Anderson & Senior (Stay Appeal)
[2013] FamCAFC 152
FAMILY COURT OF AUSTRALIA
| ANDERSON & SENIOR (STAY APPEAL) | [2013] FamCAFC 152 |
| FAMILY LAW – APPEAL – Appeal against a refusal by a single judge to stay orders of another single judge pending the hearing of an application to the High Court for special leave to appeal a decision of a Full Court dismissing an appeal against the orders of the original single judge – The primary judge incorrectly stated the legislative provision giving him power to determine the matter but his power was not challenged at first instance or on this appeal – Discussion of the power of a single judge to stay the operation of orders that have survived challenge on appeal – Discussion of the test to be applied when determining a stay application pending the hearing of an application for special leave – The primary judge found there was no basis upon which to grant a stay – Although the primary judge did not fully address the question of the proposed appeal being rendered nugatory, he was right to conclude that it was unlikely the husband would be given special leave to appeal – Balance of convenience favours the wife – No merit in this complaint – Appeal dismissed. FAMILY LAW – APPEAL – Appeal against an order of a single judge varying a property settlement order made by another single judge – Although the meaning of the earlier order was sufficiently clear, the variation was consistent with the original order and was designed to resolve controversy about its meaning – No merit in this complaint – Appeal dismissed. |
| Family Law Act 1975 (Cth) ss 94AAA, 94 Family Law Rules 2004 |
| Aldridge & Keaton(Stay appeal) [2009] FamCAFC 106 |
| APPELLANT: | Mr Anderson |
| RESPONDENT: | Ms Senior |
| FILE NUMBER: | MLC | 9546 | of | 2008 |
| APPEAL NUMBER: | SOA | 52 | of | 2013 |
| DATE DELIVERED: | 4 October 2013 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane (by video link from Melbourne) |
| JUDGMENT OF: | Thackray, Ainslie-Wallace and Murphy JJ |
| HEARING DATE: | 19 September 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 August 2013 |
| LOWER COURT MNC: | [2013] FamCA 606 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Mawson SC |
| SOLICITOR FOR THE RESPONDENT: | Coote Family Lawyers |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Anderson & Senior (Stay Appeal) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: SOA 52 of 2013
File Number: MLC 9546 of 2008
| Mr Anderson |
Appellant
And
| Ms Senior |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 30 August 2013 Mr Anderson (“the husband”) appeals against orders made by Cronin J on 20 August 2013. The appeal is opposed by Ms Senior (“the wife”).
The appeal has two distinct elements.
The first concerns the dismissal by Cronin J of the husband’s application for a stay of property orders made by Young J in 2012. The stay was sought pending the hearing of the husband’s application for special leave to appeal to the High Court against a decision of a Full Court which dismissed the husband’s appeal against Young J’s orders.
The second concerns an order made by Cronin J purporting to clarify Young J’s orders. The wording of Cronin J’s order assumed that Young J intended the wife to receive 40 per cent of the entire asset pool, whereas the husband claims that Young J’s orders provided for the wife to receive 40 per cent of the proceeds of sale of just one asset.
Background
The background will be found in the reasons given by the Full Court on 19 April 2013 when dismissing the appeal against Young J’s orders. It is sufficient to record here that:
·The husband and wife were engaged in litigation in the Family Court of Australia concerning division of their property;
·The assets included two properties in Melbourne – one in W (“W Property”) and the other in B (“B Property”);
·On 16 July 2012, Young J made property settlement orders. These allowed the husband to retain the W property but provided for the sale of the B property and the division of the proceeds;
·On 23 October 2012, Young J granted a stay of the operation of his orders, following the institution of an appeal by the husband;
·The appeal was dismissed on 19 April 2013, with the Full Court describing it as having had “little merit from the outset”;
·On 14 May 2013, the husband filed an application in the High Court for special leave to appeal against the decision of the Full Court;
·On 30 May 2013, the wife filed an application in the Family Court of Australia for enforcement of the orders of Young J;
·On 19 June 2013, the husband filed a response to that application, seeking a further stay of Young J’s orders pending hearing of his application for special leave in the High Court;
·Young J having retired, the proceedings came before Cronin J, who made the orders giving rise to this appeal on 20 August 2013.
