Daultrey & Tavener
[2024] FedCFamC1A 64
•22 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Daultrey & Tavener [2024] FedCFamC1A 64
Appeal from: Daultrey & Tavener [2023] FedCFamC2F 1480 Appeal number: NAA 345 of 2023 File number: CAC 374 of 2018 Judgment of: CAMPTON J Date of judgment: 22 April 2024 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from a determination that it was not just and equitable to make orders adjusting property – Where the appellant raises grounds as to error of principle and failure to provide adequate reasons, and asserts that the primary judge made findings which were either not available on the evidence or against the weight of the evidence – Where no error of principle is established – Where the findings were open on the evidence and not contrary to the weight of the evidence – Where the findings were satisfactorily explained – Appeal dismissed – Order for the appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 90SM Cases cited: Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Bennett v Bennett (1991) FLC 92-191; [1990] FamCA 148
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Cosola & Moretto (2023) FLC 94-143; [2023] FedCFamC1A 61
De Winter v De Winter (1979) FLC 90-605
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Pachris & Tajir (No 3) [2023] FedCFamC1A 230
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Re The Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407; [2000] HCA 1
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 145 Date of hearing: 15 April 2024 Place: Sydney Counsel for the Appellant: Mr Givney Solicitor for the Appellant: Walsh & Blair Lawyers Counsel for the Respondent: Mr Catlin Solicitor for the Respondent: HPH-Princeton Legal ORDERS
NAA 345 of 2023
CAC 374 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DAULTREY
Appellant
AND: MS TAVENER
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
22 APRIL 2024
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed 14 February 2024 is dismissed.
2.The appellant pay the respondent’s costs fixed at $15,000 within 28 days.
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 Daultrey & Tavener has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By Notice of Appeal filed on 14 December 2023, as amended on 14 February 2024, Mr Daultrey (“the appellant”) appeals from orders made on 17 November 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 2) in proceedings as to the adjustment of property pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”). Ms Tavener (“the respondent”) opposes the appeal.
The parties engaged a series of “on again/off again” de facto relationships, first commencing in February 2009 and finally terminating in November 2014. The primary judge recorded:
2 The parties’ relationship was short and there were no children of the relationship. The matter was heard by me on 15 October 2023. By that stage the parties had been litigating for 5 years. The veracity of each party was in question…
3…Given issues about the parties truthfulness the manner in which the trial was conducted compounded the Court’s difficulty in assessing contributions not to mention the delay since the parties separated in November 2014.
(Emphasis added)
The primary judge found that each of the appellant and respondent had not made a full and frank disclosure of their relevant financial circumstances. The appellant challenges on appeal the finding made against him. The findings at [43] as to the parties keeping their income and finances always separate, and at [49] as to the appellant adducing scant evidence as to his non-financial contributions, are not the subject of complaint.
The appellant sought an order that the respondent pay him $568,950. The respondent sought that the appellant’s relief for property adjustment be dismissed.
On 22 October 2020 an order was made for the respondent to pay to the appellant $200,000 by way of interim property adjustment. After considering that payment, the primary judge determined that it was not just and equitable to make any further order adjusting the property of the parties. Declarations were made as to the parties’ respective property interests.
For the reasons that follow, the Amended Notice of Appeal filed 14 February 2024 is dismissed.
BACKGROUND
The appellant was born in 1961 and is currently 63 years old. The respondent was born in 1970 and is currently 54 years old.
In 1990 the appellant commenced work as a tradesman for G Pty Ltd (“G Pty Ltd”), owned and operated by his ex-wife’s parents, and within a few years was appointed in a managerial role. In 2001 K Pty Ltd (“K Pty Ltd”), of which the appellant was the sole director and sole shareholder, purchased a 24.9 per cent interest in G Pty Ltd for $647,000 funded by an interest free vendor loan from his ex-wife’s parents. In 2009 the value of this liability was $246,136.
The appellant had four children from previous relationships, all of whom are now adults. At the commencement of the relationship, the appellant lived with his two younger daughters, aged 18 and 14 years old at the time, and with the 18-year-old daughter’s boyfriend. The primary judge found the appellant contributed at that time:
(1)A property at [O Street, Suburb P], N.S.W. (“[O Street]”) acquired in June 2007 for $473,500 subject to two loans valued in June 2009 at $84,665 and $378,800;
(2)A 24.9% interest in a business named [G Pty Ltd], including land on which the enterprise traded, subject to a vendor finance debt of $246,136;
(3) [Motor Vehicle 1]; and
…
25 …The [appellant] held an interest in superannuation in June 2009 of $114,760.
(Footnotes omitted)
At the commencement of the relationship the respondent had sole care of her three children, who at that time were aged eight, four, and two years old. The primary judge found she contributed:
(1)Home at [J Street, Suburb Z in City D] N.S.W. (“[J Street]”) acquired in July 2004 for $565,000;
(2) Furniture and Effects;
(3) An investment property being [H property, AA Street, Suburb BB] in Brisbane (“[H Property] Apartment”) purchased for $519,000 subject to a mortgage of $579,958;
(4) [Motor Vehicle 5]; and
(5) A business with equipment.
21… She had an interest in superannuation of $17,000 when the relationship commenced.
(Footnotes omitted)
Some of the primary judges’ findings were not the subject of contest on appeal, including that the property at J Street, Suburb Z (“the J Street property”) was unencumbered at the commencement of the relationship save it being a collateral security for the loan secured against H Property, AA Street, Suburb BB QLD (“the H property Apartment”) (at [175]), and:
28 I find that at the commencement of the relationship the [respondent’s] property interests were substantially greater than the [appellant’s] interests. I accept the [appellant’s] interest in superannuation was greater than the interest in superannuation held by the [respondent].
The primary judge found (at [31]) that in early 2009 the parties commenced cohabitation when the appellant and one of his daughters moved into the respondent’s property at
J Street. The appellant did not pay rent to the respondent. He retained the rent received from his investment property at O Street, Suburb P (“the O Street property”). The parties separated when the appellant and his daughter moved out of the J Street Property in or about mid-2009 (at [32]). The primary judge found that the respondent met all outgoings on the J Street Property (at [32]) and that the appellant did not make any financial or non-financial contributions to that property during that period of cohabitation (at [33]).
The appellant during the period of separation lived at a property owned by his ex-wife’s parents. In cross-examination the appellant agreed that during the period of separation he was supporting his children rather than making a financial contribution to the respondent’s expenses. The primary judge found that the parties lived separately and apart from mid-2009 to early 2010, when the appellant moved back into the J Street Property, and during that period the appellant did not make any significant financial or non-financial contributions (at [44]). A finding not challenged on appeal was that the respondent continued to retain his income and the rent from his real property to meet his own expenses, and that he was generally not available to assist the respondent with her children due to his work commitments (at [48]).
The primary judge found that another period of cohabitation occurred from early 2010 to mid-2012 (at [71]). From Easter 2011 the respondent rented a property for 12 months and leased the J Street property.
The single forensic accounting expert, Mr Y, produced a report tracing each party’s management and application of their separated funds throughout their relationship, identifying the “lapping practices” of the appellant. “Lapping” is a practice whereby money is taken from one account, transferred to another, and then transferred back again, commonly engaged “where people are constantly in a battle to find the funds to meet their loan commitments”. The appellant challenges on appeal the primary judge’s acceptance of some of the evidence of the single expert.
In April 2010 the Daultrey Property Unit Trust (“the Daultrey Unit Trust”) was established. The appellant’s company, K Pty Ltd, was trustee for the Daultrey Unit Trust. The appellant held the issued units in the Daultrey Unit Trust.
On 30 September 2010 the respondent sold the H property Apartment to the Daultrey Unit Trust. The primary judge found, challenged on appeal, that the agreed consideration for the acquisition was initially $650,000 and following discussions, the respondent agreed to reduce the contract price of the apartment by $70,000 to $580,000 so that a loan could be approved for the appellant, by way of the Daultrey Unit Trust, to purchase the property. The primary judge accepted, challenged on appeal, the case of the respondent that the appellant agreed to pay her “the residual amount” upon the disposal of his interests in G Pty Ltd (at [54]).
Mr TT, both an accountant and a solicitor, acted for all parties on the sale. The sum of $461,859 was advanced by the incoming mortgagee, the ANZ Bank, to the Daultrey Unit Trust. The primary judge found at [66] that the respondent received at total of $437,380 from this advance, being made up of $227,977 applied to partially reduced her mortgage loan previously secured the H property Apartment collaterally secured on the J Street property, and a further amount of $209,403 that was “set aside [and paid to Mr TT] to fund the [Town F] Development project”. It was uncontroversial that funds the respondent received on the disposal was $212,620 less than the $650,000 initially recorded on the contract, and $142,620 less than the reduced contract price of $580,000.
