Sfakianakis & Sfakianakis
[2018] FamCAFC 185
•21 September 2018
FAMILY COURT OF AUSTRALIA
| SFAKIANAKIS & SFAKIANAKIS | [2018] FamCAFC 185 |
| FAMILY LAW – APPEAL – PROPERTY – Where the husband on appeal abandoned two of the four grounds – Where the trial judge determined it was “just and equitable” to make orders equally distributing the parties’ property and superannuation – Where the husband contended the trial judge erred in his application of s 79(2) of the Act by determining it was just and equitable to make property adjustment orders in response to the wife’s application – Where the husband alleged the wife’s deceit and failure to comply with her disclosure obligations rendered it just and equitable for only his application for property adjustment orders to be entertained – Where no error established – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where appeal is wholly unsuccessful – Where the respondent’s application for costs is deferred with written submissions to be filed. |
| Evidence Act 1995 (Cth) s 191 Family Law Act 1975 (Cth) ss 75(2), 79(2), 79(4) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 5(1), 5(4) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) ss 5(1), 5(4) |
| Bevan v Bevan (2013) 49 Fam LR 387; [2013] FamCAFC 116 Carroll v United Super Pty Ltd [2018] NSWSC 403 Cole & Abati (2016) FLC 93-705; [2016] FamCAFC 78 Crick & Bennett (2018) FLC 93-832; [2018] FamCAFC 68 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345; [1997] HCA 33 Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9 Henry v Henry (1996) 185 CLR 571; [1996] HCA 51 Hickey and Hickey (2003) FLC 93-143; [2003] FamCA 395 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4 O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1978) 139 CLR 231; [1978] HCA 8 Sharpless v McKibbin (2008) DFC 95-414; [2007] NSWSC 1498 Strahan & Strahan (Interim Property Orders) (2009) FLC 93-466; [2009] FamCAFC 166 Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35 Teo & Guan (2015) FLC 93-653; [2015] FamCAFC 94 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 |
| APPELLANT: | Mr Sfakianakis |
| RESPONDENT: | Mrs Sfakianakis |
| FILE NUMBER: | SYC | 4232 | of | 2015 |
| APPEAL NUMBER: | EAA | 21 | of | 2018 |
| DATE DELIVERED: | 21 September 2018 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge, Watts & Austin JJ |
| HEARING DATE: | 16 August 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 December 2017 |
| LOWER COURT MNC: | [2017] FamCA 1103 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Angyal SC |
| SOLICITOR FOR THE APPELLANT: | HAL Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Nagle with Mr Guy |
| SOLICITOR FOR THE RESPONDENT: | McNally Jones Staff Lawyers |
Orders
The appeal is dismissed.
Within 14 days hereof, the respondent shall:
(a)Notify the appellant and any other relevant person in writing of the nature of the costs orders she intends to seek against him or them; and
(b)Notify the Appeals Registrar in writing of her compliance with Order 2(a).
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sfakianakis & Sfakianakis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 21 of 2018
File Number: SYC 4232 of 2015
| Mr Sfakianakis |
Appellant
And
| Mrs Sfakianakis |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed on 14 February 2018, the appellant husband appeals against the property settlement orders made under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) between him and the respondent wife by Johnston J on 22 December 2017.
Leave was granted on 13 February 2018 for the appeal to be filed out of time, the delay having been due to the intervening Christmas period.
Although the Notice of Appeal contained four grounds, at the commencement of the appeal several things happened: two of the four grounds were abandoned; leave was given to amend one of the remaining two grounds, but not in a way which changed its basic premise; and the husband produced an entirely new written summary of argument, which he was permitted to substitute for the original summary of argument, but confined in such a way as to only permit it to address the amended grounds of appeal.
Given the trial judge’s findings about the extent of the parties’ existing property interests, to which there was no challenge, the husband’s share constituted 67.4 per cent of the net assets available for distribution between them and the wife’s share constituted 32.6 per cent. At trial, the husband submitted for the parties’ property interests to be adjusted by the wife’s transfer to him of her one-half interest in a parcel of real property, which would have substantially inflated his percentage share of the property and commensurately decreased the wife’s. The trial judge instead ordered that their property and superannuation be divided in equal shares.
