Pellam & Valasco
[2021] FCCA 988
•14 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Pellam & Valasco [2021] FCCA 988
File number(s): PAC 6127 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 14 May 2021 Catchwords: FAMILY LAW - Applications by Husband to set aside final property Orders and related property enforcement Orders - Applications dismissed. Legislation: Crimes Act 1900, s 253
Family Law Act 1975 (Cth), s 79A(1)(a)
Federal Circuit Court Rules 2001 r 16.05(2)(b)
Cases cited: Byrne v Byrne (1965) 7 FLR 342
Badawi & Badawi [2017] FamCAFC 129
In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92-194
Lane & Lane (2016) FLC 93 – 699; [2016] FamCAFC 53
Taylor v Taylor (1979) FLC 90 – 674
Wint v Medimobile Pty Ltd [2016] FCCA 102.
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Number of paragraphs: 36 Date of last submission/s: 30 April 2021 Date of hearing: 15, 16, 18 February 2021, 8 March 2021, 22, 30 April 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Mr Ford
Table of Corrections 14 July 2021 Order 2 inserted into orders section ORDERS
PAC 6127 of 2018 BETWEEN: MS PELLAM
Applicant
AND: MR VALASCO
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
14 MAY 2021
THE COURT ORDERS THAT:
1.The Application in a Case filed by the Husband on 28 January 2021 is dismissed.
2.The Application in a Case filed by the Husband on 29 January 2021 is dismissed.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Pellam & Valasco is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION AND BACKGROUND
This is firstly the determination of an Application a Case filed by the Husband on 29 January 2021 seeking an Order that the parties’ Consent Order dated 28 January 2020, relating to the sale and division of the net proceeds of sale of the parties’ property at Suburb C, inter alia, be set aside. The Orders sought in this Application in a Case are opposed by the Wife.
And secondly, this is the determination of a further Application in a Case filed by the Husband on 28 January 2021 seeking an Order to set aside or review the Court’s Orders dated 23 December 2020 relating to the issuing of a warrant for possession in respect to the Suburb C property, and including an Order that the Husband be ejected from that property. The Orders sought in that Application a Case are opposed by the Wife.
The Husband remains residing in the Suburb C property. The Wife is desirous of having the Suburb C property sold and previous Orders made in respect to the property being executed. She contends that the mortgagee bank Westpac is liable to exercise its power of sale over the property if the property is not sold pursuant to the Consent Order dated 28 January 2020.
On 20 October 2020, the Wife had filed an Application a Case seeking Orders, inter alia, that the Husband vacate the above property at Suburb C, and that commencing from the 28th day after the making of the Court’s Orders and until settlement of the sale of the property the Husband be restrained from entering onto the property and approaching within 200m of the property. That Application in a Case was determined by the Court on 9 November 2020, in the absence of the Husband, with the Court making the Wife’s proposed Orders, other than a relatively minor amendment to the Wife’s proposed costs Order in that Application in a Case.
On 11 December 2020, the Wife filed a further Application in a Case seeking Orders, inter alia, that a warrant for possession of real property be issued authorising an enforcement officer to enter the property at Suburb C and eject from the property the Husband and give possession of the property to the Wife. That Application a Case was determined by the Court on 23 December 2020, in the absence of the Husband, with the Court making the Wife’s proposed Orders.
In respect to the hearing of the Husband’s Applications in a Case filed 28 and 29 January 2021, the Wife was legally represented by Mr M Ford, solicitor, and the Husband appeared for himself. On 18 February 2021, 8 March 2021, 22 and 30 April 2021, the Husband had with him a family friend who spoke Language D and who was present to assist the Husband with any language issues, noting the Husband’s first language was Language D. On 30 April 2021, the Husband was provided with a Court appointed Language D interpreter. The Husband often spoke in English to the Court during the hearings. He appeared to usually understand English spoken to him by the Court. Reading from prepared documents, he cross-examined witnesses speaking English, albeit with some occasional assistance from the interpreter.
The Husband was afforded the opportunity to file and serve belated Affidavit evidence relating to his contentions that he had not signed the Consent Orders of 28 January 2020. He was afforded the opportunity to cross-examine the Wife’s Affidavit witnesses and he took up that opportunity. He was given procedural advice from the Court on 22 and 30 April 2021, consistent with legal authority, so as to afford him a fair hearing.
