Safi & Rafiq (No 4)
[2024] FedCFamC1F 49
•8 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Safi & Rafiq (No 4) [2024] FedCFamC1F 49
File number: SYC 436 of 2022 Judgment of: CAMPTON J Date of judgment: 8 February 2024 Catchwords: FAMILY LAW – ARBITRATION – APPLICATION FOR REVIEW – Where the husband seeks to review a registered arbitral award pursuant to s 13J and s 13K of the Family Law Act 1975 (Cth) (“the Act”) – Where the husband was afforded three opportunities to amend his relief, including identifying a question of law for the purposes of the s 13J review – Where the husband was unable to specify the terms of the variation or reversal sought if the review was determined in his favour – Where consideration is given to s 45A of the Act – Amended Application in an Arbitration dismissed. Legislation: Evidence Act 1995 (Cth) s 79
Family Law Act 1975 (Cth) ss 13A, 13E, 13H, 13J, 13K, 45A and 79
Federal Circuit and Family Court of Australia Act 2021 (Cth), s 46
Cases cited: Cawthorn & Cawthorn (1998) FLC 92-805; 23 Fam LR 86
Craft & Craft [2020] FamCA 1027
McLaughlin & McLaughlin [2023] FedCFamC2F 1160
Newett & Newett (No 8) [2023] FedCFamC1A 7
Rohde and Rohde (1984) FLC 91-592; [1984] FamCA 41
Safi & Rafiq (No 2) [2023] FedCFamC1F 917
Safi & Rafiq (No 3) [2024] FedCFamC1F 45
Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28
Division: Division 1 First Instance Number of paragraphs: 50 Date of hearing: 6 February 2024 Place: Sydney Counsel for the Applicant: Ms Hawkins Solicitor for the Applicant: Double Eight Legal Counsel for the Respondent: Ms Ingenito Solicitor for the Respondent: Benchmark Conveyancing Lawyers ORDERS
SYC 436 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SAFI
Applicant
AND: MR RAFIQ
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
8 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Amended Application in an Arbitration filed 8 November 2023 be dismissed.
2.Order 5 made on 24 October 2023 is discharged.
3.On or before 15 February 2024 the wife file and serve any minute of order as to costs, affidavit in support thereof and written submissions of no more than three pages.
4.In the event the wife complies with Order 3, the husband on or before 22 February 2024 file and serve any minute of order as to costs, affidavit in support thereof and written submissions of not more than three pages.
5.The costs judgment is otherwise reserved to chambers.
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 the pseudonym Safi & Rafiq has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
Mr Rafiq (“the husband”), by way of an Amended Application in an Arbitration filed 8 November 2023, seeks a review of an arbitral award (“the Award”) pursuant to ss 13J and 13K of the Family Law Act 1975 (Cth) (“the Act”). Mr C (“the arbitrator”) issued the Award adjusting property on 21 June 2023. The Award was registered in the Federal Circuit and Family Court of Australia (Division 1) on 22 August 2023.
On 22 November 2023, Ms Safi (“the wife”) filed a Response to an Application in an Arbitration opposing the relief sought on review, seeking that the Amended Application in an Arbitration be dismissed and costs.
For the reasons that follow, the Amended Application in an Arbitration of the husband is dismissed.
BACKGROUND
The husband was born in 1953 in City O and is 70 years old. The wife was born in 1967 in Country Q and is 56 years old. The husband and the wife married in 2004 and separated on 2 December 2020. They are not yet divorced. Their child, X who was born in 2006 and is 17 years old, is still at school and lives with the wife in Australia. The husband lives in Country B.
On 26 January 2022, the wife filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking orders for property adjustment pursuant to s 79 of the Act. The husband filed a Response to an Initiating Application on 8 March 2022 seeking different orders for property adjustment. On 22 November 2022 a consent order was made pursuant to s 13E of the Act referring the totality of the matter to arbitration and transferring it to the Federal Circuit and Family Court of Australia (Division 1).
