Horleck and Horleck & Ors
[2015] FamCAFC 165
•21 August 2015
FAMILY COURT OF AUSTRALIA
| HORLECK & HORLECK AND ORS | [2015] FamCAFC 165 |
| FAMILY LAW – APPEAL – PROPERTY ORDERS – Where final property adjustment orders were made pursuant to s 79A – Where the appellant appeals those orders – Whether the trial judge failed to take into account various assets of the parties – Whether the trial judge correctly applied s 75(2) – Where the husband’s new wife is a party to the proceedings – Where the wife sought to adduce further evidence – Application refused – Appeal dismissed. FAMILY LAW – APPEAL – STAY– Where the appellant sought a stay of the orders pending the hearing and determination of her appeal – Where the stay was refused – Where the appellant appeals that order – Appeal dismissed. |
| Family Law Act 1975 (Cth): ss 75(2), 79, 79A, 93(A)(2), 106B |
CDJ v VAJ (1998) 197 CLR 172
| APPELLANT: | Ms Horleck |
| FIRST RESPONDENT: | Mr Horleck |
| SECOND RESPONDENT: | Ms Lyman-Horleck in her capacity as Director of X Pty Ltd |
| THIRD RESPONDENT: | X Pty Ltd as Trustee of the H Trust |
| FOURTH RESPONDENT: | Ms Lyman-Horleck |
| FIFTH RESPONDENT: | Ms Cooper |
| FILE NUMBER: | BRF | 8480 | of | 1994 |
| APPEAL NUMBERS: | NA 54 of 2014 & NA 28 of 2015 |
| DATE DELIVERED: | 21 August 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ryan, Murphy & Aldridge JJ |
| HEARING DATE: | 28 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 September 2014; 13 April 2015 |
| LOWER COURT MNC: | [2014] FamCA 733; [2015] FamCA 267 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Horleck in person |
| FOR THE FIRST RESPONDENT: | Mr Horleck in person |
| FOR THE SECOND RESPONDENT: | Ms Lyman-Horleck in person |
| FOR THE THIRD RESPONDENT: | Ms Lyman-Horleck in person |
| FOR THE FOURTH RESPONDENT: | Ms Lyman-Horleck in person |
| FOR THE FIFTH RESPONDENT: | Ms Cooper in person |
Orders
The appellant wife’s Application in an Appeal filed on 15 May 2015 be dismissed.
That the Amended Notice of Appeal filed 2 March 2015 in appeal NA 54 of 2014 and the Amended Notice of Appeal filed 30 April 2015 in appeal NA 28 of 2015 be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Horleck & Horleck and Ors 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 Numbers: NA 54 of 2014 & NA 28 of 2015
File Number: BRF 8480 of 1994
| Ms Horleck |
Appellant
And
| Mr Horleck And Ms Lyman-Horleck in her capacity as Director of X Pty Ltd |
Second Respondent
And
X Pty Ltd as Trustee of the H Trust
Third Respondent
And
Ms Lyman-Horleck
Fourth Respondent
And
Ms Cooper
Fifth Respondent
REASONS FOR JUDGMENT
Introduction
Ms Horleck (“the wife”) appeals against orders made by Forrest J on 5 September 2014. On that day the trial judge set aside orders made by Butler J on 8 December 1995 and ordered, in lieu, Mr Horleck (“the husband”) to pay to the wife $220,000. The wife contends that this amount is too low because the trial judge failed properly to take into account the property of the parties and the factors to be considered under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
As can be seen the proceedings have a long history.
The parties’ relationship lasted from 1977 until 1994. Proceedings between them commenced shortly thereafter and, in May 1995, a nine day trial was conducted before Butler J. His Honour delivered reasons on 17 July 1995 and made orders on 8 December 1995. We will return to those orders shortly.
The wife became a bankrupt in 1999.
In 2006 the wife commenced proceedings seeking to vary the 1995 orders. In 2007 she amended the application to include orders for enforcement. That application came before Carmody J in January 2008 who dismissed it on 27 July 2008. The wife appealed. On 20 January 2010 the appeal was allowed and the matter was remitted for hearing and, ultimately, came before the trial judge, Forrest J.
The trial judge’s reasons
The trial judge commenced by discussing the orders of Butler J who had found the net property of the parties to be $331,000. This was divided as to 62 per cent to the wife and 38 per cent to the husband. The orders provided for the sale of five parcels of real property which were registered in the husband’s name and for transfer to the wife of the parties’ interests in the former matrimonial home. It was the transfer of those interests and a cash payment that was to comprise the wife’s 62 per cent entitlement. The husband was to indemnify the wife in respect of a mortgage secured over one of the five properties being sold to secure post separation borrowings of the husband of some $50,000.
Butler J found that at the commencement of the relationship the husband had a property at J Street, Suburb B subject to a mortgage, a jewellery collection said by the husband to be worth $35,000, furniture and a car. His Honour recorded that the wife said, that at the commencement of the relationship, she had a small jewellery collection. That was denied by the husband.
During the marriage a number of properties were purchased using savings, proceeds from the sale of jewellery and borrowings. At the time of the hearing before Butler J the properties were:
· U Street, Suburb B (“U Street property”)
· M Street, Suburb C (“M Street property”)
· D Street, Suburb O (“D Street property”)
· L Street, Suburb P (“L Street property”)
· E Street, Suburb K (“E Street property”)
· J Street, Suburb B (“J Street property”)
His Honour noted that the value of these six properties was said by the husband to be $401,500 and by the wife $419,000. At the time of the hearing the mortgage debts on those properties were $201,194.49.
As it was before the trial judge, there was a significant dispute before Butler J as to the jewellery collection. The husband accepted that the parties had collected jewellery but said that, at the time of separation, the entire collection was taken by the wife. She denied this. Butler J found at p 96:
There were allegations and counter-allegations about who had the main part of the [jewellery] collection, but I reject allegations that the wife had the main part of the collection. For the reasons to which I will later refer I accept that the husband has [jewellery] in his possession to the value of $17,000.00 (being his estimate) of what he said the wife had, but which I have found are in his possession, and which I will call to account. I do not accept the husband’s contention that the wife has [jewellery] in her possession in excess of a value $3,500.00.
