Shepherd v Shepherd

NEW SOUTH WALES COURT OF APPEAL

CITATION: Shepherd v Shepherd [2003] NSWCA 44

FILE NUMBER(S):
40175 of 2002

HEARING DATE(S): 05/03/03

JUDGMENT DATE: 03/04/2003

PARTIES:
Helen Doris Shepherd
v
Thomas James Shepherd

JUDGMENT OF: Meagher JA Sheller JA Beazley JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 757 of 2000; 1338 of 2000

LOWER COURT JUDICIAL OFFICER: Delaney J

COUNSEL:
A: J E Armfield
R: D Pritchard

SOLICITORS:
A: Grech Partners
R: Ian Harper & Co

CATCHWORDS:
Whether Transfer required to be stamped at settlement - description of transferring parties on Transfer - Default of settlement under Property (Relationships) Act 1984 - Extensions of time - Whether time remained of the essence - Application for order under s 39 Property (Relationships) Act 1984 - Award of interest - Discretionary factors.

LEGISLATION CITED:
Property (Relationships) Act 1984
Family Law Act 1975
District Court Act 1973

DECISION:
Appeal upheld; Counsel to bring in short minutes.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40175 OF 2002
MEAGHER JA
SHELLER JA
BEAZLEY JA
Thursday, 3 April 2003

HELEN DORIS SHEPHERD v THOMAS JAMES SHEPHERD

FACTS
The appellant and respondent were wife and husband respectively in a common law marriage. At stake was their erstwhile matrimonial property (of which they were registered proprietors in fee simple as joint tenants), over which there was a mortgage to the Colonial State Bank. The appellant and the respondent sued each other in the District Court (and were in that action plaintiff and respondent respectively).
By the Terms of Settlement (which became an order of the District Court) the appellant was required to pay the respondent the sum of $65,000.00 “on or before 4 p.m. on 25 May 2001”. The respondent was required to do all things and sign all documents necessary to effect the transfer to the appellant of his title as joint tenant in the matrimonial home. Simultaneously, in respect of the mortgage over the property, the appellant was required to do all things and sign all documents necessary to effect the discharge of all liability of the respondent to the Colonial State Bank.
The settlement of the transactions envisaged by the Terms of Settlement did not take place. The history of those abortive transactions, and of the relief sought by the appellant at the trial is fully described in the judgment of Meagher JA hereunder.
HELD per Meagher JA (Sheller and Beazley JJA agreeing)

The tender, by the appellant to the respondent, of a duly prepared but unstamped Transfer was not sufficient justification for the respondent to decline to settle. Stamping may be done before, during, or after settlement.
It was not a proper objection, on the respondent’s part, that the Transfer described both appellant and respondent as transferors. As both were joint tenants, not tenants in common, the respondent did not have a fractional interest to transfer; accordingly, both tenants were necessary transferors. This (and other matters of little significance) could have been cured by emendations of the relevant documents during settlement.
The respondent’s insistence upon the execution of a ‘Discharge Authority’ by all parties to the mortgage should not have been an impediment to settlement. As a matter of logic, it seems unnecessary that a person who wishes to pay a mortgage debt in full should seek an authorisation from either her spouse or her creditor.
By agreeing to constant extensions of time (to effect completion) the parties were not waiving their rights under the Terms of Settlement: cf.Tropical Traders Limited v Goonan (1964) 111 CLR 41 at 53-5 per Kitto J.
HELD per Sheller and Beazley JJA
Where an application is made under s 39(1) of the Property (Relationships) Act 1984, it mattered not that time remained of the essence (as it did). The respondent repudiated the agreement on the day before. That repudiation, together with the respondent’s refusal thereafter to transfer, of themselves entitled the appellant to an order under s 39.
Two impediments stand against an award of interest in the respondent’s favour: (a) while s 83A(1) of the District Court Act enables the Court to order the payment of interest in an action for the recovery of money, the present proceedings were not proceedings for the recovery of money as such, and accordingly, the District Court had no power to make such an order; and (b) in any event, orders for the payment of interest are discretionary and the circumstances of the present case, notably the respondent’s default, do not warrant an exercise of discretion in favour of the respondent.
ORDERS
Appeal upheld;
Counsel to bring in short minutes.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40175 OF 2002
MEAGHER JA
SHELLER JA
BEAZLEY JA
Thursday, 3 April 2003

