Trustee of the Bankrupt Estate of Hicks & Hicks and Anor

The appeal in the matter of the Trustee of the Bankrupt Estate of Hicks & Hicks involved a dispute concerning the setting aside of consent orders in a family law case. The primary judge had bifurcated the proceedings and only heard and determined the application to set aside the consent orders. The second respondent conceded that there was a miscarriage of justice, and the primary judge dismissed the application in the exercise of her discretion. The court of appeal found that the primary judge had erred in the exercise of her discretion and that there was a lack of findings by the primary judge on central issues relating to the integrity of the court’s orders and process. The court found that the primary judge misconstrued the relevance of the husband’s use of a particular address on incoming passenger cards and failed to make a finding as to the date of separation of the parties.

The legal issues before the court of appeal related to the primary judge's exercise of discretion in dismissing the application to set aside the consent orders and the failure to make findings on important, substantial, and controversial issues. The court of appeal found that the primary judge's failure to make findings on the date of separation was significant, as it went to the wife's involvement in the husband's affairs and her part in the application for consent orders. The court also found that the primary judge had misconstrued the relevance of the husband's use of a particular address on incoming passenger cards. The court of appeal concluded that the primary judge had erred in the exercise of her discretion and that the appeal should be allowed.

The court of appeal set aside the order of the primary judge and partially remitted the proceedings for rehearing by a judge other than the primary judge. The rehearing was to proceed on the basis that there had been a miscarriage of justice. The court of appeal also granted costs certificates to the trustee and the wife for the appeal and for the partial rehearing. The form of the order was subject to the entry of the order in the court's records.