Uttar & Rajendra

[2024] FedCFamC1A 46

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Uttar & Rajendra [2024] FedCFamC1A 46

Appeal from:

Orders made 5 February 2020

Appeal number:

NAA 19 of 2024

File number:

SYC 6488 of 2014

Judgment of:

AUSTIN J

Date of judgment:

28 March 2024

Catchwords:

FAMILY LAW – APPLICATION IN AN APPEAL – Review of decision – Where the applicant seeks review of the appeal registrar’s decision to refuse an extension of time within which she may appeal from orders made in February 2020 (“the orders”) – Where the orders appointed the respondent as the sole trustee for sale of the parties’ property – Where the applicant wants her proposed appeal from the orders allowed and the orders set aside – Where the orders have been executed – Where neither party has enjoyed any legal or beneficial interest in the property since the third party purchaser became the exclusive registered proprietor of it in April 2023 – Where any appeal now from spent orders would be an exercise in futility and waste – Where there is no justiciable controversy to be quelled by the grant of any appellate remedy – Where the applicant failed to explain how the orders were vitiated by jurisdictional error – Application in an Appeal dismissed – Where the applicant acceded to pay the costs of the respondent in a fixed sum.

Legislation:

Family Law Act 1975 (Cth) Pt VIII, ss 79, 80, 114, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32

Real Property Act 1900 (NSW) s 86

Cases cited:

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1

Marriage of Phillips (1985) FLC 91-634

Marriage of Ravasini (1983) FLC 91-312

Marriage of Warwick (1983) FLC 91-342

Moliere & Van Wyk (1980) FLC 90-911

Pera v Pera (2008) FLC 93-372; [2008] FamCAFC 87

Pitman & Hynes (No.3) [2021] FamCAFC 82

Stanley v DPP (NSW) (2023) 407 ALR 222; [2023] HCA 3

Whitmore & Whitmore [2022] FedCFamC1A 75

Number of paragraphs:

38

Date of hearing:

28 March 2024

Place:

Newcastle (via video link)

The Applicant:

Litigant in person

Counsel for the Respondent:

Ms Rusiti

Solicitor for the Respondent:

Arch Law (Australia) Pty Ltd

ORDERS

NAA 19 of 2024
SYC 6488 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS UTTAR

Applicant

AND:

MR RAJENDRA

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	28 MARCH 2024

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 8 March 2024 is dismissed.

2.Save as to costs, the Response to an Application in an Appeal filed on 26 March 2024 is dismissed.

3.The applicant shall pay the respondent’s costs of and incidental to the review hearing, fixed in the sum of $3,500.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Utter & Rajendra has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the dismissal of an application to review the decision made by the appeal registrar on 19 February 2024, refusing an extension of time within which the applicant may appeal from orders made in February 2020 and ordering the applicant to pay the respondent’s costs of $3,500 in respect of the failed application.

   Background

2. The applicant and the respondent are former spouses.

3. They separated in 2014 and the applicant commenced proceedings under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) some months later seeking financial relief. The cause was listed for trial in April 2019, but compromised by consent orders made on the second day of trial.

4. The agreed property settlement orders required the sale of the former family home (“the property”) and the division of the net proceeds of sale between them. The applicant, who was the sole registered proprietor of the property, was to have exclusive occupation until its sale. The residual orders are not relevant for present purposes. For reasons which are unnecessary to discuss, the sale of the property did not proceed and enforcement litigation ensued.

5. On 5 February 2020, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders appointing the respondent as the sole trustee for sale of the property (Order 1), enabling the respondent unfettered access to the property to discharge his function as the trustee for sale (Order 2), and requiring the applicant to pay the respondent’s costs of $5,000 in relation to the dispute from her share of the net proceeds realised on the sale of the property (Order 3).

6. No appeal was brought from those orders.

7. On or about 31 March 2020, in his capacity as trustee for sale, the respondent contracted to sell the property to a third party purchaser for $3 million. The terms of the contract specified it would not be completed for two years. In advance of the projected contract completion date in March 2022, the applicant refused to vacate the property and it was necessary for the respondent to obtain and execute a warrant for possession of the property. Having lawfully ejected the applicant from the property, the respondent finally completed the sale of the property to the purchaser on 10 July 2022.

8. Complications arose in the process of registering the purchaser as the legal proprietor of the property because, first, the respondent had not registered on the title to the property the orders made in February 2020 appointing him as the trustee for sale of the property, and secondly, the applicant registered a caveat on the title to the property and refused to remove it.

9. Further orders were made on 30 November 2022 enabling the Court’s registrar to execute a notice withdrawing the caveat on title to the property, which subsequently occurred.

