MOORE and SULTER

[2021] FCWA 47

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MOORE and SULTER [2021] FCWA 47

CORAM: DUNCANSON J

HEARD: 1 DECEMBER 2020

DELIVERED : 26 MARCH 2021

FILE NO/S: PTW 9279 of 2019

BETWEEN: MR MOORE

Applicant

AND

MS SULTER

Respondent

Catchwords:

PROPERTY - PRACTICE AND PROCEDURE - Where the husband seeks an extension of time to review the decision of a Registrar to make consent orders

Legislation:

Family Court Act 1997 (WA) s 33
Family Law Act 1975 (Cth) s 75(2), s 79
Family Court Rules 1998 (WA) r 12, r 24, r 25(2), r 26(1)
Family Law Rules 2004 (Cth) r 1.14

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr J Hedges SC
Respondent	:	Ms J Mansfield

Solicitors:

Applicant	:	Frost & Associates
Respondent	:	Paynes Lawyers

Case(s) referred to in decision(s):

Gallo v Dawson (1990) 93 ALR 479

Harris v Caladine (1991) 172 CLR 84

KLD & SCVG [2009] FamCAFC 56

Mirren & Mirren [2020] FamCAFC 94

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moore and Sulter has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1On 16 June 2020 a Registrar of this Court made consent orders for the division of the property of the husband, [Mr Moore] and the wife, [Ms Sulter].

2The application for determination is that of the husband in which he seeks an extension of time in which to apply for a review of the Registrar's order.

BACKGROUND

3The husband is 72 years of age. He is a [farmer]. The wife is 61 years of age. She is a [physiotherapist]. The parties were married [in] 1982. The parties separated [late] 2017.

4In January 2018 the husband commenced a de facto relationship with [Ms C].

5On 20 November 2019 a Family Violence Restraining Order issued against the husband protecting the wife. It was subsequently resolved by agreement on 27 February 2020.

6The parties were divorced [in] April 2020.

THE HISTORY OF THE PROCEEDINGS

7On 3 December 2019 the husband commenced proceedings for property settlement.

8On 19 December 2019 interim orders were made by consent providing that $50,000 be paid to the husband by way of partial property settlement and that [livestock] be delivered to him. The orders also provided for the husband to give disclosure with respect to livestock.

9The sum of $50,000 was paid to the husband and livestock were delivered to him pursuant to the orders.

10On 12 June 2020 the parties attended a conciliation conference. On 15 June 2020 a minute of proposed orders was circulated by the wife's solicitors.

11The conciliation conference reconvened on 16 June 2020 when final property settlement orders were made by consent by [a] Registrar. The consent orders provided that the husband retained the livestock and his business interests, the farm shed, furniture and artwork from the [Family Trust A] and [Motor Vehicle A]. The husband was to receive the sum of $34,272 held in trust by the wife's solicitor and an amount of $50,000 from the wife.

12The consent orders provided that the wife retained her home in [Suburb A] and [Family Trust B] including the farm house. The parties' children were to receive Family Trust A.

13On 18 June 2020 the wife's solicitors requested details from the husband's solicitors for the electronic transfer of funds. On 19 June 2020, the husband's solicitors wrote to the Court requesting a "meeting in Chambers to finalise Orders".

14On 22 June 2020 the husband's solicitors wrote to the wife's solicitors inter alia stating that the husband sought "a variation to a few Orders so to achieve practicality and more equity".

15On 10 July 2020 the wife's solicitors sent a trust cheque for $34,272 to the husband's solicitors. On 21 July 2020 the husband banked the cheque.

16On 16 July 2020 the husband's solicitor sought advice from Senior Counsel and provided Senior Counsel with the brief on 23 July 2020.

17On 24 July 2020 the husband's solicitor was informed by Senior Counsel that there was a review period of 28 days in respect of the Registrar's decision. The husband's solicitor advised the husband to urgently make an application to seek an extension of time for the review.

18On 29 July 2020 the parties' children were appointed trustees and appointors of Family Trust A and on 30 July 2020 the wife resigned as trustee and appointor from the trust.

19On 31 July 2020 the husband's solicitor wrote to the court enclosing an application in a case seeking an extension of time to review the consent orders. On 4 August 2020 the husband's application in a case was filed. On 11 August 2020 the husband filed a further affidavit in support of his application.

