FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zha & Wun [2022] FedCFamC1F 274
File number(s): SYC4269 of 2020 Judgment of: ALTOBELLI J Date of judgment: 29 April 2022 Catchwords: FAMILY LAW – PROPERTY – Review of decision – Where Senior Judicial Registrar made directions for parties to file evidence on the Applicant’s proposal to join a Fourth Respondent and further dismissed the Second and Third Respondent’s proposal to, upon receipt of Applicant’s Point of Claim, either file Points of Defence or seek to dismiss the Applicant’s case – Where Second and Third Respondent contend they need not put on evidence in response to the Applicant until the Applicant files a Points of Claim document outlining her case against them – Where Applicant contends that a lack of proper disclosure prevents her from doing so – Review allowed in part – Orders varied to extend the compliance timeframe – Further orders made that the Second and Third Respondents provide proper disclosure to the Applicant and the Applicant thereafter provide a Points of Claim document. Legislation: Family Law Rules 2004 (Cth) r 13.04 . Cases cited: B Pty Ltd and Ors & K and Anor (2008) FLC 93–380; [2008] FamCAFC113
Zhu & Wun [2021] FamCA 143
Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 1 February 2022 Place: Sydney Counsel for the Applicant: Mr Sweeney Solicitor for the Applicant: Landers & Rogers Solicitor Advocate for the First Respondent: Mr Luo Solicitor for the First Respondent: Sunfield Chambers Solicitors & Associates Counsel for the Second and Third Respondents: Mr Hollo Solicitor for the Second and Third Respondents: David H Cohen & Co ORDERS
SYC 4269 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZHA
Applicant
AND: MR WUN
First Respondent
MR A WUN
Second Respondent
MS YANG
Third Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
29 APRIL 2022
THE COURT ORDERS THAT:
1.The Application for Review filed on 17 December 2021 is allowed as to Orders 4 and 5 only of the orders made on 16 November 2021.
2.Order 4 of the orders made on 16 November 2021 is varied to read:
“Within 21 days of the date of these orders, the First, Second and Third Respondents file and serve:
(a)any Response to the Application seeking to add AB Pty Ltd; and
(b)any affidavit in support of the Response.”
3.Order 5 of the orders made on 16 November 2021 is varied to read:
“Within 21 days thereafter, the proposed Fourth Respondent may serve on each party to the proceedings:
(a)any Response relied upon; and
(b)any affidavit in support of that Response.”
4.Within 21 days of the date of these orders, the Second and Third Respondents respond to and provide to the Applicant the information requested in the letter dated 28 August 2020 from the Applicant’s solicitor.
5.Within 14 days of receiving the response referred to in Order 4, the Applicant make any further request for information from the Second and…
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- [2022] FedCFamC1F 274
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CaseChat Overview and Summary
The court needed to determine whether the second and third respondents were correct in their assertion that they did not need to provide evidence until the applicant filed a points of claim document and whether the applicant’s contention of inadequate disclosure was valid. The court considered the procedural fairness and the need for proper disclosure in family law proceedings. It was established that the second and third respondents’ argument was flawed as they were required to provide proper disclosure to the applicant, enabling her to file a points of claim document. The court found that the applicant’s lack of proper disclosure was justified and allowed the review in part.
The court varied the orders to extend the compliance timeframe and mandated that the second and third respondents provide proper disclosure to the applicant. The applicant was then required to file a points of claim document within 28 days of receiving the further information from the second and third respondents. The court dismissed the review application in all other respects and referred the matter of the joinder of the fourth respondent to the Senior Judicial Registrar for determination. The costs of all parties were reserved, subject to further submissions.
Orders
Orders of the court
SYC 4269 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS ZHA
Applicant
AND:
MR WUN
First Respondent
MR A WUN
Second Respondent
MS YANG
Third Respondent
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
29 APRIL 2022
THE COURT ORDERS THAT:
1. The Application for Review filed on 17 December 2021 is allowed as to Orders 4 and 5 only of the orders made on 16 November 2021.
2. Order 4 of the orders made on 16 November 2021 is varied to read:
“Within 21 days of the date of these orders, the First, Second and Third Respondents file and serve:
(a) any Response to the Application seeking to add AB Pty Ltd; and
(b) any affidavit in support of the Response.”
3. Order 5 of the orders made on 16 November 2021 is varied to read:
“Within 21 days thereafter, the proposed Fourth Respondent may serve on each party to the proceedings:
(a) any Response relied upon; and
(b) any affidavit in support of that Response.”
4. Within 21 days of the date of these orders, the Second and Third Respondents respond to and provide to the Applicant the information requested in the letter dated 28 August 2020 from the Applicant’s solicitor.
5. Within 14 days of receiving the response referred to in Order 4, the Applicant make any further request for information from the Second and Third Respondents.
6. Within 21 days of receiving a further request for information from the Applicant as referred to in Order 5, the Second and Third Respondents provide said requested information to the Applicant.
7. Within 28 days of receiving the further information from the Second and Third Respondents as referred to in Order 6, the Applicant file and serve on the Second, Third and Fourth (if applicable) Respondents Points of Claim setting out with particularity the factual contentions and legal basis relied on in support of the final relief claimed in the Further Amended Initiating Application against each of the Second, Third and Fourth (if applicable) Respondents to enable them to fairly understand the case they each have to meet.
8. Subject to further submissions, the costs of all parties be reserved.
9. The Application for Review filed on 17 December 2021 is otherwise dismissed.
10. The matter is referred to Senior Judicial Registrar Hoult to determine the joinder or otherwise of AB Pty Ltd.
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.
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
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