Galloway and Midden (No. 2)
[2014] FamCAFC 60
FAMILY COURT OF AUSTRALIA
| GALLOWAY & MIDDEN (NO. 2) | [2014] FamCAFC 60 |
| FAMILY LAW – APPEAL – PROPERTY – Appeal against property settlement orders under Part VIIIAB – Where the trial judge, despite failing to identify the appellant’s existing legal or equitable interest in the foreign properties, included the properties in the "pool" – Where the properties were included in the property the appellant was to retain as a result of the trial judge's property settlement orders – Where the trial judge failed to consider how, if at all, the appellant could secure the transfer of the properties to herself – Whether Australian court could order transfer – Whether agreement on trust would be enforced in the foreign country – Where there was no identification of remedies the appellant could pursue or account taken of costs of pursuit to rescue foreign property – Appeal allowed – Matter remitted for rehearing. |
| Family Law Act 1975 (Cth) |
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit Court Rules 2001(Cth)
| ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 |
| APPELLANT: | Ms Galloway |
| RESPONDENT: | Mr Midden |
| FILE NUMBER: | DNC | 199 | of | 2012 |
| FIRST APPEAL NUMBER: | NA | 71 | of | 2013 |
| SECOND APPEAL NUMBER: | NA | 79 | of | 2013 |
| DATE DELIVERED: | 11 April 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Murphy & Kent JJ |
| HEARING DATE: | 8 April 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 October 2013 23 December 2013 |
| LOWER COURT MNC: | [2013] FCCA 1711 [2013] FCCA 2264 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Gordon |
| SOLICITOR FOR THE APPELLANT: | Powell & Co Legal, Darwin |
| COUNSEL FOR THE RESPONDENT: | Ms Truman |
| SOLICITOR FOR THE RESPONDENT: | DS Family Law, Darwin |
Orders
Appeal NA71/2013
The appeal be allowed in part.
Orders (1) to (12) inclusive and Order (15) of the orders made by Judge Harland on 25 October 2013 as amended on 23 December 2013 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for re-hearing before a Federal Circuit Court judge other than Judge Harland.
There be no order under s 117 of the Family Law Act 1975 (Cth) as to costs.
Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Pursuant to s 6 of the Costs Act the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
Pursuant to s 8 of the Costs Act each of the appellant and the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to each party in respect of the costs incurred by each party in relation to the new trial ordered by the Court.
Appeal NA79/2013
The appeal be allowed in part.
Orders (1)(a) and (b), and (6) of the orders made by Judge Harland on 23 December 2013 be set aside.
There be no order under s 117 of the Family Law Act 1975 (Cth) as to costs.
Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Pursuant to s 6 of the Costs Act the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Galloway & Midden (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 71 of 2013; NA 79 of 2013
File Number: DNC 199 of 2012
| Ms Galloway |
Appellant
And
| Mr Midden |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal (NA71/2013) filed on 22 November 2013 Ms Galloway appeals against the orders of Judge Harland in the Federal Circuit Court made on 25 October 2013 (as amended on 23 December 2013) in property settlement proceedings pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) between Ms Galloway and Mr Midden.
By Notice of Appeal (NA79/2013) filed on 24 December 2012 Ms Galloway also appeals against some of the further orders made by Judge Harland on 23 December 2013. Both appeals were heard together and counsel for Ms Galloway acknowledged that the outcome of this second appeal was dependant on the outcome of the substantive appeal against the property settlement orders.
gravamen of appeal NA71/2013
Whilst the Notice of Appeal contained ten primary grounds of appeal, Ground 9 was not pursued and counsel for Ms Galloway acknowledged, in the course of argument, that the gravamen of this appeal was the challenge identified in Ground 8.
Ground 8 is the challenge to the trial judge’s finding that certain properties known and referred to as “the Country F properties” formed part of the property of the parties.
The significance of that finding is that the agreed value of the Country F properties at $353,488 was included in the trial judge’s identification and assessment of the net value of the property of the parties or either of them, found to total $1,929,434 with that inclusion. Further, the Country F properties, at a value of $353,488, were determined to form part of Ms Galloway’s entitlement to 30 per cent of the total net value of that property, as determined by the trial judge.
