Piroozi & Piroozi (No 2)
[2023] FedCFamC1F 554
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Piroozi & Piroozi (No 2) [2023] FedCFamC1F 554
File number: SYC 4175 of 2019 Judgment of: BRASCH J Date of judgment: 3 July 2023 Catchwords: FAMILY LAW – STAY APPLICATION – Where the husband filed a Notice of Appeal against final property orders made – Where the husband seeks a stay of orders in relation to the sale of property and spousal maintenance subject to appeal – Where the wife opposes the stay application – Where the husband has not established on balance that he can keep the home – Where the husband puts on no evidence when the appeal might be heard –Where a partial stay of the final orders is granted on conditions Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
B & the Estate of Coburn and Ors [2020] FamCA 548
Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; [1986] HCA 13
Friscioni & Friscioni [2009] FamCAFC 43
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kellner & Kellner [2019] FamCA 139
State Central Authority & Ustinov (No.2) [2008] FamCA 368
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48;
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 3 July 2023 Place: Sydney Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Godden Lawyers Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYC 4175 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PIROOZI
Applicant
AND: MS PIROOZI
Respondent
order made by:
BRASCH J
DATE OF ORDER:
3 JULY 2023
THE COURT ORDERS THAT:
1.The following orders will be stayed pending completion of the husband’s Appeal being NAA 154/2023 filed 6 June 2023: Order 5(d) and (e) of the order of 11 May 2023.
2.The proceeds of sale of the Suburb T property after the payments required by Orders 5(a), (b) and (c) of the 11 May 2023 order, are to be retained on trust for the parties:
(a)In the Controlled Monies Account of the wife’s solicitor; and
(b)Both the husband and wife are restrained from directing the wife’s solicitors from distributing any of the controlled funds other than as required by orders of the Court or written agreement.
THE COURT FURTHER ORDERS BY CONSENT THAT:
3.The parties’ costs of the husband’s Application in a Proceeding sealed 20 June 2023 is reserved to the primary judge, to be joined with the wife’s costs application which is presently stayed pending the husband’s appeal.
THE COURT NOTES THAT:
A.The effect of this Order is that the sale of the Suburb T property may proceed on the terms provided by the 11 May 2023 order.
B.The Orders being stayed are those that would see a distribution to the parties of their s 79 entitlements pursuant to the orders of 11 May 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
INTRODUCTION
These are my ex tempore reasons in the matter before me this afternoon. Should I produce my reasons into writing, then I reserve the ability to correct for typographical errors and to make the written word more amenable to the spoken word.
On 11 May 2023, the primary judge gave Reasons and made Orders in the parties’ s 79 dispute. The broad outcome was the primary judge found the pool to be $2,628,739 and that included a property at Suburb T with an agreed value of $1,150,000. His Honour determined at [119] that the property of the parties would be divided 65 per cent to the wife and 35 per cent to the husband.
His Honour ordered the sale of the Suburb T property and found at [120] the husband had put on no evidence to satisfy the Court that the husband could raise funds to meet the wife’s entitlement and retain the property. It seems, and I confirmed with the husband’s Counsel, that the husband asked for three months to raise the funds, and I infer from that, if he was unable to raise the funds, then the property was to be sold. At trial, the husband did not cavil with the sale process proposed by the wife.
The primary judge also ordered the husband pay the wife spousal maintenance of $600 per week until she received her entitlement from the sale proceeds.
On 6 June 2023, the husband filed a Notice of Appeal. On 19 June 2023 he filed the Application in a Proceeding. On 20 June 2023 his application, which is before me, was sealed. He seeks a stay of the orders requiring the sale of the property and consequent distribution to the parties of their entitlements. Specifically, he seeks:
1. Pending the determination of the Husband’s Appeal filed 6 June Orders 2-5 and 8 made 11 May 2023 be stayed.
2. Costs.
(Application in a Proceeding filed 19 June 2023, p.5)
Order 8 was the order for spouse maintenance.
