Swan Life Ltd v Juppin de Fondaumiere

Catchwords: CIVIL PROCEDURE — Hearings — Adjournment — Second defendant’s application to vacate or adjourn hearing — Where 500 pp with potential relevance obtained by subpoena in Family Court proceedings — Where second defendant seeking release from ‘Harman’ undertaking in Family Court — Hearing vacated

Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 35.1, 35.3B

Cases Cited: Harman v Secretary of State for the Home Department [1983] 1 AC 280

Category: Procedural rulings

Parties: Swan Life Ltd (Plaintiff/Respondent)
Joseph Andre Philip Jean Juppin de Fondaumiere (First Defendant)
Marguerite Jann Juppin de Fondaumiere (Second Defendant/Applicant)

Representation: Counsel:
P Walsh (Plaintiff)
G A Edwards (Second Defendant)
Solicitors:
Crompton Walsh (Plaintiff)
Shepherds The Family Law Specialists (First Defendant)
Abadee Dresdner & Freeman Pty Limited (Second Defendant)

File Number(s): 2024/106433

Publication restriction: No

JUDGMENT

1. A hearing has been set down for 13 August 2025, to consider the plaintiff’s notice of motion for summary judgment and the second defendant’s notice of motion for security for costs.

2. On 26 July 2025, the second defendant filed a notice of motion to vacate the hearing date of 13 August 2025. The motion also seeks orders for discovery of documents. I will refer to the second defendant as the applicant and the plaintiff as the respondent. I will continue to refer to the first defendant as the first defendant.

3. The dispute centres on a residential property in the Sydney suburb of Gordon which I will refer to as No 24. This property was owned as joint tenants by the applicant and the first defendant but is now owned by them as tenants in common. The applicant lives in No 24.

4. There is another relevant property in Gordon, which I will call No 28. It is owned jointly by the applicant and the first defendant and was apparently purchased as an investment property.

5. At first sight, the dispute has the appearance of an unpaid mortgagee attempting to obtain possession of a mortgaged property and recover the moneys that it is owed. In the same vein, the applicant has the initial appearance of a person wishing to delay the inevitable of having to vacate a property and pay back a large sum of money. I was informed the amount allegedly owing is about $900,000.

6. On closer inspection the facts are not quite as straightforward. A brief background is as follows.

7. The applicant and the first defendant were husband and wife. They were married in 1982 and divorced in 2023. They are in the midst of Family Court proceedings to determine their respective matrimonial property interests. The respondent is not a party to the proceedings in the Family Court. Efforts by the applicant to join the respondent to the Family Court proceedings failed.

8. My references to the Family Court are to the Federal Circuit and Family Court of Australia (Division 1).

9. The respondent is a company that trades in Mauritius, I understand as a life insurance and financial organisation. The respondent is not registered and does not trade, in Australia. The second defendant was the chief executive officer of the respondent.

10. There are three mortgages held by the respondent over No 24, executed in 2006, 2012 and 2015 respectively.

11. On 19 March 2024, the respondent commenced these proceedings with the filing of a statement of claim. On 2 May 2024, the respondent filed a notice of motion seeking possession of No 24, and payment of outstanding moneys

12. On 3 May 2024, default judgment was obtained by the respondent against the applicant and the first defendant. Two days later the applicant filed a motion to set aside the default judgment against the second defendant. The default judgment was set aside on 26 June 2024. The first defendant did not challenge the default judgment against him.

13. On 8 October 2024, Faulkner J granted the applicant leave to file an amended defence. In this defence the applicant pleads that she was not a party to the above three mortgages, and she never guaranteed any liability to the respondent. She also, perhaps in unusual words, challenges her signatures on the mortgages and guarantees. The applicant has filed a cross claim against the first defendant but has never filed a cross claim against the respondent.

14. After various skirmishes the matter came before Campbell J on 21 May 2025. His Honour made orders to dictate the filing of a notice of motion for summary judgment by the respondent, and the setting of a timetable for evidence. The respondent was to file and serve its evidence on or before 28 May 2025. His Honour granted liberty to the parties “to apply in respect of any slippage on the part of any party in relation to this timetable”.

15. The respondent never relisted the matter in respect of slippage but filed its evidence 16 days after the time permitted by the timetable. I was told, and I accept, that this was because of difficulties with consular arrangements in Mauritius.

16. The evidence filed by the respondent was an affidavit of Mr Andrew Zing, affirmed on 12 June 2025. Mr Zing is an employee of the respondent. He is the manager of the finance and accounts department. His affidavit provides an overview of the mortgages and annexes the relevant documents.