Butler J then determined a contributions based entitlement of 49 per cent of the available property to the wife and 51 per cent to the husband. Those entitlements were adjusted after consideration of the matters required to be considered pursuant to s 75(2) of the Act so that the wife received 62 per cent of the net property and the husband 38 per cent. The effect of the orders therefore was that the wife would receive $205,281 and the husband $125,818. To give effect to those findings Butler J made the following orders:
…
6.That the property of the parties be divided as to the wife 62% and as to the husband 38%.
7.TO give effect to Order 6 hereof:
(a) that the amount of $9,234.00 representing necklace, stones and domestic equipment presently in the wife’s possession be brought into account as a credit to the wife in the division;
(b) that the amount of $39,450.13 [this figure was later amended to $46,450.13 to adjust mathematical error] representing the motor vehicle, [jewellery] collection, [Type T jewellery], tax refund and rents presently in the husband’s possession or found to be his possession be brought into account as a credit to the husband in the division;
(c) that ownership of the personal property and chattels in the possession of either party not dealt with specifically in this order vest in the party so in possession as at 18 July 1995;
(d) that the real estate namely [U Street property]; [L Street property]; [J Street property]; [M Street property], [D Street property] be sold on the following conditions:
(i)subject to sub-clause (iii) herein that the real estate be offered for sale by auction or as otherwise agreed by the parties at the earliest practical moment;
(ii) that the parties agree on agents, auctioneers and reserve prices, and in the event of disagreement the difference to be settled by an arbitrator appointed by the President of the Real Estate Institute of Queensland;
(iii)that the arrears of rates on [E Street property] be paid out of the sale proceeds of the other real properties;
(iv)that the husband transfer to the wife all of his right title and interest in the property at [E Street property] at a value of $115,000.
8.THAT the husband indemnify the wife and keep her indemnified in respect of the whole of the St George Mortgage No. … over the [J] Street property together with interest accruing and any claims or demands in respect thereof.
9.THAT the husband indemnify the wife and keep her indemnified in respect of any capital gains tax arising from the sale of the said properties.
10.THAT the husband have the benefit of negative gearing on the said properties for the year 1994 to 1995 and thereafter until the properties are sold.
11.THAT the husband is to account to the wife for all rents and other income received by him arising from the said real property and in respect of any mortgage payments, rates, insurance or other outgoings which are or may be due or owing pending the sale of the said real property in accordance with Order 7 hereof.
12. THAT the husband retain and the wife relinquish any claim to the husband’s superannuation.
The trial judge found that the clear effect of those orders was that the husband was to transfer his interest in the E Street property unencumbered so that the wife received $115,000. When added to the property retained by her she would receive $205,281.
Shortly after the orders were made the husband moved out of the E Street property and the wife and the children moved back in, in anticipation of the transfer of the husband’s interest in the property. Shortly after, St George Bank sent notices to the husband, requiring him to give up possession of the E Street property to it so that it could recover the amounts owing under mortgages over the J Street property and the D Street property. These mortgages were also secured against the matrimonial home at E Street.
On 13 December 1995, St George Bank caused the sale of the D Street property. The proceeds of sale were insufficient to discharge the mortgage and in early 1996 the L Street property was sold by St George Bank. The proceeds of payment effected a partial discharge of the St George Bank mortgage. The balance of the proceeds of sale were paid to First Provincial Building Society which held a mortgage over the E Street property.
The St George Bank then sold the J Street property in March 1996. After distribution of the proceeds of sale the bank was owed $2,044. The trial judge summarised the position as follows at [42]:
There only remained the [U] Street, [Suburb B], [E] Street, [Suburb K] and the [M Street] properties, and there remained $2,044 owing to St George Bank as well as the debt owing to First Provincial Building Society secured over the [E Street] property that was $86,796 at the date of hearing in mid-1995 but had $25,636 paid off it from the sale proceeds of the [L] Street property in early 1996.
On 10 July 1996 Registrar McManus, purportedly by consent, made a machinery order for the M Street property to be offered for sale by public auction on 31 August 1996 with a reserve price of $60,000 but with a provision for the parties to accept the best lesser offer within seven days of the auction and for the U Street property to be sold by private treaty at the best offer obtainable within 30 days of the order.
By a contract dated 13 August 1996 the husband agreed to sell the U Street property to Ms Cooper (“the fifth respondent”) for $2,000. It is to be recalled that that property was to be sold by a private treaty pursuant to the orders made by Butler J. The husband asserted then, and asserts now, that he was acting pursuant to those orders, notwithstanding he had given the property a value of $14,000 at the hearing before Butler J.
The wife refused to remove the caveat she had lodged over the property and, on an application by the husband, a registrar of the court executed the documents enabling the caveat to be lifted. The sale of the property to the fifthrespondent was completed.
The M Street property was offered for sale after July 1996. An offer of $42,000 was received followed by an offer of $45,000. Both were rejected by the wife. On the day of the auction no bids were received and the property was passed in. On the same day X Pty Ltd entered into a contract with the husband to purchase the property for $10,000. X Pty Ltd is the thirdrespondent and is the trustee of the H Trust which was settled two days before the auction. The husband was a director and sole shareholder of the third respondent for a short time on the day that the company was acquired and the trust created. The current shareholder and director of X Pty Ltd is Ms Lyman-Horleck, the husband’s current wife.
The wife moved out of the E Street property in June 1996. It had not been transferred to her name and the mortgage debt was not being paid. She installed tenants in the property and used the rental income to pay for repairs, insurance premiums, loan repayments and some mortgage repayments. At some time thereafter, the husband took over managing the property and received the rents but did not apply them to the mortgage.
In mid-1999 the mortgagee took possession of the E Street property and sold it at auction for $95,000. The mortgage debt at the time was $90,868.25.
The upshot of all this was that the wife retained simply the assets in her possession. She did not obtain the interest in the E Street property of $115,000 as envisaged by Butler J. On the other hand, the husband not only retained the assets he had in his possession but the benefit of the rental received by him in relation to the properties and the $50,000 borrowed on the J Street property.
After setting out the above, the trial judge moved on to consider whether or not the orders of Butler J should be set aside under s 79A of the Act. His Honour found that they should. The husband has not appealed against that finding.
