Hsiao v Fazarri

[2020] HCATrans 105

[2020] HCATrans 105

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M137 of 2019

B e t w e e n -

HSIAO

Appellant

and

FAZARRI

Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY AND MELBOURNE

ON FRIDAY, 7 AUGUST 2020, AT 9.46 AM

Copyright in the High Court of Australia

MR A.J. MYERS, QC:   May it please the Court, I appear with MR M.C. HINES and MR S.J. MOLONEY for the appellant.  (instructed by GTC Lawyers)

MR B.W. WALKER, SC:   May I please the Court, I appear with my learned friends, MR A.M. DINELLI and MS N.A. WOOTTON, for the respondent.  (instructed by Taussig Cherrie Fildes)

KIEFEL CJ:   Yes, Mr Myers.

MR MYERS:   Thank you, your Honour.  In this matter the appellant seeks an order for payment to her of one half of the value of the G Street property as at the date of the trial, that is, she seeks an order for one half of $3,070,000, the value determined by the Court of Appeal less the $100,000 paid to her by the respondent.  The value of the property appears from the decision of the Full Court, paragraph 15, and it is in the core appeal book at page 66. 

I should point out to the Court that the notice of appeal of 23 October 2019 in paragraph 3(b)(i) refers to an order – that is at page 93 of the core appeal book – that in addition to 100,000 paid to the appellant the respondent will pay 50 per cent of the current value of the G Street property.  Now, in two respects, we are not seeking that order.  First of all, we acknowledge that we should give credit for the $100,000 and we are content with the $3,070,000 valuation determined below.

KEANE J:   Mr Myers, can I interrupt you just on this point.  The property was unencumbered as at the date of trial.  Does it appear anywhere whether the mortgage debt on the property was discharged before the parties separated?

MR MYERS:   There was never a mortgage debt, your Honour.  Now, I do not know at my fingertips why I know that, but in the papers it does appear that there was never a mortgage debt.  If one looks, for example, at one of the documents that leave was sought to tender, which is a document produced by the Registrar of Titles setting out the registration of the interest of the parties as joint tenants, there is no mortgage appears on that.  So that shows that there was never a mortgage. 

The reference to that is at the appellant’s book of further materials at page 126 if the Court wishes to look at it.  It refers, at about line 35 to “RESULTING PROPRIETORSHIP”.  That is the first case where the respondent acquires nine‑tenths and the appellant one‑tenth as tenants in common.  There is no mortgage there.  Then at line 45, thereabouts, there is a transfer from the respondent and the appellant to themselves as joint tenants and there is no mortgage appears there.

KEANE J:   Mr Myers, at page 127 there is a reference to a mortgage to the ANZ.

BELL J:   The Full Court deal with this at paragraphs 57 and following.  The Full Court’s analysis is that it was clear the G Street property had been purchased in part with funds borrowed by the respondent, but those borrowings were not secured over the property and that the primary judge’s reference to the use of the word “mortgage” is to be understood as synonymous with the word “borrowing”.  That is at combined appeal book 76, paragraph 59.

MR MYERS:   With respect, I agree with that, and as to the reference to page 127, that is a reference to a mortgage that was on the title when the property was owned by the previous proprietor.  If you look at page 126, it says, “STATEMENT END” and then on the next page there is a history of a dealing in the land which was in relation to its ownership by a previous proprietor.

KEANE J:   Thank you.

KIEFEL CJ:   I am sorry, Mr Myers, while you are interrupted, I omitted to inform the parties that the Court will not be having a morning break this morning, but it will be adjourning somewhat early for lunch at 12.30 and then resuming at 2.00 pm.

MR MYERS:   Thank you very much, your Honour.  That is the position as we put it in relation to the proprietorship and there is no evidence that there was ever a mortgage over the property at the time it was in the proprietorship of either the respondent or the appellant.

KEANE J:   Insofar as the primary judge said that the property was unencumbered at the date of the trial, are we to take that as meaning that the borrowing by which it was purchased had been repaid by the date of the trial?

MR MYERS:   The trial - I do not know, is the answer.  We do not know.  There is some confusion about this because the trial judge did refer to borrowing and encumbrance as possibly being the same.

KEANE J:   Yes.

MR MYERS:   We do not know.

KEANE J:   I take it we also do not know whether the borrowing was discharged during the period of the marriage, before separation?

MR MYERS: We do not know. But we do know, in my respectful submission, that the property was never encumbered. I was simply beginning to deal with the issue concerning the G Street property, as it is called. May I add one thing. The appellant now seeks, as I said before, the value at the date of the trial, less the 100,000, and also seeks interest under section 117B of the Family Law Act.  I will not take your Honours to that.

I believe that I have dealt with then the history of the proprietorship of the G Street property.  It was purchased by the respondent in April 2014.  In April 2014 it was transferred to the respondent and the appellant as tenants in common, the respondent holding nine‑tenths and the appellant one‑tenth, as appears from the Full Court in the core appeal book at page 65, paragraph 11.

I have referred to the appellant’s book of further materials at page 126 and I have referred to the instrument of transfer from the tenants in common to themselves as joint tenants, which is referred to at page 126 of the appellant’s book of further materials.  The instrument of transfer itself is at the appellant’s book of further materials at page 104 and you will see that this document records the transfer which created the joint tenancy, and under “Consideration” the entry is:

The Natural Love and Affection the first named Transferor has for his domestic partner being the second named Transferee –

The trial judge, whose findings were not disturbed by the Full Court, found that the appellant and the respondent held the property as joint tenants, that there was no trust arising favouring the husband and that the husband does not dispute the joint proprietorship.  That is in paragraph 52 of the trial judge’s reasons for decision at the core book at page 15. 

The trial judge also held that unlike the 10 per cent, the joint tenancy transfer could not be seen as a gift because the wife pressured him, that is the husband, at a vulnerable time.  That is at paragraphs 51 and 52 and it is also referred to in paragraph 84 of the trial judge’s reasons.  But neither the trial judge nor the Full Court explained the significance of a finding that the transfer was not a gift.  Neither the trial judge nor the Full Court decided that any resulting trust for the respondent existed or that the joint tenancy transfer was void or voidable for duress or as an unconscionable transaction.  Reading my learned friend’s outline this morning it appears that that is not contested.  So, whatever is the significance of the suggestion that it was not a gift, it is not a consequence that there was not a joint tenancy. 

Now, in March 2015, shortly after the joint tenancy was created, and at page 126 that I had taken your Honours to before, it appears that the joint tenancy transfer was registered on 27 February, then in March a deed of gift is created.  The deed of gift is also in the appellant’s book of further materials at page 9 - it begins on page 8, perhaps.  If I could take the Court to this document, it is really crucial. 

It is described as a deed of gift, it is not dated, but your Honours will see on page 11 that it is executed both by the respondent and the appellant and it is executed and delivered as a deed, as appears from page 10.  The parties are identified as [the husband] and [the wife] on page 9.  The property, the G Street property is identified by reference to a certificate of title, volume, and folio.  [The wife’s] brother and sister are mentioned, and the gift of $1 million is mentioned.  Then there are some introductory facts stated:

[The husband] and [the wife] are currently the registered proprietors of the Property by way of joint tenancy.

