Barker v Barker - [2007] FamCA 13

FAMILY COURT OF AUSTRALIA

BARKER & BARKER

[2007] FamCA 13

PROPERTY – section 79A – application to vary or set aside consent order – miscarriage of justice by reason of suppression of evidence – miscarriage of justice by reason of any other circumstance – where the husband failed to disclose an offer to purchase a property of the parties prior to negotiating terms of settlement – where property subsequently sold for a substantially higher price than that at which it was valued – where husband claimed he believed the offer was disingenuous – whether the husband had an obligation to disclose the offer to the wife – whether a belief as to the genuineness of the offer is a subjective or objective belief – appeal allowed

Family Law Act 1975 (Cth), s 79A(1)(a)

Molier and Van Wyk (1980) FLC ¶90-911
Public Trustee (as executor of the estate of Gilbert) v Gilbert (1991) FLC ¶92-211
[M] & [M] [2003] FamCA 1304
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Mulley & Marney v Manifold (1959) 103 CLR 341
Suiker & Suiker (1993) FLC ¶92-436

Harris v Caladine (1991) FLC ¶92-217
Morrison v Morrison (1995) FLC ¶92-573
Burns v Burns (2002) EWCA Civ 1258
Livesey v Jenkins [1985] 1 All ER 106
Bigg v Suzi (1998) FLC ¶92-799
Holland v Holland (1982) FLC ¶91-243
Gebert v Gebert (1990) FLC 92-137
Blake & Blake [2007] FamCA 10
Weatherall and Weatherall and Others (2006) FLC ¶93-261
Prowse and Prowse (1995) FLC ¶92-557

APPELLANT:

BARKER

RESPONDENT:

BARKER

FILE NUMBER:

BRF

1129

2003

APPEAL NUMBER:

2004

DATE DELIVERED:

24 JANUARY 2007

PLACE DELIVERED:

MELBOURNE

JUDGMENT OF:

BRYANT CJ, MAY AND BOLAND JJ

HEARING DATE:

16 FEBRUARY 2005

LOWER COURT JURISDICTION:

FAMILY COURT OF AUSTRALIA

LOWER COURT JUDGMENT DATE:

21 SEPTEMBER 2004

LOWER COURT MNC:

[2004] FamCA 863

REPRESENTATION

COUNSEL FOR THE APPELLANT:

MR T NORTH SC

SOLICITOR FOR THE APPELLANT:

HOPGOOD GANIM LAWYERS

COUNSEL FOR THE RESPONDENT:

MR M BARTFELD QC

SOLICITOR FOR THE RESPONDENT:

BARRY & NILSSON LAWYERS

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 Barker v Barker.

Orders

That the appeal be allowed.
That the orders made by O’Reilly J on 26 November 2003 be set aside.
That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant wife in respect of the costs incurred by the appellant wife in relation to the appeal.
That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent husband in respect of the costs incurred by the respondent husband in relation to the appeal.

FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 64 of 2004
File Number: BRF 1129 of 2003

Barker

and

Barker

REASONS FOR JUDGMENT

This is the wife’s appeal against the decision of Jordan J refusing to set aside or vary consent orders under s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”).

Background to the making of the original orders

The orders sought to be set aside were made by consent on 26 November 2003 by O’Reilly J and provided, inter alia, for:
·the husband to retain the assets of the farming partnership conducted on three farming properties: “AW”, “AR” and “B”, and assume the liabilities of the business; and
·the husband to pay the wife the sum of $575,000.
It was submitted to O’Reilly J that out of an agreed net pool of $1,200,000 (which included a valuation of “AW” at $1,650,000), the essential effect of the agreement was that the wife would receive between 53 per cent and 55 per cent of the assets and the husband hoped to continue to conduct the farming enterprise and retain the real property.
Shortly after the orders were made, the husband sold “AW” for $2,650,000.
Proceedings were then brought by the wife pursuant to s 79A to set aside the previous consent orders on the basis of a miscarriage of justice. Jordan J (“the trial judge”) dismissed the wife’s application and she now appeals that decision.

The proceedings before the trial judge and reasons for judgment

The trial judge recorded that in her application and material in support, the wife had sought to rely upon the ground of duress but had not pressed that issue at trial. In the end the trial judge noted that counsel for the applicant had focussed upon the provisions of s 79A(1)(a) to establish that there had been a miscarriage of justice on the grounds of suppression of evidence and/or any other circumstance.
Section 79A(1)(a) reads:
Where, on application by a person affected by an order made by a court under section 79 in property proceedings, the court is satisfied that–
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c)a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e)a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The trial judge noted firstly that his only task was to consider whether the wife could succeed in her s 79A application and the matter proceeded only on that basis.
Jordan J recorded that the parties had married on 4 August 1967 and separated on 17 October 2002 and that there were three children born throughout the duration of the marriage then aged between 36 and 30 years of age.
The parties conducted a partnership business during the course of the marriage on three farming properties known as “AW”, “AR” and “B”.
Proceedings commenced when the husband filed an application for property settlement on 11 March 2003. The parties obtained a joint valuation by Mr J, who provided a report in relation to the subject property, the stock, plant and equipment. The principal property was “AW”, which Mr J had valued at $1,650,000. On the basis of Mr J’s valuation, the net value of the property of the parties was between $1,100,000 and $1,200,000.
On 26 November 2003 the parties entered into consent orders with the essential terms being to the effect that the husband was to retain the partnership, assume responsibility for its liabilities, and pay to the wife the sum of $575,000. Under the terms of the orders the husband was permitted to sell any of the property of the partnership, including “AW”, to facilitate payment to the wife.
Shortly after the orders were made the husband sold “AW” for $2,650,000. The trial judge recorded there was no dispute about the fact that the husband received an offer to purchase at $2,650,000 on 3 December and that he accepted that offer on 11 December, with the contract being signed on 23 December by the husband and by the purchaser on 24 December 2004.
The trial judge recorded that the essence of the case argued by counsel for the wife was as follows:
(i)The parameters of the parties’ entitlement were defined by their own applications suggesting that the wife was entitled to between 50% and 55% of the property of the parties.
(ii)The parties negotiated and agreed to Consent Orders on the premise that their net worth was between $1.1 million and $1.2 million based upon the valuation evidence of their joint valuer, Mr [J], which included the value of $1.65 million being assigned to “AW”.
(iii)The wife believed she was receiving a settlement which represented between 53% and 55% of the net asset pool, and the Court was so advised on the date of the Consent Order.
(iv)That as at the date of that order, “AW” was worth well in excess of $1.65 million and was, in fact, worth more like $2.65 million.
(v)That on the real value of “AW”, the wife received less than 30% of the asset pool.
(vi)That after a 37 year marriage of considerable joint effort, a distribution of 30% to the wife is so grossly inadequate to itself demonstrate error and a miscarriage of justice sufficient to give rise to the discretion to set aside orders, which discretion should be exercised in the wife’s favour to enable justice and equity to be done between the parties.
(vii)That, further and in any event, the Court should find that there was a suppression of evidence, or a failure to disclose relevant information, which led the wife and the Court into error on the day of the Consent Orders and that such acts and omissions on the part of the husband resulted in a miscarriage of justice.
(viii)The relevant information suppressed or not disclosed to the wife by the husband included the following:
(a)That, in the context of negotiations, each of the parties proceeded upon the premise that the husband should be given the opportunity to retain and operate the farming properties. However, during the period of those negotiations, the husband was in regular dialogue with real estate agents canvassing the prospect of sale and that, on 31 August 2003, he appointed a Mr H as his agent to sell “AW”.
(b)That in late October or early November 2003, the husband received an oral offer from a prospective purchaser to purchase “AW” for $2.3 million.
(c)That the husband rejected that offer.
(d)That on 6 November 2003, a property in the district, “AB”, was sold at a value substantially greater than the going rate per acre and that the sale had the effect of greatly increasing the value of “AW” was well-known to the husband and Mr H.
(ix)That the above matters were material and relevant and should have been disclosed to the wife.
(x)That had those matters been disclosed to the wife, it is reasonable for the Court to infer that she would not have entered into the Consent Orders made on 26 November 2003.
His Honour noted:
·The onus was on the applicant to satisfy the court that there had been a miscarriage of justice and that the relevant discretion to set aside the order should be exercised in the applicant’s favour.
·The relevant circumstances referred to in s 79A(1)(a) were required to be circumstances existing at the time of the order.
·That evidence of offers made prior to the consent orders and evidence of the sale price after the event were relevant and admissible.
·That it was an agreed fact that an offer of $2,300,000 was conveyed to the husband prior to the signing of the consent orders.
·The sale price of “AW” was an agreed fact.

