MORITZEN & MORITZEN
[2018] FamCAFC 198
•18 October 2018
FAMILY COURT OF AUSTRALIA
| MORITZEN & MORITZEN | [2018] FamCAFC 198 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Where an oral application was made, out of time, at the commencement of the hearing for leave to further amend the Amended Grounds of Appeal – Where the appellant has not adequately explained delay – Where the appellant has not established that the proposed new ground has some merit – Where the property settlement order has been stayed pending finalisation of the appeal - Where although the prejudice to the respondent might be partially compensated by an order for costs, the respondent will be prejudiced by losing the opportunity to finalise the litigation – Where leave is not granted to the appellant to further amend the Amended Notice of Appeal. FAMILY LAW – APPEAL – Property orders – Whether the primary judge erred in providing for a s 75(2) adjustment in the husband’s favour only in the amount of five per cent and whether the primary judge failed to give adequate or any adequate reasons for making that adjustment – Where the challenge to the primary judge’s adjustment is unsuccessful and where the primary judge gave reasons that were more than adequate – Whether the primary judge erred in finding that the wife helped pay off the mortgage on the former matrimonial home that was in existence at the date of cohabitation or gave too much weight to such a finding – Where the primary judge did not err in making that finding and did not err in the weight given to that finding – Whether the primary judge’s discretionary decision miscarried in that it resulted in a property settlement order that was plainly wrong or manifestly unjust – Where the primary judge’s discretion did not miscarry – Where the appeal is dismissed FAMILY LAW – COSTS – Where it was conceded, in the event the appeal is dismissed, that an order for costs should be made in the respondent’s favour – Where the quantum of costs are to be on a party/party basis as agreed or assessed |
| Family Law Act 1975 (Cth) ss 75(2)(n) Family Law Rules 2004 (Cth) r 22.09 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Bevan & Bevan (1995) FLC 92-600 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Hickey & Hickey & Attorney General of Australia (2003) FLC 93-143; [2003] FamCA 395 House v King (1936) 55 CLR 499; [1936] HCA 40 Manolis & Manolis (No. 2) [2011] FamCAFC 105 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Pates & Pates [2018] FamCAFC 171 Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74 Tomasetti & Tomasetti (2000) FLC 93-023; [2000] FamCA 314 White and Tulloch v White (1995) FLC 92-640 |
| APPELLANT: | Mr Moritzen |
| RESPONDENT: | Mrs Moritzen |
| FILE NUMBER: | SYC | 1435 | of | 2016 |
| APPEAL NUMBER: | EA | 80 | of | 2018 |
| DATE DELIVERED: | 18 October 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 15 October 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 May 2018 |
| LOWER COURT MNC: | [2018] FCCA 1073 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Johnston |
| SOLICITOR FOR THE APPELLANT: | MCW Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Othen |
| SOLICITOR FOR THE RESPONDENT: | Watkins Tapsell |
Orders
The appeal be dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to the appeal on a party/party basis, such costs to be assessed or taxed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Moritzen & Moritzen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 80 of 2018
File Number: SYC 1435 of 2016
| Mr Moritzen |
Appellant
And
| Mrs Moritzen |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 14 June 2018, Judge Harper made a property settlement order dividing the net assets of the parties in the sum of $2,267,245 as to 53 per cent to the wife and 47 per cent to the husband. That division was achieved by:
a)Requiring the wife to transfer any interest she had in the former matrimonial home to the husband upon him paying to the wife the sum of $19,664; and
b)Distributing to the wife all of the remaining assets which included shares held with public companies, the balance proceeds of the sale of a property, two bank accounts and the whole of the parties’ entitlements in a self-managed superannuation fund.
By the Amended Notice of Appeal filed on 13 September 2018, the husband challenges the property settlement order on three grounds (one of those grounds in two parts).
BACKGROUND
The husband is 71 years of age and the wife is 67 years of age. The parties commenced cohabitation in July 1979, married in July 1980 and separated in September 2013. The parties were together 34 years.
There are two adult children of the marriage born in 1984 and 1985.
The husband is retired and the wife intends to cease part-time work at the conclusion of this case.