That is true:

In the event that [the wife] predeceases [the husband], [the husband] intends to make a gift of one million Australian dollars ($1,000,000.00) to [the wife’s] Brother and [the wife’s] Sister in equal parts so that they receive $500,000 each.

Then there is the operative part of the deed:

1.In the event [the wife] predeceases [the husband], and the parties still own the Property as joint tenants, the parties agree and acknowledge that sole ownership of the Property will devolve to [the husband] as the survivor and the terms of this Deed will apply.

2.In these circumstances, the parties agree that [the husband] will pay the Gift to [the wife’s] Brother and Sister in equal parts of $500,000 each.

So that is the event in which those payments are to be made.  Then in paragraphs 3, 4, 5, and 6, the consequences, or some of the consequences of that agreement to pay two amounts of $500,000 are dealt with.  Then in paragraph 7 it is said:

The parties agree that this Deed will have no application in the event that:

(a)The Parties do not own the Property as joint tenants as at the date of [the wife’s] death; or

(b)[The husband] predeceases [the wife].

All that is obvious enough.  Then paragraph 8 is of particular importance, in our contention.

8.(a)If the parties are separated or divorced and the Property is still owned by the parties as joint tenants, any property settlement or Family Court proceedings will take into account any payment made or to be made under this Deed by [the husband].

(b)The payment under 8(a) will be -

So it is contemplating in 8(a) the payment mentioned in (b):

(i)$1 million if [the wife] and [the husband] have any children together which [the husband] is supporting financially whether part of any settlement or court proceedings or otherwise; or

(ii)half the value of the Property with a minimum of $1 million if [the husband] and [the wife] do not have any children,

and such payment will be taken into account as part of the Property Settlement or Court proceedings.

00So that clause 8(b)(ii) in particular contemplates the very circumstances that were before the Family Court, that the parties are separated or divorced, the property is still owned by the parties as joint tenants, a payment will be made if there are no children, as provided in (ii) and:

half the value of the Property with a minimum of $1 million if –

there are no children.  So that is the situation that the parties agreed to.

KEANE J:   And that payment is to the brother and sister?

MR MYERS:   No, no.  That is a payment.  There is no question of a brother and the sister then.  This is if the parties are separated or divorced and the property is owned by them as joint tenants.  The payment under 8(a) is a payment in a situation where they are separated or divorced.  All the previous payments related to a situation where [the wife] was dead.  This is a different state of affairs where she is not dead and the ‑ ‑ ‑

BELL J:   Does not 8(c) suggest that the intention is to make provision in circumstances in which the appellant dies before the final property settlement?

MR MYERS:   No, we say not.  It is not so limited.  It is something that applies if they are separated or divorced.  It also applies where the parties have separated or divorced and [the wife] predeceases [the husband] before a final property settlement is agreed or determined.  We say that it deals with two cases:  one where they are simply separated or divorced, and the other where they have separated or divorced and [the wife] predeceases [the husband] before a final property settlement is agreed or determined.

KEANE J:   But the deed is entirely about making a gift to the brother and sister.  There is no suggestion that there is going to be any payment to [the wife].

MR MYERS:   Well, we say not so.  The payment to the brother and sister is exhaustively dealt with in paragraphs 1 to 6.  Even if that were wrong what the deed contemplates is that there is going to be a payment either for the benefit of [the wife] or those who she has an interest in supporting.

KIEFEL CJ:   Mr Myers, it might be as well to refer to the parties as “the husband” and “the wife”, rather than by reference to their first names.

MR MYERS:   Thank you very much.  I am happy to do that.  I was simply adopting, your Honour, the language that is used in the deed.

KIEFEL CJ:   Yes, of course.  It is just that the Family Court provisions in relation to anonymity are taken rather seriously.

MR MYERS:   Yes, I beg your Honour’s pardon.  That is certainly so.  Our contention is that the consequence of this deed is that whatever happens, whether there is a death, a separation or a divorce, [the wife] will receive, or her interest will receive, payments respectively of $500,000 in certain events, or in other events one half of the value of the property of $1 million.

KIEFEL CJ:   Mr Myers, in using somewhat old‑fashioned language, would you say that this deed was made in contemplation of marriage?

MR MYERS:   Yes, it was.

KIEFEL CJ:   And therefore in contemplation of a relationship which would be of long standing?

MR MYERS:   That is so.  We say that, and it was something I was going to come to, your Honour.  But I am grateful for your Honour’s intervention there – we certainly say that.  It is apparent that it contemplates marriage; the references to separation or divorce make that clear.  I think I have said what I wish to say concerning that deed of gift.

KIEFEL CJ:   Mr Myers, would you also accept that the transfer which preceded the deed was also made in contemplation of marriage and a longstanding relationship?

MR MYERS:   Yes, it was.  I read the portion of the transfer upon which I rely in that respect.

KIEFEL CJ:   Yes.

MR MYERS:   What we do say is that clause 8(b)(ii) contemplates the very circumstances that were before the court in which there was to be a payment and it is not contemplated there is a payment to the wife’s siblings.  It must be contemplated there is a payment to the wife where there is a separation or divorce, the property is owned by the parties as a joint tenant, and the payment is of one half of the value of the property, with a minimum of $1 million.  It cannot be regarded as a payment to the siblings.  It is plainly intended to be a payment to the wife.

We acknowledge that the deed of gift was not a financial agreement within the meaning of section 71A of the Family Law Act.  We point out that the trial judge did not refer to clause 8 of the deed of gift.  In paragraph 57, he said:

Because of the orders I intend to make, the parties will immediately no longer own the property as joint tenants.  I propose to sever the tenancy by the orders and that brings the application of the deed to an end.

The Full Court quoted clause 8 in paragraph 68 of their reasons for decision and simply said the primary judge was aware of the terms of the deed and set out the text of clause 7, as indeed he did, and they said in paragraph 72:

There is no basis to suggest that the primary judge failed to take the deed into account when making findings about what had happened when the respondent signed the transfer in December 2014.

But the fact is the trial judge, as we respectfully submit, misunderstood the effect of the deed of gift and the fact that he did not refer to clause 8 makes it clear that he did not take the clause into account.  He did not understand that the deed was an affirmation of the joint tenancy as constituting beneficial interests in the property of the joint tenants respectively and ‑ ‑ ‑

KIEFEL CJ:   Mr Myers, when you refer to the word “affirmation” are you talking about some legal effect or are you referring to the evidentiary value of the deed?

MR MYERS:   The evidentiary value of the deed ‑ ‑ ‑

KIEFEL CJ:   Yes, thank you.

MR MYERS:   ‑ ‑ ‑ because there is no need for an affirmation in the legal sense because it is accepted there was a joint tenancy in any event.

KEANE J:   Mr Myers, does it appear anywhere that it was put to the trial judge that he should treat the deed as an affirmation that precluded his Honour from relying upon the transfer as void or voidable?  Was it intended in any material that had been put before the judge by the wife that he should so regard it?

MR MYERS:   The answer is no because the wife did not appear and there were no written submissions.

KEANE J:   No, but in the material that had been filed on her behalf previously was a contention to this effect made so that it would be brought to the attention of the judge?