The husband now says the wife ought receive 55 per cent of the pool. In simple terms then, the husband really seeks to protect 10 per cent of the pool but that is in circumstances where he argues for a differently constituted pool on appeal, or perhaps more correctly, on a rehearing if his appeal is successful.
The wife has already received some property (for example, controlled monies and superannuation) pursuant to primary orders. The wife asks, by her Case Outline, that if I am against her on dismissing the husband’s application for the stays, then I only quarantine 10 per cent [of the pool] plus a sum of $50,000 as security for costs in the appeal. I am not prepared to consider the security for costs of the appeal – this was a belated matter raised by the wife in her Outline filed today, and, it is in my view more properly for the Appeal Division to consider. The husband also seeks a stay of the spousal maintenance order.
In her Response, the wife says the stay application ought be dismissed with costs.
BACKGROUND
Both parties were born in 1968. The parties had different dates for cohabitation, but it seemed nothing turned on that. On either case, it was a long relationship of some 20 to 21 years duration. The parties separated on a final basis on 9 March 2019 and were divorced in 2020.
There are three children of the marriage, namely, Mr E born 2001, and X and Y born 2004. It is not necessary in this stay application to detail the difficulties faced by various children, suffice to say I have read the primary Reasons.
On 28 June 2019, the wife commenced proceedings in the Family Court of Australia (as it then was). On 17 February 2023, the matter was set down for trial for four days. The trial commenced on 17 April 2023 and finished on 19 April 2023. Judgment was reserved and subsequently handed down on 11 May 2023.
The wife says in her outline that she anticipates it will take three to six months for the appeal to be listed. The husband put on no evidence in that regard.
MATERIAL
Both parties filed the required Cost Notices.
The husband relied upon the following material for the stay application:
·Application in a Proceeding filed 19 June 2023; and
·Affidavit of Mr Piroozi (the husband) filed 19 June 2023.
The wife relied upon:
·Response to Application in a Proceeding filed 29 June 2023; and
·Affidavit of Ms Piroozi (the wife) filed 29 June 2023.
The wife also filed an Outline of Case Document. Two exhibits came into evidence before me.
The standard of proof in most matters in this Court is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge to refer to every piece of evidence or argument presented during the trial in reaching a decision. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
LEGAL PRINCIPLES - STAYS PENDING APPEALS
Rule 13.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) refers to a stay pending appeal. I note that ordinarily a stay would be heard before the primary judge, but in this case, his Honour was unavailable. The matter was thus listed before me.
The grant of a stay is “wholly discretionary and the circumstances that would justify an order for a stay depend on the circumstances of each case. The onus of establishing a proper basis for a stay is on the applicant for the stay” (Friscioni & Friscioni [2009] FamCAFC 43 at [54]).
The principles for granting astay pending appeal are well settled and the following quote from Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 (Bryant CJ, Boland, Crisford JJ) is often cited in support:
18. The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
…
The list then goes on to consider parenting matters and are thus largely irrelevant here. Before me is a property matter, not parenting.
Other factors that are relevant include:
·Whether there is delay in bringing the application for a stay; and
·When the appeal will be heard and whether it can be dealt with promptly (State Central Authority & Ustinov (No.2) [2008] FamCA 368).
I now consider each of those dot points in turn.
The onus to establish a proper basis for the stay is on the applicant for the stay
Whilst the onus to establish the basis for the stay is on the applicant for the stay, it is not necessary that the husband (as is the case here) demonstrate any “special” or “exceptional” circumstances.
A person who has obtained a judgment is entitled to the benefit of that judgment; and a person who has obtained a judgment is entitled to presume the judgment is correct
I will consider these two matters together.
It has long been a settled principle of the law that a litigant is entitled to the “fruits of his litigation pending the determination of any appeal”(Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 222 citing The Annot Lyle (1886) 11 PD 114 at 116).
The wife is entitled to the benefit of the judgment, and entitled to presume the judgment and orders made are correct. There is nothing controversial in those principles. Appropriately, Counsel for the husband accepted this to be so.
