Lasso v Malaka
[2022] FedCFamC1A 130
•23 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Lasso & Malaka[2022] FedCFamC1A 130
Appeal from: Malaka & Lasso (No 3) [2022] FedCFamC1F 270 Appeal number(s): NAA 103 of 2022 File number(s): SYC 5913 of 2017 Judgment of: AUSTIN, TREE & WILLIAMS JJ Date of judgment: 23 August 2022 Catchwords: FAMILY LAW – APPEAL – Where the appealed orders purported to vary and enforce the arbitral award regarding the division of the parties’ marital property – Procedural fairness – Where the primary judge made orders that neither party sought and without providing notice – Where the appealed orders go well beyond permissible amendment to consequential provisions of the award and materially affect the parties’ substantive rights imposing completely different rights and obligations – Where in some instances the orders were already redundant at the time they were made – Where had the parties been afforded an opportunity to make submissions a different result could easily have flowed – Where the primary judge did not identify the source of power for the orders – Orders made were beyond power – Adequacy of reasons – Where the three sets of reasons do not provide any explanation why the ultimate orders were made – Where the primary judge erroneously made findings inconsistent with the decree and conflated the parties’ obligations – Where the appeal succeeds on all grounds – Orders discharged – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 13H, 13J, 13K, 79, 105, 106A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.07
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246; [1981] HCA 20
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Gamser v Nominal Defendant (1977) 136 CLR 145; [1977] HCA 7
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Licul v Corney (1976) 180 CLR 213; [1976] HCA 6
Pera & Pera (2008) FLC 93-372; [2008] FamCAFC 87
Phillips v Walsh (1990) 20 NSWLR 206
Ravasini and Ravasini (1983) FLC 91-312; [1982] FamCA 62
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Saltern & Mink [2020] FamCAFC 320
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Number of paragraphs: 84 Date of hearing: 28 July 2022 Place: Heard in Brisbane, delivered in Newcastle Counsel for the Appellant: Mr Williams QC with Mr Mathews Solicitor for the Appellant: ALP Lawyers Counsel for the Respondent: Mr Chan Solicitor for the Respondent: AS Family Lawyers ORDERS
NAA 103 of 2022
SYC 5913 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LASSO
Appellant
AND: MS MALAKA
Respondent
order made by:
AUSTIN, TREE & WILLIAMS JJ
DATE OF ORDER:
23 august 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The Notice of Contention filed 22 July 2022 is dismissed.
3.The orders of 27 April 2022 are discharged.
4.The Application – Enforcement filed by the respondent on 15 October 2021 is dismissed.
5.The Response to an Application in a Case filed by the appellant on 26 October 2021 is dismissed.
6.The respondent pay the appellant’s costs of $24,182, within 90 days.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lasso & Malaka has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, TREE & WILLIAMS JJ:
By an Amended Notice of Appeal filed 14 July 2022, the appellant appeals from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 27 April 2022 (“the April 2022 orders”) which purported to vary and enforce a decree made on 16 July 2021 (“the decree”).
The appellant contends the primary judge failed to accord the parties procedural fairness, provide adequate reasons, to identify any and lacked a source of power to make the April 2022 orders and made other legal and factual errors.
The respondent resisted the appeal.
For the reasons which follow, the appeal must be allowed.
BACKGROUND
Following the breakdown of a 25 year relationship, the parties attended an arbitration on 12 and 13 July 2021 where they reached agreement about the division of their marital property. An arbitral award was made by consent on 14 July 2021 (“the award”), which was registered on 16 July 2021, pursuant to s 13H of the Family Law Act 1975 (Cth) (“the Act”).
The award provided for division of a joint bank account, within seven days the appellant transfer to the respondent his interest in the former family home (“the Suburb F property”) and within 90 days the respondent refinance the mortgage encumbering an investment property (“the Suburb H property”). Simultaneously with the refinance of the Suburb F property, the appellant do whatever the mortgagee required of him to discharge the Suburb H mortgage, and transfer his interest in the Suburb H property to the respondent and their three children.
