Holbert & Holbert (No 2)

[2024] FedCFamC1A 159

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Holbert & Holbert (No 2) [2024] FedCFamC1A 159

Appeal from:

Holbert & Holbert [2024] FedCFamC1F 85

Appeal number:

NAA 77 of 2024

File number:

MLC 2024 of 2018

Judgment of:

TREE, WILLIAMS & ALTOBELLI JJ

Date of judgment:

17 September 2024

Catchwords:

FAMILY LAW – APPEAL – Property – Where the appellant contends that the primary judge erred in removing a contended mortgage from the final asset pool – Assertions of factual error – Where contrary evidence does not of itself establish error – Where the evidence was not before the primary judge – Where the appellant is bound by his conduct at trial – No error identified – Appeal dismissed – Costs ordered in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) s 75

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36

Cases cited:

Cahill & Cahill (2006) FLC 93-253; [2006] FamCA 172

Currie v Dempsey (1967) 69 SR (NSW) 116

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Sahrawi & Hadrami (2018) FLC 93-857; [2018] FamCAFC 170

Venter & Venter [2022] FedCFamC1A 122

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Number of paragraphs:

21

Date of hearing:

30 August 2024

Place:

Heard in Melbourne (via video link)

The Appellant:

Litigant in person

Counsel for the Respondent:

Mr Hutchings

Solicitor for the Respondent:

Mills Oakley

ORDERS

NAA 77 of 2024
MLC 2024 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HOLBERT

Appellant

AND:

MS HOLBERT

Respondent

ORDER MADE BY:	TREE, WILLIAMS & ALTOBELLI JJ
DATE OF ORDER:	17 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The appeal filed 8 May 2024 be dismissed.

2.The appellant pay the respondent’s costs fixed in the sum of $15,000 within 42 days.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holbert & Holbert (No 2) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE, WILLIAMS & ALTOBELLI JJ:

INTRODUCTION

1. On 21 February 2024, following a six-day hearing, the primary judge made final orders by way of alteration of the property interests of the appellant and respondent. His Honour noted that the issues for determination before him included the reliability of the evidence given by the parties, disclosure, the constitution of the pool of assets and liabilities, assessment of contribution and the factors identified in section 75(2) of the Family Law Act 1975 (Cth), and finally a consideration of whether the order is just and equitable.

2. On 8 May 2024 the appellant, who was the applicant in the matter before the primary judge, filed a Notice of Appeal containing a single ground:

   1.The Learned Trial Judge failed to take into account, properly or at all, the mortgage secured over the property at [1 N Street], in his assessment of the asset pool available for division between the parties and in the value of the net assets to be retained by the Appellant.

3. The appellant proposed that if the appeal was allowed, the orders made by the primary judge should be varied such that the respondent would pay to him an additional sum of $131,978.

4. The respondent opposed the appeal and sought an order that it be dismissed with costs.

5. The appeal does not raise any question of general principle (s 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)) and accordingly the short form reasons below explain why the appeal has been dismissed and the appellant has been ordered to pay the respondents costs fixed at the sum of $15,000.

   BACKGROUND

6. The appellant represented himself in the final stages of the hearing before the primary judge, and before us on appeal. He is an intelligent and articulate person with considerable commercial experience and acumen.

7. Given the singular ground of appeal, the recitation of unnecessary background facts will be dispensed with.

8. The crux of the appellant’s contention was that, in effect, the learned primary judge had made a factual error by not taking into account a mortgage and liability secured over a certain property in the sole name of the appellant.

9. The effect of the alteration of property interests ordered by the primary judge is that the appellant would retain this property, with all liabilities attached to it, but that such liabilities would not be brought into account in the balance sheet. Thus, from his perspective he was left with sole responsibility for liabilities which he contended had a value of $765,711.

   THE PRIMARY JUDGE’S REASONS

10. It is important to remember that at all relevant times the appellant bore the onus of proof as to the existence of any liabilities (Sahrawi & Hadrami (2018) FLC 93-857 at [39]; Currie v Dempsey (1967) 69 SR (NSW) 116 at 125). Specifically, he bore the onus to establish, to the reasonable satisfaction of the primary judge, that the liabilities that he contended to be secured against the property in question existed (Cahill & Cahill (2006) FLC 93-253 at [54]).

11. It is important to recite some of the relevant factual findings of the primary judge in his reasons for judgment dated 21 February 2024:

    ·At paragraph [43] the primary judge expressed doubts about the accuracy of the material provided by the appellant’s expert witness. He ultimately preferred the evidence proffered by the respondent’s expert witness on these issues, “frankly I generally found [Mr CC’s] evidence more persuasive”;

    ·At paragraph [50] the learned primary judge discounted the value of the appellant's proprietary interests by “removing alleged loans”;

    ·At paragraph [51] his Honour refused to accept the existence of foreign statutory demands levied against the appellant by companies he partly owns. He was not convinced that “even if the loans exist, that the entities will seek to recover the loans”;

    ·At paragraph [52] the learned primary judge expressed his concerns that “the [appellant] instructed personal and longstanding legal advisors (indirectly) to perfect transactions that were designed to give an appearance of authenticity so as to, post separation, cause the value of the [appellant’s] personal interests to diminish”;

