Ioppolo, C. and Conti, F.

[1987] FamCA 17

In the marriage of IOPPOLO, C. and CONTI, F.;

(1987) FLC ¶91-852

Other publishers' citations: (1987) 11 FamLR 866

Full Court of the Family Court of Australia at Perth.

Judgment delivered 16 September 1987.

Before: Simpson, Barblett and Nygh JJ.

Simpson J.: This is an appeal by Antonino Ravi (``the appellant'') from a decree made by Judge Anderson on 16 June 1986.

On that date the learned trial Judge ordered as follows:

``1. Pursuant to the judgment of this Court made in the proceedings and dated 18 December 1980 and subject to para. 4 of this order ANTONINO RAVI the First Intervener do pay to the husband the sum of $65,018 and interest thereon at the rate of 10% per annum computed from 22 November 1984 to the actual date of payment.

2. In addition to the costs payable by the husband to the wife pursuant to the order made in the proceedings on 21 August 1985 which costs were assessed in the sum of $13,082.80 the husband do pay interest on the assessed sum at the rate of 10% per annum computed from 7 November 1985 to the actual date of payment.

3. The husband do pay to the wife her costs of the said applications dated 20 August 1985 and 18 December 1985 fixed in the sum of $750.

4. The amounts payable by the husband to the wife pursuant to para. 2 and 3 of this order and to the said order dated 21 August 1985 be a charge against the amount payable by the First Intervener to the husband pursuant to para. 1 hereof and forthwith be paid by the first intervener to the wife.

5. The balance of the amount payable by the First Intervener to the husband pursuant to para. 1 hereof, after deduction of the amount to be paid to the wife by the First Intervener, be paid to the husband on or before 16 December 1986 with liberty to the First Intervener to apply not later than 16 November 1986 for an extension of time of the payment date.

6. The costs of the husband of his said application dated 20 August 1985 be taxed and paid by the First Intervener to the husband.''

By his amended notice of appeal the appellant seeks the dismissal of the husband's application or alternatively that it be remitted for rehearing.

That part of the decree of 16 June 1986 which relates to the wife has been satisfied. Accordingly the wife took no part in the appeal which is limited to the orders affecting the husband and the appellant.

In order to understand the nature of the proceedings before the learned trial Judge it is necessary to trace the protracted history of the proceedings between the husband and wife and the interveners.

On 14 October 1977 the wife filed an application (``the property application'') under sec. 79 of the Family Law Act (``the Act'') for an order by way of settlement of property. Whilst those proceedings were pending between the husband and wife in the Family Court of Western Australia the husband entered into a number of transactions with the appellant and others, and in particular on 9 February 1978 an agreement was entered into between the husband and the appellant which recorded a debt due by the husband to the appellant in the sum of $97,000. That debt was secured by the husband executing in favour of the appellant a second mortgage on two properties — referred to as the Roe Street property and the Francis Street property. Subsequently a second agreement was entered into between the husband and the appellant whereby the appellant acknowledged that in consideration of the transfer to the appellant of certain land by the husband the debt due to the appellant was reduced to $65,018.

The husband being in default the first mortgagees of the Roe Street property and the Francis Street property exercised their rights under the mortgages and effected sales thereof. From the proceeds of the sale of the Roe Street property the appellant as the second mortgagee received the sum of $35,268 and from the sale of the Francis Street property the appellant received the sum of $29,750.

In consequence of those transactions between the husband and the appellant and the first mortgagees' sales the wife on 15 May 1979 filed an application (``the sec. 85 application'') under sec. 85 of the Act against the appellant seeking the relief detailed in that application.

Although a copy of that application was not included in the appeal papers, nevertheless the terms thereof appear in the transcript of the proceedings before the trial Judge. The wife sought, inter alia, that the agreement of 9 February 1978 be set aside; that all dispositions made pursuant to the said agreement be set aside; that certain land registered in the name of the appellant be charged with the payment of any moneys to which the wife might become entitled pursuant to the property application and also that the moneys received by the appellant pursuant to the second mortgages totalling $65,018 be paid into court to abide the order of the court.

The sec. 85 application came on for hearing ex parte before McCall J. on 17 May 1979. His Honour made an order adjourning the application and directing that:

``(a) Mr Antonino Ravi of 277 Oceanic Drive, City Beach in the State of Western Australia be served with a copy of the said application and the affidavit in support thereof by the wife her solicitor or her agent.

(b) The said Antonino Ravi have leave to intervene in the proceedings herein if he wishes to contest the granting of an injunction sought in para. 1(e) of the said application, restraining him from transferring or mortgaging or charging or dealing in any manner whatever so as to affect his interest in that piece of land comprised in Certificate of Title Volume 1426 Folio 901 or completing any document on the basis whereof a caveat can be lodged against the said land until a final order is made in the application dated 14 October 1977 and filed herein.''

In my opinion the appellant became a party to the sec. 85 application as a result of the wife seeking to set aside the dispositions from the husband to the appellant and seeking relief against the appellant. I do not consider it was necessary for the appellant to seek, or be given, leave to intervene in, nor for the wife to bring a preliminary application to have the appellant added as a party to, the sec. 85 application. In that regard I adhere to the views I expressed in Buckeridge and Buckeridge (No. 2) (1981) FLC ¶91-114.

Whether the purported granting to the appellant of leave to intervene was necessary or not, and whether that leave was limited or not, it is common ground that, at least, the appellant took part in the sec. 85 application as a party to those proceedings. I am not satisfied that the appellant ever intervened in, or otherwise became a party to, the property application.

The property application and the sec. 85 application came on for hearing before Anderson J. in July, October and November 1979 when the trial Judge reserved his decision. Reasons for judgment were delivered on 5 December 1980 and on that date counsel were asked to prepare a minute of orders required to give effect to those reasons.

On 18 December 1980 a formal decree of the Court was made wherein the appellant was referred to as the first intervener. The relevant parts of the order of 18 December 1980 read as follows:

``1(a) The agreement made on 9 February 1978 between the 1st Intervener of the one part and the husband of the other part and all dispositions made thereunder be and are hereby set aside.

(b) The estate and interest of the 1st Intervener in the land registered in his name as sole proprietor such land being more particularly described as being Portion of Swan Location 709 and being the whole of the land comprised in Certificate of Title Volume 1426 Folio 901, vest in the wife as trustee upon the trusts set out in para. 3(b) of this order.

...

3. As and by way of settlement of property

(a) the husband do pay to the wife the sum of $103,750.