Conversely, if I stay the orders as sought by the husband, then the wife is left with a further period of time where the final fruits of the litigation will be placed beyond her grasp and she will not receive spousal maintenance. I say final fruits, as I am alert to the wife receiving the controlled monies by a consent order of April 2023. She has also received superannuation that has been rolled out.
Both of these factors - the benefit of the judgment and presumption it is correct - favour the wife’s position.
The mere filing of an appeal is insufficient to grant a stay
Nothing turns on this.
The bona fides of the application
I accept that the husband’s application is bona fide.
The wife submitted that the husband was not quite bona fide in that he did not seek to retain the Suburb T property in the orders listed in his appeal. Whilst his Notice of Appeal is lacking in that regard, it is clear to me husband wants the property. I do not accept the wife’s submissions on his bona fides or lack thereof. I accept the converse - the husband is genuine in the application he brings.
A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay
This is a ground that attracts significant weight when considering whether there is a real risk that if the stay is refused, it would render a successful appeal nugatory, or would make it impossible or impractical to restore the situation presently existing (B & the Estate of Coburn and Ors [2020] FamCA 548 at [35]).
In the s 79 Reasons, his Honour determined the Balance Sheet as follows:
·Assets of $1,651,512 including the unencumbered Suburb T property at an agreed value of $1,150,000. The balance of assets comprised motor vehicles, various loans owed to the parties, shares, bank accounts, household contents and musical instruments;
·The only liability was $40,000 owing to AB Finance;
·Superannuation of $332,025, with just over $182,000 attributable to the husband; and
·Nett Total Assets (including Superannuation) $2,628,739.
The Suburb T property is obviously the single biggest item of property in the pool.
At trial, the parties agreed that the husband would retain the parties’ self-managed superannuation fund subject to rolling out the wife’s superannuation entitlement and that he would retain the various corporate structures. The parties also agreed that an order could be made by consent that the wife receive $250,000 from the controlled monies account. That order was made on 19 April 2023.
A chance to keep the home
Before me, the husband deposed:
If my property is sold immediately my appeal will be rendered nugatory if I am successful ultimately.
(Husband’s Affidavit filed 19 June 2023, paragraph 9)
His Honour determined to sell the property as the husband had not established he could raise funds to keep the property and pay out the wife. Notwithstanding the paucity of evidence before his Honour (to which his Honour referred in his reasons), the husband still does not put on evidence he can raise funds to pay out the wife and keep the property. Paragraph 9 that I have just extracted is unhelpful; it is a conclusion without foundation.
On the hearing before me, both Counsel agreed that on the husband’s 55 per cent to the wife (that he now contends), and, on the pool as it is, that would see the husband paying the wife some $546,147. Counsel also both agreed that on 55 per cent to the wife (as the husband now contends), but that his addback against the wife is included, that would see the husband paying the wife some $546,147 (the same amount I referred to before) but less about $82,232. I accept the husband submits the pool may be different [post appeal] but I can only work with the evidence before me. Either way, on the evidence before me and taking the husband’s case at its highest, these are significant sums to find.
If the husband cannot satisfy me he will be able to keep the house on the evidence before me, then there is no need to stay the orders for sale (see for example, Kellner & Kellner [2019] FamCA 139).
Despite his Honour clearly sign posting the husband’s lack of evidence to buy out the wife was a problem for the husband at trial, I find myself in the same position. The husband’s affidavit does not mention a thing about his capacity to keep the house. I accept he wants to, but that is not an evidenced factor. On the current figures as both Counsel agreed (but again noting the husband would say at a retrial the pool may well be different), the husband would have to find about $500,000.
I accept Counsel for the wife’s submission that it would have been easy for the husband to depose to such things in the material before me - how he proposed to go about it; any dealings he may have had with the bank - but I have nothing. The currency of the Court is evidence. I have none which persuades me that the husband can retain the home.
In short, the husband has not demonstrated that keeping the house is probable.
It is for the husband to establish that selling the home would render his appeal nugatory. He has failed to do so at least on this factor, but I will nevertheless continue looking at the other considerations.
