Saha & Lahiri (No 3)
[2023] FedCFamC1A 144
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
APPELLATE JURISDICTION
Saha & Lahiri (No 3) [2023] FedCFamC1A 144
Appeal from: Lahiri & Saha (No 3) [2023] FedCFamC1F 181
Lahiri & Saha (No 4) [2023] FedCFamC1F 182
Appeal number(s): NAA 52 of 2023
NAA 66 of 2023File number(s): BRC 8518 of 2020 Judgment of: TREE, CAREW& rIETHMULLER JJ Date of judgment: 24 August 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION FOR ADJOURNMENT – Where the applicant sought an adjournment of the appeal – Where the applicant had ample time to prepare for the appeal, there is no new material relied upon by her, the appeal was expedited at the applicant’s instigation, and there is nothing in the material to support a stay of the appeal pending the determination of proceedings elsewhere – Where the adjournment was not justified and is refused.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant sought leave to represent the third respondent self-managed superannuation fund (“SMSF”) – Where the applicant is a undischarged bankrupt, is a disqualified person pursuant to the Superannuation Industry Supervisory Act 1993 (Cth) and cannot be a trustee of the SMSF – Where the applicant has a greater member benefit interest in the SMSF – Where the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 prevent a party from being represented by a person other than a lawyer other than in special circumstances – Where there are no special circumstances – Application dismissed.
FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant seeks leave to appeal from two orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1), namely, an order made 13 February 2023 enforcing a notice under s 139ZQ of the Bankruptcy Act 1966 (Cth) and an order made 23 February 2023 dismissing an Application in a Proceeding made by the applicant wife – Discussion of the relevant test to determine whether an order is final or interlocutory – Where both orders found to be interlocutory in nature as the orders do not, by their nature, finally determine the rights of the parties – Where leave to appeal refused.
FAMILY LAW – APPEAL – COSTS – Where the second respondent sought costs of and incidental to the appeal and for expedition of the appeal in the sum of $41,759.65 for King’s Counsel’s fees and $3,193.89 for solicitor’s fees – Where applicant opposes costs being awarded however, if awarded, submits the appropriate quantum should be no more than $24,000 – Where it was not considered reasonable to retain King’s Counsel in the matter – Quantum reduced to reflect junior counsel rates – Costs awarded in the fixed sum of $24,000.
Legislation: Bankruptcy Act1966 (Cth) ss 30, 35, 120, 139ZQ, 139ZR, 139ZS
Corporations Act 2001 (Cth) s 206B
Family Law Act 1975 (Cth) Pt VIII, ss 4, 79, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 26, 28, 29, 57
Superannuation Industry Supervisory Act 1993 (Cth) s 126K
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 5, rr 1.05, 3.08, 10.13, 10.27, 13.02, 15.19
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) regs 1.03, 4.02
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7
Brayden & Brayden [2016] FamCAFC 250
Buljubasic & Buljubasic (1999) FLC 92-865; [1999] FamCA 474
Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246; [1981] HCA 20
Cook v Benson (2003) 214 CLR 370; [2003] HCA 36
Davidson v Official Receiver [2021] FCAFC 73
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Fewster & Drake (2016) FLC 93-745; [2016] FamCAFC 214
Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75
Hall v Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36
Hardel Pty Ltd v Burrell & Family Pty Ltd (2009) 224 FLR 348; [2009] SASC 77
Jess & Garvey (2018) FLC 93-827; [2018] FamCAFC 44
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Licul v Corney (1976) 180 CLR 213; [1976] HCA 6
Lorde & Chu [2014] FamCAFC 228
Malloy and Ors & Stopford Malloy (2017) FLC 93-804; [2017] FamCAFC 204
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Mertens & Mertens [2016] FamCAFC 136
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Moorcroft v Moorcroft (2020) 60 Fam LR 361; [2020] FamCAFC 83
Osferatu & Osferatu (2015) FLC 93-666; [2015] FamCAFC 177
Penfold v Penfold (1980) 144 CLR 311; [1980] HCA 4
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Port of Melbourne Authority v Ashun (1980) 147 CLR 35; [1980] HCA 41
Ramsey and Ramsey (1983) FLC 91-301; [1982] FamCA 42
Re Luck (2003) 203 ALR 1; [2003] HCA 70
Re Nemeth; Ex parte Nemeth (1987) 15 FCR 155
Re R & G Shelley Pty Ltd (in Liq) (No 2) (1991) 103 FLR 220
Rigby & Olsen [2021] FedCFamC1A 46
Rigney & Blaise [2012] FamCAFC 23
Saha & Lahiri (No 2) [2022] FedCFamC1A 181
Sahadi & Savva and Anor (2016) FLC 93-704; [2016] FamCAFC 65
Saintclaire & Saintclaire (2015) FLC 93-684; [2015] FamCAFC 245
Sali v SPC Ltd and Another (1993) 116 ALR 625; [1993] HCA 47
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Sheill & McMurr (No 2) (2014) FLC 93-599; [2014] FamCAFC 134
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Stephens & Stephens and Anor (2009) FLC 93-425; [2009] FamCAFC 240
Sun Alliance Ltd v Massoud [1989] VR 8
Thompson & Berg [2016] FamCAFC 20
Tudor and Tudor (1992) FLC 92-273; [1991] FamCA 89
Number of paragraphs: 172 Date of hearing: 27 June 2023 Place: Brisbane The Applicant: Litigant in person The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Keane KC Solicitor for the Second Respondent: Stacks Law Firm Counsel for the Third Respondent: Did not participate Solicitor for the Fourth Respondent: VTS Lawyers (filed submitting notice) Solicitor for the Fifth Respondent: NSW Trustee & Guardian (filed submitting notice) ORDER
NAA 52 of 2023
NAA 66 of 2023
BRC 8518 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SAHA
Applicant
AND: MR LAHIRI
First Respondent
MR FELTOS
Second Respondent
D PTY LTD AS TRUSTEE FOR THE D PTY LTD SUPERANNUATION FUND (and others named in the Schedule)
Third Respondent
order made by:
tree, CAREW & riethmuller jJ
DATE OF ORDER:
24 august 2023
THE COURT ORDERS THAT:
1.Leave to appeal in appeal number NAA 52 of 2023 is refused.
2.Leave to appeal in appeal number NAA 66 of 2023 is refused.
3.The appeals are dismissed.
4.The applicant is to pay the costs of the second respondent fixed in the sum of $24,000.
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 Saha & Lahiri (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, CAREW & RIETHMULLER JJ:
The applicant and first respondent were married for 19 years before their divorce in 2021. For convenience and to assist with the anonymisation of these reasons, we will refer to the applicant as ‘the wife’ and the first respondent as ‘the husband’. No disrespect is thereby intended. Property settlement proceedings were commenced by the husband against the wife on 3 July 2020. The wife is an undischarged bankrupt.
The finalisation of the substantive proceedings has been delayed due to the numerous interlocutory, discrete issue, and appeal proceedings involving the wife, the husband, the wife’s trustee in bankruptcy, who is the second respondent in the proceedings (“the trustee”), and other parties.
The current applications for leave to appeal, and if leave is granted, the appeals, concern two orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 13 February 2023 and 23 February 2023, one consequence of which requires the wife to vacate her home so that it can be sold by the trustee. Both hearings occurred in the absence of the wife.
The third respondent (“D Pty Ltd”) is the corporate trustee of a self-managed superannuation fund (“SMSF”), the only members of which are the wife and the husband. The wife and the husband were both directors of D Pty Ltd until the wife was disqualified from holding that office upon her bankruptcy.[1] D Pty Ltd is not represented in the appeal although more will be said about that later in these reasons.
[1] Corporations Act 2001 (Cth) s 206B(3); Superannuation Industry Supervisory Act 1993 (Cth) s 126K.
The fourth and fifth respondents filed submitting notices and do not seek to be heard on the appeals or on the question of costs.
For the reasons set out below, leave to appeal will be refused. As the applications for leave to appeal are unsuccessful, the wife will be required to pay the trustee’s costs fixed in the sum of $24,000.
BACKGROUND
To provide context to these appeals, it will be helpful to provide some background.
The wife has been involved in extensive litigation in a number of courts and tribunals, involving numerous persons and entities, over many years.[2] Some of these proceedings resulted in a number of costs orders being made against the wife.
[2] Husband’s affidavit filed 23 January 2023, paragraphs 28-31.
The wife became a bankrupt in September 2016. The period of bankruptcy was later extended for a further five years and is not due to expire until 2024.
On 4 June 2020, the Official Receiver, at the request of the trustee, issued a notice under s 139ZQ(1) of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”), requiring D Pty Ltd to pay the trustee the sum of $853,875, being the value of the wife’s 99/100th interest in a property situated at B Street, Suburb C, New South Wales (“B Street”). B Street was transferred by the wife and husband (who held a 1/100th interest) to D Pty Ltd on 8 December 2014 for nil consideration, and as such, the transfer was void as against the trustee pursuant to s 120(1) of the Bankruptcy Act. The sum payable under the notice is recoverable by the trustee as a debt against D Pty Ltd in a court of competent jurisdiction pursuant to s 139ZQ(8) of the Bankruptcy Act. The notice also creates a charge over B Street pursuant to s 139ZR(1) and if the debt is not paid within 60 days of receipt of the notice, the trustee has the power to sell B Street pursuant to s 139ZR(6).
The sum of $853,875 remains unpaid.
Ironically, the procedure under s 139ZQ of the Bankruptcy Act is supposed to be an efficient and inexpensive means for a trustee to recover money or property that has been transferred by a bankrupt under a transaction that is void as against a trustee in bankruptcy.[3]
[3] Davidson v Official Receiver [2021] FCAFC 73 at [9].
On 4 September 2020, the Official Receiver issued a certificate pursuant to s 139ZR(4) of the Bankruptcy Act to the Registrar of Titles New South Wales certifying that B Street is charged pursuant to s 139ZR(1) with the liability of D Pty Ltd to make payment to the trustee in the sum of $853,875. It appears that the charge was registered on or about 26 October 2020.
The husband and the wife each sought to have the s 139ZQ notice set aside pursuant to s 139ZS of the Bankruptcy Act, but neither of them had filed an application within the 60 day time limit required under s 139ZS(1A)(a) of the Bankruptcy Act.
On 2 June 2021, an order was made in this Court, that the “issues in dispute under the Bankruptcy Act 1966 (Cth) identified in these proceedings be listed for a discrete and separate hearing for not more than two days commencing at 10.00 am on 16 September 2021”.
On 3 September 2021, D Pty Ltd was joined to the proceedings. The hearing on 16 September 2021 was adjourned and further trial directions were made, listing the discrete hearing for three days commencing on 21 February 2022.
On 4 February 2022, the wife unsuccessfully sought an adjournment of the discrete hearing. The wife appeared at that hearing by telephone. A second application by the wife for an adjournment of the discrete hearing on 21 February 2022 was dismissed. The wife appeared at that hearing by telephone. The husband discontinued his application to set aside the s 139ZQ notice. An agreement was purportedly reached between the husband, D Pty Ltd and the trustee that involved the sale of a different property owned by D Pty Ltd and payment of the debt to the trustee. A notation, but not an order, to that effect was included in the order ultimately made on 27 April 2022. On 21 February 2022, the matter was put over to 25 February 2022 for the delivery of judgment.
On 25 February 2022, the wife was afforded a further opportunity by the primary judge to file an application to extend the time to apply to set aside the s 139ZQ notice and to make further written submissions addressing, in particular, whether the principles identified in Cook v Benson (2003) 214 CLR 370 (“Cook v Benson”) applied (if the principles did apply there may have been grounds to set aside the s 139ZQ notice).
