Adamczak & Adamczak

[2022] FedCFamC1A 31

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Adamczak & Adamczak [2022] FedCFamC1A 31  

Appeal from:

Adamczak & Adamczak [2021] NSWSC 851

Appeal number(s):

EAA 88 of 2021

File number(s):

Supreme Court NSW 2019/00051555

Judgment of:

ALDRIDGE, AUSTIN & SCHONELL JJ

Date of judgment:

4 March 2022

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Appeal from orders made by a judge of the Supreme Court of New South Wales – Appeal against orders holding a property on trust for the appellant and a costs order in favour of the appellant – Issue estoppel – Anshun estoppel – Procedural fairness – No error established – Appeal dismissed.  

Legislation:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 7(5), 11(1)(c)

Cases cited:

Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44

Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211

Kalinec & Kalinec [2021] FedCFamC1A 44

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

McKean v Page (1999) FLC 92-853; [1999] FamCA 577

Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45

Number of paragraphs:

15

Date of hearing:

1 March 2022

Place:

Sydney

Counsel for the Appellant:

Ms Reid with Ms Ingenito

Solicitor for the Appellant:

Andrew Lee Lawyers

Counsel for the Respondent:

Mr Harding SC

Solicitor for the Respondent:

StevensVuaran Lawyers

ORDERS

EAA 88 of 2021
Supreme Court NSW 2019/00051555

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR ADAMCZAK

Appellant

AND:

MS ADAMCZAK

Respondent

ORDER MADE BY:	ALDRIDGE, AUSTIN & SCHONELL JJ
DATE OF ORDER:	4 MARCH 2022

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 15 December 2021 is allowed.

2.The appeal is dismissed.

3.The appellant is to pay the respondent’s costs fixed in the sum of $29,183.59.

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).

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

REASONS FOR JUDGMENT

ALDRIDGE, AUSTIN & SCHONELL JJ:

INTRODUCTION

1. This is an appeal against a declaration and other orders made by a judge of the Supreme Court of New South Wales on 3 August 2021 in proceedings between Ms Adamczak (“the respondent”) and Mr Adamczak (“the appellant”).

2. The primary judge declared that the appellant held the legal interest in a property in Suburb J (“the Suburb J property”) on trust for the respondent as to one half interest. Subsequent orders were made charging the appellant’s interest in the land with a debt to the respondent in the sum of $154,860 and for the sale of the property and the distribution of the proceeds.

3. An order was made restraining the appellant from disposing of or dealing with the money to be paid to him without the prior written consent of the respondent, other than for satisfying the orders for costs in favour of the respondent (“the costs order”).

4. As the parties were married, the appeal is to this Court pursuant to s 7(5) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and as more fully explained in Eberstaller v Poulos (2014) 87 NSWLR 394.

   THE APPEAL

5. The appellant did not seek to challenge the primary judge’s findings as to the substance of the matter and raised only two issues.

6. The first of these was whether proceedings taken by the respondent in the Federal Magistrates Court of Australia (as it then was) and the withdrawal of the application and response recorded in orders made on 26 February 2009 thereby precluded the respondent from bringing the equity proceedings before the Supreme Court of New South Wales by reason of issue estoppel or Anshun estoppel. The primary judge rejected the appellant’s contention that the orders gave rise to an issue estoppel, or an Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; Clayton v Bant (2020) 385 ALR 41).

7. We do not need to consider the points further because in the course of oral arguments before us, counsel for the appellant abandoned Grounds 1–8 which raised them. This step recognised that her Honour’s reasoning on these issues was unassailable.

8. The second point concerns the costs order, as the appellant submits that in making it he was denied procedural fairness because, as he contends, he was not given the opportunity to make submissions as to whether it should be made.

9. In answer to this submission, the respondent filed an Application in an Appeal on 15 December 2021, seeking to place in evidence emails that were sent to the primary judge’s chambers concerning the orders. There was no opposition to that course.

10. Her Honour directed the parties to bring in short minutes of order to give effect to her reasons. On 29 July 2021, the solicitors for the respondent delivered a draft minute which included the costs order. In response, the solicitors for the appellant forwarded a marked up copy of the same minute of orders on 2 August 2021 which deleted the costs order.

11. It follows that from 29 July 2021, the appellant was on notice of the costs order against him. In his response, the appellant’s lawyers did not seek to elaborate further in the covering email or ask for the opportunity to make further submissions as to whether or not the costs order should be made against the appellant. As Kioa v West (1985) 159 CLR 550 explains, procedural fairness requires a party to be given the opportunity to present his or her case. Here the appellant was given that opportunity and he did not take it up by requesting that submissions be made.

12. We are satisfied that the appellant was accorded procedural fairness and Ground 9 fails.

13. Even if we are wrong in our conclusion, we would have made the same order as her Honour on the re-exercise of the discretion. The only asset or income of the appellant in Australia, who at the time was living in Europe, was his interest in the Suburb J property. Absent such an order, given the hostility the appellant clearly has for the respondent, she would not be paid her costs.

    COSTS

14. The appeal has been entirely unsuccessful. It is from a court in which costs follow the event, unless an order to the contrary is made (Kalinec & Kalinec [2021] FedCFamC1A 44 at [38]; McKean v Page (1999) FLC 92-853 at [64] and s 11(1)(c) of the Jurisdiction of Courts (Cross-Vesting) Act (Cth)). The fact that the appellant is facing a substantial costs order for the primary proceedings is irrelevant. He was not obliged to appeal.

15. The appellant will pay the costs of the respondent as claimed in the schedule of costs filed in accordance with the orders of the appeal registrar.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Austin & Schonell.

Associate:

Dated:       4 March 2022