Lun and Lun

[1998] FamCA 28

[1998] FamCA 28  2lun

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA  Appeal No. NA 24 of 1997
AT BRISBANE   File No. TV 425 of 1995

IN THE MATTER OF:

KEE WING LUN  Appellant/Husband

- and -

LISA LUN   Respondent/Wife

REASONS  FOR  JUDGMENT  OF  THE  FULL  COURT

CORAM:  BARBLETT D.C.J., FINN AND MUSHIN JJ.
DATE OF HEARING:          7TH OCTOBER, 1997
DATE OF JUDGMENT:      6 April 1998

APPEARANCES:

MR. G. PAGE, S.C. of Counsel (instructed by Hirst & Co., Solicitors, Level 1, 293 Queen Street, Brisbane, Queensland, 4000) appeared for the Appellant/Husband.

MR. C.A. WHITE of Counsel (instructed by David Edwards & Associates, Solicitors, P.O. Box 16, Moranbah, Queensland, 4744) appeared for the Respondent/Wife.

1. INTRODUCTION:

1.1      There are many facts in this appeal that are bizarre.  The wife alleges that the parties were married in Hong Kong in April 1959.  The husband denies that they were ever married.  The parties did not cohabit until 1962.  Until 1982 the husband was a very successful businessman in many different areas.  From 1982 to 1993 the husband lived for the most part overseas.  During this period he remitted no monies towards the support of his wife and dependent children.  The husband claims that he had no income during these 11 years.  The evidence discloses that as a commodity trader, in particular in gold, he dealt with billions of dollars.  Almost all relevant documents of the husband are missing.  The husband is unable to remember even recent large financial transactions.  The trial Judge says at p.20 of the Appeal Book, “the evidence relating to the husband’s financial dealings is bizarre bordering on the surreal.”

1.2      The husband’s appeal is against property settlement orders made by Barry J. in Townsville on 15 April, 1997 following reasons for judgment delivered on 15 March of that year.  Basically the orders provided that the wife was to receive 70% and the husband 30% of the net property of the parties in Australia.  His Honour did not take into account any overseas property or liabilities.

1. BACKGROUND FACTS:

2.1      The wife was born in China in 1940 and migrated to Hong Kong in 1956.  She met the husband in Hong Kong in 1959 and it was in that colony that the parties were married in April 1959.  His Honour in other proceedings had made the finding that the marriage was valid.  The husband appealed this finding but eventually went overseas and did not prosecute the appeal.  Through counsel he accepted the validity of the marriage for the purpose of these proceedings.  The husband was born in China in 1929 and came to Australia in 1940.  Thereafter the husband continued to live in Australia and still did at the date of trial apart from lengthy periods overseas between 1982 and 1993.  After the marriage the parties did not cohabit until 1962 when the wife came out to Australia.

2.2      During the 1950’s and 1960’s the husband, who at all materials times was resident in Townsville, operated a self-service store, a service station and worked as a builder and property developer.  By the time of the marriage he owned 5 properties in Townsville.  His Honour found that in 1959 the husband’s property “was significant”.  The wife brought no assets into the marriage.  Between the date of the marriage and the commencement of cohabitation in 1962, the husband continued to acquire properties.  His Honour found that during this period “the husband’s financial position had significantly improved.”  His Honour found that the wife made no contribution to the property of the parties between 1959 and 1962.

2.3      The parties had 3 sons, Adrian born in 1963, Mayne born in 1967 and Otto born in 1969.  Otto has an intellectual disability and is incapable of caring for himself or being employed other than in a sheltered workshop.  At the time of trial both of the 2 elder boys were living independently of the parties.  Otto was in receipt of an invalid pension and as found by his Honour was predominantly cared for by his mother.

2.4      Up until 1982, the husband continued as a builder/renovator/property developer and by that year had 12 separate land holdings together with other assets worth, on the husband’s estimate, $1,000,000.00.  His only liability was a secured debt of $10,000.00.

1. THE HEARING:

3.1      The hearing took place from 25 to 28 February, 1997.  The only two witnesses were the wife and the husband.  His Honour said at p.14 of the Appeal Book:

“There were only two witnesses who gave evidence at the hearing, being the parties themselves.  The wife was not cross examined.  It is common ground that although the wife was not cross examined the husband did not accept her evidence where it is in conflict with matters set out in his affidavit material.  The husband’s Counsel elected not to challenge the wife’s affidavit material and it was agreed that there was to be no adverse inference drawn against the husband under the Jones v Dunkel principle.”

This appears to be an error of reference by his Honour.  On p.13 of the transcript of 25 February, 1997, line 25 in volume 3 of the Appeal Book, his Honour, when speaking of a discussion which he had with counsel in chambers, said:

“Counsel for the husband indicated that notwithstanding the rule in Brown (sic) and Dunn, because evidence-in-chief is given by affidavit he did not at this stage propose to cross-examine the wife on the basis that his failure to do so was not to be taken as the husband conceding the material in the wife’s affidavit as true, but simply record was noted (sic) that there are two versions, that the husband’s version is as per his affidavit material, and little was to be gained by putting factual matters to the wife.  Counsel for the wife, as I understand it, does not challenge that course.”

3.2      It is clear that in his reasons, the trial Judge should have referred to Browne v. Dunn (1894) 6 R 67. However in the event his Honour found that he could “have no confidence at all in the credibility of the husband on any issue” (at Appeal Book 23). Given that finding, his Honour was entitled to accept the whole of the wife’s evidence notwithstanding the agreement between counsel not to cross-examine.

3.3      There are a number of other agreements between the parties.  It was agreed that the net value of the former matrimonial home in Leeds Street, Gulliver, Townsville was $107,500.00.  Although there was disagreement as to the value of other assets this was irrelevant to the hearing for the reason that the parties agreed that all of the other real property would be placed in the hands of a Mr. Chris Bowrey, a local solicitor, for sale.  The terms of his remuneration were also agreed.  The valuation of furniture and of certain opals was not disputed.

1. CREDIBILITY:

4.1      His Honour made a number of findings as to the husband’s lack of credibility.  On p.20 of the Appeal Book his Honour says:

“From 1982 onwards the evidence relating to the husband’s financial dealings is bizarre bordering on the surreal.”