MATERIAL RELIED UPON
The Husband relied upon the following documents:
(a)His Applications in a Case filed 28 and 29 January 2021;
(b)Affidavits of Husband filed 28 and 29 January 2021;
(c)Affidavit of Service of Husband filed 9 February 2021;
(d)Affidavit of Husband filed 17 February 2021;
(e)Affidavit of Husband affirmed 24 February 2021.
The Wife relied upon the following documents:
(a)Responses to Applications in a Case filed 8 and 9 February 2021;
(b)Affidavits of Solicitor for Wife, Mark Ford, filed 8 February 2021, 9 February 2021, and 5 March 2021;
(c)Affidavits of Solicitor, Ms E, filed 6 November 2020, 9 December 2020, and 17 December 2020 (Ms E works in the same law firm as Mr Ford);
(d)Affidavit of Solicitor Mr B filed 4 March 2021 (former solicitor for the Husband).
(e)Affidavit of Solicitor Mr F filed 4 March 2021 (this solicitor works in the same law firm as Mr B);
The following Exhibits were relied upon:
(a)Exhibit A: transcript of proceedings of this Court held on 28 January 2020;
(b)Exhibit B: Copy of Consent Orders made by the Court on 28 January 2020.
HUSBAND’S APPLICATION IN A CASE SEEKING AN ORDER TO SET ASIDE THE CONSENT ORDERS OF 28 JANUARY 2020
It is helpful to set out certain allegations of the Husband from his Affidavits so as to understand his contentions in relation to his application to set aside the Consent Orders of 28 January 2020. The Court’s findings in relation to these allegations are set out later in these Reasons under the heading “Findings and determinations”.
In the Husband’s Affidavit filed 29 January 2021, the Husband alleges, inter alia, that:
(a)Prior to 28 January 2020 he agreed to divide the sale proceeds of the Suburb C property.
(b)On 6 November 2019 the law firm G Law Firm appointed Mr B, solicitor, to act as his lawyer in the case.
(c)Prior to a mediation that took place on 19 January 2020, he instructed Mr B to make sure that the money in the parties’ joint Westpac account and the parties’ jointly owned jewellery and homeware furniture be included as the subject of settlement at the mediation. He states, however, that Mr B advised him that for the time being only the Suburb C property should be the subject matter of settlement at the mediation, and he would raise the issue of dividing the other jointly owned assets (the monies in the joint bank account and jewellery and homeware furniture) at the hearing of the case before the Judge.
(d)At a “mediation” of the property proceedings in January 2020, he agreed to a settlement “for 65% – 35% split of the sale proceeds of the Suburb C property where 65% will go to (the Wife) and 35% will go to me. I agreed to such settlement on the basis of the advice given by (the Husband’s lawyer) Mr B that since my underage daughter shall live with (the Wife) she got to receive the lion’s share of the sale proceeds.”
(e)On 28 January 2020, at the hearing of the case, after the filing of the settlement agreement to the Court by the Husband’s lawyer, “Judge Newbrun unequivocally asked my lawyer why 20% of the sale proceeds from my portion shall go to my underage daughter. This came as a complete surprise to me as there was no such discussion let alone agreement to that effect during the mediation process, and I had no knowledge of such settlement of the Suburb C property sale proceeds.”
(f)When he confronted Mr B at Court on 28 January 2020, after the Court had made the Orders, Mr B had “categorically denied Judge Newbrun ever said anything about 20% of the sale proceeds going to my underage daughter.” The Husband asserts that when he asked for a copy of the Consent Orders “passed by the Court on 28 January 2020”, his lawyer Mr B “provided me with a copy which does not mention anything about that 20% of the sale proceeds from my portion going to my underage daughter. Since this copy clearly contradicts the statement made by Judge Newbrun in the Court room on 28 January 2020, it led me to the conclusion that this copy of the Order is not authentic.”
(g)He never agreed to an Order that from the proceeds of sale of the Suburb C property the balance owing on the Wife’s credit cards with Westpac Banking Corporation and Commonwealth Bank be paid.
In the Husband’s Affidavit filed 17 February 2021, he alleges, inter alia:
(a)(paragraph 12) the Consent Orders of 28 January 2020 were obtained by fraud since it was the result of his lawyer acting in defiance of his specific instructions (and in this regard he refers to paragraph 4 of his Affidavit filed 29 January 2021);
(b)(paragraph 13) that he never instructed his lawyer to make any offer that included the term that the Wife’s credit card bills shall be paid out of the sale proceeds of the Suburb C property, nor did he instruct his lawyer to make any offer that the matter should be settled on a final basis without dividing the joint Westpac account, jewellery and homewares.