Having acknowledged this challenge was the gravamen of the appeal, and that if this challenge succeeded the proceedings would have to be remitted for rehearing, counsel for Ms Galloway confirmed that in respect of the other grounds of appeal we could appropriately adopt the approach of otherwise relying upon counsel’s written submissions on behalf of Ms Galloway, to the extent we needed to refer to them, in dealing briefly with any other grounds of appeal.
Relevant evidence as to the Country F properties
Ms Galloway’s evidence below, relevant to the issue concerning the Country F properties was contained in paragraphs 104 to 106 (inclusive) of her affidavit filed on 12 June 2012. As that evidence is in short compass, it may conveniently be set out in full:
The [Country F] Properties
104. In early 2000 [Mr Midden] and my [three children] decided that [Country F] would be a great spot to have a permanent base in Europe. With that in mind, [Mr Midden] and I investigated the possibility of buying a property in [Country F]. We travelled around together looking at various properties to buy. At the time all that was available in the area that we had chosen to live, [Location A], was a four bedroom four bathroom apartment for sale for the equivalent of AUD228,000. As the [Country F] law stipulates that a foreigner may only own one property and the apartment was on two titles and we ([Mr Midden] and I) had an interest in acquiring a chateau we made the decision to put the apartment in two of my sons’ name [sic], as [Mr Midden] and I wished to buy a chateau.
105. We purchased the property in early 2000 and my second son [Mr Y] went on the title along with a family friend [Mr P], who was prepared to act as trustee for my third son who had not yet reached 18.
a. The property cost the equivalent of $228,000. It came fully furnished. We fitted it out with a new refrigerator and paid for the electricity main switchboard to be upgraded to meet new standards.
b. The upkeep of the property costs just around $4,000 per annum in body corporate fees, excluding power and telephone.
c. My second son has not contributed to the body corporate fees and while we owned the winery in 2004 to 2007 (see below) we simply could not afford to pay them. By 2007 when I became financial through the return of funds owed to be [sic] since 2000, so I flew to [Country F] the day before the apartments were to be auctioned to pay the outstanding fees. It cost me of [sic] the order of $76,000 to rescue the apartments, plus airfares, hire car, and hotel accommodation, until the apartments were released. I hired a local lawyer who was well regarded at the Courts to assist in freeing the apartments. A true copy of the receipts are annexed hereto and marked with the letters “AI”.
d. While I was in [Country F] I listed the property with three real state [sic] agents in the hope the properties would sell or be rented out. I renovated the interior of the apartment, filled all the cracks with polyfilla, painted all of the walls and put a new ceiling in the lounge dining room. I did much of this work myself.
e. Since 2005 there has been no interest by anyone in purchasing or renting the apartment. I understand that the snow has become so unreliable most people no longer use [Country F] as a destination for a ski holiday.
f. Sometime in 2008 my second son [Mr Y] also went to [Country F] with his wife and [Mr P], the latter signed over his interest in the apartment to [my son]. How this has happened I am unsure. I still have the keys to the units.
g. I am estranged from my son [Mr Y] and [Mr P] and haven’t spoken to either for several years.
106.I have effectively lost control of the [Country F] properties. Mr Barry has written to Mr Norrington on 5 and 30 April detailing the situation with the [Country F] properties and suggesting a joint approach to resolving that issue, without response.
…
Self-evidently, Ms Galloway’s evidence was that beneficial ownership of the Country F properties did not reside with their respective legal ownerships. Ms Galloway’s evidence was to the effect that the parties always intended the Country F properties to be their property. The essential point made by Ms Galloway in subparagraph 105(f) of her affidavit is that her son had acted unilaterally in a manner inconsistent with the parties, or Ms Galloway, retaining control of the properties; and in subparagraph 105(g) and paragraph 106 Ms Galloway deposed to her loss of “control” of the Country F properties.
Mr Midden did not contend below that Ms Galloway’s claimed loss of control of the Country F properties was false or illusory. This is reflected in both Ms Galloway’s cross-examination of Mr Midden on this topic and counsel for Mr Midden’s cross-examination of Ms Galloway. As to the former there was this exchange (Transcript 26.6.13, page 124, lines 17 to 18):
[MS GALLOWAY]: How do you suspect that I can get access to these properties?
[MR MIDDEN]: Well, I have no idea. Not my issue.
As to the latter, counsel for Mr Midden, (who represented Mr Midden at trial) confirmed that, as Mr Midden did not have a contrary contention below, none was put by her to Ms Galloway in the course of cross-examination.