If the respondent was unable to refinance the Suburb H property, within a further 30 days, the appellant could elect to pay the respondent $325,000, whereupon he would be declared the sole owner of the Suburb H property. If the appellant was unable or unwilling to pay the respondent $325,000, the Suburb H property was to be sold and the sale proceeds divided as to 51.5 per cent to the appellant and 48.5 per cent to the respondent. The parties would otherwise retain their respective assets, liabilities and superannuation.
The appellant did not transfer the Suburb F property to the respondent within seven days of the award. The transfer was eventually effected on 16 December 2021.
On 20 August 2021, the respondent obtained refinance approval for the Suburb H property and on 30 August 2021 she notified her conveyancer, however no notification of the refinance approval was given to the appellant.
On 13 October 2021, the day after the expiration of the 90 days for the respondent to obtain the Suburb H refinance, the appellant paid the respondent $325,000 and thereby asserted his contingent interest in the Suburb H property had vested.
The respondent contended her refinance obligations imposed by the award did not require her to advise the appellant she had obtained refinance and the Suburb H property did not vest in the appellant.
On 15 October 2021, the respondent filed an enforcement application seeking the appellant transfer to her no later than 5 November 2021, both the Suburb F and Suburb H properties. The appellant filed a response on 26 October 2021 seeking the dismissal of the enforcement application.
The respondent’s application was listed before the primary judge on 23 November 2021 when he reserved his decision. On 10 December 2021, the primary judge made orders and delivered reasons. The application was adjourned to 1 March 2022 and the parties were directed to file and serve a minute of proposed orders to give effect to the reasons and written submissions in support of orders proposed.
Following a further telephone hearing on 1 March 2022, the primary judge again reserved his decision. On 18 March 2022, further reasons were published (“the March 2022 reasons”) and the parties were directed to submit a minute of orders giving effect to the reasons. The parties were unable to reach agreement about the proposed orders and each delivered a minute of proposed orders which they contended gave effect to the March 2022 reasons.
Subsequent to the submission of a proposed minute, on 27 April 2022 the primary judge made orders and delivered further reasons. The April 2022 orders were made in chambers on the papers and without further notice to or submissions by the parties.
LEAVE TO APPEAL
The parties dispute whether leave to appeal is required to appeal from the April 2022 orders. The appellant contended leave to appeal is not required because the orders are final. The respondent contended leave is required because Orders 1–13 of the April 2022 orders involved an exercise of power pursuant to r 11.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which does not independently create rights or obligations. It was further contended as the orders recalibrate a timetable and are to aid compliance, they are interlocutory and leave to appeal is required.
Whether an order is final or interlocutory is determined by applying the test: does the judgment or order, as made, finally dispose of the rights of the parties (Licul v Corney (1976) 180 CLR 213 at 225). In applying that test, regard must be had to the “legal rather than practical effect of the judgment” (Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 at 248).
In this case, the orders finally determine the rights of the parties. Leave to appeal is not required.
Ground 1
This ground provides:
1. That the learned Primary Judge erred in law, by:
1.1failing to identify the source of power to make the orders dated 27 April 2022; and
1.2failed to identify that neither party sought such relief as that embodied in the orders made on 27 April 2022;
1.3made such orders without notice to the parties and thereby denied the parties’ procedural fairness;
and in failing to deliver proper reasons for the approach adopted in making such orders.
(As per the original)
The specific complaints under this ground are threefold. Firstly, it is contended the primary judge failed to accord procedural fairness to the parties by making orders which bore no correlation at all to those sought by either party, without notice to them. Secondly, the primary judge erred by failing to identify the source of power to make the orders. Thirdly, the primary judge failed to provide any or adequate reasons for the orders made.
We deal with the first particular under this ground because it alleges a denial of procedural fairness, which must be considered first by an intermediate appellate court (Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
The appellant contended that during the hearings neither party sought orders in the form ultimately made by the primary judge, nor was notice provided to the parties of the Court’s intention to make such orders.
In relation to the proposed variation of the award, at [40] of the March 2022 reasons, the primary judge said:
40. The award should be given effect but in accordance with new dates.
At [4] of the April 2022 reasons, the primary judge referred to the respondent’s proposed minute of consent orders:
4.The [respondent] proposed a minute of consent orders was [sic] articulated as follows –
1.That no later than 14 days from the date of these Orders that the [appellant] provide all documents in registrable form as requested by the [respondent’s] conveyancer, Mr RR.
