Weng and Wah and Ors

[2018] FamCA 1175

FAMILY COURT OF AUSTRALIA

WENG & WAH AND ORS [2018] FamCA 1175

FAMILY LAW – PRACTICE AND PROCEDURE – Disclosure and Joinder – Where the husband made an oral application for further disclosure relating to five entities for which he also sought to join in these proceedings – Where the Court allowed the application for joinder of the five entities but not the application for disclosure – Where oral reasons were sought by the husband – Where parties had been reminded of their disclosure obligations and the potential consequences of a finding that full and frank disclosure has not been provided on several occasions.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Mr B Weng

FIRST RESPONDENT: Ms Wah

SECOND RESPONDENT: Mr C Weng

THIRD RESPONDENT: D Pty Ltd

FOURTH RESPONDENT: E Pty Ltd

FIFTH RESPONDENT: F Pty Ltd

SIXTH RESPONDENT: G Pty Ltd

SEVENTH RESPONDENT: The Mr C Weng Family Trust

EIGHTH RESPONDENT: The H Family Trust

NINTH RESPONDENT: The J Family Trust

TENTH RESPONDENT: K Pty Ltd

ELEVENTH RESPONDENT: L Pty Ltd

FILE NUMBER: MLC 9718 of 2014

DATE DELIVERED: 10 September 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 10 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Geddes QC
with Mr Glezakos

SOLICITOR FOR THE APPLICANT: Herald Legal

COUNSEL FOR THE FIRST RESPONDENT: Mr Alexander

SOLICITOR FOR THE FIRST RESPONDENT: Crouch & Lyndon

COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: Mr Drysdale

SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: Hopgood Ganim

Orders

1. That the applicant’s oral application for leave to file and read an affidavit sworn by him, is refused.

2. That the following entities be joined as respondents to the proceedings:

   (a)F Pty Ltd;

   (b)G Pty Ltd;

   (c)The Mr C Weng Family Trust;

   (d)The H Family Trust;

   (e)The J Family Trust;

   (f)K Pty Ltd; and

   (g)L Pty Ltd.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Weng & Wah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLC 9718 of 2014

Mr B Weng

Applicant

And

Ms Wah

First Respondent

And

Mr C Weng

Second Respondent

And

D Pty Ltd 

Third Respondent

And

E Pty Ltd 

Fourth Respondent

And

F Pty Ltd

Fifth Respondent

And

G Pty Ltd

Sixth Respondent

And

The Mr C Weng Family Trust

Seventh Respondent

And

The H Family Trust

Eighth Respondent

And

The J Family Trust

Ninth Respondent

And

K Pty Ltd

Tenth Respondent

And

L Pty Ltd

Eleventh Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These property adjustment proceedings were commenced by the Applicant Husband in the Melbourne Registry of this Court in October 2014, almost four years ago.

2. The proceedings were commenced against the First Respondent Wife and the Second Respondent, who is the only son of the parties’ former marriage. He is now 40 years of age.

3. In February 2015, the proceedings were transferred to this Registry of the Court by a Registrar in Melbourne.

4. The matter was case managed by a Registrar of the Court in this Registry, until November 2016 when an Application in a Case filed by the Husband was listed for hearing before me in February last year.

5. I considered the extreme difficulties presented to the Court by the nature of the case required Judge management and I took it into my docket. The matter was before me again on 22 May, 18 September, 21 September and 24 November 2017 on which occasions highly conflictual allegations and counter-allegations were being made about disclosure and each party's alleged compliance or non-compliance with their full and frank disclosure obligations. I also made orders joining two companies in which the First and Second Respondents are variously interested as Respondents to the proceedings.

6. The matter was before me again on 1 March, this year. On that occasion, I determined to list the proceedings for trial and made trial directions to ready the matter for trial. That was not opposed by any of the parties.  I listed it for hearing over five days starting today and I set the matter down for a compliance check on Monday, 27 August 2018. Included, relevantly, in the orders I made on 1 March, was an order giving each party liberty to relist the matter for further trial management as required on the giving of 7 days' notice in writing to each of the other parties.

7. At all times since the matter was taken into my document, the Husband has been legally represented. For reasons only known to the Husband, he has changed solicitors, particularly in the last 12 months, frequently. Indeed, since the beginning of October last year, he has had six different firms of solicitors represent him, the latest one of which filed a Notice of Address only on Friday, 31 August 2018.

