WEST & WHITE
[2017] FamCAFC 201
•19 September 2017
FAMILY COURT OF AUSTRALIA
| WEST & WHITE | [2017] FamCAFC 201 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where the evidence was available to be adduced before the primary judge – Where the circumstances in which Court can accept further evidence are circumscribed – Where these conditions are not met – Application dismissed. FAMILY LAW – APPEAL – CONTRAVENTION – Appeal against dismissal of contravention application – Weight afforded to evidence – Findings open on the evidence – Where the appeal does not raise any question of general principle – Reasons for decision in short form pursuant to s 94(2A) of the Family Law Act 1975 (Cth) – Appeal dismissed. |
FAMILY LAW – APPEAL – COSTS – Where the respondent to the appeal seeks quantified costs – Where the appeal was wholly unsuccessful – Where impecuniosity is not a bar to the making of a costs order – Application of principles set out in Sresbodan & Sresbodan and Ors [2016] FamCA 954 – Costs ordered in quantified sum.
| Family Law Act 1975 (Cth) ss 94(2A), 117 |
Family Law Rules 2004 (Cth) rr 19.50, 19.51
| Lenova & Lenova (Costs) [2011] FamCAFC 141 Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 Sresbodan & Sresbodan and Ors [2016] FamCA 954 |
| APPELLANT: | Mr West |
| RESPONDENT: | Ms White |
| FILE NUMBER: | NCC | 3 | of | 2007 |
| APPEAL NUMBER: | EA | 194 | of | 2015 |
| DATE DELIVERED: | 19 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Cleary JJ |
| HEARING DATE: | 19 September 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 November 2015 |
| LOWER COURT MNC: | [2015] FamCA 1088 |
REPRESENTATION
| THE APPELLANT: | In person |
| SOLICITOR FOR THE RESPONDENT: | Mr Fox of Attwaters Solicitors |
Orders
The respondent have leave to file written submissions in response to the Application in an Appeal filed on 5 September 2017.
The Application in an Appeal be dismissed.
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal in the sum of $6,215.34, such sum to be paid within ninety (90) days of this order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym West & White has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 194 of 2015
File Number: NCC 3 of 2007
| Mr West |
Appellant
and
| Ms White |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Ainslie-Wallace J
By Appeal EA 194 of 2015 filed on 11 December 2015 Mr West, to whom I shall refer as the husband for convenience, appeals against orders made by Johnston J on 16 November 2015 in which his Honour dismissed the husband’s application that Ms White, to whom I shall refer as the wife, be dealt with for breaching two property orders made on 16 December 2008.
In my opinion, the appeal should be dismissed. It does not raise any question of general principle, and I propose to give reasons in short form (see s 94(2A) of the Family Law Act 1975 (Cth) (“the Act”)).
The application heard before the primary judge arose from consent orders entered into between the parties on 16 December 2008 and in which, relevantly, the parties agreed as to property settlement.
The two orders relevant to the application before the primary judge were
orders 1.1 and 8:
1. By way of alteration of property interests pursuant to Section 79 of the Act, the parties and each of them do all acts and things and execute all deeds and instruments necessary or convenient to effect the following:
1.1the sale by private treaty for the best price reasonably obtainable in the current market of the land and premises situate at and known as [V] in the State of NSW … ;
…
8.The wife shall keep the husband informed of the progress of the marketing and sale of the home.
The husband contended that the wife, without reasonable excuse, contravened both of these orders.
Following the making of the consent orders in 2008, the parties’ property was placed on the market for sale. Eventually, in August 2009 the wife (who had been appointed the parties’ agent for the purposes of the sale), accepted an offer of $530,000 and the property was sold at that price.
As I have said, the husband brought contravention proceedings. The primary judge, having considered the evidence, found a prima facie case established and the wife called evidence in the matter. His Honour found neither alleged contravention made out.
The primary judge’s reasons
Order 1.1
The husband contended that in contravention of Order 1.1, the wife failed to sell the property for the best price obtainable in the then current market and contended that she sold the property at a price under the then market value.
In support of his allegation, the husband called evidence from a property valuer, Mr H, who said that, based on comparable sales in the area at that time, the value of the property at that time was $575,000.