Even though the husband argued for the trial judge to adjust the parties’ property interests in the manner he proposed, he contended it was not just and equitable for the trial judge to have made any property adjustment order at all in response to the wife’s application. He contended her moral obliquity either precluded or militated against the trial judge’s exercise of power under the Act in her favour.
The appeal should be dismissed for the following reasons.
Background
The trial judge’s factual findings were not challenged and so the relevant history may be safely drawn from his Honour’s reasons.
At the time of trial, the parties were aged 67 and 65 years respectively.
They commenced cohabitation in 1980 and married in 1981. The husband had two children from a former marriage (“Ms D” and “Mr E”). They were brought up within the parties’ marriage because the husband’s first wife died in 1981. The parties had their own child (“Mr F”) in 1983.
In 1981, the husband bought a property in suburban Sydney (“2 B Street”), which the parties occupied as the family home. The husband enjoyed legal title in the property, but he held it beneficially for himself as to one-half and on trust for Ms D and Mr E as to the other one-half. Much later, in 1998, the trust was dissolved and the parties paid $130,000 to Ms D and Mr E for the husband to acquire their one-half interest in the property.
In 2004, the parties bought another property in close proximity to 2 B Street, in respect of which they acquired legal and beneficial title as joint tenants. The property was acquired by a credit union loan, secured by mortgage registered over it. The property was initially rented, but it was later re-developed by the parties into two duplexes and then sub-divided (“Duplex A” and “Duplex B”). The re-development costs were funded by a bank loan, obtained in 2005, secured by mortgage over 2 B Street. When the redevelopment was complete, both Duplex A and Duplex B were rented.
In 2011, Duplex B was sold and the net sale proceeds were deposited to a joint mortgage off-set account, which constituted some of the cash reserves the parties divided between them following their separation some years later. The parties kept Duplex A and it was later occupied by Mr F and his family.
The parties separated in September 2014 and, for about six months, the wife lived at Duplex A with Mr F and his family. The husband remained in occupation of 2 B Street.
In October 2014, the parties entered into written agreement about the division of their property interests but, given it was not a binding financial agreement within the terms of the Act, it did not oust the Court’s jurisdiction to entertain the wife’s property settlement application filed in June 2015.
In March 2015, the husband commenced proceedings in the Supreme Court of New South Wales (“the Supreme Court”) against the wife and other defendants alleging fraud and negligence in relation to the mortgage he discovered was registered over 2 B Street. He alleged in those proceedings that the wife fraudulently procured the mortgage by forging his signature upon it but, in the family law proceedings, it was finally conceded the signature on the mortgage purporting to be his was in fact his.
The Supreme Court proceedings were summarily dismissed against two of the four defendants in mid-2017 and then, in September 2017, the husband was ordered to pay the costs of the two successful defendants. The husband later discontinued the Supreme Court proceedings against a third defendant. The wife is the sole remaining defendant and we were informed by counsel on the appeal that the Supreme Court proceedings are still pending between the spouses.
In the proceedings before the trial judge, despite the husband resiling from the forgery allegation, it was found the wife procured the husband’s signature upon the mortgage by deception (at [61], [75], [94]). She did so in order to give the bank security for the loan she borrowed to fund the re-development of Duplex A and Duplex B. The husband believed the parties had sufficient savings to cover the re-development costs but the wife used those savings to meet the extortion demands made by criminals to avoid Mr F being killed or injured, about which the husband knew nothing. The truth of the wife’s expenditure of the parties’ savings on the extortionists’ demands was contested at trial, but the trial judge accepted her evidence as genuine (at [71]-[89], [142]). Having spent their savings in that way, the wife then borrowed the money needed to re-develop Duplex A and Duplex B.
The trial judge concluded the husband should bear the costs of the defendants against whom his suit in the Supreme Court was summarily dismissed and so his liability for those costs was not taken into account by the trial judge as part of the parties’ liabilities, other than under s 75(2)(o) of the Act (at [98]-[100], [113]). The credit union and bank loans, secured respectively by mortgages over Duplex A and 2 B Street, were taken into account by the trial judge as the parties’ joint liabilities (at [110]-[112]).
