Krupin & Krupin
[2022] FedCFamC1A 136
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Krupin & Krupin [2022] FedCFamC1A 136
Appeal from: Krupin & Krupin [2022] FedCFamC2F 230;
Krupin & Krupin (No 2) [2022] FedCFamC2F 1057
Appeal number(s): NAA 77 of 2022;
NAA 170 of 2022File number(s): BRC 5459 of 2014 Judgment of: TREE J Date of judgment: 1 September 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from final property settlement orders – Procedural fairness – Where the primary judge restricted the parties to rely on one consolidated affidavit despite an earlier contrary order – Refusal to adjourn – Where the issue of dramatically curtailing the material upon which the parties could rely, contrary to earlier orders made in the process of case management, was procedurally unfair – Where breach of procedural fairness material – Where the appellant was denied the opportunity of a different outcome – Factual error – Appeal granted – Notice of Contention dismissed – Orders set aside – Matter remitted for rehearing.
FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – EXTENSION OF TIME TO APPEAL – Where some of the documents sought to be adduced are relevant only if the appeal succeeds and the discretion re-exercised – Where the evidence was available to be led before the primary judge – Where the evidence does not speak to error – Where the application for an extension of time to appeal the stay orders is futile – Applications dismissed.
Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 174; [2009] HCA 27
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321; [1999] FCA 1277
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 52 Date of hearing: 23 August 2022 Place: Heard in Cairns, delivered in Brisbane The Appellant: Self-represented litigant Counsel for the First Respondent: Mr Jones Solicitor for the First Respondent: Robert Bax & Associates Counsel for the Second Respondent: Mr Cahill Solicitor for the Second Respondent: Genuine Legal The Third Respondent: Self-represented litigant The Fourth Respondent: Self-represented litigant ORDERS
NAA 77 of 2022;
NAA 170 of 2022
BRC 5459 of 2014FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KRUPIN
Appellant
AND: MS KRUPIN
First Respondent
MS ANGELOFF
Second Respondent
MS PETROV (and another named in the Schedule)
Third Respondent
order made by:
TREE J
DATE OF ORDER:
1 September 2022
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the primary judge on 4 March 2022 and 3 May 2022 be set aside.
3.Proceedings BRC 5459 of 2014 be remitted for rehearing before a judge other than the primary judge, noting that by arrangement with his Honour’s chambers, the matter is listed for a Case Management Hearing before [a judge of Division 2] at 9.30 am on 7 September 2022 by Microsoft Teams.
4.The first respondent’s Notice of Contention be dismissed.
5.The appellant’s Application in an Appeal filed 8 August 2022 be dismissed.
6.The appellant’s Application in an Appeal filed 11 August 2022 be dismissed.
7.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
8.The Court grants to each respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each respondent in respect of the costs incurred by the respondents in relation to the appeal.
9.The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Krupin & Krupin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
By his Amended Notice of Appeal filed 1 June 2022, Mr Krupin (“the appellant”) appeals from final property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 4 March 2022. Those orders provide for the division of property between the appellant and Ms Krupin (“the first respondent”) such that the first respondent receives 48.5 per cent and the appellant receives 51.5 per cent of the net property pool. Those orders also dismissed the appellant’s claims at trial that the first respondent’s mother (“the second respondent”) held a property on trust for him and the first respondent, and additionally, that the appellant’s second wife (“the third respondent”) had equitable interests in two properties of the appellant and first respondent.
The first and second respondents resist the appeal, however in the alternative, by her Notice of Contention, the first respondent also contends the decision of the primary judge should be upheld on an alternative basis. The third respondent supports the appeal, as she supported the appellant’s case at trial.
For the reasons which follow, the appeal will be allowed, and the Notice of Contention dismissed.
background
At the time of trial before the primary judge, the appellant was 58 years old and the first respondent was 42 years old. They were married in 2000, and separated in late 2013. During their marriage, they developed a residential property portfolio which included purchasing, renovating and selling about 19 properties.
In 2007, the second respondent purchased a residential property at C Street, Suburb D (“C Street”) in her sole name using borrowed funds secured by a mortgage.
In early 2014, the first respondent left the former matrimonial home (“E Street”) with the second respondent, whom had lived with her and the appellant since about 2005. It was around this time that the appellant began living with his second wife, the third respondent, at E Street.
By then the appellant and first respondent had four children together who are now aged 20, 18, 16 and 14 years. The 16 year old lives with the first respondent and the youngest child lives in a shared care arrangement between the appellant and first respondent. The appellant and the third respondent have two children together, presently aged five and one.
