NEALE & BARTON
[2015] FamCAFC 195
•8 September 2015
FAMILY COURT OF AUSTRALIA
| NEALE & BARTON | [2015] FamCAFC 195 |
| FAMILY LAW – APPEAL – ENFORCEMENT – Where the husband appealed against an enforcement order requiring him to pay a small amount of money to the wife – The issues that were the subject of the enforcement application had been previously addressed through a settlement between the parties – Appeal allowed – Matter remitted for rehearing as to the costs of the enforcement application. |
| D & C Builders Ltd v Rees [1966] 2 QB 617 Haines House Haulage Co Ltd v Gamble [1989] 3 NZLR 221 |
| APPELLANT: | Mr Neale |
| RESPONDENT: | Ms Barton |
| FILE NUMBER: | WA | 9 | of | 2015 |
| APPEAL NUMBER: | PTW | 4540 | of | 2011 |
| DATE DELIVERED: | 8 September 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 8 September 2015 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 20 February 2015 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | No appearance |
Orders
The appeal be allowed.
The Application in an Appeal be dismissed.
Paragraph 1 of the orders made in the Magistrates Court of Western Australia on 20 February 2015 be discharged.
Paragraph 2 of the said orders made on 20 February 2015 be discharged to the extent that the order dismisses the appellant’s application for costs of the proceedings in the Magistrates Court of Western Australia.
The matter be remitted for rehearing in the Magistrates Court of Western Australia (before Magistrate Stewart if practicable) in relation to the costs of the Form 2 application filed on 7 May 2014 and the Form 2A response filed on 6 June 2014.
The respondent pay the appellant’s costs of the appeal, fixed in the sum of $1,770, within 28 days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Neale & Barton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURSIDCTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 9 of 2015
File Number: PTW 4540 of 2011
| Mr Neale |
Appellant
And
| Ms Barton |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The matter before the court today is the amended Notice of Appeal filed by Mr Neale (“the husband”) on 18 March 2015. The respondent to the appeal is Ms Barton (“the wife”).
The appeal challenges orders made by a Family Law Magistrate in the Magistrates Court of Western Australia on 20 February 2015 that:
1.The Respondent, [MR NEALE], pay $3,714 to the Applicant, [MS BARTON], within 21 days of today’s date otherwise interest again will accrue in relation to that payment.
2. All pending applications otherwise be and are hereby dismissed.
The Notice of Appeal seeks that the orders be discharged and that costs of $2,000 be awarded in favour of the husband.
The wife did not attend today, despite being advised of the listing on a number of occasions. She attended the directions hearing on 18 May 2015 by telephone, at which time an order was made for the matter to be listed today. A copy of the order of 18 May 2015 was then sent to her. On 5 June 2015, the Regional Appeal Registrar wrote to the wife, noting today’s hearing date.
On 19 August 2015, the wife sent a facsimile to the court containing a handwritten note saying “could someone please advise what steps … I am requiring [sic] to take”. This note was written on a copy of a letter from the court dated 9 July 2015 relating to the appeal. It therefore appears that the wife has been receiving correspondence from the court. In these circumstances, I am satisfied that she is on notice as to today’s hearing, and I therefore decided to proceed in her absence.
The wife has also failed to provide a summary of argument, notwithstanding that she was ordered to file one at the directions hearing; that a copy of the orders made at the directions hearing was sent to her; and that the Regional Appeal Registrar wrote to her on 20 August 2015 reiterating the obligation to file a summary of argument.
Although the wife has failed to participate in the appeal, it is still necessary for the husband to demonstrate appellable error on the part of the Magistrate.
Application in an Appeal
I also have before me an Application in an Appeal filed on 4 June 2015, in which the husband seeks to have certain documents introduced into evidence.
While the husband has done his best, the conduct of the matter has left much to be desired. It is therefore not clear whether some of the documents that are referred to in his Application in an Appeal were before the Magistrate.
