Davint & Malburon
[2014] FamCAFC 3
•20 January 2014
FAMILY COURT OF AUSTRALIA
| DAVINT & MALBURON | [2014] FamCAFC 3 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL/APPEAL – where the appellant seeks to appeal orders made by the Federal Magistrate (as he then was) dismissing his application in a case filed on 22 October 2012 and the respondent’s application for costs – where it is clearly a mistake by the appellant to seek to appeal the latter order – where the application for leave to appeal relies on the success of the grounds of appeal in establishing errors of principle – where there is no merit in any of the grounds of appeal – application for leave to appeal dismissed. FAMILY LAW – APPEAL – LEAVE TO APPEAL/APPEAL – COSTS – where the respondent seeks an order for costs in the event that the application for leave is dismissed or if leave is granted and the appeal dismissed – where the applicant opposes the respondent being granted an order for costs – where the appellant has been wholly unsuccessful – where there are circumstances which justify an order for costs being made as sought by the respondent – costs so ordered. |
| Family Law Act 1975 (Cth) – s 90SN(1)(c) |
| Bray & Bray (1988) FLC 91-968 Kaljo & Kaljo (1978) FLC 90-445 McDonald & McDonald (1976) FLC 90-047 Molier & Van Wyk (1980) FLC 90-911 Ravasini & Ravasini (1983) FLC 91-312 Rutherford & Rutherford (1991) FLC 92-255 Slapp & Slapp (1989) FLC 92-022 Vasilias & Vasilias (No. 3) [2008] FamCA 407 |
| APPELLANT: | Mr Davint |
| RESPONDENT: | Ms Malburon |
| FILE NUMBER: | MLC | 4677 | of | 2012 |
| APPEAL NUMBER: | SOA | 89 | of | 2012 |
| DATE DELIVERED: | 20 January 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 5 April 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 November 2012 |
| LOWER COURT MNC: | FMCAfam 1427 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Puckey |
| SOLICITOR FOR THE APPELLANT: | Parke Lawyers Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Nicholson |
| SOLICITOR FOR THE RESPONDENT: | Lampe Family Lawyers |
Orders
The application for leave to appeal be dismissed.
The appellant pay the costs of the respondent of and incidental to the application for leave to appeal and the appeal with such costs to be assessed in default of agreement.
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 89 of 2012
File Number: MLC 4677 of 2012
| Mr Davint |
Appellant
And
| Ms Malburon |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 8 February 2013 Mr Davint (“the appellant”) seeks leave to appeal, and if leave is granted, to appeal against orders made by Federal Magistrate Turner (as he then was) on 16 November 2012. Ms Malburon (“the respondent”) opposes the application for leave to appeal, and the appeal, if leave is granted.
The orders sought to be appealed against are first, an order dismissing the application in a case filed by the appellant on 22 October 2012, and secondly, an order dismissing the respondent’s application for costs. However, it is clearly a mistake by the appellant to seek to appeal against the latter order given that it favoured him, and I propose to ignore that aspect of the application and the appeal.
Factual Background
On 15 August 2012 final orders for property settlement were made by consent by the Federal Magistrate. Relevantly, orders 1, 2, 3, 4 and 5 provided as follows (noting that the appellant 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.
4.That in the event that the Applicant does not make the payment and discharge the mortgage required of him by the date provided for in order 1 and the Respondent does not elect or elects and does not make the payment required of her by the dates provided for in orders in 3.1 and 3.2 respectively as the case maybe [sic]:
4.1The real property be forthwith sold altogether out of Court (“the sale”);
4.2Upon completion of the sale, the proceeds of the sale be applied:-
4.2.1Firstly to pay all costs, commissions and expenses of the sale;
4.2.2Secondly to discharge the mortgage and any other encumbrance affecting the real property;
4.2.3Thirdly the balance then remaining be divided in the proportions of:-
4.2.3.1 1/3 thereof to the Applicant;
4.2.3.2 2/3 thereof to the Respondent.
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.
…
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.
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.
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).
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.
On 15 October 2012 the appellant’s bank confirmed by email the need to receive the stamped, signed Transfer before settlement could be booked.
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.
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.
On 29 October 2012 the respondent’s solicitors sent to the appellant’s solicitors a copy of the stamped Transfer of Land.
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.
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).