The trial judge assessed the parties’ contributions as equal (at [131]), with which assessment the husband and wife both agreed (at [129]-[130]). The trial judge concluded no adjustment under s 75(2) of the Act was warranted (at [140]).
The equal division of property between the parties necessitated the husband’s payment to the wife of $588,726 so as to permit his acquisition of sole legal title to both 2 B Street and Duplex A, which he desired, and for each party to otherwise retain their personal property and superannuation (at [144]-[153]).
Grounds of Appeal
Once leave was granted to amend the grounds of appeal, the remaining grounds provided as follows:
1.The [C]ourt erred in finding that it was just and equitable, in all the circumstances, that any order by way of property adjustment be made in relation to the Wife’s Application where throughout the proceedings, the Wife had failed to comply with her disclosure obligations.
[Particulars omitted]
2.[abandoned]
3.The Court erred in finding that it was just and equitable in all the circumstances that an order by way of property adjustment be made, where the filing of the Wife’s Application was deception on a promise, supported by consideration and [an agreement signed by the parties], that she would not bring such a claim.
4.[abandoned]
The husband’s original summary of argument bore no correlation to the pleaded grounds of appeal and was instead a discursive exposition about the intersection between morality, law and equity. The husband’s revised summary of argument refined his propositions somewhat, but still required some divination.
Given the construct of the remaining grounds and the way in which they were eventually orally argued, the gravamen of the husband’s complaint about the trial judge’s order was capable of encapsulation in the following proposition: it was not just and equitable for any property settlement order to be made on the wife’s application (as distinct from on the husband’s application) because of one or both of the following facts:
(a)The wife deceitfully failed to disclose to him the existence of the mortgage registered over 2 B Street to secure the Bank loan which was raised and used to re-develop Duplex A and Duplex B; and
(b)The parties voluntarily resolved their financial affairs by the implementation of their written agreement made in October 2014.
Rather than addressing the remaining grounds of appeal discretely, the appeal is best approached by revelation of the fallacies which underpin it.
One exercise of power
The erroneous premise of the appeal was that the trial judge was obliged to exercise jurisdiction and power under Part VIII of the Act twice – once in respect of the wife’s application for property settlement, as set out in her Initiating Application (filed in June 2015), and again in respect of the husband’s application for property settlement, as set out in his Further Amended Response (filed in September 2017).
In fact, once the parties joined issue under Part VIII of the Act, the trial judge was obliged to consider and then simultaneously determine their respective applications. There was and could only have been one single exercise of power, which power was exhausted once exercised. That fundamental proposition is well entrenched (see Mullane v Mullane (1983) 158 CLR 436 at 440; Hickey and Hickey (2003) FLC 93-143 at [40]-[48]; Strahan & Strahan (Interim Property Orders) (2009) FLC 93-466 at [108]-[113]).
The determination under s 79(2) of the Act about whether it is just and equitable to adjust the parties’ property interests did not have to be and, indeed, could not have been separately determined in respect of each party’s application. Once the s 79(2) inquiry was answered affirmatively, the trial judge was obliged to exercise his discretion by adjusting the parties’ property interests in a just and equitable way, regardless of whether the orders reflected those proposed by either party.
The husband’s submission that the trial judge correctly concluded it was just and equitable to make a property adjustment order in response to his application, but erred by finding it was just and equitable to either entertain or make any property adjustment order in response to the wife’s application is rejected. The submission offends authority.
At trial, the husband pressed for a property adjustment order to be made in accordance with a portion of his application set out within his Further Amended Response, which implicitly entailed his admission under s 79(2) of the Act that it would be just and equitable to make some form of property adjustment between the parties. The husband’s s 79(2) concession could not be confined to only his application. Once made, it applied equally to the wife’s application.
Even when the reality was impressed upon the husband during the appeal that, at trial, both parties conceded under s 79(2) of the Act it would be just and equitable for a property adjustment order to be made between them, he sought to argue the trial judge failed to exercise his own judgment under s 79(2) and therefore erred at law, but that submission is also rejected as inaccurate. The trial judge still had to turn his mind to the inquiry under s 79(2) of the Act notwithstanding the parties’ concurrence that the sub-section’s requirement was fulfilled (see Bevan v Bevan (2013) 49 Fam LR 387 at [82] (“Bevan”)) but, since the issue was not controversial, comparatively little evidence needed to be canvassed and the reasons could permissibly deal with the point in short compass (see Stanford v Stanford (2012) 247 CLR 108 at [42] (“Stanford”); Harris v Caladine (1991) 172 CLR 84 at 96, 103-104, 124).
