Casson, M.K. and Casson, G.

[1988] FamCA 7

In the marriage of CASSON, M.K. and CASSON, G.

(1988) FLC ¶91-962

Other publishers' citations: (1988) 12 FamLR 455

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 11 August 1988.

Before: Ellis, Baker and McCall JJ.

Ellis, Baker and McCall JJ.: This is an appeal by the wife against orders made by Yuill J. on 27 November 1987 wherein he extended the time allowed to the husband for filing a notice of appeal against the orders of this Court made on 20 March 1987. His Honour ordered that the husband have a further seven days within which to file his notice of appeal.

His Honour had heard from cross-applications by the parties in relation to settlement of property in respect of which he delivered judgment on 20 March 1987. On that day his Honour made the following orders:

1. That the applicant wife forthwith transfer to the respondent husband all of her right title and interest in a property at Curtin in the Australian Capital Territory, being the land comprised in Certificate of Title Volume 506 Folio 35.
2. That within three months, or within such further time as the parties may agree upon in writing, the applicant wife pay to the respondent husband the sum of $67,000.
3. That upon payment of that sum the respondent husband forthwith transfer to the applicant wife all of his right, title and interest in a property at O'Connor in the Australian Capital Territory, being the land comprised in Certificate of Title Volume 46 Folio 4517, and shall yield up possession of the premises to the applicant wife.
4. That if the said sum is not so paid, the parties do all things necessary to enable the O'Connor property to be sold by private treaty and, if it cannot be sold by private treaty within a further period of three months, that it be sold by auction, and in either case the net proceeds divided equally between the parties.
5. That the husband indemnify the wife in relation to the mortgage to the Canberra Permanent Co-operative Building Society Limited.
6. Subject to order 7, that all the items of personalty currently in the possession of a party remain in the possession of that party.
7. That the diamond ring be sold to a purchaser to be agreed upon by the parties and the net proceeds of sale divided equally between the parties.
8. That each party has liberty to apply on giving seven days notice in respect of the implementation and execution of any of the above orders and in respect of any other matter arising out of the above orders.
9. The exhibits to be returned to the parties.

The time for the filing of a notice of appeal against these orders expired on 21 April 1987 and the application to extend time was not filed until 1 July 1987, some two months and nine days later.

The evidence from the husband as to the delay was that he was informed by his counsel or solicitor that he had one week only in which to lodge an appeal. He stated that he was distressed at the time, partly due to his health, but partly because of the way in which his counsel had presented his case at the trial. In the circumstances he instructed his solicitors on 23 March 1987 not to lodge any notice of appeal. With the misapprehension that he could no longer lodge a notice of appeal, the husband made enquiries as to what recourse he had against his former solicitor and, to this end, consulted another solicitor on 14 May 1987. He then became aware for the first time that he had a longer period within which to institute an appeal and further that he was able to seek leave to extend the time for the filing of such an appeal. He consulted a partner of his present solicitors on 26 May 1987 some 12 days later.

On 1 June his present solicitor spoke to the wife's solicitor as a result of which the wife was made aware of the husband's intention to file an application to the Court extending the time within which to lodge a notice of appeal. It was agreed by the wife's solicitors that no point would be taken with respect to the delay between 1 and 10 June 1987. His new solicitor wrote to the wife's solicitor on 16 June in relation to the proposed application to extend the time and on 22 June some of the husband's papers held by his previous solicitor were made available to his new solicitor. The application to extend time was then filed on 1 July 1987.

As a result of the orders made by the trial Judge on 20 March 1987 the wife arranged to borrow funds sufficient to pay the husband the sum of $67,000. Early in April she had certain telephone conversations with the husband in relation to the timetable for settlement and other related matters. In or about the middle of April the husband telephoned the wife and requested that settlement take place in or about the middle of May to enable him to complete a proposed purchase of a house in Braddon. Settlement of all transactions in fact took place on 30 April, on which day the husband vacated the former matrimonial home in O'Connor and the wife took possession of those premises.

It was the wife's case that she and the husband were in frequent contact during the month of April in the course of which the husband gave no indication to the wife that he was contemplating an appeal. The wife, for her part, deposed to the fact that the husband had informed her that he had discussed the possibility of an appeal with his solicitors, but did not intend to pursue it.

The application to extend time came before his Honour on 23 November 1987 and the reasons for judgment were delivered on 27 November 1987 as a result of which his Honour made the orders, the subject of this appeal.

The grounds of appeal numbered seven in all but in fact only raised the following issues:

1. That his Honour erred in finding that the delay in filing and prosecuting the application for leave was explained adequately.
2. That his Honour erred in not finding that the appellant would suffer hardship as a result of leave being granted.
3. That his Honour erred in finding that there was a substantial issue to be argued on the appeal.