It is certainly unnecessary for the husband to seek to introduce the transcripts from the first instance proceedings, because these are properly before me.
The document containing the husband’s calculations does not constitute further evidence. It is simply part of his argument.
To the extent that the application seeks to adduce correspondence between lawyers and invoices relating to single experts, I am satisfied there was sufficient evidence to establish that there was an agreement for the costs to be shared. The real issue was the way in which her Honour dealt with that agreement in calculating the amount the husband had to pay the wife.
The other aspects of the application relate to the reimbursement of a “goodwill payment” of $1,520 that the husband says was made to the wife at the time of settlement; and additional costs of $1,500 sought by the husband. I will deal with those issues as part of the substantive appeal.
The application to adduce further evidence will therefore be dismissed.
Background
The background to the dispute, as the Magistrate noted, is not without its complications. In a case as procedurally and factually messy as this, I would ordinarily reserve my decision with a view to providing a more elegant judgment than this is likely to be. However, I have decided to give my reasons immediately given the amount of money involved; the inordinate delay in the dispute being resolved; and because the outcome seems to me to be so clear.
For present purposes, the story began on 12 November 2012, when Acting Judge Jordan made his orders following a trial that he had conducted a few days earlier. The orders required the husband to pay $487,500 to the wife in two instalments. In the event that the husband failed to make the payments, a property owned by the parties in Suburb H was to be sold, with the intent that the wife would receive her settlement from the proceeds. There was also an order relating to the reimbursement of moneys paid by the wife in relation to a property in Queensland.
The payments were not made, and enforcement proceedings were commenced in February 2013. Those proceedings came before Jordan AJ on 15 April 2013, and his Honour made orders for the sale of the property in Suburb H; the payment of interest; and the payment of costs. However, paragraph 8 of the orders stated:
In the event that the [husband] pays to the [wife] the sum of $400,000 in accordance with … the orders made on 12 November 2012, together with the sum of $6,000 by way of interest and the sum of $3,000 by way of costs, the orders herein relating to the sale of the [Suburb H] property be thereby discharged.
The husband wanted to take advantage of the provisions of paragraph 8 of the order of 15 April 2013, but the parties were unable to agree the precise amount to which the wife was entitled under the terms of that order (taking into account previous correspondence concerning reimbursement by the wife of half of the single experts’ fees).
On 2 May 2013, the husband’s solicitors wrote to the wife’s solicitors, tendering a bank cheque for $407,000 in full settlement of the amount owed. The cheque was banked and there is no evidence of the wife’s solicitors responding to the letter.
More than a year later, on 7 May 2014, the wife filed an enforcement application seeking the payment of what she described as the “shortfall” of $1,233 “as per court order November 12, 2012”; and the payment of $3,450 relating to the mortgage concerning the Queensland property.
On 6 June 2014, the husband filed a response seeking the dismissal of the enforcement application. In the alternative, he sought an order for the wife to reimburse him for half of the single experts’ fees, which the parties had agreed to share equally. The response also sought that the wife pay the husband’s costs fixed in the sum of $1,500.
The husband filed an affidavit to support his application for the dismissal of the enforcement application. Significantly, the affidavit referred to the compromise proposed in the letter from his solicitors of 2 May 2013 (emphasis added):
18.I had nonetheless sought to address the above issues with [the wife] when making payment of the second settlement sum (and costs and interest pursuant to the Enforcement Orders) and refer to the letter from [the husband’s solicitors] to [the wife’s solicitors] dated 2nd May 2013 … which reads, in part, as follows:
We don’t agree with your or your client’s interpretation of order 5 of his Honour’s orders dated 15th April 2013. The issue of interest has been dealt with by his Honour and it cannot be said that interest continued to accrue.
Our client is nevertheless desirous of promoting finality in this matter and we note that on this basis, he is amenable to making an offer of payment of $407,000 to your client in finalisation of the issues she has raised as well as apportionment of the costs of the Single Experts in the proceedings.