2.That no later than 21 days from the date of these Orders that the transfer of [the Suburb H property] is to be effected in accordance with the Arbitral Award dated 16 July 2021. p
3.That [the Suburb H property] is to be vacant and all the keys to the property and any other security devices such as access codes given to [respondent] no later than 7 days after the transfer has been effected.
4.Within 7 days of Order 3 being complied with, the [respondent] is to return to the [appellant] $325,000 to the [appellant’s] nominated account:
a.less the outstanding spousal maintenance owed by the [appellant] to the [respondent] (as specified in Order 1 by Justice Altobelli on 28 January 2021) of $4,000;
b.less the [respondent’s] legal costs of $7,692;
c.less the estimated costs of any recent damage to the Suburb H property, and
d.less any outstanding bills on the Suburb H property.
(As per the original)
At [5] of the April 2022 reasons, the primary judge referred to the appellant’s proposed minute of consent orders:
5.The [appellant’s] proposed minute of consent orders was articulated as follows –
1.Within 14 days of the date of this Award the [respondent] shall take all steps and sign all documents required to refinance the Commonwealth Bank Mortgage secured against [the Suburb H property] and provide written notice to the [appellant’s] Representative that the [respondent] has received loan approval. Upon receipt of such notice, The [appellant] shall do all acts and things and sign all documents required to cause the discharge of the said commonwealth bank mortgage.
2.Simultaneously with the [respondent] complying with Paragraph 1, the [appellant] shall transfer all of his right, title and interest in the Suburb H property as follows:
i.50% to the [respondent]; and
ii.50% to [the three children] in equal shares.
And the [respondent] and [appellant] shall, to the extent necessary, sign all documents and do all things complete the transfer contained herein.
3.Simultaneously with Order 2 being complied with, the [respondent] is to return to the [appellant] the $325,000.00 to the [appellant’s] nominated account.
4.In the event that the [respondent] fails to comply with Paragraph 1:
(a)The [appellant] shall be declared, to the exclusion of the [respondent], the owner at law and equity of the Suburb H property and the [respondent] shall retain the $325,000.00 previously transfer by the [appellant] to the [respondent’s] account on the 26 October 2021.
(b)The [respondent] must to the extent necessary, sign all documents and do all things to remove any caveat she had lodged on the Suburb H property.
(As per the original)
As can be seen, the parties were unable to agree on orders to give effect to the March 2022 reasons and neither sought orders in accordance with the orders ultimately made. The respondent’s proposed minute at [4] of the April 2022 reasons, additionally sought orders which had not previously been canvassed before the primary judge and for which there was no application before the Court.
Because of the comments of the primary judge at [40] of the March 2022 reasons, neither party could have reasonably anticipated orders significantly departing from the terms of the award, but rather orders to give effect to the award “but in accordance with new dates”, or in other words, consequential orders to facilitate the implementation of the decree.
Whether the April 2022 orders are consequential or affect the substantive rights of the parties is relevant to both our consideration of procedural fairness and the Court’s power to make such orders.
The appellant contends the April 2022 orders go well beyond permissible amendment to consequential provisions of the award and materially affect the parties’ substantive rights. This is the contention specifically raised by Ground 2, but nonetheless it is necessary to address it now in the context of Ground 1.
Counsel for the appellant submitted, subject to recognised exceptions, once perfected by being entered into the court record, an order finalising a proceeding is beyond recall (Gamser v Nominal Defendant (1977) 136 CLR 145 at 146 (“Gamser”)). There is no reason why the same conclusion should not apply to an arbitral award, which determines an adjustment of property between parties pursuant to s 79 of the Act, when the award is registered by the Court pursuant to s 13H(2) of the Act. We accept that submission.
Exceptions to the principle articulated in Gamser include matters where the orders sought to be varied are consequential or machinery orders as opposed to being substantive in effect (Phillips v Walsh (1990) 20 NSWLR 206 at 210). The distinction between an order of a consequential or machinery nature as opposed to an order affecting substantive rights was considered by the Full Court of the Family Court in Ravasini and Ravasini (1983) FLC 91-312 at 78,127–78,128 (“Ravasini”) and Pera & Pera (2008) FLC 93-372 at [58]–[61].
