Tadgell & Hahn & Anor - [2013] FamCAFC 1

FAMILY COURT OF AUSTRALIA

TADGELL & HAHN AND ANOR

[2013] FamCAFC 1

FAMILY LAW – APPEAL – NOTICE OF APPEAL – LEAVE TO APPEAL – where the Federal Magistrate dismissed the wife’s application to join the husband’s mother as a party to the property settlement proceedings – where the wife submits that the order made is a final order and thus leave to appeal is not required – where the husband and his mother say otherwise – where the question is whether the order made is “an interlocutory decree” rather than a final order – where the usual test is whether the order finally determines the rights of the parties in the principal case pending between them – where the authorities have determined that in applying the test the court is to have regard to the legal rather than practical effect of the judgment – where the legal effect of the judgment here is not to finally determine the rights of the parties – where leave to appeal is required – where the wife must demonstrate that there has been an error of principle and/or the fact that the decision appealed from caused her a substantial injustice – where the wife claims that she and the husband have an equitable interest in a property owned by the husband’s mother – where the Federal Magistrate found that there was no detriment suffered by the wife and her husband relying on representations made by the husband’s mother – where it is apparent that the Federal Magistrate gave inadequate consideration to significant aspects of the detriment that the wife was alleging – leave to appeal granted.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where there is merit in three of the four grounds of appeal – where the orders made by the Federal Magistrate should be set aside – where the question becomes whether the matter be remitted for rehearing or the discretion be re-exercised – matter adjourned for submissions on the question of remission or rehearing.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the wife sought that in the event that leave was granted and the appeal was successful that the parties each bear their own costs and a costs certificate issue pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – where the husband and his mother joined in that submission – where the appeal succeeded on a question of law – costs certificates issued.

Family Law Act 1975 (Cth) s 94AA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Family Law Rules 2004 (Cth) r 22.04
Family Law Regulations 1984 (Cth) reg 15A

Bergman & Bergman (2009) FLC 93-395
Bienstein v Bienstein (2003) 195 ALR 225
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Carr v Finance Corporation of Australia Limited (No. 1) (1981) 147 CLR 246
Commonwealth Bank of Australia v ACN 000 247 601 Pty Limited (in liq) (formerly Stanley Thompson Valuers Pty…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Tadgell & Hahn & Anor [2013] FamCAFC 1
Case: [2013] FamCAFC 1
Decision Date

CaseChat Overview and Summary

Ms Tadgell appealed against the order made by the Federal Magistrates Court dismissing her application to join the husband’s mother as a party to property settlement proceedings. The wife submitted that leave to appeal was not required because the order was a final order, whereas the husband and his mother argued that leave was required. The wife appealed against the order and sought that the husband’s mother be joined as a party to the proceedings. The wife had to demonstrate that there had been an error of principle and/or the fact that the decision appealed from caused her a substantial injustice. The wife alleged that the Federal Magistrate erred in law by failing to find that she had reasonable prospects for success in establishing a constructive trust or equitable estoppel, and by determining that the only relevant detriment was that the wife and her husband ceased looking for another property. The wife also alleged that the Federal Magistrate failed to give appropriate weight to the detriment suffered by her. The Federal Magistrate gave inadequate consideration to significant aspects of the detriment that the wife was alleging, and there was merit in the proposed grounds of appeal. Accordingly, leave to appeal was granted and the appeal was allowed. The court set aside the orders made by the Federal Magistrate and issued costs certificates to each party. The court adjourned the matter for submissions as to whether the matter should be remitted for rehearing or whether the court should re-exercise the discretion.

Orders