To that end, we now enclose with the original copy of this letter, a bank cheque payable to your client in the sum of $407,000. Could you please confirm receipt of the same?
19.To the best of my knowledge, neither [the wife’s solicitors] nor [the wife] responded to [the husband’s solicitors’] letter of 2nd May 2013. Instead, [the wife] banked the cheque in the amount of $407,000 provided under cover [the husband’s solicitors’] letter and until having recently been served with [the wife’s] Form 2 application, I thought that aspect of our matter had long ago been dealt with on a final basis.
…
21.Against that background, I oppose any further orders on enforcement in respect of my payment of the second settlement sum given the context to my payment of $407,000 to [the wife] and the significant period of time she has let pass, without complaint, since that payment was made to her.
22.If the Court is minded to make further orders on enforcement, then I respectfully seek an order that [the wife] pay to me the sum of $3,520, being her half share of the costs of the Single Experts.
There is no indication in the documents that the wife joined issue with the husband in relation to the content of the letter of 2 May 2013, or the content of the affidavit in which the husband deposed to his belief that no response had ever been received to that letter.
Hearing on 10 June 2014
The enforcement application led to four appearances before the Magistrate.
At the first hearing on 10 June 2014, the husband was represented by his solicitor and the wife represented herself. At the outset of the hearing, the Magistrate was informed that there had been discussions outside the court and that the husband’s solicitor understood that the wife did not wish to pursue her application for the “shortfall”. The wife advised her Honour that she had received “some clarity” from the husband’s solicitor about the “shortfall”. She went on to say that her “main concern today” related to the enforcement of the order relating to the mortgage (transcript, 10 June 2014, p 2).
There was then an interchange between the husband’s solicitor and the Magistrate, during which her Honour touched on the proper interpretation of Jordan AJ’s order, notwithstanding what she had already been told about the “shortfall” issue not being pursued. At the conclusion of the submissions of the husband’s solicitor about the mortgage issue, the following exchange occurred (transcript, 10 June 2014, p 5):
[HUSBAND’S SOLICITOR] That’s it, in a nutshell, otherwise I’m curious as to whether your Honour requires some submissions from me about the interest component of the earlier enforcement orders? [i.e. the orders of Jordan AJ]
HER HONOUR: Well, I think – you know, if that’s not in dispute, we won’t go there but if it – just be [sic] careful– if we fall into dispute in relation to that issue, then I can hear your submissions when the matter comes back. …
The proceedings were then adjourned to 28 July 2014 “for monitoring and potential interim argument” (transcript, 10 June 2014, p 6). It is apparent from the transcript that the principal issue that required “monitoring” related to the mortgage.
Hearing on 28 July 2014
When the matter came back before her Honour on 28 July 2014, the husband’s solicitor advised that “it seems like it’s close to a settlement and I think their consensus today is the enforcement proceedings should be dismissed” (transcript, 28 July 2014, p 2). The husband’s solicitor went on to update her Honour about what had happened in relation to the mortgage, and then sought an order for the enforcement application to be dismissed with costs.
After hearing the submissions of the husband’s solicitor about costs, which focused on the wife’s misapprehension concerning the effect of the original order relating to the mortgage, the following important exchange ensued (transcript, 28 July 2014, p 4; emphasis added):
HER HONOUR: Okay. Wasn’t there another aspect to this claim in relation to interest payments?
[HUSBAND’S SOLICITOR] There was, ma’am. I don’t believe that’s being pursued. The position is, well, that was dealt with that with in earlier enforcement proceedings. [The husband’s] affidavit dealt with that. By way of further context, I can perhaps refer your Honour to a written judgment of Jordan J of 12 November.
