Summitt & Summitt and Ors (Re-opening)

FAMILY COURT OF AUSTRALIA

SUMMITT & SUMMITT AND ORS (RE-OPENING) [2009] FamCA 365

FAMILY LAW – PRACTICE AND PROCEDURE – Leave to Re-open – Principles Applicable – Factors Informing The Exercise Of Discretion – Potential Prejudice to the Parties in Re-opening
Family Law Act1975 (Cth) Evidence Act 1995 (Cth)
EBv CT (No. 2)  (2008) QSC 306 Finbrough Investments Pty Ltd v Airlie Beach Pty Ltd (1995) 1 Qd R 12 Gelley & Gelley (1992) FLC 92-290 King Investments Solutions Pty Ltd v Hussain and Another (2005) 64 NSWLR 441 Reid v Brett (2005) VSC 18 Smith v NSW Bar Association (1992) 176 CLR 256 Urban Transport Authority v NWEISER (1992) 28 NSWLR 471
APPLICANT:	Mr Summitt

1^st RESPONDENT: Ms Summitt

2^nd RESPONDENTS: Mr and Mrs Summitt (Snr)

FILE NUMBER: BRF 709 of 2006

DATE DELIVERED: 8 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATES: 8 & 28 April 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk SC

SOLICITOR FOR THE APPLICANT:	Hopgood Ganim Lawyers
COUNSEL FOR THE 1ST RESPONDENT:	Mr North SC

SOLICITOR FOR THE 1^ST RESPONDENT:

K L King & Associates

COUNSEL FOR THE

2^ND & 3^RD RESPONDENTS

Mr Forrest

SOLICITOR FOR THE

2^ND & 3^RD RESPONDENTS:

Murdoch Lawyers

Orders

1. The Application in a Case filed by the husband on 17 April, 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Summitt & Summitt and Ors (Re-opening) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: Brisbane 709 of 2006

MR SUMMITT

Applicant Husband

And

MS SUMMITT

1^st Respondent Wife

And

MR AND MRS SUMMITT (SNR)

2^nd  & 3^rd Respondents

REASONS FOR JUDGMENT

1. On 14 November, 2008, a five-day trial of the wife’s application for settlement of property concluded.  The case concerned complex arguments including, among others, whether property should be regarded as a commercial partnership’s property (as distinct from property of the parties) and, for example, whether a particular property ought be impressed with a constructive trust.  Judgment was reserved.

2. On 2 March, 2009, at a time when a draft of the judgment was all but complete, correspondence was received from the solicitors for the husband.  That correspondence (which was back-copied to the solicitors for the wife) indicated that a re-opening of the hearing would be sought.

3. The court responded in an e-mail communication addressed to all parties proposing prospective dates when any such application could be heard at the earliest opportunity.  As no further communication had been received from any party by 3 April, a further e-mail was sent to all parties.  In essence, the court indicated that, as it had not heard further from any party, judgment would be delivered at 2.15pm on 8 April.

4. Correspondence was then received from the solicitors for the husband on 6 April, indicating that the hearing of an urgent application was sought.  The matter…