Comar and Dalal - [2014] FamCAFC 219

FAMILY COURT OF AUSTRALIA

COMAR & DALAL

[2014] FamCAFC 219

FAMILY LAW – APPEAL – Where property settlement orders made by consent at hearing – Where both parties were represented – Where the husband contends that the consent orders were based on an incorrect valuation – Where no evidence there had been an increase in the value of the property – Where a consent order cannot be appealed on its merits – Where appeal limited to vitiating grounds – Where an increase in the value of the property would not establish an error of law – Where the husband cannot complain that his Honour did not determine individual contentious matters when he compromised the entire proceedings – Where the husband is bound by the case he ran at trial Metwally v University of Wollongong (1985) 60 ALR 68 – Appeal dismissed.

Family Law Act 1975 (Cth): ss 79

Allan v Allan & Ors [2014] FamCAFC 162
Colgate Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225
Coulton &Holcombe (1986) 162 CLR 1

Gilbert v Estate of Gilbert

(1990) FLC 92-125
(1991) 172 CLR 84
(1985) 60 ALR 68
& Prantage (2013) 49 Fam LR 197
(1988) 180 CLR 491

Harris v Caladine
Metwally v University of Wollongong
Prantage
Water Board v Moustakas

APPELLANT:

Mr Comar

RESPONDENT:

Ms Dalal

FILE NUMBER:

SYC

6147

2011

APPEAL NUMBER:

2014

DATE DELIVERED:

7 November 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

7 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

Not applicable

LOWER COURT MNC:

Not applicable

REPRESENTATION

FOR THE APPELLANT:

Mr Comar in Person

COUNSEL FOR THE RESPONDENT:

Mr J Heazlewood

SOLICITOR FOR THE RESPONDENT:

Slattery Jurd & Co

Orders

That the Notice of Appeal filed by the husband on 17 July 2014 be dismissed.
That the husband pay the wife’s costs of and in relation to the appeal, such costs to be as agreed or as assessed.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 84 of 2014
File Number: SYC 6147 of 2011

Mr Comar

Appellant

And

Ms Dalal

Respondent

EXTEMPORE REASONS FOR JUDGMENT

Introduction

These reasons were delivered orally.
By Notice of Appeal filed 17 July 2014, Mr Comar (“the husband”) appeals against orders for the settlement of property made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Judge McGuire on 19 June 2014. The orders were made with the consent of the husband and Ms Dalal (“the wife”). The wife resists the appeal and seeks to uphold the orders.
Pursuant to s 94AAA(3) of the Act, on 2 September 2014, the Chief Justice determined that it was appropriate for this appeal to be determined by a single judge.
The husband and wife own property of relatively modest value, with their most valuable asset being a home unit located in south-western Sydney (“Unit S”). The orders require the husband to transfer his interest in the unit to the wife and that she discharges the mortgage secured over it and within six weeks pay the husband $55,000. The only other adjustment being that the wife transfers to the husband her interest in a motor vehicle.
It is the husband’s contention that settlement discussions proceeded on the erroneous basis that the unit was worth $265,000 and not the $295,000 he believes it was worth. Although there is no reference to this in his Notice of Appeal, it is his assertion that the settlement failed to take into account money which he says Mr R owed to the parties. On the basis that the unit is now valued at $300,000 and with him being reimbursed by Mr R for the unsecured loan just mentioned, the husband said that in lieu of payment to him of $55,000 he is entitled to receive about $156,000.
It is important to understand at the outset, that the parties’ competing property settlement claims were listed for hearing and each of them was represented by counsel when their bargain was struck and the orders were made.
This appeal was undertaken without the primary judge’s reasons for judgment. In this regard, there is reference in the transcript of the proceedings before his Honour to judgment having been delivered. It would seem that his Honour did no more than say he was satisfied the orders were proper. He did not need to say anything more (Harris v Caladine (1991) 172 CLR 84). The absence of reasons can create difficulty in an appeal where the appeal is concerned with an error of law. However, because the husband is clear that he does not challenge the adequacy of the reasons or other any other error of law for which reasons would be required, the lack of reasons is inconsequential.