MR MYERS:   I cannot say because I do not know.  The wife was not present.  I have not examined any transcript of the proceedings before the judge but certainly the deed of gift was put before him and he was capable therefore of reading the entirety of it.  It was obviously a highly relevant, we would say, document and he did not even refer to clause 8, which, we say with respect, is a startling omission in the circumstances.  Even if there be different possible views about what the deed of gift does, it is clear enough that clause 8 is in some sense directed to the very circumstances that are before the trial judge.

KEANE J:   On any view, it is a very unusual transaction that the deed accomplishes.  If it were the case that an issue had been raised as to whether the deed amounted to an affirmation that prevented a conclusion that the original transfer was voidable then, if that contention had been made, there may have been an argument to the contrary that may have been the subject of evidence but we just do not know because that contention was never made to the judge.

MR MYERS:   I am constrained to agree with your Honour, of course, but the fact of it is that in the circumstances that existed at the time of the trial before the Full Court and now in the end there is not a contention put forward that the joint tenancy was not intended to operate in law and beneficially.  In other words, it was a simple legal joint tenancy with all the consequences of…..The deed, though, as between the parties, constitutes an agreement modifying those consequences of a legal joint tenancy.  One of the things that it does is modify those consequences for particular purposes in clause 8.

We contend that it is a very powerful statement of the party’s intention and expectation that if there is a joint tenancy and they are separated or divorced and there are no children, one half of the value of the property with a minimum of a $1 million will be paid and the only person to whom it can be paid is the wife.  It cannot be paid to anyone else.

KEANE J:   You assert that quite vigorously, but we look at the deed and the deed contemplates a payment only to the brother and sister, at least on one view.

MR MYERS:   Yes, of course I accept that, your Honour.  Every issue of construction is, in the end, in some sense a matter of impression but what we urge is that the very strong impression that a reasonable reader of this document would receive is that there not being a necessity for a payment directly to the siblings as there is in the circumstances dealt with by the first part of the deed, that is, the death of the wife, then the only possible payment that can be contemplated is one to the other party to the deed and it refers to property settlements or Family Court proceedings.  In those circumstances, the payment, if there be one, can only be to the other party of the marriage.

KIEFEL CJ:   Mr Myers, two things I think arise out of what you are now submitting.  The first is that your argument seems to imply that the court would be bound by this deed in relation to payments to the wife’s siblings, but I do not think that can be the case in relation to property proceedings, can it?

MR MYERS:   No, your Honour, I am not contending that – far from it.  I am not contending that the court would be bound by the deed in relation to Family Court proceedings.

KIEFEL CJ:   Yes.

MR MYERS:   But what I am saying is that clause 8 contemplates Family Court proceedings – that is, proceedings between the parties to the marriage.

KIEFEL CJ:   Yes.  And, of course, the other matter is that the amount – if it be the case that it contemplates payment to the wife, as you suggest, that is not the amount, the quantum of the sum that the wife now seeks.

MR MYERS:   Yes, it is, with respect.  It is one half of the value of the property, with a minimum of $1 million.  So if the value of the property were $1.8 million, then under that clause, the wife would be entitled to $1 million.  But the value of the property being something over $3 million, the wife is entitled to $1,535,000.

KIEFEL CJ:   And, of course, once the wife made an application for property settlement under section 79, as she did, all of the parties ‑ the property of the marriage would have been available to meet her claim, which was much higher than she now seeks.

MR MYERS:   Yes, I agree with that.

KIEFEL CJ:   And the court would have had resort to any of the property of the marriage to meet her claim for one half of that property.

MR MYERS:   It could have done, it could have done.  But coming to the terms of the Family Law Act, the preliminary question always arises concerning section 79(2), of the court being satisfied that an amount is “just and equitable”.  I will come to that in a moment, if I may.

KIEFEL CJ:   Yes.

BELL J:   Before you leave the deed, can I just ask, Mr Myers, I understand your submissions concerning the significance of clause 8 on the construction of clause 8 that you invite the Court to adopt.  But if one understands clause 8 as catering for the position in the event that the parties have separated or divorced and the wife predeceases the husband before a final settlement is agreed or determined, does that take away the significance of the deed insofar as you contend error on the part of the trial judge in failing to at least give consideration to the circumstances that the parties had addressed the very eventuality that had occurred, and had agreed to deal with it in the manner that you invite the Court to suggest clause 8 is to be understood is?

MR MYERS:   With respect, your Honour, no it does not.  As I have put it, I have not put it as my primary submission in this regard, the construction upon which your Honour’s observation is based, but nonetheless the point is still to be made even in the event of the parties having separated and the wife having predeceased the husband before a final settlement is agreed or determined, the deed says that there the payment provided for in clause 8 should be made.

Now, exactly to whom and under what circumstances, it is a little difficult to say, but wherever one turns in relation to clause 8, there is the underlying assumption that this is a joint property subject to issues concerning siblings’ entitlements and children’s support, if they are not present, then one half of the value of the property is allowed to the wife.  Another way of putting it is that clause 8, on any construction, contemplates the retention of rights associated with, or flowing from, the wife’s joint tenancy.

GORDON J:   Mr Myers, is one other consequence that flows from that that the trial judge’s focus on the circumstances in which the transfer was executed falls away?

MR MYERS:   I beg your Honour’s pardon, I cannot hear your Honour.  I can hear that your Honour is speaking, but I cannot make out the words.  I am terribly sorry.

GORDON J:   That is all right.  Is one other consequence of that submission that you just made, that is, whatever construction is put on clause 8, that the existence of the deed is an answer to the circumstances the trial judge took into account regarding the execution of the transfer?

MR MYERS:   Yes, I respectfully adopt what your Honour has said, and I believe that perhaps awkwardly, I put or intended to put that submission earlier.  The Court will be familiar with Stanford, and I would simply like to briefly remind the Court of a particular passage in Stanford, which is to be found in the amended joint book of authorities volume 3, and I am going to go to page 380 of that.  The Court there deals with the operation of section 79 at line 35 and following, and refers to section 79(2) ‑ I am sorry, paragraph 35, and at paragraph 36 says:

The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations.

Then it goes on to say:

It is not possible to chart its metes and bounds.  And while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.

The Court points out:

First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.

We know that, a joint tenancy:

Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion.

Then, over the page, there is a quotation from Watson; Ex parte Armstrong:

“The judge called upon to decide proceedings of that kind is not entitled to do what has been described as ‘palm tree justice’.

An old‑fashioned expression now, one does not see it so often that Lord Denning is not about:

No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down.

Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist.

Then, I will skim down to paragraph 40:

Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters . . . set out in s 79(4).  The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.  To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

Then, there is reference in paragraph 41:

Adherence to these fundamental propositions in exercising the power in s 79 gives due recognition to “the need to preserve and protect the institution of marriage” –

Then, at the bottom of the page in the last line:

If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot . . . make a property settlement order under s 79.

So, that is not our case, we acknowledge that:

But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact.

