GRANGE & GRANGE
[2015] FamCAFC 10
•10 February 2015
FAMILY COURT OF AUSTRALIA
| GRANGE & GRANGE | [2015] FamCAFC 10 |
| FAMILY LAW – APPEAL – PROPERTY – Where leave is sought to appeal against interlocutory orders – Where the applicant is an undischarged bankrupt – Where multiple parties are sought to be joined – Where the applicant alleges additional parties required for disputed property ownership claims – Where the applicant alleges denial of procedural fairness – Where the applicant alleges bias on the part of the trial judge – Whether leave should be granted – Where the court found no merit for leave – Application for leave to appeal dismissed. |
| Family Law Act 1975 (Cth): ss 106B, 117 |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPLICANT: | Mr Grange |
| RESPONDENT: | Ms Grange |
| FILE NUMBER: | ROC | 580 | of | 2011 |
| APPEAL NUMBER: | NA | 16 | of | 2014 |
| DATE DELIVERED: | 10 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 30 September 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 February 2014 |
| LOWER COURT MNC: | [2014] FamCA 81 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr G Shoebridge |
| SOLICITOR FOR THE RESPONDENT: | Madden Lawyers |
Orders
Leave to appeal against the orders of Forrest J made on 20 February 2014 be refused.
The applicant husband to pay the respondent wife’s costs of and incidental to the application. The amount of such costs to be agreed or assessed and payment of the agreed or assessed costs to abide the completion of the property settlement proceedings between the parties.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Grange 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 16 of 2014
File Number: ROC 580 of 2011
| Mr Grange |
Applicant
and
| Ms Grange |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed on 19 March 2014, Mr Grange (“the husband”) seeks leave to appeal against interlocutory orders made by Forrest J on
20 February 2014 by which his Honour dismissed the husband’s interim applications brought in property settlement proceedings with Ms Grange (“the wife”). The property settlement proceedings have not yet been heard. The husband appears for himself.
The husband is an undischarged bankrupt. His trustee in bankruptcy although served with notice of the proceedings has not chosen to become a party to the proceedings nor have any of the parties sought to join him.
It is necessary to provide some background to the husband’s application to give context to the appeal.
On 13 February 2013, by an amended initiating application, the wife sought what appear to be orders pursuant to s 106B of the Family Law Act 1975 (Cth) (“the Act”). Although the application does not refer to s 106B of the Act, the orders seek that a transfer of a property north of Brisbane known as “C Street, D Town” from the husband to the parties’ daughter, Ms A, be set aside. The orders further seek that a transfer or gift of $1,125,000 from G Pty Ltd to the husband’s mother, Ms B, be set aside. On the transfers being set aside, the wife seeks that the “matrimonial assets” to which the orders refer be divided between the parties as to 70 per cent in her favour.
The parties and their extended families milled timber pursuant to mill allocation rights. The wife asserts that the mill allocation rights were owned by a company, G Pty Ltd, of which she and the husband were shareholders. It is the $1,125,000 proceeds of the sale of those mill allocation rights that the wife asserts was given or transferred to the husband’s mother.
The wife also sought interim orders. She sought injunctions to restrain the husband from dealing with the assets of G Pty Ltd and from dealing with the machinery plant and tools owned by Grange Family Trust.
The wife further sought that both Ms A and Ms B be joined as parties to the property proceedings and that consequential injunctions be made restraining each of them from dealing with the property said to have been transferred to them by the husband and to which the final orders relate.
On 18 March 2013 Kent J made orders joining Ms A and Ms B to the proceedings and made injunctions restraining Ms A from dealing with C Street, D Town and restraining Ms B from dealing with or disbursing money received by her from the sale of the mill allocation rights. He further enjoined the husband from dealing with the plant and equipment owned by F Contractors. There was no appeal from those orders.
Subsequently, on 3 October 2013, the wife filed an amended initiating application in which the final orders sought were refined. It is not necessary for the consideration of this application to set out the amended orders sought, other than to note that they essentially seek the same relief as those in the amended application filed in February 2013.
