Mitty & Mitty and Ors
[2010] FamCAFC 256
•22 December 2010
FAMILY COURT OF AUSTRALIA
| MITTY & MITTY AND ORS | [2010] FamCAFC 256 |
| FAMILY LAW – APPEAL – From a Family Court Judge – Where a Judicial Registrar ordered that the husband pay an equivalent amount to his wife on account of legal costs he paid to his own solicitors (referred to as a “dollar for dollar” order) – Where the husband paid a sum to his solicitors without the equivalent sum having been paid to the wife – Where trial Judge ordered that the payment by the husband to his solicitors should be set aside pursuant to s 106B of the Family Law Act 1975 (Cth) and a payment to the wife be made – Leave to appeal sought from an interlocutory order of a trial Judge – No error in principle established – Application for leave to appeal dismissed – Where substantive property proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) have been withdrawn FAMILY LAW - COSTS – the husband pay the wife’s costs of an incidental to the appeal, quantified at $4,000.00 |
| Family Law Act 1975 (Cth) s 106B Legal Profession Act 2004 (NSW) s 255 Legal Profession Regulations 2005 reg. 88(1), (2,) (3)(a)(ii) |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 Chorn & Hopkins (2004) FLC 93-204 House v The King (1936) 55 CLR 499 Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; (1996) 70 ALJR 541 Rutherford and Rutherford (1991) FLC 92-255 |
| APPELLANT: | Mr Mitty |
| FIRST RESPONDENT: | Ms Mitty |
| THIRD RESPONDENT: | Mitty Pty. Ltd. |
| FOURTH RESPONDENT: | Ms N |
| FIFTH RESPONDENT: | Ms S |
| SIXTH RESPONDENT: | M Lawyers |
| FILE NUMBER: | SYC | 8326 | of | 2007 |
| FIRST APPEAL NUMBER: | EA | 139 | of | 2008 |
| SECOND APPEAL NUMBER: | EA | 144 | of | 2008 |
DATE DELIVERED: | 22 December 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Faulks DCJ, Boland & Stevenson JJ |
| HEARING DATE: | 22 April 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 October 2008 6 November 2008 18 November 2008 |
| LOWER COURT MNC: | [2008] FamCA 972 [2008] FamCA 973 [2008] FamCA 1043 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Self-represented litigant |
| SOLICITOR FOR THE APPELLANT: | Self-represented litigant |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Campton |
| SOLICITOR FOR THE FIRST RESPONDENT:: | Pearson Lawyers |
COUNSEL FOR THE THIRD RESPONDENT: | No appearance |
SOLICITOR FOR THE THIRD RESPONDENT: | No appearance |
COUNSEL FOR THE FOURTH RESPONDENT: | No appearance |
| SOLICITOR FOR THE FOURTH RESPONDENT: | No appearance |
COUNSEL FOR THE FIFTH RESPONDENT: | No appearance |
SOLICITOR FOR THE FIFTH RESPONDENT: | No appearance |
| COUNSEL FOR THE SIXTH RESPONDENT: | No appearance |
SOLICITOR FOR THE SIXTH RESPONDENT: | No appearance |
Orders
The application of the wife filed 22 December 2009 for summary dismissal of the husband’s application for leave to appeal filed 28 November 2008 (EA 139 of 2008) is allowed.
The application of the husband (EA 139 of 2008) filed 28 November 2008 for leave to appeal the orders of the Honourable Justice Fowler made 27 October 2008 and 6 November 2008 is dismissed
The application of the husband (EA 144 of 2008) filed 16 December 2008 for leave to appeal the orders of the Honourable Justice Fowler made 18 November 2008 is dismissed.
The husband pay the wife’s costs of and incidental to the applications referred to in Orders 1-3 of these orders, including costs reserved on 27 January 2010, in the sum of $4,000.00.
IT IS NOTED that publication of this judgment under the pseudonym Mitty & Mitty and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 139 of 2008; EA 144 of 2008
File Number: SYC 8326 of 2007
| Mr Mitty |
Appellant
And
| Ms Mitty |
1st Respondent
And
| Mitty Pty. Ltd. |
3rd Respondent
And
| Ms N |
4th Respondent
And
| Ms S |
5th Respondent
And
| M Lawyers |
6th Respondent
REASONS FOR JUDGMENT
Faulks DCJ
Introduction
Since drafting these Reasons, I have had the opportunity of reading Boland and Stevenson JJ’s Reasons in draft form. I agree with their Honour’s conclusions about the applications for leave to appeal, and the summary dismissal application for the reasons they have explained.
The appellant and the respondent are formerly husband and wife. I shall refer to them as such in my Reasons for convenience. The Third Respondent is Mitty Pty. Ltd. The Fourth Respondent, Ms N and the Fifth Respondent, Ms S, are the husband’s sisters. The Sixth Respondent is M Lawyers., trading as [M] & Co, the former solicitors of the husband.
Proceedings pursuant to s 79(1) of the Family Law Act 1975 (Cth) (‘the Act’) have now been withdrawn by both parties.
As a matter of practice and where necessary throughout my Judgment, I have replicated the pursued grounds of appeal, the relevant paragraphs of his Honour’s Judgment, as well as the submissions and relevant evidence before the trial Judge without correction.
Background
The following background details the proceedings in the Family Court of Australia which lead to the appeals now before us for determination.
Orders of Judicial Registrar Loughnan – 12 March 2008
On 12 March 2008, Loughnan JR (as he then was) heard an application concerning both interim and interlocutory issues between the husband and wife about the “parenting arrangements, spousal maintenance, interim child support departure and interim costs” (Mitty & Mitty [2008] FamCA 297, paragraph 3).
Order 3 of Loughnan JR’s orders relevantly provided:
That the document titled Orders is Exhibit A and orders are made operative from today’s date in terms of that document as set out hereunder:-
BY CONSENT IT IS ORDERED:
That the husband pay or cause to be paid as and when payment is made by him or on his behalf to his lawyers any amount for legal costs incurred in these proceedings an equivalent amount to the wife or the wife’s lawyers.
Although the orders stipulated they were made “BY CONSENT” this was a mistake on the record. Counsel for the wife conceded that the orders had not been made by consent (Transcript of proceedings, 22 April 2010, 5).
