Waldrow & Waldrow (No 2)
[2015] FamCAFC 243
•18 December 2015
FAMILY COURT OF AUSTRALIA
| WALDROW & WALDROW (NO. 2) | [2015] FamCAFC 243 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Application for an extension of time to file a notice of appeal from interim and final property decisions of a Federal Circuit Court Judge – Where the Federal Circuit Court Judge had made multiple orders over a number of years – Where the delay was adequately explained – Where the Application was adjourned to allow an amended proposed Notice of Appeal to be filed – Where the husband filed a further affidavit attaching three draft Notices of Appeal – Where there is little merit – Where there is substantial prejudice to the wife – Application dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – COSTS – Where the respondent sought costs on an indemnity basis – Where the applicant resisted such application due to financial circumstances – Where it is appropriate to make an order for costs, to be assessed. |
| Family Law Act 1975 (Cth) ss 117(1), 117(2), 117(2A) Family Law Rules 2004 r 22.13 |
| APPLICANT: | Mr Waldrow |
| RESPONDENT: | Ms Waldrow |
| FILE NUMBER: | BRC | 11843 | of | 2007 |
| APPEAL NUMBER: | NA | 48 | of | 2015 |
| DATE DELIVERED: | 18 December 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 16 December 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 1626 |
REPRESENTATION
| THE APPLICANT: | Mr Waldrow (in person) | |
| COUNSEL FOR THE RESPONDENT: | Ms Wilson | |
| SOLICITOR FOR THE RESPONDENT: | Stockley Furlong | |
It is Ordered:
The Application in an Appeal filed 14 July 2015 is dismissed.
The applicant pay the respondents costs, to be assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Waldrow & Waldrow has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 48 of 2015
File Number: BRC 11843 of 2009
| Mr Waldrow |
Applicant
And
| Ms Waldrow |
Respondent
REASONS FOR JUDGMENT
Mr Waldrow (“the husband”) and Ms Waldrow (“the wife”) signed a binding financial agreement (“BFA”) dated 28 February 2008. The BFA, inter alia, required the husband and wife to transfer properties and pay cash amounts to effect final property orders should they separate. The parties finally separated in December 2007.
The events surrounding the transfer of properties and payment of money are central to the husband’s application to appeal, out of time.
By application filed in the Federal Circuit Court of Australia on 25 March 2010 the wife sought to enforce the agreement.
In essence, the wife’s position is that she completed her obligations in accordance with the BFA, but that the husband failed to transfer to her, unencumbered, a property located at C Street (“C Street Property”).
The husband contends that the amount of $312,000 the wife was obliged to pay, was paid into the wrong account, causing him to be unable to discharge the mortgage over the C Street Property.
In the Federal Circuit Court proceedings, the husband asked at first that the wife pay him the sum of $312,000 and that he would then transfer the property to the wife. The husband then amended his application and sought that the agreement be set aside. Judge Baumann refused to set aside the BFA and found in favour of the wife who asked that the agreement be enforced. The husband’s application was ultimately dismissed.
On 14 July 2015 the husband filed an Application (together with an affidavit) seeking an extension of time to file a Notice of Appeal from the orders made on 18 October 2013 by Judge Baumann. The orders made on that date were procedural in nature, although the accompanying reasons contained a lengthy discussion of the merits of the application including some findings. There were further hearings and a number of subsequent judgments were published. Judge Baumann invited submissions regarding the court’s accrued jurisdiction to award damages for breach of contract (on 26 September 2014) and ordered the husband pay to the wife the sum of $380,000 within 30 days, together with interest at the prescribed rate under the Family Law Rules 2004 (Cth) (“the Rules”) from 6 July 2014 to the date of payment (on 19 June 2015).
I first heard this application on 24 September 2015. It became clear that the husband, having only appealed the procedural orders of 18 October 2013, misunderstood the nature of the appeal process and had possibly appealed the incorrect orders. I determined it would be difficult to assess the merit of the husband’s proposed appeal without the amended notice of appeal, and made the following orders on 26 September 2014:
(1)The applicant husband’s Application in an Appeal filed 14 July 2015, seeking an extension of time to file a Notice of Appeal against the orders of Judge Baumann made on 18 October 2013, be adjourned to a date fixed by the Registrar.
