BOYER & BOYER
[2014] FamCAFC 49
•3 March 2014
FAMILY COURT OF AUSTRALIA
| BOYER & BOYER | [2014] FamCAFC 49 |
| FAMILY LAW – APPLICATION FOR LEAVE TO APPEAL AGAINST INTERIM PROPERTY ORDERS – Where the trial judge made interim orders requiring the sale of a property in which the Appellant was resident – Where the appellant had effected unapproved modifications to the property – Where the appellant had failed to appear before the trial judge – Where the appellant had failed to comply with the trial judge’s directions to obtain an independent valuation of the property – Where the appellant was afforded procedural fairness by the trial judge – Where the proceedings could not progress without the sale of the house – Application dismissed. FAMILY LAW – APPLICATION TO ADDUCE FURTHER EVIDENCE ON APPEAL – Where the proposed evidence if accepted could not demonstrate that the order under appeal is erroneous – Where the Court could not be satisfied that had the evidence been before the trial judge it would have produced a different result – Application dismissed. |
| Family Law Act 1975 (Cth) |
| Adam P Brown Male Fashions Pty Ltd v Phillip MorrisInc (1981) 148 CLR 170 |
| APPELLANT: | Mr Boyer |
| RESPONDENT: | Ms Boyer |
| FILE NUMBER: | DNC | 90 | of | 2012 |
| APPEAL NUMBER: | NA | 41 | of | 2013 |
| DATE DELIVERED:: | 3 March 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 11 February 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 July 2013 |
| LOWER COURT MNC: | [2013] FCCA 900 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Gordon |
| SOLICITOR FOR THE RESPONDENT: | Central Australian Women’s Legal Service |
Orders
The application for leave to appeal filed 28 August 2013 is dismissed.
The applications in an appeal filed 11 November 2013 and 24 January 2014 are dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Boyer & Boyer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 41 of 2013
File Number: DNC 90 of 2012
| Mr Boyer |
Appellant
And
| Ms Boyer |
Respondent
REASONS FOR JUDGMENT
Introduction
In an amended notice of appeal filed on 28 August 2013, Mr Boyer (“the husband”) seeks leave to appeal against orders made on 26 July 2013 by Judge Turner.
The property orders are interlocutory in nature. The appellant, who appears for himself, correctly asked for leave to appeal. The orders in effect required that a residential property in A be sold. The husband resides in this property.
I heard the application for leave to appeal as a single judge pursuant to a direction issued by the Chief Justice on 22 October 2013 under s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
The main contention in support of the application for leave to appeal is that it would be unjust for the husband to be forced to sell the house prior to a final decision in relation to property settlement. The husband also complains that he had difficulty with the wife’s solicitors and his various proposals for obtaining valuations were rejected by them. Other parts of the facts relied upon in the relevant part of the notice of appeal seeking leave are difficult to understand and probably irrelevant to the appeal. However, it is appreciated that English is not the husband’s first language.
The husband’s central concern is that it would be unfair to have the house sold prior to the decision about the property settlement application, because he claims, the wife is entitled to only a very small percentage of the sale proceeds. Further, the husband stores his tools and building materials at the house and it would be very difficult for him to place them elsewhere. Ultimately he claims in the application for leave and in submissions that the sale of the house would render him homeless, that he suffers from mental illness and it would also affect the parties’ child.
This appeal was originally listed before me on 9 December 2013. On 11 November 2013 the appellant filed an application in an appeal seeking that the hearing date of 9 December 2013 be vacated so that the he could secure legal representation for the appeal. The respondent agreed to an adjournment of the hearing. On 21 November 2013, the Regional Appeals Registrar made orders by consent adjourning the appeal to 11 February 2014.