In the Husband’s Affidavit affirmed 24 February 2021, he alleges, inter alia:
(a)(paragraphs 3 and 4) the alleged signatures of himself which appear to read “Mr Valasco” in the Consent Orders of 28 January 2020 (as annexed to his Affidavit filed 29 January 2021) are not his signatures and he did not sign the first 2 pages of the Consent Orders of 28 January 2020. And he asserts that the signatures on the first 2 pages of those Consent Orders and “the document” are conspicuously a forgery under section 253 of the Crimes Act 1900;
(b)(paragraph 6) that he gave instructions, inter alia, that he keep the Suburb C property and purchase the Wife’s interest in it;
(The Court observes that the above assertions of the Husband are inconsistent at least with paragraph 5 of his Affidavit filed 29 January 2021 which stated, inter alia, “I could not provide such a big amount of money in such a short time and hence I had to agree to dividing the sale proceeds of the Suburb C property.”)
(c)(paragraph 7) That his lawyer Mr B grossly defied his instructions by including the terms (in the Consent Orders) that the Wife’s credit card bills be paid out of the sale proceeds and the Wife have sole title in goods in her possession, as he never agreed to those terms;
(d)(paragraph 7) that Mr B lied to him when he assured the Husband that he would ask the Court for the division of “the sale proceeds of H Street, Suburb C property, jewellery and homeware”, and that this was deliberate fraud on his part.
LEGAL PRINCIPLES
The Husband, in relation to his Application in a Case filed 29 January 2021, seeks an Order setting aside the Consent Orders dated 28 January 2020; in his Affidavit material relied upon, in relation to the Consent Orders of 28 January 2020, he asserts and alleges fraud, and/or failures to act in accordance with his instructions, committed by his former solicitor Mr B in certain respects. He does not assert any form of misconduct by the Wife or her solicitors. He did not articulate the legal bases upon which he relied to seek to set aside those Consent Orders and the Court has inferred that he relies upon Rule 16.05(2)(b) and/or section 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), which provide respectively:
Rule 16.05(2)(b):
(2) The Court may vary or set aside its judgement or Order after it has been entered if:
(b) the Order is obtained by fraud.
Section 79A(1)(a) of the Act provides:
(1) Where, on application by a person affected by an Order made by a court under section 79 in property settlement proceedings, the Court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
…..
the Court may, in its discretion, vary the Order or set the Order aside and, if it considers appropriate, make another Order under section 79 in substitution for the Order so set aside.
“Fraud”, for the purposes of the provisions of section 79A, means “conscious wrongdoing or some form of dishonesty”: see Byrne v Byrne (1965) 7 FLR 342 at page 343. And see Taylor v Taylor (1979) FLC 90 – 674 at pp 78, 589, 78, 590, 78, 594 and 78, 595, in relation to fraud and the giving of false evidence. These cases appear to indicate that a party alleging fraud or the giving of false evidence will usually make such allegations against the other party to the proceedings rather than against his own legal representative.
Bearing in mind that the Husband’s allegations of fraud and/or failures to act in accordance with his instructions are made against his former solicitor, the Court should refer to general legal principles in relation to the meaning of “miscarriage of justice” by reason of “any other circumstance” under section 79A. The Court refers to Lane & Lane (2016) FLC 93 – 699; [2016] FamCAFC 53, including at paragraphs 38, 82-83, 137- 140 of that decision. It is helpful to set out the following passages from that decision:
38. In Barker v Barker [2007] FamCA 13; (2007) 36 Fam LR 650 the Full Court explained at 675:
[120] A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process (original emphasis)” (Bigg v Suzi (supra) at 84,982). See also Suiker (supra); Public Trustee (as executor of the estate of Gilbert) v Gilbert (supra)). While cases such as Suiker; In the marriage of Holland [1982] FamCA 31; (1982) 8 Fam LR 233; (1982) FLC 91-243; and In the Marriage of Gebert (1990) 14 Fam LR 62; (1990) FLC 92-137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the Court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation. As the Full Court said in Holland (above at 239):
To succeed in an application under s 79A, the Wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlements under s 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.