In dealing with the issue under s 79(2) of the Act, the trial judge observed:
117.In the present case, the parties cohabited for more than 34 years. They purchased the properties for the benefit of themselves and their family, including in the case of [2 B Street] to live in as a family home. They no longer do this.
118.If the Court was not to make an order under s 79, not only would the serious longstanding issues between the parties remain unresolved, but it would be most unfair to the wife.
119.In these circumstances, in my view it would be just and equitable to make an order under s 79 of the Act.
The short reasons given by the trial judge explaining why the s 79(2) inquiry was answered affirmatively were, in the circumstances, quite sufficient. The trial judge only needed to quell the dispute within the boundaries constructed by the parties. A dissertation was not required.
The wife’s deceit
At the trial, the husband denied he signed the mortgage registered over 2 B Street during cross-examination, but during re-examination he conceded he possibly did sign it. Regardless of his prevarication, he was bound by his counsel’s formal admission that he signed the mortgage, in which event it was not a forgery. Once that admission of fact was made, the husband could not resile from it without leave (s 191 of the Evidence Act 1995 (Cth)), which was neither sought nor given. Nevertheless, although not a forgery, the trial judge found the wife deceitfully procured the husband’s signature upon the mortgage. She did so to hide from him the fact she spent their savings and therefore needed to borrow money from the Bank to fund the re-development of Duplex A and Duplex B.
The trial judge found the money she borrowed from the Bank was put to good use by funding the re-development (at [143]), in which event both parties benefited from the expenditure. The husband did not contest that finding of fact. He could not have, because the same finding was earlier made in the Supreme Court proceedings between them. The wife made all the loan repayments so the Bank would not foreclose on the loan and the husband would not discover it.
The wife’s deceit was therefore of no consequence. She did not squander the parties’ savings. She was found, on the balance of probabilities, to have spent the money satisfying the extortion demands. The money she then borrowed to replace it was used for the parties’ mutual benefit, so the trial judge’s treatment of the Bank loan as the parties’ joint liability was quite unremarkable.
The husband’s contention (in Ground 1) that the trial judge erred by finding it was just and equitable for any order to be made in relation to the wife’s application on account of her failure to disclose the loan secured by mortgage over 2 B Street, cannot be sustained. Once it was correctly found to be just and equitable to make a property adjustment order between the parties, the discretionary power under s 79(4) of the Act was enlivened. The wife’s deceit about the existence of the Bank loan was a feature of the evidence which could conceivably influence the nature of the property adjustment order actually made but, given the unchallenged findings about how the wife did not waste funds and the husband received as much benefit as the wife from the borrowed funds, it was not an error by the trial judge to treat the loan as a joint liability.
The husband asserted the wife did not come before the trial judge with “clean hands”, but that submission did not assist his appeal. Facts which would engage equitable principles in equity proceedings may also be facts which influence the exercise of discretion in proceedings for statutory relief, but equitable maxims themselves are not dispositive of claims for statutory relief (see Crick & Bennett (2018) FLC 93-832 at [92]-[96]; Carroll v United Super Pty Ltd [2018] NSWSC 403 at [114]; Sharpless v McKibbin (2008) DFC 95-414 at [96]).
The husband contended the wife’s deceit in relation to the Bank loan constituted a tortious cause of action in his hands – being his asset and the wife’s liability – which was a material factor not taken into account by the trial judge and therefore an error of law, but there are two answers to his assertion of such error.
First, the argument falls outside the two remaining grounds of appeal, both of which directed themselves to asserted error in application of s 79(2) of the Act. We apprehended the argument was instead directed to an asserted error made by the trial judge as to the nature of the property adjustment order following application of s 79(4) of the Act, which is a complaint of a quite different nature. The husband can have no complaint about being confined to the grounds of his appeal, given their belated amendment and the substantial revision of his written summary of argument.