It was not practicable for this appeal to be heard by the same Full Court that dealt with the substantive appeal; however two members of the present bench were also members of the earlier Full Court.
The power to grant a stay pending an application for special leave
There was no dispute before Cronin J that his Honour had power to determine the husband’s application for a stay of the orders of Young J. The transcript reveals there was no discussion of the source of the power, however, Cronin J recorded in his reasons that s 94AAA(10)(d) of the Family Law Act 1975 (Cth) (“the Act”) “provides that a single judge of the Court may grant a stay”.
With respect to his Honour, s 94AAA(10)(d) had no application, since it deals only with stays of orders in the context of appeals from the Federal Circuit Court and the Magistrates Court of Western Australia. The appeal here was from a judge of the Family Court of Australia.
The power to grant a stay pending the hearing of an application to the High Court for special leave was discussed in Halsbury & Halsbury [2009] FamCAFC 142, where it was held that there was no provision of the Act or the Family Law Rules 2004 (“the Rules”) specifically dealing with the issue. The Full Court (May, Boland and Murphy JJ) suggested this may be a deficiency requiring amendment to the Rules. We note there has been no such amendment, notwithstanding that another Full Court has subsequently interpreted the Act in the same way: Stephens and Stephens (Stay Application) (2010) FLC 93-429.
Although this is not an appropriate case to consider the issue in depth, we consider it arguable that s 94(2D)(d) of the Act does, in fact, deal with stays of orders of a Full Court pending the hearing of an application for special leave to appeal to the High Court. Indeed, we note that one member of the Full Court in Halsbury & Halsbury had earlier held that s 94(2D)(d) authorised her (as a Judge of the Appeal Division) to deal with an application for such a stay: W & DOCS [2006] FamCA 731 per Boland J at [6].
Section 94(2D)(d) relevantly provides (our emphasis):
(2D) Applications of a procedural nature, including applications:
…
(d) to stay an order of a Full Court of the Family Court made in connection with an appeal under subsection (1) …
…
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
It will be seen that the only orders caught by s 94(2D)(d) are those made by a Full Court and then only if made “in connection with an appeal under subsection (1)”. An “appeal under subsection (1)” is one dealing with an order of a single judge of the Family Court of Australia.
The Full Court in Halsbury & Halsbury did refer to s 94(2D)(d) but concluded, at [23], that it did not “directly address the question of a stay of orders of the Full Court pending an application for special leave to the High Court”. While we accept s 94(2D)(d) may not directly address this question, their Honours did not indicate in what other circumstances it would have application. While there may be other reasons why a Full Court might stay its own orders, we would have thought the most common situation would be when its orders are under challenge by the only method permitted – namely by way of application for special leave to appeal to the High Court (see s 95).
In any event, having ruled out s 94(2D)(d) as dealing with a stay of its own orders, the Full Court in Halsbury & Halsbury found, at [24], that it had power to grant a stay “as part of its implied powers to control its own processes”. Their Honours said this had been made clear in decisions of the High Court. Those decisions were not referred to by name (at least in this context), but we accept that the power exists and we also accept it is an implied power, since whatever may be the purpose of s 94(2D)(d) it does not confer a power, but rather assumes its existence and nominates those who may exercise it.
In referring to decisions of the High Court as confirming the existence of the power, it is likely the Court in Halsbury & Halsbury had in mind two decisions previously relied upon (in Fauna Holdings Pty Ltd and McGillivray v Mitchell (2000) FLC 93-024) in concluding that the Full Court has an implied power to stay its own orders pending the hearing of an application for special leave.
The first of these is Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681, where Brennan J (as he then was) said at 684:
When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court – the court in which the matter is pending and which is familiar with the matter – that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court.
The second is De Lewinski v Department of Community Services (1996) FLC 92-678 where Gummow J said at 83,049 (emphasis added):
In dealing with a stay application, the Full Court carried significant responsibilities, in accordance with a number of decisions of this Court. The stay application was properly made to the Full Court as the court familiar with the matter. It then became important for the administration of justice that the application be dealt with, and be seen to have been dealt with, in a principled fashion.