The property development in Town F, Queensland was constructed to access the National Rental Affordability Scheme (“the NRAS”). In September 2011 $208,008 was transferred by the respondent from the funds received on the H Property Apartment transaction to Mr TT Trust account to invest in the development.
In June 2014, E1 Street, Town F (“Town F Property E1”) and E2 Street, Town F (“Town F Property E2”) were purchased for $195,000 each by the respondent as trustee for both the E1 Property Unit Trust and the E2 Property Unit Trust respectively. The primary judge found, absent controversy on appeal, that the trust deed records a requirement for the appellant had to pay for units in the E1 & E2 Property Unit Trusts to become a unit holder, and that he had not made any payments for them. Hence, the respondent held the single unit holding in each trust. The purchase of both the Town F properties, excluding a deposit of $19,500 each, were funded from NAB mortgage accounts in the name of the respondent as trustee for each of the E1 & E2 Property Unit Trusts.
Between 2015 and 2020 the appellant received $82,610 in payments sourced from the NRAS scheme for the Town F properties (at [79]). The primary judge found that over the same period the respondent “almost exclusively” funded the Town F property development, including paying all outgoings, whilst the appellant received the income and a substantial personal taxation benefit.
In October 2011 the respondent purchased vacant land at Lot T, A Street, Town B NSW (now referred to as “the A Street property”) and Lot C, A Street, Town B NSW (“Lot C”) for $150,000 each.
The purchase of the A Street property was funded by K Pty Ltd borrowing $216,000 from the NAB (at [86]). The primary judge found that the purchase of Lot C was funded by $14,500 from the appellant’s personal account (at [99]), and $145,000 from funds of K Pty Ltd (at [100]).
In January 2012 the respondent obtained two loans from NAB in the amounts of $660,000 and $440,000, secured on the A Street, Town B properties and on the J Street property (at [90]). The appellant became a joint borrower on the loan of $440,000 to construct a dwelling on the A Street property (at [101]). The K Pty Ltd loans were paid out.
A dwelling was constructed on the A Street Property. In March 2012 the respondent refinanced the J Street property and applied the funds towards the building costs on the A Street property.
In or around July 2012 G Pty Ltd advanced to the appellant a loan of $125,000 to pay the builder the final instalment on the dwelling at the A Street property. In November 2012 the G Pty Ltd loan was repaid by increasing the construction mortgage account secured upon the A Street, Town B properties and the J Street property from $440,000 to $660,000.
In January 2013 the respondent sold the J Street property for $730,000. She applied these funds to part repay two NAB loan accounts secured upon the A Street, Town B properties, totalling $705,434, and otherwise discharged expenses and rates.
In April 2013 the respondent purchased a property at M Street, Town B (“the M Street property”) for $245,000 by way of 100 per cent finance from a NAB account in the parties’ joint names. She agreed that her sister paid the appellant $200 per week, and the appellant paid $250 per week towards the mortgage. The respondent made loan repayments of $8,769 and the appellant made loan repayments of $2,923.
G Pty Ltd sold its trading enterprise in September 2013 to BF Company for $3,300,000. K Pty Ltd received $775,717, being made up of a payment of $609,792 on 30 September 2013, and a payment of $165,930 on 10 January 2014. The appellant became an employee of BF Company. He was made redundant from BF Company in March 2016 and received a redundancy payout of $96,307.
G Pty Ltd owned the real property on which it traded and operated at N Street, City D (“the N Street properties”). When the G Pty Ltd trading enterprise was sold, the N Street properties were leased to BF Company. The appellant, by way of K Pty Ltd, retained a 24.9 per cent interest in the real property and received rental income until 31 January 2020 when the N Street properties were sold and the appellant, by way of K Pty Ltd, received a further $729,000.
K Pty Ltd received as total of $1.568 million by way of its disposal of its interests in G Pty Ltd. The primary judge found:
119 The [appellant] left the [A Street] property permanently in 2016. None of the funds received by the [appellant] from the sale of his interest in [G Pty Ltd] other than the $199,890.90 were contributed by the [appellant]. However I am satisfied that the sum of $199,890 should be construed as a financial contribution by the [respondent] based on my finding that the [appellant] agreed and later paid the shortfall on the sale to him of the [H Property Apartment].
(Emphasis added)
The appellant sold the O Street property in October 2015 for $605,000. The proceeds of sale were found (at [120]) to have been distributed to pay out the appellant’s loan accounts of $345,814 and $62,494 with the NAB, $166,956 was paid into the appellant’s personal account, and $20,000 to pay off his credit card.
The primary judge found, not challenged on appeal, that none of the net proceeds of sale of the O Street property were contributed to the properties of the parties (at [120]).
The appellant sold the H property Apartment in July 2017 for $520,000. The balance received by the appellant on settlement was $495,293. The primary judge found at [122] that “the evidence regarding this transaction remains entirely unsatisfactory save that I accept the H property apartment sold” and was not satisfied that any of the net proceeds of sale from the H property Apartment were contributed by the appellant to the property of the parties.
K Pty Ltd last lodged a tax return in 2015. The company was deregistered in November 2020.
THE APPEAL
The relevant principles governing appeals from discretionary judgments is well settled. Error of the type identified in House v The King (1936) 55 CLR 499 (“House”) at 504–505 must be established. There, the majority of the High Court said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred…
That an appellate court might have arrived at a different outcome by virtue of affording some, less, or more weight to matters of fact does not establish error of the kind identified in House to justify appellate intervention, unless the result achieved is unreasonable or plainly unjust (Hedlund & Hedlund (2021) FLC 94-065 (“Hedlund”) at [37]).
The Amended Notice of Appeal contains 10 grounds of appeal. The grounds fall into overlapping categories. The appellant’s Summary of Argument and oral submissions did not, in the main, engage with the specific appellate error, preferring to adopt a more broad-brush approach. At the hearing of the appeal the appellant said and repeated that the decision of the primary judge was the “wrong outcome” and hence, implicitly, that it was not just and equitable. The purpose of a Notice of Appeal is to identify with precision the errors that the appellant asserts the primary judge made. It sets out the metes and bounds of the appeal (Pachris & Tajir (No 3) [2023] FedCFamC1A 230). No application was made to further amend the Amended Notice of Appeal. Notwithstanding making statements during the hearing of the appeal as to the decision of the primary judge being unjust, the appellant did not nominate a ground as identified in the last limb of House. To the extent that the appellant’s submissions contained within his Summary of Argument and oral submissions extend beyond the grounds as contained in the Amended Notice of Appeal, they are outside the ambit of the appeal.
An appeal is not an opportunity for an appellant to re-run their case, attempting to convince the appellate court that absent appealable error of the kind identified in House, it should nonetheless come to a different conclusion. To some extent, that appears to be what the appellant is trying to do in this appeal. The respondent, to a not dissimilar extent, exhibited an absence of engagement with relevant appellate principles, preferring to identify what she perceived as the merits of her case at first instance.
At the hearing of the appeal, it was agreed that Ground 8 contends an error of law as to a failure to identify and apply relevant principle, Grounds 10, 7, 3, 6 (and its nine sub-grounds), 4 and 2 assert errors of fact, Grounds 1 and 9 are challenges as to weight, and Ground 5 is a reasons challenge. The grounds shall be addressed in that order.
Ground 8
Ground 8 reads:
8. [The primary judge] assessed the contributions of the parties by analysing [at times incorrectly] by dissecting the minutia of various transactions that occurred during the course of cohabitation and subsequent and then determined in a [apparently] mathematical approach each of the parties’ entitlement in lieu of simply determining the asset pool, determining the parties’ contributions to the pool on a percentage basis and then considering if there be an adjustment to either parties and then considering whether the result so obtained was just and equitable.
The ground asserts the primary judge made a mistake in law as to the approach in determining applications for the adjustment of property pursuant to s 90SM of the Act. It is useful to record what that section provides:
90SM Alteration of property interests
(1) In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them—altering the interests of the parties to the de facto relationship in the property; or
…
…
(3) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii) otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e) the matters referred to in subsection 90SF(3) so far as they are relevant; and
(Emphasis added)
In support of the ground, the appellant in his Summary of Argument submitted:
64.[The primary judge] failed to approach the matters simply on the basis of considering the asset pool and considering the overall contributions of the parties.