4.2      On p.23 his Honour said:

“I had the very distinct impression that the husband was making up his evidence as he went along.  His financial transactions overseas, other than those involving unbelievably large quantities of gold, remain secretive.  His conduct of his affairs overseas has been clandestine in the extreme.

I have no confidence at all in the credibility of the husband on any issue.  I was reminded of the line attributed I believe to Oscar Wilde ‘he gave an air of verisimilitude to an otherwise bald an (sic) unconvincing narrative’.

I cannot understand why the husband has created the gold bullion documents or kept them.  It was the husband’s evidence that none of the deals was ‘consummated’.  I place as little weight on this assertion by the husband as I do on the rest of his evidence.”

4.3      There are constant other references to the husband’s lack of credibility including such expressions as “inherently implausible”, “I am somewhat suspicious of the husband’s failure to produce many documents” and “I find it inconceivable that a man in the husband’s position who has been successful in increasing his wealth for over 20 years in Australia up until 1982 should suddenly cease all such activities.”  (Appeal Book, p.24).

1. ASSET POOL:

5.1      His Honour sets out the Australian property of the parties at p.27 of the Appeal Book thus:

“Real Estate  Wife  Husband

64 Leeds Street  107,500  107,500
            27 Quinn Street  115,000   95,000
            189 Bundock Street   90,000   75,000
            23/25 Willmett Street  230,000  300,000
            19 Willmett Street  137,500  175,000
            44 Hodel Street  110,000  110,000
  790,000  862,500”

5.2      His Honour deliberately ignored other minor assets such as furniture and opals and accepted the above real estate as the only property of the parties situated in Australia.  To get to a net figure, his Honour only took into account debts owing in Australia which consisted of rates owing to the Townsville City Council of $24,237.00 and the land tax of $34,219.88, a total of $58,456.88.

5.3      There are a number of overseas liabilities which were as follows:

Don Ebright  -  $314,172
           Yee Look Yau  -  $400,000
           Mr. Pimentel  -  $200,000

Mr. Sisson (Attorney in Manila)     -  $500,000
           (For legal fees)

5.4      In relation to these overseas debts, counsel for the husband agreed that they should be ignored except for the sum of $103,946.56 being an amount which was brought into Australia by the husband and which was used to pay debts owing in this country.  This was alleged by the husband to be part of the Pimentel debt.

1. THE REASONS FOR JUDGMENT:

6.1      His Honour published his reasons for judgment on 14 March, 1997.  He gave to the parties the right to agree on the form of orders to be made or to be heard on them.  The orders as we have said which flowed from his reasons were made on 15th April, 1997, the same day as the notice of appeal was filed.  The reasons for judgment are structured in the main according to the guidelines that have been laid down by a number of Full Court decisions [see for example Lee Steere and Lee Steere (1985) FLC 91-626].

6.2      After the introduction, his Honour made findings as to background facts and then the initial contributions of the parties.  The trial Judge dealt with the question of the credibility of the parties from time to time throughout the judgment which we have discussed in paragraph 4 above.  His Honour then dealt with the husband’s contributions and then with the law to be applied.  He particularly referred to Halabi v Halabi, TV475/87.  The quotation used by his Honour from the reasons of the Chief Justice in Halabi included reference to Briese and Briese (1986) FLC 91-713, Livesey v Jenkins (1985) All ER 106 (sic), Weir and Weir (1993) FLC 92-338, Giunti and Giunti (1986) FLC 91-759, Mezzacappa and Mezzacappa (1987) FLC 91-853, Black and Kellner (1992) FLC 92-987 and Monte and Monte (1986) FLC 91-757.

6.3      His Honour then proceeded with a paragraph headed “METHODOLOGY”.  At p.27 of the Appeal Book, his Honour says:

“In any property settlement determination it is necessary for the Court to take a three stage approach:

(a)    Establish what are the assets and liabilities of the parties.

(b)    Determine the value of the assets and liabilities.

(c)Determine in what proportion the assets and liabilities should be divided having regard to the various factors enumerated in section 79(4) and section 75(2).”

His Honour then proceeded to set out the assets of the parties in Australia to which we refer in paragraph 5 and the liabilities of the parties which again we discussed in paragraph 5.2.

6.4      The next paragraph in his Honour’s reasons is headed “CONTRIBUTIONS UNDER SECTION 79(4)”.  His Honour set out on p.31 of the Appeal Book the following matters which he thought relevant to determine the contribution of the parties:

“1.It was a lengthy marriage.

2.There are three children for whom the wife has acted as homemaker and parent.

3.There was a substantial initial contribution by the husband at the date of marriage and more significantly at the date of commencement of cohabitation in 1962.

4.The husband’s entrepreneurial skills were largely if not exclusively responsible for the assets accumulated.

5.The wife assisted the husband whenever she was able in cleaning houses and other menial tasks.

6.The wife has had responsibility for the child Otto and is likely to have responsibility for Otto in the future.

7.The husband provided the older two children with properties.

8.The husband has a significant undisclosed asset-base overseas.

9.From 1982 onwards the wife with the assistance of Adrian (or vice versa) had virtually the total responsibility for the management of the assets in Australia.”

6.5      It is clear from the previous paragraph that his Honour was only dealing with sub-paragraphs (a), (b) and (c) of S.79(4).  In his conclusion in relation to contribution under these three paragraphs, his Honour says at p.32 of the Appeal Book:

“Notwithstanding the significant contribution by the wife in running the household from 1982 onwards single-handedly (at the time of the husband’s departure Mayne was 15 and Otto was 12), together with having to manage the properties in Townsville in adverse circumstances where the likelihood is the expenditure exceeded the income I am still of the view that the initial contribution by the husband calls for a weighting in his favour at the end of the day.  I take this approach because of the sheer number of properties introduced by the husband and the fact that there was almost no liability attaching to same.”

6.6      It is quite clear from a passage which appears on p.33 of the Appeal Book that his Honour concluded that as a result of contribution, the property of the parties should be apportioned as to 45% to the wife and 55% to the husband.  His Honour made no such finding in his reasons but as he found the combination of contribution and S.75(2) factors is 70% to the wife of which 25% is for S.75(2) factors, this is a necessary inference.