Background Facts

To give this appeal context, it is necessary to record some brief uncontroversial facts. Reference will also be made to matters which are controversial. Because the matter settled without the parties or witnesses being cross-examined, it was not necessary for the primary judge or indeed possible, to determine those factual controversies. Nor can this be done on appeal. The significance of reference to controversial matters is to highlight that the matters about which the husband would seek to complain on appeal were raised in the court below and to a considerable extent compromised there. As will be explained later, there is no proper basis upon which the husband would now be permitted to pursue those matters on appeal.
The husband was born in 1968 in the Pacific Islands.
The wife was born in 1979 also in the Pacific Islands.
In 1988, the husband migrated to Australia. He has lived in Australia ever since.
The husband was married to his first wife between 1999 and 2001. That marriage having come to an end, in 2001, he advertised in a local newspaper for a wife. The wife answered the advertisement and in 2002 he returned to the Pacific Islands where the parties met for the first time.
They became engaged in 2003 and on the husband’s application, the wife was granted a visa to enter Australia. She arrived in Australia in December 2003 following which the parties married in 2004.
It is the husband’s evidence that at the commencement of cohabitation he owned:
·furniture and white goods valued at $15,000;
·superannuation of $15,000;
·a car valued at $12,000; and
·was the registered owner of a unit [that was next to Unit S] (“Unit T”).
According to the husband, he purchased that unit “… for the Wife (now deceased) of the Respondent Wife’s current de-facto partner in about

March 2003 for $150,000. I received the First Home Owners Grant of $7,000.00. I obtained a loan of $120,000.00 from ANZ Bank. The Balance of the monies came from [Mr R]” (Husband’s affidavit filed 7 November 2013, par 5).
The wife denied being in a de facto relationship with Mr R. That said there is no doubt that he is the father of her daughter, A, born in 2007.
According to the wife and Mr R, at the request of the husband and the wife Mr R agreed to assist them to have a child. The husband denies doing so and says he did not give the wife “permission” to have sexual intercourse with Mr R.
The wife says that the parties separated in August 2006 and they resumed cohabitation in March 2009. It is the husband’s evidence that the parties “…did not live separately until February 2011” (Husband’s affidavit filed 7 November 2013, par 10).
In any event, in about November 2006, the wife purchased Unit S for $220,000. The property was acquired in her sole name. It would appear to be common ground that to acquire the property she borrowed $140,000 from ANZ Bank and used some of her savings. It is the husband’s evidence that he contributed about $25,000 towards the acquisition and he acknowledges that $35,000 was advanced by Mr R. According to Mr R, he made a loan of $65,000 to the wife, only $35,000 of which has been repaid. The wife said she still owes Mr R $30,000.
Mr R corroborated the wife’s evidence that between April 2007 and

March 2009 the parties were separated and the wife lived with their daughter in the unit she owned.
In 2009, the wife refinanced the loan secured on Unit S and in so doing the husband was placed on the title as a joint owner. The evidence does not indicate whether the parties’ interests were as joint tenants or tenants in common.
At the same time, Mr R purchased Unit T from the husband. The Memorandum of Transfer for that transaction is attached to Mr R’s affidavit and reveals that the property was sold for $190,000. According to Mr R, about one week after he bought Unit T from the husband, the husband gave him a bank cheque for $35,000 being part repayment of the $65,000 he lent the wife to buy Unit S. Attached to Mr R’s affidavit is a copy of his bank statement which records a deposit for $35,000 at the relevant time.
This evidence cannot be reconciled with the husband’s evidence that Mr R did not pay him anything for the acquisition of the unit. In this regard, it is noteworthy that the Memorandum of Transfer, which is signed by the husband, “… acknowledges receipt of the consideration of $190,000 …”.
In January 2011, the husband withdrew $20,000 from the parties’ joint account which he says he “… used to pay the Mortgage until May 2011, living expenses for the Respondent Wife, expenses for myself to set up my current residence, Legal expenses on a successful defence of an AVO commenced by the Police on behalf of the Respondent Wife and Legal expenses on the paternity testing court case” (Husband’s affidavit filed 7 November 2013, par 14). Reference to the paternity testing court case is to a dispute between the husband and the wife concerning the child A’s paternity. As I have already indicated, it is agreed that Mr R and not the husband is the child’s father.
It would appear to be common ground on the appeal, but not so before