HELEN DORIS SHEPHERD v THOMAS JAMES SHEPHERD

Judgment

MEAGHER JA: This is a sad example of how a perfectly simple conveyancing transaction can go awry if the parties’ solicitors, and the judge deciding the dispute between them, all conduct themselves with incompetence, an example which may be diverting to some but to the parties involved, who have to bear the inordinate costs thereby generated, must be calamitous.
Mr and Mrs Shepherd were a husband and wife in a “common law marriage”. Their liaison ultimately foundered. They sued each other in the District Court. At stake was the matrimonial home, which was situated at 96 Horace St, Shoal Bay. They were the registered proprietors in fee simple as joint tenants. There was over the property a mortgage to an institution which was then called the Colonial State Bank.
Their litigation in the District Court must have been governed by the Property (Relationships) Act 1984. Notwithstanding, the documents filed by the parties all bore the heading “Family Law Act 1975”, Commonwealth legislation which governs the Family Court of Australia, whose jurisdiction neither party invoked. (In these surreal circumstances, it is hardly surprising that Mr. Shepherd’s solicitors, Ian Harper & Co, masqueraded as “Specialist Family Lawyers”).
The parties compromised their differences by a document entitled “Terms of Settlement”. As might be expected, the document is undated; the Judge refers to it as having been executed on 26 February 2001; in the present case the parties refer to it as having been executed on 28 February 2001. At any rate, it was tendered to the Court, and filed in Court.
His Honour said that he made orders in accordance with the Terms of Settlement. There is no document substantiating this. However, since both parties accept that this is so, this Court should act on the basis that his Honour’s remark is accurate.
Paragraphs 1, 2, 3 and 4 of the Terms of Settlement should be set out. They are as follows:
1.The Plaintiff shall pay to the Defendant the sum of Sixty Five thousand dollars ($65,000.00) on or before 4 pm on 25th May, 20001 (sic).
2.That forthwith and simultaneously upon payment by the Plaintiff in accordance with Order 1:
a)the Defendant shall do all such things and sign all deeds, documents and instruments necessary to transfer to the Plaintiff all his right, title and interest as joint tenant in and to the property situate at and known as 96 Horace Street, Shoal Bay in the State of New South Wales, being all that land contained in the Certificate of Title having computer folio identifier 15/9686 and folio reference 15/E/9686;
b)The Plaintiff shall do all such things and sign all deeds, documents and instruments necessary to discharge all liability of the Defendant to the Colonial State Bank in respect of the mortgage secured over the title of the Shoal Bay property and pending such discharge shall indemnify the Defendant and keep the Defendant indemnified in respect of all liability arising under or in relation to the Mortgage.
3.That in the event that the Plaintiff does not comply with Order 1 in the time prescribed then forthwith thereafter the parties shall do all such things and sign all deeds, documents and instruments necessary to list for sale and sell the Shoal Bay property at a price as agreed between the parties in respect of the property and in default of the agreement for a period in excess of fourteen days at a price fixed to be a fair market value of the property by a valuer jointly appointed by the parties or in default of agreement by them appointed upon application by either of them by the President or other senior office bearer for the time being of the NSW Division of the Australian Institute of Valuers or its successor acting as an expert and not as an arbitrator. Upon completion, the parties shall distribute the proceeds of sale as follows:
a;In payment of any mortgage then secured against the title of the subject property;
b;In payment of real estate agents commission, legal and other costs and disbursements on sale;
c;In payment to EACH OF THE PARTIES of one half of the remaining balance.
4.In the event that the Plaintiff does not make payment in accordance with Order 1 in the time prescribed, but later seeks to make such payment with interest upon such sum as is outstanding from the date of these terms until payment, together with any costs incurred by the Defendant in accordance with Order 3 (such costs and interest being calculated in accordance with the rate prescribed by the District Court Rules) from the date of the orders to the date of payment) then the Defendant may elect to accept such payment in lieu of proceeding to sale in accordance with order 3 and in such event Order 2 hereof shall apply in respect of such payment.
In the Terms of Settlement Mrs Shepherd is referred to as “the Plaintiff” and Mr Shepherd as “the Defendant”.
