Manotis & Manotis & Ors
[2018] FamCAFC 29
•21 February 2018
FAMILY COURT OF AUSTRALIA
| MANOTIS & MANOTIS AND ORS | [2018] FamCAFC 29 |
| FAMILY LAW – APPEAL – where the husband filed an application pursuant to s 106B seeking to set aside the transfer of property to a third party – where the primary judge refused that application – where litigation between the parties spanned some 14 years – where the husband’s contentions on appeal had no foundation – where no error was demonstrated – appeal dismissed – costs ordered against the husband. FAMILY LAW – APPLICATION IN AN APPEAL – where the husband sought an extension of time to file a Notice of Appeal relating to a costs order made against him – where there was no substantial issue to be raised on appeal – application dismissed – costs ordered against the husband. |
| Family Law Act 1975 (Cth) s 106B Trustees Act 1962 (WA) ss 27(1), 27(2) and 31 Family Law Rules 2004 (Cth) |
| Bant & Clayton [2014] FamCAFC 108 Lenova & Lenova (Costs) [2011] FamCAFC 141 Nada & Nettle (Costs) (2014) FLC 93-612 |
| APPELLANT: | Mr Manotis |
| FIRST RESPONDENT: | Ms Manotis (Deceased) |
| SECOND RESPONDENT: | Mr Matthews |
| THIRD RESPONDENT: | Mr Blanco |
| FOURTH RESPONDENT: | X Lawyers |
| FILE NUMBER: | PTW | 2347 | of | 2004 |
| APPEAL NUMBER: | WA WA | 13 18 | of of | 2016 2016 |
| DATE DELIVERED: | 21 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Strickland, Murphy & Kent JJ |
| HEARING DATE: | 29 November 2017; 30 November 2017; written submissions received from the second respondent on 29 January 2018 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 26 February 2016 |
LOWER COURT MNC: | [2016] FCWA 10 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| FOR THE FIRST RESPONDENT: | Not applicable |
FOR THE SECOND RESPONDENT: | No appearance |
COUNSEL FOR THE THIRD RESPONDENT: | Mr Guerrini |
| SOLICITOR FOR THE THIRD RESPONDENT: | Lawley Legal |
| COUNSEL FOR THE FOURTH RESPONDENT: | Dr Dickey QC |
| SOLICITOR FOR THE FOURTH RESPONDENT: | X Lawyers |
Orders
Appeal number WA 13 of 2016 be dismissed.
The Amended Application in an Appeal filed on 15 May 2017 seeking an extension of time to file a Notice of Appeal in appeal number WA 18 of 2016 be dismissed.
The husband pay to the third and fourth respondents their costs of and incidental to appeal number WA 13 of 2016 and of and incidental to the Amended Application in an Appeal filed 15 May 2017 in appeal number WA 18 of 2016 in such amount as might be agreed between the husband and each of them within 45 days of the date of these orders and, failing agreement, each of those costs to be assessed on a party and party basis.
The costs agreed or assessed as the case may be in accordance with Order 3 be paid by the husband within 90 days of the date of these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Manotis & Manotis and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 13 of 2016; WA 18 of 2016
File Number: PTW 2347 of 2004
| Mr Manotis |
Appellant
And
| Ms Manotis (Deceased) |
First Respondent
And
| Mr Matthews |
Second Respondent
And
| Mr Blanco |
Third Respondent
And
| X Lawyers |
Fourth Respondent
REASONS FOR JUDGMENT
Appeal Number WA 13 of 2016
Mr Manotis (“the husband”) appeals orders made by Crisford J on 26 February 2016. Those orders provided for amounts of money to be distributed to named persons from a trust fund held by X Lawyers, legal practitioners who had previously acted for the wife. After payment of the specified sums, the orders provided for any residue of the trust fund to be distributed in the proportion 30 per cent to the wife and 70 per cent to the husband. Her Honour’s orders also dismissed a claim made by the husband against X Lawyers and his claim against another third party, Mr Blanco.
Her Honour’s orders have their genesis in a tortuous 14-year litigation history embracing numerous applications and claims by the husband. He has, it is fair to say, a long-standing and abiding sense of grievance and injustice arising from events subsequent to an application for consent property orders executed by him and his former wife. The events and transactions that have occurred since will need to be traversed in some detail in order to understand the current appeal.
The relevant events gave rise to the husband successfully appealing orders made by Moncrieff J on 21 January 2013. Her Honour’s orders the subject of this appeal were made consequent upon the remitted rehearing.
Subsequent to the making of the 26 February 2016 orders, her Honour made orders on 27 July 2016 which required the husband to pay costs to Mr Blanco. The husband filed an Application in an Appeal on 19 September 2016 seeking to appeal those costs orders out of time. On 17 November 2016 Thackray J ordered that the husband’s application be heard together with the instant appeal. On 15 May 2017 the husband filed an amended application, and that application will be addressed in these reasons subsequent to our consideration of the substantive appeal.
The husband’s grievances and assertions of injustice over the 14-year span of his litigation are multi-faceted. In their most recent iteration in this appeal, they are manifested in broad claims against the integrity of judges and magistrates of the Family Court of Western Australia (“FCWA”) and also Dr Dickey QC who appeared both at trial and before this Court for X Lawyers.
Those contentions form the basis of many of the husband’s arguments on this appeal. None have any foundation.
Those underlying contentions also mire both the grounds of appeal and the arguments sought to be raised by the husband on this appeal. As but one example of the latter, a 33-page document handed to the bench – embracing, the husband said, his essential arguments – contained the following:
WHY WAS the successful Appeal of the 1/11/13: totally useless to the [Manotis] Family? Simply put, the Full Bench DID NOT or COULD NOT ENACT any actual ‘orders’ with teeth. It was back to square one and clearly there never was going to be any Justice for the [Manotis] Family? Reasons WHY?
= Because the Judge and his very good friend – [Mr H] [and Tony Dicky no doubt] successfully ‘sabotaged’ (made nugatory) the Appeal process. That was the F.L.F. in action.
= In reality; it was more than the just “legal maneuvers” by members of the Family Law Fraternity [Moncrieff, Dicky, [Mr H], Crisford, Andrews etc] that shafted the [Manotis] Family.
=What the [Manotis] Family experienced [that is: the F.C.W.A. judgements & orders] was not “justice” as there is no “justice” in the LEGAL SYSTEM known as the F.C.W.A. but the ‘judgements’ of what is legally known as a STAR CHAMBER and the making of Arbitrary decisions. [Pt 4 below].
=With the arrival of Tony Dicky on the scene from the 10/03/2014 and the events that took place PRIOR to that hearing between [Mr H] & Mrs [Manotis] (with the explicit help of the ‘interpreter’ …) as per the [Matthews] Affidavit of the 01/09/2014; the ‘so called Family Court’ in effect became a two person “Star Chamber” in which Dicky took the lead and J. Crisford followed suite.
STAR CHAMBER: “A court that existed in England from 1487 to 1641 that was able to proceed and act without regard for the common law, in secret session, without a jury and in which evidence was obtained by dubious circumstances and means” WOW! Think the F.C.W.A.
=The F.C.W.A.’s most ‘illustrious’ (distinguished; renowned & well known) “star chamber” comprised not just the Crisford & Dicky combination, but also the S. Moncrieff & [Mr H] combo: both devastating ‘tag team’ star chambers duos, ably assisted (willingly??) by Andrews and the like.
= Dicky: is the most appropriate person to be pursuing the interests of [X Lawyers]. It - Dicky means “a false shirt front: an unhealthy and unsound individual” How good is that for a person who is MORALLY ‘corrupt’ and his MORAL COMPASS is so SKEWED because he has made ‘winning’ (just like the ‘morally corrupt’ associates [R] and [Mr H]) at all costs and at any means available to him?
(As per original)
For the reasons which follow, the husband’s appeal should be dismissed.
In explaining that conclusion it is necessary to give a significantly more expansive background than what might ordinarily be necessary. In that respect we consider that we can do no better than repeat much of the careful and comprehensive background given by the primary judge, none of which was the subject of relevant challenge on the appeal.
With all respect to the husband who, we acknowledge, suffered the disadvantage of self-representation and the presentation of challenges based on events with a long history, many of his oral arguments were of a character similar to the written argument quoted above. We sought to reframe the husband’s argument and in these reasons will set out the grounds of appeal as they appear in his amended Notice of Appeal and seek to explain the arguments advanced by the husband referenced to those grounds as best we can.
As a preface to setting out the relevant background, it is we think helpful to identify in broad terms the role played by each of the parties to the appeal.