His Honour noted that wife relied on the evidence of the real estate agent responsible for the sale, Mr Y, in which he set out the steps taken by him to market the property and attract potential buyers. It was he who ultimately suggested to the wife to list the property at a price between $520,000 and $539,000 which she did. He also gave evidence about the properties Mr H said were comparable as he was the listing agent for both of them.
His Honour said of the evidence on this point:
22. [Mr H] was asked whether, assuming all of those matters, it had been reasonable for the vendor to have accepted the offer of $530 000 for the sale of the property. [Mr H] responded that on the basis that the property had been on the market for as long as it had been and that it had been inspected by multiple groups of prospective purchasers, then that was “a fair call”.
His Honour, after considering the evidence of both the valuer and the real estate agent as to the properties said to be comparable to the parties’ property and on which the valuer based his opinion as to the then value of the property, said:
30. … On the face of [Mr H’s] evidence that at the time of sale of the subject property, in [Mr H’s] opinion it had a market value of $575 000, there might have been a basis for considering that a sale price of $530 000 was not the best price reasonably obtainable in the then current market. But I accept [Mr Y’s] evidence of the professional efforts undertaken by him in his endeavours to achieve the sale of the property. In my view, in all the circumstances, those efforts appear to have been appropriate. [Mr H] conceded as much. In addition, [Mr Y’s] evidence about the two properties used by [Mr H] as “excellent comparable sale(s)” at least casts some doubt on the conclusions of [Mr H] in relation to those being “excellent” comparators.
His Honour thus found that the husband had not demonstrated that the sale price was not the “best price reasonably obtainable in the (then) current market”.
Order 8
The husband further contended that the wife failed to keep him “informed of the progress of the marketing and sale of the home” in accordance with
Order 8.
After considering the wife’s evidence of how and in what way she kept the husband informed of the sale, some of which was in part conceded by the husband, his Honour found the wife’s version of events to be preferred to those of the husband, and in any event found that the parties did have discussions in which they talked about the listing price of the property.
Of particular importance in determining this issue was a letter sent to the husband at an address in K in which the wife informed the husband of the price at which she had agreed to sell the property some ten days before the sale. Although the husband contended that the address was not one he regularly used, the primary judge found that it was an appropriate address to send the letter. His Honour concluded at [59]:
Given the nature of the husband’s application namely, an application in which he has alleged that the wife has contravened a Court order, the onus is on the husband to establish each element of the alleged breach. In my view, the wife has established that prior to and following the making of order 8, she had conversations with the husband about the price at which the home would be offered for sale, about the results of inspections by prospective purchasers and finally her solicitor’s letter informing the husband that the home was about to be sold and at $530 000. It is not her fault that the husband did not receive the letter, if indeed that was the case.
Thus his Honour dismissed the husband’s application.
The appeal
There is one ground of challenge to the primary judge’s conclusion in relation to Order 1.1 which is that his Honour erred in placing “greater weight” on the evidence of the real estate agent in preference to that of the valuer.
In my view, there is no substance to this challenge. First, although the application contended that the wife did not, in contravention of the order, sell the property at the best available price in the market, the valuer conceded that, having regard to the steps taken by the real estate agent, the length of time the property had been on the market and the buyer response to the higher price, he considered the sale at $530,000 to be a “fair call”. That of itself, in my view, is sufficient to dispose of the alleged contravention. However, his Honour went further and considered the valuer’s evidence of the comparable properties and assessed the competing evidence between the valuer and the real estate agent as to whether the identified properties were indeed comparable. In this respect, his Honour preferred the evidence of the real estate agent. The primary judge’s finding was neither glaringly improbable nor contrary to compelling inferences and was open to him (see Robinson Helicopter Company Incorporated v McDermott (2016) 331 ALR 550 at [43]).
Thus no error has been shown.
As to the primary judge’s finding in relation to Order 8, the ground of appeal is difficult to understand and does not on its face raise a competent challenge.