…
66.In circumstances of this case, an asset by asset approach was simply inappropriate and could not possibly have brought about a just and equitable result.
(Emphasis added)
The primary judge identified longstanding authority as to the approach to determine applications seeking the adjustment of property interests pursuant to s 90SM of the Act, recording:
162…The Court is required to identify the property, liabilities and financial resources of the parties at the time of the hearing, to evaluate the contributions made by the parties under section 90SM (4) (in de facto cases) including the matters referred to in section 90SF (3) in so far as they are relevant. Under section 90SM (3) the Court must not make an order unless it is satisfied that in all the circumstances it is just and equitable to make the order. It is the justice and equity of the actual order that the court is required to consider: See Russell v Russell (1999) FLC 92-877.
After making findings as to assets, liabilities and financial resources, including the superannuation of the parties (at [165]), the primary judge undertakes the fundamental task outlined by the High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) as to the whether the mandatory s 90SM(3) enquiry is answered in the affirmative. The primary judge appropriately gave consideration to the s 90SM(4) factors in informing the s 90SM(3) enquiry.
Upon the determination that it was not just and equitable to adjust the property of the parties because the s 90SM(3) mandate had not been achieved, the primary judge appropriately did not evaluate the contributions or any adjustment thereto, whether in percentage or monetary terms (see Bevan & Bevan (2013) FLC 93-545 (“Bevan”) at [89]; Cosola & Moretto (2023) FLC 94-143 (“Cosola & Moretto”)).
The ground is misconceived, in that it either misapprehends the terms of the determination of the primary judge, or it seeks to impose a limitation on the construction of s 90SM of the Act as identified in the High Court’s statement of the law in Stanford, and as to the guidance of the Full Court in Bevan.
The ground makes the very assumption that the High Court in Stanford at [40], as identified by primary judge at [17], said ought not be made, being that either party has the right to have their property divided between them or has the right to an interest in relationship property by reference to the mattes set out in s 90SM(4). Engaging with the ground another way, it would be absurd for the primary judge to make findings as to contributions and any adjustment to that finding pursuant to s 90SM(4) when determination had been made that it was not just and equitable to adjust the property interest of the parties (see Cosola & Moretto at [27] – [42]).
In so far as the ground criticises the approach of the primary judge in the task of consideration of contributions “by dissecting the minutia of various transactions”, such criticism is not available. The approach adopted by the primary judge in considering the s90SM(4) factors, was both available and legitimate in the circumstances of this case, having regard to:
(a)It being reflective of the way the parties conducted their short, disrupted relationship, characterised by maintaining a strict division of their separate income and finances and the method by which they dealt with property;
(b)How the litigation was approached and presented by each of the parties; and
(c)It being supported by the non-financial contributions of the appellant not looming as material.
This ground fails.
Ground 10
Ground 10 asserts:
10. [The primary judges] finding that the Appellant had not made a full and frank disclosure was not fair and was not available to her on the evidence.
The High Court in House did not identify as ground of appeal from a discretionary judgment that a finding is “not fair”. This ground is accordingly limited to whether the primary judge erred in fact in making a finding that the appellant had not engaged in a full and frank disclosure of his relevant financial circumstances.
The appellant’s Summary of Argument focuses on [159] of the reasons for judgment. There, the primary judge said:
I take into account that there has not been full and frank disclosure on the [appellant’s] part. That matter is significant given that during the relationship the [appellant] received about $1.5 million from the sale of his interest in [G Pty Ltd] and sale of [N Street] premises…
The foundations supporting the ground is anchored to the specific finding that the appellant had not made a full and frank disclosure as to his use and application of funds received on the disposal of the G Pty Ltd trading enterprise and later its real property. In oral submissions, the appellant submitted that the finding as to G Pty Ltd was the “main finding” supporting the ground.
By way of context, the primary judge was critical of the evidence of both of the parties. A finding was made (at [2]) that the veracity and reliability of the evidence of each party was in question at trial. The reasons identify one of the respondent’s disclosure failures, being:
3The [respondent] failed to disclose income she received from NDIS in excess of $300,000. She failed to disclose financial statements as service provider for NDIS nor any details of staff engaged by her, nor the existence of a [Motor Vehicle 4] for which she paid cash of $130,000.
(Emphasis added)
Some of the subsidiary findings made by the primary judge that underscore the finding subject to challenge:
·Firstly, as to context, K Pty Ltd was the hub of the financial conduct of the appellant, holding the appellant’s trading and real property interests in G Pty Ltd. It later also became the entity that was the trustee of the Daultrey Unit Trust holding the H Property Apartment (and on that subject matter, the ground overlaps with Ground 6.8), then also the entity that owned BJ Company, and was the vehicle used by the appellant to raise finance.
·Secondly, the last taxation returns and financial statements disclosed by the appellant for K Pty Ltd were for the 2015 tax year. The H Property Apartment was sold two years later in 2017. BJ Company operated for several years thereafter. The second receipt of funds (on the sale of the G Pty Ltd real property) was in 2020. That real property had produced rental income for K Pty Ltd for the five years from 2015 until 2020. None of these significant financial transactions are the subject of mandatory corporate record keeping and disclosure.
·Thirdly, K Pty Ltd was deregistered in November 2020.
In contending that the specific finding in [159] was not available, the appellant identified his affidavit evidence that set out schedules he had prepared as to application of the proceeds of each G Pty Ltd disposal. The schedules included numerous items he said were incurred in the construction of the residence on the property at the A Street property sourced from the 2013 G Pty Ltd disposal of its trading enterprise.
A reading of the whole of the reasons is required to unpack the finding subject to challenge by way of the ground. The appellant failed to engage on appeal with the myriad of subsidiary findings made by the primary judge grounding the concluding finding as to his disclosure failures and as to an absence of reliability in his evidence. The primary judge recorded:
2…The [appellant] made a number of bald assertions about his financial contributions during the relationship unsupported by independent documentary evidence. He failed to produce financial records that would likely assist in unravelling the labyrinth of his financial transactions.
The transcript reveals that during his cross-examination the appellant abandoned many assertions he made absent verification in his affidavit evidence, including:
(a)He said that he paid the rates and “strata levies” for the Town F properties. He conceded he had not done so, and that the respondent had paid the arrears of strata levies of $43,000 (at [79]).
(b)He said that a period of separation, from May 2009, he paid for most of the shopping for the respondent and supported her and her children financially, including paying living expenses, private school fees and music lessons. When cross-examined he conceded that his money was only applied to support his own children.
(c)He conceded that weekly wage as asserted was inaccurate.
(d)He said that he took a $145,000 loan from K Pty Ltd in 2016. During his cross-examination the date of the transaction shifted to be prior to 2013. The advance was not recorded in the K Pty Ltd balance sheet. The primary judge found it was an accounting creation in the year ended 30 June 2024 (at [147] and [148]). The cross-examination of the appellant at trial that the loan was "not genuine" open.
Other subsidiary findings as to the reliability of the appellant’s evidence and the integrity of his “bald assertions” about his financial contributions and conduct (some of which are the subject of challenge on appeal by way of other grounds) also included:
(a)As to the appellant’s conduct and role in the purchase and sale of the Apartment:
59…No bank statement nor any documentary evidence was produced to support that the deposit [of $58,000] was in fact paid [by the appellants Daultrey Unit Trust] and who received it…The property settled [in late] 2010 when the sum of $461,859.30 was handed over by the ANZ bank. The [appellant] claimed the [Daultrey Property Unit Trust] obtained the loan from the ANZ bank… a copy of the ANZ bank statement evidencing the loan payment and that document was never produced.
60 The evidence with respect to this transaction remains unsatisfactory. The [appellant] claimed that the ANZ loan was paid out by an NAB mortgage account number [“…99]” for $440,000. No record of that account exists though a subpoena was issued to NAB to produce the account. No settlement statement was produced. At annexure M to the [appellant’s] trial affidavit he annexed a letter from [Mr TT] dated [late] 2010 referencing receipt of $461,859.30 from the ANZ bank with payouts of $227,977.06 (“Ms VV’s loan”) and $209,403.49 (WW Property Unit Trust as per your authority).