20On 12 August 2020 the wife filed a response.

21On 17 August 2020 orders were made for the parties to file affidavits and the proceedings were adjourned for hearing to 21 October 2020. The parties were ordered to comply with Case Management Guideline 58.

22Submissions were to be filed by 19 October 2020. The husband did not file submissions.

23On 21 October 2020 the hearing was adjourned. Orders were made for the husband to file any further affidavit of evidence confined to the date on which he received advice as to the time limited for a review, the asset and liabilities schedules available at the conciliation conference and the relief sought on a final basis.

24The parties subsequently filed further affidavit evidence and submissions upon which they relied.

25On 1 December 2020 the hearing was adjourned and relisted for hearing on 4 December 2020.

THE LEGAL PRINCIPLES

26A Registrar of the Family Court of Western Australia has the power to make consent orders, such power having been delegated to the Registrar by a Court or a Judge (s 33 of the Family Court Act 1997 (WA)) and r 24 of the Family Court Rules 1998 (WA) ("the rules").

27Pursuant to r 25(2) of the rules a party may apply to the Court to review an order of a Registrar within 28 days of the orders being made. A party has an absolute right to have decisions of a Registrar reviewed by a Judge (Harris v Caladine (1991) 172 CLR 84). The rules provide that a review of an order of a Registrar proceeds by way of an "original hearing" (r 26(1)).

28A party may apply to extend a time limit, either before or after the occasion for compliance has arisen pursuant to r 1.14 of the Family Law Rules 2004 (Cth) (which has been adopted by r 12 of the rules).

29The principles relating to applications for an extension of time are well settled. Those principles in relation to the time for the filing of an appeal were discussed by the High Court in Gallo v Dawson (1990) 93 ALR 479 wherein McHugh J said at 480:

The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Bums v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524, It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

30The principles are also largely applicable to applications for an extension of time to seek a review of the exercise of Registrars' powers.

31In Mirren & Mirren [2020] FamCAFC 94 the Full Court said at [19]:

The correct description of the application before the Court, therefore, was that it was for an extension of time in which to file an application for a review of the Registrar’s decision to make the property settlement consent orders. The well-known case of Gallo v Dawson (1990) 93 ALR 479 helpfully sets out the principles to the taken into account when dealing with such an application. The prime consideration is to do justice between the parties but significant considerations are the length of the delay, the explanation for the delay and the merits of the proposed proceeding.

32The effect of an extension of time is to set aside the consent orders.

Delay

33At the time of signing the consent orders and throughout the 28 day period thereafter the husband did not know of and was not advised as to the review period. Senior Counsel for the husband submitted that was the "sole reason why no steps were taken within time to apply for the review".

34The husband deposed he was concerned with the settlement that had been reached and subsequently asked his solicitor whether he could obtain a fairer outcome. The husband's solicitor recommended they obtain an opinion from Senior Counsel. On 16 July 2020 the husband's solicitor emailed Senior Counsel to ascertain his capacity to take on the matter and the husband instructed his solicitor to seek Senior Counsel's opinion. On 24 July 2020 Senior Counsel told the husband's solicitor there was a review period of 28 days, the deadline being 14 July. The husband's solicitor was not aware that the rules provided for a review period of 28 days. He then advised the husband that an application had to be made urgently to seek an extension of time for the review and he notified him of the potential conflict of interest that had arisen. The husband deposed he decided not to seek independent legal advice and he immediately instructed his solicitor to take steps to seek an extension of time.

35By letter dated 31 July 2020 the husband's solicitor wrote to the Court enclosing an application in a case seeking an order that an extension be granted to review the orders made on 16 June 2020. The letter also enclosed an affidavit and certificate of conferral. The documents were filed on 4 August 2020. Senior Counsel submitted there was no significant delay between being advised of the right to apply for an extension of time and the filing of documents. He further submitted that my discretion could be exercised in favour of the husband as the problem had arisen due to something out of his control.

36Counsel for the wife submitted the application was filed 21 days after the review period had expired and 12 days after the husband became aware of the review period.

37Having given careful consideration to the circumstances I accept that the period of delay was outwith the husband's control. Further, having regard to the timing of events, I consider the period of the delay was not excessive.