The grounds of appeal in the amended notice of appeal as contained are as follows:
1.[U]njust and out of proportion is to selling my home and the home of my son after all the hardship I went through to save my home against an unsocial, unfair and destructive behavior of the finance bank and now after only to get an prize of my home for the asset pool-(refer Application in case and supporting affidavit filed 13.08.2013)
2)[T]o get the value of my home for the property pool is not the way how“the applicants women legal service CAWLS aproched the matter and tried to froce me to sign some documents, what were not helpful in this matter.(refer documents filed 13.08.2013.)
3)I mentend to them many times the way how to find out the value of my home for the asset pool but they (CAWLS) always ignored my afford of an valuation, based on five existing valuation (from 2008 to the last one in feb.2012) from a licenced valuer and the work what I have done.
4)The work done by myself [qualified in the construction of buildings] is very substiantial (Value around $ 150000) but not finished. Proof and price can be provided from the work done. By selling my home an local smart builder get my home very cheap and finish it with a small money and sell it for big money and make a big profit form my five year suffering and hard work. The valuation price obtained by the auction(bargain price for bayer) is based on the work done by me from 2008 until today. If I present the cost of the work done, mortgage payments, insurance payments and borrowed money form the bank than is nothing left more in the asset pool. All this proceeding is than only based to destroy my life and the capacity to take care of my son.
5)I signed a paper(marriage certificate after 7 weeks) in an [foreign country T] dark subort, give this [foreign country T] lady a changes to a new life but after six month (try Relationship) she show her real face (refer Affidavit 24.04.2012, affidavit 24.07.2012 and affidavit 19.10.2012. She never contribute something financial and non financial to the house and not even for her living. I am now 56 year old and had in my life some relationships and I knew what is living like a married couple, oure relationship after the six month (a try) and then she was starting again (was convicted by the [foreign court] for illegal gambling) with big Gambling, her addiction and her actions had nothing more to do, with the principle and the nature of a married couple and her actions was so destructive that I not even call the Relationship as an business Relationship.—Facts are: that selling my home and at the End of the procceding she get maybe only a small amount for her contribution that would be unfair to me and my contribution for the future of my son.
6)I need for my work a lot of tools and have stored a lot of building material in my home. To lose my home I lose all my tools and the building material and under my current financial situation I can’t hire a storage I lose everything and I can’t afford to rent an place that mean I get forced to live as an homeless in the street. I am living since three years with depression( unsocial bank behaviour,fear of my relationship(could be ever day false accusation of family violence and unfair procceding form the women organisation CAWLS). I don’t know what I can do after destroying in my age of 56 years my living base.
Although the grounds of appeal make some reference to the child, the husband confirmed in his submissions that the main challenge in this appeal is to the order that the house be sold and those allied orders intended to effect such sale.
It is difficult to extrapolate proper grounds of appeal. It can be seen that the husband is complaining about two matters. First, that this order should not have been made separately and prior to the hearing of the property settlement application. Secondly, that there are matters which should have been taken into account and were not given sufficient weight by the judge. Thirdly, various contentions in relation to procedural fairness.
The relevant parts of the orders of 26 July 2013 are as follows:
Property
(5)That within 28 days from the date hereof the property situated at and known as [A] being the whole of the land more particularly described in Certificate of Title… is to be listed for sale by auction with a real estate agent nominated by the Wife at a reserve price as nominated by the real estate agent.
(6)That the Husband will assist the agent in all ways required by the agent and sign all documentation required of him to list the property for sale by auction.
(7)That the Husband will ensure the tenants currently living on the property are given the required notice to vacate the property as required by the Residential Tenancies Act (NT).
(8)That the Husband will abide by the recommendations of the agent as to presenting the property once it is ready to go on the market.
(9)That the Husband shall at his expense keep the property in a clean and tidy condition at all times it is on the market for sale.
(10)That the Husband will be bound by the advice of the agent as to the date of the auction, the sale price (“the reserve price”) and acceptance of offers to purchase and shall sign all documentation required of him in a timely manner.
(11)That if the property remains unsold, the parties are to do all acts and things and sign all documents necessary to immediately relist the property for sale by a further public auction, on a date nominated by the agent.
