Ritter & Ritter & Anor
[2019] FCCA 782
•30 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RITTER & RITTER & ANOR | [2019] FCCA 782 |
| Catchwords: FAMILY LAW – Summary dismissal application of s.79A application – relevant legal principles. |
| Legislation: Family Law Act 1975 (Cth), s.79A Federal Circuit Court of Australia Act 1999, s.17A |
| Cases cited: Bigg v Suzi [1998] FLC 92-799 Derry v Peek (1889) 14 AppCas 337 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Florie (1980) FLC 90-857 Fortron Automotive Treatments Pty Ltd v Jones (No.2) [2006] FCA 1401 Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361 In the Marriage of Arpas (1989) FLC 92-042 In the Marriage of Gebert (1990) 14 FamLR 62 In the Marriage of Holland (1982) FLC 91-243 In the Marriage of Kokl (1981) 7 Fam LR 59 In the Marriage of Parker (1983) FLC 91-364 In the Marriage of Patching (1995) FLC 92-585 In the Marriage of Prowse (1995) FLC 92-557 In the Marriage of Spratley (No 2) (1978) FLC 90-414 In the Marriage of Suiker (1993) 17 FamLR 236 Jefferson Ford Pty Ltd v Ford Motor Co of Australia (2008) 167 FCR 372 Molier & Van Wyk (1980) 7 Fam LR 18 Mullae (1983) FLC 91-303 Official Trustee in Bankruptcy v Donovan (1996) FLC 92-703 Parker & Parker (1983) FLC 91 – 364 Pelerman & Pelerman (2000) FLC 93-037 Re Gilbert and the Estate of Gilbert (deceased) (1990) FLC 92-125 Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188 Thorne v Kennedy [2017] HCA 49 Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157 White Industries Australia v Assistant Commissioner of Taxation [2007] FCA 511 |
| Applicant: | MR RITTER |
| First Respondent: | MS RITTER |
| Second Respondent: | MS X RITTER |
| File Number: | PAC 3900 of 2018 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 22 March 2019 |
| Date of Last Submission: | 22 March 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 30 April 2019 |
REPRESENTATION
| Appearing for the Applicant: | Mr Lynch |
| Solicitors for the Applicant: | Beswick Lynch Lawyers |
| Appearing for the First Respondent: | Mr Hawach |
| Solicitors for the First Respondent: | McAuley Hawach Lawyers |
Counsel for the Second Respondent: | Mr Todd |
| Solicitors for the Second Respondent: | Everett Evans Solicitors |
ORDERS
The Initiating Application filed 20 August 2018 is summarily dismissed.
Remove all outstanding issues from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Ritter & Ritter & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3900 of 2018
| MR RITTER |
Applicant
And
| MS RITTER |
First Respondent
| MS X RITTER |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 16 July 2012, the Federal Circuit Court of Australia made final orders between Mr Ritter (“husband”) and Ms Ritter (“wife”) pursuant to s79 of the Family Law Act1975 (Cth) (“Final Orders”).
On 20 August 2018, the husband filed an Initiating Application, seeking inter alia¸ an order setting aside the Final Orders pursuant to s79A of the Act. Consequential upon that relief being granted, the husband also sought orders pursuant to s79 of the Act that the wife and the parties’ daughter Ms X Ritter transfer to the husband, the daughter’s interest in two properties jointly held by the wife and daughter namely, Property A(“Property A property”) and Property B (“Property B Property”).
On 21 November 2018, the Court granted leave to the wife and daughter to make an oral application for summary dismissal of the husband’s Initiating Application. These are the Reasons for Judgment in relation to that application for summary dismissal of the Initiating Application filed 20 August 2018.
The Law
Summary Dismissal
The Federal Circuit Court of Australia Act 1999 (Cth) empowers the Federal Circuit Court of Australia by virtue of s17A to give judgment for one party against another in relation to the whole or any part of a proceeding if the Court is satisfied that a party has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.[1] The proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success.[2]
[1] s17A(2)
[2] s17A(3)
Furthermore, rule 13.10 Federal Circuit Court Rules 2001 (Cth) provides that the Court may order that a proceeding be dismissed if it is satisfied that the prosecuting party has no reasonable prospect of successfully doing so or that the proceedings are an abuse of process.