6.7      The next section of his Honour’s reasons is headed “SECTION 75(2) FACTORS” and in that regard he took into account as relevant considerations at pp. 32 and 33 of the Appeal Book, the following:

“1.The wife’s poor command of English - spoken and written.

2.The fact that the wife is in receipt of sickness benefits since some time in 1995.

3.The fact that the wife by education and training is unlikely to be employed in anything other than menial tasks in the future assuming that her health improves.  She is by any reckoning an unsophisticated woman.

4.The fact that the husband by previous experience is able to demonstrate a capacity to earn high income.

5.To the extent that such matters have not been taken into account under section 79(4) the fact that the wife will have the ongoing care of Otto including the extent (to) which his support is not met by his invalid pension.

6.The wife is either 55 or 57 years of age.  She will need a substantial adjustment on account of the section 75(2) factors to allow her to enjoy a reasonable standard of living.”

6.8      His Honour then immediately goes on to give his conclusions thus:

“I assess the additional adjustment on account of section 75(2) factors at 25% raising the wife’s overall entitlement to 70%.  The property then is to be divided 70% to the husband and 30% to the wife.”

1. GROUNDS OF APPEAL:

7.1      The grounds of appeal are short and we reproduce them in toto.

“GROUND 1

His Honour erred in the exercise of his discretion in disregarding the liability of the Husband to Mr Pimental or the payment by the husband of monies received by way of loan from him to QIDC.

GROUND 2

His Honour erred in the exercise of his discretion in his findings with respect to percentages for division pursuant to Section 79.

GROUND 3

His Honour erred in the exercise of his discretion in his findings with respect to percentage adjustments pursuant to Section 75(2).

GROUND 4

His Honour erred in his findings that the child of the marriage OTTO LUN would be cared for by the Wife.

GROUND 5

That it was not proper for the Court to have proceeded with the final determination of the Wife’s application for property settlement and maintenance when the property of the parties was in the process of being determined in other proceedings instituted by the Husband when proceedings were transferred by the Trial Judge in an order made on 24 February 1997.”

7.2      Ground 5 is an amended ground which the husband was given leave to insert.

7.3      It is apparent that grounds 2 and 3 are so wide as not to present any proper ground of appeal.  However, the short outline of argument submitted on behalf of the husband sets out with some particularity the ground of appeal on which the husband does rely.  No objection was taken that the outline of argument was beyond the scope of the formal grounds of appeal.

7.4      Before we go to the several grounds of appeal we should remind ourselves of the true function of an Appellate Court.  This function has been set out in authorities over many years and is well summarised in the reasons of the Full Court in Clauson and Clauson (1995) FLC 92-995 where the Full Court said at 81,909:

“Section 79 grants to the trial Judge a very wide discretion: see generally De Winter and De Winter (1979) FLC 90-605 at 78,092 per Gibbs J; Mallett v Mallett (1984) FLC 91-507 at 79,110; (1984) 156 CLR 605 at 608; Norbis v Norbis (1986) FLC 91-712; (1986) 161 CLR 513, and the discussion of this aspect in Ferraro, supra, at 79,565-6.

That being so, the limited nature of the appeal process must be recognized, as the numerous authorities in relation to the appellate review of discretionary orders demonstrate: see, for example, House v The King (1936) 55 CLR 499 at 505; Lovell v Lovell (1950) 81 CLR 513-519; Gronow v Gronow (1979) FLC 90-716; (1979) 144 CLR 513; Mallett, supra, at 79,111 and 79,119, and Ferraro, supra, at 79,556.

In the absence of an error in approach or principle, the failure to take into account relevant circumstances, or the taking into account of irrelevant circumstances, the challenge must be that the orders fell outside a reasonable exercise of discretion, that is, that the orders were ‘unreasonable or plainly unjust’.

In its widest formulation the discretion and its immunity from challenge was described by Brennan J. in Norbis, supra, at FLC 75,178; CLR 540 in relation to the decision of the Court of Appeal in Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343 at 345 as:-

‘The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community.  The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.’ ”

1. GROUND 1:

“His Honour erred in the exercise of his discretion in disregarding the liability of the Husband to Mr Pimental or the payment by the Husband of monies received by way of loan from him to QIDC.”

8.1      His Honour said at p.28 of the Appeal Book:

“LIABILITIES

The most difficult issue in making a determination of the parties’ (sic) rights to property settlement is in establishing which liabilities are appropriate.  The husband says in a Form 17 document sworn on the 24 February 1997 that he has overseas liabilities as follows (all expressed in US dollars):

Don Ebright - $314,172

Yee Look Yau - $400,000

According to evidence from the husband at a previous hearing in December 1996, this is the same gentleman who advanced the husband 7,000 pounds in about 1959.  I understand from the husband’s assertion the amount has never been repaid and the husband has added compound interest though I am unable to say at what rate.  In the absence of better evidence it is likely the debt if it exists at all is statute barred.

Mr Pimentel - $200,000

Mr Sisson (Attorney in Manila) - $500,000.  For legal fees not associated with this litigation.

It is conceded by Counsel for the husband that I should ignore these debts as alleged by the husband ‘save for so much of the Pimentel loan that paid out real debt’.  It was submitted the real debt figure was $103,946.56.  It was further submitted I should bring into account the overseas loans in an indirect way when considering the section 75(2) factors.

Having regard to my observations of the husband’s credibility and the finding he is likely to have a significant asset-base overseas, I propose to ignore the liabilities as listed above.”

8.2      His Honour determined that he would not reduce the Australian assets by the amount of any monies allegedly owing by the husband to overseas creditors.  The husband argued at the trial and before us that his Honour should have taken into account the sum of $103,946.56 Australian, being part of a loan of $200,000 US owing to a Mr. Pimentel, a legal practitioner in the Philippines.  Presumably to add to Mr. Pimentel’s credibility, the husband stated in cross-examination that he was an “ex Judge”.  The only admitted corroboration by the husband in relation to this debt is exhibit “Z” to the husband’s Order 30 affidavit.  Paragraph 16.3.6 of the husband’s affidavit, at pp. 143-144 of the Appeal Book, reads as follows:

“Amount owing to Pimental

In 1995 I borrowed an amount of $ 200 000 USD from a firm of Attorney’s in Manilla.  Interest is at 5% and is accululative (sic).

