FAMILY COURT OF AUSTRALIA
| WEI & WEI AND ANOR | [2020] FamCAFC 224 |
| FAMILY LAW – APPEAL – PROPERTY – Where the matter proceeded undefended before the primary judge – Where the husband and intervenor identified nearly identical property pools – Where trust monies identified by the husband and intervenor had not been dealt with by the primary judge – Where the intervenor sought to correct an order pursuant to r 17.02 of the Family Law Rules 2004 (Cth) – Where the primary judge amended the judgment under r 17.02A that effected the correction – Where the primary judge overlooked updated affidavit evidence – Where the primary judge improperly excluded affidavit evidence – Where the primary judge erred in fact, contrary to the evidence – Where the slip rule cannot be called in aid to correct such errors – Where the orders made in ostensible reliance upon the slip rule must be set aside – Where the orders reflect a patent factual error by the primary judge – All three appeals allowed – Matter remitted – Costs certificates ordered. FAMILY LAW – APPEAL – COSTS – But for the intervenor’s email, the latter two appeals would never have been necessary – Decline to make order for costs on an indemnity basis – Order made for party/party costs in a fixed sum. |
| Family Law Act 1975 (Cth) ss 79, 117(2A)(c) Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 Family Law Rules 2004 (Cth) rr 17.02(1), 17.02A |
| APPELLANT: | Mr Wei |
| RESPONDENT: | Ms Wei |
| INTERVENOR: | J Lawyers Pty Ltd |
| FILE NUMBER: | MLC | 530 | of | 2017 |
| APPEAL NUMBER: | SOA SOA SOA | 14 15 17 | of of of | 2020 2020 2020 |
| DATE DELIVERED: | 10 September 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Melbourne (via video link) |
| JUDGMENT OF: | Ryan, Kent & Tree JJ |
| HEARING DATE: | 20 August 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 January 2020 24 February 2020 |
| LOWER COURT MNC: | [2020] FamCA 38 [2020] FamCA 96 [2020] FamCA 98 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Matta |
| SOLICITOR FOR THE APPELLANT: | Kenna Teasdale Lawyers |
| THE RESPONDENT: | No appearance |
| COUNSEL FOR THE INTERVENOR | Mr Hutchings |
| SOLICITOR FOR THE INTERVENOR | J Lawyers Pty Ltd |
Orders
Appeals SOA 14, 15 and 17 of 2020 be allowed.
The orders of the primary judge made 3 February 2020 and 24 February 2020 be set aside.
Proceeding MLC 530 of 2017 be remitted for re-hearing before a Family Court judge other than the…
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- Wei and Wei & Anor [2020] FamCAFC 224
- Case
- [2020] FamCAFC 224
- Decision Date
CaseChat Overview and Summary
The Full Court found that the primary judge made several errors in handling the property pools, trust monies, and affidavit evidence. The court determined that the primary judge overlooked updated affidavit evidence, improperly excluded other affidavit evidence, and made factual errors that were not supported by the evidence. The Full Court concluded that the slip rule could not be used to correct these errors, and the orders made in reliance on the slip rule had to be set aside. The Full Court also found that the primary judge's orders reflected a patent factual error.
As a result of these findings, the Full Court allowed all three appeals and set aside the primary judge's orders. The court remitted the proceeding for re-hearing before a different Family Court judge. The Full Court also ordered costs certificates for the appellant, intervenor, and both parties for the rehearing. The intervenor was ordered to pay the appellant's costs for two of the appeals, fixed at a sum of $19,977.41. The appellant's other applications for costs were dismissed.
The court's orders are subject to being entered in the Court's records.
Orders
Orders of the court
1.
Appeals SOA 14, 15 and 17 of 2020 be allowed.
2.
The orders of the primary judge made 3 February 2020 and 24 February 2020 be set aside.
3.
Proceeding MLC 530 of 2017 be remitted for re-hearing before a Family Court judge other than the primary judge.
4.
In appeal SOA 14 of 2020, the Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to that appeal.
5.
In appeal SOA 14 of 2020, the Court grants to the intervenor a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the intervenor in respect of the costs incurred by the intervenor in relation to that appeal.
6.
The Court grants to both the appellant and the intervenor costs certificates pursuant to the s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the rehearing.
7.
The intervenor pay the appellant’s costs of appeals SOA 15 and 17 of 2020 fixed in the sum of $19,977.41.
8.
That otherwise the appellant’s applications for costs be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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