(b) the wife as trustee of the lands referred to in para. 1(b) and 2(a) and (b) of this order sell the said lands and after payment of all proper expenses of sale and payment of the sum of $12,000 being the amount due by way of principal as at 2 March 1978 in respect of the mortgage over the land referred to in para. 2 hereof distribute the remaining net proceeds of sale subject to the next paragraph of this order equally between herself and the husband.

4. The net proceeds of sale to which the husband is entitled pursuant to the previous paragraph of this order be and is hereby charged with the payment by the husband to the wife of the moneys referred to in para. 3(a) hereof.

5. All other land registered in the name of the husband and all other assets of the husband be and are hereby charged with the payment of all moneys payable by the husband to the wife pursuant to para. 3(a) hereof.

...''

The husband appealed against the decree of 18 December 1980 but neither the appellant nor the other interveners did so.

By order made on 22 October 1981 the Full Court of the Family Court of Australia allowed the appeal by the husband and remitted the property application for rehearing. The appellant was not a party to that rehearing and was not concerned therewith except in the role of a witness. The sec. 85 application was not reheard and the order of the Full Court did not affect the orders of 18 December 1980 in so far as they related to the appellant.

The rehearing of the property application took place in June and July 1983 before Connor J. who reserved his decision. That Judge delivered his reasons for judgment on 12 April 1984 and on the same date made a property settlement order in favour of the wife. In his reasons for judgment Connor J. held, inter alia, that there was due by the appellant to the husband the sum of $65,018 as a consequence of the relevant transactions between the husband and the appellant having been set aside by Anderson J. pursuant to the order of 18 December 1980. In relation to the Roe Street property Connor J. said:

``Accordingly I find that Ravi was not entitled to receive $35,268 from the sale and that this money has to be repaid to the husband and is a debt due to him from Ravi.''

In relation to the Francis Street property Connor J. said:

``In the same way as I have dealt with the mortgage executed over Roe Street by the husband I now deal with this mortgage. I find that no money was owing under it. In the same way the wife argues that an amount of $29,750 received by Ravi should be repaid to the husband. I agree with the argument and find that the husband is owed $29,750 by Ravi.''

Those findings were made by Connor J. in the course of his determination of the property of the husband.

It must be borne in mind that the appellant was not a party to the rehearing before Connor J. who did not purport to make any order in relation to the repayment of the sum of $65,018 nor to make any other order against the appellant. The order of 18 December 1980 did not have the consequence that the appellant owed the husband $65,018 and accordingly there seemed to be no warrant for Connor J. to hold that the money had to be repaid by the husband to the appellant.

On 20 August 1985 the husband filed an application described as an ``application initiating proceedings for enforcement'', directed to the appellant whereby the husband sought the following orders:

``(a) That ANTONINO RAVI the 1st Intervener do pay to the applicant the sum of $65,018.

(b) That the said RAVI do pay interest on the said sum at such rate and from such date as this Honourable Court shall deem appropriate.

(c) That the said RAVI pay the husband's costs of and incidental to this application.''

When the wife learnt of the husband's application she filed an application on 18 December 1985 against the appellant seeking payment by the appellant to her of the sum of $13,082.80 being the amount payable by the husband to the wife pursuant to an order for costs in relation to the rehearing which remained unsatisfied. The wife was successful in that application but because of the satisfaction of that debt and the withdrawal of the appeal against the order made by Anderson J. in favour of the wife we need not concern ourselves with that aspect of the matter.

When the application of the husband against the appellant came on for hearing before Anderson J. on 7 March 1986 there were appearances on behalf of the husband, the appellant and the wife. Counsel for the husband outlined the history of the proceedings and informed the trial Judge that the husband, in effect, was seeking to enforce the trial Judge's order of 18 December 1980 setting aside the transactions between the husband and the appellant. It was argued on behalf of the husband that unless the Court ordered the repayment of the money received by the appellant then the order contained in para. 1(a) of the decree of 18 December 1980 was nugatory, and that the whole purpose of an order under sec. 85 of the Act is to have property or money wrongly received from a spouse returned to the spouse so that it could be dealt with as property of the parties to the marriage. It was also submitted on behalf of the husband that the husband retained the right to a consequential order that the appellant repay the money which had been received pursuant to the disposition set aside by the Court.

Counsel for the appellant submitted, at first instance, that the time to make any application for the repayment of the money was at the hearing before Anderson J. in 1980 or at least prior to the entering of the formal order on 18 December 1980. It was also submitted on behalf of the appellant that the order made in 1980 to set aside the transactions was made for the benefit of the wife and not for the benefit of the husband. Furthermore, counsel for the appellant submitted that the transactions having been set aside, and no other consequential orders having been sought, the Family Court of Western Australia no longer had any jurisdiction to enforce any rights the husband might now have against the appellant. It was submitted that, at the most, the husband had a cause of action against the appellant with the appellant being entitled to set up whatever defences, counter-claim or set-off that he might have against the husband and that the Family Court of Western Australia was not an appropriate Court to deal with those matters.

In the course of his submissions counsel for the appellant informed the trial Judge that he had an affidavit by the appellant which he was in a position to file and that the appellant claimed that either the money had been repaid, or alternatively the husband owed the appellant other sums which would be a complete set-off against any claim of the husband.

At a late stage in the proceedings the following exchange took place between counsel for the appellant and the trial Judge:

``Counsel for the appellant: Your Honour, as I understand today, you are determining basically jurisdiction, because it would be Ravi's argument that if this is to proceed any further then there will have to be a hearing as to who owes who what. We will then have to argue about whether or not there is accrued jurisdiction for that hearing to take place.

Anderson J.: No, I am assuming I am dealing with the whole thing.

Counsel for the appellant: Oh, no.

Anderson J.: I am assuming I am dealing with everybody's application.

Counsel for the appellant: You see, Ravi would argue that if you thought this was the proper forum, then the next step is for there to be a hearing between Ioppolo and Ravi as to...

Anderson J.: As to whether he has paid the money back or not?

Counsel for the appellant: Yes, and there ought not to be simply an order that he pay it back without hearing both parties.

Anderson J.: What do you say if I determine that the money is properly repayable to the wife?

Counsel for the appellant: Well, I have made my submissions in that regard.

Anderson J.: Yes, but I do not believe that Ravi ought now to be able to turn around and say, `I have repaid the money' or `I have lent other money to Ioppolo and therefore the wife should not get the benefit of the order'.

Counsel for the appellant: I suppose that is a matter he will have to prove as well. You see, that is not a matter that is a finding of fact of any judgment. All it is a finding of fact is...

Anderson J.: There were findings that X thousand dollars went into the hands of Ravi that ought not to have gone there.

