Allen and Allen

[2007] FamCA 666

FAMILY COURT OF AUSTRALIA

ALLEN & ALLEN

[2007] FamCA 666

FAMILY LAW - APPEAL – SUMMARY DISMISSAL – Appeal by the husband dismissed on the basis that there were no proper grounds of appeal pursuant to s 96AA of the Family Law Act.

FAMILY LAW - PROPERTY – APPLICATION TO FREEZE PROCEEDS OF SALE – Application granted by Full Court pending the hearing by a single Judge of the husband’s application to extend time to appeal pursuant to s 94(2D) of the Family Law Act.

FAMILY LAW - COSTS – The husband was ordered to pay the wife’s costs of, and incidental to, the husband’s application for the preservation of part of the proceeds of the sale of the property and the appeal.

Family Law Act 1975 (Cth), s 94, s 96AA

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Rules 2004 (Cth)

Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541

APPELLANT: Mr Allen

RESPONDENT: Ms Allen

FILE NUMBER: PAC 2322 oof 2007

FIRST APPEAL NUMBER: EA 33 of 2006

SECOND APPEAL NUMBER: EA 72 of 2007

DATE DELIVERED: 6 July 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Finn, May and Thackray JJ

HEARING DATE: 28 June 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 18 May 2007

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Allen (Appearing on his own behalf)
COUNSEL FOR THE RESPONDENT:	Mr Phair (Solicitor)

SOLICITOR FOR THE RESPONDENT: Proctor Phair Lawyers

Orders

1. That the solicitor acting for the husband and the wife in relation to the sale of the property at Baulkham Hills New South Wales, retain in his or her trust account (or similar account) the amount of $100,000 out of each of the shares of the proceeds of that sale to be received by each party, pending the determination of the husband's application in a case filed 29 March 2006 or other order of the Court.

2. That each party be at liberty to apply for a reduction in, or the disbursement of, the amount held in trust pursuant to Order 1 of these orders to the Judge who hears the husband's application in a case filed 29 March 2006.

3. That the husband's appeal filed 4 June 2007 against the orders of the Honourable Justice Collier made 18 May 2007 be dismissed.

4. That the husband pay the wife's costs of and incidental to the application in a case filed by the husband on 4 June 2007 and to the appeal filed by the husband on 4 June 2007 against the orders of the Honourable Justice Collier made 18 May 2007 (including the procedural hearing on 14 June 2007 and the hearing before the Full Court on 28 June 2007), with such costs to be assessed under the Family Law Rules 2004 in default of agreement.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Allen & Allen.

FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 33 of 2006; EA 72 of 2007
File Number: PAC 2322 of 2007

Mr Allen

Appellant

And

Ms Allen

Respondent

REASONS FOR JUDGMENT

1. In accordance with directions made by Finn J on 14 June 2007, the following matters were listed before the Full Court for hearing on 28 June 2007:

   ·    an appeal by the husband (filed 4 June 2007) against orders made by Collier J on 18 May 2007;

   ·    any appeal against orders made by Collier J on 23 May 2007 which might be filed by the husband on or before 4pm on 18 June 2007; and

   ·    any application by the wife for summary dismissal of the appeal or appeals, which might be filed prior to 10 am on 28 June 2007.

2. Directions were also made by Finn J on 14 June 2007 for the husband to file by 4pm on 22 June 2007 appeal books in relation both to the appeal against the orders of 18 May 2007 and to any appeal which he might file against the orders of 23 May 2007.

3. On 22 June 2007 the husband advised the Appeal Registrar in writing that he did not propose to file an appeal against the orders of 23 May 2007, nor did he propose to file any appeal books in relation to the appeal against the orders of 18 May 2007. The exact words used in the husband’s written communication to the Registrar were (original emphasis):

   I wish to advise you that I have rejected Justice Finn’s instructions to Appeal Justice Collier’s orders of the 18 May and the 23 may 2007. …

   I have not submitted a notice of Appeal for these orders nor have I submitted appeal books or intend to, for these orders mentioned.  

