PERICLES & HOPMAN

In the Family Court of Australia, before Bennett J, the husband applied to re-open proceedings in a de facto property case after judgment had been reserved. The husband sought to adduce new evidence concerning the valuation of assets, asserting that COVID-19 had resulted in a diminution in their value.

The primary legal issue before the court was whether the principles governing the re-opening of a case to adduce further evidence warranted granting the husband's application. A secondary issue concerned the costs of the application, with the parties having agreed that costs should follow the event, but the court retaining discretion to determine if such an order was "just" under section 117 of the relevant legislation.

Bennett J dismissed the husband's application, finding that he had failed to adduce sufficient evidence to demonstrate a fall in the value of the assets. The court applied the principles for re-opening a case, which require a compelling reason and evidence that could not have been obtained with reasonable diligence at the time of the original hearing. Regarding costs, while the parties had agreed costs should follow the event, the court was satisfied that circumstances warranted an order for costs in the wife's favour. The husband was ordered to pay the wife's costs of and incidental to the dismissed application, fixed at $5,153.38, with counsel sensibly not pursuing costs on an indemnity basis given the modest sum claimed.