Counsel for the appellant: Yes, that is right, but there were no findings as to whether...

Anderson J.: I can appreciate that if I make a determination in favour of Ioppolo, then it is up to Ravi to come to court and say, `I have paid him back'. However, I do not believe that Ravi can come to court and say, if I make a determination that the wife is entitled to this $13,000-plus, `Too bad; I've paid all that back. She'll have to go without'. Otherwise you could be faced with the situation whereby a wife gets a judgment, there is a determination made that the transaction be set aside, someone in the position of Mr Ravi could pay the husband, the husband could disappear and the wife left lamenting, and your client then say, `Too bad; I've paid it back. The husband has dissipated it — I do not have to do anything else'.

Counsel for the appellant: Your Honour, there are methods for circumventing that, there are injunctions and so on. The only order made, the only finding, is that that transaction was not a bona fide transaction and it should be set aside. There is no finding as to whether Ravi owes Ioppolo or Ioppolo owes Ravi money, apart from that. To just ignore Ravi's rights to have that heard, in my view, would be denying him substantial justice in the matter. It may be that he will lose it at the end of the day, but he ought to be able to be heard. Those are my submissions, your Honour.

Anderson J.: I can tell you that I will probably — as I say, I can appreciate that I should not, if I find in favour of [the husband], deny Ravi a right to bring evidence in the sense that he has repaid it all, there is a set-off, but I do not really see how any repayment or set-off that he may claim has any effect on Mrs Ioppolo's claim.

Counsel for the appellant: No doubt your judgment will reflect that accordingly.''

Anderson J. reserved his decision and delivered his reasons for judgment on 16 June 1986.

In the course of his reasons the trial Judge said:

``Ravi filed no affidavit in reply but through his counsel did not contest the statement that the moneys payable pursuant to the judgment of Connor J. had not been paid. He claimed however through his counsel that he has moneys owing to him as a result of subsequent transactions with the husband which ought to be set off against the amount that he may be found to owe the husband.

My initial reaction on being confronted with the husband's claim was that the rule encapsulated in the legal maxim `In pari delicto, potior est conditio possidentis' applied, that is, where both parties are equally in the wrong the possessor has the better position. I took the view that as the agreement had been entered into and the moneys received by Ravi in an endeavour to pervert the course of justice, the moneys were irrecoverable by the husband.

Section 85 of the Family Law Act under which the orders setting aside the transactions were made reads as follows:

`In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.'

Having set aside the transaction it now seems to me that the inevitable consequence from such setting aside must flow and that is, that the parties concerned are returned to the position each of them occupied before the transaction was entered into. In such circumstances it is quite clear Ravi must pay to the husband the amounts that he received pursuant to those transactions.

As regards any claim that Ravi may have for a set-off I do not believe that it is competent for this Court at this time to determine those issues between the husband and Ravi. If Ravi wishes to pursue the matter in another court that is up to him. The amount that the wife claims for costs plus interest ought to be paid by Ravi to her forthwith. This will thereby reduce, by the amount so paid, the amount that Ravi has to pay the husband.

In order that Ravi may pursue his claim against the husband elsewhere, I am prepared to delay the date for payment by Ravi of such balance subject to the payment by Ravi of interest to the husband on the balance if any owing by Ravi to the husband.''

In the light of the manner in which the hearing was conducted before Anderson J., and the orders made in favour of the husband without the appellant being given a further opportunity to adduce evidence bearing on his liability to the husband, it is my view that the matter must be reheard.

However there is no useful purpose in remitting the husband's application for further hearing if the Family Court of Western Australia lacks jurisdiction or power to make the order sought by the husband. Accordingly it is proper we consider the submissions made in relation to those matters.

In my opinion Anderson J. had the jurisdiction and power to make a further order (which I would not describe as consequential) against the appellant for the repayment of the sum of $65,018 to the husband when he set aside the relevant dispositions in December 1980. In that regard I refer to the decisions of the New South Wales Court of Appeal in Benjamin v. Benjamin (1976) 11 A.L.R. 211 and of this Court in Collins and Collins (1987) FLC ¶91-800.

However, in the circumstances, I consider that the power to make such an order was not available to Anderson J. in 1986.

I have come to that conclusion for two reasons.

First, once the formal orders were entered on 18 December 1980, without any reservation of the consideration of any further application or order between the husband and wife or between the husband and the appellant, the trial Judge was functus officio having discharged all his judicial functions in relation to both the property application and the sec. 85 application. There is an extensive list of authorities referred to in the Annual Practice in relation to the ``slip rule'' which seem to me to be of some relevance. I refer particularly to the decision of the Court of Appeal in MacCarthy v. Agard (1933) 2 K.B. 417. At pp. 423 and 424 of that report the following passages appear in the judgment of Greer L.J.:

``The plaintiff issued his writ against E.H. Agard, a married woman, and obtained judgment against her in the Scott v. Morley 20 Q.B.D. 120 form as he asked. The Court was represented by the Master, who has jurisdiction to try cases under Order XIV, but the position is the same as if the case had been tried out in Court with witnesses. If a judge has been misled by the evidence, the only way the aggrieved party can deal with it is to appeal to this Court to have the judgment set aside and entered for the right party, or to obtain an order for a new trial. Instead of appealing from the judgment that was entered in this case and saying that it should be reversed because it was given in the form it was by reason of the false pretence of the appellant that she was Mrs Agard, a married woman, the respondent applied by summons to the Master to amend the judgment. If proper proceedings were taken I cannot conceive that this judgment would be allowed to stand, but that is not the question we have to determine. The question for us is whether under the rules relating to procedure the Court can under the slip rule or under its inherent jurisdiction set aside a judgment which has been intentionally entered in the way it was, or whether the Court is bound to leave the party aggrieved to the remedy of appealing or bringing an action to set aside the judgment... In the Annual Practice for 1933 the statement on p. 480 accurately represents the position. It is there said: `The error or omission must be an error in expressing the manifest intention of the Court; the Court cannot correct a mistake of its own in law or otherwise, even though apparent on the face of the order, such as a mistake due to a misunderstanding of a rule or statute. If the order as drawn correctly expressed the intention, it cannot be corrected under this rule or the inherent jurisdiction, even if the decision of the Court is procured by fraud or misrepresentation.'''