Section 94(2D)(d) did not appear in the Act when these pronouncements were made in the High Court. Whether it was coincidental or not cannot be determined by reference to the Explanatory Memorandum, however s 94(2D) found its way into the Act shortly after the power of the Full Court to stay the operation of its own orders pending an application for special leave to the High Court was challenged in Fauna Holdings Pty Ltd and McGillivray v Mitchell (supra). The judgment in that case was delivered on 26 May 2000 and s 94(2D) was inserted by the Family Law Amendment Act 2000 (Cth), which received assent on 29 November 2000.
In a more appropriate case, a Full Court may be called on to give further consideration to the scope of s 94(2D)(d). The topic is of more than academic interest because of the presence in the Act of s 94(2F) which provides that no appeal lies from a decision to grant or refuse a stay made under s 94(2D)(d). If the proper pathway for the husband to have followed in the present matter was to have applied for a stay of the order of the Full Court dismissing his appeal, then a determination would have been made as to whether the issue warranted consideration by a Full Court. If the matter did not warrant such consideration, then it could have been determined by a single judge of the Appeal Division. Only if no judge of the Appeal Division was available would the matter have been heard by a General Division judge. And even then, no appeal would lie.
The husband, by electing to seek a stay of the primary orders (and not the order of the Full Court) has obtained “two bites of the cherry”, since it is not in doubt that an appeal lies from a decision of a single judge granting or refusing a stay of such orders (save for orders made by a single judge exercising appellate jurisdiction pursuant to s 94AAA, in which case s 94AAA(12) provides that no appeal lies).
The point of this discussion is to question whether the husband was entitled to approach a General Division judge to seek a stay of the primary orders in circumstances where his appeal against those orders had been dismissed by a Full Court. Certainly in cases such as Fauna Holdings Pty Ltd and McGillivray v Mitchell (supra) the application for a stay pending the hearing of the matter in the High Court was made to the Full Court even though the Full Court had merely dismissed the appeal, leaving the primary order in full force and effect.
Consideration of this topic requires understanding that the proceedings in the High Court are a challenge to the order of the Full Court and not the orders of the primary judge. In saying this we recognise that a challenge to the former necessarily involves a challenge to the latter, at least in cases where the appeal has been dismissed. But it must also be recognised that our system is based upon a hierarchy of courts. Once the orders of a primary judge have received the imprimatur of the appellate court, we question whether the primary judge (or, as here, another single judge) can stay the operation of the primary orders, absent specific legislative authorisation (see Molier and Van Wyk (No 2) (1981) FLC 91-001, although the facts can be distinguished).
Absent specific legislative authorisation conferring power on a General Division judge to hear an application for a stay of orders that have been the subject of an unsuccessful appeal, arguably the first step for an appellant wishing to appeal to the High Court should be to apply for a stay of the order of the Full Court dismissing the appeal. This was what occurred in Commissioner of Taxation v Multiflex Pty Ltd (2011) 82 ATR 724 where Edmonds J stayed an order of the Full Court of the Federal Court dismissing an appeal in such circumstances.
We pause to note that Edmonds J had power as a single judge to stay the order of the Full Court dismissing an appeal because s 25(2)(d) of the Federal Court of Australia Act 1976 (Cth) confers the requisite power (subject to certain provisos). We note, also that Edmonds J had been a member of the Full Court which had dismissed the appeal. Interestingly, prior to the introduction of s 25(2)(d), there had been controversy in the Federal Court about the power of a single judge to make orders staying the operation of an order of the Full Court: Trade Practices Commission v Manfal Pty Limited (1990) 27 FCR 284.