The settlement of the transactions envisaged by the Terms of Settlement not having taken place, Mrs Shepherd then filed a Notice of Motion under the Property(Relationships) Act 1984 s 39(1) requesting the Court to appoint an officer of the Court to execute a transfer of the property to her. These are the proceedings before Judge Delaney from which Mrs Shepherd now appeals (by leave) to this Court.
To appreciate the Notice of Motion, some background facts ought be noted. Under the Terms of Settlement, payment had to be made by 25 May, and Transfer handed over. That did not take place, although an appointment was arranged for 24 May. A second date was set for 4 June, but settlement did not take place on this date. A third date was set for 8 June, but settlement did not take place on that date either. Then 13 June was decided on. On 13 June Mr Shepherd’s solicitors informed Mrs Shepherd’s solicitors that Mr Shepherd would not settle.
As to why settlement of the transaction did not take place on any of these dates, the position is tolerably clear. On all dates except 13 June, settlement did not take place because Mr Shepherd’s solicitors kept making captious objections. That is not the entire reason; Mrs Shepherd’s solicitors must also bear some responsibility; and, as far as 13 June is concerned, settlement did not take place on that day simply because Mr Shepherd did not want to.
The sole reason why settlement did not take place on 24 May, and a reason why it did not on some other occasions, was that Mr Harper, Mr Shepherd’s solicitor, apparently took the view that a settlement could not in law take place unless the purchaser – and Mrs Shepherd was in the position of a purchaser – tendered for execution to the vendor a Memorandum of Transfer which had already been duly stamped. This is absurd. It is customary for the purchaser to stamp the Memorandum of Transfer, of course; but this may be done before, during, or after, settlement. Miss Chung, the solicitor for Mrs Shepherd, apparently did not realize this; she could have, but did not, insist on settlement with an unstamped Transfer; and, of all things, spent her time reading the Terms of Settlement in order to see whether that document required the Memorandum of Transfer to be stamped. Thus, she could have resisted Mr Harper’s unjustified demand, but was too weak to do so.
I might say that, with the benefit of hindsight, Mr Shepherd’s solicitor in the District Court denied that he ever refused to settle because the Transfer was unstamped. In an affidavit sworn 24 July 2001, para. 7, he states:
“At no time did I refuse to settle on an unstamped Transfer”.
Although (for reasons which must have seemed good to Mrs Shepherd’s solicitors) he was never cross-examined on this assertion, it is belied by his own correspondence. On 28 May 2001 he wrote to Miss Chung a letter which in part reads as follows:
“We note that settlement could not proceed on Thursday 24 May 2001 as indicated in your letter as we have not received a duly stamped Memorandum of Transfer for our client to sign… .
We look forward to receiving a duly stamped transfer as a matter of urgency in order to settle this matter.”
Whilst fault for non-settlement on 24 May, if it is to be attributed to anyone, must be attributed to the irrational attitude of Mr Shepherd’s solicitor on this matter, it must be conceded that Miss Chung was not totally blameless in letting the date slip by. The Memorandum of Transfer tendered by her showed Mrs Shepherd and one of her sons as transferor; despite Mr Shepherd’s solicitor’s view to the contrary, she was entitled to do this, as Mr Shepherd’s obligation to transfer to Mrs Shepherd was really an obligation to transfer to her or at her discretion; however, the inclusion of her son’s name meant that stamp duty liability was incurred which would not otherwise have existed. She therefore welcomed the abandonment of the date. (This problem was ultimately solved by amending the Terms of Settlement).
Other objections taken from time to time, and asserted by Mr Shepherd in this litigation, should now be considered. Three of them may be dealt with briefly. One was that the proposed Memorandum of Transfer described the Transferor as being both Mr Shepherd and Mrs Shepherd, whereas it should be Mr Shepherd alone. This is not a proper objection. As they were joint tenants, not tenants in common, Mr Shepherd did not have a fractional interest to transfer, and both tenants were necessary transferors. The second is that the nature of the holding of the transferors was not stated; that is, whether they were to hold as joint tenants or tenants in common. This is true, and Miss Chung made an error in this respect. However, it is a matter of no significance, as it could have been cured by an amendment of the document during settlement. The third is that the document did not state any consideration for the transfer. The same comments as I have made on the second objection are appropriate for this third objection. I need only add that the fact that Mr Harper resorted to taking points like this makes one wonder quite what objective he was trying to achieve.