…
122In his report [Mr Y] observed that the [H Property] apartment was sold [in mid- 2017] for [over $500,000] including a deposit of $25,000. The balance received by the [appellant] on settlement was $495,292.54. [Mr Y] noted that the [appellant] represented that the funds from the sale of the [H Property] apartment paid out the NAB account [#..99] and “the second NAB loan account [#..79] was transferred to [the A Street property] the balance being $300,000.” [Mr Y] observed:
the original mortgage for the purchase of the [H Property] apartment was obtained by [K Pty Ltd] as trustee for the [Daultrey Property Unit Trust]. It is my expectation that the NAB [#..99] loan was also in the name of the [Daultrey Property Unit Trust] however I am not able to confirm the balance of the loan that was paid out on settlement.
[Mr Y] observed he had not been able to locate the $25,000 deposit in the bank statements made available to him. Nor have statements for the account NAB [#...99] been produced purportedly where $442,527.66 was paid into. The [appellant’s] evidence was that he had obtained a loan from ANZ but no bank statement had ever been produced. The sum of $48,656.76 was paid with respect to outstanding body corporate levies for the [H Property] apartment. The evidence regarding this transaction remains completely unsatisfactory save that I accept the [H Property] apartment sold. I am not satisfied that any of the net proceeds of sale from the [H Property] apartment were contributed by the [appellant] to the parties’ properties.
(Emphasis added)
(b)As to the appellant’s financial contribution to the parties household:
70The [appellant] said he continued to make financial contributions in 2011 towards the parties’ household. To support that contention, he produced one page of a bank statement dated October 2011 but produced no other bank accounts… The [respondent] gave evidence that she had 100% dental cover under [XX Insurance]. The [appellant] subsequently agreed to withdraw his assertion about paying for the [respondent’s] dental expenses on the basis that the transactions were for the benefit of his own daughter [Ms HH]. With respect to his claim that he paid the [respondent’s] ongoing expenses or expenses for her children he said “they were in a ‘relationship’ and he did not feel the need to keep invoices or receipts that may have come to the [respondent] not himself.”
(Emphasis added)
(c)As to the appellants payment of the deposits for the Town F properties the primary judge rejected the appellant’s evidence at [75] – [77].
(d)As to the appellant’s financial contributions to the improvements to the A Street property:
89He said when they moved into the house it was not finished and they continued to work on the home for another 18 months. They installed a [workspace] at a cost of $35,000, a shed and a mezzanine floor. They completed landscaping, a large lawn and full irrigation system. The [appellant] annexed to his affidavit at Annexure Y expenditure undertaken on the property between [mid] and [late] 2012. The [appellant] said the [K Pty Ltd] NAB loan account was overdrawn to $43,591.63 between [early] 2013 and [early] 2014. He was able to make that payment following the sale of [G Pty Ltd]. The [appellant] claimed further work on the property was undertaken in consultation with the [respondent]. He claimed the funds were coming out of [K Pty Ltd]. Counsel asked him to point to any expenditure including for pumps, cement, driveways and the like. He said, “It would be difficult to point individual items out.” Counsel suggested it was not difficult at all as the [appellant] had multiple properties and knew how to claim deductions and no doubt the [appellant] maintained careful records. The [appellant] referred to Annexure X1 in his affidavit where items added up to $952,000. Counsel suggested that the document did not evidence any payments for things like decking, plumbing and other expenditure the [appellant] claimed. The [appellant] agreed he had ordered a shed and Counsel suggested “Yes. You had the shed installed, and then you reimbursed yourself for the cost of that shed, didn't you?---How – how do I reimburse for the costs? Counsel suggested he took the money out of the loan account ([#..28]).” The [appellant] did not respond other than to claim that they both used the shed. I reject the [appellant’s] evidence regarding his claim that additional funding was spent on [the A Street property] in the absence of independent documentary evidence such as receipts, invoices or credit card statements.
(Emphasis added)
(e)At [119] the primary judge found that none of the funds the appellant received from the sale of his interest in G Pty Ltd, other than $199,890.90, were contributed to the property of the parties. The primary judge found that the $199,890 was to be construed as a financial contribution of the respondent based on an earlier finding that the appellant agreed and later paid the shortfall on the sale of the H Property Apartment.
(f)As to the appellant’s conduct and use of application of funds of K Pty Ltd including the funds received on the disposal of the G Pty Ltd trading enterprise and its real property:
108The [appellant] said he last lodged a tax return for [K Pty Ltd] in 2015 and the company was deregistered [in late] 2020. He indicated he accepted sole liability for any tax owing with respect to the company [K Pty Ltd]. The [appellant] did not produce any recent financial statements for the company [K Pty Ltd].
…
155[K Pty Ltd] has been wound up. The [appellant] agreed he had not produced any financial records or other document for [BJ Company] and no mention was made of that company in his personal tax returns. He said it was still trading but as a hobby. He agreed it had a lot of equipment. The [appellant] agreed that his hobby business [BJ Company] was owned by [K Pty Ltd] and had equipment worth $391,000. When asked whether he created an asset register for the business totalling $680,000 he said that was not correct. He said most of the equipment is second hand (Exhibit R5). He said the business was for his future. He agreed he advertised on the internet that his company could lease equipment. He accepted he had kept the finances surrounding [BJ Company] the assets, liabilities, income and expenditure completely separate from the [respondent] at all times. He said he was building the equipment at the time, so she knew he was making some spare cash out of it which was helpful for the family and it kept us going. He accepted there was no financial information for the business trading as [BJ Company].
(Emphasis added)
Other findings of the primary judge, not being the subject of challenge on appeal, that also in part lead to the conclusion in the first line at [159], included:
(a)At [61] the primary judge accepted that the appellant had multiple bank accounts and engaged in “lapping”.
(b)At [112] the appellant agreed that most of the $1.536 million that he received from the G Pty Ltd disposals went into K Pty Ltd accounts controlled by him which were then lent out again. He agreed these accounts were significant “because so much money goes through it”.
(c)At [114] the primary judge recorded that in November 2014 K Pty Ltd had a term deposit of $289,367 which does not appear on the 2015 K Pty Ltd Balance Sheet. A finding was made that the appellant was not forthcoming in providing an explanation as to the use of those funds.
All evidence must be weighed and assessed having regard to the capacities of the parties to adduce and contradict it (Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454; Swain v Waverley Municipal Council (2005) 220 CLR 517 at [17]). The respondent had little capacity to adduce probative evidence as to the complicated financial conduct and dealings of the appellant, especially by way of K Pty Ltd. Only the appellant could do that. He failed to do so to the primary judge’s satisfaction. The evidence he omitted to lead, and the concessions he made, supported the finding of fact subject to complaint in the ground.
The obligation as to disclosure of relevant financial conduct or circumstances is more complex than simply whether the appellant endeavoured to be truthful. The real issue before the primary judge was whether the appellant’s evidence discharged certain onuses of proof and standards of proof, and in that context, the reliability of his evidence assumed importance. The primary judge comprehensively identified those aspects of the appellant’s evidence that were simply not reliable, or were incomplete, and in those circumstances, the conclusion that he had not made a full and frank disclosure of his financial conduct, was available. It was not a finding that he had deliberately misled or consciously concealed aspects of his financial conduct, but that he had failed to discharge his obligations by way of disclosure, in circumstances where:
(a)He was unable to explain anomalies or absences of fundamental financial documentation in his province, for which he accepted responsibility; and
(b)He failed to explain the apparently unsatisfactory aspects of his financial dealings.
The reasoning of the primary judge identified earlier exposes why the submission made by the appellant that there “is nothing to suggest that the [appellant] was other than a witness of truth and went out of his way to provide full and frank disclosure in respect of each and every transaction” could not be supported.
As to the focused subsidiary finding subject to challenge in the Summary of Argument, the primary judge set out with precision the funds the appellant received from the sale of both the G Pty Ltd trading enterprise and the real property, and the reasoning as to why the Court was not satisfied that he accounted for their use and application. No circumstances were identified by the appellant to suggest that the subsidiary finding was glaringly improbable or contrary to compelling evidence.
As can be seen, the challenge to the finding that the appellant did not make full and frank disclosure was open on the evidence. That challenge is not made out. Simply because other findings of fact may also have been open on the evidence before the primary judge does not demonstrate that a finding of fact complained of was thus not open or available. That is not the test. The test is whether the finding of fact or findings of fact material to the exercise of discretion have been shown to have not been reasonably open (see Edwards v Noble (1971) 125 CLR 296 at 304).