4. Notwithstanding the husband’s failure to file appeal books in relation to the appeal against the orders of 18 May 2007 and his decision not to file an appeal against the orders of 23 May 2007, the matter remained listed before the Full Court on 28 June 2007.

5. When the matter came before the Full Court on 28 June 2007 the solicitor for the wife filed in court an application (supported by an affidavit) seeking the dismissal of the appeal against the orders of 18 May 2007 and costs on an indemnity basis.

6. Before referring further to the proceedings before the Full Court on 28 June 2007, it is necessary to refer to the factual background to this case and also to the decisions made by Collier J on 18 May and 23 May 2007.

The background

1. The factual background to this matter was explained in the following way in reasons for judgment delivered by Collier J on 23 May 2007:

   9.On 28 May 2004, Coleman J made orders following a contested property hearing.  Those orders required the sale of [a] property [at] Baulkham Hills, with a division of proceeds between [the husband and the wife] and an adjustment from the husband to the wife.  No appeal was lodged against those orders within the time specified by the rules. 

   10.On 24 December 2004, Coleman J made a further order that the husband pay the wife's costs from 24 July 2002 to 3 December [2003]. Those orders were the subject of an appeal by the husband, commenced by a Notice of Appeal filed by him on 20 January 2005. In the Notice of Appeal, the husband seeks an order that the wife pay her own costs.

   11.On 6 March 2006, his Honour made further orders for the implementation and carrying into effect the order for property settlement previously made so as to enable an orderly and proper sale of the property to permit his Honour's orders of 28 May 2004 to be carried into effect. 

   12.On 29 March 2006, the husband filed an application in the case.  In that, he sought the following orders; first, leave to appeal the judgment of his Honour Coleman J which he described as dated 17 and 18 May.  (In fact, the date of his Honour's judgment was 28 May, but I do not believe anything turns on that.)

   13.He then said that he opposed subsequent applications and orders stemming from the final judgment, also to be addressed and clarified which would otherwise be appealed.  Those applications being costs order of 24 December and enforcement of 10 February, reasons for judgment, 6 March.  He sought a stay of proceedings until his orders were heard and application of notice of appeal that the orders be approved [sic]. 

   14.It seems to me that at the time he filed that application in a case, had he filed an appeal against his Honour's orders of 6 March 2006, that appeal would have been in time.  He says he did not follow that procedure because of advice he received.

   15.On 2 May 2006, the Appeals Registrar wrote to [the husband] and advised him that by operation of r.22.56 of the Family Law Rules, his appeal lodged on 20 January 2005 was taken to have been abandoned as at the end of 14 April 2006. The husband says that he was never made aware of this and did not receive correspondence from the Appeals Registry to that effect.

   16.It seems to me that from 29 March 2006 [the husband] did nothing to prosecute or proceed with his application for leave to appeal out of time.  He says that he believed it was a matter for someone to notify him, and nobody did.  On 22 February 2007, solicitors engaged by the wife made contact with the Appeals Registrar and sought to have the Appeals Registrar deal with the husband's application in a case so that it might be taken to be abandoned. 

   17. On 1 March 2007, the Appeals Registrar informed the wife's solicitors that whilst the appellant, that is, the husband, had taken no action since the filing of his application for the extension of time, r.22.56 was not applicable. That is clearly the case. The Registrar indicated that she was writing to [the husband] to see what his intentions were regarding that application to extend time.

   18.On 13 April 2007, the wife's solicitors wrote to the Appeals Registrar seeking confirmation that that correspondence had been forwarded and seeking, as I read it, that the Appeals Registrar confirm that it was intended to cause the appeal to be abandoned.  If that was not to be the case, the wife's solicitor sought to be notified as a matter of urgency, so that they could file an application, presumably an application in the Full Court. 