In the course of defining a consequential order, in Ravasini, the Court said such an order “in a property matter, would include an order following logically or of necessity from a prior substantive order. What a consequential order is not is an order the effect of which is to vary the prior order for property settlement” (at 78,127).
Central to the submissions of both the appellant and the respondent, as to whether the April 2022 orders were consequential or substantive, was the contention each party had acquired rights to the Suburb H property because of the vesting of their rights conferred by paragraphs 3 and 5 of the decree.
The due date for refinance pursuant to the award was 12 October 2021. Because of the respondent’s failure to comply with her obligations, the appellant contended he exercised the rights conferred on him by paragraph 5 of the decree and paid the respondent $325,000 on 13 October 2021, which vested his rights to retain the Suburb H property. It was submitted the April 2022 orders altered the times for compliance with the decree, and imposed further obligations on the parties, which affected the appellant’s substantive vested right to retain the property.
The respondent contended the appellant’s assumption he was entitled to retain the Suburb H property was flawed and consequentially the orders directing the parties to do certain things within an extended timeframe did not alter the substantive rights of the appellant, as he did not have any, meaning the April 2022 orders were therefore consequential.
The respondent asserted her obligation imposed by paragraph 3 of the decree was limited to “take all steps and sign all documents required to refinance”, which she did. On 20 August 2021, the respondent obtained refinance approval for the Suburb H property and on 30 August 2021 she notified her conveyancer. She further contended that any contingent interest the appellant may have had in the Suburb H property was extinguished because she had obtained approval to refinance the property, notwithstanding neither she nor her conveyancer notified the appellant. Therefore, the purpose of the April 2022 orders was to give effect to and implement the transfer of the property to the respondent and the three children, as provided by the decree.
The respondent’s submission is contrary to the relevant factual findings of the primary judge at [30] and [38] of the March 2022 reasons, that she did not take all steps as required by paragraph 3 of the decree. The primary judge said:
30.Turning first to the [respondent’s] application for orders under s 105 on [sic] the Family Law Act, in my view she has not demonstrated her entitlement to orders enforcing the arbitral award. She did not demonstrate to me that she has taken steps, let alone “all steps" provided for in paragraph 3 of the arbitrator’s orders to refinance the Commonwealth Bank mortgage. Yet, it must also be recognised that the [appellant] did not comply with his obligations under paragraph 2.
…
38.What of the enforcement application? None of the dates previously ordered by the arbitrator any longer apply. In those circumstances it is not easy to see how orders can, or should, be made compelling performance with events by dates long passed. It seems to me that orders in the nature of relief under s 105 of the Family Law Act are presently inappropriate.
We do not accept the respondent’s assertion the obligations imposed by paragraph 3 of the decree are limited to her obtaining finance. Rather, we consider it is implicit the respondent was required to advise the appellant of her compliance, to trigger his subsequent obligations. Paragraph 4 of the decree requires the appellant to transfer the Suburb H property to the respondent simultaneously with the respondent complying with paragraph 3. Logically, the appellant would never be able to comply with paragraph 4, unless he were advised of the respondent’s prior compliance.
The April 2022 orders do not simply impose new dates to give effect to the decree. The orders impose completely different rights and obligations on the parties and, in some instances (Orders 1–2), were already redundant at the time the orders were made. The variations to the decree include an order extinguishing the respondent’s obligations to refinance the Suburb H mortgage within 90 days of the award and instead mandating her to “repeat the loan application process…until such loan application is successful” (Order 8). Unlike the decree, the April 2022 orders do not provide for the appellant to acquire the Suburb H property if the respondent is unable to refinance, the parties’ right to sell the Suburb H property and divide the proceeds in specified percentages, if neither party is able to or seeks to retain the Suburb H property, and fail to address the calculation and payment of capital gains tax arising from a sale.
The April 2022 orders were not confined to giving effect to the award (decree) “but in accordance with a new timetable of dates”, as stated by the primary judge at [1] of the April 2022 reasons. The April 2022 orders impermissibly substantially varied the terms of the decree and the vested rights of the appellant.