(12)That the conveyancer responsible for preparing all conveyancing documents to give effect to the sale, shall be [C Solicitor].
(13) That the sale proceeds be distributed as follows:-
(a) payment of all outstanding council rates and charges;
(b)payment of all amounts necessary to discharge the mortgage secured over the property;
(c) payment of conveyancing costs and any advertising costs;
(d)the balance to be held in the [C Solicitor] Trust Account pending written consent of the parties or a Court order to the distribution of funds.
(14)That between the date hereof and settlement of the sale of the property, the Husband shall continue to have the sole right to occupy the real property and during that right of occupation, the Husband shall pay and indemnify the Wife, all instalments pursuant to the mortgage and all rates, taxes and apportionable outgoings for the property as and when they fall due.
(15)That each party shall do all such things and sign all such papers and documents that are necessary to give effect to these property orders provided that in the event a party unreasonably fails or refuses to sign pursuant to these orders, then a Registrar of the Court pursuant to s.106(A) of the Family Law Act 1975 is authorised to sign any such document on behalf of the defaulting party.
The reasons of the trial judge in making this order are set out at [34 – 37] of the judgment and should be repeated here:
Should an order be made for the sale by auction of the [A] property?
34. Before considering this issue regard must be had to the relevant facts:-
a) The wife is aged 41 and is working part-time.
b) The wife was born in [foreign country T].
c) The husband is aged 56 and is currently unemployed, but has worked previously as [in the construction industry]. The husband occasionally has casual employment.
d) The husband was born in [foreign country G].
e) The parties met in [foreign country T] in November 2007.
f) The parties married in December 2007 and lived together in [foreign country T] for a few weeks.
g) At the commencement of the relationship, both parties had superannuation funds and the wife had a debt to the [foreign country T] Government.
h) The husband states that he had $50,000 in the bank when he first met the wife which was used towards getting the wife to Australia from [foreign country T], supporting her and her family financially in [foreign country T] with the balance used towards the purchase of the [A] property.
i) The husband returned to Australia in January 2008 whilst waiting for the wife’s visa to be approved.
j) The husband visited the wife in [foreign country T] for a few weeks on March 2008.
k) In March/April 2008 the [A] property, which is the main asset of the matrimonial pool, was purchased in the husband’s name for $203,000.
l) It is unclear as to what deposit was paid and how it was paid.
m) The husband borrowed 95% of the purchase price of approximately $189,000.
n) The financial arrangement between the parties was that the husband, through his income, would pay the mortgage and all outgoings on the [A] property and the wife, through her income, would contribute to the groceries, car repayments, provide assistance to her family in [foreign country T] and repay the debt to the [foreign country T] Government.
o) The wife arrived in Australia in June 2008.
p) [The child H] was born in February 2010.
q) In mid-2010 the husband attempted to have a financial agreement signed by the wife. The document was never executed.
r) The parties separated in January 2011.
s) At the time of separation the matrimonial assets consisted of the [A] property, superannuation and personal effect.
t) The matrimonial debts consisted of the mortgage and credit card debts.
u) Since separation the husband has remained at the [A] property and from time to time has received rental from renting out the top floor.
v) In February 2012 the wife lodged a caveat over the [A] property.
w) The husband has conducted what is classified by the husband as “construction” work on the property since 2008 at a value, on the husband’s estimate, of $150,000.
x) In October 2012 the [A] property was inspected by Mr [D] of [I] Valuation Services for the purpose of completing a valuation for Court purposes.
y) Mr [D] in his affidavit made the following observations of the [A] property:-
i) At [4] “…the property had been modified significantly from the original with the undercroft area of the original house filled in and extended to form a secondary occupancy”.
ii) At [4] “….there are many areas of the property which are incomplete…”.
iii) At [9] “….the external cladding is incomplete and therefore probably not up to code…”.
