Hsueh and Cai - [2017] FamCAFC 172

FAMILY COURT OF AUSTRALIA

HSUEH & CAI

[2017] FamCAFC 172

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Interpretation and declaration relating to a financial agreement between the parties – Parties agreed the primary judge erred when making an order that in effect contradicted the provisions of one clause in the financial agreement – Appeal allowed by consent – Each party to bear their own costs of the appeal.

Family Law Rules 2004 (Cth)

APPELLANT:

Mr Hsueh

RESPONDENT:

Ms Cai

FILE NUMBER:

PAC

6235

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

7 August 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Aldridge & Watts JJ

HEARING DATE:

7 August 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 December 2016

LOWER COURT MNC:

[2016] FamCA 1081

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Shepherd

SOLICITOR FOR THE RESPONDENT:

Shepherds the Family Law & Mediation Specialists

Orders

By consent, the appeal be allowed.
Paragraph 6 of the orders made by the Honourable Justice Foster on 19 December 2016 be varied by deleting $195,000 and inserting in lieu $97,500.
Each party bear their own costs of the appeal.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hsueh & Cai has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 13 of 2017
File Number: PAC 6235 of 2015

Mr Hsueh

Appellant

And

Ms Cai

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

Listed before the Court today is the Notice of Appeal filed by Mr Hsueh on 16 January 2017, which initially was opposed by the respondent Ms Cai.
The appeal sought to challenge an order Foster J made on 19 December 2016. The Notice of Appeal indicates that the paragraph of the orders being challenged is paragraph 5, which was the number of the relevant paragraph in the reasons for judgment his Honour delivered. It transpires, however, that when the sealed copy of the order issued, paragraph 5 became paragraph 6 as a result of a case management order having been inserted in lieu of paragraph 5.
Prior to the appeal hearing today, the Court received a summary of argument from the appellant, and one from the respondent. Up until an exchange between the solicitor for the respondent and the Bench this morning, the respondent’s position was that she sought to maintain paragraph 6, which dealt with one aspect of the interpretation and implementation of a binding financial agreement. In paragraph 6, his Honour made what amounts to a declaration that “pursuant to clause 4.9(d) of the Financial Agreement between the parties dated 28 October 2006 the sum of $195,000 is payable by the husband to the wife”.
The appellant’s one and only argument was that in making that declaration his Honour had misinterpreted what was put to him as a joint proposition of the parties and, in doing so, brought about a result that was in contradiction to, rather than in accordance with, the provisions of the rather complicated clause 4.9(d) of the financial agreement. As a result of the exchange between the solicitor for the respondent and the Bench, the respondent has, properly in my view, conceded that an error was made by the primary judge as asserted (even if, on one view, his Honour’s understanding of the joint proposition might seem to be in accordance with some statements made in the course of exchanges during hearings leading up to the making of the declaration). In those circumstances, the appropriate order is for the appeal to be allowed by consent.
The issue that then arises is the way this Court might remedy the error. There have been various exchanges between the solicitor for the respondent and the Bench, with assistance from the appellant, as to how this might be achieved. Whilst it would be highly desirable for this Court to make an order that would resolve, once and for all, the long-running disputes between the appellant and the respondent, the matter is complicated by virtue of the fact there are proceedings still on foot in the court below relating to other aspects of the interpretation and implementation of the agreement. As a consequence, the only appropriate form of relief we can provide, which is now agreed, is the amendment of paragraph 6 by deleting $195,000 and inserting in lieu the figure of $97,500, which will give effect to the financial agreement.
The orders that I would therefore propose is first that the appeal be allowed by consent and secondly, that paragraph 6 of the orders be varied by deleting the figure $195,000 and inserting in lieu the figure $97,500.
The other issue that requires consideration is the application for costs that has been made by the appellant against the respondent. Although the appellant is a self-represented litigant, he has informed us that in preparation for the appeal he obtained some legal advice, for which he received a bill from the lawyer. He cannot recall the amount of this bill but he believes it to be between $1,000 and $2,000. He also points out that he has had responsibility for preparation of the appeal books, and his understanding is that these cost him almost another $1,000. Hence, the Court has before it a claim for costs that would be somewhere in the region, potentially, of $2,000 to $3,000.
The respondent opposes the application for costs. The respondent says that whilst she would be content to have the appellant’s application for costs dismissed so that each party would bear their own costs, in the event we were minded to make an order for costs against her, she would seek the opportunity to put submissions before us which would draw attention, amongst other things, to offers of settlement with a view not only to defending the application of costs against her, but pursuing an application for costs against the appellant.
In his submissions in support of the application for costs, the appellant draws attention to the fact that he has been successful in pursuing his appeal, that he drew attention to what was an obvious error by the primary judge, and that he ought not to be left out of pocket as a consequence of remedying the error. In response, the respondent’s solicitor draws attention to the appellant’s self‑represented status. However, as stated earlier, the appellant has in fact incurred some costs which could be legitimately claimed. The respondent also draws attention to the fact the appellant has not been entirely successful in the appeal in that the form of relief that it is likely will be made is not the same relief that is sought at paragraph 10 of the Notice of Appeal.
In my view, there is at least an element of merit in that submission since, if orders were made precisely as proposed in paragraph 10, that would constitute a final order determining the distribution of the proceeds of sale of the properties referred to therein. In this case though there is an ongoing dispute between the parties about other matters associated with the financial agreement which might result in a distribution of the proceeds different to that sought in paragraph 10.
I accept that the appellant, in amongst his grounds of appeal, suggested another form of relief by which the matter might be resolved that approximates what I would propose we order, but it is the case that the relief that was formally sought has not been achieved. I think what might also be said in relation to the appellant’s application for costs, is that his Honour was not assisted greatly at the time the error was made, and that could be said to have been the fault of both parties. It might also be said that the rather expensive process of appeal is not the only process that would have been available to the appellant, given that he says the error the judge made in pronouncing the order was obvious.
In those circumstances, it is highly arguable that the better course would have been for him to return to the primary judge to seek the rectification of the order pursuant to what is known as the slip rule. Another factor that influences my mind, in dealing with the appellant’s application for costs, is that if we were inclined to make an order for costs against the respondent then I consider we would be duty bound to allow the respondent the opportunity to make written submission to set out offers of settlement, and any other matters on which the respondent would wish to rely. That would further delay the resolution of proceedings; it would cost the respondent money in legal costs; and it would cost the appellant in time, for which he would receive no compensation.
Taking all of those matters into account I consider that the appropriate order is that each party bear their own costs of the appeal.

Aldridge J

I agree with the reasons of, and the orders proposed by, the presiding judge.

Watts J

I agree with the reasons of the presiding judge, and with the orders he proposes, and have nothing else to add.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Aldridge & Watts JJ) delivered on 7 August 2017.

Associate:

Date: 23/8/17