KARLSSON & KARLSSON (No.2)
[2020] FCCA 144
•29 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KARLSSON & KARLSSON (No.2) | [2020] FCCA 144 |
| Catchwords: FAMILY LAW – Application for summary dismissal of application to set aside or vary final property orders. |
| Legislation: Family Law Act 1975 (Cth), ss.45A, 79A, 81, 106A |
| Cases cited: Green & Kwiatek (1982) FLC 91 Holland & Holland (1982) FLC 91-243 Kennedy & Thorne (2016) FLC 93 Lane & Lane (2016) FLC 93-699 Prowse & Prowse (1995) FLC 92 Stativa & Stativa [2015] FamCAFC 170 |
| Applicant: | MR KARLSSON |
| Respondent: | MS KARLSSON |
| File Number: | SYC 8036 of 2017 |
| Judgment of: | Judge M Neville |
| Hearing date: | 24 October 2019 |
| Date of Last Submission: | 24 October 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 January 2020 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Levy |
| Solicitors for the Respondent: | Barkus Doolan |
| Solicitors for the Independent Children's Lawyer: | Ms Blackman of Legal Aid NSW |
THE COURT ORDERS THAT:
The Initiating Application filed on 7 June 2018 is dismissed.
By way of implementation of, and to put into effect, the Orders of 4 September 2017, within seven (7) days of the date of these Orders, each party shall do all acts and things, provide all written instructions and consents and provide all necessary directions and authorities to cause For C Lawyers to forthwith pay to the Respondent Wife from funds held on behalf of the parties in the C Lawyers trust account, the sum of $37,644.16 representing the estimated capital gains tax liability of the Respondent Wife arising as a consequence of the sale of the property at D Street, Property A, New South Wales.
Pending determination of the Respondent’s application for costs, the Applicant is restrained from providing any instructions, directions or authorities to C Lawyers to deal with and/or pay any monies held on trust for the parties, or either of them, by C Lawyers other than in compliance with order 2 herein or by further order of this Court.
The director(s) and/or partner(s) of C Lawyers are requested and authorised to disburse to the Respondent pursuant to Order 2 herein from funds held in trust on behalf of the Applicant and the Respondent, and the Respondent has leave to provide a copy of these orders to C Lawyers.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to any or all of these orders, then a Registrar of the Federal Circuit Court is appointed pursuant to section 106A of the Family Law Act1975 (Cth) to execute all such documents, deeds and instruments in the name of the refusing and/or neglecting party.
The Respondent’s application for indemnity costs is adjourned to a date to be fixed.
IT IS NOTED that publication of this judgment under the pseudonym Karlsson & Karlsson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 8036 of 2017
| MR KARLSSON |
Applicant
And
| MS KARLSSON |
Respondent
REASONS FOR JUDGMENT
Mr Karlsson (the Husband) seeks to set aside property orders made by consent on 4 September 2017. Ms Karlsson (the Wife) opposes the application and seeks that the Husband’s application be summarily dismissed.
The application was listed for final hearing on 24 October 2019.
The parties are also in dispute about parenting arrangements for the 3 children of the marriage. Those proceedings remain on foot and are listed for further, separate case management in early 2020.
Background
The parties were married in 2001. There are 3 children of the marriage.
They separated on final basis on 15 December 2015 and were divorced on 22 April 2017.
On 24 June 2016, the parties made an application to the Local Court of New South Wales at Town E for consent orders and those orders were made on 28 June 2016.
In broad terms, the final consent orders of 28 June 2016 provided, relevantly:
a)The property at F Street, Suburb B (“the F Street, Suburb B property”) was to be sold and upon completion of the sale, once various costs had been met, the net balance of the sale proceeds would be divided 60% to the Wife, together with the sum of $94,000 to her, and 40% to the Husband.
b)Simultaneously on the settlement of the F Street, Suburb B property, the Husband was to do all things necessary to discharge the mortgage over the D Street, Property A property and the Wife was to transfer her interest in D Street, Property A to the Husband.
c)There be a superannuation splitting order.
d)The Husband transfer to the Wife his interest in the household effects and a Motor Vehicle 1.
e)That otherwise, each party retain all property in their possession and money held at bank.
In correspondence between the parties’ respective legal representatives the Husband informed the Wife in or around August 2016, that he had been delayed in obtaining refinance on the D Street, Property A property on the basis that he was yet to complete his “taxation affairs” for the financial year ending 30 June 2015.
On 29 September 2016, the Wife filed an Initiating Application seeking relief pursuant to s 79A of the Family Law Act, in particular, she sought that the orders of 28 June 2016 be set aside and that further orders be made, relevantly:
a)The Husband pay to Wife the sum of $80,000.
b)Simultaneous to that payment, the Wife transfer to the Husband her interest in the D Street, Property A property; and the Husband discharge the mortgage held over the property in the parties’ joint names.
c)In the event the Husband defaulted on the orders, that the property be sold by the parties by private treaty and in the event there was no sale within 3 months, by public auction.
d)Superannuation splitting orders.
The Wife’s application was listed for first return on 7 November 2016 and on that date, it was adjourned to 23 February 2017. In the meantime, the Wife had filed an application in a case seeking, inter alia, an enforcement hearing in relation to the 28 June 2016 orders.
On 23 February 2017, the parties entered into further consent orders. Those orders provided, relevantly:
a)The Husband was to forthwith transfer to the Wife, his interest in the D Street, Property A property and was to sign all necessary documents to discharge the registered mortgage over the property and provide a copy of the discharge of mortgage together with the transfer.
b)Within 14 days of the orders, the Husband was to deliver up to the Wife vacant possession of the D Street, Property A property and thereafter the Wife was to list the property for sale at the best price attainable having regard to the condition of the property and prevailing market conditions and if there be no sale within 3 months, that the property be sold by private auction.
c)The operation of the orders be suspended until 4:00pm on 6 April 2017.
d)In the event that, any time prior to the exchange of contracts, the Husband discharged the mortgage and provided proof the Wife of same then the Wife was to withdraw the property from sale.
It appears that there were further delays in the completion of the Husband’s tax returns and the parties – both personally and via legal representatives – negotiated an extension of time for the implementation of the orders to allow the Husband further time to secure the necessary finance.
