Sikorski & Sikorski - [2008] FamCAFC 145

FAMILY COURT OF AUSTRALIA

SIKORSKI & SIKORSKI

[2008] FamCAFC 145

FAMILY LAW - APPEAL – From decision of Family Court Judge – PROPERTY SETTLEMENT – whether the trial judge erred in finding the husband’s parents did not have an interest in a property – whether the trial judge erred in the assessment of evidence with respect to the husband’s parent’s alleged interest in the property – whether the trial judge erred in notionally adding back to the asset pool the amount paid by the husband to discharge a mortgage but failing to add back finance repayments by wife – whether the trial judge failed to give proper consideration to the husband’s contribution at the time of marriage – whether the trial judge erred in finding the parties’ daughter was the sole legal and beneficial owner of a property – whether the trial judge erred in finding both parties received $170,000 from proceeds of sale of a property – whether trial judge erred in finding the wife used her share of proceeds to discharge a mortgage and erred with respect to the amount of this mortgage – trial judge led into error by parties with respect to the amount the parties received from the sale proceeds and the discharge of mortgage – failure of both parties to provide any real assistance to court as to amount of mortgage – likely to be futile to seek further evidence or remit the matter – if matter remitted, further expense and delay would be incurred with no guarantee of resolution and court resources would be expended correcting an error parties created themselves –– appeal dismissed.

FAMILY LAW - APPEAL – Applications to adduce further evidence – applications dismissed.

FAMILY LAW - COSTS – circumstances justifying order for costs – husband to pay one half of wife’s costs of and incidental to appeal as agreed or assessed.

Family Law Act 1975 (Cth)
Real Property Act 1886 (SA) ss 60, 77 & 96A

Jones v Dunkel (1959) 101 CLR 298
Bennett and Bennett (1985) FLC 91‑617
Joshua v Joshua (1997) FLC 92‑767

APPELLANT:

MR SIKORSKI

RESPONDENT:

MRS SIKORSKI

FILE NUMBER:

ADF

1910

2004

APPEAL NUMBER:

2007

DATE DELIVERED:

30 September 2008

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Finn, Thackray and
Strickland JJ

HEARING DATE:

11 & 14 February 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 April 2007

LOWER COURT MNC:

[2007] FamCA 487

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr Richards

SOLICITOR FOR THE RESPONDENT:

Clelands Lawyers

Orders

That the appeal be dismissed.
That the husband’s Applications in a Case filed on 29 May 2007, 10 July 2007, 23 August 2007 and 12 September 2007 be dismissed and removed from the active pending cases list.
That the husband pay one half of the wife’s costs of and incidental to the appeal such costs to be either as agreed or as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Sikorski & Sikorski is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 41 of 2007
File Number: ADF 1910 of 2004

MR SIKORSKI

Appellant

And

MRS SIKORSKI

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 3 May 2007 the husband appealed against orders made by Burr J on 5 April 2007 with respect to property settlement. The effect of his Honour’s orders was that the asset pool was divided equally between the parties, with the wife to pay the husband $6,000 and the husband to vacate the wife’s property at W1. His Honour declared that the parties’ daughter was the sole legal and beneficial owner of a property at S.
The wife seeks that the appeal be dismissed.

Background

The following background is based on the background as outlined in the learned trial judge’s reasons for judgment.
At the time of trial the husband was aged 58 years and the wife 47 years.
The parties were married in April 1988. The husband had been previously married and has two adult daughters from that marriage.
At the time of their marriage, the husband owned a property in O, a motor vehicle and some tools. The wife had $20,000 in savings which was used to discharge the husband’s mortgage over the O property shortly after the parties’ marriage.
During the marriage the parties engaged in a number of real estate transactions, purchasing and selling a number of properties, including properties at:
(a)H1
(b)H2
(c)B
(d)W2 (including a delicatessen business operated on that property)
(e)W1
(f)Two units at G
(g)S
(h)D
(i)C
The only child of the marriage, R was born in February 1990. At the time of trial she was aged 17 years. R turned 18 years just prior to the hearing of this appeal.
In 1997 the parties purchased the property in G in their joint names. The property was later converted into two units. The husband contended that his parents had an interest in this property. The wife disputes this.
The parties were unable to agree on the date of separation- whether it was late 2002, late 2003 or late 2004. The wife alleged that the parties separated on 1 October 2002, which is the date of separation indicated by the parties in their Application for Divorce filed in the Federal Magistrates Court on 16 October 2003. A Decree Nisi of dissolution of marriage was granted on 2 December 2003 which became absolute on 3 January 2004. The husband contended the parties did not separate until 9 December 2004. At trial his Honour was satisfied the date of separation was 1 October 2002.
On 5 May 2003 the parties sold the W2 property, receiving net proceeds of $610,896.95. The parties then discharged mortgages registered on other properties owned by them and distributed the balance between themselves.
On 25 June 2003 the property at S was transferred to the child R pursuant to a Declaration of Trust dated 6 September 1999.
In September 2003 the husband left the S property where the parties had continued to live (although separated under one roof according to the wife).
On 14 October 2003 the parties executed a “Final Separation Agreement”, prepared by a solicitor. The wife contended this agreement accurately reflected the settlement agreed between the parties earlier. The husband claimed the document was not what it purported to be and that the agreement and transfer of properties was to minimise land tax.
The effect of the informal property settlement was as follows:
15.1The property at W2 was sold and the net proceeds divided between the parties after the discharge of mortgages on the other properties still owned by the parties.
15.2The S property was transferred to R.
15.3The properties at W1 and D were transferred to or retained by the wife.
15.4The G units and C house were transferred to or retained by the husband.
15.5The husband retained a Nissan motor vehicle, caravan, trailer, a private company and some superannuation benefits.
15.6The wife retained a Daewoo motor vehicle and some jewellery.
The proceeds received by the parties from the sale of the W2 property and how those funds were used is one issue raised in this appeal.
Following the execution of the informal agreement, the husband purchased a property at F and the wife purchased a property at L.
In November 2003 the husband commenced gambling, drinking excessively and using the services of prostitutes.
During 2004 the husband sold his properties at C, G and F. The husband paid part of the proceeds from the sale of the G Units to his parents to enable them to purchase a property in V, Victoria. The husband paid to his father $20,000 from the proceeds of sale from the F property.
In late 2004 the husband moved into the wife’s property at W1, without notice to the wife.
In November 2004 the husband was diagnosed by a psychologist as suffering from reactive depression.
On 9 December 2004 the husband instituted proceedings for property settlement in the Family Court of Australia.
On 25 May 2005 the wife removed the husband’s belongings from the W1 property and had the locks changed. The husband alleged at this time the wife removed cash he had stored on the property. The wife denied this at trial.
The husband filed an application seeking sole use and occupation of the W1 property, which was granted on 9 June 2005.
In 2006 the wife sold her properties at D and L.
The trial before Burr J was heard in February and March 2007.
His Honour delivered judgment on 5 April 2007, making the following orders:
“(1)That all previous Orders of this Court be and the same are hereby discharged.
(2)That the Court declares that [R] is the sole legal and beneficial owner of the property at [S].
(3)That in full settlement of any claim that either party may have against the other by way of property settlement or variation of settlement of property:-
(a)The husband’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the wife:-
(i)The wife’s personal effects, clothing, jewellery and furniture;
(ii)The property at [W1];
(iii)The net proceeds of sale of the property at [D];
(iv)The net proceeds of sale of the property at [L];
(v)The wife’s savings and investments;
(vi)The wife’s motor vehicle.
(b)The wife’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the husband:-
(i)The husband’s personal effects, clothing , jewellery and furniture;
(ii)The net proceeds of sale of the property at Unit 1, [G];
(iii)The net proceeds of sale of the property at Unit 2, [G];
(iv)The net proceeds of sale of the property at [C];
(v)The net proceeds of sale of the property at [F];
(vi)The husband’s savings and investments;
(vii)The husband’s motor vehicle and scooter.
(c)On or before 4.00 pm on Friday 18 May 2007 the husband vacate the premises at [W1] and leave same in good repair and condition.
(d)Within seven [7] days of the husband vacating the premises at [W1] pursuant to paragraph 3(c) hereof, the wife do pay to the trust account of Di Morosini & Co for and on behalf of the husband the sum of SIX THOUSAND DOLLARS [$6,000].
(4)That henceforth each party shall discharge without calling upon the other to contribute thereto their debts and liabilities contracted for or by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
(5)That all applications be removed from the pending list.”
On 3 May 2007 the husband filed a Notice of Appeal and an Application in a Case seeking a stay of the order of Burr J pending the outcome of this appeal.
On 15 May 2007 Burr J refused the husband’s stay application, dismissed the husband’s Application in a Case, and ordered that the husband vacate the W1 property by 4:00pm the following day. His Honour also made orders restraining the parties’ daughter R (in relation to the S property) and the wife (in relation to the W1 property) from selling, transferring, disposing in any way or encumbering the respective properties pending the appeal.
On 17 May 2007 the husband filed a Form 2 Application in a Case seeking the following orders:
“1.   Request that all current orders handed down by Judge Burr J [sic] are put on hold untill [sic] completion of appeal.
2.    That [the husband] is allowed to reside at [W1] because the husband has no where [sic] to live and because wife and daughter has somewhere to live.
3.    That judjement [sic] for the appeal is not left to Judge Burr J [sic] but for the appeal board and that this order be kept as a separate matter.
…”
On 25 May 2007 Watts J dismissed the husband’s Application in a Case.