At p. 426 Romer L.J. is recorded as saying:

``I should like, however, to refer to Preston Banking Co. v. Allsup & Sons (1895) 1 Ch. 141 for this reason, that in that case the Court was brought face to face with an order which it was alleged had been obtained from the Court by misrepresentation. An order had been made as to certain costs which were directed to be paid in a certain event by the applicant. At a later date one Lindsay, a receiver and manager of the defendant company, applied for a variation of that order so that they should be made part of his costs in the action on the ground that when the original order was made there had been a misrepresentation as to the value of the company's assets. Notwithstanding that, the Court of Appeal affirmed the decision of the Vice-Chancellor of the County Palatine of Lancaster. Lord Halsbury, who was a member of the Court, said this (1895) 1 Ch. 143: `If by mistake or otherwise an order has been drawn up which does not express the intention of the Court, the Court must always have jurisdiction to correct it. But this is an application to the Vice-Chancellor in effect to rehear an order which he intended to make, but which, it is said, he ought not to have made. Even when an order has been obtained by fraud, it has been held that the Court has no jurisdiction to rehear it. If such a jurisdiction existed it would be most mischievous. The fact that in the present case the application to rehear is made to the particular judge who made the order is immaterial; for if one judge can rehear the order another can'.''

Also at p. 427 in the course of the same judgment the following passage appears:

``The judgment drawn up gave effect, and no more than effect, to the intention of the Court, and in those circumstances it is impossible for us to interfere with it.''

In coming to that conclusion I have not overlooked the fact that by the very terms of para. 1 of his order of 16 June 1986 the trial Judge, by expressing his order ``Pursuant to the judgment of this Court made in the proceedings and dated the 18th day of December 1980'' made it clear that he was making a further order in the original sec. 85 proceedings. However I reiterate that I do not consider that these proceedings remained on foot after the entering of the formal orders on 18 December 1980 in the absence of some specific reservation of the issue of further or consequential orders.

Second, the husband (in default of the wife so doing) should have raised the issue of repayment of any amount received by the appellant for determination, either during the hearing of the sec. 85 application or, at the latest, after the delivery of the reasons for judgment on 5 December 1980.

Although I appreciate that both the husband and the appellant adopted the position at the hearing of the sec. 85 application that there was a genuine debt owing by the husband to the appellant which should have resulted in the dismissal of the wife's sec. 85 application, nevertheless it would have been open to the husband to have sought reimbursement, in the alternative, if the impugned disposition was set aside.

If, for tactical reasons, the husband did not want to adopt that course during the trial it was open to him to seek that relief after delivery of the reasons for judgment and before the pronouncement of the formal orders.

Accordingly I consider that what has been described as ``the extended principle'' expressed in Henderson v. Henderson (1843) 3 Hare 100 (67 E.R. 313) applies, with the consequence that the husband's application should have been forever stayed.

At pp. 318 and 319 of the latter report the judgment of the Vice-Chancellor contains the following passage:

``This decree, explained by the report, has in effect severed William the father's estate from the bulk of the property in question, and the partnership accounts and the private debt are not specifically the subject of adjudication. Upon this decree Elizabeth, the widow, and Joanna, the daughter of Jordan, and the husband of Joanna have brought their actions in this country.

The bill charges that the proceedings leading to this decree were irregular, that the decree itself was irregular, that a large balance was due to the Plaintiff, and that the decree ought not to be enforced, but ought to be reversed by Her Majesty in Council, on appeal, which the Plaintiff intends to bring. The bill specially alleges, as one ground of irregularity, that the report of the Master, of the 6th of June 1840, wholly omitted any notice of the account connected with the partnership, and is confined to the monies alleged to be due from the Plaintiff, in respect of the estate of William Henderson, the father; and that a large sum of money is due to the Plaintiff on the partnership accounts, as would appear if they were properly taken. On behalf of the Defendants, it has been argued that the proceedings on the face of the bill shewed that the decree concluded the whole matter, that I could not rehear that decree, and that it was final and conclusive, unless reversed by the Privy Council, the proper appellate tribunal.

Without giving any opinion upon the question whether charges, shewing that the proceedings in a foreign Court were altogether null and void, as being against natural justice, would or not, upon general demurrer, have been treated as null, and have sustained the bill as to the whole of the relief prayed, I have no doubt that mere irregularity in the proceedings is insufficient for that purpose, in a case in which an appeal lies from the Colonial Court to the mother country, and there is a tribunal competent to reform the errors of the Court below, and even to suspend the execution of the decree pending the appeal, if justice requires that it should be suspended. (See stat. 3 & 4 Will. 4, c. 41, s. 21; and see also the Charter of Justice of Newfoundland, Clark's Summary of Colonial Law, pp. 433, 434.)

But as the Plaintiff in this case argued only that the whole question between the parties was not concluded by the decree, and did not contend that, upon the charges in the bill, I ought to disregard the decree, I assume, for the present purpose, that I must, upon this demurrer, consider the amount due from Bethel, in respect of William the father's estate, as concluded by the decree of the Supreme Court, subject only to the appeal to the Privy Council; and that the only question I have now to decide is whether I am to consider the partnership account and the claim of Bethel in respect of the private account as having been likewise the subject of adjudication by the Supreme Court in the island, or whether those items in the general account, which certainly might have been taken in that suit, are to be considered as excepted out of the operation of the decree, under the special circumstances appearing on the Master's report, and the other proceedings stated in the bill.

In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.''

Then, after referring to various authorities the Vice-Chancellor continued at p. 320:

``It is plain that litigation would be interminable if such a rule did not prevail. Now, undoubtedly the whole of the case made by this bill might have been adjudicated upon in the suit in Newfoundland, for it was of the very substance of the case there, and prima facie, therefore, the whole is settled. The question then is whether the special circumstances appearing upon the fact of this bill are sufficient to take the case out of the operation of the general rule.''

This principle was considered and approved by the High Court in Port of Melbourne Authority v. Anshun Pty. Ltd. (1980-1981) 147 C.L.R. 589 and I refer particularly to the majority judgments at pp. 598-602.

In my opinion any claim by the husband for reimbursement by the appellant was clearly part of the initial litigation of the sec. 85 application between the wife, husband and the appellant. That is apparent from the terms of sec. 85 itself and the cases decided in relation to that section and its predecessor, namely sec. 120 of the Matrimonial Causes Act 1959. Accordingly I consider it was unreasonable for the husband not to have brought his claim forward and have it decided at the original hearing.

Although I consider the foregoing reasons are sufficient to dispose of the question of whether there should be a rehearing of the husband's application I will also briefly deal with the question of jurisdiction.

The order contained in para. 1 of the decree made by Anderson J. on 18 December 1980 was made pursuant to sec. 85 of the Act. Under that section the trial Judge could have also ordered that the appellant repay to the husband the amount received by the appellant as part of the dispositions set aside but that was not done. The Court has no general jurisdiction to order payment by a third party to a party to a marriage and accordingly such an order could have been made only pursuant to, and in the exercise of, the Court's powers under sec. 85.