The Explanatory Memorandum[3] for s17A provides as follows:
[3] Explanatory Memorandum at [32] and [35] reproduced in Federal Circuit Court Practice looseleaf service, CCH, at [122-080]
… [the section] moves away from the approach taken by the Courts in construing the conditions for summary judgement by reference to the ‘no reasonable cause of action’ text in Dey v Victorian Railways Commissioner and General Steel Industries Inc v Commissioner of Railways (NSW). These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or clearly untenable. (citations omitted)
…
An identical amendment was inserted into the Federal Court Act… and the Judiciary Act … to provide a uniform approach to summary judgement in the High Court, Federal Court and the FMC.
The nature of the power conferred by s17A of the Federal Circuit Court Act has been comprehensively considered in Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd[4], a decision cited with approval by the Federal Court in White Industries Australia v Assistant Commissioner of Taxation[5].
[4] [2007] FMCA 157
[5] [2007] FCA 511 at [58] per Lindgren J
The High Court in Spencer v The Commonwealth[6] has considered the nature of the power conferred by s31A Federal Court Act, which is in identical terms to that contained in s17A Federal Circuit Court Act. The Court in this instance has firmly kept in mind what the High Court has held therein.
[6] [2010] HCA 28 at [24] – [25] in particular
More recently, in Riva NSW Pty Limited v Official Trustee in Bankruptcy[7] Justice Perry of the Federal Court held that the principles dealing with s31A are well established and provided a useful summary to which this Court has had regard.[8]
[7] [2017] FCA 188 at [45] – [49]
[8] See also Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361 where Judge A. Kelly conducted a helpful and detailed review of relevant authorities in relation to the proper approach to be taken when considering an application for summary dismissal in the Federal Circuit Court of Australia
Importantly:
a)the moving party bears the onus of persuading the Court that the application has no reasonable prospects of succeeding;[9]
b)the exercise of powers to summarily terminate proceedings must always be attended with caution;[10]
c)the power to summarily dismiss should never be exercised unless it is clear that there is no real question to be tried[11];
d)the exercise of power to summarily dismiss requires a practical judgment by the Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue[12];
e)However, the inquiry required is whether there is a “reasonable” prospect of prosecuting the proceeding, not an enquiry directed to whether a certain and concluded determination could be made that the proceeding would necessarily fail.[13]
[9] Riva at [45]
[10] Spencer at [24]
[11] Ibid quoting Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
[12] Spencer at [25]
[13] Riva at [46]
These principles are of general application to matters which fall within the jurisdiction of the Court, and there is nothing in the Federal Circuit Court Act, the Federal Circuit Court Rules or the Family Law Act to suggest to the contrary. That is, the principles are the same whether the Court is exercising jurisdiction under the Family Law Act or under any other Act which gives the Court jurisdiction.[14]
[14] Jacobs v Vale [2008] FMCAFam 641 at [14] and [20] per Jarrett FM (as he then was)
A careful examination of the older authorities such as Lindon v the Commonwealth, [15] Bigg v Suzi[16], Pelerman & Pelerman[17] and the relevant statutory provisions with which those authorities were concerned, will reveal why the power possessed by this Court is fundamentally different to the power identified in those learned decisions.[18] Therefore, those authorities are of no direct application to the present application.
[15] (1996) 190 CLR 311
[16] [1998] FLC 92-799
[17] (2000) FLC 93-037
[18] See for example the discussion in Jacobs v Vale at [8] – [13];
What is required is a practical judgment of the case at hand, or put another way, a prediction of the outcome of a trial on its merits, but not an actual adjudication of those merits.[19] The Court must consider whether the evidence at its highest and as a matter of law, establishes that the husband has no reasonable prospect of success.
If the pleadings, affidavits, and other materials considered in connection with the summary judgment motion, reveal a factual dispute and that factual dispute must be resolved to determine whether or not the claim succeeds, it cannot be said that the claim has "no reasonable prospect of success".[20]
[19] See e.g. Jefferson Ford Pty Ltd v Ford Motor Co of Australia (2008) 167 FCR 372 at [45]; See also Riva at [49] quoting Cassimatis
[20] see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20]
It is important to keep in mind that this is an application for summary dismissal of an application for orders pursuant to s79A Family Law Act seeking to set aside the final property adjustment orders made by the Court on 16 July 2012.