We acknowledge that if a Full Court stayed its order dismissing an appeal, the result would be that the primary orders would still remain in force. This is perhaps why French CJ said during argument in the special leave application in Commissioner of Taxation v Multiflex Pty Ltd that it “struck [him] as odd that you stay a dismissal of an appeal”: [2011] HCATrans 344 (9 December 2011). The point being that in the event of the respondent seeking to enforce the primary orders, the appellant may still need to seek a stay of the primary orders. Whether this would be done by the Full Court in the face of r 22.11(3) of the Rules is a matter we need not consider – although see Paringa Mining & Exploration Co Plc v North Flinders Mines Ltd (1988) 165 CLR 452 at 459. In the present matter an application to stay the primary orders would be unnecessary, given they had already been stayed pending the appeal to the Full Court. The effect of the Full Court ordering a stay of its own order would be to restore the status quo ante. The earlier stay would therefore be revived.
Notwithstanding our reservations about the process followed, we accept that Cronin J’s power to hear the application for a stay was not contested either at first instance or on appeal. Although it has been necessary for us to say something on the topic given that his Honour incorrectly identified his source of power, we will proceed to deal with the appeal on the basis that his Honour did have power to hear the application.
Was leave to appeal required?
It will be remembered that the orders under scrutiny fall into two categories – the first concerns the refusal to grant a stay and the second concerns the purported enforcement of the orders of Young J.
The husband did not seek leave to appeal against any of the orders. Senior counsel for the wife did not take issue with this failure, nor was the matter raised from the bench during the hearing of the appeal.
There is no doubt that leave to appeal was required to challenge the order relating to the stay, since the refusal of the stay did not finally dispose of the parties’ rights: Sullivan & Tyler(No 2) [2013] FamCAFC 136 at [85]. Although the failure to seek leave should have been fatal to the husband’s case, we have elected to deal with the matter on its merits (or lack thereof), especially as the husband is self represented.
If the husband is right in relation to his interpretation of the enforcement orders made by Cronin J, they were not machinery provisions but rather orders finally disposing of rights in a way inconsistent with the original orders. If that is correct, leave to appeal is not required. We will therefore also deal with that part of the appeal on its merits.
Appellate principles
The granting or refusal of a stay involves the exercise of judicial discretion. Accordingly, we would not overturn that part of the decision unless we were “well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion”: Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519.
The other part of the appeal involves the interpretation of an order. This is a matter of law, not discretion. There is only one correct answer. If Cronin J misinterpreted the original orders, the appeal must be allowed.
The grounds relating to the stay application
The husband relied upon two grounds of appeal which were expressed in the following terms:
1.The learned trial judge erred in finding that the application for the order to stay had to be rejected, HIS honour should have found that the application for the order to stay would have been granted on the balance of convenience as is made clear by Rules 22.11 of family law Rules. Also as in (Cohen v Mcwilliam) (1995) 38NSWLR476 at 480-481.
3.The learned trial judge erred in not accepting that the trial judge and the member of the Full Court had applied the principle of law on a wrong fact, and an error of judgement had been made by His Honours by rejecting my family as a third party. (Errors as in original)
Principles relating to applications for a stay
It will be observed that the grounds of appeal do not challenge Cronin J’s statement of the relevant principles to be applied. These are found in the following paragraphs of his reasons (emphasis added):
14.The principles to be applied in stay applications are well settled in this Court. In Aldridge and Keaton (Stay appeal) [2009] FamCAFC 106, the Full Court reiterated and adopted the principles relating to general law as well as family law including such authorities as the Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No 1] [1986] HCA 13; (1986) 160 CLR 220, Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681 and Clemett and Clemett (1981) FLC 91-013.
15.All of those authorities stress that the stay application must be determined on its merits but it is a matter of the judge exercising a discretion. The principles by which that discretion is guided include that the onus in justifying the stay lies with the person who seeks it. It is not necessary for the applicant to demonstrate special or exceptional circumstances but the Court must take into account that the person who has received the judgment is entitled to the benefit of it. The Court is also entitled to start from the presumption that the person who has obtained a judgment is entitled to presume that the judgment is correct.
Although the matter was not the subject of any argument before us, the highlighted proposition appears inconsistent with authority. For example, it is inconsistent with one of the cases to which his Honour referred, namely Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (supra), where Brennan J said at 684:
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.