Findings

His Honour found the husband to be an open, honest witness who was at all times endeavouring to tell the truth.
He found the wife to be less so, perhaps occasioned by anger and frustration at the husband’s “windfall” so soon after the property settlement.
Critically in our view, his Honour accepted the husband’s evidence that it was “his wish and intention to retain “AW”.” His Honour noted that the wife acknowledged that situation.
His Honour, as well as noting that it was the husband’s desire to retain “AW”, also found, again critically in our view, that in relation to the offer of $2,300,000 subsequent to a one-off inspection the husband did not regard the purchaser as a genuine purchaser, and he did not believe the offer was a true offer.
His Honour found that the wife appreciated that the husband had to sell some property to pay her and refused to sign the authority for sale of the two adjoining blocks to gain some advantage under the terms of the order relating to the possible purchase by her of “AW”. His Honour found that the first time that the husband actively contemplated the sale of “AW” was when an offer was put to him on 3 December 2003 and that the agent who acted for him at that time in securing a potential purchaser did so without his instructions. However his Honour found the husband did extend the agent’s authority to sell at that time. His Honour found that, nevertheless, the husband remained reluctant to sell even beyond the date he had accepted the offer on 11 December and he became resigned to the sale on the date of execution of the contract being 23 December 2003.
He accepted the husband’s evidence that at the date of the consent orders, notwithstanding his knowledge of the sale of another property called “AB”, he had no clear expectation that a sale of “AW” would necessarily realise more than the joint valuation.
Having regard to those findings his Honour then considered the question of whether the husband was obliged to disclose the one-off authority to sell and concluded that in the context of the finding the husband had no intention to sell that such a limited authority to inspect was not a material matter that had, or was likely to have had, any bearing upon issues of value, intent, or on the deliberation of the parties.
He concluded that the husband could not be under any obligation to disclose a disingenuous offer to buy a property that was not for sale.
He accepted the husband’s evidence, which he found was corroborated by the agent and the purchaser of “AW”, to the effect that his execution of the authority to sell was not in fact intended by him as a step designed to effect the sale of “AW”. The trial judge accepted that once the separation became public knowledge the husband was inundated with requests from agents to secure a listing and that he succumbed to the overtures of one agent, Mr H, and executed an authority. The trial judge accepted the evidence of the husband and the agent, Mr H, that the extent of the authority was in fact limited to a one-only inspection and that the authority itself made reference only to “expressions of interest.” The trial judge accepted the husband’s evidence that he continually reiterated to the agent that whilst he could not dismiss the prospect that one day he may be forced to sell some of his partnership properties, he did not want or intend to sell “AW”.
As to the first offer of $2,300,000 made after the one-off inspection his Honour accepted the husband’s evidence that he did not consider the purchaser as a genuine purchaser, “that he did not believe the offer was a true offer, and that he rejected the proposition out of hand for those reasons and, even more fundamentally, because he was simply not interested in selling the property.” His Honour found that dealings between Mr H and the purchaser prior to 3 December 2003 were without the husband’s knowledge or authority and that the first time he actively contemplated the sale of “AW” was when the offer was put to him on 3 December. Finally, his Honour accepted the husband’s evidence that at the date of the consent orders, and notwithstanding the sale of “AB”, he had no clear expectation that a sale of “AW” would necessarily realise more than the ‘J’ valuation.
On the broader issue to each party’s belief as to the real value of “AW” his Honour found that at various times leading up to the consent orders each of the parties had been given pieces of information of varying significance which caused them to consider the prospect that “AW” may have been worth more than $1,650,000. He found that in the wife’s case this belief seems to have been firmly and consistently held but in the husband’s case it was of little moment to him, given that he had no desire or intention to sell the property. He thus concluded that in all circumstances as there was nothing to disclose to the wife, there was no suppression of evidence, and accordingly that part of the wife’s claim must fail.
His Honour then turned to the second part of the wife’s claim, which was that given the sale of “AW” for $2,650,000 the wife only received some 30 per cent of the property pool.
His Honour noted that it was common ground between counsel for each of the parties that the relevant circumstances to be examined to determine whether there had been a miscarriage of justice were those existing at the time of, or before, the making of the order under consideration and that, accordingly, to sustain the premise for this argument the wife had to establish that $575,000 was in fact only 30 per cent of the property at the time the orders were made.
His Honour examined the evidence, particularly the sale in the district on 6 November 2003 at above the market standards, which had been used by the valuer in his August evaluation. His Honour referred to an affidavit sworn in the proceedings before him by Mr J in support of the wife’s application attaching a letter from the wife’s solicitors dated 14 April 2004 which his Honour noted:
Mr [J] was not requested to provide evidence of the value of “[AW]” as at 26 November 2003. In his letter of reply Mr J did not take up the proposition put to him that the subsequent sale of “[AB]” would justify an alteration of his position as set out in his original August evaluation.
However his Honour noted that Mr J had observed that the “AB” sale “would have had a major influencing effect on the sale of farming land in the district” and its effect was “to considerably increase the expectation of the vendors, and buyers had to also re-consider their levels to buy in” and could have had “considerable influence on the eventual purchaser of “AW”.”. However, his Honour noted that the valuer did not purport to attribute any adjusted value to the property as at 26 October or at all.
The conclusion his Honour reached, given what he found was the valuer’s failure to undertake an exercise designed to attribute a value to “AW” at the date of the hearing before O’Reilly J and the “broader nature of his supplementary observations”, was that there was no basis upon which the Court could make a finding as to the value of the property at the date of the hearing. His Honour found that the evidence relating to the “AB” sale would lead to an inference that a greater value may well have been assigned to the property at the date of hearing but anything beyond that was but mere speculation.
Thus his Honour concluded that nothing the husband or his solicitors did on 26 November 2003, or in the period leading up to it, was designed to, or had the effect of, misleading either the wife or the Court. He noted that the wife had received “speculation” from others about higher prices and had her own strong views and found that, on the balance of probabilities, the wife was aware of the detail of the “AB” sale prior to concluding negotiations and well prior to the court appearance on 26 November. His Honour concluded that he was satisfied that everyone acted in a bona fide way in the proceedings leading up to the consent orders being made and that no adverse inference against the husband could be drawn from the fact that the property subsequently sold for a higher value.

His Honour noted that the husband had been the beneficiary of the sale subsequent to settlement and that the benefit enjoyed by him was substantial. He observed however that change in the value of property subsequent to settlement is not only common, but inevitable. He noted that there are many reported decisions relating to fluctuations in value and such circumstances were never, by themselves, a basis to set aside final property orders.
His Honour observed that in determining whether the windfall to the husband on the facts as he had found them represented a miscarriage of justice required consideration of the surrounding circumstances. He considered that the windfall was unexpected because the husband had no intention of selling the subject property. However, in other respects, the windfall was not entirely unexpected by the wife because she had, at all material times, a firm belief that the property was worth significantly more than $1,650,000.
His Honour took account of the fact that after the consent orders were made the wife deliberately conducted herself in a way designed to create hardship for the husband and to create advantages for herself in relation to the forced sale and acquisition of the property which was to be enjoyed by the husband pursuant to the orders. Included in those endeavours to obtain advantage his Honour found was her intention to possibly acquire “AW” at a value attributed to it by the valuer, notwithstanding her firm belief that it was worth more. His Honour also noted the benefit to the wife of obtaining a lump sum, which included removing herself from the risks associated with dealing with the partnership creditors and the fact that the husband would be carrying the risks associated with the retention of the property.
His Honour concluded by indicating he found there was nothing done by the husband prior to the consent orders which resulted in a miscarriage of justice and that what happened subsequent to the orders was not a miscarriage of justice. Having found there was nothing to conclude there was a miscarriage of justice, his Honour did not need to consider the exercise of the discretion by the Court and dismissed the wife’s application.

Grounds of appeal

By her amended notice of appeal the wife set out 23 grounds. In his written outline of argument, and before us, counsel for the wife argued the grounds under three headings and it is convenient for us to follow that outline.

Grounds 1, 15, 16, and 19

Ground 1: That the trial judge erred in finding there was no evidence to conclude that there was a miscarriage of justice at the time of the Order of Justice O’Reilly on 26 November, 2003 as a result of the Orders made on that day to enliven the discretion of the Court to vary those Orders; and

Ground 15: That the trial judge erred in finding (paragraph 50) in his letter in reply, Mr [J] did not take up the proposition put to him that the subsequent sale of “AB” would justify an alteration of his position as set out in his original August valuation; and

Ground 16: the trial judge erred in finding (paragraph 53) there is simply no basis upon which the Court can make a finding as to the value of the parties’ property as at the date of the hearing particularly when there was evidence:

(a) of the disingenuous offer of $2.3 million made prior to the consent orders;

(b) of the sale price of $2.6 million realised shortly after the making of the consent orders;

(c) the evidence of Mr [J]; and

Ground 19: The trial judge erred in finding (paragraph 22) that

(a) the evidence of offers made prior to the consent orders and the evidence of the sale price after the event are relevant and admissible; and

(b) whether any of the facts (referred to in paragraph 22) are indicative of value or even relevant to the question of value as of the date of the consent orders are separate questions

to which the trial Judge indicated he would return later but which the trial Judge failed to subsequently address in his Reasons for Judgment