The proceedings between the appellant and first respondent were commenced in 2014. The appellant subsequently joined the second respondent to the proceedings claiming that he and the first respondent are the equitable owners of C Street, and that it should be included in the property pool for division. The first trial took place over three days in August 2016. Despite the original judge in October 2017 orally delivering her decision resulting from that trial, for reasons that are not clear, a copy of neither the Court’s written reasons nor sealed orders were ever issued to the parties.
After some time, the matter then came before a different judge who apparently informed the parties that “no authenticated or sealed final orders would be forthcoming,” discharged the original judge’s orally pronounced October 2017 orders, and made orders preparing the matter for another trial.
Subsequently the third respondent was joined to the proceedings on 4 May 2021, because she is the sole director and shareholder of B Pty Ltd, which is the trustee of the Krupin Family Trust. She sought to advance personal claims to an interest in the property at E Street and a commercial property of the appellant and first respondent (“G Street”) which was held in the name of the trust.
The second trial was heard by the primary judge over five days in late 2021. As noted by the primary judge, neither party sought to allege the matter was subject to prior adjudication and the trial proceeded on the basis that his Honour was to hear and adjudicate the parties’ respective claims afresh.
Before the primary judge, the appellant and third respondent claimed that they had separated in 2018 but were living under the one roof. However, this assertion was not accepted by the primary judge who found that the third respondent’s “participation in the proceedings is calculated to pursue the [appellant’s] interest rather than her own separate interests” (at [49]).
His Honour delivered his reasons and made final orders on 4 March 2022, from which the appellant now appeals.
Application to adduce further evidence
By Application in an Appeal filed 11 August 2022, the appellant seeks to adduce a range of further evidence in the appeal.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) gives this Court an unfettered discretion to admit further evidence on appeal. However, case law (albeit relating to the predecessor of s 35) has developed some well-known considerations which a Court will analyse as part of deciding whether to receive further evidence.
The principles relevant to the discretion were discussed in the High Court in CDJ v VAJ (1998) 197 CLR 172, where McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
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.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
Rule 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides specifically for an application for further evidence on appeal. Such application must be filed at least 14 days prior to the commencement of the sittings in which the appeal is listed. The Application in an Appeal was filed two days late, however no objection was taken by any party to that.
The documents sought to be tendered are detailed in, but not annexed to, the appellant’s affidavit filed 11 August 2022, where at paragraph 6 he said:
6. The evidence appellant wants the court to receive are:
Updated bank documents for the property loans
Documents updating medical history of the Appellant
Documents for the credit card debts of Appellant
Statutory Declaration relating to the personal loans
Offers to settle made by the Appellant during the case
(As per the original)
It appears that the first two classes of documents are relevant only if the appeal succeeds, and the Court is minded to re-exercise. I will therefore only consider them if the need arises. As to the other three classes of documents, it appears they are said to demonstrate error by the primary judge as alleged in Grounds 1, 2, 4, 5, 7 and 8.
The documents in question were sent to and collated by the relevant appeals registry. The statutory declaration was signed by the third respondent’s mother on 30 July 2022, in which she asserts that since 2015, she has loaned the third respondent $657,000 for use towards both G Street and E Street. There is also an agreement between the appellant and the third respondent dated 17 August 2022 which asserts that between March 2016 and 17 August 2022, the third respondent has invested $582,918.70 towards those properties. Additionally there is an alleged agreement of 15 October 2017 between the appellant and third respondent to the effect that the appellant would, within six months of final orders in these proceedings, transfer both G Street and E Street to the third respondent.
Obviously, except to the extent some of that material relates to events after the 2021 trial, it was available to be led before the primary judge, and no explanation for the failure to do so is now advanced by the appellant. Insofar as it relates to events after the trial, it does not speak to error by the primary judge.
I decline to admit the last three categories of documents.
The Appeal
Grounds 5 and 9 allege bias and prejudgment by the primary judge. Grounds 6 and 11 assert a failure to afford the appellant procedural justice. Such grounds should be considered first (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577), and it is convenient to commence with Ground 6.
Ground 6
This ground provides:
1.The Judge failed to accord procedural fairness. Applicant's crucial submitted material was ignored, dismissed, not considered, declared unavailable or not presented in the case. Judge decided on the first day of the hearing to dismiss orders made on 7 September 2021 and rely on the Applicant's affidavit from March 2021 as a main trail affidavit. That affidavit of 11 pages was submitted merely as response to the First Respondent's affidavit. After waiting for over 3 years for the delivery of the written Final Orders, Applicant was not made aware about the hearing in November 2019 and as a result was not aware about orders made and therefore could not follow them. Applicant's request in application for inclusion of the transcript from cross examination during the Final Hearing in 2016 was denied and application was dismissed by [the primary judge]. Applicant also was not allowed to represent himself and cross examine witnesses because the First Respondent made claim of domestic violence in 2020.This claim was made 6 years after Applicant talk to her last time and has been withdrawn in February 2022.