The Award determined a finding of equality as to contributions and adjusted the contribution finding in favour of the wife by 7.5 per cent, concluding that the property of the parties be adjusted to be 57.5 per cent to the wife and 42.5 per cent to the husband. The Award broadly provides for the husband to transfer to the wife his interest in a property at Suburb E, for the husband to pay to the wife the sum of $128,499, for the wife to pay the outstanding balance on their joint loan, for both parties to do all things necessary to transfer the wife’s interest to the husband in four identified real properties in Country B and for the husband to retain a real property at City P, in the United Kingdom.
THE REVIEW
Section 13J of the Act provides:
(1)A party to a registered award made in section 13E arbitration or relevant property or financial arbitration may apply for review of the award, on questions of law, by:
(a) the Federal Circuit and Family Court of Australia (Division 2); or
(b) a single judge of the Family Court of a State.
Note: There may be Rules of Court providing for when, and how, an application for review of the award can be made (see paragraph 123(1)(sf)).
(2)On a review of an award under this section, the judge or Federal Circuit and Family Court of Australia (Division 2) may:
(a)determine all questions of law arising in relation to the arbitration; and
(b)make such decrees as the judge or Federal Circuit and Family Court of Australia (Division 2) thinks appropriate, including a decree affirming, reversing or varying the award.
Section 13K of the Act provides:
(1) If an award made in section 13E arbitration or relevant property or financial arbitration, or an agreement made as a result of such arbitration, is registered in:
(a)the Federal Circuit and Family Court of Australia (Division 1); or
(b) the Federal Circuit and Family Court of Australia (Division 2); or
(c) a Family Court of a State;
the court in which the award is registered may make a decree affirming, reversing or varying the award or agreement.
(2)The court may only make a decree under subsection (1) if the court is satisfied that:
(a)the award or agreement was obtained by fraud (including non‑disclosure of a material matter); or
(b) the award or agreement is void, voidable or unenforceable; or
(c) in the circumstances that have arisen since the award or agreement was made it is impracticable for some or all of it to be carried out; or
(d) the arbitration was affected by bias, or there was a lack of procedural fairness in the way in which the arbitration process, as agreed between the parties and the arbitrator, was conducted.
NATURE OF THE REVIEW PROCEEDINGS
An arbitral award registered pursuant to s 13H of the Act is binding and enforceable by either party, subject to potential review pursuant to ss 13J or 13K of the Act.
The s13J Review
A review pursuant to s 13J of the Act of a registered arbitral award is not to be conducted as a merits review (McLaughlin & McLaughlin [2023] FedCFamC2F 1160 (“McLaughlin”) at [54]).
In McLaughlin, Deputy Chief Justice McClelland appropriately summarised the principles of the review process pursuant to s 13J of the Act:
(1)A right of review lies on a “question of law”;
(2)The subject matter of any review is confined to questions of law; and
(3)The scheme of the Act is to hold parties to their agreement to accept factual findings made by the arbitrator.
(Footnotes omitted)
The s13K Review
In oral submissions, the husband identified that he relied upon s 13K(2)(c) of the Act for the purposes of review. That section imports a temporal requirement such that the relevant impractical circumstances must have arisen since the Award was made. “Impracticable” does not mean “impossible”, it involves “concepts of something that is not able to be done” (Rohde and Rohde (1984) FLC 91-592; Cawthorn & Cawthorn (1998) FLC 92-805; Craft & Craft [2020] FamCA 1027 at [11]). The section provides by way of “may” a discretion as to affirmation, variation or reversal of the award should the applicant establish the s 13K(2)(c) ground.
The relief sought on Review
If either review is decided in favour of the husband, he is required to identify the relief he seeks by way of decree reversing or varying the Award.