At the commencement of the relationship, the wife had $115,221 in savings and shares and an entitlement of indeterminate value in two family trusts. The husband had equity in the former matrimonial home which he estimated, and the primary judge accepted, was worth at least $90,000 but subject to a mortgage of an unknown amount. The primary judge did, however, accept that the husband’s assets were probably greater than the wife’s at the commencement of cohabitation. The parties had no superannuation.
The primary judge describes how both parties made contributions of a direct and indirect nature during the marriage and in the role of homemaker and parent. One significant feature of that history was the receipt by the wife of gifts from her mother between 1979 and 2002 of the sum of $352,000 and a distribution in 2003 and 2004 of shares and cash from the two family discretionary trusts in the sum of $1,047,000. In contrast, the husband received inheritances between 2000 and 2004 in the sum of $200,000 and a clock worth $19,800.
The primary judge at [22], identified that he intended to take the “4 step approach” identified in Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143.
The primary judge:
a)Assessed contributions to the pool of $2,267,245 as to 58 per cent to the wife and 42 per cent to the husband (“Step 2”);
b)Discussed all relevant considerations pursuant to s 75(2) and concluded the husband should receive a five per cent adjustment in his favour (“Step 3”); and
c)Stood back and considered the effect of the contributions and s 75(2) findings and resolved that a just and equitable property settlement order required a 53/47 division of the net assets in the wife’s favour (“Step 4”).
Grounds of appeal
I will deal with the grounds of appeal in the order in which counsel for the appellant argued them.
Grounds 3A and 3B
Grounds 3A and 3B are as follows:
3A. That his Honour erred in that he failed to give adequate or any adequate reasons for making an adjustment of 5% for section 75(2) factors in favour of the husband.
3B. His Honour erred in providing for a section 75(2) adjustment in the husband's favour in the amount of 5% which resulted in the husband being unable to retain the [former matrimonial home] in circumstances where:
a.The property had been his home for the past 37 years;
b.The husband had already paid out his previous wife's interest in the property;
c.The husband discharged the mortgage over the property;
d.The husband maintained and improved the property for 37 years;
e.The amount the husband is required to pay the wife in the sum of $19,664 amounts to a mere 0.8673% of a net pool of $2,267,245;
f.The wife conceded that it would be sensible for the husband to retain the home;
g.The husband is a pensioner, is 70 years of age and has no borrowing capacity;
h.His Honour's order left the wife with all of the investments, bank accounts, trust funds and 100% of the husband's superannuation entitlements; and
i.Even if he did not have to pay the sum of $19,664 to the wife the husband was left penniless with a 5% adjustment for his future needs.
At [100] of the reasons, the primary judge states that he intends to consider all matters relevant to a s 75(2) adjustment, which he then discusses at [101] - [133]. The primary judge has adopted a conventional approach to the assessment of s 75(2) factors (see Tomasetti & Tomasetti (2000) FLC 93-023). Counsel for the appellant concedes that the primary judge recited each subsection of s 75(2) and made some appropriate findings in relation to most subsections. The primary judge concludes at [135] that the adjustment should be five per cent in the husband’s favour.
Counsel for the appellant asserted that the primary judge failed to give adequate reasons to explain:
a)His assessment of the effect of the proposed property settlement order;
b)What weight was to be given to the wife’s potential inheritance upon the death of her mother; and
c)Why he preferred an assessment of five per cent as opposed to ten per cent or any other percentage.
Failure to explain the effect of the assessment of the proposed property settlement order
It is uncontroversial that both parties considered it was appropriate for the husband to keep the house if possible (see [2], [138] and [149] of the primary judge’s reasons).
Counsel for the appellant asserted that the primary judge’s discussion of s 75(2)(n) of the Act is inadequate.
Before discussing the primary judge’s treatment of s 75(2)(n) of the Act, as discussed in submissions, the question arises as to whether or not it is relevant to consider that subsection at all. Whilst the primary judge refers to a “Section 75(2) adjustment” it is more accurate to refer to it as a s 79(4)(e) adjustment. Section 79(4)(e) provides that in considering what order (if any) should be made under s 79, the court shall take into account:
(e)the matters referred to in subsection 75(2) so far as they are relevant
(Emphasis added)
Subsection 75(2)(n) is in the following terms:
(n) the terms of any order made or proposed to be made under s 79 in relation to:
(i) the property of the parties….