On 8 November 2012 the respondent’s authority to discharge the mortgage over the subject property was received.
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.
On 16 November 2012, on the application of the appellant, the Federal Magistrate stood the matter down to enable settlement to occur.
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.
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.
The reasons for judgment of the Federal Magistrate
The reasons for judgment were delivered ex tempore and were brief. The Federal Magistrate recited the factual background to that point and then declined to make the order sought by the appellant because it “would have conflicted with the orders of 15 August 2012”. His Honour then turned to the application for costs and “found it relevant under s.117(2A)(g) of the Act, that the bank had prevented settlement, and not the applicant.” On that basis the Federal Magistrate considered “that there were not circumstances that justify departing from the provision in s.117(1) that parties shall bear his or her own costs”.
Leave to Appeal
The facts relied on by the appellant in support of the application, and which are said to establish an error of principle or a substantial injustice (Rutherford & Rutherford (1991) FLC 92-255) are as follows:
1. Final Orders were made between the parties.
2. The Appellant brought an Application to enforce those Orders.
3.The Appellant’s application was adjourned and then dismissed, leaving him unable to enforce the Orders.
4.The Federal Magistrate appears to have regarded himself as without power to make Orders.
5.For the reasons set out in the Appellant’s Grounds of Appeal and Summary of Argument errors of principle were made by the Federal Magistrate in interpreting the Final Orders and applying them to the circumstances.
6.The Appellant has been deprived of the benefit of the Final Orders which entitled him to receive a transfer of his home and business premises, causing him a substantial injustice.
7.The proceedings between the parties have been characterised by a series of opportunistic steps taken by the Wife to obstruct the ordinary legal process, frustrate the operation of orders and to cause the Husband significant prejudice and hardship.
As can be seen the appellant relies on the alleged errors of principle which are raised in his grounds of appeal, and thus I propose to address those grounds first. I will also leave the issue of substantial injustice until I have undertaken that exercise, because it may not be necessary to consider that issue at any length or at all.
Grounds of appeal
The grounds of appeal set out in the Amended Notice of Appeal filed on
8 February 2013 are as follows:
1.The Federal Magistrate erred in interpreting or applying the final order made 15 August 2012, when finding that the Respondent’s right to elect had become operative.
2.The Federal Magistrate failed to give any or appropriate weight to facts relevant to the proceedings, including the fact that the Applicant and his bank had been ready and willing to settle for some time and the Respondent’s frustration of the implementation of the terms of the final order and the settlement.
3.The Federal Magistrate denied the Applicant a fair or any hearing of his Applications to enforce the final order and effect the settlement.
4.The Federal Magistrate failed to provide any or adequate reasons for judgment.
Discussion
Grounds 1 and 2
These grounds were addressed together by the counsel for the appellant in his written summary of argument and also orally before the court at the hearing of the appeal, and I too will follow that course.
I must say though that there is no necessary connect between these grounds and the submissions made in respect of them. For example, it is not demonstrated in those submissions how the Federal Magistrate erred in the manner complained of in Ground 1. His Honour applied the strict terms of the final orders in finding that the respondent was entitled to exercise her right to elect to retain the property pursuant to paragraph 3 of the orders. Thus there is no obvious error here. Moreover, with Ground 2, in again applying the strict terms of the orders, there was no apparent basis for the Federal Magistrate to take into account the so-called relevant facts. Thus, there is no obvious error here either.
Instead, what emerges from the written submissions of the appellant is the complaint that the Federal Magistrate was “persuaded by Counsel for the [Respondent] that the [Appellant] was trying to vary rather than enforce the Final Orders”, and that his Honour “concluded that enforcement was simply not possible beyond the date of 15 November 2012”.
It is plain that the real issue here is whether the provisions of the order setting the time by which payment had to be made, the transfer effected, and the mortgage discharged (paragraphs 1 and 2 of the consent orders), were substantive provisions or machinery provisions. If they were the latter then they are capable of variation, but if they are the former then they are not (McDonald & McDonald (1976) FLC 90-047, Kaljo & Kaljo (1978) FLC
90-445, Molier & Van Wyk (1980) FLC 90-911, Slapp & Slapp (1989) FLC
92-022), and consideration would then need to be given to making an application pursuant to s 90SN(1) of the Act to vary those provisions.
