Korsky and Bright & Anor (No 2) - [2007] FamCA 1512

FAMILY COURT OF AUSTRALIA

KORSKY & BRIGHT AND ANOR (NO. 2)

[2007] FamCA 1512

FAMILY LAW - APPEAL – From decision of Family Court Judge –– PROPERTY – Summary dismissal of an application filed by the husband which sought that orders altering property interests be set aside because of an alleged miscarriage of justice – s 79A(1) of the Family Law Act 1975 (Cth) – Significant assets of the marriage – Division of property determined by Guest J when the parties were over eighty years of age – Those property orders were appealed by the husband and that appeal was dismissed – Whether there was any evidence upon which at trial a miscarriage of justice could be found and the property settlement orders set aside or varied – Argued that Brown J mistakenly found that a challenge to the justice and equity of an order only lay by way of appeal – Consideration of the concepts of a miscarriage of justice and an unjust and inequitable order and whether the concepts are synonymous – The husband’s s 79A(1) application depended on “further evidence” than that which was before Guest J – That “further evidence” as it was placed before Brown J is that which is central to this appeal – Failure by the trial Judge to identify the real issue raised by the husband’s application, that being his mistaken belief in relation to a claim to a property in Prague – Principles of summary dismissal were identified but not applied to the “real case” of the husband under s 79A(1) of the Family Law Act 1975 (Cth)

Family Law Act 1975 ss 79A(1); 117(2A)

Barker & Barker (2007) 36 Fam LR 650
Lindon v The Commonwealth of Australia (No 2) (1996) 70 ALJR 541; (1996) 136 ALR 251
Lowe & Harrington (1997) FLC 92-747; (1997) 21 Fam LR 583
M & M [2003] FamCA 1304

APPELLANT:

MR KORSKY SENIOR

FIRST RESPONDENT:

MS BRIGHT

SECOND RESPONDENT:

MR KORSKY JUNIOR

FILE NUMBER:

MLF

7714

2001

APPEAL NUMBER:

2007

DATE DELIVERED:

20 December 2007

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

WARNICK, MAY AND BOLAND JJ

HEARING DATE:

14 September 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

23 March 2007

LOWER COURT MNC:

[2007] FamCA 245

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr North SC

SOLICITOR FOR THE APPELLANT:

C Kyriacou & Associates

COUNSEL FOR THE FIRST RESPONDENT:

Dr Ingleby

SOLICITOR FOR THE FIRST RESPONDENT:

Kenna Teasdale Lawyers

COUNSEL/SOLICITOR FOR THE SECOND RESPONDENT:

In person

Orders

That the appeal be allowed.
That orders 1 and 2 of the orders of Brown J made 23 March 2007 be set aside.
(a) That paragraphs 2, 3 and 4 of the First Respondent’s Form 1A and Form 2A filed 25 October 2006 be dismissed.
(b)That paragraphs 2, 3 and 4 of the Form 1A and Form 2A relied on by the Second Respondent be dismissed.
(c)That the respondents pay the husband’s costs of and incidental to…

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.

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Details

Case: [2007] FamCA 1512
Decision Date: 20 December 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal by Mr Korsky (the husband) against orders made by Brown J on 23 March 2007. The dispute concerned property division, with the husband seeking to set aside orders made on 25 October 2006, which dismissed his claims regarding certain property. The respondents were Mrs Bright and another party.

The primary legal issue before the Full Court was whether the primary judge erred in dismissing the husband's claims concerning property located in Prague. This involved determining whether the husband's understanding of the confiscation and potential return of this property, as presented during the original proceedings, was based on a mistaken belief, and if so, the implications for the property division orders.

