KAPPAS & KAPPAS
[2018] FamCAFC 61
•6 April 2018
FAMILY COURT OF AUSTRALIA
| KAPPAS & KAPPAS | [2018] FamCAFC 61 |
| FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the only admissible piece of evidence sought to be presented by the appellant was received subject to it demonstrating that the orders under appeal were erroneous – Where that evidence does not establish that the primary judge erred in accepting the evidence of the wife and making the findings that she did – Application dismissed. FAMILY LAW – APPEAL – PROPERTY – Where the one complaint gleaned from the appellant’s documents that needed to be addressed was whether the primary judge erred in her conclusions as to appellant’s parents’ contribution and interest in a property – Where there was no admissible or credible evidence that established that the husband’s parents provided funds towards the purchase of the property on the understanding that they would have an equitable interest in the same, held on trust for them by the parties – Where the appellant failed to establish his case before the primary judge – Where the appellant has not demonstrated that the primary judge erred in any of her findings, the findings being reasonably open on the evidence – Where it is insufficient to establish that an alternative finding might have been available – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent seeks costs on an indemnity basis – Where the appellant opposed any order for costs based on his alleged poor financial circumstances – Where impecuniosity is not a bar to there being an order for costs where there are circumstances otherwise that justify it, which is the case here – Where although the issues raised have some synergy with the circumstances that have been found to be sufficiently exceptional, the normal rule should not be departed from – Costs ordered on a party/party basis fixed in the sum sought by the respondent. |
| Evidence Act 1995 (Cth) – s 69(3) Family Law Rules (2004) (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Mr Kappas |
| RESPONDENT: | Ms Kappas |
| FILE NUMBER: | MLC | 7430 | of | 2015 |
| APPEAL NUMBER: | SOA | 36 | of | 2017 |
| DATE DELIVERED: | 6 April 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 31 January 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 March 2017 |
| LOWER COURT MNC: | [2017] FCCA 577 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Marchetti |
| SOLICITOR FOR THE RESPONDENT | Kennedy Guy |
Orders
The application in an appeal filed on 24 November 2017 be dismissed.
The appeal be dismissed.
The husband pay the costs of the wife of and incidental to the appeal fixed in the sum of EIGHT THOUSAND SEVEN HUNDRED DOLLARS ($8,700).
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 Kappas & Kappas 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).
|
Appeal Number: SOA 36 of 2017
File Number: MLC 7430 of 2015
| Mr Kappas |
Appellant
And
| Ms Kappas |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 24 November 2017, Mr Kappas (“the husband”) appeals against property settlement orders made by Judge Harland on 24 March 2017, but amended on 12 April 2017. The appeal is opposed by Ms Kappas (“the wife”).
In summary, the relevant orders provided for the closure of a Bank E-trade account and the equal distribution of the funds to the parties, the transfer by the husband to the wife of a motor vehicle registered in the husband’s name but in the possession of the wife, the sale of the former matrimonial home [Property H1] with the proceeds of sale being used to pay the costs of the sale, the discharge of all mortgages and encumbrances secured over the property, the discharge of a mortgage secured over property H2, payment of the amount of $41,500 to the wife, and the balance to be divided equally between the parties. Further, the husband was to pay the wife $600,000 and the wife was to transfer to the husband her interest in property H2, but if that amount was not paid, then that property was to be sold and after payment of the costs of sale the proceeds were to be divided equally between the parties. Finally, the wife was authorised to attend at the former matrimonial home and collect certain items of personalty.
The application to adduce further evidence
On 24 November 2017 the husband filed an application in an appeal supported by an affidavit seeking leave to adduce further evidence. That further evidence comprised a letter from the Bank dated 14 March 2017, a copy of the certificate of title for the former matrimonial home, a document prepared by the husband and headed “Outline of Case”, a document prepared by the husband dated 27 January 2017 and entitled “Addendum/Update to Outline of Case Original Final Hearing Sept 2016”, a document prepared by the husband in the nature of a case outline but undated, and in respect of which its provenance is unclear.
This application is opposed by the wife.