The submissions of the husband’s solicitor then focused on what had been said by Jordan AJ, and his Honour’s intentions in making the orders in the earlier enforcement proceedings. The Magistrate then heard brief submissions from the wife. The relevant interchange is set out below (transcript, 28 July 2014, p 5 – 6; emphasis added):
[THE WIFE]: Quite simply, your Honour, I just wanted the payment made in full as per the judge’s order which was the full amount of 407 and something dollars. That wasn’t the case – it was actually 408. It was a shortfall then. That together with invoices I had sent to the respondent to pay, the [mortgage] debt, weren’t followed up. So in all honesty, I don’t believe I should be paying for, you know, legal fees that the respondent should have been paying, you know, as per the order and together with the interest accrued. I mean, you know, the judge would not have said that was the order if that wasn’t the case and likewise with the orders that were misinterpreted to me by my solicitor, he – and I quote, he said, “It’s dollar for dollar. What you pay, he has to pay on that [mortgage] debt”. The judge presiding mentioned just as if I would have incurred a profit, rightfully so [the husband] would have had a, you know, portion of that – of those proceeds, likewise, there is a loss therefore he’s liable for a portion of the loss.
HER HONOUR: All right. So is it your position that you don’t seek to pursue the enforcement proceedings as [the husband’s solicitor] suggested, how – but you do oppose the application in relation to costs?
[THE WIFE]: I oppose the application definitely in relation to costs. I also still am very unclear as to why I am not getting the interest component part of the payment from way back in May 2013.
HER HONOUR: Okay. Okay. So I think, [addressing the husband’s solicitor], that it’s not a situation where there is a concession in relation to the enforcement application. Did you want to add anymore submissions at all? What quantum of costs are you seeking?
[HUSBAND’S SOLICITOR]: We will be proposing $1200, ma’am. In terms of the – what might be described as the first limb of [the wife’s] enforcement application, I would otherwise just refer your Honour back to [the husband’s] affidavit evidence of June 2012 and again, by way of further context to that application, [the husband’s] evidence regarding payment – what was agreed costs concerning single experts in the case and what, in effect, became an adjustment in terms of the final settlement sum paid to [the wife].
HER HONOUR: All right. Thank you. There’s no further submissions?
With respect to her Honour, at this point, the husband’s solicitor would have been entitled to assume that the court was now dealing only with the costs of the enforcement proceedings. Although the wife was continuing to protest about the issue relating to the proper interpretation of Jordan AJ’s order, it would have been reasonable for the husband’s solicitor to assume that the submissions were being advanced in opposition to his application for costs, rather than in support of the wife’s original enforcement application.
In any event, as appears from the extract set out above, her Honour enquired whether there were any further submissions. The husband’s solicitor took up the opportunity, but his submissions unsurprisingly related only to the question of costs. His submissions were followed by brief submissions from the wife, and then a purported summing up of the position by her Honour. All of this appears in the following extract (transcript, 28 July 2014, p 7, emphasis added):
[HUSBAND’S SOLICITOR]: Well, other than to voice my client’s dissatisfaction with respect to the matter in which this application was brought. On his case, he was – he had travelled to the United States, he became aware of a request for payment upon his return and I make reference to [the wife’s] letter dated 29 April. He became aware of that on 3 June and he’s already in court and it seems, to me, common ground that since – well, certainly since I’ve become involved, the issues in the case haven’t been capable of resolution and it seems to me that the parties are also sensibly able to try and negotiate a better deal [in relation to the mortgage debt] so it seems quite regrettable that a form 2 application was filed when simply a letter to my office probably would have resolved everything well before costs were incurred at this rate.
HER HONOUR: Well, some issues have resolved but with – not all. So, look, I’m going to need a bit of time to have a look at the material you’ve handed up and to review the documents so I possible could give you a decision later this afternoon. But, [addressing the wife], before I adjourn the matter, did you have anything else you wanted to add at all?
