Apoda & Apoda
[2013] FamCA 265
•12 March 2013
FAMILY COURT OF AUSTRALIA
| APODA & APODA AND ANOR | [2013] FamCA 265 |
| FAMILY LAW – PROPERTY SETTLEMENT – interpretation of Court orders – where orders were made by consent – where the wife seeks enforcement of an order – where the parties’ interpretations of the order differ. FAMILY LAW – PRACTICE & PROCEDURE – interpretation of Court orders – whether there must be ambiguity in an order for recourse to be had to the reasons and extrinsic material in its interpretation – whether evidence of “surrounding circumstances” can be considered. |
| Family Law Act 1975 (Cth) |
| Athens and Anor v Randwick City Council (2005) 64 NSWLR 68 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Hughes and Hughes [2012] FamCA 198 Kirkpatrick v Kotis (2004) 62 NSWLR 567 McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 Rand v Rand (2010) 43 FamLR 570 Re Tower Software Engineering Pty Ltd; McCann and Ors v Pendant Software Pty Ltd and Anor (2006) 235 ALR 566 Yates Property Corporation Pty Ltd v Boland and Ors (1998) 89 FCR 78 |
| APPLICANT: | Ms I Apoda |
| RESPONDENT: 2nd RESPONDENT | Mr Apoda Ms L Apoda |
| FILE NUMBER: | SYC | 5598 | of | 2011 |
| DATE DELIVERED: | 12 March 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 28 November 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Friedlander |
| ADVOCATE FOR THE 2ND RESPONDENT: | Ms Field |
Orders
The application of the wife filed on 31 July 2012 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Apoda & Apoda and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 5598 of 2011
| Ms I Apoda |
Applicant
And
| Mr Apoda and Ms L Apoda |
Respondents
REASONS FOR JUDGMENT
Introduction
On 31 July 2012, Ms I Apoda, (“the wife”) filed an Application in a Case. That application is opposed by the First Respondent, Mr Apoda, (“the husband”).
The wife through her application seeks enforcement of an order (“Order 16”) made in this Court on 2 December 2011. Through the enforcement of Order 16, the wife seeks that the sum of $24,133.38 be paid to her from a fund of money held following the sale of a property at … B Street, Suburb S, NSW, (“the Suburb S property”). She further seeks the payment of interest on that sum.
The husband seeks an order that the wife’s application be dismissed.
The husband and wife’s daughter, Ms L Apoda, (“the daughter”), was joined as the Second Respondent in both the primary proceedings and in the wife’s present application.
The dispute between the parties arises from a difference between them in relation to the interpretation of Order 16. Order 16 forms part of a suite of orders made by consent (“the subject orders”) between the wife, the husband and the daughter in the course of property proceedings wherein the husband was the applicant. The subject orders were made by me pursuant to a Minute of Consent Orders signed by the parties on 2 December 2011.
Order 16 reads as follows:
That simultaneously with the settlement of the sale of the [Suburb S] property the [husband] shall pay to the [wife] or as she may direct a sum equal to 50% of the mortgage payments paid in respect of the Westpac mortgage by the [wife] from 27 October 2011 until the first of the events in Order 15.
Order 15 reads as follows:
That the [husband] (as is necessary) and [wife] shall:
15.1 for a period of six (6) months from the date of the making of these Orders or the settlement of the sale of the [Suburb S] property whichever event is the earliest (“the event”), cause the [husband] to receive an amount equivalent to 50% of the rental income from the [Suburb M] property and the [Town P] property net of GST, land tax, insurance, council rates and any costs associated with administering the properties on a pro rata basis; and
15.2 direct the managing agents of each property and [Mr C] to retain sufficient funds from the monthly rental to meet the costs referred to in Order 15.1 and such costs to be estimated by [D Accountants];
15.3 to thereafter (i.e. after the event described under Order 15.1) direct all tenants of the [Suburb M] property to pay their rent to the [wife] or as she may direct.