I utilised (this) to pay out QIDC and the mortgage has been released.  I was slightly in arrears and QIDC had threatened to take action against the properties.

I used the balance of the funds for my own expenses including the costs of travel and payment of legal costs.

Annexed hereto and marked with the letter “X” is a true copy of documents associated with this advance.”

8.3      It appears that the letter “X” is an error and that the exhibit letter ought to be “Z”.  Exhibit “Z” consists of two documents which are short and may be reproduced in full.  The former is a letter on a letterhead which in the Appeal Book is partially illegible but bears a heading “San Diego, Pimentel, (illegible) and Associates Law Office, International Investment and Financing”.  The letter is dated 17 February, 1995 and addressed to the husband at his Townsville address.  It reads as follows:

“Dear Mr Lun,

I would like to inform you that your Loan Application for TWO HUNDRED THOUSAND UNITED STATES DOLLARS (US$200,000.00) has been approved.  We need your personal appearance for the very important documents you have to sign for the immediate release of the loan.

So, if you are still interested on your loan, please come not later than 21 February 1995.

Your presence is highly needed.

Sincerely yours

(Illegible) PIMENTAL

President & Chief Legal Officer”

8.4      The surname of Mr. Pimentel, “Pimental”, appears to be spelt differently between the heading and the postscription but this may be caused by the general illegibility of the documents.  Certainly both the heading of the letter and the postscription bears a different spelling entirely from the latter document which reads as follows (p.422 of the Appeal Book):

“PROOF OF DEBT

I, Enqui Pilomenttel, of Queezon City, Philippines confirm that Mr Kee Wing Lun has been indebted to myself since 1995 for the amount of US$200000 which was lent at an interest rate of 5%.  It is agreed that the term of the debt is 10 years.

I, Kee Wing Lun, of 25 Willmett Street, Townsville do hereby acknowledge receiving US$200000 from Enqui Pilomenttel and acknowledge the rate of interest being 5%.  It is agreed that the term of the debt is 10 years.

............................  .......................
           Enqui Pilomenttel  Kee Wing Lun”

This document is undated.
8.5      Exhibit “Z” to the husband’s affidavit of evidence-in-chief appears in a whole volume of exhibits which refer inter alia to the overseas liabilities and also to documents which involve thousands of tons of gold which on face value would be worth billions of dollars.  The husband in evidence alleged that none of these deals was consummated.

8.6      Exhibit “1” tendered by the wife to his Honour is a document headed “20 Year Gold Certificate”.  This certificate is given by Bengal Trading Limited, Isle of Man and insured by Lincoln National Insurance Company.  It is dated 1 January, 1983.  The Certificate has a duration of 20 years and “may be exchanged on its maturity date for a gold bar that contains = 1,000 Met Tonse (sic) of 999.5 gold or cashed in for maturity value in US dollars.  Maturity value 2nd London fix, day of purchase.”  The Certificate is signed by “B.H. Connelly, President” for the Bengal Trading Limited and by “illegible Sec. Treasurer” for the insurer.

8.7      Amongst the exhibits is evidence of even more bizarre documents.  Of one of these documents his Honour said at p.20 of the transcript of 26 February, 1997:

“and here I have got a contract coming across the bench for 5000 metric tons of gold to me just seems like cloud-cuckoo land quite frankly.  It does not exist.”

8.8      In cross-examination the husband said that he had to go to Singapore to collect the Pimentel loan where he collected it from the Standard Chartered Bank.  The following is an excerpt from the cross-examination of the husband appearing at  p.37 of the transcript of 25 February, 1997:

“How much did you borrow from the Standard Chartered Bank in Singapore?---$US200,000.

When did you borrow that?---We have a document on that.

Just tell me when you borrowed it.  I will call for the document on it, your Honour.

MR MURPHY:  No document is produced with respect to a loan from the Standard Chartered Bank.  The only document produced is that which is annexed to his affidavit, your Honour, and that relates to the loan from Pimental.  And the husband’s evidence is that the balance of the proceeds of that loan was deposited to the Standard Chartered Bank at Singapore.

MR WHITE:  Do I take it, Mr Lun, that you do not have a document in relation to your borrowing of $200,000 from a Standard Chartered Bank in Singapore?---

My counsellor has adequately answered your question in the way I should have answered it because he phrased it properly.”

The husband went on to say that the ultimate creditor was not the Standard Chartered Bank but Mr. Pimentel.

8.9      In Biltoft and Biltoft (1995) FLC 92-614 at 82,127, the Full Court said:

“Notwithstanding the general practice which has developed, the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances.  Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred.”

8.10    In view of the fact that Mr. Pimentel, no matter how spelt, did not provide any corroborative evidence (rule in Jones and Dunkel), his Honour on the evidence was correct in finding that the debt had not been proven.  It was not necessary for his Honour to go further to consider any of the categories referred to in Biltoft.  There is no appeal against any of the other alleged overseas debts.  If the Pimentel debt is not proven or even if it comes within the Biltoft criteria, the fact that the sum of $103,946.56 was paid to an Australian creditor is irrelevant.  To allow part of the debt to Mr. Pimentel is illogical.

8.11    The appellant’s outline of argument states that his Honour also disallowed the Pimentel debt on the basis that the husband had a “significant asset-base overseas”.  This is part of the quote from his Honour’s judgment set out in paragraph 8.1.  It is true that his Honour so found and that this was an additional reason for disallowing part of the Pimentel debt.  Presumably his Honour’s argument is that even if these debts are real, and even the husband does not seem to assert this, they could obviously be paid from assets the husband has somewhere overseas.

8.12    We see no merit at all in this ground of appeal.

1. GROUND 2:

“His Honour erred in the exercise of his discretion in his findings with respect to percentages for division pursuant to Section 79.”

9.1      This ground of appeal was so wide as to be meaningless.  To be fair to the appellant we will do our best to particularise the ground from the appellant’s outline of argument.  It appears that one of the matters complained of in this regard is that the husband had “a significant asset-base overseas” and that this fact was used as a basis for assessing the wife’s contribution at 45%.  The husband alleges that since the overseas assets were taken into account in his Honour’s refusal to recognise the Pimentel loan, this is a case of double dipping.  The outline of argument also speaks of the “uncontradicted evidence of the assets of the husband as at the commencement of the contribution of these parties and of the entrepreneurial ability of the husband used in accumulating assets.”  The appellant goes on to state “In the face of contribution consisting of that of housewife and mother and some degree of management, the assessment of 45% is to significantly underscore the degree of that contribution.”