The husband filed an amended response to that application on
5 November 2013. In it he sought both final and interim orders.
As to final orders, the husband sought that the wife’s application be dismissed. In the alternative, the husband sought a declaration of trust in relation to property in the name of the wife’s father, Mr M, in favour of the wife, Ms A and Mr X and further sought consequential orders flowing from that declaration. The husband’s final orders run to some 35 paragraphs; it is again unnecessary to consider them for the purposes of the disposition of the application for leave to appeal.
We set out the interim orders sought by the husband that are relevant to this application:
1. The Court dismiss the Applicant, because the Applicant is technically bankrupt. A bankrupt cannot bring a Court action.
2. Respondents, first [Mr Grange], second [Ms A], third [Ms B] and fourth [Mr X], here after are referred to as “you the Respondent”.
3. The Applicant Wife [Ms Grange] withdraws the interim or procedural orders on the amended/initiating Application/s.
4. The Court dismiss the interim or procedural orders on the amended/initiating Application/s.
The response further seeks interim orders in the alternative to those set out above. Those orders seek the joinder of the wife’s father Mr M to the proceedings, that Mr M and the wife be restrained from dealing with a property known as L Property and consequential orders in relation to that property which the husband asserts is the property of the parties.
The husband also seeks that Ms H be joined to the proceedings and that an injunction be made restraining Ms H from dealing with a property known as “…7”. The husband seeks that the wife be required to disclose why she did not include “…7” in the pool of matrimonial assets. Similar orders are sought in relation to a property known as “T Property”. The husband seeks orders requiring the wife to disclose proceeds of sale of certain items.
The husband further seeks orders that the wife pay him spouse maintenance and an order for the provision of funds to enable him to conduct the litigation.
On 17 February 2014 the husband’s application for interim orders was heard by Forrest J and dismissed.
Primary judge’s reasons
His Honour summarised the husband’s application then before him as seeking that he dismiss the wife’s applications against the husband and second and third respondents because the wife was “…technically bankrupt…”, the husband was actually bankrupt and the proceedings were otherwise doomed to fail (at [2]).
His Honour further noted the husband sought that various people be joined as parties to the proceedings and that injunctions and other orders were sought by him.
His Honour noted that it was the husband’s contention that, while the wife was not bankrupt per se, she was jointly responsible for his debts and thus should not be permitted to bring proceedings for property settlement. His Honour rejected that argument at [3].
As to the husband’s bankruptcy, his Honour said that if the wife’s application to have the transfer of C Street, D Town set aside was successful, that would have the effect of the property becoming part of the husband’s bankrupt estate and thus vest in the trustee and, unless the trustee is a party to the proceedings, no order can be made in relation to the wife’s claim to part of that property (at [6] - [8]).
Turning to the wife’s claim in relation to the money received from the sale of the mill allocation rights, his Honour referred to the wife’s evidence that the company that held those mill allocation rights had been wound up.
His Honour adverted to difficulties that might attend the return of funds to a company that had been wound up, if the wife’s application was successful.
His Honour said at [12]:
12. Furthermore, whilst there are currently serious questions about the nature of any property adjustment orders the wife could expect to get solely against the husband, at least whilst he remains an undischarged bankrupt, the circumstances that present do not persuade me that her application is doomed to fail, particularly having regard to the possibility that the husband could again have interests in property upon his discharge from bankruptcy, if the wife’s s 106B applications succeed. ...
His Honour said that Kent J ordered that other parties be joined to the proceedings on his being satisfied that the wife’s applications against them were arguable. His Honour thus dismissed the husband’s application that the wife’s application be summarily dismissed (at [12]).
His Honour then considered the husband’s application to join Mr M and the application for injunctions restraining him from dealing with L Property. His Honour concluded that there was no evidence to support either the joining of the wife’s father to the proceedings or the injunction sought (at [15]).