As it was before Butler J, the significant dispute between the parties before the trial judge concerned the jewellery collection and what the wife described as “an international [jewellery] business”. The husband, again, contended that whatever jewellery had been in the parties’ possession at the time of separation had been taken by the wife. The main evidence relied upon by the wife as to the value of the jewellery collection was what she said were a series of admissions by the husband as to its value and by purchases of property by X Pty Ltd which could only be explained by there being a jewellery collection of substantial value.
As to the first, the wife relied on the husband telling police on 25 August 1994 that a jewellery collection with a value of $3 million had been stolen from the property. In 2003 the husband returned to the police and apparently amended the value of the stolen property to $300,000. She also relied on an application for a loan that the husband lodged in early August 1995 when borrowing the amount of $50,000 secured over the J Street property. He ascribed a value of $200,000 to a jewellery collection.
The trial judge did not base his finding as to the value of the jewellery collection upon that evidence. Rather his Honour accepted the second proposition. He found that the property at I Street, Suburb F (“the I Street property”) purchased in August 1995 used the jewellery collection as the basis for part of the purchase price.
The first respondent purchased this property for $77,500 in August 1995. The amount of $39,000 was paid by the fourth respondent for the property and she borrowed the balance. The trial judge found that the $39,000 came from jewellery of the husband that he had sold.
His Honour then noted that the mortgage on the I Street property was repaid in full within four years.
In July 1999 the third respondent purchased Property 1, LL Street, Suburb BC (“Property 1, LL Street”) for $63,000 borrowing only $48,000 for the purchase. By July 2002 that mortgage had been reduced to $2,630.97.
On 29 February 2000 the third respondent purchased Property 2, LL Street, Suburb BC (“Property 2, LL Street”) for $57,500, borrowing $45,900 but by November 2000 the mortgage had been reduced to $9,493.33.
On 5 May 2000 a cheque for $95,600 was deposited into the account of the fourthrespondent.
On 9 August 2002, MM Street, Suburb DE (“the MM Street property”) was purchased for $45,000. No funds were borrowed for the purchase but $24,510 had been redrawn from the loan secured over Property 2, LL Street.
The husband resigned from his employment in November 1998 and did not
re-enter the workforce until 2006.
The trial judge made the following findings at [148] – [149]:
148.I am quite satisfied that the [jewellery] (including the [piece of Type T jewellery]) that were retained by the husband were valued at more than $23,000 at the time of the 1995 trial. I consider it more probable than not that the amount of approximately $39,000 that the fourth respondent put towards the purchase of the [I] Street property in 1995 was sourced from the sale of [jewellery]. Further, I do not accept that the entirety of the [jewellery] collection was sold to realise that amount, other valuable [jewellery] being retained and sold over the later years as well, with the proceeds of sale of [that jewellery] being paid towards repaying loans and acquiring more real property through the [H] Trust.
149.Although Butler J, having found that the husband had not told the truth about the [jewellery] collection, included it as property of the husband at a value of $23,000 in determining an appropriate property adjustment, I am still satisfied that a miscarriage of justice occurred because of the husband’s failure to give truthful evidence about the [jewellery] collection and its real value. Its real value, I am satisfied, was certainly greater than $39,000, although it is impossible to say with any accuracy or certainty what it was really worth in total. …
As is apparent from that passage, his Honour rejected the evidence of the husband and the fourth respondent that the purchase of the I Street property and the other properties were enabled by gifts of cash and jewellery made by an elderly friend of the husband’s.
In considering what orders to make under s 79 firstly the trial judge found that the husband’s failure to pay the rates and the mortgage on the properties held by them at the time of the trial had the effect that the proceeds of their sale were less than they otherwise would have been.
The trial judge then turned to the sale of the U Street property to the fifth respondent. At the time she was in a relationship with the husband’s long time accountant.
On 1 July 2002 this property was transferred by the fifth respondent to the thirdrespondent for $8,600. Of this the sale to fifth respondent and the transfer to the third respondent the trial judge said at [214]:
… I am satisfied that both these transactions were created by prior agreement (before the transfer to the fifth respondent) between the husband, the fifth respondent and the fourth respondent to give the appearance of compliance with the orders for the sale of the property in a way that minimised the funds available for division between the husband and the wife but which enabled the husband to ultimately retain ownership, albeit through a family trust entity controlled by his current wife…
The trial judge then turned to the sale of the M Street property. As recorded earlier offers of $42,000 and $45,000 were made prior to the auction and were rejected by the wife.
It was the case of the husband and the fourth respondent that the M Street property was in fact purchased by the husband’s elderly friend, Ms W. She became the sole shareholder and director of X Pty Ltd on 22 May 1997. This was on the same day as the H Trust was settled and the contracts for the purchase of the M Street property were signed. The transfer of the shares and her appointment as a director took place after these steps were taken. The company records show that Ms W ceased to be a director on 6 May 1998 and transferred her share in X Pty Ltd to the husband at about that time. She died shortly thereafter.
The fourth respondent became the sole director of X Pty Ltd in March 1999. The trial judge did not accept the evidence called on behalf of the husband and found that Ms W had not been involved in the purchase of the property. Indeed, his Honour found that Ms W’s signature on the share transfer document transferring her share to the husband was affixed after her death. The trial judge found that the husband orchestrated the sale of the M Street property so as to ensure that the wife got nothing from it.
The trial judge then went on to find that, should it be necessary to give effect to the orders he proposed to make, the sales of the U Street property and the M Street property should be set aside pursuant to s 106B of the Act.
In relation to the I Street property his Honour found that the husband had contributed $39,000 out of the purchase price of $77,500 so that the husband’s beneficial interest in that property was 39/77.5 (approximately 50 per cent) and that the fourth respondent held the balance for herself.
The trial judge then turned to the appropriate order to be made. He noted that the debts that the wife had had in 1995 would have been extinguished by reason of her bankruptcy and that she should now not get a benefit from that. The trial judge then took into account that the wife had the responsibility of caring for the children of the marriage without much practical assistance from the husband who had benefited from not having to discharge the mortgage debt on the J Street property. Taking those matters into account, the trial judge found that the 62/38 division of the property that was determined by Butler J in 1995 continued to be an appropriate division of the parties’ property.
