Venter & Venter (No 5) - [2023] FedCFamC1F 635

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Venter & Venter (No 5) [2023] FedCFamC1F 635

File number(s): BRC 10651 of 2021

Judgment of: CAREW J

Date of judgment: 31 July 2023

Catchwords: FAMILY LAW – PROPERTY – Where the 8^th respondent seeks an order pursuant to r 6.17(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, dismissing the wife’s case against the 8^th respondent – Where the wife disclosed the existence of some 96,000 documents, sourced from a number of hard drives, approximately one week before the commencement of trial – Where additional documents were produced by the wife on the fourth day of trial – Where the wife failed to offer any explanation for the delay in disclosing an extraordinary number of documents – Where the sheer volume of the late disclosure demonstrates considerable prejudice to the 8^th respondent – Where the 8^th respondent has been subjected to a trial by ambush – Where dismissing the claim against the 8^th respondent would not bring an end to the wife’s case absolutely – Where the case against the 8^th respondent is dismissed

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 6.17(b)

Cases cited:
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Berrell & Berrell (No. 2) [2013] FamCA 900

Clifton v Kerry J Investments and Ors [2020] FCAFC 5

Patel & Noora [2019] FCWA 260

Zao & Lee [2019] FamCAFC 169

Number of paragraphs: 78

Date of hearing: 28 July 2023

Place: Brisbane

Counsel for the applicant: Dr Matta with Ms Matson and Ms Frederico

Solicitor for the applicant: Coote Family Lawyers

Counsel for the first respondent: Mr Richardson SC with Dr Smith

Solicitor for the first respondent: Broun Abrahams Burreket

Counsel for the second, third, fifth and seventh respondents Mr Stewart KC with Mr Barnett

Solicitor for the second, third, fifth and seventh respondents Barkus Doolan Winning

For the fourth respondent Litigant in person (did not participate)

Counsel for the eighth respondent Mr Roche with Mr Rogan

Solicitor for the eighth respondent Pearson Emerson
ORDER

BRC 10651 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VENTER

Applicant

AND:
MR VENTER

First Respondent

MR B VENTER

Second Respondent

MR C VENTER (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

31 JULY 2023

THE COURT ORDERS THAT:
1.The relief sought against the 8^th respondent by the wife in her Initiating Application (as amended) filed 31 March 2023 is dismissed.
2.The costs of the 8^th respondent be reserved.

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…

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 Venter & Venter (No 5)

Details

AGLC: Venter & Venter (No 5) [2023] FedCFamC1F 635
Case: [2023] FedCFamC1F 635
Decision Date

CaseChat Overview and Summary

The case Venter & Venter (No 5) involved a dispute between Ms Venter, the applicant, and Mr Venter, the first respondent, regarding property ownership and the validity of certain business entities. Ms Venter claimed that the 'D Group' of companies and trusts, which included entities owned by her son and a family friend, actually belonged to her and her husband. The respondents, including the 8th respondent, G Pty Ltd, denied these claims. The case was set for a ten-day trial, but the proceedings were delayed due to the wife's late disclosure of approximately 96,000 documents sourced from various hard drives and other storage devices. The 8th respondent applied to dismiss the wife's claim against it under r 6.17(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 due to the late disclosure.

The court considered the wife's failure to provide an explanation for the delay in disclosing the documents, the significant prejudice caused to the 8th respondent by the late disclosure, and the impact on the administration of justice. The court found that the wife had not met her disclosure obligations and had subjected the 8th respondent to a trial by ambush. The sheer volume of the late disclosure made it difficult for the 8th respondent to adequately prepare for the trial and review the relevant documents.

In light of these factors, the court exercised its discretion under r 6.17(b) and dismissed the wife's claim against the 8th respondent. The order stated that the relief sought against the 8th respondent by the wife in her initiating application (as amended) filed 31 March 2023 is dismissed, and the costs of the 8th respondent are reserved.

Orders