His Honour reached the same conclusion about the husband’s application to join Ms H, another of the parties’ children, finding that this application had no merit (at [16]). His Honour found that the evidence produced by Ms H in the proceedings before him established that the husband’s assertion that he and the wife had an interest in the property in her name had been litigated and resolved in Ms H’s favour in the Supreme Court in 2011 (at [18]).
Equally, the husband’s application that the parties’ adult son, Mr J, be joined to the proceedings was dismissed, his Honour finding that the husband adduced no evidence to justify the order being made (at [20]-[21]).
His Honour dismissed the husband’s application for spouse maintenance and for the provision of funds by the wife to enable him to meet his costs, finding that the husband had not adduced any evidence of his own financial affairs to support his application (at [23]).
Thus his Honour dismissed the husband’s application for interim orders.
Leave to appeal
The orders appealed from are interlocutory. The husband requires leave of the court in order to bring the appeal. Leave will be granted if this court is satisfied that there has been an error of principle and/or a substantial injustice to one of the parties. For reasons that follow, it will be apparent that neither has been established and leave will not be given. No issue as to the applicant’s standing to prosecute the appeal as an undischarged bankrupt was raised either by the self-represented applicant or by counsel for the respondent. In light of our ultimate decision that the application for leave will, in any event, be refused, we will say nothing more about it.
Further evidence on the appeal
At the commencement of the hearing, the husband sought to rely on a document which was, in part, further submissions on the appeal. To the extent that the document contained submissions on the appeal, we allowed him to rely on it.
However, the husband also sought to adduce further evidence being documents that had not been before the primary judge. The husband said that although he had wished to rely on these documents at the time of the hearing before
his Honour, he was not “given the opportunity”, thus he sought that he be able to rely on them on the appeal. The reliance on this further evidence was opposed by the wife.
The documents were said to demonstrate that, as asserted by the husband, the wife’s father had transferred property to the parties’ son, Mr J, in payment for work done by Mr J on property owned by the wife’s father.
The documents comprise four purported contracts for sale of land, a certificate of title and a title search. All purported contracts for sale of land are expressed to be in relation to the same parcel of land.
The first contract appears to relate to a purchase by Mr J of a property in the Sunshine Coast area for a purchase price of $80,000 from vendors named Z. The contract is undated and unsigned.
The second contract appears to relate to a purchase by Mr J and Mr M of the same property and it is dated 20 August 2001 and has been signed and shows a purchase price of $40,000. However, while the name of Mr J has been typed onto the contract as purchaser, the name of the wife’s father, Mr M, has been hand written in the contract.
The third contract purports to be between Mr J and the same vendor, Z, at a purchase price of $40,000. It is neither signed nor dated and Mr M’s name does not appear on the contract.
The fourth contract again relates to the same land and the vendor is Mr M and the purchaser Mr J. The contract is hand written and is dated (although the date appears to have been altered). No purchase price is indicated.
Neither of the signed and dated contracts has been stamped.
The Certificate of Title refers to land in Registered Plan … in the name of Mr M, in September 1940.
The final document, a Title Search dated in October 2013, shows Mr J being the registered owner of a lot 1 in Registered Plan … and subject to a mortgage to the Commonwealth Bank of Australia dated 4 June 2013.
Neither the purported contracts nor the other documents can be relied on as proof of the contention sought to be advanced by the husband.
Moreover, we reject the husband’s assertion that he was not able to produce these to the primary judge. The first page of the undated and unsigned contract for sale of land to Mr J from Z was annexed to the husband’s affidavit sworn on 5 November 2013 which was before his Honour. Any impediment to his attaching the balance of the document and the other documents which he sought to tender on the appeal was not explained. Further, at the commencement of the hearing, the primary judge asked the husband to identify the documents on which he relied to support his application and the husband handed to the primary judge affidavits which had not been filed (Transcript dated 17 February 2014, page 3). Clearly, had he wished to provide additional documents to the court, that was his opportunity.
