DAVINT & MALBURON
[2015] FamCAFC 176
•15 September 2015
FAMILY COURT OF AUSTRALIA
| DAVINT & MALBURON | [2015] FamCAFC 176 |
| FAMILY LAW – APPEAL – PROPERTY – Where the appellant seeks to appeal the summary dismissal of his application alleging contravention – Where there is merit in one ground of appeal but in none of the other grounds of appeal – Where the appeal is allowed in part and the order dismissing the application is set aside – Where as a result the costs order made by the trial judge cannot stand and must be set aside – Matter listed for directions to consider whether the discretion should be re-exercised or the matter be remitted for rehearing. FAMILY LAW – APPEAL – COSTS – Where in the event that the appeal was successful the parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appeal was successful on only one of the five grounds of appeal – Oral applications for costs certificates dismissed. |
| Family Law Act 1975 (Cth) – s 112AB(1) |
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit Court Rules 2001 (Cth) – rr 13.10(a), 25B.04(a) and (b)
| Australian Competition and Consumer Commission v Collings Construction Co Pty Ltd (Unreported, SCNSW 2 July 1997, BC 9702850) |
Hale & Hale [2011] FMCAfam 1107
| APPELLANT: | Mr Davint |
| RESPONDENT: | Ms Malburon |
| FILE NUMBER: | MLC | 4677 | of | 2012 |
| APPEAL NUMBER: | SOA | 59 | of | 2014 |
| DATE DELIVERED: | 15 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 February 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 September 2014 |
| LOWER COURT MNC: | FCCA 1944 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr R Smith |
| SOLICITOR FOR THE RESPONDENT: | Lampe Family Lawyers |
Orders
The appeal be allowed in part.
Paragraph 1 of the orders made on 1 September 2014 be set aside to the extent that it dismisses count 5 of the Further Amended Application Alleging Contravention filed on 10 June 2014.
Paragraph 2 of the orders made on 1 September 2014 be set aside.
The oral applications of the parties for costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
The Notice of Appeal be adjourned for a directions hearing before his Honour Justice Strickland in the Melbourne Registry of the Family Court of Australia at 11:30am on Friday 25 September 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davint & Malburon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
|
Appeal Number: SOA 59 of 2014
File Number: MLC 4677 of 2012
| Mr Davint |
Appellant
And
| Ms Malburon |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 8 September 2014 Mr Davint (“the husband”) appeals against the orders made by Judge Turner on 1 September 2014. Ms Malburon (“the wife”) opposes the appeal.
The orders the subject of the appeal dismissed the husband’s “Contravention Applications filed on 3 February 2014, amended on 12 February 2014 and further amended on 10 June 2014”, and provided for the husband to pay the wife’s costs.
I observe that there was no need for his Honour to dismiss any application other than the Further Amended Application filed on 10 June 2014, but nothing turns on that oversight in this appeal.
Factual Background
Final orders for property settlement were made by consent by the trial judge on 15 August 2012. Relevantly, orders 1, 2, 3, 5 and 7 provided as follows (noting that the husband was the applicant):
1.That the Applicant pay to the Respondent the sum of $110,000 (“the payment”) on or before the 15th day of November 2012 (“the date”).
2. That contemporaneously with the payment:-
2.1The Respondent do all such acts and things and sign all such documents as may be required to transfer to the Applicant at the expense of the Applicant all of her right, title and interest in the real property situate at and known as [H] and being the whole of the land more particularly described in Certificate of Title Volume …. Folio … (“the real property”);
2.2The Applicant indemnify the Respondent against all payments and liability pursuant to the mortgage registered No. ……… to [the Bank] (“the mortgage”) and all rates, taxes, and outgoings of or with respect to the real property of whatsoever nature and kind;
2.3The Applicant discharge the mortgage registered
No. ……… to [the Bank] (“the mortgage”).3.That in the event that the Applicant fails to make the payment and discharge the mortgage by the date then:-
3.1The Respondent shall have the right to elect, within 7 days of the date, to retain the real property;
3.2If the Respondent so elects, the Respondent shall pay to the Applicant the sum of $50,000 within 45 days of the date and contemporaneously with receipt of that sum the Applicant shall do all things and sign all documents required to withdraw, at his expense, any Caveat lodged on his behalf against title to the real property.