10. Eventually, in about late April 2023, the purchaser became the sole registered proprietor of the property.

11. On 18 January 2024, the applicant filed an Application in an Appeal seeking an extension of time within which to appeal from the consequential orders made nearly four years beforehand on 5 February 2020.

12. The application to extend time to appeal was heard by the appeal registrar on 16 February 2024 and dismissed by orders made several days later on 19 February 2024. The appeal registrar made orders in these terms:

    1.The Application in an Appeal filed on behalf of [the Applicant] on 18 January 2024 is dismissed.

    2.By 4.30pm on Monday, 18 March 2024 the applicant pay the respondent’s costs of and incidental to the above Application in an Appeal fixed in the sum of $3,500.00.

13. On 8 March 2024, the applicant filed an Application in an Appeal seeking the review of the appeal registrar’s decision.

14. In support of the review application, the applicant relies upon:

    (a)her three affidavits filed on 18 January 2024, 9 February 2024, and 8 March 2024, the first of which annexes the draft Notice of Appeal she intends to file and prosecute if permitted;

    (b)her written submissions filed on 9 and 16 February 2024; and

    (c)the Outline of Case document she tendered at the hearing (Exhibit W1).

15. The respondent filed a Response to an Application in an Appeal on 26 March 2024 opposing the relief sought by the applicant, but alternatively, seeking security for his costs of the appeal. In support of his position, the respondent relied upon the affidavit of his solicitor, Mr E, filed on 13 February 2024 and the Outline of Case document he tendered at the hearing (Exhibit H1).

    Ambit of the review

16. The applicant’s review application over-reaches the review of the appeal registrar’s decision.

17. Not only does the applicant want the appeal registrar’s decision reversed (Orders 1 and 2), she wants her proposed appeal from the orders made on 5 February 2020 allowed (Order 3) and those orders set aside (Order 4). Inconsistently, she also wants the proposed appeal listed for hearing in conjunction with another pending appeal, which is already listed for hearing before another judge on 20 May 2024 (Order 5).

18. The orders made on 5 February 2020 were made by a judge of the Federal Circuit and Family Court of Australia (Division 1) and any appeal from them, if permitted to be brought out of time, must be heard by the Full Court (s 32(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). It is therefore impossible, even if the appeal is permitted to be brought, to determine it now as a single judge or, alternatively, consolidate it with another appeal listed for hearing before a different single judge.

19. The applicant is confined to the review of the appeal registrar’s decision, as is embodied in the orders made on 19 February 2024.

    Legal principles

20. The applicant’s review application necessitates the de novo hearing of her application for an extension of time within which to appeal from the orders made on 5 February 2020.

21. In Whitmore & Whitmore [2022] FedCFamC1A 75, the principles governing the disposition of an application for the extension of time to file process were expressed in is way, which I adopt for present purposes:

    17.Countless decisions have addressed the principles which apply to the determination of applications to extend time to appeal. Inevitably, they all lead back to principles enunciated by the High Court of Australia in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra vKrakouer (1998) 195 CLR 516.

    18.Essentially, the applicant seeking the extension of time must demonstrate that there is a substantial issue to be raised in the appeal, for otherwise it is pointless granting the extension of time to bring it. That issue is always central to the inquiry, though other considerations then influence the exercise of discretion. Such other considerations are unconfined but include the extent of the delay, the cogency of the reasons offered by the applicant for the delay, whether hardship or prejudice would accrue to the respondent if an extension of time were granted, and the public policy of ensuring that finalised litigation is not unnecessarily re-opened.

    Disposition

22. The grounds of appeal which the applicant intends to prosecute if permitted to appeal from the orders made on 5 February 2020 are as follows:

    1.Extension of time to appeal all orders made on 5 February 2020 as appeal has reasonable prospects of success.

    2.Jurisdictional error and invalid orders 1 and 2 and 3 in view of Section 86 of Real Property Act 1900.

    3.Error of principle and substantial miscarriage of justice not to vary cost order 3 where [the applicant] with the benefit of legal advice and representation failed to serve Registrar General with a copy of orders of 5 February 2020 made by [the primary judge] and thus order 1 has no effect or operation in transferring or otherwise vesting the land the subject of the order and [the respondent] continues to remain registered proprietor of the land who had engaged a real estate agent.

    (As per the original)

23. As can be seen, Ground 1 is not a ground of appeal at all. It is merely a re-statement of the applicant’s request for an extension of time to appeal blended with her unduly optimistic opinion about the prospects of its success.

24. The asserted errors which allegedly vitiate the orders made on 5 February 2020 are: first, jurisdictional error; and secondly, their invalidity by reason of the respondent’s failure to later register the orders with the NSW land titles registrar (“the State agency”) under the Real Property Act 1900 (NSW) (“the State Act”).

