FAMILY LAW - APPEAL – SUMMARY DISMISSAL – Where an order was made summarily dismissing the wife’s application for a declaration pursuant to s 78 of the Family Law Act 1975 (Cth) – Discussion of the principles applying to applications for summary dismissal – Discussion of possible merit in wife’s claims in equity - Discussion of remedies available other than those sought by the wife – The Judge erred in summarily dismissing the wife’s application – Appeal allowed
FAMILY LAW - APPEAL – COSTS – No order for costs in relation to the appeal – Costs certificates granted to the wife and second respondent
To the extent that leave may be required, leave to appeal against the order of the Honourable Justice Fowler made on 23 April 2009 be granted.
The appeal be allowed.
The order made by the Honourable Justice Fowler on 23 April 2009 be set aside.
There be no order for costs in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the second respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the second respondent in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Friar & Friar [2011] FamCAFC 71
Case
[2011] FamCAFC 71
Decision Date
CaseChat Overview and Summary
In the matter of Friar & Friar, the wife appealed against the summary dismissal of her application for a declaration under section 78 of the Family Law Act 1975 (Cth). The appeal concerned whether the trial judge erred in summarily dismissing the wife's application and in the costs awarded in relation to the appeal. The wife sought a declaration that the husband's sister represented that she (the wife) was the owner of a property, and that this representation constituted a representation of present ownership, which should be recognised as a proprietary interest.
The court considered the principles for summary dismissal, the possible merits of the wife's claims in equity, and the available remedies. The court found that the trial judge erred in summarily dismissing the wife's application, as there was merit in her claim, which could only be fully assessed at trial. Additionally, the court found that the trial judge incorrectly assumed that the representation related to a present interest in the property, when it was sufficient to rely on a representation as to future ownership.
The appeal was allowed, and the order made by the trial judge was set aside. The court did not order costs in relation to the appeal but granted costs certificates to both the appellant and the second respondent. The appellant was granted a certificate under section 9 of the Federal Proceedings (Costs) Act 1981 (Cth), and the second respondent was granted a certificate under section 6 of the same act.
Orders
Orders of the court
1.
To the extent that leave may be required, leave to appeal against the order of the Honourable Justice Fowler made on 23 April 2009 be granted.
2.
The appeal be allowed.
3.
The order made by the Honourable Justice Fowler on 23 April 2009 be set aside.
4.
There be no order for costs in relation to the appeal.
5.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
6.
The Court grants to the second respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the second respondent in respect of the costs incurred by her in relation to the appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The fact that the wife’s affidavit was not relied upon before his Honour would ordinarily preclude us from taking it into account. However, it was provided to us in the appeal papers without demur, and we also note that the wife’s assertion about violence was briefly mentioned in paragraph 29(a) of the points of claim. We have, in any event, referred to the content of the affidavit only as an illustration of the type of evidence that might emerge at trial, and result in conversations being interpreted in a way other than might at first have appeared the more probable. It is the sort of evidence which Kirby J may well have had in mind when he wrote:Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment. We therefore find merit in Ground 3, at least to the extent that we consider the statement relied upon by the wife is capable (depending upon the context, and when read with paragraph 24(c)), of constituting a representation of ownership. We consider the decision as to whether it did, in fact, amount to such a representation ought to have been left until trial. In light of our finding of merit in this ground, it is unnecessary to consider the submission in paragraph 10.1 of the wife’s Summary of Argument relating to an error by his Honour in assuming that it was necessary to show that the representations related to a present interest in the property, since it is sufficient to rely upon a representation as to future ownership. We note, in any event, that there was no ground of appeal which directly raised this issue. Ground 4 asserts that his Honour erred in concluding that the representation alleged in paragraph 24(c) was not a representation as to present ownership. It will be recalled this representation was in the following terms:During the 1980s the second respondent told the applicant that she did not have to worry because if anything happened to her husband she would still be the owner of 102 even though her name was not on the title deeds to the property. It will also be recalled that his Honour relevantly found (at paragraph 26(d) of his reasons): … The representation particularised as to what might occur in the event of something happening to her present husband in the future is not a representation as to the present legal or equitable ownership of the property. With respect to his Honour, this conclusion seems to ignore two important things. First, the representation was that the wife would “still be” the owner of the property. The wife was not on the title and therefore, if the Court were to accept that the statement was made in the form alleged, it would provide some support for the proposition that the sister was representing that the wife was already a beneficial owner of 102. The second matter apparently overlooked is the fact that the husband’s sister was a registered proprietor of 102. If ownership followed the title, and the husband were to die, the most the wife could hope to receive was the husband’s half interest. It would not make her “the owner” of the property, as was said to have been asserted, since the sister would continue to be a registered proprietor. In such circumstances the wife would have much to “worry” about, since the sister could bring about a sale of the property.