Although this distinction was not raised before his Honour by counsel for the appellant, it is quite apparent from the transcript of the hearing before his Honour, and his Honour’s brief reasons for judgment, that his Honour was of the view that they were substantive provisions and thus he could not, on the basis of the application that was before him, vary the order to permit settlement to take place later that day.
At the hearing of the appeal, the counsel for the appellant submitted that it was common ground that the parties had agreed to extend the time for payment from 15 November to 16 November, and thus his Honour was in error in not permitting settlement to take place on that day. However, it is clearly apparent from the transcript of the hearing that the agreement between the parties was not to extend the time generally to 16 November, but to extend it to 11:30am on that day, and to order settlement later than that required a new agreement (see e.g. Transcript, 16 November 2012, page 11 lines 19-26, page 11 line 45 to page 12 line 17).
Paragraph 2 (and perhaps paragraph 3) of the application filed on 22 October 2012 sought orders that were theoretically open at that time, but on the view taken by the Federal Magistrate were not open after 11:30am on 16 November 2012. I say theoretically because paragraphs 1 and 2 of the final orders provided for payment of the amount to the appellant, for the transfer to be effected, and for the mortgage to be discharged on or before 15 November 2012, and as at 22 October 2012 there was no actual default on the part of the respondent which could be the basis of an application for enforcement.
With paragraphs 4, 5 and 6 of the application, they clearly sought orders varying the final orders for property settlement, and to repeat, that could only happen (in the absence of a s 90SN(1) application) if the orders sought to be varied were machinery provisions, or if it was open to include machinery provisions in the orders because they were needed.
Pausing there, can I say that on the unchallenged facts in this case I am at a loss to understand why instead of pursuing an appeal, the appellant did not institute proceedings pursuant to s 90SN(1) of the Act, and in particular relying on
s 90SN(1)(c). In my view, although I cannot bind any court that may subsequently hear such an application, that would have achieved a successful outcome for the appellant. Indeed I observe that filing such an application was discussed between bench and bar at the hearing of this matter. (Transcript,
16 November 2012, page 8 line 45 to page 9 line 2, page 17 lines 6-8 and lines 24-25).
Turning then to whether the relevant provisions were substantive or machinery provisions, the first question is what is meant by a machinery provision compared with a substantive one. Perhaps the best exposition of this is contained in the Full Court decision of Ravasini & Ravasini (1983) FLC
91-312. After referring to the dictionary definition of “consequential”, which term the Full Court preferred to “machinery”, the Full Court said this [at 78,127]:
A consequential order then, in a property matter, would include an order following logically or of necessity from a prior substantive order.
What a consequential order is not is an order the effect of which is to vary the prior order for property settlement. It is not possible to suggest that even the slightest variation of the original order is a consequence of it. What is being submitted in this appeal is that the original order should be amended not as a consequence of that order itself, not as a necessary follow up of that original order but rather as a consequence of events which have happened in the market place since that order was made rendering the facts on which it was based no longer accurate.
Whether what is to be done is termed a consequential order or a machinery order the result is the same. The Court has no power to vary the original order. It has power to enforce the order and to modify the machinery provisions of the order to effect enforcement provided that by so doing it does not affect the substantive rights of the parties. That power can also be used to spell out the effect of the order where that is not clear.
Further, at 78,128 the Full Court said this:
Thus, as we have set out above, the substantive order cannot be varied but the enforcement provisions, the secondary orders made as a consequence of the substantive order, to give it operation and effect, can be varied. It is therefore the construction of the order itself that is to be examined and not the basis of fact on which it was made. The test is not whether the unchangeable or substantive order is a just or proper order – that is a matter for appeal or for an application under sec. 79A – but whether the part or parts of the order sought to be changed are part or parts of the substantive order or whether they are orders made to give efficacy to that substantive order.
On that basis, with order 1, it could be argued that the part providing for the payment of $110,000 is substantive, and the part providing for when it is to be paid is machinery, or consequential. However, the difficulty with that is the presence of order 3. That gives to the respondent a substantive right to elect to retain the property and pay an amount of money to the appellant in default of payment by the appellant in the time prescribed. Thus, to extend the time for payment of the $110,000 will directly affect this substantive right, and according to the Full Court in Ravasini, the court does not have the power to do that.
