Lenova & Lenova
[2011] FamCAFC 114
•24 May 2011
FAMILY COURT OF AUSTRALIA
| LENOVA & LENOVA | [2011] FamCAFC 114 |
| FAMILY LAW - APPEAL – PROPERTY – Where property orders were made pursuant to s 79 in part providing for the transfer of the former matrimonial home to the wife and for the creation of a lease as between the wife and the husband – Where a lease was subsequently executed affording the husband the “sole use and occupation” of a portion of the former matrimonial property – Where the trial judge subsequently made orders amending the terms of the lease – Where the husband appealed from those orders, claiming that the Court did not have jurisdiction to amend the terms of the lease – Whether the amendments to the lease were to substantive as opposed to machinery provisions – Whether the Court was functus officio upon making the s 79 orders – Appeal allowed and the orders of the trial judge set aside. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Gabel & Yardley (2008) FLC 93-386 Harris v Caladine (1991) 172 CLR 84 In the Marriage of Florie (1988) FLC 91-913 Kaljo & Kaljo (1978) FLC 90-445 Molier & Van Wyk (1980) FLC 90-911 Mullane v Mullane (1983) 158 CLR 436; (1983) FLC 91-303 Ravasini & Ravasini (1983) FLC 91-312 Slapp & Slapp (1989) FLC 92-022 Taylor & Taylor (1979) FLC 90-674 |
| APPELLANT: | Mr Lenova |
| RESPONDENT: | Mrs Lenova |
| FILE NUMBER: | MLC | 5218 | of | 2009 |
| APPEAL NUMBER: | SOA | 80 | of | 2010 |
| DATE DELIVERED: | 24 May 2011 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Coleman and Murphy JJ |
| HEARING DATE: | 6 May 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 September 2010 |
| LOWER COURT MNC: | [2010] FamCA 834 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Puckey |
| SOLICITOR FOR THE APPELLANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Mr Nicholson |
| SOLICITOR FOR THE RESPONDENT: | Schetzer Constantinou Lawyers |
Orders
THAT the appeal be allowed.
THAT the orders made by Young J on 14 September 2010 be set aside and in lieu thereof the following orders be substituted:
(a)THAT the Response filed by the wife on 9 September 2010 be dismissed; and
(b)THAT the Application in a Case filed by the Husband on 2 September 2010 be adjourned to a Registrar on a date and at a time to be fixed for the making of further directions.
THAT the parties file with the Appeals Registrar within 21 days of the date of these Orders, any written submissions in respect of the issue of costs together with a minute of any order sought.
IT IS NOTED that publication of this judgment under the pseudonym Lenova & Lenova is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
Appeal Number: SOA 80 of 2010
File Number: MLC 5218 of 2009
| Mr Lenova |
Appellant
And
| Mrs Lenova |
Respondent
REASONS FOR JUDGMENT
After a longstanding and acrimonious dispute, the husband and wife reached agreement in respect of the financial issues outstanding between them, and, on 22 July 2010, final consent orders were made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) perfecting that agreement.
Subsequently, an application was filed by the husband seeking an order that a Registrar be appointed pursuant to s 106A of the Act to execute documents specified in the application. Relevantly, that list of documents included a “lease between [the wife] and [L Pty Ltd]”. The wife responded, ultimately seeking various orders relating to the proposed lease just referred to that sought to effect changes to it.
On 14 September 2010, Young J made orders, relevantly, as follows:
1.THAT the terms of the Lease in respect of the husband’s land as defined in paragraph 2 of the final consent orders pronounced 22 July 2010 (“the Orders”) be amended from the draft form as presented to the Court to read as follows:
a.to insert the words “subject to special condition 1.2 thereof” after the words “50 years” in defining the term of the Lease;
b.to [re]quire the landlord’s name to be endorsed upon the public liability insurance policy required by clause 8.1.1 of the Lease and on each subsequent yearly policy thereof with such documents and proof of endorsement to be provided to the wife as landlord within seven (7) days of the date of renewal, and at the expense of the tenant;
c.to allow the wife as landlord access to the shed on the leased land between 10.00 a.m. and 10.45 a.m. on the first Saturday of February and August in each calendar year for the purposes of conducting a landlord’s inspection of the premises, to be undertaken in the absence of the husband and in the presence of a person nominated by the husband and agreed to by the wife;
d.to insert the husband as guarantor on page 3 of the Lease document with liability limited to the rental due and any necessary and proper outgoings pursuant to the Lease itself for which the tenant would ordinarily be responsible;
e. without necessarily including these provisions within the Lease document the wife as landlord has limited scope to inspect her electricity meter box and water tanks on the leased property at times when the husband is not present.