On 20 July 2017 on application by the Wife (in accordance with the provisions of the consent orders of 23 February 2017), the Court made orders pursuant to s 106A of the Family Law Act that the Registrar execute the transfer of the D Street, Property A property to the Wife.
On 14 August 2017, the Wife applied to the Australian Taxation Office (“ATO”) for a private ruling in relation to any capital gains tax liability arising on the sale of the D Street, Property A property.
On 4 September 2017, the Court made further orders including the order the Husband now seeks to set aside, being order 6(a) of the orders of 4 September 2017. That order varies the orders of 23 February as follows:
(6) Order made 23/02/17 be varied so as to include:
(a) By adding at the end of 6(f) the words “and to the Applicant Wife in the amount of any tax liability attaching to the Applicant Wife, arising from her interest in D Street, Property A including but not limited to tax on the capital gain on D Street, Property A with such capital gain to be determined by Mr G (sic), accountant acting on the Wife’s instructions PROVIDED THAT the Husband is provided with full access to the communications regarding the determination by Mr G (sic) AND IN THE EVENT the Husband has a concern about the capital gain determination he has liberty to re-list on 28 days' notice”.
Each party was represented by counsel at the appearance on 4 September 2017.
On 13 September 2017, the Wife’s former solicitors wrote to the Husband’s former solicitors enclosing a copy of the Wife’s application to the ATO for a private ruling.
On that same date, Mr G (the Wife’s accountant) sent an email to the Husband estimating a capital gains tax liability of $7,529.
On 18 September 2017, the ATO notified the Wife of the outcome of the private ruling, informing her that she will not be exempt from capital gains tax on the sale of the D Street, Property A property.
On that same date, the sale of the D Street, Property A property settled. The sale price was $650,000.
On 20 September 2017, the Wife’s former solicitors forwarded a copy of the private ruling (together with other documents) to the Husband’s former solicitors.
On 30 October 2017, Mr G drafted a letter to the Wife’s lawyers estimating a capital gains tax liability of $34,271. On that same date, he provided the draft to the Husband by email inviting his comment prior to forwarding it to the Wife’s solicitors.
On 31 January 2018, Mr G (the Wife’s accountant) sent an email to the Wife informing her, inter alia:
a)He had sent a draft on the capital gain issue to the Husband on 13 September 2017;
b)He has not had contact from the Husband since that date.
c)He is retiring and will not act for either the Husband or the Wife from the date of the email.
As at the date of hearing, the sum of $65,000 remains in a solicitor’s trust account, held on behalf of the parties. That money is the remainder of the proceeds of sale of the D Street, Property A property following the application of the sale proceeds to the various expenses associated with the sale and following distributions to the parties. The parties have been in dispute as to how that money ought be applied and released.
The parties’ material
Each party had prepared a summary of argument document setting out the documents they relied upon, the minute of order sought, objections and summary of argument.
The Husband relied upon the following documents:
a)Initiating application filed 7 June 2018.
b)His affidavits filed 9 December 2016; 7 June 2018; and 25 September 2019 and the exhibits to each.
c)His financial statement filed 7 June 2018.
d)Affidavit of Mr H, filed 18 October 2019.
The wife relied upon the following documents:
a)Amended Response filed 18 October 2019.
b)Her affidavit filed 18 October 2019.
c)Her financial statement filed 15 February 2019.
The Law
As noted, the parties entered into consent orders to adjust their property interests on 29 June 2016. Section 81 of the Family Law Act provides:
In proceedings under this part, other than proceedings under section 78 of proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
Section 79A of the Family Law Act provides, relevantly:
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
It is clear from the terms of the legislation, that where the Court is satisfied that any of the matters set out at s 79A(1)(a) – (e) are made out, it does not necessarily follow that the orders will be varied or set aside. The setting aside or variation of orders remains within the Court’s discretion: see Prowse and Prowse (1995) FLC 92-557.
As was observed by the Full Court in Prowse and Prowse, where relief is sought pursuant to s 79A(1)(a) the onus falls to the Applicant to satisfy the Court not only that there has been a miscarriage of justice, but that the appropriate exercise of the Court’s discretion is to set aside or vary the final orders.
Where relief is sought pursuant to s 79A(1)(c), the legislation is clear that not only does the Court need to be satisfied that there has been a default in relation to orders, and, in the circumstances arising from the default, it is just and equitable to vary the order or to set aside the order and make orders in substitution for the order.
The Court’s power to summarily dismiss proceedings is found at s 45A of the Family Law Act which provides, relevantly:
Summary decrees
…
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:(a) hopeless; or
(b) bound to fail;to have no reasonable prospect of success.
…
The Court is to take a cautious approach to summary dismissal of proceedings. As was observed by the Full Court in Stativa & Stativa [2015] FamCAFC 170:
[8] The power to summarily dismiss an action must be rarely and sparingly used (see Pelerman v Pelerman). The Full Court discussed the power of the court to summarily dismiss proceedings in Bigg v Suzi and adopted the articulation of the principles of Kirby J in Lindon v The Commonwealth (No 2) which may conveniently be summarised thus:
· It is a serious matter to deprive a party of access to the courts and the power to do so should be rarely and sparingly used;
· The party seeking summary dismissal must show that it is clear on the face of the other party’s documents that the other party lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
· That a case appears weak and unlikely to succeed is of itself not sufficient to satisfy summary dismissal;
· If there is a serious legal question to be tried, then it should ordinarily be determined at a trial of the issues;
· Where, notwithstanding a defect in the pleadings, if it appears that a party may have a reasonable cause of action which has not been put in proper form, a Court will ordinarily allow that party to reframe the pleadings; and
· The “guiding principle” is doing what is just. Kirby J said at [6]:
If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
[9] Finally in Pelerman v Pelerman the Full Court, in setting out the principles articulated in Bigg v Suzi, said at [46]:
...The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(citations omitted)
Preliminary issues arising
In his Initiating Application filed 7 June 2018, the Husband sought orders as follows:
(1)That pursuant to section 79A of the Family Law Act 1975 Order 6(a) of the consent orders made 4 September 2017 is discharged.
(2)That the Respondent Wife shall pay the Applicant’ Husband’s costs of and incidental to this Application on an indemnity basis.
Throughout the life of these proceedings, no order was ever made for amendment of the Initiating Application and no Amended Initiating Application was filed.