Loughnan JR ordered the husband pay $350 per by way of interim spousal maintenance. Loughnan JR also identified that there was no “capital fund” available between the parties which, in his opinion, could lead to “expensive and disastrous” consequences if he were to make an order about capital payments by the husband for interim costs (at paragraph 31). Loughnan JR provided in his Judgment at paragraphs 32 and 33:
32. In the alternative, an application is made for what is called a dollar for dollar order. And I think that is appropriate. The argument against it is; if the husband's getting funds from some source such as his family, his family may not be willing to advance him money for the purposes of it going to his wife.
33. Interim costs is a remedy that seeks to preserve the exercise of judicial power, to make sure there is not a bad outcome from a Court by reason of one party being adequately represented and the other not. And this is a case where despite a dollar for dollar order the wife's costs are likely to be greater than those of the husband. That is because in terms of cases such as Polletti, he controls the patrimony of the family. He knows where the documents are, he knows where the accounts are, he has direct access to the accountants, he is the one who controls relevant entities and all of those things would have to be discovered by the wife rather than her just relying on her own knowledge. So it will be a more expensive exercise for her but it seems to me that a dollar for dollar order should be made.
In the end, the so-called “dollar for dollar” order was not the subject of appeal before us, nor has the order been stayed. Initially, the husband sought to challenge Loughnan JR’s orders, inter alia, in relation to the “dollar for dollar” order. This came before Fowler J on 24 July 2008.
Orders of Justice Fowler – 24 July 2008
On 24 July 2008, Fowler J made orders which provided leave to the husband to make an oral application for an adjournment. This was granted conditionally by his Honour on the basis that the wife thereafter would do all things necessary to take possession and seizure of all livestock and horses owned beneficially or otherwise by the Husband and/or a corporate entity known as H Capital. The wife would then be appointed trustee for sale of the livestock and horses and would retain the proceeds which would be consequently applied to the husband’s arrears of spousal maintenance and in respect of interim costs payable pursuant to the “dollar for dollar” costs order. Fowler J then ordered that the balance be paid into the wife’s lawyer’s trust account, with the wife having such requisite monthly access as to draw upon amounts owing for spousal maintenance. The husband was ordered to do all such acts necessary to assist the wife to take possession of the livestock and the horses and was restrained from otherwise adversely dealing with that property. The husband was also ordered to transfer to the wife the registration of a motor vehicle which was in the wife’s possession.
The proceedings were then adjourned to 17 September 2008 before his Honour.
Orders of Justice Fowler – 17 September 2008
On 17 September 2008, Fowler J made orders by consent which restrained the husband from requesting the wife for further particulars without leave of the Court and requiring the husband to provide copies of all Orders and Judgments obtained by him in compensation proceedings (presumably before the Supreme Court of the New South Wales – Equity Division). The husband was also restrained from adversely dealing with any damages he may have received from his compensation proceedings and such money was to be placed into a controlled moneys account operated by the wife’s solicitors. Consent orders were also entered into requiring the husband to provide particulars of any account held by him with any bank or financial institution within the last three years and particulars of any loan agreements or arrangements from 1 January 2005 to date.
Fowler J also noted that Third Respondent had provided an amended undertaking not to deal with certain shares in relation to Mitty Pty Ltd without providing 21 days notice of such an intention, and that the Fourth and Fifth Respondents would provide 21 days notice of any intention to adversely deal with a property in Northern NSW. There were other incidental orders made which are not relevant to these proceedings.
Fowler J also granted (by consent) the husband an extension of time for the husband to file and serve an application for review of Loughnan JR’s orders of 12 March 2008. His Honour then adjourned the proceedings to 24 October 2008.
The terms of the order made on 17 September 2008 provided that the husband’s application for review of Loughnan JR’s orders was required to be filed and served within seven days. The application for review was filed by the husband on 18 September 2008. This application eventually came before Rose J on 11 May 2009.
Orders of Justice Fowler – 24 & 27 October 2008
On 24 October 2008, Fowler J heard an interim application of the wife seeking injunctions restraining the husband and a company, H Capital (for which the husband was sole director and shareholder), from “lodging or maintaining caveats against a property.”(Mitty & Mitty & Ors [2008] FamCA 972, paragraph 1). Subsequently, Fowler J made orders on 27 October 2008, prior to delivering written Reasons for Judgment. Orders 1 and 2 of his Honour’s orders relevantly provided:
1. The husband in his own capacity and as sole director and shareholder of [H Capital] do all acts and things and sign all documents necessary to withdraw the caveats lodged on the [T] property by the husband and by [H Capital].
2. The husband thereafter in his own capacity and as director and shareholder of [H Capital] be restrained by injunction from doing any act or thing to cause a caveat or other encumbrance to be registered on the [T] property and from doing any act or thing to interfere with the sale of the property.
His Honour subsequently gave Reasons for Judgment on 6 November 2008.
It would appear that his Honour also made procedural orders on 24 October 2008, where he adjourned both the proceedings involving the Third, Fourth and Fifth Respondent, and the appellant’s Application in a Case filed 26 September 2008, to 2 February 2009. On 2 February 2009, the orders referred to above were made by consent in effect resolving issues relating to those respondents.
His Honour did not deal with the application for review of Loughnan JR’s orders which had been filed pursuant to his leave to extend time. This application was in fact dealt with by Rose J on 11 May 2009 and was subsequently dismissed (Transcript of proceedings, 22 April 2010, 6).
Orders of Justice Fowler – 6 November 2008
On 6 November 2008, following the hearing on 24 October 2008, Fowler J made further procedural orders in relation to the substantive property proceedings. Order 1 of his Honour’s orders relevantly provided:
1. Within 14 days of the date of these Orders the husband cause to be delivered to the wife at an address nominated by the wife the … Horses referred to in the Order made on 24 July 2008 deposed to by him in his Financial Statements sworn in these proceedings as owned either by him or [H Capital] together with any relevant registration papers, and such delivery shall be at the husband’s expense.