Indeed the final written and oral submissions on behalf of Mr Midden below contended that the Country F properties not be included in the property of the parties or either of them, but be treated as a financial resource, at their value, available to Ms Galloway.
Both parties seemingly acknowledged at trial the potential need for a solution imposed by formal legal proceedings against the legal owners of the Country F properties to secure those properties in the legal ownership or control of the parties or Ms Galloway. That is evident from the exchange of correspondence in respect of the potential joinder of the legal owners and Ms Galloway’s evidence in cross-examination (Transcript 28.6.13, page 21, line 16 to page 23, line 45).
Counsel for Mr Midden contended that exhibit A13, comprising an exchange of emails on 19 September 2012 between Ms Galloway and a real estate agent in Europe, was evidence sufficient to support a finding that Ms Galloway “…has the ability to secure these properties and has an interest.” However, the contents of that exhibit, at least so far as the issue of “control” is concerned, are to the contrary effect. The agent’s email to Ms Galloway relevantly says:
… your name does not appear on the property deed, thus legally you cannot instruct us to do anything. Sorry but that is the way it is. The persons who own the property (outright and not shared with any third parties) are [Mr P] and Mr [Y]. It is they alone – and jointly – who are allowed to instruct us in the sale of their property, thus I must actually remove the property from our register of properties for sale until they do so instruct us.
Under [Country F] law, unless a purchaser has declared at the time of purchase that he is married in community of property with a named third party, then the asset he buys is his alone. In this case it is shared, so each of the gentlemen above owns an indivisible 50% of the property – and what is more, the one may not sell the whole without the other’s permission – and selling just his half, without a formal agreement to return the amalgamated property to its original state and each individual to own one of the resulting properties each, is highly problematic as well. …
Please accept my commiserations for your current difficulties, but you may genuinely assure everyone that you have absolutely no property asset (that I am aware of) in [Country F].
(Emphasis in original)
Counsel for Mr Midden also referred to Ms Galloway’s written submissions at trial that the Country F properties should be regarded as “jointly owned”. However, read in context those written submissions, having first recorded that the Country F properties “… are registered at the Titles Office in [Country F] in the names of [Mr Y] and [Mr P]” then continue, “…these properties are out of the reach of both parties as a financial resource.” An alternative submission was put, namely, Ms Galloway’s written submission below contains a final submission that, “if there is a decision made about these properties, they should be regarded as jointly owned.”
In context, that alternate submission supports (inferentially) Ms Galloway’s contention to the effect that both parties, and not just Ms Galloway, ought be burdened with obtaining, or being credited with, any benefit of the Country F properties.
Reference was also made by counsel for Mr Midden to the 22 July 2013 response of Mr Y, one of the legal owners of the Country F properties, to the emailed letter of 11 July 2013 to Mr Y from Mr Midden’s solicitors. Whilst the response confirms that one of the Country F properties was placed in Mr Y’s name in circumstances where Ms Galloway wished to acquire other property in Country F; and that Ms Galloway had funded the acquisition and outgoings of that property; there was no acknowledgement in the reply that Mr Y was willing to transfer the property to Ms Galloway upon her asking for this to be done. The absence of such an acknowledgment is relevant given the other content of the response which, in summary, contains complaints about Ms Galloway having failed to pay a substantial amount of money to Mr Y which he there contends he was entitled to.
Counsel for Mr Midden contended that each legal owner of the Country F properties received notice in similar terms. However, that does not appear to be the case. The letter to Mr Y does not contain any specific reference to the Country F properties. However, the letter to the other legal owner, Mr P contains this, after referring to the fact that Mr P is registered on the title:
In relation to this property, neither party is seeking an Order that the Court ought change the titles on the properties or that the properties be distributed between the parties. It is the Respondent’s case (a reference to [Ms Galloway]) that neither the Applicant nor the Respondent has any title or interest in the [Country F] properties. It is the Applicant’s case that the Respondent has an interest in the [Country F] properties which could be pursued through the [Country F] court system. This may be a matter you wish to make submissions upon before the court.
It is against the background of this evidence that the trial judge recorded her conclusions concerning the [Country F] properties in paragraphs 135 to 145 of her Honour’s reasons for judgment as follows:
[Country F] properties
135. In 2000 the respondent purchased two adjoining properties in [Country F]. The respondent says she purchased the properties with her earnings from trading. She purchased the properties in her sons’ [sic] name on trust.