The trial judge then continued at [279]:
279.A number of further difficulties confront the Court at this point in the process. There was no evidence as to the value of the [U] Street, [M Street] and [I] Street properties at the date of the trial. Further, there was no means of accurately determining what the true value of the [jewellery] collection retained by the husband at separation really was. Of course, the Court is entitled to take a robust approach in respect of the value of the [jewellery], given the husband’s failure to meet his obligation to fully and frankly disclose in respect of the [jewellery] collection. As robust as that entitles me to be, I am not able to put any more precise figure on the value of that collection, save to again acknowledge that I am satisfied that its existence provided the springboard for the husband to accumulate further properties through a family trust that he established and, along with the fourth respondent, he controls.
The trial judge then continued at [282] – [284]:
282.Against all of these difficulties, I am nevertheless prepared to consider that it is appropriate to make orders that ensure the wife gets paid a sum of money that reflects the amount she would likely have retained had she received the [E Street] property, or its value of $115,000, plus an additional amount of cash on the arms-length sales of the other properties and then had to pay her solicitors that which she owed them, with an uplift factor notionally representing an amount of interest on such sum for the years since 1996, when she should have received her entitlements pursuant to the 1995 Order.
283. I consider that sum should be $220,000.
284.I will make orders setting aside the 1995 Order and substituting it with an Order that the husband pay the wife the sum of $220,000 within forty-five days. I will make orders that provide for the husband’s interests in the [U] Street property, the [M Street] property, and his interests in the [I] Street property and the [G] Street property to vest in the applicant wife as trustee for sale in the event that the respondent husband defaults in the obligation to pay her the sum of $220,000 within that period of time. If he defaults, the applicant wife will be entitled to sell his interests in those properties on terms and conditions satisfactory to her, or otherwise as determined by this Court, with the sum of $220,000 plus interest calculated in accordance with the Family Law Rules 2004 (Cth) to be paid to her from the sale proceeds with any balance being paid to the respondent husband. Of course, if any of the respondents are not satisfied with any of the terms and conditions pursuant to which any of those property interests of the husband are to be sold they will have liberty to apply to this Court for further directions in respect of those matters.
Application to adduce further evidence
By an Application in an Appeal filed on 15 May 2015 the wife sought to adduce further evidence in the appeal. In her affidavit filed on the same day in support of the application the wife described the evidence and the reason why it should be admitted as follows:
3.I am seeking to adduce further property valuations of Mr [DD], Registered Valuer. Annexured herein and marked “Appeal 54/01” find a copy of Mr [DD’s] further valuations.
4.Mr [DD] provided property valuations for the former matrimonial properties for the 10 December 2012 trial but the further properties (those under the trust and [I] Street) were not valued for the Court but for a statutory declaration provided by Ms [Lyman-Horleck] which was held to be inadmissible.
…
6.The further evidence, if accepted, is necessary to value the property pool and would complete the picture for the Full Court in relation to the property values of the property his Honour found [jewellery] monies had flowed into without the necessity of sending the matter back for rehearing.
It is to be recalled that because of the lack of property valuations the trial judge was not able to prepare a list of assets for division and was thus obliged to do the best he could to derive an appropriate lump sum figure for payment to the wife. The further evidence attempts therefore to fill this large gap in the wife’s case as run at trial.
The valuations were not in fact annexed to the affidavit as suggested in its text. They were not then available to the wife. Copies of the valuations were provided to the respondents to the appeal by email, two days before the appeal.
Pursuant to s 93(A)(2) of the Act further evidence may be received on an appeal.
The principles governing the acceptance of such evidence outlined by McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 as follows at [109], [111], [114] and [116]:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
The husband and the fourth respondent opposed the application submitting that the evidence could and should have been given at the trial. Mr DD had valued other properties for the purpose of the proceedings and was cross-examined in relation to those valuations.
Secondly, the husband and the fourth respondent submitted that the valuations may well be controversial. As an example, the U Street property was given a valuation of $50,000 by Mr DD. Mr DD noted that the property had a history of flooding but that “erection of a dwelling might be possible at the front subject to [Suburb O] City Council approval”. The husband and the fourth respondent submitted that they would wish to adduce evidence that would establish that no dwelling could ever be built on the land. The evidence of Mr DD, at least in relation to that property, could be regarded as being controversial.
It is to be recalled that the adducing of further evidence is not of itself a ground of appeal. The admission of this evidence would clearly require a re-trial. Whilst some of the properties, the valuations of which were included in the proposed evidence, were acquired during the relationship, several of the properties the subject of the new valuations were acquired well after the parties separated. It would be unlikely for these values to appear in the list of the property to be divided without there being a detailed consideration of the manner of their purchase, by who the purchase funds were provided and the like. The admission of this evidence would require a re-trial.
Absent any error identified by the trial judge, it would not be in the interests of justice to admit this evidence which would, of itself, require the matter to be remitted for re-hearing. The application will be dismissed.
Grounds of appeal – NA 54/2014
On 2 March 2015 the wife filed an Amended Notice of Appeal. In that document grounds 4, 5, 8, 9, 16 and 20 were deleted. During the course of argument the wife indicated that grounds 19, 21, 24, 25, 27, 28, 29, 30 and 36 were either not pressed or abandoned. Because the wife was unrepresented we satisfied ourselves that none of the abandoned grounds of appeal had any prospect of success. Although the remaining grounds could conveniently be grouped in a number of categories, the wife preferred to deal with them seriatim. We will generally do the same save where is convenient to deal with more than one together.
Ground 1 – The learned Trial Judge erred at paragraph 1. Although he rightly stated that three children were born of the relationship, he failed to say that there were five children of the marriage. I raised the two children of Mr [Horleck’s] first marriage from infancy until they left home as teenagers. I took on responsibility for them when I was only 18 years of age. Their birth mother had little to no contact or involvement. All five children were very much a part of Butler J’s deliberations – although he made very little adjustment to take account of my raising of my
step-children.
The trial judge said at [277]:
The wife, of course, had the responsibility of caring for the children of the marriage for the balance of their childhoods without much practical assistance from the father but with some financial assistance in the form of child support mostly obtained in a lump sum in or around 2005 after enforcement proceedings were brought against him by the Child Support Registrar.