The judgment of the learned trial judge

After setting out the background facts relevant to his judgment, the learned trial judge identified the evidence before him. He said that “[i]ssues of credit loom large in these proceedings, given the wide number of issues in respect of which the parties are in disagreement.” The learned trial judge indicated that overall where there was conflict, he preferred the evidence of the wife, stating that “[t]he husband’s evidence was extremely unsatisfactory on many occasions on a wide range of issues. In fact, in at least one instance the husband acknowledged perjuring himself before this Court.”
His Honour identified the following preliminary issues requiring determination:
33.1The parties’ date of separation.
33.2Whether the S property is owned by R or held in trust by her for the parties.
33.3Whether there were cash amounts taken by the wife or divided between the parties.
33.4Whether the husband’s parents had an interest in the G units.
33.5How the husband disposed of his share of proceeds of divided properties.
33.6How the wife disposed of her share of proceeds of divided properties.
33.7Whether or not it is appropriate to notionally add back various amounts to the asset pool.
His Honour determined the assets and liabilities of the parties, by resolving these identified issues.
Firstly, his Honour addressed the parties’ date of separation. The learned trial judge found in this respect that the husband had “perjured” himself. In the Application for Divorce the husband swore the date of separation was 1 October 2002, however his Honour noted that in the trial the husband stated that the parties “lied” in the application. The learned trial judge concluded that “[t]hus he [the husband] either perjured himself when he swore the application, or he perjured himself in the trial proceedings.”
After considering the evidence regarding the parties’ separation, his Honour commented at [40]:
“The parties’ actions in selling a major asset ([W2]), dividing other properties between them and transferring them into their individual names, discharging the mortgages on all their properties and then dividing equally the balance of the net proceeds of sale from [W2] (approximately $170,000 each), are all indicative of a couple attending to the final detail of separating their affairs and going their individual ways.”
His Honour thus concluded that the parties separated on the date as stated in their Application for Divorce, namely 1 October 2002. His Honour was also satisfied the informal property settlement recorded by the parties in the “Final Separation Agreement” reflected the intentions of the parties.
Next his Honour turned to consider the issue of the S property. His Honour indicated prima facie there was no question the property belonged to the parties’ daughter, R. His Honour referred to the evidence in support of the property belonging to R, including the Declaration of Trust, the Memorandum of Transfer of the property, the “Discharge Notice” and the husband’s own evidence. For example the husband described it as her house in the Application for Divorce. His Honour found that if the property was not R’s, and the transfer was done to minimise land tax then that would be a fraud on the State Revenue. His Honour also found that the husband’s explanation for executing the discharge notice was “implausible” and his Honour did not accept the husband’s evidence.
Counsel for the husband submitted before his Honour that the property was held on trust for the parties. His Honour considered whether a resulting trust arose or the presumption of advancement applied to the transfer. Referring to the authorities of Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353, Calverley v Green (1984) 155 CLR 242, Nelson v Nelson (1995) 184 CLR 538, Zalewski and Zalewski (2005) FLC 93-241, the learned trial judge concluded the presumption of advancement applied and turned to consider whether the presumption could be rebutted by evidence of the actual intention of the parties. His Honour outlined the evidence which did not support the contention that R held the property on trust for the parties as follows:
“72.1       Upon purchase of the property, a Declaration of Trust was executed by the parties in favour of [R] and stamped.
72.2   The husband states in his affidavit filed 7 April 2006 that an agreement was made with [R] that the property was to be purchased on her behalf and would be her property.
72.3   A Memorandum of Transfer was executed on 25 June 2003, formally transferring the [S] property to [R].
72.4   The parties executed a “Discharge Notice” on 22 August 2003 further purporting to declare they had no interest in the property.
72.5   The husband indicated in his Application for Divorce that [R] owned the [S] property.
72.6   In a document purporting to be a rental agreement, the parties agreed to pay [R] rent, which was to be applied to discharging the loan over the property.
72.7   The husband instructed his accountant to prepare taxation returns for [R] reflecting her beneficial ownership of the property, both before and after the formal transfer of the property to her sole name.”
His Honour concluded that the presumption of advancement applied and was not rebutted, and that the property was therefore not held by R on trust for the parties.
The next issue for determination was the issue of cash amounts the husband claimed he kept at the W1 property. The husband alleged the wife took $42,000 in gambling chips and cash when she removed his belongings from this property. His Honour did not accept the husband’s evidence on this issue.
His Honour then turned to consider the amount of $60,000 the husband alleged the parties kept in a bank vault. The husband stated that the parties each took $25,000 and gave $7,000 to their daughter R. His Honour concluded that the evidence was too unsatisfactory to make a finding that the $60,000 existed, but in any event on the husband’s own evidence the parties shared the amount equally after their separation and informal property settlement.
His Honour then moved to consider whether the husband’s parents had any interest in the G units as alleged by the husband. His Honour found the husband received $251,275 upon settlement of the sale of Unit 1 at G on 29 October 2004. The husband stated he provided these proceeds to his parents for them to complete the purchase of a property in V, Victoria. The husband contended his parents were entitled to receive the money as they had a 50% interest in the G units pursuant to an agreement reached in 1997. The wife contended that the husband’s parents did not have any interest in the units. She acknowledged that they contributed $40,000 but says that this was to enable them to live in one of the units rent free for life.
His Honour did not accept that the husband’s parents acquired an interest in the G Units outlining his reasons as follows:
“82.1The husband acknowledged that there was no document purporting to evidence the agreement between himself and his parents that was ever executed by the wife.
82.2Upon purchase, despite the alleged agreement with his parents, the husband registered the properties in the names of himself and his wife.
82.3The property remained registered in the joint names of the parties until their informal division in 2003.
82.4The property was then transferred to the husband and not to his parents or to himself and his parents jointly.
82.5The husband said that it was transferred to his name solely in order to minimise revenue issues. He acknowledged though that a transfer of the property to his parents would have solved his revenue issues in respect of the [G] properties for ever.
82.6A little later in his evidence the husband said that he did not wish to transfer the properties to his parents in order that there would be no transfer fees payable when his parents died.
82.7The husband provided inconsistent evidence as to the exact amount provided by his parents. In his affidavit filed on 3 June 2005 (paragraphs 19 and 20) the husband alleged that his parents had provided $50,000 in three separate amounts plus a further $10,000 later for renovations, being a total of $60,000. In “PK3” to the husband’s affidavit of 7 April 2006, there is reference only to a total of $50,000. In his oral evidence the husband said that his parents provided two cheques of $20,000 each plus a further $15,000, being a total of $55,000.
82.8There was no documentary evidence provided by the husband at all, be it in the form of bank statements, withdrawal slips, deposit slips or the like, indicating that his parents ever paid an amount of $60,000, $55,000 or $50,000. However the wife acknowledges a payment by them of $40,000.
82.9The original of “PK3” forms part of Exhibit 5. The other part of Exhibit 5 is a document headed “Notification of Change of Will” dated 20 March 2000. The husband admitted that both pages came from the same writing pad but denied that the documents were prepared at about the same time even though they are dated 3 years apart. He denied that they were prepared by his parents to assist him with his case before this Court and he further denied that they were prepared after the dates shown on the documents. I am not satisfied by the husband’s explanation.
82.10The husband chose not to call his parents to give evidence which would have assisted the Court in making a determination on this issue. There is no evidence before me as to the age of the husband’s parents but given that the husband is 58 years of age, I accept that they must be in their 80’s. Even if they were ill or frail, arrangements could have been made for them to give evidence by video link or telephone. However the husband chose not to call them to support his case.
82.11…
82.12The settlement statements for the two [G] units are annexed as “PK15” to the husband’s affidavit filed 7 April 2006. The net proceeds of sale of Unit 1 totalled $251,275 and the net proceeds of sale of Unit 2 amounted to $92,159, being an overall total of $343,434. Even if the payment to the Australian Taxation Office of $20,000 upon settlement of the sale of Unit 2 is added to that total, it is $363,434. One-half of that amount would be a little less than $182,000. The husband afforded no explanation to the Court as to why he paid his parents, allegedly for one-half of their interest in the [G] properties, a sum of at least $215,000 but almost certainly more like $255,000.
82.13The husband’s evidence was again unsatisfactory on the question of what amount he actually paid his parents on sale of the [G] units:-
…
82.14I accept the wife’s evidence that any payment made by the husband’s parents was in order to afford to them the right to live in one of the [G] units for the rest of their lives.
82.15I am satisfied therefore that as a notional add back it is appropriate to add to the net pool of assets for distribution between the parties and as being an amount retained by the husband as against his entitlement, the figure of $363,434 being the total net proceeds of sale of the two units plus the $20,000 paid by the husband to his father from the proceeds of sale of the [F] property.”