The sec. 85 application was a matrimonial cause being a proceeding in relation to the pending property application — para. (f) of the definition of ``matrimonial cause''. The husband's application filed on 20 August 1985 for an order that the appellant pay him the sum of $65,018 could not be categorised as an application for enforcement of any decree made on either 18 December 1980 or 12 April 1984 since neither decree obliged the appellant to make that payment.

That raises the question of how then could the husband's application be a matrimonial cause. My preliminary view is that the proceedings instituted by that application were not proceedings in relation to the completed property application between the husband and wife. If anything they were proceedings in relation to the completed (or perhaps even pending) sec. 85 application, which (being itself only a related proceeding under para. (f)) could not support other related proceedings.

Accordingly, as at present advised, I consider that the Court had no jurisdiction to entertain the husband's application filed on 20 August 1985.

In my view the appeal should be allowed. Paragraphs 1, 4, 5 and 6 of the order dated 16 June 1986 should be set aside and in lieu thereof it should be ordered that the application of the husband filed 20 August 1985 be perpetually stayed.

The husband should pay the appellant's costs of the appeal fixed in the sum of $1,200.

Since preparing the foregoing reasons I have had the benefit of reading the draft judgments of Barblett and Nygh JJ.

I refer particularly to the views of Barblett J. in relation to the question of jurisdiction. I note that his Honour considers that the application of the husband filed on 20 August 1985 did not constitute a matrimonial cause which accords with the preliminary view which I have expressed in my reasons for judgment.

In the circumstances therefore I consider it appropriate that the application of the husband be dismissed rather than perpetually stayed.

Barblett J.: I have had the benefit of reading the judgments of both my brethren Simpson and Nygh JJ. There are a number of matters in which the two judgments differ and I will give my reasons in relation to each point. The facts have been fully set out in the judgment of Simpson J. and I will not repeat them.

Intervention

The substantive proceedings between the husband and the wife commenced on 14 October 1977 by an application filed by the wife seeking relief under sec. 79 of the Family Law Act. The appellant Ravi was not a party to those proceedings and subject to what I have to say below did not seek to intervene in them. The appellant's involvement came as a result of an application pursuant to sec. 85 of the Act by the wife filed on 15 May 1979. By the latter application the wife sought, not only that certain instruments and dispositions be set aside, but also a consequential order that moneys received by the appellant pursuant to the instruments which would otherwise have been payable to the husband, be paid by the appellant into Court. The total sum sought to be paid into Court was $65,018.

In addition to the sec. 85 relief, the wife sought against the appellant an injunction restraining him ``from transferring or mortgaging or charging or dealing in any manner whatever so as to affect his interest in the said land or completing any document on the basis whereof a caveat can be lodged against the said land until a final order is made in the application dated the 14th day of October 1977 and filed herein''.

The application of 15 May 1979 was expressed to be an application of the wife and the respondent to it was the husband. The application came on, on 17 May 1979, on an ex parte basis whereupon McCall J. made the order which is set out on p. 3 of the judgment of Simpson J. There can be no doubt that by his order, McCall J. purported to give leave to the appellant to intervene in the part of the proceedings that were then presently before him, that is the sec. 85 proceedings. McCall J. made his order pursuant to sec. 92 of the Act.

By the terms of the order the leave to intervene was ``in the proceedings'' if the appellant wished to contest the granting of injunctive relief as sought in the wife's application. It could be argued that the leave to intervene was only in relation to the injunctive relief and not in relation to the other relief claimed by the wife in the sec. 85 proceedings. I think this is too narrow an interpretation of the actual words of the order as entered, although I note from the file that the Associate's certificate reads:

``... and he (Ravi) has leave to intervene if he wishes to contest the granting of the injunction sought in paragraph (e) of the application.''

Nothing turns on this. I do not think the order can be interpreted as granting leave to the appellant to intervene in the substantive proceedings (the sec. 79 proceedings) between the husband and the wife. Those proceedings were not before McCall J. on that occasion. ``Proceedings'' is defined in sec. 4 of the Act as including ``an incidental proceeding in the course of or in connexion with a proceeding''. In my view the sec. 85 proceedings were such ``an incidental proceeding'' in which the appellant was given leave to intervene.

In Buckeridge and Buckeridge (No. 2) (1981) FLC ¶91-114 at p. 76,859 Marshall J. with whom Asche J. agreed said:

``The power of the Court to allow intervention follows an application for leave to intervene and in my view the Court has no power to order intervention in the absence of any such application. In my opinion the orders of his Honour Judge McCall on the 24th March 1980 and his Honour Judge Anderson on the 9th June 1980 granting Esther Investments Pty. Ltd. `leave to intervene in the proceedings' amounted to no more than an intimation to the company that it could apply for status as an intervenor in the proceedings. Those orders did not have the effect of making the company a party `in the proceedings'.''

Again at p. 76,860 Marshall J. said:

``During the course of the argument before us there was some passing reference to the question of whether a third party could be joined as a party other than by that third party being given status as an intervenor under sec. 92 (Harris and Harris; Re Banaco Pty. Ltd. (1980) FLC ¶90-906). I think that there are some aspects of the decision in Harris and Harris that will arise for further consideration by the Full Court in an appropriate case but on the view that I take of the case now under appeal, I consider such a review to be unnecessary.

...

In this case Esther Investments Pty. Ltd. acquired the status of an intervenor limited to the application by the wife for an injunction against the company and by the operation of sec. 92(3) it became a party in that proceeding with all the rights, duties and liabilities of a party.''

With hindsight, it appears that the leave to intervene granted to the appellant was nugatory as being made without power. If that is so, the appellant could not have taken advantage of the leave and proceeded as if an intervener. There can be no doubt that in all subsequent proceedings all of the parties acted in a way that was consistent with the appellant being an intervener in the sec. 85 proceedings but in those proceedings only.

Again nothing turns on this problem because both my brethren agree that in sec. 85 proceedings, the third party who was a party to the instrument sought to be set aside is a respondent to that application.

Simpson J. in his judgment herein refers to his reasons in Buckeridge (supra) in which he makes it quite clear that a third party in the appellant's position in sec. 85 proceedings should be a respondent and not an intervener (see p. 76,868 et seq.). As a practical matter, I consider that the appellant should be seen in the sec. 85 proceedings as a second respondent, second that is to the husband. As such he is a party to those proceedings. He was not a party to the sec. 79 proceedings either as an intervener or as an added respondent.