   19.On 17 April, a letter was written by the Appeals Registrar to the wife's solicitors saying that they had written to [the husband] on 1 March and received no reply.  It was therefore proposed by the Registrar that the matter would be listed before the Full Court at the next available opportunity:

   For consideration of dismissal of the application to extend time to appeal. 

   20.The husband then filed in [the Parramatta Registry], on 27 April 2007, an application for stay in respect of the first judgment of Coleman J, that is clearly the judgment of 28 May 2004, a stay in respect of a costs judgment of 24 December 2004 and a stay in respect of the enforcement judgment and orders of 6 March 2007.  As I have said, he also applied for a stay of the sale of the property which to my mind is the central point of his current application. 

   21.      On the same day, he appeared to file an amended application. 

   22.He filed further applications in the matter on 15 May, 17 May and finally, as I have said, he filed an application on 22 May which sets out the orders that he seeks numbered 1 to 11, that being the application that I am dealing with in these reasons for judgment.

   23.The wife had filed an application on 14 May; she subsequently filed an amended application on 17 May, and on 18 May, a response to the husband's application. 

   24.As I have already said, on 18 May, in a situation for which I have apologised to [the husband], and in his absence, I made orders in respect of two aspects of the wife's application.  Firstly, I amended Coleman J's orders of 6 March 2006 in respect of the person who was to carry out the valuation of the property, and I also made an order that in the event that either party refused or neglected to sign documents, those documents may be signed by the Registrar.  I made it clear that I was not ordering the Registrar or requiring him/her to sign such documents, I was merely making an order that if he/she was satisfied it was appropriate so to do, then he/she could execute the documents in lieu of either party who refused and/or neglected.

Collier J’s orders of 18 May 2007

1. The precise terms of the orders made by Collier J on 18 May 2007 were as follows (original emphasis):

   1. That order 1(c) of the orders made by Justice Coleman made on 6 March 2006 be amended to read:

   “To sign all such contracts, transfers or other documents necessary to cause Baulkham Hills to be sold at and for a price agreed in writing between the parties or, failing agreement in that regard, the price determined by a valuer appointed by the President of the NSW Division of the Australian Property Institute (as successor in title to the President of the Australian Institute of Valuers referred to in the orders of 28 May 2004) at the joint expense of the parties.”

   2.That orders be made in accordance with the terms of paragraph 8 of the application in a case filed by the wife on 14 May 2007 as set out below:

   8.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar or a Deputy Registrar of the Family Court at Parramatta (“Registrar”) be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity and operation to the said deed or instrument and such Registrar shall be satisfied upon Affidavit evidence of the party alleging the refusal or neglect that a party that is in breach of these Orders and the defaulting party will pay the costs of the other party on a solicitor/ client basis, in relation to the obtaining of the Registrar’s signature.

   3.That the matter be stood over for further mention in the judicial duty list on Friday, 1 June 2007. The wife’s solicitors are to notify the husband of such adjournment and further notify the husband that orders may be made in his absence.

   4.        That the costs of both parties of today be reserved.

   5. That a copy of these orders be served upon the husband as soon as possible.

The further hearing on 23 May 2007

1. Earlier in his reasons for judgment of 23 May 2007, Collier J had explained in the following terms: the events of 18 May 2007; the reasons why the matter had been re-listed before him on 23 May 2007; and the orders which the husband sought from the Court on 23 May 2007 (which were opposed by the wife):

   2.The matter was before the Court on Friday, 18 May.  The husband had applied prior to that date to participate in those proceedings on 18 May by telephone link.  That fact was not brought to my attention or the attention of my associate.  In the husband's absence, I made several orders as sought by the wife and otherwise adjourned the applications, particularly those of the husband as they then stood, until 1 June 2007.  The husband subsequently notified the Court that he had, notwithstanding having made an application to attend by telephone, not been given the opportunity to be heard on 18 May 2007.