The husband appeals from those orders.
Grounds Of Appeal
The husband’s Notice of Appeal filed 8 October 2010 contains four grounds of appeal:
1. That His Honour, the Trial Judge, erred in making Orders without jurisdiction to do so.
2. That His Honour, the Trial Judge, provided inadequate reasons to enable the Full Court to identify the basis or source of power upon which the Orders were made.
3. That His Honour, the Trial Judge, made Orders which amount to a variation of the substantive provisions of a final Section 79 order at a time when the Court was functus officio in that regard.
4. That His Honour, the Trial Judge, made an order which was inconsistent with reasons for judgment delivered by His Honour.
As the written summary of argument on behalf of the appellant filed 30 March 2011 succinctly makes clear “all four grounds of appeal go essentially to the one point – that the learned Trial Judge varied the Final Orders without jurisdiction to do so”. In essence, the argument is that the making of final orders pursuant to s 79 of the Act rendered the Court functus officio and, having dealt with all of the property of the parties or either of them within the meaning of that section, the Court’s power was exhausted.
Although ground four is, understandably enough, brought within counsel’s general rubric, the point at its centre is somewhat different; it is said that “this was a matter upon which both parties’ counsel had addressed the learned Trial Judge and it was understood by both that no order would be made”.
A Notice of Ceasing to Act was filed by solicitors then acting for the respondent wife on 5 April 2011. At the hearing of this appeal, Mr Nicholson of counsel sought and was granted leave to file a Notice of Address for Service on the wife’s behalf and appeared for her.
The Original Consent Orders
The Terms of the Orders
It is necessary to set out at least some of the provisions of the orders made on 22 July 2010 reflecting the consent of the parties. Although not specifically so stated, it is clear by their terms that those orders are made pursuant to s 79 of the Act and are intended to bring an end to the parties’ financial relationship. A notation to the orders reinforces that intention:
That pursuant to section 81 of the Family Law Act 1975, the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings them (sic).
The parties’ adult sons were joined to the proceedings as second and third respondents. The orders refer to them. They did not, however, participate in the proceedings before his Honour and, thus, neither on this appeal.
The consent orders provide relevantly:
2. THAT on or before the expiration of sixty (60) days the husband do all things necessary and sign all such documents as are required at the wife's sole expense to transfer to the wife all that, his right title and interest in the dwelling situate at and known as [block B] in the State of New South Wales more particularly described as the whole of the land comprised in folio identifier 3/… (inclusive of the parcel of land described by that area shaded yellow on the plan attached hereto marked Schedule “B” which land shall be incorporated into the title by sub-division and complete the syndicate of the E Properties to provide to the wife two (2) mega litres of stock and domestic water entitlement) ("lot 3") subject to the following:-
2.1 the husband, the second and third respondents each have sole use and occupation of that part of Lot 3 ("Husband's Land") more particularly described in the area which is cross-hatched on the plan attached hereto marked Schedule "B";
2.2the third respondent or his nominee shall have a pre-emptive right to purchase Lot 3 from the wife for a consideration that shall be as agreed and in default of agreement as shall be equivalent to the highest bid (excluding vendor’s bids) received at a public auction or private sale of Lot 3 …;
2.3 the wife's execution of a lease of the husband's land in favour of the husband or his nominee in such terms as the husband in his sole discretion shall require save that the total payment in respect of rental, outgoings and any other expense in relation to the husband’s land shall be fixed in the sum of $100 per calendar month and the cost of electricity supplied to the husband's land provided same is separately metered.
…
13.THAT the wife, by herself her servants or agents be and is hereby restrained from:-
13.1approaching any employee … of the business conducted by the [L Companies]…;
13.2from entering, attending at or remaining upon any premises owned by, or leased by, any of the [L Companies] …the husband … the second respondent and the third respondent;
13.3…
13.4selling, transferring, alienating or in any manner dealing with Lot 3 pending the transfer to the third respondent, or the third respondent declining to exercise his pre-emptive right to purchase Lot 3, whichever shall first occur, other than in accordance with order 2.2. hereof.