On 14 April 2022, caveats over B Street and another property owned by D Pty Ltd were lodged by the wife and purportedly by the fourth and fifth respondents.
Despite having the opportunity to do so, the wife did not file an application to extend the time to apply to set aside the s 139ZQ notice nor did she file any further written submissions. Notwithstanding the wife failing to take the steps afforded to her, the primary judge treated an unfiled application to extend the time to apply to set aside the s 139ZQ notice, (that had been emailed by the wife to the primary judge’s associate), as if the application had been filed. The primary judge dealt with the application on its merits including whether the principles identified in Cook v Benson applied. The wife’s application was dismissed on 27 April 2022, for the following reasons (at [80] of the judgment):
(a)the [wife] offers no explanation for her failure to commence an application to set aside the notice;
(b)the time limits imposed by the legislation should not be ignored without good reason; and
(c)in any event the merits of the [wife’s] proposed application do not warrant the grant of the extension.
The wife’s appeal against that decision was dismissed on 11 November 2022.
The consequence of the disposition of the discrete hearing relating to the bankruptcy issues was that B Street, in the name of D Pty Ltd, remained subject to a charge pending payment of the debt in the sum of $853,875 to the trustee, and the trustee had power to sell B Street if the debt was not paid.
On 21 October 2022, “the application” was set down for a final hearing on 13 and 14 February 2023. It appears that what the primary judge intended by setting down “the application” was to “bring finality” to the proceedings at the February 2023 hearing. The wife appeared at the hearing on 21 October 2022 by telephone.
On 28 November 2022, the trustee filed an Application in a Proceeding seeking the following:
(1)To join the fourth and fifth respondents to the proceedings;
(2)A declaration that B Street is subject to a charge pursuant to s 139ZR(1) of the Bankruptcy Act in favour of the trustee to secure the payment to him of $853,875 under the s 139ZQ notice;
(3)A declaration that the trustee had power to sell B Street;
(4)That the wife provide vacant possession of B Street;
(5)A writ of possession of B Street after 28 days;
(6)That D Pty Ltd sign all necessary documents and do all necessary things to enable the trustee to sell B Street;
(7)The removal of all caveats;
(8)Sale procedure;
(9)Payment from the sale proceeds of:
(a)Any unpaid land tax or other encumbrances;
(b)Remuneration to the trustee for acting on the sale;
(c)Costs of sale including legal and conveyancing costs, advertising, agent’s commission;
(d)Expenses incurred by the trustee in facilitating the sale including bringing B Street up to a condition which would facilitate the sale;
(e)Rates, insurances and other outgoings on B Street;
(f)The sum of $853,875 to the trustee;
(g)The trustee’s costs of the proceedings as agreed or taxed; and
(h)Any balance, to D Pty Ltd.
(10)That judgment be entered in favour of the trustee against D Pty Ltd in the sum of $853,875; and
(11)That D Pty Ltd pay the trustee’s costs of the proceedings.
The application was listed for hearing on 20 December 2022 at 9.30 am and the date and time is apparent on the face of the application. For all intents and purposes, the application was an enforcement application relating to the s 139ZQ notice.
On 13 December 2022, the husband filed an Application in a Proceeding (but in reality it was a Response to the trustee’s Application in a Proceeding). The husband was largely in agreement with the orders sought by the trustee, although the husband sought to have some involvement in the sale process for B Street.
On 20 December 2022, the primary judge made an order joining the fourth and fifth respondents. The fourth respondent is the mother of the wife. The fifth respondent, who has a litigation guardian, is the son of the wife and the husband. Caveats had been lodged over B Street in the name of the fourth and fifth respondents. The wife did not appear on 20 December 2022. The order made on 20 December 2022 included trial directions for the fourth and fifth respondents to file material in preparation for the hearing commencing on 13 February 2023. Paragraphs 2–12 of the Application in a Proceeding filed by the trustee on 28 November 2022, and paragraphs 3–9 of the husband’s Application in a Proceeding filed 13 December 2022, were adjourned for hearing on 13 February 2023.
On 6 January 2023, the fifth respondent filed a Response indicating his intention to agree to the removal of the caveat at the wife’s expense.
On 6 February 2023, the wife filed a Response to the trustee’s Application in a Proceeding filed 28 November 2022, in which she sought 20 different orders, including to dismiss the orders sought by the trustee, to vacate the hearing dates on 13 February 2023 and 14 February 2023, and to stay the proceedings until the Supreme Court of New South Wales determined an application apparently brought by the wife against the trustee. On the face of the Response, the hearing date is listed as 13 February 2023 at 10.00 am. The Response did not include an application for leave to appear at the hearing by electronic means.
On 13 February 2023, the wife did not appear and an order was made in her absence.
On 14 February 2023, the wife filed an Application in a Proceeding seeking the following orders:
(1)Set aside the ex parte orders of [the primary judge] of 13 February 2023, pursuant to Federal Circuit Court Rule 16.05 (1), (2)(a), (2)(b), (2)(e) and (3)
(2) Stay the ex parte orders of [the primary judge] of 13 February 2023
(3) Transfer proceedings BRC 8518/2020 to Family Court Sydney
(4)Lump sum costs orders against the first and second respondents to this application, [the husband] and [the trustee];
(5) Orders 1 to 4 be entered forthwith
(6) This application be returnable instanter before [another judge] or in the Family Court Sydney
(As per the original)
While not determinative, the reference to r 16.05 of the Federal Circuit Court Rules had no application to the proceedings as the proceedings were not in that Court, and in any event the Federal Circuit Court Rules 2001 were repealed on 1 September 2021. The applicable rules were the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Rule 10.13 in those rules is in very similar terms to r 16.05 in the now repealed Federal Circuit Court Rules 2001.
Rule 10.13 relevantly provides:
Varying or setting aside orders
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
…
(e) it does not reflect the intention of the court; …
(2) Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.
On 23 February 2023, the wife’s Application in a Proceeding filed 14 February 2023 was dismissed. Only the husband appeared at the hearing. Notwithstanding the wife’s failure to appear, the primary judge dealt with the application on its merits.
PRELIMINARY MATTERS
There were a number of preliminary matters dealt with at the appeal hearing and reasons reserved. The first was the wife’s application to adjourn the hearing of the appeal, which was dismissed. The second was the wife’s application for leave to represent D Pty Ltd, which was dismissed. The third was the wife’s application to rely upon her Summary of Argument, which was filed outside the time prescribed, which was allowed.
There is also the determination of whether leave to appeal is required and, if so, whether leave should be granted to appeal against the judgments dated 13 February 2023 and 23 February 2023 respectively.
Adjournment of Appeal
The wife, by a Response to an Application in an Appeal filed on 16 June 2023, sought to have the hearing of the appeal adjourned. In her oral submissions, the wife sought an adjournment until a date not before October 2023. The adjournment was opposed by the husband and the trustee.
In support of her application for an adjournment, the wife was granted leave to rely upon two affidavits, one filed on 16 June 2023 and one filed by leave at the hearing of the appeal and sworn on 23 June 2023. The affidavits were received for the purposes of the adjournment application only.
The matters relied upon by the wife in support of the adjournment were as follows:
(a)D Pty Ltd is not represented and needs to be represented in the appeal;
(b)The wife has a medical condition as particularised in medical reports annexed to her affidavits filed by leave and dated 16 February 2023 and two dated 11 May 2023;
(c)The wife’s medical condition has deteriorated because of an emergency plumbing issue at her home the night before the appeal hearing;
(d)The wife has had insufficient time to prepare;
(e)There are proceedings in the Supreme Court of New South Wales between the wife and the trustee concerning an alleged “costs scam” which should be determined before the appeal; and
(f)The wife was not feeling well and had been unable to obtain medical attention prior to the commencement of the appeal.
The following matters were relied upon by the trustee in opposing the adjournment application:
(a)On 18 April 2023, the appeal was listed for hearing on 27 June 2023 subsequent to a successful application by the wife for expedition in the hearing of the appeal;
(b)There is no new material relevant to the appeal which might explain the wife’s submission that she has not had time to prepare;
(c)The wife was granted leave to appear at the appeal by electronic means which addresses any impediment arising from any medical condition;
(d)An adjournment would cause great inconvenience to the other parties in the appeal and to other litigants of the Court;
(e)An adjournment would only add to the not inconsiderable costs already incurred in this matter; and
(f)The wife has no prospects of success in either appeal.
An adjournment of a hearing should only be granted if necessary to do justice as between the parties.[4] Matters that will inform the exercise of that discretion include the following:[5]
(a)The reasons for the adjournment;
(b)Any delay in bringing the application;
(c)Any prejudice to another party that cannot be compensated by an order for costs; and
(d)The effect upon the Court and other litigants before the Court.
[4] Sali v SPC Ltd and Another (1993) 116 ALR 625.
[5] Sali v SPC Ltd and Another (1993) 116 ALR 625; see also Mertens & Mertens [2016] FamCAFC 136.
The appeal hearing date was allocated on 18 April 2023. The wife does not address the delay in seeking the adjournment as contained in her Response filed 16 June 2023.
There is nothing in the medical reports relied upon by the wife that addresses why the appeal hearing should be adjourned. The wife has known since 18 April 2023 that the appeal was listed for hearing on 27 June 2023. Accordingly, there has been ample time for the wife to prepare for the appeal. There is no new material that has not been addressed by the wife. It was at the wife’s own instigation that the appeal was expedited. There is nothing in the evidence that would support a stay of the appeal pending the determination of proceedings elsewhere.
It is common ground that these proceedings have been protracted. Indeed, the wife complains about the costs incurred by the trustee to date. The property settlement proceedings have been listed for final hearing in September 2023.
The wife filed her Summary of Argument in both appeals and was granted leave to appear at the hearing by electronic means given what the wife submitted were factors that would make her travel to Brisbane for the hearing both financially and medically challenging.
The adjournment was not justified.
Applications in an Appeal – leave to represent D Pty Ltd
Both the wife and the husband initially sought leave to represent D Pty Ltd at the hearing of the appeal.
The husband filed an Application in an Appeal on 17 May 2023 seeking to represent D Pty Ltd in the appeal on the basis that he is the sole authorised officer. The wife ceased to be a director of D Pty Ltd at the time of her bankruptcy. The only two members of the SMSF are the wife and husband. If granted leave, the husband sought to rely upon a brief submission purported to be filed by him on behalf of D Pty Ltd on 16 June 2023. Ultimately, the husband conceded that any submission he wished to make in the appeal could be made by him in his personal capacity and, accordingly, he did not press his application and it was dismissed.
The wife, by a Response to the husband’s application, filed 16 June 2023, cross-applied to be granted leave to appear for D Pty Ltd.
Rights to representation
A party’s right to be represented at a hearing is governed by s 57 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) which provides:
A party to a proceeding before the Federal Circuit and Family Court of Australia (Division 1) is not entitled to be represented by another person unless:
(a)under the Judiciary Act 1903, the other person is entitled to practise as a barrister or solicitor, or both, in a federal court; or
(b)under the regulations, the other person is taken to be an authorised representative; or
(c)another law of the Commonwealth authorises the other person to represent the party.
The Family Law Regulations 1984 (Cth) and the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”) are silent as to when a person is an authorised representative for the purposes of s 57 of the FCFCOA Act.
Rule 3.08 of the Rules relevantly provide:
Right to be heard and representation
…
(2) Subject to section 57 of the Federal Circuit and Family Court Act, a party is not entitled to be represented by a person who is not a lawyer unless the court otherwise orders. The court will give permission for representation by a person other than a lawyer only in special circumstances.
In her 53 page affidavit (including annexures) filed in support of her application to represent D Pty Ltd, the wife provides no evidence relevant to the application save, perhaps, an assertion that she is the “major beneficiary [of the SMSF] and … [the husband] has no share left in the superannuation fund”.
