FAMILY COURT OF AUSTRALIA
| PETERS & GIANNOPOULOS AND ORS | [2017] FamCA 663 |
| FAMILY LAW – PROPERTY – Interim orders – Property application involving two trusts (second and third respondents) – Where wife subpoenaed second and third respondents for the production of documents – Where second and third respondents oppose production of documents – Where second and third respondents argue production spans 21 years and is oppressive – Consideration of ‘apparent relevance’ of production sought to wife’s case – Where wife’s case is that the second and third respondents’ assets are held on constructive/resulting trust for the husband – Where there is a lack of relevance between documents sought under production and wife’s case – Held: oppressive items in subpoenae struck out. FAMILY LAW – PROPERTY – Interim orders – Where wife argues that the second and third respondents’ assets are held on constructive/resulting trust for the husband – Where wife’s evidence does not particularise the equitable principle relied up and the relief sought – Where orders made for the wife to file a statement of contentions of fact and law relied up to better inform the parties of her position. FAMILY LAW – PROPERTY – Interim orders – Valuation – Where wife seeks valuation of second and third respondents’ assets and valuation of trusts by accountants – Where orders sought are opposed – Where cost of valuations will be substantial – Where wife seeks husband cover her cost of valuations – Where husband’s interest is as a mere beneficiary – Where it is held that the wife should particularise her position before orders made for valuations – No orders made. FAMILY LAW – PRACTICE AND PROCEUDRE – Disclosure obligations – Consideration of a party’s obligation to make disclosure in the preliminary stages of proceedings – Where there is an obligation to provide documents which are directly relevant to the main issues – Where documents need only have apparent relevance to the main issue in the proceedings. | |
| Family Law Act 1975 (Cth) ss 78(1), 79 | |
Family Law Rules 2004 (Cth) rr 13.01, 13.07, 13.22, 15.23
Baumgartner v Baumgartner (1987) 164 CLR 137
Botany Bay Instrumentation and Control Pty Ltd v Stewart (1984) 3 NSW LR 98
Hatton, VR & Attorney-General of the Commonwealth of Australia [2000] FamCA 892; (2000) FLC 93-038
Henderson v Miles (No 2) [2005] NSWSC 867
Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832
K & K [2008] FamCA 957
Masoud & Masoud (2016) FLC 93-689
O’Hara & O’Hara & Ors [2007] FamCA 1346
Papadopoulos & Papadopoulos No 2 [2007] FamCA 1683
Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115
Schweitzer & Schweitzer [2012] FamCA 445
Trade PracticesCommission v Arnotts Limited (No 2) (1989) FCA 248; (1989) 21 FCR 306
White v Tulloch (1995) FLC 92-640
Scott on Trusts 4th Edition, 1989
| APPLICANT: | Ms Peters |
| 1st RESPONDENT: | Mr Giannopoulos |
| 2nd RESPONDENT: | S Pty Ltd |
| 3rd RESPONDENT: | H Pty Ltd |
| FILE NUMBER: | ADC | 3056 | of | 2014 |
| DATE DELIVERED: |
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- AGLC
- Peters and Giannopoulos & Ors [2017] FamCA 663
- Case
- [2017] FamCA 663
- Decision Date
CaseChat Overview and Summary
The court was required to determine the extent of disclosure obligations at the preliminary stages of proceedings, specifically considering the "apparent relevance" of documents to the main issues. Additionally, the court had to assess the wife's claim that the trusts' assets were held on constructive or resulting trust for the husband, noting that her evidence did not adequately particularise the equitable principles relied upon or the relief sought. The wife also sought orders for the valuation of the trusts' assets and the trusts themselves, with the husband to cover her costs, but these were opposed.
Berman J reasoned that while parties have an obligation to disclose directly relevant documents, the wife's subpoenaed requests lacked sufficient apparent relevance to her case, particularly given the 21-year span. Consequently, certain oppressive items within the subpoenas were struck out. The court also found that the wife needed to better particularise her position regarding the constructive or resulting trust claims and the relief sought before any orders for valuations could be made, especially considering the substantial costs involved and the husband's status as a mere beneficiary.
Accordingly, the court ordered the production of specific, more narrowly defined documents from each trust, including trust deeds and documents relating to the husband's resignation as a director and share transfers. Several paragraphs from the subpoenas directed to X Pty Ltd and Y Pty Ltd were struck out. Furthermore, the wife was ordered to file and serve a statement of contentions of fact and law within sixty days, detailing the relief sought, material facts relied upon, and the legal principles underpinning her claims. No orders were made regarding the valuations at this stage.
Orders
Orders of the court
1.
That the second respondent produce for inspection and copy within fourteen (14) days the following documents:-
(a) The trust deed of the R Trust and any amendments or variations thereto;
(b) All documents, notes, minutes, memoranda and resolutions of S Pty Ltd (“SPL”) arising out of or in connection with any meeting of directors and/or shareholders in respect of the resignation of the husband as a director of SPL in or about 2007 and in relation to the transfer of the husband’s shares in SPL to Ms D Giannopoulos;
(c) All documents, notes, memoranda or minutes relating to any distribution to the husband, the wife or their children including any debits or credits to their loan account from 23 September 2003 to the date hereof in the R Trust;
(d) All director guarantees signed by the husband in his capacity as a director of SPL.
2.
That the third respondent produce for inspection and copy within fourteen (14) days the following documents:-
(a) The trust deed for Giannopoulos Family Trust and any amendments or variations thereto;
(b) All documents, notes, minutes, memoranda and resolutions of H Pty Ltd (“HPL”) arising out of or in connection with any meeting of directors and/or shareholders in relation to the resignation of the husband as a director in 2012 and in respect of the transfer of shares held by him to Ms D Giannopoulos;
(c) All documents, notes, memoranda or minutes relating to any distribution to the husband, the wife or their children including any debit or credit in their loan accounts from 23 September 2003 to the present in the Giannopoulos Family Trust;
(d) All director guarantees signed by the husband in his capacity as a director of HPL.
3.
That paragraphs 2, 3, 4, 5 and 7 of the subpoena directed to X Pty Ltd are struck out.
4.
That paragraph 2, 3, 4 and 6 of the subpoena directed to Y Pty Ltd are struck out.
5.
That within sixty (60) days the wife is to file and serve a statement of contention of fact and law containing the following:-
(a) Confirm or otherwise specify the relief sought by final orders;
(b) Specify the material facts relied upon;
(c) Identify the statutory law and/or legal principles upon which she contends, justifies and entitles her to the relief she seeks.
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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