S79A – Setting Aside or Varying Orders Altering Property Interests
Once an order (or set of orders) is made for property adjustment under s79 of the Act, the Court has no power to make a further order under s79.[21] It is a once and for all proposition. Therefore, unless the provisions of s79A apply or unless some other rule of law applies, the Court does not have the power to deal with a further application by the husband for property adjustment orders.
[21] See e.g. Mullane (1983) FLC 91-303; Florie (1980) FLC 90-857
The Court may, in its discretion, vary or set aside the s79 order made in 2012, if it is satisfied that there has, for the purposes of the present application, been a miscarriage of justice by fraud, duress or any other circumstance.
Section 79A is a remedial section.[22]
[22] Re Gilbert and the Estate of Gilbert (deceased) (1990) FLC 92-125
An application under s79A(1)(a) involves four steps[23]:
a)Whether there was fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance;
b)Whether that fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance amounted to a miscarriage of justice;
c)Whether the court in its discretion should vary or set aside the order; and
d)Whether it should make another order.
[23] In the Marriage of Patching (1995) FLC 92-585
It is of course, a matter for the Court in the exercise of its discretion, even if it finds one or other of the grounds in s79A(1) established, whether it will proceed to set aside the order. A section 79A application is not an appeal on the merits of the original decision.[24] Even if a miscarriage of justice has been established, it does not follow that an application to set aside or vary the original order must succeed.[25] It is the applicant, in this case the husband, who bears the onus of convincing the Court that it is appropriate to exercise the jurisdiction to vary or set aside the original order. [26]
[24] In the Marriage of Arpas (1989) FLC 92-042
[25] In the Marriage of Prowse (1995) FLC 92-557
[26] Official Trustee in Bankruptcy v Donovan (1996) FLC 92-703
The choice between setting aside or varying the original order depends on the degree of intervention to be made.[27] Furthermore, in considering what new order is appropriate, the Court first of all, must consider the existing asset position of the parties and this should be done at the time of hearing.[28]
[27] Parker and Parker (1983) FLC ¶91-364 at pp. 78,444-78,446; (1983) 9 Fam. L.R. 323 at pp. 328-329
[28] In the marriage of Parker (1983) FLC 91-364
A miscarriage of justice within the meaning of s 79A can arise only from circumstances in existence at the date of the order.[29] It is not sufficient for example to establish that fraud has occurred, the husband must establish that a miscarriage of justice occurred by reason of that fraud. The expression itself is very wide, and it extends to any situation which sufficiently indicates that the order was obtained contrary to the justice of the case.[30]
[29] Molier and Van Wyk (1980) 7 Fam LR 18;
[30] In the Marriage of Holland (1982) FLC 91-243; In the Marriage of Spratley (No.2) (1978) FLC 90-414
The classical definition of actual fraud is long standing:
Fraud is proved when it is shewn that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false... if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made.[31]
[31] Derry v Peek (1889) 14 AppCas 337 at 374
Fraud, for the purposes of s79A, has been said to mean “conscious wrongdoing or some form of deceit.”[32]
[32] In the Marriage of Kokl (1981)
In Thorne & Kennedy[33] the High Court, in a different context, held as follows:
[26]. The vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction. It does not require that the person's will be overborne. Nor does it require that the pressure be such as to deprive the person of any free agency or ability to decide. The person subjected to duress is usually able to assess alternatives and to make a choice. The person submits to the demand knowing "only too well" what he or she is doing. As Holmes J said in Union Pacific Railroad Co v Public Service Commission of Missouri:
"It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called."
(footnotes omitted)
[33] Thorne v Kennedy [2017] HCA 49 at [26]
Lastly, the words “any other circumstance” found is s79A(1)(a) are not to be read ejusdem generis with the other factors in s79A(1)(a) but are intended to cover other situations where for one reason or another a “miscarriage of justice” has occurred[34].
