Spalla & Spalla - [2022] FedCFamC2F 551

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spalla & Spalla [2022] FedCFamC2F 551

File number(s): CAC 872 of 2020

Judgment of: JUDGE W J NEVILLE

Date of judgment: 2 May 2022

Catchwords: FAMILY LAW – Property – security for costs – where the Husband unexpectedly raised claims of alleged fraud relating to a settlement Deed at the end of the final hearing in September 2021 – points of claim not provided until the end of January 2022 – despite numerous attempts by the Wife, full particulars of the claim have still not been provided – Wife filed application seeking points of claim be struck out and in the alternative, further particulars and security for costs – at the interim hearing in April 2022, the scope of the wide ranging fraud claim was narrowed and now relates only to date of separation in the recitals of the Deed – issue of the date of separation is likely to be no more than an issue of evidence – further 2 day final hearing required to determine any alleged fraud claims and finish the substantive evidence – security for costs ordered in sum of $20,000 to be paid within 60 days – proceedings stayed until the payment of security – parties to advise within 14 days where security will be held – Wife’s costs of Application reserved.

Legislation:
Family Law Act1975 (Cth) s.117(2) & (2A)

Federal Circuit and Family Court of Australia Rules 2021 (Cth), Part 12.2, r.12.02 & 12.03

Cases cited:
Evans v Rochford (2003) 30 Fam LR 336

In the Marriage of Luadaka (1998) 24 Fam LR 340

Stephens v Stephens (2011) 44 Fam LR 117

G.E. Dal Pont, The Law of Costs (Fifth Edition) (Sydney: LexisNexis Australia, 2021)

Division: Division 2 Family Law

Number of paragraphs: 40

Date of hearing: 1 April 2022

Place: Canberra

Counsel for the Applicant Ms Winfield

Solicitor for the Applicant Zali Burrows Lawyers

Counsel for the Respondent Mr Masters

Solicitor for the Respondent Marjason & Marjason Solicitors

ORDERS

CAC 872 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SPALLA
Applicant

AND:
MR SPALLA
Respondent

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

2 May 2022

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.By 12:00pm on 30 June 2022, the Husband is to pay to the Wife’s lawyers the sum of $20,000 as security for costs.
2.The proceedings be stayed until payment of the security pursuant to Order 1 is made.
3.Within 14 days of the date of these Orders, being by 16 May 2022, the parties’ lawyers are to finalise and advise the Court where the security will be kept.
4.Within 21 days of the date of these Orders, being by 23 May 2022, the Husband is to provide further and better particulars to the Wife regarding the claim of fraud. Copies of those particulars are to be filed with the Court within 7 days of being provided to the Wife.
5.The Wife’s…

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 Spalla & Spalla

Details

AGLC: Spalla & Spalla [2022] FedCFamC2F 551
Case: [2022] FedCFamC2F 551
Decision Date

CaseChat Overview and Summary

In this family law property case, the Wife filed an application seeking to have the Husband's claims of alleged fraud struck out, or in the alternative, for further particulars and security for costs. The Husband unexpectedly raised claims of fraud relating to a settlement Deed at the end of the final hearing in September 2021. Despite numerous attempts by the Wife, full particulars of the claim have still not been provided. The Wife argued that the Husband's claim was frivolous, vexatious, or an abuse of process, and had caused her untold distress. The Husband argued that the issues raised were solely a dispute over the date of separation and that the Wife's contentions were unsubstantiated. The court found that the Husband's claim of fraud, while now narrowed to the date of separation, was genuine and not vexatious. However, the court also found that the Husband's claim lacked sufficient particulars and was unlikely to succeed. The court ordered the Husband to provide security for costs in the sum of $20,000 to be paid within 60 days, and stayed the proceedings until the payment of the security. The court also ordered the Husband to provide further and better particulars to the Wife regarding the claim of fraud within 21 days. The Wife's costs of the application were reserved.

Orders