Ogilvy and Ogilvy - [2017] FamCA 626

FAMILY COURT OF AUSTRALIA

OGILVY & OGILVY

[2017] FamCA 626

FAMILY LAW – PROPERTY – INTERIM – Where there are competing applications on whether a Points of Claim document should be filed – Where there are questions about the validity of a financial agreement purported to be signed by the parties – Where the Court ordered the wife to file and serve Points of Claim document – Where an interlocutory order is made for the husband to pay $190,000 to the wife’s solicitors trust account to use to fund her litigation.

Family Law Act 1975 (Cth)

Rakete v Rakete (2012) 48 FamLR 325

APPLICANT:

Ms Ogilvy

RESPONDENT:

Mr Ogilvy

FILE NUMBER:

BRC

7538

2016

DATE DELIVERED:

22 August 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

24 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kearney QC

SOLICITOR FOR THE APPLICANT:

Rostron Carlyle Lawyers

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Phillips Family Law

Orders

Pleadings

That within 28 days hereof the applicant wife shall file and serve a Points of Claim document, pleading the particular provisions of s 90K of the Family Law Act and any contentions of law she relies upon as grounds for the relief sought by her in paragraph 3 of the Initiating Application filed 3 August 2016, and all the material facts she contends will support the relief she seeks, but not the evidence by which the facts are to be proved.
The Points of Claim document shall include particulars necessary to define the issues for, and prevent surprise at, the trial, and to enable the husband to plead in response, and support any matters specifically pleaded such as fraud, duress, unconscionable conduct or undue influence.
If any of the particulars required to be included in the Points of Claim document are to be found in the wife’s affidavit filed 12 October 2016 it shall suffice to identify them with reference to the number of the paragraph within which they are found.
That within 28 days of the date of service upon the respondent husband of the Applicant Wife’s Points of Claim document, the respondent husband shall file and serve a Points of Defence document.

Litigation Costs Funding

By way of interlocutory order, the husband shall pay the sum of $190,000 to the wife’s solicitors’ trust account within 28 days hereof, such sum to be used by the wife only in the discharge of liabilities for legal costs and outlays incurred by her.

Disclosure

The applications for orders contained in paragraphs 3 and 4 of the orders sought by the wife in her Response to an Application in a Case filed 6 February are dismissed.

Further Directions

The matter is listed before his Honour Justice Forrest for further directions at 9.00 am on … November 2017.

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…

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 Ogilvy and Ogilvy

Details

AGLC: Ogilvy and Ogilvy [2017] FamCA 626
Case: [2017] FamCA 626
Decision Date: 22 August 2017

CaseChat Overview and Summary

In the matter of *Ogilvy and Ogilvy*, Forrest J of the Family Court of Australia considered applications made by the applicant wife concerning pleadings, litigation costs funding, and disclosure. The dispute arose within proceedings initiated by the wife on 3 August 2016.

The court was required to determine the appropriate form and content of the wife's Points of Claim, the necessity for particulars to define issues and prevent surprise at trial, and the husband's obligation to file a Points of Defence. Additionally, the court addressed the wife's application for interlocutory funding for legal costs and her application for further disclosure orders.

Forrest J ordered that the wife file and serve a Points of Claim within 28 days, detailing the specific provisions of section 90K of the *Family Law Act* and any contentions of law relied upon, along with material facts supporting her claim. This document was to include particulars necessary to define issues, prevent surprise, and enable the husband to respond, particularly concerning allegations of fraud, duress, unconscionable conduct, or undue influence. If relevant information was contained within the wife's affidavit of 12 October 2016, it would suffice to reference the paragraph number. The husband was then to file and serve a Points of Defence within 28 days of service of the Points of Claim.

In relation to litigation costs funding, the husband was ordered to pay $190,000 to the wife's solicitors' trust account within 28 days, to be used solely for her legal costs and outlays. The wife's applications for disclosure orders were dismissed. The matter was adjourned for further directions.

Orders

Orders of the court

Pleadings

That within 28 days hereof the applicant wife shall file and serve a Points of Claim document, pleading the particular provisions of s 90K of the Family Law Act and any contentions of law she relies upon as grounds for the relief sought by her in paragraph 3 of the Initiating Application filed 3 August 2016, and all the material facts she contends will support the relief she seeks, but not the evidence by which the facts are to be proved.

The Points of Claim document shall include particulars necessary to define the issues for, and prevent surprise at, the trial, and to enable the husband to plead in response, and support any matters specifically pleaded such as fraud, duress, unconscionable conduct or undue influence.

If any of the particulars required to be included in the Points of Claim document are to be found in the wife’s affidavit filed 12 October 2016 it shall suffice to identify them with reference to the number of the paragraph within which they are found.

That within 28 days of the date of service upon the respondent husband of the Applicant Wife’s Points of Claim document, the respondent husband shall file and serve a Points of Defence document.

Litigation Costs Funding

By way of interlocutory order, the husband shall pay the sum of $190,000 to the wife’s solicitors’ trust account within 28 days hereof, such sum to be used by the wife only in the discharge of liabilities for legal costs and outlays incurred by her.

Disclosure

The applications for orders contained in paragraphs 3 and 4 of the orders sought by the wife in her Response to an Application in a Case filed 6 February are dismissed.

Further Directions

The matter is listed before his Honour Justice Forrest for further directions at 9.00 am on … November 2017.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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