Findings are not amenable to challenge by arguing that other pieces of evidence ought have been accorded greater probative weight, though factual findings based on the uncorroborated testimony of a credible witness may be impeached if glaringly improbable or irreconcilable with other incontrovertible evidence (Fox v Percy (2003) 214 CLR 118 at 127–129 and 138–147; Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]; Lee v Lee (2019) 266 CLR 129 at [55]). The appellant made no compelling submission or persuasive argument as to why the finding made as challenged in the ground was not available, or as why, as to conflicts in the evidence between he and the respondent, where the judge preferred the respondent’s evidence, that was not available.
Appealable error is not demonstrated by the appellants’ desire that his evidence on those topics had instead been accepted. The ground fails.
Ground 7
The ground reads:
7.[The primary judge] was in error in not taking into account the [appellant’s] liabilities in assessing the contributions of the parties in determining the quantum of the asset pool.
The appellants Summary of Argument references the liabilities relevant to the ground being:
Current Liabilities
106.The original [K Pty Ltd] loan [#...76] of $300,000 now has a balance of $105,729.
107.[K Pty Ltd] NAB account [#...79] has a current balance of -$10,998.
108.My personal loan NAB [#...50] has a current balance of $162,743.
109.The NAB cheque account [#...53] has a current balance of -$47,465.
The appellant in his Summary of Argument then complains that:
[The primary judge] erred in failing to account for the [appellant’s] liabilities when assessing the assets and liabilities of the parties.
The challenge as to the failure of the primary judge to identify the fact and value of these liabilities is not available. The primary judge recorded each of the liabilities and their value in the concluding findings as to the property, liabilities, and superannuation of the parties at the time of the trial (at [156]). The finding as to the net superannuation and non-superannuation property of the appellant (at [167] and [184]) included these liabilities. In so far as the ground contends that the primary judge failed to consider the liabilities as a relevant, the complaint cannot be sustained.
The appellants Summary of Argument recorded an additional complaint outside the parameters of the ground, being at [157] where the primary judge said:
157The parties tendered a joint balance sheet (Exhibit C2) which I accept. Given the parties separated in late 2014 I assume the liabilities have arisen over the last 9 years. The [appellant] has been in receipt of substantial sums to pay down those liabilities. I am not satisfied the [respondent] should be jointly responsible for any liabilities not agreed to by the parties.
(Emphasis added)
The appellant submitted that there is “no basis at all” for the assumption. He submitted that his affidavit evidence anchors some of the identified liabilities as being initially incurred during the relationship. This complaint is absent merit. It selectively omits the incontrovertible facts and compelling inferences arising from the failure of the appellant to pay out the liabilities from the substantial monies he received after the termination of the relationship on the disposals of G Pty Ltd, the O Street property, and the H Property Apartment.
The overall import of the conclusion in [157] was open and available. No error is established. In the alternative, if the complained integer of the concluding finding was not available, the error was not material to the ultimate determinations (see De Winter v De Winter (1979) FLC 90-605). The primary judge considered the fact and quantum of the liabilities in the exercise of discretion (at [184]) not to adjust the property of the parties.
The ground fails.
Ground 3
Ground 3 was as follows:
3. [The primary judge’s] finding [view] that the evidence of the “sale” to the [appellant] of the [H Property] Apartment was “unsatisfactory” was a view [or finding] that was against the weight of evidence and as such [the primary judge] was in error having regard to the [appellant’s] evidence as follows:-
3.1 Paragraphs 46 and 47 of the [appellant’s] Affidavit [AB 144].
3.2 The schedule contained in the [appellant’s] Affidavit at [AB 159] summarising the transaction.
3.3 The bank statement evidencing the payment of $86,084.86 to the [J Street property] mortgage [AB 175].
3.4 The bank statement evidencing the payment of $137,000.00 to discharge the [respondent’s] line of credit at [AB 176].
3.5 The balance of the borrowings of $208,008.49 was held in a trust account for two years [see paragraph 49 of [appellant’s] Affidavit [AB 114].
The construction of the ground, being the “sale to the [appellant] of the [H Property] apartment” is deficient. The Summary of Argument of the appellant represented matters relating to the acquisition of the H Property Apartment in 2010 by the Daultrey Unit Trust on behalf of the appellant from the respondent, and its later disposal in 2017, after the separation of the parties.
In his Summary of Argument, the appellant said that the primary judge “misunderstood the effect of [a] financial transaction that took place when the [H Property] apartment was transferred to the [appellant] in 2010 and later sold in 2017”. He submitted that he “was not challenged on any of his evidence in relation to this sale or the proceeds”. That submission is not available as either the application of the proceeds of the sale for $520,000 by K Pty Ltd in
July 2017, or as to the 2010 acquisition of the H Property Apartment. The transcript records cross-examination on both subject matters.
As to the acquisition of the property, the primary judge found:
54 Following discussions, the [respondent] agreed to reduce the purchase price of the [H Property] apartment by $70,000 so that a loan could be approved for the [appellant] to purchase the property. She claimed the property was worth $650,000 but to assist him with the purchase the contract price was reduced to $580,000 (the existing mortgage on the property). She agreed to sell the [H Property] apartment to the [appellant] “for what he was able to borrow” being $227,000 and $209,000. She said he agreed to pay her the residual amount once [G Pty Ltd] was sold.
(Footnotes omitted)
The findings were available on a consideration of the affidavit and oral evidence of each party and the documentary evidence, including specifically, the amendments to the contract produced by Mr Y. The appellant agreed that the Daultrey Unit Trust obtained a loan for the H Property Apartment of $464,000 and of that sum, he paid $437,000 into the respondent’s BE Bank mortgage loans.
The primary judge found at [58] that the respondent had contributed the money she received from the sale of the H Property Apartment for the benefit of the parties. The reasons record:
60 The evidence with respect to this transaction remains unsatisfactory. The [appellant] claimed that the ANZ loan was paid out by an NAB mortgage account number [“…99”] for $440,000. No record of that account exists though a subpoena was issued to NAB to produce the account. No settlement statement was produced. At annexure M to the [appellant’s] trial affidavit he annexed a letter from [Mr TT] dated [late] 2010 referencing receipt of $461,859.30 from the ANZ bank with payouts of $227,977.06 (“[Ms VV’s] loan”) and $209,403.49 ([WW Property Unit Trust] as per your authority).
61 I am unable to unravel exactly what occurred on the [appellant’s] side of the ledger. He had multiple bank accounts and engaged in “lapping”…
62 As to the [appellant’s] allegation that the [respondent] needed to sell the property to him as she was in debt the [appellant] was asked in cross examination why if she was in debt she would not sell the property on the open market but rather “sell it to the [appellant] for $150,000 less than the contract price of $580,000. If she had sold it for the original listed price of $650,000 (crossed out on the contract) she would have sold it to the [appellant] for more than $200,000 less.” The [appellant] failed to respond to those propositions. Regarding the shortfall and whether he believed he owed the [respondent] a debt in relation to his purchase of the [H Property] apartment he said “we were in a relationship.”
63 The [appellant] was asked why he borrowed $460,000 to purchase the [H Property] apartment but only paid the [respondent] $437,000. Counsel suggested he deducted the stamp duty and paid the [respondent] the balance. He said “I probably didn’t have enough money for stamp duty.”
…
65 I am satisfied that the [appellant] expressed an interest in purchasing the [H Property] apartment from the [respondent] as an investment and she agreed to sell it to him initially at a reduced price to enable him to enter the property investment market. I am satisfied she also agreed to sell the property to him for an amount he was able to raise by way of finance at the time which was less than the contract price. I am satisfied that she agreed to the terms of the sale on the promise or expectation that the [appellant] would repay her the shortfall between the price he paid and the contract price once [G Pty Ltd] was sold and he received a payment for his interest in that business.
66 I am satisfied that the [respondent] received $227,977.06 which partially reduced her loan secured against the [H Property] and [the J Street property]. She received a further amount of $209,403.49 that was set aside to fund the [Town F] Development project. I find that after the transfer to the [appellant] of the [H Property] the [respondent] continued to make mortgage payments on that part of the mortgage that had not been discharged. The [appellant] then made mortgage payments against the loan taken out to purchase the [H Property] and retained the rent. I take into account the fact that the [respondent] continued to make mortgage payments on that part of the [H Property] mortgage that had not been discharged.
(Emphasis added)
The findings were available on a consideration of all the evidence, including the primary judge assessing the capacities of the appellant to adduce it by way of documents, his failure to do so, and his concessions, coupled with the inferences available therefrom impacting on the appellant’s failure to discharge the onus to prove subsidiary and concluding facts.