Second, the Supreme Court litigation being conducted by the husband against the wife in parallel to the family law proceedings is still pending. The husband was entitled to sue the wife at common law because s 119 of the Act permits civil suits in contract and tort between spouses. However, the husband chose to contest the proceedings for property adjustment relief before the trial judge without recourse to the Supreme Court proceedings and the wife acquiesced, though the husband’s counsel acknowledged during final submissions the correctness of the trial judge’s plaintive remarks that the dispute before the Supreme Court could have been subsumed within or joined to the family law proceedings. So far as the trial judge was informed, the husband sued the wife in the Supreme Court for “fraud” (at [95]). The husband made a point in the appeal of distinguishing “deceit” from “fraud”, but the subject matter of the Supreme Court proceedings is the Bank loan procured by the wife and secured by mortgage over 2 B Street, without his knowledge, which allegedly gives rise to his entitlement to damages measured by the amount of the Bank loan.
If the tort of “deceit” is not already, and was not intended to be, encompassed within the existing pleadings in the Supreme Court litigation, then the husband must have chosen to reserve his allegation of the wife’s “fraud” for the Supreme Court proceedings, but to incorporate his allegation of the wife’s “deceit” in the property adjustment proceedings; a distinction which he failed to make before the trial judge. Neither the trial judge nor the wife were on notice that he asserted his unpleaded cause of action against the wife in deceit was a chose in action which should have been taken into account as “property” in the adjustment process under the Act. His omission to inform them is not simply now cured by conveniently describing it as a point of law which he can, therefore, raise on appeal without prejudice (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1978) 139 CLR 231 at 241; O’Brien v Komesaroff (1982) 150 CLR 310 at 319; Metwally v University of Wollongong (1985) 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7; Water Board v Moustakas (1988) 180 CLR 491 at 497).
If forewarned of that proposition at trial, the wife could have taken steps to remedy the situation so she was not meeting tortious claims in two different jurisdictions. She could have applied to remove the Supreme Court proceedings into the Family Court or the family law proceedings into the Supreme Court (see ss 5(1) and 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)); she could have sought an order from the trial judge staying the property adjustment proceedings until the Supreme Court litigation was completed (see CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345 at 390 (“CSR Ltd v Cigna”); Henry v Henry (1996) 185 CLR 571 at 586-589, 592-593; Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 554-557); or she could have applied to the trial judge for an anti-suit injunction restraining the husband from separately prosecuting the Supreme Court claim (see CSR Ltd v Cigna at 389-394; Cole & Abati (2016) FLC 93-705 at [34]-[37], [63]-[67]; Teo & Guan (2015) FLC 93-653 at [47]-[68], [86]-[100], [105]). She was deprived of those alternatives by the husband’s conduct in raising the matter, for the first time, on appeal. She had no need to resort to those alternatives at trial when she reasonably understood the husband’s claims in tort against her were quarantined within the Supreme Court litigation and she was content to defend them there.
If, on the other hand, the tort of deceit is already encompassed by the husband’s pleading against the wife in the Supreme Court proceedings then he consciously chose to conduct that cause of action separately from the property adjustment proceedings and he cannot now complain on appeal the trial judge was in error by not considering it.
The parties’ 2014 agreement
In October 2014, shortly after the parties separated, they reached agreement about how they would divide their property. The agreement was reduced to writing and signed by both parties. In essence, it provided for the husband to live at 2 B Street (but for the parties to share equally in the net proceeds if sold), the wife to live at Duplex A (but for the parties to share equally in the net proceeds if sold), the relatively equal division of their cash reserves, and no further adjustments between them. They acted upon the agreement by dividing their cash. The husband remained in occupation of 2 B Street, but the wife vacated Duplex A after their agreement was struck.
The husband conceded the agreement made in October 2014 did not comply with the provisions of the Act concerning binding financial agreements (Part VIIIA). He therefore did not, because he could not, contend that the existence of jurisdiction was ousted by the agreement or that the exercise of power was constrained (as distinct from influenced) by the agreement.
However, he contended on appeal:
…[the agreement] was relevant in multiple ways to the parties’ asset position and to the “just and equitable” threshold in s. 79(2) [of the Act], none of which the Trial Judge took into account.
…
The Court’s deference to the parties’ agreement does not evaporate because the parties are no longer living together…the Trial Judge had to give weight to the parties’ written agreement.