There is one other objection he raised from time to time which deserves a further mention. That is a ‘Discharge Authority’ to offer to the outgoing mortgagee. The idea that such a document is necessary in order to discharge a mortgage is ludicrous. By what perversion of logic is it necessary for a person who wishes to pay a mortgage debt in full to seek an authorisation from either his spouse or his creditor? Indeed, on 18 May 2001 Miss Chung’s secretary, Miss Micallef, was told by the Colonial State Bank’s solicitors that no such document was necessary. All this would be crystal clear were it not for the fact that the Commonwealth Bank, which by this time had taken over the Colonial State Bank, by the agency of one “Mark Mavin, Manager”, said in a letter to Mr Harper dated 18 June 2001:
“Prior to the processing of a new Discharge, it is the Commonwealth Bank’s procedure to have a Discharge Authority signed by all parties to the loan.”
Certainly this letter is later than the relevant date (13 June 2001), but one suspects that anyone who espoused such an irrational view on 18 June would have espoused it a week earlier. In any event, it was a view which Miss Chung should have disregarded.
There is only one further matter which Mr Shepherd raised, and that is the absence of any evidence by Mrs Shepherd of her ability to pay the $65,000 on 24 May 2001, or to discharge the mortgage on the same date. This was a matter which was not raised until the application for leave in the present case. It was, in my view, essential for Mrs Shepherd to plead and prove such ability. The Terms of Settlement clearly embodied a sale, Mr Shepherd being the vendor and Mrs Shepherd being the purchaser. What Mrs Shepherd was doing before the Judge was seeking to enforce one term of that sale. However, there was some evidence on the matter, even if that evidence was not extensive. Miss Chung, on Mrs Shepherd’s behalf, asserted at least on one occasion in her correspondence that her client was ready, willing and able to fulfil her obligations under the Terms of Settlement. But, what is perhaps more to the point, neither the Judge nor Mr Shepherd, ever queried Mrs Shepherd’s ability to pay.
I now turn to his Honour’s judgment. His Honour outlined the various procedural complications to which I have already made reference. He then turned to deal with the principal contention advanced on behalf of Mr Shepherd, which was that in the circumstances he was entitled to rely on paragraph 3 of the Terms of Settlement and, in effect, sell the property on the open market. In this regard he made two significant findings of fact. One is:
“These were matters, if they were to be determined, which should have been determined, dealt with and arranged so that settlement could have taken place on 25 May. In my view, the facts and circumstances did not amount to a waiver of term 1. It was required that settlement take place on that date. There was an extension of time granted, but this was not in my view any waiver of the requirement in paragraph 1. Indeed, the mere fact that there was an extension of time granted is not sufficient to amount to a waiver.”
The other is:
“However, when the circumstances arose which are deposed to in paragraph 15 of Mr Harper’s affidavit, and the subsequent events took place taking the time for resolution outside to almost a period of one month thereafter, (in the circumstances deposed in paragraph 24 of Mr Harper’s affidavit). It seems to me that the time in which extension was given had expired, and that the requirements and requests of the applicant were outside the extension granted by the respondent.”
The former conclusion seems to me well justified. By agreeing to constant extensions of time to complete the parties were not waiving their rights under the Terms of Settlement: cfTropical Traders Limited v Goonan (1964) 111 CLR 41 at 53-5 per Kitto J. The latter conclusion poses more problems. In the first place, it is hardly consistent with the former conclusion. In the second place, it is hardly accurate to say that Mrs Shepherd was, as at 18 June 2001, in default of her obligations. She was desperately, if incompetently, endeavouring to fulfil them, but being frustrated at every turn by her husband.
In my view the appeal should be upheld.
Counsel should bring in short minutes.
SHELLER and BEAZLEY JJA: The judgment of Meagher JA chronicles the events that have led to this appeal. For present purposes, we do not think it necessary to do more than point to some of those events. The terms of settlement which became an order of the District Court required the appellant, Helen Doris Shepherd, to pay to the respondent, Thomas James Shepherd, the sum of $65,000 “on or before 4 pm on 25 May 2001”. Simultaneously with that payment, the respondent was required to do all things and sign all documents necessary to transfer to the appellant his title as joint tenant in the property, 96 Horace Street, Shoal Bay. Simultaneously, the appellant was required to do all things and sign all documents necessary to discharge all liability of the respondent to the Colonial State Bank in respect of the mortgage over the property.