The April 2022 reasons record the orders were made in chambers on the papers. Neither the appellant nor the respondent were invited to make further submissions about the orders proposed by each of them. The Court did not provide notice to either party of its intention to make orders inconsistent with the decree or their respective proposed minute of orders.
It was incumbent on the primary judge to raise with the parties the orders he proposed to make, to enable relevant submissions to be made when those orders were not contemplated by either party and would deprive a party of some right or interest or the legitimate expectation of a benefit (see Kioa v West (1985) 159 CLR 550 at 582 (Mason J); Allesch v Maunz (2000) 203 CLR 172 at [35]–[36] (Kirby J) (“Allesch v Maunz”)). The failure of the primary judge to do so is a denial of procedural fairness.
Not every denial of procedural fairness vitiates the appealed orders and warrants a retrial (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 (“Stead ”)). It must be demonstrated that the error of law and consequential denial of procedural fairness was material to the outcome of the appellant’s case.
As to the correct test to be applied, in Stead the High Court said at 147:
Alternatively, if the Full Court is properly to be understood as saying no more than that a new trial would probably make no difference to the result, their Honours failed to apply the correct criterion. All that the appellant needed to show was that the denial of natural justice deprived him of the possibility of a successful outcome. In order to negate that possibility, it was, as we have said, necessary for the Full Court to find that a properly conducted trial could not possibly have produced a different result.
The appellant bears the onus of not only demonstrating error, but that a different result might have flowed had the legal error not occurred (Allesch v Maunz; Saltern & Mink [2020] FamCAFC 320).
As to the second limb, because the obligations and rights of the parties imposed by the April 2022 orders reach far beyond the recalibration of a timetable for compliance with the award and the decree, we consider a different result could easily have flowed had the parties, and particularly the appellant, been afforded an opportunity to make relevant submissions.
We are satisfied there has been a denial of procedural fairness which is material to the appellant’s case. There is merit in this ground.
The appellant complains that the primary judge failed to identify the source of power for the appealed orders, but the error goes deeper. The appealed orders were beyond power, which error could well have occurred because his Honour did not identify, and perhaps was not conscious of, the power being wielded.
On 16 July 2021, the arbitral award was registered by the primary judge as provided by s 13H(1) of the Act and pursuant to s 13H(2) of the Act, has effect as if it were a decree made by the Court. The decree may only be varied if one or more of the conditions in s 13K(2) are satisfied.
Neither party filed an application for variation of the decree, nor sought orders pursuant to s 13K(2). The respondent’s Application in a Case filed 15 October 2021 was an enforcement application and the appellant’s response filed 26 October 2021 sought the dismissal of the respondent’s enforcement application, the respondent to execute a discharge of mortgage of the Suburb F property and the respondent pay his costs.
During the hearing on 23 November 2021, which resulted in the December 2021 reasons, the primary judge required the respondent to identify the source of power relied upon. The respondent relied upon s 105 of the Act. At [39] of the December 2021 reasons, the primary judge raised the possibility of altering the timeline ordered in July 2021, by consent, pursuant to the combined operation of s 13K(1) and s 13K(2)(c).
During the hearing on 1 March 2022, the respondent again identified she relied upon s 105 of the Act to enforce the terms of the award and the primary judge acknowledged there was no application before the Court pursuant to s 13J or s 13K of the Act.
At [3] of the March 2022 reasons, the primary judge accepted the appellant squarely rejected the concept of recalibrating dates for steps to be done by each party.
At [4] of the March 2022 reasons, the primary judge referred to the discussion during the hearing of 1 March 2022 as to the possible source of power to vary the award and acknowledged the appellant rejected that assertion and the respondent pressed for the application to be dealt with pursuant to s 105 of the Act. The primary judge said:
4.The [respondent] relied on s 105 of the Family Law Act. The [appellant] resisted the application made under that section. During debate on 1 March 2[0]22 I canvassed whether the matter before me could be treated as an application to vary the award by reason of the intervening events recorded in my 10 December 2021 reasons. Counsel for the [appellant] rejected that suggestion and the [respondent’s] solicitor pressed for the application to be dealt with pursuant to s 105.