The financial statements for the SMSF are annexed to an affidavit filed by the husband on 2 December 2022 and form part of the Appeal Book. As at 30 June 2021, the husband’s member benefits were $321,690.46 (of which $204,834.07 were in the pension phase) and the wife’s member benefits were $1,877,888.72.[6] There is additional evidence from N Accounting in a letter dated 25 October 2022 indicating that if a loan owed by the SMSF to the wife’s father is forgiven in his will then the wife’s member benefits may increase by $310,625.28. It seems unlikely this debt will be forgiven having regard to the contents of an email sent by the wife to her parents dated 28 October 2016 in which she said, among other things, that they “deserved a violent and immediate death”, and a signed declaration made by the wife’s parents dated 28 April 2017 indicating their intention to enforce the repayment of the loan. If the loan is repaid by the SMSF to the wife’s father’s estate, as appears likely, the SMSF assets will be reduced by that sum. On any view, it seems the wife’s member benefits are likely to exceed the husband’s.
[6] Husband’s affidavit filed 2 December 2021, Annexure B, p.16.
In an affidavit filed by leave and sworn on 23 June 2023, for the purposes of her Applications in an Appeal, the wife annexes various documents purporting to remove D Pty Ltd as trustee of the SMSF and appoint herself and the husband as trustees. The husband has not signed any of the documents. The wife signed an undated ‘consent to act as trustee’. However, the wife quite properly conceded that the statement in that document signed by her in which she states that she is not a bankrupt is incorrect. The wife contends that she must not have read that part of the document. Be that as it may, the wife, as a undischarged bankrupt, is a disqualified person pursuant to s 126K of the Superannuation Industry Supervisory Act 1993 (Cth) and cannot be a trustee of a SMSF.
While the wife may have a greater member benefit interest in the SMSF than the husband, that alone does not give rise to special circumstances warranting the grant of leave to represent D Pty Ltd in this appeal. In any event, the wife was unable to identify any submission she would wish to make if representing D Pty Ltd that she could not make in her personal capacity.
The wife’s application to represent D Pty Ltd at the appeal hearing was dismissed.
Whether the wife should be granted leave to rely upon her Summary of Argument filed five days outside the time limit set by the appeals’ registrar
By an order made by the appeals’ registrar on 18 April 2023, the wife was required to file her Summary of Argument by 4.00 pm on Friday, 10 May 2023. The wife’s Summary of Argument was not filed until 15 May 2023. The husband opposed the wife being granted an extension of time and “[o]n this ground alone” sought the dismissal of the wife’s appeals.
The granting of leave is not opposed by the trustee.
The husband did not point to any prejudice he or D Pty Ltd would suffer if leave were granted. The husband filed a Summary of Argument on 29 May 2023.
The wife was granted leave to rely upon her Summary of Argument.
IS LEAVE TO APPEAL REQUIRED?
In both appeals, the wife seeks leave to appeal. Leave to appeal will be required if the orders made on 13 February 2023 and/or 23 February 2023 were interlocutory rather than final. Unfortunately, while it is agreed between the parties that leave to appeal is required, the Summaries of Argument filed by the wife, the husband, and the trustee do not address why leave is required or the principles applicable if leave is required.
In a brief oral submission, King’s Counsel for the trustee submitted that leave should not be granted as the appeals were bound to fail. As to why leave is required, reference was made to reg 1.03 of the Regulations, which defines “interlocutory application” as “an application, other than a cross-claim, in a proceeding that has already commenced”. However, the focus on the nature of the application rather than the nature of the order made, seems to have been put to rest by the High Court of Australia in Licul v Corney,[7] where it was held that it is the nature of the order that should be the focus, not the application.
[7] (1976) 180 CLR 213.
The wife did not address the issue of leave in her primary oral submissions but, in response to the trustees’ submissions, the wife merely submitted that her appeals are not bound to fail for the reasons articulated in both her oral and written submissions.
Although it may seem a sterile exercise, given that it is not in contention as between the parties that leave is required, it seems to us that it is necessary to determine if leave to appeal is required. That is because, if leave is required, the wife must establish not only appealable error but, as a threshold issue, that the primary judge’s decision is “attended by sufficient doubt to warrant reconsideration” and that “substantial injustice” would occur if leave is refused.[8]
[8] Medlow & Medlow (2016) FLC 93-692 at [55]-[57].
The nature of the orders made on 13 February 2023 and 23 February 2023, i.e. whether they were “final” or “interlocutory”, will determine whether or not leave to appeal is required.
Relevant legislative provisions
Pursuant to s 28(3)(e)(i) of the FCFCOA Act, leave is required to appeal from a “prescribed judgment” of a single judge of the Federal Circuit and Family Court of Australia (Division 1). There is no definition of a “prescribed judgment” in the FCFCOA Act, although a “judgment” is defined in s 7 of the FCFCOA Act and means:
[A] judgment, decree or order, whether final or interlocutory, a decision or sentence, and includes a decree within the meaning of the Family Law Act 1975.
A “decree” is defined in s 4 of the Family Law Act 1975 (Cth) (“Family Law Act”) and means:
[D]ecree, judgment or order and includes:
(a) An order dismissing an application; or
(b) A refusal to make a decree or order.
The terms “decree”, “judgment” or “order” appear to be used interchangeably. Until 1 September 2021, appeals lay from a decree.[9] They now lie from a “judgment”’.[10]
[9] See s 94 and 94AAA (repealed) of the Family Law Act 1975 (Cth).
[10] See s 26 Federal Circuit and Family Court of Australia Act 2021 (Cth).
A “prescribed judgment” is defined in reg 4.02 of the Regulations and means for relevant purposes:
(1)For the purposes of paragraphs 28(1)(b) and (3)(e) of the Federal Circuit and Family Court Act, the following judgements are prescribed:
(a)An interlocutory decree (other than a decree in relation to a child welfare matter);
(b)An order under section 102PE, 102QF or 102QG of the Family law Act.
There is no definition of “an interlocutory decree” in the FCFCOA Act, the Family Law Act or in the Regulations.
In a “note” to r 13.02 (starting an appeal) of the Rules, it states that “leave of the court is needed to appeal from, among other things, ‘an interlocutory order’, other than an interlocutory order relating to a child welfare matter” and references s 28 of the FCFCOA Act and the Federal Court and Federal Circuit and Family Court Regulations 2012.[11] Rule 1.05 of the Rules defines an “interlocutory order” as:
(a) An interim order; or
(b) A procedural order; or
(c) An ancillary order; or
(d) Any other incidental order relating to an application or order.
[11] The Federal Court and Federal Circuit and Family Court Regulations 2012 (Cth) were amended by the Federal Circuit and Family Court of Australia (Consequential Amendments and Other Measures) Regulations 2021 (Cth) on 1 September 2021 to include the ‘Family Court’ and then repealed and replaced by the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) on 1 April 2023.
However, when regard is had to Chapter 5 of the Rules, it appears tolerably clear that the definition of “interlocutory order” for the purposes of the Rules, serves an entirely different purpose to “an interlocutory decree” in the Regulations. In any event, it is not a definition that applies to s 28 of the FCFCOA Act.
What is the nature of the orders made on 13 February and 23 February 2023?
13 February 2023 order
The order made on 13 February 2023 dealt with the trustee’s application, which was for all intents and purposes an enforcement application. It is in the following terms:
THE COURT ORDERS THAT:
1.Pursuant to ss 30, 77(1)(e) and 77(g) of the Bankruptcy Act 1966 (Cth), the [wife] give vacant possession of the property located at [B Street, Suburb C] NSW [...] and described in Certificate of Title Volume [...] Folio [...] to the [trustee] within twenty-eight (28) days of these orders.
2.Pursuant to ss 30, 77(1)(e) and 77(g) of the Bankruptcy Act 1966 (Cth), a writ of possession in favour of the [trustee] may be issued twenty-eight (28) days after the date of these orders.
3.Pursuant to s 30 of the Bankruptcy Act 1966 (Cth), [D Pty Ltd] execute all documents and do all things as are reasonably necessary to enable the [trustee] to effect the sale of the property, failing which a Registrar of the Court is authorised to do so.
4.Pursuant to s 79 of the Judiciary Act 1903 (Cth) and s 74MA of the Real Property Act 1900 (NSW):
(a) the caveat lodged by [D Pty Ltd] numbered […]; and
(b)the caveat lodged by the husband, fourth respondent and fifth respondent numbered […];
be withdrawn by the caveators within seven (7) days after the date of this order.
5. The sale of the property:
(a) may be by auction or by private treaty or by tender;
(b)may be for cash or on such terms as the [trustee] may think suitable but subject to a reserve of 85% of the value of the land as determined by a registered valuer.
6. The [trustee] apply the proceeds of any sale of the property as follows:
(a)in payment of amounts for any unpaid land tax or other encumbrances on the property accrued as at the date the sale is completed, to the extent that no allowance is made in any contract of sale;
(b)in satisfaction of the costs and expenses of the sale of the property including:
(i)the remuneration payable to the [trustee] in respect of acting on the sale, to be calculated at normal hourly rates;
(ii)in payment of other costs of sale, including legal and conveyancing costs, advertising and marketing costs, and agent’s commission;
(iii)in payment of expenses incurred by the [trustee] for the purpose of facilitating the sale, including bringing the property up to a condition which would facilitate the sale;
(iv)in payment of all rates, insurances and other outgoings on the property;
(c)in payment of the amount of the judgment debt provided by paragraph 7 below, being the amount which [D Pty Ltd] was required to pay pursuant to the notice under s 139ZQ of the Bankruptcy Act 1966 (Cth) together with interest;
(d) in satisfaction of the costs referred to in paragraph 8 below; and
the balance, if any, is to be paid to [D Pty Ltd].
7.Judgment be entered in favour of the [trustee] against [D Pty Ltd] in the sum of $853,875.00 plus interest.
8. [D Pty Ltd] pay the [trustee’s] costs of and incidental to these proceedings.
9.[D Pty Ltd] be entitled to an indemnity for the costs order made in paragraph 8 above from the [wife].
10. No order as to costs between the [trustee] and the fourth respondent.
11. No order as to costs between the [trustee] and the fifth respondent.
12.The [trustee], fourth respondent and fifth respondent be excused from any further attendance.
13.The application be adjourned to 10:00am on 4 April, 2023 for final hearing (in the Federal Circuit and Family Court of Australia (Division 1) sitting at Brisbane.
14.The parties have leave to file by no later than 4:00pm on 21 March, 2023, one further affidavit not exceeding 10 pages substantively and 10 pages of annexures.
23 February 2023 order
The order made on 23 February 2023 simply dismissed the wife’s Application in a Proceeding filed 14 February 2023.
Test to determine if a decree/order is final or interlocutory
It is well established that the test as to whether an order is final or interlocutory, is whether or not the order finally determines the rights of the parties.[12] The test looks at the legal effect of the decree, not its practical consequences.[13] However, as frequently observed, the application of the test can sometimes be challenging.[14]
[12] Hall v Nominal Defendant (1966) 117 CLR 423; Licul v Corney (1976) 180 CLR 213; Carr v Finance Corporation of Australia Limited (No. 1) (1981) 147 CLR 246.
[13] Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246.
[14] For example: see Licul v Corney (1976) 180 CLR 213 at 446, 451; Carr v Finance Corporation of Australia Limited (No. 1) (1981) 147 CLR 246 at 248; Sheill & McMurr (No 2) (2014) FLC 93-599 at [41]–[52]; Sahadi & Savva and Anor (2016) FLC 93-704 at [32].