Preserving the proceeds
The husband also deposed:
If the stay is not granted and the Respondent receives the moneys pursuant to the sale of my home, I am concerned she will spend the proceeds, rendering my appeal nugatory.
(Husband’s Affidavit filed 19 June 2023, paragraph 13)
The distribution of the sale proceeds is clearly a separate issue. The Orders pertaining to the distribution of the proceeds ought be stayed. Put differently, if the proceeds were distributed consistent with the substantive s 79 orders, then the appeal may well be rendered nugatory as the proceeds may be dissipated.
This is, according to principles, one of the most substantial factors for consideration in the exercise of the discretion to grant the stay or not.
In short, ‘if the money goes, it goes’.
It was the wife’s alternate case (by her outline) that I only need to protect 10 per cent of the proceeds, being the difference between the 55 per cent the husband now proposes and his Honour’s 65 per cent. I am not prepared to do so. First, the 10 per cent proposal only came in the outline at late notice. Second, in the event the appeal succeeds, who knows what the metes and measures of new litigation might be. Whilst the husband says 55 per cent now, I cannot bind him to that should the appeal succeed and the parties then have a rehearing. Third, I accept the husband’s submission that that may overly complicate things, especially the effect that might have on spousal maintenance. I am persuaded that the proceeds ought be preserved.
Spousal maintenance
As for spousal maintenance, the husband deposed:
I am ordered to pay the Respondent the sum of $600 per week pending sale of the house. [The primary judge] reasoned that I was able to pay this amount pending settlement despite the wife receiving a lump sum immediately of over $250,000. His Honour also made orders for the immediate sale of the house as he found I have no capacity to obtain finance. I am appealing this order and note that if this order is not stayed I will be required to pay this weekly for an indefinite period, which was not envisioned by the trial Judge and was to be a temporary measure for a few weeks.
My appeal will be rendered nugatory if I am required to pay this weekly amount. If I am successful at the appeal and the matter is remitted this could be for many years.
(Husband’s Affidavit filed 19 June 2023, paragraphs 11 and 12)
That is a rather curious position the husband takes. It is the husband who has appealed (as he is entitled) but the consequence of his appeal is the delay about which he also complains. Nevertheless, he is entitled to appeal.
More so, the husband does not depose that he is incapable of meeting the payments; his complaint is one of duration – he could be paying, as I have already referred to, “for many years”. Both Counsel accepted that this Registry is now dealing with appeals sooner than might have been the case in an earlier time.
In the meantime, the wife deposes that:
…while I have had little income other than government support and nominal child support from [Mr Piroozi.] As such I have relied upon capital funds received by me during the course of the proceedings to fund living expenses for the children and I.
(Wife’s Affidavit filed 29 June 2023, paragraph 20).
The husband’s trial Counsel accepted the wife had the relevant need for spouse maintenance. As I read his Honour’s decision, his Honour made findings about the husband’s capacity to meet that need on the husband’s own admissions in cross-examination about his capacity to earn as a subcontractor. As that may be, perhaps more critically, the husband does not put his capacity to pay in issue in the material before me. His complaint is about duration.
Some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
The grounds of appeal in the Notice of Appeal became Exhibit 1. I will include the grounds of appeal as annexure “A” to these Reasons.
A considerable thrust of the husband’s case was that his Honour was wrong at [89] of his Reasons:
89.Each counsel contended that I should adopt a consistent approach that is either they were both in or alternatively both out. I advised the parties that I intended to remove them both. There was no demurrer to that approach.…
Counsel for the husband took issue with what is recorded above about there being no demur. That was a submission from the bar table. I am not critical of the husband’s Counsel in that regard; he can only work with what he has. But the fact remains that the husband did not depose to such an important thing. Saying a judge is wrong [about a party’s position at trial] is something that ought have been in an affidavit. Without any criticism of Mr Gardiner, he is working with what he has, as am I. I do not accept the evidence from the bar table. I was also told the husband has part of the transcript, but again there is nothing before me that would demonstrate what I was told about his Honour being wrong.