(Original emphasis)
The husband asserted the trial judge gave no weight to the agreement, which he contended was an error of law, since his Honour said of the agreement:
55.…In my view, nothing turns on this agreement, its relevance being part of the history of the parties’ relationship only.
Contrary to the husband’s submission, the trial judge was aware of how the parties’ partial performance of their agreement affected their “asset position”. The trial judge acknowledged $225,000 was distributed to the wife and $259,668 to the husband from their cash reserves and so sums approximating those figures were notionally added back as part of the parties’ property (at [55], [110]). Those sums were then taken into account in the adjustment of their property interests (at [144]-[151]), having regard to their equal contributions and the absence of need for any adjustment under s 75(2) of the Act (at [131], [140]).
So far as the agreement was said to influence the determination under s 79(2) of the Act in some different way, the husband failed to elucidate how. Merely asserting it should have been given more weight than it was falls well short of explaining how it should have led to a different outcome. Although the husband conceded the agreement did not oust the Court’s jurisdiction to entertain the wife’s application for relief under Part VIII of the Act, in effect, he sought to obtain the same result by another path. He sought to use the agreement to thwart the determination under s 79(2) of the Act that it would be just and equitable to adjust the parties’ property interests (but only in relation to the wife’s application, not his own). Rather prosaically, he submitted the parties would have been bound by the agreement, but for the fact they were not. Inferentially, he was contending the parties should have been bound by the agreement even though they were not.
The existence of the parties’ agreement and their partial performance of it was relevant to the question whether it would be just and equitable to adjust their property interests because it reflected their concurrence about how their assets would be used and divided following their separation (see Stanford at [41]; Bevan at [120]-[121]), but the agreement did not require, as the husband contended, the trial judge to find it would not be just and equitable to make any property adjustment orders between the parties. As already noted, the trial judge took into account the formation and partial performance of the agreement but, in view of their existing unequal property interests and their respective equal contributions over a marriage of longer than 34 years, concluded it would be just and equitable to make property adjustment orders.
Several incontrovertible facts exposed the error of the husband’s submissions.
The husband actually asked the trial judge to adjust the parties’ property interests. He sought an order which would compel the wife to transfer to him her one-half share in Duplex A and, orally in final submissions, another order that the wife indemnify him against the mortgage secured over 2 B Street. Since orders to that effect were contrary to the terms of the parties’ agreement, he must not have felt bound by the agreement. Contending they were not bound by the agreement at trial, but contending on appeal they ought to have been bound by it, was a paradox the husband could not rationally explain.
If the husband’s appeal submission is confined to the trial judge’s miscarriage of discretion on account of the failure to take into account or attribute greater weight to the effect of the parties’ agreement, that too is contrary to the case he conducted at trial. He there conceded the parties’ contributions should be regarded as equal, with which submission the trial judge agreed and so an order was made to reflect that finding, which order took into account their division of cash and their existing interests in real and personal property. However, the property adjustment order the husband sought at trial did not reflect his concession of equal contributions. He wanted far more than an equal share of the parties’ net assets. He wanted to retain exclusive title in 2 B Street, free of its encumbrance, and to acquire exclusive title in Duplex A, presumably subject to its encumbrance. No rational explanation, either at trial or on appeal, could be advanced by the husband for the inconsistency between his admission and his final application.
Orders and costs
For these reasons we find no merit in either ground of appeal and the appeal will be dismissed.
The wife sought that the question of costs be deferred until after the appeal is determined, which course is taken. The wife implied that, if the appeal is dismissed, she might seek an order for more than party/party costs and perhaps also against the husband’s lawyers. We could not deal with the issue of costs by way of written submissions if the husband’s lawyers, understandably, need to consider the question of their independent representation to refute any such application.
The orders, therefore, require the wife to promptly give written notice to the husband and any other interested persons of the costs orders she intends to seek against him or them and to confirm with the Appeals Registrar her compliance with that order. Thereafter, subject to need, the Appeals Registrar can make directions for the filing of evidence and submissions and for the matter to be re-listed before us.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Watts & Austin JJ) delivered on 21 September 2018.
Associate:
Date: 21 September 2018
4
18
4