z) Mr [D] explained at [6]:
“In order to complete my valuation I need to know the legal standing of the various improvements, i.e. have the improvements been certified or are capable of certification as this effects the valuation.”
aa) When questioned by Mr [D] as to whether approval had been obtained for the building works he was informed by the husband, as deposed at [9] that “there are no plans, approvals or Certification for these extensions.”
bb) A search conducted on the Record of Administrative Interests and Information on 17 February 2012 confirmed the husband’s information recording that the last building permit was issued for the [A] property in 1991.
cc) Mr [D] noted at [7] that, whilst in many cases he can value a property “on the assumption that the improvements are compliant and certified”, with this property he could not make such an assumptions because as stated at [8]“….the renovations were not completed to a high standard” and at [9] “..in this instance the level of Certification and works required to bring the property to Certification” may have “a significant bearing on the market value of the property.”
dd) In his email to the wife’s legal representative dated 26 October 2012 Mr [D] explained that a valuation could not occur until a report was obtained from a Building Certifier.
ee) The husband has not made any attempts to obtain the necessary Certifications or approval, has not engaged a Building Certifier and has not arranged for a valuation to be conducted.
ff) The husband estimates that the [A] property is worth approximately $420,000 in its unfinished state.
gg) The husband estimates that once construction has been completed the house will be worth $500,000.
hh) The mortgage balance is approximately $185,000.
ii) The wife does not offer an estimate of value and is concerned that the unapproved renovations, which may need to be removed or demolished, has diminished the value of the [A] property.
35. It is against this background that I will now consider the issue as to whether an order for the sale of the [A] property is to be made.
Conclusion
36. The wife argues that in order to find out the true value of the pool, and therefore assess her position, it is necessary for the [A] property to be sold, and given the property’s condition, where improvements have not been approved, it needs to be sold by auction.
37. I find that it is appropriate for an order to be made for the sale of the [A] property by auction based on the following:-
a) The first question that must be asked, in property proceedings before the Court, as articulated by the High Court in Stanford v Stanford (2012) 293 ALR 70 at [79] and [80] is whether:
“it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
b) I find that after a three year marriage where a child has been born and the parties have enmeshed their financial affairs that it is just and equitable for the wife to make a claim for a property division pursuant to Part VIII, and in particular section 79, of the Family Law Act 1975.
c) The main asset in the matrimonial pool is the [A] property, which value is unknown, and where the mortgage has been minimally reduced in the last four years.
d) It is a likely outcome of a property division that any adjustment to be made in the wife’s favour could not be funded by the husband through a further loan on the [A] property as the husband is unemployed, the property in its current state may not be able to be further mortgaged and there are significant credit card debts in the husband’s name.
e) Therefore in order to satisfy any adjustment made in the wife’s favour, the [A] property will need to be sold to fund such an adjustment.
f) Further, because of the state of the property, and the continued non-compliance by the husband to either obtain approval for the building works, or obtain a Building Certifiers report to enable the property to be valued, the Court has no choice but to order the sale of the property so as to ascertain the extent of the pool available for distribution.
History of the litigation
It is essential in this matter to understand the litigation history, in particular as the husband complains of lack of procedural fairness.
As can be seen from [11] of this judgment the reasons of 26 July 2013 contain the history in considerable detail. It seems that the wife filed an application for property settlement in March 2012. As observed by the judge the proposed final property orders were vague asking that “the Court make orders as it considers just and equitable in relation to the division of the property and as to spousal maintenance”(at [4]).
On an interim basis the wife asked that the husband be restrained from dealing with the house and with his superannuation and for spousal maintenance.
In May 2012 the husband filed a response seeking division of the property as determined by the court and for the wife to repay to him the sum of $25,400 being moneys alleged to have been spent by her on a visa application, her family and gambling. The husband sought orders in relation to the child.