(As per the original)
As argued, at its heart this ground contends that the primary judge erred by refusing to allow the appellant to rely upon 11 affidavits which he had filed in the proceedings.
As I have already observed, these proceedings were commenced in 2014, and proceeded to a first trial in August 2016, which resulted in orders being pronounced on 13 October 2017, although thereafter no sealed orders were ever issued by the Court. Despite that, or perhaps because of it, on 12 March 2020 another Federal Circuit and Family Court of Australia (Division 2) judge purportedly discharged the 13 October 2017 orders, however no one took any point about that before the primary judge.
Although listed for a further trial on 24 March 2020, on 20 March 2020 that hearing was vacated due to Covid 19, and on 6 November 2020, it was again set down for trial on 19 April 2021. Order 2 of the suite of orders made on 6 November 2020 provided “[t]hat no party may rely on more than one consolidated trial affidavit of their evidence in chief” although on the face of the order, there was no appearance by the appellant on that day. That consolidated affidavit was to be filed “no later than 4.00pm on 20 March 2021”. However for reasons which are not clear, the April 2021 trial dates were vacated. Nonetheless on 19 March 2021, the first respondent filed an affidavit which seems to have complied with the 6 November 2020 orders. On 29 March 2021, the appellant filed a 53 paragraph affidavit.
On 4 May 2021 the third respondent was joined as a party. On 7 September 2021 the judge then dealing with the matter set it down for a three day hearing commencing on 24 November 2021. Also on that day it was ordered “[t]hat the parties will reply upon previous affidavits filed for the defended hearing” (as per the original). The appellant’s case outline filed 22 November 2021 indicated he intended to rely upon no less than 11 affidavits. However, they referred and adopted other affidavits of his. Likewise the respondents’ case outlines all indicated an intention to rely upon affidavits filed by them over the years.
On the first day of trial the primary judge raised the apparent non-compliance with Order 2 of the 6 November 2020 orders as to a single consolidated affidavit, and forcefully indicated an intention to enforce it. Thus his Honour said:
HIS HONOUR: ... The order of 6 November for a consolidated trial affidavit is the order that I propose to insist upon. Your client will not be permitted to depart from that order. The order made in September is inconsistent with the other order. It is incomprehensible to me how that order was made, and I do not consider that it was properly made and I do not propose to give it any operation.
(Transcript 24 November 2021, p.4 lines 31–36)
As can be seen from that passage, the primary judge also expressed some difficulty about what the 7 September 2021 order meant. Fortunately one of the barristers before the primary judge had also appeared on 7 September 2021. Without contradiction, he told the primary judge as follows:
[COUNSEL FOR THE FIRST RESPONDENT]: Your Honour, I appeared before [a judge of Division 2] on 7 September as your Honour has indicated or highlighted. The issue of the consolidated affidavit did come to the attention of the court on that day, and the issue of the parlous financial state of the clients was raised as a reason why his Honour considered that the – at least my client was able to rely upon the affidavits that I have read in her outline of the case document. In saying that, your Honour your Honour is quite correct in identifying that a consolidated affidavit would be the most appropriate way for the evidence to be received in a matter such as this, but his Honour had in mind very much, and also in direct conversation with myself as counsel, that this matter couldn’t be delayed any further by the making of an order for a consolidated affidavit
(Transcript 24 November 2021, p.7 lines 24–34)
Given that unchallenged information, it seems incontestable that “reply” in the 7 September 2021 orders was a typographical error, and it was intended to read “rely.” hence it is not clear how the order was incomprehensible, nor on what basis it could be contended that it was not properly made.
The primary judge’s insistence upon one consolidated affidavit then precipitated an application – announced as by agreement between the parties – to adjourn the hearing to “on or after 1 March 2022”. It is fair to say that the primary judge was not enthusiastic about that prospect.
Ultimately the primary judge refused the joint application to adjourn the trial, for reasons given ex tempore. At [8]–[10] of those reasons (“the first reasons”) the primary judge said:
8.On perusing the outline of the parties’ cases yesterday evening, I noticed that each proposed to rely on, as far as I can see, every affidavit that has been filed since 2015. I have not counted the pages but it was agreed by counsel this morning that those materials would be in excess of 2000 pages. On raising with each of the four counsel my unease with the course proposed, they each confirmed that they proposed to rely on these multiple affidavits and on order 4 of 7 September 2021.