The husband accepts that throughout the marriage the wife cared for the two children of his previous marriage born in 1974 and 1976. In the wife’s detailed written submissions to the trial judge (some 59 pages) the wife did not specifically mention the care of the children of the husband’s earlier marriage. In those circumstances, it is not surprising the trial judge did not do so either. To the extent there was a failure by the trial judge to take into account the wife’s care of those children we are not satisfied that it had a material effect upon his Honour’s findings.
It is to be remembered that this is but one of many factors to be considered under s 75(2) of the Act. The trial judge carefully weighed these factors and a different outcome on this issue would not have altered the overall consideration.
Ground 2 – The learned Trial Judge erred in fact with respect to paragraph 18, where he states that the [J] Street property was said to be worth $25,000. His Honour, Butler J, stated at page 92 of his Judgment, “There is no evidence to support the husband’s contention of the $25,000 value on the home…”
At [18] the trial judge said:
…The property was said to be worth $25,000 with $4,000 owing to the bank at that time, but no independent evidence supporting that assertion was before the Court…
The trial judge did not in fact find that the property was worth $25,000. Even if his Honour did so, that finding was not material to any issue in the proceedings. This ground does not succeed.
Ground 3 – The learned Trial Judge erred in fact at paragraph 20, when he referred to $5,000 borrowed from the husband’s mother as part of the $36,000 paid for the [M] Street property. His Honour, Butler J, pointed out at page 103 of his Judgment that this ‘loan’ was not part of the husband’s case until 5th May 1995.
The reference by the trial judge was, in turn, a reference to the findings of Butler J who noted the dispute between the parties as to whether or not the $5,000 was provided by the husband’s mother or not. Even if there was an error of the trial judge as to this, it was a minor error. The wife accepted that no issue of any consequence flowed from it.
Accordingly, this ground is not established.
Ground 6 – The learned Trial Judge erred in fact at paragraph 38, when he stated I spoke to staff at the St George Bank and First Provincial Building Society but received no response that satisfied me. In fact, I did speak to staff at both St George Bank and First Provincial Building Society but, because Mr [Horleck] had withdrawn his consent for them to talk to me or my lawyers, they actually gave me no information at all except to say that they were unable to talk to me because my husband had withdrawn his consent and I had no rights to any of the information. First Provincial Building Society also told me that the Judgment of Butler J was not binding on them and they had no intention of complying with it even if Mr [Horleck] did try to sign the property at [E] Street over to me as I had no income and no assets.
The wife accepted in the course of oral submissions, that the trial judge’s finding that the wife “received no response that satisfied her from the building society” was correct.
This ground is not established.
Ground 7 – In relation to paragraph 42, the Learned Trial Judge failed to take into account the debt owing over the [E] Street property was also reduced by the payments I made into the mortgage before the husband retook possession.
In submissions, the wife identified the amount that she sought to have taken into account as the amount by which she reduced the mortgage as being approximately $5,000.
There are unfortunately a number of difficulties with this ground. First, because of the failure of the wife to adduce evidence as to the values of the property the subject of the proceedings, the trial judge was unable to construct a “pool” of property. There was thus no pool into which an adjustment of $5,000 could be made.
Secondly, the wife had the benefit of the property during the period she was paying the mortgage and received rent. It could easily be argued that, in receiving the benefit of the rent, the wife should accept the burden of the cost of obtaining that rent. Alternatively, an account would need to be taken of the period when each of the parties had the use of the property, the rent they received and the outgoings that they paid.
Finally, it is difficult to see how this sum is ultimately material to the issues involved in the proceedings.
This ground is not established.
Ground 10 – In relation to paragraph 55, the husband retook possession of the [E] Street property in 1997 within weeks of ‘selling’ the [M] Street property to [X] Pty Ltd. The tenants gave evidence in Court that they remained in the property until it was seized and sold by First Provincial Building Society in July 1999. The rent collected on the property by Mr [Horleck] between the 1995 Hearing and sale amounted to $11,520 – which has never been bought to account. The Learned Trial Judge should have added that amount to my entitlements given the house was awarded to me by Butler J.
This ground is the corollary of ground 7. The wife submits that the husband collected rent from the property and at least for some period did not pay the mortgage. The same difficulties arise with this ground as arose with ground 7 and thus it is not established.
Ground 11 – In relation to paragraph 58, given the wife’s evidence showing the calculations of differences between the rates outstanding at 1995 Hearing and sale/transfer of around $14,503.51, his Honour did not bring should have bought [sic] the increase in rates to account in his calculations.
In paragraph 58 of the judgment, the trial judge referred to the rates outstanding on the properties at the hearing and the rates outstanding at time of sale of transfer. The trial judge was thus alive to the wife’s case that the property pool had been diminished by the failure of the husband to pay the rates when due. Again, however there was no property pool in which this sum could be brought to account. The trial judge clearly took into account the benefits the husband received from not having to pay out the mortgage debts on the E Street and J Street properties. This ground has not been established.
Ground 12 – The learned Trial Judge erred in the exercise of his discretion in relation to the value of the [jewellery] collection. Given both the wife and the husband sought an increase in the value of the jewellery collection, His Honour should have used the evidence of the husband’s complaint to the Suburb [O] Police of $3,000,000 of art and [jewellery] being ‘stolen’ from his possession soon after separation and the husband’s bank application showing he claimed possession of a $200,000 [jewellery] collection around the same time to come to a more accurate valuation and;
Ground 13 - This is especially so given his Honour realised that Butler J did not find the husband credible but found that his evidence was deliberately false (at paragraph 78). He points out that Butler J trusted the wife where her evidence differed from the husband. I valued the [jewellery] collection at $200,000 for the Butler J court. The husband changed the value again and again until he lowered it to $16,000. The difference between those figures amounts to $184,000. 62% of $184,000 is $114,080. An increase of $114,080 to my entitlements in 1995 would have been half again of what I was awarded. To allow the value to remain at Mr [Horleck’s] $16,000 is a miscarriage of justice.
It is convenient to deal with these two grounds together.