17. Mr Zing’s affidavit does not comply with r 35.3B of the Uniform Civil Procedure Rules 2005 (NSW). The respondent’s solicitor has offered to have the affidavit made compliant. For present purposes, I think I can ignore the irregularities pursuant to r 35.1.

18. According to the applicant, Mr Zing’s affidavit does not disclose “key documents”, and there are errors or inconsistencies in respect of the loan schedules, statements, and default notices.

19. More importantly, I think, are events that have occurred in the Family Court. On 29 July 2025, Schonell J made orders which include directions for the sale of No 28. Although there is no date by which the sale is to be completed, the orders include detailed directions to achieve that purpose. In respect of any surplus funds, the orders include a direction that the funds be used:

“5e. in payment of:

i. the amount required to obtain a discharge of the registered mortgage by Swan Life Ltd over (No 24) Gordon to be paid to Swan Life;

ii. in the event that agreement has not been reached with Swan in respect of the sum required, or the amount has not been determined by the Supreme Court, the money shall continue to be held, pursuant to these orders, until clarification of such;”

20. I was informed that the surplus funds will be well in excess of the amount said to be owing to the respondent.

21. Another development in the Family Court is that documents were produced under subpoena from a firm of solicitors called Fox & Staniland, which had acted in the completion of the various mortgage documents. According to Mr Abadee, the applicant’s solicitor, this firm produced about 500 pp of documents to the Family Court on 28 July 2025.

22. Mr Abadee says in his affidavit of 3 August 2025, that he is unable to disclose the contents of the documents in these proceedings because he is bound by a ‘Harman’ undertaking (derived from Harman v Secretary of State for the Home Department [1983] 1 AC 280). The applicant’s counsel undertook to expeditiously seek relief from the undertaking in the Family Court. I was told the matter is before the Family Court on Friday of this week.

23. As I have observed above, the applicant disputes that she was a party to the mortgages. The documents produced by Fox & Staniland are potentially significant to this issue.

24. In summary therefore, the applicant seeks the adjournment because she says there are documents missing from the respondent’s material which should have been forthcoming, and it is necessary for access to be available to the documents produced in the Family Court, without the constraints of the ‘Harman’ undertaking.

25. The respondent opposed the adjournment. The respondent points out that there is no cross-claim against the respondent alleging any fraud on its part. Further the respondent has referred me to the authorities referable to the failure to plead fraud against the respondent. Although the respondent, appropriately, did not seek to run the summary judgment case before me, it did make clear that the absence of a fraud pleading against the respondent, and probably even with such a pleading, would not be an obstacle to the obtaining of summary judgment.

26. As far as the Fox & Staniland documents were concerned, the respondent pointed out that it simply did not know what they contained. The respondent said that relief from the ‘Harman’ undertaking could have been sought before today.

27. The difficulty with the last submission is that the documents were only produced on 28 July 2025, so that there has been little time to approach the Family Court.

28. As to the unknown contents of the documents, I think the respondent’s point is perhaps the applicant’s best point. If the applicant’s case is that she was never a party to the mortgages, then the Fox & Staniland documents present a very good opportunity to determine this issue.

29. The other effect of the Family Court orders is that the debt owing to the respondent is secure. The size of the debt may well increase because of accruing interest, but on the assumption that the sale of No 28 will realise sufficient funds, as I have been told will be the case, then it is the applicant rather than the respondent that will be most disadvantaged by the delay.

30. On balance, I have decided that it is in the interests of justice that the 13 August 2025 hearing date be vacated. This is both as to the respondent’s application for summary judgment, and the applicant’s application for security for costs.

31. In relation to the costs of this application I think there are competing arguments. The applicant has succeeded, but I think the arguments connected to Mr Zing’s affidavit were not overly persuasive and the adjournment is more a product of events in the Family Court. On the respondent’s side, the respondent was ready for a hearing which will now be delayed, perhaps for about two months.

32. I think the answer on costs is that each party should pay its own costs of this application, but that the costs associated with the vacating of the hearing date should be reserved.

33. I will also make the order requested by the applicant, referring the matter to the Registrar to adjudicate on the discovery issues.

34. I make the following orders:

35. The hearing listed on 13 August 2025 for the plaintiff’s notice of motion for summary judgment and the second defendant’s notice of motion for security for costs is vacated.

36. The matter is listed before the Registrar on 19 August 2025 to deal with any discovery issues and the allocation of a fresh hearing date.

37. Each party is to pay its own costs of the second defendant’s notice of motion filed on 26 July 2025.

38. Any costs associated with the vacating of the hearing date of 13 August 2025 are reserved.

39. The undertaking given by counsel for the second defendant to expeditiously seek relief from the ‘Harman’ undertaking in the Family Court is noted.

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