…
5.That pending the payment and discharge of the mortgage required of Applicant by the date provided for in order 1, the election required of the Respondent by the date provided for in order 3.1 or the payment required of Respondent by the date provided for in order 3.2 or completion of the sale, as the case maybe [sic]:-
5.1Subject to order 3 of the orders of the Court dated 4 July 2012, the Respondent have the sole right to occupy the real property and that during such right of occupation the respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
5.2The parties hold their respective interests in the real property upon trust pursuant to these Orders:
5.3Neither party encumber the real property without the consent in writing of the other party.
…
7.That unless specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:-
7.1Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders (the furniture, personal possessions, and like chattels in the house on the real property being deemed to be in the possession of the Respondent and in the shed being deemed to be in possession of the Applicant).
7.2Monies standing to the credit of the parties in any joint bank account are to become the property of the Respondent;
7.3Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
7.4Insurance policies remain the sole property of the beneficiary named therein;
7.5Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
7.6Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
…
It is also important to record the sequence of events that then occurred, and that is best done by setting out [4]-[18] inclusive of the reasons for judgment delivered by this court on 20 January 2014, when dismissing an application by the husband for leave to appeal against orders made by the trial judge, when his Honour was a Federal Magistrate, on 16 October 2012 (see Davint & Malburon [2014] FamCAFC 3):
4.On 22 August 2012 the appellant’s solicitors sent a Transfer of Land document to the respondent’s solicitors, and by 5 September 2012 the appellant had secured the finance necessary to carry out his obligations under the final orders.
5.There was no reply to the letter of 22 August 2012, and thus a follow-up letter was sent on 10 September 2012 seeking the return of the Transfer signed by the respondent.
6.By letter dated 17 September 2012 the respondent’s solicitors informed the appellant’s solicitors that the respondent was away and could not return the Transfer until early October 2012, and advising that the respondent required that settlement not occur until 15 November 2012 (in accordance with the final orders).
7.On 3 October 2012 the appellant’s solicitors sent a letter to the respondent’s solicitors seeking a copy of the signed Transfer by 5 October 2012, and advising that the appellant and his bank were ready to proceed with settlement once a copy of the signed and stamped Transfer was received. No response was received to that letter.
8.On 15 October 2012 the appellant’s bank confirmed by email the need to receive the stamped, signed Transfer before settlement could be booked.
9.On 15 October 2012 the appellant’s solicitors sent a facsimile to the respondent’s solicitors enclosing the email from the bank, requesting the immediate return of a copy of the stamped, signed Transfer, and advising that if that was not done then proceedings would be issued seeking enforcement of the orders.
10.No response was received by the appellant’s solicitors, and on 22 October 2012 the appellant filed an application in a case seeking orders that the respondent do all acts and things and sign all such documents as may be required to comply with the final orders, and that in default, pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”), the registrar do all such acts and things and sign such documents as may be necessary to carry out the orders. In addition, an injunction was sought restraining the respondent from exercising the election in accordance with paragraph 3 of the final orders until 60 days after a signed, stamped copy of the Transfer of Land had been provided, seeking further time to make payment in accordance with paragraph 1 of the orders, and seeking to vary paragraph 5.1 of the orders.
11.On 29 October 2012 the respondent’s solicitors sent to the appellant’s solicitors a copy of the stamped Transfer of Land.