(See also In the marriage of Clifton and Stuart (1991) FLC 92-194).
….
137. Those principles underpin the well-settled proposition that “agreement to a consent order which may not adequately reflect a party’s entitlements under sec 79 does not, in itself, show that there has been a miscarriage of justice”.[6]
138.In short, absent fraud, duress, or other such vitiating factors, parties of full capacity are free to make whatever agreement they choose in settling their financial affairs.[7] Important to the instant context, they may do so for whatever (idiosyncratic) reasons they might choose. I respectfully disagree with the statement by the trial Judge that “it was not open to the parties to exclude the ... Trust from their property settlement by agreement”.[8] In my view it was entirely open to them to do so (again, of course, assuming the absence of fraud or other vitiating factors). In that respect it is important to observe that the instant proceedings did not involve any application by the Wife to extend time to review the decision of the Registrar; it involved a challenge to what the Husband is alleged to have omitted so as to bring about the Wife’s agreement upon which the consent orders were based.
139.The parties’ consent to an order must be a free and informed consent.[9] Consequently, the authorities seek to emphasise that the province of s 79A, in the relevant context of asserted suppression of evidence occasioned by non-disclosure, is one party’s failure to disclose matters “which were peculiarly within [the] knowledge”[10] of that party or omissions which knowingly engendered, or permitted, a mistaken understanding on the part of the other party.[11] Within that context, it has been said, for example, that suppression of evidence must “amount to wilful concealment of matters which it was [the party’s] duty to put to the Court”[12] and that “the ground is not available to a party who simply fails to give relevant evidence either by choice or inadvertence ...‘[t]o withhold facts is not to reveal them or suppress them’”.[13]
140.Important to the instant case, the Full Court has also said, for example, that:
...it is difficult to imagine any circumstances in which it would be enough to constitute a miscarriage of justice ... for one party to consent orders to establish only that he or she entered into those orders under a mistaken belief, even about a relevant matter, which was neither induced by nor known to the other party...[14]”
In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92-194, the Court stated, at pp 517, and later at pp 520:
Dr Dickey submitted that it was not sufficient for the Wife to claim professional neglect or incompetence on the part of Mr Wells as nothing could be pointed to which establishes that the means by which the judgement was obtained was so wrong as to involve a clear injustice. However, he conceded that there might conceivably be cases in which professional incompetence did result in a miscarriage of justice, for example if the representation was so bad as to be the equivalent to no representation at all or if the representation was perverse for example if the representative was in league with the other side.
….
Our conclusion, therefore, is that a miscarriage of justice must arise out of the judicial process and that the incompetence of legal representatives unless of the kind instanced by Dr Dickey does not by itself affect the judicial process or the fairness of the trial even though the result may be unjust to the party concerned.
The Court also refers to Badawi & Badawi [2017] FamCAFC 129 and the discussion of legal principles therein in relation to s79A(1)(a).
In relation to relevant legal principle relating to Rule 16.05(2)(b) and “fraud”, the Court refers to the observations of Kirby P in Wentworth v Rogers(No 5) (1986) 6 NSWLR 534 that:
… The burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, relies on the party impugning the judgement. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment. (italics supplied by the Court)
The Husband, in relation to his Application in a Case filed 28 January 2021, seeking an Order to set aside or review the Court’s Orders dated 23 December 2020 relating to the issuing of a warrant for possession in respect to the Suburb C property, and including an Order that the Husband be ejected from that property, relies upon Rule 16.05(2)(a) which provides:
Rule 16.05(2)(a):
(2) The Court may vary or set aside its judgement or Order after it has been entered if:
(a) the Order is made in the absence of a party.
As to relevant legal principle in respect to the above Rule, the Court refers to Wint v Medimobile Pty Ltd [2016] FCCA 102, discussed below.
FINDINGS AND DETERMINATIONS
Before addressing the relevant evidence, it is important to consider the credit worthiness of the witnesses.
The Court has significant reservations as to the reliability of the Husband’s evidence. The Court prefers the evidence relied upon by the Wife (that is, the evidence of Mr M Ford, Ms E, Mr B, Mr F, and Exhibits A and B) where in conflict with the Husband’s evidence.