Application of the test
In Hall v Nominal Defendant (“Hall”),[15] an order refusing to extend the time for the commencement of proceedings against the Nominal Defendant was held to be an interlocutory order. Windeyer J said at 443–444:
In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation. … [W]hen an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. I say of “that action” because it appears that the question depends more upon the action actually brought by a writ than upon the cause of action upon which the writ was founded.
[15] (1966) 117 CLR 423.
Taylor J said at 440–441 (with Owen J concurring):
… It is not, however, of the essence of an interlocutory order that it is one made in the course of a pending action or suit and the last-mentioned case may be regarded as illustrating this proposition. Further, in Smith v. Cowell the objection was taken that the order sought in that case was not “interlocutory” and the objection was supported by the contention “that an order is interlocutory only if made at some time between writ and final judgment”. The contention was expressly rejected by the Court of Appeal which was unanimously of the opinion that the expression “interlocutory order” was wide enough to include orders made after the conclusion of proceedings in the action. Brett L.J., referring to the jurisdiction given to the Court by s. 25(8) of the Judicature Act, said: “The power there given is of the largest kind, unless it is circumscribed in point of time by the words ‘interlocutory order’. But it is said that interlocutory must mean something between action begun and final judgment. I cannot agree. In my opinion, ‘interlocutory order’ there means an order other than a final judgment or decree in an action”. The order in the present case was made in proceedings preliminary to the bringing of an action and although it deprived the appellant of the benefit of the order of the learned judge of first instance, it did not operate to prevent him from making a further application for an extension of time. No doubt its practical effect was that any further application would have been fruitless unless supported by additional relevant facts but the order made by the Full Court did not of its own force conclude his right to bring an action.
(Citations omitted)
In Licul v Corney,[16] the High Court held that an order for substituted service and an order setting aside those orders were interlocutory orders. Gibbs J (as His Honour then was) said at 225:
…The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view … is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? ...
(Citation omitted)
[16] (1976) 180 CLR 213.
In Port of Melbourne Authority v Anshun,[17] the High Court overruled an objection to the competency of the appeal. The order subject to appeal, permanently stayed proceedings which were found to be an abuse of process. It was argued that the order appealed from was an interlocutory order and as leave to appeal had not been sought, the appeal was incompetent. The High Court held that the “stay order” finally disposed of the rights of the parties and was therefore a final order.
[17] (1980) 147 CLR 35.
In Carr v Finance Corporation of Australian Ltd (No 1),[18] the High Court held that an order refusing to set aside a judgment obtained upon the default of the defendant in delivering a defence did not finally dispose of the rights of the parties, and was therefore not a final order. Gibbs CJ said at 248:
…The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v. Corney. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v. Nominal Defendant. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.
In my opinion the test in Licul v. Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. …
(Citations omitted)
[18] (1981) 147 CLR 246.
In Re Luck,[19] the High Court held that “[a]n order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of process of the court or does not disclose a reasonable cause of action”.[20]
[19] (2003) 203 ALR 1.
[20] Re Luck (2003) 203 ALR 1 at 4, [9].
In Bienstein v Bienstein,[21] a party involved in family law proceedings in the Family Court of Australia (as this Court was formerly known) applied to remove proceedings pending in the Family Court to the High Court on the ground that they involved an interpretation of the Constitution. A single judge of the High Court refused the application and also refused to recuse himself from hearing the application. The purported appeal was struck out as incompetent and in doing so McHugh, Kirby and Callinan JJ said at 230–231:
The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success.
…
In our view, neither of the orders made by Hayne J finally determines the rights of the parties. The decision of Hayne J does not determine the rights of Mrs Bienstein, her former husband or the child of their marriage in the principal cause pending between them. In accordance with 34(2) of the Judiciary Act, leave is required before Mrs Bienstein can pursue her proposed appeal challenging the correctness of those orders.
(Footnotes omitted)
[21] (2003) 195 ALR 225.
In Tudor and Tudor,[22] the Full Court of this Court, held that an order striking out rather than dismissing an application for property settlement under s 79 of the Family Law Act, was an interlocutory order and in applying the test identified by the High Court in Licul v Corney by Gibbs J, (as his Honour then was) it was said at 79,025–79,026:
The first issue to be considered is the nature of the order appealed from. It was agreed between counsel that this Court would be bound by the formula adopted by the High Court in determining whether an order is final or interlocutory. That test as laid down by the High Court in Licul & Ors v. Corney and reaffirmed by that Court in Carr & Anor v. Finance Corporation of Australia Limited (No. 1) asks “whether the judgment or order appealed from, as made, finally determines the rights of the parties”: per Gibbs J in Licul & Ors v. Corney at 446. That test looks at the legal effect of the order, not its practical consequence: Carr & Ors v. Finance Corporation of Australia Limited (No. 1). This means that an order will be interlocutory if it leaves open the legal possibility of the application which it deals with being renewed, even though for all practical purposes, such an application is unlikely to succeed.
(Citations omitted)
[22] (1992) FLC 92-273.
In Sheill & McMurr (No 2),[23] the Full Court considered the applicable principles in determining whether or not an order is final or interlocutory, not in the context of the appeal itself but rather whether the principles applied by the primary judge for the determination of an interim application, in that case to make an order for the child to attend a particular school, were applicable i.e. principles relating to the making of an interim order. It was argued by the wife that the order was not an interlocutory order but rather a final order. In discussing the test generally the Full Court observed at 79,432:
The principles apply beyond consideration of rights of appeal. They apply whenever the issue of whether a judgment or order is final or interlocutory arises. Although, as the cases show, in many instances where an order is made between the commencement of proceedings and the final hearing, the question whether that order has finally disposed of rights of the parties may be difficult to answer, it is the answer to that question which determines whether the order is final or interlocutory.
[23] (2014) FLC 93-599.
In deciding that the order was interlocutory the Full Court said at 79,433:
While we accept that it may theoretically be possible for an order made prior to the resolution of the principal issue, for example parental responsibility or whether a child is to live in another country, to be considered final, the cases determine that the order must be so discrete that it could not be considered incidental or adjunct to the principal proceedings.
… The test is concerned with finality and in light of counsel for the mother’s concession that the order was capable of being reversed at a final hearing or varied at another interim hearing (even if as a matter of practically it may be doomed to fail), it is evident that the order could not be said to have determined, in a legal sense, all of the rights that were at issue or indeed in relation to a discrete issue concerning schooling. It follows that to the extent it is argued that the primary judge erroneously applied procedures applicable to an interim hearing the challenge is not made out.
In Saintclaire & Saintclaire,[24] the Full Court held that an order setting aside a financial agreement is a final order notwithstanding that proceedings would thereafter continue for property settlement under Part VIII of the Family Law Act. In acknowledging the difficulty in applying the test as to whether an order is final or interlocutory, the Full Court said at 80,607:
An example of that difficulty in this court arises in relation to s 44(3) of the Act. Existing authority is to the effect that an order granting leave under that sub-section is interlocutory, but some commentary at least, suggests that an order refusing leave may be final. An analogous dichotomy might be argued as applicable to orders that set aside, or hold binding, a financial agreement. The legal effect of an order setting aside a financial agreement is to allow the court to exercise its power to make orders in respect of the matters contained within the agreement and might, as a consequence, be argued to be interlocutory. If the agreement is binding, the court has no such powers, and a judgment or order to that effect may be argued to be final.
However, “proceedings with respect to a financial agreement” are a separate matrimonial cause to “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them...”. The trial judge’s orders can be seen to finally determine the parties’ rights with respect to their financial agreement, even if the consequence of those orders is that proceedings under Part VIII can be brought. As a consequence, we incline to the view that her Honour’s order is a final order and that leave to appeal is not required.
(Footnotes omitted)
[24] (2015) FLC 93-684.
In Osferatu & Osferatu,[25] the Full Court held that an order restraining a party from retaining a particular firm of solicitors was a final order from which an appeal lay as of right.
[25] (2015) FLC 93-666.
In Sahadi & Savva and Anor,[26] the Full Court held that an order granting the Commissioner of Police permission to use a report prepared for the purposes of parenting proceedings in the Federal Circuit Court (as that court was then known) in criminal proceedings, was an interlocutory order because the order did not finally determine the issues between the parties, the order could be modified or varied in appropriate circumstances, and the grant of leave could be revoked.[27]
[26] (2016) FLC 93-704.
[27] Sahadi & Savva and Anor (2016) FLC 93-704 at [33], [34].
It seems that an order can contain provisions which will be both final and interlocutory. For example, in Fewster & Drake,[28] the Full Court held that the provision in the order setting aside a financial agreement was a final order but the provision granting a party interim maintenance was clearly interlocutory.
[28] (2016) FLC 93-745.
The Full Court in Stephens & Stephens and Anor,[29] heard an appeal against an enforcement order made in property proceedings. Leave to appeal was not sought and the appeal proceeded as if the enforcement order was a final order and leave not necessary. There was however no discussion about whether an enforcement order is a final or an interlocutory order.[30]
[29] (2009) FLC 93-425.
[30] See also Thompson & Berg [2016] FamCAFC 20 (orders appealed from: enforcement of property order and refusal to stay enforcement order), Brayden & Brayden [2016] FamCAFC 250 (orders appealed from: enforcement of property order and costs order) and Moorcroft v Moorcroft (2020) 60 Fam LR 361 (orders appealed from: costs order and third party debt notice): appeals proceeded without consideration of whether leave to appeal necessary.
By contrast, in Rigney & Blaise,[31] the Full Court held, without discussion, that “leave to appeal may be required” in an appeal against costs orders and the dismissal of an enforcement application, and granted leave.
[31] [2012] FamCAFC 23; see also Malloy and Ors & Stopford Malloy (2017) FLC 93-804 (order appealed from was enforcement of spouse maintenance order and dismissal of application to vary spouse maintenance. Leave to appeal was granted but no discussion of the nature of the order appealed from).
In Jess & Garvey,[32] an application for leave to appeal was filed in relation to an order that summarily dismissed an application to set aside a financial agreement or alternatively for a declaration that the agreement was not valid, enforceable or effective. The Full Court noted that the authorities on whether or not leave is required in such circumstances “differ” and said simply they were “inclined to proceed on the basis that leave is not required”.
[32] (2018) FLC 93-827.
In Johnson Tiles Pty Ltd v Esso Australia Ltd,[33] the Full Court of the Federal Court of Australia determined that an appeal against an order allowing amendment of a pleading was an appeal against an interlocutory order and said:
42.The application of the leave requirement should not involve the expenditure of significant intellectual energy on the distinction between final and interlocutory judgments. Admittedly that is a question "productive of much difficulty" - Carr v Finance Corporation of Australia Ltd (No. 1). But the policy of the provision is plain enough. The time and resources of the Court and the parties should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties. In broad terms, of course, a judgment is treated as final if it finally disposes of the rights of the parties. Otherwise it is an interlocutory order - Hall v Nominal Defendant; Licul v Corney. Under that rubric there has been much taxonomic debate. But the policy supports a general principle, applicable with or without a statutory leave requirement, to the exercise of appellate jurisdiction, including that of the Federal Court even before the enactment of s 24(1A). The principle was expressed by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc in terms that: “...appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure.” The policy supporting the principle was clearly stated by Jordan CJ in In re the Will of FB Gilbert (dec) and repeated with approval by the High Court in the Philip Morris case at 177:
“...there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretions in interlocutory applications from a Judge in Chambers to a Court of Appeal.”
(Citations omitted)
[33] (2000) 104 FCR 564 at [42].
In Re Nemeth; Ex parte Nemeth,[34] the Full Court of the Federal Court held that the refusal by a registrar to issue a bankruptcy notice (and the dismissal of a Review of that decision) finally determined the wife’s right to take proceedings under the Bankruptcy Act to enforce a “Family Court” property order and was therefore a final order and the wife did not require leave to appeal.