In accordance with trial directions, each party filed a summary of argument prior to the commencement of the proceedings. In his summary of argument, the Husband set out a minute of final order sought. His proposed minute significantly expanded the relief sought in his Initiating Application to include, inter alia:
a)The payment of money to the Husband by the Wife arising from what was contended to be a sale of a property below market value in breach of orders;
b)The enforcement of earlier orders that the Wife pay to the Husband orders for a cash adjustment in favour of the Husband by the Wife;
c)The release of funds currently held on trust for the parties, to the Husband;
d)A setting aside of property orders made in June 2016 to seek a “50/50” split in non-superannuation orders as well as orders for the splitting of superannuation;
e)The transfer of property by the Wife to the Husband in the event she defaults on the above orders;
f)The Wife pay the Husband’s costs on an indemnity basis including “an allowance at scale” for the Husband’s self-representation in the proceedings.
Counsel for the Wife objected to this expansion of the Husband’s case in circumstances where there was no formal amendment of the pleadings and the only notice given by the Husband of his intention to expand the relief sought was on the eve of the hearing, after business hours.
Having regard to the principles arising on an application for summary dismissal, the parties agreed that it was appropriate to first hear the Wife’s application for summary dismissal on submissions based on the parties’ evidence. In those circumstances, the Husband elected to press only for the relief set out in the Initiating Application filed by him on 7 June 2018 together with the following order:
1(e) That each party do all acts and things, sign and execute all documents and provide written instructions and consents to cause C Lawyers to immediately release the remaining $65,000 plus interest currently held in trust on behalf of the husband to the husband in full. The wife is to pay any costs incurred by C Lawyers in administering the monies in trust and complying with this order.
Discussion
The Husband contends that order 6(a) of the orders of 4 September 2017 should be set aside or varied pursuant to s 79A(1)(a) on the basis that there has been a miscarriage of justice and, or in the alternative, pursuant to s 79A(1)(c) on the basis that a person has defaulted in carrying out an obligation imposed on them by the orders that, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.
Approach to the determination of applications pursuant to s79A(1)(a)
In order to determine the application for summary dismissal, it is necessary to set out the approach to be taken to the determination of an application made pursuant to s 79A(1)(a).
The determination of an application pursuant to s 79(1)(a) requires a three part inquiry:
a)A determination as to whether there has been fraud, duress, suppression of evidence, giving of false evidence or any other circumstance it is contended gives rise to a miscarriage of justice;
b)If any one of those matters are found, a determination as to whether a miscarriage of justice has occurred; and
c)If there has been a miscarriage of justice, a determination as to whether the Court should exercise its discretion to set aside or vary the orders.
Given that the Husband contends that a miscarriage of justice has occurred in relation to the orders of 4 September 2017 based on allegations including duress and fraud by the Wife, it is useful, at this point, to set out the tests the Court is to apply to find “duress” and “fraud”.
A finding of duress for the purposes of s 79A of the Family Law Act requires more than a finding that a party felt pressured to act in a particular way.
In Kennedy and Thorne (2016), FLC 93-737, the Full Court set out the test for duress as being pressure exerted through “threatened or actual unlawful conduct” (at [71]). The Full Court considered that it was not sufficient that the pressure may be overwhelming and that there is “compulsion” or “absence of choice” (at [73]), the pressure must be exerted through threatened or actual unlawful conduct.
In relation to fraud, in Green and Kwiatek (1982) FLC 91-259, the Full Court observed:
The definition of “fraud'', both equitable and at common law, has been well settled since the celebrated definition of Lord Herschell L.C. in Derry v Peek (1889) 14 A.C. 337 at p. 374. The learned trial Judge restated that definition in the following terms:
“Fraud in this context consists of a false statement of fact which is made by one party to a transaction to the other knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false, with the intent that it should be acted upon by the other party and which was in fact so acted upon.''
Fraud is a serious allegation to make against a person and the onus falls squarely to the Husband to prove that the Wife has, in fact, engaged in fraud.
The parties’ competing positions
The Wife seeks summary dismissal of the application. She contends that having regard to the Husband’s evidence, and taking his case at the highest, the Court could not be satisfied that he has any prospect of successfully prosecuting his case.
The Husband contends that there has been a miscarriage of justice in relation to the orders of 4 September 2017 arising from the following matters:
a)In relation to the ground set out at s 79A(1)(a):
i)At relevant times, the Wife suppressed evidence (including by way of failing to disclose relevant information and making false or misleading statements);
ii)The Wife filed a fraudulent Initiating Application on 23 September 2016;
iii)The Husband was subject to duress;
iv)There was a denial of due process;
v)The Wife failed to comply with Court orders; and
vi)The Wife acted so as to challenge the authority of the Court.
b)In relation to the ground set out at s 79A(1)(c):
i)The Wife was and remains in default of the consent orders of 28 June 2016 in that she failed to meet her share of the outgoings on the parties’ property and that she neglected to do all acts and things necessary to give effect to orders for the transfer of property.
He contends that the miscarriage of justice has resulted in loss and detriment to him such that the Court should exercise its discretion to vary or set aside order 6(a) of the orders of 4 September 2017.
He further contends that the loss and detriment he has suffered as a result of the Wife’s breach or default on the orders of 28 June 2016 make it just and equitable to vary or set aside order 6(a) of the orders of 4 September 2017.
Approach taken by the Husband
The Husband did not press for the setting aside or variation of orders other than order 6(a) of the orders of 4 September 2017. As discussed earlier, that order varies an order made on 23 February 2017. It was not controversial that the orders of 23 February 2017 arose out of an application to enforce the consent orders of 28 June 2016.
As I understand the Husband’s position he contends that the conduct of the parties and the procedural history of the matter from the time of separation leading up to and culminating in the making of order 6(a) on 4 September 2017 indicates fraud, duress, suppression of evidence or a giving of false evidence by the Wife such as to trigger a miscarriage of justice in the order that is the subject of the relief he now seeks.