As to the first issue raised above, we are satisfied that there was sufficient evidence before his Honour to conclude that the delay had been adequately explained.

As to the question of whether the appeal raised a substantial issue: A draft notice of appeal was annexed to an affidavit of the husband. This draft notice, inter alia, contained the following proposed grounds of appeal.

``5. His Honour erred in not giving any or insufficient weight to the evidence of and His Honour's finding that the husband made a much greater financial contribution to the assets of the parties.

6. His Honour erred in failing to give any or insufficient weight to the `assets' which the husband had at the date of commencement of cohabitation of the parties.''

With respect to these proposed grounds, his Honour said that these attack the exercise of the Court's discretion. As such, they go to the basis of the Court's decision about the division of the real estate, and therefore raise a substantial issue.

It was submitted on behalf of the wife on the hearing of this appeal that the substantial issue to be raised on the appeal must relate to a matter of public importance. We are unable to accept this submission as a necessary element of what is to be applied in applications of this nature.

The authorities of this Court including McMahon and McMahon (1976) FLC ¶90-038 do not support this proposition. In our view, if the grounds of appeal raise a question, which, if successful, would materially affect the outcome of the case, then a substantial issue is raised.

In this case the grounds of appeal raise the question of his Honour having failed to give adequate weight to the financial contribution by the husband, in particular, the weight to be given to the assets which he owned at the commencement of cohabitation. These grounds, if successful, would materially affect the outcome of the proceedings. The proposed grounds of appeal accordingly, in our view, showed that there was a substantial issue to be raised on the hearing of the appeal.

As to the issue of hardship his Honour said:

``The wife said she was shocked and extremely distressed on hearing that the present application had been lodged. However, she did not put forward any evidence to show that she would suffer hardship or injustice if leave to appeal was granted, other than stress generally and the expense of further proceedings.''

It was contended by the appellant that there was significant evidence before his Honour in relation to hardship and, in particular, para. 11, 12, 13, 14, 15, 16 and 17 of the wife's affidavit sworn on 17 September 1987 on which there was no cross-examination.

An examination of these paragraphs of the wife's affidavit clearly shows that his Honour was in error in finding that the wife did not put forward any evidence intending to show that she would suffer hardship if leave to appeal was granted.

In McMahon's case the principles governing applications for leave to extend time were stated as follows:

1. that, having regard to the fact that the husband lived outside the jurisdiction, to the circumstances of his ill-health and to the fact that he had taken steps to instruct solicitors within time, there was a sufficient explanation for his failure to file and serve his notice of appeal within time:
2. that the issues relating to domicile and to the hearing of the case in the husband's absence were substantial enough to warrant consideration by the Full Court; and
3. that the hardship suffered by the wife could be compensated for and injustice avoided by putting the husband on terms.

Accordingly, for leave to succeed, it is necessary that the applicant satisfies the three conditions enunciated. The first two, the husband, in our view, clearly did so. As to the third, in this case, we are satisfied that the wife would suffer some hardship by reason of the fact that the orders requiring the transfer of the two properties and payment of the money by the wife to the husband have already been implemented prior to the filing of the application for leave. The question that then arises is ``can this hardship be compensated by orders as to costs or otherwise?'' (see McMahon's case).

It would have been open to his Honour to have extended the time for filing the notice of appeal conditional upon the husband complying with terms which would have adequately redressed any hardship suffered by the wife as a result of leave being granted and an appeal being successful.

It seems to us, in the event that an appeal were successful and that the wife, as she alleged, would be obliged to sell the O'Connor property then she would have the following additional expenses which would otherwise have not occurred namely:

(a) The cost of establishing the mortgage, secured loan, conveyancing and registration fees approximating $1,500.
(b) A penalty (if any) for early discharge of mortgage fee owing.
(c) One-half of the costs associated with the sale of the former matrimonial home.

In the event that the appeal be successful, and that the wife is obliged to sell the former matrimonial home if the husband were ordered to reimburse for these expenses, then the hardship is satisfactorily redressed. We therefore set aside order I and order in lieu thereof the following:

1. That the time allowed by the husband for filing a notice of appeal against the orders of this Court of 20 March 1987 be enlarged to enable the filing of such notice of appeal within seven days of this date upon the following conditions:

(a)That if the appeal by the husband against the orders of 20 March 1987 is successful and the wife thereafter is obliged to sell the O'Connor property the husband will pay to her within seven days of being notified in writing the following:

(i) the sum of $2,500 being the cost of establishing the mortgage loan from the Canberra Building Society and conveyancing and registration fees;
(ii) any penalty incurred by the wife for early discharge of her mortgage to the Canberra Building Society in respect of the former matrimonial home, and
(iii) one-half of the costs of and incidental to the sale of the said O'Connor property.