Although some of these grounds overlap with grounds that follow, we have dealt with them in the order they appear in the wife’s written submissions.
It is necessary in considering the grounds of appeal to examine the essential elements of an order made by consent, in this case by a judge at the commencement of what was to be a defended hearing. The arrival at a fair result for both parties, and one which a judge would find in accordance with the Act was “just and equitable”, involves:
·agreement by the parties about what the assets are and arriving at an agreed value for them;
·agreeing as to the nature and amount of liabilities;
·considering the agreed contributions of both parties to the acquisition, conservation and improvement of those assets to determine the contribution based percentage to which each party is entitled;
·considering the relevant matters in s 75(2) to decide if there should be a further adjustment to the percentage arrived at under the previous step;
·constructing orders that reflect the above matters and provide for the agreed division of property reached between the parties.
Where orders are made by consent, the judge may have a lot of material which will assist in informing the judge as to whether the orders are just and equitable or more limited material but sufficient to arrive at that decision. The background to arrival at an agreed value would not necessarily be known by the judge. However, this could also be true where a matter proceeded to hearing but values were agreed.
In this case the trial judge was informed that the wife’s entitlement based on the contributions and relevant matters under s 75(2) was in the range of 53.5 per cent to 55 per cent of the net assets which had an agreed value of $1.2 million. She was informed that it was the husband’s hope to pay the wife out and continue to conduct the farming enterprise. There was no issue then, nor is there now, that the percentage upon which the parties had agreed was a fair outcome to the wife.
The orders were detailed, covering the matters to which we have referred, but relevantly provided in paragraph 6 “that the husband pay to the wife the sum of $575,000, $200,000 of which was to be paid on or before 7 February 2004 and the balance, which was to be paid on 7 March 2004.” The orders further provided that subject and conditional upon the husband’s performance of his obligations to the wife, including the payment referred to, the partnership was to be dissolved and the wife was to transfer to the husband any of her interest in the partnership real property which had not been sold by the husband.
Paragraph 15 provided that the husband be at liberty to sell all or any of the partnership property including real property and for the amount received at settlement to be dispersed as follows:
(a)In payment of the costs of sale.
(b)In payment of the reasonable expenses of the partnership.
(c)In payment of the [SM] credit facilities of the partnership.
(d)In payment of the monies due to the wife pursuant to paragraph 6A and 6B hereof (that is the sum of $575,000).
(e)The outstanding partnership creditors.
(f)The balance, if any, to the husband.
The orders contained detailed provisions as to what was to occur in the event that there was any default by the husband. The question for determination in this case relates to the value of the assets, and in particular the value of the property “AW”, which led to the parties agreeing on the orders and in particular the sum to be paid to the wife.
The issues for determination in this appeal therefore are, in their broadest terms, was the value agreed for “AW” its “real value”? If it was not, and the real value was considerably more, was there a miscarriage of justice on the face of the orders because the wife did not receive the percentage to which she was entitled as a result of her contributions and the other matters under s 75(2) which were not the subject of controversy? Finally, if so, should the Court exercise its discretion in favour of the wife to set aside the orders made by consent?
The first issue therefore is whether the value agreed for “AW” was its “real value” at the time of the making of the orders. There is no dispute that the miscarriage of justice must have occurred at the time of the making of the orders, namely 6 November 2003 (Molier and Van Wyk (1980) FLC ¶90-911 at pp 75,767-75,768; Public Trustee (as executor of the estate of Gilbert) v Gilbert (1991) FLC ¶92-211 at pp 78,426-78,427, 78,428).
The wife contends before us that the “real value” of the property at the time of the hearing at which consent orders were made was “well in excess of $328 per acre and indeed in excess of $500 per acre” (paragraph 8 of the wife’s outline of argument).
The wife submits that the trial judge should have made this finding:
(a)because of the sale of another property, “[AB]”, prior to the making of consent orders and the trial judge’s misunderstanding of the evidence of Mr [J] in relation to the importance of this sale;
(b)because of the offer to purchase “[AW]” made to the husband prior to the orders being made and his obligation to disclose that offer to the wife;
(c)because of the sale of “AW” for $525.85 per acre, or a total of $2.65 million pursuant to a contract entered into on 23 and 24 December 2004, a date proximate to the order; and
(d)because of a combination of (b) and (c).

Discussion of the wife’s grounds 1, 15, 16, and 19

Was the trial judge correct in finding there was no basis for making a finding as to the value of “AW” at the date of the order?

Counsel for the wife submitted that his Honour erred in determining that “there is simply no basis upon which the Court can now make a finding as to the value of the parties’ property as at the date of hearing” (reasons for judgment at paragraph 53). Further, the determination that “the evidence relating to the “AB” sale would lead to the inference that a greater value may well have been assigned to the property at the date of the hearing but…anything beyond that is mere speculation” seriously understated the effect of the uncontested evidence of Mr J, totally disregarded the fact of the sale of that property pursuant to a contract entered into within a month of the order, and was thereby contrary to undisputed evidence.
His Honour examined the evidence in relation to these arguments in paragraphs 50, 51, 52 and 53 of the reasons for judgment. In paragraph 50 his Honour stated the following:
There is evidence that there was a sale in the district on 6 November 2003 and that that sale was above the market standards which had been used by Mr [J] in his August valuation. Mr [J] swore an affidavit on 19 April 2004, which was filed in support of the wife’s application filed on 27 February 2004 to set aside the Consent Orders. That affidavit attaches a copy of a letter from Hopgood Ganim, dated 14 April 2004, and a letter in reply from Mr [J] to Hopgood Ganim of the same date. Mr [J] was not requested to provide evidence of the value of “[AW]” as at 26 November 2003. In his letter in reply, Mr [J] did not take up the proposition put to him that the subsequent sale of “[AB]” would justify an alteration of his position as set out in his original August valuation.
It needs to be recorded at this point that both counsel conceded there was an error in his Honour’s characterisation of the proposition which he described as being put to Mr J “…that the subsequent sale of “[AB]” would justify an alteration of his position as set out in his original August valuation.” Both counsel concede that “AB” was not a subsequent sale, but rather the sale that took place prior to the consent orders. The letter referred to is a letter from the wife’s solicitors Hopgood Ganim dated 14 April 2004 to Mr J. After setting out what they believed to be some salient facts they posed the following questions:
In light of the recent sale price of “[AW]” can you now say that the valuation of “[AW]” was correct on the information provided, but had you been provided with full information, then you would have altered your position?
Further, can you comment or explain the difference between your valuation of “[AW]” and the ultimate sale price?
Does this impact on your valuations of the other two properties?
Both counsel conceded that his Honour had incorrectly referred to “AB” in paragraph 50. That much is clear from examination of the letter from Hopgood Ganim dated 14 April 2004. In addition, it was common ground that the wife’s solicitors were unaware of the sale of “AB” until Mr J referred to it in his letter in reply and that, as a result, there was no reference to the sale of “AB” in the solicitors’ letter dated 14 April 2004.
Counsel for the husband submitted that in paragraph 50 his Honour simply made a typographical error, such that would not affect the integrity of his judgment. It is sufficient for us to note the concession.
As we have noted, Mr J replied to the letter from Hopgood Ganim dated 14 April 2004 by letter written on the same date.
The letter rejected any suggestion that the husband had not been cooperative in enabling inspection of “AW”. If, as counsel conceded, the trial judge in paragraph 50 of the reasons for judgment meant to say that Mr J did not take up the proposition that the subsequent sale of “AW” would justify an alteration of his position as set out in the earlier valuation, then the trial judge was correct. However, Mr J spent considerable time in the letter dealing with the effect of the “AB” sale.
It is necessary to refer back to Mr J’s original valuation at the time of the consent orders to determine the impact of his evidence contained in the letter of 14 April 2004.
That valuation is attached to an affidavit sworn on 11 November 2003. He valued “AW” at $1,653,000 or $328 per acre. Under the heading “Valuation Considerations” he discussed recent sales. In particular he considered two sales both adjoining “AW”, “TD” and “WD”. He noted that “TD” had been sold on 3 November 2002 at an effective price of $508.53 per acre. He noted the property was not on the market and opined that the sale resulted in a sale price which confirmed an anxious buyer. On the eastern side of “AW” was the sale of “WD”, which was sold on 2 February 2002 for $1,600,000 or $250 an acre. He noted that the sale was not advertised and was “generally regarded as being below market.” He opined “[w]e therefore have the situation of 2 sales both adjoining “[AW]” and representing both the extreme highs and lows of the market. Until further trends develop, both of these sales are not considered to represent fair market value.”
It is contended by the wife that the effect of Mr J’s evidence contained in the letter dated 14 April 2004 about the sale of “AB” required the trial judge to have found that the real value of “AW” was much higher than that contained in Mr J’s original valuation as a result in particular of Mr J’s comments that:
The sale of the property “[AB]” sale date 6/11/03 would have had a major influencing effect on the sale of farming land in the district. This sale supported the sale price received for “[TD]” which was not now an isolated extremely high sale… This sale following the “[TD]” sale price set a whole new level of values for the district.
The first point to be made in discussion of this issue is that counsel for the husband contended that the argument now agitated about the effect of the value of the “AB” sale was not put to his Honour in the course of the hearing and reference to the earlier valuation of Mr J was a construct for the purpose of the appeal. The husband objected to the argument now being formulated, which he alleged was put for the first time.
Whilst the argument may have been articulated somewhat more robustly on appeal, we agree with the wife’s submission that this argument was put to his Honour at trial. That much is clear, in our view, from paragraph six of the written submissions on behalf of the wife which formed the submissions his Honour had before him. Paragraph six reads:
The submission that “no evidence exists of the value of “AW” on 26 November 2003 other than Mr [J]’s original valuation” is without substance. It is enough to point to the affidavit of Mr [J] and his explanation of the difference in price achieved by a contract in December and his valuation in August. The difference is explained by him as being due to a change in the market and the expectation of vendors and purchasers brought about by the sale of “[AB]” on 6 November. The market had changed. It had changed in November and before her Honour’s order. That is the unchallenged evidence of Mr [J]. Mr [J] was not cross-examined.
In our view, the import Mr J’s evidence contained in the letter of 14 April 2004 which was before his Honour and on which Mr J was not cross-examined was to the following effect:
(a)That the property of “AB” sold on 6 November 2003 would have had a “major influencing effect” on the sale of farming land in the district.
(b)This sale supported the sale price received for “TD” which was not now an “isolated extremely high sale.”
(c)“TD” sold at $508.53 per acre and “AB” sold at $563 per acre and both were purchased by the same agricultural company.
(d)This sale following the “TD” sale set a whole new level of values for the district.
(e)The effect of the “AB” sale was to considerably increase the expectations of vendors, and purchasers also had to reconsider their levels to buy in.
(f)The sale of “AW” could have been considerably influenced by the sale price of “AB”, which was purchased by an adjoining owner.
(g)The main influence on the value of the properties was the market evidence at the time and it could not be anticipated how much the purchases by the agricultural company would have had on the market in a very short time.
In our view, his Honour ignored the significance of some of the points made by Mr J. For example, it seems to us that the link between “TD” in Mr J’s original valuation and the sale of “AB” was important. The importance lay in Mr J’s original view that “TD” was an isolated sale at a higher price which was in fact not the case once the sale of “AB” had established a similar price. His Honour does not refer to this at all.
The import of Mr J’s evidence was that it was the “AB” sale taken together with “TD” which created the market evidence at the time of the orders and which then had the consequence for the sale of “AW” shortly after the orders at a significantly higher price than his valuation.
In paragraphs 51, 52 and 53 his Honour dealt with the question of the “AB” sale and Mr J’s comments about it in his letter of 14 April 2004. His Honour correctly noted that Mr J had said that the “AB” sale would have had “a major influencing effect on the sale of farming land in the district” and that its effect was “to considerably increase the expectations of the vendors, and buyers had also to re-consider their levels to buy in” and “could have had considerable influence on the eventual purchaser of “[AW]”.” While this is a correct description of what Mr J said we note again that his Honour did not relate it back to the sale of “TD”, which was the link between this valuation and the original one and emphasised by Mr J.
In paragraph 52 his Honour said:
However, Mr [J] did not purport to attribute any adjusted value to the property as at 26 November, or at all, and concluded by saying that, “It could not be anticipated how much influence the purchases by [the agricultural company] would have had on the market in such a very short time.”
At paragraph 53 his Honour noted that the failure by Mr J to undertake an exercise designed to attribute a value to “AW” at the date of hearing “and the broader nature of his supplementary observations” meant there was no basis upon which the Court could make a finding as to the value of the parties’ property at the date of hearing. His Honour said in particular “[t]he evidence relating to the “[AB]” sale would lead to the inference that a greater value may well have been assigned to the property at the date of hearing but, in my view, anything beyond that is but mere speculation.”

