Nghiem and TRUAONG and Ors

This matter came before Kent J of the Family Court of Australia concerning property settlement proceedings between the Applicant, Mr S Nghiem, and the First Respondent, Ms Truong, with Ms Luong and Mr D Nghiem as the Second and Third Respondents respectively. The proceedings were listed for a two-day trial on a jurisdictional issue. However, at the commencement of the hearing, the First Respondent sought an adjournment due to the recent receipt of approximately seven affidavits, the service of which was disputed between the Applicant and the First Respondent.

The central legal issue before the court was whether to grant the First Respondent's application for an adjournment. This arose from the First Respondent's contention that she had only become aware of the content of seven affidavits two days prior to the hearing, and therefore required time to prepare a response, which might involve filing her own affidavit, gathering further documents, and potentially engaging additional witnesses. The Applicant, on the other hand, argued for the priority of the matter due to an ongoing property development, suggesting urgency.

Kent J reasoned that the First Respondent's need to respond to the newly served affidavits was a legitimate concern, particularly given the potential for eleven or twelve witnesses, many requiring translators, which would likely extend the trial beyond the initially allocated two days. Furthermore, his Honour noted that the trial had been set by previous orders in June 2011, and it was somewhat surprising that significant further affidavit material was only provided by the Applicant in October. Considering his limited availability in Melbourne to complete the trial, and the First Respondent's need for adequate time to prepare, his Honour granted the adjournment.

The court ordered that the Applicant file and serve a list of documents within seven days, and the First Respondent file and serve any further affidavit and list of documents within twenty-eight days. Neither party is permitted to rely on further affidavits or documents not included in these lists without leave of the court. The matter was adjourned to Cronin J for further directions on a date to be fixed, and each party's costs were reserved to trial.