25. Before explaining the misconceptions which beset the grounds of appeal, it is worthwhile pointing out the absolute futility of the appeal.

26. The orders made on 5 February 2020 were not substantive orders adjusting the parties’ property interests under s 79 of the Act. Rather, they were merely consequential orders to facilitate the implementation of the property settlement orders made earlier in April 2019.

27. Once the substantive property settlement orders were consummated by the sale of the property and the division between the parties of the net proceeds, the consequential orders were spent. The orders are no longer executory. They have been executed. Neither party has enjoyed any legal or beneficial interest in the property since the purchaser became the exclusive registered proprietor of the property in April 2023. The entertainment of any appeal now from spent orders would be an exercise in futility and waste.

28. Aptly, the Full Court said this in Pitman & Hynes (No.3) [2021] FamCAFC 82:

    8.The waste of resources in deciding an argument of no practical significance should be avoided, since the object of the judicial process is the final determination of the parties’ rights. No public or genuine private interest in this appeal makes it desirable to determine the appeal on the merits.

    (Citations omitted)

29. On one view of it, the situation is even clearer against the applicant’s interests – jurisdiction no longer even exists to entertain her appeal (or the application for leave to bring it) because there is now no justiciable controversy to be quelled by the grant of any appellate remedy (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [31]–[35], [52], [61], [66], [68], [72]–[74], [90]–[92] and [110]–[112]). Neither party has any remaining or prospective interest in the property, which is now owned exclusively by a bona fide third party purchaser.

30. That is enough to dispose of the application though, for the applicant’s edification, some observations may usefully be offered in respect of her proposed grounds of appeal to disabuse her of the mistaken belief about their merit.

31. Aside from referring obliquely to the High Court decision in Craig v South Australia (1995) 184 CLR 163, the applicant failed to elaborate, either orally or in writing, how the orders made on 5 February 2020 were vitiated by “jurisdictional error”. In general terms, jurisdictional error occurs if a court mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in instances where it correctly recognises jurisdiction does exist (Stanley v DPP (NSW) (2023) 407 ALR 222; Kirk v Industrial Court of NSW (2010) 239 CLR 531; Craig v South Australia at 177–180).

32. As already noted, the orders were made to facilitate the implementation of the existing substantive property settlement orders. There can be no doubt the Court had both jurisdiction and power to make such orders (Moliere & Van Wyk (1980) FLC 90-911; Marriage of Ravasini (1983) FLC 91-312 at 78,125–78,128; Marriage of Warwick (1983) FLC 91-342 at 78,310; Marriage of Phillips (1985) FLC 91-634 at 80,126 – 80,127; Pera v Pera (2008) FLC 93-372 at [58]–[62]).

33. The applicant’s secondary argument is that the orders made on 5 February 2020 were rendered invalid because they were not registered with the State agency under the State Act, which proposition cannot be accepted either.

34. The property settlement orders made in April 2019 were made pursuant to the statutory power reposing in s 79 of the Act. In order to ensure property adjustment orders are implemented, the Act invests the Court with an armoury of powers (s 80), which extend to the power to appoint trustees (s 80(1)(e)) and to make any order which is thought necessary to do justice (s 80(1)(k)). It is also possible to make injunctions to implement substantive orders (s 114(1)). The orders appointing the respondent as the trustee for sale and enabling his access to the property to discharge his functions (Orders 1 and 2) were therefore empowered by the Act. The ancillary costs order made against the applicant (Order 3) was empowered by another statutory provision (s 117).

35. Orders 1 and 2, being orders made within federal jurisdiction and power, were not invalidated by the failure to register them under the State Act. Registration of the orders is an act which follows upon the orders having been validly made. The failure to register the orders in a timely way with the State agency under s 86 of the State Act did indeed frustrate the respondent’s completion of the contract of sale with the purchaser, at least until the non-compliance was rectified in 2022, but such temporary non-compliance did not retrospectively invalidate the orders. So much is obvious from the State agency’s willingness to ultimately register the purchaser as the new owner of the property once the respondent’s authority was established by registration of the orders.

36. The proposed appeal evinces no reasonable prospects of success and so an extension of time within which to bring it should not be granted, making it unnecessary to say anything about the paucity of evidence to excuse the gross delay in bringing the application to extend time.

37. Consequently, the review application is dismissed and it is unnecessary to consider the alternative relief sought by the respondent.

    Costs

38. The respondent sought an order for costs against the applicant in respect of the contested review application, fixed at $3,500. The applicant acceded to such an order and so it was made by consent.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       28 March 2024