In our view, understating Mr J’s letter of 14 April 2004 led his Honour to give insufficient weight to the uncontested evidence of Mr J. Whilst he did not proffer a view as to the precise value of “AW” at the date the orders were made, the matters we have referred to in paragraph 61 indicating the sale of “TD” at $508.53 per acre, the sale of “AB” at $563 per acre and Mr J’s comments that the sale of “AB” following the sale of “TD” “set a whole new level of values for the district” and would have had a major influencing effect on the sale of faming land in the district was not “mere speculation.” We agree with counsel for the wife’s submission that his evidence is only consistent with the conclusion that following the “AB” sale the value of “AW” as at 26 November 2003 was well in excess of $328 per acre and indeed in excess of $500 per acre.
A difference in value of something in the region of $200 per acre would lead to a difference in value of $1,780,080. We agree with the submission of counsel for the wife to the effect that the sale of “AW” at a value of $2,650,000 was corroborative of the value of the property at the date of hearing (as established by the “TD” and “AB” sales) and not a factor to be disregarded because it had occurred after the making of the orders.
Further, when considering whether there has been a miscarriage of justice as required by s 79A(1)(a), there is no requirement as submitted by the husband for his Honour to have found the precise value of the property of “AW” as at 26 November 2003. It was sufficient for his Honour to have found, as in our view he should, that the sales evidence prior to 26 November 2003, and confirmed by the subsequent sale of “AW”, was not speculative but led to the inevitable conclusion that on the balance of probabilities “AW” had been undervalued by at least $1,000,000.
We agree with the submission of counsel for the wife that his Honour appears to have taken account of the sale of “AW” after the making of the consent orders as an indication that there were changes in the value of the property subsequent to the orders. In paragraph 61 his Honour says:
Changes in the value of property subsequent to settlement are not only common, they are inevitable. Indeed, in recent times, stark fluctuations in real estate values over relatively short periods of time have been the subject of wide publicity. There are many reported decisions relating to fluctuations in value and such circumstances have never, by themselves, provided a basis to set aside final property orders.
We think this misunderstands Mr J’s evidence that the relevance of the sale of “AW” was not that the price had increased since settlement but rather that it was corroborative of the value of the property at the date of settlement established by the sale of “TD” and “AB”. We conclude that his Honour was not entitled to dismiss Mr J’s evidence in the letter of 14 April 2004 about the effect of the sale of the “AB” property as “mere speculation” and to ignore the corroborative effect of the sale of “AW” to a purchaser who was apparently not anxious, so soon after settlement.
Mutual mistake or misunderstanding based on a concession made, or on an agreement reached leading to a result which is not appropriate nor just and equitable can lead to a finding that there has been a miscarriage of justice under s79A ([M] and [M] [2003] FamCA 1304 per Kay, Holden and Monteith JJ).
At paragraph 55 of his reasons for judgment the trial judge found on the balance of probabilities that the wife was aware of the sale of “AB” prior to concluding negotiations and well prior to the Court appearance on 26 November. This finding was not challenged and we accept that the knowledge of the “AB” sale by the wife left it open to her to obtain a further valuation from Mr J if she wished.
In this case, the “AB” sale did not of itself lead to a mutual misunderstanding about the value of “AW”, but the question of whether in combination with other factors it combined to create a miscarriage of justice is still to be considered in light of the other grounds of appeal. Suffice to say that in relation to the value of “AW” at the date of the hearing, the evidence about the “AB” sale should have led his Honour to find on the balance of probabilities that “AW” was likely to have been worth at least $1,000,000 more than the figure presented to her Honour when the consent orders were made. His Honour was in error in failing to appreciate the evidence of Mr J on this point.

Discussion of grounds 1, 2, 7, 11, 12, 13, 14, 18, 20, 21, 22 and 23

In his written submissions, counsel for the wife addressed grounds 1, 2, 7, 11, 12, 13, 14, 18, 20, 21, 22 and 23 together. Those grounds are:

Ground 1: that the trial judge erred in finding there was no evidence to conclude there was a miscarriage of justice at the time of the order of Justice O’Reilly on 26 November 2003 as a result of the orders made on that day to enliven the discretion of the Court to vary those orders; and

Ground 2: that the trial judge erred in finding (paragraph 62 of the Judgment) that in the absence of mala fides the fact that “[AW]” sold at a higher value after settlement with the consequence that, on the subsequent figures, the wife received less than what appeared to be her proper entitlement at the time the matter was before the Court, cannot of itself, be a basis to set aside the property orders. By so finding, the trial judge was led into error in failing to find that there was a miscarriage of justice capable of remedy under Section 79A of the Family Law Act inter alia:

(a) the Honourable Justice O’Reilly was led into error by being provided with a mistaken statement of agreed facts, particularly as to the value of “AW”;

(b) the error was of a very serious nature;

(c) to fail to remedy the error and leave the husband with a grossly disproportionate share of the parties’ property undermined the integrity of the judicial process; and

(d) where a concession was made by the parties and/or an agreement reached based on a fundamental misunderstanding and that misunderstanding has led to a result which is neither appropriate nor just and equitable in property proceedings it is properly within the discretion of a judge hearing an Application under Section 79A of the Family Law Act to find that there has been a miscarriage of justice; and

Ground 7: That the trial judge erred in finding (paragraph 33):

(a) that the husband did not regard the purchaser as a genuine purchaser;

(b) that the husband did not believe the offer was a true offer; and

(c) that the husband rejected the proposition of an offer of $2.3 million out of hand; and by doing so, elevated the husband’s opinion that the said offer was disingenuous to a fact despite other evidence to the contrary, including the evidence of Mr [H] that the offer was too low; and

Ground 11: That the trial judge erred in failing to take account of the impact that disclosure of the authority to sell (referred to in paragraph 41) would have upon the issues of value, intent or deliberation of the wife; and

Ground 12: For the reasons detailed in the last 2 paragraphs the trial judge erred in finding the evidence of the expression of interest was to no effect (paragraph 42); and

Ground 13: The trial judge erred in finding (paragraph 43) the husband was not under any obligation to disclose a disingenuous offer to buy a property that was not for sale; and

Ground 14: That the trial judge erred in finding (paragraph 45) there was nothing to disclose to the wife and that there was no suppression of evidence by the husband; and

Ground 18: The trial judge erred in finding (paragraph 59) the Court cannot draw any adverse inference against the husband from the fact that the property subsequently sold for a higher value; and

Ground 20: His Honour erred in finding (paragraph 32) that the husband’s agent’s authority was limited to one only inspection; and

Ground 21: His Honour erred in finding (paragraph 34) that after the one off inspection the husband’s agent did not have any on going authority to market “[AW]” for sale; and

Ground 22: His Honour erred in finding (paragraphs 39 and 40) that there was no listing of “[AW]” for sale; and

Ground 23: His Honour erred in falling to find a miscarriage of justice on grounds of “any other circumstance” or on the grounds of suppression of evidence.