12.On 31 October 2012 the respondent filed a response seeking dismissal of the application. That response was supported by an affidavit of the respondent’s solicitor deposing that he had in his possession “an original Transfer of Land signed by [both parties] and stamped Duty Exempt”, that the respondent was “ready, willing and able to settle the Transfer on 15 November 2012”, annexing an email from the appellant’s bank saying that now the bank had a copy of the Transfer they would be able to settle no later than 15 November 2012, and advising that the respondent had been away working since 8 October 2012.
13.The application was not reached on 31 October 2012, and the Federal Magistrate adjourned the matter for hearing on 16 November 2012 (the day after settlement had to occur pursuant to the final orders).
14.On 8 November 2012 the respondent’s authority to discharge the mortgage over the subject property was received.
15.The banks were not able to agree at late notice upon a time for settlement to occur on 15 November 2012, and instead, by agreement between the parties, settlement was arranged for 11:30am on 16 November 2012.
16.On 16 November 2012, on the application of the appellant, the Federal Magistrate stood the matter down to enable settlement to occur.
17.The hearing before the Federal Magistrate resumed at 2:20pm on that day, at which time his Honour was informed that settlement had not occurred because of a late request by the appellant’s bank which required a second Transfer of Land document to be prepared. His Honour was further informed that this was being attended to and settlement had been rescheduled for 3:30pm that day. However, in the meantime the respondent purported to exercise her election under paragraph 3 of the final orders and declined to attend settlement. Indeed, at the hearing, the respondent’s counsel opposed any further adjournment and sought dismissal of the appellant’s application.
18.After hearing argument his Honour indicated that he would be dismissing the application. The respondent’s counsel then made an application for costs. His Honour delivered ex tempore reasons for judgment and dismissed the application filed on 22 October 2012, and the respondent’s application for costs.
In his Further Amended Application Alleging Contravention filed on 10 June 2014 the husband claimed that the wife had breached the orders made on 15 August 2012. There were five counts as follows:
Count 1
The [Wife], wilfully aided and abetted by her Solicitor without reasonable excuse failed to, contemporaneously with the payment, do all such acts and things and sign all documents as was required to effect a transfer of real property to the [Husband].
Count 2
The [Wife], aided and abbetted [sic] by her Solicitors, without reasonable excuse attempted to elect to retain the real property pursuant to Order 3.1 and attempted twice to pay the [Husband] pursuant to Order 3.2 whilst ignoring that it was the [Wife] and her Solicitors [sic] intentional conduct that prevented the [Husband] from complying with Order [sic] 1,2,2.2,2.3. The [Husband] did not fail to make the payment and discharge the mortgage as is the prerequisite of Order 3. The [Wife] and her Solicitors used beliberate [sic] stall tactics to intentionaly [sic] prevent the [Husband] from making the payment and discharging the mortgage by the due date.
Count 3
The [Wife] without reasonable excuse had other people residing at the real property in breach of her sole right to occupy and failed to pay all the rates of the real property.
Count 4
The [Wife] and her Solicitors without reasonable excuse placed a Caveat on the real property without the written consent of the [Husband].
Count 5
The [Wife] without reasonable excuse claimed possession of property belonging to the [Husband] and some belonging to third parties. Some of this property has been sold by the [Wife].
At the hearing before his Honour the wife made an application that the husband’s Application be summarily dismissed pursuant to r 13.10(a) of the Federal Circuit Court Rules 2001 (Cth). As can be seen his Honour acceded to that application.
The reasons for judgment of the trial judge
After setting out a brief history of the parties and the proceedings his Honour quoted from the reasons for judgment delivered by this court on 20 January 2014 (mistakenly identified by his Honour as having been delivered on 5 April 2013).
His Honour then recorded the five counts of the husband’s application, confirming his finding made during the hearing, that the second count was “bad for duplicity” and “could not be put to the [wife] for her to admit or deny” (at [9]). Curiously though his Honour then recorded that that count had been “dismissed” by him pursuant to r 25B.04 of the Federal Circuit Court Rules 2001 (Cth). Unfortunately, it is not apparent what that Rule has to do with a count being “bad for duplicity”, but again, nothing turns on that in this appeal.