Section 75(2) lists the matters that are to be taken into consideration in relation to spousal maintenance. It is clearly relevant in a spousal maintenance application to take into account any order proposed to be made under s 79 of the Act (see Bevan & Bevan (1995) FLC 92-600). Arguably, it is not conceptually logical to take s 75(2)(n) into account at the third step of the “preferred approach” (Hickey), because at that point the proposed property settlement order is not known.
Counsel for the appellant complains that the primary judge’s consideration of s 75(2)(n) of the Act is inadequate.
When considering s 75(2) matters seriatim under the heading “s 75(2)(n)”, the primary judge says at [121]:
I have considered the terms of the orders proposed under s.79 of the Act in relation to the property of the parties. I refer to the discussion below.
It is tolerably clear that the reference in [121] to “the discussion below” is a reference to the primary judge’s discussion contained at [142] to [149] of the reasons. These paragraphs are found in the primary judge’s consideration of the fourth step. The primary judge concisely discusses and sympathetically deals with the husband’s desire that a property settlement order should be made which allows the husband to retain the matrimonial home. At [142] – [154], the primary judge turned his mind to and discussed whether a just and equitable order could be made which gave the husband an opportunity to retain the former matrimonial home, and which was not irreconcilable with the primary judge’s findings on contributions and s 75(2) matters (Manolis & Manolis (No. 2) [2011] FamCAFC 105 at [65] and [66]). The primary judge clearly explained why he found that the husband could have the opportunity to keep the former matrimonial home but on the condition that he pay to the wife the sum of $19,664.
The reasons given by the primary judge at step 4 for his conclusions about the effect of the s 79 order are more than adequate.
Failure to explain what weight was given to the wife’s potential inheritance
Counsel for the appellant challenges the adequacy of the primary judge’s reasons about the wife’s expected inheritance if her mother dies, which the primary judge found “could fall in the vicinity of $850,000”. The wife’s mother, at the date of the hearing, was 99 years old and had problems with her health.
At the hearing before the primary judge, the husband’s written submissions concerning the wife’s probable inheritance was that a finding could be made that the wife will inherit at least $850,000 and “your Honour would consider the probability of the wife’s inheritance as a s 75(2)(o) factor”.
During oral submissions, the primary judge asked counsel for the husband whether or not the inheritance stood “as a very likely expectancy”. Counsel for the husband indicated that it did not rise above an expectancy and referred to the Full Court’s decision in White and Tulloch v White (1995) FLC 92-640.
These submissions were made in the context of an overall submission by the husband at the hearing that he should receive a five to ten per cent adjustment for 75(2) considerations (albeit on the basis that there had been a finding that contributions by each of the parties were equal). During oral submissions before me, counsel for the appellant provided a mathematical analysis that was not provided to the primary judge. The point of that analysis was to attempt to demonstrate that the primary judge had failed to explain what weight he had given to the wife’s potential inheritance.
The primary judge discussed the wife’s potential inheritance at [123] to [133] of the reasons. Given the extent of the submissions made in respect of this factor at the hearing, I consider that the reasons given by the primary judge to be fulsome.
The primary judge at [131] finds that the inheritance is sufficiently proximate to be taken into account but concludes at [133]:
However, although mindful of this undisputed evidence of the specific likely components of the inheritance, I consider it appropriate only to have regard to it in a general way. It is problematic to accept the calculated value submitted by the husband in a mathematical way. Many factors may yet intervene. Real estate markets could fall or rise. Share markets are volatile. There may be significant medical costs for the wife’s mother which may erode the more liquid assets such as cash and shares, or lead to the necessity for the wife’s mother’s interest in [her] property being sold. There may be other unforeseen calls on the assets potentially comprising the expected estate.
The Full Court in Tomasetti at [113] warned against determining, separately, the percentage adjustment called for by each s 75(2) consideration and then reaching an overall percentage by aggregating components. The primary judge adequately explained the manner in which he weighed the wife’s potential inheritance upon the death of her mother and did so in the context of considering all other relevant s 75(2) matters.