The Parties
The husband’s former wife is now deceased. The proceedings do not abate and the present appeal can nevertheless continue.[1]
[1]Somerton & Wells (2014) FLC 93-574 citing Pertsoulis & Pertsoulis (1979) FLC 90-613 and Gilbert, CA v Estate of Gilbert, RG (1990) FLC 92-125.
The second respondent, Mr Matthews, is a person with whom the husband was associated in connection with farming activities on the real property at the centre of the proceedings. He claimed to be owed money by the husband and her Honour ordered that he be paid $69,000 from the trust fund held by X Lawyers. Mr Matthews did not appear at the appeal proceedings before this Court and, in an email to the Registrar, sought an adjournment until April 2018. Mr Matthews made various representations about difficulties he had in preparing material for the appeal (and in attending the hearing). As will be seen, they have echoes in similar submissions made in support of applications for adjournment during the course of the trial.
Out of an abundance of caution we ordered that Mr Matthews be permitted to file any written submissions within 60 days of the hearing. That period expired on 29 January 2018. On 29 January 2018, written submissions were received from Mr Matthews. In very many respects they mirror the content and tone of the arguments advanced by the husband. Mr Matthews’ arguments will be addressed subsequently.
The third respondent, Mr Blanco, purchased from X Lawyers the real property just referred to. It was owned by the husband. X Lawyers were acting as trustees for sale pursuant to court orders. The property had long been held in the husband’s family and utilised for farming. Crisford J commented (at [2]) that “[t]he husband has done and continues to do everything in his power to retain that property, he says, for the benefit of the parties’ son who is now 16 years of age”. The husband sought to set aside the sale to Mr Blanco and made other claims against him. All were dismissed by her Honour. Mr Blanco was represented by counsel in the appeal and sought its dismissal.
X Lawyers’ conduct in and about their retainer with the wife is, and long has been, a particular focus of the husband’s grievances. As will be seen, her Honour made adverse findings about the conduct of those legal practitioners. Ultimately, her Honour ordered that X Lawyers “be at liberty to disburse the sum of $64,289” to themselves from the trust fund held by them. They too seek dismissal of the appeal.
Relevant Background
The Trial Process
If the process leading to the trial before her Honour was tortuous, so was the trial itself. Her Honour set out its circumstances as follows:
3The matter comes before the Court on this occasion by virtue of an order of the Full Court of the Family Court of Australia (“the Full Court”) made on 17 June 2014. This rehearing started in March 2015. After four days it was adjourned until June 2015. It then continued for five days. At the commencement of the ninth day, 3 July 2015, the second respondent, [Mr Matthews], due to start his re-examination, was apparently hospitalised and did not attend. The matter was adjourned to 2 December 2015. The matter continued for another seven days. A further day was allocated on 12 January 2016. Closing addresses were heard on 4 and 5 February 2016. Provision was then made for the husband to file supplementary written submissions. These were received, as ordered, on 15 February 2016.
The Background as found by the Primary Judge
As we have said, we respectfully adopt the following relevant parts of the background set out by the primary judge:
4 On 23 January 2008, after a three day hearing in July 2007, Penny J made orders relevantly for present purposes:
1. On or before 60 days from today’s date the [husband], is to pay to the [wife], the sum of
$83,053$77,717.50.2. If the [husband] fails to comply with paragraph 1 hereof, the property situate at [Town N] be sold and the proceeds of sale be disbursed as follows:
…
(d) the balance be divided in order to effect a distribution of the assets as to 30 per cent to the [wife] and 70 per cent to the [husband].
3. Pending the payment or completion of the sale of the property:
…
(c) neither party encumber the real property without the consent in writing of the other party.
5 On 2 June 2009, 18 months later, and after an application was filed by the wife’s solicitors [X Lawyers], an order was made that the wife be appointed trustee for the sale of the property. The terms of the order are of importance:
1 The [wife] be appointed the trustee for the purpose of sale of the real property [description follows] to effect such sale in accordance with paragraph 2 of the Orders made 23 January 2008 by the Family Court of Western Australia and by way of consequential arrangements for the purposes of effecting the sale:
(a) The solicitors for the [wife], [X Lawyers] have the conduct of the sale, whether by auction or private treaty and be authorised to instruct an auctioneer for that purpose.
(b)Within 14 days of a request from the [wife’s] solicitors the [husband] shall do all such acts and sign all such documents as may be required to procure such sale in accordance with these orders.
(c) The [husband] further do all such acts as may be required to ensure that the real property is maintained in proper condition and state of repair pending the completion of the sale and further do all such acts as may be required to ensure that the real property is properly presented upon inspection by any prospective purchasers.
6 By April 2011 the property had still not sold. [X Lawyers] brought an application to aid the inspection of the property by a valuer. In December 2011 [X Lawyers] brought a further application to progress a sale of the property. It said that the husband had interfered in the conduct of the sale. The court made the orders sought, by [X Lawyers], that the husband be restrained from leasing the property or any part of it.
7 The husband was by then alleging a leasehold interest in the property. He said it had existed since 2003 and was between himself and Mr [Matthews], a … farmer. This had not been part of the evidence at the trial before Penny J. A handwritten lease entered into [in late] 2003, for a period of five years with an initial five year option was produced. The husband said a further five year extension was negotiated [in late] 2008. It was for the use of three acres of land on the four acre property. The rent was $350 per annum which included Mr [Matthews’] water and electricity usage.
8 Mr [Matthews] lodged a caveat over the property [in] August 2011. He said this was to secure a debt of $10,000 the husband owed him for legal fees.
9 On 16 January 2012 the court ordered that:
2 Until further order of the Court, the [husband] be restrained by injunction from leasing the real property or any part thereof or otherwise permitting any right of occasion of the real property or part of the property or otherwise encumbering the real property pending the completion of the sale apart from the issue of the alleged current lease in favour of [Mr Matthews].
…
5 Any monies owed by the [husband] to [Mr Matthews] by way of a debt be paid from the [husband’s] share of the nett proceeds of sale of the said property.
10 Mr [Matthews] lodged another caveat [in early] 2012. This, he said, was to secure his interest under the lease.
11 On 2 May 2012 the court made the following relevant orders:
1. Pursuant to Rule 6.03(1) of the Family Law Rules 2004, [MR MATTHEWS], be added as a second respondent (“the Second Respondent”) to these proceedings.
2. Pursuant to Sections 114(1) and 90AF(2)(b) of the Family Law Act 1975, within 35 days of the date of these orders, the [husband] serve such notice as may be required upon [Mr Matthews] to terminate any leasehold interest existing or purported to exist in respect of the property at [Town N] (“the property”), and being more particularly described as Lot … on Diagram … being the whole of the land comprised in Certificate of Title Volume … Folio … .
3. In the event that [Mr Matthews] seeks any expenses, damages or other compensation arising from the termination of any leasehold interest that exists or is purported to exist over the property in accordance with these orders, that [Mr Matthews] provide [the husband] within 35 days of the date of this order, particulars of any damages, expenses or compensation incurred.
4. Unless otherwise agreed between the [husband] and [Mr Matthews] that any expenses, damages or compensation incurred by [Mr Matthews] be paid by the [husband] from the [husband’s] share of the net proceed [sic] of sale of the property.
12 [In mid] 2012 the husband and wife entered into what they called a deed of settlement. The deed had been prepared by a solicitor in [Town N], [Mr E]. Mr Matthews said he acted as an intermediary in the preparation of the deed. The husband, and later the wife, explained the intent of the deed as being a “swap” of the entitlement the wife would receive pursuant to Penny J’s orders with an alternate amount of cash the husband anticipated receiving from his later mother’s estate. The husband’s mother died [in late] 2006, almost six years prior to the deed.
13 The deed was sent to the Family Court of Western Australia by Mr [Matthews]. A registrar of the court communicated with the parties to the effect that if they had reached an arrangement that was different to the existing orders they should enter into an application for consent orders and file this in the court.
14 The wife filed an application for consent orders [in] August 2012. She terminated her retainer with [X Lawyers] [in] August 2012. The application sought orders which would give effect to the deed of settlement. The application was signed by both the husband and the wife. The wife’s signature was witnessed by a lawyer. Both parties acknowledged they were aware of their right to have independent legal advice. The document shows the husband had such advice, but the wife did not.
15 At or about this time the costs the wife had incurred with her solicitors, [X Lawyers], dating back to the trial before Penny J were around $150,735. As a result of various orders for costs against the husband during those proceedings, which were either fixed or assessed, the wife stood to recoup $62,586 from him.