The husband submits that there was no “genuine intent of compliance” on the wife’s part. I take it this means a challenge to the finding of the primary judge that the wife had kept the husband informed in accordance with the obligations under the order. The primary judge accepted the wife’s evidence that she had discussed the sale of the property, its listing and the price at which it was listed with the husband. His Honour further placed considerable weight on the letter sent by the wife’s solicitor to the husband some ten days before the sale which advised the husband of the proposed terms of sale. The primary judge found that, in sending that letter, the wife had taken steps to keep the husband informed. These findings were well open to the primary judge on the evidence before him and in my view no error has been established.
Application in an Appeal
The husband sought by Application in an Appeal to adduce further evidence on the appeal. The evidence, comprising mostly letters written by him to the wife and her solicitor, was available to be adduced before the primary judge, although the husband said he couldn’t find the letters in time to produce them to the primary judge on the contravention application. The husband further sought to adduce evidence of a page or two from a textbook which was received and marked Exhibit 1 on the appeal.
The circumstances in which this court may accept further evidence are circumscribed. None of the conditions which would permit the evidence to be adduced is met in this case and in my opinion the application should be dismissed and I would dismiss the appeal.
Aldridge J
I agree with the reasons and the orders proposed by the presiding judge.
Cleary J
I, too, agree with the reasons and the orders proposed by her Honour.
Ainslie-Wallace J
Therefore the orders of the Court will be:
1.The Application in an Appeal be dismissed.
2.The appeal be dismissed.
COSTS
Aldridge J
The wife seeks an order for her costs of the appeal to be paid by the husband. In support of that application her solicitor has tendered an assessment of her costs, including the costs of the appearance of her solicitor today as counsel. The assessment of the wife’s legal costs has been calculated in accordance with the scale currently applicable to legal costs, save as I have indicated for the appearance today which has been calculated in accordance with r 19.50 and r 19.51 of the Family Law Rules 2004 (Cth).
The general position under s 117 of the Act is that the parties are to bear their own costs of the appeal. However, where the circumstances justify a different order the Court may make such order as it thinks fit.
In determining whether such circumstances exist the Court must have regard to the matters set out in s 117(2A). The parties raise only two considerations. Firstly, that the appeal has been wholly unsuccessful. That is undoubtedly correct.
Speaking for myself I do not accept the husband’s submissions that the appeal was dismissed on a technicality. The primary judge found that the husband had not on the facts before him established the contraventions he alleged and we have found that there was no error in his Honour’s approach, having regard to the substance of his Honour’s conclusions. That consideration also supports the making of an order for costs.
The husband submits that the making of a costs order would cause him hardship. We received submissions from him as to his current financial position. He is on a pension receiving $800 a fortnight and has no other significant assets. He says that the making of a costs order even in the amount claimed by the wife would cause him hardship. I accept that to be the case. However it is also well established that impecuniosity is of itself not a bar to the making of a costs order (Lenova & Lenova (Costs) [2011] FamCAFC 141 at [12]). Otherwise impecunious litigants would be able to litigate without peril.
Taking these matters into account in my opinion the appropriate order is that the husband should pay the wife’s costs of the appeal.
Turning then to the question of the assessment of those costs; as I indicated the wife’s solicitor has prepared an assessment of her costs based on scale subject to the qualification mentioned earlier. Those fees come to a total of $6,215.34. That assessment was provided to the husband earlier today. He was given the opportunity to read it and make any submissions on any aspects of that that he felt were inappropriate; he did not point to any such matter. The principles for the assessment of costs by the Court have been summarised in Sresbodan & Sresbodan and Ors [2016] FamCA 954 (at [46] to [50]). Applying those principles I consider it appropriate that the costs be quantified by this Court in the sum claimed by the wife.
Given the husband’s financial position I propose that there be a period of 90 days for the payment of those fees, so I would propose an order that the husband pay the wife’s costs assessed in the sum of $6,215.34, such costs to be paid within 90 days.
Cleary J
I agree with his Honour Justice Aldridge that this appeal was not dismissed on a technicality, rather because there was no foundation for the appeal. I otherwise agree with the order proposed.
Ainslie-Wallace J
I too agree with the order proposed by Aldridge J and the reasons for making it. Thus the court will order that the husband pay the wife’s costs of and incidental to the appeal in the sum of $6,215.34, such sum to be paid within 90 days of this order.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Cleary JJ) delivered on 19 September 2017.
Associate:
Date: 26 September 2017
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