Grefeld and Grefeld and Anor
[2010] FamCAFC 162
•26 August 2010
FAMILY COURT OF AUSTRALIA
| GREFELD & GREFELD & ANOR | [2010] FamCAFC 162 |
| FAMILY LAW - APPEAL – Application for an extension of time – Consent to allow the appeal – Grounds of appeal reveal some merit – No prejudice to the respondents should leave be granted – Reason for delay in filing notice of appeal understandable and explained – Appeal allowed by consent FAMILY LAW - COSTS – Costs of the first and second respondents reserved to the Full Court. |
| Family Law Act 1975 (Cth) |
| Clivery & Conway [2010] FamCA 1435 Gallo v Dawson (1990) 93 ALR 479 |
| APPELLANT: | Mrs Grefeld |
| FIRST RESPONDENT: | Mr Grefeld |
| SECOND RESPONDENT: | Ms J Grefeld |
| FILE NUMBER: | BRF | 2504 | of | 2005 |
| APPEAL NUMBER: | NA | 90 | of | 2010 |
| DATE DELIVERED: | 26 August 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 26 August 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 June 2010 |
| LOWER COURT MNC: | [2010] FamCA 504 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway |
| SOLICITOR FOR THE APPELLANT: | Peter J Sheehy Solicitor |
SOLICITOR FOR THE FIRST RESPONDENT: | In person |
| SOLICITOR FOR THE SECOND RESPONDENT: | Jones McCarthy Lawyers |
Orders
IT IS ORDERED:-
That the time within which the wife may file a notice of appeal against the orders of Justice Barry made 22 June 2010 be extended to a date 48 hours after the making of these orders.
That the first and second respondent’s costs of and incidental to this application be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Grefeld & Grefeld and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 90 of 2010
File Number: BRF 2504 of 2005
| Mrs Grefeld |
Appellant
And
| Mr Grefeld |
First Respondent
And
| Ms J Grefeld |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
An application was filed on behalf of the wife on 3 August 2010 requesting an extension of time in which to file an appeal.
If leave is granted, the orders that the wife seeks to appeal are from those made on 22 June 2010 by Justice Barry. The proceedings related to a property settlement between the husband and wife and a subsequent claim by the second respondent, who is the sister of the husband, for a declaration that the wife held all her right, title and interest in a B property on trust for the second respondent. The orders of the trial judge relate only to the claim by the second respondent.
Each of the respondents, that is the first and second respondent, agree that an order may be made extending the time.
The first respondent indicated by telephone from Germany that he had signed a document, that is now exhibit one, where he agreed that the time to file the notice of appeal be extended.
Ms Day, appearing for the second respondent indicated that there is no resistance to this order being made.
Requirements for leave out of time applications
In Clivery & Conway [2010] FamCA 1435 the well known principles referable to such leave applications was discussed:
14.The principles emerging from Gallo v Dawson may be summarised as follows:
·The grant of an extension of time is not automatic.
·The object is to ensure that Rules which fix times do not become instruments of injustice.
·Since the discretion to extend the time is given for the sole purpose of enabling the Court to do justice between the parties, the discretion can only be exercised upon proof that strict compliance with the Rules will work an injustice upon the applicant.
·When determining whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.
·When considering an application for extension of time in which to file an appeal or an application, it is necessary also to consider the prospects of success of that appeal or application.
Merits of the appeal
Should the wife be granted leave to appeal out of time, she seeks to appeal orders 1, 2 and 3 of the orders made by Justice Barry on 22 June 2010. Those orders are as follows:
(1)A declaration that the Applicant Wife holds all her right, title and interest in and to the [E property] on trust for the Second Respondent.
(2)The Applicant Wife do all acts and things and forthwith sign all documents reasonably necessary to transfer to the Second Respondent all her right, title and interest in the [E property].
(3)Pursuant to s106A of the Family Law Act 1975, in the event the Applicant Wife refuses or neglects to do any act or thing or sign any document reasonably necessary to transfer to the Second Respondent all her right, title and interest in the [E Property] to the Second Respondent, then a Registrar or a Deputy Registrar of the Family Court of Australia at Brisbane be appointed to do such act or thing or to sign such document in the name of the Applicant to give validity and operation to these Orders.
The grounds of appeal reveal that the wife submits that the trial judge erred in finding that the second respondent had provided all of the purchase price of the property. Further, the finding that the husband had not received the monies from the second respondent applied to the purchase of the property by way of loan, was against the evidence. It is also asserted that his Honour failed to afford the appropriate weight to the position of the wife, and that the finding that the first and second respondent’s were in a fiduciary relationship was an error.
Without considering the merits of a possible appeal any more than is necessary to grant an application for leave out of time, I am of the view that there are grounds of appeal which reveal some merit.
Reason for the delay in filing
After the decision of the trial judge was handed down on 22 June 2010 the solicitor for the wife was asked to consider an appeal. Counsel who conducted the trial was overseas at the time and was not available until 5 July 2010. On that day the solicitor contacted counsel and requested comment on the prospects of success of an appeal and asked that a notice of appeal be drafted. Counsel was also briefed to provide a response to an application for costs, which the second respondent made against the husband and the wife.
On 20 July 2010 a draft notice of appeal was forwarded to the wife’s solicitor, by counsel and there was a discussion as to whether the appealed need to await the outcome of the costs judgment.
When the solicitor attempted to file the notice of appeal it became apparent that he had miscalculated the twenty-eight day timeframe. The wife was in fact one day out of time.
I consider the reasons for the delay in filing the appeal to be entirely understandable and explained.
Possible prejudice
With regard to prejudice, the solicitor for the wife in the affidavit accompanying the application outlined a number of material matters. These include, the facts that;
· the wife has lived in the former matrimonial home for fourteen years and since separation had paid all outgoings on the property;
· at times the adult children of the marriage reside in the property;
· the second respondent has not resided in the property and owns her own residence in A, and that;
· the second respondent has lived between Australia and Germany, and when on the Gold Coast stays at her A property.
It can therefore be said that there is no significant prejudice to the proposed respondents should leave be granted.
For these reasons I will grant leave.
Costs
In the application in an appeal the wife seeks that the costs of and incidental to this application be reserved to the Full Court. It seems that Ms Day has already agreed that this is an appropriate order.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 26 August 2010
Associate:
Date: 26 August 2010
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