In relation to the third count his Honour confirmed his finding, presumably made during the hearing, that “order 5.1 was inter partes and did not require that the [wife] not have guests at the property” (at [11]). On that basis his Honour found that the husband had no prospect of successfully prosecuting that count.
His Honour then turned to the application for summary dismissal.
First, his Honour addressed a claim by the husband that it was inappropriate for the counsel for the wife to appear, alleging misconduct. His Honour found that that was a matter for the Victorian Bar Council and not the court. Secondly, his Honour referred to an application by the husband for an adjournment to obtain legal advice, which his Honour refused.
Next, his Honour referred to the meaning of “contravened” in s 112AB(1) of the Family Law Act 1975 (Cth) (“the Act”) and then proceeded to address each count.
As to count 1 his Honour found as follows:
28.… as the [husband] did not make the payment to the [wife] required by order 1, the [wife] was never bound by order 2 [s.112AB(1)(a)], nor did the [wife] prevent compliance with the order [s.112AB(1)(b)]. As held by Strickland J at [29] (supra) “as at 22 October 2012 there was no actual default on the part of the [wife] which could be the basis of an application for enforcement.” The Court finds that to date there has been no actual default of the part of the [wife], which could be the basis of a Contravention Applicant. The [husband] has no prospect of successfully prosecuting count one.
As to count 2, his Honour again noted that that count had been dismissed during the hearing, but then said this:
29.… In any event, the Court finds that the payment of $110,000.00 not having been made, the [wife] had the right to elect to retain the property. It was not the [wife] or her solicitors that prevented the [husband] from making the payment; the [husband’s] bank did (supra).
As to count 3 his Honour repeated his finding that the order was an order made “inter partes” and said that in any event “the provision as to sole occupancy ceased to operate from the date of the [wife’s] election on 16 November 2012 … to retain the property” (at [31]), and thus had no effect at the subsequent date when the husband found someone else living at the property. His Honour also found that there was no evidence that the wife had failed to pay all the rates for the property, and held that the husband had “no prospect of successfully prosecuting count three” (at [32]).
As to count 4, his Honour found that placing a caveat on the title to the property was not encumbering the property, and again, the husband had “no prospect of successfully prosecuting [this count]” (at [36]).
As to count 5, his Honour found that because there was an “Intervention Order” preventing the husband from going to or remaining within 200 metres of the property, “[t]he [wife] therefore had the possession of the property in the house and the real property” (at [39]). Thus, his Honour found that the husband was not entitled to the property that he wanted, including the property belonging to third parties and which the husband said “was in the driveway of the house…parked off to one side” (Transcript 10.7.14, page 17, lines 15-16).
His Honour then found that the count was “duplex”, “[lacked] specificity and [could not] be pleaded under r.25B.04(b)” (at [43]). His Honour said that it could not “be put to the [wife]” and again, “[t]he [husband had] no prospect of successfully prosecuting count five” (at [43]).
His Honour concluded that “the [husband had] no reasonable prospect of successfully prosecuting the proceeding or claims in his Contravention [sic] as amended and as further amended” (at [51]), and dismissed them.
As to the question of costs, his Honour found that there were circumstances that justified the court “ordering costs to the [wife]” namely, “the [husband had] been wholly unsuccessful in these proceedings” (at [57]). His Honour then ordered that “the [husband] pay the [wife’s] costs in accordance with Schedule 1 of the Rules” (at [58]), but dismissed the application for costs on an indemnity basis. I observe that in the separate sealed order, the order for costs was translated into an order that the husband pay $11,001.50 within 60 days.
