NOVA & NOVA

[2012] FamCA 152

FAMILY COURT OF AUSTRALIA

NOVA & NOVA [2012] FamCA 152

FAMILY LAW - PRACTICE AND PROCEDURE - Registrar - Review of decision - leave to file application for review out of time - where the husband signed consent orders but claims that he did not understand them or receive legal advice in relation to them - whether the husband established a prima facie case for relief, that denial of his claim would cause him undue hardship, and an adequate explanation as to his delay - where consent orders resulted in a 90/10 split of the net marital assets in the wife’s favour - where the wife’s solicitors were put on notice 8 days after the consent orders were made that the husband  intended to challenge the orders - orders that an extension of time be granted for the husband to review the decision of the Registrar

Gallo v Dawson (1990) 93 ALR 13
Sanders and Sanders (1993) FLC 92-246

APPLICANT: Mr Nova

RESPONDENT: Ms Nova

FILE NUMBER: SYC 5782 of 2011

DATE DELIVERED: 16 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 13 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: David Legal

COUNSEL FOR THE RESPONDENT: Mr Price

SOLICITOR FOR THE RESPONDENT: Price & Company Solicitors

Orders

1. That the time for the filing of an application to review the Orders made by Registrar Chayna on 6 October 2011 be extended to 3 November 2011.

2. That the Orders for property settlement made 6 October 2011 be set aside.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5782 of 2011

Mr Nova

Applicant

And

Ms Nova

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application filed by the husband, Mr Nova in relation to orders for property settlement which were made by consent in relation to his marriage to the wife Ms Nova. The husband by an application filed on 3 November 2011 seeks leave to file an application to review the orders of Registrar Chayna out of time.

2. The parties to the proceedings were married in August 1979 and have three adult children.  They separated in June of 2010.

3. The parties migrated to Australia in April of 1990 and on the evidence of both of them they had little in the way of assets at that time.  Any assets which have been acquired in the course of the marriage have been acquired by the joint efforts of both of them and by utilising the proceeds of an insurance claim, being the sum of $205,000, which was paid to the husband after he suffered an injury at work in December 1997.  It is the husband's case that he continues to suffer ongoing symptoms as a consequence of that injury.

4. In September 2011, it is clear that the wife commenced some discussion with her solicitors in relation to the settlement of their respective property.  Beyond that, there is no agreement between the husband and the wife.  They each give quite different versions of the events.

5. The husband says that he had a conversation with the wife on 20 September 2011 in which she told him that he needed to sign some documents in the presence of a lawyer.  The husband says that he then attended, with the wife, upon the offices of B Law Firm, and signed a document that he was requested to sign in the presence of a Justice of the Peace. It is the husband's case and it does not seem to be in dispute that he received no legal advice at the time.  The Justice of the Peace has sworn an affidavit in the proceedings in which she deposes that she gave the husband no legal advice and made it clear to him that she was there only to witness his signature.

6. The husband says that he was later required to sign further documents by the wife, which he signed again in the presence of the same Justice of the Peace. After the husband had executed the documents they were taken by the wife to her solicitors.

7. It is the husband's evidence that he was not given copies of the documents at the time and did not retain copies of the documents.

8. The documents which the husband signed were an application for consent orders, and that application was filed in the Family Court by the solicitors for the wife. On the documents the husband is shown as acting for himself.  Annexed to the application was a document entitled “Terms of Settlement”, which was signed by the husband and the wife and the solicitors for the wife and is dated 20 September 2011.

9. A further document was prepared by the solicitors for the wife apparently in response to requisitions raised by the Family Court in relation to the consent orders. The husband says that he was contacted by the wife on about 29 September 2011 and advised by her that he needed to sign one more document.  He travelled with the wife to the offices of B Law Firm. His evidence is that the wife instructed him to have the documents signed and witnessed and to return it urgently to her because her lawyer needed the document. He says that when he asked about the nature of the document he was told “don't worry, just go and sign it”. The document was witnessed by the same Justice of the Peace who had witnessed the other documents and again the husband was given no legal advice.

10. The documents were filed in the Family Court, and on 6 October 2011 Registrar Chayna exercising delegated power under the Family Law Act made final orders in relation to property settlement.

11. It is the husband's contention before me that he did not understand the documents that he was signing, that he was given no opportunity to obtain legal advice, and that his English is insufficient to have understood the documents in any event.