The wife’s case at trial, and at appeal, was that the trial judge should have valued the jewellery collection at $200,000, relying upon a statement made by the husband in his loan application to the St George Bank when applying for the loan on the J Street property. The trial judge did not accept that submission. His Honour found that the $39,000 used for the initial payment for the purchase of the I Street property came from the sale of jewellery. At [279], as quoted earlier but for convenience repeated, the trial judge said:
Further, there was no means of accurately determining what the true value of the [jewellery] collection retained by the husband at separation really was. Of course, the Court is entitled to take a robust approach in respect of the value of the [jewellery], given the husband’s failure to meet his obligation to fully and frankly disclose in respect of the [jewellery] collection. As robust as that entitles me to be, I am not able to put any more precise figure on the value of that collection, save to again acknowledge that I am satisfied that its existence provided the springboard for the husband to accumulate further properties through a family trust that he established and, along with the fourth respondent, he controls.
The wife submits that as the mortgage on the I Street property obtained by the fourth respondent was paid off within four years, those repayments must have come from a jewellery collection or the jewellery business conducted by the husband.
The husband was working at the time. The wife conceded that mortgage repayments could have come from his wages. The wife also accepted that it was likely that the husband was continuing to conduct his jewellery business. The payments of the mortgage could clearly have come from that source. The difficulty confronting the wife, and acknowledged by the trial judge, that whilst the jewellery collection and any jewellery business may well have been the springboard for the later property acquisition by the husband, it is not possible to determine what part of that springboard existed at separation other than for the $39,000 used for the payment on the I Street property. There was no evidence before the court that enabled the court to work out what, if any, payments came from jewellery that existed at the date of separation as opposed to items that were subsequently acquired or payments that were made from the wages of the husband.
The property at Property 1, LL Street was bought four years after separation. Even if one were to accept the wife’s submission that that property must have been bought with proceeds from sales of jewellery that, of itself, does not establish that those items of jewellery were in existence at the date of separation. The same is true, but to a greater extent, to all the properties that were subsequently acquired by the third respondent.
Further, if the true value of the jewellery collection as at the date of separation was taken into account by the trial judge, then it does not matter what the husband subsequently did with his share of it.
This leads to the complaint of the wife that the trial judge failed to correctly take into account the jewellery collection as at the date of separation.
The difficulty with this submission is that there was no evidence that enables it to be made good. The best evidence available to the trial judge pointed towards the $39,000 used to acquire the I Street property. The trial judge was not obliged to accept the statement made by the husband to the St George Bank as to the value of the jewellery. Other statements made by the husband and relied on by the wife, such as the jewellery collection being valued at $3 million, were wildly improbable. The trial judge resoundingly rejected the husband’s explanations as to how he acquired the funds to purchase the I Street or U Street properties.
Finally, once again, the lack of an identifiable property pool made it difficult for the trial judge to do anything other than what he did - which was to, as best he could, identify the evidence establishing the value of the jewellery collection and take into account that undisclosed items of jewellery provided the husband with a springboard for the acquisition of properties by the third respondent, and take those matters into account in determining an appropriate payment to the wife.
These grounds are not established.
Ground 14 – The learned Trial Judge erred in fact at paragraph 83 when he stated that I gave no evidence as to where the $2,000,000 value for the matrimonial [jewellery] collection came from or how it was calculated. The list I pulled together from my memory after separation for specifically that reason was in evidence and is actually referred to in his Honour’s Reasons; and
Ground 15 – Further, my original estimated valuation of $2,000,000 was downgraded to $200,000 by my legal representatives in the 1995 Hearing because the only true evidence we had at that time of the value of the [jewellery] was the husband’s loan application to St George Bank in which he had listed $200,000 of [jewellery] as his asset.
The wife’s position on appeal was that the trial judge should have found the jewellery collection to be worth $200,000 at the date of separation. These grounds are therefore no longer relevant and were in effect abandoned.
Ground 17 – The learned Trial Judge erred in fact at paragraph 84 when he stated I gave no evidence to support a finding that I was a person who had specialised knowledge [of [jewellery] values] based on my training, study or experience. I did in fact argue that the husband and I had been wholesale [jewellery] dealers for the 16 years of our marriage. His Honour should have concluded I was arguing I had expertise; and
Ground 18 – The Learned Trial Judge, in failing to find in light of the evidence in relation to the ongoing buying and selling of [jewellery] outlined at paragraph 98 and an examination of the inclusion of $150,000 in “[jewellery] stock and equipment” in the fourth respondent’s loan applications from paragraphs 113 to 119, that the ‘[jewellery] stock and equipment’ did actually exist and stand alone from the collection further depleted the property pool by $150,000.
We will deal with these two grounds together.
These grounds raise the issue of the valuation of what the wife described as a ‘jewellery business’ as opposed to the ‘jewellery collection’.
On 23 July 1999 on behalf of the third respondent, the fourth respondent completed a Heritage Building Society Mortgage Insurance Application form in which she identified “jewellery, stock and equipment” said to be worth $150,000. The wife submitted that this was a different asset to the jewellery collection owned by the parties at separation and that at separation the husband and the wife operated a “small hobby [jewellery] business”.
Even if one were to accept that there was a separate jewellery business in existence in July 1999 with a value of $150,000 that, of itself, does not establish that there was such a business with such a value at the time of separation in 1994. There was no other evidence that could establish a value of a jewellery business in 1994.
This ground is not established.
Ground 22 – The learned Trial Judge erred in fact at paragraph 98 when he stated that by August 1995, the fourth respondent was the 20 year old partner of the husband and the mother of their first child. The fourth respondent was, in fact, 19 years old in August 1995 and the child his Honour refers to was not the husband’s but the child of the fourth respondent’ s former de facto husband, Mr [II]. To highlight Mr [Horleck’s] relationship to [the child] as significant after only five months of being his step-parent is not equitable given his Honour did not credit me with the raising of Mr [Horleck’s] children of his first marriage from infancy to adulthood.
The wife accepted in oral submissions that the errors identified by this ground were minor and would at best have only the slightest effect on the weight to be given to the wife’s contributions. This ground is not established.
Ground 23 – The learned Trial Judge erred in his discretion by failing to include the other subsequent properties he referred to in both paragraph 98 and paragraph 148 which were purchased and paid down through the continuing operation of our [jewellery] business and possible sale of parts of our [jewellery] collection in his deliberations and adding them (and their rental returns) in to the property pool. Those properties include: [Property 1] and [Property 2, LL Street], [MM Street] and [EE] Street.