His Honour also ordered that the husband sign an authority to the National Australia Bank and a real estate agent in a form attached to his Honour’s Orders (Order 2); that by 20 November 2008, the husband provide an authority authorising and directing Centrelink to provide a copy of his file to the wife’s solicitors (Order 3(a)); and that the husband prepare an affidavit setting out the nature and purpose of each application of funds made from the trust account of the real estate agent in NSW operated by either his or H Capital’s behalf from 1 February 2008 to date, together with any document verifying the quantum of funds paid, as well as the other matters contended by the husband as to the nature of such payment or its application as part of his reasonable living expenses (Order 3(b)).
In his Reasons for Judgment, Fowler J noted the husband’s explanation for his non-compliance with the orders of 24 July 2008, being that there was an ownership dispute with a third party company upon which whose land the horses were at that time agisted. His Honour noted that the husband had placed the relevant horses on the property and it was effectively up to the husband to ensure compliance with the orders of 24 July 2008.
Orders of Justice Fowler – 18 November 2008
Following the hearing before his Honour on 17 September 2008 and the receipt of written submissions considered in Chambers, Fowler J made orders on 18 November 2008. Orders 1, 2 and 3 of his Honour’s orders relevantly provided:
1. The payment of the sum of $25,000 made by the husband to the solicitors for the husband in payment of his fees (being part of the total sum paid for such fees) is set aside.
2. The 6th respondent pay within 14 days the sum of $12,500 to the credit of their trust account to be held upon trust pending further order of the Court.
PROVIDED however that if the Court makes no further order as to its disposition within 28 days from today’s date they are ordered to pay the same to the solicitors for the wife.
3. Leave is granted to the 3rd, 4th and 5th Respondents to apply on short notice within 28 days of the date of this order for such further orders in relation to this order as they may be advised.
The application before his Honour concerned the making of certain payments by the Fourth and Fifth Respondents to the Sixth Respondents on behalf of the husband.
His Honour found that on 18 March 2008 a sum of $25,000 was deposited by way of cheque to the credit of the trust account of the Sixth Respondent and credited to the husband’s account within that trust account (Mitty & Mitty & Ors (No. 3) [2008] FamCA 1043, paragraph 11).
His Honour also found that on 27 March 2008 a tax invoice was rendered by the Sixth Respondent to the husband for services rendered, and on 28 March 2008, an amount of $29,050.72 was transferred from the Sixth Respondent’s trust account to its office account in payment of costs and disbursements (paragraphs 12 and 13).
Orders of Justice Rose – 11 May 2009
For the sake of completeness, I note that on 11 May 2009 when the application for review of Loughnan JR’s orders was before Rose J the husband did not appear and the application was dismissed. However, his Honour provided:
3. That liberty is granted to apply to set aside, suspend or vary all or any of the Orders made this day upon seven (7) days written notice being given to the Court and to the other party.
As appeared during the course of the proceedings before us, at no time had that liberty to apply been exercised by the husband. Accordingly, the application for review of the orders of Loughnan JR of 12 March 2008 was not a matter before us.
Grounds of appeal & Appeal procedural history
Before us are two appeals for determination; appeal number EA 139 of 2008, and appeal number EA 144 of 2008.
Appeal number EA 139 of 2008
By way of Amended Notice of Appeal filed 25 February 2010, the husband listed the following grounds of appeal in relation to Appeal Number EA 139 of 2008:
1. His Honour fell into error by failing to verify Supreme Court Judge Hamersclaugh order,thus incorrectly assuming it was to be heard in the Family Court.
2. His Honour fell into error by incorrectly stating that the loan had fallen into default. [H Capital] was still paying the mortgage.
3. His Honour fell into error by not considering two respected valuers provided by the husband,
4. His honour fell into error by making a judgment based on a sale price being a “Premium Price”.
5. His honour fell into error by failing to address the value of the “deed”.
6. His Honour fell into error by not addressing the “Dollar for Dollar” order first. He failed to consider the husbands dire financial position, prior to making orders or capacity for husband to comply.
The husband listed the following as the orders sought in relation this appeal:
1. All orders made in relation to the Dollar for Dollar order be dismissed.
2. Dismissal of orders made by Judicial Registrar Loughnan on 12 March 2008.
3. [[R] Pty.Ltd.] pay $90,000 to the National Australia Bank to loan account , [[H] Pty. Ltd.] Pursuant to Deed for sale of property.
4. [Ms Mitty] pay $55,000 to National Australia Bank pursuant to Deed for sale of property , [B], NSW to the joint loan account [Mr & Ms Mitty].
5. [[R] Pty.Ltd.] be caused to pay Husband’s costs in these proceedings and any losses caused by its actions, including accrued penalty interest with National Australia Bank.
Appeal number EA 144 of 2008
By way of Amended Notice of Appeal filed 25 February 2010, the husband listed the following grounds of appeal in relation to Appeal number EA 144 of 2008:
1. The learned Judge fell into error in holding that the sum of $25,000 being money thathad been paid by the 3rd and 4th Respondents to the 6th Respondent had never become the husband’s money.
2. His honour fell into error in failing to hold that money had been provided by the 3rd and 4th Respondents for a specific purpose and that therefore the money was never beneficially the money of the husband.
3. His honour fell into error in failing to hold that the 3rd and 4th respondent were the beneficiaries of a resulting trust, and that if the purpose of such trust failed, the money should have been repaid to the 3rd & 4th respondents.
4. His Honour fell into error in directing that the 6th Respondent pay to the solicitors for the wife the sum of $12,500.
The husband listed the following as the orders sought in relation this appeal:
1. That the 6th respondent pay to the 3rd and 4th respondents in equal shares the sum of $12,500.
2. That the wife cause to be paid to the 3rd and 4th respondents in equal shares the sum of $12,500.
The complicated nature of the proceedings and the number of judicial officers who dealt with the matter no doubt caused some confusion for the husband as a self‑represented litigant. After some assistance from us, the husband conceded that the only orders sought to be made by us (Transcript of proceedings, 22 April 2010, 37):
· “All orders made in relation to the Dollar for Dollar order be dismissed” (Appeal number EA 139 of 2008); and
· “That the wife cause to be paid to the 3rd and 4th respondents in equal shares the sum of $12,500” (Appeal number EA 144 of 2008).