   3.Accordingly, at my direction, the matter has been re-listed for today and has occupied, in effect, the greater part of today.  The husband has taken part by telephone from Townsville and the wife has been represented by Mr Phair who was present during the actual hearing and at the present moment is also participating by telephone. 

   4.The husband indicated that the orders that he would have me make, are now set out as orders 1 to 11 in his most recent application, filed on 22 May 2007.

   5.        The orders sought by the husband are in the following terms:

   (1)Apply a stay of proceeding on the final judgment of Justice Coleman delivered on 28^th May 2004.

   (2)Apply a stay of proceeding on Costs order judgment delivered on 24^th December 2004.

   (3)Apply a stay of proceeding on the Enforcement hearing delivered on the 6^th March 2006.

   (4)Invalidate Enforcement Hearing Judgment of the 6^th March 2006, as [the wife] did not attend to answer my Response. To an Application Note-an enforcement hearing cannot be held in the absence of the parties. [My permission was not asked to proceed].

   (5)These three Judgments are listed in a notice of appeal before the Full Court of Appeal proceeding EA 33 of 2006 PAF 5923/95 lodged 29^th March 2006.

   (6)The amount of $117,000.00 to be set aside of the eventual sale of the house. The distribution to be determined by the Appeal Court.

   (7)Apply a stay of proceeding on the sale of the House [at] Baulkham Hills.

   (8)Comply with council ordinance replace boundary pool fence immediately.

   (9)Apply for a short notice order.

   (9)[sic]Apply a stay of proceeding on seeking of order under section 106A Family Law Act should if the Solicitors of [the wife] apply for. This order before Appeal is heard.

   (10)Stay of any enforcement order against me from Federal Magistrate Court as set in Part 25 B schedules 5 Federal Magistrate Rule 2004.

   (11)That there be no costs be awarded against me for this Appeal.

   6.I allowed the husband to amend order 11 to make reference to application in lieu of appeal.

Collier J’s decision of 23 May 2007

1. Ultimately on 23 May 2007 Collier J dismissed the husband’s application (being that set out in paragraph 5 of his Honour’s reasons) together with “all outstanding applications filed by the husband in these proceedings”.

2. In the first paragraph of his reasons for judgment of 23 May 2007 his Honour had explained that “in summary” what the husband sought was that the various orders made by Coleman J (on 28 May 2004, 24 December 2004 and 6 March 2006) “be stayed pending the determination of an application by the husband for leave to appeal out of time, and… until the hearing of the appeals themselves.”

3. Later in his reasons after setting out the terms of the orders sought and the factual background to the matters before him, Collier J re-stated what he understood the husband to be seeking. Relevantly for present purposes his Honour said in this context (emphasis added):

   31.The husband's case, as I understand it, is that I must particularly prevent the sale of the subject property [at] Baulkham Hills, by way of an auction, presently scheduled for 26 May.  He says that this is necessary so that he can receive justice in respect of the appeals that he wishes to proceed with, in respect of the three sets of orders of his Honour Justice Coleman which I have identified. …

   32.In paragraph 6 he seeks an amount of money be set aside from the eventual sale, the distribution to be determined by the Appeal Court. That of course is something, if the matter comes before the Full Court, that should be determined in that place.

   …

   35.… As I understand it, the husband says that unless the sale of the property is prevented, then justice cannot be done in respect of his potential appeals.  Put another way, as I understand it, he says that if the sale goes ahead, it may have the effect of making it impossible for him to obtain the benefit of success in his appeals.

4. Having made these observations his Honour turned to consider a number of matters which, in his opinion, he had to consider in determining whether or not to grant a stay of Coleman J’s orders. (He had earlier in paragraphs 29 and 30 satisfied himself that it was appropriate for him to entertain the stay application in relation to Coleman J’s orders on the basis that Coleman J had disqualified himself from further hearing the husband’s proceedings.)