The Full Court allowed the appeal, setting aside the orders of Brown J. The Court reasoned that the husband's claims were dismissed on the basis of a mistaken belief regarding the confiscation of the Prague property. Evidence, including a letter from the husband's Czech solicitor and his own affidavit, indicated that the property had been transferred to the State of the Czech Republic in 1979 due to a debt, not illegally confiscated by the Nazis or subsequently by Czech authorities in a manner that would warrant reparation. The solicitor's letter detailed the unsuccessful legal attempts to reclaim the property, concluding that the State's acquisition was in accordance with legal requirements. The husband's affidavit confirmed his belief that the property had not belonged to his parents since 1979 and that he had no expectation of its return. Consequently, the Court found that the dismissal of the husband's claims was erroneous.

The Court ordered that paragraphs 2, 3, and 4 of the respondents' applications be dismissed. Furthermore, the respondents were ordered to pay the husband's costs of the appeal and the application before Brown J. The Court also certified that the matter reasonably required the attendance of counsel, including senior counsel.

Orders

Orders of the court

That the appeal be allowed.

That orders 1 and 2 of the orders of Brown J made 23 March 2007 be set aside.

(a) That paragraphs 2, 3 and 4 of the First Respondent’s Form 1A and Form 2A filed 25 October 2006 be dismissed.

(b) That paragraphs 2, 3 and 4 of the Form 1A and Form 2A relied on by the Second Respondent be dismissed.

(c) That the respondents pay the husband’s costs of and incidental to the appeal and the application before Brown J, as agreed and in default of agreement, as assessed.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Importantly, annexures to the husband’s affidavit included a letter from his solicitor in the Czech Republic, Mr [V]. The letter said:Concerning your request of the 30. May 2006 in the matter of the property claims of [Mr Korsky], born [in 1922], domiciled at [Rindwood], Victoria, Australia, we advise the following (I apologize beforehand, that this communication was not prepared in the English language, fearing a belated delivery, I did not have time to have it translated).The named made a claim to the Czech Courts for the return of family property – an apartment house, errected [sic] on allotment lot no. [X] together with this allotment – located in the cadastral territory of Vrsovice, urban section Prague 10 and municipality Capital City Prague, Czech Republic.This, formerly the property of the parents of Mr[Korsky], was in a judicial process for a debt which was due on the house, transferred by an executive action in the year 1979 to the State of the Czech Republic.After the fall of the Communist Regime, I represented Mr. [Korsky] in a claim in a court action for the return of this property, as he was of the opinion, that the takeover by the State was an injustice, which emanated precisely from illegal actions of Communist Justice.After a process lasting several years, the claim for the return of the property to Mr [Korsky] was rejected, first by the District Court for Prague 10, dated [August 2005], under the document mark [X]/95.We then lodged an appeal to this decision, but the rejection was confirmed by the Court of Appeal, by a decision of The Urban Court in Prague dated the [March] 2006, document mark [X]/2005, and the claim for the return of the matter was therefore also rejected by the Court of Appeal.This decision is final from the point of view of Czech Legal Regulations, within the framework of due corrective means.Understandably I still made use of the possibility to achieve a change of the mentioned rulings by means of an extraordinary corrective device – an appeal to the Highest Court of the Czech Republic, but I consider the chance of success only as veryminimal [sic].The negative decisions of both courts in general agree in their conclusions, that in the case of Mr [Korsky] the takeover of the property by the State occurred in agreement with legal requirements, and therefore is not an injustice for which reparation can be requested after the fall of the Communist Regime.The property was not valued within the framework of the stated court proceedings, and I can not provide you with information concerning the present actual value.I apologize once more for not providing an English translation, and wish you much success with this matter.In Prague dated 26.June 2006(emphasis added) In his affidavit sworn 3 October 2006 the husband had also deposed:11.That during the trial of these proceedings I believed that the Communist government had illegally confiscated the said property, and although I had lodged an application I had no expectations and never believed that the property would be returned to me and stated so on several occasions during the trial.…22.The division of assets was made on the mistaken belief that the property in Prague had been illegally confiscated by the Nazis and subsequently by the Czech authorities. … The Prague property did not belong to my parents since 1979 and therefore there was no enheritance [sic] that I could receive.