Even if we proposed to grant leave to appeal in this matter, the documents would not be admitted as evidence on the appeal. The reception of evidence on an appeal is constrained (CDJ v VAJ (1998) 197 CLR 172). The husband has not demonstrated any basis on which these documents would be admissible as evidence in an appeal.
Grounds of Appeal
The husband’s Notice of Appeal contends nine grounds of appeal against
his Honour’s orders. Ground 7 was not relied on. Ground 6 is not a proper ground of appeal and makes what appear to be scandalous allegations about a person apparently unconnected with the litigation and which we will not consider. Ground 9 contains a statement and is not a ground of appeal. As to the balance, it seems that the grounds raise three broad contentions – the judge’s refusal to make orders joining the parties as sought by the husband, lack of procedural fairness and bias.
We will set out the grounds as they appear in the Notice of Appeal.
His Honour’s rejection of the application to join other parties to the proceedings - Grounds 1, 3 and 4.
1. Error in Fact Justice Forrest did not properly consider all the evidence put before him to the joining of the other additional parties to the matter, this is a crucial part of the case without the other parties involved there cannot be a fair or just out come. The excluded parties are just as involved as the parties that are included, we know they are more involved but it is fair to say just as involved.
…3. Responded 2 was the reason for [the] Judgement in the Supreme Court re [Ms H] making [Ms H] and respondent 2 the same yet respondent 2 is included and [Ms H] is not in this matter and this is one decision that we are Appealing.
4. [Mr M] is every bit as involved in this matter as respondent 3, we know the involvement is more but we are being fair.
(Errors as in original.)
Before considering these grounds, it is necessary to briefly consider the evidence on this issue. The husband’s affidavit of 5 November 2013, ostensibly in support of his application is not much more than a narrative of complaints and assertions about the conduct of the wife and Ms H and assertions, it seems, of having interests in land held by others. By way of example, he asserts in relation to the proposed joinder of the wife’s father:
7c. … I done a lot of work for [Mr M] to receive no pay but always worked for the house and land that [Mr M] and we agreed [Mr M] will supply and also the promised portion of [Mr M’s] estate. We have received nothing to this day, ([Mr M] the house or some pay would have helped more years ago, have you let your daughter down and destroyed her life, now she is throwing her family and her life to the claws of Hyenas?). …
7d. If this court case is going into what our parents or parents in law have or may have that is ours, [Mr M] needs to be included.
8. [L Property] is our property and is part of the marital pool.
The wife responded to the husband’s evidence in an affidavit filed on
14 January 2014 and said that L Property is owned by her parents and she has no interest in it nor has the husband. Further, she contends that their daughter, Ms H, is the legal owner of the property registered in her name and neither she nor the husband have an interest in that property.
In response, the husband said at paragraph 4 of his affidavit sworn on
14 February 2014:
4. In relation to paragraphs 8 – 21 The arguments by the applicants lawyer as to why [Mr M], [Mr J] and [Ms H] should not be included as a party to this matter is exactly the same as the reason as to why [Ms B] and [Ms A] should not be included as a party to this matter yet the applicants still want to include [Ms B] and [Ms A].
In written submissions on the appeal, the husband set out matters of evidence which he says support the joinder of the parties. None of these statements was in evidence before the court. However, even if they had been before
his Honour, they amount to vague and unspecified assertions to which
his Honour could not properly have attached any weight.
The balance of the submissions on his Honour’s refusal to join the parties as sought by the husband does not persuade us that his Honour’s determination was wrong.
In oral submissions, the husband asserted that had his Honour given him more time in the hearing he would have been in a position to demonstrate the relevance of the parties whom he sought to be joined to the proceedings. He was, however, unable to indicate what additional evidence (other than that sought to be advanced on the appeal as further evidence) or what further submissions he might have made had he had more time.
His Honour was entirely correct to refuse to join the parties as sought by the husband and we agree with his Honour’s conclusion expressed at [17]:
The husband’s argument again was no more than “tit for tat”. His position is that as one daughter, who, I am satisfied, is in favour with him, is a respondent at the application of the wife, another daughter, who is in favour with the wife, should also be joined. Litigation in this Court is not conducted like that. As distressed and disturbed about the proceedings as the husband might be, and as concerned as he is in respect to the joinder as respondents of his mother and the daughter who is in favour with him, that concern alone is no basis for joining another daughter to the proceedings.