5. In determining whether or not he should grant the stay, Collier J appears to have focussed principally on the issue of the husband’s prospects of success in his application to extend time to appeal the original property settlement and enforcement orders made by Coleman J and in those appeals (if the extensions of time to appeal were granted) and in the appeal against the costs orders of 24 December 2004. Collier J concluded (at paragraph 52) that the husband had “slim prospects of success at both steps of the proceedings”. Then importantly for present purposes, his Honour continued (emphasis added):

   53.Even if I am wrong in my assessment that the husband has little chance of succeeding, firstly in his application for leave to appeal out of time, and secondly, in the appeals proper, I can determine no prejudice to the husband in so far as obtaining the benefit of any orders he may obtain in the event of a successful appeal. He will be before the Full Court before any anticipated time for completion of the sale pursuant to the auction would be expected to occur.  By this I mean that the auction, as I understand it, is fixed to proceed on 26 May.  Assuming a buyer comes forward and contracts are exchanged, I am advised and accept that the contract provides for completion, within 42 days.  At the end of that time, it not being time of the essence, a notice can be issued requiring completion and allowing only seven days rather than 14 to complete, then that would mean some seven weeks must elapse before completion.

   54.As I understand it, the matter will be before the Full Court during the month of June, particularly in respect of his application for leave.  On that occasion the husband can, if he wishes, raise with the Full Court the question of any matters that he says would be necessary to enable him to be protected in the event of completion of the sale. He could re-agitate with the Full Court the question of a stay.  He would be thus adequately protected. 

   55.To stop the sale now, to my mind, would be to do a grave injustice to the wife. It would unnecessarily prevent her from taking reasonable and proper steps to ensure that she has the benefit of the judgment she obtained at hearing.  If nothing else, it progresses the sale of a property that was ordered to be sold three years ago. 

   56.The third set of Coleman J's orders enable the first set of orders, which were not appealed, to be implemented and carried into effect in an appropriate manner.  They are, to my mind, proper and necessary orders to enable that to happen.  Nothing I have heard from the husband today, or read in his material, satisfies me that I should interfere at this stage by staying them.

1. His Honour then considered it appropriate to deal briefly with each paragraph of the husband’s application, which he had (and we have) earlier set out. Relevantly for present purposes in this context his Honour said (emphasis added):

   58.I have already said all I propose to say in respect of paragraphs 1, 2 and 3 which apply for stays of the three sets of orders of his Honour Coleman J.  I made brief mention of para.4 saying that I am unsure as to what is intended by it, and I certainly do not propose to make any order in accordance with it.  Paragraph 5 informs me that the judgments are the subject of a notice of appeal which to my mind is incorrect.  The three judgments are the subject of an application for leave to appeal out of time filed on 29 March 2006 and which remains to be determined by the Full Court. 

   59.The amount of $117,000 the husband seeks to set aside is in my mind something he can, if he wishes, raise with the Full Court.  I do not propose to make any order in that respect. 

2. His Honour then in the final paragraph of his reasons (paragraph 67) said that he proposed to dismiss the husband’s application and all other outstanding applications.

Collier J’s misapprehension concerning the future course of the husband’s applications to extend time to appeal

1. It will thus be seen that Collier J was under the impression (no doubt formed on the basis of material before him) that the husband’s applications to extend time to appeal the various orders of Coleman J would be heard by the Full Court before the end of June 2007 and before the settlement of the sale of the Baulkham Hills property. Thus his Honour considered that the husband could apply to the Full Court for an order which would preserve the proceeds of sale (or part of the proceeds) pending determination of the application to extend time to appeal.

2. Unfortunately his Honour was mistaken about these matters. The husband’s application to extend time to appeal was in fact listed for hearing not before the Full Court in June 2007, but rather and in accordance with usual practice, before a Judge of the Appeal Division, being Boland J, on 20 July 2007. No criticism can be levelled at his Honour, or at either party, for misunderstanding the procedure in relation to the applications for leave to extend the time to appeal Coleman J’s orders because the letter from the Appeal Registry advising both parties of the listing before Boland J on 20 July 2007 was only sent on 24 May 2007.

