FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cantoni & Cantoni [2022] FedCFamC1A 11
Appeal from: Cantoni & Cantoni [2021] FamCA 464 Appeal number(s): EAA 79 of 2021 File number(s): PAC 1840 of 2018 Judgment of: MCCLELLAND DCJ, WILLIAMS & WILSON JJ Date of judgment: 7 February 2022 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Interim property orders – Appellant contends primary judge gave inadequate reasons for rejecting the tender of an expert report when considering an interim application for orders for the sale of a property which is the principle asset of the parties – Leave to appeal granted and appeal allowed – Remitted for re-hearing – Costs certificates granted to the appellant for the appeal. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act2021 (Cth) s 28(3)
Federal Proceedings (Costs) Act 1981 (Cth) s 9
Family Law Rules 2004 (Cth) rr 15.51, 15.52, 15.64B, 15.65
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
1 Pettitt v Dunkley [1971] 1 NSWLR 376
Police Federation of Australia and Another v Nixonand Another (2011) 198 FCR 267; [2011] FCAFC 161
R v McCullagh (No 3) (2007) 179 A Crim R 334; [2007] VSCA 293
Webb v R (1994) 13 WAR 257; 74 A Crim R 436
Number of paragraphs: 37 Date of hearing: 11 November 2021 Place: Sydney (via videolink) Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Khalil Family Lawyers Counsel for the Respondent: Mr McCormack Solicitor for the Respondent: Goldsmiths Lawyers ORDERS
PAC 1840 of 2018
EAA 79 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CANTONI
Appellant
AND: MR CANTONI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, WILLIAMS & WILSON JJ
DATE OF ORDER:
7 FEBRUARY 2022
THE COURT ORDERS THAT:
1.Leave to appeal is granted.
2.The appeal is allowed.
3.The orders of the primary judge made 2 July 2021 are set aside.
4.The review of the senior registrar’s orders made 12 March 2021 must be remitted for rehearing by another judge of Division 1 of the Federal Circuit and Family Court of Australia.
5.The Court grants to the appellant a costs certificate pursuant to s 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 this appeal.
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…
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CaseChat Overview and Summary
The court identified several legal issues, including whether the primary judge had erred in principle by failing to find that a special reason existed for granting the appellant's application to adduce expert valuation evidence. The court also considered whether the primary judge had failed to exercise the discretion in Rule 15.49(2) of the Family Law Rules in favour of the appellant's oral interlocutory application. The court further examined whether the primary judge had erred in principle and discretion in finding that the sale of the property would not prejudice the caveators on title, and whether the primary judge had failed to give adequate weight to the evidence of the proposed builder.
The court found that the primary judge had failed to give adequate reasons for rejecting the tender of an expert report and had not exercised the discretion in Rule 15.49(2) of the Family Law Rules in favour of the appellant's oral interlocutory application. The court also found that the primary judge had erred in principle and discretion in finding that the sale of the property would not prejudice the caveators on title, and had failed to give adequate weight to the evidence of the proposed builder. The court concluded that the primary judge's discretionary decision miscarried and was plainly wrong and manifestly unjust.
The court allowed the appeal, set aside the orders of the primary judge made on 2 July 2021, and remitted the review of the senior registrar's orders made on 12 March 2021 for rehearing by another judge of Division 1 of the Federal Circuit and Family Court of Australia. The court also granted the appellant a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) for the costs incurred by the appellant in relation to the appeal.
Orders
Orders of the court
PAC 1840 of 2018
EAA 79 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS CANTONI
Appellant
AND:
MR CANTONI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, WILLIAMS & WILSON JJ
DATE OF ORDER:
7 FEBRUARY 2022
THE COURT ORDERS THAT:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The orders of the primary judge made 2 July 2021 are set aside.
4. The review of the senior registrar’s orders made 12 March 2021 must be remitted for rehearing by another judge of Division 1 of the Federal Circuit and Family Court of Australia.
5. The Court grants to the appellant a costs certificate pursuant to s 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 this appeal.