[THE WIFE]: Other than the fact that, yes, the financial ombudsman service have been involved and that’s a debt between myself and [the mortgage insurers] and I’m just trying, through them, to negotiate a better pricing but that shouldn’t reflect on the fact that [the husband] is still liable for, you know, what is 25 per cent of the total debt.
HER HONOUR: All right. Thank you. Look, [addressing the husband’s solicitor], thank you. I will hand back your file copy here of the decision in the matter and the matter will be reserved and will contact you if I’m able to do this later on this afternoon. I’ve got a number of other arguments in the list to deal with. Okay. So, [addressing the wife], if I can get to this case and have a look at the documents later this afternoon, we will call you and I will hand down a very brief decision in relation to the matter. You’re pursuing the interest and [the husband’s solicitor] on behalf of his client is pursuing costs of $1200. If you want to attend by telephone link if I can list it this afternoon, then I’m quite happy for you to do that and if – and likewise, you could also attend by telephone link. So we will be in contact.
With respect to her Honour, it is far from clear that it was correct to say that the wife was “pursuing the interest”. Although her Honour had earlier said to the husband’s solicitor that “it’s not a situation where there is a concession in relation to the enforcement application”, that comment, in my view, should have been seen as having been made in the context of submissions about costs.
Hearing on 30 October 2014
While her Honour had hoped it might be possible to hand down her decision later on the day of the hearing on 28 July 2014, that turned out not to be the case, and the decision was ultimately scheduled to be delivered on 27 October 2014. For reasons that are not apparent, judgment was not delivered on that day, and the proceedings were instead relisted on 30 October 2014.
The record of proceedings for 30 October 2014 reveals that the matter was first called on at 11.42 am and then stood down at 11.56 am. The matter was recalled at 12.26 pm and the proceedings concluded at 1.10 pm. I was not provided with a full transcript of the proceedings for that day. All that appears in the appeal book, and on the first instance file, is a settled transcript of oral reasons delivered by her Honour between 12.33 pm and 12.55 pm (described on the front cover of the transcript as “Draft Judgment”).
In her reasons, the Magistrate said it was unnecessary to consider the dispute relating to the mortgage, as the wife had advised that “the husband’s obligations have recently been bought [sic] up-to-date” (reasons, 30 October 2014, p 2). Her Honour then went on to address the application for payment of the “shortfall” that the wife considered was due to her.
In the course of dealing with that matter, her Honour said (reasons, 30 October 2014, p 5 – 7):
It was argued, on behalf of the husband that interest should not accrue and be payable on the interest component of $6,000 and, effectively, it was argued that Jordan AJ had fixed all interest payable in relation to the payments that were required to be made. This was the crux of the dispute between the parties. It was argued that the court should approach this issue on the basis that his Honour Jordan AJ had determined “once and for all” issues in respect of the [husband’s] interest liability.
I will now refer to some legislation in respect of this aspect of the issue. Before I do, I should briefly mention that the enforcement orders were made on 15 April 2013 and the husband offered payment by way of bank cheque on 2 May 2013. I will just turn to locate some correspondence from the wife’s solicitors …
… I have found that letter now. So this letter was addressed to [the husband’s solicitors], it was dated 1 May 2013 and the letter outlined the sums of money that [the wife’s solicitor] claimed were owing. They were obviously the $400,000, the $6000 interest, the $3000 in costs, a sum of $1578 on account of further interest accrued since 15 April 2013, pursuant to regulation 17.03, and $350 on account of the wife’s share of the payments she made relating to the shortfall associated with the Queensland property, pursuant to orders dated 12 November 2012. Presumably referring to the [mortgage] issue which was an obligation set out in paragraph 5 of the substantive property settlement orders. Those orders required the parties to:
…share equally in the responsibility to discharge any remaining liability arising from the purchase and sale of the [Queensland] property, provided that the [husband’s] obligations are limited to an obligation to pay to the [wife] such sum or sums as are payable and paid under the liability in accordance with subparagraph (b) hereof. The [the wife] provides the [husband] with notice in writing of any sums payable and paid from time to time. Within 21 days of such notice, the [husband] pay to the [wife] the equivalent of 50 per cent of such payment made by the [wife].