The property at Property 1, LL Street was purchased on 30 July 1999. The property at Property 2, LL Street was purchased on 29 February 2000. The MM Street property was purchased on 9 August 2002. As best as can be seen the EE Street property was purchased after the MM Street property. All were purchased by the third respondent.
The wife’s complaint is that her following submission was not accepted:
Given the deposits and majority of the loan payments for the real properties at [I] Street, [Property 1, LL Street] and [Property 2, LL Street], [MM Street] and [EE] Street, likely came from monies generated by the original property pool, such as, rents, the continued operation of the [jewellery] business and possible sale of parts of the [jewellery] collection, the wife would have an equitable interest in those properties and their rental returns.
(Wife’s summary of argument filed 13 March 2015 at p 4)
Alternatively the wife sought that those assets be added back to the property pool.
The difficulty with this submission is the same and has already been dealt with when dealing with grounds 12 and 13 above. The evidence was incapable of showing what, if any, part of the jewellery collection and any jewellery business existed at the time of the separation. The properties could have been acquired by jewellery acquired post separation or by wages or business activities of the husband post separation. This ground is not established.
Ground 26 – The learned Trial Judge erred in relation to paragraph 179. Despite finding the husband had failed to indemnify me in relation to the [J] Street mortgage, he failed in not adding back the cost of sale amount into the property pool.
This ground asserts that, had the husband acted in accordance with the orders, the sale of the J Street property would not have been necessary and therefore the costs of sale avoided thus leading to a surplus. The wife submitted that her principal trial affidavit identified the costs of sale that were wasted, but it does not. Therefore this ground is not established.
Grounds 31 – The learned Trial Judge erred in his findings in paragraphs 270 to 272 when he apportioned an excessive share of [I] Street to Ms [Lyman-Horleck] apparently on the grounds that the property was purchased in her name and she had Mr [Horleck’s] child. He failed to give sufficient weight to the fact that the fourth respondent had no income and no assets at the time of the taking out of the loan over [I] Street and continued to have no income and no assets right up to it being fully paid off and the child was hers from a previous relationship; and
Ground 32 – The learned Trial Judge also failed to give sufficient weight to his findings that the property was purchased in the fourth respondent’s name merely as a precaution to circumvent any action I may take to enforce Butler J’s Judgment Orders of only one month before.
Ground 39 – The learned Trial Judge failed to give weight, or no sufficient weight, to rents from the former matrimonial properties between the Butler J Hearing of May 1995 to sale.
This submission is essentially the same as the submission considered under grounds 12 and 13. The fourth respondent was the borrower. The evidence does not establish how she repaid the mortgage but it would not be surprising if it was repaid from rents, wages received by the husband and possibly proceeds of jewellery. Once again these facts do not compel a finding that the sums used to repay the mortgage came from sales of jewellery held by the parties at the time of separation.
Essentially, this is a complaint that the trial judge did not give weight to the value of the jewellery collection other than the $39,000 already identified. His Honour did take into account that these were other items of jewellery that acted as the springboard for later property acquisitions but as his Honour said, the evidence did not enable him to quantify it.
These grounds also point to the trial judge giving insufficient weight to the $50,000 benefit the husband received from the borrowing on the J Street property and the unpaid rates and rents. The trial judge expressly took those matters into account in determining what order should be made under s 79 and it is impossible to say that the figure of $220,000, ultimately derived by him ignores that finding. These grounds do not succeed.
Ground 33 – The learned Trial Judge failed to give sufficient weight, at paragraph 276, to the fact that the evidence was I did not go bankrupt to avoid my obligations. I went bankrupt by my own application to maintain some dignity in a difficult situation after writing to all my creditors to make arrangements to pay my accounts and being threatened with bankruptcy by … because I was not in a position to pay their account immediately. Being a bankrupt exposes you to scrutiny and dishonour which has an impact on you for the rest of your life; and
Ground 34 – The learned Trial Judge also failed to give weight to the fact that my bankruptcy was the direct result of the husband’s actions in denying me my rightful entitlements under Butler J’s Orders. To be further punished for his actions is unjust and inequitable. This is especially so given the husband and Ms [Lyman-Horleck] directly benefit to the extent I am being penalised. His Honour has, in fact, rewarded them for their actions. This is a wrongful exercise of discretion.
At [276] the trial judge said:
Under the 1995 Order, the wife was to receive an unencumbered home and cash of somewhere around $80,000. She would have had to pay her solicitors all of that cash, plus a little more, but as she did never receive it, she could not pay them and she went into bankruptcy thus extinguishing that debt. I do not consider it appropriate that she now profit from the fact of that bankruptcy.
The wife took this paragraph to be critical of her. We do not consider it to be at all critical of her but merely noting the consequence of her bankruptcy being that she no longer had the obligation to pay her solicitors the debt of over $80,000. Therefore that debt no longer needed to be taken into account as an obligation the wife was required to repay.
This was an entirely proper course of reasoning and this ground is not established.
Ground 35 – In relation to paragraph 279, the learned Trial Judge failed to give sufficient weight to the evidence of documented amounts paid into property purchases and put into the respondent’s bank accounts at various times when looking at the issue of amending the value of the [jewellery] collection.
Ground 41 – The learned Trial Judge failed to give weight, or no sufficient weight, to the subsequent properties he acknowledged were purchased and at least partially paid for with [jewellery] monies and;
Ground 42- The learned Trial Judge erred in his discretion by failing to take into account the rents from the [U] Street, [M Street], [I] Street, [Property 1, LL Street], [Property 2, LL Street], [MM Street] and [EE] Street properties between 1995 and today – [G] Street being the first and fourth respondent’s residence since purchase.
This issue again canvases, in a general way, the valuation of the jewellery collection. This issue has already been adequately addressed elsewhere and it is sufficient to say that this ground is not established.
Ground 40 – The learned Trial Judge failed to give weight, or no sufficient weight, to the financial loss of a chance I suffered in relation to my failed purchase of the real property at [TT] Street, [Suburb PP], directly caused by the failure of [E] Street being transferred into my name. The value of the property, given it is a double block with two street frontage in a prime location in [Suburb PP] would have risen greatly since I contracted to buy it in 1996.