These are matters which related exclusively to the “dollar for dollar” order made by Loughnan JR on 12 March 2008. However, as the orders appealed from were those made by Fowler J, this confined the appeal to the exercise of his Honour’s discretion in his orders of 18 November 2008 (as outlined above).
The following exchange occurred between Boland J and the husband when he appeared before us which we set out hereunder: (Transcript of proceedings, 22 April 2010, 25 – 26):
BOLAND J: All right. Well, the learned deputy chief justice has cleared up in fact, so far as I’m concerned, order 2, and we would say that we don’t have any power to make that order because there was no application dealt with by Fowler J to review the judicial registrar. And so if you wan to do that, and you say you’re continuing to have a spousal maintenance order, you need to file an application at first instance to do that.
MR MITTY: Well, why would I have been told about going through an appeal process?
BOLAND J: Well, the correspondence – I can only say to you - - -
MR MITTY: Yes, yes – no, I see.
BOLAND J: - - - the correspondence you have from the court tells you what you need to do.
MR MITTY: So is that – you Honour, could I ask is that still ongoing, that opportunity to do that?
BOLAND J: I can see no reason why you can’t do that, and you can - - -
MR MITTY: Terrific.
BOLAND J: - - - explain in your affidavit why it was that you thought you were precluded from doing that.
MR MITTY: Yes.
BOLAND J: And then it’s a matter of discretion of the judge.
MR MITTY: Yes.
The husband subsequently conceded that the only orders he sought us to make were those outlined above which related to his Honour’s findings pursuant to s 106B of the Act.
Discussion
The grounds of appeal and the orders sought to be made by us (quoted above) assert, in summary, that it was not open to the trial Judge to make an order setting aside the payment for costs because the money was not the husband’s money. The husband submitted that there were consequences flowing in equity.
The facts relating to the payment were not in dispute. For convenience, I include the following paragraphs from his Honour’s Reasons for Judgment of 18 November 2008:
10. On 12 March 2008 the Judicial Registrar made the “dollar for dollar” order referred to above.
11. On 18 March 2008 a cheque drawn on [a property agent] in the sum of $25,000 was deposited to the credit of the trust account of the 6th respondent and credited to the husband’s account within that trust account.
12. On 27 March 2008 a tax invoice was rendered to the husband for work done by the solicitors.
13. On 28 March 2008 an amount of $29,050.72 was transferred from the solicitor’s trust account to its office account in payment of costs and disbursements.
In paragraph 21 of his Reasons, his Honour acknowledges that the money provided was a loan to the husband from his sisters, the Fourth and Fifth Respondents. At paragraph 22, his Honour concluded:
22. Whatever the nature of the transaction between the husband and his sisters the fact is that they lent the money referred to to the husband and, when so lent, it was credited to an account in the husband’s name in the solicitor’s trust account and the solicitors thereby indicated that they held that money on trust for the husband and that it was beneficially his.
23. It could only have been removed from the solicitor’s trust account and paid to the solicitors in circumstances where the husband had authorised the transfer. In those circumstances, the payment became a payment by the husband. If it was not, then certainly it was a payment on behalf of the husband.
Importantly, for the purposes of the application of s 106B of the Act, which Fowler J referred to as the basis for his decision, he found at paragraph 24:
24. The direction for the payment by the husband to the solicitor was made in the knowledge of the husband in circumstances where he knew he did not have any other source of funds to comply with the operation of the order of the Judicial Registrar and so it was a payment made either with the intention of, if not with the effect of, defeating the operation of the Judicial Registrar’s order.
His Honour then went on to consider the submissions on behalf of the Sixth Respondent that the fact that the funds did not come from “matrimonial funds” was of no significance. His Honour set out his reasons for that conclusion.
26. For these reasons I find that the husband, contrary to the requirements of the order made by the Judicial Registrar and in an attempt to defeat it, paid or caused to be paid to his solicitors a sum of money which was his property without having available and paying the like amount to the solicitors for the wife.
27. I find on the balance of probabilities that the husband’s solicitors knew that there was likely to be a breach of the order of the Judicial Registrar as following the payment of the money to them.
In dealing with the submissions from Mr Brzostowski SC on behalf of the Third, Fourth and Fifth Respondents that there was no disposition of funds with the meaning of s 106B of the Act, his Honour rejected the submissions, at paragraph 23, because: “[t]he money once lent was at the husband’s disposition and was so held by his solicitors.”
Mr Brzostowski further argued that even if there had been a breach of the order, s 106B of the Act was not applicable to the breach. His Honour concluded, at paragraph 34:
34…A disposition intended to defeat the operation of an order can be a disposition intended to defeat the operation of an interim order and if not intended may, if it has the effect that it does in fact defeat the operation of that interim order, be set aside.
Mr Brzostowski additionally argued that the disposition had not been made by the husband. His Honour, in dismissing this argument, stated, at paragraph 35:
35. Mr Brzostowski argues that the disposition was not made by the husband. I disagree with this submission. A transfer from a trust to an office account can only occur with the authority and at the direction of the person for whom the sum is held, in this case, the husband. It is argued that the acts of the sisters cannot fit this description. It is not that they do. What is attacked is the act of the husband in authorising and directing the loan funds to be paid as they were. It is not a requirement for the operation of section 106B that the disposition made reduces the available funds to the parties. Such an interpretation is not warranted on the clear words of the statute. It may, and in many cases, does have that effect, but it is not required to.
Mr Brzostowski also suggested that money was not paid to the husband but to the credit of the solicitors for costs. His Honour commented, at paragraph 37, that the husband paid the amount to the solicitors from that amount once credited to him.
Finally, his Honour accepted the submissions made by Mr Brzostowski that s 106B of the Act should not apply to the whole of the money paid to wife’s solicitors in effect, (with respect to his Honour, sensibly) holding only that s 106B of the Act applied as to one half of the total sum paid thereby, fulfilling the spirit of the original “dollar for dollar” orders made.
I see no error in the reasoning applied by his Honour in relation to this matter. Section 106B(1) of the Act relevantly provides:
(1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
In my opinion, the transfer of the money of the trust at least when it was transferred from the trust account to satisfy the tax invoice submitted by the solicitors constituted a disposition “by or on behalf of” the husband which was made to defeat an existing order in these proceedings, or which at least was likely to effect the defeat of such and order.