At an interim hearing in July 2012 the matter was listed for a conciliation conference and orders were made for disclosure. The date for the final hearing was allocated to 5 November 2012. On 21 August 2012 orders were made restraining the husband from dealing with the A house and his superannuation. The parties apparently attended a conciliation conference on 6 September 2012 but were unable to agree. On 20 September 2012 a family report was ordered and trial directions were made.
In October 2012 the husband applied for an adjournment and for the wife’s solicitors to withdraw from the proceedings. At about that time a valuation for the house was apparently attempted but as the judge observed could not be completed due to unapproved renovations on the A property by the husband (at [34]).
The family report was issued on 1 November 2012. It recommended that the child live with the wife, and over a period of time the child’s time with the husband progress from supervised day time hours and that the situation later be reviewed.
On 5 November 2012 the trial was adjourned to 17 April 2013 and 18 April 2013. Orders were made for the filing of affidavits by 26 March 2013 with the following notation:
That prior to the final hearing the husband is to provide to the wife’s solicitor an independent valuation for the property situated at [A]. Should the husband not provide a valuation prior to the final hearing and in the event an order is made for the wife to receive a share of the property pool then it is likely that an order will be made for the property to be sold to meet the wife’s entitlements.
The husband failed to attend a mention of the matter on 9 April 2013 and an order was made that the matter would proceed on 17, 18 and 19 April 2013 in A. The husband did not provide the valuation.
On 17 April 2013 the matter came before Judge Turner. There was no appearance by the husband.
The wife on that occasion was unable to be specific as to what order she sought because of the uncertainty about the value of the house. It was asked on her behalf that the house be sold by auction prior to the property trial so that the court could determine the value of the assets to effect a property division.
The transcript of the proceedings before her Honour on 17 April 2013 reveals that the solicitor for the wife had been in communication with the husband and that he was aware of the hearing. The solicitor gave sworn oral evidence and explained that the night before the hearing she had both emailed the husband sending the proposed orders and telephoned him leaving a message about the orders sought before the judge in relation to the sale of the house (see p 4, ln 41 – 46 of the transcript). It can be seen that although the husband did not appear he had notice of this application (albeit short) in addition to his knowledge of the notation made in the order of 5 November 2012.
It is important to appreciate that the judge could have made orders for final property settlement in the absence of the husband, but chose to make the orders as sought by the wife to ascertain the value of the pool.
It is not entirely clear reading the judgment what material the judge had available to her from the husband or the wife. However at [29] she described it as follows “[t]he material is voluminous and provides little assistance to the Court”. Further her Honour said:
31.The husband’s six affidavits are mostly long rambling ill-structured repetitious rants which are often difficult to understand and largely focussed on the husband’s argument that the wife has wasted large amount of monies during the marriage due to her gambling. The husband’s evidence on children’s matters is also almost non-existent.
33.[sic] There are a significant number of assertions made by each party, most of which are not supported by corroborating evidence, which makes findings not only difficult but almost impossible to make.
As will be seen later, in my view it is hardly surprising that in view of the poor state of the evidence, the failure of the husband to appear and comply with directions and no valuation of the house, the judge took the view that her Honour should make the orders from which this appeal is brought.
The husband applied for a stay of the orders from which he now appeals. A stay was granted on 27 September 2013, Judge Turner being aware that an appeal had been filed.
Further evidence on appeal
The husband has filed two applications seeking to adduce further evidence in the appeal. The first filed on 11 November 2013 and the second 24 January 2014.
The affidavit of the husband filed 11 November 2013 sets out his difficulties in obtaining legal advice and complains about the failure to successfully communicate with the wife’s solicitors especially in relation to the issue of the valuation.
The husband does not say that he will be able to obtain legal advice in the future. It does not explain why he did not appear before the judge on 26 July 2013. Otherwise, the affidavit appears to be directed to the husband maintaining that he will need more time to prepare for this appeal. An adjournment was granted by consent.
