Lasso v Malaka

Case [2022] FedCFamC1A 130

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 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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AGLC
Lasso v Malaka [2022] FedCFamC1A 130
Case
[2022] FedCFamC1A 130
Decision Date

CaseChat Overview and Summary

The appellant, Mr Lasso, brought an appeal against the orders made by the Federal Circuit and Family Court of Australia. The appeal was against the orders made by the primary judge on 27 April 2022, which varied and enforced the arbitral award regarding the division of the parties’ marital property. The dispute arose from the breakdown of a 25-year relationship, and the parties had reached an agreement on the division of their marital property through an arbitration on 12 and 13 July 2021. An arbitral award was made by consent on 14 July 2021, which was registered on 16 July 2021. The appeal sought to challenge the primary judge's orders, which were made without notice and purported to vary and enforce the arbitral award.

The legal issues the court had to decide included whether the primary judge had the power to make the orders, whether the orders were procedurally fair, and whether the reasons provided by the primary judge were adequate. The court also had to consider whether the primary judge had identified the source of power for the orders, and whether the orders materially affected the parties' substantive rights. The court found that the primary judge's orders went beyond permissible amendment to consequential provisions of the award and imposed completely different rights and obligations on the parties. In some instances, the orders were already redundant at the time they were made. The court also found that the primary judge did not identify the source of power for the orders, and that the reasons provided by the primary judge were inadequate.

The court held that the primary judge's orders were beyond power, and that the appeal succeeded on all grounds. The court discharged the orders made by the primary judge and dismissed the respondent's enforcement application. The court also ordered the respondent to pay the appellant's costs of $24,182 within 90 days. The court found that had the parties been afforded an opportunity to make submissions, a different result could easily have flowed. The court emphasised the importance of procedural fairness and the need for judges to identify the source of power for the orders they make. The court also highlighted the importance of providing adequate reasons for the orders made, and the need to avoid making findings inconsistent with the decree.

In conclusion, the appeal in Lasso v Malaka was allowed by the Federal Circuit and Family Court of Australia. The court found that the primary judge's orders were beyond power, and that the appeal succeeded on all grounds. The court discharged the orders made by the primary judge and dismissed the respondent's enforcement application. The court also ordered the respondent to pay the appellant's costs of $24,182 within 90 days. The court emphasised the importance of procedural fairness, the need for judges to identify the source of power for the orders they make, and the importance of providing adequate reasons for the orders made.

Orders

Orders of the court

NAA 103 of 2022

SYC 5913 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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).

Background

Background to the litigation

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.

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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