16 [X Lawyers] filed an application on 5 September 2012. It sought to be added as a respondent to the proceedings and that the application for consent orders, filed by the wife, be dismissed. It sought an amendment of the orders of 2 June 2009 to provide that it be appointed the trustee (in lieu of the wife) for the purpose of the sale of the property. It also sought that the husband vacate the property within 14 days of the date of a contract of sale.
17 The husband filed a response on 15 January 2013. He sought orders in terms of the application for consent orders and that [X Lawyers] pay any compensation sought by Mr [Matthews] as foreshadowed in the orders of 2 May 2012.
18 The matter ultimately came before Moncrieff J on 21 January 2013. During the hearing his Honour, after an exchange with the wife through an interpreter, said that it no longer appeared that the wife wished to vary the orders and that she wanted [X Lawyers] to press ahead with the sale of the property.
19 The following relevant orders were made by Moncrieff J on that day:
1 [X LAWYERS] be granted leave to intervene in these proceedings and henceforth be known as the Interveners.
2 Paragraph 1 of the orders made on 2 June 2009 be varied to provide that the Interveners be appointed trustee for the sale of the real property situate at [Town N] and being more particularly described as Lot … on Diagram … and being the whole of the land comprised in Certificate of Title Volume … Folio … (“the real property”).
3 Within 14 days of a Contract of Sale of the real property, the [husband] provide vacant possession of the real property.
4 Within 7 days from the date hereof, [Mr Matthews]:
(a) vacate the real property; and
(b) withdraw at his expense any Caveat for the lease registered by him or on his behalf in respect of the real property.
5 Within 14 days of the date of any Contract of Sale of the real property, [Mr Matthews] withdraw at his expense any remaining Caveat registered by him or on his behalf in respect of the [Town N] property.
6 Otherwise and within 7 days of a request from [X Lawyers], the [wife], the [husband] and [Mr Matthews] otherwise execute all such documents as may be required to procure a sale of the real property in accordance with these or any previous orders.
…
20 These orders were amended by Moncrieff J on 19 March 2013. The following order was inserted:
11 The Form 11 application filed by the [wife] on 2 August 2012 be and is hereby dismissed.
21 The hearing of 19 March 2013 was primarily to deal with the husband’s application for a stay of the orders of 21 January 2013, pending the hearing of his notice of appeal, which he lodged on 12 February 2013. Prior to dealing with this issue Moncrieff J signalled his intention to make a correction to the orders of 21 January 2013 in that they did not contain what his Honour referred to as the formal dismissal of the application for consent orders. His Honour amended the orders “pursuant to the slip rule”. He said it was clear that this was the intent and to that extent he made the amendment. His Honour then dismissed the husband’s application for a stay. From that time until March 2014 [X Lawyers] acted for the wife and in its own right, as trustee for sale of the property, participated in the proceedings. However, it did not file a notice of ceasing to act on the wife’s behalf until … December 2014 after being ordered to do so.
22 A contract for sale of the property was signed by Mr [Blanco] and [X Lawyers] on 1 February 2013. The sale price was $365,000. Settlement of the sale took place on 18 April 2013. After some disbursements, the proceeds of sale of $303,941 were held by [X Lawyers]. Further disbursements were made pursuant to court orders of 3 July 2013. The amount at 2 February 2016, including interest, was $304,113.09.
23 The Full Court heard the husband’s appeal on 1 November 2013 and delivered judgment on 17 June 2014. The appeal was allowed and orders 2 to 11 inclusive of the orders made 21 January 2013 (as amended) were set aside. At the hearing of the appeal no application had been made to set aside the sale of the property.
24 The orders made by the Full Court on 1 November 2013 relevant for this Court are:
…
(4) Any monies presently held by [X Lawyers] be retained in their entirety and not dispersed without an order of a judge of the Family Court of Western Australia.
25 By the time the matter came before this Court there was an application by the husband to set aside the sale of the property.
26 Mr [Blanco] was made a Third Respondent to the proceedings on the first day of trial. He filed an application on 5 March 2015 seeking, amongst other things, summary dismissal of the husband’s claim.
(As per original)
The Primary Judge’s Assessment of Credit
Having observed (at [32]) that the matter “involved a plethora of documents” and that a “careful, and time consuming, winnowing of all this was necessary to try and ascertain the nature of the parties’ claims and their particular factual basis”, her Honour turned to an assessment of the various parties and their evidence and motivations:
33 In [Manotis and Manotis] [2008] FCWA 9, Penny J noted at paragraph 9 “it is obvious that the husband is desperate to interpret any document he sees in a manner which he perceives is advantageous to himself”. This propensity to often misinterpret the content of documents made the identification of relevant evidence particularly difficult.
34 Mr [Matthews], in his affidavit material, identified himself as a … farmer. He made it known to the Full Court he had some legal training and [overseas] qualifications. He was described by the Office of the Public Advocate as a “former [professional] turned … farmer”.
…
45The wife was an unwilling participant in these particular proceedings. She said that she had originally made concessions in relation to children’s issues to extricate herself from ongoing contact with the husband. She only wanted a fair outcome for both her husband and her former solicitors.
46 The wife is of Thai origin. She came to Australia in 1998. She has limited English, especially in a legal setting. Not unusually, her oral and written comprehension appeared better than her ability to communicate verbally. When it was explored in evidence about how she communicated with the husband it transpired that they sometimes used gestures and sign language. The parties’ son does not speak Thai.
47 The issue of the wife’s understanding of the course of events up to trial, especially those relating to legal matters, was of considerable importance. It is clear that from time-to-time the wife had little understanding of what was going on. She received conflicting information depending on whom she spoke and what their agenda was. From time-to-time she had a friend of Thai origin, who spoke some English, take her to her legal appointments.
48 The Office of the Public Advocate produced a report [in early] 2015 in relation to an application for guardianship and administration made by the husband ostensibly on the wife’s behalf in the State Administrative Tribunal [in late] 2014. This application was withdrawn by the husband [in early] 2015. The report noted:
… [The wife] does not have a decision making disability or mental illness as described by the Act.
…
It does appear that there may be a need for [the wife] to have the guidance of an objective and independent authority when navigating the legal issues. [The wife] is a highly vulnerable woman due to her language limitations, cultural behaviour and lack of knowledge of Australia [sic] law.
(As per original)
Relevant Findings by the Primary Judge
In seeking to put the appeal and the husband’s arguments into context, it is also important to understand that her Honour found as follows:
56The Court’s assessment is that any failure lay not so much in the provision of interpreters but in the ability and desire of all parties, legally trained or otherwise, to explain concepts and causes of action, in which he or they had a personal interest, to the wife in an unbiased and careful fashion. I am not satisfied that even with interpretations and translations enough time was taken to fully explain to the wife the likely impact the content of certain documents may have on her. I include the husband, Mr [Matthews] and Mr [H] of [X Lawyers] in this.
…
60Realistically the wife played little part in these proceedings. She did give evidence and was cross-examined. As already noted she said she simply wished a fair outcome. Having heard her evidence I consider that she has adopted the path of least resistance given the manner in which her husband, the self-titled intermediary Mr [Matthews] and her own solicitor, Mr [H], have dealt with her. She has little relationship with her son, she works two or three jobs in order to survive and despite Penny J’s orders has little chance of receiving any of her entitlement. She did not articulate any particular orders she was seeking.
(As per original)
The Primary Judge’s Conclusions Relevant to the Appeal
Ultimately her Honour concluded:
404 During the course of this trial I made it clear that I considered the behaviour of the men involved in the wife’s life during the history of this matter to be open to criticism.
405 The genesis of this comment comes from my own assessment of the wife during this long and protracted matter which started in 2004. There is no doubt that the wife’s lack of skills in the English language has hampered her ability to negotiate her way through the legal quagmire. Rather than assisting I find that the husband, Mr [Matthews] and the wife’s solicitor, Mr [H] were, more often than not, intent on achieving their own aims rather than guiding her to a fair outcome. There is an obvious difference between the three. The husband and Mr [Matthews] had no professional obligation to the wife. My concerns are with her solicitor.
