MYRTLE & MYRTLE - [2014] FamCAFC 31

FAMILY COURT OF AUSTRALIA

MYRTLE & MYRTLE

[2014] FamCAFC 31

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – PROPERTY – where the trial judge is said to have erred in his assessment of the respective contributions of the parties and in the adjustment made for the relevant s 75(2) factors – where there is no merit in any of the grounds of appeal – appeal dismissed.

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where the respondent sought an order for costs – where the appeal was wholly unsuccessful – order for costs made.

Family Law Act 1975 (Cth) s 75(2)(o), s 117(2A)

Coulton v Holcombe (1986) 162 CLR 1
Gronow v Gronow (1979) 144 CLR 513
Metwally v University of Woollongong (1985) 60 ALR 68
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Water Board v Moustakas (1988) 180 CLR 491

APPELLANT:

Ms Myrtle

RESPONDENT:

Mr Myrtle

FILE NUMBER:

BRC

11689

2009

APPEAL NUMBER:

2012

DATE DELIVERED:

5 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Ainslie-Wallace & Murphy JJ

HEARING DATE:

7 August 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 June 2012

LOWER COURT MNC:

[2012] FamCA 460

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page QC

SOLICITOR FOR THE APPELLANT:

Biggs Fitzgerald Pike

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

The appeal be dismissed.
The wife pay the costs of the husband of and incidental to the appeal, such costs to be assessed in default of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Myrtle & Myrtle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 65 of 2012
File Number: BRC 11689 of 2009

Ms Myrtle

Appellant

And

Mr Myrtle

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 3 October 2012 Ms Myrtle (“the wife”) appeals against property settlement orders made by Kent J on 19 June 2012, Order 1 of which provided for a 50 per cent/50 per cent division of the parties’ net property pool, and the balance of which gave effect to that division. On appeal, the wife seeks that that order be set aside and in lieu thereof an order be made for the parties’ net property pool to be divided 60 per cent/40 per cent in favour of the wife.
The respondent in the appeal, Mr Myrtle (“the husband”) opposes the appeal.

Background

The wife was born in 1961 and the husband was born in 1962.
The parties commenced cohabitation in 1985, married on in 1990 and finally separated on 3 August 2009.
The parties have two children aged 20 and 18 years at the time of trial.
At the commencement of cohabitation the wife was working in the finance industry and continued to do so until shortly before the birth of the parties’ eldest child in May 1992. Thereafter she did not engage in paid external employment.
Throughout the relationship the husband worked in the communications industry. On 3 August 2005 X Pty Ltd (“the Company”) was registered; it acted as trustee for the Myrtle Family Trust (“the Trust”) and employed the husband as a consultant. Both parties were directors and equal shareholders in the Company and the husband was the guardian and appointor of the Trust, of which the parties’ children were primary beneficiaries and both parties were general beneficiaries.
Between 1998 and early 2000 the parties purchased a retail business called “FL”, however, that business was never successful and incurred losses.
At the beginning of 2000 the family moved from Sydney to Brisbane because the husband secured a contract with Company AA. They returned to Sydney in 2002, and then again returned to Brisbane in 2007.
In about July 2008 the husband obtained a new contract for consulting in Perth and was pursuing that employment at the time of the parties’ final separation.
Throughout the marriage the parties were engaged in the buying and selling of real estate in both New South Wales and Queensland.
After separation the wife and children continued to reside in the former matrimonial home at Suburb W, while the husband initially resided in Melbourne before taking up a contract in Town BB in November 2009.
The husband’s income from his consultancy work (via the Company and the Trust) maintained the parties’ property portfolio both prior to and post separation as the rental income from the various properties was not sufficient to meet the expenses incurred in relation to those properties.
The wife commenced full-time study in July 2010, however, at the time of trial she had discontinued those studies temporarily.
On 22 December 2009 the wife filed an Initiating Application in the Federal Magistrates Court (as it then was) seeking interim and final property settlement orders.
On 15 April 2010 Federal Magistrate Purdon-Sully (as she then was) made orders by consent which provided, inter alia, for the husband to pay the wife a lump sum of $15,000, the nature and characterisation of which would be determined at settlement or trial.
On 20 January 2011 the husband, having received an expert valuation of two pieces of artwork which were in contention, sought and obtained an Anton Piller order.
On 8 February 2011 the proceedings were transferred to the Brisbane Registry of the Family Court of Australia.
The matter initially came before Kent J for trial on 30 and 31 August 2011 and continued on 5 September 2011. His Honour noted, in relation to the balance sheets tendered by each party on 5 September 2011, that the trial proceeded on the basis it was unnecessary for the Court to resolve any differences in values ascribed to items of real property, because those properties would be sold. In relation to items of property sought to be retained by the parties, his Honour noted the parties ultimately agreed there ought to be orders for sale, with each party being at liberty to bid at auction for those properties.
On 5 September 2011 counsel for both parties informed the Court the parties had reached agreement “in principle” concerning the issues of adult child maintenance and the sale of real property, but that they were unable to agree on the terms of the orders to give effect to their agreement. The parties were given leave to provide further written submissions, which the husband filed on