9.2      It appears that the argument of the husband is that because of the contribution of the husband caused by his assets at the time of marriage and at the time of the commencement of cohabitation together with his entrepreneurial skills since then, he made more than a 55% contribution when compared to the wife’s contribution as housewife and mother and all other contributions made by her.

9.3      His Honour, as we said above, looked at the contributions of the parties pursuant to S.79(4)(a), (b) and (c).  He took into account the “substantial initial contribution by the husband at the date of marriage and more significantly at the date of the commencement of cohabitation in 1962.”  In Way and Way (1996) FLC 92-702 at p. 83,404, the Full Court said:

“... we regard the law in this area as now settled by the statement by Fogarty J. in Money (and subsequently accepted by all members of the Full Court in Bremner) that ‘... an initial substantial contribution by one party may be “eroded” to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party.’ ”

9.4      His Honour also took into account the husband’s entrepreneurial skills.  It must be remembered that the parties were married in 1959 and commenced cohabitation in 1962.  The parties separated in 1995.  The husband’s contribution of all sorts, financial and non-financial and as a parent and homemaker, ceased in 1982 and all contribution for the next 11 years, at least, came from the wife.

9.5      The ground of appeal therefore is essentially a question of weight.  To uphold this ground of appeal we would have to find that his Honour’s decision as to contribution percentages was “plainly” wrong (Gronow and Gronow (1979) FLC 90-716 per Stephen J. at p. 78,849). On the facts of this case it is clear that his Honour’s decision is clearly right. The 45% attributed to the wife for contribution under these three paragraphs of S.79(4) at 45% is well within the range awarded in this type of case, even a little on the low side. Clearly this ground must fail.

1. GROUND 3:

“His Honour erred in the exercise of his discretion in his findings with respect to percentage adjustments pursuant to Section 75(2).”

10.1    Like the previous ground, this ground is so wide as to be meaningless.  Once again we will go to the appellant’s outline of argument to attempt to see the gravamen of the ground.  Once again, the “significant asset-base overseas” finding of his Honour is raised as being triple dipping.  The outline of argument states “By this method the trial judge penalised the husband three times over where there might have been justification for a single penalty.”

10.2    Paragraph 2 of the outline reads:

“The trial judge accepted that the wife made no claim to overseas assets.  The Court cannot then penalise the husband by making some inference about the existence of overseas assets represented by a percentage of contribution, a percentage of Section 75(2) factors and its failure to include a debt.”

10.3    Paragraph 7 of the outline reads:

“In assessing the section 75(2) factors the Court was ready to accept the ability of the husband to earn a high income but had no regard to the uncontradicted evidence that he had not achieved a high income for many years and was now of an age considerably greater than the wife and had health problems.”

10.4    The husband also claims that the future care of Otto was a finding in which his Honour erred, it not being open to him on the evidence.  This, however, is a separate ground of appeal and we will deal with it in relation to ground 4.

10.5    We have already set out the factors which his Honour took into account in coming to his assessment that the S.75(2) factors, as he called them, justified an award of 25% of the parties’ net property.  It is by no means clear that his Honour did take the alleged overseas assets into account in determining the percentage to be awarded to the wife pursuant to S.75(2).

10.6    It is correct that at p.34 of the Appeal Book his Honour said:

“Counsel for the husband submitted the Court should not approach the wife’s application on a needs basis.  It is inevitable when considering the issues under section 75(2) to consider the needs of the parties.  The difficulty here is in making an adjustment on account of the undisclosed overseas assets.  As best I can I have given the wife in percentage terms full allowance for her role in maintaining and managing the Australian assets.  In doing this it lessens any contribution notional or otherwise she has made to the accumulation of overseas assets.”

10.7    It does appear that at the end of the quoted passage his Honour is dealing with “contribution” and not “needs”.  Whilst there is certainly confusion we are not persuaded that his Honour took into account in his assessment of those matters made relevant by S.75(2) the question of overseas assets.  Rather we think that his Honour confined himself to those matters which we quoted in paragraph 6.7 above.

10.8    In relation to the argument of the husband set out in paragraph 10.3, it is abundantly clear that his Honour gave no credibility to the evidence of the husband on any issue, contradicted or otherwise.  His Honour inferred, as he was entitled to do, that the husband could command a high income as a commodity broker.  This inference was open to him on the evidence before him which he accepted (see Weir and Weir (1993) FLC 92-338).

10.9    For these reasons we do not think there is merit in this ground.

1. GROUND 4:

“His Honour erred in his findings that the child of the marriage OTTO LUN would be cared for by the Wife.”

11.1    It is in relation to this ground that the husband seeks to tender fresh evidence and with that application we will deal in paragraph 12.

11.2    In his reasons for judgment, his Honour took the question of Otto’s future into account in both of the areas of contribution under paragraphs (a), (b) and (c) of S.79(4) and also when he considered the so-called S.75(2) factors.  In regard to the former, as part of the passage in his Honour’s reasons quoted in paragraph 6.4, we repeat:

“6.The wife has had responsibility for the child Otto and is likely to have responsibility for Otto in the future.”

11.3    In regard to the S.75(2) factors, we repeat part of the quote in paragraph 6.7:

“5.To the extent that such matters have not been taken into account under section 79(4) the fact that the wife will have the ongoing care of Otto including the extent (sic) which his support is not met by his invalid pension.”

We would make it clear at this point that the introductory words at the beginning of the above-quoted sentence (being “To the extent that such matters have not been taken into account under section 79(4)”) negate any suggestion that his Honour “double dipped” in respect of the future care of Otto.

11.4    The other reference in the judgment to Otto is at p.15 of the Appeal Book where his Honour said:

“... Otto (was) born in 1969.  Otto suffers an intellectual disability and is not capable of taking care of himself or being employed on the open market.  ...  Otto is in receipt of an invalid pension and is predominantly cared for by his mother.”