38Counsel for the wife referred to Gallo v Dawson (supra) and submitted that the husband's lack of knowledge of the review period is a misfortune and not a privilege and prima facie the husband has an action against his solicitor as a consequence of the solicitor's negligence. Counsel distinguished this from a case involving solicitor error. Counsel submitted that the costs and the length of litigation between the parties in property settlement proceedings are likely to be greater than in the prosecution of negligence on the part of the husband's solicitor.

39Counsel for the wife referred to KLD & SCVG [2009] FamCAFC 56, in which O'Ryan J stated:

45.The authorities have established that any potential claim against former solicitors is a relevant consideration in determining an extension of time, but the question of what weight is to be given to it depends on the circumstances of each case. In considering the circumstances of each case the Court should take into account the prejudice associated with confining an appellant to an action against former solicitors: see Repco Corporation Ltd v Scardamaglia (supra). It is important to consider the prejudice to the applicant for an extension of time in prosecuting the claim against the solicitors as opposed to prosecuting the original claim. Examples of prejudice may include a more complex, expensive and time consuming action against the solicitor and a diminution in the value of the claim itself: see Repco Corporation Ltd v Scardamaglia (supra) and Tsiadis v Patterson (supra). In the context of a notice of motion endeavouring to set aside a preliminary dismissal order, in Andresakis & Skouteris v Alexus Holdings Pty Ltd (supra) McColl JA at [92] discussed the principles as set out in Repco Corporation Ltd v Scardamaglia (supra) and Tsiadis v Patterson (supra).and concluded that the authorities ascribed the prospect of bringing a claim against former solicitors little weight "partly because of the difficulty of evaluating the prospects of success".

40I do not know if the husband has a potential claim against his solicitor nor can I assess the merits of such a claim. However in my view, confining the husband to a claim against his solicitor arising out of the circumstances of this matter would not meet the justice of the situation. In forming that view I take into account the history of the proceedings. I also take into account the parties' respective positions in relation to their property settlement as set out below.

The merits of the proposed proceeding

41In his initiating application the husband did not particularise his property settlement claim.

42On 12 November 2020 the husband filed a minute of proposed final orders sought. He seeks orders providing that the Family Trust B vest in him. He seeks orders that the farm shed and the farm house together with improvements, being [all of Property A], be transferred to him. He seeks an order that the wife cause the livestock registered and held by [Company A] to be transferred to him and that the wife pay to him such sum as is necessary to achieve an equal division of the parties' assets, liabilities and financial resources.

43The husband submitted an assessment of contributions should be equal and any adjustment for factors under s 75(2) of the Family Law Act 1975 (Cth) ("the Act") would be in his favour. Senior Counsel submitted that upon the husband's calculations the effect of the consent orders was well short of an equal division and depending on the asset pool, the division was in the range of 60% to 65% in favour of the wife.

44Senior Counsel for the husband pointed to the differences in the asset and liability schedules relied on by each of the parties. Those differences are as follows:

Asset	Wife's Value	Husband's Value
Property A	$1,450,000	$1,600,000
Line of credit	$491,644	$433,586
Family Trust A	$118,000	$300,000
Livestock and livestock products	$1,772,022	$154,272

45Senior Counsel submitted that in the absence of an agreed asset pool a judicial officer could not be satisfied that the settlement was just and equitable. The husband's position is that he is 10% short of an equal division and on a total value of the property of the parties, on his case, of approximately $3 million, the amount is significant. Senior Counsel submitted it gives rise to a substantial injustice to the husband if he does not have the opportunity to pursue his entitlements under s 79 of the Act.

46The wife's position is that upon her values the effect of the consent orders is a 60% division in favour of the husband.

47The wife's position is that the schedule of assets and liabilities relied on by the husband did not take into account concessions made at the conference in relation to values of real estate. She deposed she did not agree the husband's value of the livestock and the husband's schedule did not take into account the part property settlement paid to the husband, superannuation entitlements withdrawn by him and livestock products.

48The wife submitted no injustice will be suffered by the husband if the extension of time is not granted. Counsel submitted the husband seeks to retain by way of a final order, Property A, the value of which was not in dispute having been agreed at the conference. The value of the livestock remains in dispute and if the Court accepts the wife's position as to the value of the livestock the effect of the orders sought by the husband is that he will have to pay her a sum of $1,245,000.