In Lane and Lane (2016) FLC 93-699 a majority of the Full Court (Ainslie-Wallace and Ryan JJ) affirmed the principle that the words “miscarriage of justice” should not be construed narrowly, citing Barker and Barker (2007) 36 Fam LR 650 as follows:
[120] A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process (original emphasis)” (Bigg v Suzi). See also Suiker; Public Trustee (as executor of the estate of Gilbert) v Gilbert. While cases such as Suiker; In the marriage of Holland; and In the Marriage of Gebert indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation. As the Full Court said in Holland (above at 239):
To succeed in an application under s 79A, the wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlements under s 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.
(Citations omitted)
The Husband has given detailed evidence about these matters and made comprehensive submissions in relation to the entire history leading up to the making of the orders on 4 September 2017. Accordingly, I shall consider the history of the litigation.
Circumstances leading up to the making of the orders of 4 June 2016
Following separation, the parties started to discuss their future parenting and property arrangements. The Husband gives evidence that they agreed to 3 fundamental principles in the discussion and negotiation process:
a)They would remain amicable and focused on the children’s best interests; and
b)They would resolve issues reasonably and in good faith, without the use of lawyers; and
c)Child support arrangements would be made informally so as to be supportive of the children’s needs and to provide flexibility for changing circumstances.
Throughout the process of the negotiation, the Husband contends the Wife was “driving and controlling the drafting of consent orders” to effect a settlement, and that the consent orders made on 28 June 2016 were ultimately under her “control and direction”. He accuses her of directing the drafting, of only allowing him to see drafts when she chose, and of acting as a “gatekeeper” for his comments “filtering those she chose to pass on to her solicitors”.
I infer from his comments in this regard that he was aware throughout at least some of that process that the Wife was obtaining legal advice. There can be no criticism of her for doing so. She was then, and is now, entitled to seek legal advice in relation to her rights and the obligations and consequences created by proposed court orders.
The Husband contends that in the course of negotiation with the Wife, he discussed capital gains tax liability with her and accepted “in good faith” the Wife’s reassurances that “it was not a problem” and that a transfer pursuant to family law orders would “extinguish any pre-existing liability”[1].
[1] Affidavit of the Husband, 25 September 2019 at [16].
He complains that the Wife provided him with the form for an application for consent orders which had already been completed in part by her. He says that the form that was provided to him did not accurately disclose his financial and non-financial contributions to the property of the marriage and that his contributions were greater than were set out by the Wife in that form. He further contends that the Wife had checked the “agree” box on his behalf and when he queried this with her, she again indicated, and he again accepted, that it was not a matter of significance and she otherwise refused to include his financial and non-financial contributions in the form.
I do not consider that it is relevant to determine the issue of whether or not the Wife made such representations in relation to the application for summary dismissal as I approach the application taking the Husband’s evidence at its highest.
The Husband gives evidence that he decided to “keep the peace” and not insist on an accurate reflection of his contributions on the basis that he understood that the parties had a “good faith” agreement. He signed the draft consent orders and the application for consent orders form notwithstanding his dissatisfaction with the information contained within them. They were submitted to the Court for consideration and orders were subsequently made.
The Husband’s affidavit of 25 September 2019 demonstrates that at the time he signed the application for consent orders, he was alive to the fact that the document did not adequately or accurately reflect the contributions he contends he made to the property of the marriage. This is not a new development or a matter that was not within his knowledge at the relevant time. Indeed, in his affidavit filed on 9 December 2016, he gives evidence (at [27]) that he and the Applicant agreed that the significant financial contributions he contends for would be ignored for the purpose of the settlement and orders, for the sake of simplicity.
In his affidavit filed 25 September 2019, the Husband gives evidence that he realises that the onus was on him to seek advice regarding the orders and capital gains tax issues. It is clear he had the opportunity to do so. The draft consent orders include a statement of Independent Legal Advice signed by Ms J, lawyer and he accepts he attended upon a solicitor.
In relation to that attendance, he explains that he had a “one-off, one hour” consultation to satisfy the requirement that he obtain legal advice, and that he signed the consent orders on the basis of the “good faith” and “no lawyers” agreement between the parties.
The Husband is an educated man who must have contemplated that the proposed consent orders would, once made, give rise to obligations and entitlements. He had the opportunity to obtain legal advice notwithstanding the “good faith” and “no lawyers” approach he considered the parties had settled upon.
To the extent that the Husband contends that the Wife failed to disclose the true nature and extent of the Husband’s financial and non-financial contributions to the parties’ joint assets in the application for consent orders prepared by her, I do not find that this is the case. Even if I am wrong about that, it appears from the Husband’s affidavit filed 9 December 2016 (at [27]) that if the Husband’s financial and non-financial contributions were not included in the application for consent orders, it was with his knowledge and agreement.
Even if the Wife had failed to include the contributions the Husband now contends for, the onus did not fall to her to disclose or particularise them in a jointly signed application for consent orders. If the matters set out in the application for consent orders prepared by the Wife were disputed and if the Husband intended to pursue the dispute, the onus fell to him to correct the information, particularly in circumstances where he signed the Statement of Truth appearing at Part L of the application.
I do not consider that information provided by the Wife in the application for consent orders represented duress, or was otherwise fraudulent, a suppression of evidence, false evidence or is in any other way a circumstance that would give rise to a miscarriage of justice.
In his evidence, the Husband describes the parties’ agreement about the manner in which they would negotiate as “undertakings” and accuses the Wife of having unilaterally broken and revoked them. Whether or not the parties ever made such undertakings to each other, it was not suggested by the Husband and nor does the Court file reflect that they were undertakings given to the Court. Even if the Wife breached or revoked the “undertakings”, whilst it may have been contrary to an agreement the Husband understands the parties to have reached, it was not contrary to any undertaking give to the Court nor any direction or order made by the Court.
Accordingly, I find that the manner in which the Wife negotiated in relation to the consent orders of June 2016 including engaging a lawyer does not amount to conduct falling within any of the circumstances set out at s 79A(1)(a) that would give rise to a miscarriage of justice.
To the extent that the Husband contends that the Wife was “well aware of the CGT liabilities on the (D Street, Property A) property, but at no time disclosed or discussed this with me, or factored it into the value she determined for the property in her offer”[2] this sits at odds with his contention that she told him that any pre-existing liability would be extinguished if the property was transferred pursuant to family law orders. His reliance on any such representation does not obviate the need for him to obtain his own independent legal advice in relation to the issue.
[2] Husband’s affidavit, 25 September 2019 at [16].