(2)The applicant husband has leave to file an affidavit attaching a proposed Notice of Appeal on or before 4 pm on 23 October 2015.
(3)Upon failure to file such document by 23 October 2015, the application be dismissed and the applicant husband is ordered to pay the respondent wife’s costs of this application on an indemnity basis.
(4) The costs of the application are otherwise reserved.
On 21 October 2015 the husband filed an Affidavit, attaching three draft notices of appeal. The husband now wishes to appeal orders made on 18 October 2013, 26 September 2014 and 19 June 2015. It is necessary to consider each proposed Notice of Appeal to decide if there is merit in the husband’s appeals. The question of merit is largely determinative there being some reason for the delay, albeit a substantial period of delay. The prejudice to the wife is obviously a significant consideration.
My reasons published 25 September 2015 provide some explanation, but it is necessary to repeat the background to this matter in its entirety.
It should be noted that the husband had filed a Notice of Appeal (NA 47 of 2015) on 14 July 2015 against the orders of Judge Baumann made on 19 June 2015. Those orders compelled the husband to pay to the wife the sum of $380,000 together with interest. The wife was ordered to provide to the husband a quantification of her costs on an indemnity and scale basis. This appeal was deemed abandoned on 14 August 2015 as the husband failed to file a draft index as required by r 22.13(3) of the Rules. There has been no application to reinstate this appeal and thus his application for an extension of time to file an appeal out of time in relation to those orders is incompetent. For the reasons which follow it can be seen that an application for reinstatement would not succeed, as similar discretionary considerations apply to an extension of time application.
History of the Litigation – Reasons and Orders
At the outset, it is necessary to provide some context to these appeals. Unfortunately, the delays in this matter contributed to the complexity of the overall case and now this application. It is necessary to refer to some of the occasions this matter was heard, the reasons and orders made.
Hearing 25 October 2010 – reasons and orders delivered 30 March 2012
The husband claimed that the bank wrongly paid the sum of $312,000 deposited by the wife, into an incorrect account so that he was unable to discharge the mortgage.
Judge Baumann ordered that the application of the Husband to join the Bank of Queensland (“the bank”) be dismissed and the wife’s application for enforcement was adjourned. The primary judge found that there was no evidence of collusion, or other wrongful conduct between the wife and the bank to direct the funds into the purportedly wrong account.
Hearing in July and September 2012 on 4 days, and 12 April and 30 May 2013 – reasons and orders made 18 October 2013
Orders were made adjourning the matter for directions and that the husband file an affidavit in relation to proceedings which had commenced in the Supreme Court of Queensland regarding the C Street Property, instituted by the bank against the husband and his company. The bank had successfully obtained a judgment by default allowing them to recover possession of the C Street Property and that the husband and his company pay the bank the sum of $281,212.46 together with interest and costs.
Although the orders appear to be procedural only, Judge Baumann dealt with the husband’s application that the BFA be set aside.
In the reasons of 18 October 2013, Judge Baumann set out the relevant terms of the BFA. After referring at length to the evidence, the primary judge decided that the wife had complied with the terms of the BFA and that there were no grounds made out by the husband that the BFA should be set aside. Thus, the judge considered that the remaining question was enforcement of the BFA and so directions were made. Although it is not immediately apparent from the orders, the decision of 18 October 2013 is one of the substantive decisions in the proceedings.
On 30 October 2013, the parties again appeared before the primary judge, when it emerged that further orders were made on 23 October 2013 in the Supreme Court, providing for the recovery of the C Street Property. The husband’s counterclaim in that court had also been struck out.
On 13 November 2013 the judge formally ordered that the husband’s application to set aside the BFA be dismissed.
On 8 May 2014 (after the hearing on 13 November 2013) the judge gave reasons for that decision. On that date the judge ordered that the matter be adjourned to 13 May 2014.
In the reasons of 8 May 2014 the judge referred to his reasons given on 18 October 2013. The wife’s application before the judge was that the husband access his superannuation fund to pay out the mortgage over the C Street Property. By this time various other orders had been made in the Supreme Court and the bank was proceeding to sell the house.
The judge considered the power to enforce the BFA and the circumstances of the property being in the possession of the bank. The judge declined to enforce the BFA, finding that he was unable to order the transfer of the C Street Property from the husband to the wife.