The Suburb S property is defined in paragraph A.1 of the subject orders as “[… B Street, Suburb S] NSW”.
The “Westpac mortgage” is defined in paragraph A.11 of the subject orders as follows:
the mortgage granted by the parties to Westpac Banking Corporation and secured on the title to the [Suburb S] property.
Order 2 of the subject orders requires the wife to:
within 60 days of this order do all things necessary to transfer to the [husband] the whole of her right, title and interest in the [Suburb S] property.
Order 4 required that the husband transfer his right title and interest in the Suburb M property to the wife at the same time as the wife transferred her right, title and interest in the Suburb S property to the husband.
The remaining property at Town P (“the Town P property”) was defined in A.5 of the subject orders to be owned 50% by the wife and 50% by “the Trust”. The Trust was defined in A.4 of the subject orders as “the discretionary trust known as the [Apoda Children’s Trust]”. At the time of the making of the subject orders the parties were joint Trustees of the Trust and the husband was the Appointor of the Trust.
Order 19 required the husband to transfer to the wife all legal entitlement he might have in the Town P property and otherwise remove himself as Trustee and Appointor of the Trust.
Order 5 required the sale of the Suburb S property. The husband and the wife were required to list the property for sale by 7 December 2011.
Other orders were made relating to the occupation of the Suburb S property pending its sale. Order 7 allowed the husband to charge the property pending sale to a limit of $500,000.
Of relevance, Order 13.2 required as follows:
The [husband] pay one half of the cleaning costs, one half of the electricity, gas and water rates and 100% of all other outgoings in respect of the [Suburb S] property, including but not limited to council rates and Foxtel.
In order to understand the arguments in this matter it is necessary to consider the provisions which relate to the Suburb M property and also to the Town P property. The Suburb M property is defined in A.2 as “[… E Street, Suburb M]”. The Town P property is defined in A.5 as “[… F Street, Town P]”.
Order 3 made the following provision in relation to the Suburb M and Town P properties:
Simultaneously with or before the transfer referred to in Order 2 hereof, the [wife] do all things necessary to cause the Westpac mortgage to be discharged and refinanced on the security of the [Suburb M] property and/or the [Town P] property and the [husband] shall sign all documents on his behalf to effect same.
Evidence relied Upon
The wife relied upon an affidavit sworn by her case guardian, Mr G. He annexed a copy of the subject orders to his affidavit. He also recited the following asserted facts:
On 31 January 2012, the Westpac mortgage secured against the Suburb S property at the time of the orders was discharged by the wife. Further/new mortgages were entered into by the wife and secured against the Suburb M and Town P properties. This is said to have fulfilled the wife’s obligation under Order 3 of the subject orders.
Pursuant to Order 15, the wife says the husband received half of the rental from the Suburb M property until 2 June 2012. That date preceded the sale of the Suburb S property which was settled on 19 June 2012.
Ms Angela Boyd of Boyd Legal acted for the husband on the sale; she holds in her trust account the sum of $25,000 pending determination of the wife’s application now under consideration.
The wife calculates that $24,133.38 is owing to her pursuant to Order 16 of the subject orders. Paragraph 7 of the affidavit of Mr G states as follows:
I seek on behalf of the wife that the husband pay to her $24,133.38, being a reconciliation of 50% of the mortgage payments, the income and expenses for the [Suburb M] property and the [Town P] property, for the period from 27 October 2011 to 2 June 2012, being the first of “the events” in Order 15; plus interest.
Evidence of the method by which the wife calculated that sum is contained in spreadsheets attached to a letter from the wife’s solicitor to the husband’s solicitor dated 15 June 2012 and, further, by an email from the wife’s solicitor to the husband’s solicitor dated 26 June 2012. No concession is made by the husband in relation to that sum.