Then, if I could drop down to line 10:

These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage.  The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

Now, there was here a joint tenancy and the deed of gift has, as its underlying…..statement, that whatever happens the deed of gift or the entitlements of the wife under the deed of gift will be recognised, including as clause 8 says, in:

any property settlement or Family Court proceedings ‑ ‑ ‑

BELL J:   If one were to consider that the deed of gift was addressing the circumstance of the wife predeceasing the husband and addressing issues of survivorship in that context, that would be consistent with the view that the transfer was made in contemplation of marriage and expectations of a lengthy union.  It seems, if one looks at the primary judge’s analysis, his Honour at paragraph 77 cited passages from Stanford, to which you have just taken the Court, and the principal reason for the purposes of section 79(2) that the judge identified was the “lack of fulfilment” of the expectation in the context of a marriage that had lasted 23 days.  Now, was it not open to his Honour to regard that circumstance as a principal reason for determining, as each of the parties sought, an alteration of the property interests between them?

MR MYERS:   In my respectful submission, no, your Honour, for two reasons.  The first is that the husband made a gift of the joint tenancy to himself and his wife, and that was a gift made in contemplation of marriage and it was not conditioned upon the length of the marriage.  The deed of gift recognised a number of circumstances in which the underlying notion that the wife’s interest as a joint tenant would be sustained was recognised by the parties and one of those circumstances was where the parties are separated or divorced, and the property is still owned by them as joint tenants. 

So the gift having been made on an assumption that there would be a marriage, the assumption was fulfilled.  Furthermore, the deed of gift recognised that the marriage may not be long, or the marriage could come to an end by the wife or husband predeceasing the other.  It dealt with what was to happen with the value of the wife’s, or husband’s joint tenancy interests in those circumstances. 

What the deed of gift contemplates includes the very circumstance that was before the court, though divorced or separated.  There is nothing in this deed of gift which suggests that in any circumstance the joint tenancy interests of the wife will not, in a sense, be recognised or preserved, whether by payment to her siblings, whether by a payment to her.  We say that that is very clear and I think that, with respect, is the answer to your Honour’s question.

KIEFEL CJ:   But Mr Myers, regardless of what are the existing rights and interests of the parties and regardless of what appears in the deed, as is said in Stanford at paragraph 39:

The question presented by s 79 is whether those rights and interests should be altered. 

True, you have to have a principal basis for altering them but as Justice Bell has pointed out, his Honour identified at paragraphs 77 and 78 the lack of fulfillment of the expectation of a long-term relationship as that reason.  That is really the question, is it not, whether his Honour was right to identify that as a reason?

MR MYERS:   The gift of the joint tenancy was not made on the basis of any expected duration of marriage.  It was made on the basis of a marriage and the marriage occurred.

KIEFEL CJ:   I do not think many people enter a marriage thinking that it is going to last for 23 days, Mr Myers.  The courts are in a position to assume that people are rather more optimistic than that when they marry and when they are contemplating marriage in the period when the deed was made, and they think that they are going to have a long‑term relationship.  That is indeed why they marry.

MR MYERS:   I respectfully agree with your Honour.  What I am saying is that nonetheless when they married they were joint tenants and that joint tenancy was created, admittedly as a result of a gift by the husband, but it was a gift made in contemplation of marriage just as, for example, there might be a gift of a ring or something of that kind and then, after that gift was made, a formal instrument, a deed was entered into between the husband and wife dealing with a whole lot of different circumstances – I should not say “a whole lot” – various circumstances where the husband or wife might die or the parties are separated or divorced.  In all those circumstances the underlying assumption is that the benefit of the joint tenancy would inure to the wife or, if…..she is dead, to her siblings.

KIEFEL CJ:   Are you saying that the court, under section 79, cannot alter those rights and interests which exist at the time of separation and the time of the property settlement?

MR MYERS:   No, I am not saying that.  Of course I am not saying that, with respect, your Honour.  But I am saying that the judge should have given effect to his responsibilities to seek a principled answer by giving consideration to the deed, and he did not.  He simply did not.  He referred to clause 7, and that was all.

Your Honours, if I could just make a few observations about the deed of gift and these are, in a sense, repeated in our summary outline.  First of all, we point out that it is not clear as a first step that the legal and equitable interests of the parties to the marriage are identified.

My friend concedes today that there was a joint tenancy, and indeed the judge did so.  But the fact that there was a gift made does not affect the nature of the joint tenancy.  The starting point of the judge’s consideration should have been an unequivocal statement that there was a joint tenancy created by the gift, not simply to call into some sort of question whether the gift was freely given.

Second, the court identified the property of the parties to the marriage but when it has done so, it requires that the court must only make an order altering the interests of the parties of the marriage and the property, including an order for the settlement of the property in substitution for any interest in the property, if the court is satisfied that it is “just and equitable” in the circumstances.

Well, in the present case, in considering that question of whether something is just and equitable, the deed of gift should have been carefully considered by the court.  It was not considered by the judge at first instance, and the Court of Appeal simply said the judge was aware of the deed of gift and that was sufficient.

It is not sufficient, in our respectful submission, because – and I am repeating myself, I am conscious – that the deed of gift is based on the assumption that in the circumstances with which it deals, the wife’s interest as a joint tenant will be preserved in some sense, either by a payment of money or otherwise, including in the circumstances of Family Court proceedings.  That is what the parties agreed among themselves.  Why is it just and equitable that the court should disturb that without expressly referring to what the parties themselves agreed?

KIEFEL CJ:   Mr Myers, if you are right, and if the key to this matter is the primary judge’s lack of consideration of the terms of the deed, not the least because it was not put to him, putting that matter aside, if the exercise of the powers under section 79 are dependent upon questions such as that, would this matter not have to be remitted for another hearing?

MR MYERS:   We say no.  If the exercise of a discretion miscarries, an appeal court can re‑exercise the discretion if it is reasonably clear how it should be exercised.  I do not suggest that ‑ ‑ ‑ 

KIEFEL CJ:   But how can we come to that conclusion if the primary judge was not - if there was no argument presented by one party because the party absented themselves before the court and did not put the argument?

MR MYERS:   Because this Court has the facts before it, which are undisputed.  They are the facts of the deed.  The deed speaks for itself, and there is no need for a further hearing with all the attendant costs and trouble to the parties when it is clear that the deed was not properly considered, and if properly considered, if this Court is satisfied of this, is a basis for saying that the wife should have the value of one half of the joint tenancy property.  The Court of Appeal ‑ ‑ ‑ 

KEANE J:   Mr Myers, sorry to interrupt.

MR MYERS:   I beg your pardon, your Honour.

KEANE J:   Would it be a circumstance going to whether the orders were just and equitable that the debt incurred in order to buy the property was discharged solely by the husband after the relationship between the parties had broken down and they had separated, that is to say that the debt was repaid in circumstances where the relationship no longer existed?

MR MYERS:   Well, we do not know the answer to when the debt was repaid, I think, your Honour.  But if the Court thought that were unclear, then I would concede that ‑ ‑ ‑ 

KEANE J:   There would have to be a retrial.

MR MYERS:   I would concede that that would be a difficulty, yes.  But there is no evidence as to when the debt in relation to the acquisition of the joint tenancy was repaid.  We know that the joint tenancy was never encumbered with that debt, and that is a deliberate decision of the parties.  This was the matrimonial home ‑ ‑ ‑ 

KIEFEL CJ:   Mr Myers, the reason that there is no such evidence is that there was no issue about it - the husband was in a position where he was effectively conducting an uncontested hearing on his evidence.  There was no reason, perhaps, perceived to put on such evidence.  A difficulty for this Court, speaking for myself, is that the wife determined not to participate in the proceedings and yet we are now asked to give effect to arguments which were not presented to the primary judge and which it is now said he ought to have thought of himself.