The Grounds of appeal and orders sought
The grounds of appeal set out in the Notice of Appeal are as follows:
1.The Federal Circuit Court Judge erred in not following correct procedure as defined by Federal Circuit Court rule 25B.04 and in particular by not informing the [Wife] of the allegation as defined by 25B.04(1) and by not asking the [Wife] whether the [Wife] wishes to admit or deny the allegation as defined by rule 25B.04(2).
2.The Federal Circuit Court Judge erred by copying part of a judgement [sic] of an Appeal from a different Application without giving any or appropriate weight to the evidence and annexures in affidavit material or argument put forward at the hearing. The evidence contained in the cut and pasted section of His Honours [sic] judgement [sic] is in conflict with the findings in other parts of His Honours [sic] judgement [sic].
3.The Federal Circuit Court Judge erred in finding that the [Wife] was not bound to do all such acts and things as may be required to transfer her right, title and interest in the real property to the [Husband] until the initial payment had been provided. This is in direct conflict with the wording of the Orders and renders the Final Orders as drafted on 15 August 2012 defective and beyond implementation despite having been drafted on a standard form of the Family Court in a standard format.
4.The Federal Circuit Court Judge erred in finding that the Intervention Order taken out against the [Husband] voided all the [Husband’s] property rights within the Final Orders. This is in direct conflict with the wording of the Orders.
5.The Federal Circuit Court Judge erred in failing to address any of the serious allegations and supporting evidence in the [Husband’s] testimony on affidavit.
The orders sought in the Notice of Appeal are as follows:
1.That this Honourable Court re exercise its discretion on the Contravention Applications filed by the [Husband] on 3 Feb 2014, amended on 12 Feb 2014 and further amended on 10 June 2014.
2. Such further or other Orders as this Honourable Court deems fit.
Discussion
Ground 1
The challenge articulated in this ground of appeal is that his Honour failed to comply with rr 25B.04(a) and (b) of the Federal Circuit Court Rules 2001 (Cth). It is plain that his Honour did not do what these paragraphs require, but that was because that stage of the proceedings was never reached. His Honour first had to address the application of the wife for summary dismissal, and his Honour did that, finding that the husband had “no reasonable prospect of successfully prosecuting the proceeding or claims in his Contravention [sic] as amended and as further amended” (at [51]), and on that basis dismissing the husband’s application.
Thus, to repeat, the proceedings never reached the point where the allegations needed to be put to the wife. Accordingly, there is no merit in this ground of appeal.
Ground 2
This challenge is misconceived. It is not an error for the trial judge to refer to and incorporate in his reasons for judgment parts of the reasons for judgment from an earlier judgment of this court. I have also not been taken to any part of the record, including the transcript, that provides a basis for the husband to claim, that in so doing, his Honour failed to give “any or appropriate weight to the evidence and annexures in affidavit material or argument put forward at the hearing”.
Finally, I am not persuaded that there is any conflict between his Honour’s findings, and those referred to in the previous reasons for judgment referred to by his Honour.
There is no merit in this ground of appeal.
Ground 3
This challenge appears to relate to count 1 of the Further Amended Application Alleging Contravention. The husband’s case was that the wife had breached the order requiring her to “do all such acts and things and sign all such documents as may be required to transfer [the property] to the [husband]” (see order 2.1).
However, his Honour found in effect that there was no breach by the wife given that the required payment of $110,000 had not occurred. His Honour said this:
22.It is not contested that the payment of $110,000.00 to the respondent (as required by order 1) has not occurred. The orders cannot be interpreted as requiring the respondent to do something, at the same time as something that has not occurred.
23.The respondent was not required to do all things to effect a transfer at the same time as the payment, as the payment did not occur.
Relevantly, his Honour also found (at [27]) that the wife was “ready, willing and able” to settle the sale on the date specified in the orders. Thus, there was no default by the wife which could be the subject of an application alleging contravention.
