Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Sartini & Riaz [2022] FedCFamC1A 164
Appeal from: Sartini & Riaz [2022] FedCFamC2F 324 Appeal number(s): NAA 76 of 2022 File number(s): SYC 5674 of 2017 Judgment of: ALDRIDGE J Date of judgment: 11 October 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appeal challenges an order permitting the respondent to retain the home – Where those orders provided that if the respondent paid a fixed sum to the appellant, she would be required to transfer her interest in the home to him – Where the appellant contends that the respondent abandoned his claim to retain the home in his written submissions – Where the home had increased markedly in value from its earlier agreed value and the appellant contends that the respondent received all the benefit of the increase in value – Where the change of the value of the home did not establish error –
Considerations taken into account – Procedural fairness – Where the primary judge failed to afford procedural fairness to the appellant by making the order that the respondent retain the home without providing notice to the appellant of that order being made – Appeal allowed – Relevant orders set aside – Parties to file minute of order in respect of the amendments to be made to the order requiring the sale of the property – Respondent to pay the appellant’s costs in a fixed sum.Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Halstron & Halstron [2022] FedCFamC1A 65
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Noetel and Quealey (2005) FLC 93-230; [2005] FamCA 677
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Tiley and Tiley (1980) FLC 90-898; [1980] FamCA 73
Number of paragraphs: 76 Date of hearing: 13 September 2022 Place: Sydney Counsel for the Appellant: Mr Jackson Solicitor for the Appellant: McCabe Partners Counsel for the Respondent: Mr Stapleton Solicitor for the Respondent: Southern Waters Legal ORDERS
NAA 76 of 2022
SYC 5674 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS SARTINI
Appellant
AND: MR RIAZ
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
11 OCTOBER 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 30 June 2022 is dismissed.
2.The Application in an Appeal filed on 28 July 2022 is dismissed.
3.The appeal is allowed.
4.Orders 15 and 16 made on 23 March 2022 are set aside.
5.If the parties cannot agree on a minute of order in respect of the amendments to Order 17 made on 23 March 2022, then the parties are to file and serve a minute of order on or before 26 October 2022.
6.The consideration…
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- AGLC
- Sartini & Riaz [2022] FedCFamC1A 164
- Case
- [2022] FedCFamC1A 164
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CaseChat Overview and Summary
In the matter of Sartini & Riaz, the appeal was heard by the court, which considered the dispute between the parties over the sale of a property. The primary judge had made orders for the respondent to retain the property, which the appellant contested. The appeal focused on whether the primary judge’s orders were erroneous and whether further evidence could be presented to challenge these orders.
The court was required to determine whether the primary judge's orders were erroneous and if additional evidence could be introduced in the appeal. Specifically, the court needed to assess whether the orders for the respondent to retain the property were incorrect and if the evidence presented after the primary judge’s decision could be considered. The court also had to decide on the implications of the orders made and the subsequent payments made by the respondent to the appellant.
The court found that the primary judge had made an order that was no longer sought by either party and was material in nature. Despite the respondent's evidence that he never intended to abandon his claim to retain the property, the court held that his subjective intention was irrelevant. The court concluded that the orders for the respondent to retain the property were erroneous and set aside those orders. The court dismissed the applications to adduce further evidence in the appeal, finding that the injustice of the orders could not be remedied by post-decision conduct. The appeal was allowed, and the court set aside the orders for the respondent to retain the property and required its immediate sale. Costs of $16,000 were awarded to the appellant.
The court was required to determine whether the primary judge's orders were erroneous and if additional evidence could be introduced in the appeal. Specifically, the court needed to assess whether the orders for the respondent to retain the property were incorrect and if the evidence presented after the primary judge’s decision could be considered. The court also had to decide on the implications of the orders made and the subsequent payments made by the respondent to the appellant.
The court found that the primary judge had made an order that was no longer sought by either party and was material in nature. Despite the respondent's evidence that he never intended to abandon his claim to retain the property, the court held that his subjective intention was irrelevant. The court concluded that the orders for the respondent to retain the property were erroneous and set aside those orders. The court dismissed the applications to adduce further evidence in the appeal, finding that the injustice of the orders could not be remedied by post-decision conduct. The appeal was allowed, and the court set aside the orders for the respondent to retain the property and required its immediate sale. Costs of $16,000 were awarded to the appellant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
This ground does not succeed. Application to adduce further evidence The error that I have found is that the primary judge made an order that was no longer sought by either party and which, having regard to the nature of the order, was material. That did not depend on the change in value of the property. Indeed, as explained earlier, evidence of change in value is not, of itself, evidence of error. The respondent’s evidence was that he never had the intention to abandon his claim to retain the property and that he has taken extensive steps to raise the funds to do so since the order was made. His subjective intention cannot be relevant to the objective intention he indicated to the primary judge. His conduct after the reasons cannot overcome the injustice of the order. The applications to adduce evidence in the appeal will be dismissed.Conclusion The appeal will be allowed. The appropriate orders to set aside are Orders 15 and 16, which provide for the respondent to retain the home and to amend the introduction to Order 17 to require its immediate sale. The parties agreed that since the date of the orders, the respondent has paid the appellant $654,443.15 pursuant to his Honour’s orders. That will need to be repaid from the proceeds of sale prior to their division. The parties may be able to agree on a different course or seek appropriate variations to the above orders. I shall therefore set aside Orders 15 and 16 made by the primary judge and stand the consideration of the appropriate amendments to Order 17 on 28 October 2022. If the parties cannot agree on a short minute of order that reflects the above finding, then each party is to file and serve their proposed minute on or before 26 October 2022.Costs The appeal has been wholly successful. The respondent will pay the appellant’s costs fixed in the sum of $16,000 within 28 days.
Decision
Reasons for decision
The applications to adduce evidence in the appeal will be dismissed.Conclusion The appeal will be allowed. The appropriate orders to set aside are Orders 15 and 16, which provide for the respondent to retain the home and to amend the introduction to Order 17 to require its immediate sale. The parties agreed that since the date of the orders, the respondent has paid the appellant $654,443.15 pursuant to his Honour’s orders. That will need to be repaid from the proceeds of sale prior to their division. The parties may be able to agree on a different course or seek appropriate variations to the above orders. I shall therefore set aside Orders 15 and 16 made by the primary judge and stand the consideration of the appropriate amendments to Order 17 on 28 October 2022. If the parties cannot agree on a short minute of order that reflects the above finding, then each party is to file and serve their proposed minute on or before 26 October 2022.Costs The appeal has been wholly successful. The respondent will pay the appellant’s costs fixed in the sum of $16,000 within 28 days.
Ratio Decidendi
Legal Principle Established
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