FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sun & Yeng [2023] FedCFamC1F 565
File number SYC 8025 of 2022 Judgment of WILSON J Date of judgment 7 July 2023 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PLEADINGS – strikeout application – Mozambique principles. Cases cited Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 56
Barnes v Addy (1874) 144 ER 643
Black v S Freedman & Co (1910) 12 CLR 105
Bosanac v Commissioner of Taxation (2022) 96 ALJR 976
Brazendale v Tasmaid Foods Pty Ltd [1991] FCA 508
British South Africa Co v Companhia de Moçambique [1893] AC 602
Cao & Trong [2019] FamCA 336
Chen v Chen and Anor (No 3) (2020) 63 Fam LR 448
Cook v Flaherty [2021] SASC 73
Emerald & Emerald [2023] FedCFamC1F 183
Goodridge v Beadle (2017) 57 Fam LR 425
Grefeld & Grefeld [2012] FamCAFC 71
Re Vandervell's Trusts [1974] 1 All ER 47
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499
Division Division 1 First Instance Number of paragraphs 52 Date of last submission 19 June 2023 Date of hearing 22 May 2023 Place Melbourne and Sydney (via video) Counsel for the applicant Mr L. Glick KC Solicitor for the applicant Lander & Rogers Counsel for the first respondent Mr J. Neo Solicitor for the first respondent Longton Legal Counsel for the second respondent Mr D. Rayment SC with Mr D. Edney Solicitor for the second respondent XR Consulting Pty Ltd ORDERS
SYC 8025 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS SUN
Applicant
AND MR YENG
First Respondent
MS HAU
Second Respondent
order made by
WILSON J
DATE OF ORDER
7 JULY 2023
THE COURT ORDERS THAT –
1.The second respondent’s points of claim dated 23 April 2023 is struck out in its entirety.
2.The second respondent has leave to file and serve any amended points of claim, incorporating pleadings as to all matters of fact said to be foreign law, by noon on 7 September 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
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CaseChat Overview and Summary
The central legal issues before the court were whether the second respondent's points of claim were sufficiently detailed and compliant with the requisite standards for pleadings in the Federal Court. Specifically, the court had to examine whether the second respondent had adequately pleaded the material facts, including the application of foreign law, the identification of trusts, and the nature of the relationship between the parties.
The court found that the points of claim were defective in several respects. The second respondent had not sufficiently pleaded the material facts and particulars required, particularly in relation to the application of foreign law and the identification of the relevant trust. The court emphasised that pleadings in the Federal Court must meet exacting standards, including the need to plead exhaustively all material facts supporting a particular proposition. The court concluded that the second respondent had failed to meet these standards, leading to the decision to strike out the points of claim.
Consequently, the court made an order striking out the points of claim filed by the second respondent, citing the deficiencies in the pleadings as the basis for this decision.
Orders
Orders of the court
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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
In written submissions dated 7 July 2023, counsel for the second respondent resisted the wife’s criticisms of the points of claim. In précis form, the second respondent contended as follows –(a)a party in the shoes of the second respondent is under no obligation to plead foreign law;(b)here, the court can proceed on the assumption that foreign law (that is to say, the law of Country B) is relevantly the same as Australian law with it being up to the defendant (here, the wife) to content that the foreign law is different;[11](c)Country B law recognises the husband’s parents as beneficial owners of the Country B properties and that if the wife contends otherwise, it is open to the wife to plead the relevant difference;(d)the second respondent takes issue with the need for her to plead particulars of the verbal agreement alleged;(e)there is no obligation on the second respondent to plead Country B law in relation to property being held “for the beneficial interest of the parents”;(f)the second respondent is not required to plead facts that amount to “control” because the allegation is not essential to the second respondent’s claim and is in the nature of what counsel called a “narrative pleading”;[12](g)the assertion by the wife that the second respondent failed to identify the relevant trust is mistaken because “a trust” is a legal conclusion and where material facts are alleged, it is not necessary to plead the legal result;[13](h)the wife’s complaint about the assertion of her being the husband’s agent is a complaint about particulars not of fact;(i)the arrangement between the husband and wife is known to them, not to the second respondent;(j)the pleadings do not turn on the husband being the wife’s agent but instead turn on concepts of unjust enrichment or moneys had and received; and(k)in any event, the decision in Grefeld & Grefeld[14] stands for the proposition that an agency arises in the facts of this case. [11] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, 517.[12] Beach Petroleum NL v Johnson (1991) 105 ALR 456 and State of Queensland v Pioneer Concrete (Qld) Pty Ltd [1999] FCA 499.[13] Re Vandervell's Trusts [1974] 1 All ER 47, Brazendale v Tasmaid Foods Pty Ltd [1991] FCA 508 and Cook v Flaherty [2021] SASC 73.[14] [2012] FamCAFC 71.CONSIDERATION I do not share the second respondent’s enthusiasm for the adequacy of her points of claim. They are defective in many material respects. I make an order for the strike out the points of claim. These are my reasons for so doing. Cases in the Major Complex Financial Proceedings List in this court usually involve pleadings, having regard to the complexity of the factual or legal issues involved. This case is no exception. Where pleadings are involved, those pleadings must comply with well known, established and exacting principles. Pleadings to a standard commensurate with a proceeding in the Federal Court of Australia are required. It is essential to plead exhaustively all material facts supporting a particular proposition being advanced. Material facts and particulars are quite different. Those material facts and relevant particulars subjoined thereto must be in the pleading, not in a schedule to submissions.