49The value of the livestock remains a significant area of dispute with the difference in the parties' positions being over $1.6 million. This dispute is compounded by the wife's allegations of non-disclosure by the husband.

50Counsel for the wife submitted that the husband's case at the highest is a complaint that he is without a home. This is a reference to the husband's evidence that the shed is unliveable, that he is homeless and relying on his new partner. On the other hand the wife deposes the husband's livestock business is a lucrative one and she refers to the husband's de facto relationship with his partner and their residence at her [Property B].

51The division of property pursuant to the consent orders raises a substantial issue in that each party asserts that the effect of the consent orders is that the other retains 60% of the property. This occurs in circumstances where the parties each rely on a schedule of assets and liabilities which contain important differences. Values are not agreed and the amounts in dispute are significant.

Hardship or injustice to the wife

52The husband submitted that no hardship or injustice is caused to the wife which cannot be compensated. Senior Counsel for the husband referred to the money spent by the wife on improvements to the property which he submitted would be brought to account either as a contribution by her or a movement of money within the matrimonial estate. Alternatively, if the improvements made by the wife have not increased the value of the property she may submit that she has acted to her detriment and that an adjustment should be made in her favour under s 75(2)(o) of the Act to take account of this. The husband's position was there was no demonstrable detriment to the wife by the monies she has spent and if there is the Court is able to take account of it. In any event she occupies the property that she has improved.

53The wife vested assets of the Family Trust A in the children. Senior Counsel submitted that although the wife provides no value for the assets of the Family Trust A that too, is a matter that can be taken into account.

54It was conceded that there would be a delay in the final settlement of the matter, but otherwise it was submitted there was no demonstrable prejudice to the wife. The delay will impact on both parties.

55Counsel for the wife submitted the wife has acted on her vested right to retain the property to which she was entitled pursuant to the consent orders. She authorised the payment of $34,272 to the husband and she separated the farm house and the farm shed lot for tax and rates purposes. The wife obtained quotes for the erection of [a fence] between the two lots, she placed items in storage in respect of the husband's failure to collect them. The wife [renovated] the [property] at a total cost of $68,265 which was completed on 5 August 2020.

56The wife has resigned from and appointed the children to the Family Trust A.

57The wife has expended her own funds in reliance on the orders. She paid funds to the husband and resigned from the Family Trust A in implementation of the orders. It is however the case that these matters can be taken account of if the matter of property settlement proceeds to a determination.

Will compliance with the rules work an injustice upon the husband?

58To determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time.

59I have had regard to the history of the proceeding as set out above.

60The husband's position is that the livestock and livestock products have a value of $154,272. The wife's position is that they have a value of $1,772,022. The wife alleges the husband has failed to comply with orders in relation to disclosure of livestock and disclosure of a bank account.

61The husband implemented the orders by depositing the cheque for $34,272 paid from the trust account of the wife's solicitors. I accept however, he did this before he knew of his right to seek a review of the orders.

62On 9 September 2020 the husband was charged with breaching the conduct agreement order protecting the wife.

63A consequence of granting the application for the extension of time is that there will be prejudice to the wife who has acted upon the consent orders and implemented them at her expense. The parties' children have also incurred expense. The continuation of proceedings between the parties will be at considerable cost and delay to both. It is likely that valuations will have to be obtained.

64A consequence of not granting the application is that the husband will be deprived of the opportunity to seek what he asserts to be a just and equitable division of the parties' property. Having regard to the significant differences in the values as set out above it is not possible for me to reasonably assess what is a just and equitable division. Nevertheless, the consequence of the husband being deprived of the opportunity he seeks, would, in my view, work an injustice upon him.

CONCLUSION

65The grant of an extension of time is not automatic. I consider that I should exercise my discretion to extend time for the husband to seek a review of the Registrar's orders as I am satisfied that strict compliance with the rules in the circumstances of this case will work an injustice upon the husband.

THE ORDERS

1Pursuant to Rule 1.14 of the Family Law Rules 2004, the applicant husband be granted an extension of time in which to apply for a review of the orders made by consent by a Registrar on 16 June 2020.

2The parties are to confer and file a minute of proposed procedural orders within 28 days.

3The proceedings be listed for directions only on 27 May 2021 at 9.30 am.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

RM

Associate

26 MARCH 2021