His Honour then turned to the issue of the husband’s gambling and payments the husband alleged to have made to the wife. His Honour noted the husband had initially contended he had expended considerable sums of money, in the order of $300,000, on gambling and prostitution, but later resiled from this position, instead submitting he expended the funds on the wife and his daughters, and only an amount of $20,000 on gambling and prostitution.
His Honour referred to evidence provided by the husband’s psychologist on the issue and documents produced by the husband purporting to demonstrate the amount of money expended on the wife and his daughters, largely comprising claimed expenditure on various properties. His Honour concluded:
“94. …I am satisfied that he [the husband] has demonstrated that he did not spend all of the sale proceeds on gambling and prostitutes. However, the state of his evidence was so unsatisfactory as to make it impossible to make any findings as to the exact amount from sale proceeds that he expended in any of the ways alleged by him. Further, I am not satisfied that he has demonstrated through those Exhibits or by any other means that he has expended anything other than relatively modest amounts on the wife, the wife’s properties or the property at [S] registered in the name of [R].”
His Honour then turned to the husband’s allegations that he had spent considerable sums on the wife’s property at L. His Honour referred to Exhibit 14, which consisted of invoices totalling $20,965, some of which the wife had signed and some which she had not. His Honour noted the wife acknowledged the husband assisted her in relation to the L property, outlining the work acknowledged by the wife. His Honour had regard to Exhibit 15, being documents purporting to support the husband’s allegation that he spent $6,354 on the wife’s property. His Honour noted that although many of the documents were illegible they appeared to support the husband’s claim and that the amount was probably $6,354.
His Honour concluded that “doing the best I can from the conflicting and at times, confusing evidence” he was satisfied the husband had contributed roughly $10,000 to the support of the wife, the wife’s properties and R after the informal property settlement, as well as labour and expertise.
His Honour did not accept the husband’s evidence that he gave $10,000 to each of his adult daughters from a previous relationship. His Honour noted the failure of the husband to call his daughters to give evidence, and that in the event the amounts were advanced, they were paid after the parties’ informal property settlement.
Turning to consider the husband’s disposition of funds, his Honour could not determine exactly where all the funds received by the husband following the informal settlement and sale of assets had gone. His Honour concluded the evidence suggested that the husband paid:
“103.1 an amount of $20,000 from the sale of the [F] property to his parents.
103.2a further amount of $255,000 to his parents from the sale of the [G] properties.
103.3some $10,000 approximately for the benefit of the wife and [R].
103.4an unknown and unidentifiable net amount on his property and miscellaneous expenses.
103.5an unidentifiable amount on gambling and prostitutes.
103.6an agreed amount in costs of nearly $55,000.”
His Honour found this did not provide the “full picture” however, stating:
“The husband’s evidence was evasive, confusing and unconvincing in relation to what he did with his moneys overall and certainly the balance of any moneys not dealt with by me above. Nor does he provide any proper or adequate explanation of the many withdrawals he made from his accounts of amounts of up to $10,000 at a time. Nor has he accounted for any income that he received over that period of time, namely rental payments from his properties.”
Addressing the wife’s disposition of funds, his Honour noted it was the wife’s case that it was appropriate to notionally add back the total she received on the sale of both the D and L properties. His Honour considered that the complexity of the issues surrounding expenditure and the inherent injustice in failing to take account of the position of the parties at the time of separation and the informal property settlement supported the adoption of the wife’s approach, as did the authorities.
His Honour considered it appropriate to notionally add back the value of the mortgage discharged over the G property, namely $161,480, as all mortgages were discharged upon the sale of the W2 property and the husband had subsequently raised this finance. His Honour considered this appropriate as “it would otherwise artificially decrease the net benefit received by the husband subsequent to the parties’ informal property settlement.”
His Honour also considered it appropriate to notionally add back $141,264 being the amount his Honour found the wife used from her share of the proceeds of the W2 property to discharge the mortgage over the S property.
In summarising the approach to be adopted to the assets of the parties, his Honour concluded:
“109. The only sensible and logical manner in which to approach the many issues presented by the parties for my determination in relation to property settlement is to take their present individually held assets and notionally add back the moneys received by them since their separation and informal property settlement in mid- 2003.”
His Honour referred to the authority of Omacini and Omacini (2005) FLC 93-218 in support of this approach.
His Honour considered it appropriate to add back the legal fees incurred by the parties, although he noted that this was achieved by notionally adding back the total of the net proceeds that each party received from the sale of properties after their separation.
His Honour noted that had each of the parties retained the properties sold since separation, those properties would have been brought to account in the asset pool. His Honour thus found that “[l]ogically and appropriately, so too must the net proceeds of sale of those properties.”
Turning to consider the husband’s conduct, his Honour found that with respect to the amount of $275,000 at least that the husband paid to his parents, the husband had clearly embarked on a course of conduct designed to reduce or minimise the net asset pool for distribution. His Honour also considered that the husband’s “regular and frequent” withdrawals of large sums of cash ought to be seen as a deliberate course of conduct to maximise his entitlements to property settlement.
His Honour did not accept the argument submitted on the husband’s behalf that his conduct could not be viewed as reckless, negligent or wanton as at the time he suffered from reactive depression. His Honour noted this diagnosis was made by a psychologist, not a medical specialist, distinguishing this case from the facts in De Angelis and De Angelis (2004) FLC 93-133. His Honour thus reiterated that all the net proceeds of sale received by the husband since the parties’ informal property division ought to be notionally added back to the asset pool.
By the conclusion of the evidence his Honour noted that counsel were agreed as to the net amounts that each of the parties had received on the sale of the various properties and agreed as to the value of the wife’s property at W1. His Honour therefore summarised the parties’ position as follows:
“Wife
[L] settlement proceeds  $196,548.00
[D] settlement proceeds  $42,293.00
Deposit received on [D]  $5,000.00
[W1]  $490,000.00
[S] mortgage discharge   $141,264.00
  $875,105.00
Husband
Sale proceeds Unit 1, [G]  $251,275.00
Sale proceeds [C]   $246,574.00
Sale proceeds Unit 2, [G]  $92,159.00
Sale proceeds [F]  $91,473.00
[G] mortgage discharge  $161,479.00
Payment to father from [F] proceeds  $20,000.00
$862,960.00”
His Honour declined to further notionally add back $60,000 the husband claimed he held in cash, as sought by counsel for the wife, considering it unsafe to do so given the husband’s unreliable and unconvincing evidence. His Honour also declined to add back the husband’s savings of $10,000, noting the funds were the husband’s earnings and it was not appropriate to add it to the asset pool. His Honour concluded that the relevant asset pool was $1,738,065.
In assessing the contributions of the parties pursuant to section 79(4), his Honour acknowledged that the husband made a greater initial contribution than the wife at the commencement of the relationship. His Honour found the parties worked together during their relationship to accumulate a significant real estate property pool and also worked hard in the delicatessen business they operated at W2.
Having concluded that the husband’s parents had not acquired an interest in the G units, his Honour recognised a contribution by the husband’s parents on the husband’s behalf of “at least $40,000”.
His Honour found until separation the parties had shared equally the parental responsibilities with respect to their daughter, and that the wife had assumed the predominant caring role following the parties’ separation. Following the husband’s move from the shared residence in 2003, parental duties and responsibilities fell solely to the wife. His Honour also noted that the husband only contributed $1,600 in child support in that time.
His Honour was satisfied that the husband contributed “to a modest degree” to the renovation of the wife’s L property. His Honour also found the wife’s contributions to properties in her name continued and in respect to the W1 property until the husband “unilaterally assumed occupation of the premises without notice to the wife”, denying the wife potential rental income from the property.
His Honour noted that at the time of the judgment the child R was aged 17 years and the wife’s contributions to her care and support would only continue for a short time.
His Honour found that since the sale of properties in his name and the modest assistance he gave to the wife in relation to the L property, the husband had not made any contribution to the maintenance or conservation of the asset pool, but “sold his properties and spent the proceeds”.
His Honour concluded that the parties’ contributions were equal and each was thus entitled to property or payment to the value of $869,000.
After considering the relevant section 75(2) factors, his Honour concluded that the factors were balanced and “do not indicate that any further adjustment ought to be made in favour of one party or the other.” His Honour found that neither party was employed, although each had acquired new skills that could lead to employment and be utilised in gainful employment. His Honour stated:
“145. …The wife will be left with a greater amount in assets thanks to the husband’s unilateral actions in divesting himself of all of his. The husband though still has access to considerable funds which he has given to his parents. The wife has ongoing commitments in relation to [R]’s care and has done so with effectively no financial support from the husband since the separation of the parties.”
His Honour concluded that an equal division of the total asset pool would result in each party receiving assets to the value of $869,000, with the wife being required to pay the husband $6,000.
Finally, in addressing whether this result was just and equitable pursuant to section 79(2) his Honour referred to the husband’s claim, which his Honour summarised as follows:
“148. Stripped to its barest, the husband’s case before the Court is essentially that:-
148.1I should ignore the informal settlement reached between them in mid-2003 after their separation in October 2002.
148.2I should ignore the fact that he received an approximate equal division of the parties’ net property pool at that time.
148.3I should ignore the fact that he expended the totality of his funds in various ways, some explained, including an amount spent on gambling and prostitutes, and some unexplained.
148.4I should ignore the fact that the wife retained most of her share of the assets received in mid-2003.
148.5I should take back the [S] property from his daughter [R] in order to pay for his excesses.”
His Honour stated that “[i]t is difficult to contemplate a more unjust or more inequitable outcome than that proposed by the husband. To accede to the husband’s application would be to reward him for four years of extravagant and wasteful behaviour.” His Honour considered that the husband’s claim that he should receive 65% of the assets retained and accumulated by the wife and R was “preposterous”, and that this would result in the husband receiving an additional $560,300 in addition to the assets retained by him following the informal property settlement, a total of $1,423,000, leaving the wife with just $314,800. The husband sought that the W1 property be transferred to him.
His Honour considered that on the husband’s application “not only would the outcome for the wife be unjust and inequitable, it would be unconscionable.”