…
15.THAT the Application for Final Orders filed by the wife on 25 June 2009, the Amended Response to an Initiating Application of the husband filed 23 April 2010, the Response to Initiating Application filed by the second and third respondents on 21 January 2010 and the Further Amended Initiating Application of the wife filed 24 June 2010 and all other extant applications be and are hereby dismissed
…
19.THAT all extant applications are dismissed and proceedings removed from the docket of Young J and the hearing listed for 6 September 2010 be vacated.
Some indication of the potential for a continuation of the acrimony and litigation that had marked the progress to the consent orders can be seen by reference to Annexure B referred to in the consent orders that marks the position of the shed to which the lease pertained, by reference to the wife’s house. As his Honour described it at paragraph 23 in the reasons for judgment delivered ex tempore on 14 September 2010:
It is important to understand that the shed, as drawn on that plan [i.e. as per Annexure B to the Orders], adjoins the wife’s house. It is said that there is a dividing brick wall. The entrance to the shed is by gates fronting [B Road] [the same road which provides access to the wife’s property and house]. The husband’s mother’s home is nearby, but not abutting the shed.
It will have been observed that paragraph 2.1 of the consent orders contemplated the husband and the parties’ two adult sons having “sole use and occupation” of land upon which the shed just referred to is situated.
Equally important to the issues raised on this appeal, it might be observed that the order effects the transfer of an interest in real property to the wife; grants an option (“a pre-emptive right to purchase”) to that land to the parties’ adult sons; and grants a lease of part of the property to the husband (or his nominee).
It is also important to the determination of this appeal to observe that each of those three dealings involves the respective recipients acquiring “an interest in property”.
The Terms of the Lease
Pursuant to the terms of the consent orders the husband submitted a lease showing L Pty Ltd as the lessee. It will give context to his Honour’s orders, and the issues in this appeal, if the relevant terms of the lease are quoted with additions consistent with the terms of his Honour’s orders indicated by underlining and, as applicable, strikethrough:
TERM 50 years subject to special condition 1.2 thereof.
[Special Condition 1.2 provides, in part:
This lease shall continue for the benefit of the Tenant for the duration of the time which [the wife], as Landlord, is the registered proprietor or is entitled to be the registered proprietor of the property leased. The Lease shall end upon the Landlord ceasing to be the registered proprietor or being entitled to be registered proprietor of the property leased …]
…
CLAUSE 8 INSURANCE AND DAMAGE
What insurances must a tenant take out?
8.1 A tenant must keep current an insurance policy covering -
8.1.1 liability to the public in an amount not less than the amount stated in item 18 in this Schedule (for each accident or event) and with the landlord’s name to be endorsed thereon on each such yearly policy of insurance
…
CLAUSE 9 ACCESS
What are the landlord’s rights of access to the property?
9.1The landlord shall not have any right of access to the property leased save as between 10:00am and 10:45am on the first Saturday of February and August in each calendar year for the purposes of conducted a landlord’s inspection of the premises, to be undertaken in the absence of [Mr Lenova] and in the presence of a person nominated by the said [Mr Lenova] and agreed to by the landlord.
…
SCHEDULE OF ITEMS
Item 10.A. The guarantor:
Not applicable. [Mr Lenova] with such liability as guarantor limited to the rental due and any necessary and proper outgoings pursuant to this lease for which a lessee would ordinarily be responsible.…
The Court’s Power to Vary Final Property Orders
Orders for “Use and Occupation” of Property
The point identified in the appellant’s written argument as all-encompassing can be seen to have its foundation in law in the statement by the High Court of Australia in Mullane v Mullane (1983) 158 CLR 436; (1983) FLC 91-303 at 78,068:
The effect of treating the order as if it had been made under sec. 79 is that, subject to a limited jurisdiction to vary it or set it aside, the power of the Family Court to make an order under sec. 79 is treated as having been exercised and as exhausted by that notional exercise. The limited jurisdiction to set aside or vary such an order is that conferred by sec. 79A and exists only in special circumstances, namely, where the Court is satisfied that there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance…
Plainly enough, the exposition of that principle in its specific context can be seen to be an example of the principles relating to the desirability of the finality of litigation, a matter which receives statutory recognition in the Act (s 81). It is also a reflection of the fact that this Court is a creature of statute and derives its jurisdiction and power therefrom. (See eg Mullane & Mullane, above; Taylor & Taylor (1979) FLC 90-674; Slapp & Slapp (1989) FLC 92-022).