As to the sale of the H Property Apartment, the appellant represented that the funds from the sale paid out the NAB account #...99 and “the second NAB loan account [#...79] was transferred to [the A Street Property] the balance being $300,000.” The appellant did not disclose any bank statement as to the mortgage loan sourced on acquisition from ANZ or discharged on disposal. The single expert opined, and the primary judge accepted, that no bank statement recorded the $25,000 deposit received on sale nor had statements been produced as to where the balance of sale monies received of $442,527 was paid. No financial statement or taxation return for K Pty Ltd for the 2018 taxation year, being the year of disposal, was disclosed recording the fact of the disposal or its integers. In cross-examination the appellant conceded, as recorded at [149] of the primary judge’s reasons, that none of the proceeds of the sale of the H Property Apartment by the appellant’s Daultrey Unit Trust, were applied to the property of the parties. The primary judge found:
122I am not satisfied that any of the net proceeds of sale from the [H Property] apartment were contributed by the [appellant] to the parties’ properties.
(Footnotes omitted)
The finding of the primary judge was open on the evidence.
Ground 3 attempts to demonstrate that the primary judge’s conclusions were erroneous by identifying some of the appellants evidence and ignoring the balance of the findings as made, including his omissions. The appellant did not engage or seek to challenge the other extensive primary findings of fact from which those conclusions were drawn to support the conclusions as recorded in the reasons. He made no complaint as to the weight that was afforded by the primary judge to these other facts.
The appellant’s real complaint was that the primary judge did not make the findings he sought. That does not demonstrate error. The primary judge did not overlook the arguments raised by the appellant. It has not been demonstrated that the findings were wrong by reference to incontrovertible facts or by reference to uncontested testimony. The appellant’s complaint is that the primary judge found the evidence to ground a different conclusion to that which he sought. The ground fails.
Ground 6
Ground 6 contended that the primary judge made findings that were either mistaken as to the evidence “and/or otherwise” failed to give adequate reasons for the findings. As to the reasons challenge, there is generally no obligation to give reasons for why individual pieces of evidence are accepted or rejected (Re The Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407 at [67]), though reasons may be required to explain particular findings of fact which are critical or determinative (DL v The Queen (2018) 266 CLR 1 at [130]; Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [130]; Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 443). Although the ground was construed as contending an error as to absence of adequate reasons for the findings identified in the specific particulars of the ground, this aspect of the ground was not advanced in the Summary of Argument or in oral submissions. Implicitly, this aspect of the ground was abandoned.
6.1 – the primary judge found that the appellant did not contribute financially to the respondent’s expenses between mid-2009 and early 2010, when the primary judge found the parties had separated
The relevant finding to this sub-ground was:
44I am satisfied that the [appellant] lived primarily in the [PP Street] property between [mid-2009] and [early] 2010 with his two teenage daughters. I find the parties lived separately and apart between [mid-]2009 and [early] 2010. I am satisfied that the [appellant] applied his income to maintain his mortgage repayments, pay the vendors loan, and support himself and his children financially. I accept the [respondent’s] evidence that the [appellant] did not contribute financially to her expenses during the period of separation. I find that between [early] 2009 and [early] 2010 the [appellant] did not make any significant financial or non - financial contributions.
The appellant submitted that “it was not possible” for the primary judge to find that the respondent financially contributed during this period, as she had “no income”. The respondent submitted that the finding is “uncontroversial in the circumstances of the evidence of the [respondent] of [the appellant’s] lack of contribution to expenses while he resided with the [respondent].”
At the hearing of the appeal, the appellant conceded that it would be fictitious for him to contend that the respondent had “no income”. He conceded that the respondent was in receipt of a government pension and received income by way of her artistic enterprise. The respondent additionally drew on a line of credit facility.
To give context to the finding at [44] under challenge, the primary judge said at [36] that the appellant “failed to produce any independent evidence in the form of invoices or receipts to support this contention that he paid the school fees for the respondent’s children and rather relied on the fact that he was earning an income.” The primary judge said:
37…Following extensive cross examination on the issue relating to the period of separation from [mid-2009] and whether he was in fact supporting his own children rather than making a significant financial contribution to the [respondent’s] expenses he said “I will just say yes. We moved out and I moved in there, just to please the court. I’m happy to say yes.”
The reality of the complaint is that the primary judge preferred the case of the respondent over that of the appellant on the issue. The finding at [44] was available and open, especially considering the concession of the appellant at [37]. This particular fails.
6.2 – the primary judge found the respondent “continued” to make mortgage payments on the mortgage secured upon the J Street property
The relevant finding to this sub-ground is:
66I am satisfied that the [respondent] received $227,977.06 which partially reduced her loan secured against the [H Property] and [the J Street property]. She received a further amount of $209,403.49 that was set aside to fund the [Town F] Development project. I find that after the transfer to the [appellant] of the [H Property] the [respondent] continued to make mortgage payments on that part of the mortgage that had not been discharged. The [appellant] then made mortgage payments against the loan taken out to purchase the [H Property] and retained the rent. I take into account the fact that the [respondent] continued to make mortgage payments on that part of the [H Property] apartment mortgage that had not been discharged.
(Emphasis added)
The appellant submitted that it was not possible for the respondent to make mortgage repayments as, other than receiving rental income, she had no income. He submitted that he was meeting the shortfall. This particular of the ground fails for the same reasons as identified under Ground 6.1.
6.3 – the primary judge was not satisfied the appellant made any significant financial contribution during the period of early 2010 to early 2011
In relation to this finding, the primary judge said:
49The [appellant] adduced scant evidence about any non - financial contribution he made towards the [respondent] and her children in his affidavit. In cross examination he conceded he rarely attended any school events for the [respondent’s] children. He occasionally kicked a football around in the backyard. The [respondent] disputed the [appellant] was involved with her children. She said he rarely took her eldest child to rugby and rarely attended matches. They all holidayed together once in 2014. He did not take her children to public events like museums or things of that nature. She did not recall him ever playing football with her children. There is no satisfactory evidence before me that the [appellant] made any significant non – financial contribution to the welfare of the family. In response to questions asked of him by Counsel he responded repeatedly “we were in a relationship” as if that fact were sufficient to infer he made some contribution. I am not satisfied on the evidence that the [appellant] made any significant financial or non - financial contribution to the welfare of the family during this period save as discussed below.
(Emphasis added)
The appellant again submitted that he was the only party receiving an income between early 2010 and early 2011. He submitted that the primary judge provided “no reasons as to why she was not satisfied other than accepting the assertions of the [respondent]”.
The primary judge explicitly said in [47], as to the appellant’s claim that he had a credit card which the respondent was able to use when she wanted, that the appellant “failed to adduce any evidence to support that claim”. The appellant bore the onus to adduce evidence to ground any finding of fact he sought for the primary judge to make. He did not do so. It was open to the primary judge to prefer the evidence of the respondent, in refuting that the appellant made financial contributions to her, in circumstances where he did not discharge his evidentiary burden. This particular of the ground has no merit.
6.4 – the primary judge was not satisfied that the appellant contributed to the respondent’s ongoing expenses during the period of early 2011 to mid-2012
The relevant finding to this ground is:
71 During this period the parties discussed a number of joint financial ventures and became co-borrowers. The [appellant] made contributions towards the [J Street property] mortgage and paid rent. I am not satisfied he contributed to the [respondent’s] ongoing expenses. I accept he moved into the rental with the [respondent]. I reject the [respondent’s] evidence that the parties separated between [early] 2011 and [mid-2012]. I am satisfied the parties de facto relationship continued during this period.
(Emphasis added)
This particular of the ground fails for the same reasons as identified in relation to Grounds 6.1, 6.3 and 10.
6.5 – the primary judge rejected the appellant’s evidence “that an initial funding was spent on [the A Street Property] in the absence of documentary evidence”
The evidence as to this finding was set out in [89], as reproduced above in [60(d)].
The transcript records the appellant was extensively cross-examined as to his assertions including the spreadsheet identified in his affidavit. The findings of the primary judge, for the reasons identified in Ground 10, were open and available, this particular of the ground fails.
6.6 – the primary judge did not accept the appellant spent a further $1 million on the A Street Property
The relevant finding to this ground is:
142 …I do not accept the [appellant] spent a further million dollars on [the A Street Property] and reject his evidence.
