M & S and Ors

This matter concerned an appeal from a decision of a Family Court Judge regarding property settlement proceedings. The husband sought to set aside a transfer of real property, where the wife was the life tenant and the parties' two daughters were entitled in remainder. The trial commenced with discussions regarding defects in the form of orders sought by the husband under s 106B of the relevant legislation. Despite these initial discussions, the husband's case proceeded to completion.

On the fifth day of the trial, as the wife's case was about to commence and it was apparent the trial could not be concluded that day, the husband indicated a wish to seek legal advice before amending the form of orders to set aside the property transfer. Counsel for the wife and the daughters opposed this, urging the dismissal of the husband's application. The trial Judge ultimately dismissed the husband's application to set aside the transfer.

The appellate court held that the sequence of events at trial resulted in an unfairness to the husband. The court reasoned that the husband's request for legal advice, made at a critical juncture when the trial was clearly not concluding as scheduled and before the wife's case had begun, should have been accommodated. The dismissal of his application without allowing him the opportunity to obtain advice and potentially amend his orders was considered an error.

The appeal was allowed, and the orders of the trial Judge made on 25 May 2004 were set aside. The husband's application and the wife's response were dismissed. Costs certificates were granted to each of the parties.