Having regard to the above matters, I find that the Husband has not made out a case that the circumstances leading to the making of the consent orders of 28 June 2016, in and of themselves, fall within the circumstances in s 79A(1)(a) that would give rise to a miscarriage of justice occurring in relation to order 6(a) of the orders of 4 September 2017.
The Wife’s Initiating Application filed 23 September 2016
On 23 September 2016, the Wife filed an Initiating Application seeking to set aside or vary the consent orders of 28 June 2016. It was listed for first return on 17 November 2016.
The Husband filed and served a Response, Financial Statement and affidavit in relation to that application on 19 December 2016.
The Husband contends that the Wife had no basis to seek the relief set out in the Initiating Application, specifically, an application to vary or set aside the orders pursuant to s 79A. He further contends that the evidence filed by the Wife in support of the Initiating Application contained multiple false and mischievous statements. I cannot conclude that either of these contentions is made out by the Husband.
It is clear from the affidavits filed by each party at that time that there were numerous factual disputes between the parties. The Husband has not adduced evidence in the present application to establish that the Wife engaged in a fraudulent act by filing the Initiating Application, nor that she suppressed evidence or gave false evidence in her affidavit in support, particularly in circumstances where he had taken the opportunity to make a full reply to that affidavit.
It is not controversial that as at the date the application was filed, the Husband had not secured a discharge of the mortgage on the D Street, Property A property following the consent orders of 28 June 2016. So much is clear from his affidavit filed on 19 December 2016 and the correspondence sent by his solicitor to the Wife’s solicitor on 21 December 2016. These documents (together with the letter from the Husband’s solicitor to the Wife’s solicitor of 24 August 2016) establish that the Husband’s difficulty obtaining finance to discharge the mortgage arose from his failure to finalise his taxation affairs for the financial year ending 30 June 2015.
Order 5.1 of the orders of 28 June 2016 required the Husband to “do all things necessary and execute all necessary documents to discharge the mortgage secured against the property at D Street, Property A”, simultaneously with the settlement of the F Street, Suburb B property. Each party was to hold their respective entitlement to the property pending the transfer and in the event that a party did not comply with their obligation, the Registrar of the Local Court at Town E was to be appointed to execute documents required to give effect to the orders.
The sale of the F Street, Suburb B property occurred on 17 June 2016, shortly before the Court made the 28 June 2016 orders.
In his evidence and in submissions, the Husband contended that in her Initiating Application, the Wife advanced an incorrect interpretation of order 5.1[3]. He suggests that the orders required him to “do all things” to discharge the mortgage, but did not require him to “complete” the discharge of the mortgage.
[3] See, for example, Husband’s affidavit, 25 September 2019 at [35c].
I do not accept his contention in this regard. Clearly, the parties had envisaged that the Husband would do more than commence the process of discharging the mortgage. The purpose of the final consent orders of 28 June 2016 was to finally determine the financial relationships between the parties. It is unreasonable to consider that the process of discharging the mortgage could be one that would go on indefinitely. The orders of 28 June 2016 gave rise to an obligation upon the Husband to discharge the mortgage. He was, apparently, unable to do so due to an inability to obtain finance as at the date the Wife filed the Initiating Application on 23 September 2016.
The Husband described the Initiating Application filed by the Wife on 23 September 2016 in fairly disparaging terms in his affidavit. Relevantly, he describes it as “fraudulent”. I do not accept that this is the case. The orders of 28 June 2016 had not been implemented at the time the Wife filed her affidavit. The Husband had not obtained finance for the D Street, Property A property and the Wife was entitled to file an application seeking relief in relation to this issue.
The Wife’s Application in a Case filed 27 January 2017
The Wife then filed an application in a case. The Court file reflects that it was e-filed on 27 January 2017 and it was sealed on 9 February 2017.
The application was returnable on 23 February 2017 and it sought inter alia, an enforcement hearing in relation to the discharge of the mortgage on the D Street, Property A property; and in the alternative, the transfer of the D Street, Property A property to the Wife forthwith; orders that the D Street, Property A property be listed for sale; and that the Husband provide to the Wife vacant possession of the property within 2 weeks.
The Husband makes numerous complaints about this application including:
a)Late service giving rise to duress;
b)Failure to enclose a Court brochure with service;
c)The Wife’s failure to disclose that she was in breach of the orders of 28 June 2016; and
d)That the Wife made no allowance for any Capital Gains Tax in her proposed orders.
The Husband contends that about one week prior to the first return date, the Wife’s lawyers served the application in a case and informed the Husband that the Wife intended to discontinue the application for relief pursuant to s 79A.
By that time, the Husband was legally represented. He gives evidence that his lawyer’s schedule prevented him from consulting with her until the day prior to the listing – that is, I infer, on 22 February 2017.
The Husband gives evidence as to the advice his solicitor provided to him about the possible outcome of the Wife’s application and the potential risks arising out of the court event[4]. The Husband is self-represented in these proceedings, however, in his affidavit he contends that in the course of the proceedings, the Wife has impliedly withdrawn a claim for legal professional privilege. I therefore infer he is aware of and alive to the nature of legal professional privilege and its express or implied waiver. On that basis, I can only consider that his decision to give evidence about the legal advice he received was a considered and deliberate one and that he does not seek to maintain legal professional privilege in relation the advice he received, to the extent that he has disclosed it in his evidence.
[4] Affidavit of the Husband, 21 September 2019 at [46].
This is significant as at court on 23 February 2017, the Husband instructed his solicitor to attempt to resolve the matter in a manner that would “save” his house. It is clear from the Husband’s affidavit that he was apprehensive about the prospect of orders being made that would preclude him from having the opportunity to re-finance and retain the D Street, Property A property. It appears that this arose from the advice he was given by his solicitor in relation to the application filed by the Wife.
The Husband does not give evidence that he instructed his solicitor to seek an adjournment on that date. I infer from his evidence that his decision to attempt to negotiate with the Wife was formed of the basis of the legal advice he received and his apprehension that an order may be made on that date jeopardising his ability to retain the D Street, Property A property.
Having taken the decision to attempt to negotiate the matter, the Husband complains that on 23 February 2017 the negotiations between the parties were conducted in haste and under high pressure and that in the course of negotiation, the Wife’s lawyers sought to make last minute additions to the orders that had been agreed. He gives evidence that he did not have adequate time to read and consider the orders or to take advice on those orders.