The affidavit of Mr G outlines the history of the negotiations between the parties in the lead up to the signing of the Minute of Consent Orders and the making of the subject orders on 2 December 2011. The ability to have recourse to this evidence in the interpretation of the subject orders is limited by the jurisprudence of this Court and other superior Courts on the subject of the interpretation of Court orders.
Annexure “O” to the affidavit of Mr G is a copy of a letter dated 11 April 2012 from Boyd Legal to the wife’s solicitor, Edwards Family Lawyers. Boyd Legal had been engaged by the husband to act for him on the sale of the Suburb S property. In the letter, Boyd Legal responded to a letter from the wife’s solicitor seeking confirmation that they held instructions to disburse the proceeds of sale of the Suburb S property to allow for payment to the wife under Order 16 of the subject orders. The letter from Boyd Legal of 11 April 2012 confirmed that they held those instructions and sought provision by the wife of documents to establish what was to be paid.
The quantification of the wife’s claim and documentary support was provided to Boyd Legal by the wife’s solicitor on 24 April 2012. On 15 June 2012, the wife’s solicitor again sent to Boyd Legal a spreadsheet detailing the sum then sought by the wife for her entitlement under Order 16 of the subject orders.
On 15 June 2012, Boyd Legal wrote to the wife’s solicitor. By that letter the husband contradicted the wife’s interpretation of Order 16 of the subject orders. The husband asserted that he was only liable to pay 50% of the mortgage payments until the date of discharge of the Westpac mortgage which date was 2 February 2012. He asserted that he was only required to pay to the wife the sum of $733 because of the definition of “Westpac mortgage”, as it appears in paragraph A.11 of the subject orders.
On 28 June 2012, Boyd Legal confirmed via email that they hold $25,000 in their trust account pending the determination of the dispute.
In further support of her case, the wife relies on the following documents filed on behalf of the husband prior to the subject orders being made:
a)Application in a Case filed 21 September 2011;
b)Affidavit of Mr Apoda filed 21 September 2011;
c)Affidavit of Mr Apoda filed 11 November 2011;
d)Affidavit of Mr Apoda filed 16 November 2011.
The husband relied upon an affidavit sworn by him on 28 November 2012. By that affidavit, the husband set out evidence of his understanding of the Minute of Consent Orders at the time he consented to them becoming final orders. The relevance of such evidence is brought into dispute by the authorities, to which I will refer later.
The Submissions
Each party submitted that the evidence sought to be relied upon by the other was either not relevant or unreliable. The wife said the information contained in Exhibit W1 (a letter from the husband’s solicitor to the wife’s solicitor dated 15 November 2012) in relation to the husband’s mental health raised real doubt as to the husband’s ability to participate in the proceedings without a case guardian.
The wife submitted that the definitional provisions in the subject orders are not part of the subject orders but rather an aid to the orders. The wife relied upon the decision of Macmillan J in Hughes and Hughes [2012] FamCA 198. In that case, Her Honour at [15]-[17] set out under the heading “Legal Principles” the following:
15. I was referred to a number of authorities by Ms Ben-Simon directing me to the principles to be applied and the question of the interpretation of an order of this Court. These principles were clearly set out in Langford & Coleman (1993) FLC 92-346 in which case Nygh J at 79,671, referring to those authorities, said as follows:
However, in my view, regrettably, there is clear authority for the proposition that at least in matrimonial causes once any financial agreement reached between the parties is embodied in consent orders, it is to these orders alone that the Court must look. The Court cannot take into account whatever agreement might or might not have been reached between the parties which led to the making of the consent orders, and the authority for that proposition is found in the opinion of the Privy Council on appeal from Hong Kong in de Lasala v de Lasala [1980] AC 546 at 560, where Lord Diplock said:-
“Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order.”
