Read v Chang - [2010] FamCA 876

FAMILY COURT OF AUSTRALIA

READ & CHANG AND ANOR

[2010] FamCA 876

FAMILY LAW – PROPERTY – Trusts – Subpoena calling for production of memorandum of wishes of trust of which wife is a discretionary beneficiary

APPLICANT:

Ms Read

RESPONDENT:

Mr Chang

OBJECTING PARTY:

Trustees of the MR Settlement

FILE NUMBER:

SYC

1553

2009

DATE DELIVERED:

9 June 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cohen J

HEARING DATE:

1 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Schonell

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kearney

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

COUNSEL FOR THE TRUSTEES OF THE MR SETTLEMENT

Mr Sirtes SC

SOLICITORS FOR THE SAID TRUSTEES

Bartier Perry

Orders

The application of the trustees to set aside paragraphs 2 and 3 of each of the subpoenas issued on behalf of the husband to the proper officer , Z Pty Limited and to the proper officer M Pty Limited and filed and 23 November 2009 is dismissed.
Leave is granted to the husband to personally and thorough his legal advisors inspect the documents produced to the Court in answer to the subpoenas referred to in Order 1 after he has filed and served on the wife, Z Pty Limited and M Pty Limited a written undertaking to the Court in proper form that he will not disclose any of the contents of or effect of the documents produced in answer to the subpoenas referred to in Order 1 to any person or persons other than his legal advisers or as is reasonably necessary for the conduct of the proceedings herein.
Leave is granted to the wife to personally and through her legal advisors inspect the documents produced to the Court in answer to the subpoenas referred to in Order 1 after she has filed and served on the husband, Z Pty Limited and M Pty Limited a written undertaking to the Court in proper form that she will not disclose and of the contents of or effect of the documents produced in answer to the subpoenas referred to in Order 1 to any person or persons other than her legal advisors or as is reasonably necessary for the conduct of the proceedings herein.
Costs are reserved.

IT IS NOTED that publication of this judgment under the pseudonym Read & Chang and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1553 of 2009

MS READ

Applicant

And

MR CHANG

Respondent

And

TRUSTEES OF THE MR SETTLEMENT

Objecting Party

REASONS FOR JUDGMENT

These proceedings are to decide an issue which, I have been informed by Counsel, has not been previously considered in the Family Law context of disputes over property.
The wife is one of a class of beneficiaries of a discretionary trust which held more than $630 million on 30 June 2006 after it had an increase of $22 million in that financial year. I…

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 Read v Chang

Details

AGLC: Read v Chang [2010] FamCA 876
Case: [2010] FamCA 876
Decision Date: 9 June 2010

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Justice Cohen considered an application by trustees to set aside subpoenas issued by the husband to Z Pty Limited and M Pty Limited. The dispute concerned the production of documents by these companies in response to the husband's subpoenas.

The primary legal issue before the Court was whether the subpoenas should be set aside. This involved considering the proper scope of discovery and the protection of commercially sensitive information held by third parties.

Justice Cohen dismissed the trustees' application to set aside the subpoenas. The Court reasoned that the subpoenas were validly issued and that the documents sought were relevant to the proceedings. However, to protect the interests of the third parties and the confidentiality of the documents, the Court granted leave for both the husband and the wife to inspect the produced documents, subject to their providing written undertakings not to disclose the contents of the documents to anyone other than their legal advisors or as reasonably necessary for the conduct of the proceedings. Costs were reserved.

Orders

Orders of the court

The application of the trustees to set aside paragraphs 2 and 3 of each of the subpoenas issued on behalf of the husband to the proper officer , Z Pty Limited and to the proper officer M Pty Limited and filed and 23 November 2009 is dismissed.

Leave is granted to the husband to personally and thorough his legal advisors inspect the documents produced to the Court in answer to the subpoenas referred to in Order 1 after he has filed and served on the wife, Z Pty Limited and M Pty Limited a written undertaking to the Court in proper form that he will not disclose any of the contents of or effect of the documents produced in answer to the subpoenas referred to in Order 1 to any person or persons other than his legal advisers or as is reasonably necessary for the conduct of the proceedings herein.

Leave is granted to the wife to personally and through her legal advisors inspect the documents produced to the Court in answer to the subpoenas referred to in Order 1 after she has filed and served on the husband, Z Pty Limited and M Pty Limited a written undertaking to the Court in proper form that she will not disclose and of the contents of or effect of the documents produced in answer to the subpoenas referred to in Order 1 to any person or persons other than her legal advisors or as is reasonably necessary for the conduct of the proceedings herein.

Costs are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.