These grounds have not been made out.
Denial of procedural fairness and bias. Grounds 2, 5, and 8
Ground 2 provides:
2. Our Application was not given necessary time to be heard or understood, it was dealt with last at the end of the day after 4pm and Justice Forrest stated he had to leave before 5pm and it was going to be rushed though that afternoon and not put to another day when there would be more time and the chance of a different Judge.
Although his Honour did indicate that he needed to finish the hearing by 5pm, it is clear from reading the transcript that his Honour was at pains to understand not only what orders the husband was seeking, but also the basis for them. The husband did not in his submissions on appeal point to any information that might have been given to his Honour had there been more time during the hearing. In any event, his Honour had the documents on which the husband relied in his application and those on which the wife and Ms H relied in opposing the husband’s application.
Ground 5 provides:
5. Error in Fact by way of Justice Forrest having bios [sic] opinion with prior case knowledge as Justice Forrest said he was a good friend of [the judge who delivered judgment in the Supreme Court of Queensland] and knows him well and as such would not consider changing any Judgement of [the judge who delivered judgment in the Supreme Court of Queensland], irraguardless [sic] that the Supreme Court decision did not and could not take into account Family Law matters and that was stated by [the judge who delivered judgment in the Supreme Court of Queensland].
The husband commenced proceedings against Ms H in the Supreme Court. The husband claimed that property then registered in Ms H’s name was in fact held by her on trust for him. Further, he relied on a declaration of trust signed by Ms H to support his claim. In a decision delivered on 22 July 2011, a judge in the Supreme Court of Queensland dismissed the husband’s application and set aside the documents on which he purported to rely on the basis that they were signed by Ms H under duress. He declared the husband to have no interest in the property registered in her name.
It is this property that the husband asserted ought be taken into account in the family law proceedings and, to that end, sought that Ms H be joined as a party to the proceedings.
After hearing from counsel for Ms H objecting to any joinder of her to the proceedings, his Honour said to the husband:
HIS HONOUR: ... How can I possibly join your daughter when your case is – the reason I would join her is because she holds property that belongs to the two of you. …[A] learned Supreme Court judge, not that ‑ ‑ ‑
MR [GRANGE]: It’s – [Ms A’s] been ‑ ‑ ‑
HIS HONOUR: I shouldn’t – I mean, they’re all learned, but I know [the judge in the Supreme Court of Queensland] and I know his reputation. He determined it. So I can’t go behind his decision.
MR [GRANGE]: But [Ms A] has been joined, your Honour.
(Transcript dated 17 February 2014 page 34 line 19)
His Honour correctly said that he could not “go behind” the finding of the Supreme Court. He said that the effect of the determination of the judgment of the Supreme Court of Queensland was that the husband had no interest in Ms H’s property. His Honour did not, as the husband suggests, say or imply that he would not reconsider or change the decision of the judge of Supreme Court of Queensland because they were such good friends. The husband has misunderstood his Honour’s approach to a decision of a judge of another court, a decision against which there was no appeal. His Honour’s approach was entirely correct.
Further, the words attributed to his Honour by the husband, namely that he was a “good friend of [the judge who delivered judgment in the Supreme Court of Queensland]” were not to be found in the transcript. The husband refused to concede that he may have been mistaken as to what was said, preferring the view that things were said in the hearing that had been omitted from the transcript.
Ground 8 provides:
8. Justice Forrest stated words to the effect, he would not give people who were summonsed to this matter preference because they had no money, he was addressing us. We do not expect preference nor do we ask for them. We believe we have been victimised because we have no money. Justice Forrest did not state he would not victimise summoned people because they have no money.
Nothing to this effect was said.