9.In the case of the applicant, my count of the affidavits that he proposed to rely on was 11 affidavits from 2015 to 12 November 2021. In the case of the first respondent, her outline said that she proposed to rely on 13 affidavits from June 2015 to 10 November 2021. In the case of the second respondent, she took a considerably more conservative approach and indicated that she sought to rely on only four affidavits filed between May 2016 and 19 November 2021. In the case of the third respondent, she proposed to rely on two affidavits (a trial affidavit and an updating affidavit) filed, presumably in accordance with the orders of 7 September 2021, along with a financial statement. The third respondent’s position is perhaps somewhat different to the other respondents in that it is apparent from the orders she seeks that her interest, at least in these proceedings, is no different from that of the applicant.
10.It is unnecessary to inquire about the reason why more than one counsel submitted, without demur by others, that their clients had considered that they would be permitted to rely on essentially all of the affidavits that had ever been filed because of order 4 of 7 September 2021. It is also unnecessary to inquire about the reasonableness of that belief. In my view, any lawyer who looked at those two orders would have seen that there was either confusion, misunderstanding, or the potential that a court would consider that the order of 6 November 2020 was the relevant operative order. This is because of the frank absurdity of expecting a judge to read more than 2000 pages of affidavit material.
Later at [16] his Honour concluded:
16.I am satisfied that each party has filed a trial affidavit in conformity with earlier orders, particularly the order of 6 November 2020, and filed an updating affidavit. Each has had the opportunity to provide the evidence-in-chief that they wish to have considered in these proceedings. There is no unfairness in requiring the parties to rely on those affidavits only as evidence-in-chief.
Thereafter, the trial proceeded with each party only being permitted to rely on one affidavit of evidence-in-chief, together with the “updating” affidavit contemplated by the 7 September 2021 orders. True it is that the primary judge permitted the parties to tender bundles of additional primary documents they relied upon, but the earlier affidavits were not amongst them. It is the refusal to allow the appellant to rely upon the earlier affidavits which the appellant says was procedurally unfair.
A failure to afford procedural fairness is an error of law (Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321).
Procedural fairness requires each party to be given an adequate opportunity to be heard, and to present their cases (Kioa v West (1985) 159 CLR 550 at 582). However, it is only the opportunity to present evidence and argument which the interests of justice requires, not the actuality of it. Thus where a party has had a sufficient opportunity to put forward his or her case, it may be necessary for the court to make a decision for the sake of doing justice to the other party and to other litigants (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 174 (“Aon Risk”) at [94]).
Here, the primary judge said at [11]–[12] of the first reasons as follows:
11.Nevertheless, I inquired of each counsel whether there was any matter that their respective clients had not had the opportunity to raise in the affidavit materials that I had identified as having been filed in response to the order of 6 November 2020 for a single trial affidavit.
12.In the case of the applicant, he filed a self-drafted affidavit on 29 March 2021. In my view, it was clearly prepared and filed in response to the order of 6 November 2020. It deals with all the matters that might be expected to be dealt with in a property trial in this Court. Admittedly, the applicant does make reference to material in earlier affidavits but that does not appear to be extensive. He filed an updating affidavit on 12 November 2021. His counsel suggested that there was other material that could be put forward but I am satisfied that this is simply the result of a legally-trained eye looking at the matter and considering that the self-drafted affidavit has some deficiencies. In my view, it does not have any radical deficiencies and the applicant raised the matters that he considered relevant. I am satisfied he had the opportunity to raise all relevant matters.
However that does not accurately detail the situation before the primary judge. Crucially, the 7 September 2021 orders specifically permitted the parties to rely upon more than just one consolidated affidavit. Because the 6 November 2020 orders were expressed to be “until further order”, to the extent there was any inconsistency, the 7 September 2021 orders prevailed, and particularly, Order 2 of the 6 November 2020 orders was superseded.
Quite properly, between 7 September and 24 November 2021, all parties believed, and prepared their cases on the legitimate, court sanctioned basis, that they could rely upon all past affidavits, yet on 24 November 2021 that was turned on its head, and without any forewarning, a significant restriction on the material they could rely upon was imposed upon them. That was procedurally unfair. More, since the 6 November 2020 order for one consolidated affidavit had been superseded, it was no longer in effect, and the primary judge was wrong to conclude otherwise. It is not to the point to conclude that the parties had the opportunity to put in all relevant material in one consolidated affidavit; they later were permitted to rely upon all previously filed affidavits, and more, purported by their Outlines of Case to do so, and hence prepared their cases on that basis.