The husband challenged the finding that there was no obligation on the wife to do anything unless the payment of $110,000 was made. The orders provided for the husband to pay to the wife the sum of $110,000 (order 1), then order 2 provided that “contemporaneously” with that payment, inter alia, the wife had to do all that was necessary to effect the transfer of the property.
Importantly, the evidence was that the $110,000 was not paid at settlement because the Bank providing the finance to the husband required a further transfer to be prepared. Thus settlement never occurred.
Again, I consider that this ground of appeal, and the husband’s submissions in support thereof, are misguided. There was nothing unusual in the orders that his Honour made, and plainly if the husband was not able to tender the required payment then the wife was not obliged to do anything to complete the settlement.
Thus, there is no error by the trial judge, and there is no merit in this ground of appeal.
Before leaving this ground though, I observe first, that in his written submissions the husband challenged his Honour’s interpretation of the word “fail” as it appeared in paragraph 3 of the orders made on 15 August 2012.
This was of course the subject of count 2 of the Further Amended Application Alleging Contravention, but as the wife’s counsel points out, it was not the subject of a ground of appeal.
In any event, again, I am not persuaded that his Honour erred in considering whether the husband had failed to make the required payment. Clearly, the amount was not paid, and that is all that is required to be established; the reasons for that are irrelevant to the interpretation of the order.
Secondly, and again without this being a ground of appeal, in his written submissions the husband suggests that his Honour erred in finding that the wife had not breached paragraph 5.1 of the orders, by permitting another person to live in the property, and by not paying the rates. These complaints also have no merit. The order providing for the wife to have sole occupancy of the property does not prevent her having any number of other people residing there, and in relation to the rates, as his Honour found, there was no evidence before him that there were outstanding rates, or that the wife had refused to pay them.
Ground 4
Although this ground is not expressed in the best way possible, it is apparent to this court that his Honour did proceed on the basis that the making of the “Intervention Order” meant that any items of property not in the shed, were items that were in the possession of the wife, and the husband had no right to possess them. Indeed, this is precisely what [43] of his Honour’s reasons says. The only rider to this interpretation is that it could be argued that that outcome was supported by the fact that pursuant to paragraph (5) of the orders made on 15 August 2012, the wife was entitled to sole occupancy of the property. However, that does not detract from the plain meaning of his Honour’s reasons.
In any event, I consider that his Honour erred in proceeding on that basis. It cannot be the case that just because the husband is not able to go onto the property that the items of property not in the shed or the house that are his, or are owned by third parties, can be treated by the wife as hers, and sold off. Thus to that extent I find his Honour erred.
However, the primary issue here is still the interpretation of paragraph 7.1 of the orders, and specifically what is meant by the words, “in the possession of [each] party as at the date of [the] orders”.
Applying the principle from the authority cited by his Honour (at [41]) of Button v Cooper (1947) SASR 286, there must be an “intent to possess by the possessor … and it must be effectively realised …”. However, as far as I can see there was no evidence that the wife had either such an intention or that she effectively realised that intention. Indeed, there was a clear dispute ongoing between the parties over the husband’s wish to obtain certain of the items of property that were neither in the house nor in the shed. The husband’s affidavit filed on 10 July 2014, and which was before his Honour, plainly attests to that, and to the efforts the husband had gone to in an attempt to obtain his property, and that belonging to third parties.
It is also instructive that on 20 September 2013 the wife sent an email to Mr P requiring him to remove his motor vehicles from the property (Annexure PMD1 to the husband’s affidavit filed on 10 July 2014). There is a clear acknowledgement in that email that those motor vehicles which were on the property at the time the orders were made were not the wife’s, and she could not claim to be in possession of them and subsequently sell them as she has apparently done.