THE REVIEW AS PROSECUTED BY THE HUSBAND
Section 13J of the Act requires the husband in this matter, as a jurisdictional precondition for relief pursuant the section, to identify the question or questions of law on review. The proper identification of the question or questions of law goes to the exercise of the jurisdiction for the purposes of the review. The husband has been placed twice on notice as to this requirement, being:
(a)Firstly, in the determination of his application of for a stay of enforcement of the award on 24 October 2024 (see Safi & Rafiq (No 2) [2023] FedCFamC1F 917). The reasons for judgment record:
11The husband concedes that it is necessary for him to identify with precision in his application in an arbitration the question or questions of law which, if decided in his favour on review, would result in an order setting aside the award and granting other relief, whether his relief be pursuant to s 13J or s 13K of the Act.
12 He concedes that his application for review as presently filed does not adequately formulate the questions of law he seeks to agitate, and that it is necessary for him to recast those questions.
13 It is trite to observe that the jurisdiction conferred by s 13J of the Act does not permit the Court to substitute its judgment or discretion for that of the arbitrator unless an error in relation to a question of law is first established.
14 It is important also to focus upon the difference between a question of law and a question of fact, noting that a contended error as to a finding of fact may not constitute a question of law, even if the reasoning whereby the arbitrator reached his conclusion of fact was demonstrably unsound (see Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239 at [27]).
15 For the purposes of the hearing of the application for review as prosecuted by the husband, in circumstances where the wife accepts that the application could not be heard today, save as to costs there is little prejudice to her in a short adjournment permitting the husband to recast the question of law he poses on review.
16 Accordingly, orders will be made permitting the husband to amend for what will now be the third time his application in an arbitration seeking review.
(b)Secondly, on 11 December 2023, after the husband filed an Amended Application in an Arbitration 8 November 2023, the following notations and orders were made:
THE COURT NOTES THAT
A.The husband, by way of his Amended Application in an Arbitration n filed 8 November 2023, prosecutes a review of the arbitral award of [Mr C], registered in this Court on 22 August 2023, pursuant to ss 13J and 13K of the Family Law Act 1975 (Cth) (“The Act”).
B.Pursuant to Order 1 made 24 October 2023, the husband was directed in his Amended Application in an Arbitration to identify with precision, for the purposes of his relief pursuant to section 13J of the Act, the question or questions of law, which, if decided in his favour on review, would result in an order setting aside or varying the registered arbitral award. The husband has been placed on notice by the Court today that the content on his Amended Application in an Arbitration filed 8 November 2023 do not pose, as required by s 13J of the Act, any question or questions of law. On one view his relief pursuant to s13J of the Act is not competent.
C.The husband’s relief pursuant to s13K of the Act contends impracticability for some or for all of the award to be implemented. The focus of this complaint is by way of determination 6 in the registered award, requiring the wife to transfer to the husband any interest she has in specified real proprieties in [Country B]. It appears uncontroversial that the wife is not the legal or registered owner of any of the identified four real properties in [Country B]. The husband asserted before the arbitrator that a property at [F Street, City G], [Country B], was transferred to the child of the parties, [X]. It is difficult to distil the complaint of the husband sought to be the subject of the review pursuant to s13K of the Act. Determination 15 made in the arbitral award provides for enforcement of the determination in the award by way of s 106A of the Act.
D.The wife, by way of her Response to an Application in an Arbitration filed 22 November 2023, seeks that the relief of the husband be dismissed, and costs.
E.Pursuant to Order 5 made 24 October 2023, paragraphs 4 and 10 of the determinations in the Arbitral award as registered have been stayed pending determination of the husband’s applications for review.
THE COURT ORDERS THAT
1.The husband’s Amended Application in an Arbitration filed 8 November 2023 be listed before Justice Campton for hearing at 10.00 am on 6 February 2024.
2.For the purposes of that hearing
(a) The husband relies on his affidavit filed 8 November 2023;
(b) The wife relies on her affidavit filed 22 November 2023; and
(c)The parties are not permitted to file any further affidavits and may not rely on past affidavits without leave of the Court.