Applications to adduce further evidence

The husband by Applications in a Case filed on 29 May, 10 July and 23 August 2007 sought to adduce further evidence in the appeal.
The wife opposes the admission of any further evidence, filing a response on 5 February 2008 seeking that the husband’s Form 2 Applications in a Case filed on 10 July, 23 August, and 12 September 2007 be dismissed. Prima facie, this response did not address the application filed by the husband on 29 May 2007, but there is no doubt that the wife opposes that application as well. The application of the husband filed on 12 September 2007 is an application to which the wife need not have responded. That application simply sought to delete part of the husband’s application made on 23 August 2007.
By his Application in a Case filed on 29 May 2007 the husband seeks to adduce a document allegedly relating to the ownership of the G units and for his parents to give evidence at the appeal hearing. However, he did not pursue the latter before us, and that was the right choice, because there is no basis to admit their evidence. The husband failed to present any independent evidence as to his parents’ alleged ill-health at the time of the trial and indeed not only was that not put to the trial judge but no reason whatsoever was put as to any alleged inability to give evidence. Their giving evidence or not was simply not raised with the trial judge.
As to the document, it was dated 15 June 1997 and purported to record that the parents have 50% ownership of the G property on the basis that they contributed $50,000. It was signed by the husband as “owner”, by the husband’s parents as “owner” and each of their signatures was witnessed by the wife, described as a witness.
In support of this application the husband alleged that a copy of the document was one of a number of documents “stolen” by the wife on 25 May 2005, i.e., prior to trial, but the original had only recently been found by the husband’s parents.
We are not satisfied that it would be appropriate to allow the husband to adduce the document allegedly relating to the G units for the following reasons:
(a)If this document was a genuine document we would have expected the husband would have raised its existence with the learned trial judge, but that was not done. Further, the wife was not cross examined as to the alleged theft of not only this document but of any documents. The wife was cross examined only as to the alleged theft of a substantial quantity of cash at the same time.
(b)There is serious doubt as to the genuineness of this document. The document appears to have been created from a printed landlord and tenant agreement which had the wife’s signature on it for that purpose. The reference to landlord and tenant has been deleted and the word “owner” substituted. As the wife’s counsel submitted, it is questionable as to why this document was prepared in this way and also, if it was a genuine document the wife would have signed as an owner and not as a witness given that at this time she was a joint owner with the husband of the G property.
(c)A further troublesome fact is that the husband had presented to the learned trial judge as an annexure to an affidavit a document dated 3 April 1997 and which purported to be a “contract agreement” between the husband and his parents “to secure 50% ownership of property located at [G] SA for the sum of $50,000”. It is curious that if this document was genuine why the document dated 15 June 1997 was prepared. The husband was unable to answer that question. We also note that the learned trial judge referred to the annexure to the husband’s affidavit in finding that the husband’s parents did not acquire an interest in the G units. His Honour referred to the denial by the husband that this document was prepared by his parents to assist him with this case and the further denial that this document was prepared after the date shown on it. The learned trial judge was not satisfied by the husband’s explanation, and that is consistent with his Honour’s findings generally as to the lack of credit of the husband.
(d)At the very least this is a controversial document and if it was admitted there would be the need for further extensive evidence in cross examination and hence a new trial.
By his Application in a Case filed on 10 July 2007 the husband seeks to adduce the same document allegedly relating to the ownership of the G units, a document relating to an alleged $20,000 loan from his parents, and an affidavit of his mother, Mrs Sikorski, addressing the purported $20,000 loan, the parents’ interest in the G property, and the date of separation. We do not propose to say anything more about the document allegedly relating to the ownership of the G units, and the husband did not pursue adducing the affidavit of his mother, which was again the right choice. There is nothing in that affidavit as to why the mother could not file an affidavit previously or give evidence at the trial. That leaves the document relating to the alleged $20,000 loan.
That document purportedly records the receipt by the husband of a loan of $20,000 from his parents and is dated 26 September 2003.
The wife opposes the application to adduce this document, and again, we do not propose to admit it. The husband does not say that this was a document which was not available at the time of the trial, and in any event, the issue in relation to the amount of $20,000 is not that that amount may have been lent to the husband by his parents, but whether the payment of $20,000 by the husband to his parents from the proceeds of sale of the F property was to repay that loan.
By his Application in a Case filed on 23 August 2007 the husband seeks to adduce documents again in relation to the $20,000 loan from his parents and various bank documents relating to home loan repayments. However, we do not propose to say anything further in relation to any documents concerning the $20,000 loan from the husband’s parents, and in relation to the other bank documents the husband filed an Application in a Case on 12 September 2007 seeking that the orders sought in that regard be “deleted”, as the husband subsequently realised that these documents were already before the Court.
We therefore propose to dismiss the husband’s applications to adduce further evidence.