This proposition has been cited with approval in many decisions of this Court – for example, Sullivan & Tyler (No 2) (supra at [77]), Fauna Holdings Pty Ltd and McGillivray v Mitchell (supra at [25]), Tate and Tate (No 4) (2003) FLC 93-139 at [7], Gull & Gull (Stay Application) [2009] FamCAFC 104 at [13], Halsbury & Halsbury (supra at [27]) and Stephens and Stephens (Stay Application) (supra at [80]).
Interestingly, the test enunciated by Cronin J is similar to that employed by Edmonds J in Commissioner of Taxation v Multiflex Pty Ltd (supra at [8] and [12]) and is consistent with what was said by the Full Court in Aldridge & Keaton (Stay appeal) [2009] FamCAFC 106 at [18]. However, the latter case was concerned with a stay pending an appeal to the Full Court, not pending an application for special leave to the High Court. The authorities relied upon by Edmonds J also, with respect, do not appear to relate to applications to the High Court, and his Honour’s approach may have been informed by the “more lenient approach” previously adopted in New South Wales in such matters: Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 per Ipp J at 85. That “more lenient approach” has now been abandoned by the Court of Appeal in New South Wales to ensure conformity with the approach taken in all other states of Australia: Rinehart v Welker (2012) 285 ALR 191 at [40] and [47].
We need not trouble ourselves further with this topic, since senior counsel for the wife did not take issue with his Honour’s statement of the test, which was clearly more favourable to the husband than the “exceptional circumstances” test which is usually applied.
The reasons of Cronin J
Cronin J recorded at [10] that in seeking a stay the husband had:
referred to the balance of convenience and said that there would be real disadvantage for him if the stay was not granted because it would mean that the subject property would be sold. He said he would be in difficulties and the money would be distributed and “gone”. In other words, he was arguing that a refusal of a stay of the orders would render his appeal nugatory.
His Honour further recorded at [11] that the husband had pointed out that the wife lived overseas permanently.
His Honour went on to say, at [17] that he was “obliged to weigh up the balance of convenience and the competing rights of the parties but also to take into account the merits of any appeal”.
He then recited the husband’s complaints as detailed in his outline filed in the High Court, which were in the following terms:
1.The Full Court erred in law in failing to hold the third day of the trial hearing for my case, which was held by the trial judge, was totally illegal according to the law of the reforms.
2.The Full Court erred in law in failing to find that the trial judge did not have any proof of evidence that could have supported his Honour’s findings to make his final judgment in relation to my case. All my proof of evidence was ignored and completely disregarded by the Full Court.
3.The Full Court erred in law in failing to reply wrong common law to the nature, the effect, the fact and the circumstances of my legal matter in their judgment as their decision was that the appellant failed to prove his case and calling witnesses of his family.
Cronin J then discussed each of the complaints as best as he was able to decipher them. He concluded by saying:
25.With great respect to the husband, it is hard to see how any of the matters that he argues are principles of law but rather an indication of a disgruntled litigant who said that not only the trial judge got it wrong but the Full Court should not have said that the decision was outside discretion.
In making reference to “principles of law”, it is clear his Honour had in mind the provisions of s 35A of the Judiciary Act 1903 (Cth), which sets out criteria to be considered by the High Court when dealing with an application for special leave. It provides as follows:
In considering whether to grant an application for special leave to appeal to the High Court … the High Court may have regard to any matters that it considers relevant but shall have regard to:
(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law:
(i) that is of public importance, whether because of its general application or otherwise; or
(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and
(b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.
Apart from concluding that the husband’s complaints did not raise “principles of law”, his Honour also held against the husband in relation to other matters that were relevant to the exercise of his discretion. These appear in the following paragraphs of his reasons:
28.I do not accept that the refusal of the stay would render the husband’s appeal nugatory. He has a major hurdle to overcome in that he has to obtain special leave even to argue the case orally which is what he wants to do. As I have indicated, my impression is that the grounds of appeal are not really grounds relating to principles or errors of law but rather his dissatisfaction with the way in which the case was handled and in many respects, that was his own doing.
29.The wife has now held a judgment for over 12 months and the husband had the opportunity to test the judgment of the trial judge before a Full Court and failed. The wife was and still is entitled to presume that the judgment was correct.