    ·At paragraph [53] the primary judge makes explicit findings as to the value of the appellant’s shareholdings in various companies, disregarding the content of alleged loans;

    ·At paragraph [56] his Honour treats the appellant’s loans in a “balance sheet neutral” manner by notionally disregarding a share of the total value of the loans in accordance with the minority percentage ownership the appellant held in each company;

    ·At paragraph [57(a)] the learned primary judge exercised his discretion under Biltoft & Biltoft (1995) FLC 92-614 to disregard the appellant’s debt, as “the [appellant] has failed to establish that the alleged liabilities actually and genuinely exist”;

    ·At paragraph [59(k)] the primary judge specifically adverts to the mortgage and security at the heart of the present appeal and finds that the appellant failed to establish that the alleged debt exists, with the result that it would not impact the asset pool.

    ·At paragraph [59(o)] his Honour concluded that certain liabilities owing to individuals and companies close to the appellant were not correctly categorised as a personal obligation of the appellant; and

    ·At paragraph [59(p)] the primary judge found that the appellant was bound by a concession made by his counsel in open court. Such concession related to maintaining certain liabilities on the balance sheet including the alleged loan over the property which is the focus of this appeal.

12. It is clear to us that his Honour did in fact consider all the evidence led by or on behalf of the appellant in relation to the mortgage at the heart of the appeal. His Honour did not accept the appellant’s evidence about the liability, or security, in question and provided ample reasons for doing so. No contention was made by the appellant about inadequacy of reasons.

    THE APPEAL

13. The appellant’s submission before us can be summarised as follows:

    ·To the appellant’s mind, his contentions and evidence as to the existence of the liability should have been preferred over the respondent’s assertions that she did not know about the existence and/or value of a mortgage and/or a liability secured over the property in question.

14. It is clear to us, as it was to the primary judge, that there was no evidence, let alone probative evidence, of the existence of the liability and security asserted by the appellant. The entirety of the appellant’s case revolved around assertions, whether made by him personally, or through his experts. The absence of any corroborative evidence before the primary judge is apparent.

15. On appeal, the appellant ran his case in a manner that merely directed the Full Court to evidence which presented an opposite conclusion from that drawn by the primary judge. To point to contrary evidence does not establish error (Venter & Venter [2022] FedCFamC1A 122 at [25]). Something more is required.

16. For example, in the material before us on appeal, the appellant includes a document entitled Minute of Agreement dated 21 April 2020. This document was entered into by the appellant after the date of separation. The other parties to the agreement are his own companies, or those he holds an intimate connection to. Even if the Minute of Agreement was tendered in evidence before the primary judge (which it clearly was not), it does not identify the alleged quantum of the debt, or that the companies would call in the debt following the hearing.

17. All material alluding the existence and value of the contended liability in question were provided by the appellant, or by his experts based on his sole material. The appellant’s contentions as to the value of the liability and security in question vary greatly, especially after 2022:

Material Produced by	Date of Valuation	Alleged Value	Notes
Appellant	1 July 2015	GBP250,000	Appellant’s personal balance sheet
Appellant	13 February 2017	GBP250,000	Appellant’s personal balance sheet
Appellant	12 April 2018	GBP236,000 AUD430,096	Appellant’s Financial Statement
Appellant	5 April 2019	AUD408,437	Appellant’s expert valuer’s (W Financial Services) based off information solely provided by the appellant.
Appellant	31 January 2022	AUD325,222	Appellant’s expert valuer’s (W Financial Services) based off information solely provided by the appellant.
Appellant	26 August 2022	AUD847,370	Appellant’s Financial Statement. It includes the value for liabilities over two adjoining Country C properties. No separate values are provided.
Appellant	9 September 2022	AUD765,711	Appellant’s final hearing Case Outline. It is the alleged value of mortgage and security over only the primary property in Country C.
Appellant	26 July 2024	AUD293,285	Appellant’s Summary of Argument. It is his untested assertion as to the remaining balance of the mortgage.

1. Despite the appellant’s contentions, not a single relevant bank statement proving the existence or value of the mortgage was tendered into evidence before the primary judge. Even if, as the appellant contends, the respondent had been provided with the bank statements by way of pre-trial disclosure, that does not explain why such obvious evidence was not properly placed before the Court.

2. The Court accepts that the timing of the appellant becoming self-represented before the primary judge may have resulted in documents not being tendered that should have been. Parties are generally bound by the way they conduct their cases at trial (Metwally v University of Wollongong (1985) 60 ALR 68). It is also possible that there may have been some omission by those representing the appellant at the primary hearing. Even if that were the case, there is no ground of appeal in relation to the competency of his legal representation.

3. On appeal, the appellant bore the onus to establish that, on the evidence before the primary judge, his Honour had mistakenly failed to take relevant liabilities into account. In short, the appellant failed to discharge this burden, and there is no obvious error by the primary judge (Warren v Coombes (1979) 142 CLR 531).

   COSTS

4. The appellant was wholly unsuccessful on appeal, and in the circumstances the respondent seeks costs in the order of $15,000 which, we are satisfied, is proportionate, reasonable and justified in all the circumstances.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Williams & Altobelli.

Associate:

Dated:       17 September 2024