136. The applicant says that it was the respondent’s decision to buy the [Country F] properties in her son [Mr Y’s] name and in a family friend [Mr P’s] name on trust for her [other] son …, who was too young to own property in his own name at the time.
137. The applicant says that the respondent paid for the expenses on the [Country F] properties except for the odd occasion when he paid the rates when the respondent did not have the funds.
138.After separation the applicant discovered that the [Country F] properties were on the market for sale at a price of 340,000 euros.
139.The respondent would not agree to adopt the list price as a value of the [Country F] properties for the purpose of the hearing. She obtained an appraisal and attempted to rely on that. An appraisal is a very different thing to a valuation. Typically an appraisal is provided by a real estate agent free of charge. Real estate agents provide appraisals in the hope of securing the business of the sale of the property. A valuation is carried out by a person qualified to carry out a valuation of the property taking into account various factors including sale comparisons. Parties may of course agree to an appraisal figure if they wish to. They take a risk in doing so as the figure may not be accurate. If the parties cannot agree on a figure then they need to obtain a valuation so that there is evidence of value before the court.
140.It is clear that the respondent interfered with the valuation process for the [Country F] properties. Annexures “D” and “E” of the applicant’s trial affidavit consists’ of the first and second valuation of the [Country F] properties. Page 18 and 25 of the annexures both set out the figures for the valuations. It is clear from both valuations that the area referred to is [Location A]. The figures are different. There is no evidence on the face of the documents that suggest the area of [Location L] was used in error.
141. This is also another instance where the respondent has refused to provide documents in response to a request up until the last minute during the hearing. After it became clear to the applicant that the respondent had been unilaterally communicating with the single expert he asked for all copies of correspondence. She did not provide them until during the course of the hearing. The respondent could have and should have produced the emails much earlier. The respondent’s lawyer ceased acting for her around this time. The applicant’s lawyer wrote to her again about this request on 13 November 2012. The respondent could have been under no illusions that her previous lawyer had supplied the information.
142. Annexure “G” to the applicant’s trial affidavit where the respondent’s then lawyer wrote to the applicant’s lawyer proposing that an application in a case be filed seeking to join [Mr Y] and [Mr P] and seeking an order that they hold the [Country F] properties on trust for the parties. They sought the applicant’s agreement to this course. Annexure “L” to the applicant’s trial affidavit is a response to the letter found at Annexure “G”. The applicant’s lawyer points out the necessity for the transparency with respect to all communications with the single expert. The applicant’s lawyer also states that his client has no objection to the [Country F] properties being sold but he has no control of those properties and it is a matter between her and her children.
143. I am satisfied that because of the respondent’s interference with the valuations the first valuation should be used. Exhibit “A13” is a letter from the respondent to her then lawyer Ms Khoo stating that she thought she could get approval from [Mr P] to sell the unit but believed she would have to get a court order to make [Mr Y] sell the unit in his name. Email is that at 12 September 2012. The respondent was clearly well aware that she had options with respect to gaining control of these units but has chosen to do nothing about it
144.I do not accept the respondent’s argument that these properties should be excluded from the pool. I am comfortably satisfied that she has remedies she can pursue with respect to these properties if she is not able to secure agreement from her son and from [Mr P] to transfer the properties to her.
145.I will include the [Country F] properties in the asset pool. The applicant only made very minor contributions to the [Country F] properties.
(Emphasis added)
Apart from the real estate agency’s email earlier referred to, we were informed during argument that there was no evidence adduced below as to any relevant law of Country F.
Ms Galloway’s trial affidavit earlier referred to does not make it clear whether the relevant agreements reached concerning the legal ownership of the Country F properties were made in Country F, or in Australia. On Ms Galloway’s version, it would appear to be open that the arrangements were made whilst (at least) the parties to these proceedings were in Country F. No specific finding was made by the trial judge, and there would appear to be no evidentiary basis for assuming, that any relevant trust arrangements were created under Australian law.
Even if trusts were created under Australian law and accepting that an Australian court applies Australian law in exercising in personam jurisdiction to adjust the property rights of parties in property located overseas (regardless of any rights acquired or vested in parties under foreign law) an Australian court will avoid making an order in relation to assets in a foreign country that might operate in direct conflict with the laws of that country. (See, for example, Michael Wilson and Partners Ltd v Robert Colin Nichols [2008] NSWSC 1230 at [6]-[7] per Brereton J).