30.I am therefore unable to see any basis upon which any of the authorities would enable me to grant a stay in this case. I do not accept the husband’s position that the High Court of Australia is likely to allow him to rerun the case which seems to be what he wants to do. Accordingly, the application for the stay is dismissed.
Disposition of the appeal relating to the stay
The presentation of the husband’s case before us, insofar as it dealt with the stay, could be described in the same way as Cronin J described his presentation at the hearing below, namely that of “a disgruntled litigant who said that not only the trial judge got it wrong but the Full Court should not have said that the decision was outside discretion”.
In our view, the husband had only one proposition that contained any merit – namely that there was a prospect his proposed appeal to the High Court would be rendered nugatory if the primary order was not stayed. This argument was based upon the wife’s place of permanent residence being in a foreign country. In the event the B property is sold, and the proceeds distributed prior to the proceedings in the High Court being determined, there is a prospect the husband would be unable to recover any of the wife’s share of the proceeds, since it would be reasonable to anticipate the funds would be held overseas.
With respect to Cronin J, the remarks made at [28] of his reasons tend to conflate the issue of the appeal being rendered nugatory with the issue of the merits of the appeal. Although we accept that his Honour did not engage with the issue arising from the fact the wife lives outside the jurisdiction of the Court, we do not consider that this would provide a basis for us interfering with the exercise of his discretion unless we held a different view to the one he clearly expressed about the prospects of the husband being given special leave to appeal.
Nothing put to us by the husband leads us to conclude that it was not entirely open to Cronin J to proceed on the basis that it was likely the application for special leave would be unsuccessful. The Full Court which dealt with the appeal considered it had “little merit from the outset”. Whilst we would not be so bold as to say that the High Court would be of the same view, we observe that nothing put to us by the husband satisfies any of the criteria mentioned in s 35A of the Judiciary Act 1903 (Cth). Furthermore, the balance of convenience favours the wife, given that she has been denied the benefits of the orders of Young J made as long ago as 16 July 2012, while the husband continues to control all of the most valuable assets.
The appeal against the order of Cronin J dismissing the application for a stay will therefore be dismissed.
The variation of the order of Young J
We turn now to Ground 2 by which the husband asserts that:
2.The learned trial judge erred in finding that the final order made by His Honour Young J and dated 16 July 2012 is providing that the share of my ex wife is 40% of the total asset pool, His Honour should have found that the share of my ex wife is only 40% of the balance for the proceeding of sale of the building on [the B property] as is made clear and understandable by His Honour Young j. (Errors as in original)
This ground brings into question the interpretation of Order 4 of the orders made by Young J on 16 July 2012, which was in these terms:
4.THAT the proceeds of sale of [the B property] are to be applied in the following manner:
(a) in payment of all proper and agreed costs, charges and commissions of sale, including legal expenses;
(b) in discharge of all monies and interest owing to National Australia Bank pursuant to the registered mortgage;
(c) in repayment of any monies expended on the repair, renovation or maintenance of the property pending sale pursuant to Order 3(e) hereof;
(d) in repayment to the husband of a sum of $8,000 to discharge his HECS debt to the Commonwealth Government;
(e) in further repayment to the husband of a sum of $7,500 to be paid to him to offset the wife’s superannuation entitlements;
(f) the balance is then to be divided between the husband and wife (without regard to the wife retaining the assets in Order 6 hereof and the husband retaining the payment of $7,500) so as to effect an overall property division inclusive of the husband retaining [the W property] at a value of $640,000:
i. in favour of the wife as to 40%;
ii. in favour of the husband as to 60%.
Cronin J noted at [31] that counsel for the wife had accepted that the appropriate orders to be made on the wife’s enforcement application “were those consistent with the orders of Young J but with one variation just to clarify the orders that were made to overcome any argument or confusion”.