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In her Amended Notice of Appeal filed 21 October 2021, the appellant substantially reduced the number of grounds of her appeal from seven to three. The Amended Notice of Appeal is as follows:1.That in dismissing the Appellant’s oral interlocutory application brought under Rule 15.49 15.51 of the Family Law Rules to adduce valuation evidence in respect of the value of [the property] both ‘as is’ and in the event that building and rectification works were completed:a.the primary judge erred in principle in that he failed to find a special reason existed for granting grant the Wife’s application pursuant to Rule 15.49(2)(c) 15.51 in that:i.the valuation of [the property] on those bases was plainly a matter that bore discrete relevance to the Appellant’s substantive application to cause the remedial works to be completed on [the property], prior to its sale;ii.the Respondent had earlier refused to join in appointing a single expert to provide valuation evidence in respect of [the property] about these matters;iii.the Respondent did not seek to rely on any valuation evidence about these matters; andiv.consequently, there was no other valuation evidence about these matters available in respect of [the property];b.the trial judge failed to determine (by virtue of the preceding contended errors) that the discretion in rule 15.49(2) had been enlivened; andc.the trial judge erred in principle in that he failed to exercise the discretion pursuant to Rule 15.49 15.51 in favour of the Wife’s oral interlocutory application.2.That the primary Judge failed to give any reasons as to the matters in Ground 1.3.That having regard to the fact that a major issue in the proceedings was the proper assessment of the value of [the property] of the parties both ‘as is’ and on the basis that the building and rectification works were completed, the dismissal of the Appellant’s oral interlocutory application filed on 19 August 2020 under Rule 15.49 15.51 was an error in that it removed any element of fairness and justice to the Appellant in the substantive proceedings.4.That the primary Judge erred in principle and discretion in finding that the sale of [the property] on the Orders as entered rendered no prejudice to the Caveators on title to the said property, including in the circumstances where:a.any order for the sale of the property will be ineffective while the caveats remain in place;b.there was no evidence that the Caveators or all of them had been provided with procedural fairness of the orders ultimately entered;c.there was no evidence that the caveators will agree to remove the caveats;d.there was, consequent upon the dismissal of the Appellant’s oral application to adduce adversarial valuation evidence, no valuation evidence available to support that finding;e.the Primary Judge placed undue or excessive weight (or he failed to disclose his reasoning sufficiently to permit of an understanding as to how he had regard) to an alleged acknowledgement of the Respondent of an assertion by the Appellant as to the value of [the property] which was not consistent with the valuation evidence sought to be relied upon by her (paragraph 44 Reasons); andf.as a direct consequence, there was no evidence as to whether the debts to the caveators could be satisfied.5.That the Primary Judge erred in fact in that, on the evidence available, he failed to find that there will, upon the sale of [the property] ‘as is’, more likely than not, be no net proceeds of the sale:a.sufficient to meet the asserted caveatable interests registered on title; orb.to adjust between the parties.6.The Primary Judge failed to give adequate weight (or he failed to disclose his reasoning sufficiently to permit of an understanding as to how he had regard) to the following:a.The evidence of the proposed builder is such that:i.The contract for the works, which includes the executed guarantee of the Appellant’s father, is fixed at $711,040;ii.The contract for the works is proposed to be fixed on the explicit basis that there is no provision for contingencies, including latent defects;iii.The contract for the works is proposed to be fixed on the explicit basis that the builder requires no progress payments (and that the builder will finance the build) and will await payment in full of the contract until funds are available from the settlement of the sale of the property;iv.The builder is prepared to enter into the contract on the explicit basis that he does not require any security for the contract, including any caveat, other than to require an order that the fixed price contract would be payable upon settlement of the sale of the property;v.The builder assumes the risk in the preceding premises;b.That, as a consequence of the foregoing, there was no need to secure further monies from the mortgagee or another financial institution for the amount anticipated for the required works;c.As to the evidence of the builder (who is based in South Australia) and the steps he will take in order to become registered as a builder in Victoria (the state in which [the property] is located), and the limited timing and lack of any significant other imposts involved in those steps; andd.That the builder gives evidence that the build itself with be complete within 2 to 3 months, which is not a significant length of time.7.That, cumulatively and by virtue of the preceding grounds of appeal contended for, the Primary Judge’s discretionary decision miscarried in that the result embodied in his order was plainly wrong and manifestly unjust.(As per the original)CONSIDERATION