The total amount owing was therefore $410,928 pursuant to the letter of 1 May 2013. The letter went on to concede that there was an amount that the husband was entitled to deduct from the total settlement figure, being the wife’s half share of the Single Expert valuation costs of $2695. And the letter indicated that the wife was entitled to receive the sum of $408,233 and notice was given that in the event of any further delay, interest would continue to run on the original amount of $400,000 and further enforcement proceedings were flagged as a possibility. In response the husband’s solicitors on 2 May 2015 refuted the claim for interest and tendered a cheque of $407,000 acknowledging this payment extinguished the wife’s liability to contribute to the costs of the Single Expert.
In the abovementioned correspondence sent on behalf of the [husband], the [wife’s] solicitor was informed that the [husband] and his solicitors did not agree with the interpretation of order 5 of the orders of 15 April and that the issue of interest had been dealt with and that it could not be said that interest continued to accrue. The letter went on to make an offer of payment in the sum of $407,000 in full and complete finalisation of all issues and a bank cheque was enclosed.
As the court understand [sic] the evidence, the [wife], whilst not conceding that the $407,000 payment was a full discharge of all obligations, received the bank cheque – banked the cheque and then commenced these proceedings. So her application – her Form 2 application referred to the shortfall between the amount of the bank cheque and the amount that [the wife’s solicitor] had said – claimed was due and payable under the terms of his letter of 1 May.
In my view, the last paragraph of the Magistrate’s reasons cited above probably contains the explanation for what I consider to be the error made by her Honour. The way in which her Honour expressed herself in that paragraph suggests that she failed to appreciate that while the wife did commence enforcement proceedings to recover the “shortfall”, she did so not in May 2013 (when the bank cheque was tendered and banked), but in May 2014 – more than a year later.
In any event, her Honour then turned to consider the merits of the competing interpretations of Jordan AJ’s orders and found, in essence, that the wife’s interpretation was to be preferred. Her Honour then continued (reasons, 10 October 2014, p 9):
So, as I’ve indicated, interest should continue to run in relation to those payments and in relation to the $400,000 payment. The parties really had made the other adjustments when the husband conceded when he paid the sum of $407,000 that it took into account the wife’s liability to the Single Expert’s costs was paid. So the court would now need to address the issue of attempting to calculate the interest in relation to both the $400,000 outstanding payment and the sums of $6000 and $3000 dollars. In relation to – I will turn now to deal very quickly in respect of the costs application.
I should add, I have not – because [the wife] had indicated an intention to potentially apply to reopen and because I wasn’t in a position to know whether or not the [mortgage] enforcement issues had fallen away or not, I have not actually prepared the calculations but I’m willing to do that over the next few days unless we can – [addressing the husband’s solicitor], unless you think we can work that out quickly today, I’m happy to attempt to do that today. Otherwise, I would go away and produce some orders which would quantify that interest payment.
Her Honour did not go on to deal with the costs application as she had foreshadowed. Instead, she made some comments in relation to the issue concerning the mortgage, and then concluded by saying that as the husband was up-to-date with his obligations in relation to the mortgage, she would dismiss that part of the wife’s enforcement application.
The orders ultimately made on 30 October 2014 required the parties to file schedules of their calculations “in respect of interest payable with any appropriate deductions being made pursuant to today’s judgment”. The costs applications of both parties were again reserved and the matter was adjourned to 19 December 2014.
On 12 November 2014, the husband’s solicitors filed a “schedule of interest and adjustments” pursuant to the orders made by her Honour. After allowing for the interest which the Magistrate had found was owing pursuant to the earlier orders, and after deducting what the husband considered to be the wife’s half share of the costs of the single experts, the husband’s schedule recorded that there was $194 owing to the wife.