The husband further asserted at paragraph 16 of his summary of argument, filed 15 August 2014: “[i]t did appear to us and on reading, from the outset that the Honourable Justice Forrest may have previous knowledge and may already be prejudice before the hearing.”
When pressed to indicate any part of the transcript or his Honour’s reasons which would illustrate the husband’s complaints, the husband was unable to point to any words said by his Honour but said that it was his Honour’s “demeanour” which caused him concern. The husband further asserted that
his Honour spoke over him and asked him “multiple questions” leading the husband to feel “badgered” and, as a result, he was unable to present his case to the court as he wished. He further asserted that his Honour’s facial expression was “amused” which the husband said was inappropriate given the seriousness of the subject matter.
Obviously, reading the transcript does not enable us to consider his Honour’s “demeanour” or facial expression, however, the transcript does not support the husband’s contention that his Honour talked over him.
While we understand that for a self-represented litigant, the legal process might be perplexing, nothing in the transcript of the proceedings before his Honour lends support to the husband’s complaints against his Honour. Further, that the husband felt concerned by what he perceived to be his Honour’s demeanour is not reflective of error. The conclusion to which his Honour came in relation to the husband’s application was not only open to him on the evidence before him - it was driven by the evidence.
The husband’s summary of argument is somewhat difficult to understand and does not address the grounds of appeal. Much of it involves a line by line analysis of the transcript with comment, seemingly intending to demonstrate that his Honour did not treat the husband fairly and failed to afford him sufficient time to present his argument.
The husband submits at paragraph 8 of his summary of argument:
240/30 I am asked 3 questions in repartition but did not hear all of it. I answer yes but the correct answers on reading are; yes, no and the third answer is opposite depending on weather the question is directed to the first or second questions which is ambiguous. (Errors as in original)
Before his Honour, the following exchange occurred:
HIS HONOUR: You’re the applicant today in the application that’s before me today, as I understand it. You don’t understand that? Is that right or wrong?
MR [GRANGE]: Yes, your Honour.
HIS HONOUR: You are the applicant?
MR [GRANGE]: Yes.
HIS HONOUR: Representing yourself?
MR [GRANGE]: Yes, your Honour.
HIS HONOUR: Yes. Who’s the lady beside you?
MS [A]: [Ms A]. Respondent, but not in today’s case, but in the ---
HIS HONOUR: But you’re one of the parties already in the proceedings.
MS [A]: Correct your Honour.
(Transcript dated 17 February 2014 page 2 line 29 line 46 to page 3
line 1)
The husband asserts that his poor hearing caused him to mishear his Honour’s questions and perhaps answer wrongly. The husband did not indicate that he in fact gave an incorrect answer to his Honour’s questions nor did he indicate to his Honour that he was having any difficulty hearing what was being said.
Given the context of the questions, we can see no possible unfairness to the husband.
The husband further submits at paragraph 8:
241/5 “speed” is being used and multiple questions
In the transcript of 17 February 2014 the following appears immediately after his Honour has taken note of the appearances:
HIS HONOUR: Yes. All right. Mr [Grange]. Just to try and speed things up a bit, is your application that you’re relying on today and asking me to read and consider an amended response to an initiating application filed – it looks to me like it has been – you’ve handwritten on there that it was filed on 5 November 2013, and it looks like the stamp bears that out as well. That’s the one?
MR [GRANGE]: Yes, your Honour
(Transcript dated 17 February 2014, page 3 line 8)The import of the submission is that his Honour rushed the hearing of the case to the husband’s disadvantage. We reject that submission, as we have said.
His Honour asked questions of the husband to try and understand the applications then before him and the basis for them. Nothing we have read supports the husband’s contention.
The husband contends that he was handed copies of the wife’s affidavit in court, thus he says he did not have sufficient time to take in what was in them. The husband did not make any complaint to the primary judge nor seek any time to consider the affidavits. We observe that, in any event, the matter proceeded on his Honour’s consideration of the affidavits without oral evidence or cross-examination; it is difficult to understand then what prejudice the husband encountered.
