Zegna & Zegna
[2022] FedCFamC1F 391
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zegna & Zegna [2022] FedCFamC1F 391
File number(s): SYC 3648 of 2011 Judgment of: HARPER J Date of judgment: 31 May 2022 Catchwords: FAMILY LAW – EVIDENCE – Application of Second to Fourth Respondents seeking to read two further affidavits into evidence where trial recommences part heard – Second to Fourth Respondents are the parents, and their interests, of the Applicant husband - Where Second to Fourth Respondents contend that legal representation for original trial date was engaged at short notice – No submission by the First Respondent Wife suggesting that first affidavit would cause prejudice – Specific paragraphs of first affidavit rejected – Respondent Wife objects receiving entirety of second affidavit – Second affidavit sets forth calculations of interest which Second to Fourth Respondents rely in making claim for interest – Respondent Wife contends that admission of second affidavit without limitation would cause prejudice because calculations in second affidavit are based upon factual assumptions and should not be used as evidence to prove those assumptions – Order made for second affidavit to be received into evidence subject to limitation – Factual assumptions in second affidavit are subject to proof by other evidence. Cases cited: Zegna & Zegna [2021] FamCA 538 Division: Division 1 First Instance Number of paragraphs: 9 Date of hearing: 31 May 2022 Place: Sydney Counsel for the Applicant: Mr North SC Solicitor for the Applicant: Taperell Rutledge Lawyers Counsel for the First Respondent: Mr Richardson SC and Mr Roberts Solicitor for the First Respondent: Barkus Doolan Counsel for the Second, Third and Fourth Respondents: Mr Gould Solicitor for the Second, Third and Fourth Respondents: Buckley Lawyers ORDERS
SYC 3648 of 2011 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ZEGNA
Applicant
AND: MS ZEGNA
First Respondent
MR F ZEGNA
Second Respondent
MS N ZEGNA
Third Respondent
L PTY LTD
Fourth Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
31 MAY 2022
THE COURT ORDERS THAT:
1.Paragraphs 4 to 22 of the affidavit of Mr F Zegna sworn 9 May 2022 be rejected, subject to annexures C, D, E, F and G being received as a single exhibit, and subject to relevance.
2.The affidavit of Mr P, sworn 21 September 2021, be received into evidence, limited to proving the calculations of interest set forth therein, and on the basis that the factual assumptions set forth in the affidavit are subject to being proved by other evidence admitted in the proceedings.
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 the pseudonym Zegna & Zegna has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These proceedings have been subject to final hearing dates in August 2021, and resumed final hearing dates commencing on 30 May 2022. During the course of the first tranche of the trial, I delivered ex tempore reasons for judgment in relation to receiving evidence proffered by the Second to Fourth Respondents in the form of an affidavit of Mr P, sworn on 22 June 2021, and an affidavit of Mr F Zegna, sworn 3 August 2021. Rulings were also made in respect of one paragraph of Mr F Zegna’s affidavit, sworn 10 February 2015. I refer here to the reasons for judgment in Zegna & Zegna [2021] FamCA 538 (“earlier judgment”).
When the matter resumed on 30 May 2022, the Second to Fourth Respondents made further application for the court to receive an affidavit of Mr F Zegna sworn 9 May 2022, and a further affidavit of Mr P, sworn on 21 September 2021.
Dealing first with the affidavit of Mr P, objection was taken by the Respondent Wife (“the wife”) to the court receiving the entirety of the affidavit. In that affidavit, Mr P sets forth some calculations of interest upon which the Second to Fourth Respondents propose to rely in making their claim for interest, pursuant to an agreement struck, so it is said, with the wife and recorded in a notation of court made on 18 March 2018.
The notation records an agreement in relation to building costs incurred as far back as 2011. Details of this particular aspect of the case are set forth in my earlier judgment, and do not need to be repeated here. There is force in the submissions of the wife that if Mr P’s affidavit was received without some limitation, there would be a potential prejudice to her in the sense that Mr P’s calculations are based upon certain factual assumptions.
In my view, the material is relevant, but should be received by the court on a limited basis, that is, limited to proving the calculations made by Mr P, relied upon by the Second to Fourth Respondents, and based purely on the factual assumptions set forth in Mr P’s affidavit, but not to prove the truth of any such factual assumptions. I propose to receive the affidavit on that basis.
Turning then to the affidavit of Mr F Zegna, sworn 9 May 2022. After discussion between counsel, it was made clear to the court that the Second to Fourth Respondents do not read paragraphs 5, 10, 12, 13, 14, 17, 19, and 22. As to paragraphs 15, 16, 18, 20, and 21, the annexures referred to in those paragraphs were the only parts of those paragraphs which were pressed. Stated in summary and in broad terms, this affidavit of Mr F Zegna, sworn 9 May 2022 makes reference to a range of conversations said to have taken place between him and the husband, and in one case the wife, in relation to loans said to have been made by the Second to Fourth Respondents in relation to the building project, at R Street, Suburb S, in 2010 and 2011.
In support of the application for this evidence to be received, counsel for the Second to Fourth Respondents pointed out that they had engaged their current legal representation at short notice before the commencement of the trial in August 2021. I do not consider that to be a reason which should affect the exercise of discretion as to whether or not the evidence be received.
Having said that, there was no submission of any real strength put to me by the wife suggesting that receipt of the evidence would necessarily cause prejudice, except that, in broad terms, it will require revisiting a number of aspects of the case.
Be that as it may, in my view, the material was available to be put in affidavit form, and read prior to the commencement of the trial in August 2021. These proceedings have been on foot in this court for many years, and cry out for finalisation. The Second to Fourth Respondents chose to represent themselves through Mr F Zegna for a considerable period prior to the commencement of the trial, and in my view, if representation was desired, it should have been a matter which was addressed well before it apparently was. Accordingly, I propose to reject those other paragraphs of the affidavit, sworn 9 May 2022, which were pressed. However, I will receive annexures C, D, E, F, and G as one exhibit, but subject to relevance.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 31 May 2022. Associate:
Dated: 31 May 2022