Relevant to that, the trial judge’s conclusions expressed at [144] appear to overlook some important features of the evidence at trial. That evidence includes that the very reason the parties structured the ownership of the Country F properties in the way they did in the first place was to circumvent the prohibition under Country F law on a foreigner owning more than one property. The subject property comprises an apartment constructed upon two titles. Even assuming Ms Galloway could secure the agreement of the legal owners to transfer the properties to her, as contemplated by the trial judge (or, perhaps, obtain an order from an Australian court to enforce transfer) the trial judge does not canvass, nor did the evidence below, how it might be that Ms Galloway would secure registration of the transfers in Country F. Under Australian law a trust created or executed for a purpose rendered illegal by statute will not, as a matter of public policy, be enforced (see Nelson v Nelson (1995) 184 CLR 538). Whilst the relevant Country F law is unknown, it would not appear to be a ready assumption that proceedings in Country F, in which Ms Galloway would presumably have to reveal to a Country F court the conduct that was pursued to circumvent Country F law, would carry no adverse consequences.
These issues aside, the trial judge made no finding as to the nature of Ms Galloway’s interest in the Country F properties. The trial judge thus did not, as required by Stanford v Stanford (2012) 247 CLR 108 identify the existing legal or equitable interest of Ms Galloway in the Country F properties.
In referring at [144] to Ms Galloway having “remedies she can pursue with respect to these properties” the trial judge did not identify the nature of any of the “remedies” in contemplation, nor did the trial judge identify whether any of those remedies were available to be pursued in Australia or Country F, or both.
There was no attempt by the trial judge to address the cost or potential cost to Ms Galloway of the pursuit of any such remedy, nor was any cost taken into account in the trial judge treating the full value of the Country F properties as being available to Ms Galloway as part of her entitlement.
As to costs or potential costs we have earlier referred to Ms Galloway’s affidavit evidence which includes reference to her having spent $76,000 to “rescue” the apartment in 2007.
We are satisfied that the challenge in Ground 8 is established with the consequence that the appeal is to be allowed and an order made for remittal of the proceedings for a re-hearing in the Federal Circuit Court.
Other grounds
As there is to be a re-hearing it is unnecessary and potentially unhelpful in the context of a new trial judge exercising an unfettered discretion for us to discuss most of the other grounds in detail. This applies particularly to Grounds 1, 2 and 7.
To the extent that Grounds 3 and 7 articulate assertions of errors of fact or failing to provide adequate reasons for the findings referred to in these grounds, nothing in Ms Galloway’s written submissions persuades us of error. That view is reinforced by Mr Midden’s written submissions. There was ample evidence to support the credit findings adverse to Ms Galloway and, likewise, ample evidence to support the findings concerning her failure to make full and proper disclosure.
Nothing contained in Ms Galloway’s written submissions in respect to Grounds 4, 5 and 6 (which each relate to the EO Trust ultimately declared to be invalid by the trial judge) persuades us of the asserted, or any, error. Nor does our own reading of the record suggest error. Again, there is merit in Mr Midden’s written submissions in reply.
Moreover, as we observed during argument, we are somewhat perplexed that so much time and energy was apparently directed to this issue in the proceedings below.
It was established that the parties or either of them from time to time exercised control of any alleged trust. The parties treated any such trust as a discretionary trust. We fail to see the materiality of arguments about the nature, terms or validity of the alleged trust beyond potential revenue law consequences. What was done or not done in respect of the alleged trust concerning the use of capital or income or distributions fell for consideration as part of the overall s 90SM discretionary exercise and will so do on the re-hearing. We make these observations with the aim of assisting the parties in adopting a more considered approach to this issue (perhaps, more accurately, non-issue) in the re-hearing of these proceedings.
Ground 10 challenges order (13)(e) (included by the amendments made on 23 December 2013) concerning the grant of the anti-suit injunction with respect to the proceedings instituted by Ms Galloway in the Supreme Court of the Northern Territory. It is not an order made pursuant to the s 90SM power. Nor is that order (or indeed the other injunctive orders within order (13)) the product of the exercise of discretion pursuant to s 90SM of the Act. Those orders are made in the exercise of the powers of the Federal Circuit Court to grant injunctions. Those powers include the powers conferred by s 90SS, s 114(2A) and s 114(3) of the Act.