12. The wife's version of events is quite different.  The wife's case is that the husband, who has lived in Australia since 1990, has conducted his business in the English language, has signed documents written in the English language and has given quotations for the purpose of the business in the English language.  It is her case that he speaks competent English, and that his claim now to be a poor English speaker is a fabrication in an attempt to assist his current case.  She says that throughout the marriage, she has seen the husband reading the Sydney Morning Herald every day in English, and that he routinely received and read industry magazines, brochures, newsletters and correspondence.  Annexed to her affidavit were two certificates for English courses he had attended in 1989 and 1990 and a number of documents in the English language which have been signed by the husband.  Also annexed were some hand written quotes, mainly consisting of numbers which the wife asserts are written by the husband.

13. The issue of the husband's English skills is not one which I can determine on the evidence before me.  No doubt it will be an issue in any proceedings relating to property settlement and will be an issue going both to credit and to costs.

14. However, it is not disputed that the husband did not receive any legal advice in relation to the application for consent orders, although a letter was written to him by the wife's solicitors, urging him to seek advice.

15. The wife says that in September 2011 the husband told her that he wanted to be divorced, he wanted their financial affairs to be finalised, and that he intended to buy property in the Philippines and live in the Philippines with his girlfriend.  She says that it was after that conversation that she attended upon her solicitors and arranged for the documents to be prepared.

16. The wife gives evidence that the husband said to her that he wanted $40,000, in addition to an amount of $27,000 he had already received and that he refused to tell her what he had done with the money or what property there was overseas.  Her evidence is that the husband was pressing that the documents were prepared.

17. The wife deposes to a conversation between herself and the husband on 20 September 2011 where she told the husband that he would need to see a solicitor. She says that the husband replied that he didn't need to see a lawyer and that he understood exactly what the deal was. His understanding was that she would keep the house and he would keep his business and what he already had overseas.

18. Part 1 of the application for consent orders, which was signed by the husband and the wife, discloses the result of the consent orders to be that the wife would retain assets to the value of $1,373,000, and the husband would retain assets to the value of $127,850. As senior counsel for the husband pointed out, the division is approximately 90% to the wife and 10% to the husband.

19. On 29 September 2011, the husband contends that he was evicted from the former matrimonial home.  Thereafter, he decided to obtain legal advice and he attended upon B Law Firm on 11 October 2011.  A letter was written to the wife's solicitors asking for copies of the documents that had been prepared and filed, and those documents were forwarded to the husband's solicitors by fax on the same day.

20. On 14 October 2011 the husband's solicitors wrote to the wife's solicitors, making it clear that they had instructions to seek to set aside the orders of the court. In that letter, the basis of the husband's objections was made plain, and the solicitors to the wife were notified that the husband's solicitors expected instructions to commence proceedings.  The nature of the proceedings was not specified.

21. On 20 October 2011 the wife's solicitors wrote to the husband solicitors seeking particulars of a claim under section 79A of the Family Law Act and on 28 October 2011 a further letter was written by the Husband’s solicitors to the wife’s solicitors.

22. From at least 14 October 2011 the wife, through her solicitors, was aware that the husband challenged the validity of the consent orders and intended to take proceedings.  It seems from the correspondence that the solicitors then acting for the husband had not considered the possibility of filing an application for review of the consent orders within time, or whether time limits existed in relation to such an application.

23. The husband consulted other solicitors, and on 7 November 2011, the solicitors for the husband served upon the solicitors of the wife an application seeking a review of Registrar Chayna’s orders made 6 October 2011. It is that application, which comes before me today for hearing.

24. There is no dispute that Registrar Chayna properly exercised power, which was delegated to her, when the consent orders were made. There is also no dispute that the husband was entitled to seek to review the making of the orders within seven days.  The application was not filed within time and was not, in fact, filed until 3 November 2011.

25. A review of the exercise of delegated power by a registrar proceeds by way of a hearing de novo.  That is, a complete re-hearing of the matter, in the circumstances where the husband no longer consents to the making of the orders.  It follows that if the court grants leave to extend the time within which the husband can file the application, and then notes that the husband no longer consents to the orders, the orders must be set aside.

26. The High Court dealt with the principles which apply in an application to extend time to file a notice of appeal in Gallo v. Dawson (1990) 93 ALR 13 479 in the following terms:

    The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant... It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.

27. I was referred by Senior Counsel for the husband to a decision of Purvis J in Sanders and Sanders (1993) FLC 92-246 where His Honour considered the principles to be applied in these circumstances and said:

    Applications of the nature of those that I have just mentioned have been the subject of decisions in this Court over the years. McMahon and McMahon (1976) FLC ¶90-038 at 75,143 was such a case. There, the applicant sought leave of the Court to extend the time for filing and serving a notice of appeal. The then Chief Justice, in delivering her reasons for decision, referred to the general principles governing applications for leave to extend time, and said that in summary the applicant must show that there are adequate reasons which explain the delay, that there is a substantial issue to be raised and that no hardship or injustice is caused to the respondent which cannot be compensated by orders as to costs or otherwise.