6 September 2011 and the wife filed on 21 September 2011.
On 25 October 2011 the Court received correspondence from the husband’s solicitors confirming the parties had still been unable to agree on the terms of the orders. The matter was subsequently relisted for further submissions on

15 November 2011, and this was delayed until 6 December 2011.
Kent J made orders and delivered his reasons for judgment on 19 June 2012.

Reasons for judgment delivered on 19 June 2012

The trial judge commenced his reasons for judgment by providing the background of the parties and of the proceedings, and by outlining the parties’ applications.
In relation to credit, the trial judge found both the husband and wife had (at [51])
… demonstrated fundamental failures of honesty and personal integrity, leading to the conclusion that neither is a credible witness, and the Court must adopt a cautious approach to the uncorroborated evidence of either of them on disputed issues of fact.
In particular, his Honour referred to the wife’s evidence about the existence of the artworks and her failure to initially disclose the inheritance she received from her late father in June 2010. The trial judge also noted the husband had knowingly made false declarations to the Australian Taxation Office and that the husband had sought to attribute blame to the accountant and the wife, and failed to correct misstatements relied upon by the Court.
After setting out the relevant law, the trial judge noted he agreed with the parties that the global approach should be adopted.
First, the trial judge outlined the evidence in relation to the two artworks. It was the husband’s case that both paintings had hung in the dwellings occupied by the parties, that the paintings were hung in the former matrimonial home at the time of separation, and that the wife had since actively concealed the paintings from the disclosure and valuation process. It was the wife’s case that the paintings did not exist.
Upon considering the evidence before the Court, the trial judge made a finding that the paintings did exist. His Honour found the wife’s denial of the subject paintings existence to be a “deliberately false denial” and thus, the husband’s case was made out.
As to the value of the two paintings, his Honour noted Ms B was appointed as the single expert but that on the first day of trial the wife was given leave to rely upon the expert evidence of Mr N. The experts compiled a joint statement in which they agreed the Mr D painting had a value of $10,000, however, Mr N was of the view the Mr C painting was worth no more than $13,000 to $15,000, whilst Ms B was of the view it was worth $60,000. In short, the trial judge rejected Ms B’s value of the Mr C painting. His Honour therefore proposed to include both paintings in the pool at the sum of $10,000 for the

