Conroy & Penner

Case [2022] FedCFamC1A 39

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Conroy & Penner [2022] FedCFamC1A 39

Appeal from: Penner & Conroy (No. 2) [2021] FamCA 411
Appeal number(s): EAA 78 of 2021
File number(s): SYC 8355 of 2017
Judgment of: TREE, WILLIAMS & RIETHMULLER JJ
Date of judgment: 24 March 2022
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from final property settlement orders – Where the grounds seek to challenge the primary judge’s evaluation and assessment of the parties’ relevant contributions and valuation findings – Where the impugned findings of the primary judge were open on the evidence – Adequacy of reasons – Where parties are bound by the way they conduct their case at trial – Technical errors of the primary judge were immaterial – No error established – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:

Family Law Act 1975 (Cth) s 79

Evidence Act 1995 (Cth) s 136
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Browne v Dunn (1893) 6 R 67

De Winter v De Winter (1979) 23 ALR 211

House v The King (1936) 55 CLR 499; [1936] HCA 40

LC v TC (1998) FLC 92-803; [1998] FamCA 47

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Penner & Conroy [2020] FamCA 1128
Number of paragraphs: 76
Date of hearing: 23 February 2022
Place: Sydney (via video link)
Counsel for the Appellant: Mr Beaumont SC with Mr Roberts
Solicitor for the Appellant: Blanchfield Nicholls
Counsel for the Respondent: Mr Kearney SC with Mr Longworth
Solicitor for the Respondent: Somerville Legal

ORDERS

EAA 78 of 2021
SYC 8355 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR CONROY

Appellant
AND:

MS PENNER

Respondent

ORDER MADE BY:

TREE, WILLIAMS & RIETHMULLER JJ

DATE OF ORDER:

24 MARCH 2022

THE COURT ORDERS THAT:

1.Appeal No. EAA 78 of 2021 is dismissed.

2.Within 28 days, the appellant pay the respondent’s costs in the sum of $30,000.

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 (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

TREE, WILLIAMS & RIETHMULLER JJ:

INTRODUCTION

  1. By his Further Amended Notice of Appeal, Mr Conroy (“the husband”) appeals from final property…

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AGLC
Conroy & Penner [2022] FedCFamC1A 39
Case
[2022] FedCFamC1A 39
Decision Date

CaseChat Overview and Summary

Conroy & Penner is an appeal against final property settlement orders made by the Federal Circuit and Family Court of Australia. The husband sought to challenge the evaluation and assessment of the parties' contributions and the valuation findings made by the primary judge. The appeal grounds focused on whether the primary judge's findings were open on the evidence and whether there were any errors in the reasoning or adequacy of reasons provided.

The court found that the primary judge's findings were open on the evidence and that the parties were bound by the way they conducted their case at trial. The technical errors made by the primary judge were immaterial, and no error was established. The appeal was dismissed, and costs were ordered in a fixed sum.

The court held that the husband's appeal grounds were not established, and the appeal was dismissed. The court ordered the husband to pay the wife's costs in the sum of $30,000 within 28 days. The form of the order is subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order. It is an offence to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings, except in very limited circumstances.

Orders

Orders of the court

EAA 78 of 2021

SYC 8355 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CONROY

Appellant

AND:

MS PENNER

Respondent

ORDER MADE BY:

TREE, WILLIAMS & RIETHMULLER JJ

DATE OF ORDER:

24 MARCH 2022

THE COURT ORDERS THAT:

1. Appeal No. EAA 78 of 2021 is dismissed.

2. Within 28 days, the appellant pay the respondent’s costs in the sum of $30,000.

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 (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, the appeal will be dismissed.BACKGROUND At the time of the property settlement orders, the husband was aged 60 years and the wife 54 years. The husband had been unemployed since being made redundant in September 2013. The wife was a partner in a Sydney business which she established in 1993. The parties commenced a relationship in early 2008 and were married in May of that year. At this time, both parties had children from previous relationships; the wife had three children aged 10, 9 and 7 and the husband had two children aged 12 and 10. The wife’s children lived with the parties for 12 nights per fortnight and the husband’s children six nights per fortnight. In September 2008, the parties jointly purchased Suburb F for $6,510,385. Their contributions to its acquisition was a point of contention at the trial, and certain findings as to them are challenged on appeal. The parties opened a flexible loan facility (“the portfolio facility”) in joint names with an overall limit of $5,495,000 to help fund the purchase. The portfolio facility could be allocated between a number of subaccounts, and also had an offset account attached into which the parties paid their residual income. In March 2014, the parties separated and the wife and her children left Suburb F and rented elsewhere for a number of years. The husband remained living in Suburb F up until its sale in October 2018. Significant expenditure and works were required to ready Suburb F for sale, including renovating a structural wall costing $60,000, the purchase of furniture, and removing the heritage listing. On 16 March 2018, a contract for Suburb F for $11,200,000 was signed. By then, on 15 December 2017, the wife had initiated these proceedings. On 19 March 2018, the parties were able to agree upon consent orders dealing with the proceeds of sale of Suburb F, which provided for all relevant loan accounts to be discharged, all legal and real estate fees paid, and for each party to retain $3 million by way of partial property settlement. The sale of Suburb F settled in October 2018 and the portfolio facility was paid out and each party received their partial property settlement. The remaining funds were placed in a controlled monies account and are the funds referred to in Order 1 made 21 June 2021. The distribution of those funds was the subject of contention at trial; the wife sought to retain the entirety of them and the husband sought 60 per cent of them. Another point of contention between the parties at trial was the husband’s superannuation. The wife sought a split of it in the sum of $1,500,000, whereas the husband contended that there should be no superannuation split. Leading up to trial, orders were made appointing single experts to value the wife’s interest in her business, two other properties owned by the wife, and to assess the relevant market rental value of Suburb F, with such reports later being admitted into evidence at the trial. The husband also sought to rely upon a report of Mr B containing expert evidence in relation to the husband’s company, C Pty Ltd (“C Company”). The structure of that company included the husband’s self-managed superannuation fund, and was designed to provide income to the husband upon his retirement when he turned 65 in March 2026. Mr B’s report detailed the company’s potential capital gains tax liability upon realising its assets when the husband retired. The husband’s application to rely upon Mr B’s report was heard on the third day of trial, after which the primary judge dismissed it for reasons delivered ex tempore on 3 December 2020 (Penner & Conroy [2020] FamCA 1128).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ground 2 fails entirely.CONCLUSION No ground of appeal is established and therefore the appeal will be dismissed.COSTS In the event the appeal failed, the husband conceded he could not resist an order for costs. The schedule of costs filed by the wife totalled $34,189.66, however plainly some of the items claimed were not properly party/party costs. Faced with that difficulty, the wife contended that she ought to be awarded solicitor/client costs, albeit calculated at scale. We are not satisfied that the dismissal of this appeal warrants anything other than an order for costs on a party/party basis. Given the schedule contains items extraneous to such costs, doing the best we can we fix the wife’s costs in the sum of $30,000. Those costs should be paid within 28 days.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.