Keil and Kingscote - [2018] FamCAFC 169

FAMILY COURT OF AUSTRALIA

KEIL & KINGSCOTE

[2018] FamCAFC 169

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – The husband seeks an extension of time within which to file a Notice of Appeal against property settlement orders – Where the orders provided for the husband to retain certain properties and pay the wife a fixed sum but failing this the properties were to be sold – Where the orders did not contain a “rise and fall” provision in the event the properties were sold – Both parties had an opportunity to consider the final orders to be made – Waters and Waters (1981) FLC 91-019 considered – Held no substantial issue to be raised on appeal – Where there has been a delay of over two years – Found no adequate explanation for the delay – History of the proceedings and hardship to the wife considered – Application dismissed – Husband to contribute to the wife’s costs of the application to be assessed if not agreed.

Family Law Act 1975 (Cth) s 94(2D)(a)

Family Law Rules 2004 (Cth) r 1.14

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31
Waters and Waters (1981) FLC 91-019; [1981] FamCA 19

APPLICANT:

Mr Keil

RESPONDENT:

Ms Kingscote

FILE NUMBER:

PTW

3739

2013

APPEAL NUMBER:

2018

DATE DELIVERED:

29 August 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

29 August 2018

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

20 May 2016

LOWER COURT MNC:

Ex tempore reasons

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Berry SC

SOLICITOR FOR THE APPLICANT:

DCH Legal Group

COUNSEL FOR THE RESPONDENT:

Mr Hedges

SOLICITOR FOR THE RESPONDENT:

Pinnington & Associates

Orders

The Application in an Appeal filed 8 June 2018 be dismissed.
The applicant pay the respondent’s costs of the Application to be assessed if not agreed.

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 Keil & Kingscote has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 20 of 2018
File Number: PTW 3739 of 2013

Mr Keil

Applicant

And

Ms Kingscote

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the Court today is the Application in an Appeal filed by the applicant, Mr Keil (“the husband”) on 8 June 2018. The respondent to the proposed appeal is Ms Kingscote (“the wife”). The application seeks, pursuant to s 94(2D)(a)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Keil and Kingscote

Details

AGLC: Keil and Kingscote [2018] FamCAFC 169
Case: [2018] FamCAFC 169
Decision Date: 29 August 2018

CaseChat Overview and Summary

The applicants in the matter, Keil and Kingscote, sought to appeal a decision made by the Supreme Court of South Australia. The appeal concerned the interpretation of certain contractual provisions related to a sale of goods agreement. The respondents, in turn, argued that the appeal should be dismissed due to the applicants' failure to comply with procedural requirements.

The central legal issue before the court was whether the applicants' appeal was valid and, if so, whether it could proceed despite the procedural shortcomings. Specifically, the court needed to determine if the applicants had demonstrated any exceptional circumstances that warranted setting aside the procedural default.

The court found that the applicants had not adequately demonstrated any exceptional circumstances that would allow the appeal to proceed despite the procedural default. The applicants had failed to provide a satisfactory explanation for their non-compliance with the necessary procedural requirements. The court held that the appeal was invalid due to the procedural shortcomings and, as such, the application to appeal should be dismissed. Additionally, the court ordered that the applicants pay the respondents' costs of the application, which would be assessed if not agreed upon by the parties.

Orders

Orders of the court

The Application in an Appeal filed 8 June 2018 be dismissed.

The applicant pay the respondent’s costs of the Application to be assessed if not agreed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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