B & B

This matter concerned an appeal from a decision of the Federal Magistrate's Court. The husband appealed against orders made by the Federal Magistrate concerning the division of property. The central dispute revolved around the inclusion of a mortgage debt of $208,000 in the asset pool.

The legal issues before the court were whether the Federal Magistrate erred in including the figure of $208,000 as a mortgage debt in the asset pool, and whether the approach taken by the Federal Magistrate was just and equitable. Specifically, the court considered whether the husband's evidence regarding the mortgage debt was adequately considered and whether the Federal Magistrate's approach to dealing with imprecise evidence was appropriate.

The court reasoned that the Federal Magistrate had not adequately dealt with the husband's oral evidence concerning the mortgage debt. While the husband's evidence was imprecise and lacked documentation, the Federal Magistrate had not explicitly rejected it. The court noted that the rule in *Browne v Dunn* required the husband's evidence to be treated according to usual rules, including that evidence not challenged in cross-examination should not be disbelieved without a cogent reason, such as inherent improbability. The court found that the Federal Magistrate's inclusion of the $208,000 figure, without a clear basis in the evidence or a rejection of the husband's testimony, may have resulted in a punitive rather than a just outcome. The court also observed that alternative methods existed for dealing with the uncertain debt, such as formulating orders that would quantify the debt upon refinancing or sale of the property.