That principle was applied by the English Court of Appeal in the case of Thwaite v Thwaite, [1981] 3 WLR at 96 and I refer particularly to the judgment of Lord Justice Ormrod, as he then was, at page 101, where his Lordship said:-
“The effect of eliminating the contractual basis of these consent orders should simplify the problems. If their legal effect is derived from the court order, it must follow, we think, that they must be treated as orders of the court and dealt with, so far as possible, in the same way as non-consensual orders.”
These details, although they relate respectively to the law of Hong Kong and to the law of England, have been treated as authoritative in this country and were followed and applied most notably by the Full Court of this Court in Robertson and Wills (1982) FLC 91-215; 8 Fam LR 131, FLC at pp 77,158, 77,159 and p 77,161; Fam LR at pp 141 – 142 by Asche J and at p 144 by Fogarty J. Although in those cases, admittedly, the courts were concerned with the rights of appeal arising from consent orders and stressed the fact that a consent order can be appealed from, like any other order, in my view, the principle is wider than that. It follows that if an order made by consent must be treated like any other non-consensual court order it must be read and interpreted quite independently of what the parties subjectively might have intended thereby. It must be read as standing on its own feet, as it were.
16. Mr Indovino did not take issue with those principles.
17. I agree that I cannot, in order to interpret the order, look to the subjective intention of the parties when that order was made. However, if the order is ambiguous I can, when construing what is meant by that order, look to admissible evidence of the surrounding circumstances.
I accept that the above reference correctly states the position in relation to the interpretation of consent orders.
Relevant Law
The interpretation of Court orders
Earlier authorities on the topic of the interpretation of Court orders suggested that a Court would only look to the reasons for judgment attaching to an order in the event that there was some ambiguity in the language of the order itself. This was the position adopted by Southwell J in McNair Anderson Associates Pty Ltd v Hinch [1985] VR 309, who at [312] noted:
One must first look at the order and decide whether it is clear and unambiguous in its terms. If it is, then it is unnecessary to look beyond it in order to aid construction.
This view accorded with the well-known approach to the interpretation of contracts enunciated by the High Court in Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 (“Codelfa”) per Mason J at 351–352. On that approach, reference to extrinsic evidence would only be made where a contractual term was unclear or ambiguous. More recently, however, the High Court has suggested that ambiguity is no longer a pre-requisite for reference to extrinsic material when construing the terms of a contract: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451.
The common law approach to the interpretation of Court orders has evolved similarly to the law of contractual interpretation, such that there is now a line of authority in support of the position that recourse should be had to the reasons for judgment and extrinsic materials, whether or not the order is framed in ambiguous language: Yates Property Corporation Pty Ltd v Boland and Ors (1998) 89 FCR 78 (“Yates”) per Drummond, Sundberg and Finkelstein JJ; applied in Re Tower Software Engineering Pty Ltd; McCann and Ors v Pendant Software Pty Ltd and Anor (2006) 235 ALR 566 per Finkelstein J at [25]. In Yates, Drummond J found that regard should be had to the reasons even where the language of an order is unambiguous and stated as follows:
It is impermissible, in my view, as well as being quite unrealistic, to attempt to read, that is, to understand, an order in isolation from the context of the reasons for it being made.
Two lines of authority
In Athens and Anor v Randwick City Council (2005) 64 NSWLR 68 (“Athens”) at [131]–[133], Santow J discussed two lines of authority that have emerged with respect to whether or not reasons for judgment and extrinsic material should be consulted when interpreting the orders of a Court. His Honour described these two approaches as “representing weak and strong variants of the same principal”.
The “weak variant”, according to his Honour, is the line of authority suggesting that the reasons for judgment should not be examined except where an order is ambiguous. The “strong variant”, the approach preferred by his Honour, was the line of authority which suggested that:
the meaning of words in an order should in an appropriate case be considered by reference to the reasons for judgment, themselves finding their context in the overall proceedings: Athens, per Allsop J at [133]
His Honour proceeded to discuss the relationship between orders and judgments, suggesting that, in some instances, it may even be necessary to consider these in the context of the proceedings as a whole. His Honour at [136] noted the following:
The making of orders is not always a mechanical extrapolation from the originating judgment. There may be room for a range of possible orders, and possible meanings of those orders, which would conform. Then the wider context of the proceedings can have an important bearing, particularly the pleadings which should identify the orders sought. . . The judgment may need to be understood by reference to how the parties put their cases.