406 Some concerns arose during the course of the evidence. These revolve around the manner in which [X Lawyers] dealt with its client, the wife, and the proceedings generally. In summary these concerns include:
• a failure, to keep the wife advised of all developments in relation to her case. This included the failure to provide her with correspondence of a likely settlement proposal from the husband’s solicitor dated 6 December 2011. The letter was provided to her approximately six months later and this late delivery was explained as an oversight. As is apparent from the judgment, the wife’s attitude to this letter and the implications of it were pivotal to the way matters unfolded;
• a failure to take the time to properly explain intended legal actions and their consequences to the wife knowing she was vulnerable and had a difficulty understanding the process;
• whilst acting as trustee for the sale of the property, [X Lawyers] failed to advise the owner of the actual sale of the property until two weeks after the event. This was again explained as an oversight given the solicitor in charge, Mr [H], was on holidays. It had implications in that it reduced the time the husband had to leave the property and comply with certain legal requirements; and
• that as an officer of the court, Mr [H]:
• failed to draw the court’s attention to previous orders by a different judicial officer and which were in direct conflict with those about to be made. This relates specifically to an order in 2009 that the husband have sole occupation of the property until settlement as opposed to an order made 21 January 2013 that he vacate the property within 14 days;
• pursued its application to become trustee for the sale of the property when it had agreed to continue to act for the wife who was herself trustee for sale of the property. There was no need for [X Lawyers] to seek such appointment in its own right upon being reinstructed. I consider the action of pursuing its application once reinstructed created a tension between its interest in collecting outstanding legal fees and the wife’s interest in considering proposals for alternate outcomes and the sale generally;
• failed to moderate the tone of written communication, such as a letter dated 28 June 2012, to the wife knowing her inability to fully understand the content of the correspondence; and
• suggested the wife was not “competent” to give instructions when she terminated [X Lawyers’] services yet failed to take steps to ascertain this. When Moncrieff J arranged for the wife to reinstruct [X Lawyers] on 23 January 2013, [X Lawyers] then raised no concerns about the wife’s competence or indeed her ability to consent to have it reappointed as her solicitor.
…
408 The wife stands to receive nothing from the proceeds of sale of the property. Her legal costs are substantial. During the course of the proceedings orders have been made, from time-to-time, that the husband pay some of the wife’s costs. On those occasions the husband has taken steps to have the solicitor’s accounts either taxed or assessed. I accept that the accounts were reduced through that process, on occasion substantially.
409 I am concerned for the wife to have the same opportunity on the basis that after all these years she may retain little or nothing from her financial settlement due mostly to the actions of others. One opportunity is, at least, to have her accounts for legal fees properly considered.
(As per original)
Preliminary Orders Relevant to the Appeal
On 9 August 2016, Thackray J made orders directing the Appeal Registrar to receive and file a Notice of Appeal of the husband against the orders of Crisford J. The reasons for that order are not directly relevant to this appeal, but in the course of those proceedings, Dr Dickey QC submitted “that the deficiencies in the Notice were a secondary basis for the decision made by the Registrar [in rejecting the husband’s Notice of Appeal]”.[2]
[2]Manotis & Manotis [2016] FamCAFC 200, [11] (Thackray J).
His Honour described the existing grounds as “rambling” and provided an opportunity for the husband to file an amended Notice of Appeal having also said of the grounds in the original notice (at [19]):
… my preliminary perusal of this Notice of Appeal would indicate that it is largely constructed on an entirely false premise about the options that were available to Crisford J and an entirely false premise that her Honour somehow sought to overturn the decision of the Full Court, because manifestly she did not …
An amended Notice of Appeal was filed on 13 September 2016 and it is those grounds upon which the appeal proceeded.
On 19 May 2017, [X Lawyers] filed an application seeking security for costs in relation to the hearing of the appeal. That application was dismissed by Thackray J on 15 September 2017. During the course of his Honour’s reasons it was noted that “[t]he lawyers are a ‘thriving firm’, whose conduct in the litigation has been the subject of strong adverse findings made by the primary judge” (at [20]). His Honour also noted inter alia that “[t]he appeal [was] bona fide” and that “[t]he appellant has made a significant effort, as a self-represented litigant, to articulate appropriate grounds of appeal” (at [20]).
The Grounds of Appeal as Amended
We have carefully read the 33-page document to which we have earlier referred in which the husband sought to encapsulate the substance of his arguments. We will make reference to the arguments it contains in discussing the husband’s amended grounds of appeal.
It will be seen that some considerable latitude has been given to the self‑represented husband; many of the grounds of appeal simply attempt to re‑agitate issues dealt with during proceedings below, rather than pointing to any identifiable appealable error.
Ground 1:
I have an apprehension of bias against me from the decision of Her Honour Justice Crisford particularly by her comments at paragraphs 404 and 405 of her decision delivered on 26 February 2016 (Decision) and when read with paragraphs 47, 48, 53 and 56 of the Decision.
Each of the paragraphs of the trial judgment referred to specifically in this ground have been quoted earlier, save for [53]. That paragraph is as follows:
53The husband and Mr [Matthews] were highly critical of [X Lawyers] for a general failure to use interpreters and to facilitate the translation of documents given the wife’s limited familiarity with the English language and with legal concepts. [X Lawyers], after Mr [H] took over the conduct of the file very early on, used interpreters and had documents translated when it considered necessary. This included translation of the Rules, specifically in relation to disclosure. There was an allegation made by the husband that the wife had failed to comply with this obligation. Any affidavit material deposed to by the wife personally was also translated. I accept there was a balance between the cost of retaining interpreters and translators for every document and oral exchange and the wife’s need to be fully informed about her legal matters.
The husband sought to support this ground by the use of broad, non-specific assertions. For example, he said that her Honour possessed an “intense dislike of [him]”, that he was “unfairly treated” and that the proceedings were “anti‑[Mr Manotis]”.[3] We sought to have the husband explain to us with more specificity how those broader contentions were reflected in her Honour’s reasons and conduct during the proceedings. In doing so, the husband advanced three essential propositions.
[3]Appeal Transcript, 29 November 2017, p 60–62.
Firstly, the husband stated that although he was required to “obey and abide by each and every Family Court of Western Australia rule and regulation”,[4] X Lawyers had failed to comply with the requirements of r 15.10 of the Family Law Rules 2004 (Cth) (“the Rules”). The point appears to be that this alleged “leeway” given by her Honour in respect of X Lawyers’ compliance with the Rules, demonstrates apprehended bias against the husband and in favour of the solicitors.
[4]Appeal Transcript, 29 November 2017, p 50 ln 19 ff.
Secondly, the husband alleged that Crisford J “fawned” over Dr Dickey QC during the proceedings. That allegation is elucidated in the husband’s 33-page document:
19:1.A Tony Dicky “gabfest”. J. Crisford did commence the proceedings but within minutes; Dicky took the floor and ran the proceedings for the duration of the ‘trial’ such as it was.
…
19:4. FAWNING ( Old English: behave servilely; show extreme affection.) is a common trait from the F. C. Bench to Family Law Practitioners, as witnessed by the First Respondent in the last 14 yrs.
…
20.1:Normally, the ‘fawning’ from the Bench is minimal and straight forward, but is clearly evident to all court observers who open their eyes and ears.
20.2:From the Appeal Book; that was filed in March, 2009, Her Honour, Justice Penny made it clear that I ([Mr Manotis]) should have had LEGAL REPRESENTATION at the trial of July:2007 just like Mrs [Manotis’] legal team … (a trial that was totally unnecessary)
20.3: But the ‘fawning on Monday, the 10/03/14, was a totally different kettle of fish. J. Crisford was so in “awe” of this person Dicky: she just deferred to him and in effect, let him control the proceeding that morning. A case of the “tail wagging the dog.”
(As per original)
Finally, the husband alleges that her Honour prejudged the matter. That “prejudgment” is said to arise from the following statement made by her Honour on the second day of the proceedings:[5]
[Her Honour]: … I need to consider those matters, determine those matters, and then try and move forward so I can then finally make a determination on how the money in trust is to be disbursed. I think that’s at the end of it. That’s the – that’s what, really, we all want, isn’t it, a decision about how the money gets disbursed.
[5]Transcript, 10 March 2014, p 17 ln 48 – p 18 ln 3.
With all respect to the husband, we are entirely unable to see how, on any interpretation of what her Honour there said, there is any suggestion, much less demonstration of prejudgment.
We are similarly unable to see what is meant or meant to be implied by the assertion that the primary judge was “fawning” over Dr Dickey QC. A reading of the transcript reveals, with respect, her Honour doing no more and no less than according to each of the parties or their legal representatives an equal and appropriate form of appropriate courtesy and respect. Indeed, we would say with great respect to her Honour that the transcript reveals more patience and tolerance by her than might otherwise have been warranted by the difficult circumstances with which she was confronted.