Mr D painting and $15,000 for the Mr C painting.
Secondly, the trial judge considered the evidence as to the net proceeds of sale from the parties’ investment property at RR Street, Town J. It was not in issue that on 13 October 2009 the husband received net proceeds of sale in the amount of $119,923.97, however, it was the wife’s contention that that amount ought to be notionally added back to the pool as being a premature distribution to the husband. The husband acknowledged he had used $57,620.16 towards his legal costs (which he agreed should be added-back to the pool) and gave evidence of other expenditure from the proceeds of sale in his NAB account. The wife also contended the husband should notionally add-back $35,000 that he received from the wife (out of $100,000 she removed from a term deposit at separation), however, at no point in his evidence did the husband deal with this payment. After outlining the relevant law on add-backs, the trial judge found the husband’s accounting for the full proceeds of the RR Street sale fell “well short in circumstances where the Husband was well aware from the outset of the proceedings that this was a significant issue for the Wife” and when “specified then-future anticipated expenses”, for which the money had been quarantined, had for the most part not been met.
Ultimately, the trial judge concluded it was “just and equitable to take the following approach with respect to the divisible pool”:
a)to notionally add-back the amount of $83,000 referable to the RR Street proceeds (being $119,923.97 less $15,000 paid to the wife, $6,000 for renovations on the former matrimonial home, and $15,835 being the balance of the husband’s NAB account as at 13 June 2011);
b)to notionally add-back the sum $35,000 received by the husband;
c)to include as liabilities the parties’ outstanding taxation liabilities and the accumulated land tax liability of $40,301; and
d)to exclude the other outstanding liabilities identified in the husband’s balance sheet.
Thirdly, the trial judge considered the issue of the wife’s alleged loans from her sisters, Ms NN and Ms OO, totalling $32,640, which the wife submitted was to meet her personal expenses, family expenses and litigation funding. The wife sought to have this amount included in the pool as a liability. His Honour was of the view, given his findings as to the wife’s credibility, the lack of direct evidence from either sister assumed “particular significance” as it created uncertainty as to the characterisation, terms and likely enforcement of any such loans. Thus, his Honour declined to include the loans as a joint liability.
Fourthly, the trial judge considered the characterisation of the $15,000 paid to the wife pursuant to Federal Magistrate Purdon-Sully’s orders of 15 April 2010. On the evidence the trial judge rejected the husband’s submission that justice and equity demanded the sum be characterised as a partial property settlement and added-back to the pool, instead finding that it should be “reasonably treated as expenditure by the wife upon her needs”.
Fifthly, the trial judge considered gambling losses incurred by the wife between 2006 and early to mid-2008. The wife estimated a figure of $80,000 and the husband broadly contended the losses might be as high as $100,000, however, neither party produced cogent evidence to corroborate any particular figure. Upon considering the relevant authorities and the unchallenged expert evidence of psychiatrist Dr SS, the trial judge found the wife (at [233]):
… lacked control over her compulsive gambling habit during the period she was a pathological gambler and that she did seek treatment for her addiction which has resulted in her not gambling since 2008.
On that basis the trial judge determined not to notionally add-back the wife’s gambling losses.
Next his Honour turned to the issue of legal fees. The parties had agreed the legal fees paid by each from capital were to be added-back to the pool, namely $57,620.16 on behalf of the husband (already included in the above mentioned $83,000) and $27,083 on behalf of the wife.
Lastly, the trial judge considered the “other pool issues”. His Honour declined to include as joint liabilities the $16,000 credit card debt of the husband or any outstanding school fees and like expenses accounted for as periodical expenses in his Financial Statements. The trial judge also found the wife had concealed a Georgian sideboard and silk rugs and that there was jewellery available to her which may not have been disclosed, however, as there was no expert evidence to support the values of those items the trial judge determined to take them into account under s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”). The parties had agreed the value of chattels in the former matrimonial home to be $32,957, however, it was the wife’s proposal that she retain chattels worth approximately $8,000, with the balance to be held on trust by her for the children. Although the husband initially agreed with that proposition, in his subsequent written and oral submissions he resiled from any position which would see the relevant values not being taken into account. Thus, the trial judge determined to include the value of the chattels in the divisible pool and proposed to make specific orders as to the division of chattels to be retained by the husband.
At [256] the trial judge set out a table of the parties’ divisible property pool. His Honour noted many of the subject real properties would be sold so the net sale proceeds would be divided, rather than the estimated values taken into account. The parties’ accountant had also provided estimates of the capital gains tax attributable to each of the real properties upon their sale, totalling $297,849. The total property pool, including add-backs, was $1,323,562.80 for the husband and $1,453,562.80 for the wife.
As to contributions, it was not in issue that the wife “substantially bore a major share of responsibility for homemaking and parenting”, particularly given the time the husband worked away. Although both parties gave competing versions as to the extent of the role each played in the acquisition, management and improvement of the various real properties accumulated over the course of the marriage, the trial judge was “comfortably satisfied” that each party had a role to play and both applied themselves to these roles, albeit in different ways.
In relation to initial contributions, his Honour noted the husband received a gift of $28,000 to $30,000 from his family, in about 1992 the wife received a redundancy payment of $16,000, and in about 2000 the husband received a gift of $330,000 from his mother, Ms JJ Myrtle, which she had derived from the estate of her late brother. Whilst his Honour found, given the length of the parties’ relationship, it would be unreasonable to differentiate between the parties on the basis of the gift and the redundancy payment, his Honour found it was appropriate to treat the gift from Ms JJ Myrtle as a contribution by the husband. Whilst the parties gave vastly differing accounts of the use made of the gift, his Honour found in one form or another it was applied to the marriage and the fact it was absorbed in losses from the parties’ retail business did not diminish its significance.
In relation to post-separation contributions, the trial judge found the husband continued to apply his income for the mutual benefit of the parties by meeting shortfalls in rental income, and that the wife continued most of the parenting and applied her own inheritance to medical expenses and expenses for the children. His Honour also found the wife notionally contributed to the sale proceeds of the RR Street property and the $35,000 of capital which the husband used over the post-separation period, whilst the wife had to resort to a commercial provider to fund her litigation expenses and borrowings from family members to meet her needs during the post-separation period.
It was submitted on behalf of the husband that there should be an adjustment of not less than 15 per cent in his favour on account of the $360,000 contributed by him which amounted to 26 per cent of the pool. It was submitted on behalf of the wife that an adjustment of 10 per cent ought to be made in her favour on the basis of her very significant contributions as homemaker and parent.