The proximity of the transaction involving the husband’s borrowing of the sums from his sisters, the depositing of the sums into the solicitor’s trust account, and their subsequent transfer to the solicitor’s general account on account of costs, along with the original order make it clear that this transaction was intended to overcome the perceived effect or consequences of the “dollar for dollar” order. In my opinion, his Honour’s assessment was accurate and appropriate.
It would not have been different if the husband had borrowed the money commercially, and then when the money was in his hands, paid the money to the solicitors. In such circumstances, there is little argument, ostensibly, that this was a disposition by the husband that had the effect of defeating order made by Loughnan JR. However, it is not clear based on the terms of the Deed annexed to the consent orders of 2 February 2009 whether the money was physically paid by the husband to his solicitors (Exhibit ‘W1’ tendered before us). If as the Deed suggests the money was paid by Fourth or Fifth Respondents directly by them this would constitute money paid “on behalf of” the husband. In any event, this was the effect, if not the intention, although his Honour found such an intention, to defeat the order referred to.
I consider that the findings of fact his Honour made were open to him on the evidence before him. In my opinion, his Honour’s discretion did not miscarry to apply s 106B of the Act in the way that he did.
None of the matters raised by the husband satisfy me there is appealable error within the test espoused by their Honours, Dixon, Evatt & McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505.
Costs
The husband has been wholly unsuccessful in his appeal. His appeal was presented in a complicated and convoluted fashion, which extended the time necessary to deal with the appeal. In saying this, I acknowledge that the husband was self-represented and the proceedings giving rise to the appeal were, to some extent, complicated.
Counsel for the wife submitted that if the husband’s appeal were unsuccessful, an order for costs quantified in the sum of $4,000 should be made. Boland J noted (Transcript of proceedings, 22 April 2010, 45) as follows:
BOLAND J: I suppose we could bear in mind or take – have some regard to the Legal Aid scale for an appeal and for counsel if currently about $3750. So you’re fairly close to what Legal Aid would seek in an appeal, and there have been two procedural hearings before me one procedural hearing before the judicial registrar, plus today.
MR CAMPTON: That’s right. And, of course, your Honour, I think the costs in relation to a number of those procedural hearings - - -
BOLAND J: Reserved.
MR CAMPTON: - - - quite properly reserved.
BOLAND J: Yes.
I agree that such an order for costs should be made and that it is appropriate that the order should be so quantified.
Boland and Stevenson JJ
Introduction
We have had the opportunity of reading in draft the reasons for judgment of Faulks DCJ in respect of two Notices of Appeal, EA 138 of 2008 ( “the first appeal”) and EA 144 of 2008 ( “the second appeal”) filed by Mr Mitty (“the husband”). These reasons deal with the applications which were before us.
As we will shortly more fully explain, as we are satisfied no error of principle has been established, we would not grant leave to the husband to appeal orders made by Fowler J on 18 November 2008, the proposed second appeal. The husband effectively abandoned the first appeal at the hearing before us. We therefore agree with his Honour that the two proposed appeals should be dismissed.
We note that the named parties to the appeal are referred to in the judgment of Faulks DCJ and it is unnecessary we repeat them. There was however no appearance before us in respect of any respondent other than Ms Mitty (“the wife”).
We also note on 22 December 2009 the wife filed an application in which she sought the first appeal be summarily dismissed. Pursuant to orders made on 27 January 2010 that application was listed for hearing with the proposed appeals. For reasons we set out later, we are satisfied that application should be allowed.
It is also relevant to note that since we heard this appeal the property proceedings between the husband and the wife have been withdrawn and dismissed, and final parenting orders were made, after a defended trial, by Le Poer Trench J on 26 July 2010 (see Mitty & Mitty [2010] FamCA 718 at paragraph 41).
There was some confusion before us about the husband’s applications, and the relief he was seeking. That confusion arose in part because of a large number of applications which had been brought in the course of property, spousal maintenance and parenting proceedings between the husband and the wife and a number of other parties. It was exacerbated because the husband was self represented before the primary Judge and before us, and misunderstood the effect of a number of orders made in the proceedings.
Ultimately, we established that what the husband sought was leave to appeal, and if leave was granted, to appeal Orders 1 and 2 made by Fowler J on 18 November 2008. Orders 1 and 2 provide as follows:
(1)The payment of the sum of $25,000 made by the husband to the solicitors for the husband in payment of his fees (being part of the total sum paid for such fees) is set aside.
(2)The 6th respondent pay within 14 days the sum of $12,500 to the credit of their trust account to be held upon trust pending further order of the Court
PROVIDED however that if the Court makes no further order as to its disposition within 28 days from today’s date they are ordered to pay the same to the solicitors for the wife.
Fowler J’s orders were made under s 106B of the Family Law Act 1975 (Cth) (“the Act”) and by way of enforcement of interim costs orders originally made by Loughnan JR (as his Honour then was) on 12 March 2008.In broad terms the interim costs orders required the husband to pay to the wife’s solicitors an identical amount to that which he paid to his own solicitors for legal costs of the proceedings. The orders were referred to in the proceedings by the colloquial expression “the dollar for dollar order”.
The husband’s application for a review of the Judicial Registrar’s orders was heard ex parte and dismissed by Rose J on 11 May 2009.Although Rose J’s orders provided that the husband had liberty to apply to have his Honour’s orders set aside, at the time of the hearing before us, no application was filed by him to do so.
As we have already indicated, the husband sought, in an application in a case filed 28 November 2008, leave to appeal, and if leave was granted, to appeal two different sets interlocutory orders made by Fowler J respectively on 27 October 2008 and 6 November 2008 arising out of proceedings before him on 24 October 2008. He effectively abandoned this application at the hearing before us (“the first appeal”). We will therefore only briefly now refer to the proposed appeal, and we will discuss the wife’s application for summary dismissal of it at the conclusion of these reasons.
The first order made on 27 October 2008 at Newcastle required the husband to withdraw a caveat he had lodged in his own name, and that of a company H Pty Ltd, over a property at T, NSW registered in the name of R Pty Ltd. The husband asserted that part of the T property was held on trust for himself and the wife. It was not in dispute that the wife’s father was the sole director and shareholder of R Pty Ltd. Nor was it in dispute by the time of the hearing before us the T property had been sold.