The paragraphs of the reasons isolated by the husband contain findings neither more nor less dictated by the evidence before her Honour. We consider with respect that each and all of those findings were well open on that evidence.
Nothing to which the husband has taken us, nor any reading of the record by us otherwise reveals any proper basis by which a fair-minded lay observer would reasonably apprehend that her Honour did not bring an impartial and unprejudiced mind to the resolution of the matter.[6] It should also be observed that the husband did not raise any issue of bias during the (lengthy) trial process which, we observe, occurred with periods of adjournment.
[6]See, eg, Johnson v Johnson (2000) 201 CLR 488.
There is no merit in this ground.
Ground 2:
Her Honour Justice Crisford misinformed herself about the finding in “the Full Court Decision” (delivered 17 June 2014) that the “transaction”, being the sale of the Land to Mr [Blanco], “could not be undone” being a binding decision.
This ground has echoes of what Thackray J referred to in his reasons dealing with the preliminary matters earlier referred to.
The “finding” referred to in this ground is a reference to what the Full Court said in the reasons for judgment delivered on 17 June 2014:
103.The hearing in the present matter was attended by such procedural unfairness that the only proper order was to discharge all of the orders. In doing so, we recognised that the solicitors had already sold the property. And, as we explained to the husband, the property having seemingly been acquired by a bona fide purchaser, the transaction could not be undone.
(Emphasis added)
The husband contends that, in refusing his s 106B claim, her Honour considered this paragraph binding upon her. Attempting to reframe this as best we can in terms of recognised appealable error, the contention appears to be that in doing so, her Honour failed to properly consider the requirements of s 106B of the Family Law Act 1975 (Cth) (“the Act”).
The key word in [103] of the Full Court’s judgment is “seemingly”. The passage flags that, in the event that the husband sought to bring s 106B proceedings against Mr Blanco, he would face an apparent difficulty, namely that he was a bona fide purchaser. It was not necessary for the Full Court to decide that issue and they did not. Rather, as was sought to be explained to the husband, the setting aside of the orders by that Full Court did not bring with it the consequence that the sale would (or should) be set aside; a claim based in s 106B would need to be asserted and its elements proved.
It was her Honour’s task to assess the husband’s s 106B claim and she clearly did so. Her Honour properly referred to and discussed each of that section’s requirements. Her Honour found at [99] that “the sale of the property had the effect of defeating an anticipated order”. Her Honour was then required to consider separately whether to exercise the discretion and set aside the transfer. Her Honour plainly did so. Beneath the heading “Should the court set aside the transaction?” her Honour found:
103Given I consider the elements set out in s 106B(1) of the Act have been satisfied I need to now consider whether I should exercise the discretion and set aside the transfer. This is to be dealt with in the context of the legislative mandate that the Court must pay regard to the interests of, and make proper orders for the protection of, a bona fide purchaser or other person interested.
That done, her Honour proceeded to answer the question “Was Mr [Blanco] a bona fide purchaser?”. After a, with respect, detailed consideration of the circumstances surrounding the purchase of the property, her Honour answered that question in the affirmative:
136If the transaction was to be set aside then the likely outcome would be that the money in trust would need to be returned to Mr [Blanco] with any shortfall possibly made up by one or all of the parties, including [X Lawyers], given the allegations of breach of duty levelled at it. This was not a position canvassed at all during the course of evidence.
137Given the effluxion of time since the settlement of the sale and my finding that Mr [Blanco] is a bona fide purchaser, I intend to dismiss the application pursuant to s 106B of the Act.
It cannot be said that her Honour failed to independently consider the requirements of s 106B or felt in any way bound by the statement of the Full Court which, in any event, could not be seen as binding upon her Honour in any sense.
There is no merit in this ground.
Ground 3:
The Applicant “Wife” did not agree that the Form 11 Consent Order Application should be withdrawn despite an adjournment being allowed for that issue to be canvassed and I was confused in my answer to that question as demonstrated by her Honour’s recitation at paragraph 144 of my “evidence” on that issue which demonstrates my lack of understanding as a lay person in answering the questions put to me about that issue. I could not and did not separate out the “technical issues” Her Honour referred to and was denied procedural fairness in not being given an opportunity to consider that point in my capacity as “counsel” or to take advice about it as Dr Dickey recommended and Her Honour afforded Ms [Manotis] on that issue; see pages 56 to 58 of Transcript of 29 June 2015.
Ground 4:
Her Honour Justice Crisford does not give adequate reasons about why at paragraphs 141 to 143 she dismisses the Deed of Settlement as not being “just and equitable presumably against the tests in section 79 of the Family Law Act. And, paragraph 145 as it relates to that issue is contrary to Her Honour's findings at paragraphs 84, 355 to 357, 406 at “dot points” 6 and 8, 94, 95, 100 and 407 of the Decision and ignores the Full Court Decision at paragraphs 96 to 100 of that Decision.
It is convenient for Grounds 3 and 4 to be dealt with together. They relate to the application for consent orders filed by the husband and wife and the Deed of Settlement (“the Deed”) signed between them which underpinned that application.
Ground 4:
It aids in understanding the arguments in respect of both grounds if Ground 4 is dealt with first.
Ground 4 is founded on a false premise. Her Honour did not “dismiss” the Deed; her Honour dismissed the application for consent orders contained within the Form 11 Application signed by the parties.
The Deed was not in a form that could see it effective as a settlement of property between the parties under the Act. As is plain by its terms, the Deed was to be made the subject of an application for consent orders so as to effect the same. Clause 2(d) provided:
Both parties will use their best endeavours to ensure that the orders hereinbefore referred to, shall be varied by way of orders by consent such orders to give effect to the terms of this Deed.
Her Honour found:
141Although there had been some discussion by the [earlier] Full Court about the status of the deed of settlement, it was not the focus of the appeal. During the course of this rehearing there has been the opportunity to consider at length the content of the deed and the evidentiary context in which it was conceived. In relation to the foundation for the orders sought in the application for consent orders, I consider it to be vague and uncertain both as to detail and effect. In its present form, with the information provided, it does not provide a court with the confidence to say the outcome sought is just and equitable, especially given Penny J’s orders after trial.
142Importantly, despite the fact it was translated into Thai, I am far from satisfied that the wife received any independent and unbiased input into the advantages and disadvantages of the impact of the orders sought over the orders of Penny J. There were implications about which the wife was unaware.
143Given my decision about the s 106B application and the attitude of the parties in relation to the application for consent orders at trial, I see no good purpose to expand further.
There is no merit in the assertions as to her Honour making contradictory findings in the passages referred to specifically in the ground. With respect, the husband misconstrues what her Honour there said as, again with respect, he does in relation to the passages in the Full Court judgment to which he refers.
Her Honour’s reasons are more than adequate to permit identification of the path to the ultimate finding:
a)The application for consent orders could no longer be effective given that the property mentioned therein had been sold to Mr Blanco as a bona fide purchaser for consideration;[7]
b)The wife had not received “independent and unbiased input into the advantages and disadvantages of the impact of the orders sought over the orders of Penny J”;[8]
c)The consent orders were “vague and uncertain both as to detail and effect”. That finding appears to be premised on questions put to the husband by Dr Dickey QC in relation to paragraph 1 of the “Minutes of Orders Sought” annexed to the application for consent orders. That paragraph sought to discharge “[a]ll orders made subsequent to the 23rd January, 2008” which would have included all outstanding orders relating to costs against the husband and the dismissal of Mr [Matthews’] lease agreement.[9]
[7][137] and [147].
[8][142]; Transcript, 10 March 2015, p 23 ln 7–11.
[9][141]; Transcript, 29 June 2015, p 56 ln 46 – p 57 ln 29.
Those reasons must also be seen in the context of the husband apparently agreeing to withdraw the consent orders which is the subject of Ground 3.
Ground 3:
As best we can ascertain, Ground 3 asserts two matters recognisable as possible appealable errors. First, we think it is asserted that her Honour erred materially in fact in finding that the wife agreed to the withdrawal of the Form 11 Application for Consent Orders. Secondly, a lack of procedural unfairness is asserted by reason of her Honour failing to adjourn or otherwise provide a proper opportunity for the husband to consider “technical issues” relevant to withdrawing the application.
Dr Dickey QC concedes before us, correctly with respect, that “the Wife did not pursue her application for orders in terms of her Form 11 Application for Consent orders” and that “[i]t is true that the Wife did not withdraw her Form 11 for reasons that are somewhat obscure”.[10] Reference to the transcript justifies Dr Dickey QC’s assertion that her reasons “are somewhat obscure”.