Immediately it is apparent that the latter three documents are not “evidence”; they comprise nothing other than assertions and/or argument by the husband. Thus, they cannot be received by this Court as further evidence. Instead, and with the concurrence of the husband, I have treated them as part of his summary of argument in support of the appeal.
As to the other two documents, the letter from the Bank is plainly not admissible, and thus this Court cannot receive it as further evidence. It is hearsay, it was prepared for the purposes of court proceedings, and thus does not attract the business record exception to the hearsay rule (s 69(3) Evidence Act 1995 (Cth)).
The copy of the certificate of title though is admissible, and it is prima facie relevant. However, the difficulty is that this document was available but was not tendered before the primary judge. Indeed, her Honour made specific reference to this at [106] as follows:
In the course of his cross-examination of the wife the husband claimed that he attended the bank and obtained title search which showed the parties did not have a loan in 1991. He has failed to produce this document which is surprising (if it exists) given the fact that the only documents he has disclosed are documents which he thinks support his case.
That is a relevant factor to take into account in the exercise of the discretion whether to receive the document as further evidence or not. As McHugh, Gummow and Callinan JJ said in CDJ v VAJ (1998) 197 CLR 172:
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
Here, it cannot be said that the husband deliberately withheld the document, despite his failure to comply with a number of orders requiring him to discover and produce documents. As the husband explained during the trial, he thought that it had been “submitted” by his previous lawyer, but that did not prove to be the case, and he did not have it to produce (Transcript 30.1.2017, page 57, lines 6 – 37).
In any event, I am prepared to initially receive this document in the exercise of my discretion, subject however to whether the husband is able to establish that that evidence demonstrates that the orders under appeal are erroneous (CDJ v VAJ [109]), otherwise there would be no point in its reception, and the application should then be dismissed.
The appeal
The Notice of Appeal filed by the husband follows the granting of an extension of time, and is a document in respect of which it was virtually impossible to discern any competent ground of appeal, but instead set out a plethora of generalised assertions and allegations.
Given these failings, the husband did not assist his case by refusing to file a separate summary of argument and list of authorities pursuant to the order made by this Court on 10 November 2017. When the appeal registrar correctly pointed this out to the husband, he responded by saying in effect that his summary of argument was contained in his Notice of Appeal. However, although the husband included much narrative in his Notice of Appeal, in no sense could that narrative be described as a summary of argument.
When the wife suggested that as a result of the husband’s failure to comply with the order providing for the filing of a summary of argument, an application would be made to dismiss the appeal, in typical fashion the husband sent an abusive response to the wife’s solicitors as follows:
Dear Mr Renwick,
See attached the Summary of Argument and List of Authorities submitted.
Formally confirming you have had the substance and essence of its contents since Nov 2017 as per the court orders, and your ability to prepare has not been impeded.
Your email advising that you will make an application to the court to have the matter dismissed shows your evil desperation.
As you are aware the evidence submitted in November 2017 as per court orders clearly shows the following.
Your fabricated lies are on display.
Your deception is on display.
Your attempt to subvert Justice and hide evidence is on display.
The fact you are an despicable evil man is on display.
The fact your actions have drawn this matter out for 2 years and its compounding destruction is on display.
The fact your actions [sic] responsible for the destruction that is the Parental Alienation my children and I suffer, and no amount of money can be compensation for that.
Please feel free to shove you [sic] application to dismiss the appeal up your arse, you despicable evil . . . .
You have not been impeded in preparing more lies to explain your deception that has been laid bare.
Yours Sincerely
George K
I say “typical” because the husband’s behaviour throughout the time he has been before this Court has been appalling. He was belligerent, intimidatory, abusive and disruptive, and on a number of occasions I had to adjourn the court as a result of that behaviour, and I even had to have him escorted from the courtroom by court security personnel. In that regard, I note that the primary judge had to do the same in an attempt to address the husband’s behaviour in her court.
Despite the husband’s failure to file proper documents, despite his failure to comply with orders of this Court, despite his behaviour and lack of respect during the hearing of the appeal, and regrettably, despite the prejudice to the wife as a result, in the interests of justice I determined to allow the appeal to proceed on the basis of the documents filed.