Issues raised on appeal

In his Notice of Appeal filed 3 May 2007 the husband set out the following grounds of appeal:
“1. All evidence provided by appellant was totally ignored and all verbal evidence provided by respondent was considered factual and the wrong conclusions and decisions were made in giving the 17 year old daughter a $300,000 house and giving the respondent a $490,000 house and the appellant was given nothing.
2. The findings of fact are wrong because the evidence and receipts provided were totally ignored and the wrong decision was made in putting the appellant’s parents appartment [sic] $251,275, payment to father $20,000 and [G] mortgage of $161,479 onto the appellant’s assets.”

The husband sought the following orders:
“1. That an order is made for the appellant to retain the house at [W1]
2. That an order is made for the respondent to have the [S] House.
3. That an order is made to balance any difference between the appellant and respondent asset value considering that the respondent has retained approximately $100,000 in cash.”
The husband was self represented during this appeal. At the hearing, the husband proceeded by taking the Court through his summary of argument document filed on 24 January 2008. The husband’s summary of argument document broadly summarised the husband’s complaints into four main areas, namely:
85.1The S house (and the proceeds of sale of the W2 property).
85.2The G Units (and the money paid to the husband’s parents).
85.3The G mortgage.
85.4The property owned prior to marriage.
Although the husband did not specifically address in his summary of argument the grounds of appeal as set out in his Notice of Appeal, we propose to deal with this appeal by addressing these four topics and any incidental issues that arose in submissions. However, we propose to consider the topic of the S house last given that the issue of the amount of the mortgage secured over the title to that property is the only issue which we consider has any merit.
In our view it is first necessary to appreciate the method adopted by the learned trial judge. His Honour said that he determined the pool of assets by taking the position of the parties at trial, and notionally adding back the monies received by them since their separation and informal property settlement in mid-2003. In fact, what his Honour did was to start from the position of the parties as a result of the informal property settlement agreement and then make a number of notional add-backs. Now, whatever might be said about the correctness or otherwise of this approach, there is no appeal ground on behalf of the husband nor any submission by him challenging the same.

The G units (and the money paid to the husband’s parents)

The husband submitted that the learned trial judge erred in finding that his parents did not hold a 50% interest in the G property and thus in attributing to the husband the whole of the proceeds of G (being $251,295).
In paragraph 43 above we have referred to the specific reasons given by the learned trial judge for his finding that the husband’s parents did not acquire an interest in the G units.
The husband’s challenge to this finding took the form of suggesting that the learned trial judge was wrong in his assessment of the evidence. For example, the husband said:
90.1That the learned trial judge proceeded on the basis that a fixed amount of $10,000 was paid by the husband’s parents for renovations whereas in his affidavit he had said that it was approximately $10,000. He made a similar submission about how the learned trial judge treated his oral evidence that it was a figure of approximately $15,000. There were other similar examples, but the husband’s point was that this explains his alleged inconsistent evidence as to the exact amount provided by his parents. For our part we do not accept this, and it was open to the learned trial judge to find that the husband provided inconsistent evidence as to this issue.
90.2That the learned trial judge erred in finding that the amount of $40,000 was paid by the husband’s parents so they could live in the property rent free for the rest of their lives. In support of this submission the husband simply put that the learned trial judge should have accepted the genuineness of the “contract agreement” which was annexure “PK3” to the husband’s affidavit filed on 6 April 2006. The learned trial judge though considered that this document, along with others, were prepared by the husband’s parents to assist the husband in his case before the Court, and they were prepared after the dates shown in the documents. The learned trial judge pointed out that the husband “chose not to call his parents to give evidence which would have assisted the Court in making a determination on this issue”. In this regard his Honour referred to the High Court decision of Jones v Dunkel (1959) 101 CLR 298.
We consider that it was open to the learned trial judge to make this finding and there is no merit in this complaint.
90.3That the learned trial judge erred in finding that the G property was put in the names of the husband and the wife. We fail to see how his Honour has erred in making this finding. The evidence is quite clear that upon purchase the property was registered in the names of the husband and the wife. Thus there is no merit in this submission.
90.4That the learned trial judge erred in finding that “the husband acknowledged that there was no document purporting to evidence the agreement between himself and his parents that was ever executed by the wife”. Here the husband seems to be saying that the learned trial judge misinterpreted his oral evidence. However, we do not accept this. The evidence given by the husband was that the wife did not sign the document drawn up in relation to ownership of the G property, and thus it was open to the learned trial judge to make the finding that he did.
90.5That the learned trial judge erred in finding that the husband admitted that both pages of separate documents had come from the one writing pad. We find the husband’s submission in this regard has no merit. The husband’s response in cross-examination to the question about the pages being from the same writing pad was, “yes, looks pretty identical”.
90.6That the learned trial judge erred in proceeding on the basis that on the husband’s case the parents would have been entitled to $182,000 from the sale proceeds of the G property. It is quite apparent to us that the evidence of the husband was so confused and inconsistent that the learned trial judge was left to do the best that he could with this evidence. On this basis it was not unreasonable for the learned trial judge to look for an explanation from the husband as to how he had calculated the amount that he paid to his parents, yet the husband’s evidence as to that amount was also unsatisfactory. We find that there is no merit in this complaint by the husband.
90.7That the learned trial judge erred in making a link between the amount the husband paid his parents from the proceeds of sale of the G property and the amount of $20,000 the husband paid to them from the proceeds of sale of the F property in order to show the unsatisfactory nature of the husband’s evidence as to the former. We accept that there is some substance in this complaint by the husband. There was no basis on the evidence to draw any link between these amounts. However, there was sufficient other evidence from the husband that justified the learned trial judge’s assessment of the unsatisfactory nature of his evidence on this topic, and thus we do not consider that this was an error of any consequence.
90.8That the learned trial judge erred in adding back to the asset pool the sum of $20,000 paid by the husband to his parents from the proceeds of sale of the F property. The evidence established that there was an amount of $20,000 that came out of the parents’ National Australia Bank account at or about the time of the purchase of the F property, and there is a document evidencing that that was a loan of that amount by the parents to the husband. However, as the counsel for the wife submitted, the evidence also pointed to the husband’s parents in effect being the husband’s bankers and that money passed between them on a number of occasions. Further, the evidence does not establish that the $20,000 paid to the husband’s parents from the proceeds of the sale of the F property was in fact a repayment of any loan. Thus, the learned trial judge was entitled to find that this was an amount that should be notionally added back to the asset pool as an amount that the husband had divested himself of without adequate explanation. Moreover, the husband chose not to call his parents as witnesses and the learned trial judge was entitled to infer that their evidence would not have helped the husband on this issue.
90.9That the learned trial judge erred in finding that the husband’s evidence as to the amount that he paid his parents on the sale of the G units was unsatisfactory. It is apparent that the learned trial judge did err in his assessment of paragraph 34 of the husband’s affidavit filed on 3 June 2005 but that error was brought about by the way that the husband expressed himself in that paragraph. However, the other bases referred to by the learned trial judge in support of his finding were open to him on the evidence and we reject the submission of the husband that his Honour erred in his assessment of the same. For example, the husband clearly stated in his oral evidence on more than one occasion that the amount paid to his parents was $255,000 and the documentary evidence only indicated a total payment of $220,000.
We find that it was open to the learned trial judge to notionally add back the amount of $251,295 being the proceeds of sale of unit 1 at G to the asset pool.