Relevant Facts[35]
[34] In the Marriage of Gebert (1990) 14 FamLR 62; In the Marriage of Holland [1982] FLC 91-243
[35] At the husband’s highest
In or about … 2008 the husband and wife, as joint tenants, purchased a property known as Property C (“Property C Property”). The purchase price was $450,000. It appears from the Historical Title Search that at the time of purchase the property was not encumbered by a mortgage.
Proceedings for property adjustment were commenced by the wife in December 2011. The husband filed a Response in March 2012.
On … 2012, the husband commenced serving a term of imprisonment until he was released on parole on … 2013.
The husband had previously been imprisoned in 2007. In connection with that imprisonment, the husband had been ordered to pay $100,000 to the NSW Crime Commission. That debt had been paid in full by … 2007.
At the commencement of his prison term in 2012, the husband was stabbed in the stomach eight times and received medical attention at the clinic in prison. He told his daughter about the incident. The husband says that the incident made him feel scared and anxious.
In or around … 2012, the daughter visited the husband at … Correctional Centre. She said to the husband that she had been contacted by NSW Crime Commission, that they have found out that the husband owns a house at Property C and that they are now asking for more money.
Although the husband says he was confused about this as he had understood his debts to the Crime Commission had been fully paid, he felt worried that the Crime Commission would be able to take the house away from him. The daughter then produced a document and said:
You should sign this document to sell your share of the house to me for $1. I will then sell the house and buy you another house with your share of the proceeds.
The husband said that at the time these matters were raised the visit was coming to an end, and he was feeling anxious and confused. He did not have sufficient time to consider what to do. He signed the document which the daughter gave to him but did not read it. The husband says that the daughter insisted he sign the document before she left the prison and that he felt under pressure to sign it. He says he trusted the daughter and accepted that he was signing a document to transfer to the daughter his interest in the Property C property for the purpose stated by her.
The husband deposes that he ‘recently learned’ that the Final Orders were made. He says he does not recognise the consent orders document but accepts that the document could bear his signature, and that it may have been the document which the daughter presented to him to sign in prison. The husband says he has no specific recollection of signing the consent orders and that he did not at any time consent to the orders being made in the form contained in the Final Orders. The husband says that if he did sign the consent orders, he did not know or understand what he was signing other than to the extent that he has explained.
The husband did not receive any consideration for the transfer of his interest in the Property C property to the daughter, which transfer occurred on 20 September 2012. The husband was at the time still serving his gaol sentence.
Upon his release from gaol, the husband moved into Property B (“Property B Property”). He asserts that the daughter introduced this property to him as the property which she purchased with his share of the sale proceeds of the Property C Property. He says his understanding was that the Property B Property was owned by him and registered in his name.[36]
[36] The basis of that understanding is not set out in the husband’s evidence
The husband further states that the daughter told him she had to take out a $50,000 mortgage and that he had to pay her $200 per week for the mortgage. He was then presented with another piece of paper which he signed, but later learnt was in fact a tenancy agreement.
Since December 2013, the husband asserts he has paid $47,000 to the daughter on his understanding that this was going towards the Property B Property mortgage. The husband subsequently learnt that the property was not registered in his name.
In April 2018, the husband received a Termination Notice of Residential Tenancy requiring him to vacate the Property B Property by 11 July 2018. The matter proceeded to a hearing at NCAT with an Order for Possession ultimately being made. The husband has appealed that order.
The husband has, through his solicitors conducting relevant searches, learnt that:
a)On 24 July 2013, the Property B Property was transferred to the wife and the daughter for $265,000; and
b)On 25 September 2013, a property at Property A was transferred to the wife and the daughter for $330,250.
The husband has calculated that together the cost of those two properties was $595,250, and deducing the proceeds of sale of the Property C Property there was a shortfall of some $55, 250.
A very short affidavit was filed by the wife in these proceedings. Without the formal parts, the affidavit is less than one page in length. It does not deal with any relevant matter, except that it asserts the parties date of separation as being 23 June 2009, and that Final Orders were made on 16 July 2012. The wife does not go into any detail as to how the agreement as to the property adjustment orders was reached between the parties, who drafted the document and in what circumstances the husband executed the consent orders.