The second set of orders arising out of the proceedings heard on 24 October 2008 and made 6 November 2008 required the husband to deliver certain horses to the wife, sign authorities to the National Australia Bank, and to provide an authority to Centrelink to enable the wife’s solicitors to make an application under the Freedom of Information Act 1982 (Cth). There was no dispute, at the time of the making of these orders, the husband had failed to comply with an earlier order of Fowler J made 24 July 2008 requiring him to deliver the horses to the wife so that the horses could be sold and the proceeds applied for arrears and future payment of spousal support. Full details of the orders are set out in the judgment of Faulks DCJ, and it is unnecessary that we repeat them.
The orders (referred to erroneously in the proposed amended Notice of Appeal as made on 24 October 2008) were the orders in respect of which leave to appeal was sought. The orders sought if the appeal succeeded did not relate to orders of respectively 27 October 2008 and 6 November 2008, but rather were directed to the “dollar for dollar” order. When we pointed out these facts to the husband he conceded the proposed first appeal had no utility.
The gravamen of the second appeal was the assertion that the order setting aside, under s 106B, a payment of $25,000.00 to the husband’s then solicitors, and if no further order of the Court was made within 28 days, that the sum of $12,500.00 be paid to the solicitors for the wife, was improperly made. This was because the husband asserted the funds held by the solicitors were not his funds, but funds provided by his two sisters, or a company with which they were associated.
We propose to first discuss aspects of the second appeal. In the course of so doing we will refer to some brief background material, explain the chronology of the litigation and orders made, before referring to his Honour’s reasons, and the submissions of the parties. We will explain why we would not grant leave to appeal these orders.
We will then, for completeness, to the extent it is necessary to do so, deal with the application for leave to appeal in the first appeal and the application for summary dismissal of that application.
Background
The following material is found in the appeal book or the record and exhibits before us, and is uncontroversial. The relevant orders and applications are particularised in the reasons of Faulks DCJ, and it is unnecessary that we repeat them.
The husband was aged 40 years at the date of the hearing before the Judicial Registrar and the wife was aged 30 years. The parties married in 2002 and separated in October 2007.
There are four children of the marriage aged between 5 years and 14 months at the time of the hearing before the Judicial Registrar.
The husband is, or was, the director, secretary and shareholder H Capital.
On 12 March 2008 the Judicial Registrar made an order that the husband pay the sum of $350.00 per week to the wife by way of spousal maintenance, and also made the “dollar for dollar” order. No stay was sought or obtained of these orders.
On 24 July 2008 orders by way of enforcement of the spousal maintenance order were made. The orders required the husband or H Capital to deliver certain livestock to the wife, and authorised the wife to sell the livestock in satisfaction of inter alia the spousal maintenance order.
On 17 September 2008 Fowler J extended time to permit the husband to file an application for review of the Orders 2 and 3 (the spousal maintenance and interim costs orders) made on 12 March 2008 by the Judicial Registrar.
On 27 October 2008 Fowler J made orders requiring the husband and H Capital to withdraw caveats lodged against the title of the T property. In Boland J’s reasons of 27 January 2010, when the summary dismissal application was before her and adjourned for hearing by a Full Court, she explained that the evidence before her disclosed that the T property had been sold.
On 6 November 2008 Fowler J ordered that the husband deliver to the wife, at a location nominated by her, the horses disclosed in his Financial Statement as either owned by him or H Pty Ltd.
On 18 November 2008 Fowler J made the orders the subject of the second appeal.
On 2 February 2009 the other parties, save and except the husband’s solicitor (the 6th respondent), who had been joined as parties to the proceedings reached a settlement with the wife and executed a Deed of Release which finalised the proceedings between them and the wife. Orders were made on that day between all the parties in accordance with a document entitled Terms of Settlement dated 2 February 2009. The orders made that day included the following notations:
A.The husband’s solicitors who previously acted for him no longer act for him.
B.Of an amount of $25,000 paid to them by the husband in respect of their outstanding fees some $12,500 was pursuant to my decision paid to the wife pursuant to a “dollar for dollar costs order”.
C.The husband has sought leave to appeal my order.
D.For so long as my order remains in force any further monies paid by the husband to his solicitors with respect to costs incurred by him prior to their ceasing to act and remaining unpaid will not be caught by the “dollar for dollar costs order” and may be applied by the said solicitors in reduction of the debt outstanding to them by the husband.
On 11 May 2009 the husband’s application for review was listed for hearing before Rose J. There was no appearance by or on behalf of the husband. Rose J dismissed the husband’s application but granted liberty to the husband “to apply to set aside, suspend or vary all or any of the orders made this day upon seven (7) days written notice being given to the Court and to the other party”.
The husband wrote to the Associate to Rose J on 5 June 2009 advising he had not been made aware of the hearing on 11 May 2009 (Exhibit “H3” before us). He was advised by letter dated 9 June 2009 from the Associate that Order 3 of the trial Judge’s orders enabled him to file an application and an affidavit in support. No application had been filed by the husband by the date we heard the appeal.
The challenge to the transfer of funds to the wife’s solicitors pursuant to the dollar for dollar order
The proposed amended Notice of Appeal (the first appeal) contained four grounds which are set out in the reasons of Faulks DCJ.
The husband’s written submissions in respect of the proposed second appeal asserted, inter alia:
·the Court lacked jurisdiction to “confiscate” from his solicitor money which was owed to the solicitors, which was not paid by the husband or an entity under his control;
·the dollar for dollar order could only apply to funds which the husband had in his own right;
·the husband could not be made to “cause” money [in the solicitors trust account] to be paid the wife. There was no evidence that the husband had control over his sisters’ [funds];
·as the husband could not compel his sisters to borrow and make the payment either on his behalf or to the solicitors the order made was outside the “dollar for dollar” order;
·the order could not preclude a friend or relative choosing to donate funds to pay the husband’s legal fees; and
·any payment made would not find its way into a list of assets and liabilities on the principles espoused in Chorn & Hopkins (2004) FLC 93-204.