(d)In circumstances where the wife advises she does not require the husband for cross examination, the husband is granted leave to participate in the hearing by Microsoft Teams from [Country B].
(e)The cross examination of the wife at the hearing will be restricted to the questions of law posed by the husband pursuant to s13J of the Act and, the ground for review prosecuted by the husband pursuant to s13K of the Act.
3.Each party is directed to file and serve by no later than 31 January 2024, an outline of written submissions in support of their relief as sought.
4.Each party is required to file and serve a costs notice in compliance with the rules, on or before 2 February 2024. Such costs notice is to be applicable in the first instance up to the time of determination of the Arbitration, by way of the published award, and thereafter as to the proceeding enforcing the award and review of the award.
(As per the original)
At the hearing of the Amended Application in an Arbitration filed 8 November 2023 listed on 6 February 2024, the husband’s oral application to rely on a Further Amended Application in an Arbitration filed 1 February 2024 was refused (see Safi & Rafiq (No 3) [2024] FedCFamC1F 45).
ORDERS SOUGHT BY EACH PARTY ON REVIEW
The Amended Application in an Arbitration of the husband filed 8 November 2023 recorded relief sought by the husband, should his reviews be decided in his favour, being:
2.That all Orders made in the Arbitration Award made on 21 June 2023 and registered pursuant to an Order of this Court made on 22 August 2023 be set aside.
The husband advised during the hearing on 6 February 2024 that this relief was no longer sought. The Outline of Case Document of the husband filed 1 February 2024, under the heading “Minute of orders sought”, said:
1. Order 6.1 must be reversed as the [wife] has no interest in that property at all. The son of the parties has ownership of [F Street, City G] property. It is in his name as a minor. This evidence was disregarded, and this property was made as an addition to the [husband’s] pool. It is an error of law in accordance with Baden-Clay’s case. Further, the apportionment of the [F Street] property to the [husband] is an error in the face of the positive evidence to the contrary before the court that was not contested. (Baden-Clay’s case) The learned Arbitrator took into account irrelevant evidence which is a further error of law, namely whether the [husband’s] life could be properly measured to conclude his proprietary interest. Bolton v Perry [2001] WASCA 144 at [26] per Wheeler J. The [husband’s] equitable interest to reside at the property until death should have no further meaning imputed into it. The issue was whether the [husband] owned it, which he does not, and whether the [wife] had an interest to be transferred and she did not.
2. Order 6.2 regarding the [Town J] property requires a further Order for the [wife] to be made to comply with the legal requirement in [Country B] that she must go to [Country B] to effect the transfer as the order is unenforceable. Such Order was envisaged by Harman J in Pavic’s case.
3. The [R Company] share of the [wife] cannot be done as the [wife] must go to [Country B], as she must for the [H Property], Town J transfer. This Order must be accompanied by a further Order to enforce the Respondent’s compliance with a Court Order. Further, the valuation of minus$237,000 should have been accepted, where there was a clear error of law to base the decision on speculation.(Baden-Clay at [55]) That speculation of a person in 2021 for the tourism outlook of [Country B] today has been shown to be useless in light of the […] crisis of [City O] spilling over into [Country B]. Speculation should not have been the basis for the decision to value the property at zero. This was a valuation from the [wife] who lives in Australia and does not deal with the company which is situated in [Country B]. This Order should be varied to reflect the negative $237,000 as the [husband’s] evidence showed, and made to reflect this in the husband’s pool of assets as a negative figure.
4. The evidence to exclude the debt obligation to the [husband’s] brother has substantially undermined the [husband’s] position where he has sworn an affidavit and given evidence about such a debt and is therefore obliged to carry out that repayment. The error of not finding on the positive uncontroverted evidence is an error of law. (Baden-Clays case) This Order should be reversed, and that amount deemed a debt for the husband’s pool of assets. The discretion to excludes this was an error of law in relation to the principles of positive evidence and the need for no speculation in light of that evidence; it was also an error of law of the House v R kind as it has made a manifestly unjust position for the [husband] who is bound to pay his brother whether the Court deems it or not. He was never accused of perjury or misleading the Court. The debt stands and must be reflected on the Court record. The Order should be reversed.