A slightly longer affidavit was filed by the daughter in these proceedings. That affidavit mainly deals with the eviction of the husband from the Property B Property. It is otherwise silent in respect of the husband’s assertions as to how the husband came to agree to transfer his interest in the Property C Property to the daughter. The daughter does not go into any detail as to how the acknowledgment confirming the husband’s agreement to transfer his share in the Property C Property came to be signed. She does not say whether she was present when that document was signed.
The daughter denies all of the assertions made by the husband’s solicitor on behalf of the husband in the solicitor’s letter dated 17 August 2018, same being Annexure ‘W’ to the husband’s affidavit. That letter is in similar terms to the husband’s sworn evidence as to the circumstances of the daughter’s visit to … Correctional Centre between March and July 2012.
As with all family law proceedings commenced in this Court, a party is required to file together with their Initiating Application an Affidavit setting out the relevant facts upon which that party relies in support of the orders sought. Likewise, upon the filing of a Response, a respondent is required to file an Affidavit. While the application for summary dismissal is brought fairly early in the proceedings, it is pressed after the filing of affidavits and after the filing of the husband’s points of claim.
Does the Husband have Reasonable Prospects of Success?
In the Points of Claim filed on 9 November 2018, the husband alleges that there has been a miscarriage of justice by reason of fraud, duress or any other circumstances relying specifically on s79A(1)(a) of the Act.
The husband claims that the daughter, who was the beneficiary of the Final Orders, procured the applicant’s signature and apparent consent to the order by representing to the applicant that:
a)The NSW Crime Commission was pursuing the applicant for money;
b)The husband could protect his share by transferring it to the daughter;
c)The daughter would hold and then sell the property for the applicant; and
d)The daughter would use the net proceeds of sale to acquire another property for the husband.
The husband alleges that these representations were false and misleading, and that they were made knowingly and without belief in their truth or recklessly or carelessly as to their truth and in doing so the daughter committed a fraud or deceit against the husband. The husband further pleads that the daughter has unconscionably taken advantage in acquiring the property.
In the alternative, the husband pleads that in making the representations in the relevant circumstances, the husband was placed under duress in that pressure applied by the daughter was illegitimate and unconscionable.
Further, in the alternative the husband claims that the orders produce a result that is so far outside the ambit of what is just and equitable that there has been a miscarriage of justice and that the orders were obtained contrary to the justice of the case. It is said in part that this is so because:
a)The daughter gave no consideration and no basis in law to lay claim to any right, title and interest in the husband’s property;
b)The orders were made by consent and without a hearing and in the absence of the husband;
c)None of the affidavit evidence disclosed any circumstance in which it could be said to have been just and equitable for the daughter to receive all of the husband’s right, title and interest in the property; and
d)Neither the husband nor the wife sought any orders to adjust the parties’ property in favour of the daughter.
After the Final Orders were made, the property was sold by the daughter and wife, and two new properties purchased, the Property A Property and the Property B Property.
It is argued on behalf of the daughter that there is a presumption of advancement in respect of the transfer of the husband’s interest in the Property C Property to her. The presumption is of course, rebuttable by evidence. The husband asserts that he did not intentionally consent to the daughter receiving all of his right title and interest in the property, rather, just the legal title to be held on his behalf as his agent or nominee in a bare trust.
It is argued on behalf of the daughter, that the Court does not have any jurisdiction to deal with the husband’s claim for property adjustment orders (s79A permitting) as there is no “matrimonial cause”.
It is argued on behalf of the wife, that the husband does not have a reasonable cause of action or legal merit. The arguments of the daughter are supported by the wife.
In Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352;(2006) 236 ALR 770 at [45] Rares J held:
“…the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s 31A envisages.”
In the Court’s view, it is not necessary to resolve any factual contest on this application for summary dismissal. Taking the evidence of the husband at its highest, and applying what Rares J held as referred to above, it cannot be said that there is any room for ambiguity.
Conclusion
An allegation of fraud is a very serious matter as is an allegation of duress. It is conduct which is has to be proven in accordance with s140(2) Evidence Act1995 (Cth).
As held by the Full Court:
the very expression ‘miscarriage of justice’ used in s79A(10)(a) does not fit happily with the concept of party of full age and with full knowledge of the circumstances entering into an agreement of this nature in circumstances where he had deliberately decided not to seek legal advice, although urged to do so.
