Pirani & Pirani (No 6) [2025] FedCFamC1F 177 (18 March 2025)

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The wife's application to amend her claim against the ninth respondent is refused.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This judgment concerns an application by the wife to wholly recast the case that she has run against the ninth respondent. In these proceedings the claim by the ninth respondent is a significant claim. If the ninth respondent is successful in his claim he will have priority over the wife in relation to a claim in respect of the most significant asset in the s 79 proceedings. According to him that priority will remove a significant proportion of the property potentially available for property adjustment as between the husband and the wife. Until today the claim by the wife against the ninth respondent was that his claim of a loan of $2 million to the husband, secured by mortgage against the former family home, was a sham. That is, the claim was that there was no such loan in existence.
2. The wife was, as were each of the parties, required to plead their cases in respect to contest as to the interests held in the former family home. That included directions which required the wife to plead her case as against the ninth respondent. Despite the wife's case being one of fraud, an allegation of seriousness that requires identification with precision, the wife repeatedly failed to comply with directions to plead that case and identify it to the ninth respondent. That failure occurred amongst repeated failures to comply with directions by the wife, from at least August 2023 to the point of the trial.
3. The wife was required to file and serve points of claim in respect of the ninth respondent and other claims by 17 December 2024. She did not do so. The deadline for her compliance with that requirement was extended, and extended again, to 31 January 2025. The wife was subsequently placed on notice that she would require the leave of the trial judge to proceed with the claim of sham against the ninth respondent, unless she pleaded the matter against a further extended deadline. She failed to do so.
4. The ninth respondent has prepared his case in the shadow of the unpled claim of sham.
5. Eventually the wife, significantly out of time, filed an affidavit setting out the facts that she relied upon to assert sham on 13 March 2025, less than one week before the commencement of the trial. She had still not filed points of claim setting out the nature of the claim. Despite that deficit on her part, the ninth respondent scrambled to immediately answer what was put forward in the wife's affidavit in support of a sham case by filing relevant material.
6. During this period the wife requested documents on 4 March 2025 from the ninth respondent, or rather an entity associated with the ninth respondent. The ninth respondent caused that third party to answer the request promptly by 7 March 2025. Those documents show payments at least from the second respondent to that third party that was associated with the ninth respondent, being an entity that, it seems, has performed significant work for the first and second respondents in those proceedings.
7. The wife now, on the morning of the trial, seeks to amend the case from that of the sham loan to a repaid the loan and sham transactions, in respect of the nature of the payments. It may be observed that this is a 180-degree turnaround in the case which is pitched against the ninth respondent and one which would necessitate the ninth respondent completely changing a case in response. It is also a claim that would necessitate the wife being able to make good her claims that appear, at least at face value, reliant upon the obtaining of further material. It should be noted that there is no assertion that the wife had pursued this line of partial enquiry, until the request for material approximately two weeks ago.
8. In order for the wife to adequately pursue it would necessitate the vacating and adjourning of the trial, being a trial which in addition to the wife, involves at least six other active parties. The wife makes no offer of costs to ameliorate the harm that this might cause, nor could it be confidently predicted that costs would be able to be made good, noting that the claims of the various parties appear, at face value, to exceed the potential pool of property available for distribution in this case. To accede to the wife's application would involve the abandonment and postponement of the trial in circumstances where there can be no confidence that the costs could be used to ameliorate and no confidence that the further enquiries to be made by the wife would support the new case that she seeks to run.
9. In the face of repeated non-compliance by the wife in preparation for trial, and considering the impact of acceding to the application, and considering that the new case is reliant on hope as to further evidence, then despite the impact of the potential loss of a claim against the ninth respondent permission to amend, at this point of the trial, and the inevitable adjournment that that would necessitate does not meet the interests of justice in this case.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Gill.