The husband’s written summary of argument asserts:
3.Paragraph 2 of the Final Orders provides for the Wife to receive a transfer of the land upon which the former matrimonial home stands, subject to:
(a)The Husband and the adult sons of the parties having sole use and occupation of part of the land… (…described therein as “The Husband’s Land”)
(b)A Lease of the Husband’s Land, to the Husband or his nominee, in such terms as the Husband in his sole discretion shall require…
The decision of the High Court in Mullane might also be seen to provide the foundation for the jurisdiction and power relied upon (implicitly) by the learned trial judge to effect the variations evident in his Honour’s orders. The High Court held that an order for “sole use and occupation” of land is to be seen as a right in personam and, thus, not an interest in property. The High Court also said in that case:
… s 79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them. An interest in property is a right of a proprietary nature, not a mere personal right: (Stow v Mineral Holdings (Aust) Pty Ltd; Re Toohey; Ex parte Meneling Station Pty Ltd). It does not exclude every interest which is not assignable or transferable (cf per Mason J. in Meneling Station at pp 75 – 6). Thus an order under section 79 may give rise to an interest in property which is defeasible on assignment or transfer to a third party, or on the occurrence of some other event, or which the holder is enjoined from assigning or transferring.
It follows, then, that section 79 does not authorize a mere modification of a liberty to enjoy property. An order which merely excludes one spouse from the enjoyment of property, albeit for many years, in order to permit its better enjoyment by the other does not alter an interest in that property, though a spouse acquiring an interest in property under a section 79 order may be entitled, in virtue of that interest, to exclude the other from its enjoyment. Where the section refers to a settlement of property, it should be understood as using that expression in a sense which is closely related to the meaning which the expression bears in the law of real and personal property. (Mullane, above at 78,072; citations omitted).
Further, this Court has held that the mere fact that an order for sole use and occupation of land forms part of “an entire package of orders, some of which altered the parties’ interest in property” cannot affect the essential character of those orders:
… Certainly they must be construed in the light of other orders, but those other orders do not change the essential nature of those orders. The entire package included some orders … which altered the parties’ property interests, and some [including an order that ‘the petitioner be granted the exclusive right to occupy the matrimonial home for the remainder of her life or until she remarries’] which did not. …
Nor, in our opinion, does the definition of the wife’s right of occupation by reference to her lifetime alter the essential nature of [the order for exclusive occupation]. It granted to the wife only a personal right against the husband and her lifetime was chosen as one of two alternative bases by which the duration of that right was defined … (In the Marriage of Florie (1988) FLC 91-913 at 76,627).
“Machinery” or “Consequential” Provisions of Orders
As counsel for the appellant husband recognises in his written submissions, variation of a final order for settlement of property may occur where the variation “does not alter the substantive effect of the order but merely spells out its application in particular circumstances not covered by its express terms but consistent with the original intent” (Appellant’s written submissions, para 17 referring to Kaljo & Kaljo (1978) FLC 90-445).
In Molier & Van Wyk (1980) FLC 90-911 (also referred to in the written submission on behalf of the appellant husband) this Court said, at 75,773:
The principle is, in our view, capable of extension to cover further orders necessary to give effect to the clear intention of the original order, where that order has failed to cover certain eventualities, including the failure to comply with an order for the settlement of a lump sum within the time prescribed.
It can be accepted that the distinction between substantive changes to orders and those that might be described as “machinery” or “consequential” can sometimes be difficult to discern. It should be borne in mind that:
It is… the construction of the order itself that is to be examined and not the basis of fact on which it was made. The test is not whether the unchangeable or substantive order is a just or proper order – that is a matter for appeal or for an application under s 79A – but whether the part or parts of the order sought to be changed are part or parts of the substantive order or whether they are orders made to give efficacy to that substantive order. (Ravasini & Ravasini (1983) FLC 91-312 at 78,128).
Passages in Florie to which we have referred might be seen to suggest that a right to use and occupy land contained in an order does not lose its characteristics as a right in personam by reason of the fact that the right so conferred is confined by certain conditions (in that case, the lifetime of the wife).