[34] (1987) 15 FCR 155.
In Re R & G Shelley Pty Ltd (in Liq) (No 2),[35] the Supreme Court of the Australian Capital Territory held that an order made by a Master dismissing an application by the company (in liquidation) for the provisional liquidator to hand over all company funds held by him prior to deducting his own fees and expenses was an interlocutory order and therefore amenable to determination by a single judge of the court rather than a three member bench. Higgins J referred to the various High Court authorities and said at 222–223:
Where a right of appeal is conferred, it would be helpful if the competence of the appeal was readily discernible to avoid sterile and time-wasting arguments concerning that issue …
To decide whether an order is “interlocutory”' or “final” depends, it is said, on the nature and legal effect of the orders made: see Hall v Nominal Defendant; Licul & v Corney; Carr v Finance Corporation of Australia Ltd (No. 1)).
However, the real difficulty lies in identifying the lis or matter in issue against which that effect is to be measured. As Taylor J noted in Hall v Nominal Defendant (supra) (at 440), an order, whether final or interlocutory, usually “concludes the fate of the particular application in which it is made”' but, if made in the course of a particular action or suit, may not conclude the rights of the parties thereto inter se. He also noted that an order may be interlocutory even if “made after the conclusion of proceedings in the action'” (at 440).
There are thus two characteristics of an “interlocutory” as opposed to a “final” order. First, the order itself must not be provisional and second, it must decide the principal action or proceeding and not merely be a step on the way thereto however irrevocable that step may be.
…
…the characterisation of the order as “final” or “interlocutory” will depend on the relationship of that order to the principal proceeding with which it is associated and the legal effect on those proceedings of that order…
(Citations omitted)
[35] (1991) 103 FLR 220 (the substantive decision of Higgins J was ultimately overturned on appeal Shirlaw v Taylor (1991) 31 FCR 222 but the appeal did not concern the determination by Higgins J that the original order was interlocutory).
In Hardel Pty Ltd v Burrell & Family Pty Ltd,[36] the Full Court of the Supreme Court of South Australia held that an order by a Master dismissing an application to set aside a creditor’s statutory demand was an interlocutory order, and could therefore be heard by a single judge of the court rather than a three member bench. Kourakis J (as His Honour then was) (with whom Nyland and David JJ agreed) said at 355–360:
… the fact that an order disposes of the only proceeding on foot between the parties cannot be determinative. Every order, whether it be final or interlocutory, will dispose of the application in which it is made, and applications which determine only procedural rights may be brought before any substantive action is instituted; applications for leave, either to appeal or to proceed, and for an extension of time are examples. Conversely, the determination of interlocutory applications may bring the only substantive proceedings to an end; orders striking out claims or entering default judgments are examples.
…
… A final order determines the underlying matter, or some part of it, and for that reason will generally dispose of the action or an element of it. An interlocutory order, on the other hand, determines an aspect of the forensic procedure in accordance with which the matter will be adjudicated. For that reason it will generally direct the course of further proceedings rather than determine any part of the subject matter of the dispute.…
…
… there is much utility in the reformulation of the interlocutory/final dichotomy by reference to the concept of procedural or adjectival orders on the one hand, and orders determining substantive rights on the other. … Rights carry with them a co-relative right to enforcement or remedial orders if those obligations are breached. It is the function of the courts to adjudicate those controversies. …
…
A final order … finally settles the controversy which is the subject matter of the action, and thereby precludes any further application for another or different orders with respect to that matter; to ask whether a further application can be brought for the purpose of determining whether an order is final or interlocutory conflates cause and effect.
Conversely, decisions on whether the court’s jurisdiction to adjudicate a controversy has properly been invoked, and on whether its procedures for determining that controversy have been complied with, are generally adjectival and therefore interlocutory.
[36] (2009) 224 FLR 348.
Conclusion – is leave required?
We respectfully concur with the observations made by Higgins J in Re R & G Shelley Pty Ltd (in Liq) (No 2)[37] that “it would be helpful if the competence of the appeal was readily discernible to avoid sterile and time-wasting arguments concerning that issue”. That might be achieved by including in the Regulations a definition of “interlocutory decree” perhaps mirroring the definition for ‘interlocutory order’ contained in the Rules.
[37] (1991) 9 ACLC 636 at 638.
On one view, the order made on 13 February 2023 finally determined the rights of at least some of the parties to the litigation as evidenced by the order excusing the trustee and the fourth and fifth respondents from further appearance. The issues arising under the Bankruptcy Act were the subject of a discrete hearing and once the validity of the s 139ZQ notice was upheld and the applications to set aside dismissed by the order made on 27 April 2022, the rights as between the trustee, D Pty Ltd, the wife, and the husband were arguably finally determined. However, the order made on 27 April 2022 was one that dismissed an application for an extension of time within which to apply to set aside the s 139ZQ notice. On the principles established by the High Court in Hall, such an order was interlocutory and was treated as such in the appeal against that order.[38]
[38] (1966) 117 CLR 423; Saha & Lahiri (No 2) [2022] FedCFamC1A 181.
In our view, the order made on 13 February 2023, which is for all intents and purposes an enforcement order, and the order made on 23 February 2023, which dismissed an application to, among other things, set aside the order made on 13 February 2023, are interlocutory orders from which leave is required to appeal. The orders do not, by their nature, finally determine the rights of the parties, but rather are made as ancillary or incidental to the s 139ZQ notice issued under the Bankruptcy Act or are otherwise ancillary, incidental or procedural.
SHOULD LEAVE TO APPEAL BE GRANTED?
The applicable test to determine whether leave to appeal should be granted is a conjunctive one, namely, “whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether a substantial injustice would result if leave were refused, supposing the decision to be wrong”[39] (emphasis in original).
[39] Medlow & Medlow (2016) FLC 93-692 at [55]–[57].
In order to determine whether the decision is attended by sufficient doubt so as to warrant its reconsideration, it is necessary to consider the merits of the appeal by reference to the grounds relied upon.[40]
Are the decisions of the primary judge attended by sufficient doubt so as to warrant its reconsideration?
[40] Medlow & Medlow (2016) FLC 93-692 at [58].
On 13 February 2023 and 23 February 2023, the primary judge made orders in the absence of the wife and D Pty Ltd. In doing so, the primary judge was exercising the power contained in r 15.19 of the Rules which relevantly provides:
(1)If a party to a proceeding is absent from a court event (including a first court date), the court may do one or more of the following:
…
(c) if the absent party is an applicant —dismiss the application;
(d)if the absent party is a party who has made an interlocutory application—dismiss the interlocutory application;
(e)proceed with the hearing generally or in relation to any claim for relief in the proceeding.
(2)If a party to a proceeding is absent from a court event, the court may also make an order of the kind referred to in subrule 10.27(1) or (2) (orders on default), or any other order, or may give any directions, and specify any consequences for non‑compliance with the order, that the court thinks just.
Rule 10.27 relevantly provides:
(1) If an applicant is in default, the court may order that:
(a)the proceeding be … dismissed as to the whole or any part of the relief claimed by the applicant; or …
(2) If a respondent is in default, the court may:
(a) …
(b) give judgment or make any other order against the respondent; or …
(3)The court may make an order of the kind referred to in subrule (1) or (2), or any other order, … that the court thinks just.
The order made on 13 February 2023 requires the wife to, among other things, give vacant possession of her home within 28 days, and for the trustee’s costs of and incidental to the proceedings to be paid by D Pty Ltd, and for D Pty Ltd to be entitled to an indemnity for those costs as against the wife.
The wife does not separately address the applicable test to determine whether or not leave to appeal should be granted in her Summary of Argument, although in her Notice of Appeal NAA52/2023 filed 13 March 2023 the wife sets out the “facts” relied upon in support of her application for leave to appeal, which are summarised below:
(1)The 13 February 2023 order will cause a substantial injustice as it will leave the wife and her disabled son nothing in the property settlement;
(2)The order was made ex parte;
(3)The Court had no jurisdiction to make the order;
(4)The order represents a gross miscarriage of justice;
(5)The trustee has no outstanding costs owed from her estate;
(6)The fifth respondent did not consent to the order and was not heard;
(7)The primary judge denied all procedural fairness to the wife and interested parties, denying them the right to be heard;
(8)The s 139ZQ notice for one SMSF property cannot be used to force the sale of two SMSF properties;
(9)The 13 February 2023 order was not made according to the relevant laws;
(10)The husband had no legal right to consent to sign away the wife’s share in the SMSF;
(11)The primary judge erred in failing to accept that the husband was no longer trustee for the SMSF;
(12)The primary judge applied incorrect tests;
(13)The primary judge applied incorrect applicable laws; and
(14)The primary judge denied the wife procedural fairness by:
(a)refusing her leave to appear at the hearing;
(b)refusing her online filing;
(c)blocking her from joining the hearing;
(d)blocking her emails.
The wife thereafter sets out in her Notice of Appeal NAA52/2023, 26 grounds of appeal, which are summarised below:
(1)The primary judge denied the wife procedural fairness by:
(a)refusing her leave to appear at the hearing;
(b)refusing her online filing;
(c)blocking her from joining the hearing;
(d)blocking her emails;
(2)The primary judge denied the wife the right to be heard;
(3)The Court has no jurisdiction to make the order;
(4)“Overt” apprehended bias towards the wife;
(5)Misinterpretation of the “clear accounts rule” for trusts;
(6)Order made in breach of order of 27 April 2022;
(7)The primary judge erred in “allowing the [husband] and [trustee] to change their application to consent orders to the exclusion of the [wife] … and refusing an adjournment”;
(8)Refusing an adjournment;
(9)Failure to consider all relevant evidence and misinterpreting evidence;
(10)Failure to consider all relevant laws and misinterpreting the laws;
(11)Removing the wife’s “online and email filing”;
(12)Allowing theft of the fifth respondent’s share of property;
(13)Accepting that Ms RR was authorised to sign consent orders on behalf of the fifth respondent;
(14)Accepting that the wife’s nephew could consent on behalf of the fourth respondent;
(15)Allowing theft of the wife’s share of the SMSF;
(16)[blank]
(17)Accepting the husband was the sole trustee of the SMSF;
(18)Allowing the husband to appear “unrepresented” for D Pty Ltd;
(19)Allowing the husband to appear “unrepresented” for D Pty Ltd without consent of the wife as major beneficiary of the SMSF;
(20)Finding that the husband was authorised to dispose of the wife’s share of the SMSF;
(21)Not according [sic] to relevant applicable laws;
(22)Erred in making costs orders against the SMSF;
(23)Erred in making costs against the wife;
(24)Erred in not making a costs order in favour of the wife;
(25)Applying incorrect tests and principles;
(26)Allowing only 28 days for the wife to vacate B Street; and
(27)Facilitating the sale of B Street to parties “related” to the trustee.
In the Notice of Appeal NAA66/2023 filed 23 March 2023, the wife sets out the “facts” relied upon in support of her application for leave to appeal:
(1)The 23 February 2023 order was made in the absence of all parties; and
(2)The wife was not heard, the order was made ex parte, made in the absence of the wife and without notifying her of the listing.
The wife thereafter sets out nine grounds of appeal in NAA66/2023, which are summarised below:
(1)Denying the wife procedural fairness;
(2)Denying the wife the right to be heard, making ex parte orders without notifying her;
(3)The Court had no jurisdiction;
(4)Apprehended bias;
(5)Refusing the wife leave to appear and blocking her from appearing;
(6)Failing to consider all relevant evidence and misinterpreting the evidence;
(7)Failing to consider all relevant laws and misinterpreting the relevant applicable laws;
(8)Removing the wife’s online and email filing; and
(9)Applying incorrect tests and principles.