His Honour was of the view the 30 per cent disparity proposed by the husband placed (at [277])
too much emphasis upon the capital introduced by the Husband via his family, given the many and varied other ‘myriad’ of contributions by both parties over a significant period of time, having regard also to the overall length of the marriage and the Wife’s role as a homemaker and parent.
His Honour therefore assessed the parties’ contributions-based entitlements at 60 per cent/40 per cent in favour of the husband.
The trial judge then turned to consider ss 79(4)(d), (e), (f) and (g) and

s 75(2) of the Act. His Honour found the husband would retain his “high earning capacity” of approximately $230,000 per annum for a “significant future period”, although he would have an agreed liability of adult child maintenance of $41,600 per annum and would continue to have responsibility for the investment properties until their sale. The trial judge found there would be a significant disparity of income earning capacity between the parties, even if the wife retrained and was earning an income of approximately $50,000 per annum. His Honour also noted the effect of the marriage on the wife’s earning capacity, the wife’s medical conditions, and the fact both children were now in tertiary education.
It was the husband’s contention that an adjustment of no more than 10 per cent should be made in favour of the wife with respect to s 75(2) factors, whilst the wife contended a 15 per cent adjustment should be made. As a 15 per cent adjustment would give rise to a 30 per cent disparity, his Honour considered a 10 per cent adjustment (or 20 per cent disparity) would give proper and proportionate weight to the relevant factors to be considered.
Next the trial judge turned to consider whether the 50 per cent/50 per cent division was just and equitable. In particular, his Honour noted the need for the properties to be sold in circumstances where the prevailing market conditions were not favourable and where allowance must be made for potential substantial capital gains. Given the wife’s financial position, the trial judge considered it was just and equitable for the husband to continue being responsible for the outgoings in relation to all properties. Taking into account the potential capital gains tax liabilities and the wife’s debt to V Legal Financing for her legal expenses, the trial judge considered it was just and equitable that each party receive an initial payment of $120,000 from the early property sales and the wife retain the former matrimonial home. His Honour then set out the assets and liabilities to be received or retained by each party, which totalled $242,331.59 net for the wife and $225,831.19 net for the husband. To achieve the overall 50 per cent/50 per cent division it was necessary for an adjustment of $16,500.40 to be paid to the husband out of the sale proceeds.