The primary Judge’s reasons for judgment 18 November 2008
His Honour commenced his reasons noting the proceedings arose out of the making of the “dollar for dollar order” and “the subsequent payment of the husband’s former solicitor’s costs with funds which originated from sources other than the husband”. His Honour explained:
… Questions arise as to whether the payment of the costs attracted the requirement for compliance with the dollar for dollar order made and, if so, whether the solicitor who was paid, and who was aware of the order, should be required to reinstate some or all of the funds so paid by way of payment to the wife who had the benefit of the interim costs order. (paragraph 1)
Under the heading “Background Facts”, Fowler J set out the order made by the Judicial Registrar on 12 March 2008 and then recorded the terms of an application filed by the wife on 18 June 2008 in which, in broad terms, she sought the transfer of three sums transferred from the husband’s solicitor’s trust account to the office account of the solicitors be set aside, and the payment set aside be paid to the wife.
His Honour also noted, at paragraph 6, that the third, fourth and fifth respondents also sought orders against the husband’s solicitors that the event orders were made in the wife’s favour that the husband’s solicitors pay the sum of $12,500.00 to the fifth respondent and $12,500.00 to another third party.
At paragraph 7, the trial Judge set out, in a summary way, a portion of the evidence of a director of the husband’s firm of solicitors as to receipt of funds up to the date of the orders by the Judicial Registrar.
His Honour also recorded the director testified the husband had told her “I’ll be making arrangements with my sisters to borrow the money”. The sum requested by the solicitors was $25,000.00 (paragraph 9).
His Honour explained that, on 18 March 2008, a cheque drawn on a property agent in the sum of $25,000.00 was deposited to the credit of the trust account of the husband’s solicitors and credited to the husband’s account within the trust account.
His Honour also recorded that, on 27 March 2008, a tax invoice was rendered to the husband for work done by the solicitors and on the following day an amount of $29,050.72 was transferred from the solicitor’s trust account to its office account in payment of costs and disbursements.
Thereafter Fowler J recorded evidence of the husband’s solicitor about her conversations with the husband. At paragraph 19, his Honour recorded as follows:
It is submitted by Counsel for the 6th respondent that no order that I make, if I make an order at all, could relate to the monies transferred from the solicitor’s trust account to the solicitor’s office account in payment of the fees incurred by him in relation to the Apprehended Domestic Violence proceedings. I agree with this submission. Whatever view I take of the transactions, I believe I can only set aside transactions which have a direct relevance to the breach of the order made by the Judicial Registrar or which are intended to defeat an existing or anticipated order in these proceedings.
In paragraph 20 of his reasons, the primary Judge discussed the submissions of counsel for the husband’s solicitors concerning the operation of the orders. That discussion is irrelevant to the proposed appeal.
At paragraph 21, his Honour summarised the submissions made on behalf of the husband’s solicitors, namely, that they had personally, and through a trading entity, lent funds to the husband. But his Honour’s crucial findings are set out in paragraphs 22 to 25 of his reasons. We set out those paragraphs in full:
22.Whatever the nature of the transaction between the husband and his sisters the fact is that they lent the money referred to to [sic] the husband and, when so lent, it was credited to an account in the husband’s name in the solicitor’s trust account and the solicitors thereby indicated that they held that money on trust for the husband and that it was beneficially his.
23.It could only have been removed from the solicitor’s trust account and paid to the solicitors in circumstances where the husband had authorised the transfer. In those circumstances, the payment became a payment by the husband. If it was not, then certainly it was a payment on behalf of the husband.
24.The direction for the payment by the husband to the solicitor was made in the knowledge of the husband in circumstances where he knew he did not have any other source of funds to comply with the operation of the order of the Judicial Registrar and so it was a payment made either with the intention of, if not with the effect of, defeating the operation of the Judicial Registrar’s order.
25.That the source of the funds was not from the matrimonial assets is of no weight in the argument as contended by Counsel for the 6th respondent. The effect of the decision in Chorn and Hopkins (2004) FLC ¶93-204, is of no relevance to the order of the Judicial Registrar. The husband could have paid the amount with funds borrowed on his credit card or from his bank, yet if there was not a like amount paid to the wife the existing order is breached. That the sum was borrowed from his sisters, who had no desire to benefit the wife, does not alter the situation that once the funds were credited to him they were at his disposition and were in fact disposed of by him. If his sisters have issue with that they may take up that issue with him. If his sisters have issue with the way in which the solicitors for the husband applied the money they may also take that issue up with them. It cannot be argued that the disposition of the money did not come from the husband once the sum was held for him. That it was the product of a loan does not make the payment any less a disposition within the meaning of section 106B of the Family Law Act 1975. (original emphasis)
At paragraph 31, in dealing with the submissions made by senior counsel for the third, fourth and fifth respondents, his Honour concluded that once the money was lent it was the husband’s money.
At paragraph 33, his Honour addressed the submission made on behalf of the fourth and fifth respondents that there had not been a “disposition of the funds” which satisfied the requirements of s 106B of the Act. His Honour said “[t]he money once lent was at the husband’s disposition and was so held by his solicitors”.
His Honour concluded the section did apply to an interim order and it could be set aside.
At paragraph 35 of his reasons, the primary Judge dealt with the submission that the disposition was not a disposition made by the husband. His Honour said:
… A transfer from a trust to an office account can only occur with the authority and at the direction of the person for whom the sum is held, in this case, the husband…
At paragraph 40 of his reasons, the primary Judge dealt with a submission that the order of the Judicial Registrar had to be “read down” so as not to prevent it “affecting the rights of the solicitors to receive fees”. His Honour explained that the order did not limit that right, but only directed the husband to match what was paid to the solicitor within the meaning of the orders with a like payment to the wife’s solicitor.
At paragraph 41, the primary Judge rejected the submission that the property passed directly from the sisters to the solicitors and was not “passed through the husband”. His Honour said “[t]he amount is referred to by the husband as a loan and is treated by the solicitors as being held to his credit in his account”.
Discussion
It is useful that at the commencement of our discussion we deal with the assertions made by the husband in paragraphs 13 -16 of his amended written submissions. Those paragraphs assert error by the primary Judge in failing to review the Judicial Registrar’s order and the foundation for that order.