Denial of natural justice

Each of Simpson and Nygh JJ. have found that there was a denial of natural justice to the appellant in the trial in relation to the order under appeal. I agree with what each has said in his judgment and have nothing to add.

Jurisdiction or power

These words are often used synonymously although they have different meanings. A court may have jurisdiction to entertain an application but no power to make a particular order. Stroud's Judicial Dictionary, 4th ed., defines jurisdiction in a number of ways and in most of the definitions the word ``power'' appears. In Smith and Smith (1979) FLC ¶90-642 Lindenmayer J. said at p. 78,363:

``Finally, it occurs to me that there is another and fundamental reason why this court cannot grant the present application even if it is strictly within the court's jurisdiction. That is because the only relief sought is a declaration or declarations and the court, in my opinion, has no power to grant such relief. The court is the creature of the Act and it therefore has only such powers as are expressly granted to it by the Act or as may fairly be regarded as being necessarily incidental to the exercise of those powers. The mere fact that a particular form of proceeding may fall within the definition of `matrimonial cause' is not sufficient to enable the court to deal with it. That is only the first, albeit a necessary, step. The court's power to grant the particular relief sought must be found elsewhere in the Act.''

In their reasons both Simpson and Nygh JJ. agree that in 1980 the trial Judge, disposing of the sec. 85 application, had jurisdiction to entertain that application and had power to order the appellant to pay to the husband $65,018 consequent upon setting aside the instruments. The setting aside orders were made on the motion for judgment of the wife. She had also sought orders for the payment into court of the said sum but she did not move for such an order or for any further order as to the disposition of these moneys after payment into court in her motion for judgment.

Any order for payment by the appellant to the husband would necessarily have been on the motion of the husband. Both of my brethren based their view on Benjamin v. Benjamin (1976) 11 A.L.R. 211, being a decision of the New South Wales Court of Appeal and in Collins and Collins (1987) FLC ¶91-800, a decision of the Full Court of this Court. The strongest statement is in the latter case where the Full Court said at p. 76,058:

``Our understanding of the law and practice in respect of sec. 120 of the repealed Act is that the courts proceeded on the basis that there was power to order restitution in an appropriate case. The Family Court has consistently adopted the same approach. It seems to us to be clear as a matter of construction that sec. 85 of the Act enables the Court not only to set aside a disposition, but also (inter alia) to order the repayment of any amount paid by a party to the proceedings to a third party. It would be an affront to common sense to construe sec. 85 in the restricted manner urged by counsel for the husband.''

The case of Benjamin dealt with a repayment to the husband's mother after a conveyance to her for less than value of real property by the husband. The restitution in that case was by the husband to the third party. That is a very different matter from ordering a third party to repay to the husband moneys arising from the setting aside of instruments pursuant to sec. 85(1). In Benjamin the third party is assisted by sec. 85(3) of the Act which reads:

``The Court shall have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.''

In Collins, the order appealed against was an injunction protecting property until the sec. 85 proceedings could be dealt with. It was part of the argument in that case that the injunction could not lie because the Court did not have the power under sec. 85 to order the third party to pay into Court the sum which had passed from the husband to the third party. It is certainly clear that pursuant to sec. 85(2) of the Act that such money ``may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale shall be paid into court to abide its order''.

The power to order the payment of moneys by the appellant to the husband must be contained in sec. 85(2). The clear intention of the subsection is to ensure that a party cannot put assets or money beyond the reach of the Court in order to defeat an order of the Court. Thus, if the asset is transferred to a third party the instrument by which it is conveyed away can be set aside and a third party ordered to reconvey to the party. This will then put that property within the reach of the Court and it can be disposed of according to the substantive order of the Court. This is consistent with the property being taken in execution or charged with the payment. Alternatively, if the property is money it can be ordered to be paid into court to abide the order of the Court in the substantive proceedings. In each case the purpose of the order for restitution is to allow the property to be disposed of by the Court's order in the substantive proceedings.

The purpose of sec. 85(2) is clearly not to provide a method of debt collection for a party. In the case under appeal it is difficult to understand why the trial Judge in 1980 set aside the transaction when the wife did not need the proceeds of the transaction set aside to satisfy her judgment in the sec. 79 proceedings. Whilst it is true that there was an appeal by the husband against the orders made by the original trial Judge and that appeal was successful, the orders appealed against did not include the setting aside of the instruments pursuant to sec. 85. The appellant was not a respondent to the husband's appeal nor did the husband or the appellant seek to set aside the sec. 85 orders. There was a retrial of the sec. 79 proceedings between the husband and wife. The appellant was not a party to the retrial and apart from giving evidence played no part in those proceedings nor could he have, not being an intervener in those proceedings or a second respondent in the substantive proceedings. That Connor J. found that the appellant owed to the husband the sum of $65,018 and that the right to recover this sum from the appellant was an asset of the husband, is irrelevant to the proceedings presently under appeal.

Bearing in mind sec. 15AA of the Acts Interpretation Act 1901 and the cardinal rule of construction that a statute should be construed according to the intention expressed in the Act itself as set out in Craies on Statute Law, 7th ed., pp. 64-65, it is doubtful that sec. 85(2) gives the Court a power to order payment by the third party to the husband where such an order is unnecessary to do justice in the substantive proceedings. I do not intend to take this matter further because not only am I in the minority but I think that there are other reasons why the appeal should be allowed.

Functus officio

Simpson J. concludes in his reasons that the trial Judge in 1980 having made final orders was functus officio. There was an end to the matters litigated, the trial Judge having made final orders in relation to all matters. It is apparent that the husband was not given an expressed liberty to apply nor was any issue adjourned. There was finality subject only to appeal. There was an appeal on matters other than those presently in issue and those appealed issues were relitigated and final orders made but the appeal and retrial are irrelevant to the proceedings presently under appeal. This is the very essence of the basic principle that there must be finality to litigation. This basic issue underlies res judicata and issue estoppel. It is merely the fact that the litigation is at an end and cannot be reopened by any party. Other issues can be litigated between the same parties.

I do not consider that even the appellant would argue that he came before the Court in 1986 pursuant to the ``slip rule''. Clearly there was no error or omission which needed to be corrected in the 1980 proceedings. In those proceedings the husband did not move for an order for restitution and it is therefore hardly surprising that such an order was not made. The Court cannot allow the husband to ask now for relief for which he did not move in 1980, even if I am wrong that such relief was not open to him then.