In relation to the wife’s application for interim spousal maintenance of $550 per week, the trial judge set out the relevant law and noted the wife’s evidence of being able to undertake “jobs of a reception nature”, the fact she had received her share of the sale proceeds from the Suburb S property, and that there was no pressing requirement for the wife to pay the whole of the proceeds towards the V Legal Financing debt. Although the wife had discontinued her full-time study due to medical issues, his Honour was not satisfied the wife would be unable to meet her reasonable needs prior to receiving financial settlement. The trial judge therefore found the wife did not meet the threshold and declined to make an order for interim spousal maintenance.
Finally, the trial judge turned to consider the costs orders sought by each party in relation to the Anton Piller application heard and determined by Purdon-Sully FM on 20 January 2011. Ultimately, the trial judge concluded it would not be “just” within the meaning of s 117(2) of the Act to make an order in favour of either party for costs of the Anton Piller application, particularly when his Honour found there was a significant failure of candour on the part of the husband in his supporting affidavit and when the wife had failed to make proper disclosure about the paintings. Similarly, the trial judge found it was not “just” within the meaning of s 117(2) for either party to receive a costs order in their favour with respect to any of the interim proceedings, given the husband’s failure to meet his duty of disclosure in relation to his income, his receipt of the $35,000, and his application of a substantial part of the RR Street proceeds to his own legal costs, as well as the wife’s failure to make disclosure about her inheritance and the paintings, and her false evidence as to the use of funds.

Grounds of appeal

The grounds of appeal as contained in the Amended Notice of Appeal filed by the wife on 3 October 2012 are as follows:
1.That the assessment of the contribution entitlements of the parties as 60% to 40% in favour of the respondent was outside a reasonable range of entitlements having regard to the qualitative findings made as to the contributions of the parties.
2.That having made a qualitative assessment of the contributions of each of the parties the trial judge failed to give any or any adequate reasons for the quantitative assessment of the entitlements of each of the parties to the property of the parties or either of them.
3.That the further adjustment of 10% in favour of the appellant of the entitlements of the parties to the property based on the factors in section 75(2) of the Family Law Act was outside a reasonable range of adjustment having regard to the value of the asset pool and to the adjustment made on account of contributions.