8. But for the first appearance before me early last year and since 1 March this year, the First and Second Respondents were not legally represented before me each time they appeared. Notably also, although the Second Respondent speaks and understands English, neither the Applicant Husband nor the First Respondent Wife do, and qualified interpreters have had to be provided for those parties at the court’s expense each time the matter has been in Court.

9. When the matter was before me for the compliance check on 27 August 2018, the Applicant Husband was represented by a senior barrister from the Melbourne Bar who appeared by telephone. The First Respondent was represented by counsel from the Brisbane Bar and the Second Respondent was represented by a very experienced solicitor.

10. Just prior to the compliance check, I read a document that has been provided to the court by the legal representatives for the Husband that included a draft of certain orders intended to be sought from the court on that date. Those included that certain financial documents be provided by the First and Second Respondents to a single expert accountant who had been retained to provide a valuation of a business operated by a corporate entity with which the First and Second Respondents were associated. For some reason, not known to me, at the compliance hearing, Senior Counsel for the Husband did not press any such application for any further disclosure. The parties were told at that hearing that the matter would proceed today and to have it ready for trial.

11. At the commencement of the hearing today, Senior Counsel, Mr Geddes, also of the Melbourne Bar, who, together with Mr Glezakos, appears for the Applicant Husband, made an oral application, unsupported by any affidavit evidence directed specifically at supporting it, for each of five named entities to now be joined as parties and for fresh disclosure of financial documents by those entities to the single expert accountant to take place immediately.

12. The application was opposed by each of the First Respondent and the Second Respondent. It was submitted, in particular, that no explanation had been offered by or for the Applicant Husband for the lateness of this application in all the circumstances. Senior Counsel for the Applicant Husband did hand up a bundle of search records pertaining to the five entities sought to be joined and he tendered some very recent correspondence between the single expert and the legal representatives of the parties referring to the valuation issue.

13. I determined to allow the application for joinder of the five entities, but not the application for disclosure at this time. Desirous of getting on with the trial, I told the parties that I would give my reasons in the written reasons for judgment that I give at the end of the trial.

14. Senior Counsel for the Applicant Husband respectfully indicated to me that he required me to give oral reasons for my determination to reject the application for immediate disclosure of financial documents by the entities. These are those reasons.

15. The Applicant Husband has made a number of Applications for disclosure from the First and Second Respondents in the course of the last couple of years, prior to 1 March, 2018 when this matter was listed for trial. Orders were made by me on various occasions requiring those parties to provide disclosure and to prove they had disclosed as required.

16. After 1 March this year, when the matter was listed for trial, the parties, including the Applicant Husband, who was legally represented, had liberty to have the matter relisted for further trial management as they saw fit. No such application was made by or for the Husband. Most particularly, no application was made by or for him when he was represented by Senior Counsel at the compliance check before me two weeks ago when there was apparent intention on the part of his legal representatives to do so.

17. Mr Geddes referred to the fact that his solicitors had, last week, asked for voluntary disclosure of the many documents he now seeks and that it was refused. Although he did say he could provide affidavit evidence deposing to that, no such affidavit was prepared and filed by leave this morning to support the application.

18. Whilst it is reasonable to expect that some of the documents that Mr Geddes sought to have produced at this late hour might exist, I do not consider that now, part way through the first day of trial, is the time to be ordering further disclosure by entities with which the Respondents are associated of a vast array of financial documents. There is no evidence supporting an assertion that the single expert could have a fresh valuation report prepared and made available in a way that would not potentially further delay the trial progressing to its planned conclusion later this week, even if some or many of these documents were provided to him quickly.

19. On the many occasions this matter has been before me, all the parties were reminded of their disclosure obligations and of the potential consequences of a finding that that full and frank disclosure has not been provided. They and their legal representative are well and truly aware of the robust approach the Court may take when satisfied that full and frank disclosure obligations have not been complied with. If I am ultimately convinced that the documents should have been disclosed and were not, the Respondents, if found responsible for that, may experience the consequences that I am satisfied they would have been advised about.

20. Satisfied of all those things, and completely conscious of the interests of so many other litigants awaiting use of this Court’s most valuable resource, its judicial time, as well as the public interest in ensuring the efficient discharge of this Court's key business, hearing and determining disputes that are within its jurisdiction, according to law, I rejected the application for orders for further disclosure to be provided now after the trial has begun.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 10 September 2018.

Associate: 

Date:  5 December 2018