Simpson J. also relies on the ``extended principle'' expressed in Henderson v. Henderson (1843) 3 Hare 100 (67 E.R. 313). He claims that this ``extended principle'' is approved by the majority in Port of Melbourne Authority v. Anshun Pty. Ltd. (1980-1981) 147 C.L.R. 589. Nygh J. prays in aid of his submission that the ``extended principle'' does not disbar further action the judgment of Brennan J. in the latter case. Once again I do not think that this is a matter which I need to determine. I am clearly of the opinion that the sec. 85 proceedings in their entirety were concluded in 1980 when final orders were made. That matter cannot be reopened.

Matrimonial cause

It is common ground that unless the present proceedings are a matrimonial cause the trial Judge had no jurisdiction to entertain them. The application of the husband filed on 20 August 1985 is set out in the Appeal Book. Whilst the application uses the same number and heading as the previous substantive proceedings, i.e. 5656/76 and shows the husband and the wife as parties and the appellant as first intervener, it nevertheless is headed ``Application Initiating Proceedings'' and is in the form of Form 7 of the Family Law Rules. By O. 7 r. 9(2) a Form 7 is to be used if there are no pending proceedings. It is intended to be the form of application to initiate proceedings.

It is common ground that the husband's prayer for the appellant to pay to him the sum of $65,018 is not by way of enforcement of any order of the Court. No such order was made by the original trial Judge in the sec. 85 proceedings. It is true that the present trial Judge erred in holding that at the retrial Connor J. made an order that the subject sum was owed by the appellant to the husband. The Judge at the retrial certainly did not make a finding that the money was owing but since the sec. 85 proceedings were not before him, he had no power to make an order even as to payment into Court by the appellant of that sum.

The husband claims that the Court has jurisdiction because the proceedings do constitute a matrimonial cause pursuant to para. (f) of the definition of that term in sec. 4 of the Act. The application is entitled on the cover sheet ``Application Initiating Proceedings For Enforcement'', although as I have said it is clearly not an application for enforcement. The true parties to the proceedings are the husband and the appellant. The wife is included only as a party to the marriage. It is true that subsequently the wife made application but she did not purport to bring her application into the proceedings commenced by the husband as she too filed an ``Application Initiating Proceedings''. I cannot see that a subsequent application by the wife assists the husband in making the application initiating his own proceedings a matrimonial cause.

Definition (f) of ``matrimonial cause'' reads in part as follows:

``'matrimonial cause' means —

...
(f) any other proceedings... in relation to... completed proceedings of a kind referred to in any of paragraphs (a) to (eb)...''

The only proceedings which the husband can claim that his proceedings for restitution of funds can be ``in relation to'' are the sec. 85 proceedings. It is true that the sec. 85 proceedings were ``completed'' but they were not proceedings ``of a kind referred to in any of paragraphs (a) to (eb)''. Section 85 proceedings are necessarily proceedings which constitute a matrimonial cause because they come within definition (f). In Re Ross-Jones; Ex parte Green (1984) FLC ¶91-555 at p. 79,486; (1984) 56 A.L.R. 609 at p. 618 Gibbs C.J. said:

``The relationship which, on the assumption made, would exist would be a relationship between the present proceedings and proceedings which themselves might fall within para. (f) — that, of course would not bring the present proceedings within para. (f).''

In my view the application of the husband filed on 20 August 1985 did not constitute a matrimonial cause and hence should have been dismissed and for that reason should not be returned for re-hearing. The Court had no jurisdiction to entertain it.

I agree with Simpson J. that the appeal should be allowed and that Orders 1, 4, 5 and 6 of the orders of the learned trial Judge should be set aside. I consider that the application of the husband should be dismissed. I agree that the husband should pay the appellant's costs of the appeal fixed in the sum of $1,200.

Nygh J.: The facts have been set out in the judgment of Simpson J. As I am not in total agreement with my more senior brethren, it will be necessary to set out my views in some detail. There are two grounds of appeal:

(a) that the Court lacks jurisdiction to entertain the husband's application, and
(b) that in any event the intervener was denied natural justice.

The question of jurisdiction

For the appellant it was argued that the proceedings taken by the husband to recover the money from the intervener did not constitute a ``matrimonial cause''. It is clear that it was not a proceeding which fell within any of the definitions in para. (a) to (eb) inclusive. It must therefore fall within the scope of para. (f) as a proceeding ``in relation to concurrent, pending or completed proceedings of a kind referred to in any of the paragraphs (a) to (eb).''

Proceedings under sec. 85 themselves are proceedings within para. (f) being proceedings which are ancillary to ``proceedings under this Act.'' It was argued that the powers of the court consequential upon the setting aside of the disposition were to be found solely in subsec. (2), namely a power to order that any asset dealt with by such disposition be taken in execution or charged or that the proceeds of sale be paid into court to abide its order. This, it was submitted, meant that any action to recover the moneys from the intervener should have been taken prior to the hearing of the substantive application so as to make those funds available to the court when dealing with the application for property settlement. The application for the husband to have the funds restored to him after the completion of the hearing, it was argued, was a separate proceeding which fell outside sec. 85 and consequently outside the scope of para. (f) since the relationship of the husband's action was with a proceeding which itself fell within para. (f), see the remarks of Gibbs C.J. in Re Ross-Jones; Ex parte Green (1984) FLC ¶91-555 at p. 79,486; (1984) 56 A.L.R. 609 at p. 618.

It was also argued that the intervener, not having played any role in the proceedings since 1980, was a third party against whom the Court could not make any orders: Ascot Investments Pty. Ltd. v. Harper and Harper (1981) FLC ¶91-000; (1981) 148 C.L.R. at p. 337.

Dealing with the latter point first, it must be observed that the leave purportedly granted in advance by McCall J. was by itself ineffective to give Mr Ravi the position of an intervener: Buckeridge and Buckeridge (No. 2) (1981) FLC ¶91-114 at p. 76,859 per Marshall J. However, Ravi did avail himself of that leave and was described in the proceedings as the First Intervener. It was never suggested that he was not an intervener, either before us or elsewhere.

Certainly, it is not necessary for the respondent to a sec. 85(1) application to intervene under sec. 92. In the absence of intervention the respondent becomes a party to the sec. 85(1) application, but not the wider property application. However, if the third party seeks and obtains leave to intervene under sec. 92, that party becomes a party to the principal proceedings whether that intervention is strictly necessary or not. The great advantage of such intervention is the ability to obtain an order for costs against the party to the proceedings who is not the applicant under sec. 85(1).

