MOY & PAO - [2020] FamCA 1034

FAMILY COURT OF AUSTRALIA

MOY & PAO

[2020] FamCA 1034

FAMILY LAW – PRACTICE AND PROCEDURE – parties ignoring directions for the case to advance to trial – wife seeking extension of time to file submissions in opposition to judgment creditor’s submissions – respondent, by agreement, allowed extension – extension granted.

Family Law Act 1975 (Cth) ss 79, 90AE(2), 97(3)
Family Law Rules 2004 (Cth) rr 1.07, 1.14

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Hinton v Alpha Westmead Private Hospital (2016) 242 FCR 1
In the Marriage of Biltoft (1995) 19 Fam LR 82
In the Marriage of Petersens (1981) 7 Fam LR 402
In the Marriage of Prince (1984) 9 Fam LR 481
In the Marriage of Rowell; Deputy Commissioner of Taxation (Intervener) (1989) 96 FLR 449
Panwar & Panwar [2020] FamCA 480
Re Chemaisse & Commissioner of Taxation (No 3) (1990) 13 Fam LR 724
Shrestha v Migration Review Tribunal (2015) 229 FCR 301
SZWBH v Minister for Immigration and Border Protection (2015) 229 FCR 317

APPLICANT:

Ms Moy

RESPONDENT:

Mr Pao

INTERVENOR:

B Pty Ltd

FILE NUMBER:

MLC

6493

2011

DATE DELIVERED:

9 December 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

19 & 26 October 2020, 9 & 26 November 2020 & 2 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. Moore (2 December 2020)

SOLICITOR FOR THE APPLICANT:

Avia Lawyers

COUNSEL FOR THE RESPONDENT:

Dr R. Ingleby (26 November 2020 & 2 December 2020)

SOLICITOR FOR THE RESPONDENT:

Tao Jiang Lawyers

COUNSEL FOR THE INTERVENOR:

Mr G. Combes (19 & 26 October 2020 & 9 November 2020) and Ms D. Isaacson (26 November 2020)

SOLICITOR FOR THE INTERVENOR:

Mcdonald Lawyers

Orders

On or before 4pm on 11 December 2020 the applicant wife must file and serve her written submissions in accordance with paragraph 1 of my orders made on 9 November 2020.

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

REASONS FOR JUDGMENT

Introduction

In April 2016, the intervenor obtained judgment in the Supreme Court of Victoria against the respondent in the sum of $5,762,345.50 (“the judgment debt”). In September 2017 the wife sought leave to commence a property settlement proceeding out of time. In her initiating application to commence this proceeding the wife sought orders under s…

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 MOY & PAO

Details

AGLC: MOY & PAO [2020] FamCA 1034
Case: [2020] FamCA 1034
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Ms Moy (the applicant wife) sought an extension of time to file her written submissions in opposition to the submissions of B Pty Ltd (the intervenor and judgment creditor). Mr Pao (the respondent husband) had, by agreement with the intervenor, been granted an extension to file his submissions. The dispute arose in the context of a property settlement proceeding where the intervenor sought to discharge a restraining order that had prevented it from enforcing a substantial judgment debt against the husband.

The primary legal issue before the court was whether to grant the wife an extension of time to file her submissions, despite her previous lack of diligence in the proceedings and failure to comply with court orders, including the timely filing of trial evidence. The court was also required to consider the impact of granting such an extension on the progress of the case, particularly in light of the significant judgment debt owed by the husband and the wife's assertion of an interest in the matrimonial assets.

The court noted the wife's prolonged lack of participation and her failure to file crucial evidence by the ordered deadline. However, the court also acknowledged that the wife had recently obtained legal representation and was seeking to regularise her position. The intervenor opposed the extension, highlighting the wife's lack of diligence and the substantial judgment debt. The respondent husband, however, had reached an agreement with the intervenor for an extension of time for his submissions. The court considered the wife's argument that her claim, if successful, would involve a determination of whether the judgment debt was solely the husband's liability or a joint one, a matter requiring evidence and a trial.

Ultimately, the court granted the wife an extension of time to file her submissions until 11 December 2020, subject to the entry of formal orders. This decision was made in circumstances where the husband had also been granted an extension and the wife's legal representative foreshadowed an application for an extension of time to file trial affidavits.

Orders