Clause 3 of the deed of settlement provided that in the event that the appellant did not comply with order 1, that is to say, pay the sum of $65,000 to the respondent at or before the time mentioned, the parties should do all things and sign all documents necessary to list the property for sale at a price agreed between them or in default at a fair market value fixed by a valuer. Clause 3 provided for the distribution of the proceeds of sale. Clause 4 is important. It provided that in the event that the appellant did not make the payment in accordance with order 1 in the time prescribed, but later sought to make such payment with interest from the date of “these terms” until payment together with costs, the respondent might elect to accept such payment in lieu of proceeding to sale in accordance with order 3. Order 2 was to apply in respect of such payment.
For reasons that are set out in Meagher JA’s judgment, the appellant did not make the payment at or before the time prescribed in order 1. However, no steps were taken to list the property for sale. Rather, other dates were fixed for settlement, 4 June and 8 June and finally 13 June. That last date was fixed at the request of the respondent’s solicitor. On 12 June the respondent’s solicitor told the appellant’s solicitor that his client no longer wanted to settle and wanted the property sold. On 14 June the respondent’s solicitor asserted a default by the appellant in making payment in accordance with order 1. On 20 June the appellant’s solicitor wrote to the respondent’s solicitor indicating that the appellant was ready, willing and able to settle.
On 12 July 2001 the appellant made an application under s39 of the Property (Relationships) Act 1984. That Act makes provision with respect to the rights and obligations of persons in certain domestic relationships and is applicable in this case because the appellant and the respondent had been for many years in a de facto relationship within the meaning of s4 of the Act. Part 3 of the Act concerns proceedings for financial adjustment including adjustment of interest with respect to property (Div 2). Division 4, which is headed “General”, includes s38, which empowers the Court to make orders of the type here in question and s39, under which this application was made. The jurisdiction of the District Court to hear such matters is grounded in s134 of the District Court Act 1973. The order of the District Court, made in accordance with the terms of settlement, was therefore an order under Pt 3 of the Act.
Relevantly, s39 provides:
“(1)Where:
(a)an order under this Part has directed a person to execute a deed or instrument, and
(b)the person has refused or neglected to comply with the direction or, for any other reason, a court thinks it necessary to exercise the powers conferred on it under this subsection,
the court may appoint an officer of the court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the deed or instrument.
(2)The execution of the deed or instrument by the person so appointed has the same force and validity as if it had been executed by the person directed by the order to execute it.”
The notice of motion of 12 July 2001 sought an order under s39 for the appointment of an officer of the District Court to execute the transfer.
The application came on for hearing before his Honour Judge Delaney on 25 July 2001. It is not clear from the transcript what, if any, evidence was formally put before the Judge. Statements or submissions by the parties’ legal representatives were made. No oral evidence was given. His Honour reserved his decision and gave it on 3 September 2001. He refused the application. His reasons for judgment refer to several matters which were in dispute between the parties’ legal representatives. Meagher JA has referred to those disputes and expressed his opinion about their merits. In particular, there was a question about whether the appellant should have stamped the transfer sent by her solicitor to the respondent’s solicitor on 21 May 2001. There was a dispute as to whether the appellant could join one of the parties’ sons as a transferee. There was a dispute about whether settlement could not proceed before a discharge authority had been signed by all parties to the loan. These and other matters delayed settlement from 25 May to 13 June 2001.
Judge Delaney observed that the parties had commenced upon a course that was outside the terms of settlement and said that such action could not displace the operation of the terms. Having referred, as we have said, to matters of the sort we have described, the Judge said they were matters that should have been determined, dealt with and arranged so that settlement could take place on 25 May.
“In my view, the facts and circumstances did not amount to a waiver of term 1. It was required that settlement take place on that date. There was an extension of time granted, but this was not in my view any waiver of the requirement in paragraph 1. Indeed, the mere fact that there was an extension of time granted is not sufficient to amount to a waiver.”
The judgment concluded as follows:
“In coming to this view, I have kept in mind a number of statements of principle referred to by Bruce J in Chau v Christian & Anor, decided 8 January 1999. My view is that the respondent to the motion, by granting an extension for the completion of the settlement, initially showed readiness to act constructively with a view to the completion of the transfer, the avoidance of loss, and the avoidance of any other potential liability. However, when the circumstances arose which are deposed to in paragraph 15 of Mr Harper’s affidavit, and the subsequent events took place taking the time for resolution outside to almost a period of one month thereafter, (in the circumstances deposed in paragraph 24 of Mr Harper’s affidavit). It seems to me that the time in which extension was given had expired, and that the requirements and requests of the applicant were outside the extension granted by the respondent.
It was not until 21 June that the respondent received the original of a faxed letter from the Commonwealth Bank, enclosing an authority to discharge the mortgage. On 25 June, Mr Harper wrote to the plaintiff’s solicitor enclosing an authority to discharge, signed by the respondent, but only for the purposes of sale under order 3, and not transfer under orders 1 and 2. I consider that that is in fact the correct way to categorise what occurred.
I find that there has been no waiver and in the circumstances of this case on the facts before me, the plaintiff has failed to comply with the terms of settlement term 1, and that thereafter term 3 applies.”
In our opinion, the history of the relationship between the parties and their solicitors does not support the suggestion that the respondent showed readiness to act constructively with a view to the completion of a transfer, the avoidance of loss and the avoidance of any other potential liability. But, what we regard as important is that the parties had agreed to settle on 13 June 2001 and, so far as the evidence goes, the only reason for settlement not taking place on that day was the sudden decision of the respondent not to go ahead. It is not clear what the trial Judge meant by saying there was no waiver. What was clear was that the respondent had agreed to extend the time for payment up to and including 13 June 2001; see Tropical Traders Ltd v Goonan (1964) 111 CLR 41 at 53. The agreement to extend the time was a waiver to the extent of substituting the extended time for the original time. It scarcely matters that time remained of the essence of the order. The respondent repudiated on the day before. That repudiation and the respondent’s refusal thereafter to transfer entitled the appellant to an order under s39.
During the hearing of the application for leave to appeal and during the hearing of the appeal the respondent claimed that no order should be made because the appellant had now shown herself ready, willing and able to perform. We agree with Meagher JA that there is evidence, unchallenged, that she was and is. However, we are by no means persuaded that this was a necessary element of obtaining an order that is conditioned simply on the person appointed to execute the deed or instrument refusing or neglecting to comply with the direction. If the respondent wished to rely on grounds for refusing or neglecting to comply, in our opinion, it was for him so to persuade the Court. There is no suggestion anywhere that the respondent refused to comply with the order because the appellant was unwilling or unable to perform her part of the bargain.
The respondent submitted that if this Court were to make an order under s39 it should make an order or impose a condition that the appellant pay interest from 25 May 2001 on the $65,000 she agreed to pay. In this context, we note that by his letter of 28 May 2001 the respondent’s solicitor appeared to suggest that the respondent was invoking order 4 of the terms of settlement. The solicitor wrote:
“We have been instructed by our client that he requires the payment of interest at current court rates of 11% as set out in Supreme Court Rules for each day or part thereof from the due date settlement required under the orders of 4 pm on 25 May 2001. Our calculations of interest on a daily basis on $65,000 at 11% is $19.50 per day.”
In para 15 of his affidavit of 24 July 2001 the respondent’s solicitor referred to a telephone conversation he had with the appellant’s solicitor on 7 June 2001 in the course of which the appellant’s solicitor said: “It’s your client putting off settlement. I don’t know how you can claim interest.” According to his evidence, the respondent’s solicitor said to the appellant’s solicitor words to the effect: “I don’t know if we could resist such an argument.” At that time the respondent’s solicitor suggested the matter be listed for settlement on Wednesday, 13 June.
In our opinion, the respondent has not received payment of $65,000 because he repudiated the settlement and thereafter resisted the making of an order under s39. As a result, the respondent has lost the use of the $65,000. Section 83A(1) of the District Court Act enables the Court to order that there be included in the amount for which judgment is given in proceedings for the recovery of any money interest at such rate as it thinks fit. The present proceedings are not proceedings by the respondent for the recovery of money and no order is sought for such a judgment. Accordingly, the District Court has, in our opinion, no power to make such an order. In any event, orders for the payment of interest are discretionary and the circumstances of the present case, notably the respondent’s default, are not such in which the discretion, if any, should be exercised in favour of the respondent. In our opinion, interest should not be awarded.