The wife’s Summary of Argument filed on 15 May 2023 does not separately address the grounds of appeal in each Notice of Appeal, but rather, sets out submissions in relation to 12 grounds of appeal. Unhelpfully, the 12 grounds do not identify which of the 26 grounds in the first Notice of Appeal or the nine grounds in her second Notice of Appeal she is addressing. There is a good deal of repetition in the Summary of Argument and some submissions are scandalous. The wife also attempts to (in effect) re-litigate the validity of the 2016 sequestration order, the validity of the s 139ZQ notice, her failed attempt to have her bankruptcy annulled in 2016 and her failed appeal in 2017, the extension of the period of her bankruptcy, disputes about her debts at the time of bankruptcy, and costs incurred by the trustee; none of which are relevant to the appeals in question.
We have done our best to summarise what are referred to in the wife’s Summary of Argument as the 12 “grounds” of appeal and attempted to identify which ground in the Notices of Appeal they may relate to:
(1)Lack of “standing” to consent to orders (perhaps reflecting Grounds 3, 12, 13, 14, 18, 19, and 20 of NAA52/2023 and perhaps Ground 3 of NAA66/2023):
(a)The husband had no “standing” to consent to the orders on behalf of D Pty Ltd;
(b)The trustee had no “standing” to consent to the orders (challenging the validity of the s 139ZQ notice);
(c)The fifth respondent’s lawyer had no “standing” to appear for the fifth respondent and appeared without instructions;
(d)The fourth respondent did not provide instructions to the lawyer representing her;
(2)The wife and D Pty Ltd did not consent to the orders (Grounds 3, 17, 18, 19, and 20 of NAA52/2023);
(3)The primary judge erred by not permitting the wife to appear by AVL (presumably Audio Visual Link) or phone (Grounds 1 and 2 of NAA52/2023 and Grounds 1 and 2 of NAA66/2023);
(4)The orders are “in breach of contract of the consent orders of 27 April 2022 and an abuse of process” (perhaps reflecting Ground 6 of NAA52/2023):
(a)“[t]he February 2022 consent orders without the [wife’s] consent, between [the husband] and [the trustee], endorsed by the primary judge on 27 April 2022, released the s 139ZQ notice property for another property purchased by the [SMSF]”;
(b)The Federal Circuit Court [sic], Federal Court and Supreme Court Sydney refused to enforce the trustee’s charge so he went “judge shopping” to force the orders in the absence of the wife;
(5)Ex parte costs order cannot be made against the wife and D Pty Ltd who were not allowed to appear (Grounds 1, 2, 3, 18, 19, and 20 of NAA52/2023 and perhaps Grounds 1, 2, and 3 of NAA66/2023);
(6)No jurisdiction to make the orders (Ground 3 of NAA52/2023):
(a)The Court had no jurisdiction to order the removal of the caveats; and
(b)The Court had no jurisdiction to make the orders by consent;
(7)Denial of procedural fairness (Grounds 1, 2, 9, and 11 of NAA52/2023 and Grounds 1 and 2 of NAA66/2023):
(a)Removing the wife’s “online filing”;
(b)Refusing her application to appear by AVL or phone while he invited all other parties to appear by phone;
(c)Failing to consider the medical evidence relied upon by the wife;
(d)Failing to consider the wife’s affidavit relevant to appearing by AVL or phone;
(e)Blocking the wife’s emails;
(f)“pretending to call the [wife] and [D Pty Ltd]”;
(g)Not notifying the wife of the hearing date on 23 February 2023;
(8)Inadequacy of reasons 13 February 2023 (a new ground not the subject of any ground of appeal in NAA52/2023);
(a)No relevant evidence or applicable laws referred to;
(b)No reasons for making the orders;
(c)“enforcement orders” of 13 February 2023 are not pursuant to the 27 April 2022 judgment”;
(d)Failure to give adequate reasons for refusing the wife leave to appear by AVL or phone, while [the primary judge] gave other parties leave to appear;
(e)Misstating evidence that the wife had made no application to appear by AVL or phone;
(9)Apprehended bias and prejudice (Ground 4 of NAA52/2023 and Ground 4 of NAA66/2023):
(a)By referring to the case as a “blistering, purulent sore that won’t go away despite [the primary judge] treating it with antibiotics and bandages” in the 23 February 2023 [sic] judgment;
(b)Making the orders without giving the wife any opportunity to be heard;
(c)In stating that he “only trusts and listens to the [trustee’s] counsel, because he is an officer of the Court, but won’t listen to the other parties” the primary judge breached his obligation to be impartial;[41]
[41] Transcript 23 February 2023, p.3 line 30.
(d)The primary judge implied the wife is a “bull charging at red flags” when he said on 13 February 2023 that “would be simply like waving a red flag at a bull” (at [8]);
(e)Both statements quoted reflect that that primary judge had a “toxic attitude against [the wife]”;
(f)The primary judge’s “overt apprehended bias and prejudice in ‘rubber stamping’” all orders sought by the trustee and not allowing the wife to appear or be heard;
(g)Refusing the wife leave to appear by phone despite being informed of her attempts to do so by the trustee’s legal representative;[42]
[42] Transcript 13 February 2023, p.20 lines 40-45.
(10)Misreported evidence/errors in finding of fact (Ground 9 of NAA52/2023 and Ground 5 of NAA66/2023):
(a)The finding that the wife did not appear on 13 February 2023 is false;[43]
[43] Transcript 13 February 2023, p.7 line 9.
(b)In finding that D Pty Ltd had consented to Orders 3, 4(a), 5, 6 and 7;[44]
[44] Transcript 13 February 2023, p.15 lines 17-23.
(c)When the primary judge had found that D Pty Ltd was unrepresented;[45]
[45] Transcript 13 February 2023, p.12 line 41.
(d)The finding that the wife did not appear on 23 February 2023 was “misreported”;
(11)Failure to consider relevant evidence (Grounds 9 and 20 of NAA52/2023 and Ground 6 of NAA66/2023):
(a)The updated trust deed of the SMSF which replaced D Pty Ltd;
(b)Seven unencumbered properties that were “stolen” by the husband and the trustee;
(c)The medical evidence relied upon by the wife that she was unable to travel to Queensland due to severe [...] injuries from a[n] accident;
(12)Failure to consider applicable laws, correct tests and authorities (Grounds 1, 2, 3, 4, 5, 6, 10, 11, 21, and 25 of NAA52/2023 and Grounds 1, 2, 4, 7, 8, and 9 of NAA66/2023):
(a)The “clear accounts rule” for trusts – “the trustee’s right of indemnity is set off as against any liability owed by the trustee to the trust”;
(b)The primary judge “forced ex-parte orders without any reason to force an ex-parte hearing, by his failure to forewarn the parties that [D Pty Ltd] requires separate legal representation and by his refusal to allow the [wife] to be heard”;
(c)Denial of procedural fairness:
(i)There has been no hearing on the merits;
(ii)Refusal to grant the wife leave to appear by AVL or phone;
(d)Bias:
(i)Reference to Ebner v Official Trustee in Bankruptcy[46] as to the principles applicable [and no doubt should be read with paragraph 9 of her Summary of Argument].
The limited nature of the orders made by consent, the validity of the s 139ZQ notice, the 27 April 2022 notation to order, abuse of process (Grounds 1, 2 and 4 of the wife’s Summary of Argument)
[46] (2000) 205 CLR 337 at 363, [81]–[82].
Prior to the hearing on 13 February 2023, a minute of order was sent to the primary judge’s chambers which was signed by the husband, the trustee, D Pty Ltd (signed by the husband as the authorised officer), and the fourth and fifth respondents, all indicating their consent to the terms set out in the minute of order. Obviously, the parties providing consent reflected their consent in so far as the proposed orders affected them.
At the hearing on 13 February 2013, the fourth and fifth respondents were each separately legally represented and confirmed their consent to the terms of the minute of order which was marked Exhibit 1 in the proceedings.[47] The orders required the removal of the caveats lodged in their names. The fourth and fifth respondents denied any part in lodging the caveats. Additional orders were made by consent that there be no order for costs as between the trustee and the fourth and fifth respondents and that they be excused from further attendance. The orders made on 13 February 2023, do not, on their face, indicate which parts were made by consent and by whom, but the transcript confirms that the fourth and fifth respondents consented to the parts of the order that affected them, namely, Orders 4(b) (in relation to the fourth and fifth respondents), 10, 11 and 12.
[47] Exhibit 1 reflects the terms of paragraphs 4 – 10 of the trustee’s application filed on 28 November 2022.
There is no evidence to support the wife’s contention that the lawyer’s representing the fourth and fifth respondents appeared without instructions.
The husband was also legally represented but none of the proposed orders were directed to him personally.
As the husband was refused leave to personally represent D Pty Ltd at the hearing, the orders against D Pty Ltd were not made by consent but rather in default of appearance.[48] The fact that Exhibit 1 was consented to by the husband as the authorised officer for D Pty Ltd, was a factor relied upon by the primary judge when making the order against D Pty Ltd by default.[49] The representation of D Pty Ltd in court proceedings and the signing of documents on behalf of D Pty Ltd as the authorised officer are two different things. It is apparent from the Appeal Book that the husband is the only authorised officer,[50] and has attended to the continued administration of D Pty Ltd.[51]
[48] Transcript 13 February 2023, p.12 lines 43-47.
[49] Transcript 13 February 2023, p.15 lines 18-20.
[50] Trustee’s affidavit filed 28 November 2022, p.167-168 (as at 21 September 2022).
[51] Husband’s affidavit filed 2 December 2022, p.7-42.
On 13 February 2023, the husband made an application, without notice, to represent D Pty Ltd. The husband’s application was dismissed. Of this application, the primary judge said at [5]–[8]:
At the commencement of this morning’s hearing, [the husband], sought leave to appear for [D Pty Ltd], which is a company which acts as the trustee of the superannuation fund that was established – I say this loosely – established by the [husband] and [the wife]. He has not filed a formal application to that effect and it seems that the material that he relies upon for that order for leave to represent the company or appear for the company was only filed this morning.
I am loathe to give him leave to appear on behalf of the company, because it would just encourage more bad behaviour in these proceedings. This is a case where everything needs to be done absolutely correctly, I would have thought, lest it be said in another place that there has been some form of denial of procedural fairness. I would have thought that, on past conduct and knowing a little bit about the case, I would expect that the [wife] would oppose with vehemence the [husband] having leave to appear on behalf of the trustee for the superannuation fund.
I refused his application for these reasons. First, it is way too late. Second, the filing of affidavit material this morning highlights the fact that to grant his application would be to work a procedural unfairness against the [wife], at the very least. He accepted, when I put to him, that she would likely oppose him being granted leave to appear for [D Pty Ltd]. The way in which he has used or dealt with the assets of the superannuation are a point of strong contention from her point of view.
So to accept material filed today and make an order for him to represent [D Pty Ltd] in the absence of a properly constituted application in respect of which the [wife] has been given proper notice would be simply like waving a red flag at a bull. I do not intend to do that. So, for all intents and purposes, [D Pty Ltd] is unrepresented and does not appear.
The matters relating to the appointment of the trustee and the validity of the s 139ZQ notice have all been determined in this and other courts and are not relevant to these appeals.
There is no evidence that the order made by consent on 13 February 2023 was an abuse of process. The order made on 27 April 2022 included a notation set out at paragraphs 7–10. Those paragraphs were not part of the order but reflected an agreement reached between the trustee, D Pty Ltd and the husband as follows:
THE COURT NOTES THAT:
7. The [husband] and the [trustee] and [D Pty Ltd] have agreed to settle all matters in dispute between them in this proceeding on terms that include the following:
8. [D Pty Ltd] will pay the [trustee] the sum of $853,875 (Settlement Sum).