On 26 September 2014, after a hearing on 14 and 31 July 2014, directions were made for the filing of submissions in relation to the court’s accrued jurisdiction to award damages for breach of contract. The house had been sold by the bank for the sum of $380,000. The husband applied for a stay and the application was dismissed. The matter was further adjourned to 24 October 2014.
Judge Baumann found the court could exercise its accrued jurisdiction and on 19 June 2015, ordered that the husband pay the wife the sum of $380,000 together with interest. Upon the filing of the application to appeal on 25 August 2015, Judge Baumann granted a stay of the orders.
Proposed Appeals
Against this complex history including litigation in both courts, the Supreme Court litigation being ongoing, I now consider the husband’s proposed notices of appeal.
The husband wishes to appeal the orders made by Judge Baumann on 18 October 2013, which provide:
(1)This matter be adjourned for directions to 1:00pm on 30 October 2013 in the Federal Circuit Court of Australia at Brisbane.
(2)The Husband file and serve, by 4:00pm on 28 October 2013, an affidavit setting out the current status of the Supreme Court action affecting [C Street Property] as well as an updated financial statement.
(original emphasis)
The husband also seeks an extension of time to appeal orders made by Judge Baumann on 26 September 2014, which provide:
(1)The Wife shall file and serve by 4:00pm on 7 October 2014, further written submissions as invited by the Court as to:-
(a)Whether the Court should exercise its accrued jurisdiction in this matter; and
(b)Whether the facts as found support relief for damages for breach of contract or any other remedy within the accrued jurisdiction of the Court; and
(c) If such relief is available, how such relief shall be quantified.
(2)The Husband shall file and served [sic] by 4:00pm on 16 October 2014 any written submissions in response.
(3)The Husband’s Application in a Case filed 8 June 2014 is dismissed.
(4)That a Registrar of this Court, pursuant to s.106A of the Family Law Act 1975 be appointed to execute on behalf of [the husband’s company] a transfer of registration, in favour of the Wife, in respect of [Car A].
(5)The matter be otherwise adjourned to 2:00pm on 24 October 2014 at the Federal Circuit Court of Australia at Brisbane.
(original emphasis)
As mentioned already, the husband seeks to appeal orders made by Judge Baumann on 19 June 2015, which provide:
(1)The Husband shall pay to the Wife the sum of $380,000 within 30 days, together with interest at the prescribed rate under the Family Law Rules from 6 July 2014 to the date of payment. s [sic]
(2)The Wife shall provide to the Husband a quantification of her costs, on both a scale basis and on an indemnity basis (if she still pursues a costs order) within 21 days.
(3)That the matter be set down for further hearing and directions at 9:30am on 21 July 2015 in the Federal Circuit Court of Australia at Brisbane.
(original emphasis)
This is the appeal deemed abandoned which has not been reinstated. The husband’s application for an extension of time to file an appeal is incompetent. In the absence of such a hurdle the conclusions I reach in refusing the extension of time would apply to the proposed appeal in any event. Thus the only application which I may consider is in relation to the orders made on 18 October 2013 and 26 September 2014.
Grounds of Appeal
The husband’s grounds of appeal are nearly identical in each appeal. In the appeal against the orders of 18 October 2013, the husband identifies the following grounds:
1.erred in not disposing of all matters and controversies before it in it’s Judgments and Orders delivered on:
a. 18 October 2013;
b. 26 September 2014; and
c. 19 June 2015
all of which should be read together for the purpose of determining this ground of appeal;
2.erred in taking into account irrelevant matters and/or failing to take account of relevant matters in the decision;
3.erred in finding that the Husband had received the benefit of the funds disbursed at the direction of the wife;
4.erred in finding that the Husband’s situation was “self induced” and on such basis denying the Husband remedies as sought;
5.denied the Appellant procedural fairness in reaching a decision regarding the Court’s accrued jurisdiction to award damages for breach of contract;
6.further or in the alternative erred in applying its accrued jurisdiction by failing to properly consider:
a.the existent of a contract;
b.the terms, implied and express, of any such contract;
c.whether or not either party was in breach of a term or warranty of such contract
d.whether or not there was an anticipatory breach and/or repudiation of such contract by the Wife, thus disentitling her to enforcement;
e.whether any damages were suffered as a result of any breach and if so on what basis such damages should be calculated
The proposed appeal against the orders of 26 September 2014 are also identical to Grounds 1 and 2 set out above, but with slightly a different Ground 3 and incorrectly numbered Ground 5 as follows:
3.erred in failing to properly consider:
a.the existence of a contract;
b.the terms, implied and express, of any such contract;
c.whether or not either party was in breach of a term or warranty of such contract
d.whether or not there was an anticipatory breach and/or repudiation of such contract by the Wife, thus disentitling her to enforcement;
e.whether any damages were suffered as a result of any breach and if so on what basis such damages should be calculated
5.further or in the alternative, erred in failing to properly apply the accrued jurisdiction of the Court.
