declarations including a declaration pursuant to s 106B of the Family Law Act 1975 (Cth), it seems to me that the wife has explained the reasons for her delay in seeking that amendment satisfactorily; in circumstances where she has been pursuing disclosure issues, it seems, since February of this year concerning the relevant accounting or journal entry which is the subject of her proposed amended pleading.

2. Nothing to which I have been directed points to specific prejudice being suffered by any of the other respondents if leave is given to the wife to now make those amendments. 

3. As it seems to me, the only matter standing in the way of the amendment, then, would be the Court being satisfied that there was no reasonable prospect of the amended relief being granted or being effectual.

4. As it seems to me, that is an issue for the trial of these proceedings and I express no view either way as to the prospects of the wife succeeding in the claims sought to be mounted with respect to the amended claim for declarations.

5. For these reasons I will give leave to the wife to amend her claim as sought.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 June 2015.

Associate:

Date:  9 June 2015