9. The Settlement Sum will be paid directly from the net sale proceeds of sale of the property owned by [D Pty Ltd] with folio identifier […], situated at [FF Street, Suburb C].
10. Upon receipt of the Settlement Sum, the [trustee] will release the [husband] and [D Pty Ltd] from any and all claims arising out of this proceeding and the bankrupt estate of the [wife], including the notice dated 4 June 2020 to [D Pty Ltd] under section 139ZQ of the Bankruptcy Act 1966 (Cth) and in respect of any costs orders made in favour of the [trustee] in this proceeding.
There is no evidence the agreement was executed. The fact that the proceedings continued would indicate it was not.
There is no merit in any of these grounds.
Denial of procedural fairness (Grounds 3, 5, 7 and 12(b), 12(c) of the wife’s Summary of Argument)
It is a fundamental tenet of our justice system that every person whose rights are likely to be adversely affected by an order of a court, has a right to be heard in the proceedings.[52] However, that right is not absolute.[53] It is the opportunity to be heard that must be provided.[54] Given the particular circumstances of this case, it is worth setting out in full the statements made by the High Court in Allesch v Maunz,[55] at 184–186 per Kirby J:
It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as “an indispensable requirement of justice”. It is a rule of natural justice or “procedural fairness”. It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
The rule is also implicit in international principles of human rights. It is inherent in the proper conduct of judicial proceedings in a court of law. It may even be an implied attribute of the Judicature established under, and envisaged by, the Constitution. So deeply ingrained is the principle that more recent times have seen its extension, with certain exceptions, to administrative tribunals and other decision-makers. The principle governed the Family Court of Australia in determining the rights of the present parties.
…
… it is worth emphasising that the principle just described does not require that the decision-maker actually hear (or receive the submissions of) the party potentially liable to be adversely affected. Sometimes, through stubbornness, confusion, misunderstanding, fear or other emotions, a party may not take advantage of the opportunity to be heard, although such opportunity is provided. Affording the opportunity is all that the law and principle require.
Decision-makers, including the courts, cannot generally force people to protect their own rights, to adduce evidence or other materials, to present submissions or to act rationally in their own best interests. This consideration may be especially relevant in relation to the Family Court where emotions, often engendered by the highly personal issues involved, can sometimes cloud rational thought.
Nor are courts obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who can explain the need for an adjournment. The rights of other parties are commonly involved. In the Family Court, the rights of non-parties (especially children) may be affected. Additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.
(Footnotes omitted)
[52] Kioa v West (1985) 159 CLR 550 (“Kioa v West”) at 582; Allesch v Maunz (2000) 203 CLR 172 (“Allesch v Maunz”) at 184, [35].
[53] Kioa v West at 582; Allesch v Maunz at 184, [35].
[54] Kioa v West at 582; Allesch v Maunz at 184, [35].
[55] (2000) 203 CLR 172.
It is important to stress, as the primary judge did in his reasons delivered on 23 February 2023 at [29], that requests for leave to appear at a hearing via electronic means or applications for adjournment, are generally required to be made formally and in accordance with the Rules. It is as well to be reminded of the observations by the Full Court in Buljubasic & Buljubasic,[56] at 86,221–86,222:
… I think it is appropriate to observe that in this modern day there seems to be a tendency for people to believe that it is an appropriate way to communicate with courts, or this court at least, by sending facsimile transmissions to the registrar in the belief that they will come to the attention of the trial Judge. Ordinarily speaking, that is not a proper way for any litigant to seek to communicate with the court. Whilst it is appropriate to communicate with the registry about procedural matters in that fashion, no doubt, it is not an appropriate way for a litigant, whether represented or unrepresented, to seek to communicate with the judge who is to hear the case.
Ordinarily speaking, if a party to proceedings, whether represented or otherwise, seeks to have an indulgence from the court in the form of an adjournment or an extension of time for doing something which has been listed to be disposed of on a particular day, the litigant has an obligation either to appear before the court in person to seek that indulgence or to send a legal representative on his or her behalf to make a proper application to the court for that relief. It is not, generally speaking, an appropriate way to seek an adjournment of proceedings which are listed for hearing before the court to send a letter, whether by facsimile or otherwise, to the registry on the morning of the hearing setting forth the request for an adjournment and stating the grounds upon which the application is made.
[56] (1999) FLC 92-865.
Obviously, the reference to “modern day” is somewhat dated although the observations remain relevant to this day and age where parties frequently attempt to communicate with the chambers of a judge by emailing the judge’s associate. It has long been the protocol in the Family Court of Australia (and now the Federal Circuit and Family Court of Australia (Division 1)) that communication with chambers is only to occur with the prior consent of all parties to the litigation unless in the case of a genuine emergency. Unfortunately, that protocol was not observed in this case. As a consequence of the wife and the husband engaging in what the primary judge described as an “email battle” to which his chambers were copied, the primary judge directed his associate to inform the wife and the husband that any further email communication from them would not be read. This seems to be what the wife regards as blocking her “online filing”. The wife was not prevented from filing material in the appropriate way.
13 February 2023 hearing
In our view, there can be little doubt that the wife knew of the 13 February 2023 hearing date and was afforded an opportunity to be heard, save in respect of one matter discussed below. The wife was present (by telephone) on 21 October 2022 when the hearing dates of 13 and 14 February 2023 were listed. On 6 February 2023, the wife filed a Response to the trustee’s Application in a Proceeding which had been filed on 18 November 2022 in which she sought, among other things, for the hearing dates on 13 and 14 February 2023 to be vacated. The wife was informed by the Court on 8 December 2022 that any application she may have to appear electronically had to comply with the Rules.[57] The primary judge addressed this issue at [1]–[4], and [9] of his ex tempore reasons:
Over the past two weeks there has been an inordinate amount of correspondence with my chambers by various parties in this case but, principally, the first respondent. She has, as she has done in the past, sought leave in an informal way to appear on the telephone. That leave was refused because it was opposed by one or other of the other parties in the proceedings and this is the final hearing of this application, or, at least, that is what it is intended to be.
In the face of opposition to her appearing by telephone, she was advised, as she has been advised in the past, that it would be necessary for her to file an application in a case with some supporting affidavit material so that the Court could make a proper decision about whether she should be given leave to appear via electronic means. All of that advice was for naught, because no application to appear by electronic means was filed, although I am told by my associates that there was an affidavit filed that seemed to support such an application.
The correspondence culminated in an email that I instructed my associate to write to both the applicant and the first respondent on Friday. They had commenced to engage in some form of email battle into which my chambers was copied. I have said before in this case that it is entirely inappropriate to engage the Court or to include the Court in such correspondence. I instructed my associate to write to both the applicant and the first respondent by email, informing them that, on my direction, my associate and legal associate would no longer even look at emails that came from either the applicant or the first respondent directly. Indeed, I seem to recall reading in this case in the past, affidavits which included emails from chambers of other judges, and, in particular, judges of the New South Wales Supreme Court to the same effect.
So that is what has happened off the record through correspondence with my chambers.
…
The first respondent has not appeared today. I do not think there can be any question that she knew that the proceedings were on foot. I have already placed on the record correspondence that has been received by my chambers about today’s proceedings.
[57] Wife’s affidavit filed 14 February 2023, Annexure B, p.12.
The fact that the proceedings were heard in the absence of the wife and D Pty Ltd did not make them ex parte.
D Pty Ltd had notice of the proceedings. The wife had notice of the proceedings save for the order made that D Pty Ltd be entitled to an indemnity from the wife for the costs order made against D Pty Ltd (i.e. to pay the trustee’s costs of and incidental to the proceedings). The wife was not afforded an opportunity to be heard in relation to the indemnity order. Indeed, the order to this effect was made in the absence of any formal application.
23 February 2023 hearing
As previously noted, the wife filed an application on 14 February 2023 seeking to set aside the order made on 13 February 2023. In support of her Application in a Proceeding the wife filed an affidavit. Much of the affidavit could more properly be characterised as written submissions. In particular, on the question of the costs orders, the wife: disputed the bankruptcy trustee’s entitlement to costs orders (paragraph 13); sought costs against the bankruptcy trustee; sought that the bankruptcy trustee’s charge (arising by operation of s 139ZQ of the Bankruptcy Act) be dismissed with costs (paragraph 38); and argued that if “anything is payable to the trustee” it should be paid by the husband (paragraph 40).
The date for hearing of the wife’s Application in a Proceeding filed 14 February 2023, to set aside the orders made on 13 February 2023, appears on the face of the application to be Wednesday, 22 February 2023. It is not apparent from the appeal record why the hearing proceeded on 23 February 2023. The wife contends she had no notice of the hearing date. However, if that be the case, it seems that the husband did have notice because he appeared in person on 23 February 2023. How the husband could have notice of the hearing date of the wife’s application and not the wife remains unexplained. There is no evidence that the wife attended Court on 22 February 2023.
Even if it be the case that through no fault of her own, the wife was not afforded procedural fairness, a new hearing will not be ordered “if it would inevitably result in the making of the same order as that made by the primary judge … a new trial in such a case would be a futility”.[58]
[58] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
In our view, it appears tolerably clear that the same order would have been made with or without oral submissions from the wife, as largely explained by the primary judge in his reasons delivered on 23 February 2023 (summarised at [143] of these reasons below). The absence of reasons by the primary judge for the costs orders are discussed later in these reasons and is not fatal.
There is no merit in these grounds.
Adequacy of reasons dated 13 February 2023 (Ground 8 of the wife’s Summary of Argument)
The primary judge’s reasons for judgment for the orders made on 13 February 2023 were delivered ex tempore. They were brief, comprising 12 paragraphs. The brevity of the reasons is not of itself determinative.
Whether or not reasons are adequate will depend on the circumstances of the case and the matters in issue.[59] However, “[t]he giving of reasons lies at the heart of the judicial process” and “[f]ailure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and appearance of justice having been done’”.[60] Reasons will be inadequate “if the appeal court is unable to ascertain the reasoning upon which the decision is based or justice is not seen to have been done”.[61]
[59] Bennett and Bennett (1991) FLC 92-191.
[60] Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]; see also Rigby & Olsen [2021] FedCFamC1A 46 at [38].
[61] Bennett and Bennett (1991) FLC 92-191 at 78,266 (citing Sun Alliance Ltd v Massoud (1989) VR 8 at 18).
In relation to the orders directed to or affecting the wife and/or D Pty Ltd (Orders 1, 2, 3, 4, 5, 6, 7, 8 and 9), the primary judge briefly addressed only Orders 1, 2 and 7 specifically of the orders made 13 February 2023. At [10]–[12] the reasons provide:
The application by the [trustee] against the [wife] is, essentially, ancillary relief to the orders that I pronounced last year about the property at [B Street, Suburb C]. There were some consent orders made as well at that time as between the [husband] and the [trustee] which entitled the [trustee] to the sum of money represented by the 139ZQ notice, and which allowed the [trustee] to take action against the property at [B Street, Suburb C].
It is appropriate, in my view, in furtherance of those orders, to make orders 1 and 2 in the draft that has been described in these proceedings as consent orders. They are orders made for the purposes of putting the [trustee] into the position of being able to sell that property and realise the proceeds of its charge. I make orders numbered 1 and 2 of the consent orders at page 809 of exhibit 1.
It is also appropriate that judgment be entered against [D Pty Ltd] in favour of the [trustee] for the amount of the charge. So there will be an order in the same terms as paragraph 7.
The wife submits, among other things, that there were no reasons given for making the order on 13 February 2023, and that the “enforcement orders” were not made “pursuant to the 27 April 2022 judgment”.