Mr Puckey, counsel for the appellant husband, submits that orders cannot be “unbundled” in that way. He goes on to submit, by reference, in particular, to the decision of this Court in Gabel & Yardley (2008) FLC 93-386, that the essential question is one of the Court’s power. This Court held at 82,957:
Logic suggests that the power to make orders for settlement of property will be exhausted or “spent” when there remains no property of the parties to the marriage or either of them to which orders by way of settlement of property could be or have been made. In those circumstances there can be no matrimonial cause to enliven the jurisdiction to make orders for settlement of property. It is thus potentially more instructive to focus on the nature and scope of the power conferred by section 79 of the Act and the nature and effect of orders made in the exercise of the power than upon attempts to categorise the kinds of orders which may be made pursuant to the power.
We consider that nothing said in Florie should be taken to contradict that statement. Indeed, as Mr Puckey points out, this Court in Florie went on to hold at 76,627 (consistent, it might be said, with what the High Court held in the passage quoted from Mullane, above):
If it had been the parties’ intention (and therefore the intention of the Court’s order) to grant the wife a life estate in the property, it would have been a simple matter to draw the orders so as to require the husband to transfer to her such an estate, or at least to provide that she should have such an estate, rather than a mere right of exclusive occupancy ….
The True Construction of the Orders – Grounds One and Three
The essential argument in respect of the attack referable specifically to appeal grounds one and three can be seen at paragraph 21 of the appellant husband’s written submissions: “Paragraph 1 of the Order appealed from is clearly inconsistent with the express language and clear intent of the Final Order referred to [at paragraphs 2.1, 2.3 and 13.2]…”.
As has been seen, the orders made by consent between the parties effecting a property settlement between them included, as part thereof, an order in respect of settlement of the property situated at block B. The husband’s interest in that property was to be transferred to the wife. That substantive change to the parties’ property was to include a parcel of land specified in the order. In respect of that part of the property, there was to be a subdivision, and, in respect of that subdivision, further rights were conferred by the orders.
In respect of part of that land the husband was to have (para 2.1) a right that was described in the order as him having “sole use and occupation” of that part of the land (which was described as “the husband’s land” and was further identified in a plan attached to the orders).
But, as the orders make clear, that right of “sole use and occupation” occurs in the context of other rights conferred by the orders. First, the husband’s right to use and occupy “the husband’s land” was to be formalised by way of a lease. The creation of that leasehold interest is specifically provided for at paragraph 2.3 of the order.
Properly construed, the consent orders provide for the creation of a number of proprietary interests in favour of named persons and entities: a transfer of proprietorship from the husband to the wife (para 2); a subdivision of land so as to create “Lot 3” and to provide water entitlements to the wife (para 2); a leasehold interest (para 2.3); and, finally, an option to purchase Lot 3. Each and all of the interests so created can be seen to be components of an order which effects a settlement of property within the meaning of s 79 of the Act.
The reference to the husband having “sole use and occupation” of the portion of land known as “the husband’s land” is, in fact, surplus to requirements; the husband’s rights in respect of that part of the land identified as “the husband’s land” are governed by the lease granted to him or his nominee and that leasehold interest is, plainly, a proprietary interest.
The consent orders made in this case should be contrasted with those in Mullane which, relevantly, provided only for sole use and occupation and those in Florie where an interest in property could have been created (a life interest) but specifically was not.
In our judgment, the Court’s power, exercised upon the making of the consent orders (see Harris v Caladine (1991) 172 CLR 84), was power exercised in respect of orders “… which work an alteration of the legal or equitable interests in the property of the parties or either of them”. It was exercised pursuant to s 79 and the power was exhausted, or “spent” upon the making of those orders.
Whilst most of the debate before us has, understandably, focussed on para 2.1 of the consent orders and the expression “use and occupation” used within it, the orders provided for the husband’s occupation of the land to be governed by the grant of a proprietary interest – a leasehold interest – to him (or his nominee). That proprietary interest was to be upon “such terms as the husband in his sole discretion shall require …”. That is, the orders provided for the husband to have sole control over the terms of his proprietary interest.
To later interfere with the terms of the lease which facilitated the husband’s occupancy of the premises (save as might be necessary as a matter of law or to give meaning or efficacy to the lease) is to constrain the husband’s sole discretion to determine the terms of that lease, and, as such, to impermissibly alter his proprietary interest.