In the main these grounds relate to the question of:
(a)whether the husband was under an obligation to disclose the offer to purchase “AW” prior to the consent orders for $2.3 million;
(b)whether his Honour’s findings
(i)relating to the husband’s view of the genuineness of the offer; and
(ii)the husband’s version of the agent’s authority and the listing of “AW”
were open to him on the evidence;
(c)whether singly or in combination this constituted a miscarriage of justice.
No point was taken at trial or on appeal about the admissibility of the evidence of the offer. The trial judge recorded that it was an agreed fact that an offer of $2.3 million had been made to the husband prior to the consent orders and that it was relevant and admissible “at least as to the state of mind of the husband”.
In Blake & Blake [2007] FamCA 10 the Full Court cited with approval the decision of Guest J in Weatherall and Weatherall and Others (2006) FLC ¶93-261 in which Guest J provided a comprehensive analysis of the authorities relevant to the issue of whether evidence of an offer can be relied on in arriving at a value for real property. In the course of that analysis his Honour pointed out that the issue had recently been considered by the Full Court of the Federal Court in Cordelia Holdings Pty Ltd v Newky Holdings (2004) FCAFC 48, with the following observations being made by that Court:
128. It seems clear to us the decision of the High Court in McDonald, as applied by single justices of the High Court in James Patrick & Co Pty Ltd v Minister of State for the Navy … and Gregory v Commissioner of Taxation (Cth) … is determinative as to whether it is an error to take into account evidence of offers. Whatever weight may be properly given to evidence of offers for limited or general purposes, it is clear that such evidence is not permissible as direct evidence of value.
129. Insofar as the trial Judge used the evidence in that way he was, we consider, in error in doing so. To the extent that such evidence may be admissible in a general way, as to which see Wilcox J in Goold v Commonwealth … and Heerey J in H v Amadio (No. 1) …, it provided an insufficient additional basis upon which a conclusion as to value might have been arrived at. Moreover, even if such evidence is used in a general way, it would only be used if it were accompanied by an assessment of relevant factors such as the genuineness of the offer and whether it was made at arms length (see Goold at 60).…’
In this case the concessions about admissibility were in our view properly made. The evidence of the offer was not led to establish the value of the property in question. Its relevance, if it was required to be disclosed by the husband to the wife, would be to put the wife on notice that there was a buyer who had offered to pay significantly more for the property than the valuation.

Was the finding that the husband did not believe the offer was genuine open to his Honour?

In discussion with counsel, a further question arose as to whether the obligation to disclose material facts was an objective or a subjective test. The issue arose because of his Honour’s finding that he accepted the husband’s evidence that he did not regard the purchaser or the offer as genuine and on the basis of that finding, absolved him from the obligation of disclosure. In paragraph 43 his Honour concluded “[i]n my view, the husband could clearly not be under any obligation to disclose a disingenuous offer to buy a property that was not for sale.”
Both counsel for the husband and the wife made supplementary written submissions on this issue. Counsel for the husband submitted that a subjective belief was sufficient to meet any obligation of disclosure the husband might otherwise have had and said in particular:
To find otherwise would impose a duty on the husband and the wife to communicate to each other every piece of information they hear about, no matter how trivial or far-fetched it may be. If nothing else, such an obligation would cause an unacceptable escalation of legal costs as each party and his lawyer is forced to sift through the information communicated to their opponent.
Counsel for the wife relied upon Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55 at 63 per Brett LJ, which requires a party to disclose every document which would not only be evidence upon the issue, but which also may either directly or indirectly enable the party requiring disclosure either to advance his own case or damage the case of his opponent. Counsel further relied on the decision of Menzies J in Mulley v Manifold (1959) 103 CLR 341 at 345 (in fact at 343), where his Honour held that if it appears that a party when making discovery “has excluded documents under a misconception of the case”, then further discovery will be ordered.
Thus, it is submitted on behalf of the wife that an honest but erroneous determination of relevance does not discharge the obligation to make discovery or disclosure and further that the ultimate significance of the fact or document in light of other matters is for the court, not the litigant, to determine. We agree with this submission. Relevance is an objective, not a subjective test to be determined in the context of the factual matrix of the case.
The evidence upon which his Honour found the husband did not believe the offer to be genuine is important because it also deals with the husband’s knowledge of the sale of “AB” which is directly relevant to the offer. At page 1025 of the appeal book the husband was cross-examined by counsel for the wife about information he was given by Mr H, the agent, about “AB”.
MR NORTH:         Did he speak to you about “[AB]”?
[THE HUSBAND]:       On 13 November I don’t think I spoke to him. He spoke to me about “[AB]” when I was         down on a previous occasion.
MR NORTH:                 On the 7th or 8th did he?
[THE HUSBAND]:       I think it was around that time, yes, yes.
MR NORTH:                 And what did he tell you about “[AB]”?
[THE HUSBAND]:       He said it had been sold. That the two – there was        a kerfuffle. That the two losing – not that it was        passed into two buyers and – yes, before they      could make another bid it was sold to a third       buyer. He told that the two buyers – the two   buyers that missed out – one was [LC] on one block, and [RD] on the second block, [RD] on the    second block.
MR NORTH:                 Yes?
[THE HUSBAND]:       And that was the end of the conversation.
MR NORTH:                 Did you have a subsequent conversation with him        about “[AB]”?
[THE HUSBAND]:       I would have had a lot of conversations with [Mr          H]. “[AB]”was the talk of the district. I can’t    remember any specific conversations with           [Mr H] but it certainly would have been     brought up. Everyone was talking about it.
MR NORTH:                 And everyone was talking about the unusual      nature of the sale?
[THE HUSBAND]:       Yes.
MR NORTH:                 And how good the price was?
[THE HUSBAND]:       Yes.
MR NORTH:                 And ---?
[THE HUSBAND]:       ---If that – sorry, can I interrupt – if that was the          true price because there was nothing definite    about price and even now nobody knows the true price.
MR NORTH:                 And you certainly would have – did [Mr H] ever           suggest to you that what happened at the      “[AB]” sale was confirmatory of what the prices were like at that time?
[THE HUSBAND]:       For good country, yes.
MR NORTH:                 Yes. Like “[AW]”?
[THE HUSBAND]:       “[AW]” is not in the same class as “[AB]”.        “[AW]” is nowhere in the same class as                “[AB]”.
MR NORTH:                 Whether it’s in the same class or not did he say to       you that it confirmed prices were high?
[THE HUSBAND]:       I can’t recall him saying that specifically but it would have been the general tone.
MR NORTH:                 Yes?
[THE HUSBAND]:       [The agricultural company] had caused a frenzy.
MR NORTH:                 And did he at any point tell you and this before 14 November – did he suggest to you a price per     acre for your property?
[THE HUSBAND]:       I certainly can’t recall and I certainly wasn’t      interested.
MR NORTH:                 I suggest to you that he did?
[THE HUSBAND]:       Well I can’t recall. I really can’t recall because           there were prices being bandied around    everywhere.
MR NORTH:                 And I suggest to you that he indicated that there           was a price you could get for your property of in     excess of $500 per acre?
[THE HUSBAND]:       I can’t recall.
MR NORTH:                 So he may have said it?
[THE HUSBAND]:       May have, may not. There were figures coming           from everywhere.
MR NORTH:                 And he may have said it to you before 14          November?
[THE HUSBAND]:       I really don’t think I had a lot to talk to [Mr H] up         to 14 November.
MR NORTH:                 And you can’t recall whether he did or he didn’t;          isn’t that what you’re saying?
[THE HUSBAND]:       There were calls to-ing and going all the time but        specifically I can’t recall a definite call leading    up to 14 November. I certainly had a call in         Brisbane with him but after that I don’t know.
MR NORTH:                 Now, you mention in your affidavit of 5 July that         there was a person who proposed an offer of $2.3       million on “[AW]”?
[THE HUSBAND]:       Yes.
MR NORTH:                 However you didn’t regard it as genuine and you          didn’t believe it was a true offer?
[THE HUSBAND]:       And I wasn’t interested in it.
MR NORTH:                 Well, you weren’t interested?
[THE HUSBAND]:       I wasn’t interested in it.
MR NORTH:                 When was the offer made?
[THE HUSBAND]:       I think – I think it would have been early            November, I think, early November.
MR NORTH:                 And it was communicated to [Mr H]?
[THE HUSBAND]:       Yes, it came from [Mr H].
MR NORTH:                 And it was as a result of that inspection; was it?
[THE HUSBAND]:       Yes.
MR NORTH:                 And [Mr H] didn’t think it was enough; did he?
[THE HUSBAND]:       Well, I don’t know what [Mr H] thought. I         know what I thought.
HIS HONOUR:             That was the point I was going to raise. The      question was in that form to ask what was in [Mr H]’s mind rather than in expressions.
MR NORTH:                 (Indistinct) perhaps I’ll ask it this way.
HIS HONOUR:             Yes.
MR NORTH:                 Did [Mr H] tell you that he didn’t think it          was enough?
[THE HUSBAND]:       I can’t recall. I just ---
MR NORTH:                 He could have ---?
[THE HUSBAND]:       I knocked it back ---
MR NORTH:                 You knocked it back?
[THE HUSBAND]:       I said I’m not interested, end of story.
MR NORTH:                 All right. Now, did you communicate the fact of         that offer and your rejection of it to my client.
[THE HUSBAND]:       No.
MR NORTH:                 At any time?
[THE HUSBAND]:       No.
MR NORTH:                 Did that offer affect your opinion of the value placed on “[AW]” by Mr [J]?
[THE HUSBAND]:       It’d certainly raised the bar a bit but it wasn’t a figure that we’re talking contract or anything.    That figure could have gone out the window. It was a verbal offer over the phone. I didn’t put much credence on it at all because I wasn’t       interested.