It is submitted by the wife that even if his Honour erred in the way suggested by the husband, paragraph 7.1 of the orders is “ambiguous” and should be resolved in favour of the respondent to the contravention application, namely the wife. In support of that proposition the wife’s counsel referred to the principle “enshrined” in Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, and Australian Competition and Consumer Commission v Collings Construction Co Pty Ltd (Unreported, SCNSW 2 July 1997, BC 9702850 at 15), as expressed by Brown FM (as his Honour then was) in Hale & Hale [2011] FMCAfam 1107 at [57] as follows:
… if there is any ambiguity arising from the order or orders, which give rise to the contravention application in question, such ambiguity should be resolved in favour of the person facing the contravention. It being fundamental that he or she can only be found responsible for an act or omission if he or she knows precisely what is required of him or her pursuant to the applicable order.
The wife’s counsel explained the ambiguity in his written submissions as follows:
47.In this instance, the order can be seen as “ambiguous” to the extent that the [Husband] alleges that he was in possession (either by way of constructive possession, legal possession or a right to possession) of chattels which remained on the property which were neither in the “shed” or in the “house” as stated in order 7.1. In light of the different definitions of “possession” which may be applied, and/or whether or not the [Husband] retained a “right to possession” not withstanding the fact that he had been excluded from the property, the order is ambiguous.
I do not accept that there is any ambiguity about this paragraph of the orders; it is, as I have said, just an interpretation of the words “in the possession of [each] party as at the date of [the] orders”, and I fail to see any difficulty in how they should be interpreted.
In any event, I have no doubt that the wife “knows precisely what is required of … her pursuant to the … order”.
In all the circumstances I consider that his Honour erred in finding that the husband had “no prospect of successfully prosecuting count five”, and there is merit in this ground of appeal
His Honour also found that count 5 was “duplex”, “[lacked] specificity and [could not] be pleaded under r.25B.04(b)” (at [43]). However, I fail to see how this count is bad for duplicity, and of course his Honour never explained that in his reasons for judgment. Further, it is entirely unclear on what basis his Honour says that the count lacks specificity and cannot be pleaded under r.25B.04(b); again, his Honour failed to provide any reasons for these findings including explaining the relevance of r.25B.04(b).
Ground 5
This is not a proper ground of appeal in that it is far too general and lacks any specificity; it is impossible to address and cannot succeed.
However, it is apparent from the husband’s written submissions that what he complains about is the conduct of the wife’s counsel, and the fact that his Honour found that that was a matter for the Victorian Bar Council and not the court.
His Honour was quite correct in that ruling, and there is no error here.
Conclusion
I have found merit in Ground 4, and the question now becomes what orders this court should make.
His Honour, of course, found that the husband had no prospect of successfully prosecuting count 5 of the application to which this ground relates, and summarily dismissed the application.
It is of course that order insofar as it relates to count 5 that I will be setting aside.
However, I need to consider whether I am able to re-exercise the discretion or whether I must remit that matter for rehearing. To that end I propose to list this matter for directions to consider those options.
Further, as can be seen, the husband not only appealed against the dismissal of his Further Amended Application Alleging Contravention, but against the order for costs.
Although the husband failed to direct any submissions to that aspect of the appeal, given that I will be allowing the appeal in part and setting aside that part of the order dismissing the application in relation to count 5, the order for costs cannot stand.
The order was in effect a global order providing for the husband to pay the wife’s costs “in accordance with Schedule 1 of the Federal Circuit Court Rules 2001”, being the sum of $11,001.50, within 60 days, and thus it is not possible to say what part of that relates specifically to count 5, or indeed any other count for that matter.
Costs
At the conclusion of the hearing I sought submissions from the husband and the wife’s counsel as to the question of costs depending on the result.
In the event that the appeal was successful, both the husband and the wife’s counsel sought costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
Plainly the appeal has been successful in relation to count 5 of the Further Amended Application Alleging Contravention, but it has also been unsuccessful in relation to counts 1, 2 and 3, count 4 not being the subject of a ground of appeal. Accordingly, I am not disposed to grant costs certificates to either party.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
15 September 2015.
Associate:
Date: 15 September 2015
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