MR MYERS:   With respect, your Honour, that is a rather strong way of putting it.  The deed of gift was before the primary judge, and the deed of gift says what it says.  The fact of the joint tenancy was before the primary judge.

They are relevant facts.  Another fact is being suggested or hypothesised, that the payment off of the debt created by the purchase of the house, if indeed there was one, was after the breakdown of the marital relationship.

The facts that we point to are that there is no mortgage on the title, there never was, it was intended to be unencumbered, and the deed of gift deals with the matter on the basis that there is no debt.  That is why it refers to, as it does in clause 8, one half of the value of the property.  The parties and the husband, one can only infer from the known facts, did not want this matter to be taken into account otherwise the property would have been encumbered, otherwise you would not have had clause 8 – I will lose track of it – 8(c)(ii) which simply refers, regardless of any debt in relation to the house, of receiving one half of the value of the property.

It is not dependent – the agreement between the parties formally entered into is not dependent on any consideration of debt.  The husband was a wealthy man, as appears.  He had assets of at least $9 million, and he managed to pay for the property without taking a mortgage.  They are the submissions that I wish to make in relation to the G Street property.

As to the admission of the further evidence, the Full Court dealt with it in two tranches, category A documents and evidence, and I have referred already to the principal category A documents and evidence.  If the Court would be good enough to look at the appellant’s book of further authorities.

GORDON J:   Do you mean further materials, Mr Myers?

MR MYERS:   You could not hear me, I am sorry?

GORDON J:   Do you mean further materials?

MR MYERS:   Yes, appellant’s book of further materials.  I said authorities, I am sorry, your Honour.  I am looking at page 62, which is the beginning of the principal affidavit of the wife of 19 November 2018.  If one goes to page 71, one can see a table of exhibits to that affidavit and they are [Exhibit] 1, 2 and so on.  The reference to document numbers in the Court of Appeal is a reference to the number of the exhibit, so document 2 is [Exhibit] 2, and so on.

Now, the documents beginning with [Exhibit] 2, which is at page 75 of the book – page 74 is the note of the exhibit – refers to the transfer of land.  Then in the second paragraph it refers to Form 9A.  It is worded in such a manner that in fact the wife only needs to sign it but not until she is in the presence of a qualified witness.  That document is at page 112 and following of this book and if the Court looks at page 114, item 7 at about line 17:

I am the domestic partner of the transferor listed above.  Although we are not married to each other we are domestic partners of each other and are living together as a couple on a genuine domestic basis (irrespective of gender) ‑

Now, that was, as Exhibit 2 shows, already completed and it was sent by the husband’s solicitor to the wife and she signed it before a person – one might infer a chemist, perhaps a pharmacist; yes, it is there at the top of page 115 ‑ and it was lodged.

This is, we say, powerful evidence that the husband understood that the wife was his domestic partner and acknowledged, although not married, that they were living together as a couple on a genuine domestic basis.  Earlier, I referred to the transfer itself.

KIEFEL CJ:   Mr Myers, was that in fact the case at this time, that they were living together?

MR MYERS:   That is what the husband says in this document and we accept it.  This is not a document that the husband produced at the trial – I acknowledge that.  There was a certainly a stamp duty advantage in making a declaration of this sort, but I am not saying it was false by any means.

KEANE J:   But it was made by your client.

MR MYERS:   It was, and by the husband because his solicitor sent that document, already made out, to the wife for her signature, requesting that she sign it.  If your Honours will recall, at page 104 of this book, the transfer itself, which is signed by the husband, says that the consideration is for the natural love and affection he has for his domestic partner, being the second‑named transferee.

KEANE J:   So that this document, you would say, would have been a powerful weapon in cross‑examination of the husband in relation to his evidence that the parties did not live together?

MR MYERS:   Well, it is powerful evidence under the husband’s signature that they did live together, even if there were never any cross‑examination about it.  These are formal documents, a transfer of land and a declaration that pertains to liability for stamp duty, by a solicitor.

BELL J:   But, Mr Myers, the husband gave evidence that they were not living together albeit they were in an intimate relationship.  One might draw inferences from the document and it might have been a strong weapon had the husband been cross‑examined.  But the fact is he was not.  What is the error of the Full Court in taking the view that, where these documents were in the possession of the wife and she chose not to participate in the hearing, there was no proper basis for receiving them on the appeal?

MR MYERS:   The documents were not in the possession of the wife.  She may have executed the documents or handled them at some time, but as her affidavit shows she had to make inquiries of statutory authorities to obtain the documents.

BELL J:   But I thought the finding was that she had access to all bar four documents.  Three of the ones she did not have access to she could readily

have obtained it, and the fourth was the medical certificate, which was dated after the hearing.  Is that not the position?

MR MYERS:   Yes, it is, but it conceals other relevant circumstances.  The husband had these documents too, and he did not put them forward.  He did not discover them.  He did not disclose them.  He did not put them forward to the judge at first instance.  If he had done so, it is unlikely that the judge would have concluded as he did.  That is all one can say about it. 

The wife, for whatever reason, did not participate in the trial and she has made an affidavit about the circumstances in which she got those documents.  I cannot take it beyond that.  We simply put it, in the end, that in relation to both categories of documents the decision of the Full Court was wrong. 

These documents, as a matter of justice, should have been received and if it were necessary to have a further trial, so be it.  But they are important documents.  They are formal documents that I am referring to and to simply go ahead and make a decision ignoring these documents is not just, in our respectful submission.

BELL J:   The other side of that coin might be that acceptance of the submission carries with it that at a party’s choice, one can render nugatory the trial.  A party can choose not to attend the trial and then say but look at all this powerful evidence that I chose not to adduce.  In the face of the inferences that one draws from these formal documents, the court must allow them to be admitted on appeal and make ‑ ‑ ‑

MR MYERS:   Your Honour, I can only say this.  The husband was a senior solicitor.  His wife was not present at the trial.  He was represented by Queen’s Counsel.  He did not put the documents forward.  The suggestion that he did not understand the significance of these documents will not be made, I think, by my learned friend.  The wife was not a practitioner.  She had illness, which is not exactly specified, but I do not believe that there is any suggestion that she was not ill, and the husband allowed the trial to go ahead without drawing to the court’s attention these important documents.

In any event, I can say no more about it.  I have described where it is that the documents can be found, and the documents that I have referred to, the transfer and the declaration are the most significant of those documents.  They are, I think, subject to any questions the Court may have, the submissions that I wish to make on behalf of the appellant.

KIEFEL CJ:   Yes, thank you, Mr Myers.  Yes, Mr Walker.

MR WALKER:   May it please the Court.  Your Honours, may I not so much…..as concertina some of the propositions in our outline in order to accommodate to the way in which our learned friend has put his main point and, accordingly, rather than start with what would now appear to be uncontentious common ground concerning what is to be…..from Stanford v Stanford, could I go immediately, please, to the deed, which is, of course, importantly to be understood as being in its full title, a deed of gift.