In this case orders were made on that occasion whereby land at Wanneroo ostensibly registered in Ravi's name was dealt with and the proceeds thereof distributed between the husband and the wife. Mr Ravi was not represented at the retrial, but he was not thereby discharged as a party to the proceedings. He had notice of the proceedings since he was there as a witness. Although Connor J. made certain findings as to the moneys held by the intervener, it is not true to say, as Anderson J. appears to have assumed in 1986, that orders were made against him. The question of possible recovery by the husband against the intervener was quite clearly left open by Connor J.

Leaving aside for the moment the question of whether the husband should have made his claim for recovery at the latest in 1983 in the proceedings before Connor J., it would seem that up to that time, at the least, the intervener was a party to the proceedings and as such could not be heard to dispute the jurisdiction of the Family Court: see remarks of Fogarty J. in Prince and Prince (1984) FLC ¶91-501; (1984) 54 A.L.R. 467 at pp. 485, 486 and see also Re Ross-Jones; Ex parte Green at FLC p. 79,488; A.L.R. p. 620 per Gibbs C.J.

However, the argument that the consequential power of the court is confined to what appears in sec. 85(2) is too restrictive. It was acknowledged in relation to the substantially similar provisions of sec. 120(1) and (2) of the Matrimonial Causes Act 1959 that the power to order a disposition to be set aside ``would include the power to direct an appropriate revesting of the subject matter of the transaction'', per Mahoney J. in Benjamin v. Benjamin (1976) 11 A.L.R. 211 at p. 219.

Although that point was not argued before the Court of Appeal in that case, that Court did in fact make orders whereby the disponee was directed to reconvey within seven (7) days to the disponer the land which had been the subject of the transaction set aside.

The point was raised more recently before the Full Court in Collins and Collins (1987) FLC ¶91-800. Replying to an argument that the Family Court did not, under sec. 85, have the power to order restitution of the moneys paid under a transaction which had been set aside, the Court (Ellis, Simpson and Buckley JJ.) replied at p. 76,058:

``Our understanding of the law and practice in respect of sec. 120 of the repealed Act is that the courts proceeded on the basis that there was power to order restitution in an appropriate case. The Family Court has consistently adopted the same approach. It seems to us to be clear as a matter of construction that sec. 85 of the Act enables the Court not only to set aside a disposition, but also (inter alia) to order the repayment of any amount paid by a party to the proceedings to a third party. It would be an affront to common sense to construe sec. 85 in the restricted manner urged by counsel for the husband.''

I am therefore of the view that this Court has power in proceedings under sec. 85 to order that assets which are the subject of a disposition which has been set aside be revested in the disponer with such qualifications as the Court may wish to impose. Such a power forms part of the proceedings under sec. 85 and falls squarely within the definition of para. (f).

The next question is whether that power should be exercised before, or simultaneously with, the determination of the substantive proceedings.

This can be seen from two aspects. The first is that the purpose of sec. 85 is to assist applicants whose claims may be defeated by certain dispositions. This can be achieved either by bringing the asset in question within the control of the Court under sec. 85(2) or by having it revested in the disponer and then dealt with as his or her property, as was done in Benjamin v. Benjamin and with the Wanneroo land, in this case. But it cannot be used, so it was argued, to revest the assets solely for the benefit of the husband.

There may be some merit in that argument. However, when the husband filed his application for the repayment of the money, there was still outstanding a claim by the wife for the payment of costs against the husband. In my view the wife could have succeeded in her application of 18 December 1985 to have the sum of $65,018 either paid into Court and have her costs paid thereout or revest it in the husband subject to a charge for the costs in her favour. The Court could thereupon have ordered to have any balance remaining paid out to the husband. The voluntary payment by the intervener of the costs since then cannot defeat the jurisdiction the Court had at the time the matter was before his Honour.

The other argument clearly linked with the above is that there should be an end to litigation. The claim by the husband could have been raised in earlier litigation and it has been said it is ``an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings'': per Lord Kilbrandon in Tat Yong Investments Co. Ltd. v. Dao Heng Bank Ltd. (1975) A.C. 411 at p. 425. This proposition was considered ``as not supported by authority'' by the High Court in Port of Melbourne Authority v. Anshun Pty. Ltd. (1981) 36 A.L.R. 3 at p. 11.

The ``extended'' principle in Henderson v. Henderson (1843) 3 Hare 100, only applies as to later proceedings between the same parties. The case of Port of Melbourne v. Anshun can be distinguished from the present case. In Anshun the Port Authority and Anshun had served on each other third party notices claiming contribution against the other. That issue had been determined between them at the hearing on the basis of liability in tort. Subsequently in fresh proceedings the Authority claimed to be entitled to a contractual indemnity against Anshun. Had that issue been raised in the proceedings between the Authority and Anshun created by the third party notices, Anshun could not have succeeded in its claim for contribution. In other words, it would have been a complete defence, see the remarks of Gibbs C.J., Mason and Aickin JJ. at p. 13.

In the present case, there was no previous action between the husband and Ravi, nor is the claim by the husband inconsistent with the judgment of Anderson J. To the contrary, it flows from that judgment.

In my view, therefore, Anderson J. did have jurisdiction to deal with the husband's application.

Denial of natural justice

However, the Court in my view, has a discretion whether or not to order a revesting. As Glass J. said in Benjamin v. Benjamin at p. 216 of sec. 120 of the repealed Act:

``The power as given by the section is designed to give the trial judge a flexible control over the financial position. He is not obliged as in the exercise of an equitable jurisdiction to decree a complete Restitutio in integrum.''

He may under sec. 85(3) make an order for the protection of a bona fide purchaser or other person interested. The latter term includes the intervener in this case: Benjamin v. Benjamin at p. 216, and see the discussion by Nygh J. in In the Marriage of Heath (1983) FLC ¶91-362; (1983) 9 Fam. L.R. 97 at pp. 107, 108, and the Full Court in the same case (1984) FLC ¶91-517; (1984) 9 Fam. L.R. 642 at p. 648.

In the exercise of that discretion the Court must consider matters which have occurred as between the parties since the transaction occurred, including any claim for payment or set-off. His Honour, in refusing to entertain those matters, denied the intervener natural justice.

I agree with Simpson and Barblett JJ. that the appeal should be allowed and the orders made by Anderson J. be set aside. I also agree with the order for costs proposed by the learned presiding Judge.

Since I personally hold the dissenting view that the Court has jurisdiction to deal with the husband's application, I would have remitted the matter to a single judge of the Family Court of Western Australia for rehearing.

However, if I am mistaken in this view and this Court either lacks jurisdiction, or should in the circumstances of the case have declined to exercise jurisdiction in respect of the husband's claim, it is my view that the more appropriate order is to dismiss the husband's application.