For example, the Husband’s evidence that on 28 January 2020 “Judge Newbrun unequivocally asked my lawyer why 20% of the sale proceeds from my portion shall go to my underage daughter” was plainly wrong, and in this regard the Court refers to the transcript of the Court’s hearing on 28 January 2020 relating to the Consent Orders of that date, Exhibit A. And further, the Court observes that this mistaken recollection of the Husband led him to the conclusion that the copy Consent Orders of 20 January 2020 were not authentic (see paragraph 10 of the Husband’s Affidavit filed 29 January 2021).
Another example was the Husband’s assertion and contention that it was only on 18 February 2021, after questioning from the Court to him in relation to the signing of the Consent Orders of 20 January 2020, that he first observed that his purported signatures or initials on pages 1 and 2 of the Consent Orders of 20 January 2020 were not his signatures or initials. Yet the evidence before the Court was that the Husband had been provided with a copy of the Consent Orders of 28 January 2020 at least by about 16 July 2020 when his former solicitors, J Law Firm, confirmed in writing to the Wife’s solicitors that the Husband had provided them with a copy of the Consent Orders of 20 January 2020.
Another example was the Husband’s assertions that he did not sign the first two pages of the Consent Orders of 28 January 2020 in circumstances where he admitted that he did sign the last page of the Consent Orders (being the “Certification of Orders” page of those Orders). These assertions of not signing the first two pages of the Consent Orders could not be accepted in the face of credible and unsuccessfully challenged sworn evidence from his former solicitor and his solicitor colleague who attested to physically observing the Husband sign the Consent Orders of 28 January 2020 in their presence outside the Court on 28 January 2020. Further, in this context, the Husband was present in Court when the Court was informed that the matter had settled with “Orders to hand-up” and the Consent Orders were briefly explained by the Wife’s solicitor to the Court, including a reference to the 65/35 split of the net proceeds of sale of the Suburb C property, and a reference to the “credit card debts in Order 1(d)”.
Another example was the Husband’s assertions that he had not received notice or adequate notice of the proceedings leading to the Court’s Orders of 9 November 2020 and 23 December 2020. Yet the objective documentary evidence (confirmed by her oral evidence) of the Wife’s assistant solicitor, Ms E, relating to the giving of relevant notice to the Husband of the Wife’s applications to the Court in November and December 2020, was clearly persuasive and it is accepted by the Court.
The Court finds, on the balance of probabilities, that:
(a)There was no fraud on the part of the Husband’s solicitor Mr B in relation to the Consent Orders of 28 January 2020.
(b)The Husband has not established that a miscarriage of justice arose out of the judicial process in relation to the Consent Orders made on 28 January 2020.
(c)The Husband has not established incompetence by his former lawyer of the kind “instanced by Dr Dickey” and referred to above in the decision of In the Marriage of Clifton and Stuart (1990) 14 Fam LR 511; (1991) FLC 92-194.
(d)The Husband has not established that his legal representation provided to him by his former solicitor Mr B with respect to the making of the Consent Orders of 28 January 2020 was “equivalent to no representation at all”. He has not established that his former solicitor provided grossly inadequate legal representation in this respect.
(e)The Husband has not established that this was a case where the Consent Orders of 28 January 2020 were “so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.”
(f)The Husband has not otherwise established, or established at all, a miscarriage of justice under s79A(1)(a) as contended by him, in relation to the Consent Orders of 28 January 2020.
(g)The Husband has not established “fraud” under Rule 16.05(2)(b) of this Court’s Rules.
In explanation and support of the above findings, the Court makes the following findings, on the balance of probabilities, and/or observes that:
(a)The Husband makes no relevant allegation of fraud or other adverse behaviour by the Wife or her legal representatives in relation to the making of the Consent Orders of 28 January 2020.
(b)The Husband signed the Consent Orders of 28 January 2020, Exhibit B, on that date, in the presence of his solicitor Mr B and Mr B’s solicitor colleague Mr F. The Husband had initialled the bottom of pages 1 and 2 of the Consent Orders and signed the “Certification of Orders” forming part of the Consent Orders. The Court accepts the evidence of solicitors Mr B and Mr F in this context. A copy of these Consent Orders form Annexure A to the Husband’s Affidavit filed 29 January 2021.
(c)The Husband can read the English language. In all his Affidavits relied upon at this hearing, Affidavits in the English language, he has sworn such Affidavits without any translation by an interpreter. He had the ability to read the Consent Orders on 28 January 2020.