The husband took particular issue with the primary judge’s use of the words “tit for tat” in relation to the husband’s applications.
We have already set out the context in which his Honour used that expression and it was in the course of discussing the husband’s application that Ms H, Mr J and Mr M be joined to the proceedings.
His Honour enquired of the husband why it was that he sought the joinder of the wife’s father. The husband contended that whenever he and the wife did work for the husband’s parents, they paid him but:
“…whenever we done anything for [Mr M] he paid us with a house and land that we don’t actually have in our name”.
(Transcript dated 17 February 2014, page 11 line 45)
In answer to his Honour’s questions, the husband said that the property was in the wife’s father’s name and he and the wife had never lived there.
Equally, in relation to the parties’ son Mr J, the husband asserted that the wife’s father gave the parties’ son a block of land and further asserted that the wife had an interest in that land because the wife’s father made a gift of half that land to the wife.
His Honour then said:
HIS HONOUR: …well, I’m trying to work out why you say [Mr J] should be a party in these proceedings. I’m just wondering, you’re not just saying these people should all be parties simply like a tit for tat argument, are you, because your mum has been joined and [Ms A] has been joined.
MR [GRANGE]: No
… …
MR [GRANGE]: Your Honour, I don’t want any of these people joined but if they’re joining those we have to - - -
… …
HIS HONOUR: Well, you can’t say I don’t want any of these people joined when you’re asking – you’re here on an application asking me to join them.
MR [GRANGE]: Yes, only if the others are joined.
HIS HONOUR: Well, that’s what that means, it’s a tit for tat argument. I just asked you whether it was that - - -
MR [GRANGE]: No, it’s not your Honour. I don’t - - -
HIS HONOUR: - - - and you said it wasn’t.
MR [GRANGE]: It’s not, your Honour. I don’t even know this is right. I don’t want to - I would prefer to be left and then [sic] be left out. I’d rather just go on with my life and leave it at that.
(Transcript dated 17 February 2014, page 14 line 3 to page 15 line 10)
In our view, his Honour’s expression fairly summed up the basis of the husband’s application.
Finally, the husband asserts that his Honour failed to give his evidence the same weight that he afforded evidence of a similar type given by the wife.
It was of course the husband who bore the obligation of proving the facts necessary to his application. As to joining the other parties, the husband said:
4.(a) In the alternative the arguments by the applicants lawyer as to why [Ms B] and [Ms A] should be included as a party to this matter is exactly the same reason as to why [Mr M], [Mr J] and [Ms H] need to be included as a party to this matter yet the applicant still want to exclude [Mr M], [Mr J] and [Ms H].
(b) I request that they all be left out but the applicant lawyer needs to decide as to whether they are going to bring all these people in as parties or are they not.
(Husband’s affidavit sworn 14 February 2014)
The husband produced no evidence at all to support his assertion that the wife’s father held property on trust for him and the wife, or to support his assertion that their son held part of his land on trust for the wife. It is not that his Honour preferred the evidence of the wife to that of the husband; the husband produced no evidence necessary to establish the orders he sought.
It is thus clear that the husband has not demonstrated that leave to appeal should be granted and the application will be dismissed.
Costs
At the conclusion of the appeal hearing we heard submissions from the parties on the question of the costs of the application to save the parties the time, trouble and expense of making the submissions after judgment has been delivered. The wife sought her costs of and incidental to the application if the appeal was unsuccessful.
The question of costs is to be considered in light of s 117 of the Act. In this case, relevantly, the husband’s application has been wholly unsuccessful. Indeed we note that the application was entirely without merit.
The husband is bankrupt. It is well accepted that financial impecuniosity, even bankruptcy, is not of itself a reason not to make an order for costs if one is otherwise thought appropriate. In this matter we are of the view that a costs order should be made against the husband. We will, as submitted by the wife, defer the payment of the costs until the property proceedings between the parties are completed.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May & Ainslie-Wallace & Murphy JJ) delivered on 10 February 2015.
Associate:
Date: 10 February 2015