Discussion

Save and except in relation to Ground 2 where there was one brief paragraph devoted to it in the written submissions of the wife, those written submissions did not specifically address the grounds of appeal. Instead, as was put in paragraph 1 of the written submissions, it was said that “[t]he appeal is essentially confined to the quantitative assessment of the contributions and to the further adjustment made by reason of other factors”. Accordingly, we will address this appeal on the basis that the alleged appealable errors made by the trial judge relate to his “quantitative assessment of the contributions”, and “to the further adjustments made”.
Importantly, it is put by the wife’s senior counsel that the wife takes no issue with his Honour’s “findings of fact”, and there is “no dispute as to the qualitative findings made as to the contributions of the parties”.
The complaint as to the trial judge’s assessment of contributions was explained by the wife’s senior counsel in his written and oral submissions to be based on a mistake by the trial judge as to a submission made by the wife’s counsel at trial.
At [276] of his Honour’s reasons for judgment his Honour recorded the submission by the wife’s counsel in response to the submission by the husband’s counsel that there should be a 15 per cent adjustment in favour of the husband, that there should only be a 10 per cent adjustment “such that contributions should be assessed overall at 55 per cent/45 per cent in favour of the husband”.
Then, at [277-279] of his reasons for judgment his Honour said this:
277.In my judgment, a disparity of 30% between the parties on the divisible pool as contended for on behalf of the Husband for contribution-based entitlement, places too much emphasis upon the capital introduced by the Husband via his family, given the many and varied other “myriad” of contributions by both parties over a significant period of time, having regard also to the overall length of the marriage and the Wife’s role as a homemaker and parent.
278.In my view, the 20% disparity contended for on behalf of the Wife, rather than a 30% disparity, is appropriate having regard to the overall contributions of each party, both financial and non-financial, having regard to the net value of the pool.
279.I therefore assess the parties’ contribution-based entitlements at 60%/40% in favour of the Husband.
As can be seen the mistake is that his Honour referred to the contention on behalf of the wife as being that there should only be a 20 per cent disparity whereas the contention was that there should only be a 10 per cent disparity (as set out at [276] of the reasons for judgment).
It is plain that his Honour did misquote the submission of the wife’s counsel, and the reasons for that would seem to relate to the different language used namely, “adjustment” and “disparity”. However, although this error was made it is apparent that his Honour’s assessment of the parties’ contribution-based entitlements at 60 per cent/40 per cent was a calculated and reasoned assessment by his Honour on the evidence before him, and was not based on a mistaken acceptance of the submission of the wife’s counsel. This is borne out by a plain reading of the relevant paragraphs of his Honour’s reasons for judgment, namely [257-279] where his Honour articulated his reasons for concluding as to the appropriate percentage division on the basis of the respective contributions of the parties. We consider that it was an infelicitous use of language by his Honour to refer to a 20 per cent disparity as the contention of the wife’s counsel, and we are not persuaded that his Honour’s reasons indicate that he intended to find that the appropriate percentage division was 55 per cent/45 per cent rather than 60 per cent/40 per cent.
Accordingly we find no merit in this complaint.
The next challenge raised in the written submissions of the wife is in effect an alleged lack of adequate reasons by the trial judge in relation to his finding that a 60 per cent/40 per cent division on contributions was appropriate. This challenge is raised in paragraph 10 of the written submissions and is said to be founded in Ground 2 of the grounds of appeal. However, in paragraph 10 the wife merely alleges lack of reasons without any explanation or amplification of the same. Apart from in paragraph 2 of the submissions where certain findings of the trial judge are set out, we were not taken to any part of his Honour’s reasons for judgment, or the transcript of the hearing before his Honour in support of this challenge. The highest that this challenge can be put, is that the findings of his Honour, and specifically those identified in paragraph 2 of the written submissions do not support an assessment of 60 per cent/40 per cent in favour of the husband as being within a reasonable range. In the absence though of any further submission, we are left to consider his Honour’s reasons generally, and of course specifically in relation to his Honour’s findings, and having done so we are satisfied that his Honour has laid out the pathway leading to his quantitative assessment of the contribution-based entitlements of the parties. Again, we identify [257-279] of the reasons for judgment where