Events subsequent to 23 may 2007 and the appeal against the orders of 18 may 2007

1. On 26 May 2007 the home at Baulkham Hills was sold at auction apparently for the sum of $430,000. We understand it to be common ground that settlement of the sale will take place on Monday 9 July 2007.

2. On 4 June 2007 the husband filed a notice of appeal against Collier J’s orders of 18 May 2007. The grounds of appeal contained in that notice of appeal were as follows:

   1. Orders of 18 the [sic] May 2007 were issued without my right to reply on that day

   2.The judgement [sic] of the 6 the [sic] Mar 2006 was not adhered to as the property was not let out for sale for 6 weeks nor the $465,000 reserved met as Directed by Justice Coleman

   3.There was no selection of Real estate sellers decided upon as directed

   4.There was no discussion of an auction which was a last resort

   5.The judgements [sic] of the 6 the [sic] March to be stayed as the notice of appeal was lodged in time but held back for the out of time Final judgement [sic] to be decided

   6.The funds referred to $107,000 to be held from [the wife] as they would be irretrievable

   7.The valuer appointed by the real estate Property institute had undervalued the property to below land value for a quick sale

   8.The valuation cost was exorbitant and incorrect $2000 + GST

3. On 4 June 2007 the husband filed an application in a case seeking what was understood to be an order for expedition of the hearing of his appeal against the orders of 18 May 2007.

4. Following the filing of that application the matter was listed before Finn J on 14 June 2007 for the procedural or directions hearing which we referred to at the commencement of these reasons.

5. Finn J made directions for what would in effect be an expedited hearing of the appeal against the orders of 18 May 2007 and of any appeal that the husband might file against the orders of 23 May 2007 (on the basis that the orders of 18 May 2007, which had been made in the absence of the husband, had effectively been superseded by the orders made at the re-hearing on 23 May 2007 in which the husband had participated).

6. As we have earlier mentioned, the husband advised the Appeals Registrar in writing on 22 June 2007 that he did not propose to appeal the orders of 23 May 2007.

The hearing before the full court on 28 june 2007 and the subsequent written submissions

1. Notwithstanding that the husband had chosen not to file an appeal against the orders of 23 May 2007 and had not filed the necessary appeal books for the appeal against the orders of 18 May 2007 to proceed, at the hearing on 28 June 2007 we expressed our concerns that Collier J had been under a misapprehension concerning both the forum in which the application to extend time to appeal the original orders of Coleman J would be heard and the date for such a hearing, with that date being particularly relevant to the date for settlement of the sale of the Baulkham Hills property.

2. We also expressed our concern that Collier J’s reasons of 23 May 2007 could possibly be read (as the husband appeared to do) as “referring” to the Full Court (or to the appellate court which heard the application to extend time to appeal) the matter of the preservation of part of the proceeds of sale, notwithstanding that his Honour had refused to stay the orders which required the sale of the property.

3. Having expressed our concerns about these matters, we gave the solicitor for the wife until 4pm on Monday 2 July 2007 to make further written submissions in relation to the matters which we had raised.

4. Given the persuasive content of the further submissions filed on behalf of the wife, we considered that we should afford the husband a further 24 hours in which to file responding submissions. The husband did file such submissions.

Discussion and conclusion in relation to the preservation of part of the proceeds of sale of the property

1. Under s 94 of the Family Law Act 1975 (“the Act”) the Full Court of the Family Court has jurisdiction not only to hear appeals from single Judges of this Court under s 94(1), but it also has jurisdiction to hear a range of matters under both ss 94(2B) and (2D). The matters contained in those two sub-sections can be described as relating to an appeal, and they are matters which may also be heard either by a single Judge of the Appeal Division (or another Judge of the Court if no Judge of the Appeal Division is available). Included in the matters listed in s 94(2D) are applications to extend time within which to institute an appeal (s 94(2D)(a)).