The Family Court of Australia has adopted the “strong variant” preferred by Allsop J. In the Full Court judgment of Rand v Rand (2010) 43 FamLR 570 at [105]-[106], Bryant CJ, Coleman and Boland JJ stated the following:
In Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 ; [2003] FCA 629, Allsop J was concerned with an order which was ambiguous. His Honour referred to the judgment of Drummond J in Yates Property Corp Pty Ltd v Boland (1998) 89 FCR 78 in which Drummond J said:
… [i]t is impermissible, … as well as being quite unrealistic, to attempt to read, that is, to understand, an order in isolation from the context of the reasons for it being made. The Full Court of the Supreme Court of Queensland, in Australian Energy Ltd v Lennard Oil NL (No 2) [1988] 2 Qd R 230 held that, in interpreting an order of a court framed in unambiguous language, regard should still be had to the reasons given by the court for making the order because they form part of a context in which the order was made. The case for referring to the reasons for an order where there is any suggestion that order may be expressed in unclear terms is a fortiori.
Allsop J observed that “[n]evertheless, it is plain that parties should not have to examine the entrails of a long proceeding to understand their rights and obligations (including potential liability for contempt)”: at [54]. Having concluded that the order previously made by another Federal Court judge was ambiguous, Allsop J recorded that the orders lacked “precision and clarity” and suggested that court orders “be clear and should reflect, without giving pause for thought as far as that is possible, what was intended by the court”. The earlier orders did not reflect “with precision” what the judge who made them had intended, and were able to be varied by Allsop J pursuant to the remedy of a “construction summons”.
Consent orders
With respect to consent orders in particular, in Kirkpatrick v Kotis (2004) 62 NSWLR 567 (“Kirkpatrick”) Campbell J discussed by reference to a string of authorities the method in which such orders should be construed. His Honour at [45] concluded that:
authority and principle both favour the view that surrounding circumstances can be used to construe a consent order. The type of surrounding circumstances which can be used are those which can be used to construe a contract, in accordance with the principles laid down by Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) CLR 337 at 352.
His Honour at [57] provided further clarity as to the “surrounding circumstances” that can be used as an aid to construction, describing these as:
facts known to all parties to the consent order. . . the very thing that a person trying to understand and obey the order would take into account.
Subjective intention
In accordance with the principles for construing contracts laid down in Codelfa, which received the endorsement of Campbell J in Kirkpatrick, the subjective intention of the parties are not to be taken into account. As Mason J explained in Codelfa at 352:
We do not take into account the actual intentions of the parties and for the very good reason that an investigation of those matters would not only be time consuming but it would also be unrewarding as it would tend to give too much weight to these factors at the expense of the actual language of the written contract.
In the decision in Hughes and Hughes (supra) Macmillan J concluded she could not look to the subjective intention of parties at the time the order was made in aid of interpreting the order.
Discussion and determination
Adopting the approach dictated by the above extrapolation of case law, I consider that the exercise to be conducted consists of the following:
a) Determine if there is any ambiguity created by the orders.
b)Whether there be ambiguity or not, identify the “surrounding circumstances” (other than the subjective intention of the parties) of the making of the orders and what has occurred thereafter to create the dispute, so far as those circumstances are such as might be available to assist in the construction of a contract.
c) Reach a conclusion in relation to the construction.
I now turn to consider those matters.
Determine if there is any ambiguity created by the orders
The definition of “Westpac mortgage” as it appears in the subject orders is quite clear. If the wife’s submission is correct then the definition is itself part of extrinsic material designed to aid the interpretation of the Court’s order. It is clear that what is referred to is the mortgage registered against the Suburb S property at the time the subject orders were made. It could not define the subsequent mortgage taken out by the wife as required by Order 3.