Pausing there, the notion of “gift” is of the gratuitous transfer of property from somebody who has it to somebody who does not have it.  There was no such dealing contemplated by this deed of gift passing from one joint tenant to another, leaving aside any questions of severance that might arise depending upon the nature of any such dealing, had it existed. 

Neither is there any gift from one joint tenant to the estate of the other so as to reflect what might be called a reversal of the jus accrescendi.  That distinctive defining characteristic, the right of survivorship, is scarcely, in our submission, to be understood as being reversed, that is, completely reversed, by a deed of gift which the parties unite in saying is premised upon the reality in all its aspects of the joint tenancy.

So, not surprisingly, that part of the document called “Introduction” that in an earlier time might have been called “Preamble” or “Recitals” one sees item (b) which describes the gift, the gift referred to in the title of the document and it is a gift to the wife’s siblings.  As my friend points out, detail is then devoted to what might be called the permutations created by the uncertainty of the future and, in particular, the dates about deaths in the following clauses 1, 2, 3, 4, 5 and 6. 

It does not matter for present purposes to critique in any way either the effectiveness or elegance of the drafting.  The intent is clear with respect to the nature of the gift.  If I may use language from another and not unrelated area of the law, it is as if there is a per stirpes approach being understood between the spouses, the joint tenants so that notwithstanding survivorship will operate there will be, nonetheless, enjoyed by the predeceasing wife’s connections that which might, all other things being equal, have been their expectation or hope had it not been a joint tenancy because, one will see, this is not a deed of gift that deals with all permutations which include, of course, that the husband may predecease the wife.

There is nothing here concerning the operation of the right of survivorship so that the wife would take, in the ordinary course, the benefit to be dealt with as she sees fit thereafter of the whole of the value, that is, the whole of the ownership of the property.

Against that background then, the critical…..7 and 8, in our submission, though they may not be the most straightforward piece of drafting are nonetheless unmistakable in their import, and I mean in the legal effect they would have leaving to one side the provisions of Part VIII of the Family Law Act. 

Now, I say leaving to one side that because issues that do not have to be determined but which are in the background concerning this deed is whether or not, for example, the siblings, upon it coming into operation, so‑called, would be able to sue to enforce those provisions as persons intended to be benefited, et cetera, et cetera.

We can leave that to one side at the moment and, in particular, simply note that whatever it means for this to be binding or not it plainly does not bind between the spouses in relation to their property interests amenable to orders under Part VIII for the reasons upon which the parties are united as common ground, see section 71A of the Act.

Thus, we come to clause 7 which uses the language of application.  The “Deed will have no application” in two kinds of events.  The first I have already mentioned - 7(b).  That would mean that the siblings of the wife notwithstanding that she would in that event have the whole, not merely half the equity in the property, they cannot look to anybody let alone to the husband’s estate for payment of $1 million or let alone, of course, half the value of the property. 

Clause 7(a) points, of course, to the possibilities concerning the existence of the right of survivorship at the time when it would otherwise take effect, namely, a death and simply points out, obviously enough, at least two possibilities.  The first is that the parties no longer own that property at all and, secondly, that if they do own it they no longer own it as joint tenants, whether the severance has come about by consent or unilateral conduct including, for example, by sales for the benefit of creditors.

So 7 was appropriately referred to, if very tersely, by the trial judge as explaining why the deed did not stand in the way of the working out of the orders he intended to make, given that the effect of the orders would be to bring about the state of affairs contemplated as applying some time in the future under 7(a).

Now, that may not have been literally correct, bearing in mind that who knows what might happen in the future and it is not impossible that the parties would reunite and buy back the property and have it as joint tenants, and that be the case when the wife died.  But that is so fantastic and theoretical a possibility that his Honour’s observation really cannot be faulted and certainly did not…..error.

So then we come to the critical provision in our learned friend’s argument and for the reason I am about to put neither did their Honours below, at first instance or in the Full Court, make any relevant error pertaining to clause 8, neither should this Court see clause 8 as in any way conducing to an outcome requiring this Court to substitute its view of a section 79 application……outcome or the burden of a retrial so that a party may put what a party had full opportunity to put below but did not.

In clause 8(a) there is provision made, when read together with 8 (c), particularly its last sentence about no intention for the husband to pay twice…..be understood 8(a) refers to the possibility of this deed operating either potentially, if no one has yet died, or actually if the wife has died. Your Honours will recall that under subsection 79(8) of the Family Law Act such an application does not abate on death but needs thereafter, so far as the jurisdiction to make an order is concerned, to take into account what might be called the appropriateness of orders being made if there would have been orders made but for the death.

Now, it is clear that so far as Family Court proceedings are concerned and therefore any property settlement negotiated by reference to possibilities in contested proceedings, whether there is a degree of artlessness in the drafting, saying or stipulating between these parties in the passive voice that the payment made or to be made under the deed will be taken into account.

A judge of the Family Court would be obliged, obviously enough, to take a fairly tight view of any attempt to tie his or her hands in that respect, which does not mean it would not be taken into account, which may be, with respect, a way to understand the argument against us concerning this deed – namely, that an argument about the deed, clause 8, might have been a useful bolster to some aspect or other of a case that the wife freely chose not to present.

None of that, of course, shows error either at first instance, let alone that which is relevant to this Court, by the Full Court in its appellate review of both the discretions as to procedure and the discretion as to a substantive outcome.

Taking into account any payment made is, of course, that which is premised upon two things at least being true.  The first is that at some time preceding the making of that payment there had been the death of the wife and, second, that at that time the property was still held by them as joint tenants.  That is the only way that one can read the deed as a whole, including the interaction of clauses 7 and 8. 

The payment to be made is only to siblings, so far as we can see, subject to what I am about to say about 8(b)(ii).  That means that the parties are contemplating or at least they would deal with a possible situation where there were proceedings in the Family Court pending but not concluded at the time of the wife’s death, while the parties still held the property as joint tenants.  That, of course, is expressly emphasised by the repetition of that condition of still being “owned by the parties as joint tenants” in the opening phrase of clause 8(a) itself.

So then we come in 8(b) to what is merely a stipulation of the payment.  It is a stipulation not of when or to whom or by whom a payment is to be made but rather as to its amount because when, by whom and to whom has been dealt with elsewhere in the deed, starting with introduction B, going to the main or primary provision which is clause 2.  So 8(b)(ii) properly understood simply refers to the permutation that arises depending upon whether there are any children of the marriage - dependent children. 

It would appear as a matter of interpretation that that raises a question not answered in the courts below and not answered in the arguments of the parties before your Honours and not requiring answer as to how one understands the difference between clause 2’s stipulation of half a million dollars to two siblings to make $1 million and the half value which one sees stipulated – I think the only place where it is stipulated – in 8(b)(ii).

Again one notes that there is an attempt to render relevant, because it could not bind, and the making of any such payment as part of the property settlement or court proceedings.  And that certainly does not amount to an inevitable, implicit stipulation that that is a payment to the wife, or to the wife’s estate.  The words can accommodate that, but it certainly does not require that.