Failure to give reasons for only making a five per cent adjustment in the husband’s favour for s 75(2) considerations
Counsel for the appellant argues that, notwithstanding the detailed reasons given between [101] and [133], when the primary judge comes to set a percentage he failed to give reasons as to why he preferred an assessment of five per cent as opposed to 10 per cent or any other percentage.
In Pates & Pates [2018] FamCAFC 171 the Full court said at [61]:
the task of moving from a qualitative to quantitative assessment of the parties’ contributions is a difficult one and inevitably involves a leap from words to figures (see Mallett v Mallett (1984) 156 CLR 605 at 625; Van der Linden & Kordell [2010] FamCAFC 157 at [90]; Teal & Teal [2010] FamCAFC 120 at [36]; Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234]).
There is nothing unconventional in the reasoning process of the primary judge. His reasons are comprehensive and more than adequate to explain the conclusion that he has reached in relation to the s 75(2) adjustment.
Ground 3A, accordingly, fails.
Error in providing a s 75(2) adjustment to the husband of only five per cent?
At the hearing, counsel for the appellant put to the primary judge that there ought to be an adjustment of five to ten per cent in the husband’s favour for s 75(2) considerations. Counsel for the respondent submits that the appellant cannot now complain about receiving a five per cent adjustment. I don’t accept the submission by counsel for the appellant. As earlier indicated, the range of five to ten per cent was suggested to the primary judge by the counsel for the appellant after a submission that contributions should be assessed as equal.
Counsel for the appellant submits that when the primary judge stood back and took the holistic approach the primary judge’s discretion miscarried by finding that the adjustment for 75(2) considerations should be five per cent.
Kirby J in CDJ v VAJ (1998) 197 CLR 172 at 231 stated that “any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions”. This court has no authority to substitute a finding of a different percentage simply because had another judge heard the case a different finding might have been made. Given “the generous ambit within which reasonable disagreement is possible” (per Brennan J in Norbis v Norbis (1986) 161 CLR 513 at [539] – [540] quoting Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at p 345), the appellant has not established that the primary judge was in error in providing a s 75(2) adjustment of 5 per cent.
Ground 3B fails.
Ground 2
Ground 2 is as follows:
2. His Honour erred in finding (paragraph 94) that the wife helped pay off the mortgage secured over the [former matrimonial home] in circumstances where:
a.The parties were married in July 1980 when the husband already owned the property subject to a mortgage to the United Permanent Building Society;
b.The wife ceased employment in 1983 (paragraph 50) and did not return to part-time employment until 1989;
c.The mortgage balance between 1 November 1988 and 1 August 1989 was only $5,938.52 down to $5,291.16 (paragraph 50) with payments coming from the husband's personal account (Annexure 1 to his Affidavit);
d.The balance of the mortgage was discharged in 1991 by the husband.
Or in the alternative, his Honour clearly gave too much weight on such finding.
At [94] the primary judge found:
I accept that the initial contribution of the [former matrimonial home] by the husband has allowed the general pool of assets of the parties to grow with the value of the property, and it gave the parties a residence. However, the wife submitted that her income helped pay off the mortgage secured against the [former matrimonial home], so it should not be attributed to the husband alone as a contribution. I accept this argument to the extent that it appears undisputed that the [former matrimonial home] was subject to the United Permanent Building Society mortgage until the redundancy payment from [A] in 1991. This means it had to be serviced for the first 11 years of the marriage. There is no evidence of the quantum of such payments.
The primary judge found “the wife helped pay off the mortgage” and accepts the payments were not solely as a result of the husband’s contributions, without attempting to quantify those payments. Counsel for the wife submits that these findings by the primary judge at [94] were wrong.
At [7] of his trial affidavit, the husband gives evidence that:
a)In 1979 he owned the former matrimonial home which he estimated had a value of at least $90,000 at that time;
b)The former matrimonial home was subject to a mortgage with United Permanent Building Society. There is no evidence as to what the amount of that mortgage was in 1979; and
c)On 1 November 1989, there is evidence of a loan account with National Mutual Royal Savings Bank Ltd in the sum of $5,938.52.