Merit in the appeal
In my reasons published 25 September 2015, I found the reason for delay in filing the original notice of appeal were adequately explained. It is therefore necessary to consider the merit of the proposed appeals and the prejudice to the wife, the central principle being a consideration of the purpose of the Rules while doing justice to both parties.
The husband’s argument contained in his affidavit filed 14 July 2015 that he had not appreciated a final order had been made supports the explanation for the delay, but does not go to the merits of the appeal. The husband argued that as a litigant in person, he did not appreciate the complexities of the case. A careful reading of the various reasons for judgment of Judge Baumann reveals that the husband must have understood the issues and that the judge found him able to deal “with difficult areas of law and fact with some skill and plenty of tenacity.” (at [2] of the reasons of 18 October 2013).
On 22 September 2015, the husband also filed submissions in support of this application, to which I will refer.
The husband’s complaint is that the bank behaved improperly and that the wife somehow was complicit in this unconscionable conduct. No doubt these allegations will be considered in the action in the Supreme Court, the trial to be heard next year.
Counsel for the wife filed an updated summary of argument on 14 December 2015, opposing the Application. As to the prospects of success, counsel for the wife argued the following:
a)In relation to the grounds relating to an asserted failure of the judge not disposing of all matters, counsel for the wife submits that the orders specifically related to a resolution of all applications and reasons were provided.
b)In relation to the grounds that the judge failed to take into account relevant matters, or erred by taking into account irrelevant matters, counsel for the wife correctly submits that the husband has failed to identify these matters in his submissions.
c)In relation to the grounds regarding the BFA, counsel for the wife submits that the decision made by the primary judge that the BFA was binding was open to him on the evidence.
d)In relation to the grounds regarding accrued jurisdiction, counsel for the wife submits that the husband was afforded an opportunity to make submissions on this issue and filed written submissions on 16 October 2015.
Overall, counsel for the wife argues that the appeals entirely lack merit and that the motivation for the application is a delaying tactic, which continues to cause significant prejudice to the wife. The wife has complied with her obligations under the BFA and the orders of the court. The prejudice to the wife is substantial. The evidence of the wife was accepted by Judge Baumann. There are pending proceedings in the Supreme Court, but the wife is not a party. The wife has now been involved in litigation for a number of years in the Federal Circuit Court, no doubt at considerable expense.
Conclusion
The proposed appeals have little merit. Further, the appeals are futile. If the husband was granted a re-hearing, his only remedy available would be the setting aside of the order that he pay the wife damages, because the bank had sold the property. Having regard to the possible merits of the appeal and the substantial prejudice to the wife, the application should be dismissed.
Costs
Section 117(1) of the Family Law Act 1975 (Cth) provides that subject to certain factors, each party must bear their own costs. Section 117(2) provides that the court may make orders as to costs if it is of the opinion there are circumstances that justify such orders. Section 117(2A) contains a range of matters that the court may have regard to in making such orders, including (but not limited to) the financial circumstances of the parties and the success of the application.
In this case there are reasons which justify an order for costs. First, the husband failed to file an appeal within time, the appeal he did file was deemed abandoned. Secondly, there appears to be little merit in his proposed appeals. An order for costs should be made.
An application was made that the order for costs be on an indemnity basis; however such an order could not be justified in this case. Although the husband contended that he was unable to pay costs, which is disputed, it is appropriate that the husband pay the wife’s costs, to be assessed.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 18 December 2015.
Associate:
Date: 18 December 2015
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