Moy and Pao (No 2)

FAMILY COURT OF AUSTRALIA

MOY & PAO (NO. 2)

[2020] FamCA 1092

FAMILY LAW – PRACTICE & PROCEDURE – proceeding listed as an undefended trial – wife persistently dilatory in complying with orders – wife failing to file evidence by prescribed date with no reason given for such failure.

Family Law Act 1975 (Cth) s 79

Moy & Pao [2020] FamCA 1034

APPLICANT:

Ms Moy

RESPONDENT:

Mr Pao

INTERVENOR:

B Pty Ltd

FILE NUMBER:

MLC

6493

2011

DATE DELIVERED:

18 December 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

On the papers

DATE OF LAST SUBMISSION:

26 November 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. Moore

SOLICITOR FOR THE APPLICANT:

Avia Lawyers

COUNSEL FOR THE RESPONDENT:

Dr R. Ingleby

SOLICITOR FOR THE RESPONDENT:

Tao Jiang Lawyers

COUNSEL FOR THE INTERVENOR:

Ms D. Isaacson

SOLICITOR FOR THE INTERVENOR:

Mcdonald Lawyers

Orders

This proceeding is listed for an undefended hearing on 10 February 2021 at 10am for half a day.
All questions of costs are adjourned to the trial of this proceeding.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moy & Pao has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6493 of 2011

Ms Moy

Applicant

And

Mr Pao

Respondent

And

B Pty Ltd

Intervenor

EX TEMPORE REASONS FOR JUDGMENT

In Moy & Pao,[1] judgment in which was handed down on 9 December 2020, I acceded to the wife’s application for extra time within which to file submissions in opposition to the application made by the intervenor, B Pty Ltd.
[1] [2020] FamCA 1034.
B Pty Ltd relied on its amended application in a case filed 22 October 2020. In it, B Pty Ltd sought the following orders –
1A.     The applicant’s proceeding be dismissed;
1.In the alternative to para 1A, this proceeding proceed as undefended by the applicant in accordance with order 15 of Justice Wilson on 27 July 2020;
2.        The applicant pay the Intervenor costs of this proceeding;
3.        The applicant pay the Intervenor costs of this proceeding (sic); and
4.        Such other and further orders this Court deems fit.
In essence, B Pty Ltd contended that the applicant has been dilatory in her approach to her s 79 application and the time had been reached for this case to proceed on an undefended basis in the manner ordered by me on 27 July 2020. B Pty Ltd argued the applicant had failed to file her evidence-in-chief in accordance with that order.
B Pty Ltd has a very real interest in this litigation, being the judgment creditor of the respondent to the extent of $5,762,345.50.
On 16 May 2017 a judge of the Federal Circuit Court of Australia made orders enjoining B Pty Ltd from executing against assets thereby depriving B Pty Ltd from obtaining the benefit of its judgment.
B Pty Ltd seeks orders as mentioned above.
Despite giving the applicant time to file submissions in opposition to this application, the applicant wife failed to do so.
It is apparent to me that the wife has been given a great deal of latitude in her approach to this case. She displays an apparent lack of interest in advancing her own case. She should not be permitted to adopt that approach in circumstances where, by that approach, the intervenor is being stymied in the advancement of its interests in this case.
I take the view that the wife has been given enough time to have prepared her evidence in this case. The time has arrived for this case to proceeding on an undefended basis.
I fix 10 February 2021 at 10am for the trial of this proceeding on an undefended basis.
All questions of costs will be adjourned to the trial.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 18 December 2020.

Associate:

Date: 18 December 2020

In *Moy and Pao (No 2)*, heard by Wilson J, the proceeding concerned a dispute between the parties, identified as Moy and Pao. The matter was listed for an undefended trial, indicating that one party, the wife, had not actively participated in the proceedings or filed necessary documentation. The wife had been persistently dilatory in complying with court orders, including a failure to file evidence by the prescribed date without providing any reasons for this omission.

The central legal issue before the court was whether the proceeding should proceed as an undefended trial, given the wife's persistent non-compliance with court orders and her failure to file evidence. The court was required to consider the implications of this non-compliance on the conduct of the trial and the ability of the court to fairly adjudicate the matters in dispute.

Wilson J determined that the proceeding should be listed for an undefended hearing. This decision was based on the wife's persistent dilatoriness in complying with court orders and her failure to provide any explanation for her failure to file evidence by the stipulated date. The court's reasoning implicitly acknowledged that the wife's conduct had rendered the proceeding effectively undefended.

Consequently, the court ordered that the proceeding be listed for an undefended hearing on 10 February 2021 at 10 am for half a day. All questions of costs were adjourned to the trial of this proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established