Cadman & Cadman
[2023] FedCFamC2F 630
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cadman & Cadman [2023] FedCFamC2F 630
File number(s): NCC 1794 of 2021 Judgment of: JUDGE BETTS Date of judgment: 10 May 2023 Catchwords: FAMILY LAW – Property proceedings – where the Court made final consent orders in accordance with the parties joint application – where a dispute arose concerning the proper interpretation of the consent orders – where the wife filed an enforcement application – where the wife contends that the husband had underpaid her in terms of her entitlements – where the husband contends that he has paid the wife her full entitlement – where the husband accuses the wife’s legal representatives of subtly re-drafting the consent order in a way which was different from earlier “Heads of Agreement” entered into by the parties following a mediation – where the Court considers that the terms of the consent order reflected a clear, communicated change to the “Heads of Agreement” and where the wife’s legal representatives were in no way misleading – where the Court considers that the wife’s legal representatives did not engage in any improper conduct in relation to the drafting or interpretation of the consent order – order enforced – just and equitable. Legislation: Commonwealth Evidence Act 1995
Family Law Act 1975 (Cth)
Real Property Act 1900 (NSW)
Cases cited: Taylor v Johnson (1983) 151 CLR 422 Division: Division 2 Family Law Number of paragraphs: 76 Date of last submissions: 1 May 2023 Date of hearing: 9 February 2023 Place: Newcastle Solicitors for the Applicant: Doolan Wagner Family Lawyers Solicitors for the Respondent: Turnbull Hill Lawyers ORDERS
NCC1794 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CADMAN
Applicant
AND: MR CADMAN
Respondent
order made by:
JUDGE BETTS
DATE OF ORDER:
10 MAY 2023
THE COURT ORDERS THAT:
1.A declaration that $140,885.88 remains payable by the Husband to the Wife in accordance with Order 5 of the Orders of 29 August 2022.
2.A declaration that Order 5 of the Orders of 29 August 2022 required the Husband and his Brother to discharge the CBA mortgage by repaying it from their own funds.
3.The proceeding is adjourned to consider any extant applications including costs applications to 9.30am on 14 June 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cadman & Cadman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
These reasons for judgment were delivered orally. They have been corrected from the transcript in order to make them easier to read.
Introduction:
The parties to these proceedings, Mr Cadman and Ms Cadman are Husband and Wife respectively. Their marriage broke down and on 29 August 2022 this Court made a final order affecting a division of their matrimonial property. That order was made upon their joint application and with their mutual consent, each party being legally represented at the time.
A dispute has since arisen concerning the proper interpretation of the consent order. That dispute has led these parties back to this Court. Fundamentally, it is the Wife’s case that the Husband has underpaid her in terms of her entitlements pursuant to the order. The Husband’s case is that he has paid the Wife her full entitlement and that no further moneys are owing.
Short litigation history:
This matter has a little bit of history which I will briefly address before turning to the dispute concerning the proper interpretation of the consent order.
On 25 November 2022 the Wife filed an enforcement application. The Husband opposed it.
The first return date of the application was 6 December 2022.
Mr Lacey, solicitor, appeared for the Wife. He had had the conduct of the proceedings on her behalf, including in the lead-up to the making of the consent order of 29 August 2022, so he was obviously very familiar with the matter. Mr Nash, solicitor, appeared for the Husband. He too had been intimately involved in the matter acting as the Husband’s solicitor throughout all of the relevant negotiations leading up to the making of the consent order.
When the matter came on, it was immediately apparent to me that the enforcement application was going to be bitterly contested. Mr Nash essentially submitted to me that the Wife’s solicitor had engaged in “sharp practice” (my terminology, not his). He accused the Wife’s solicitor of subtly redrawing the terms that had apparently been earlier agreed upon by the parties at a mediation a few months earlier and recorded in a document entitled “Heads of Agreement”. The consent orders of 29 August 2022 had been made a couple of months after the parties had entered into the Heads of Agreement.
Mr Nash effectively submitted that the re-drafting of the terms as embodied in the consent order of 29 August 2022 had misled the Husband as to what was in fact to happen, and also it would seem Mr Nash. As a result, to put it in the colloquial, the Husband had been “short-changed”.
Mr Lacey on behalf of the Wife vigorously denied any such allegations. He submitted that the consent orders were clear and that the parties had varied the earlier Heads of Agreement. He submitted that, essentially, everything had been “set out in black and white” in the consent order and that in fact Mr Nash was the one who was in error.