It thus does not follow that our finding of appealable error with respect to the trial judge’s exercise of discretion under s 90SM of the Act and the consequent setting aside of the property adjustment orders and order for remitter for re-hearing dictates any consequent or automatic setting aside of the injunctive orders the trial judge made. These fall for discrete consideration.
The contention in Ms Galloway’s written submissions that the trial judge “relied on the accrued jurisdiction to usurp the Supreme Court…” reflects a fundamental misconception of the nature and purpose of an anti-suit injunction.
The jurisdiction of the Federal Circuit Court has been invoked to determine the property interests of the parties pursuant to the powers in Part VIIIAB of the Act. In this appeal Ms Galloway seeks, and is to be granted, an order for re-hearing of the proceedings for that purpose. The federal jurisdiction of that court having thus been engaged to resolve the whole controversy between the parties, the anti-suit injunction is directed to the entire controversy between the parties being resolved by one court exercising federal jurisdiction (see ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559; Fencott v Muller (1983) 152 CLR 570; Re Wakim; Ex Parte McNally (1999) 198 CLR 511). It is readily apparent that Ms Galloway has agitated in the property proceedings below precisely the same factual matters concerning Mr Midden’s alleged conduct relating to the subject trust as would be the subject of Ms Galloway’s Supreme Court claim.
It is instructive to note that when Master Luppino of the Supreme Court of the Northern Territory granted a stay of those proceedings, pending the outcome of these property settlement proceedings, the Master recorded that the outcome of these proceedings might render the Supreme Court proceedings “superfluous”.
Order (13)(e) prevents the abuse of process that would follow from the parties having to engage in parallel proceedings in two different courts dealing with the same subject matter.
No error is demonstrated with respect to the trial judge’s exercise of discretion to grant the subject injunction in these circumstances. As there is no merit in this ground we do not propose to set aside order (13).
Ground 11 is not a ground of appeal but is an application for costs which will be dealt with below.
Appeal NA79/2013
The relevant context to this appeal is that on 23 December 2013 the trial judge amended the orders made on 25 October 2013 pursuant to rule 16.05(e) of the Federal Circuit Court Rules 2001; granted a stay of the orders under appeal except for orders (9), (13) and (14); made an order that Ms Galloway pay Mr Midden’s costs fixed in the amount of $38,428, but stayed that order pending the determination of appeal NA71/2013.
As to that costs order, it follows as a consequence of our determination that the property orders are to be set aside, that this costs order is also to be set aside.
The trial judge by the 23 December 2013 orders stayed the operation of order (9) requiring Ms Galloway to remove caveats, but only insofar as it applied to the two real properties in the Northern Territory.
Ground 2(c) of this appeal repeats the same challenge as Ground 10 in the other appeal with respect to the grant of the anti-suit injunction. It extends that challenge to the injunction in order (13)(f) by which Ms Galloway was restrained by injunction from instituting further proceedings against Mr Midden “in respect of the property of the parties, trusts of the parties or either of them in any Court, apart from the Family Court of Australia or the Federal Circuit Court of Australia.”
For the same reasons we have already expressed in dealing with Ground 10 in the other appeal we find no merit in this ground.
Ground 1 of this appeal is a replica of Ground 1 of the other appeal and we therefore need only to reiterate what we have said about that challenge above.
It follows from our conclusion that the property orders and consequent cost order are to be set aside, and our order that the proceedings be remitted for re-hearing, that it is unnecessary to specifically traverse those few remaining grounds of this appeal.
Costs
Ms Galloway contended for an order for costs in her favour if the appeal was allowed. Mr Midden contended against such an order.
Ms Galloway’s alternate submission and Mr Midden’s primary position was that each party ought be granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and for the re-hearing.
Section 117(1) of the Act expresses the usual rule that each party to the proceedings bear his or her own costs. We are not of the opinion that there are circumstances that justify us making an order as to costs within the meaning of s 117(2).
We are satisfied that the bases upon which we have allowed the appeals entitles the parties to costs certificates for the appeal and for the re-hearing.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Kent JJ) delivered on 11 April 2014.
Associate:
Date: 11 April 2014
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