(d)The Court does not accept the Husband’s assertions that his initials on pages 1 and 2 of the Consent Orders are forgeries. Again, the Court accepts the Affidavit evidence of the solicitors Mr B and Mr F in this respect.
(e)The Court accepts the evidence of Mr B that (prior to the Court making Orders on 28 January 2020 in terms of the Consent Orders dated 28 January 2020) he was not told by the Husband that only the Suburb C property would be divided up but other properties would be divided later in the same case.
(f)The Court accepts the evidence of Mr B that (prior to the Court making Orders on 28 January 2020 in terms of the Consent Orders dated 28 January 2020) the Husband did agree that the Wife’s credit card bills would be paid out of the sale proceeds of the Suburb C property.
(g)On 18 February 2020 the parties had signed a Sales Inspection Report and Exclusive Selling Agency Agreement in relation to the property at Suburb C and the property remained listed for sale for about 2 months until the Husband purported to withdraw his agreement for K Real Estate Suburb C to act as selling agent. The Husband’s actions, in conjunction with the Wife, in entering into this written agreement are consistent with the Court’s above findings of there having been no fraud committed in relation to the Consent Orders of 28 January 2020, and that the Husband signed the Consent Orders made on 28 January 2020.
(h)It was only on 18 February 2021, for the first time, that the Husband had alleged that the said signatures on the original pages of the Consent Orders of 28 January 2020 were not his signatures. In the Husband’s Affidavits filed 29 January 2021 and 17 February 2021, the Husband does not state that that he did not sign pages 1 and 2 of the document which is Annexure A to his Affidavit filed 29 January 2021 and being a copy of the Consent Orders of 28 January 2020 provided to him by Mr B.
(i)Prior to 18 February 2021, the Husband nor any solicitor acting on his behalf had made any allegation to Mr Ford solicitor that the Husband had not signed the original pages of the Consent Orders of 28 January 2020. In this context, Mr Ford had caused a copy of the Consent Orders of 28 January 2020, together with other documents, to be sent to the Husband’s former solicitors L Law Firm on 2 and 3 June 2020.
The Court refers to the letter from the Husband’s former solicitors J Law Firm dated 16 July 2020 addressed to the Wife’s solicitors (Annexure F to the Affidavit of Mark Ford solicitor filed 5 March 2021) in which the Husband’s then solicitors only sought to agitate Order 1 (e) of the Court’s Orders of 28 January 2020 (which relates to the net balance of proceeds of sale of the Suburb C property being divided between the parties), having confirmed that they had received a copy of the Court’s Orders dated 28 January 2020. Specifically, J Law Firm, on behalf of the Husband, only sought to vary Order 1 (e) insofar as the Husband did not want his share of the net proceeds of sale of the Suburb C property paid to his former solicitors G Law Firm. Specifically, J Law Firm solicitors, on behalf of the Husband, stated in this context:
Order 1(e) of the 28 January 2020 Federal Circuit Court directs payment of our client’s 35% share of the proceeds from the sale of the property at (Suburb C) be paid to our client’s former solicitor, G Law Firm. We are instructed that our client’s monies are not to be paid to his former solicitor and to ensure the security of our client’s share of the proceeds.
We request that a further 14 days be allowed our client so that we may seek to have the orders rectified or remade with only Order 1(e) being varied. We will today seek advice as to the most cost-effective mechanism to affect the required change.
From the documentation so far provided to us we are aware that this has been a long process for the parties and our client does not want to cause further unnecessary delay and cost but in the circumstances we would ask for your client’s indulgence of a few more days.
Relevantly, through this correspondence from the Husband’s former solicitors, the Husband did not seek to agitate other matters, such as Order 1(d) (providing for the payment of the balance owing on the Wife’s credit cards with Westpac Banking Corporation and Commonwealth Bank being deducted from the proceeds of sale of the property at Suburb C).
(j)The Husband is incorrect in asserting that the Consent Orders signed by him, a copy of which is Annexure A to his Affidavit filed 29 January 2021, are not authentic because they do not refer to 20% of the Husband’s 35% share of the net proceeds of sale of the Suburb C Property being paid to his daughter. By reference to Exhibit A, the transcript of the Court proceedings of 28 January 2020, it is clear that the Husband’s above assertions are plainly incorrect; the Court made no such reference to 20% of the sale proceeds of the property from the Husband’s (35%) portion going to his underage daughter. The Husband’s related contentions that Mr B’s statements to him that Judge Newbrun had never said anything about 20% of the sale proceeds going to the Husband’s daughter was a deliberate lie by Mr B to the Husband are without foundation.