In the course of that hearing, the Husband foreshadowed a possible section 79A application to set aside the orders in the event the Court was against his contended interpretation of them.
In the circumstances, after hearing some argument from the legal representatives:
(a)I specifically ordered that the enforcement hearing be adjourned to 10 am on 9 February 2023 and that by 25 January 2023 each of the parties file and serve one consolidated affidavit of that party and of any other witnesses they relied upon;
(b)Although it is more of an aside than anything else, I should also add that I appointed Ms B as the Wife’s Litigation Guardian, it being apparent from the material that the Wife has suffered from significant depression and mental illness and has been unable to conduct the litigation herself. Indeed, the Wife had a Litigation Guardian at the time of the making of the consent orders of 29 August 2022, namely one Mr C, a professional;
(c)As part of the suite of orders made that day, I also ordered that if the Husband intended to bring a section 79A application to set aside the orders then he was to file and serve any such application by close of registry filing on 25 January 2023.
The Husband did indeed file an Initiating Application on 25 January 2023. He sought, inter alia, to set aside the consent order pursuant to section 79A of the Act, as well as seeking an order for the formal dismissal of the Wife’s enforcement application.
When the matter came before me on 9 February 2023, once again Mr Lacey appeared for the Wife and Mr Nash appeared for the Husband. I indicated on that occasion that my preliminary view was that Mr Lacey’s interpretation of the consent order seemed to be the one more likely to be accepted by the Court.
Indeed, I expressed a concern to Mr Nash that he may need to consider withdrawing from the proceedings, particularly in the event the Court decided that he may have erred in his interpretation of the consent order and/or in his advices to the Husband as to what the order might have meant in practical terms. Mr Nash took some instructions from the Husband and, in my view very sensibly and appropriately, sought leave to withdraw which was granted.
In the circumstances I adjourned all extant applications for further hearing at 9.30am on 1 May 2023 and I reserved the Wife’s costs of and incidental to the hearing that day. I also ordered that by 24 April 2023 the Husband was to file and serve a “Points of Claim” document, which pleaded the material facts said to support his section 79A application, including the specific subsection of section 79A relied upon by the Husband. This was necessary in order for the Wife to be able to properly meet the application.
The orders contained the following specific Notations:
A.At this stage the Court considers that the logical way in which to determine all extant applications is as follows:
a.Firstly, properly interpret the final Orders of 29 August 2022 so as to decide the question whether or not the Wife has in fact received her full entitlements under the order (Husband’s case), or whether she has not (Wife’s case).
b.If the Husband’s interpretation argument succeeds then the only “live” issue potentially remaining will be a costs application on his part (presumably).
c.If the Wife’s interpretation argument succeeds the Court will then need to consider:
i. The Husband’s section 79A application;
ii. The Wife’s enforcement application (in that order).”
B.At this point in time, the Court does not consider that it would be appropriate in the exercise of its inherent jurisdiction to restrain the wife’s legal representatives from continuing to act. That position may change upon delivery of the Points of Claim referred to in these Orders. The Court reserves any judgment about that issue to 1 May 2023.
C. The Court recommends that the parties retain Counsel at the next Court event.
D.In the event that the wife pursues a personal costs order from the husband’s lawyers the wife’s solicitor to notify the husband’s lawyers, at least, 14 days prior to 1 May 2023.
Following that Court event, the Husband engaged his present solicitors who filed a Notice of Discontinuance of the section 79A application. That is to say, the only “live” issues that remained were the proper interpretation of the consent order and the wife’s enforcement application.
Against that background, on 5 April 2023 the parties jointly emailed my Associate advising that there had been significant progress towards a resolution, but that issues remained regarding the interpretation of the consent order of 29 August 2022. The email goes on:
To resolve these matters the Wife has today filed a Further Amended Enforcement application seeking declaratory relief concerning the interpretation of order 3 and 5 of the consent orders. We attach an unsealed copy of this Application for your reference.
The parties kindly ask that his Honour determine the issues in chambers based on the Court documents and the submissions made by the parties’ lawyers on 9 February 2023. This would remove the need for an appearance by the parties’ lawyers. It is anticipated that the parties will be able to provide orders to his Honour detailing with costs and other issues shortly after his Honour’s judgment is received.
I have read verbatim from the email, but as for the last sentence I think the word “detailing” probably was meant to say “dealing”.
