Sigley and De Santis & Ors (No 4) - [2020] FamCA 903

FAMILY COURT OF AUSTRALIA

SIGLEY & DE SANTIS AND ORS (NO. 4)

[2020] FamCA 903

FAMILY LAW – PRACTICE AND PROCEDURE – pleading amendments sought by applicant – trial well underway yet parties log jammed on pleading amendments – latest version imprecise and unclear, advancing allegations akin to fraud – held, leave to replead in terms of the proposed amendment refused – leave to replead given.

Corporations Act 2001 (Cth) s 601AD(2)
Family Law Act 1975 (Cth) ss 80, 114
Property Law Act 1958 (Vic) s 53(1)(b)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Ascot Investments Pty Ltd v Harper and Harper (1981) 148 CLR 377
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279
Bass v Permanent Trustee Group Co Ltd (1999) 198 CLR 334
Gissing v Gissing [1971] AC 886
Goodridge & Beadle (2017) 57 Fam LR 425
Jacobson v Ross [1995] 1 VR 337
Miller v Cameron (1936) 54 CLR 572
Re JS & GP (2006) 35 Fam LR 88
Secretary, Department of Social Security v James (1990) 95 ALR 615
Sigley & De Santis [2019] FamCA 271
Sigley & De Santis (No 2) [2019] FamCA 596
Tarkington Pty Ltd v Kingdrake Pty Ltd [2000] VSCA 98
Tepko Pty Ltd v Water Board (2001) 206 CLR 1
White v Overland [2001] FCA 1333

APPLICANT:

Ms Sigley

FIRST RESPONDENT:

Mr De Santis

SECOND RESPONDENT:

Q Pty Ltd as trustee for Q Discretionary Trust

THIRD RESPONDENT:

R Pty Ltd as trustee for De Santis Family Trust

FOURTH RESPONDENT:

Mr S De Santis

FIFTH AND SIXTH RESPONDENTS:

Mr T and Mr U as liquidators of E Pty Ltd (in liquidation)

SEVENTH RESPONDENT:

De Santis Family Investments Pty Ltd as trustee for E Superannuation Fund

EIGHTH RESPONDENT:

V Partners Pty Ltd (formerly P Partners Pty Ltd)

~~NINTH RESPONDENT:~~

~~W Pty Ltd~~

TENTH RESPONDENT:

X Pty Ltd as trustee for Trust for the Children of Mr & Ms De Santis

ELEVENTH RESPONDENT:

E6 Pty Ltd

TWELFTH RESPONDENT:

Ms De Santis (also known as Ms BB De Santis)

THIRTEENTH RESPONDENT:

E Pty Ltd

FOURTEENTH RESPONDENT:

Mr AA De Santis

FIFTEENTH RESPONDENT:

Ms EE De Santis

SIXTEENTH RESPONDENT:

Ms DD De Santis

SEVENTEENTH RESPONDENT:

Ms AA De Santis

FILE NUMBER:

MLC

9296

2015

DATE DELIVERED:

21 October 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

15, 16, 19, 20, 21 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J. St John QC with Mr P. Agardy and Mr T. Hutchings

SOLICITOR FOR THE APPLICANT:

Peter Szabo Family Law

COUNSEL FOR THE FIRST RESPONDENT:

No appearance

SOLICITOR FOR THE FIRST RESPONDENT:

No appearance

COUNSEL FOR THE SECOND RESPONDENT:

No appearance

SOLICITOR FOR THE SECOND RESPONDENT:

No appearance

COUNSEL FOR THE THIRD RESPONDENT:

Mr D. Bongiorno

SOLICITOR FOR THE THIRD RESPONDENT:

Berry Family Law

COUNSEL FOR THE FOURTH RESPONDENT:

Mr D. Bongiorno

SOLICITOR FOR THE FOURTH RESPONDENT:

Berry Family Law

COUNSEL FOR THE FIFTH AND SIXTH RESPONDENTS:

Dr A. Trichardt

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.

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Details

Case: [2020] FamCA 903
Decision Date: 21 October 2020

CaseChat Overview and Summary

In *Sigley and De Santis & Ors (No 4)*, heard before Wilson J, the applicant sought leave to amend their CAMSOC (Concise Statement of Material Facts) while the trial was well underway. The parties were reportedly "log jammed" on the issue of pleading amendments, with the applicant's latest proposed version being described as imprecise and unclear, and advancing allegations akin to fraud.

The central legal issue before the court was whether to grant the applicant leave to replead in terms of their proposed amendment, which was considered problematic. The court was required to determine the appropriate course of action given the late stage of the proceedings and the nature of the proposed amendments.

Wilson J refused leave to make the amendments as proposed on 19 October 2020, finding them to be insufficiently precise. However, the applicant was granted leave to further amend the CAMSOC, with a deadline set for filing and serving any further proposed amended CAMSOC. Any arguments regarding leave arising from this further amended document were adjourned, and costs thrown away by reason of the application were reserved.

Orders

Orders of the court

1 I refuse leave to the applicant to make the amendments sought in the applicant’s amended CAMSOC proposed on 19 October 2020.

The applicant has leave to further amend the CAMSOC and must file and serve any further proposed amended CAMSOC by noon on 22 October 2020.

Any argument about whether to grant leave arising from the further amended CAMSOC is adjourned to 2:15pm on 22 October 2020.

Costs thrown away by reason of this application are reserved.

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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