This submission was canvassed by us with the husband during oral argument. It is sufficient we note that the husband acknowledged the Judicial Registrar’s order had not been stayed, and no review of the order was before Fowler J on 18 November 2008 or at any other time. There is simply no merit in the submissions contained in paragraph 13-16 of the amended written submissions.
It must be remembered that the application which was before the trial Judge was an application brought under s 106B of the Act. That section provides:
(1) In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
…
(2) The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order.
(3) The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
(4) A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.
(4AA) An application may be made to the court for an order under this section by:
(a) a party to the proceedings; or
(b) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or
(c) any other person whose interests would be affected by the making of the instrument or disposition.
(4A) In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1) or 90SS(1).
(5) In this section:
“disposition” includes:
(a) a sale or gift; and
(b) the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust.
“interest” :
(a) in a company includes:
(i) a share in or debenture of the company; and
(ii) an option over a share in or debenture of the company (whether the share or debenture is issued or not); and
(b) in a trust includes:
(i) a beneficial interest in the trust; and
(ii) the interest of a settlor in property subject to the trust; and
(iii) a power of appointment under the trust; and
(iv) a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and
(v) an interest that is conditional, contingent or deferred.
Put shortly, counsel for the wife argued that, as the husband’s sisters lent funds to the husband, those funds became the property of the husband, (subject to his obligation to repay the loan), that the funds were deposited to the solicitors’ trust account in his name, and that the husband by direction dated 28 March 2008 (“the disposition”) caused the funds to be paid to the solicitors in their entirety without directing one half of them to the wife pursuant to the Judicial Registrar’s orders. Thus, it was argued the primary Judge was correct in finding that the disposition could be set aside.
The husband argued that the funds he paid for legal costs could never, on the authority of Chorn & Hopkins, be “added back” to the pool of assets to be divided between the parties. We disagree. The loan funds may well have ultimately been found to be an asset of the husband. We accept that if his paid legal fees and the sums received by the wife were, in the exercise of discretion the judge at the final hearing, “added back” then any corresponding liability could also be included in the list of assets and liabilities to be divided between the parties.
The funds borrowed by the husband were paid into the solicitors’ trust account in his name. The solicitors held the funds in trust for the husband, but with knowledge of the Judicial Registrar’s order. It was the husband, not his sisters, who authorised the transfer of funds from the trust account to office account in payment of his legal fees incurred in the proceedings. Section 255 of the Legal Profession Act 2004 (NSW) was applicable. That section provides:
(1) A law practice must:
(a) hold trust money deposited in a general trust account of the practice exclusively for the person on whose behalf it is received, and
(b) disburse the trust money only in accordance with a direction given by the person.
Maximum penalty: 50 penalty units.
(2) Subsection (1) applies subject to an order of a court of competent jurisdiction or as authorised by law.
(3) The law practice must account for the trust money as required by the regulations.
Maximum penalty: 50 penalty units.
Regulation 88(1), (2) and (3)(a)(ii) of the Legal Profession Regulations 2005 was also relevant. That regulation prescribes the steps necessary to be taken before a solicitor can withdraw funds from a trust account for payment of legal costs owing to the practice by the person for whom the trust money was paid into the account.
As Faulks DCJ noted, if the husband had chosen to borrow funds from a financial institution such as a bank or credit union, and paid the sums borrowed to his lawyers for legal costs he was obliged under the orders to pay an equal amount to the wife. The source of funds for the purpose of the Judicial Registrar’s order was irrelevant. What was relevant was a payment to the solicitors. The payment in this case occurred by reason of an act of the husband. That is not to say however that the source of funds applied to his costs and the wife’s costs would be irrelevant at the final hearing.
Why leave to appeal should be refused
The principles relevant to applications for leave to appeal against interlocutory orders are well-known. An applicant seeking leave to appeal must demonstrate that there has been an error of principle and/or a substantial injustice to one of the parties: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177; Rutherford and Rutherford (1991) FLC 92-255 at 78,715.
The remarks of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc and Anor are particularly apposite:
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd.; on the other hand, De Mestre v. A. D. Hunter Pty. Ltd.. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.):
“… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
See also, Brambles Holdings Ltd. v. Trade Practices Commission; Dougherty v. Chandler. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. (footnotes omitted)
We are satisfied that there was no error of principle by the primary Judge. We are also satisfied his Honour’s interlocutory order was not one which would work a substantial injustice to the husband given the relief which he could seek by either reviewing the Judicial Registrar’s orders after applying to have Rose J’s orders set aside, or by having the borrowing taken into account at a final hearing. In these circumstances we are satisfied it is appropriate that the application for leave to appeal filed 16 December 2008 and the Amended Notice of Appeal filed 25 February 2010 should be dismissed.
The first appeal
The husband’s application for leave to appeal the orders made 27 October 2008 and 6 November 2008 was acknowledged by the husband as superseded by events which had occurred since the applications were filed. Those events were the basis of the summary dismissal application which first came before Boland J on 27 January 2010.
Before us the husband was unable to point to any relief we could grant in the event leave to appeal was granted and an appeal upheld. The application for leave to appeal and to appeal is otiose. Any doubt about that conclusion must be put to rest by the fact that both the husband and wife have withdrawn their respective applications for settlement of property under s 79 of the Act. We are satisfied this is a case where summary dismissal of the application for leave appeal is appropriate (see Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541; (1996) 136 ALR 251).
Costs
The costs of the application by the wife for summary dismissal heard initially on 27 January 2010 were reserved to the Full Court. Counsel for the wife sought costs in the sum of $4,000 for those proceedings, which led to Boland J making orders permitting the husband to file amended proposed Notices of Appeal and amended summary of argument, and for the costs of the two applications for leave to appeal.
The husband was wholly unsuccessful in his applications. Having regard to the modest quantum of costs sought, we agree with Faulks DCJ that the husband should pay the wife’s costs of and incidental to the appeal, including the reserved costs in the sum of $4,000.00.
I certify that the preceding one hundred and nineteen (119) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, Boland & Stevenson JJ) delivered on 22 December 2010
Senior Legal Associate:
Date: 22 December 2010
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