I observe that this was the very discussion that his Honour had with counsel for the appellant during the hearing, and it is plain that this was a reason for his Honour dismissing the application. (Transcript, 16 November 2012, page 14 lines 1-4, page 15 lines 9-14, page 17 line 40 to page 18 line 42).
I also observe that there are decisions where courts have held that that part of final orders for property settlement prescribing a time for the payment of a sum of money are not machinery provisions where the orders then provide for the sale of the property in default of payment by the prescribed time. Thus, they cannot be varied by extending the time to pay the required amount (Bray & Bray (1988) FLC 91-968 and Slapp). In Slapp for example, Nygh J said [at 77,360] that the extension of time granted by the trial judge “cannot be described as merely a change of machinery, but it had the effect of depriving the wife of a right of substance which the earlier Orders of the Court, as amended, had vested in her.” Importantly, in Bray, Lindenmayer J [at 76,999-77,000] said that “the question whether a particular part of an order of this court made at first instance is a substantive order or, by contrast a consequential or machinery order, has to be determined by the construction of the entire order, and not by reference to part only of that order …”.
These decisions plainly support the interpretation that the Federal Magistrate placed on the orders here. As a result, counsel for the appellant sought to distinguish these cases on the basis that in each of them the party who was required to make the payment was unable to raise the finance required, and there was no evidence that they would be in a position to settle even if time was extended. That is a clear factual difference with the case at bar, but it does not go to whether the order is substantive or machinery (or consequential); the factual circumstances of why the default occurred are irrelevant to the nature and interpretation of the orders.
The appellant seeks to rely on the cases of Kaljo and Molier & Van Wyk. There is no doubt that these cases are authority for the court having power to make orders in relation to the implementation of the substantive order including “where that order has failed to cover certain eventualities” such as “the failure to comply with an order for the settlement of a lump sum within the time prescribed”. However, in neither of those cases did the implementation of the substantive order entail affecting the substantive rights of the other party as is the case here, and thus they do not assist the appellant.
I also observe that initially the counsel for the appellant sought to submit that it was not a question of whether a provision was substantive or machinery, but rather, those cases established discreet principles to the effect that “an application can be made to the Court for further orders in relation to the implementation of the substantive order … if the orders are necessary to give effect to the order[s] or to work it out to cover unforeseen circumstances” (Kaljo at 77,275). It is said that these principles apply here, and the unforeseen circumstances are the fact that the banks were not ready to settle on
15 November 2012 and the delays caused by the respondent’s conduct.
However, ultimately counsel conceded, correctly in my view, that these cases do not establish any discreet principles and enabling variation of a property settlement order, and it is still necessary to find that the orders are machinery or consequential in nature and do not affect the substantive rights of any party. Thus, even though it could be argued that there were unforeseen circumstances here (and I note that that was in dispute), it was still necessary to find that the provisions sought to be varied satisfied this test. Accordingly, this argument does not advance the appellant’s case.
At the hearing of the appeal the counsel for the appellant also referred the court to the decision by a single judge (Cronin J) in Vasilias & Vasilias (No. 3) [2008] FamCA 407. There, as part of final orders for property settlement Cronin J ordered that the wife pay a set amount of money to the husband, and contemporaneously with that payment the husband transfer to the wife his interest in the property. His Honour further ordered that in the event that the wife failed to pay the sum by the due date and failed to discharge certain liabilities for which she was responsible, then the husband was to have the option to pay the wife a specific sum within a prescribed period of time. Ultimately the wife defaulted in paying the required amount to the husband within the period of time, which had been extended by agreement. The wife then sought an order extending the time to make the payment and that application came before his Honour.
In his Honour’s reasons for judgment he referred to the cases of Bray, Molier & Van Wyk, and Ravasini, and concluded that his task was to determine whether or not the order that was then being sought to be varied was a substantive order or a consequential or machinery order. His Honour further indicated that this question had to be determined by the construction of the entire order and not by reference to part only of that order. His Honour then found that the relevant provisions in his orders were of a consequential nature rather than a substantive nature. However, his Honour provided no discernible reasons as to the basis of this finding. His Honour did point to the fact that his intention in making the orders was for the wife to either retain “the set equity in the home”, or if she did not get that equity by virtue of not being able to buy the home, then she had to get the set amount of money from the husband or by virtue of a sale. However, it is not explained why that intention renders the relevant provisions consequential rather than substantive.