Despite the respondent pressing her enforcement application, the primary judge declined to make orders exercising power pursuant to s 105 of the Act. At [30] of the March 2022 reasons, the primary judge said the respondent had “not demonstrated her entitlement to orders enforcing the arbitral award” and at [38] said “it seems to me that orders in the nature of relief under s 105 of the Family Law Act are presently inappropriate”. Thus, the April 2022 orders were not made pursuant to s 105 of the Act.
Counsel for the respondent submitted the comments of the primary judge at [30] were relevant to the specific relief sought by the respondent in her application and not to a general exercise of power pursuant to s 105 of the Act. He was unable to demonstrate where that was apparent in any of the three reasons or the transcript of the two hearings. We reject that submission.
In the April 2022 reasons, the primary judge did not state he relied upon the power conferred by s 13K, nor did he address the considerations set out in s 13K which would warrant a variation of the July 2021 decree. Thus, it can be accepted the primary judge did not rely on s 13K to make the April 2022 orders particularly when both parties had already told his Honour they abstained from seeking relief under s 13K.
The remaining source of power available to the primary judge to make the April 2022 orders, is the power of the court to make or modify machinery provisions of an order to effect implementation, provided that by doing so it does not affect the substantive rights of the parties. There is no power to vary the original order (see Ravasini).
We have rejected the characterisation of the April 2022 orders as consequential or machinery and therefore the April 2022 orders could not have been made pursuant to this power.
Not only did the primary judge fail to identify the source of power he purportedly exercised to make the April 2022 orders, the orders could not have been made pursuant to s 13K or s 105 of the Act, nor pursuant to the general power, as stated in Ravasini. There is merit in this ground.
Lastly, we turn to the complaint about adequacy of reasons. The appellant complains the reasons of the primary judge supporting the April 2022 orders are wholly inadequate.
The obligation of a trial judge is to provide adequate reasons, but adequacy depends on the circumstances of the case and brief reasons are not necessarily inadequate. What is necessary is that the essential grounds upon which the decision rests should be articulated and the path of reasoning be disclosed. Failure to do so will constitute an error of law (DL v The Queen (2018) 266 CLR 1 at [32]–[33] (Kiefel CJ, Keane & Edelman JJ) and [130]–[132] (Nettle J)).
The April 2022 reasons canvass a brief background to the dispute (at [1]–[3]) and the respective minutes proposed by the respondent (at [4]) and the appellant (at [5]). The primary judge (at [6]) refers to the benefit of reading and considering each minute propounded by both the appellant and the respondent and that the orders proposed by him record in a more chronologically sensible manner each step each party must take and by when, prior to restating the orders set out at the commencement of the reasons.
Those reasons do not articulate at all why the primary judge made orders in April 2022 which substantially varied the original agreement of the parties, as embodied in the July 2021 decree. The earlier reasons of December 2021 and March 2022 do not refer to, or provide any explanation for the ultimate variation of the orders, rights and responsibilities of both parties. It is not possible to discern from the three sets of reasons any explanation why the ultimate orders were made.
There is merit in this ground.
Ground 2
This ground provides:
2.The learned judge fell into error by making orders which altered substantive rights vested in the parties as a consequence of the Award made on 14 July 2021 and registered in the Family Court of Australia on 16 July 202[1];
(As per the original)
We deal with this ground in our consideration of the first particular in Ground 1.
Ground 3
This ground provides:
3. That His Honour erred on the facts in relation to:
3.1the obligations the Award imposed on each of the parties;
3.2the effect of the Award imposed on each of the parties;
3.3the nature of the section 106A Relief sought by the [appellant];
3.4the Transfer of the Suburb H Property pursuant to Order 4 of the Award was contingent upon the parties compliance with the Transfer of the Suburb F Property pursuant to Order 2 of the Award.
(As per the original)
The appellant seeks to challenge various findings of the primary judge because they were contrary to evidence.
The first finding challenged is at [37] of the December 2021 reasons, where the primary judge said the appellant “attempted to entirely sidestep” his obligations to implement the decree and transfer the Suburb H property.