The subject orders are clear in that they provide for the wife to transfer to the husband her interest in the Suburb S property. At the same time, the husband is to transfer to the wife his interest in the Suburb M property. The husband is also to relinquish any entitlement he holds under the Trust which, together with the wife, is the co-owner of the Town P property.
Order 3 of the subject orders provides that at the time the wife transfers to the husband her interest in the Suburb S property she cause the Westpac mortgage to be discharged and refinanced on the security of the Suburb M property and/or the Town P property. It then requires the husband to “sign all documents necessary on his behalf to effect same”.
The last provision is a most extraordinary one in light of what had previously been required. If Orders 4 and 19 have been complied with, then the husband will have no property interest in either the Suburb M or the Town P properties. It must therefore have been envisaged that the husband would (or may) have to sign other documents to enable the security for the loan which was owing to Westpac Bank by the parties jointly (and secured over the Suburb S property) to be moved (by discharge and then entering into a new mortgage) to the Suburb M property and/or the Town P property.
The surrounding circumstances
The fact of some arrangement between the parties for the husband to contribute to the instalments which the wife would be liable to meet under the new security for the loan from Westpac Bank can be seen not only from the words of Order 16 but also from the fact that the date of commencement of the requirement for the husband to be responsible for such payment pre-dates the order itself. Order 16 is to have retrospective operation so as to bind the parties to the commitment from 27 October 2011.
Evidence in the affidavit of Mr G states that the mortgage instalments in relation to the “Rocket Mortgage” were deducted from the parties’ bank accounts on the 28th day of each month. A letter dated 25 November 2011 from the wife’s solicitor to the husband’s solicitor proposes an amendment to proposed Order 10 to include the date 27 October 2011. It was stated in the letter that, notwithstanding the receipt by the husband of half the rental from the Suburb M property, the husband had not made any contribution to the mortgage in October 2011.
The Westpac mortgage secured over the Suburb S property was discharged on 31 January 2012.
Between the date of the subject orders and 2 June 2012 (the first of the events referred to in Order 15), the husband received one half of the net rental from both the Suburb M and Town P properties.
Annexure G to the affidavit of Mr G is a copy of a signed “Irrevocable Authority” addressed to the “Conveyancers acting on the sale” and also to “Streeterlaw”. That document is signed by the husband and dated 2 December 2011. It authorises the deduction from the husband’s entitlement to the proceeds of sale of the Suburb S property any obligation he has pursuant to Order 16. It also authorises the deduction of other amounts.
Following the making of the subject orders on 2 December 2011, the wife’s solicitors were directed by the husband’s solicitors to contact Boyd Legal, the solicitors retained by the husband to act on the sale of the Suburb S property. The wife’s solicitors sought an assurance by Boyd Legal that they held instructions to enable the husband to comply with Order 16 of the subject orders on the completion of the sale. That assurance was received in a letter dated 11 April 2012.
Details of the quantum of the liability alleged by the wife were then provided in a letter from the wife’s solicitor to Boyd Legal dated 24 April 2012. The figures claimed for mortgage payments by the wife are:
a)October 2011, $6,785.74;
b)November 2011, $6.907.86;
c)December 2011 $6,442.87;
d)January 2012 $7,122.72;
e)February 2012, $6,514.39; and
f)March 2012, $8,821.
The statements attached to the letter to Boyd Legal dated 24 April 2012 as referred to above, show that the amount owing on the Westpac mortgage was approximately $1.2 million for the period from 30 September 2011 to 31 October 2011. The account at that time was held in the joint names of the husband and wife. A statement for the period from 3 February 2012 to 1 March 2012 shows the liability in the wife’s sole name and states that it had increased to $1.4 million.