2. In the present case the husband has filed an application to extend time to appeal the orders of Coleman J of 28 May 2004, 24 December 2004 and 6 March 2006. As we earlier mentioned, this application has, in accordance with the usual practice, been listed for hearing before a single Judge of the Appeal Division, Boland J, on 20 July 2007. It has not been listed before the Full Court at some date in June as Collier J had anticipated when he heard the husband’s application for various orders on 23 May 2007.

3. There can, in our view, be little doubt that when a Full Court or a single Judge is hearing, or is to hear, an application to extend time within which to institute an appeal, that that Full Court or single Judge could make an order for the purpose of preserving assets, which would be the subject of the appeal (if instituted), and which, if not preserved, would cause the appeal (if instituted) to be rendered nugatory.

4. But in any event, there could be no doubt about that matter in this case for the reason that in paragraphs 32, 54 and 58 of his reasons for judgment of 23 May 2007 Collier J can be seen as having expressly left for determination by the court which was to hear the extension of time application, the application by the husband for the setting aside or preservation of part of the proceeds of sale of the property. The difficulty which arises in this case is that the funds will be distributed prior to the listing before Boland J, or before arrangements could easily be made for the listing of the application to extend time to appeal before another single Judge.

5. Despite the persuasive submissions of the solicitor for the wife to the effect that absent an appeal against Collier J’s orders of 23 May 2007, there would be no jurisdiction in the Full Court to interfere with his Honour’s orders (whereby he refused to stay the orders which the husband seeks to appeal out of time), we consider that we can, and should, grant the relief sought by the husband in relation to the proceeds of sale.

6. As explained above, we as the Full Court would certainly have the jurisdiction under s 94(2D)(a) to extend the time for the institution of the appeals, and as we have also explained, we would certainly in the circumstances of the case (where the application to preserve proceeds was left by Collier J for determination by the court hearing the application to extend time to appeal) have the jurisdiction to make an order preserving the funds the subject of the appeal (if instituted). Even though it would not be practicable for us to hear the application to extend time to appeal, we see no difficulty with our making such a preservation order notwithstanding that another Judge will later hear the application to extend time. Thus we propose to grant the husband’s application for an order freezing part of the proceeds of sale of the property. We are satisfied given the history of the matter, that the interests of justice require this to be done.

7. The question arises as to what amount of the proceeds should be preserved. The husband appears to have sought that the sum preserved should be $117,000, although how that figure is calculated is not clear to us; it would also appear that he would want that sum to be set aside from the wife’s share of the proceeds. In his further written submissions the solicitor for the wife proposed certain sums that might be preserved, if such an order was (contrary to his submissions) to be made. But again the reasoning behind these proposed sums is not entirely clear to us.

8. It appears from the submissions of the solicitor for the wife that the proceeds will amount to $430,000 less disbursements and professional fees. We consider that pending determination of the application to extend time being determined by Boland J, the admittedly arbitrary sum of $100,000 from each party’s share should be preserved. If that amount is excessive, either party would be at liberty to apply to Boland J during the hearing before her for some reduction in the amount preserved pursuant to our order.

The wife’s application for the dismissal of the appeal against the orders of 18 May 2007

1. As mentioned at the commencement of these reasons, the wife seeks that we dismiss on a summary basis the husband’s appeal (filed 4 June 2007) against the orders of 18 May 2007 essentially on the basis that the husband has failed to comply with the directions made on 14 June 2007 for the filing of appeal books and that the appeal could not possibly succeed because any defect in the orders of 18 May 2007 was cured by the orders of 23 May 2007, with the latter mentioned orders now superseding the former.

2. Earlier in these reasons we set out the precise terms of the orders made by Collier J on 18 May 2007. It will be seen that apart from procedural orders concerning a further listing of the matter and service upon the husband, the orders made were machinery orders relating to the sale of the property. That sale has now occurred, and so the orders could be regarded as spent. There would be little point in appealing them.

