FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Cirillo & Cirillo [2021] FedCFamC1A 45
Appeal from: Cirillo & Cirillo (No. 2) [2021] FamCA 398 Appeal number(s): EAA 74 of 2021 File number(s): SYC 4192 of 2020 Judgment of: AUSTIN, REES & WILSON JJ Date of judgment: 2 November 2021 Catchwords: FAMILY LAW – APPEAL – Property – Where the primary judge dismissed the wife’s application for injunctive orders seeking to restrain the husband from dealing with the parties’ assets.
LEAVE TO APPEAL – Where orders were subsequently made preserving the assets of the parties – No substantial injustice demonstrated – Sufficient doubt – Whether the primary judge erred in admitting a judgment of the New South Wales Supreme Court into evidence – Where s 91 of the Evidence Act 1995 (Cth) is not a prohibition on the admission into evidence of a judgment in other proceedings – Where the wife was unable to point to any finding of a fact in issue which was based on acceptance of a finding in the Supreme Court judgment – Leave to appeal refused.
APPLICATION IN AN APPEAL – Adduce further evidence – Where there is no appeal within which to adduce the further evidence – Application dismissed – Costs to be determined in chambers on written submissions.
Legislation: Evidence Act 1995 (Cth) s 91
Family Law Act 1975 (Cth) s 94AA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28(3), 35(b)
Cases cited: Ainsworth v Burden [2005] NSWCA 174
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Number of paragraphs: 58 Date of hearing: 20 October 2021 Place: Heard in Sydney, delivered in Newcastle Counsel for the Appellant: Mr Livingstone Solicitor for the Appellant: Marsdens Law Group Counsel for the Respondent: Mr Richardson SC Solicitor for the Respondent: Boyce Family Law & Mediation ORDERS
EAA 74 of 2021
SYC 4192 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CIRILLO
Appellant
AND: MR CIRILLO
Respondent
ORDER MADE BY:
AUSTIN, REES & WILSON JJ
DATE OF ORDER:
2 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal from the orders of a judge of the Family Court of Australia (as it then was) made on 17 June 2021 is dismissed.
2.The application to adduce further evidence filed 8 October 2021 is dismissed.
3.The question of costs is reserved.
4.Within 14 days the husband file and serve any affidavit and written submissions in relation to costs.
5.Within a further 14 days the wife file and serve any affidavit and submissions in relation to costs.
6.Within a further 7 days the husband file any response to the wife’s submissions in relation to costs.
7.The issue of costs be determined in chambers without further appearances.
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…
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- AGLC
- Cirillo & Cirillo [2021] FedCFamC1A 45
- Case
- [2021] FedCFamC1A 45
- Decision Date
CaseChat Overview and Summary
Cirillo & Cirillo was an appeal against the decision of Aldridge J in the Family Court, concerning the division of assets between the husband and wife. The wife appealed the decision which rejected her application for freezing orders against the proceeds of sale of a commercial property, as well as orders for the husband to provide notice of certain dealings with other assets. The appeal also sought leave to adduce fresh evidence, namely, a Financial Statement sworn by the husband after the primary decision was made. The central legal issues were whether the wife's conduct had influenced the primary judge's reasoning process and whether the decision warranted reconsideration or had any utility in the appeal, considering the subsequent orders.
The court held that the wife had not demonstrated that the primary judge's decision was attended by sufficient doubt to warrant reconsideration. The judge found that the wife's conduct was not relevant to the determination of the issues, which were focused on the husband's breach of an undertaking to the Court, the balance of convenience, and the potential default events under finance agreements. Additionally, the court concluded that the subsequent orders made in the primary proceedings rendered the appeal futile. Consequently, leave to appeal was refused. The application to adduce fresh evidence was also dismissed as there was no appeal to present the evidence in.
The court did, however, allow both parties leave to file evidence and written submissions in relation to the issue of costs, which would be dealt with in chambers.
The court held that the wife had not demonstrated that the primary judge's decision was attended by sufficient doubt to warrant reconsideration. The judge found that the wife's conduct was not relevant to the determination of the issues, which were focused on the husband's breach of an undertaking to the Court, the balance of convenience, and the potential default events under finance agreements. Additionally, the court concluded that the subsequent orders made in the primary proceedings rendered the appeal futile. Consequently, leave to appeal was refused. The application to adduce fresh evidence was also dismissed as there was no appeal to present the evidence in.
The court did, however, allow both parties leave to file evidence and written submissions in relation to the issue of costs, which would be dealt with in chambers.