At [50] of the reasons, the primary judge says:
The exact relationship between United Permanent Building Society and National Mutual Royal Savings Bank Limited was not explained. In any event, there was no clear evidence of the debit balance 8 years earlier at the commencement of the relationship….
As found in [94] of the reasons, the mortgage was discharged in 1991.
The husband argues there is no evidence the wife made any contributions to mortgage payments. It is, however, uncontroversial that between 1979 and 1991 the wife was engaged in paid employment, both on a full time basis and a part time basis, for some of that time and she ceased full time work in 1983 before the birth of the first child of the marriage in March 1984. The younger child was born in 1985. It is not controversial that the wife made contributions of various types by her personal exertion during the period from 1979 to 1991.
There is no error in the obvious factual finding by the primary judge that the mortgage payments on the former matrimonial home between 1979 and 1991 could not be seen as contributions by the husband alone.
As to the assertion that the primary judge “clearly gave too much weight on such finding”, in the last sentence of [94], the primary judge correctly observes there is no evidence of the quantum of payments made on the mortgage. It is, accordingly, not apparent that the primary judge put any particular weight on that finding.
Accordingly, Ground 2 fails.
Ground 1
Ground 1 states:
His Honour’s discretionary decision miscarried in that the result embodied in his order was plainly wrong and manifestly unjust.
This ground is apparently founded upon the following passage from House v King (1936) 55 CLR 499 at 505:
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way it has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In respect of this ground, the appellant relied solely on the submissions contained in his summary of argument dated 13 September 2018. Those submissions assert that the property settlement order was plainly wrong and manifestly unjust because of the asserted errors in Grounds 3A, 3B and 2. Given the errors relied upon have not been established, I do not accept the appellant’s submission in support of this ground.
I am otherwise unable to conclude that the property settlement order made by the primary judge was plainly wrong or manifestly unjust.
Ground 1 fails.
Conclusion
The appellant has not established any ground of appeal and the appeal will be dismissed.
Oral application for leave to file a further Amended Notice of Appeal
On the morning of the hearing, counsel for the appellant sought to make an oral application for leave to further amend the Amended Notice of Appeal to include a fourth ground in the following terms:
His Honour erred in his assessment of the contribution based entitlements of the parties by giving insufficient weight to the contributions of the Appellant and by giving excessive weight to those of the Respondent.
On 15 October 2018, by consent, I granted the appellant leave to make the oral application. The respondent opposed the application for leave to amend the Amended Notice of Appeal. I dismissed the appellant’s application and reserved my reasons. I now provide those reasons.
The appellant’s Notice of Appeal was filed 21 June 2018. On 24 August 2018, I made an order that the appellant file and serve a written summary of argument and any list of authorities on or before 14 September 2018.
Rule 22.09 provides that a Notice of Appeal may be amended without permission at any time up to and including the date fixed for filing of the summary of argument by the appellant.
An Amended Notice of Appeal was filed 13 September 2018 along with the appellant’s submissions and list of authorities.
Counsel for the appellant acknowledged that he needed leave to amend his Notice of Appeal at the hearing.
Guidance in respect of the exercise of discretion in relation to the application for leave to extend time is found in the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at pages 480 - 481. The central question is whether a grant or refusal of an extension of time would result in an injustice and in particular, his Honour looked at the following considerations:
a)Explanation for delay;
b)Whether the proposed ground of appeal had merit; and
c)Whether there was prejudice to the respondent that might not be compensated by an order for costs.
Counsel for the appellant was counsel at the hearing, drew the Notice of Appeal, Amended Notice of Appeal and summary of argument and offered no satisfactory explanation for the delay.
Exhibit 1 sets out the arguments that the appellant wishes to advance under the proposed new Ground 4. These arguments raise, for the first time, a challenge to the overall weight that the primary judge gave to the myriad of contributions made by both parties over a long marriage, including the contributions provided by each party, unrelated to their personal exertions, from outside the marriage. Counsel for the appellant sought to argue that the primary judge’s finding, that the wife’s contribution based entitlements were 16 per cent greater than the husband’s, amounted to appealable error. Apart from the matter raised in Ground 2 of the Amended Notice of Appeal, there is no challenge to any factual finding made by the primary judge in relation to contributions. It is notoriously difficult to appeal a discretionary decision on the basis that the primary judge had not properly weighed and considered the myriad of contributions in respect of which the primary judge has made unchallenged findings.
