CALLOWAY & CALLOWAY
[2013] FamCAFC 148
•9 August 2013
FAMILY COURT OF AUSTRALIA
| CALLOWAY & CALLOWAY | [2013] FamCAFC 148 |
| FAMILY LAW – APPEAL – property |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) 1981 Act (Cth) |
| Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT: | Mr Calloway |
| RESPONDENT: | Ms Calloway |
| FILE NUMBER: | BRC | 11274 | of | 2009 |
| APPEAL NUMBER: | NA | 55 | of | 2012 |
| DATE DELIVERED: | 9 August 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 9 August 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 May 2012 |
| LOWER COURT MNC: | [2012] FamCA 411 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Linklater-Steele |
| SOLICITOR FOR THE APPELLANT: | Quinn & Scattini |
| COUNSEL FOR THE RESPONDENT: | Mr Looney QC |
| SOLICITOR FOR THE RESPONDENT: | Nita Stratton-Funk & Associates |
ORDERS
The appeal be allowed.
The appellant’s application to adduce further evidence be dismissed.
The orders made by his Honour Bell J made 23 May 2012 and amended 13 June 2012 be set aside.
IT IS ORDERED BY CONSENT
In substitution of the orders made by His Honour Bell J on 23 May 2012 and Amended 13 June 2012, the Court orders that following orders be made in relation to the Applicant’s Application for property orders pursuant to s79 of the Family Law Act.
Within 30 days from the date of these orders, the wife pay to the husband by way of bank cheque made payable to Quinn & Scattini Lawyers Trust Account the sum of $140,000.
In exchange for the payment to the husband of $140,000 pursuant to Order 5 (or earlier if required by M Bank in order to make available to the wife the funds necessary for her to make the payment contemplated by Order 5 above), the husband provide to the wife in registrable form all documents necessary to remove the caveat number … registered against the real property situated being the house in A (“the property”) being otherwise described as Lot 1 on Registered Plan …, County of …, Parish of … having title reference …
If the wife refuses, fails or neglects to pay to the Husband $140,000 within thirty (30) days of the date of these orders, then the property shall immediately be placed on the market for sale and the husband and wife use their best endeavours to conclude settlement of the sale of the property as soon as practicable and in that event orders 8, 9 &10 shall have effect.
Until such time as the property is sold:
a) The wife maintain the property in a presentable and saleable condition and
b) Maintain a full insurance cover for the property and
c) Ensure that all rates and mortgage repayments are paid as and when they fall due and
d) Facilitate inspection of the property by prospective purchasers; and
e) Ensure that real estate agents have a set of keys to enable such inspection to take place and
f) Shall indemnify the husband in relation to all outgoings, insurance, rates and mortgages associated with the property and in the event the husband meets any of these costs, same shall be reimbursed to him at settlement of the sale of the property.
The husband and wife do all such things and sign all such necessary documents to effect a sale of the property in the following manner:-
a) That the property be listed for sale by private treaty within 31 days of the date of these orders (now referred to as “the listing date”) with such agents as the parties may agree to appoint and in default of agreement as to the agent within seven (7) days of the listing date, with such real estate agent as appointed by the President of the Real Estate Institution of Queensland, the costs of and incidental to such appointment to be borne equally by the parties as and when the same fall due;
b) In the event that the real estate agent appointed pursuant to Order 9(a) above advises the husband and the wife in writing that any repairs or maintenance are required to be undertaken in order to place the property in the condition specified in Order 8(a) above, the wife shall arrange for such work to be carried out and shall pay and be responsible for the payment of the cost of such work (“necessary repairs”);
c) The initial listing price of the property shall be as agreed between the parties and failing agreement, within seven (7) days of the listing date, be as set by the real estate agent appointed pursuant to Order 9(a) above;
d) If the parties have not entered into a contract within 2 months of the listing date (now referred to as “the date of failure to sell by private treaty”), the husband and wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally as shall be necessary to procure a sale of the property to public auction upon the following terms:
i.The auctioneer shall be as agreed between the parties but failing agreement within seven (7) days of the date of failure to sell by private treaty, as nominated by the agent appointed pursuant to Order 9(a) above;
ii.The auction shall take place within 42 days of the date of failure to sell by private treaty;
iii.The reserve price shall, unless agreed by the parties, be set by the agent appointed pursuant to Order 9(a) above; and
iv.That either party shall have the right to bid at the auction;
e) The husband and wife shall each pay and be responsible for payment of one half of the auction expenses payable before the real property is auctioned.
f) In the event that the property is not sold by auction or by private negotiation within 14 days after the auction, then the husband and wife shall do all such acts and sign all necessary deeds, documents and instruments and pay all monies equally as is necessary to procure a second auction within a further 5 weeks of the date of the first auction upon the same terms and conditions as applied to the first auction. The property shall continue to auction on the same terms as the first until a contract for sale is obtained.
