MELTON & MELTON
[2013] FamCAFC 189
•29 November 2013
FAMILY COURT OF AUSTRALIA
| MELTON & MELTON | [2013] FamCAFC 189 |
| FAMILY LAW – APPEAL – COSTS CERTIFICATES – where at the hearing of the appeal proposed consent minutes of order were tendered to the Court finalising the appeal – where the husband and the wife made oral applications for costs certificates to issue under the Federal Proceedings (Costs) Act 1981 (Cth) – where all of the necessary conditions for the granting of costs certificates are satisfied – orders made as sought. |
| Federal Proceedings (Costs) Act 1981 (Cth) ss 6 and 9 |
| Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 B and B (Costs Certificates) (2007) FLC 93-339 Cramer v Davies (1997) 72 ALJR 146 |
| APPELLANT: | Mr Melton |
| RESPONDENT: | Ms Melton |
| FILE NUMBER: | LEC | 461 | of | 2009 |
| APPEAL NUMBER: | NA | 5 | of | 2013 |
| DATE DELIVERED:: | 29 November 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Ainslie-Wallace and Kent JJ |
| HEARING DATE: | 25 November 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 25 January 2013 |
| LOWER COURT MNC: | [2013] FMCAfam 60 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kirk SC |
| SOLICITORS FOR THE APPELLANT: | Christopher Hughes & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr North SC |
| SOLICITORS FOR THE RESPONDENT: | Simonidis Steel |
IT IS ORDERED BY CONSENT:
That the Appeal be allowed.
That the Orders made by Judge Demack (then Federal Magistrate Demack) on 25 January 2013 be set aside and the following orders be substituted therefor:
1.That within fourteen (14) days of the date hereof, that the Wife do all acts and things and sign all documents to transfer to the Husband, all her right title and interest in the property located at M in the State of New South Wales (“the M property”), and simultaneous with the transfer, the Husband shall do all acts and things, pay all monies to release the Wife from the Guarantee given by her over that property.
2.That within fourteen days (14) days of the date of the Orders the Wife will transfer to the Husband all shares held by her in F Pty Ltd and the Husband indemnify the Wife in respect of any liability that may arise as a result of her involvement as a shareholder and guarantor and use his best endeavours to have any guarantee given by her in respect of the operation of the said company to be released.
3.That the parties do all things and sign all documents necessary to effect the sale of the property located at W in the State of New South Wales (“the W property”) on the following terms and conditions:
(a) Mr S of C Real Estate (“the agent”) be appointed to sell the W property;
(b)The property be listed forthwith at $590,000 but the parties are bound to accept any offer of $580,000 or more;
(c)In the event that the W property fails to sell within 12 weeks of listing by private treaty then the property is to be sold by public auction unless otherwise agreed in writing by the parties;
(d)The auctioneer be as agreed between the parties and failing agreement as appointed by the agent;
(e)That the reserve price be $560,000 or as may otherwise be agreed in writing between the parties;
(f)That if the property fails to sell at the first public auction then the parties should do all things necessary to secure a second and, if necessary, a further subsequent public auction (s) for the property upon like terms as set out in the preceding sub paragraphs of these Orders, provided that at each subsequent auction of the property, the parties instruct the agent and/or auctioneer to reduce the reserve price by 5% or at such other rate of reduction as may be agreed in writing between the parties and the auction shall be held as recommended by the agent/auctioneer until such time as the property is sold;
(g)That upon settlement of the sale of the property the proceeds of sale are to be disbursed in the following manner and priority:-
(i) To pay all sales costs including, but not limited to, real estate agents and auctioneers costs and the legal costs of sale;
(ii) To pay costs associated with securing the discharge of the mortgage to the National Australia Bank held against the property save that the Husband shall be liable to pay any debt or interest secured against that property and indemnify the Wife for the same and the parties shall execute all documents required to effect the said discharge;
(iii) To pay such land tax as may be owing at the date of sale;
(iv) To meet any outstanding rates, insurance, water, electricity and gas accounts on the property which becomes first due and payable on the date after the date of these Orders such to include reimbursement to either party paying any such accounts between the date of these orders and the date of sale. The Husband shall otherwise indemnify the Wife with respect to any such accounts on the property now outstanding and payable;
(v) The balance be paid to the Trust Account of the solicitors for the Wife to be distributed to the Husband and the Wife such as to effect an overall division of property of 57.5% to the Wife and 42.5% to the Husband based upon the asset pool and distributions set out in the following Table:
| ITEM | DISTRIBUTION | ESTIMATED AMOUNT |
| The M Property | H | $820,000 |
| NAB Mortgage - M property (approx) | H | ($636,184) |
| Range Rover | H | $105,000 |
| Monies owing on Range Rover | H | ($54,330) |
| Boat | H | $20,000 |
| The A Property | W | $690,000 |
| The net proceeds of sale of the W Property | In accordance with 3 (g) (v) | |
| Superannuation | H | $186,205 |
| Superannuation | W | $147,681 |
| Mazda | W | $15,000 |
| IAG and Telstra Shares | W | $1,336 |
| Husband Bank | H | $2,000 |
| Wife Bank | W | $4,200 |
| Part Property Settlement Husband | H | $45,000 |
| Part Property Settlement Wife | W | $15,000 |
| F Pty Ltd | H | $330,756 |
| Monies from X Dispute | W | $36,520 |
| TOTAL |
4.That save as otherwise provided by these orders the Wife shall receive/retain the following property:
(a)Her superannuation interest in the J Superannuation Fund;
(b)The A property;
(c)Her Mazda motor vehicle;
(d)Her AMP Life Insurance Policy;
(e)Monies in her bank accounts;
(f)The IAG shares;
(g)The Telstra shares;
(h)The part property settlement received by her in her possession.