On 27 November 2014, the wife provided written comments on the husband’s schedule in which she said that she was “uncertain” about the adjustment for the costs of the single experts and that she did not agree with the adjustment. She also joined issue with the way in which the interest had been calculated.
Hearing on 20 February 2015
For reasons which are not apparent from the first instance file, the hearing on 19 December 2014 did not proceed and the matter was relisted on 20 February 2015. At this (fourth and final) hearing, the husband was represented by a different solicitor, who had taken over the conduct of the file.
During the course of this somewhat confused hearing, her Honour said, “what I might need to do is to do some supplementary written reasons, but I will go back and have a look at that” (transcript, 20 February 2015, p 8). In fact, it seems no further reasons were delivered, and it is therefore necessary to examine the entire transcript in order to glean her Honour’s reasons for ordering the husband to pay $3,714, in circumstances where the wife’s enforcement application only sought $1,233.
It is unnecessary for me to recite here all that transpired in the course of the hearing on 20 February 2015. It is sufficient for the purposes of this appeal to record that the transcript reveals that the husband’s solicitor stressed to her Honour that the husband had made an offer for the payment of an amount “in full and final satisfaction” of the monies owing to the wife, which was “an all encompassing offer, including the deductions” (by which he clearly meant the deduction relating to the single experts’ costs) (transcript, 20 February 2015, p 3). The husband’s solicitor also took her Honour to the correspondence attached to the husband’s affidavit of 6 June 2014 setting out the agreement in relation to the payment of the costs of the single experts.
Her Honour was not persuaded by the husband’s solicitor’s submissions, as appears from this extract (transcript, 20 February 2015, p 7):
Okay. Well, look, I’m not prepared to make an order for the adjustment. There was no order for that to – for that adjustment to be made. It wasn’t – it appears not to have been canvassed at all before [Jordan AJ] in the other enforcement proceedings...
Discussion
Regrettably, and with great respect to her Honour, the extract that I have just recited further illustrates her Honour’s ongoing failure to address the husband’s fundamental argument.
The husband’s primary argument had been clearly enunciated in paragraphs 18 to 21 of his affidavit of 6 June 2014, which I set out earlier. That part of the affidavit provided compelling evidence of the making and implied acceptance of what the husband’s solicitor correctly described as an “all encompassing” offer of settlement. The terms of that offer, which also dealt with the payment of the single experts’ fees, could not have been “canvassed” before Jordan AJ (as her Honour mentioned at p 7 of the transcript of 20 February 2015), because the offer was made after his Honour had finished dealing with the matter.
The facts which should have been determinative of the matter can be stated simply. There was a genuine dispute between the parties as to the meaning of part of Jordan AJ’s orders. In an attempt to resolve that dispute, the husband’s solicitors made an offer in writing and tendered a cheque in final settlement of all issues, which took into account what the husband claimed was the earlier agreement relating to the experts’ fees. The wife banked the cheque without complaint, then sat back for a year before commencing enforcement proceedings seeking a sum more than what had already been paid.
The acceptance of a cheque tendered in final settlement, without demur or qualification, can give rise to a binding compromise: D & C Builders Ltd v Rees [1966] 2 QB 617 at 624; Haines House Haulage Co Ltd v Gamble [1989] 3 NZLR 221. The existence of such an agreement is a question of fact to be determined from the circumstances of each case. In my view, the wife’s unqualified receipt of the cheque, combined with the delay of a year before she made any objection, constituted a clear acceptance of the husband’s offer.
At no point did her Honour recognise that there had been such a long delay in the wife filing her application for payment of such a piffling amount. Rather than addressing the husband’s offer of settlement, her Honour dealt with the arguments about the meaning of Jordan AJ’s orders on their merits. I consider that her Honour erred in doing so, in circumstances where the parties must be seen to have addressed them through the making and acceptance of an offer. It follows that the wife’s enforcement application should have been dismissed.