The terms of settlement which were transformed into orders of the Court reflected the settlement of proceedings each party had begun against the other to recover money under the Property (Relationships) Act. The settlement of those proceedings recorded in the orders of the Court should have allowed the parties to put their disputes behind them. It behoved those advising them to ensure, so far as possible, that the terms of the settlement were complied with. Clearly enough, the appellant and her advisers were anxious that that should happen. The attitude of the respondent’s solicitor was ambivalent, which may have reflected his instructions. Neither solicitor showed the conveyancing knowledge that might have been expected of them, particularly as either could readily have obtained advice. The result was a bungle which has cost the parties dearly and is to be deprecated. A little less point taking and more professional co-operation was called for.
Parties who take matters to the District Court should expect a proper hearing and a considered judgment. Anecdotally, it is said that the District Court lists are heavy and there is pressure on the judges to get through the cases. However, these considerations must never be allowed to deny parties the opportunity for a full and fair hearing of their grievances. If they are denied that opportunity, the rule of law is seriously undermined. The transcript suggests that there was not a proper hearing as a result of which Judge Delaney was denied the benefit of the evidence being put forward in an orderly fashion by the reading of affidavits which, according to his Honour’s reasons for judgment, were before him, and for the cross-examination of witnesses, which was almost inevitable in light of the factual differences that emerged. His Honour was also denied the opportunity for argument about questions of conveyancing, which, though peripheral, should have been understood, and about the operation of the Act.
All this is particularly regrettable because of the considerable resultant costs to the parties.
We agree with the orders that Meagher JA has proposed.

******

LAST UPDATED: 03/04/2003

[2003] NSWCA 44

3 April 2003

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Property Law

Legal Concepts

Appeal

Remedies