11.5    On p.32 of the Appeal Book, his Honour finds that Otto was 12 years of age at the time the husband left for overseas in 1982 and that he was brought up by the wife during that period.

11.6    In relation to the evidence about Otto, the wife says in paragraph 2 of her affidavit sworn 21 February, 1997 (p. 63 of the Appeal Book), “Otto resides with me”, and again in paragraphs 31 and 32 (p.77 of the Appeal Book) the wife deposes that in 1993 Otto went overseas with the husband for 3 to 4 weeks and this was the first time that Otto had been away from her.  In 1994 the husband again took Otto overseas for a short time.

11.7    At paragraph 6.6 on p.114 of the Appeal Book, the husband in his affidavit sworn 25 February, 1997 deposes that the wife cared for Otto until about 1991 when he started spending periods of time with the husband in the Philippines.  In paragraphs 10.5.1 to 10.5.4, the husband deposed that since 1995 Otto had “predominantly” lived with him but had spent some periods with the wife and finally concludes “I suspect that in the future Otto will share his time between Lisa and I (sic).”

11.8    In oral evidence, the wife refers to the question of the care of Otto, deposing as to the pressure which the husband has put on both the wife and Otto for Otto to live with the husband, which passage appears on pp.24 - 25 of the transcript of 25 February, 1997.

11.9    Finally in his address to his Honour, Mr. Murphy for the husband said at p.14 of the transcript of 28 February, 1997:

“Otto has divided his time, in my submission, during the time that my client has been in Australia post separation.  He is 26 or 27.  He has a significant disability.  In my submission, it is likely that he will drift a bit between the parties, although your Honour may well find that the wife would likely bear the greater responsibility for his future care.”

11.10     His Honour did so find so this ground, without fresh evidence, must fail.  We now deal with the husband’s application to tender fresh evidence about Otto’s future care.

1. FRESH EVIDENCE:

12.1    The application for the receipt of fresh evidence was filed on 1 October, 1997 and is accompanied by an affidavit of the husband sworn the same day.  The husband deposes that at the date of trial, Otto was residing with him and that he continued to reside with him after the trial apart from two short periods.  The wife has filed an affidavit in reply sworn on 3 October, 1997 claiming that Otto was residing with her at the time of trial and had been living with her from 19 September, 1996 until 9 March, 1997.  She admits that at the date of swearing the affidavit Otto had lived with the husband since 8 June.

12.2    In Abdo and Abdo (1989) FLC 92-013 at pp. 77,316 to 77,317, the Full Court said:

“Counsel also referred us to the decision in Mistilis and Mistilis (1988) FLC 91-914; 12 Fam. L.R. 175 in which the Full Court Lindenmayer, Nygh and Graham JJ. said at FLC 91-914 pp. 76-631-76,632; Fam L.R. pp. 177-178:

‘Usually an Appeal Court will not hear fresh evidence.  An Appeal Court is not generally well placed to determine the truth and accuracy of evidence.  The appropriate procedure is, in proper cases, to remit a matter for rehearing.  It is a clearly established rule that courts will accept fresh evidence when to refuse the application would be an affront to common sense and a sense of justice.  That rule has been well established for many years and was set out cogently by Lord Wilberforce in Mulholland v. Mitchell (1971) A.C. 666 at pp. 679-680 where his Lordship said:

‘I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree (Murphy (1969) 1 W.L.R. 1023, 1936). Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judge’s estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice.’ ”

12.3    Again the Full Court said at p. 77,322:

“It is not suggested that the Full Court’s discretion to receive further evidence may be arbitrary or uncontrolled.  It must be exercised judicially for the purpose of avoiding injustice.  One of the matters which will affect the exercise of the discretion is the policy of the law centred on finality.  The other aspect is that pointed out by Lord Pearson in Mulholland v. Mitchell that ‘an appeal normally involves only a review of the judge’s decision on the decision given at the trial’ (This is a misquote.  What his Lordship said at p. 681 is ‘an appeal normally involves only a review of a judge’s decision on the evidence given at the trial’) and that ‘a partial retrial with further evidence added is not a normal function of ’ the Full Court.  As was pointed out in Mistilis the Full Court is not well placed to deal with disputed evidence particularly where questions of credibility may arise.  Usually the admission of further evidence on appeal after a full trial will necessitate a further hearing and the decision on that hearing may itself become the subject of an appeal.”

12.4    The important principles which can be gained from the authorities both of Abdo and Abdo supra and of those quoted in that judgment as they apply to this case are:

(a)Fresh evidence may be admitted if some basic assumptions common to both sides have clearly been falsified by subsequent events.

(b)Fresh evidence can be expected to be allowed when to refuse it would affront common sense or a sense of justice.

(c)There should be finality in proceedings.  The admission of fresh evidence, if it is disputed, as in this case, leads to the matter being sent back for re-hearing with the possibility of yet another appeal.

In Abdo and Abdo (supra) the Full Court, at p.77,319, quoted Lord Pearson in Mulholland v. Mitchell (supra) at p.681 in the following terms:

“There is, however, to be taken into account in exercising the discretion an important factor, to which attention has been directed in several cases.  It is in general undesirable to admit fresh evidence on appeal, because there ought to be finality in litigation.”

(d)To be admissible if the evidence arises after the appeal, as in this case, it must have cogency in the sense that it is credible and would have been likely to affect the outcome of the case.

12.5    What the husband is trying to establish by the fresh evidence is that he will be responsible for Otto’s care for the future and that this is an onerous responsibility, notwithstanding the receipt by Otto of an invalid pension.  It is a matter which involves S.75(2)(e) “the responsibility of either party to support any other person”.

12.6    In his final address to the trial Judge, counsel for Mr. Lun submitted:

“Otto has divided his time, in my submission, during the time that my client has been in Australia post-separation.  He is 26 or 27.  He has a significant disability.  In my submission it is likely that he will drift a bit between the parties although your Honour may well find that the wife would likely bear the greater responsibility for his future care.”  (Transcript 27.2.97, p.14).

At Appeal Book, p.33, his Honour made the following finding presumably in response to that submission:

“To the extent that such matters have not been taken into account under section 79(4) the fact that the wife will have the on-going care of Otto including the extent which his support is not met by his invalid pension.”