[10] Fourth Respondent’s Summary of Argument filed on 17 November 2017 at paragraph 15.
Dr Dickey QC also argues that reference to the transcript demonstrates that “it is clear that she did not seek the consent orders at trial”.[11] That assertion is also correct. During the wife’s cross‑examination on 10 March 2015, the following evidence was given by her through an interpreter:[12]
DICKEY, DR: Okay. Mrs [Manotis], did you receive any legal advice in relation to the application for consent orders?
INTERPRETER: No. No, sir.
DICKEY, DR: Do you still want orders made in terms of the application for consent orders?
INTERPRETER: Which consent order? Is it to do with the swapping of the house?
DICKEY, DR: That’s right, yes.
INTERPRETER: Not – not at this stage, no.
(As per original)
[11]Fourth Respondent’s Summary of Argument filed on 17 November 2017 at paragraph 15.
[12]Transcript, 10 March 2015, p 23 ln 7–25.
The balance of Ground 3 appears to relate to a finding by her Honour at [144] to [146] of the reasons:
144Although at trial the husband was initially seeking that the Court make orders in terms of the application for consent orders he changed his position during cross-examination on 29 June 2015. To clarify the position the following exchange occurred between the Court and the husband:
HER HONOUR: Is that what you’re saying? That you want to withdraw the form 11 [application for consent orders]?---Well, yes. Obviously, that’s not under – hasn’t abided by the Family Law Act rules.
No. No. Just put aside the technical issues that you’re raising. Do you want to withdraw the form 11 [application for consent orders]? That’s all I’m asking?---Yes. That – it seems that it has caused - - -
No. No. All I’m asking you is do you want to withdraw - - -?---Yes. I will have it withdrawn because – yes.
145Although the wife filed the application for consent orders she later “reinstructed” [X Lawyers] who proceeded to sell the property. The wife’s real views about all of this are not known. I accept she was worn down by it all. However, at the very least she acquiesced to the sale of the property. Ultimately the property was sold by [X Lawyers] as trustee for sale rather than it merely conducting the sale for the wife as trustee for sale.
146There was nothing from the wife during the trial to suggest she would still pursue the “swap” anticipated by the application for consent orders.
The husband’s answers to direct questions by her Honour quoted at [144] will be noted.
At no time during the trial (which, as has been seen, occurred in several parts over a nearly 12-month period) did the husband seek an adjournment for the purpose about which he now complains. He had ample opportunity to do so. The husband, while self-represented, is an experienced litigant. At no time did he seek the opportunity to obtain legal advice about this issue. What was required of the husband in seeking to clarify his position did not involve any “technical issues” or give rise to any obligation on the part of the primary judge to explain any propositions of law; what was required of the husband was for him to make clear in his own words what his case was in this particular respect.
In any event, the question arises in the context of findings made by her Honour which are not the subject of challenge on this appeal. Prior to drawing the conclusions at [144] to [146] earlier quoted, her Honour found:
141… In relation to the foundation for the orders sought in the application for consent orders, I consider it to be vague and uncertain both as to detail and effect. In its present form, with the information provided, it does not provide a court with the confidence to say the outcome sought is just and equitable, especially given Penny J’s orders after trial.
142Importantly, despite the fact it was translated into Thai, I am far from satisfied that the wife received any independent and unbiased input into the advantages and disadvantages of the impact of the orders sought over the orders of Penny J. There were implications about which the wife was unaware.
Grounds 3 and 4 have no merit.
Ground 5:
Her Honour Justice Crisford misinformed herself about the law and contracts of sale at paragraph 8[[13]] of the Decision. Contrary to Her Honour’s finding a concluded sale of the property did not at law occur on 1 February 2013. It in fact and law occur on 18 April 2013.
[13] The reference to [8] of the primary judge’s reasons is an error and should plainly read [88].
The husband referred the Bench to the following paragraphs of her Honour’s reasons in respect of this ground:
88In relation to counsel’s argument about the transfer of the property taking place at settlement I consider that a concluded sale of the property took place on 1 February 2013. There was an offer and acceptance on that date and it was not subject to the obtaining of finance or the sale of another property. There was no obstacle preventing the conclusion of the sale at that time, although there may well have been some opportunity for Mr [Blanco] to apply to terminate the contract at a later stage if another less important condition was not fulfilled. I deal with this in more detail later in my judgment. I do not accept that 18 April 2013 was the date of actual sale but was the settlement of that sale.
…
174I note that although the husband called upon the Court to apply certain provisions of the Trustees Act 1962 (WA), s 27(1) and (2), and s 31. I do not consider those particular provisions have relevance here. The property was never vested in either of the two appointed trustees for sale. Ultimately there was a binding contract in place which governed certain aspects of the sale.
Having referred to these paragraphs, the husband contended that her Honour erred in law by failing to find that the contract of sale was concluded on the date the transfer took place, that is, 18 April 2013.
There is no basis for that contention. The established principles governing the creation of a valid contract need not be repeated here. It is sufficient to note her Honour’s finding at [88] that “[t]here was an offer and acceptance on that date and it was not subject to the obtaining of finance or the sale of another property”. Those findings are correct as reference to the contract for sale dated 1 February 2013 demonstrates. There was no suggestion that Mr Blanco had withdrawn from the contract by reference to any other condition of it.
Secondly, the husband contended both below and on appeal that X Lawyers, as trustees for the sale of property, were subject to ss 27(1), (2) and 31 of the Trustees Act 1962 (WA). The husband stated the following during the course of making his oral submissions on appeal:[14]
[The husband]: It’s wrong because the issue of being vested or non-vested trustees doesn’t – is irrelevant. What is relevant is were [X Lawyers] bona fide trustees? Did they – they’re – they’re – were they bound to carry out their – fiduciary duty, as in – there’s an example there, Gaunt and – I use an example of what a prudent trustee should – needs to do. The question then becomes – and it’s all what they call aerial gymnastics – but they were the trustees. Whether they were non-vested, or not, is irrelevant. Did they act as bona fide trustees?
(As per original)
[14]Appeal Transcript, 29 November 2017, p 27 ln 38–47.
The husband’s assertions are, with respect, misguided. The statutory provisions to which the husband refers are expressly premised on the relevant property “being vested in [the trustee]” and “[w]here a trust for sale or a power of sale of property is vested in a trustee”.[15] Her Honour deals with this issue at [174]–[180] of the reasons, holding relevantly:
175The scope of a trustee for sale’s non-fiduciary duties is limited to that which is contained in the orders providing for the appointment (see Parry and Deakin [2013] FamCAFC 12).
…
180[X Lawyers] was appointed trustee for sale for the specific purpose of selling the property. [X Lawyers] was simply a repository of the power set out in the orders for sale. This is often described as a “mere” trustee for sale. The scope of [X Lawyers’] responsibility was defined by the orders.
[15]Respectively, ss 27(1) and 31 of the Trustees Act 1962 (WA).
Her Honour is, with respect, correct. The property did not vest in X Lawyers. The statutory provisions to which the husband refers had no application and her Honour correctly so found.
Thirdly, the husband also asserts by this ground that X Lawyers had backdated the contract of sale to reflect an earlier date.
The husband says that this is evidenced by an inconsistency between the contract of sale and a later document signed by Mr Blanco on 13 February 2013 which the husband referred to as “the new offer”.[16] With respect, it was no such thing. The contract of sale referred to an inspection of the property having occurred in January 2013. The 13 February document states that Mr Blanco “was unable to enter the property at this prearranged time”. The contract was affirmed and performance of its terms was required. The 13 February letter contained the following:
I have no intention to withdraw from the Offer and Acceptance contract as [sic] this time. What I request is a viewing of the property when it is vacant at the earliest convenience, for the locks to external entries to be replaced, to be compensated for the items that have and may yet be removed from the property and for the delivery and removal of skip bins.
[16]Appeal Transcript, 29 November 2017, p 29 ln 24–26 and Appeal Transcript, 29 November 2017, p 30 ln 20 and 42.
Otherwise there was no evidence and only speculation founding the unsubstantiated assertion that X Lawyers had backdated the contract as her Honour, with respect, correctly found:
202This leads into whether the offer and acceptance dated 1 February 2013 was actually completed on 5 February 2013 but backdated to read 1 February 2013 in order to stymie the attempts of [Ms P’s] to purchase the property. The evidence about the manner, including the order in which Mr [Blanco] in [Town N] signed the offer and the directors of [X Lawyers] in [Town B] signed the acceptance on the same day was a little unclear. However, I did not find this to be persuasive evidence of dishonesty and fraud. Any evidence advanced in relation to this by the husband and Mr [Matthews] was simply speculative. I am satisfied the contract was executed on 1 February 2013.