his Honour sets out his findings and his reasons for concluding as he does.
We also reiterate that there was no challenge to any of his Honour’s findings of fact, and no challenge to what are said to be his Honour’s qualitative findings on the respective contributions of the parties. His Honour has translated those findings into a percentage entitlement for each party, and it is here that the broad discretion reposed in the trial judge is most evident. The exercise entails a leap from words to figures, and the extent of the leap must be seen to be justified by “the discussion which precedes it” (Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234]). That is certainly the case here, and to repeat, we have not been taken to anything in the reasons for judgment or the transcript which suggests otherwise.
In these circumstances we also find no merit in this complaint.
Before leaving this topic, we consider that it is necessary to comment on the specific submission in paragraph 10 of the written submissions of the wife “that there are now in use two stages of consideration of contributions, namely the qualitative and quantitative assessments”, and “the path of reasoning must be made apparent in each of those stages”. We reject this submission, and as the senior counsel for the wife conceded, it is not based on any authority. As Coleman J in Steinbrenner explains, the assessment of contributions entails a process of making quantitative findings and translating those findings into figures. It is the “leap” from words to figures which is recognised as sometimes being difficult to explain, but of course it must always be based on the findings that precede it.
We now turn to the final complaint which is identified in the written submissions of the wife as follows:
15.The trial judge at no time turned his mind to the fact that by reason of their inclusion in the asset pool the wife would bear a share of land tax and income tax upon assets retained by the husband and at the same time would bear the sole responsibility for the litigation funding debt. At no time did the trial judge have regard to the fact that child maintenance to be paid by the husband could be paid by him by way of distributions to the wife from the family trust thereby providing the wife a notional income the effect of which might be significant.
To highlight the point we made at the commencement of this discussion, this complaint is apparently loosely based on Ground 3 of the grounds of appeal. We note that Ground 3 as framed is plainly a weight challenge, and we propose to say more about that later in these reasons.
The difficulty with the second part of the complaint in paragraph 15 of the written submissions is that this was not the subject of any submission to the trial judge. The wife’s senior counsel conceded this (including that apart from one paragraph in an affidavit referring to child support, there was no evidence presented on this topic), but he submitted that this was an issue about which there need not be any evidence or submissions because the consequences should have been known to the trial judge in any event. However, this is not a principle of which this court is aware. Indeed, the applicable principle is that a party is generally bound on appeal by the case argued at trial (Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Metwally v University of Woollongong (1985) 60 ALR 68; and Coulton v Holcombe (1986) 162 CLR 1). This principle does not apply if the point agitated on appeal is a pure question of law (Water Board v Moustakas (1988) 180 CLR 491), but this is not the case here, and there was no attempt by the wife’s senior counsel to suggest that it was.
In these circumstances we find no merit in this aspect of the complaint loosely based on Ground 3.
Pausing there though, to correct one aspect of the written submission of the wife. The trial judge at [283] of his reasons for judgment did note that the payment of the adult child maintenance could be “structured in a tax effective way via the [Myrtle] Family Trust”, and in Order 33 his Honour provided for “the husband [to] record [certain] payments made as distributions from the [Myrtle] Family Trust to the Wife, subject to the Husband indemnifying the Wife with respect to any taxation liability associated with those distributions.” Thus his Honour was alive to this possibility, but, to repeat, there was no evidence and no submissions about the consequences of doing that.
As to the issue of liability for tax, it is also not correct to say that his Honour “at no time turned his mind” to the same. For example at [271] of his Honour’s reasons for judgment his Honour says this:
… I have already noted that the inclusion of accumulated taxation and land tax as liabilities in assessing the pool means that both parties thereby contribute in that respect.
Further, his Honour said this at [298] of his reasons for judgment:
The potential capital gains tax liabilities are significant, but also of significance is the Wife’s debt to [V Legal Financing]. I consider that it is just and equitable that from the first or early sales of property, each party receive as part of their final distribution, an initial payment of $120,000.00 so that in the Wife’s case, she will be able to use funds to discharge debt which is attracting high interest.
It is readily apparent that this reference is a reference to the litigation funding debt.
Finally, at [309] of his reasons for judgment his Honour identifies that the wife will have as liabilities outstanding tax of $19,505.73 and one half share of the New South Wales land tax in the amount of $20,150.
Thus, any complaint about the trial judge’s treatment of these matters can only be a challenge about weight, and we need to say something about this issue.
The law in this area is settled and the principles that apply are well established. We can do no better than refer to what Stephen J said in the High Court decision of Gronow v Gronow (1979) 144 CLR 513 at 519-520 as follows:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
We are not persuaded that here the trial judge was “plainly wrong, his decision being no proper exercise of his judicial discretion”.
In the written submissions, the wife’s senior counsel also points out the difference between an adjustment of 15 per cent compared to an adjustment of 10 per cent. It seems that the purpose of this submission was to highlight the specific amounts that the wife would be entitled to at those respective percentages and to compare those amounts to the income that the husband receives. Those calculations reveal the significance of the husband retaining a high earning capacity, as well as how much greater that capacity was than the wife’s, and it is put that these factors were not adequately taken into account by the trial judge. There was no question that the trial judge was aware of the importance of the husband retaining a high earning capacity and the substantial disparity between the parties in this regard, because his Honour identified that at [280] and [285] of his reasons for judgment. Thus, this argument can only be one of weight, and we are still not persuaded that his Honour was “plainly wrong”.
We note that in his oral submissions the wife’s senior counsel identified a contradiction in his Honour’s reasons for judgment as to the payment of tax. At [190] of his Honour’s reasons his Honour recorded a submission made on behalf of the husband that he “… ought be responsible for any income tax payable by the Wife referrable to income allocated to her for taxation purposes (over the period since separation) but not received by her in fact.” However, in his Honour’s calculations of what each party is entitled to, it is apparent that his Honour proceeded on the basis that the wife would be responsible for the payment of her outstanding income tax. In relation to this though the wife’s senior counsel made it quite clear that his submission in the context of Ground 3 was not that the trial judge had failed to take into account a relevant consideration, but rather that overall his Honour’s assessment of the relevant