In his affidavit sworn on 1 October, 1997 in support of the application to admit fresh evidence, the appellant deposed that Otto was living with him at the time of the trial in February, 1997.  Despite that alleged fact, his counsel made the submission which we have quoted above.  Included within that submission was the suggestion that “it is likely that” Otto “will drift a bit between the parties ...”.  In his affidavit of 1 October, 1997 the appellant deposed, “It is my belief that Otto will reside with me for the foreseeable future.”
In our view, the husband having made the submission through his counsel at a time that Otto was allegedly living with him, including the proposition that Otto might “drift”, established the uncertainty of Otto’s living arrangements.  The factors under S.75(2) are prospective.  The desirability of finality in litigation would, in the circumstances of this case, require a very high degree of probability of significantly changed and thereafter unchanging circumstances before fresh evidence should be admitted.  In our view, if the fresh evidence were to be allowed, it would be extremely unlikely to make any substantial difference to the ultimate finding as to contribution, S.75(2) factors or the overall result.  We will accordingly dismiss the application to adduce fresh evidence.

12.7    As set out in paragraph 11.10 herein, without fresh evidence which would overturn his Honour’s finding, ground 4 must fail.  His Honour did find that the wife would have the ongoing care of Otto and is likely to have the responsibility for Otto in the future.  These findings were clearly open to him on the evidence.  As counsel for the husband conceded in his submission to his Honour, “Your Honour may well find that the wife would likely bear the greater responsibility for his future care.”

1. GROUND 5:

“That it was not proper for the Court to have proceeded with the final determination of the Wife’s application for property settlement and maintenance when the property of the parties was in the process of being determined in other proceedings instituted by the Husband when proceedings were transferred by the Trial Judge in an order made on 24 February 1997.”

13.1    The consideration of this ground involved pp. 3 to 7 of the transcript of the proceedings before his Honour on 24 February, 1997.  The transcript of 24 February, 1997 was not in the Appeal Books but was supplied to us by Senior Counsel for the husband.  It also involves the reasons for judgment which were delivered by his Honour on 25 February, 1997 concerning his Honour’s order to transfer a part of these proceedings to the Supreme Court of Queensland.  A copy of these reasons was also handed up to us.  It is apparent from this material that his Honour made the order on 24 February and gave his reasons the next day.

13.2 The wife commenced these proceedings by a Form 7 application filed on 13 February, 1995. The husband delayed the filing of a response until 9 December, 1996. As part of that response the husband sought to invoke the jurisdiction of the Supreme Court of Queensland - pursuant to s4(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) with claims outside the jurisdiction of the Family Court against the wife, their son Adrian, and Adrian’s wife. As against the wife, the relief sought in his Response by the husband pursuant to the cross-vesting scheme (at p. 83 of the Appeal Book) was as follows:

“1.    As against the Applicant Lisa Lun

1.1A declaration that she holds the property situated at 64 Leeds Street, Townsville and more particularly described as Lot 432 on Registered Plan No. 717575 County Elpinstone Parish Coonambelah (“the Leeds Street property”) on trust for Kee Wing Lun.

1.2An order that Lisa Lun transfer to Kee Wing Lun the Leeds Street property.

1.3Further or alternatively, compensation in equity or restitution as this Honourable Court shall deem fit.

1.4Such further or other relief order as to this Honourable Court seems appropriate.

1.5    Costs.”

13.3    On the same day as the husband filed in his response a cross-vested claim (being 9 December, 1996) an application was made on his behalf to Barry J. for an adjournment of the hearing of the property settlement claim which was set for 24 February, 1997.  One of the reasons for the application for the adjournment was apparently the need for time to prepare the cross-vested claims which the husband wanted determined prior to, or at least simultaneously, with the property settlement proceedings between the husband and the wife.  On the following day, 10 December, 1996, Barry J. delivered a judgment in which amongst other things he dismissed the husband’s application for an adjournment of the hearing listed to commence on 24 February, 1997.  The husband then applied for leave to appeal his Honour’s decision of 10 December, 1996 not to adjourn the hearing scheduled for 24 February, 1997.  That application was heard by a Full Court on 19 February, 1997 and dismissed on 20 February, 1997.  The reasons of the Full Court were published on 15 October, 1997.  We mention here that there were a number of other matters relating to this case which were also before the Full Court on 19 and 20 February, 1997 and were the subject of its lengthy reasons for judgment.

13.4 When the matter opened before his Honour on 24 February, 1997, the husband sought that his Honour should determine the cross-vested claim rather than transfer it to the Supreme Court. The wife and the son, Adrian, and his wife were effectively prepared to abide by his Honour’s order. In the event his Honour determined that that claim should be transferred to the Supreme Court, and that he should proceed forthwith to hear the property settlement proceedings between the husband and the wife. It is his Honour’s decision to proceed with the hearing and determination of those proceedings without awaiting the outcome of the cross-vested claims which is the gravamen of ground 5. No appeal of course lies against his Honour’s order transferring the cross-vested claim [see s.14(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld)].

13.5    It is important in dealing with this ground of appeal to ascertain whether this point had been raised by the husband before his Honour.  It is clear from the transcript of 24 February, 1997 that no application for an adjournment of the S.79 proceedings was made before his Honour on that occasion.  An application to adjourn the proceedings after the cross-vesting transfer was the obvious remedy for the husband to prevent the S.79 proceedings being determined before the Supreme Court decision was known.  If a point is not taken at the trial, and if it had been taken, would not necessarily have succeeded because it might have been met by the calling of evidence, amendment of pleadings or by concession by the respondent, then it cannot be a ground of appeal (see Fagan and Fagan (1985) FLC 91-607).

13.6    It would seem likely that no application for an adjournment was made after the trial Judge had transferred the claim against the wife, son and daughter-in-law to the Supreme Court, because the husband’s application for leave to appeal the trial Judge’s earlier decision not to adjourn the hearing on 24 February, 1997 had been dismissed by the Full Court on 20 February, 1997.

13.7    In his reasons for judgment of 25 February, 1997, his Honour made the point that the relief sought by the husband in relation to the property at 64 Leeds Street, Townsville would not affect the S.79 proceedings one way or the other.  Clearly this is property of the parties pursuant to S.79 and the name of the registered proprietor of the property is irrelevant to a determination pursuant to that section.  In addition, the wife abandoned any claim which she may have had to the fruits of the counter claim (then yet to be filed) which she and the other two respondents to the husband’s claim, may yield.