The one complaint that can be gleaned from the husband’s Notice of Appeal that needs to be addressed, is his claim that the primary judge erred in her conclusions as to the husband’s parents’ contribution and interest in property H1.
The husband’s case before her Honour was that the parents borrowed $50,000 and put that, together with $12,000 from their savings, towards the purchase of that property, and that as a result they have an equitable interest therein of 50 per cent, held on trust by the husband and the wife.
As to this her Honour found as follows:
156.I am satisfied that the husband’s parents advanced the parties funds to assist with the purchase of Property H1.
157.The wife gave evidence that she believed they lent the parties about $20,000 and that she thought they borrowed the rest from the bank. The husband could have produced a historical title search to show that there was no mortgage at that time but did not do so. He had ample opportunity to put material in support of his case to the Court.
158.The wife’s uncertainty about this is consistent with the husband being the one who primarily looked after the parties finances. They both gave evidence that he was responsible for filling out the loan application 1996. The husband also engaged in some share trading.
159.The husband expressed the view that the parties would not have borrowed money from the bank and from his parents at the same time. However, it is common for people to do just that. Sometimes the bank will not loan the whole amount needed. People also borrow from family because they will not be charged the same amount of interest or any interest at all and may not be required to repay it for some time.
160.I am satisfied on the balance of probabilities that the parties borrowed funds from the husband’s parents and that it may have been more than $20,000. I am also satisfied that the parties made repayments to his parents. This is a contribution on the husband’s behalf.
In order to put these findings into context, it is necessary to refer to some of the procedural history of this matter, and to the evidence presented by the husband at trial.
The wife filed her Initiating Application seeking orders for property settlement on 7 August 2015. On the first return date, namely 5 October 2015, orders were made for the husband to file a Response, an Affidavit and a Financial Statement, and for a conciliation conference to be conducted.
The husband failed to comply with these orders and he failed to attend the conciliation conference. Further orders were then made extending the time for the husband to file his documents, and for costs. This time the husband complied, and on 19 April 2016 another conciliation conference was fixed, and further orders made. Significantly, one of those orders required the husband to serve his documents on his parents, and to give them the opportunity to file their own application and be joined to the proceedings. The parents did not take up that opportunity.
The second conciliation conference did not proceed because the husband failed to provide discovery in accordance with the orders made on 19 April 2016. Relevantly, one of those orders was as follows:
15.That by way of disclosure on or before 31 May 2016 the Husband provide to the Wife’s solicitor the following documents:-
a)In relation to property H1:-
i.The Contract of Sale for the purchase of the property.
ii.All conveyancing documents in the Husband’s possession.
iii.All Loan Agreements in the Husband’s possession.
iv.All Bank Statements evidencing contributions made to the acquisition of the property.
v.All Bank Statements in relation to any loans relating to the acquisition of the property covering the period from when the property was acquired in September 1991 to when the loan was paid out.
vi.All documents comprising invoices, receipts, statements of accounts relating to the building improvements and renovations carried out to the property in approximately 1994.
vii.Any other documents in the Husband’s possession evidencing contributions that he made to the purchase, the Wife made to the purchase of the property and the Husband’s parents made to the purchase of the property.
viii.All documents evidencing rental payments made by the Husband to his parents from September 1991 to the current date.
Following the aborted conciliation conference the matter was called on before her Honour, and at [9] her Honour set out what then happened:
The Registrar requested that the matter be mentioned in Court before me that day. Unusually she appeared in Court and explained that the conference could not proceed as the husband was extremely agitated. That was apparent from the husband’s presentation. The husband did not provide any documents in compliance with the orders. When appearing before me he said that the documents were joint accounts that the wife could just as easily obtained. As will be apparent from those orders they went well beyond joint accounts. I explained to the husband and that if at a final hearing I was satisfied there was deliberate nondisclosure and it may have an impact on the case. I also warned him that if he did not participate in the proceedings in a meaningful way the hearing would proceed on an undefended basis. I made it clear to him that if he wants to make an argument about contributions it is incumbent on him to provide the evidence in support of his case. I also warned him that he would not be permitted to simply rely on documents not previously disclosed if he attended the final hearing with a bundle of documents. Throughout that appearance husband was belligerent and disruptive. Due to his behaviour it was necessary for me to take an adjournment and security were called. The husband’s disruptive conduct continued whilst I delivered all reasons and made further orders, and the husband had to be escorted from the Court room.