In arriving at this conclusion, I recognise that her Honour did not have the benefit of fully developed argument relating to the significance of the offer of settlement. However, as I have pointed out, the husband’s solicitor would have been under the impression that the merits of the enforcement application needed to be addressed only in the context of a costs argument, since he understood the application was not being pursued. Nevertheless, at the earlier hearings, the husband’s solicitor did draw her Honour’s attention to the husband’s affidavit as setting out the basis upon which the application was being opposed.
Further, when the matter came before her Honour on 20 February 2015 (when substantive orders had not yet been pronounced), the husband’s solicitor expressly drew attention to the “all encompassing offer”, and took her Honour to relevant correspondence. At that point, her Honour still had the opportunity to recognise that this central issue had been overlooked, but she failed to do so.
For these reasons, the appeal must be allowed.
The costs at first instance
Had the enforcement application been dismissed, the husband’s application for costs would no doubt have been addressed. As the enforcement application succeeded, the question of the husband’s costs did not arise, and her Honour did not enquire of the wife whether she was pursuing her costs application. Accordingly, no order for costs was made.
As I propose to allow the appeal and discharge the orders, the husband now wishes to pursue his application for costs relating to the first instance proceedings. The difficulty that I face in dealing with this question is that the issue of costs has never been properly ventilated. As costs do not follow the event in this jurisdiction, the wife should be given an opportunity to put her argument in opposition to the husband’s application for costs.
As I have explained to the husband today, I do not consider it appropriate for me to deal with the costs issue at the appellate level. There are other matters that may complicate that issue, including matters relating to the mortgage on the Queensland property. It will also be necessary to address the issues that must be considered under the legislation, including the current financial positions of the parties.
For those reasons, I propose to allow the appeal, discharge the orders and remit the question of costs to the Magistrate.
It follows from what I have said that the husband’s application for reimbursement of the “goodwill payment” cannot succeed, because he too is bound by the compromise that the parties reached.
Costs of the appeal
The remaining issue is the husband’s application for the costs of the appeal.
The husband has been self-represented in the appeal, although he has taken some legal advice for which he has not yet received a bill. His primary costs in relation to the appeal are the filing fee of $1,270 and the transcript fees. He says the transcripts cost at least $500, and I am prepared to accept that, as transcripts are not cheap.
Notwithstanding the usual rule that each party should pay their own costs, the husband has been entirely successful, so there is a basis for a costs order to be made. The wife chose to participate in the directions hearing and indicated her opposition to the appeal, but then failed to file a summary of argument and also failed to attend today. Perhaps she has belatedly taken the view that the small amount is not worth arguing about. However, I consider that the insignificant amount of money involved is also a basis for ordering costs.
In my view, this is an appropriate case for an order for costs. I recognise that I know very little about the wife’s financial circumstances, but if she wanted to tell the court about her circumstances, then she should have attended today.
For those reasons, I make the following orders:
(1)The appeal be allowed.
(2)The Application in an Appeal be dismissed.
(3)Paragraph 1 of the orders made in the Magistrates Court of Western Australia on 20 February 2015 be discharged.
(4)Paragraph 2 of the said orders made on 20 February 2015 be discharged to the extent that the order dismisses the appellant’s application for costs of the proceedings in the Magistrates Court of Western Australia.
(5)The matter be remitted for rehearing in the Magistrates Court of Western Australia (before Magistrate Stewart if practicable) in relation to the costs of the Form 2 application filed on 7 May 2014 and the Form 2A response filed on 6 June 2014.
(6)The respondent pay the appellant’s costs of the appeal, fixed in the sum of $1,770, within 28 days.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 8 September 2015 as amended by his Honour (it being noted that his Honour expressly reserved the right to correct the reasons as he saw fit, “without, of course, changing the result”).
Associate:
Date: 8 October 2015
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