I had my Associate respond to that email, to indicate the Court was willing to proceed on the basis of the papers, but asking that the parties clarify what material the Court was asked to take into account.
On 19 April 2023 the parties again jointly emailed my Associate wherein they listed the following documents to be taken into account:
(1)Further Amended Enforcement Application of the Wife filed 5 April 2023;
(2)Affidavit of Ms B filed 30 January 2023;
(3)Affidavit of Mr C filed 11 August 2022;
(4)Affidavit of Mr Cadman filed 24 January 2023;
(5)The Wife’s Case Outline filed 7 February 2023;
(6)The Husband’s Case Outline, which was handed up in Court on 9 February 2023;
(7)The Wife’s objections to evidence; and
(8)The Wife’s tender bundle.
To this end, the Court was provided with the documents numbered 7 and 8 above, as well as an unsealed copy of the Husband’s Case Outline being document 6.
I then had some reservation about proceeding to determine the matter on the papers given that there were now formal objections to evidence, particularly given that those objections related to questions concerning the “without prejudice” communication privilege afforded by section 131 of the Commonwealth Evidence Act. In short, I did not want to be making a decision without the benefit of considered submissions from each party in respect of the evidential objections taken by the Wife to the Husband’s material. The matter therefore remained listed for mention on 1 May 2023.
On that occasion Mr Lacey again appeared for the Wife. Mr Huolohan solicitor appeared for the Husband. I raised my above concern with the parties. After I expressed those reservations, Mr Lacey took instructions and subsequently advised the Court that the Wife was withdrawing her formal objections to the material set out in the Husband’s evidence. That is to say, the Wife was no longer objecting to its admissibility pursuant to section 131, although the Wife’s position was that such evidence ought to be given no weight in any event as the order is plain on its face and the Court cannot derive any assistance from the evidence.
On that basis the Court reserved its decision.
Since reserving judgment, I have considered all of the material to which I have just referred; I have considered the matter and particularly, the terms of the consent order.
The consent order of 29 August 2022:
Relevantly, this order was entered into by the Husband, the Wife and by the Husband’s brother Mr D. The Husband’s brother was joined as Second Respondent because he and the Husband owned as tenants-in-common a property located at Town E in Region F and the orders provided for a transfer of that property to the Wife. It was, therefore, necessary to have Mr D join the proceedings, which he willingly did.
Relevantly, the orders provided as follows:
BY CONSENT IT IS ORDERED
Joining the Second Respondent
1. That the second respondent be added as a party to these proceedings.
The Joint Trust Account
2.Within 28 days of these orders, the applicant and first respondent are to do all things necessary to distribute the balance of the joint trust account – held by the applicant’s lawyers and containing the net sale proceeds of the former matrimonial home – as follows:
2.1. $525,000 to the second respondent; and
2.2.the balance to the first respondent by way of payment to her lawyer’s trust account, the details of which are as follows:
…
The First Payment
3.Simultaneously with order 2, the applicant is to pay the first respondent $358,125.
The Injunction
4.The applicant is restrained from withdrawing or transferring moneys from his CBA account […61] except in accordance with order 3.
The Town E Property
5.Simultaneously with orders 2 and 3, the applicant and second respondent are to transfer their interest in the [Town E] Property to the first respondent and discharge the CBA mortgage secured over it.
…
What subsequently happened reflects the difference in interpretation between the two parties.
How the order was interpreted:
The Husband applied $140,885.88 out of account …61 to pay out his half share of the mortgage over the Town E property which was then transferred to the Wife. This account was the subject of the restraint in order 4.
The Husband says that he was entitled to draw on account …61 to be able to pay out the mortgage in this way. He argued that his discharge of his half-share of the Town E property mortgage was to be “credited” against the cash payment of $358,125 that he was obliged to pay the Wife in accordance with order 3. That is to say, he submitted that the $358,125 he was obliged to pay to the Wife pursuant to order 3 of the order did not require him to pay the $358,000 in addition to discharging his half-share of the mortgage over the Town E property.
The Wife says that the practical effect of the Husband’s interpretation is that she was “short changed” by that amount ($140,885.88).
The Husband’s argument:
The Husband’s contended interpretation really rests upon those settlement discussions to which objection was originally taken and to which I will now refer.
In the Husband’s affidavit of 24 January 2023 he set out the relevant history of the negotiations culminating in the consent order. He referred to there being a mediation on 16 June 2022 with Mr G of counsel and he annexed the Heads of Agreement document, which appears as annexure “C-3” to his affidavit. The $358,125 cash payment from the Husband to the Wife appears as point 2 in the Heads of Agreement.