(As per the original)
The wife correctly submitted that the relief sought by the husband in the Outline of Case document filed 1 February 2024 was not competent. She sought that the husband’s Amended Application in an Arbitration be dismissed. During the hearing, the husband was provided with a further opportunity to identify with particularity and precision the terms of the order or orders he would seek reversing or varying the Award. The husband did not do so, failing to articulate the relief he sought should either or both the ss 13J and 13K reviews be determined in his favour.
THE S 13J REVIEW
In circumstances where I sit in the Federal Circuit and Family Court of Australia (Division 1), I have no jurisdiction to consider the husband’s application pursuant to s 13J. I do, however, have jurisdiction pursuant to s 45A of the Act and s 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the latter being in not dissimilar terms to the former. Consideration was required as to s 45A of the Act in circumstances where he had not framed questions of law pursuant to s 13J.
That section provides:
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
…
Action by court on its own initiative or on application
(7)The court may take action under this section on its own initiative or on application by a party to the proceedings.
The criteria of a “reasonable prospect” of success has been understood to require a real, rather than a fanciful prospect, and findings of “no reasonable prospects of success” does not equate to being hopeless or bound to fail (Newett & Newett (No 8) [2023] FedCFamC1A 7; Spencer v Commonwealth (2010) 241 CLR 118).
At the review hearing I advised the parties that I intended to consider the husband’s s 13J review application pursuant to s 45A of the Act.
The husband in his Amended Application in an Arbitration filed 8 November 2023 identified “grounds” in support of the review going to the s 13J review arising from findings made by the arbitrator as to:
(a)The benefits the husband had in a property at F Street, City G, Country B (“the F Street property”); and
(b)A contended advance of funds from the husband’s his late brother in August 2015 described as a loan.
Enquires were made as to whether, on what would be his third attempt, the husband was able to orally frame questions of law from that recorded in his s 13J “grounds” of review contained in his Amended Application in an Arbitration filed 8 November 2023. This enquiry did not produce a question of law being posed.
Accepting the husband’s case at its highest for the purposes of s 45A of the Act, if it is to be assumed that the husband’s s 13J “grounds” pose in substance a question of law, each of the s 13J categories of complaint require context to be understood.
The F Street property
The husband acquired the F Street property in 2008. In 2019 he began the process of registration and transfer of the F Street property to the parties’ son X, who at that time was 13 years of age. The transfer was completed in early 2023, during the proceedings. X was then 16 years old. The evidence adduced by the husband at the arbitration verifying the transfer to X were in Language S. It was the husband’s evidence at the arbitration, and the arbitrator found (at paragraph 60), that the husband does not have any current relationship with X. The parties agreed at the arbitration and at the review hearing that the value of that property is $144,231.
The husband contended at the arbitration that his interest in the property was by way of a life estate. It was and is uncontroversial that the husband currently occupies and resides at the F Street property and that he pays all the outgoings for the property.
The findings of the arbitrator on this subject matter were:
70. [X] is 16 years of age and there is no evidence before me as to the ability or inability of a minor to own property in [Country B] and I recall asking that question to one of the parties at the Arbitration to which the party questioned could not answer. As I have pointed out above the documentation relied upon (Tender Bundle [MS]-1 pp 5-11) is in another language.
…
73. I find however that on the best available evidence that the value of the property at the [F Street] property, in which the Husband resides, and has the benefit and control is $144,231.00.
The husband’s “grounds” recorded a complaint as to a finding that he was an “owner” of the property. The finding of the arbitrator (at paragraph 73) was that the husband “has the benefit and control” of the property. The arbitrator attributed the F Street property to the husband in the exercise of the s 79 discretion.