The husband also asked during his submissions in the appeal that an affidavit filed on 13 August 2013 be considered. This affidavit was filed after the judge made the orders on 26 July 2013. It does reveal that the husband sent correspondence to the judge including emails prior to the orders being made. It seems the husband was informed by the court that this was not satisfactory and he must attend in person. The husband in his submissions on appeal appeared genuinely perplexed as to why voluminous material sent to the judge had not been received and taken into account by her. It is unfortunate that the husband did not understand that he cannot simply correspond with the court and not attend.
The affidavit of greater significance and possible relevance was filed by the husband on 24 January 2014.
Attached is a valuation from Mr W. He explains that he was asked to prepare a valuation on 15 November 2013 and inspected the property on 19 November 2013. Mr W’s opinion, based on his inspection and comparable sales, is that the property has a market value of $320,000. Reference was made to the unapproved nature of some of the improvements and the poor presentation. It was also recommended that a building quote be obtained to assess the impact of removal and making good the parts of the dwelling that have not received approval. The cost of these works was assessed at $30,000. However, it was noted that should a builder quote a higher figure, there should be a further valuation.
In CDJ v VAJ (1998) 197 CLR 172 the High Court considered the power of the court in an appeal to receive further evidence upon questions of fact, which evidence might be given by affidavit. Although that case was in relation to children’s proceedings the decisions of their Honours is applicable generally. Their Honours McHugh, Gummow and Callinan JJ discussed at length the scope of s 93A(2) of the Act and said:
104In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. …
…
109One consideration is construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111…The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
(Footnote omitted)
Leaving to one side the question of whether the husband might have obtained the valuation when he was required to do so and prior to the hearing, the focus must be on the subject matter of the proceedings. The proceedings generally are in relation to property settlement and the application before her Honour was that the house be sold. The question then is did the proceedings before her Honour miscarry?
Further, if the evidence of the valuer is accepted would it demonstrate that the order under appeal is erroneous?
Finally, could this court be satisfied that had the evidence been before her Honour it would have produced a different result?
The answer to all of those questions is no. Her Honour gave extensive reasons as to why the property should be sold to which reference has been made. These reasons included not just the need to have a valuation of the property prior to sale but also the reality that a sale would be necessary to satisfy the wife’s claim for property settlement.
The husband’s application to adduce further evidence should be refused. It is not without significance that the valuer, Mr D attempted to provide a valuation he was unable to complete because of the lack of certification and the need for a report from a builder (at [34] of the reasons). In other words, he was of much the same opinion as Mr W.
As an aside, it should be noted that the order for sale is by auction. There is no reason why the husband could not bid at the auction.
Application for leave to appeal
To succeed in this application the husband must demonstrate that there has been an error of principle and/or a substantial injustice (See Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 177). As a question of leave is closely linked to the merits of a proposed appeal it is necessary to consider the likelihood of the success of the appeal. The principles guiding appellate intervention in exercises of discretion, as is this case, are well established. It is only necessary to repeat part of the decision of the High Court in House v The King (1937) 55 CLR 499 (at 504-505):
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the course of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Conclusion
Although as I have mentioned it is difficult to appreciate the actual grounds upon which the husband relies, it has not been demonstrated that there was a failure of procedural fairness nor that there were matters that the judge should have taken into account and failed to do so.
As to the argument that the judge should not have made a discrete order in relation to the sale of the property without hearing the whole of the property settlement application, that contention would in some cases have some attraction. However, in this matter the husband had failed to provide a valuation and failed to attend the court listings of the matter. The judge was left with little option but to make an order providing for a sale of the property so that she could determine what were the assets and then the percentage each party should receive of those assets. It would have been impossible for her Honour to make that determination in the absence of any idea as to the value of the property.
The capacity to provide a valuation was within the husband’s hands only as he was residing in the home. The appeal could not succeed thus leave should not be granted there being no error of principle or substantial injustice demonstrated.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Justice May delivered on 3 March 2014.
Associate:
Date: 3 March 2014
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