Importantly, point 5 of the Heads of Agreement stated that:
5.The husband and his brother are to sell the [Town E] Property in accordance with the following terms.
5.1. The brothers are to appoint the [H Real Estate] to conduct the sale.
5.2.The brothers are to sell the property in accordance with the methodology proposed by the [H Real Estate]. [A limitation as to the period the property is to be listed, or a mechanism for the sale price to be reduced to be agreed].
5.3.Upon the sale the brothers are to distribute 50 per cent of the net sale proceeds to the wife, excluding CGT for which the husband will remain liable.
That is to say, at the mediation on 16 June the agreement was that the Town E property would be sold. It was inevitable that the brothers’ mortgage over that property would have to be paid out upon sale and thus discharged; the Wife was to receive the balance proceeds.
For what it is worth, I also note that at that mediation there had been some debate about the value of the Town E property. The Husband, apparently, seemed to take the view that it was worth $790,000 and the Wife took the view that it was worth $1.05 million.
It is not an uncommon phenomenon in this Court that the value of property can sometimes be in dispute, particularly depending on who is retaining it. Indeed, I can almost invariably guess who wants to keep what property by looking at a Balance Sheet and seeing what value they have put on it, frankly.
Be that as it may, the point is there was some dispute about the value of that property and, ultimately, it was agreed to sell it and the wife to receive half the net proceeds.
Things changed subsequent to the Heads of Agreement and this is where things went awry in terms of the Husband’s understanding of what was going on.
Wife proposes a different basis for settlement:
On 27 June 2022 the Wife’s lawyers wrote to the Husband’s lawyers. There had been a minor skirmish about approaching the real estate agent for the Town E property that I don’t intend to go into - but effectively the letter came up with a different proposal. That is, it proposed a variation to the Heads of Agreement.
Relevantly, this is what the letter said:
Putting aside, for a moment, the issue of the sale, there would appear to be distinct advantages to your client and [Mr D] in transferring the [Town E] property to our client pursuant to consent orders - i.e. the avoidance of sale costs, CGT and capitalising on what your client appears to regard as an inflated valuation. As such, we would propose a settlement whereby:
1.your client transfer to our client the balance of the net sale proceeds of [Suburb J] held in trust, together with the balance of the CBA account […]61 (already agreed).
2.your client and [Mr D] cause the transfer of property and in so doing:
2.1 your client attend to discharging his half share of the joint CBA mortgage;
2.2our client pay [Mr D] $325,000, from which he would effect the discharge of his half-share of the joint CBA mortgage;
2.3 your client pay [Mr D] $200,000 on whatever terms the brothers believe are suitable in the circumstances.
…
The letter goes on, but I do not need to refer to the balance.
In other words, the Wife was saying there would be benefits in her acquiring the property from the Husband and his brother in terms of avoiding sale costs - CGT in particular would be something that would effectively be “rolled over” to the Wife from the Husband’s side of the Balance Sheet as a latent potential liability in the future. She would end up having to accept that. And clearly the Wife was also being a little bit strategic in the sense of “calling the husband’s bluff” (in terms of his contended value of the Town E property) or perhaps making “her own bluff” as to what the value of the Town E property was given that she said that the Husband appeared to regard her value as overinflated.
I might also add that the Husband’s brother obtained a benefit from the Wife’s amended proposal as well, in the sense that he was receiving $525,000 on this proposal, being effectively one-half of the gross value of the property on its highest valuation ($1.05M) without himself having to incur any of the sale costs. So there was actually a benefit to the Husband’s brother as well.
In any event, the letter proposed a change to the Heads of Agreement.
Mr Nash responded by email on 29 June 2022 and, relevantly, the email stated:
We are instructed our client remains willing for your client to acquire the [Town L] property for $1.05 million and we understand his brother is agreeable to this also but the $200,000 payment to your client remains our client’s obligation…
For the record, the “Town L property” is one and the same as the Town E property.
Mr Nash’s email concluded by saying:
We are instructed to give your client until 4.00PM Friday 1 July 2022 to decide whether she wishes to purchase the property at the price of $1,050,000. If not the property will then be placed on the market for sale at a price of $1,099,000. Should this occur our client will instruct the Agent to excluded [sic] the Wife for the purposes of the Agent’s Commission such that there will be no commission payable in the event the property is sold to the wife.