While the orders were made in the context of a hearing in default of appearance, that does not, in our view, relieve the primary judge of an obligation to provide reasons which adequately explain why the orders were made.
Other than stating that the relief sought by the trustee was “ancillary relief to the orders … pronounced last year”, the reasons are silent on why the orders against the wife were necessary. Providing “ancillary relief” had a serious consequence for the wife in that she was required to vacate her home within 28 days. The decision involved the exercise of discretion,[62] and as such warranted the provision of some reasons.
[62] Ramsey and Ramsey (1983) FLC 91-301.
Further, the confusion created by the primary judge’s mistaken reference at [10] to “ancillary relief to the orders … pronounced last year” and to “some consent orders made as well” and, the mistaken reference at [11] to “those orders”, no doubt contributed to the wife’s apparent belief that there was an alternative to the sale of B Street, and her decision to request a rehearing. The order made on 27 April 2022 included a notation only, not an order, reflecting an agreement reached at that time between the trustee, the husband and D Pty Ltd, which if executed would have resulted in the payment of the debt by D Pty Ltd to the trustee without the sale of B Street. The order made on 13 February 2023 was by way of enforcement of the s 139ZQ notice, not of the order made on 27 April 2022.
While the primary judge did not provide any reasons for the costs order made against D Pty Ltd, he was not “as a matter of law required to specify the circumstances which justify the making of an order [for costs] … [but] it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised” [63]. The order for costs against D Pty Ltd is readily understandable given that the proceedings brought by the trustee were by way of enforcement against D Pty Ltd for a debt that remains unpaid. As between the trustee and D Pty Ltd a costs order against D Pty Ltd was justified.
[63] Penfold vPenfold (1980) 144 CLR 311 at 316.
The primary judge, also included an order that D Pty Ltd be entitled to an indemnity against the wife. No formal application had been made for such an order and the wife had no notice of it. It arose in the following circumstances:[64]
[64] Transcript 13 February 2023, p.9 line 24 to p.10 line 4.
[King’s Counsel for the trustee]: And I think what we wouldn’t object to, your Honour, is an order similar to a Sanderson-type order where [D Pty Ltd] is ordered to pay our costs of the proceedings, but [D Pty Ltd] is entitled to an indemnity of those costs from the [wife].
[Primary Judge]: Yes.
…
[Primary Judge]: Yes. I can see the sense in that, because [D Pty Ltd] is the debtor.
…
[Primary Judge]: Yes. So the order will be that [D Pty Ltd] pay the [trustee’s] costs of and incidental to these proceedings and a further order that [D Pty Ltd] be entitled to an indemnity in respect of any costs paid, pursuant to the previous order, from the [wife].
The reference to a “Sanderson type order” is one in which a court orders one respondent to pay the costs of another respondent where the conduct of an unsuccessful respondent justifies such an order.[65] The primary judge did not provide any reasons for making the indemnity order in circumstances where the wife had no notice of it.
[65] See Sanderson v Blyth Theatre Co [1903] 2 KB 533; see also Gould v Vaggelas (1985) 157 CLR 215 at 230.
We consider the reasons provided by the primary judge on 13 February 2023, to have been inadequate. However, that finding is not of itself determinative. That is because subsequent to the 13 February 2023 judgment, the wife exercised her right to apply to have the orders set aside, which the Full Court in Lorde & Chu[66] endorsed as the appropriate course before a party appeals against an order made in their absence.
[66] [2014] FamCAFC 228 at [36].
By the time of the hearing of the wife’s application to set aside the order made on 13 February 2023, the wife had notice of the indemnity costs order and had made submissions directed to the costs issues in her affidavit filed on 14 February 2023. The primary judge had regard to that affidavit at [74] of the reasons.
The wife’s application was dismissed on 23 February 2023. A summary of the reasons delivered by the primary judge ex tempore, are set out below:
(a)The orders made on 13 February 2023, in so far as they affected the fourth and fifth respondents, were made by consent (at [10]);
(b)The orders for vacant possession and writ of possession were necessary by way of consequential relief for the trustee to sell B Street because the wife occupies the property (at [15]);
(c)The orders as against D Pty Ltd were by way of default (at [15]);
(d)The orders were not made ex parte. They were made on notice to the wife and D Pty Ltd (at [18]);
(e)In order to succeed in having the orders set aside pursuant to r 10.13(1)(a) of the Rules it is necessary for the wife to demonstrate three things (at [24]):
(i)A reasonable explanation for her failure to appear;
(ii)A reason to think that the orders would be different if there were to be a further hearing;
(iii)There would be no prejudice to a respondent that could not be cured by an order for costs.
(f)The wife had not provided a reasonable explanation for her failure to appear (at [25]–[31], and [50]–[59]);
(g)There was no reason to think that the orders would be different if there were to be a further hearing (at [60]–[75]);
(h)The evidence relied upon by the wife did not support actual bias or apprehended bias by the primary judge (at [35]–[36]);
(i)There was no evidence to support the “outrageous suggestion” of fraud (at [60]);
(j)There was no abuse of process (at [39]-[44]);
(k)There was no basis for the making of an order that the application and balance of the proceedings be heard by another judge or transferred to Sydney (at [37]–[38], and [76]);
(l)There was no basis to make a costs order against the husband or the trustee (at [78]).
The dismissal of the wife’s application to set aside the order made on 13 February 2023 was irresistible for the reasons provided by the primary judge. The wife does not challenge the adequacy of the reasons given on 23 February 2023, and given the wife’s conduct in continuing to resist the inevitable enforcement of the s 139ZQ notice without any proper basis, the costs order including the indemnity order was well within the discretion of the primary judge.
There is no merit in this ground.
No jurisdiction to make the orders (Ground 6 of the wife’s Summary of Argument)
The primary judge, in making the order on 13 February 2023, was exercising this Honourable Court’s original jurisdiction under the Bankruptcy Act,[67] which included the power to make such orders as considered necessary for the purposes of carrying out or giving effect to the Bankruptcy Act.[68] Additionally, the primary judge had jurisdiction pursuant to s 29 of the FCFCOA Act in respect of matters not otherwise within its jurisdiction that are associated with matters in which it does have jurisdiction (e.g. to order the removal of the caveats). Lastly, in the absence of any submissions to the contrary, when making a costs order, the primary judge was exercising jurisdiction pursuant to s 117 of the Family Law Act.
[67] See s 35.
[68] See s 30.
Accordingly, the primary judge had both the jurisdiction and the power to make the order sought by the trustee to enforce the debt of $853,875 created by the s 139ZQ notice, to enforce the power of sale over B Street by requiring the wife to provide vacant possession, to issue a writ of possession if the wife did not vacate, to order the removal of the caveats to facilitate the sale and utilise the proceeds of sale to pay the debt, and to order costs.
There is no merit in this ground.
Apprehended bias (Ground 9 and Ground 12(d) of the wife’s Summary of Argument)
The test in determining an allegation of apprehended bias is whether a fair minded lay observer might reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the issues.[69] It is an objective test. The wife correctly identifies the applicable principles to determine a complaint of apprehended bias, as set out by the High Court in Ebner v Official Trustee in Bankruptcy[70]:
… First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits…
[69] Johnson v Johnson (2000) 201 CLR 488.
[70] (2000) 205 CLR 337 at 345.
While the wife points to particular statements and circumstances set out above at [111(9)] (and accepting for the purposes of argument that the statements were made),[71] the wife fails to articulate any logical connection between the matters about which complaint is made and the “feared deviation from the course of deciding the case on its merits”. As observed by the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng,[72] at 531–532 (per Gleeson CJ and Gummow J, with whom Hayne J agreed):
…The question is not whether a decision maker’s mind is blank; it is whether it is open to persuasion. …
.… The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion…
[71] We have been unable to find any reference in the appeal record to “blistering, purulent sore”. The reference by the primary judge to only accepting what he is told by King’s Counsel for the trustee occurred after the delivery of judgment on 23 February 2023.
[72] (2001) 205 CLR 507.
The wife fails to establish that any of the matters, about which complaint is made, would have caused the hypothetical reasonable lay observer to reasonably apprehend that the judge may not bring an impartial and unprejudiced mind to the resolution of the issues.
There is no merit in these grounds.
Misreported evidence/errors in findings of fact (Ground 10 of the wife’s Summary of Argument)
There is some repetition in this ground and matters already addressed will not be repeated. Suffice to say the wife fails to establish the asserted errors. For example, the wife contends that the primary judge’s finding at [9] of the reasons delivered 13 February 2023 that the wife “has not appeared today” is an error. It is not.
To the extent the wife refers to evidence contained in an affidavit dated 24 March 2023, it is sufficient to note that the affidavit postdates both judgments.
The primary judge was also under no obligation to prefer evidence the wife submits was more favourable to her case so long as there was an adequate evidentiary basis for reaching the conclusions which he did.
There is no merit in this ground.
Failure to consider relevant evidence (Ground 11 of the wife’s Summary of Argument)
There is some repetition in this ground and matters already addressed will not be repeated.
The wife complains that the primary judge did not consider an updated trust deed which replaced D Pty Ltd as the trustee. There is no evidence the purported updated trust deed was before the primary judge.
In any event, in the wife’s application to adjourn the appeal hearing, the wife relied upon a document purporting to be an updated trust deed replacing D Pty Ltd as trustee with the wife and the husband. As already noted earlier in these reasons, the wife is disqualified from being a trustee. If this is the document to which the wife is referring it was invalid.
The relevance of an alleged seven “stolen” properties was not established.
The primary judge paid particular regard to the medical evidence relied upon by the wife at [51]–[59].
There is no merit in this ground.
Failure to consider applicable laws, correct tests and authorities (Ground 12(a) of the wife’s Summary of Argument)
We have been unable to discern what relevant laws, tests and authorities the wife might be referring to, that the primary judge failed to consider.
There is no merit in this ground.
Conclusion – are the decisions attended by sufficient doubt so as to warrant reconsideration?
In our view, for the reasons discussed there is insufficient doubt about the decisions to warrant reconsideration. It is therefore unnecessary to consider the second limb of the test, but in any event we are not satisfied that the wife would suffer a substantial injustice, if leave were refused, supposing the decisions to be wrong.
Leave to appeal will be refused and the appeals dismissed.
COSTS
The husband represents himself and does not seek costs.
The trustee seeks costs of and incidental to the appeal and the hearing of the application for expedition of the appeal in the sum of $41,759.65 for counsel’s fees (including four days preparation) and $3,193.89 for solicitor’s fees. If unsuccessful in the application for the full sum claimed, the trustee invites the Court to fix a sum. It is noted that the trustee engaged King’s Counsel for both the hearing of the application in the appeal (expedition) and for the appeal. In our view, it was not reasonable to retain King’s Counsel in the matter, notwithstanding the same counsel was retained prior to his appointment as King’s Counsel. We would reduce the quantum to reflect junior counsel rates. Given the volume of material comprising the Appeal Book and the tangential nature of the grounds of appeal and Summary of Argument filed by the wife, we consider it reasonable to include the four days preparation as claimed.
If the wife is not successful in her appeals, she nevertheless opposes costs being awarded against her. If a costs order is made, the wife submits an appropriate quantum is $24,000.
The wife has been wholly unsuccessful and a costs order is appropriate but not in the sum claimed. Taking into account the reduced fees for junior counsel we consider costs in favour of the trustee should be awarded in the fixed sum of $24,000.
I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Carew & Riethmuller. Associate:
Dated: 24 August 2023
SCHEDULE OF PARTIES
NAA 52 of 2023
NAA 66 of 2023
BRC 8518 of 2020Respondents
Fourth Respondent:
MS PP SAHA
Fifth Respondent:
MR L
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