This particular is linked to the particular in Ground 6.5, which in turn is linked to Ground 10. The appellant submitted that the finding at [89] is “difficult to understand” in circumstances where he “provided a schedule of costs of numerous items relating to the construction of the home”. The schedule of costs provided by the appellant is a self-authored table outlining describing items and listing the contended cost of each item. It does not constitute “independent documentary evidence” as asserted by the appellant. As explicitly outlined by the primary judge in [89], independent documentary evidence may include receipts, invoices, or credit card statements. It does not include any self-authored document.
The ground fails for the reasons identified in Grounds 10 and 6.5.
6.7 – the primary judge found that the respondent used the equity in the J Street property to find the development of the A Street property
The finding subject to complaint was:
175The [respondent] introduced into the relationship the [J Street property] unencumbered and used that property as security for a mortgage against the [H Property] apartment investment property and later to fund the development of [the A Street property]. When [the J Street property] was sold in [late] 2012 she applied the net proceeds of sale towards discharging the mortgage.
(Emphasis added)
It is difficult to distil the mistake of fact asserted by the appellant. The transcript records his concession as to the J Street property being unencumbered at the commencement of the relationship. The evidence is uncontroversial that J Street property was serially encumbered thereafter as recorded earlier in these reasons, until it was sold in early 2013. The proceeds of sale were used to pay out the loans incurred on the acquisition costs of A Street land and its improvement by way of the residence constructed.
This particular of the ground fails.
6.8 – the primary judge found that the appellant did not contribute any of the proceeds of the sale of the H Property apartment towards the property of the parties
The relevant finding to this ground is:
177 In contrast the [appellant] did not contribute any of the net proceeds of sale of the [H Property] apartment towards the property of the parties. He had the benefit of paying a reduced mortgage for a period of about 4 years eventually paying the [respondent] the shortfall on the [H Property] apartment in January 2015.
(Emphasis added)
This particular is rejected for the reasons outlined above in relation to Ground 3 and 10.
6.9 – the primary judge found that the mortgages over the Town F units had increased
The relevant finding to this ground is:
180 Of the assets and liabilities in the balance sheet (Exhibit C2) given that the [respondent] almost exclusively funded the [Town F] units I am satisfied that she should retain both units. Unfortunately, those properties have decreased in value and the mortgages increased. The NRAS grant scheme ends in 2024 so she is unlikely to obtain any substantial benefit. She wishes to retain those properties the [appellant] does not. I intend to order the [respondent] retain both [Town F] properties. The legal interest in [E2 Street] is to be transferred to the [respondent]. As she currently holds the legal interest in [E1 Street] as trustee for [E1 Property Unit Trust] I intend to order she retain that property.
(Emphasis added)
The appellant submitted that his evidence was that when the Town F properties were purchased in mid-2014, there were two loans from the NAB, each for $204,169. The liability as recorded in the balance sheet for each E1 Street and E2 Street is $189,546 and $187,268, respectively.
This ground in the Summary of Argument is directed to a combination of errors in both findings of fact and as to inadequate reasons. For reasons already given, the primary judge’s findings challenged under each of the grounds were open on the evidence and not contrary to the weight of the evidence. In each instance, the findings were satisfactorily explained. The reasoning between the conclusions and their factual foundations was exposed and logical. This particular of the ground has no merit.
Ground 4
This ground reads:
[The primary judge] erred in finding at paragraph 80 [AB 45] the [respondent] “almost exclusively funded the [Town F] development while the [appellant] received a substantial tax benefit” as the whole of the monies utilised for the purchase and building was $208,008.49 that were borrowed monies on the security of the [H Property] Apartment and the [sic] shortfall between rents received was funded from the [appellant’s] income [see AB 163].
This ground asserts an error of fact, being:
80I find that the [respondent] almost exclusively funded the [Town F] development while the [appellant] received a substantial tax benefit. The [respondent’s] financial contributions to the [Town F] Units far exceeds the [appellant’s] financial contribution. I note that the NRAS grant scheme ends in 2024.
(Emphasis added)
The appellant submitted that the Town F properties was funded by the balance of borrowings when he refinanced the H Property Apartment, and that he “made good” the shortfall between rental income and mortgage repayments from the date of purchase to 2018.
Relevantly, the appellant did not challenge the following findings:
(a)At [75], the primary judge found that the respondent funded the purchase of E1 Street as the relevant NAB mortgage account was in her name, and she made loan repayments of $67,031.
(b)At [78], the primary judge found that:
(i)The respondent as trustee for the E2 Property Unit Trust funded the purchase of E2 Street and made loan repayments of $64,690;
(ii)The appellant made “little to no contribution” towards the Town F units save that he made Council rate payments of $25,561, while the respondent paid $18,915; and
(iii)The appellant received a substantial tax benefit through the NRAS grant scheme.
(c)At [79], the primary judge recorded that in cross-examination the appellant agreed that he received $82,610 between 2015 and 2020. As outlined earlier in these reason as to Ground 10 the appellant said that he paid the rates and “strata levies”, however when cross-examined, he had said he was defaulted in those payments to the sum the of $43,000, of which the respondent paid after termination of the relationship.
(d)Any of the findings in [151], being:
With respect to the [Town F] properties she said in June 2022 the amount outstanding on the loans was $173,644 and in September 2023 the amount outstanding was $187,268. She has paid $9000 per property in body corporate levies and rates on top of $44,000 in arrears. She has spent about $80,000 on both accounts. She said the units were not on the market as “they are worth less than the current liabilities.” She did not agree that each party receive a unit and discharge the debt. She said she had invested $200,000 in those properties and wanted to retain the properties “because she didn’t even get that money back from [H Property] in time, she paid an extra $40,000 on top of interest that was charged on her [H Property] loan. In 10 years time the properties will probably break even but I’m not going to sell them at a loss. She wanted to retain both.” She said she had not benefitted from any tax advantage even though the units were in her name.
(Bold emphasis added)
The finding of the primary judge under challenge by this ground was open on the evidence. The ground fails.
Ground 2
Ground 2 is:
2. [The primary judge’s] finding which forms a basis as there being no adjustment to the [appellant] that the [J Street property] “created a springboard for the parties to increase their wealth” at paragraph 101 [AB 50] was erroneous as it ignored the [appellant’s], income, capacity to borrow monies, make instalment payments and in circumstances where the [respondent] had no income.
Ground 2 is constructed as a factual error, however in reality, it is a complaint as to weight. It is evident from the construction of this ground that the appellant is alleging discretionary error by the primary judge’s failure to take a material consideration into account. So construed, the ground is incompetent. A finding is an evidence-based conclusion, not the product of an exercise of discretion. The conclusion by way of determination as to there being no warrant to adjust the property of the parties is an exercise of discretion.
The complaint within this ground is two-fold. Firstly, that the primary judge found that the J Street property “created a springboard for the parties to increase their wealth”, and secondly, that in making that finding, the primary judge ignored the appellant’s income, and capacity to borrow monies and make instalment payments.
The ground distorted the findings made by the primary judge. Two particulars of this ground are fictitious. The first is that the primary judge “ignored” (that is, failed to give any consideration) the appellants income, capacity to borrow monies, and make instalment payments. Findings on this subject matter were made in the appellants favour (see at [23], [63], [71], [101], and [115]). The second is that the primary judge found the respondent had “no income”. At no stage did the primary judge make that finding. The contention was withdrawn during the hearing of the appeal.
The identified paragraph in the ground is [101]:
Sale of [the J Street property]
101 [I]n [early] 2013 the [respondent] sold [the J Street property] for $730,000 including a deposit of $73,000. She repaid the NAB loan account [#...47] which was in joint names in the amount of $660,742.18 and repaid NAB loan account [#...28] which was in joint names in the amount of $44,692.13 and otherwise discharged expenses and rates. I am satisfied that the [respondent] made a substantial financial contribution in applying the proceeds of sale of the [J Street property] towards the property of the parties. I am satisfied that the [J Street property] introduced by the [respondent] created a springboard for the parties to increase their wealth particularly in circumstances where the [appellant] had little equity in [the O Street property] and though he earned income of about $100,000 p.a. his income was substantially committed to mortgage repayments, the vendor loan with respect to his interest in [G Pty Ltd] and supporting his children.
(Footnotes omitted)
The starting point of the sequence of factual determinations subject to complaint made in [101] is the finding, absent controversy, record at [27] that the appellant “agreed that at the commencement of cohabitation the [respondent’s] property at [J Street] was unencumbered” and “accepted her draw down facility secured against [the J Street property] had a maximum limit of $140,000 and agreed that when the parties commenced cohabitation the balance was about $73,000. He agreed that the [respondent’s] [H Property] apartment in Brisbane was earning around $550 a week in rent.”