However, given that a party may be able to establish a miscarriage of justice in respect of a consent order, if a party’s consent was for any reason not a true consent[37], the husband at least has an arguable case in this regard, albeit a very weak one. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, a miscarriage of justice by reason of “any other circumstance”.[38]
[37] In the Marriage of Holland [1982] FLC 91-243
[38] In the Marriage of Suiker (1993) 17 FamLR 236 at 242
The daughter was not a party to the proceedings between the husband and wife, which were finalised by the consent orders made on 16 July 2012.
On 31 May 2012, the wife’s solicitors wrote to the husband confirming the agreement reached between the parties as to the transfer of the husband’s interest in the Property C Property to the daughter.
On 4 June 2012, the husband signed an acknowledgment confirming his agreement for his share of the Property C Property to be transferred to the daughter. The document is handwritten and said to be in the hand of the husband. It reads as follows:
I Mr Ritter do hearby agree for my half of the property at Property C to be signed over to my daughter Ms X Ritter and I do not wish to contest the matter any further with Ms Ritter in the Federal Magistrates Court at Parramatta. My self (sic) and Ms Ritter have come to an aggrement (sic) out side (sic) of Court and that is how I wish it to remain. …
The husband’s evidence is silent on the issue of the handwritten document, which is annexed to the daughter’s affidavit filed in these proceedings on 25 September 2018[39].
[39] before the first return date of the husband’s current application
On 10 August 2012, the wife’s solicitors send to the husband’s solicitors a Transfer for the husband’s execution, which is duly executed on or about 31 August 2012, in the presence of a witness, and was later posted to the wife’s solicitors by the husband’s solicitors.[40] The Transfer was ultimately registered and the daughter and wife became the legal owners.
[40] It appears that someone at the office of the husband’s solicitors may have witnessed the daughter’s signature on the transfer.
In June 2013, the wife and daughter sold the Property C Property and thereafter purchased the Property B Property and the Property A property. It appears that the funds used to purchase these two properties may be traced back to the proceeds of sale of the Property C Property, although there is only silence by the wife and daughter as to where the funds to purchase the two new properties came from.
What is striking in the husband’s case is that he says he consented to the transaction of transferring the property to the daughter so that the NSW Crime Commission would not be able to confiscate that asset.
In his mind, the husband was entering into the transaction with a view of escaping the legal consequences of his illegal actions and of defrauding the State of New South Wales. He had it in his mind that he would later reap the benefit of that transaction by having another property transferred to him.
Why this Court, or indeed any other court, would exercise its discretion in favour of a party who was clearly trying to escape the law (albeit erroneously), was not explained in the husband’s submissions.
The husband is in fact saying that there was a miscarriage of justice because he tried to pervert the course of justice when he had no reason to do so.
The difficulty for the husband is that the Court, in considering whether he has any reasonable prospect of successfully prosecuting the proceeding, finds that his evidence is such that even if he was able to convince the Court there was a miscarriage of justice of sufficient gravity to warrant a s79A order, his evidence does not come even remotely close to a finding that he has reasonable prospects of the Court exercising its discretion in his favour or what that discretion might ultimately look like.
There is no evidence in the husband’s case as to how the Property C Property was acquired except as to the date of its acquisition. The purchase price is only available as a result of the Transfer being annexed to the husband’s affidavit.
There is no evidence as to contributions nor any evidence going to the substantive issue of justice and equity in respect of the primary relief sought. The husband does not seek to disturb the interest of the wife. He only seeks to disturb the interests of the daughter.
The husband’s evidence, at its highest, is woefully inadequate as to the relevant matters the Court would need to consider in determining his application for s79A orders, in particular but not limited to: whether the Court in its discretion should vary or set aside the order; and whether it should make another order.
As such, the Court finds that he has no reasonable prospect of success, and his Initiating Application is therefore to be dismissed.
The argument raised by the wife and daughter that the Court has no power and/or jurisdiction to make the orders the husband seeks because there is no matrimonial cause, is not a matter which needs to be determined in the present circumstances given the findings above.[41]
[41] It should be added that this Court frequently makes orders affecting the interests of third parties in similar circumstances
In all of the circumstances and for all of the reasons set out above orders are to be made as set out in the forefront of these Reasons.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 30 April 2019
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