On 15 June 2012, around the date of settlement of the sale of the Suburb S property, the wife’s solicitors sent the final account for adjustment pursuant to Orders 15 and 16 of the subject orders. That request was met for the first time with a response from Boyd Legal asserting that the husband was only responsible to contribute to the mortgage instalments on the Westpac mortgage to the date of the discharge of the mortgage by the wife on 2 February 2012.
By his affidavit sworn 28 November 2012, the husband said he had read and understood clause A.11 of the Minute of Consent Orders at the time he signed them. He understood the effect of the orders would mean that his liability to contribute to the Westpac mortgage would cease when the mortgage was discharged (as it was by the wife on 31 January 2012).
The husband’s affidavit is, at best, self serving evidence and the weight which can be given to it is very limited. The evidence probably offends the rule against hearsay evidence, however no argument was advanced on the evidence and I therefore do not make a definitive ruling in relation to same. If it is admissible as evidence, then it can only assume importance (i.e. have weight attributed to it) if other reliable evidence tends to support the self serving statement. To the extent that the evidence is really evidence of the husband’s subjective intention at the time he entered into the agreement, it would be irrelevant having regard to the authorities referred to above.
The wife relied upon an Application in a Case filed by the husband and three affidavits sworn by the husband in 2011. The dates of filing of those documents are set out in paragraph 38 of the affidavit of Mr G filed on 31 July 2012. The content of the husband’s affidavits are only marginally relevant. The relevance is created through statements made by the husband about his then current financial circumstances and the fact that he was reliant upon the income from the rental of the Suburb M and Town P properties until he could sell or refinance the Suburb S property.
Conclusion
Thus I am left in the circumstance which can best be summarised as follows:
a)There is clear evidence attributable to both parties as to what was defined as the “Westpac mortgage”. That is contained in the signed Minute of Consent Orders and the subject orders which were thereafter made by this Court. The Westpac mortgage was the jointly held mortgage by the parties secured against the Suburb S property.
b)The scheme of the subject orders required the transfer of the Suburb S property to the husband with the wife to discharge the Westpac mortgage. The same order required the wife to refinance (presumably that debt) against the Suburb M and Town P properties. The husband’s interests in the Suburb M and Town P properties were to be transferred to the wife. The parties were to cause the Suburb S property to be sold.
c)The husband was entitled to half of the net rent from the Suburb M and Town P properties until either the sale of the Suburb S property or the expiration of six months from the date of the subject orders.
d)The wife seeks payment for 50% of the mortgage payments made by her under both the original mortgage to Westpac which was secured against the Suburb S property and the re-financed mortgage.
e)The quantum of the liability to Westpac Bank changed from approximately $1.2 million to $1.4 million when the wife refinanced. There is no indication in the subject orders that an increase in the amount of the loan was contemplated by the subject orders.
f)The subject orders clearly represent a compromise between the parties. There is no evidence as to the effect of the orders in dollar terms. That is, it is not possible to see that the agreement, on one interpretation of the orders, did not achieve the agreed ambition of the parties such as an equal division of their assets.
g)It is clear from the parties’ current positions in relation to the issue that they each take a different interpretation of the subject orders. It is possible to see that each of the parties has justification to conclude that the subject orders ought to be interpreted in the manner submitted. It is understandable how the wife took the view that the combination of orders 15 and 16 would relate to the mortgage she entered into pursuant to order 3. That mortgage by definition, however, ceased to be the “Westpac mortgage” as defined in the preamble to the orders, because it was no longer a joint mortgage of the parties nor was it secured against the Suburb S property.
Considering all the above, I am unable to conclude that the applicant wife has satisfied the Court on the balance of probabilities that her interpretation of the subject orders should be preferred and enforced.
I therefore reluctantly conclude, with a significant degree of sympathy for the position in which the wife finds herself, that her application should be dismissed.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench .
Associate:
Date: 12 March 2013
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