JILLETT & JILLETT

[2019] FamCA 48

FAMILY COURT OF AUSTRALIA

JILLETT & JILLETT [2019] FamCA 48

FAMILY LAW – PRACTICE AND PROCEDURE – Slip Rule Application – Where error as to value attributed to one asset – Where consequent mathematical error in final order as to cash adjustment payable to wife – Where appropriate to amend orders and reasons for judgment accordingly.

Family Law Rules 2004 (Cth) r 17.02, 17.02A

Dewell and Harris and Anor [2019] FamCA 10
Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206
Gludau & Gludau (No. 2) (2013) FLC 93-562
Jillett & Jillett [2018] FamCA 913
Medlow & Medlow (No 2) [2016] FamCAFC 63
Vadisanis [2015] FamCAFC 180

APPLICANT: Ms Jillett

RESPONDENT: Mr Jillett

FILE NUMBER: DUC 356 of 2015

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 14 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wong

SOLICITOR FOR THE APPLICANT: Campbell Paton & Taylor

COUNSEL FOR THE RESPONDENT: Ms Barnett

SOLICITOR FOR THE RESPONDENT: Farrar Gesini Dunn

Orders

1. That Order (1) made on 9 November 2018 be amended to provide that the husband pay to the wife the sum of $658,837.50 within three months from the date of these orders.

2. That reasons for judgment dated 9 November 2018 and the mathematical calculations therein be amended to reflect the above order and these Reasons for Judgment.

3. That any further or other submission as to costs and the costs of the Single Expert be filed and served within 14 days and thereafter judgment as to those issues be reserved to chambers.

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 Jillett & Jillett 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 356 of 2015

Ms Jillett

Applicant

And

Mr Jillett

Respondent

REASONS FOR JUDGMENT

1. On 9 November 2018 the Court delivered reasons for judgment and orders in this matter as to property settlement: Jillett & Jillett [2018] FamCA 913.

2. Orders were made as follows:

   (1)That the husband pay to the wife the sum of $321,337.50 within three months from the date of these orders.

   (2)That a base amount of $140,000.00 is allocated to the wife out of the husband’s interest in the B Super (“the fund”) Member No ...

   (3)That in accordance with section 90MT(1)(a) of the Family Law Act 1975:

   (a)The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in the above; and

   (b)The husband’s entitlement (and the entitlement of such other person to whom splittable payments may be made) to payments out of the husband’s interest in the Fund is correspondingly reduced.

   (4)That the trustee of the B Super Fund shall do all acts and things and sign all such documents as may be necessary to:

   (a)Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement of the wife created by order 2 of these orders; and

   (b)Pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the Fund.

   (5)That Order (2) have effect from the operative time and the operative time is four business days from the date of service of sealed orders on the trustee and the trustee shall be at liberty to apply to the Court in relation to these orders within that four day period.

   (6)That a base amount of $68,000.00 is allocated to the wife out of the husband’s interest in the C SuperFund (“the second fund”) Member No ...

   (7)That in accordance with section 90MT(1)(a) of the Family Law Act 1975:

   (a)The wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in the above; and

   (b)The husband’s entitlement (and the entitlement of such other person to whom splittable payments may be made) to payments out of the husband’s interest in the Second Fund is correspondingly reduced.

   (8)That the trustee of the C Super fund shall do all acts and things and sign all such documents as may be necessary to:

   (a)Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement of the Wife created by order 2 of these orders; and

   (b)Pay the entitlement whenever the trustee makes a splittable payment out of the Husband’s interest in the said fund.

   (9)That Order (6) have effect from the operative time and the operative time is four business days from the date of service of sealed orders on the trustee and the trustee shall be at liberty to apply to the Court in relation to these orders within that four day period.

   (10)That the parties have liberty to apply as to implementation or enforcement of these orders.