G mortgage

The husband submitted that the learned trial judge erred in notionally adding back to the husband’s asset pool the amount of $161,479 paid by the husband to discharge the mortgage over the G property, but failing to do so with respect to the repayment of finance raised by the wife.
Upon the sale of Unit 2 at G, the husband discharged a mortgage to the Commonwealth Bank in the amount of $161,479. His Honour notionally added this amount back to the property pool, considering it appropriate as all mortgages were discharged upon the sale of the W2 property and the husband had subsequently obtained this mortgage loan. His Honour stated “it would otherwise artificially decrease the net benefit received by the husband subsequent to the parties’ informal property settlement.”
In relation to the wife she obtained a $160,000 bank loan to purchase the L property and subsequently she increased that by $68,466. The husband submitted that the learned trial judge erred in not including these amounts in the asset pool as well.
In fact the husband sought that the $161,479 paid by him be removed from the asset pool saying that he had justified this expense. Alternatively the husband submitted that if this amount was to remain in the pool then the wife’s mortgage over the L property should also be added back. In summary, it was the husband’s case that either both mortgages be left out of the pool or that both be included.
We consider that the learned trial judge did not err in adding back the amount of the husband’s mortgage and in not adding back the amount of the finance raised by the wife. The husband failed to explain what he had used the loan proceeds for and he produced no documents in relation to this whatsoever. It also must be remembered that this loan was taken out at a time when the husband had available to him the proceeds of sale of C, of unit 2 at G, and of the F property, rent from the C and F properties before they were sold, and substantial unexplained amounts of cash.
On the other hand the wife borrowed $160,000 to purchase the L property, and she drew down further on the loan to meet her legal costs and her living expenses. Unlike the husband, the wife produced statements from her accounts, she accounted for the rent that she received and she presented all of her tax returns. Furthermore, at this time the husband had moved into the wife’s W1 property and that meant that the wife received no rental income there from.

Contribution at time of marriage

The husband also challenged the learned trial judge’s findings regarding the contributions of the parties, submitting that his Honour did not give proper consideration to the substantial contribution he made at the time of the marriage.
The husband claims that he brought $84,309 into the marriage in the form of the equity in his home at O, and that the wife contributed only $20,000 in savings.
The husband submits that if his contribution of $84,309 was indexed for inflation, and the “property boom” taken into account, the value of his contribution would be approximately $350,000. The husband thus submitted the wife should receive her $20,000 initial contribution and that he receive $84,309. The husband submitted that it was “inequitable” and “does not comply with the Family Law Act” to say that his initial contribution was “absorbed into the marriage and is diffused into nothing”.
The learned trial judge recognised that the husband made a greater contribution at the commencement of the marriage, finding the husband contributed the O house, in which his Honour found there was equity of $72,500, as well as savings of $20,000. He also had a motor vehicle and tools. The learned trial judge also acknowledged that the wife contributed $20,000 in savings. However, after taking into consideration the contributions of the parties during the marriage (both financially and with respect to the care of their child) and the parties’ contributions following separation, his Honour concluded that overall the parties’ contributions were equal. In our view that conclusion was within an appropriate range for the exercise of the discretion.
Thus the learned trial judge did not fail to give proper consideration to the husband’s initial contribution and we find there is no merit in this complaint.

S house (and the proceeds of sale of the W2 property)

The first issue is the complaint by the husband in his Notice of Appeal that the learned trial judge reached the wrong conclusion in “giving the 17 year old daughter a $300,000 house.” The learned trial judge found that the parties’ daughter R was the sole legal and beneficial owner of the S property. At trial, the husband had argued the parties’ daughter held the property on trust for the parties. His Honour concluded the presumption of advancement applied to the transfer, and thus no resulting trust arose with respect to the transfer.
In our view the learned trial judge did not need to consider whether there was a resulting trust or whether the presumption of advancement applied. When the parties purchased the property in September 1999 they executed a declaration of trust to the effect that they held the property on trust for R. Then, in June 2003 the parties transferred the property to R in accordance with that declaration of trust. Thus, thereafter R held the legal and the beneficial interests in that property and no question of a resulting trust arose and there was no need to apply a presumption of advancement.
The husband relied on an agreement that he says was entered into between the husband and wife and their daughter that the S property would be transferred to her upon turning 21 and that both parents had the right to live in the property until she attained 21 years, paying rent of $220 per week. According to the husband, pursuant to another agreement the parties lent $170,000 to the daughter to pay off the S mortgage, which the daughter has failed to properly account for.
The husband annexed what purported to be the rental agreement and the loan agreement to his affidavit of evidence in chief. It seems to be the husband’s submission that these agreements indicate that R is not the legal and beneficial owner of the S property, or at the very least that the husband should in some way receive credit for one half of the amount paid to discharge the mortgage. We do not follow this submission. His Honour was well aware of these agreements and referred to them in his reasons for judgment. We find that there is no merit in this complaint.
Next, the husband submitted that there were irregularities with respect to the transfer of the S property to R, and that the learned trial judge erred in failing to consider that the transfer contravened the Real Property Act 1886 (SA). The husband referred to section 77 of the Act which provides:
77—Memorials on certificates
The Registrar-General shall record on every certificate issued by him, and in such manner as to preserve their respective priorities, memorials of all subsisting mortgages, leases, and encumbrances, and of any dower or rent-charge to which the land may be subject; and if such certificate be issued to a minor or to a person otherwise under disability, he shall record thereon the age of such minor or the nature of the disability so far as known to him.
Here this was not complied with.
The husband also claimed the transfer breached section 96A of the Act which provides:
96A—Acceptance of transfer
Every transfer shall contain a statement signed by the transferee indicating that he accepts the transfer or grant of the land, right-of-way or easement: Provided that—
(a)the Registrar-General may accept and register a transfer without such a statement if he is satisfied that it is difficult or impossible to procure the signature of the transferee;
(b)where the transferee is an infant or mentally incapacitated person, the transfer may be signed by his or her guardian or the administrator or committee of his or her estate; and the acceptance under this section of a transfer on behalf of an infant shall not affect any right of that infant or of any person on his behalf to avoid or disclaim the transfer.
Here the transfer was signed by R and the husband submitted that as R was a minor at the time the title to the property should revert back to the parties as joint owners pursuant to section 60 of the Real Property Act 1886 (SA).
Counsel for wife submitted that the husband was responsible for preparing the document and lodging it, and that it is extraordinary for the husband to now complain about any irregularities in a document he was responsible for preparing. In any event, counsel suggested that the husband’s argument fails as any irregularity was rectified upon R attaining 18 years of age.
We find that there is no merit in this complaint. There is no basis for the title to revert to the parties.
The husband submitted the learned trial judge erred in finding that:
112.1Both parties received $170,000 from the proceeds of the sale of the W2 property, after the payment of various mortgages; and
112.2That the wife paid out of her share of these proceeds an amount of $141,264 to discharge the mortgage over the S property.
For reasons which we will explain we consider that there is some merit in these submissions by the husband. But, notwithstanding such merit, and for reasons which we will also explain, we have ultimately concluded that we should not interfere with his Honour’s orders.
In order to understand his Honour’s conclusions regarding the amount received by each party from the sale of the W2 property and the discharge of the S mortgage, and also our own conclusions regarding these matters, it is necessary first to examine how these matters were dealt with at trial.
A convenient starting point is paragraphs 11 and 13 of the wife’s affidavit filed on 17 August 2005 (Appeal Book 125). There the wife deposed to firstly there being a mortgage over the S property with a balance of $141,263.73, and secondly that she paid off that mortgage out of her half share of the proceeds of sale of the W2 property. Indeed it is also relevant to note that in paragraph 8 of that affidavit (Appeal Book 124-125) the wife deposed to each of the parties receiving $170,000 from the proceeds of sale of the W2 property after the payment of all mortgages.
In relation to the husband, we note that in paragraph 24 of his affidavit filed on 3 June 2005 (Appeal Book 119) he referred to the written agreement with the daughter R in May 2003 that he would pay $170,000 off the S loan. He repeated this in paragraphs 48 and 49 of his affidavit filed on 7 April 2006 (Appeal Book 221). Importantly, in paragraphs 50 and 51 of that affidavit (Appeal Book 221) the husband deposed to all mortgages including the S mortgage being paid off out of the proceeds of sale of the W2 property and he annexed four receipts (Appeal Book 271-272) in support of this claim but without identifying which receipt related to which mortgage. In any event, there was no receipt for $141,263.73 produced.