It will have been observed that this exercise of the power conferred by s 79 provided for the provision of a lease in the most permissive of terms: “…in such terms as the husband in his sole discretion shall require [save as to the payment of a nominated maximum rent]”. But, the fact that the order is expressed in those terms does not make it any more susceptible to substantive variation than any other s 79 order.
We have, with great respect, significant sympathy for the obvious frustration expressed by the trial judge, as evident in the transcript, with the intransigence of these parties and their seeming inability to agree upon matters that would, with great respect, appear better resolved by intelligence and common sense than by a court, but, unfortunately, that is not to the point.
Orders expressed as permissively as paragraph 2.3 in this case may prove more susceptible to changes to their machinery provisions, but that is a separate issue. As an example, the lease in the instant case may have been capable of being varied to include covenants not included in the lease submitted by the husband but which are required by law or, as counsel for the appellant conceded, to have the lease “accord with commercial reality”.
We are not persuaded that any of the changes made by his Honour to the terms of the lease and, thus, the orders, could be so described; the changes strike, in our view, at the substantive (proprietary) rights conferred by the terms of the orders. Here the intention of the orders in this respect was clear: to provide to the husband a leasehold interest in the relevant part of the land with such lease to be upon such terms as the husband might require.
It follows that, in our view, his Honour had no power to vary the terms of the lease (and, thus, the order) in the manner in which his Honour purported to do. The appeal must succeed on these grounds.
Reasons For the Court’s Power – Ground Two
As expressed, this ground of appeal would appear to suggest that a trial judge ought provide reasons by which “the basis or source of power upon which the orders were made” could be identified. Expressed baldly in that way, we do not agree that a trial judge has any such obligation. (Of course, statute might provide otherwise – s 77A of the Act might be seen as an example).
Here, though, as the written outline of the appellant, in effect, succinctly concedes, the attack on the trial judge’s orders is not, as the proposition as expressed in the ground might suggest, that reasons were not given identifying the source of power; rather, the contention is that, if the trial judge was purporting to vary the substantive provisions of final property orders, a proper basis for doing so should be evident from the reasons.
This ground is, then, as counsel’s oral argument in effect properly suggests, a mirror of grounds one and three; if the changes made were substantive, his Honour’s only power to vary the orders was, relevantly, pursuant to s 79A and no such reference to any such power is evident.
As we are of the view that his Honour did seek to vary substantive provisions of orders made pursuant to s 79, it follows that this ground, too, must succeed.
Unintended Inclusion – Ground 4
The written outline of submissions by the appellant contends that both parties’ counsel had addressed the learned trial judge and that it was “understood by both” that no order would be made by his Honour in respect of the matter the subject of this ground of appeal.
In the reasons for judgment, his Honour said:
33. The wife has finally raised the fact that her electricity meter and her water towers supplying domestic water for garden, but not drinking purposes, are located on the land. It is said by her that on a not regular and, perhaps, emergency basis she must have a right of inspecting the structures. The husband opposes that and would not have the wife anywhere on the land for any genuine reason or any other reason. This is a matter that simply should not be before the Court and it says little of the parties that they cannot resolve matters. I intend to make no order in this regard.
34. If it ultimately were to be that the wife, on two occasions a year, inspected her electricity box/meter or the condition of the water towers, then that would be both reasonable and proper, and any alleged breach of the lease on that basis would be puerile. However, I do not intend to make any order on such a matter. I well understand the husband has an obligation to supply water to the boundary fence of the wife’s property, as delineated in schedule B to the orders, and that must occur. The only caveat, clearly, is that the wife should not be wandering on the land, or inspecting the water tank when the husband is nearby. That would simply be inflammatory and, no doubt, lead to conflict and further actions in the local Magistrates Court or police, or whatever, given what I seem to be told of or have previously read of past issues.
There are, then, two specific references in the reasons for judgment to his Honour’s intention to “make no order” in respect of this specific matter.
It will also be observed that the orders provide for specific access at specific times and on specific days “for the purposes of conducting a landlord’s inspection of the premises…”. However, the orders ultimately made by his Honour also include this paragraph:
(e)without necessarily including these provisions within the Lease document the wife as landlord has limited scope to inspect her electricity meter box and water tanks on the leased property at times when the husband is not present.