    In Jacenko and Jacenko (1986) FLC ¶91-776 at 75,644, the Full Court of the Family Court of Australia was there considering an application pursuant to section 44(3) of the Family Law Act, that is an application to commence proceedings referable to property after the expiration of the statutory period.

    In the course of delivering his reasons for decision, Nygh J had this to say:

    The applicant must establish three principle matters: first, a reasonable prima facie case for relief, had she instituted proceedings in time...

    Secondly, that denial of the wife's claim would cause her hardship; and thirdly, an adequate explanation as to her delay.

    That third requirement must now be read, subject to the decisions of the Full Court in Althaus and Howard... which indicate that in appropriate cases the degree of hardship to be suffered by the applicant may well outweigh an inadequate explanation of delay.

    If those three elements are satisfied, the Court should further, in determining whether to exercise its discretion to grant relief, consider the question of prejudice which the respondent would suffer by reason of the delay in bringing the application.

    Translating the principles that emerge from these two cases into those that are pertinent to the present application, the Court is required to look firstly at the explanation of delay, secondly whether there are substantial issues to be tried in the event of the time being extended and the matter proceeding to a hearing and thus whether, prima facie, orders significantly different to those in the terms of agreement may be made. Thirdly, whether non-compensable hardship or prejudice would be suffered to the respondent by reason of leave being granted and the delay in the matter being finally heard and determined.

28. Turning then to the matter presently before the court, consistently with the authorities referred to above, the applicant must establish a reasonable prima facie case for relief, had he instituted proceedings in time. Because of the nature of the proceedings, had they been instituted within time, the applicant must have succeeded.

29. Secondly, the applicant must establish that a denial of his application would cause hardship. As a result of the consent orders that were made, the wife received 90% of the asset pool of the parties generated over a marriage of 31 years and including an amount of $205,000 which the husband received by way of compensation for an injury. The husband in his affidavit in support of this application sets out in detail the history of the marriage and asserts significant contributions on a prima facie basis.  The contributions of the parties were at least equal. There is no evidence before me, which would suggest that an adjustment in favour of the wife for section 75(2) factors would have resulted in the outcome represented by the consent orders. I therefore find that the husband has established that a denial of his application would cause hardship.

30. Thirdly, I am required to consider the explanation, which is given by the husband, for the delay in instituting the proceedings. The application which should have been filed by 13 October was, in fact, filed on 3 November 2011.  The husband first attended upon his solicitors on 11 October 2011 and was provided with copies of the documents by the wife's solicitors under cover of a letter which was faxed to the husband's solicitors on 11 October 2011. By 14 October 2011 the wife was on notice that the husband would challenge the consent orders, although the exact nature of the challenge was not specified.  It was not until the husband instructed his present solicitors that attention was given to the possibility of filing an application out of time to review the decision of the registrar to make the consent orders.  However, in circumstances where the wife was on notice, at least from 14 October 2011, that a challenge would be made, I accept that the husband has given a reasonable explanation of the delay.

31. I am therefore satisfied that the husband has met the requirements of the law in relation to his application to review the decision of the registrar out of time.

32. Turning then to the hardship to the respondent in the event that the application is granted,  it is submitted on her behalf that she will be put to the expense of a contested trial in relation to property settlement.  There is no doubt that that is highly likely.  However, senior counsel for the husband rightly conceded that in the event that the matter proceeded to trial and the husband received a property settlement which was no better than that which he received by virtue of the consent orders, he would be likely to be ordered to pay the wife's costs, and it would be likely that those costs would be ordered on an indemnity basis.

33. It was further submitted that it would be a hardship to the wife to have to face the uncertainty which would be consequent upon the setting aside of the consent orders.  However, that hardship must be matched against the hardship to the husband of being refused the opportunity to contest a result, which prima facie is manifestly unjust.

34. Having regard to all of these matters, I propose to extend the time for the husband to review the decision of Registrar Chayna to make consent orders.

35. Having regard to the fact that the matter now proceeds before me as a hearing de novo and the husband does not consent to the making of the orders, I discharge the consent orders.

I certify that the preceding THIRTY-FIVE (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 March 2012.

Associate: 

Date:  16 March 2012