his Honour that the parties separated for the last time in February 2011. Whenever it was, there was no dispute that at the time of separation the wife had about $17,000 in an account styled as a trust account for the child.
The husband filed an application for property settlement in the Federal Circuit Court on 7 June 2013. Stated broadly, he proposed that Unit S be sold and after payment of selling costs and the mortgage, the wife receive 35 per cent of the net balance and he receive 65 per cent. The parties would otherwise retain assets in their name and the wife declared to have no interest in his service business.
By her Response filed on 19 July 2013, the wife sought that the husband transfer his interest in Unit S to her and she indemnify him in relation to the mortgage secured on the property. It was the wife’s position that the parties would otherwise retain assets in their sole name. It would appear that other than the mortgage there were no joint liabilities.
The proceedings were listed for hearing before his Honour on 19 June 2014. As has already been mentioned, at the hearing each of the parties was represented by counsel. After short opening addresses from both counsel the matter was stood down. When the hearing resumed one hour later his Honour was informed that the parties had reached an agreement, the effect of which was that upon the payment of $55,000 to the husband by the wife, he would transfer his interest in the unit to her. Minutes of proposed consent orders were then presented, relevantly those minutes being signed by the husband. The transcript of the proceedings demonstrates that the husband was in court when those exchanges took place and the consent orders presented.

The hearing before the primary judge

In preparation for the hearing, the parties obtained a joint valuation of the unit at Unit S. In the valuer’s opinion, which is dated 23 September 2013, the unit was valued at $265,000. In his Case Outline document and opening addresses, counsel for the husband pointed out that it was the husband’s assertion that as at the date of hearing, the value of the unit had increased to $295,000. Other than the husband’s bald assertion that the value of the unit had increased, there was no admissible evidence presented in support of that proposition. As the transcript of the proceedings reveals, his Honour was familiar with the evidence. He pointed out that this lack of evidence presented obvious difficulties to the husband if he sought to establish that the unit was worth more than the amount identified in the valuer’s report.
In any event, it was agreed that the amount outstanding on the mortgage was $151,374 and the motor vehicle was worth between $2,000 and $3,000. The husband’s superannuation had an agreed value of $24,933, as did the wife’s at $12,905.
In relation to the identification of the parties’ property, liabilities and financial resources, there were disagreements about the inclusion of a $13,500 Visa card liability in the husband’s name and whether the $20,000 he withdrew in January 2011 should be notionally added back as his property. There was also a dispute as to the wife’s indebtedness to Mr R. As has already been mentioned, she said she owed Mr R $30,000 which the husband did not admit. So that it is clear, notwithstanding the husband’s evidence Mr R did not pay him the consideration due on the sale of Unit T, the husband did not include as an asset or financial resource the amount which he now says Mr R owes him.