Whilst we do not necessarily accept that the loss of a chance to purchase a property is something that should have been taken into account by the trial judge, the failure of the wife to adduce evidence as to the values of the property that she said she would have acquired at the time of the hearing is a fatal flaw in establishing this ground of appeal.
Ground 43 – The learned Trial Judge failed to give weight or sufficient weight to the evidence regarding the stated deterioration of my mental and physical health caused by the respondent’s complaints to various government departments, threats to my support network and attempts to have me committed under Justice Examination Orders (twice).
At [252] the trial judge said:
The wife’s state of mental and emotional health deteriorated at the same time. She developed the mental health disorder that I am satisfied she has – Dissociative Personality Disorder. She received nothing from the property adjustment Order when she clearly should have received a home and some money. She received, I am satisfied, negligible practical or financial assistance from the husband for the support of their three children as she needed it, and one of those children suffered from Asperger’s Syndrome.
The trial judge was therefore clearly aware of the physical and mental health of the wife. It cannot be said that the sum awarded by the trial judge fails to adequately deal with that issue. This ground is not established.
Ground 37 – What I asked for is in line with my entitlements from Butler J’s Orders if the [jewellery] collection’s value was amended to $200,000 and the [jewellery] business was added in at a value of $150,000; plus the interest which would have accrued over the years. This is totally without any accounting for rents, etc. being added in; and
Ground 38 – The Learned Trial Judge exercised his discretion wrongly by awarding me less than I would have received under the 1995 orders given he found in my favour on nearly all points and the interest on the original amount over the intervening 19 years would have taken my entitlements to well over $220,000. My former barrister, Catherine Cuthbert, calculated my entitlement to 2006 with Family Court interest to be $595,496.94 ($1,156,409.80 with adjustment of the [jewellery] collection value). This did not even take into account the rents collected on [E] Street, [M Street] and [U] Street over the years. Nor did it take into account the subsequent properties and their rents or the [jewellery] stock and equipment; and
Ground 44 – Upon, the facts, the learned Trial Judge’s order is unreasonable and unjust.
The trial judge was placed in a difficult position by the manner in which the trial was run by the wife, who was appearing for herself. Because no values could be ascribed to properties that the wife asserted form part of the divisible pool of property, it was impossible for him to accept the wife’s submissions that she should receive 80 per cent of that pool. Rather, the trial judge was forced to derive a figure, as best he could, that represented an appropriate payment to the wife taking into account the property discussed in the judgment, the parties’ contributions and the s 75(2) factors. We are not satisfied that the trial judge’s determination was anything other than an appropriate one.
In submissions dealing with this ground the wife returned again to the U Street and M Street properties asserting that she remained, at least in equity, a
co-owner of those properties, thus entitled to half of the value and half of the rent. The trial judge did not ignore the wife’s claims in relation to these properties. Indeed, in the event that the $220,000 was not paid by the husband to the wife as ordered, the transactions by which the husband disposed of those properties were to be set aside under s 106B of the Act and the husband’s interest in those properties made available to meet the order for the payment of $220,000.
Whilst the wife maintained that a proper order in her favour would have been of the order of $1.6 million, we agree with the trial judge that that was simply not achievable on the evidence before him. We are not satisfied that there was any error in the approach of the trial judge and this ground also fails.
It follows that the appeal will be dismissed.
Appeal against the stay orders – NA 28/2015
The wife had lodged caveats protecting the interests she said she had in the properties:
·MM Street, Suburb DE
·M Street, Suburb C
·Property 1, LL Street, Suburb BC
·Property 2, LL Street, Suburb BC
·U Street, Suburb B
·I Street, Suburb F
Shortly after the judgment was given in the proceedings on 5 September 2014, the husband made the payment of $220,000 ordered by the trial judge. Order 7 of the orders made that day provided that upon that payment the husband shall retain as his own all of his interests in real and personal property. He then accordingly sought to have the wife’s caveats removed.
That application was countered by an application of the wife seeking to stay all of the orders made by the trial judge on 5 September 2014 other than for Order 2 which provided for the payment of the $220,000.
On 13 April 2015 Forrest J refused to stay the orders. Instead he made the following orders:
1.That upon filing in the Brisbane Registry of this Court of personal undertakings given by Mr [Horleck] and by [Ms Lyman-Horleck] in terms set out in documents described as Attachment A and Attachment B to these Orders, such filing to be verified by email from the Judge’s Associate to Ms [Horleck] confirming the filing of such undertakings, Ms [Horleck] shall take all steps necessary to cause caveats that she has caused to be registered over properties situated at:
(i)[MM Street, Suburb DE];
(ii)[M Street, Suburb C];
(iii)[Property 1, LL Street, Suburb BC];
(iv)[Property 2, LL Street, Suburb BC];
(v)[U] Street, [Suburb B]; and
(vi)[I] Street, [Suburb F];
to be removed as soon thereafter as possible.
2.That Ms [Horleck] shall advise Mr [Horleck] and [Ms Lyman-Horleck] by email when she considers she has taken all steps necessary to cause those caveats to be removed.
3.That both Mr [Horleck] and [Ms Lyman-Horleck] shall cause Ms [Horleck] to be provided with copies of all documentation that they obtain from mortgagees of any of the properties referred to in the undertakings required of them that verifies that they have complied with the undertaking insofar as they are only seeking to refinance the existing debt and not increase it.
The wife now appeals against those orders.
The appeal has become moot. The husband and the fourth respondent did not file the undertakings referred to in the orders of the trial judge and accordingly the caveats remain in place. The caveats will thus stay in place until the delivery of these reasons. In those circumstances, we simply say that we are not satisfied that there was any error in the approach of the trial judge and that the appeal will be dismissed.
Costs
As is usual, submissions were sought from the parties as to costs. The submission of each of the parties was that in the event the appeal was unsuccessful there should be no order as to costs. The appeal has been unsuccessful and the appropriate order is therefore that there be no order as to costs.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy & Aldridge JJ) delivered on 21 August 2015.
Associate:
Date: 21 August 2015
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