Nghiem and TRUAONG and Ors

[2011] FamCA 805

FAMILY COURT OF AUSTRALIA

NGHIEM & TRUAONG AND ORS [2011] FamCA 805

FAMILY LAW - DE FACTO – PROPERTY SETTLEMENT – Adjournment

APPLICANT: Mr S Nghiem

1st RESPONDENT: Ms Truong

2nd RESPONDENT: Ms Luong

3rd RESPONDENT: Mr D Nghiem

FILE NUMBER: MLC 4291 of 2011

DATE DELIVERED: 20 October 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Kent J

HEARING DATE: 20 October 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Serra

SOLICITOR FOR THE APPLICANT: Moores Legal

COUNSEL FOR THE 1ST RESPONDENT: Mr Davis

SOLICITOR FOR THE 1ST RESPONDENT: Berger Kordos Lawyers

SOLICITOR FOR THE 2ND RESPONDENT: Forte Family Lawyers

Orders

1. The Applicant file and serve a list of documents upon which he intends to rely within seven (7) days of today.

2. The First Respondent file and serve any further affidavit upon which she intends to rely, together with a list of documents she relies upon within twenty-eight (28) days of today.

3. That neither of those parties be permitted to rely upon any further affidavit or document not contained in the said respective lists of documents except by leave of the Court.

4. That the matter be adjourned to Cronin J to be listed for further directions on a date to be fixed by Cronin J.

5. That each party’s costs of and incidental to these proceedings be reserved to trial.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nghiem & Truong and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4291 of 2011

Mr S Nghiem

Applicant

And

Ms Truong and Ms Luong and Mr D Nghiem

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter before me was to be a two day trial of the jurisdictional issue in the case. At the outset of the hearing, the First Respondent sought an adjournment of the proceedings on the basis that there had recently been received some seven affidavits. There is an issue as between the Applicant and the First Respondent as to when service of those affidavits was effected. It is the Applicant’s position that they were validly served on or about 7 October 2011, save for some further documents that were served on 18 October 2011.

2. It is the First Respondent’s position that the facsimile of 7 October 2011 was not in fact received and that 18 October 2011, namely two days ago, is when the First Respondent became aware of the content of some seven affidavits. The First Respondent requires the opportunity to respond to those affidavits and I am informed response in the form of affidavit material herself and potentially the gathering of other documents and perhaps further witnesses to specifically respond to the further affidavits referred to.

3. In the event, both the Applicant and the First Respondent agreed that the case, given that there will now be some eleven or twelve witnesses, the majority of whom will require a translator for the purpose of giving their evidence, will likely now take at least three days and perhaps four days.

4. In circumstances where I am sitting in Melbourne only until the end of court tomorrow, I would be reluctant, for obvious reasons, to start the case when it is uncertain as to when I could be back in Melbourne to finish it. The Applicant contends that there is a priority to the matter given a property development that is underway and he suggests that there is urgency about the matter. That is a matter that I will leave to Cronin J given the Orders I propose to make, but my own observation is simply that in circumstances where the trial was set as at 14 June 2011 by Orders of Cronin J, it is somewhat surprising that it has taken until 7 October 2011 for some seven further affidavits to be forthcoming from the Applicant.

5. I acknowledge that the Orders of 14 June 2011 made by Cronin J did not set a specific timetable, but in circumstances where, some four months after the making of that Order, the Applicant delivers, even if served on 7 October, some seven further affidavits, it is unsurprising that the Respondent would require some time to be able to respond to those affidavits.

6. In the circumstances, I make the Orders as set out at the commencement of these Reasons.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 20 October 2011.

Associate: 

Date:  20 October 2011