Orders
Orders of the court
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Background
Background to the litigation
It is necessary to provide some background facts in order for the issues which arose in the appeal to be understood.BACKGROUND The husband and the wife married in 1975 and separated in 2020. Although there is a dispute as to the net value of the asset pool, it is agreed to be not less than $90 million as the wife presently asserts. The husband and the wife both seek an equal division of the asset pool. With the exception of the former matrimonial home, which is jointly owned, the husband has the sole control of the assets of the marriage. Relevantly, the substantial portion of those assets is held in three trusts which are controlled by the husband. B Pty Limited as trustee of the D Trust owns four commercial properties, LL Property, MM Property, PP Property and QQ Property. The sale of one of those commercial properties, LL Property, was pending and is now subject to a contract for sale dated 24 September 2021. The sale price is $78.1 million. It is not in dispute that the sale price exceeded the valuation of the property and that the sale price was some $18 million more than the price for which the wife had been prepared to sell in 2020. B Properties Pty Limited is the trustee of the D Investment Trust and owns property in Country H. F Pty Limited is the trustee of the Cirillo Family Trust (No. 2) and owns the FF Property. The husband owns real properties in Country H and also has businesses in Country H. Since the making of the orders the subject of the appeal, further orders have been made in the primary proceedings. On 14 September 2021 and 27 September 2021, the wife filed further Applications in a Proceeding seeking freezing orders against the proceeds of sale of LL Property, settlement being anticipated to occur on 30 November 2021. On 1 October 2021, Aldridge J made orders in the following terms:1. B Pty Ltd be joined to the proceedings as the second respondent.2.The [husband] is to provide the [wife] the contract for sale of the business known as LL Property (“LL Property”) (which trades from the property located at Q Street, Suburb U in New South Wales (“the Suburb U property”) forthwith in two forms, one with the name of the purchaser and agent redacted and one without. The unredacted version of the contract for sale is, until further order, to be retained by the lawyers acting for the [wife] in these proceedings and is to be shown to no other person including the [wife]. 3.Pending further order of the Court, that on settlement of the Suburb U property and the business known as LL Property, B Pty Ltd as the trustee for the D Trust, shall not deal with the proceeds of sale, other than in the following manner: (a)In payment of the agent’s commission, marketing and advertising costs, legal and conveyancing costs and any other expense properly incurred in respect of the sale of the property;(b)In payment of all amounts then outstanding to G Pty Ltd as necessary to discharge the mortgage secured by G Pty Ltd against the title to the property; and(c)In payment to the [wife] or as she otherwise directs in writing the sum of $1,500,000 in full satisfaction of the [husband’s] obligations pursuant to Order 1 of the orders dated 9 August 2021 in these proceedings.4.That, without admissions, in the event that the [husband] intends or proposes to sell, transfer, dispose, mortgage or otherwise encumber the property at Q Street, Sydney in New South Wales (“the MM Property”) the [husband] shall provide the [wife] with not less than 21 days written notice, along with full particulars and all disclosure documents reasonably requested by the [wife] in respect of such proposed transaction before doing any act or thing to enter into such transaction.5.The parties are to file and serve short written submissions and identify the relevant parts of evidence on which is to be relied on in relation to the outstanding issues, namely being Orders 3.4, 3.5, 3.6, 4 and 5 of the [husband’s] Minute of Order dated 1 October 2021, by 5.00 pm on Tuesday, 5 October 2021.6.The matter is adjourned for further hearing to 12.00 pm on Wednesday, 6 October 2021.
Evidence
Evidence Before The Court
Section 91 of the Evidence Act 1995 (Cth) (“the Evidence Act”) provides:Exclusion of evidence of judgments and convictions(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. However, s 91 of the Evidence Act is not a prohibition on the admission into evidence of a judgment in other proceedings. Rather, as the NSW Court of Appeal held in Ainsworth v Burden [2005] NSWCA 174 (at [109]) per Hunt AJA (with Handley JA and McColl JA agreeing):It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose — as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant’s allegations were false — they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act. Counsel for the wife was unable to point to any finding of fact in the reasons of the primary judge which was a finding of a fact in issue and was based on acceptance of a finding in the Supreme Court judgment. Ground 1 must fail. As to Ground 2, counsel for the wife was unable to identify any finding of fact which “impermissibly infected the reasoning process of the primary judge”. Whilst it is accepted that the primary judge made comments which were unfavourable in relation to certain things done by the wife, the wife’s conduct was not a factor which was relevant to the determination. That determination was based on other matters:·Whether or not the husband had breached an undertaking to the Court given on 11 January 2021 (at [6] and [20]–[28]). ·The finding that the wife had not demonstrated that the husband had breached the undertaking (at [28]). ·If, at final hearing, the wife established that the husband had acted to diminish the value of an asset, any perceived loss could be adjusted in her favour (at [34]).·The balance of convenience did not fall in favour of granting the injunction sought by the wife (at [36]). ·The restraints sought by the wife could constitute a default event under the terms of the relevant agreement for the provision of finance and that for the husband to exercise his power of appointment to remove and replace the trustee of the D Trust and the D Investment Trust would be a default under the terms of the finance agreement (at [44]–[45]).·There was no evidence to justify the making of orders relating to other entities (at [46]–[48]). In none of those matters was the wife’s conduct relevant.
Decision
Reasons for decision
This ground is not made out.CONCLUSION The wife has not demonstrated that the decision is attended by sufficient doubt to warrant its being reconsidered or that there is any utility in the appeal, having regard to the subsequent orders. Leave to appeal will not be granted.APPLICATION TO ADDUCE FRESH EVIDENCE The only evidence sought to be tendered, to which submissions were addressed, was a Financial Statement sworn by the husband on 18 June 2021, after the delivery of judgment by the primary judge. Counsel for the wife submitted that, in the updated Financial Statement, the husband estimated that the net value of the assets to be more than $90 million which had been his previous estimate. How that difference would have affected the reasoning of the primary judge so as to cause him to determine the matter differently was not explained. Since leave to appeal is refused there is neither an appeal within which to adduce the further evidence pursuant to s 35(b) of the Act nor any re-exercise of discretion. The application for leave to adduce fresh evidence will be dismissed.COSTS The respondent seeks to adduce evidence in relation to offers of settlement and both parties will have leave to file evidence and written submissions in relation to the issue of costs which will be dealt with in chambers.
Ratio Decidendi
Legal Principle Established
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