If a generous approach is taken to the husband’s “grounds” posing, in substance, a question of law as to evidence being available to support the drawing of inferences and the finding as made by the arbitrator, such question would be determined on the basis that the conclusion of the arbitrator was open on the evidence.
The contended loan payable by the husband to his late brother
The husband’s case was that in 2015 his brother, Mr K, advanced $163,000 by way of loan (at paragraph 14 of the Award). Mr K passed away in 2017 (at paragraph 17 of the Award). The wife disputed the fact of the advance, its character as a loan, and any finding as to it being a liability of the parties.
There was no affidavit evidence from any of the husband’s brother’s family. The arbitrator was not satisfied that the advance was made. He found that no demand had been for repayment of the advance, and if made, was statute-barred. At its highest, the husband adduced on the subject matter by way of his own self-serving e-mails. The arbitrator identified long standing Full Court authority not to consider, in the exercise of discretion, an unsecured alleged familial liability where the alleged liability is vague, uncertain, or unlikely to be enforced. The finding that the alleged loan was not a liability of the parties was available. The arbitrator similarly excluded consideration of an alleged unsecured personal liability of the wife of $100,000. Even if the husband had appropriately posed a question of law on this subject matter, the conclusion of the arbitrator was open on the evidence.
Conclusion pursuant to s 45A consideration of s 13J Review
Accepting the husband’s case as its highest, such that the grounds identified in his Amended Application in an Arbitration pose questions of law in substance, he cannot establish that his s 13J review has a reasonable prospect of success.
THE S 13K REVIEW
As discussed, s 13K(2)(e) involves a temporal aspect. The husband bears the onus to establish on the evidence to the requisite degree both that circumstances have arisen since the award was made such that it is impracticable and in the exercise of discretion the determination made ought to be reversed or varied.
For the following reasons, consideration to s 45A of the Act will also be made in assessing the s 13K review grounds taking the evidence the husband has relied upon at its highest.
In his Amended Application in an Arbitration, the husband’s “grounds” pursuant to s 13K were:
8. That pursuant to s13K of the Family Law Act the Award made by the Learned Arbitrator on 21 June 2023 it is impracticable for some or all of it to be carried out. The Orders requiring the wife to transfer her interest in [Town J] to the husband are impracticable and incapable of being put into effect without the wife being present in [Country B] for the purpose of signing a Transfer. The Wife is contractually bound by such obligation. As such, the Order transferring the wife’s interest to the husband is incapable of being put into effect.
…
15.Any transfer of interest in the company must be done in [Country B] regarding the [R Company]. Because there is no Order making the Respondent comply with this as part of her receiving her. Own share of the matrimonial pool, this will not be enforceable. An order is required to make the Respondent travel to [Country B] so she can comply with the Order, similarly to that above relying on Pavic as a precedent.
(As per the original)
In his Outline of Case filed 1 February 2024 the husband submitted that the determinations in the Award that the wife transfer to him her interest in the Town J property and to transfer to him her share in R Company, are “unenforceable” and “cannot be done”, as they require the wife to go to Country B to affect such transfers. The import of his case shifted in oral submissions at the review hearing, saying that this requirement meant that the implementation of these determinations is “impossible”, in the sense that the wife has not attended in Country B to give effect to them.
The H Property
Paragraph 6.2 of the Award is relevant to this ground, being:
6.That within 2 months from the date of the Award and simultaneously with the transfer and payments referred to in paragraphs 3, 4 and 5 above, the Wife and the Husband shall do all things and sign all documents to transfer to the Husband any interest she has in the following properties in [Country B]:
…
6.2. [H Property], [Town J], [Country B] (“the H Property property”).
The complaints of the husband pursuant to this ground include that the H Property is registered 65 per cent in the wife’s name and 35 per cent in X’s name. This was not the finding of the arbitrator, being:
77.I note from pages 196 and 197 of the Tender Bundle [MS]-1 references to the client or customer recording of the [H Property] is [Mr Rafiq]. The date on the correspondence is 1 May 2022. I am of the view that the Husband has or had the controlling interest in that property and that on the best evidence available the value should be assessed at $200,00.00. I intend to provide in the Award that the Wife transfer any legal interest that she might have in the [H Property]to the Husband.