On 14 July 2016 her Honour ordered that the husband pay the wife’s costs of the second failed conciliation conference, and made further orders providing for the disclosure of documents by the husband. Again, the husband failed to comply with those orders. He did file an affidavit on 4 August 2016, but it was woefully inadequate. It contained no deposition, and merely annexed three documents. First, was a letter from his parents stating that they confirmed that they had a 50 per cent interest in the property. Secondly, there was a letter from the 17 year old son of the parties which said that his mother told him that his grandparents lent his parents $20,000 to help them buy the house, and that that loan had since been repaid.
Plainly, neither of these documents was admissible as evidence, and they should have been struck out by the primary judge.
Thirdly, there was a document headed “General loan enquiry” which recorded that a home loan of $90,000 was “issued” on 22 March 1996 to the parties. However, there was no indication as to the name of the lender, and again this document is inadmissible and should have been struck out by her Honour. The husband relied on that document to establish that this was the first loan taken out by the parties in relation to property H1. Plainly though, as her Honour said at [36], the document does not establish that, but, for the wife’s part she did not dispute that the parties borrowed $90,000 from the Bank in 1996.
The husband also filed an affidavit on 12 August 2016, but nothing in that affidavit related to property H1.
The husband then filed a further affidavit on 19 August 2016, annexing further documents. First, there was a copy of the auction advertisement for Property H1, indicating that the auction was to take place on 21 September. Secondly, there was a handwritten, undated, and unsigned document said by the husband to be written by him entitled “Proposed structure of deal to purchase a home”. This document set out a number of proposals and figures and percentages in relation to the purchase of a property, the renting of the same, and the building of another property, including references to the husband’s parents.
Plainly, even if admissible, this document could not assist the primary judge in determining what in fact happened in relation to the purchase of property H1. No weight whatsoever could be attached to it.
The third annexure was a copy of a sales receipt issued by a real estate agent and dated 21 September 1991, showing that the parties paid a deposit by cheque in the sum of $12,050. As for that, her Honour noted in [53] that the husband did not provide any bank statements other than a single page, and that fell well short of the husband’s disclosure obligations.
On 1 September 2016, the husband filed another affidavit, and an outline of case to which was annexed further random documents. One of those documents was a letter from “Land and Property Transfers Conveyancing Services” dated 15 November 1991, setting out the cheques required for settlement of the purchase of Property H1 on 20 November 1991. None of that of course assists the husband, but on the reverse side there was what the husband says is his handwriting, comprising several calculations. There are columns headed “G” and “T” and “Mum and Dad”, and another section headed “G’s Dad”. The husband says that this sets out the calculations of what he and the wife paid, and what his parents paid. However, again, even if admissible, no weight could be attached to this self-serving material, there being no credible evidence of its provenance, including when the handwriting was placed on the document.
There was one annexure which was a largely illegible letter from the Bank containing a home loan offer of $50,000 dated 11 November 1991, and addressed to the husband’s parents. Again, even if admissible, no weight could be attached to this document. The letter does not identify the property to which the loan offer relates, there is no admissible evidence that the parents accepted the offer and took out a loan, and importantly, it does not establish that the husband’s parents took out a home loan in order to purchase an interest in property H1.
Other annexures were handwritten self-serving documents, with no probative value whatsoever.
The final hearing was due to take place on 7 September 2016, but the matter was not reached. The day before the husband filed affidavits by his parents which were completely inadequate. At what became a mention on 7 September 2016, the husband was represented by counsel, and significantly, counsel conceded that the husband had failed to provide full and frank disclosure, and that if his parents were not made available for cross-examination, their affidavits would not be able to be relied upon. The husband did not make his parents available for cross-examination, and as a result her Honour ultimately drew an adverse inference against the husband that their evidence would not have assisted his case (at [150]).