The husband repeated his claim that he paid off the S mortgage in the sum of $170,000 in his chronology filed with the court for the purposes of the trial (Appeal Book 325D) and in paragraphs 51, 52 and 53 (Appeal Book 333-334) of his affidavit filed on 11 July 2006. The wife in her response to this affidavit denied that the husband paid $170,000 and said that she paid off the mortgage from her share of the proceeds of sale (Appeal Book 404).
During the course of the trial the husband allegedly came across some relevant documents that were not discovered, and on the fourth day of the hearing his cross examination was interrupted and he was given leave to reopen his examination in chief to produce these documents and give further evidence (Appeal Book 218 et seq). When asked about a Commonwealth Bank receipt for $141,263.73, being the amount in question, he was unable to recall from his memory to which loan that payment related (Appeal Book 219 line 30). However, by reference to statements issued by the Commonwealth Bank and which were part of the late discovery he was able to identify the amount as relating to the repayment of a mortgage over properties at C and D. All these documents including the receipts were ultimately tendered and marked Exhibit 11.
By reference to the same documents the husband went on to give evidence that repayments of $94,834 and $100,018 were in respect of loans secured over the properties at S and G (Appeal Book 220). This of course is to be contrasted with his previous evidence that he paid out $170,000 in respect of the S mortgage.
Despite this evidence the wife’s counsel persisted in suggesting that the amount required to discharge the S mortgage was $141,263.73. Indeed, he put that to the husband in cross examination at least twice thereafter, but the husband denied it (Appeal Book 231 and Appeal Book 234).
Further, the wife’s counsel persisted in putting to the husband in cross examination that the parties each received amounts of $170,000 from the proceeds of sale of the W2 property (Appeal Book 234).
Turning then to the wife’s evidence. In examination in chief she confirmed that approximately $140,000 was the amount paid off the S mortgage (Appeal Book 253), and not the amount of $170,000 deposed to by the husband in his affidavits (Appeal Book 262). The wife also maintained that she received $170,000 from the proceeds of sale of the W2 property and that she paid off the S mortgage from this money (Appeal Book 262). She was not asked to comment on the documents in Exhibit 11 which indicated otherwise. However, the documents in Exhibit 11 were put to her in cross examination (Appeal Book 306 et seq). During this cross examination the wife’s counsel reminded the learned trial judge that the wife’s evidence is that she received $170,000 out of which she paid $141,263 to discharge the S mortgage (Appeal Book 308). His Honour then makes clear his understanding that the payment of $141,263 was the amount required to discharge the loan over the S property (Appeal Book 308). At no point does the husband’s counsel correct his Honour, and indeed seems to accept himself the connection between the amount of $141,263 and the S mortgage.
Counsel for the wife then again states the wife’s case as being that the sum of “$141,000” was applied by the wife to the S mortgage (Appeal Book 309). The learned trial judge then says that both counsel were telling him that there was “no real evidentiary trail for (him) to rely upon in getting to that result or denying that that was the outcome”. Counsel for the wife expressly agreed, and counsel for the husband did not comment. His Honour then says that, “(s)o far a recitation of amounts received by the Commonwealth Bank to discharge loans doesn’t do anything to help me determine what amounts were received in total by the parties and how they were distributed, and that’s where we’re still trying to get, isn’t it?”, to which counsel for the husband responded, “(y)es, your Honour”.
In further discussing what the evidence establishes as to the proceeds of sale of the W2 property, the learned trial judge warns that the evidence was not sufficiently clear and that it would be a “struggle” for him unless it was made clearer (Appeal Book 310).
The evidence concluded on 20 February 2007 and the trial resumed on 21 February 2007 for submissions. At that time the wife’s counsel presented written submissions to the learned trial judge (Appeal Book 407-419). In those submissions the wife’s counsel maintained that the S mortgage was $141,263, but he appears to accept that the evidence indicates that that mortgage was paid out with all of the other mortgages from the proceeds of sale and that the wife did not in fact receive $170,000 and then pay out the S mortgage. On that basis the wife’s case became that the S mortgage was paid out of the wife’s notional half share of the proceeds of sale of the W2 property. The learned trial judge commented that, “(a)s I understand it, Mr Haines would agree the calculation of figures; he would just be putting a different spin on it”. Counsel for the wife responds, “(y)es. What’s on the page is just arithmetic.” However, counsel for the husband did not indicate any disagreement with that proposition.
Counsel for the husband also provided written submissions but they did not address the issue of the S mortgage beyond saying that the S mortgage was paid out with all other mortgages from the proceeds of sale of the W2 property.
The trial was adjourned to 8 March 2008 when the learned trial judge heard submissions about the trust issue in relation to the S property. In the course of his submissions counsel for the wife reiterated that the wife’s case was that the S mortgage was approximately $141,000 and that it was notionally paid out of the wife’s half share of the proceeds of sale of the W2 property (Appeal Book 360). The wife’s counsel even handed up to the learned trial judge a document containing this figure (Appeal Book 355-356). The husband’s counsel in his submission asked the learned trial judge to accept the husband’s evidence that $170,000 was the amount due in relation to the S property (Appeal Book 366). The learned trial judge responded that he thought there was a settlement statement which shows the payout at $141,000, to which the husband’s counsel responded, “(y)es, your Honour. His evidence was quite clear. He thought there was another account and 170 was the amount that was required in toto for the discharge of that loan.” However, no reference was made to Exhibit 11 or to the specific evidence of the husband as to which mortgages related to which properties.
In a number of places in his reasons for judgment (see paragraphs 15, 48 and 108) his Honour can be read as finding that out of the proceeds of the W2 property each party received approximately $170,000 and that out of her share the wife paid an amount of $141,264.00 to discharge the S mortgage.
Consistently with his overall approach to this case, his Honour notionally added back as property of the wife the amount of $141,264 since he understood that it represented part of her share of the proceeds of the W2 property.
On appeal it was the husband’s submission that the property at W2 was sold on 5 May 2003 for net proceeds of $610,896.95 and that after paying out the mortgages and the wife receiving $170,000, there was only approximately $20,000 remaining of the proceeds, and he therefore could not have received $170,000. The husband also submitted that the S mortgage was $194,853 and not $141,264, and that it was paid out of the proceeds of sale of the W2 property before the distribution of any of the proceeds to the parties.
The documentary evidence before the learned trial judge supports the husband’s submissions to the extent that both parties could not have received $170,000 each. The net amount received from the sale of the W2 property was $610,896.95, and all loans secured by mortgage over the various properties of the parties were discharged from these proceeds, including the loan or loans secured by mortgage over the S property. That left an amount of $193,332.53 which was distributed between the parties. Thus, the parties could not have each received $170,000.
However, the husband is disingenuous when he suggests that the wife received $170,000 from those proceeds of sale. Although the wife said as much herself in her evidence, she was wrong and the husband well knew that. The same documentary evidence produced by him and specifically Exhibit 11 indicates that a total amount of $175,650.83 was paid into the husband’s bank account, and his own evidence was that he retained this total sum (see for example Appeal Book 222 and Appeal Book 230). That left only an amount of only $17,681.70 that could have gone to the wife.
The husband submitted that the learned trial judge’s finding as to the date of separation cannot stand given that his Honour erred in finding that each party received $170,000 from the proceeds of sale of the W2 property. We do not accept this submission. Apart from the fact that there was no ground of appeal directed to this issue, there was ample evidence before the learned trial judge to justify his finding as to the date of separation, and thus the error on the part of the learned trial judge was of no consequence.