Such was the nature of the negotiations from the Husband’s point of view, that he describes feeling as though he had “a gun to (his) head”. The Husband contends that this amounts to duress.
I do not consider that the Husband has made out his contention that he was subject to duress on 23 February 2017. The Husband did not seek an adjournment of the proceedings as he was entitled to do. Whist he was clearly apprehensive about the prospect of losing the opportunity to retain the D Street, Property A property, he was legally represented by a solicitor at that point and gave instructions to negotiate a resolution of the matter. He was not conducting negotiations directly on his own behalf – he had instructed his solicitor to do that. Presumably he was receiving further advice in the course of the day and presumably, he acted upon that advice.
Many litigants involved in family law proceedings attend court apprehensive and nervous about the outcome of their proceedings. Some will choose to compromise their claims for a myriad of reasons relating to the pressure they feel at court, such as a desire to bring proceedings to an early conclusion or to avoid the prospect of being cross-examined. The pressures felt by litigants in circumstances where they are desirous of a particular outcome and are nervous that they may not achieve it do not amount to duress. Regrettably, such pressures are part and parcel of the conduct of litigation. The matters complained of by the Husband in this regard do not fall within the meaning of duress as set out in Kennedy and Thorne.
To the extent that the Wife failed to serve a court brochure in relation to enforcement proceedings with the Application in a Case, even if this occurred as he contends, the Husband was legally represented and I consider that his lawyer could have provided him with the information contained in the brochure in any event.
To the extent that the Husband contends that the Wife failed to disclose that she was in breach of the orders of 28 June 2016, irrespective of whether or not the Wife considered she was in fact in breach, the Husband’s affidavit filed on 9 December 2016 brought that evidence to light and made clear that it was his position that the Wife was in breach. It cannot be said that the Court did not have before it evidence in that regard.
To the extent that the Husband contends that the Wife did not make any allowance for capital gains tax in her proposed orders, I return to the Husband’s concession that he was aware that the obligation was upon him to seek advice in relation to both the orders and tax liabilities. The capital gains tax issue was one that he had considered in the course of negotiating the June 2016 consent orders and other than to say he relied on the information provided to him by the Wife, he does not explain why he did not seek advice on the issue at that time, or apparently at any point thereafter. He had access to a solicitor and had the opportunity to take advice on the issue when he attended on her on 22 February 2017 or at Court on 23 February 2017. The fact that he did not do so cannot be sheeted home to the Wife.
In any event, the parties entered into consent orders on 23 February 2017. Those orders provided, inter alia, for:
a)The transfer of the D Street, Property A property to the Wife with orders for the sale of the property;
b)The Husband to discharge the mortgage over the property; and
c)The Husband to deliver up vacant possession within 14 days.
Importantly, the operation of the orders was to be suspended until 6 April 2017 and in the event that the Husband discharged the mortgage and provided proof of the discharge to the Wife prior to the exchange of contracts the Wife was to withdraw the property from sale.
The Husband complains that by entering into consent orders he gave away counter claims totalling $150,000 plus costs and other remedies. He contends that the time pressures on the day left him with inadequate opportunity to take advice and that this constitutes a breach and denial of due process. I do not accept this is the case. The Husband had legal representation. He could have, but apparently did not, seek an adjournment to obtain legal advice and to fully consider his position. The fact that he did not do so does not constitute a breach of or denial of due process or procedural fairness.
In any event, the consent orders of 23 February 2017 appear to have achieved the end result that the Husband had hope for, namely, an extension of time in which he could seek finance to retain the D Street, Property A property.
The Wife’s conduct in selling the D Street, Property A property
It is clear that the Husband continued to struggle to obtain finance after the consent orders of 23 February 2017.
The parties were in negotiations about the Husband’s attempts to secure finance. The Husband complains that his efforts in this regard were hampered by the Wife’s failure to return a form to him being a Request to Vary Security form in a timely fashion. He contends that it is likely that he would have obtained finance before 6 April 2017 (being the date upon which the consent orders of 23 February 2017 came into effect) if the Wife had signed and returned the form to him.
There is no evidence from any lender or mortgage broker to support the Husband’s contentions that he would have obtained finance before 6 April 2017. Even if his opinion evidence on this point was accepted at face value, the Husband accepts that in April 2017, he did not receive income he was expecting at that time. The income was not received by him until 7 July 2017. It is clear that his capacity to obtain finance was contingent to some extent on his income. I consider that the fact that he did not receive income in the time frame he anticipated gives rise to a very real possibility that he would have been unable to obtain finance in any event.
It is also clear that notwithstanding that the orders of 23 February 2017 became operational on 6 April 2017, the Wife did not immediately take steps to sell the D Street, Property A property in accordance with those orders. She did not start to press for the sale of the house with vigour until the end of June 2017.
In correspondence between the parties’ respective lawyers, the Husband informed the Wife that he would be overseas for business between June 2017 and 28 July 2017. For that reason, he was unable to sign the transfer document for the D Street, Property A property. In correspondence at and around that time, the Husband indicted that he was still endeavouring to obtain finance for the D Street, Property A property. The Husband ultimately obtained conditional finance on 19 July 2017 subject to, inter alia, a valuation of the property.
The Wife’s application for relief pursuant to s 106
On 11 July 2017, the Wife filed an application in a case seeking that the Registrar of the Court execute the documents necessary to transfer the D Street, Property A property to the Wife.
The Husband was overseas at the time and whilst he contends that the application was heard ex parte, the Court record reflects he was legally represented by Mr Guyder.
The Husband contends that the application was not urgent and that the Wife had failed to disclose significant and relevant information to the Court including that he had been making attempts to obtain finance.
By this time, the consent orders of June 2016 were over 12 months old. The Husband had been attempting to seek finance, without success. His affidavit appears to lay the blame for that squarely at the feet of the Wife however, the evidence indicates that the Husband’s failure to have completed tax returns together with apparent cash flow problems significantly hampered his efforts.
To the extent that he complains that the filing of the application was unreasonable as finance was imminent, I cannot find that this was the case. From the Wife’s perspective, the Husband had been attempting to secure finance for over 12 months without success. She was entitled to seek the relief set out in the application in a case. Whilst the Husband contends that the application was not urgent, the listing of the application and the manner in which it was dealt with on that date was a matter for the Court.