There is no merit in this ground of appeal.
Ground 6:
Her Honour Justice Crisford, in all the circumstances placed too much weight on the effluxion of time on her consideration of the section 106B Family Law Act 1975 elements and not enough weight on the interests of “the Wife”, who then stood to gain nothing, and the Husband and further too much weight on the “interests” of [X Lawyers] (to get paid).
Ground 6 is, again, in our view based on a false premise. Leaving aside the difficulties confronting an appellant challenging the attribution of weight, in our view it is simply not correct to assert effluxion of time was given greater weight than the interests of other persons as s 106B requires. A fair reading of her Honour’s reasons makes it abundantly clear that the predominant reason for not exercising the discretion to set aside the transfer of the property is that it was made to a bona fide purchaser for value (Mr Blanco).
If the transaction was set aside, Mr Blanco would be required to vacate a property in which he had been in possession for almost three years. The effluxion of time simply bolstered her Honour’s consideration of Mr Blanco’s interests as was required by s 106B(3).
Her Honour was, with respect, plainly correct in her application of s 106B’s requirements and, in taking proper account of the same, according fundamental importance to the rights of a third party bona fide purchaser for value.
Equally, and contrary to the husband’s arguments, her Honour properly considered the interests of other persons interested as the section requires, including the wife. It is in our view simply incorrect to say that the interests of X Lawyers were given too much weight. The passages from her Honour’s reasons relating to their conduct and to the conduct of others contrary to the interests of the wife earlier quoted each pertain.
This ground has no merit.
Ground 7:
Her Honour Justice Crisford erred in law and fact in finding that [Mr Blanco] was a bona fide purchaser (one who was a third party purchaser for value without notice of the First Appellant’s claim in relation to the purchase of the premises [in Town N] (“the Premises”).
Particulars
(a) Her Honour erred in fact in finding that Ms [P’s] offer came in too late when there was contradicted evidence (Ms [P’s] Affidavit) that on the morning of 4 February 2013, [X Lawyers] real estate agent told Ms [P] that the Premises were “ under offer” (as distinct from being sold); and
(b) further, in the circumstances, an inference should have been drawn that Mr [Blanco] should have been aware of issues between [X Lawyers] and the Appellant considering he had first made an offer on or about [mid] 2011 and had been an interested person since that time.
Her Honour’s consideration of whether Mr Blanco was a bona fide purchaser is at [106]–[133] of her reasons for judgment. In Heath and Heath (No. 2) the Full Court said:[17]
… the test of bona fides is whether the [respondents] at the time [of making the disposition were] aware, or should have been aware by making due inquiry, that the disposition would be likely to defeat the claim of the [husband and wife].
[17](1984) FLC 91-517, 79,195.
Paragraph (a) of the particulars referred to above alleges that Mr Blanco was not a bona fide purchaser because three days after the contract was entered into, a prospective purchaser, Ms P, was told that the property was “under offer”. What has already been said above at [68]–[70] of these reasons pertains.
There is simply no admissible evidence to suggest other than that the contract was anything but finalised on 1 February 2013, or that the contract was backdated. Her Honour correctly found that to be the case and correctly found as a consequence that Ms P’s offer “came in too late”. Paragraphs [203] to [208] of her Honour’s reasons pertain and no error is contained within them.
Paragraph (b) of the particulars suggests that her Honour should have “drawn an inference” that Mr Blanco was aware of the court proceedings since June 2011 and therefore was not a bona fide purchaser. The husband’s reasons for that conclusion remain, with respect, opaque. The husband does not point to any error in her Honour’s approach nor in any erroneous findings of fact.
Further, her Honour found:
119Mr [Blanco] presented as rather startled to find himself in such a confused and difficult situation given he had only sought to acquire a property. I found nothing dishonest about the manner in which he gave his evidence.
…
132… there was simply no evidence to suggest anything inappropriate in the dealings between the agent and the purchaser, Mr [Blanco]. It was purely a business transaction. At that stage Mr [Blanco] was not involved in the court proceedings or the events that surrounded them. He had little idea of what was going on in the court.
133Mr [Blanco] wanted to purchase the property and was willing to increase his initial offers to within an acceptable range based upon current market value. His particular interest in the property stemmed from the fact it adjoined his parents’ property. There was considerable difficulty in securing the sale of the property given the husband’s desire to retain it. Even after the settlement of the sale of the property there has been considerable difficulty for Mr [Blanco], including the need for him to engage in these court proceedings, in order to try and retain what he considered to be a purchase in the normal course.
Nothing to which the husband has taken us to nor anything we have seen for ourselves in the record suggests that these findings are anything other than correct.
There is no merit in this ground.
Ground 8:
Her Honour Justice Crisford’s decisions about the Form 11, Deed of Settlement and “the Wife’s” “acquiescence” to the sale of the Land and her section 106B conclusions are contrary to her findings at paragraphs 94 and 95 of the Decision and the references therein to paragraphs 83 to 90 of the Full Court Decision, which she adopted and which were binding on her, and paragraph 95, 99 and 102 of the Decision.
Ground 9:
Her Honour Justice Crisford ignores the effect of paragraphs 93, 94 and 95 of the Full Court Decision and repeats the mistakes therein identified in relation to the Deed of Settlement and, therefore, its relationship to the Form 11.
Ground 10:
Her Honour Justice Crisford ignores the effect of paragraphs 99 and 100 of the Full Court Decision in her finding about the limitation of [X Lawyers’] duty to “the Husband”.
It is again convenient to deal with Grounds 8, 9 and 10 together.
Again, each and all of these grounds are based on a false premise – or, more accurately, a series of false premises.
Contrary to that which is apparently asserted:
a)No part of the decision by the Full Court in the earlier appeal which set aside Moncrieff J’s orders ruled or purported to rule on any of the matters to which the grounds refer;
b)That appeal was allowed because the husband was not afforded procedural fairness in specific respects; and
c)In remitting the matter to be reheard, the Full Court did not, and did not purport to fetter the discretion of the (new) trial judge to hear and determine for himself or herself the issues in dispute.
We repeat in this context what we have said in respect of Ground 2. We also refer again to [141] of her Honour’s reasons which we have earlier quoted.
There is no merit in this ground.
Given that her Honour refused to reverse the sale of the property, the Full Court’s comments at [99]–[100] are irrelevant.
This ground is dismissed.
Ground 11:
Her Honour Justice Crisford was wrong in law in disregarding the truth of the valuation being Exhibit 61.
On 3 May 2011, a valuation report was prepared by “XYZ” acting on the instructions of X Lawyers. That report valued the property at $365,000.[18] About a year later in May 2012, a valuation report was produced by “ABC”, on the husband’s instructions, which recorded the market value at $430,000.
[18]An updated valuation was prepared in mid-2012 which reaffirmed that value.
The insuperable difficulty confronting the husband is that the ABC valuation was never accepted into evidence at the trial. Counsel for Mr Blanco correctly submitted that the ABC valuer did not ever swear an affidavit. As a consequence not only was the opinion of value never sworn to, but nor were the valuer’s qualifications and experience. Further, the valuer was not called by the husband to give oral evidence. Axiomatically, there was no opportunity to challenge his asserted opinion.
We should mention that the ABC valuation was marked as an exhibit by the primary judge. However, it is clear from an exchange between Crisford J and Dr Dickey QC that this was only done so as to enable her Honour to have reference to a document “which [had] been the subject of correspondence or dispute”. In this regard her Honour made it clear that allowing the document as an exhibit “would be useful ... not as to the truth of it, but simply to the fact that there was a valuation that was different”.[19]
[19]Transcript, 10 December 2015, p 54.
Of course, valuations aside, her Honour had before her the best evidence of market value, namely what the market was prepared to pay in the form of an unconditional contract for the sale of the property.
There is no merit in this ground.
Ground 12:
Her Honour Justice Crisford should have set aside the contract of sale pursuant to either section 106B of the Family Law Act, or the general law and should have found a broader liability of [X Lawyers] to “the Husband”.
This ground alleges no discernible appealable error and, beyond what has already been expanded upon in the consideration of the husband’s other grounds of appeal, neither his written or oral arguments elucidate any such error.
There is no merit in this ground.