13.8    The reasons of the Full Court delivered on 15 October, 1997 (unreported) are not paginated and we can only refer to paragraph numbers.  At paragraph 3.7 their Honours referred to the reasons for judgment of his Honour of 10 December, 1996 in these terms:

“His Honour then turned to consider the husband’s application to adjourn the hearing of the substantive property proceedings.  He first noted ... that the basis of that application was ‘twofold’, and identified the first basis as being the existence of the husband’s recently pleaded cross-vested claim against the son and his wife ...”

13.9      Again at paragraph 3.18 the Full Court said:

“In the end result, his Honour concluded that the husband’s claim against the son ... was not ‘a proper basis’ or ‘a sufficiently valid reason’ for the adjournment of the property proceedings instituted by the wife’s application ‘filed nearly two years previously by the time the matter comes on for hearing’.”

13.10     At paragraph 4.66 the Full Court sets out the nine grounds of appeal in the husband’s draft notice of appeal relating to his Honour’s refusal to adjourn the trial.  These grounds of appeal are explained by the Full Court at paragraph 4.67 thus:

“Those grounds, and the submissions advanced in support of them by the husband’s counsel, focused on the husband’s cross-vested claim, its relationship with the s.79 proceedings between the husband and wife, and the importance (from the husband’s perspective) of having that claim determined at the same time and in the same forum as the s.79 proceedings.”

13.11     According to the Full Court, one of the arguments raised by the husband’s counsel in his written outline of argument was that although his Honour had not made any order at that stage for the transfer of the cross-vested proceedings, it was clear that his Honour intended to transfer the cross-vested claim and that the matters raised were “just not relevant on the final hearing” of the S.79 proceedings.

13.12     At paragraph 4.80, the Full Court said:

“...What his Honour in effect said, at that point in the proceedings, was that for the purposes of the s.79 proceedings it mattered not whether the property stood in the husband’s name, the wife’s name, or both, or how it came to be in the name of the wife, because it was property of one or other of them and would be taken into account as such in those proceedings.  That was, of course a perfectly valid statement of the legal position ...”

13.13     Again in paragraph 4.85 their Honours said:

“In relation to the submissions to the effect that the wife also had an interest in getting back into the pool of assets for the s.79 proceedings any properties of the husband improperly dealt with by the son, his Honour was perfectly entitled to adopt the view (which he expressed in his judgment) ... that if the wife did not seek to do this (and, as she opposed the adjournment, she clearly did not) that was a matter for her, and it could not prejudice the husband in relation to the s.79 proceedings that he may subsequently recover property or money in the proceedings against the son, because he would then take that property free of any claims by the wife under s.79 of the Act.”

13.14     At paragraph 4.89 the Full Court said:

“...Our overwhelming conclusion is that it was very much open to his Honour, in the exercise of his discretion, to reject that application in all of the circumstances of this case.  Even if it could be said that in some way his Honour erred in the exercise of his discretion, such that this Court would be called upon to re-exercise the discretion, we would have exercised it in exactly the same way as his Honour did, namely by refusing the application.”

13.15     At paragraph 4.90, their Honours set out three overwhelming features of the case which we paraphrase as follows:

1. The wife’s application had been pending for almost two years.

1. That Barry J. had determined the marriage of the parties to be valid in November 1995 and an appeal against that determination was dismissed in June 1996.  There were orders of a Deputy Registrar of September 1996 fixing the hearing date for February 1997.  He made procedural orders in relation to the filing of the documents by the husband with which the husband did not comply until well after the fixed time.

1. The husband would suffer little, if any, prejudice from being unable to pursue his cross-vested claims at the same time and in the same Court as the proceedings between him and the wife under S.79 of the Act.  Indeed, as the Full Court said, he may be substantially advantaged in those proceedings by having the determination of the cross-vested claims postponed until after the S.79 proceedings were determined.

13.16     Finally, their Honours said at paragraph 4.91:

“In our view, those features of the case, when coupled with the Court’s commitment to case management and the minimisation of the delay in the disposition of cases (as an aspect of the public interest in the administration of justice) lead overwhelmingly to the conclusion that the only proper course for his Honour to take was to refuse the adjournment application.  As it follows that the husband’s proposed appeal from that refusal must fail, his application for leave to appeal against that refusal was dismissed.”

13.17     In view of the Full Court’s determination in relation to the husband’s application for leave to appeal against his Honour’s earlier refusal to adjourn the S.79 proceedings, it is very difficult to see how the husband can succeed in relation to ground 5.  Even if the husband can again raise the same ground of appeal against a later but identical order, the ground is doomed to fail.  We need do no more than adopt the reasons which the previous Full Court gave on 15 October, 1997.  Accordingly, we find no merit in ground 5.

1. CONCLUSION:

14.1    We have not been persuaded by the argument put to us in relation to any of the 5 grounds of appeal for the reasons set out above.  Accordingly we would dismiss the appeal.

1. COSTS OF THE APPEAL:

15.1    At the conclusion of the hearing of the appeal we asked counsel to address in relation to the question of the costs of the appeal depending on its outcome.  Counsel for the wife argued that if the appeal was dismissed, the husband should pay the wife’s costs of the appeal.  In the event, this has been the determination of the Court and it is this argument that we must consider.

15.2    The question of costs pursuant to the Family Law Act is dealt with in S.117.  In view of the unmeritorious nature of this appeal we consider, pursuant to S.117(2), that this is a case in which there ought to be an order for costs.  His Honour has set out in his judgment the financial circumstances of the parties and to some extent the conduct of the parties in relation to the proceedings, including the interlocutory applications and appeals to the Full Court which have been instituted by the husband and his non-compliance in time with procedural directions and orders, and these are all factors which support that finding.  In addition, the husband has been wholly unsuccessful in this appeal [S.117(2A)(e)].  There will be an order that the husband pay the wife’s costs of the appeal.

1. ORDERS:

1. That the appeal be dismissed.

1. That the husband pay the wife’s costs of the appeal to be agreed or taxed.