s 75(2) factors is contrary to the weight of the evidence. In other words, he confirmed that this was a weight challenge, and again we do not need to make any further comment about this. We remain unpersuaded that his Honour erred in the exercise of his discretion.
Next, the wife’s senior counsel in the wife’s written submissions refers to what his Honour says at [292] of his reasons for judgment, namely:
In reaching that conclusion [that a 10 per cent adjustment is appropriate], I have taken into account the s 75(2)(o) factors earlier identified in the course of these reasons.
Senior counsel suggests that such a statement “without identification of those factors, leads to a conclusion that there has been double-dipping.” However, there is no explanation in his written or oral submissions as to how that conclusion can be arrived at; nothing was said about this complaint in his oral submissions, and the only hint in relation to it is in paragraph 20 of the written submissions. There, the wife’s senior counsel says this:
In the course of this trial there was an investigation of:
a. the proper income-earning capacity of the Husband;
b.the reality of the existence in the Wife’s possession of paintings having an identified value.
Each of these investigations resulted in additions to the asset pool. There was no element of a failure to make proper disclosure that would not properly be considered on any application for costs. To include the results of those investigations in the asset pool cannot lead to their inclusion for consideration under s.75(2)(o).
However, this is misconceived. His Honour found that both parties failed to make full and frank disclosure, but there is nothing in the reasons for judgment to suggest that these were factors included in the trial judge’s consideration pursuant to s 75(2)(o). Indeed, the s 75(2)(o) factors that his Honour identified in the course of his reasons related to the failure by both parties to include in the valuations of personalty such as certain items of furniture and jewellery.
One of the final submissions by the wife’s senior counsel in his written submissions on the topic of his Honour’s assessment of the s 75(2) factors is that “[i]t is impossible to define what weight the trial Judge placed upon the factors that he referred to”. Again there is no explanation or amplification of this submission either in the written or the oral submissions, and thus we can make no informed comment. However, we do say that if this is a suggestion that there is a lack of adequate reasons by the trial judge then we reject such a claim. As with his Honour’s assessment of contributions, the pathway that he took in reaching his conclusion on the relevant s 75(2) factors is readily apparent from his reasons for judgment.

In these circumstances we also find no merit in these complaints.

Conclusion

Having found no merit in any of the complaints raised by the wife, whether in the grounds of appeal or otherwise, the appeal must be dismissed.
We note that during the hearing before us the wife’s senior counsel indicated that as a result of events that have occurred since the conclusion of the hearing before the trial judge the amount referred to at [315] of his Honour’s reasons as being the adjustment in favour of the husband out of the proceeds of sale of the properties to be sold in order to achieve an overall 50 per cent/50 per cent division is incorrect, and sought that we exercise our discretion to correct this rather than the parties having to go back to the trial judge to have that done or alter it by agreement. In response, counsel for the husband indicated that it appeared that there was an error which could be amended by the slip rule, but the husband needed to confirm that there was no other consideration that applied. In these circumstances, and given the outcome of the appeal, we are not disposed to make any alteration to his Honour’s orders, and we note that one option available to the parties is that if this is agreed then they can resolve this issue between themselves. Alternatively, if necessary the parties could go back to the trial judge.

Costs

At the conclusion of the hearing we received submissions as to costs dependent on the outcome of the appeal.
In the event that the appeal was dismissed the husband sought an order for costs. That application was opposed on the basis of the income disparity between the parties.
We consider that there are circumstances here that justify an order for costs being made (s 117(2A)(2)); namely, the wife was wholly unsuccessful

(paragraph (e)).
The respective financial circumstances of the parties is a relevant matter to take into account (paragraph (a)), but in this case the income disparity between the parties should not prevent an order for costs being made as a result of the appeal being dismissed. The husband should not have to bear all of his costs to respond to a plainly unmeritorious appeal.

I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Murphy JJ) delivered on 5 March 2014.

Associate:

Date: 5 March 2014