The Written Submissions of Mr Matthews
As noted previously in these reasons, following his non-attendance at the appeal proceedings, Mr Matthews was ordered to file written submissions in response within 90 days of the hearing. Relevantly, following the hearing of the appeal and the order being made, the Appeals Registrar forwarded to Mr Matthews a copy of all written submissions in addition to the husband’s 33‑page document.
Mr Matthews in his submissions states that he requested from the Appeals Registrar “a transcript of the appeal”. Mr Matthews further states that:
… as of the 23/1/2018, I have not received a transcript and therefore whatever I submit to the Full Bench, will be done, without the knowledge of what transpired during the appeal hearing.
It is noted that Mr Matthews was afforded a significant indulgence in being permitted to file written submissions despite his non-appearance during the appeal proceedings and despite a history of him not appearing before the Court when required on previous occasions.[20] In relation to the provision of a transcript by the Appeals Registrar, the following is noted:[21]
3.… On very few occasions orders are made in this Court for the provision of transcript. There is no reference to such provision in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (Cth). The Rules specifically place the obligation on an appellant to provide the transcript, as was discussed in Andrews v Andrews (Re: Subpoena) (2007) 37 Fam LR 358.
4.There are a number of reasons the Court does not provide transcripts, not the least of them the considerable expense. It is understood that many litigants are unable to afford the transcript themselves, and we are entirely mindful of that …
[20]For examples of Mr Matthews’ non-attendance during the proceedings below, see [37]–[43] of her Honour’s reasons.
[21]Raske & Butler (No. 2) [2013] FamCAFC 101.
Nothing in Mr Matthews’ written submissions convinces us that his circumstances justify a departure from the usual stance taken in relation to transcripts in this Court or that he is prejudiced by its absence.
Many of the assertions contained in Mr Matthews’ written submissions mirror those asserted by the husband in his appeal material. As but some examples:
a)The primary judge “had a predetermined narrative and I had a predetermined place in that narrative”.
b)He “was greeted with a scowl and … yelled at”.
c)“Dr. Dickie [sic] was having and arranging clandestine meetings with Mrs [Manotis’] translator, a translator who failed to report these meeting to the Court.”
d)He was denied the opportunity to “cross-examine Mr [H] of [X Lawyers]” and “therefore, the opportunity that the Full Bench wanted to afford me”; and
e)He was never given “notice to be prepared to give closing arguments” and therefore “had not the time or the materials to do so”.
For the reasons already given, these submissions are either irrelevant or have no foundation. They do not further inform our decision in respect of this appeal.
Submissions Filed by the Husband in Response
On 20 February 2018 the husband filed written submissions in response to submissions filed by Mr Matthews. Those written submissions are 87 pages, including over 70 pages of annexures. With respect, the husband’s submissions are, again, confusing. Many of the assertions made are baseless and in any event irrelevant to the issues on the appeal. The husband responds paragraph‑by-paragraph to Mr Matthews’ submissions. As we have already found, many of those submissions are themselves baseless and irrelevant to the issues on the appeal. Nothing contained in the husband’s further submissions alter our decision in respect of this appeal.
Conclusion
Appeal number WA 13 of 2016 has no merit and must be dismissed.
Application for Extension of Time to file Appeal No. WA 18 of 2016
On 19 September 2016 the husband filed an Application in an Appeal seeking an extension of time to file a Notice of Appeal in respect of the order made by Crisford J on 26 July 2016. That order required the payment of costs by the husband to Mr Blanco “on a party and party basis, to be assessed if not agreed”.
On 17 November 2016, Thackray J ordered that the hearing of that application be adjourned to the hearing of the substantive appeal. The Notice of Appeal was received by the FCWA seven days after the 28 day limit prescribed by the Rules.
On 15 May 2017 the husband filed an amended application, and that is the application now before this Court.
The principles governing an application for an extension of time to file a Notice of Appeal are well settled and emanate from what was said by McHugh J in Gallo v Dawson.[22] In Joshua v Joshua[23] Lindenmayer J stated that, when considering such an application:
… the first and most important question to be determined … is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation …
[22](1990) 93 ALR 479, 480.
[23](1997) FLC 92-767, 84,440.
Notably however, “the fundamental issue in this application is whether [granting the application will enable the court] to do justice between the parties”.[24] Such considerations, as outlined by Lindenmayer J, are “not to be treated as legislative directions” and ultimately the application requires the application of judicial discretion.[25]
[24]Bant & Clayton [2014] FamCAFC 108, [10].
[25]Tormsen and Tormsen (1993) FLC 92-392, 80,018; See also, Bant & Clayton [2014] FamCAFC 108, [11].
Is there a substantial issue to be raised on appeal?
The husband referred us to a document contained in the appeal books which was said to encapsulate the arguments upon which the husband sought to rely.[26]
[26]That document is entitled “Response by the First Respondent to Submissions for Costs by the Third Respondent” filed on 20 May 2016.
With all due respect to the husband, and again noting that he is self-represented (albeit an experienced lay litigator), the document can be described as asserting that the primary judge was wrong and thereafter reciting all of the arguments advanced before her.
Yet again, there is also the recitation of a litany of claims against the integrity of the court and its judicial officers generally. Again, bias is alleged. Again, the conduct of X Lawyers to which her Honour referred in the passages quoted earlier is complained of, and other more generalised accusations of impropriety are made.
It is said that the husband should have been given the opportunity to obtain legal advice in relation to adding Mr Blanco to the proceedings. If he had done so he would have had the opportunity to object to Mr Blanco being joined. That assertion is baseless. The husband was seeking to set aside the sale to Mr Blanco. He sought to be a party and it was plainly correct that Mr Blanco was made a party (as her Honour found).
Ultimately, her Honour’s costs order was based on the conclusion that the husband’s application had some merit but that merit related only to X Lawyers. He was wholly unsuccessful in the claim against Mr Blanco.[27] All of the material before us suggests that her Honour was correct in so finding, and also correct in finding that, otherwise, the matters referred to in s 117(2A) of the Act justified the exercise of her discretion in favour of the costs order which she made. The awarding of costs is quintessentially discretionary.
[27]See, the Reasons of Crisford J delivered on 27 July 2016, [80]–[81].
We consider that, if an extension of time was granted, the appeal would have negligible prospects of success.
That powerful consideration is bolstered by what we consider to be a need to bring over 14 years of litigation to an end. The wife is now deceased. Mr Blanco and X Lawyers are third parties to an action which commenced life as an application for consent orders for settlement of property.
Thus while we do not consider that the delay and the reasons for it count against the exercise of discretion in the husband’s favour and while no specific prejudice is asserted (save perhaps that any costs order would not bear fruit), we are not persuaded that leave should be granted.
The husband’s application should be dismissed.
Costs
The husband has been wholly unsuccessful in the appeal and in his application. Indeed, in our opinion, both the appeal and the application enjoyed little prospects of success from their outset.
We have taken account of the husband’s financial circumstances as outlined broadly by him. He asserts them to be modest. However, “[t]hat a party is impecunious, even indigent, is not a bar to the making of a costs order if the Court is otherwise of the opinion that such an order ought to be made”.[28]
[28]Nada & Nettle (Costs) (2014) FLC 93-612, 79,589, [11]; See also, Lenova & Lenova (Costs) [2011] FamCAFC 141 in the context of written offers to settle.
The conduct of X Lawyers up to and including the trial was the subject of significant adverse comment by the primary judge. Despite the husband’s broad allegations against them – some of which are justified as the primary judge clearly found – no such comments can be directed to their conduct specific to this appeal. It was open to them – particularly in light of their submissions to Thackray J as to the apparent lack of merit in the appeal and its grounds – to abide by the orders of this Court and not thereby incur any substantive costs. Equally, the (financial) interests they sought to protect in upholding her Honour’s decision are of significance. On balance they should have their costs.
Mr Blanco’s role in the trial was that of a third party bona fide purchaser for value seeking to protect property properly acquired. His role in the appeal in seeking to uphold her Honour’s judgment was identical. He should have his costs as well.
Mr Matthews’ participation in the appeal was restricted to irrelevant and unhelpful written submissions in seeking to uphold her Honour’s judgment, and were provided as the result of an indulgence granted to him. There is no suggestion that he has incurred any legal costs. No order for costs in his favour will be made.
No party provided any basis upon which the court might fix any costs relevant to them, which is the court’s preferred position. It seems to us appropriate that the husband be given 90 days to pay the costs we propose to order which, if the relevant amounts cannot be agreed will be assessed.
I certify that the preceding one-hundred-and-twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy & Kent JJ) delivered on 21 February 2018.
Associate:
Date: 21 February 2018
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