With due respect, I consider that his Honour was in error in finding that the relevant provisions were not of a substantive nature, and accordingly this case does not assist the appellant either.
In summary then, I find that it was not open to the Federal Magistrate to make the orders sought in the application filed on 22 October 2012, and specifically it was not open to his Honour to further extend the time for payment by the appellant of the sum of $110,000. Accordingly, there is no merit in Grounds 1 and 2.
Ground 3
During the hearing I indicated that this ground had no merit, and I confirm that finding.
The Federal Magistrate called the matter on for hearing at 10:10am on
16 November 2012, but instead of pursuing the application, counsel for the appellant sought that it be stood down to enable settlement to take place. Thus, counsel for the appellant cannot be heard to complain that the application was not heard prior to the date and time for settlement to occur.
There was an issue as to what part of the application was listed for hearing on 16 November 2012, namely whether it was the entire application or just the question of costs. However, the order of 31 October 2012 plainly adjourned the entire application to 16 November 2012, and no part of that application was dealt with finally or at all prior to 16 November 2012. Thus, this cannot provide a basis to support the complaint made in this ground.
Upon resumption of the hearing at 2:20pm, his Honour gave counsel for the appellant every opportunity to present her case. It is apparent from a perusal of the transcript of the hearing that his Honour was patient with counsel and permitted her to make her submissions despite those submissions becoming repetitive. He did refuse her application to adjourn the hearing to enable her client to be present, but I am not persuaded that his Honour erred in that refusal.
Ground 4
It is beyond doubt that the reasons for judgment of the Federal Magistrate are brief, and it is not surprising that the respondent in his counsel’s written submissions “conceded that the Reasons for Judgment themselves do not constitute adequate reasons within the line of authorities”, and suggested in effect that the transcript could fill in the gaps.
The fact of the matter is that the transcript cannot be used to fill in any gaps in the reasons for judgment, and it is the reasons for judgment from which the path by which the result has been reached must be able to be discerned. That does not though render the transcript of the hearing irrelevant, and reference can be had to what was said during the hearing to put the reasons for judgment into context, particularly where, as here, the reasons were delivered
ex tempore.
In any event, I consider the concession by the counsel for the respondent to have been misconceived. In my view, the recitation of the background leading up to the hearing, and what his Honour says in paragraph 11 of his reasons for judgment, do reveal the path by which the result was reached by his Honour. The statement in paragraph 11 that his Honour “declined” to order that the parties attend settlement at 3:30pm that day “as that would have conflicted with the orders of 15 August 2012” was all that his Honour needed to say consequent upon setting out the relevant background. This was clearly a concise way of expressing the view that the order providing for payment by a certain time (allowing for the agreed variation to 11:30am on 16 November 2012) could not be varied because that would affect the substantive right that the respondent had under paragraph 3 of the orders. Further, if necessary, that this was what his Honour was saying is confirmed by the discussion that took place between bench and bar recorded in the transcript of the hearing.
Finally, even if it could be argued that his Honour’s line of reasoning is not readily apparent from his reasons, that error is not such as would require appellate interference, given that in dismissing the application, his Honour was clearly correct.
Accordingly, I find that there is no merit in this ground either.
Conclusion
Having found no merit in any of the grounds of appeal, and given that the application for leave to appeal relies on the success of those grounds in establishing errors of principle, that cannot be a basis for granting leave. There also cannot be any actionable substantial injustice to the respondent if his Honour has made no error in reaching his decision. Thus, leave to appeal must be refused. Further, even if leave to appeal could be granted, the appeal would be dismissed as a result of the grounds of appeal having no merit.
costs
At the conclusion of the hearing I sought and received submissions from both counsel as to the question of costs depending on the result of the application for leave, or if leave was granted, the result of the appeal.
In the event that the application was dismissed, or if leave was granted, the appeal was dismissed, the respondent sought an order for her costs. This was opposed by the appellant on the basis that any dismissal could only be on the basis of a technicality.
Given that the appellant has been wholly unsuccessful there are circumstances here that justify an order for costs being made. Further, the application has certainly not been dismissed on a technicality, and it is worth noting that the appellant chose to run the appeal when a far more viable option was to institute proceedings under s 90SN(1). Thus, I propose to make an order for costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
20 January 2014.
Associate:
Date: 20 January 2014
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