Mr Nash’s email did not directly respond to the Wife’s proposal that the Husband would discharge his half-share of the joint mortgage over the Town E property, nor did it specifically respond to the Wife’s proposal that the Husband’s brother be paid $525,000. The email was, to be fair, somewhat vague. It may well have been prepared by Mr Nash in circumstances where he was otherwise busy or unavailable. I note there was reference to him attending a funeral at Town K around this time. And I am not critical of Mr Nash. I just make the point that his response email did not directly answer all of the terms that the wife had proposed.
Probably for that reason, Mr Lacey responded by letter of 29 June 2022:
Our client is content to accept your client’s proposal subject to:
1.The transfer occurring pursuant to orders as follows:
1.1 The husband and [Mr D] transfer their interest in the property to our client and discharge the mortgage secured over it; and
(which is again effectively a repetition of the Wife’s earlier proposal in the letter of 27 June)
1.2 our client pay [Mr D] $525,000.
In other words, the Wife was willing herself to pay the Husband’s brother one half of the gross value of the property Town E ($525,000) rather than asking that the Husband contribute some of that money ($200,000) as she had earlier proposed.
In my view, the letter of 29 June 2022 from Doolan Wagner is quite clear. It is unequivocal as to what the offer was.
For reasons that I do not fully understand, and with all due respect to the Husband’s former solicitor Mr Nash, it simply does not appear that the Wife’s “changed goalposts” as it were, were detected by him.
I say that because consent orders were prepared in the terms that I have referred to earlier.
Those orders were also prepared with the benefit of the Court having the affidavit of Mr C, who was the Wife’s then-litigation guardian. Now, I pause here to observe that Mr C’s affidavit was filed on 10 August 2022. It was before the Court and formed part of the Court’s consideration when making the consent order. Mr C plainly and unequivocally in that affidavit annexes a Balance Sheet setting out the Wife’s understanding of the matrimonial property, as well as a schedule setting out the financial effect of the proposed settlement.
Now, the financial effect of the proposed settlement appears at page 8 of the affidavit and states clearly and unequivocally at item 13 that the husband retains as a liability his half-share of the CBA mortgage for Town E (stated at that time to be $127,511).
It is as plain as the nose on my face, it is there in black and white. There is nothing hidden. There is no subterfuge. There is no concealment. There is nothing “slippery”. Certainly there is not any “sharp practice” if I can use that expression. The affidavit sets it out in black and white.
My interpretation of the consent order:
The terms of the order itself I have already referred to. And in my view there is no confusion and no uncertainty about the order on its face. To be clear, while I have had regard to the material that the Husband’s lawyers have referred me to given that the Wife’s evidentiary objections were withdrawn, I do not see what difference it makes. In fact, if anything, that material only strengthens and supports the Wife’s case by reason of the correspondence that was sent from Doolan Wagner and, perhaps, most particularly, the affidavit of the Wife’s litigation guardian, Mr C, which is in plain black and white that the Husband is retaining that Town E mortgage liability.
The order, in my view, is plain and clear:
·Orders 2, 3, 4 & 5 were all to be effected simultaneously. (I agree with Mr Nash’s submission about that);
·Pursuant to order 3, the Husband was to pay the Wife the sum of $358,125. It does not state in order 3 that the payment was “less such amount as he needs to apply towards the CBA mortgage secured over [Town E]”. It does not say that. It says that the Husband is to pay the Wife that set amount. That is entirely consistent with the affidavit of Mr C and with the effect of the proposed orders annexed thereto;
·Moreover, in order 4 the husband was restrained from withdrawing or transferring moneys from the account except in accordance with order 3. Order 4 does not state that the Husband is restrained from withdrawing or transferring moneys from that account except in accordance with order 3 “or to meet his mortgage liability set out in order 5.” It does not say that.
In his submissions, Mr Nash was contending for words that do not exist in this order. He did so on the basis of the Heads of Agreement, but the terms of which had been varied and had been changed.
Separately, the only basis upon which Mr Nash could really argue for the Husband’s interpretation of the order was by reference to the wording of order 5, specifically the reference to the Husband and his brother having to “discharge” the mortgage. He contended that the “discharge” was not synonymous with payment of the debt secured by the mortgage.
In his written submissions filed on the husband’s behalf back when he was acting, Mr Nash submitted that, by reference to section 3 of the Real Property Act 1900 (NSW), a mortgage is a charge on land created merely for securing the repayment of a debt.