To the extent that the Husband contends that an extension of time to refinance would not have had a detrimental effect on the Wife’s life or her circumstances, it remains the case that she had had the benefit of the consent orders made on 28 June 2016 and on 23 February 2017 and the disposal of the D Street, Property A property remained outstanding. Whilst the Husband relies on comments made by Judge Henderson (as she then was) to support a contention that the Wife acted in bad faith, including comments as to decisions her Honour may or may not have made with different evidence, respectfully, those comments do not bind the Court on this present application and in any event, they were made in a different context to the present one – that is, her Honour was considering an application for costs, rather than an application to set aside or vary final property orders.
To the extent that Husband complains that the Wife was in breach of the June 2016 orders and therefore did not come to the Court with clean hands, even if this was the case, the Husband had taken no steps to enforce those orders or seek relief in relation to the breach he contends for.
In any event orders were made in accordance with the Wife’s application and the sale proceeded.
Sale of the D Street, Property A property
The Husband contends that the Wife proceeded with the sale of the D Street, Property A property in circumstances that did not allow him to realise the refinancing he contends he had approval for.
Whilst the Husband in his affidavit of 25 September 2019 contends that the finance was readily available to him on 19 July 2017 subject to valuation of the property, it is clear from annexure K-7 to that affidavit the loan approval was conditional and whilst the mortgage broker was optimistic, the loan had not been approved.
The Wife acted quickly to advance the sale of the D Street, Property A property. The property was listed on 31 July 2017 and it sold on 3 August 2017 for $650,000.
The Husband contends that the Wife unreasonably refused to delay the sale in order to allow him to secure the finance and that her motives in doing so were designed to cause him hurt and detriment. Whilst the Wife may have moved quickly, she did not act contrary to any order of the court in doing so.
The Husband also contends that the Wife sold the property under market value. In this regard, he relies upon market appraisals obtained in August 2017 together with the affidavit of Mr H.
I approach the market appraisals with caution. They were undertaken by real estate agents who had not had the benefit of inspecting the property and in at least two cases, it is clear that the agents had provided the appraisals with a view to securing the listing and being appointed as agent on a possible sale of the home.
Objection was taken to the affidavit of Mr H by the Wife on the basis that it had been served late and was otherwise largely in inadmissible form. I allowed the Husband to rely upon the affidavit having regard to the fact that the Court was asked to make an order for summary dismissal of his application.
Insofar as Mr H purports to give opinion evidence about the state of the property market in D Street, Property A in 2017, I do not place any weight on his evidence. Other than to state that he worked as a real estate agent for 10 years in the D Street, Property A area, there is no evidence about Mr H’s training, study or experience that would qualify him to give evidence about such matters.
To the extent that Mr H purports to give evidence about conversations he had with the agent appointed for the sale – Ms K – I consider that those statements are hearsay and are inadmissible. Even if I am wrong about that, to the extent that he contends that he was informed that another purchaser had been prepared to pay $680,000 for the property, there is no guarantee that the purchaser would have gone ahead with the purchase.
Mr H’s affidavit indicates, however, that on or very shortly after 31 July 2017, he made an offer of $630,000 on the property and offered a reduced settlement period. On 4 August 2017, the offer was rejected. The property then sold for $20,000 more than Mr H had offered.
In this regard, the affidavit of Mr H does not support the Husband’s contention that the Wife did not seek to negotiate the best price on the sale of the property. It is clear that Mr H’s offer was rejected in favour of a higher offer.
Accordingly, on the basis of the Husband’s evidence, I do not accept his contention that the Wife sold the D Street, Property A property at less than market value and I do not consider he has made out his contention that she acted in bad faith on the sale.
Distribution of sale proceeds
The Husband makes contentions that there have been irregularities in the distribution of the proceeds of the sale of the D Street, Property A property, and that the Wife has delayed the release of funds held on trust for the parties in a solicitor’s trust account.
Insofar as the Husband’s contentions relate to the quantum of costs and disbursements incurred on the sale, I do not consider those matters to be relevant to the application for summary dismissal. Having regard to the approach to be taken to the determination of whether there has been a miscarriage of justice on the basis of any of the circumstances set out at s 79A(1)(a) I do not consider that this issue goes to any of the matters set out at that section and I do not consider that this matter grounds any contention as to default of the Court orders.
It is clear that once the D Street, Property A property was sold to a third party purchaser, any exemption from capital gains tax was lost and the liability crystallised.
From that point, the parties were in dispute as to the amount of the liability and which of them should bear the cost of the liability.
The Capital Gains Tax Liability
The parties attended Court again on 4 September 2017. This is the date on which the order the Husband now seeks to vary or set aside was made.
The Husband gives evidence that on 3 September 2017, the Wife’s solicitor wrote to him informing that the Wife had received an estimate of the capital gains tax liability on the sale of the D Street, Property A property of less than $37,000.
The Husband contends that at the relevant time, he was not aware of the possibility that a capital gains tax issue may have existed and that it had not entered his consciousness until it was raised by the Wife late in the day on 4 September 2017. This does not sit comfortably with his evidence that he had raised the issue of capital gains tax with the Wife during the negotiation of the 28 June 2016 consent orders. And in any event, the Husband remained, at that time, legally represented and as was conceded by him, the onus fell to him to seek advice about orders and about capital gains tax implications.
The Husband is critical of the Wife for failing to disclose that she had received taxation advice and had sought a private ruling in relation to the capital gains tax issue.
I do not accept that the Wife failed to disclose these matters. The fact that she had obtained legal advice and the fact that she had sought a private ruling were disclosed in her affidavit of 1 September 2017.
The Wife is entitled to claim legal professional privilege in relation to legal advice. She is under no obligation to disclose to the Husband the nature or the extent of the advice. Insofar as she had sought a private ruling, the application was made to the ATO on 14 August 2017. The private ruling was provided to her on 17 September 2017, some two weeks after the parties’ court appearance on 4 September 2017. Even if the Wife had an obligation to disclose the content of the private ruling (and I do not find that she did have such an obligation), the ruling had not been provided to her at the time the orders were made and could not, in any event, have been disclosed. This matter does not amount to a suppression of evidence, fraud or a failure to provide disclosure in accordance with her obligations.