3. We also earlier set out the grounds of appeal against the orders of 18 May 2007. The first ground was directed to the fact that the orders of 18 May 2007 were made in the absence of the husband. However any complaint concerning that fact has been effectively answered by Collier J’s re-listing of the matter on 23 May 2007 (as fully explained by his Honour in the passages from his reasons earlier quoted).

4. Similarly Collier J was able on 23 May 2007 to deal with the husband’s application for a stay of Coleman J’s various orders, which is the subject of Ground 5. It is true that no stay was granted. However the husband has chosen not to appeal his Honour’s orders of 23 May 2007 dismissing the stay application, and it must be noted that the time for him to so appeal has now expired.

5. Ground 6 would seem to be directed to the issue of the preservation of part of the proceeds of sale. We have already dealt with that matter earlier in this judgment.

6. It is fair to say that the remaining five grounds of appeal are not recognisable grounds of appeal. In substance, however, they appear to be directed to aspects of the auction sale of the Baulkham Hills property which has already occurred.

7. Having regard to the authorities such as Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 which govern the exercise of the summary dismissal power, we consider given our analysis of the position in relation to the grounds of appeal, that we would be justified in exercising that power in relation to the appeal against the orders of 18 May 2007.

8. Furthermore to the extent that it could be said that on 28 June 2007 this Court was “hearing” the appeal against the orders of 18 May 2007, given that the husband had not complied with the orders to provide the necessary appeal books for an appeal to be properly heard, we consider that we it would be appropriate to exercise the power under s 96AA of the Act to dismiss the appeal on the basis that there are no proper ground of appeal. Section 96AA provides:

   If it appears to a court hearing an appeal under this Part that the notice of the appeal does not disclose proper grounds of appeal (whether generally, or in relation to a particular ground of appeal), the court may order that the proceedings on the appeal be stayed or dismissed (either generally or in relation to that ground).

The wife’s application for costs

1. The wife’s final position in relation to costs as we understand the further written submissions of her solicitor, was that if the husband’s appeal against the orders of 18 May 2007, and also presumably his application for a preservation order, were to be dismissed, then the husband should be ordered to pay the wife’s costs on an indemnity basis (or alternatively as “taxed or agreed”) because the husband brought his appeal on an urgent basis and then failed to follow any of the Court’s directions (including the preparation of the appeal books). Alternatively, if the husband’s appeal were to succeed, the wife sought a certificate under the Federal Proceedings (Costs) Act 1981.

2. The husband’s appeal against the orders of 18 May 2007 is to be dismissed for the reasons we have given. It would be usual in such circumstances for such an unsuccessful appellant to pay the respondent’s costs. However the husband’s application for an order preserving part of the proceeds of sale of the property is to be granted for the reasons we have given, and to this extent he has been successful in the proceedings before the Full Court.

3. Despite that success it must be remembered that the application to preserve part of the proceeds has had to be made, and has indeed been treated by us, as in effect part of, or ancillary to, his application to extend time to appeal. In seeking an extension of time to appeal, the husband is seeking an indulgence from the Court, and whether or not such an application is successful, the applicant would as a general rule have to pay the costs of the respondent. We see no reason to depart from that general rule in this case.

4. So far as the financial circumstances of the parties are concerned, we understand that under Coleman J’s original orders of 28 May 2004 they are to share approximately equally in the net proceeds of the sale of the Baulkham Hills property (although we appreciate these shares may ultimately be varied because of later claims made by the parties).

5. Having regard to the various matters which we have canvassed, we consider that the circumstances justify the making of an order that the husband pay the wife’s costs of, and incidental to, the application in a case filed by him on 4 June 2007 and the appeal (also filed 4 June 2007) against the orders of 18 May 2007, including the procedural hearing on 14 June 2007 and the hearing before the Full Court on 28 June 2007.

6. We see no justification for these costs being paid on an indemnity basis; they should be as agreed or as assessed under the Family Law Rules 2004.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  6 July 2007