3. On 5 December 2018 the wife made application by way of Application in a Case for slip rule amendments to the reasons for judgment and subsequent orders.  The orders sought by the wife were as follows:

   a)Pursuant to the slip rule, the Court amends:

   i)Reasons for judgment delivered 9 November 2018 taking into account of errors contained in paragraph 69 (page 14) of the judgment; and

   ii)orders one of the orders made 9 November 2018 to the effect that the wife receives the sum of $658,837.50 in lieu of the sum of $337,500.00 within three months of the date of these orders.

   b)That the husband pay the wife’s costs of and incidental to these proceedings from 25 July 2016 to 9 November 2017.

   c)That the husband pay the wife’s costs of and incidental to this application.

4. It was agreed that the wife’s application for costs relating to the primary proceedings be adjourned until after the termination of the applications under the slip rule.

5. In support of the orders sought by her, the wife relied upon the affidavit of her solicitor filed 27 November 2018.

6. The husband filed a Response to the wife’s Application in a Case on 7 December 2018 seeking orders as follows:

   a)That the wife’s Application in a Case filed 27 November 2018 be dismissed and the wife pay the husband’s costs of and incidental to that application.

   b)That within seven days of the date of orders, the wife pay to the husband the sum of $2,200.00 being one half of the costs of the single expert accountant Ms Z who calculated the CGT payable on the potential sales of Property J and Property Q.

   c)That the wife pay the husband’s costs in the substantive proceedings.

7. The husband relied upon his affidavit filed 7 December, 2018.

The wife’s contention

1. The wife correctly asserts that at [69] of the reasons for judgment there was an error as to the value of the husband’s 50 per cent interest in the Property Q property.  The husband’s interest in the property was $1,350,000.00 and not $675,000.00 as contained in the said paragraph.

2. During the course of judgment deliberations it is common ground that the Court enquired of the parties as to the agreed value of the husband’s interest in Property Q as the property had been included as a value of $675,000.00 on one of the documents before the Court.  The parties jointly informed the Court by letter dated 17 November 2018 that the agreed value of the husband’s interest in the subject property was $1,350,000.00.

3. In error the draft reasons for judgment were not amended accordingly.

4. As a consequence, the net assets pool set out at [87] of the reasons for judgment should have been $9,019,197.00 and not the figure of $8,344,197.00 as set out.

5. The wife asserts correctly that the sum payable to her should be increased by $337,500.00 to the sum of $658,837.50.

The husband’s contention

1. The husband agrees as to the error in respect to the value of his half interest in Property Q.  He contends that the error cannot be rectified pursuant to the slip rule.

2. He asserts that the error as to value may have some impact in relation to the Court’s findings as to overall contribution and that it would be unfair for the payment to be increased so significantly without giving the husband the opportunity to respond further.

The Slip Rule

1. The slip rule exists to ensure that orders made by the Court reflect the intentions disclosed in the reasons: Dewell and Harris and Anor [2019] FamCA 10.

2. In Gludau & Gludau (No. 2) (2013) FLC 93-562 the Full Court referring to the old provisions of the rule said:

   20.The rule in its current form, particularly when regard is given to its accompanying note, is arguably significantly more restrictive of the “slip rule” powers exercisable by a judge of this court than those to which the High Court referred in DJL. Indeed, as the High Court said more recently in Burrell v The Queen (2008) 238 CLR 218, at 224 – 225 per Gummow A-CJ; Hayne, Heydon, Crennan and Kiefel JJ:

   20.Identifying the formal recording of the order of a superior court of record as the point at which that court’s power to reconsider the matter is at an end provides a readily ascertainable and easily applied criterion. But more than that, identifying the formal recording of the order as the watershed both marks the end of the litigation in that court, and provides conclusive certainty about what was the end result in that court.

   21.The power to correct the record so that it truly does represent what the court pronounced or intended to pronounce as its order [L Shaddock & Associates Pty Ltd v Parramatta City Council [No 2] (1982) 151 CLR 590 at 594-595] provides no substantial qualification to that rule. The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.