Subsequent to this mention the husband filed two further affidavits, namely on 18 January 2017 and 27 January 2017. There was nothing of relevance in these affidavits, or the attachments thereto, which bore upon the purchase of property H1, and no further disclosure was made by the husband.
In that regard, her Honour relevantly found as follows:
118.I am satisfied that the husband had deliberately failed to comply with his obligations to provide full and frank disclosure. He has been on notice for many months that failure to comply with Court orders for disclosure would have serious consequences for his property claim. This has been spelt out to him on more than one occasion including when he had the benefit of legal representation. In this regard I refer to [7] – [11] above and [3] and [4] of Kappas & Kappas (No.2) [2016] FCCA 1854.
The circumstances of the purchase of property H1 was a principal issue before her Honour.
The husband’s case was that of the purchase price of $120,500 and the associated costs, he and the wife contributed $62,000 from savings and his parents contributed $62,000, $50,000 from a loan from the Bank, and $12,000 from savings.
The wife’s case was that money was borrowed from the husband’s parents, and at least $20,000. Further, she recalled that the parties took out a significant loan with the Bank to fund the purchase. Certainly the wife denied that the husband’s parents had an equitable interest in the property which she and the husband held on trust for them.
The husband at trial and in this appeal focussed on the wife’s recollection that a loan was taken out from the Bank to fund the purchase. He cross-examined her at length about this, and her recollection of how much his parents lent them, and it is necessary to set out some of that cross-examination as follows:
You also state in your affidavit that you – that we got a bank loan in 1991 to purchase the property; is that correct?---…..
Do you have any evidence for that?---No.
And you also state that we got a $20,000 loan from my parents; is that correct?---Yes.
Okay. So you acknowledge that any way you look at your statements, external source of funds was required to purchase the property?---Yes.
If a bank loan was taken, would the bank have documentation about that loan?---It’s too long ago.
Is that what the bank told you?---Yes.
Really? Have you got evidence of that?---That there was no evidence?
Have you got evidence that the bank says that their records finish prior to 1991?---That was before computerisation
(Transcript 30.1.2017, page 51, lines 7 – 26)
…If a loan was taken out, would it be registered as a mortgage on the title?
MR MARCHETTI: Well, your Honour, I object to that. It could be a whole lot of things. It could be a personal loan. It could be a mortgage. It could be a credit card. It’s a - - -
MR KAPPAS: She stated a bank loan.
HER HONOUR: Yes, which could be - - -
MR KAPPAS: Both of us.
HER HONOUR: - - - a personal loan, credit card.
(Transcript 30.1.2017, page 51 lines 44 – 45, page 52 lines 1 – 11)
The husband then refers to the annexure to his affidavit of 4 August 2016, which comprised a home loan enquiry identifying a loan of $90,000 issued on 22 March 1996, and his cross-examination continued:
HER HONOUR: Hang on, sorry. All right. So it’s that document. And what’s the objection? Well – yes, what’s the objection to the - - -
MR MARCHETTI: The objection is that it is not something that can be identified in any fashion. The assertion is put that that’s a document from the Bank. There is nothing to identify it. If anything, I read at the bottom of it that it looks as if it’s something that’s downloaded from Google.
(Transcript 30.1.2017, page 54 lines 1 – 7)
MR KAPPAS: All right. We can call the bank here if you like, your Honour. We can get – we can get something to verify that this is an actual [Bank] printout of the first loan in 1996.
MR MARCHETTI – Even if it is - - -
HER HONOUR: Well, Mr Kappas, it doesn’t say – the document doesn’t say that it’s from the Bank.
MR KAPPAS: But - - -
HER HONOUR: All I can take is what – the face value of the document. Right.
MR MARCHETTI: And the aspect. And even if, your Honour, it was to be – because my client accepts and puts in evidence that they did borrow money in 1996, it’s the next limb, that Mr Kappas asserts that it’s the first loan. In my submission, that’s not apparent from the document.