Upon completion of the sale, the proceeds shall be paid as follows:
a) Firstly to pay all costs, commission and expenses of the sale, to pay any council and water rates, maintenance levies outstanding in respect of the home;
b) Secondly to discharge the mortgage and any other encumbrances affecting the home;
c) Thirdly, to the husband a sum equivalent to 27.36% of the difference between the sale price less the conveyancing costs, real estate agent’s commission, necessary repairs and $188,646;
d) Fourthly to make any adjustments between wife and husband resulting from the operation of Order 8 above; and
e) Fifthly, the balance to be paid in full to the wife.
Save and except for any property and financial resources dealt with pursuant to these orders, each party shall retain all other property and/or financial resources not previously dealt with herein and in their respective possession, ownership or control of that party as at the date of these orders.
Save and except for any liability dealt with pursuant to the terms of these orders, each party shall be solely responsible for and meet payment of his or her liabilities and shall keep indemnified the other party from any liability hereunder.
In the event that the husband or the wife or either of them fails, refuses or neglects to execute any document or do anything necessary to give effect to the orders above, and pursuant to Section 106A of the Family Law Act, 1975, the Registry Manager of the Family Court of Australia shall be and is hereby appointed to execute any deed or instrument in the name of the party, and do all acts and things necessary to give validity to the operation of the deed or instrument.
IT IS FURTHER ORDERED BY THE COURT
The Court grant to the appellant husband a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 in respect of the costs incurred by the appellant in relation to the appeal.
The Court grant to the respondent wife a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 in respect of the costs incurred by the respondent in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Calloway & Calloway 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 55 of 2012
File Number: BRC 11274 of 2009
| Mr Calloway |
Appellant
and
| Ms Calloway |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ainslie-Wallace J
Introduction
On 23 May 2012, Bell J made property orders between the parties to this appeal. The effect of his orders broadly was to divide the parties’ net assets as to 70 per cent to the wife and 30 per cent to the husband. The husband filed an amended notice of appeal in relation to his Honour’s orders on 22 February 2013. On that day the appellant husband filed extensive written submissions. On 5 April 2013 the respondent also filed extensive written submissions and the appeal was listed to be heard by a Full Court on 9 August 2013. On 26 July 2013, the husband filed an application in an appeal seeking leave to adduce further evidence on the appeal.
On the morning of the hearing of the appeal the Court was notified that the parties, with the assistance of their legal representatives, had reached an agreement as to the disposition of the appeal and the orders to be made consequential to that agreement.
Each party seeks an order that a cost certificate be granted to them pursuant to section 9 and section 6 of the Federal Proceedings Costs Act 1981 (Cth) (“the Costs Act”). The appeal will be disposed of in a way that allows the appeal and we will set aside his Honour’s orders and make orders in substitution for those made by Bell J.
Turning to the request by each party for a certificate under the Costs Act, the principles in relation to the granting of those certificates are well known and provide that three criteria must be satisfied before it is appropriate to make such an order. The first is the existence of a federal appeal. There can be no doubt that there is such an appeal. The second is that the appeal has succeeded on a question of law, and the third is that the Court should have heard the appeal.
Has the appeal been heard?
Although truncated by reason of the agreement between the parties as to the outcome, both parties apart from their extensive written submissions appeared and addressed us on the determinations of the appeal and the asserted errors of law. For my part the appeal has been heard in the sense referred to in the authorities.
Has the appeal succeeded on a question of law?
The appellant raised 15 grounds of appeal in his notice of appeal. Ground 15 alleges a failure of his Honour to provide adequate reasons for his decision. Other grounds, while raising different challenges to his Honour’s findings, also assert that in relation to the impugned finding the trial judge did not give adequate reasons, and I cite, for example, grounds 2, 5, 11 and 12. Counsel for the respondent this morning conceded that there is an apparent error in his Honour’s approach to the determination of whether the proposed order was just and equitable, and that it falls within the kind of error identified in Gronow & Gronow (1979) 144 CLR 513 in that although the Appeal Court can’t precisely identify the nature of the error the result is plainly wrong bespeaking an error of discretion.
We agree that the appeal has merit in the challenge to his Honour’s reasons on both those grounds, and the appeal should be allowed on a question of law. This is a matter in which we would not otherwise make an order for costs against either party, and it is appropriate to order that each party have a costs certificate in relation to the appeal, and I propose the following orders be made.
MURPHY J
I agree with the orders proposed. I agree that the appeal has been “heard” for the reasons identified by Ainslie-Wallace J. I am well satisfied that an error of law has occurred. The submissions of counsel for each of the parties in that respect each have merit. I agree that it is appropriate that there be a finding that each party should bear their own costs, and I agree, as a result, with what Ainslie-Wallace J has said in respect of the issue of cost certificates.
MAY J
I agree that such an order should be made for the reasons that have been given. The orders that will be made, as discussed with counsel, will largely be in terms of the document handed to us this morning, except that paragraph 1 will simply say that the appeal will be allowed. Paragraph 7 will be amended in the terms that have been discussed, and then, of course, there will be a separate order because it cannot be made by consent in relation to the Federal Proceedings (Costs) Act (Cth). There will be, as also discussed, the document marked exhibit 1, that will be kept on the appeal file, description of the assets and their division
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace & Murphy JJ) delivered Ex-Tempore on 9 August 2013.
Associate:
Date: 26 September 2013
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