Discussion and Conclusion

Particular considerations arise when, on an appeal concerned with an error of law, an appellant challenges orders made with the appellant’s consent. It is well settled that the different nature of orders made by consent, compared to other orders, means that the grounds upon which a party to orders made by consent can appeal are more limited. Namely, “… the correctness of an order may not be appealed on its merits by a party who consented to the order. Rather, that party’s right of appeal is limited to vitiating grounds, such as fraud, mistake, fresh evidence or the absence of jurisdiction” (see Allan v Allan & Ors [2014] FamCAFC 162 at [64]; Gilbert v Estate of Gilbert (1990) FLC 92-125 at 77,839).
Although a subsequent increase in the value of the unit as alleged would not provide a ground for appeal or impugn the consent orders, it needs to be understood that the husband has yet to produce evidence that the unit was worth more than $265,000. Provision was made for him to adduce further evidence in the appeal provided he presented any application to do so by 17 October 2014. The husband did not file any such application and did no more than today seek to tender a letter from a real estate agent which said it would cost $300 to obtain an updated opinion. The point being, there was no updated opinion and this court is still in the position that the husband asserts a value unsupported by any evidence.
It follows that neither before the primary judge or at this hearing has the husband produced evidence to establish the fact which underpins the challenge he makes to the orders of the primary judge and which might be regarded as fresh evidence for consideration on the appeal.
As to whether or not Mr R is indebted to the husband, that issue can be agitated elsewhere. The existence of that dispute does not constitute a valid ground of appeal. In this regard, it needs to be understood that a party is generally bound by the conduct of his or her case. In circumstances where the husband gave evidence in the court below that Mr R was indebted to him but then compromised the entire case, it is not open to the husband to complain on appeal that his Honour did not explore an issue which, by the settlement, the husband determined did not require adjudication.
The husband makes complaints about the conduct of his counsel before the primary judge, in particular, that he did not test the evidence adduced in the wife’s case and permitted the matter to settle. However, as has already been referred to, the husband signed the consent orders presented to

the primary judge and was present when his counsel informed the court that the parties had reached agreement and set out the terms of the agreement. The husband was present in court when his Honour indicated he was willing to make the orders and proceeded to make them. At no stage did the husband speak up and say he did not agree to the orders being made or ask that

his Honour put them aside and proceed with the hearing. This is a clear case where the husband is bound by the conduct of the case below and it is not accepted that the matters that he now seeks to raise can be permissibly raised in an appeal (see Metwally v University of Wollongong (1985) 60 ALR 68; Coulton & Holcombe (1986) 162 CLR 1; and Water Board v Moustakas (1988) 180 CLR 491).
It probably not necessary to refer, but for completeness I will, to the husband’s contention that in a statutory declaration and the wife’s divorce application (Exhibit “A”) there is evidence which he says would tend to demonstrate that her evidence concerning separation between 2006 and 2009 should not be accepted. As the husband pointed out, these are documents he has had for a long time and form part of the Federal Circuit Court file. If those documents would do as the husband says, it was incumbent on him to use them to challenge the reliability of the wife’s evidence before the primary judge. It is not accepted that those documents would enable the husband to now vitiate the process in the court below or the orders made by his Honour.
Put simply, none of the circumstances referred to in Allan & Allan & Ors or Gilbert v The Estate of Gilbert arises in this case.
It follows that the husband’s appeal will be dismissed.

Costs

It was submitted by counsel for the wife that the wife should have her costs and that her costs should be paid on an indemnity basis rather than party/party basis. In support of that proposition, correspondence dated 5 August 2014 and 2 October 2014 from the solicitors for the wife to the husband is relied on.
The gravamen of the correspondence is that it contains offers at particular points in time that if the husband discontinued his appeal at those times the wife would not pursue an order for costs. In addition, that if the husband chose to continue with an appeal which was described as hopeless, then costs would be sought on an indemnity basis.
The offer for settlement weighs in favour of an order for costs. It is not accepted that the offers of settlement provides, in this case, a foundation for an order for indemnity costs. Indemnity costs are rarely ordered and one needs only to look at cases such as Colgate Palmolive Co v Cussons Pty Limited (1993) 46 FCR 225 and Prantage & Prantage (2013) 49 Fam LR 197, to appreciate that the threshold for an order for indemnity costs is high indeed. A mere assertion that an application will be made for an order for indemnity costs does not establish a basis for an order for indemnity costs. It constitutes notice but nothing more.
In my view, this case does not fall within that limited category of case which would make an order for indemnity costs appropriate. However, the factors to which I have referred amount to justifying circumstances and weigh heavily in favour of an order for costs. There is nothing presented by the husband which would counter-balance an order of that type not being made.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on

7 November 2014.

Associate:

Date: 14 November 2014