What it does require is that payment made by the husband per stirpes as it were, that is, to those whom the wife, before she died, wished to benefit by this deed, ought to be taken into account in any alteration of property interests under section 79.  And then one comes, of course, to 8(c).  8(c) covers the whole of 8, including the provisions that my learned friend has emphasised in 8(b)(ii).  And again it is couched in a very general, that is, comprehensive terms of its effect on other provisions.  It says, in clause 8 itself, that:

clause 8 is intended to apply –

in the certain stipulated state of affairs and one can see that that echoes the language that opens 8(a).  But for clause 8, of course, we entirely adopt what my learned friend has accepted in answer to some questions from your Honours.  That like the transfer, natural love and affection, for his domestic partner, this deed of gift can plainly be seen as part of what might be called an extended family mark of esteem or more between husband and wife and/or, as it were, in contemplation.

So when we come to 8(c), there is a failure of the plainly contemplated indefinite, and relatively lengthy, relationship.  Why do I say “indefinite”?  Because we do not have, in our culture, marriages for fixed periods, and we do not know the date of our death.  And why do I say “lengthy”?  Because it may or may not be a delusion, but parties of this age do not ordinarily conduct their affairs, including pessimistically, on the basis that they are about to die.

So there was a contemplation of something, plainly, to use the facts of this case, longer than 23 days.  And if that had come to an end, which might be regarded – looked at from the point of view of its initial contemplation as being regrettable, then the parties had agreed that there would be no, as it were, race to a contested outcome in the Family Court, complicated by the issues altering under section 79(8), by reason of the wife’s prior death.  Rather, it is intended that there be one, not more, payment to reflect that which the wife would have lost by the right of survivorship, in favour of her sibling.

Now, your Honours appreciate that under 8(b)(i) and (ii), the permutation being contemplated is I suppose to be understood between the lines as, if they have got any children and the husband is continuing to support them financially, then the deceased wife’s siblings can look to no more than $1 million.  It is only if there are no children in that, of the marriage, in such a position, that the possible boosting to the half value of the property, if it be more than $1 million, arises.

For what it is worth, we offer as a resolution between the primary provision of $1 million being $500,000 each with the possibilities for it swelling to $1 million for the survivor of the siblings, and the stipulated amounts in 8(b)(ii), by reference to the, as it were, special case that 8(b)(ii) refers to, which is the defeat of the expectation or hope of a relatively lengthy and indefinite marriage by the events there contemplated.

Now, if we are correct in that reading of the deed, then, in our submission, there is simply nothing in an allegation of vitiating error by the trial judge which, as a matter of their own appellate error, the Full Court has failed to detect and correct.  The first, I suppose, important thing to observe about an argument now presented as if clause 8 is a lay down misère point, is that it certainly was not argued so below, and your Honours will be aware that concessions were made in both directions.  We made the concession, to which my learned friend has fairly already referred, namely that there was a joint tenancy.  If I need to add it, explicitly, a joint tenancy legally and beneficially, that is the first thing.

The second thing is the concession that this was not a 50 per cent case, and that is a near quote by me from counsel for the present appellant below.  And that is enough, surely, for it to be made clear that this was not a case which was argued on the basis that the deed of gift required to be taken into account, particularly clause 8(b)(ii), in such a way as prevented them from being just an equitable to alter the property interests which were the premise of the deed, the property interests being the proprietorship as joint tenants of the property in question.

It is for those reasons, in our submission, that the whole of the complaint with respect to the deed and with respect to the outcome of the just and equitable adjudication at first instance and as controlled, so to speak, or supervised in the Full Court, falls to the ground.  It falls to the ground because, properly, it was argued below on both sides on the basis that section 79 created a jurisdiction discretionary in its general characteristic, but of course requiring attention to the jurisdictional elements which are both plain in the statute and clear beyond any dispute between the parties before your Honours today, from Stanford v Stanford.  And, with respect, this is not a case that ought, in effect, be a complaint about inadequate reasons.  The defeat of the expectation to which the trial judge referred in his Honour’s paragraphs 77 and 78 are enough for that purpose.

BELL J:   Mr Walker, does that carry with it that in the case of a marriage between a couple, each of whom is adult, they are childless, each capable of earning income, and neither under any form of disability, that a principled reason for altering their legal and equitable proprietary interests is the lack of fulfilment of the expectation that their union will be a lengthy one?

MR WALKER:   The answer is yes, but of course I need to hasten to say that could never be understood as being something in the nature of a rule or even a prima facie guideline.  It is entirely, to echo your Honour’s words, a principled reason.  It is principled because it answers the kind of considerations called up by the familiar phrase of judicial activity, “just and equitable”.  It is a reason because it accords with what might be called some perfectly acceptable societal considerations.  It will always be subject to the particular circumstances of the case and, of course, 23 days’ duration of marriage is an unavoidable circumstance of this case.

Can I then come to a related matter.  Again I am sorry, I really have departed from the course of the outline because I am trying to abbreviate in emulation of my friend to come to the points.  Justice Keane asked early on concerning first of all what we know about, and second what might be possible issues in either a trial that was not had, or a retrial that may or may not now be being sought concerning the size of the equity, and when it swelled to the full value of the fee simple in this property.

We do know from paragraph 62 in the Full Court, and paragraph 48 at first instance – I do not need to take you to it, you have been taken there already – that there was a borrowing by the husband to pay the price.  I will stand corrected, but we do not think the courts below had before them what I will call the financial history enabling me to tell you when something identified in general terms as a borrowing to pay the price, which does not seem to have ever been the subject of hypothecation by registered mortgage – when that was discharged.

Your Honours will appreciate how many functions are involved…..language.  Here is pure speculation to illustrate the point.  If one was lucky enough to have considerable credit on an overdraft, if such things still exist, secured on the security of other property, then of course coming and going into that relative indebtedness or even credit in such an account, would never affect by hypothecation, the value of a property for which those funds were partly used to pay its price, but when that property was never security for repayment if the bank blew the whistle.

It is for those reasons that, in our submission, the way the parties chose, while they were both participating in the proceedings at first instance, to frame and present this point really precludes it from being either a ground for an appeal in this Court, let alone for a retrial to deal with a matter which one might have thought was to the very forefront.

It is true that the Full Court does refer in passing to the fact that 10 per cent would have been less than $200,000 because of an encumbrance.  From that, one might infer that the Full Court regarded the position that there was this unsecured encumbrance – I realise that is an oxymoron – reducing supposedly the value of the equity in the fee simple, at a point when the 10 per cent was given to the wife.

However, by the time section 79 comes to be applied in proceedings where both had applications, both had full opportunity to present their respective cases, including answers to the other side’s cases, this matter was no longer of any moment to the parties – that is, the precise timing of when, by reference to either the 10 per cent or the 40 per cent, the husband had been in a position to repay, whatever that may mean in his relations with lenders, the funds by which he, on the evidence, on the findings, did in fact borrow in order to buy the property.

Again, in our submission, that is so because, as it was made clear at first instance and in the Full Court and by concession none of that changed the position with respect to what I will call a history of or an evaluation of financial and non-financial contributions of the wife.  It is for those reasons, in our submission, that in relation to the way in which the issue was presented by the time the first instance decision was made, what the court had was an application to recognise the overwhelming imbalance of contribution by the husband to property plainly intended to be held together during a marriage when the marriage had endured for 23 days.

This is not to say that there was nothing that could be said on both sides ‑ no doubt there could be – let alone to say that everything that could be said on both sides was in fact said at first instance.  We know it was not because of the wife’s decision…..not to participate.  Practical or otherwise, it is a kind of deliberate decision that this Court in Aon v ANU had in mind in exercising the need for what might be called good order in litigation.