The appellant contends there was no evidentiary basis for the finding. At [3(a)] and [3(b)] of the December 2021 reasons, the primary judge erroneously recorded the appellant was obliged to refinance the Suburb H mortgage and procure its discharge. Those findings are inconsistent with the decree, which imposed an obligation on the respondent to procure the discharge of the mortgage, prior to the appellant being required to take any steps.
The correspondence between the solicitors for the parties dated 11 September 2021 (Annexure D to the affidavit of Mr RR filed 26 October 2021) requesting documentation for a discharge of mortgage and transfer, pertained solely to the Suburb F property. The correspondence between the parties’ representatives pertaining to the Suburb H property comprised a letter from the respondent’s conveyancer to the appellant’s solicitor dated 29 July 2021, seeking copies of various documentation, a reply on the same day from the appellant’s solicitors and a letter dated 5 October 2021 from the appellant’s solicitors to the respondent’s conveyancer. The letter of 5 October 2021 sought an update of the transfer of the Suburb H property and alerted the respondent’s conveyancer to the deadline of 12 October 2021.
On 13 October 2021, the appellant’s solicitors wrote to the respondent’s solicitor requesting details of the banking arrangements for payment of $325,000 in accordance with paragraph 5 of the decree. On the same day, the respondent’s solicitor replied contending it was the appellant who had caused delay in the transfer for both the Suburb F and Suburb H properties. That was despite the letter of 5 October 2021, to which the respondent’s conveyancer failed to reply.
The appellant contends he was entitled to act in accordance with paragraph 5 of the decree to vest his interest in the Suburb H property. The chain of correspondence between the appellant’s solicitor and the respondent’s conveyancer, together with the payment of $325,000 demonstrates the finding of the primary judge impugning the appellant was clearly wrong. We accept that submission.
The second finding challenged is at [36]–[37] of the December 2021 reasons. The primary judge concluded the s 106A application brought by the appellant was to enable him to retain the Suburb H property, whereas the application was brought in relation to the Suburb F property. The appellant asserts the primary judge conflated the appellant’s obligations for the two properties and assumed the obligations pertaining to the Suburb H property were contingent upon the appellant performing his obligations with respect to the Suburb F property, when they were not. We accept that submission.
The third finding challenged is at [35]–[37] of the December 2021 reasons. The primary judge concluded the appellant’s failure to transfer the Suburb F property to the respondent within seven days, as required by paragraph 2 of the decree, contributed to the failure to transfer the Suburb H property to the respondent. The appellant contented that finding was not open to the primary judge on the evidence before him. We accept that submission.
There is merit in this ground.
NOTICE OF CONTENTION
On 22 July 2022, the respondent filed a Notice of Contention. The ground relied upon was that the primary judge erred in finding at [30] of the March 2022 reasons, the respondent did not take “all steps” as required by paragraph 3 of the decree.
We have earlier addressed the obligations of the respondent pursuant to paragraph 3 of the decree. The Notice of Contention will be dismissed.
DISPOSITION
Grounds 1, 2, and 3 of the appeal are sustained.
In the event the appeal was allowed, the appellant sought the orders of 27 April 2022 be discharged. There is no need to either remit for rehearing or re-exercise discretion because the registered award (the decree) has now been executed in all respects. However, discharge of the appealed orders leaves a vacuum in respect of the application and response which caused the hearings before the primary judge. The primary judge made completely different orders but did not dismiss those applications. We will make orders accordingly.
COSTS
If the appeal was successful, the appellant applied for the respondent to pay costs on a party/party basis, rather than the granting of costs certificates. The respondent sought costs certificates for both parties, if the appeal succeeded on an error of law.
We accept the appellant’s submission that the legal and factual errors identified in the three sets of reasons for judgment were so obvious that the respondent should have conceded the appeal at a much earlier point in time, thereby justifying an order for costs in the appellant’s favour.
In the Schedule of Costs filed 18 July 2022, the appellant claimed $24,182. As there were no submissions opposing quantum of costs or time for payment, an order will be made for the respondent to pay the costs of the appellant as claimed in the costs schedule, within 90 days.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tree & Williams. Associate:
Dated: 23 August 2022
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