Counsel for the appellant sought to rely on a statement by the Full Court in Pierce v Pierce (1999) FLC 92-844 at [28] that it was necessary, in considering the weight to be attached to the initial contribution, to have regard to the use made by the parties of the contribution.
Whilst seemingly acknowledging that the wife initially contributed $104,221 in shares at the commencement of the cohabitation, the husband wished to assert in the appeal that the wife gave no evidence as to what became of them. There is currently on the balance sheet at the date of trial shares held by the wife in the sum of $331,000. Counsel for the appellant somewhat inconsistently sought to argue on the one hand that no use had been made by the parties of the shares because they had simply sat there, (the submission in Exhibit 1 being, “It is as if the wife’s contribution of her share portfolio never existed”), but on the other argue that there was no evidence to establish that the initial shares the wife brought into the marriage were the same shares that were held now.
Exhibit 1 also refers to the findings by the primary judge, as set out above, that in 2003 and 2004 the wife received shares and cash from two family discretionary trusts in the sum of $1,047,000 in contrast to the husband receiving a cash inheritance between 2000 and 2004 in the sum of $200,000. Counsel for the appellant sought an opportunity to argue that the wife did not properly establish in her evidence at hearing how these funds were applied.
Putting aside the question of whether these arguments were raised with the primary judge, counsel for the appellant did not establish that the proposed Ground 4 had any merit.
Counsel for the respondent indicated that he had not had the time to take instructions in relation to the proposed new ground of appeal and the arguments set out in Exhibit 1. He foreshadowed that it may well be likely that the wife would wish to file a cross appeal in circumstances where the appellant now sought to put into question the primary judge’s findings in relation to contributions.
The basis of a cross appeal by the respondent in respect of contributions is apparent from [19] and [20] of the respondent’s summary of argument which is as follows:
19.As for the complaint of weight, the wife’s contributions during the marriage from her mother’s wealth totalled $1.4 million (69 and 73 of the reasons), and the husband received a $200,000 inheritance. She brought wealth to the marriage of $115,000 whereas the husband brought the [former matrimonial home] subject to mortgage. (Although on any view this was worth less than the wife’s contribution as just set out, the husband was found to have made greater contributions initially).
20.The wife was found to have made 58% of the contributions, 16% or $362,775 more than the husband. This represents a massive discounting of the wife’s far superior contributions, and so a complaint that too much weight was given to one particular contribution of the wife’s (towards a relatively modest mortgage balance which was serviced for 11 years) can have no merit.
I concluded that it was likely, if the appellant was given leave to add the additional ground of appeal, that the time allocated for the appeal would be lost and the matter adjourned to another day. Whilst it might be suggested that the respondent could be compensated by way of an order for costs, counsel for the respondent made clear in his summary of argument that the respondent was keen to have matters which had been unresolved for five years, come to an end. Counsel for the respondent also referred to the fact that the primary judge granted a stay of the orders of 14 June 2018 pending the resolution of the appeal and accordingly, the respondent was currently without the fruits of her litigation.
In addition, in these times of stretched judicial resources, I am mindful that providing a new hearing date for this appeal would likely displace and delay other litigants who seek to have their case heard (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175).
For these reasons, the application for leave to file a further Amended Notice of Appeal was dismissed.
Costs
Counsel for the appellant conceded that in the event the appeal was dismissed the respondent’s application for costs could not be resisted. Counsel for the appellant submitted that the court should not make an assessment of costs rather make an order for the costs of and incidental to the appeal on a party/party basis be assessed or taxed in default of agreement. Counsel for the respondent submitted that it would be appropriate for the court to assess the costs of the appeal in order to bring the litigation to finality. He relied upon Exhibit 5 which indicated that the wife’s costs of the appeal were around $25,000 and suggested an appropriate quantum of the wife’s costs would be 65 per cent; namely $16,250. Counsel for the respondent conceded, however, that the respondent had not provided the appellant with any document itemising the appellant’s costs. In those circumstances, I shall make a costs order in the form suggested by the appellant.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 October 2018.
Associate:
Date: 18 October 2018
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