(k)The Husband’s assertion that Mr B’s law firm in proposing to deduct 15% of the sale proceeds of the Suburb C Property from his portion was never part of the service agreement that the Husband had with that law firm, and represents a fraud and/or a gross breach of Mr B’s fiduciary duty to him in an attempt to gain an unlawful profit, is an issue that relates to the Husband’s legal and contractual relationship with Mr B’s law firm. With respect, it is not an issue relevant to alleged “fraud” for the purposes of rule 16.05(2)(b) or miscarriage of justice under s79A(1)(a) of the Act.
(l)By reference to paragraphs 4 to 8 of the Affidavit of Mr Mark Ford filed 9 February 2021, the contents of which the Court accepts, the parties’ joint bank account, jewellery and homeware furniture were effectively dealt with in Order 4 of the Consent Orders of 28 January 2020. In any event, by reference to paragraph 4 to 8 of the Affidavit of, Mr Mark Ford filed 9 February 2021, such property was not of significance.
(m)The Husband was represented at Court on 28 January 2020 by Mr B, solicitor.
(n)By reference to Exhibit A, the transcript of the Court proceedings of 28 January 2020, Mr B expressly told the Court on 28 January 2020 that he appeared on behalf of the Husband.
(o)Mr B was continually present before the Court at that time whilst the solicitor for the Wife, Mr Ford, explained to the Court how the proposed Consent Orders were just and equitable in the circumstances.
(p)Mr B expressly informed the Court on behalf the Husband, that there was no objection to the proposed Consent Orders. Mr B expressly submitted to the Court at this time, along with Mr Ford, that the proposed Consent Orders were just and equitable Orders in all the circumstances.
(q)The Husband is legally bound by the representations of his solicitor Mr B made to the Court on 28 January 2020 in relation to the Consent Orders made by the Court on that day. The Husband is legally bound by the contents of those Consent Orders, including in relation to the 35/65% split between the Husband and Wife respectively in relation to the net proceeds of sale of the Suburb C property, and he is legally bound in relation to payment of the balance owing on the Wife’s credit cards with Westpac Banking Corporation and Commonwealth Bank from the proceeds of sale of the Suburb C property.
Even if the Court is wrong in concluding that there was no miscarriage of justice under s79A(1)(a), and no fraud under Rule 16.05(2)(b), the Court, exercising its discretion under those provisions, would not set aside the Consent Orders of 28 January 2020 because:
(a)the Husband has failed to establish that there is a real prospect that a substantially different order would be made compared to the content of the Consent Orders of 28 January 2020 (for example, there is no significant evidence before the Court that the Husband can afford to buy out the Wife’s interest in the Suburb C property so that he can retain that property),
(b)as submitted by the Wife in closing submissions, the Husband has been living in the Suburb C property for some months, not paying any outgoings, not maintaining that property and not making the mortgage repayments, and which the Consent Orders of 28 January 2020 do not take into account,
(c)the parties have continued to accumulate mortgage repayment arrears to the mortgagee bank in relation to the Suburb C property since the Consent Orders of 28 January 2020, they are both unemployed, and with further delays in these proceedings there is likely to be a significant risk that the mortgagee bank will take steps to exercise its power of sale under the mortgage to the parties’ financial disadvantage,
(d)The Husband agreed, in closing submissions, that he could rent accommodation should the property be sold from his net share of the proceeds of sale of the Suburb C property payable to him pursuant to the Consent Orders of 28 January 2020.
HUSBAND’S APPLICATION IN A CASE SEEKING AN ORDER TO SET ASIDE THE ORDERS OF 23 DECEMBER 2020
At the outset, the Court observes that the Husband does not seek to set aside the Court’s Orders of 9 November 2020 which provide, inter alia, that:
(a)Within 28 days the Husband shall vacate the property at Suburb C, that commencing from the 28th day after the making of those Orders until settlement of the sale of the property the Husband is restrained from entering onto the property and approaching within 200 m of the property;
(r)For the purposes of selling the property and otherwise implementing and enforcing Order 1 made on 28 January 2020, the Wife is appointed as the sole trustee for the sale of the property, with power and authority to do all things necessary to effect a sale of the property without the necessity of the Husband being involved in such sale by way of signing documents or otherwise.
