Cantwell and Cantwell - [2017] FamCAFC 209

FAMILY COURT OF AUSTRALIA

CANTWELL & CANTWELL

[2017] FamCAFC 209

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – final property orders – whether the primary judge failed to take into account a liability – where the husband sought to adduce further evidence – where the further evidence included a loan agreement and mortgage debenture – where there was no adequate explanation for the failure to tender the documents at trial – where the documents had not been stamped in accordance with s 22 of the Stamp Duties Act 1923 (SA) – where the liability consisted of a loan allegedly owed indirectly to the husband’s parents as a result of money invested by them in third party corporations controlled by the parties’ accountant – where the accountant contended that the arrangement was entered into on the instruction of the husband’s parents – where the arrangement was not deposed to by the husband or the husband’s parents – where the evidence did not reveal any legal relationship between the husband’s parents and the parties – where the money was owed between two third party corporations and where the accountant owed independent duties as a director – where no error was demonstrated – application to adduce further evidence dismissed – appeal dismissed.

Family Law Act 1975 (Cth) s 117(2A)
Stamp Duties Act 1923 (SA) s 22

Af Petersens and Af Petersens (1981) FLC 91-095
Biltoft & Biltoft (1995) FLC 92-614
CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

Mr Cantwell

RESPONDENT:

Ms Cantwell

FILE NUMBER:

ADC

1215

2014

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

4 October 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Thackray, Strickland and Murphy JJ

HEARING DATE:

4 October 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

3 March 2017

LOWER COURT MNC:

[2017] FamCA 117

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Richards

SOLICITOR FOR THE APPELLANT:

David Burrell & Co Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Tredrea

SOLICITOR FOR THE RESPONDENT:

Oliveri Rosa Beachside Legal Lawyers

Orders

The appeal be dismissed.
The application in an appeal filed on 20 September 2017 be dismissed.
The appellant pay the respondent’s costs fixed in the sum of $10,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cantwell & Cantwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 24 of 2017
File Number: ADC 1215 of 2014

Mr Cantwell

Appellant

And

Ms Cantwell

Respondent

EX TEMPORE

REASONS…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cantwell and Cantwell

Details

AGLC: Cantwell and Cantwell [2017] FamCAFC 209
Case: [2017] FamCAFC 209
Decision Date: 4 October 2017

CaseChat Overview and Summary

In the case of Cantwell and Cantwell, the dispute arose from an appeal and an application in the appeal, both filed by the husband. The central issue before the court was whether certain documents, including a loan agreement and a loan addendum, should be admitted as evidence. These documents were sought to be tendered after the trial had concluded and were not stamped in accordance with Section 22 of the Stamp Duties Act 1923 (SA). The wife contested the admissibility of these documents on the basis that they were not mentioned during the trial and did not address the core issues of the case. The husband argued that these documents were crucial to his case, yet he failed to provide an adequate explanation for not presenting them during the trial.

The court had to determine whether the unstamped documents could be admitted as evidence despite their late tendering and lack of relevance to the central issues. The court found that the husband did not provide a satisfactory reason for not presenting the documents during the trial and that these documents did not pertain to the main issues at hand. Therefore, the court concluded that the documents should not be admitted as evidence. Consequently, the appeal and the application in the appeal were dismissed. The court also addressed the issue of costs, noting that the husband was wholly unsuccessful in the appeal. The court ordered that the husband pay the wife's costs, fixing the amount at $10,000 as suggested by the wife's counsel, with no objection from the husband's counsel.

In summary, the court dismissed the appeal and the application in the appeal, refused to admit the unstamped documents as evidence due to their late tendering and irrelevance, and ordered the husband to pay the wife's costs in the amount of $10,000. The reasoning was grounded in the husband's failure to provide a satisfactory explanation for the late tendering of the documents and their lack of relevance to the core issues of the case.

Orders

Orders of the court

The appeal be dismissed.

The application in an appeal filed on 20 September 2017 be dismissed.

The appellant pay the respondent’s costs fixed in the sum of $10,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The loan agreement and the loan addendum sought to be tendered as evidence are not stamped. Section 22 of the Stamp Duties Act 1923 (SA) provides:22—Except as aforesaid no unstamped instrument to be received in evidenceNo instrument chargeable with duty executed in any part of South Australia, or relating, wherever it was executed, to any property situated, or to any matter or thing done or to be done, in any part of South Australia, shall, except in criminal proceedings, be pleaded or given in evidence, or admitted to be good, useful or available at law or in equity, unless duly stamped. The loan agreement merely seeks to corroborate a loan as between NOUT and the trust controlled by the husband. That document and indeed the evidence of a loan between those entities more broadly, does not address the central difficulty earlier referred to. That is, the document does not go to the central issue of what the primary judge was asked to find and does not assist in demonstrating error. Otherwise, the husband contends that the document – a document he now says is central to his case – was overlooked. There is no adequate explanation for the failure to tender the document at trial. Moreover, it is not merely the failure to tender the document; it was not at all mentioned in the husband’s evidence. The same considerations apply to the loan addendum signed after conclusion of the trial which apparently seeks to extend the term of the loan between the entities for another 10 years. The prospect of the original loan concluding shortly after the trial was not at all referred to in the evidence before his Honour and nor was the prospect of any “extension” of the loan. I am similarly unable to see the relevance of the balance of the documents sought to be tendered in evidence before us. For the reasons I have just advanced, in my opinion, the application in an appeal should be dismissed as should the appeal. As to costs, each of the parties’ counsel submitted that “costs should follow the event”. The Full Court has said that, whilst of course not determinative, a party being “wholly unsuccessful” in the context of an appeal can be a particularly important justifying circumstance within the meaning of s 117(2A) of the Family Law Act 1975 (Cth) given that a party is prima facie entitled to the fruits of their judgment and a trial judgment is presumed correct until appealable error is established. I would order that the appellant pay the respondent’s costs. We sought from the parties submissions in respect of fixing costs. Counsel for the wife suggested a figure of $10,000 be fixed in respect of those costs. No objection was taken by counsel for the husband to that sum and I would so order. I agree with the reasons delivered by Justice Murphy and with the proposed orders. I also agree with the reasons of Justice Murphy and with the orders that he proposes.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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