   21. The current rule might, then, be argued to be reflective of the concern that the Rules must embody the fact that this court is a creature of statute within a constitutional framework and its powers on appeal derive from statute. In particular, while the “slip rule” might be used to correct obvious errors (perhaps what Kirby J referred to in DJL as “accidental mistakes or omissions of no substantive significance” or an “accidental slip or omission” as the plurality in Burrell referred to), care must be taken when the nature of the asserted error is substantive, as that may in fact involve the exercise of a power to reopen proceedings that are completed by a perfected order and that is a power which this court does not have (see, DJL).

   (Emphasis as per the original)

3. The Full Court said in Vadisanis [2015] FamCAFC 180:

   6.The slip rule is expressed in many ways but is essentially an aspect of a court’s power to rectify mistakes and accidental slips or omissions in orders or judgments (Milham v Stanford [2001] FamCA 294; (2001) FLC 93-073).

   7.In Flint v Richard Busuttil & Company Pty Ltd and Anor [2013] FCAFC 131; (2013) 216 FCR 375 the Full Court of the Federal Court of Australia described the rule and power in the following terms:

   19.It has long been accepted that courts have the power to correct clerical mistakes and accidental slips or omissions. In the case of the common law courts in England and their successors in Australia this is an inherent power, necessary for the administration of justice (Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 at 270). In the case of a superior court of record created by statute there are no inherent powers (Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR13 at 17) but similar powers may be implied (DJL v Central Authority (2000) 201 CLR 226). Care must always be taken to require that federal courts created under the authority of s 71 of the Constitution of the Commonwealth take their character and authority from Ch III and the statute that is the source of their power: Re Macks; Ex parte Saint (2000) 204 CLR 158. All courts have developed rules providing for the correction of orders in certain circumstances, whether before or after orders have been entered.

4. The Full Court said in Medlow & Medlow (No 2) [2016] FamCAFC 63:

   Notwithstanding the new form of the rule those remarks (excluding the first sentence of Gludau at [20], which does not apply to the current iteration of r 17.02) remain pertinent.

5. Rule 17.02 of the Rules, as from 1 January 2016, is as follows:

   (1)The court may at any time vary or set aside an order, if:

   (a)it was made in the absence of a party; or

   (b)it was obtained by fraud; or

   (c)it is interlocutory; or

   (d)it is an injunction or for the appointment of a receiver; or

   or

   (e)it does not reflect the intention of the court; or

   (f)the party in whose favour it was made consents ; or

   (g)there is a clerical mistake in the order; or

   (h)there is an error arising in the order from an accidental slip or omission.

   (2)Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.

6. The rule deals with errors in orders and allows the Court to correct a clerical mistake or error arising from an accidental slip or omission therein.

7. Rule 17.02A of the Rules provides:

   The court may, at any time:

   (a)vary or set aside reasons for judgment if the reasons were issued by mistake; or

   (b)correct a clerical mistake in reasons for judgment, or an error arising in reasons for judgment from any accidental slip or omission.

8. It is clear from the holistic assessment of the parties’ contributions in the reasons for judgment at [88] to [100] that the contributions of the parties overall should be regarded as equal with no other adjustment.

9. It was clearly the intention that orders be made to effect that equality.

10. In calculating the adjustment required as between the husband and wife to effect equality the value of the husband’s interest in the Property Q property was inadvertently included at a figure less than the agreed value as referred to above.

11. Such is readily conceded by the husband in submissions. The husband, otherwise, contends that a consequential amendment as required by the error may firstly affect the consideration of the Court’s assessment of contributions and secondly, consideration of s 75(2)factors. 

12. There was a mathematical error in the cash adjustment payable by the husband to the wife (excluding the adjustment made by way of superannuation splitting order).  Rectifying that error is not a matter of controversy: Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd (1995) 133 ALR 206 at 210. Issues raised by the husband that may assert that the Court fell into error as to contributions and other matters are matters properly for appellate assessment if enlivened.

13. Orders made on 9 November 2018 will be amended accordingly as sought by the wife and reasons for judgment will be amended to reflect the correct mathematical calculations. It is appropriate that the time period for payment is to date from the date of this judgment.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 8 February 2019.

Associate:

Date:  8 February 2019