(i)The money from the X dispute.
5.That save as otherwise provided by these orders the Husband receive/retain the following property:
(a) His interest in the J Superannuation Fund;
(b) The M property;
(c) The Range Rover subject to the debt owing to V Financial Services;
(d) Boat;
(e) Monies in his bank account;
(f) The part property settlement received by him;
(g) His interest in F Pty Ltd;
6.That except as set out herein, each party is solely entitled to the exclusion of the other, to all real and personal property of whatsoever nature and kind in their possession, control or name as at the date of these Orders.
7.That except as set out herein, each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
8.That the costs of transfer of property pursuant to these Orders are to be met by the transferee.
9.That each party shall do all acts and things reasonably required by the other, including the signing or execution of all necessary documents, to give effect to the provisions of these Orders, within fourteen (14) days of having been requested to do so.
10.That in the event that either party refuses or neglects to sign any document or do any act necessary to give effect to the terms of these Orders (within seven (7) days of a written request to do so), the Registrar of the Federal Circuit Court of Australia or the Family Court of Australia, is hereby appointed under section 106A of the Family Law Act 1975 to sign or execute all such documents on behalf of the defaulting party and to do all such acts and things as are necessary to give validity and operation to the said Orders.
11.That the Wife’s Application for spousal maintenance be dismissed.
12.That the Wife’s Application for a child support departure be dismissed.
13.That each party pay his or her own costs of and incidental to these proceedings.
AND IT IS FURTHER ORDERED:
Each party bear their own costs of the appeal.
The Court grants to the husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband in respect to the costs incurred by the husband in relation to the appeal.
The Court grants to the wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife in respect to the costs incurred by the wife in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Melton & Melton has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 5 of 2013
File Number: LEC 461 of 2009
| Mr Melton |
Appellant
And
| Ms Melton |
Respondent
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 29 August 2013 Mr Melton (“the husband”) appealed against property settlement orders made by Federal Magistrate Demack (as she then was) on 25 January 2013. Ms Melton (“the wife”) was the respondent in that appeal.
On 8 April 2013 a directions hearing was held by the Regional Appeal Registrar when orders were made to prepare the appeal for hearing.
On 23 July 2013 the husband filed and served the necessary appeal books for the hearing of the appeal.
The appeal was subsequently listed for hearing before this Court on
25 November 2013.
On 29 August 2013 the husband filed his written outline of argument and on
2 October 2013 the wife filed her written outline of argument and list of authorities.
On 25 November 2013 the appeal was called on for hearing before us, but the senior counsel for each of the parties sought that the matter be stood down for certain negotiations to be undertaken. Those negotiations were successful and when the hearing resumed, proposed consent minutes of order were tendered to us finalising the appeal. At the same time both senior counsel made oral applications for costs certificates to be granted to the husband and the wife respectively under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”). Those applications are now before us for determination.
Discussion
The relevant sections of the Costs Act are s 9 for an appellant, and s 6 for a respondent, and as was identified in B and B (Costs Certificates) (2007) FLC
93-339, there are three matters which by reference to those sections must be satisfied before a costs certificate can issue, namely:
a)the existence of a Federal appeal;
b)that the appeal has succeeded on a question of law; and
c)that the court concerned should have “heard” the appeal.
In addition, pursuant to s 9(1)(b) of the Costs Act, for a certificate to issue to an appellant, each party has to bear his or her own costs of the appeal. That requirement is satisfied here in that neither party has sought an order for costs, and in the circumstances of the appeal it is appropriate that each party should bear their own costs.
Turning then to the three matters arising from ss 9 and 6 of the Costs Act, it is beyond doubt that the first of those matters is satisfied here. As to the third requirement, any question about that has also been authoritatively determined by the Full Court in B and B, relying in turn on the judgment of Kirby J in Cramer v Davies (1997) 72 ALJR 146. Kirby J’s broad interpretation of whether a matter has been heard or not, was that to be “heard” the matter only need be listed before the court so that it may dispose of the appeal in a public and formal manner. That interpretation was adopted by the Full Court in
B and B.
On this basis it is readily apparent that this requirement is also satisfied here.
With the second matter, the appeal against the orders made by the Federal Magistrate is to be allowed by consent, and those orders will be set aside with new orders being substituted therefor. In his oral submissions, senior counsel for the husband suggested that there were a number of errors of law made by the Federal Magistrate, and on the basis of which the appeal had to succeed. For example, in paragraph 13 of her Honour’s reasons for judgment the Federal Magistrate referred to “the ascribed value” of the home at W where there was in fact no ascribed value, the Federal Magistrate suggested that the wife was seeking that that home be transferred to the husband when not only the wife but also the husband sought that it be sold (and further noting that in the end result her Honour ordered that that home be transferred to the wife), and the Federal Magistrate indicated that she could “simply use the value found by the joint expert” when in fact there was no joint expert. These were all errors conceded by the wife and they are clearly errors of law; there is no evidence to justify the making of the findings, and the making of findings and the drawing of inferences in the absence of evidence is an error of law (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355-356). Given this, the second requirement is also satisfied here.
Conclusion
All of the necessary conditions for the granting of costs certificates are satisfied and we are content to make the orders sought.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Kent JJ) delivered on 29 November 2013.
Associate:
Date: 29 November 2013
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