That, your Honours, brings me again, because I think I can abbreviate, a concertina, while still relying on everything we have put in writing, to the perhaps related, certainly second part of the argument against us.  That is an argument which on its face would surely appear to lead to a retrial, a prospect which in any litigation but certainly in this litigation ought not ever likely be contemplated, only necessary in the interests of justice. 

That is why in cases where evidence not tendered below is sought to be adduced at the intermediate appeal, the failure to consider, which is a ground of appeal in this Court, the questions that this Court has emphasised in CDJ, et cetera, are basal to whether or not there has been an error in detecting what the interests of justice require.  However one phrases it, whether if accepted or if available the material would have made a difference, here one really only has the one proposition to which the two documents to which my learned friend went specifically could possibly be imagined as being deployed. 

The first is the transfer, the natural love and affection for his domestic partner and the second is the Form 9A so‑called, a transfer between domestic partners - it is a form for thousands of domestic partners - with a statement concerning living together. 

Now, I am not making the critical point about the fact that, of course, the Form 9A is the wife’s document in terms of who endorsed it because as my learned friend properly says, and here I interpolate, if this had been raised at the proper time and in the proper way at first instance there may well have been ground for saying that a document endorsed by the wife for presentation to the revenue authorities ought to be regarded as conveying on the part of the husband…..by means of attributing to him what his advisor had prepared, a statement which might require explanation in order for the court to consider a substantive issue between the parties, namely, the nature of their relationship for the purposes of the legal characterisation relevant to an understanding of what would be relevant under section 79. 

In other words, we accept what his Honour at first instance described as the physical parameters will include an understanding of the relationship before the wedding day.  However, it is not possible to see either an argument below of any kind or any material which could possibly alter the fact that on the findings not thought to be challenged by any of this so‑called new material, the lack of what I will call contributions within the meaning of section 79 or circumstances within the ambit of “just and equitable” that would show up any error, let alone a different outcome have been determined by the judge at first instance or ought to have been detected by the judges in the Full Court.

Your Honours know that in terms of non‑financial contribution that neither the overseas travel, held to have been as much for the benefit of the wife as anything else, or the exiguous support occupationally amounted to anything and that is not the subject of any claimed error or infirm hearing through the lack of material that should have been before the court.

Even more clearly, that is objectively and demonstratively so, is the position of financial contribution.  Again, neither of the hearings below, certainly the hearing at first instance, could not be regarded as infirm in relation to the capacity of the wife to have adduced whatever she wanted to adduce in that regard, including by way of challenge of the husband. 

Then one returns to these two documents, your Honours.  They are documents which are as discoverable by the wife as by the husband.  Your Honours will have seen, and I will not be going into any detail about this, the general comments by the trial judge in particular concerning what I will call problems of discovery, but the particular aspect being that the wife did not make appropriate applications to enable any supposed default to be corrected. 

But I wanted to add this other point.  The transfer - no one is suggesting the transfer was hidden, as it were, and as for the Form 9A, no one was suggesting it was hidden.  The Form 9A, indeed, not just as a matter of formality, is the wife’s document, certainly as much within her power to obtain as it was within the power of the husband.  It is for those reasons, in our submission, that the whole of the second part of the case which fits oddly with seeking this Court to make its own section 79 disposition of the differences between the parties, ought in any event be dismissed on its merits. 

There is no explanation available from any of the material as to why someone who had full opportunity to make all and any points against the

husband’s application under section 79, including anything concerning contributions with respect to the acquisition and improvement of this property, or any other aspect of their relationship leading up to or culminating in judgment of what is just and equitable, there is no reason given as to why a person with all that opportunity should get, either by an order in this Court, without having heard anything in evidence about these two documents, without having heard why a period of intimate relationship being characterised as a domestic partnership living together as opposed to domestic partner not living together or as opposed to simply intimate relationship, why that would have made any difference to the outcome of the section 79 application.  It is for those reasons, in our submission, that the proper order in this Court is to dismiss the appeal.

Your Honours, I appreciate that I have gone out of the way in respect to the order that we had proposed, but, as I say, my learned friend’s focus has permitted us to, I hope, respond in kind.  Unless there was anything else, relying as we do still on our written submissions, that is all I wish to say. 

KIEFEL CJ:   Yes, thank you Mr Walker.  Mr Myers, do you have anything in reply?  Mr Myers, we cannot hear you, perhaps you might be muted.  Mr Myers, we cannot hear you.

MR MYERS:   I think we can hear me now, your Honours.

KIEFEL CJ:   Yes, we can.  Thank you, Mr Myers. 

MR MYERS:   First of all, could I just deal briefly with the question of discovery.  Would the Court be good enough to look at page 18 of the appellant’s book of further materials and order 1(a) is an order that the husband shall, within a certain period of time, make discovery of:

documents relating to any real estate in which the husband has a direct or indirect interest, including copies of contracts to purchase that real estate –

et cetera.  So that was an order that was made that the husband would give discovery of documents such as the transfer in the 9A document.  If your Honours would look at the reasons for judgment in the core appeal book, paragraph 3:

There have been a number of interlocutory hearings since then which might be described as relating to litigation funding and spousal maintenance.  For reasons given in other judgments, the wife’s allegation of lack of discovery by the husband has loomed large.  He has consistently denied any lack of disclosure.

Paragraph 12, on the next page:

To be clear, the wife filed significant affidavits about the conflict of interest and discovery issues.

There was dispute about discovery.  The wife was pressing for it and, indeed, there was an order made against the husband which covers the documents in question.  So far as my friend overlooked that, we say it is very clear.

The second thing that I say by way of reply is that we know that the parties signed the deed of gift in March 2015 and they separated after marriage on 12 September 2016.  There is emphasis on the 23 days.  In fact, it appears from the primary judgment, that whatever else may be the case the parties were together in some way after the signing of the deed for 18 months.

BELL J:   But not on the finding of the primary judge “together” in the sense of together as a de facto couple?

MR MYERS:   I am disposed to agree to that, of course, your Honour.  What I am pointing out is that after the deed was signed the parties were together in some way and did not separate until 12 September 2016.  Now, it is not to me, by way of reply, to rehearse the questions of construction of the deed of gift, but I do wish to point out that as regards paragraph 7, which my friend placed some emphasis upon, it deals only with the consequences if the husband has predeceased the wife.  Clause 8(a) and (b), in their terms, are not limited to a situation where the wife has predeceased the husband.  Clause 8(c) says that:

clause 8 is intended to apply where the parties have separated or divorced and [the wife] predeceases [the husband] before a final property settlement is agreed or determined.

But that is in enlargement of the application of the preceding provisions of clause 8(a) and (b) – and that is the natural way to read it.  In any event, however one construes clause 8(a), the assumption of that clause and of the deed is that the wife’s interest in the property, either for herself or for her siblings, shall subsist throughout her life.  They are the matters that I wish to put by way of reply.

KIEFEL CJ:   Yes, thank you, Mr Myers.  The Court reserves its decision in this matter and adjourns to 10.00 am on Tuesday, 11 August.

AT 11.51 AM THE MATTER WAS ADJOURNED