His Honour continued:
32.I have read the orders of Young J and can see that there is something of a confused position in relation to what has to happen from the proceeds of the sale of the [B property]. It is quite clear that his Honour was not talking about a 60 per cent/40 per cent division of that property simpliciter but rather that it be part of the mathematical calculation to give the parties that percentage outcome in the total of their assets. I agree with counsel for the wife about the necessity to rectify that situation. I would not be therefore altering the substance of the order but indeed exercising a machinery power to ensure that the orders are carried out effectively. As earlier indicated, the husband did not address that issue so that I do not know what his position is. He had ample opportunity to respond to the wife’s application and indeed evaded my offer that he give some indication as to what should happen if his stay was refused. On that basis, I propose to make orders that would make clear what I think his Honour said not only in the orders but also reflected in the judgment.
It will be seen from these remarks that the husband now seeks to agitate a position on appeal which he refused to articulate in the court below. Whilst we consider we would be entitled in these circumstances to decline to hear his argument, we again acknowledge that the husband is self-represented and we will therefore deal with the issue on its merits.
The order Cronin J made, and which is the subject of this part of the appeal, was essentially identical to Young J’s order save that the subparagraph dealing with the balance of the sale proceeds of the B property was in these terms:
(f) the balance divided as to 60% for the husband and 40% for the wife, subject to the husband paying from his share $256,000 (being 40% of the value of the [W property]) to the wife.
Young J found, at [360] of his reasons, that it was just and equitable to divide “the net assets of the parties” in proportions 60 per cent to the husband and 40 per cent to the wife. (We need not be detained here by an anomaly in the precise percentages which came to light during the appeal against the substantive orders, as to which see footnote 2 to the reasons for judgment of the Full Court delivered on 19 April 2013).
The meaning of the expression “net assets of the parties”, which was used by Young J in his reasons, is readily understood by reference to [62] of his reasons where his Honour said:
62.Leaving aside modest amounts of cash and furniture and the personal possessions of the parties, the asset pool comprised of two real properties agreed as follows:
(a)[B property], agreed at $850,000; and
(b)[W property], agreed at $640,000.
The fact his Honour intended to divide these two assets in proportions 60:40 in favour of the husband can be further seen in the following two paragraphs:
369.As is required in the determination of a just and equitable division of property I have paused to reflect upon the proposed division of the pool of assets as to 60% to the husband and 40% to the wife. I have further considered those assets and liabilities which I have determined not to bring to account such as the wife’s $28,000 payment, her flat in Egypt, the husband’s repayment of lump sum(s) to his sister and other like matters discussed in the Judgment.
370.On a net pool of approximately $1,450,000 , after allowing for some estimated costs of sale,that percentage would mean that the husband would receive approximately $290,000 more than the wife, but always subject to their other retained assets as I have explained herein.
These remarks make sense only if it was intended that the wife was to receive a settlement equivalent in value to 40 per cent of the sum of the net value of both properties.
If further evidence were needed of his Honour’s intentions, this can be found in the following paragraph of his reasons:
376.For hopefully what is complete clarity the final percentage division between the parties is to be calculated upon the agreed value of [the W property], the net proceeds of sale of [the B property] after the payment of the liabilities which I have ordered and the further adjustment in favour of the husband in the sum of $7,500 to partly offset the wife’s current superannuation entitlements. Otherwise there is no adjustment for the $28,000 sum paid to the wife or her ownership of the flat in Egypt or the monies which the husband had transferred overseas to his sister or which he retained at separation.
In our view, although Order 4(f) could have been drafted with even greater clarity, its meaning is clear. But as the matter had become controversial, Cronin J was wise to spell out precisely how the proceeds of sale of the B property will be disbursed. The orders he made were consistent with the stated intention and the orders made by Young J. This aspect of the appeal therefore lacks all merit.
Orders
For the reasons we have given, the appeal will be dismissed.
Senior counsel for the wife sought an order for costs if the appeal was dismissed. The husband conceded that a costs order would be warranted, but said it would not be reasonable for him to pay more than $4,000, whereas the wife sought costs fixed at $10,000.
The husband having been wholly unsuccessful, it is proper he should pay the wife’s costs. We have no basis upon which to determine the appropriate quantum. The costs will therefore be assessed if not agreed.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 4 October 2013.
Associate:
Date: 4 October 2013
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