The evidence demonstrates that on 4 September 2017 the Husband had been put on notice that the Wife understood that there was a capital gains tax liability in the vicinity of $37,000; that she had sought taxation advice in relation to that issue; and that she had sought a private ruling from the ATO.
When the parties attended Court on 4 September 2017, the Husband was represented by counsel. By consent, orders were made including the order the Husband now seeks to set aside or vary.
The parties were at Court in relation to an application that had been brought by the Husband to retrieve his personal belongings. Apparently, the judge before whom the matter was listed directed the parties to have discussions about the issue. The Husband contends that in the course of those discussions, the Wife’s representatives raised the issue of the capital gains tax liability and, in effect, used the return of his personal belongings as a bargaining tool to secure the making of the order that he pay the capital gains tax liability.
The Husband contends that during the course of the negotiations the Wife did not mention or disclose the likely value of the liability, that she had received advice in the matter or that she had applied for a private ruling. Even if those matters are true, such contentions ignore the fact that these were matters made known to him in the letter of 3 September 2017 and the Wife’s affidavit of 1 September 2017.
As I understand his position, the Husband contends that his consent to the orders of 4 September 2017 was procured by duress. This, however, is similar to the contention he makes in relation to the orders of 23 February 2017 and again, the pressures of litigation do not amount to duress insofar as that term is used at s 79A(1)(a).
The Wife provided a copy of the application for private ruling to the Husband on 17 September 2017 and a copy of the private ruling to the Husband on 20 September 2017.
To the extent that the Husband takes issue with the matters contained within either the application for the private ruling, or the ruling itself, he does not explain why it is that he did not take action in relation to the matter earlier than now.
Order 6(a) of the orders of 4 September 2017 provides for the amount of capital gains tax liability to be determined by Mr G, the Wife’s (then) accountant. The Husband was given liberty to re-list the matter on 28 days’ notice in the event he had any concern with the capital gains tax liability.
As noted earlier, the Husband was represented by counsel on that occasion. He had the benefit of legal advice and representation. To the extent that he entered into consent orders, he did so with the benefit of that advice and representation.
To the extent that the Husband contends that the Wife moved slowly to instruct Mr G or acted so as to otherwise frustrate the process of Mr G determining the liability, it is clear that at the relevant time, both parties were communicating with Mr G. The Wife includes in her affidavit an email sent by Mr G to her on 31 January 2018 in which he informs her that he sent a “draft” on the “capital gain issue” to the Husband on 13 September 2017.
The Husband gives evidence that on 30 October 2017, Mr G wrote to the Wife’s solicitors to inform them that the capital gains tax liability was $34,271. In submissions, the Husband was critical of the Wife for failing to provide him with that correspondence.
It appears, however, from the Wife’s affidavit[5] that the Husband had received correspondence from Mr G on 13 September 2017 estimating the capital gains tax liability as $7,529 and on 30 October 2017 assessing the liability as $34,271. These were documents provided by the Husband’s solicitor to the Wife’s solicitor by letter of 5 February 2019. The Husband fails to give any evidence of having received these documents.
[5] Wife’s affidavit, 18 October 2019, Exhibit W 30.
In any event, whilst the Husband contends he was concerned about the capital gains tax determination, he took no step to re-list the matter in accordance with the terms of order 6(a) of 4 September 2017.
Whilst the Husband argued in submissions that he was unable to re-list the matter as the capital gains tax had not been determined at the relevant time, I do not accept this is the case. The orders did not restrict the liberty to re-list to issues in relation to the quantum of the determination. If the Husband was concerned about the length of time taken to arrive at a determination, or about the Wife’s conduct in the process of obtaining the determination he could have sought to re-list the matter.
Conclusion
Having regard to the above matters, which has involved consideration of the totality of the circumstances culminating in the orders the Husband now seeks to set aside or vary, I do not consider that the Husband has established any of the matters required to establish that there has been a miscarriage of justice arising in relation to order 6(a) of the orders of 4 September 2017.
For the reasons given, I do not consider that the Husband has any reasonable prospect of satisfying the Court that the Wife has engaged in:
a)Fraud;
b)Suppression of evidence; or
c)The giving of false evidence.
For the reasons given, I do not consider that the Husband has any reasonable prospect of satisfying the Court that he was subject to duress at the time the orders of 4 September 2017 were made or on any occasion upon which he entered into consent orders prior to that date.
I do not consider that the Husband has any reasonable prospect of satisfying the Court that there is any other circumstance that would give rise to a miscarriage of justice.
I do not consider that the Husband has any reasonable prospect of satisfying the Court that there has been a default in the carrying out of an obligation imposed on a person by the orders and in the circumstances of that default, it is just and equitable to vary the order or to set it aside and make another order in substitution for it.
To the extent that the Husband complains that the Wife was in breach of the orders of 28 June 2016 requiring her to meet outgoings on the D Street, Property A property, putting to one side the fact that the Wife does not concede the breach, in circumstances where the Husband has held those concerns for over two years and has elected not to pursue the matter, I do not consider that the Husband could satisfy the Court that it would be just and equitable to set aside order 6(a) of the orders of 4 September 2017.
Having regard to the matters contended for by the Husband, I therefore consider that he has no reasonable prospect of successfully prosecuting the proceedings and I make orders summarily dismissing his application.
This then requires the Court to consider the ancillary relief sought by the Wife in her Amended Response filed on 18 October 2019, that is, orders in relation to the application of the funds held on trust in the solicitor’s trust account.
The Wife in her affidavit gives evidence that she is required to pay capital gains tax on the sale of the D Street, Property A property. She estimates that the amount she will be required to pay is $37,644.16. She sets out in her affidavit the basis on which she has arrived at that figure.
Each party sought orders in relation to the funds held in the trust account. Having determined to summarily dismiss the Husband’s application to set aside or vary order 6(a) of the orders of 4 September 2017, the order stands. I consider in the circumstances, and to avoid further litigation on the issue between the parties, that orders should be made in the terms sought by the Wife for the release of funds to pay the capital gains tax liability so as to give effect to the orders of 4 September 2017.
I certify that the preceding one hundred and sixty-one (161) paragraphs are a true copy of the reasons for judgment of Judge M Neville
Associate:
Date: 29 January 2020
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