At line 16 it was put to the husband:
MR NORTH:                 [Mr H] told you before 14 November I suggest you could get in excess of $500 an acre.
[THE HUSBAND]:       Every agent was telling me wild figures. Agents          do that to get your work.
MR NORTH:                 You knew, didn’t you, that there was a     disappointed bidder at the “[AB]” sale?
[THE HUSBAND]:       Yes but I didn’t know it was [Mr S].
At page 1029 of the appeal book at line 36 the husband was asked:
MR NORTH:                 You received an offer of $2.3 million in early November which you rejected out of hand?
[THE HUSBAND]:       Yes.
MR NORTH:                 Yes?
[THE HUSBAND]:       Rejected it the minute it hit. Immediately.         Because it - I knew – knew the buyer was playing games with me. He was interested in “[AB]”…
Mr H, the agent who had been dealing with the husband prior to the consent orders, was called by the husband and cross-examined by counsel for the wife. At page 90 of the transcript (appeal book page 1006) Mr H was asked (at line 12):
MR NORTH:                 Well, did you offer some indication by way of inducement as to prices you think you might be         able to achieve for him?
[MR H]:  Somewhere along the line, I did say that I          believed it would be in excess of $500 an acre.
MR NORTH:                 $500 an acre? Which one – “[AW]”?
[MR H]:  “[AW]”, yes.
---
MR NORTH:                 How many acres is “[AW]”, do you         remember?
[MR H]:  5035 maybe. I have to also say that it seemed to         take him by surprise when I said that amount and          he didn’t want to do anything.
MR NORTH:                 It’s going to be roughly around 2.5, just over,     isn’t it?
[MR H]:  You’re right. 17,000 over 2.5.
---
MR NORTH:                 Were you aware of the sale of “[AB]”…?
[MR H]:  Yes, I was.

---

MR NORTH:                 How soon after the sale would you have known            about it? About?
[MR H]:  “[AB]”? I was at the auction but the ---
MR NORTH:                 It was passed in?
[MR H]:  Yes, so I could only guess at what it may ---
MR NORTH:                 What was it passed in at, a pretty good price?
[MR H]:  Yes, it was. Yes, both of the blocks were well –           well one was well in excess of 500 and the other        was passed in a bit over.
MR NORTH:                 A bit over?
[MR H]:  Mm.
MR NORTH:                 And you certainly have had that in mind, would you not, when you spoke to [the husband] on 13 November?
[MR H]:  Yes.
MR NORTH:                 That must have looked like a pretty good sale in           the district?
[MR H]:  It was. I would think at the time it was the         highest money made.
MR NORTH:                 And do you agree altered expectation in the      district as to prices and the value of land or---?
[MR H]:  No, I think it – all I can do is just give my feeling         on this but I think it just set in people’s mind    where they thought the market had gone. I think it was just confirmation where things were going.
MR NORTH:                 Confirmation were [sic] things were going?
[MR H]:  Yes.
MR NORTH:                 So was there a feeling before that sale that prices        were up around that region?
[MR H]:  Just talking to people there seemed just seemed          to be a lot of people that had a look and a lot of people were interested and so that was going to    drive things higher.
MR NORTH:                 Well you obviously at the time were following the market pretty close?
[MR H]:  I was representing somebody who’d had a look at         “[AB]” so I’d been over the aggregation with      them and had a look, yes.
MR NORTH:                 But you were dealing in real estate in that market         at that time?
[MR H]:  Yes.
MR NORTH:                 And keeping an eye on the market?
[MR H]:  Yes.
MR NORTH:                 What was your reaction to the “[AB]” property?
[MR H]:  Just from what I’d heard from people what was happening. As to me it sort of---
MR NORTH:                 (Indistinct) did it?
[MR H]:  Yes.
MR NORTH:                 That this is where the market is sitting?
[MR H]:  Yes.

At page 90 of the transcript (appeal book page 1008) Mr H was asked (at line 10):
MR NORTH: And indeed if you had to put a date on when you floated the figure of $500 passed [the husband] I suggest to you it was likely to have been on or before 13 November?
[MR H]: Could well be, yes.

---

MR NORTH: Do you recall him mentioning that he was aware of the sale of “[AB]”?
[MR H]: He asked me what I thought it made, I think, or I volunteered it, yes.

Subsequently Mr H was cross-examined about the offer that was made on 3 December (appeal book page 1015).
MR NORTH:                 You mentioned the first inspection, that was back        in October, was it?
[MR H]:  Yes
MR NORTH:                 That was the – and an offer was made in October,         was it?
[MR H]:  Um
MR NORTH:                 Or after that inspection?
[MR H]:  Yes, it would’ve been October or the first couple         of days in November.
MR NORTH:                 And what was that offer?
[MR H]:  I think from memory about 480 an acre.
MR NORTH:                 And what does that work out at? How many      acres, 5015 or something (indistinct)
[MR H]:  35, is it? I’m sure. 15, 35.
MR NORTH:                 That’s about 2.4
[MR H]:  Mm.
MR NORTH:                 You thought that was a bit low?
[MR H]:  I did.
HIS HONOUR:             Did you say “I did” or “I didn’t”?
[MR H]:  Yes, I – I thought prices should’ve been through           the – well through the 500.
MR NORTH:                 Did you tell [the husband] (indistinct)?
[MR H]:  And that’s what I said about “[AB]” being a        confirmation.
MR NORTH:                 Did you tell [the husband] about that offer?
[MR H]:  Yes I did.
MR NORTH:                 When did you tell him?
[MR H]:  Oh, I think it was made on a Sunday morning and          I gave it to him on the Sunday morning.
MR NORTH:                 When?
[MR H]:  Of – either the end of October, beginning of      November.
Mr H’s cross-examination, which was not impugned, was that the husband been told by him that prices were “well through the 500” and that in answer to the question whether he had told the husband, Mr H responded “That’s what I said about “[AB]” being a confirmation.” When asked “Did you tell [the husband] about that offer?” he replied “Yes I did.” In the husband’s cross-examination he did not dispute the conversation but simply said he could not recall but that there were “prices being bandied around everywhere”.
The effect of the husband’s cross-examination was as we have previously set out. It seems to us that what could be described as the high watermark of his assertion that he did not consider the offer was genuine was the passage from page 111 of the transcript (appeal book page 1027 at line 16):
MR NORTH: Did that offer affect your opinion of the value placed on “[AW]” by Mr J?
[THE HUSBAND]: It certainly raised the bar a bit but it wasn’t a figure that we’re talking contract or anything. That figure could have gone out the window. It was a verbal offer over the phone. I didn’t put much credence on it at all because I wasn’t interested.
When the cross-examination of the husband and Mr H are considered, the concessions made by both were:
·that Mr H informed the husband that he thought prices had gone through the $500 mark when the offer to purchase at $2,300,000 was made;
·the husband could not recall when pressed whether Mr H had informed him that he could get in excess of $500 per acre for the property and further responded when asked “Mr [H] had told you before 14 November, I suggest, that he thought you could get in excess of $500 an acre” with “Everybody – every agent was telling me wild figures. Agents do that to get your work.”
In view of these concessions, together with the husband’s contradictory evidence in his affidavit filed 5 July 2004 at paragraph 10 that “I did not want to sell “[AW]” and I did not discuss the price with the agent at any time”, it is difficult to see how his Honour concluded that “In my view, the husband could clearly not be under any obligation to disclose a disingenuous offer to buy a property that was not for sale.”.
We accept that the husband’s evidence was at all times he was not interested in selling the property but the essential question for his Honour was about the value of the property, not whether the husband was interested in selling it. Whether the husband wished to retain the property or not should not have affected relevant evidence about its value. Indeed, the very fact that the husband wanted to retain the property increased the obligation on him to act in good faith in relation to offers, an obligation that might not have existed were there to have been a sale at which the value of the property would have been tested on the market.

Was the husband required to disclose the ‘listing’ of “AW” for sale?