These are Mr Nash’s written submissions in this respect:
23.Just like the wife’s solicitor’s letter of 27 June 2022, their email of 29 June 2022 also fails to articulate a departure from the agreement reached at mediation. It does not introduce an expectation that the husband assume liability for the settlement of the loan secured by the mortgage over the [Town E] property.
I pause here to say I disagree with both of those sentences.
The submissions go on:
The husband submits his only obligation with respect to the mortgage pursuant to order 5 was to remove the encumbrance. In other words, he is not obligated to meet the $140,885.88 share of loans which it secured. This is more than mere semantics because a “mortgage” is defined in section 3 of the Real Property Act as “any charge on land (other than a covenant charge) created merely for securing the payment of a debt”.
24.The husband does not dispute a registered mortgagee will insist on the settlement of a debt secured by a mortgage before releasing the security and the husband does not submit that the security could have been released without the loans having been settled. But in the context of the factual matrix in this case the husband submits that consistent with the Heads of Agreement and the exchange of correspondence that the obligation for the settlement of the husband’s share of the loans fell to the wife.
25.The husband and his brother were the only persons with legal authority to do what was required to legally discharge the mortgage, i.e. the charge on the land. The orders are silent as to who is responsible for the settlement of the loans to CBA, but in light of the Heads of Agreement and consistent with section 3 of the Real Property Act 1900 (NSW) the only reasonable conclusion to be drawn is that the wife was to meet the husband’s share of that, namely $140,885.88.
(And in that regard he refers to a specific “vendor destination line” in the conveyancing transaction relating to the Town E property.)
I respectfully disagree with Mr Nash’s submission. In my view, it is absolute semantics to argue that the consent order’s reference to “discharging” the mortgage meant that the Husband merely had to make some arrangement with the CBA so as to be able to have the encumbrance removed without the debt being paid. In my view, the appropriate and logical interpretation of order 5 is that the mortgage was to be paid out at settlement. It would be artificially constraining the language of the order in question for me to read it in the way that the Husband proposes that I read it.
The complaint was made in the Husband’s written submissions that if the Wife intended a fundamental departure from the principal agreement reached at mediation, then it was incumbent upon her solicitors to have stated that in clear, precise and unambiguous terms. He says that did not happen and that it was not only open to the Husband to infer there was no departure, but there was no other inference to be drawn.
I disagree with that. I do not consider that the Wife’s legal representatives have engaged in any conduct that would be regarded as improper. I consider that the “goalposts were moved” by the Wife, but everything was done in broad daylight. The order was there to be seen and interpreted in the way that one would ordinarily and reasonably interpret it. The wording of the order is consistent with the plain meaning of the order.
Yes, the order is different to the Heads of Agreement. I absolutely accept that. But the Heads of Agreement was not the order that this Court made. This Court made the order in its terms, with the benefit of the affidavit of Mr C. This was the basis upon which the Court acted. It is, frankly, irrelevant to the Court what the parties intended in the Heads of Agreement.
At the end of the day, when it comes to interpreting the order, the order does not require, in my view, reference to extraneous circumstances for it to be able to be properly understood. If there was an error in the advice given by Mr Nash to the Husband, which with respect seems to be the case, then the Husband’s remedy lies elsewhere, but it does not lie against the Wife in this case.
I consider this to be an example of where the Husband made what could fairly be called a unilateral mistake of the kind identified by the High Court in Taylor v Johnson (1983) 151 CLR 422. And I particularly refer to the joint judgment of Mason ACJ (as his Honour then was), Murphy and Deane JJ at paragraph 14, wherein their Honours said:
A party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension.
The evidence in this case falls well short of establishing that the Wife deliberately set out to ensure that the Husband did not become aware of the existence of any mistake. Indeed, on its face the order is clear. The Wife was entitled to have that mortgage discharged. There were other offsetting benefits the Husband, and I might also add his brother, were receiving. I do not intend to delve into those beyond observing that varying the Heads of Agreement was not an entirely “one-way street”.
My point is that this Court made orders on a clear basis. The order is clear and I consider that the Wife has made out her case for the declaratory relief that she seeks. As I have indicated, the Husband may have a remedy. It does not lie against the wife.
CONCLUSION & ORDERS:
For these reasons the Court makes the orders and declarations set out at the commencement herein.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 10 May 2023
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