In any event, it will be for other minds to determine whether the husband’s appeal is upheld or dismissed. In my preliminary assessment though, I am not persuaded that the husband’s grounds are not arguable. I do not suggest his prospects are high, good or even sound. Rather, I am not prepared to dismiss his prospects out of hand.
Any delay in bringing the application for a stay
The Reasons and orders were handed down on 11 May 2023. The husband filed his Notice of Appeal on 6 June 2023 and application to stay orders pending appeal was sealed on 20 June 2023. There is no delay there.
When can the appeal be heard?
Unhelpfully, the husband had no information, let alone evidence, when the appeal might be heard. The wife in her Outline said three to six months. Both Counsel though, sensibly, agreed it would likely be sooner than that.
It would have been helpful if the husband had provided even basic information about when the appeal might realistically be heard.
I therefore have no evidence of the likelihood of when the appeal will be listed other than the position of both Counsel that it is likely to be sooner rather than later. Nothing really turns upon that.
A stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties
The tensions that arise in any stay application are that, on one hand, a successful litigant should not be deprived of the “fruits of the litigation” but on the other, the maintenance of the status quo pending appeal, when it is appropriate to do so.
Whilst I accept the husband wants to keep the house, he has not persuaded me that he can do so and pay out the wife. I will not stay the orders that pertain to the sale. The sale proceeds, as I have indicated, are a separate consideration. In short, if the money is gone, it is gone. I will therefore preserve the proceeds.
The wife is entitled to the final fruits of litigation, but the orders I will make staying the distribution of sale proceeds to the parties means she will be held out from her entitlement (as will the husband) until the appeal is resolved. Yet, at least steps toward resolution can be progressed by the sale of the property.
The husband complains about spousal maintenance going on for an unknown period of time. If, however, the appeal is dismissed then the wife will receive her proceeds, as will the husband, and the spouse maintenance will end. If the appeal is upheld, then it will be a matter for the husband and his advisors whether it is appropriate to bring an Application in a Proceeding with respect to the spouse maintenance. I am not prepared to speculate.
I observe though that both parties have an incentive to prosecute or defend (as the case might be) the appeal expeditiously. The wife seeks capital and the husband wants the spouse maintenance to stop. I had considered but will not make orders that require the parties to prosecute or defend the appeal expeditiously. On reflection, they both have motivation to ensure that happens.
To my mind, preserving the proceeds and continuing the spouse maintenance is fair to all parties.
That is the way that I can preserve the assets, being the proceeds of sale on one hand, but continue the spouse maintenance payments for which the husband accepted the wife had a need at trial and did not depose to an incapacity in his affidavit before me.
For the Reasons I have given, I make the orders at the start of this Judgment.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 5 July 2023
ANNEXURE A – GROUNDS OF APPEAL
1. His Honour failed to give any or any adequate reasons as to the categorisation of the post separation payments received by the wife when determining post separation contributions favouring the wife should not be treated as addbacks.
2. The learned trial judge failed to take into account a material consideration comprising all or any of the post separation payments received by the wife.
3. The learned trial judge erred when determining the husband’s contributions to the wife’s two children from a prior marriage should not be taken into account.
4. The learned trial judge acted upon a wrong principle in His Honour’s determination of the wife’s future needs.
5. The learned trial judge took into account irrelevant matters in respect of the future needs of the adult child X.
6. The learned trial judge provided inadequate reasons as to the husband’s medical condition and failed to identify the adjustment in the husband’s favour when assessing the party’s future income earning capacity.
7. The learned trial judge’s decision was plainly unreasonable or unjust in his refusal to allow the husband an opportunity to retain the Suburb T apartment.
8. The learned trial judge failed to afford the husband procedural fairness when determining an immediate sale of the Suburb T property.
9. His Honour failed to consider, other than by a simple heading, whether the proposed Orders were just and equitable as between the parties.
10. The resultant 65% - 35% entitlement of the wife was so outside the bounds of a reasonable distribution of the party’s property as to amount to error.
11. That leave be granted to Amend the grounds of Appeal upon the issue of the Transcript.
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