The trial judge found that the husband’s obligation to disclose the listing for sale, “if it arises at all”, could only arise if the fact of the listing was established. His Honour found that notwithstanding the terms of the appointment of a real estate agent (Exhibit 3), the husband did not intend that “AW” be listed for sale at any time prior to the consent orders. His Honour found that all he intended to do was to give Mr H a “one-off” authority to allow one person to inspect “AW” and did not intend either to sell the property or to give Mr H authority to market and sell. His Honour found that at all material times the intention of the husband was to retain “AW” and not to sell and that in those circumstances the husband “clearly cannot be under a duty to disclose something that did not occur, that is, a listing of the property for sale.”
His Honour then considered whether the husband was obliged to disclose the “one-off” authority to sell. His Honour found that in the context of his finding that the husband had no intention to sell, then such limited authority to inspect was not a material matter that had, or was likely to have had, any bearing upon issues of value, intent or upon the deliberations of the parties. In paragraph 42 of his reasons his Honour said “[i]n the context of no prospect of sale, evidence of the expression of interest was, similarly, to no effect.”
The wife’s counsel contended that the authority to sell was on its face a document purporting to give the agent that authority, corroborated by the fact it was extended by the document dated 3 December 2003. The wife submitted that whilst the husband might have been a reluctant vendor, to find that he had not “listed the property for sale” was simply contrary to the evidence. It was submitted further that the authority was signed 14 days prior to the parties entering into heads of agreement and 26 days prior to the consent orders and in the context of the wife having on 29 October 2003 filed an urgent application for the sale of all three properties and the wife having received a letter of demand from the mortgagee on 15 October 2003. It is submitted that the husband was under a clear obligation to disclose to the wife that he had appointed an agent to sell “AW”. The husband’s counsel contended that his Honour was entitled to make the findings he did as a result of the evidence given by the husband.
In order to assess whether the findings were open to his Honour it is necessary to consider the evidence (transcript page 115, appeal book page 1031). It seems clear that the document signed was at odds with the assertion by the husband that he had not given an authority to sell, but having regard to the evidence of the husband and the evidence of Mr H, whose evidence in our view is corroborative of that of the husband, we are satisfied that his Honour was not in error in making the findings that he did in paragraphs 39 and 40 of the reasons for judgment. His Honour’s conclusion is equally supportable on the evidence, namely that as the husband had no intention to sell then such limited authority to inspect was not a material matter about which he had an obligation to disclose.
We thus also reject the submission of counsel for the wife that the husband was under an obligation to disclose to the wife that he had appointed an agent to sell “AW”, consistent with his Honour’s finding that the agent’s appointment was not for the sale of “AW” but was limited to an inspection and an expression of interest.
The question however about whether he ought to have disclosed the offer is a different consideration which now needs to be addressed.

Was there an obligation to disclose the offer of $2,300,000 to the wife?

As disclosure is crucially relevant to the decision, the context in which the husband’s non-disclosure of the offer occurred needs to be carefully examined.
Counsel for the wife submitted “it is difficult to imagine that the wife would have retreated from her position of seeking the sale of all properties and resigned herself to permitting the husband to retain “[AW]” at its August valuation of $1,650,000 had she known either that the husband had appointed an agent or that he rejected an offer for $2,300,000.”
Counsel for the wife further submitted that the evidence of the offer was relevant because whether or not the husband wanted to sell the property, it might put the wife on a chain of inquiry as to whether the property had a higher value than that in Mr J’s valuation. This was particularly so, it was submitted, because the wife had reservations about Mr J’s valuation and thought the property was worth more.
The wife filed an urgent application on 29 October 2003 proposing she be appointed trustee for the sale of the three properties, stock, plant and equipment. An affidavit in support of that application was filed on 14 November 2003. She sought that she be appointed trustee for four reasons:
(a)there was interest in the properties from prospective purchasers;
(b)partnership debts were increasing;
(c)she did not consider that the husband was running the partnership as a going concern; and
(d)if the mortgagee exercised the power of sale, then the parties would be potentially prevented from obtaining the best possible price.
In paragraph 47 of the affidavit sworn on 14 November 2003 she said:
I have also been contacted by a Real Estate Agent…regarding the sale of the rural properties, this agent informed me of a local resident who was interested in purchasing “[AW]” for an amount well in excess of the valuation provided by Mr J. The real estate agent did not provide me with a name of the interested buyer or the exact price they were prepared to pay.
This comment was made in the context that the husband had signed an authority on 31 October, albeit that he said it was an authority for a one-off inspection. He had already been informed about the sale of “AB”, his evidence (transcript page 109) being that he had spoken to Mr H and was aware of the “AB” sale on 7 or 8 November. The husband’s evidence (transcript page 110) was that the offer of $2,300,000 on “AW” was made in early November. The evidence of Mr H was that he informed the husband before 14 November that property prices were in excess of $500 per acre.
Taking all those matters into account, it is difficult to see how the making of an offer for $2,300,000 shortly before the swearing of the wife’s affidavit, coupled with Mr H’s indication that he thought that “AW” was worth more than $500 acre, was not relevant.
This is so particularly because the husband did not wish to sell. It was not the fact of the potential sale to which the offer was relevant, his Honour clearly having accepted the husband’s evidence that he did not wish to sell, but the value of the property which the husband sought to keep. As we have already said, the fact the husband did not want to sell the property is irrelevant to the issue of whether someone was prepared to pay a higher price than Mr J’s valuation and placed an even greater obligation on the husband in our view to disclose this to the wife as he intended to retain the property. Whether he thought he would retain it in the long-term is again irrelevant in our view to the question of its value for the purposes of a just and equitable settlement between the parties. His Honour erred in our view by placing undue weight on the fact that the husband did not want to sell.
Having been alerted in the wife’s affidavit to the fact that she was aware that an offer had been made but was not aware of the price, in our view the husband was under an obligation to disclose the existence of a relevant offer, even if he did not think the offeror was genuine in his desire to buy the property.
In Suiker (1993) FLC ¶92-436 the Full Court held that the husband was under a duty to disclose to the wife before the consent order was made that he had applied for a redundancy and what his prospective benefits would be. At page 80,471 the Full Court (Nicholson CJ, Baker and Strauss JJ) said:
Under the Family Law Act 1975 the need for a resolution of disputes by negotiation and the consequent making of consent orders or the approval of maintenance agreements is an essential part of the legislation and the rules. Relevant provisions in force at the time included section 79(9) and section 87 of the Family Law Act 1975 and Orders 24 and Order 31 Rule 8 of the Family Law Rules. In our opinion, the necessity for full and frank disclosure of financial matters to the Court and to the other party are basic to the process of the Court and the fundamental aims of the financial legislation contained in section 79 of the Family Law Act 1975.
After citing from Dawson J in Harris v Caladine (1991) FLC ¶92-217 at 78,845-78,846 the Full Court said:
It is implicit in these passages that the consent to an order must be informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the “suppression of evidence” or by reason of “any other circumstance”.
As the Full Court said in Morrison v Morrison (1995) FLC ¶92-573 at 81,671:
The obligation to make a full and frank disclosure is regarded as so crucial to the functioning of this jurisdiction that the deliberate failure by one party to meet that obligation may result in the Court drawing adverse inferences against the non-disclosing party where there is material upon which such inferences can be based; see Stein and Stein (1986) FLC ¶91-779; Mezzacappa and Mezzacappa (1987) FLC ¶91-853; Giunti and Giunti (1986) FLC ¶91-759.
We note further what was said by Thorpe LJ in Burns v Burns [2004] EWCA Civ 1258; (2004) 3 FCR 263 at 267 that the effect of the decisions in Robinson v Robinson [1982] 2 All ER 699; [1982] 1 WLR 786 and Livesey v Jenkins [1985] 1 All ER 106; [1985] AC 424 is “to establish clearly that if a party is in breach of the duty of candour, whether by actively presenting a false case or passively failing to reveal relevant facts and circumstances, then the court has the power to set aside the order and do justice, whether or not the order was made by consent.”
Each case must be carefully considered in light of its own circumstances. The circumstances of this case were that the wife was concerned about the valuation of Mr J being too low and where she indicated that there had been an offer to purchase at a higher price. In those circumstances in our view the husband had an obligation to disclose the amount of the offer, even if he did not wish to sell the property or he thought that the offer was not genuine. It was not for him to determine the relevance of the facts and to make a unilateral decision not to disclose them, whatever his own views may have been.

We also query the evidentiary basis for his Honour finding that the husband had any real basis for regarding the offer as disingenuous, given the information provided to him by Mr H about the value of property after the “AB” sale. We accept that the husband may have had a subjective belief that it was not a genuine offer but his belief appears to have been more to the question of whether the purchaser was interested in “AW” or another property and not to the issue of the value of “AW”. That issue was not addressed by his Honour.

Did the trial judge wrongly ignore the evidence of the sale of “AW”?