Nor was the unfairness theoretical. In the case of the appellant, he was deprived of his properly anticipated recourse to a considerable body of affidavit material, extending vastly beyond the 53 paragraphs of his 29 March 2021 affidavit and his brief 12 November 2021 affidavit. His 29 March 2021 affidavit was demonstrably deficient in relation to many matters raised in the proceedings.
Indeed this point was tellingly illustrated by the first respondent’s Summary of Argument in this appeal, where, in reply to the appellant’s arguments that many factual findings of the primary judge were contrary to the evidence, it was said that the material relied on by the appellant was not before the primary judge, and yet it was that very material which the appellant was denied the opportunity to put in to evidence.
Because neither the first nor second respondents properly construed Ground 6, their Summaries of Arguments did not descend to a refutation of the heart of the ground. Nonetheless, the first respondent, and to a lesser extent the second respondent, orally argued that any want of procedural fairness was cured by the tender bundles of material which the parties were permitted to rely upon. However in order to succeed on that argument, I would need to conclude that the primary judge’s decision was inevitable (Stead v State Government Insurance Commission (1986) 161 CLR 141). I do not so conclude, nor that the tender bundle process otherwise cured the lack of procedural fairness. Plainly the appellant was denied the opportunity of a different outcome.
I should explain why Aon Risk – which the primary judge referred to in the first reasons – does not carry the day here. True it is that it was relevant to the refusal of the adjournment, but it speaks not, at least on these facts, to the procedural fairness of dramatically curtailing the material upon which the parties could rely, contrary to earlier orders made in the process of case management.
Finally I should highlight that no attempt was made on 7 September 2021 to in any way restrict the scope of the affidavits upon which the parties could rely at trial. Whilst the primary judge understandably recoiled in a degree of horror at the sheer volume of material which that order permitted to be relied upon, and correctly indicated such a procedure was contrary to good case management, that is no answer to the unfairness which the peremptory withdrawal of the right to rely on that material gave rise to.
Ground 6 has merit.
The remaining grounds and Notice of Contention
It is therefore unnecessary to consider the balance of the grounds of appeal, as before me all parties conceded that if Ground 6 succeeded, subject to the Notice of Contention, the appeal should be allowed and the matter remitted for rehearing.
However I should note that the appeal was in any event destined to succeed on a factual error of the primary judge as contended under cover of Ground 1. In summary, the primary judge adjusted the otherwise equal entitlements of the parties on the basis that, post separation, the appellant had reduced the principal owing on a property by about $26,000 which, being 3 per cent of the net pool, justified a 1.5 per cent increase in the appellant’s entitlement. It was conceded by both the first and second respondents that the proper figure by which the principal under the mortgage had reduced was about $76,000, being about 10 per cent of the net pool. On the primary judge’s approach that logically would have necessitated a 5 per cent adjustment in the appellant’s favour. The factual error is therefore material. The first respondent’s Notice of Contention which alleged that the error was, in effect, not material, as the outcome was “within range” is thus unmeritorious and shall be dismissed. I make no comment on the logic which saw the appellant only compensated for 50 per cent of his post separation contribution to the net pool which his reduction of the mortgage principal effected.
outcome
As regrettable as it is, even though the appeal only challenged some of them, the only just outcome in this case is to set aside all of the primary judge’s orders, and remit the matter for yet another trial, including the dismissal of the third respondent’s claims, which at trial were supported by the appellant and clearly affected his interests, notwithstanding that the third respondent has not appealed.
Given that all parties conceded that, in that event, the orders made by the primary judge on 3 May 2022 on an application to stay the 4 March 2022 orders must also be set aside, it is unnecessary to determine the appellant’s Application in an Appeal filed 8 August 2022 seeking an extension of time to appeal the 3 May 2022 orders, and it will be dismissed. Likewise it is now not necessary to determine the balance of the appellant’s Application in an Appeal filed 11 August 2022, and it too will be dismissed.
costs
In the event that the appeal succeeded, the appellant sought costs against the first respondent, comprising the expense of purchasing transcript and some secretarial services. The first respondent opposed such an order. Whilst perhaps the first respondent is in a better financial position than the appellant, she did not contribute to the primary judge’s error – far from it, as before the primary judge, her then counsel forcefully argued for the inclusion of all the parties’ material into evidence.
Although it could be argued that the appeal ought to have been conceded, the Amended Notice of Appeal was only filed on 1 June 2022, by when all of the costs of transcript and the secretarial services had been incurred. I decline to make any order for costs. However given the error of the primary judge is one of law, the parties should all have certificates for the appeal and rehearing.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 1 September 2022
SCHEDULE OF PARTIES
BRC 5459 of 2014 Respondents
Fourth Respondent:
B PTY LTD
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