In relation to the Husband’s assertions that:
(a)any proceeding, application or Order that took place or was made after 28 January 2020 was in his absence and without his knowledge;
(b)he received no notice by post nor did he receive any email about the applications made by the Wife;
(c)that he did not understand the nature and quality of the documentary material that he was receiving from the Wife’s solicitors;
the Court finds that:
(i)In relation to the Court’s Orders of 9 November 2020, the Wife’s solicitors served the Husband, on 20 October 2020, and brought to his attention on that date, the Wife’s Application in a Case filed 16 October 2020, the Wife’s Affidavit sworn 16 October 2020, the Affidavit of Mark Ford, solicitor, sworn 16 October 2020, and a copy of the Registrar’s Order granting short notice, and advising the matter was listed for a Directions Hearing on 9 November 2020, 11:30 AM before Judge Newbrun.
In this regard, the Court refers to the Affidavit of solicitor Ms E filed 6 November 2020, the annexures to that Affidavit, and in particular the email from the Husband dated 27 October 2020, received by the Wife’s solicitors, which refers to the Husband’s email address, being an email address to which the above Court documents of the Wife were sent to the Husband.
(ii)The Wife’s solicitors brought to the attention of the Husband the Court’s Orders of 9 November 2020 on or about 16 November 2020, following the Wife’s solicitors sending a sealed copy of those Court Orders by express post to the Husband at the address of the Suburb C property and to his email address at that time.
In this regard, the Court refers, inter alia, to the Affidavit of Ms E filed 9 December 2020, referring to her communications to the Husband, and including the reply email from the Husband to that solicitor dated 18 November 2020 indicating that he had received the solicitor’s email and postal mail.
(iii)In relation to the Court’s Orders of 23 December 2020, the Wife’s solicitors served the Husband, on or about 11 December 2020, and brought to his attention on about that date, the Wife’s Application in a Case filed 11 December 2020, the Wife’s Affidavit sworn 9 December 2020, the Affidavit of Ms E, solicitor, sworn 9 December 2020, and a copy of an email from the Court advising the matter was listed on 23 December 2020 at 9:30 AM and advising that short notice had been granted.
In this regard, the Court refers to the Affidavit of solicitor Ms E filed 17 December 2020, the annexures to that Affidavit, and in particular the email from the Husband dated 12 December 2020, received by the Wife’s solicitors, which refers to the Husband’s email address, being an email address to which the above Court documents of the Wife were sent to the Husband.
(iv)The evidence of solicitor Ms E should be accepted.
(v)The Husband understood that if he did not attend Court on 9 November 2020 and 23 December 2020, the Orders that the Wife was seeking in her Applications in a Case, in relation to the Suburb C property, might be made in his absence.
The Husband has failed to demonstrate, with appropriate evidence, in relation to his application to set aside the Court’s Orders of 23 December 2020 pursuant to rule 16.05(2)(a), that:
(a)He has a reasonable explanation for his absence at Court on 23 December 2020;
(b)He has material arguments available to him that might reasonably lead to the making of an Order different to the Orders of 23 December 2020 sought to be set aside;
In this regard, he has failed in his Application to set aside the Court’s Orders of 28 January 2020, which provide that the parties forthwith do all things and sign all documents necessary to cause the property at Suburb C to be sold and the net proceeds of sale, after certain deductions, be divided as to 65% to the Wife and 35% to the Husband.
(c)There will be no prejudice to the Wife, who has the benefit of the Court’s Orders of 28 January 2020, that is not able to be adequately addressed by the Court.
In this regard, there is a significant prospect of prejudice to the Wife if the Court sets aside the Court’s Orders of 23 December 2020; again, the parties have continued to accumulate mortgage repayment arrears to the mortgagee bank in relation to the Suburb C property since the Consent Orders of 28 January 2020 and they continue to accrue. And with further delays in these proceedings there is likely to be a significant risk that the mortgagee bank will take steps to exercise its power of sale under the mortgage to the parties’ financial disadvantage.
As to the above failures of the Husband to so demonstrate the matters set out above under (a), (b), and (c), the Court refers to relevant legal principle set out in the decision of Wint v Medimobile Pty Ltd [2016] FCCA 102.
SUMMARY
Accordingly, for the above Reasons, the Applications in a Case filed by the Husband on 28 and 29 January 2021 should be dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 14 May 2021
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