The arbitrator did not accept that the wife was a legal owner of the H Property. The finding of the arbitrator was that the husband the sole legal owner. On one view, there is no document to be executed by the wife, or act to be undertaken by her, to transfer any such legal interest. On that circumstance, the husband’s ground of review is otiose.
The husband annexed to his affidavit what he said was an “expert legal opinion evidence” being a letter addressed to “whom it may concern” from an attorney, Mr T. That person had been instructed by the husband in Country B. This letter recorded:
6.2 As per the contract conditions of “[U] Company” the owning company of [H Property], the ownership of the [H Property] cannot be transferred or registered to a different owner unless the prime owner is physically present in front of their legal office to sign the release documents to our client. They do not accept POA without being accompanied by the physical presence and signature of the prime owner. However [the husband] is able to take over the share of his son (35%) being his custodian but cannot take over the wife’s share (65%)
(As per the original)
The husband did not adduce evidence as to the training, qualifications, experience, or area of expertise of the author, or as to the terms or content of the instructions provided to the author. Implicitly, husband’s instructions were the basis of the opinion. The opinion in the document was not grounded from the finding of the arbitrator as to the legal holding of the H Property.
The husband appropriately conceded that this evidence was objectionable hearsay. It may confront s 79 of the Evidence Act 1995 (Cth). The basis of the opinion is unsafe. This evidence achieves minimal weight.
The R Company shares
The determination in the Award by way of this particular is:
7. That within 2 months from the date of this Award the Wife and Husband shall do all things and sign all documents, if not already done, to transfer to the Husband the Wife’s interest in the [R Company] business and the Husband shall indemnify the Wife in relation to all liabilities and debts relating to the [R Company].
The implicit finding from the Award is that these shares have no value. Even if the husband established impracticality for the purposes of s 13K(2)(c) on this subject matter, that finding is not axiomatic to achieve a discharge or variation of the determination under challenge. Section 13K(2) imports a requirement that the husband also establish on the evidence that in the exercise of discretion, the determination by way of the Award should be reversed or varied.
The only evidence that the husband adduced as to this ground was from the letter from the attorney in Country B. It said nothing about this topic except that the transfer of shares had not been the subject of compliance. For the reasons as given above, this evidence is given little weight.
Conclusion pursuant to s 45A consideration of s 13K review
The husband’s evidence, taken at its highest, cannot establish the s 13K(2)(c) ground of impracticality to the requisite degree. At best it speculates difficulty. The husband conceded that he has not made any request of the wife to do a thing or to execute a document relating to the H Property, or the R Company shares. No action has been taken to enforce paragraphs 6.2 or 7 of the Award. No frustration of them has occurred. The husband did not identify evidence as to why the wife cannot, or will not, travel to Country B (if that is required), other than she has not done so to date. Additionally, no evidence was adduced to achieve the discretion to justify intervention on review pursuant to s 13K of the Act.
CONCLUSION
Consideration has been given to the husband’s case for review of the Award pursuant to both ss 13J and 13K of the Act. It does not have a reasonable prospect of success. This conclusion is coupled with and reinforced by the failure of the husband to identify the relief he would seek should he be successful in reviewing the Award. His application for review of the Award will be dismissed.
An order will be made pursuant to s 45A of the Act to dismiss the Amended Application for in an Arbitration filed 8 November 2023. On dismissing the review, Order 5 made 24 October 2023, which stayed paragraphs 4 and 10 of the determinations of the Award, will be discharged. The wife sought an order as to costs if the Amended Application in an Arbitration was unsuccessful. Directions will be made to progress the claim for costs.
For all the reasons as set out, I make the orders as set out in the commencement of these reasons.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 8 February 2024
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