In relation to the amount of the “S mortgage”, the documentary evidence before the learned trial judge (Exhibit 11) was that the amount of $141,264 was in fact the amount paid out to discharge the mortgage secured over the title to the C property, and this was conceded before us by the wife’s counsel. The husband’s primary submission was that the amount of the S mortgage was $194,853, but that is not clear from the evidence. The relevant bank statements indicate that there were two loans secured over the title to the S property, namely for $100,019 and $94,834 respectively. However, there is evidence from the husband that these loans related to both the S property and the G property. Firstly, the husband had written on the bank statements the words “[G]/[S]”, and secondly, in his oral evidence he said that the two loans related to G and S and that the statements do not assist in indicating which loans relate to which properties. In his submissions before us the husband argued that the loans only related to the S property, but that was not his evidence at trial. (see Appeal Book 220, Appeal Book 231-232)
On this basis it is apparent that the learned trial judge erred in finding that each party received $170,000 from the proceeds of sale of the W2 property, and that from her share of those proceeds the wife paid $141,264 to discharge the “S mortgage”.
At the conclusion of the case the learned trial judge was presented with the choice of accepting either:
(a)the wife’s evidence that the amount of the S mortgage was $141,264;
(b)the husband’s affidavit evidence that the amount was $170,000;
(c)the husband’s oral evidence combined with the documents contained in Exhibit 11 that the amount of $141,264 related to a different property, namely C, and that there were two loans totalling $194,457 relating to G and S.
We now know that option (c) was probably the most accurate version but this was not the version being advocated by the husband’s counsel who seemed if anything to be seeking a finding in accordance with option (b). The learned trial judge of course found in accordance with option (a), namely he accepted the evidence of the wife which is hardly surprising given the learned trial judge’s views concerning the husband’s credibility.
This analysis indicates to us quite clearly that the learned trial judge was led into error by the way in which the parties conducted their respective cases.
Before us the wife’s counsel submitted that these errors by the learned trial judge were of no consequence. He suggested that it was the parties’ intention that the S mortgage be paid out of the wife’s share of the proceeds of sale of the W2 property and that although that did not in fact happen, that payment can be “attributed” to the wife. Indeed, that was in effect put to the learned trial judge by the wife’s counsel in his final address once it became clear from the documents produced late by the husband that the S mortgage was discharged prior to any distribution of the proceeds of sale to the parties. The learned trial judge though seems to have overlooked that when making his findings.
Although this submission attempts to ameliorate the effect of the error made by the learned trial judge in proceeding on the basis that each party received $170,000, it does not overcome the error made by the learned trial judge in relation to the amount of the S mortgage. This is because his Honour notionally added back that specific amount to the wife’s assets. If that is an incorrect figure then the asset pool is also incorrect and that renders the calculation of the respective entitlements of the parties incorrect. The difficulty that we now have is that the evidence is unclear as to what the correct amount of the add-back should be. It could be $194,853 or it could be a lesser figure, depending upon whether the loans relate to just the S property or both the S property and the G property. The only amount that it would be appropriate to add-back is that amount that relates to the S property given the methodology of the learned trial judge.
The husband submitted that an amount of $170,000 should be substituted for the amount of $141,264 in the schedule of the assets of the parties, but that is not correct either. The basis for that submission is that that is the amount that the wife said she received from the proceeds of sale of the W2 property, but that is simply not what the evidence establishes.
The husband also suggested other results equally as incorrect, for example that he should receive one half of the amount of $194,853 being the amount he says was the “[S] mortgage”. This suggestion takes no account of the methodology adopted by the learned trial judge and which methodology was not challenged by the husband on this appeal.
In the husband’s summary of argument he put that the amount of $141,264 related to the mortgage over the C property and that the amount of the S mortgage was $194,457. Neither of these submissions were in accordance with his own evidence or his counsel’s submissions before the learned trial judge.
In addressing these errors by the learned trial judge we have contemplated a number of options including calling for further evidence in an endeavour to re-determine the matter ourselves, or allowing the appeal and remitting the matter for rehearing either generally or limited to the issue of the S mortgage. However, given the course of the evidence and the submissions before the learned trial judge, and how the case was conducted before us, we question whether there is any value in adopting any of these courses. There is no doubt that the learned trial judge was led into error by the wife’s evidence, the late production by the husband of relevant documents, the husband’s confusing evidence generally, and the submissions of both counsel, and reflecting on the failure by either party to provide any real assistance to us on this topic, we consider that it would be likely to be futile to seek further evidence or to remit the matter. Our conclusion in this regard is fortified when regard is had to the relevant evidence of the parties and the submissions of counsel before the learned trial judge on this topic set out in some detail earlier.
In the wife’s amended summary of argument she conceded that the learned trial judge may have been led into error in finding that the S mortgage was $141,264. However, as referred to already, the wife’s counsel submitted that this error was an error of no consequence, and did not either seek to provide further evidence as to what the amount of the S mortgage in fact was, or indeed suggest an answer to the difficulty arising from his Honour’s treatment of the S mortgage.
During submissions the wife’s counsel consistently put that from the evidence before the learned trial judge it was not possible to determine the amount of the S mortgage, and thus it was not possible to substitute the correct figure for the amount of $141,264 as used by the learned trial judge, but therein lies the dilemma.
Although the husband was self represented before us he knew enough to file applications to lead further evidence. Yet he did not include an application to lead further evidence as to the amount of the S mortgage. Thus we cannot remedy the error.
In these circumstances, the only practicable method of remedying the error would be to remit the matter for rehearing either on the single issue relating to the S mortgage or in relation to the matter generally.
However, given the most confusing manner in which the case was presented by both parties at trial and on the hearing of the appeal, we are satisfied that significant further expense and delay would be occasioned if we were to remit the matter with no guarantee that the problem concerning the value of the S mortgage could be resolved. Even if the remitter were to be limited to the single issue, there would then need to be further submissions in relation to any other consequential adjustments that might then be considered necessary. Furthermore, Court resources would be expended in correcting an error the parties themselves created. In such circumstances we are not satisfied that we should allow the appeal.
In reaching this conclusion we also take into account that the error here of the trial judge was an error in a finding of fact. There is good authority for the proposition that such an error does not ordinarily attract appellate intervention where it was the appellant who induced the error or acquiesced in it. Bennett and Bennett (1985) FLC 91‑617 at 79,994 per Nygh J; Joshua v Joshua (1997) FLC 92‑767 at 84,444 per Lindenmayer J.
We propose therefore to dismiss the appeal.

Costs of the Appeal

In the event the appeal failed, the wife sought that the husband pay her costs of the appeal in the sum of $15,000 plus GST. The husband opposed an order for costs against him on the basis that he has no property and is unemployed.
We consider that there are circumstances here that justify an order for costs. Although we have found that there was an error by the trial judge to which both parties contributed, all other grounds of appeal pursued by the husband were without merit. Thus we propose to order that the husband pay one half of the wife’s costs of and incidental to the appeal, such costs to be as agreed or as assessed.

I certify that the preceding 153 paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered 30 September 2008.

Associate