HER HONOUR: So - - -
MR MARCHETTI: The [Bank] - - -
HER HONOUR: - - - it may well be that there is no issue - - -
MR MARCHETTI: There is no issue that there was a $90,000 - - -
HER HONOUR: - - - that the parties borrowed $90,000 from the [Bank].
MR MARCHETTI: Yes, in 1996.
HER HONOUR: Six. Okay. Yes. The issue that this document doesn’t prove one way or the other is whether that was the first loan.
(Transcript 30.1.2017, page 54 lines 14 – 46)
HER HONOUR: There’s an objection. He’s entitled to object. You’ve got to argue it. And so, yes, Mr Marchetti?
MR MARCHETTI: There’s a number of facts in there that simply (a) are not correct but, in any event, are being put that are not facts in evidence, and particularly with reference to a Land Titles Office, its obligations to register things or any other hearsay evidence that appears Mr Kappas wants to elicit which is otherwise not in evidence by the Bank.
(Transcript 30.1.2017, page 55 lines 41 – 46, page 56, lines 1 – 2)
HER HONOUR: Isn’t one of the very issues that you’ve been raising is whether it was a mortgage or some other loan?
MR MARCHETTI: My client says that there has been a loan, but - - -
HER HONOUR: Yes. The issue was was it a mortgage or not.
MR MARCHETTI: Yes, yes. And she – and the answer has been, “I simply don’t know. I can’t answer.”
MR KAPPAS: What sort of loan was it that you’re suggesting it was?---I don’t know.
(Transcript 30.1.2017, page 56 lines 23 – 34)
HER HONOUR: Well, she is not accepting the proposition of it being a mortgage. I mean, I don’t know how much further you can take that – that point. The issue for me is going to be to determine is how is the purchase funded initially?
MR KAPPAS: Well, that’s what I’m suggesting to your Honour. I’ve already explained there’s two sources refuting it.
HER HONOUR: I understand your case.
MR KAPPAS: The Bank document says that there is no bank loan taken out in 1991. The Mortgage Titles Office says there’s no registered mortgage on the title in 1991.
HER HONOUR: Where is the – where is a land title search showing – point to me in the documents where there is a land title search showing what was on the title as at 1991.
MR KAPPAS: That was done by - - -
HER HONOUR: Show me the document that has been filed in court.
MR KAPPAS: I – it was submitted by S, the previous lawyer.
HER HONOUR: Well - - -
MR KAPPAS: I don’t have it.
HER HONOUR: - - - nothing was submitted by – the only documents that have been filed by lawyers on your behalf were by Lampe Lawyers filing your response, financial statement and affidavit in April 2016. Your subsequent lawyers have not filed any documents in this case.
MR KAPPAS: Okay. If I may, your Honour, then, if it can be shown that any loan of a magnitude - - -
HER HONOUR: Sir, sir, sir, answering my question, so are you telling me that that document is not before the court?
MR KAPPAS: I don’t have it.
HER HONOUR: All right.
(Transcript 30.1.2017, page 56 lines 44 – 46, page 57 lines 1 – 37)
MR KAPPAS: …You say in your affidavit that we borrowed $20,000 from my parents; is that right?---Yes.
How do you explain borrowing $20,000 from my parents when we went and got a bank loan, according to you, to purchase the property? Why didn’t we buy – why didn’t we borrow $20,000 more? You say you don’t know how much we borrowed in 1991; correct?---Correct.
Okay. So we got a loan in 1991 that you’ve got no evidence for and, apparently, neither do I, and we went and borrowed $20,000 less than we could have to go and borrow $20,000 from my parents, while in February 1992 there was $34,000 in my account. Is that what you suggest? Those – all those things reconcile for you?
HER HONOUR: Sir, you’ve asked her several things all at once. They’ve got to be broken down. So one of the questions is, “So your evidence is that you and your husband borrowed from the bank but also borrowed $20,000 from his parents?” What he is asking you is, well, why did you borrow money from his parents if you also took out a loan from the bank?---Because that’s what he wanted to do.