The primary judge then found:
… I am satisfied that the [appellant] applied his income to maintain his mortgage repayments, pay the vendors loan, and support himself and his children financially.
(Emphasis added)
The reasons thereafter record the acquisition by the appellant through the Daultrey Unit Trust of the H Property Apartment from the respondent. The circumstances and findings made as to that subject matter are considered in Ground 10.
In March 2012, the respondent refinanced the BE Bank debt on the J Street property. The reasons record:
92 …She borrowed $659,693.68 from NAB and repaid the [BE Bank] $529,329.59. The [appellant] said the remaining balance of approximately $130,000 was applied towards the building costs on [the A Street property]. Both parties agree that in [late] 2012 the [respondent] sold [the J Street property] for $730,000 and paid out the NAB loan of $660,742. At that stage the [respondent] had not received any funds from the [appellant] from the sale of [G Pty Ltd]. She claims the [appellant] told her the sale had fallen through.
The primary judge’s descriptor of the unencumbered J Street property being a “springboard” is tangential. The findings that the respondent’s unencumbered property was used as security for a mortgage against the H Property Apartment investment property and remained so after the respondent had acquired through his trust the legal interest in the H Property Apartment, and then for the funding of the development of the A Street property, were all available on the evidence. The finding that when the J Street was sold in early 2013, the respondent applied the net proceeds of sale to discharging the NAB joint mortgage, was not controversial.
The ground is a selective complaint in what it omits. The reasons record that the introduction by the respondent of the J Street property was but one of a multitude of factors considered informing as to the contributions of the parties to their property as existed at the date of the trial. Whilst the primary judge notes at [172] that she had “set out at length” in the reasons the findings she made in respect of the parties’ contributions, and she that she did not intend to repeat them, she then lists a series of further factors by way of consideration from [173] – [185] which led to the determination to not make any adjustment of property. The ground that the J Street property formed the “basis as there being no adjustment” of property between the parties is accordingly unfounded. This ground fails.
Ground 1
The ground records:
[The primary judge’s] finding at paragraph 174 of Judgment [AB 70] that the financial contributions of the [respondent] substantially outweighed the [appellant’s] contributions was against the weight of evidence and the finding is unsustainable.
The finding subject to complaint is as follows:
174I have found the [respondent’s] financial contributions during the relationship substantially outweigh the [appellant’s] financial contributions. She applied all finances available to her towards the property of the parties. Having introduced the [H Property] apartment into the relationship she used the rent to make mortgage repayments and applied the net proceeds of sale towards a reduction in the mortgage, continued to make payments on the balance of the mortgage after sale and set aside funds for the [Town F] development. Further on receipt of $199,890 in [early] 2015 those funds were applied to the mortgage.
This ground contends error by the primary judge in assessing contributions, giving excess weight to the respondent’s contributions, and overlooking or not recognising the appellant’s various contributions. The construction of the ground neglects the surrounding additional findings as made by the primary judge, being:
119 The [appellant] left the [A Street property] permanently in 2016. None of the funds received by the [appellant] from the sale of his interest in [G Pty Ltd] other than the $199,890.90 were contributed by the [appellant]. However I am satisfied that the sum of $199,890 should be construed as a financial contribution by the [respondent] based on my finding that the [appellant] agreed and later paid the shortfall on the sale to him of the [H Property] apartment.
…
173 Suffice to say there is no evidence of a significant (or any) non – financial contribution by the [appellant] to the relationship. The “fact” of the mere existence of a relationship (as the [appellant] repeatedly claimed) is not sufficient to establish that the [appellant] made any non - financial contribution for the benefit or welfare of the family.
…
175 The [respondent] introduced into the relationship the [J Street property] unencumbered and used that property as security for a mortgage against the [H Property] apartment investment property and later to fund the development of [the A Street property]. When [the J Street property] was sold in [late] 2012 she applied the net proceeds of sale towards discharging the mortgage.
176 The [respondent] funded almost exclusively the [Town F] development whilst the [appellant] made little contribution but obtained a substantial benefit in the order of about $82,000 through tax benefits.
177 In contrast the [appellant] did not contribute any of the net proceeds of sale of the [H Property] apartment towards the property of the parties. He had the benefit of paying a reduced mortgage for a period of about 4 years eventually paying the [respondent] the shortfall on the [H Property] apartment in January 2015.
178 Though he owned [the O Street property] at the commencement of the relationship that property had little equity. He retained the rents to pay the mortgage and following the sale of that property in early 2015 he did not apply any of the net proceeds of sale of the property towards the property of the parties.
The criticisms of the application of excessive weight are unfounded in the absence of a successful challenge that the result was unreasonable or plainly unjust (see Hedlund). The ground fails.
Ground 9
This ground contended:
[The primary judge] erred in adopting parts of the single expert’s report in determining the contributions of the parties in circumstances where the single expert conceded that the basis of his assessment of contributions was based upon the ownership of the parties properties, did not consider the income received by either of the parties during cohabitation and did not account at all for the sale of the [appellant’s] interest in [G Pty Ltd] from which he received $609,792.00 [see paragraphs 56 and 78 at AB 115 and 119].
The primary judge recorded the evidence the single forensic accounting expert at [59], [61], [69], [75], [77], [93] – [97], [99], [103], [122], [124], [125], [127], [128], [130] – [132], and [147], accepting some portions of his evidence and not accepting other parts of that evidence. The reasons record:
127[Mr Y] set out his conclusion regarding financial contributions made by the parties at (6.2). I place limited weight on the expert’s assessment of contributions for the following reasons though I stress I have no criticism of [Mr Y] given he simply complied with the request of the parties to prepare a forensic accounting report. Regarding contributions to real property [Mr Y] concluded that the [appellant] contributed $94,700 and the [respondent] $418,042. None of the properties were valued at market value but rather the purchase price of those properties was adopted. [Mr Y] frankly conceded he was not a registered valuer of real property.
(Emphasis added)
The appellant submitted in his Summary of Argument that Mr Y’s report included figures that “did not reflect the reality of contributions made particularly by the [appellant]”. The primary judge did not make the finding asserted by the appellant. The ground does little more than complain as to the rejection of a contention in the appellant’s case. The appellant is required to not only state why the finding made by the primary judge in accepting a specified part of the single expert’s evidence subject to challenge was wrong, but to also articulate the finding which ought to have been made instead, and to identify the evidence pertinent to the factual dispute. He did not do so. The ground is forlorn.
Ground 5
Ground 5 was as follows:
[The primary judge] failed to give any adequate or any reason at all as to the rejection of the [appellant’s] evidence at paragraph 89 [AB 48] that there were additional funds spent on the property at [A Street] after the parties occupied the property in July 2012.
Ground 5 therefore makes complaint as to the primary judge providing no or inadequate reasons. The finding subject to issue in Ground 5 is at [89] of the primary judgment, as reproduced above at [60(d)].
This ground complains that the identified findings were wrongly made. It is not a complaint that the reasons were inadequate to explain the overall judgment – only that the reasons were inadequate to explain a certain finding. The gravamen of the complaint as to the finding made by the primary judge on this subject matter is determined in Ground 6.5 and Ground 10.
It is only necessary that the appellate court be able to discern from the reasons, either expressly or by implication, the path by which the ultimate result has been reached (Bennett v Bennett (1991) FLC 92-191 at 78,267). Reasons are not required to mention every fact or argument relied on by the appellant (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463-464) as no judicial reasons can ever state all the pertinent factors, nor can they express every feature of the evidence which causes a judge to prefer one factual conclusion over another (Fox v Percy (2003) 214 CLR 118 at 132).
All that is necessary is for the reasons to enable the parties to identify the basis of the decision and the extent to which their arguments have been understood and accepted (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110). The pathway of reasoning by which the primary judge made the above finding and did not accept the appellant’s evidence is both discernible and clear within [89]. Ground 5 fails.
CONCLUSION
The appeal will be dismissed.
In the event the appeal was unsuccessful, the respondent sought costs fixed in the sum of $22,243 at scale, as contained in her costs schedule.
The appellant conceded that if the appeal was dismissed that he ought to pay costs. He submitted that costs fixed in the range of $15,000 was just.
The respondent’s costs schedule rapaciously sought to double count items for the preparation of the Summary of Argument by both solicitor and counsel. The schedule also claimed more than $2000 for photocopying in circumstances of a digital appeal. The respondent did not make any submission persuading the fixing of costs other than at $15,000. Such order will be made.
I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 22 April 2024
0
22
1