Clayton v Bant - [2020] HCATrans 50

[2020] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B65 of 2019

B e t w e e n -
CLAYTON
Applicant
and
BANT
Respondent
Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 17 APRIL 2020, AT 9.32 AM

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend MS A. McDIARMID for the applicant. (instructed by Ferguson Legal Solicitors)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR M.W. TODD, for the respondent. (instructed by Watts McCray Lawyers)

NETTLE J: Yes, Mr Jackson.

MR JACKSON: Your Honours, the application involves two aspects. One is the applicant’s claim for property settlement under section 79 of the Family Law Act. The other is her claim in respect of alimony or maintenance, perhaps I should say. May I deal with them in that order?

NETTLE J: Yes, thank you.

MR JACKSON: If I could take your Honours first to something - a few matters said by the primary judge and then to a central part of the Full Court’s reasons. First of all, page 44 of the application book, your Honours will see the primary judge’s reasons. I am going to refer your Honours to paragraphs 192 and 194. Your Honours, as is apparent from the terms of paragraph 192, the primary judge held:

that the law of Dubai contains no provision for the redistribution of assets or property of the parties to the marriage contract on the breakdown of the marriage or divorce ‑

other than that provided for by the marriage contract. She elaborated upon that in the second sentence of paragraph 192, where, your Honours will see, she said:

I accept the law of Dubai is such that ‑

and your Honours will see the remaining aspects of that sentence. She emphasised the same matters in paragraph 194, as your Honours will see, and in particular the last few lines of that paragraph.

Your Honours, two matters arise from that. If I could return to paragraph 192 to the exception – if I could put the words in inverted commas - in the last few lines of paragraph 192. That is a reference to Article 62.1 of Federal Law No 28 of 2005, which your Honours will see set out at page 97 of the application book about line 43 on the page.

NETTLE J: Yes.

MR JACKSON: Your Honours will see that it makes no provision for the court‑ordered transfer of property from husband to wife or vice versa, except in the one exception referred to, namely where the two have participated:

in the development of a property, building a dwelling place or the like –

In such a case one may claim from the other:

his share therein upon divorce –

and the share of…

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 Clayton v Bant

Details

AGLC: Clayton v Bant [2020] HCATrans 50
Case: [2020] HCATrans 50
Decision Date

CaseChat Overview and Summary

This case concerns an application for special leave to appeal to the High Court of Australia, brought by the applicant, who sought property settlement and maintenance under the *Family Law Act 1975* (Cth). The dispute arose from divorce proceedings in Dubai, where the primary judge and the Full Court of the Family Court of Australia had made findings regarding the scope of Dubai law and its implications for Australian proceedings. The applicant argued that the Dubai court's orders did not preclude her Australian claims, particularly concerning property located within Australia.

The central legal issues before the High Court were whether the Full Court erred in its interpretation of Dubai law concerning property redistribution and maintenance, and whether the principles of *res judicata* or issue estoppel, as applied in *Henry v Henry*, precluded the applicant from pursuing her claims in Australia. Specifically, the applicant contended that the Dubai law, as interpreted by the courts below, did not provide for the redistribution of assets or property upon divorce, except in limited circumstances related to jointly developed property, and that the Dubai court had not finally determined the issue of alimony.

The applicant argued that the Full Court's interpretation of Article 62.1 of Dubai Federal Law No 28 of 2005, which limited redistribution to jointly developed property within the jurisdiction, was too narrow and inconsistent with previous Full Court decisions like *Pagliotti v Hartner*. She also submitted that the Dubai court's finding that the alimony claim was "untimely" meant it was not finally determined, thus not giving rise to an estoppel. The respondent countered that the Full Court correctly applied the principles from *Henry v Henry*, which dictates that the "financial consequences of the cessation of the matrimonial relationship" should be considered at a sufficient level of generality to encompass all aspects of the dispute, regardless of differences in available remedies between jurisdictions. The respondent argued that the Dubai proceedings, by addressing the financial consequences of the divorce under Dubai law, had achieved finality in that jurisdiction, preventing further litigation in Australia.

The High Court granted special leave to appeal, indicating that there were arguable grounds to consider the Full Court's application of *Henry v Henry* and its interpretation of the Dubai law. The applicant's submission highlighted a perceived inconsistency in the Full Court's approach compared to *Pagliotti v Hartner*, suggesting that the Dubai court's limited jurisdiction over Australian property and its non-determination of alimony claims should not prevent her from pursuing her case in Australia. The respondent maintained that the principle of finality established in *Henry v Henry* was correctly applied, and that the level of generality for assessing the scope of the Dubai proceedings encompassed the financial consequences of the marital breakdown.

Orders