(Transcript 30.1.2017, page 60 line 46, page 61 line 15)
Pausing there, the evidence does not demonstrate that the wife’s recollection was incorrect, and it certainly does not demonstrate that there was no loan taken out by the parties in 1991 to assist in the purchase of the property.
It is convenient at this point to refer to the further evidence that I have received, subject to it demonstrating that the orders under appeal are erroneous. That evidence is a copy of the certificate of title which should have been produced by the husband at trial. That document indicates that there was no mortgage registered on the title to the property in 1991, but that a mortgage to the Bank was registered in 1996. However, that still does not demonstrate that the wife’s recollection as to what happened in 1991 was incorrect, and that there was no loan taken out then. Thus, it does not establish that her Honour has erred in accepting the evidence of the wife in that regard, and making the findings that she did at [157] – [160]. Accordingly, there is in fact no basis for that document to be received as further evidence, and the application in an appeal will be dismissed.
More importantly, and what the husband appears to have lost sight of, is that there was no admissible or credible evidence that established that the husband’s parents provided $62,000 towards the purchase of the property on the understanding that they would thereby have an equitable interest in the property held on trust for them by the parties.
Indeed, what evidence there was established that that was not the case. For example, as conceded by the husband, when obtaining finance subsequently from various lending institutions, he represented to those institutions that he and the wife owned property H1 and no mention was made of any interest therein by his parents.
Plainly, the failure to provide full and frank disclosure, the failure to make his parents available for cross-examination, and the evidence of the wife, and to a certain extent the husband’s own evidence, was sufficient for her Honour to reject the claim that the parents had an interest in the property, but for some reason, seemingly instigated by the wife’s counsel, the primary judge at [140] – [149] launched into an irrelevant and confused consideration of two cases, including a comparison of the facts of those cases with the facts of the instant case.
Fortunately, that diversion does not lessen the fact that the husband failed to establish his case before her Honour, and he has not demonstrated to this Court that her Honour erred in any of her findings. Those findings were reasonably open on the evidence, and it is insufficient to establish that an alternative finding might have been available. Thus, the appeal will be dismissed.
Costs
At the conclusion of the hearing the parties made submissions as to costs depending on the result of the appeal.
If the appeal was dismissed the wife sought an order for costs calculated on an indemnity basis. The amount sought was $10,276, but if only party/party costs were awarded then the amount sought was $8,700.
The husband opposed any order for costs.
There is no question that there should be an order for costs. At the very least the circumstance that justifies such an order is the fact that the husband has been wholly unsuccessful in his appeal (ss 117(2) and (2A)(e) of the Family Law Act 1975(Cth)).
Although it is somewhat unclear, it seems that the husband’s opposition to any order for costs is based on his alleged poor financial circumstances. However, this Court has consistently held that impecuniosity is not a bar to there being an order for costs where there are circumstances otherwise that justify it (D & D (Costs) (No. 2) (2010) FLC 93-435). That is the case here.
That still leaves the question of whether the costs ordered are to be calculated on the usual basis, namely on a party/party basis, or by way of indemnity.
In support of the application that indemnity costs be awarded, the wife relied on the failure by the husband to comply with the order for the filing of a summary of argument, and on the husband’s appalling behaviour in court, as well as his intransigence in the conduct of the appeal.
These are serious and concerning matters, but the authorities tell us that a court should not depart lightly from the ordinary rule relating to costs between party and party, and the circumstances justifying departure should be of an exceptional kind (Kohan & Kohan (1993) FLC 92-304, Limousin & Limousin(Costs) (2007) 38 Fam LR 478, and D & D (Costs) (No. 2)).
Examples of circumstances that might warrant the exercise of discretion to award indemnity costs are provided by Sheppard J in Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248, but the categories of circumstances are not closed.
Here, although the issues raised have some synergy with circumstances that have been found to be sufficiently exceptional, I am not disposed to depart from the normal rule, and the costs will be on a party/party basis fixed in the sum of $8,700.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 April 2018.
Associate:
Date: 6 April 2018
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