Counsel for the wife referred to paragraph 22 of the reasons for judgment, in which his Honour said:
I accept the arguments of Mr North to the effect that, on the facts of this case, the evidence of offers made prior to the Consent Orders and evidence of the sale price after the event are relevant and admissible. The former is admissible at least as to the state of mind of the husband. It is an agreed fact that an offer of $2.3 million was, in fact, conveyed to the husband by Mr [H]. The sale price of “[AW]” is also an agreed fact. Whether any of those facts are indicative of value, or even relevant to the question of value, as at the date of the Consent Orders, are separate questions and questions to which I will return later. The issue of whether the husband was obliged to disclose such matters to the wife is a related question which needs to be determined on the facts of this case.
Counsel for the wife submitted that his Honour never in fact returned to consider these matters. We do not agree with that submission. His Honour found the offer to be irrelevant both as to value and any obligation to disclose. He found the sale after the orders to be done without bad faith and to constitute an unexpected windfall to the husband. He considered whether such a “windfall” could itself constitute a miscarriage of justice, and after considering the surrounding circumstances, found it did not. The question is whether his Honour was correct in so finding.
We are mindful of the fact that for the purpose of s 79A(1)(a) “a miscarriage of justice can only occur by reason of a fact or event which occurs before or at the time of the making of the order which is sought to be set aside” (Public Trustee (as executor of the estate of the late Gilbert) v Gilbert (supra). See also Bigg v Suzi (1998) FLC ¶92-799 at paragraph 6.39). Counsel for the wife relied upon what he asserted to be the disparity between “real value” and the value the Court had acted upon at the time of the consent orders, such a value being established in part by the events which had occurred before the orders were made and in part by the subsequent sale. Counsel for the wife’s point was that although the sale occurred after the orders were made, the circumstances which enabled the sale at $2,650,000 had already occurred by the date of hearing approximately a month earlier. We do not consider that his Honour properly addressed this point.
We agree that his Honour at paragraph 61 of the reasons for judgment appears to have considered the sale of “AW” as a change in the value of the property subsequent to the orders. We accept the submissions of the wife’s counsel that the proposition being put to his Honour was that the subsequent sale was not because property values had increased after the orders were made, but because it was confirmatory of changes to the value of the property occasioned by the facts that had occurred prior to the making of the orders, in particular the sale of “TD” and the sale of “AB”, coupled with the offer to purchase “AW” for $2,300,000.

Did a miscarriage of justice occur in this case?

A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process [original emphasis]” (Bigg v Suzi (supra) at 84,982). See also Suiker (supra); Public Trustee (as executor of the estate of Gilbert) v Gilbert (supra)). Whilst cases such as Suiker (supra), Holland v Holland (1982) FLC ¶91-243 and Gebert v Gebert (1990) FLC ¶92-137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation. As the Full Court said in Holland (supra):
To succeed in an application under sec. 79A, the wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlements under sec. 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.
We acknowledge the reality of the process by which parties reach agreement about many issues, and in particular about valuations, leading to consent orders. Where a single expert is employed, the valuation may be concluded months before a settlement is reached. There are many factors that may intervene during this period. The opinion expressed in the single expert report will often be the subject of negotiation, either through the formal intervention of the Registrar at a Conciliation Conference, some other formal intervention, or simply negotiation between the parties and their respective solicitors. During the intervening period the normal commerce of life will continue. Sales of properties, whether they be metropolitan or rural and regional, will continue and may affect the value of relevant properties. It would be incomprehensible to expect that in this arena, that valuations will always be updated on a regular basis.
There will thus be many cases in which an order will be made, by consent or otherwise, based upon an agreed valuation which has been prepared many months earlier. There may be factors in the intervening period which have affected the value so agreed. Unless there is some particular act which impugns the process by which the orders were obtained, the mere effluxion of time and the consequent changes in the market during that period, whether they be upward or downward, will not of themselves create an injustice, nor require either of the parties to make further investigations of value if they choose not to do so.
As previously discussed, in order for a claim under s 79A(1) to succeed, the Court must be satisfied that a miscarriage of justice has resulted. It is not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence. In Livesey v Jenkins (supra), Brandon LJ had this to say about the nexus between non-disclosure and setting an order aside (at 445-6):
I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.
We agree with this statement.
But s 79A is a remedial section designed to avoid a miscarriage of justice. Where there is some intervening factor known to one party, but not the other, this may lead to a result which is unfair and unjust and can be characterised as a flaw in the judicial process by which the orders were made. There may also be circumstances in which the judicial process could be impugned by a sale after orders were made and in the absence of bad faith by either party or suppression of some relevant fact, if it led to a significant miscarriage of justice.
However, the wife’s case does not rest solely on the subsequent sale. Her case also rests on a combination of events some of which occurred prior to the orders being made. The first of these was the sale of “AB” at a price consistent with “TD”, which led Mr J to say in his letter of 14 April 2004 that the sale “set a whole new level of values for the district.” Secondly, there is the offer made for “AW” of $2,300,000, which was not disclosed to the wife. The third is the sale of “AW” at $2,650,000 so proximate to the making of the orders.
In our view these factors did constitute a miscarriage of justice, as a result of “any other circumstance”, because the value of the net property, including “AW”, when the orders by consent were made did not reflect the real value of “AW” and possibly the value of the other properties. Further, the evidence indicates that the value of “AW” was at least $1,000,000 greater than the figure given to O’Reilly J with the effect that the amount the husband had to pay the wife resulted in her receiving a substantially smaller percentage of the property than that which the parties had submitted was a just and equitable outcome. The trial judge erred in not appreciating the relevance of the offer of $2,300,000 and the sale of “AW”.
In addition to this ground we are satisfied that his Honour erred in rejecting the wife’s contention that the husband was under an obligation to disclose the offer. The husband knew of the “AB” sale and whether or not he accepted or rejected the evidence of the agent Mr H, he had been advised by him that in his view after that sale the value per acre had increased to beyond $500. The subsequent offer was known to the husband but not to the wife and, as we have found, the husband had an obligation to disclose it, particularly in circumstances in which the wife had raised the possibility of the property being worth more. We are satisfied that the wife has also established the ground of suppression of evidence.

Should the Court exercise its discretion in favour of the wife?

The final matter we have to consider is whether, having established that there is a miscarriage of justice under s 79A(1)(a), by reason of suppression of evidence or any other circumstance, the Court’s discretion to set aside the orders should be exercised favourably to the wife.
The trial judge did not deal with questions of discretion, as he found no miscarriage, however under the heading of “Miscarriage of Justice by Reason of any Other Circumstance” he addressed some matters that would go to the exercise of the discretion not to set aside the orders.
His Honour in paragraph 65 of the reasons for judgment took account of the fact that after the consent orders, the wife deliberately conducted herself in such a way designed to create hardship for the husband and to create an advantage for herself in relation to the forced sale and acquisition of the property.
His Honour found that included in those endeavours to obtain advantage was the intention to possibly acquire “AW” at a value attributed to it by Mr J, notwithstanding her firm belief that the property was worth substantially more. His Honour referred to page 22 of the transcript. The wife conceded that by the time the auction authority was sought, which was after the consent orders were made, she had decided that she wanted the opportunity to buy one of the properties. She conceded that she had delayed in signing the auction authority so that she could have the opportunity to buy the property at Mr J’s valuation price. She confirmed that she wanted to buy it at that price and that she wanted to have the benefit of an advantage.
There are two things to be said about this evidence. The first is that what the wife was describing occurred after the making of the consent orders and so the question for his Honour was whether the wife’s subsequent conduct was relevant to whether or not the process was in some way impugned. We do not think that it is. Further, we see the wife as being in no different position from the husband. She was concerned the property was worth more, although at the time of the orders she had no evidence to establish it. She sought an advantage for herself by retaining the property, which appeared to her to have a higher value than that upon which the parties had settled. This was no different from the husband’s position, save that he was in receipt of the knowledge that an offer to purchase the property at $2,300,000 had been made. He too wanted the opportunity to retain the property which he knew had already been the subject of an offer considerably higher than that placed on the property by Mr J.
The question of whether or not the wife’s actions subsequently resulted in the husband selling “AW” was not germane to the question of its value at the time orders were made and whether a miscarriage of justice occurred at that point. We think that his Honour overstated in paragraph 65 the advantages to the wife in obtaining a lump sum and removing herself from the risks associated with dealing with the partnership creditors. That finding ignored the wife’s application filed on 29 October 2003 to be appointed trustee for sale. The sale of the properties would have realised their value and enabled creditors to be paid.
The establishment of a miscarriage of justice does not automatically result in the varying or setting aside of orders, the applicant must satisfy the Court “not just that there has been a ‘miscarriage of justice’ but also that the appropriate exercise of the discretion is to so order” (see Prowse and Prowse (1995) FLC ¶92-557 at 81,566).
In considering whether we should exercise the discretion to set aside the consent orders we consider the following to be relevant matters:
·the length of the parties’ marriage, and the wife’s substantial contributions as noted by the trial judge;
·the fact the parties’ agreed the wife’s entitlement was in the range of 53-55 per cent;
·the valuation basis on which the orders were founded was flawed by subsequent relevant sales evidence, the husband’s failure to disclose a relevant offer and the corroborative sale of the property itself so proximate to the orders;
·unless the orders are set aside the wife will be deprived of a just and equitable share of the parties’ property; and
·whilst the wife’s conduct after the orders was inappropriate, it was explicable in the circumstances and was not relevant to exercise the discretion against setting aside the orders.

The admission of fresh evidence

Counsel for the wife applied to introduce fresh evidence from Mr J as to the value of “AW” on 26 November 2003, if the Court was not persuaded by the wife’s submissions. The husband opposed the application. As we have found merit in the appeal, there is no need to consider that application further.
As counsel sought that we re-exercise the discretion of the trial judge, we would accordingly allow the appeal and set aside the orders of O’Reilly J.

I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 24 January 2007