MADDEN & MADDEN

This appeal concerned property division between a husband and wife, heard by Coleman, Warnick, and Boland JJ of the Court of Appeal. The husband appealed a decision of the trial judge concerning the sale of a property and the overall division of matrimonial assets.

The legal issues before the Court of Appeal included whether the trial judge had erred by failing to afford the husband procedural fairness in relation to the sale of a property, whether certain properties were wrongly excluded from the asset pool, and whether the trial judge made errors in relation to "add backs" of alleged borrowings by the wife, inclusion of leave entitlements, and the treatment of legal fees. The court also considered an application by the husband to amend his grounds of appeal during the hearing.

The Court of Appeal found no denial of procedural fairness regarding the property sale. However, it identified an appealable error in the trial judge's approach to liabilities, specifically the inclusion of a loan secured against the matrimonial home by the wife for a separate investment without a corresponding asset being included or the liabilities being reduced. The court also found merit in the husband's arguments regarding the inclusion of certain borrowings and leave entitlements, and the treatment of legal fees. The application to amend the grounds of appeal was refused, as the proposed new ground lacked merit and the circumstances were not extraordinary enough to warrant amendment after the appeal hearing commenced.

The Court of Appeal ordered that the discretion be re-exercised, with parties to provide an agreed statement of facts and any relevant affidavit material. The costs of the appeal were to be determined after the re-exercise of discretion, based on written submissions.