As earlier referred to, the transcript reveals his Honour’s (with respect, understandable) exasperation at the minutiae of the issues with which his Honour was confronted. The issue under discussion here falls at the end of argument about, and his Honour’s references to, the issues otherwise forming part of this appeal. His Honour comments at page 53 of the transcript:
HIS HONOUR: So, if she wants to look – this is becoming almost bizarre. If she wants to inspect her electricity meter, which people do from time to time, she can’t.
MR PUCKEY: No. It’s a symptom of the very unusual circumstances that we have here, that the wife, as you heard ---
HIS HONOUR: What if she does it when the husband is not on the land? If she walks over and looks at the meter?
MR PUCKEY: Well, your Honour, I don’t want to create problems between the parties about that.
HIS HONOUR: I mean it’s just ---
MR PUCKEY: I don’t want to respond to that if I can avoid it.
HIS HONOUR: All right.
MR PUCKEY: Because I don’t want to create conflict. We’re dealing with a very unusual circumstance where the wife, as you heard from my learned friend, extracted the concession from my client that she would continue to live in the midst of the farm, and so we had to be very careful in terms of drafting the order to make it clear as to where the boundaries were for everybody, who was to use which parts of the property, and to avoid a repeat of the criminal charges and intervention order proceedings that the parties have devoted tens of thousands of dollars to.
HIS HONOUR: All right. All right.
MR PUCKEY: Is your Honour proposing to rule as we go, or ---
HIS HONOUR: Yes. I – if this is not part of any judgment. If the parties are that entrenched against each other on these issues that I’m hearing, and the mundane levels that simply defeat common sense, well, I can only imagine this will become a lawyer’s entitlements in continuing years. That’s just an aside. It is – I’ll give some reasons.
What then occurred was that his Honour adjourned for lunch and requested the parties to draft minutes reflecting the indications which his Honour had previously given with respect to the issues ultimately forming the subject of his Honour’s orders.
It seems plain, however, that the issue of inspecting the water tanks and the electricity box was a separate matter; the transcript reveals (at pages 54 and 55) that, after draft minutes of order had been handed to his Honour reflecting those earlier indications by him, his Honour asks “now what about access to the water tanks and the electricity box?” The following ensues:
MR BROWN: Well, your Honour – your Honour indicated candidly in your judgment that you ---
HIS HONOUR: I tried to, but that’s not going to be included.
MR BROWN: No.
HIS HONOUR: I don’t want a trespass action brought if someone’s checking the water tank once a year.
MR BROWN: Well, as long as your Honour sits, if it was to come before your Honour ---
HIS HONOUR: Well, it mightn’t in some years, that’d be the good news.
The topic is not then further referred to until his Honour made the orders earlier referred to.
It seems to us that, as counsel for the appellant submits, his Honour had made it plain that no such order was to be included. As is clear, such an order was included. In those circumstances, it seems to us that the appellant (indeed, each of the parties) has been denied natural justice in respect of this issue in that, the parties, working on the assumption engendered by his Honour that no such order would be made, had no opportunity to make submissions in respect of it.
This ground, too, is, in our view, made out.
We reiterate: we have, with respect, considerable sympathy for the trial judge’s attempts to have common sense triumph in respect of the issues with which his Honour was confronted. By upholding this challenge, we ought not be taken to be suggesting that the wife could not achieve the objective which the trial judge, with respect sensibly, sought to achieve.
We have earlier focussed upon the terms of the consent orders and the provisions of the proprietary interest created for the husband or his nominee consequent upon the terms of those orders. But, unlike the provisions of those components of the orders, paragraph 13.2 of the consent orders clearly appears to be an injunctive order which operates in personam and, as such, is capable of discharge or variation. Upholding the husband’s appeal against the trial judge’s order does not change that. If nothing else, such addition hopefully makes even clearer that we appreciate the distinction between rights in rem and rights in personam.
Orders
It follows from what we have said that his Honour’s orders should be set aside.
In lieu, an order should be made that the wife’s Response filed 9 September 2010 be dismissed and that the husband’s Application in a Case filed 2 September 2010 be adjourned to a Registrar for the making of all such directions as might be necessary.
At the conclusion of the appeal, the parties sought leave to make written submissions on the question of costs upon receipt of our reasons and orders. An order will also be made to that effect.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Coleman and Murphy JJ) delivered on 24 May 2011.
Associate:
Date: 24.05.11
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