Wyatt & Wyatt

[2023] FedCFamC1A 222

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Wyatt & Wyatt [2023] FedCFamC1A 222

Appeal from:

Wyatt and Wyatt [2023] FCWA 206

Appeal number:

NAA 265 of 2023

File number:

PTW 9466 of 2021

Judgment of:

ALDRIDGE, HARTNETT & RIETHMULLER JJ

Date of judgment:

7 December 2023

Catchwords:

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the parties entered into a contract to purchase property – Where the trial judge ordered the parties to complete the purchase – Dispute as to one of the consequential orders for the mechanisms of repaying the mortgage – Orders required repayments from a re-draw account – Amount in dispute no more than seven per cent of the assets of the parties – Wife conceded husband will receive 40 per cent of the assets of the parties – More than sufficient assets to make any appropriate adjustments when making final orders – No substantial injustice if leave refused – Leave refused – Appeal dismissed – Applicant to pay the respondent’s costs.

Legislation:

Federal Circuit and Family Court ofAustralia Act 2021 (Cth) s 28

Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02

Cases cited:

Jeffries & Post [2021] FedCFamC1A 92

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Perica & Perica [2022] FedCFamC1A 184

Number of paragraphs:

16

Date of hearing:

7 December 2023

Place:

Sydney

Counsel for the Applicant:

Mr Dowding SC

Solicitor for the Applicant:

Kerr Fels Lawyers

Solicitor for the Respondent:

Klimek Wijay Family Lawyers

ORDERS

NAA 265 of 2023
PTW 9466 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS WYATT

Applicant

AND:

MR WYATT

Respondent

ORDER MADE BY:	ALDRIDGE, HARTNETT & RIETHMULLER JJ
DATE OF ORDER:	7 DECEMBER 2023

THE COURT ORDERS THAT:

1.Leave to appeal is refused.

2.The appeal is dismissed.

3.The applicant is to pay the respondent’s costs of the appeal fixed in the sum of $8,369.71.

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 Wyatt & Wyatt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

RIETHMULLER J:

1. The applicant wife applies for leave to appeal against an interlocutory order made by the primary judge concerning the financial arrangements required to enable the parties to complete a contract for the purchase of an apartment off the plan. The parties entered into a contract to purchase the apartment in 2019 and paid a 10 per cent deposit of $120,000. In April 2022, the wife was content to proceed with the purchase, setting out in an affidavit a proposal for financing the purchase. Stamp duty of over $52,000 was paid from joint funds in November 2022.

2. The respondent husband, who wishes to retain this apartment, has expended around $70,000 on “custom designed furniture” for the apartment (Husband’s affidavit dated 21 July 2023, paragraph 31). Whilst the purchase price for the apartment is not insignificant ($1.2 million) the assets of the parties (on the wife’s case) have a value of around $6.15 million. The wife, in her substantive application, proposes a property settlement whereby the husband retains 40 per cent of the assets, around $2.46 million, an amount more than double the value of the apartment. The parties are sharing in the profits from the business currently controlled by the wife. The wife has retained the use of the former matrimonial home, and the husband was renting accommodation. The husband will live in the apartment following settlement and has the benefit of an exclusive occupation order with respect to the apartment. It appears that the apartment purchase has now settled, and liabilities have been incurred by the parties to finance the purchase.

3. Before the primary judge, the wife sought orders to enable the parties to rescind the contract or alternatively, to complete the purchase and then immediately sell the apartment. The husband sought orders for the parties to make the necessary finance arrangements to borrow funds to settle on the purchase and meet the loan obligations from a redraw account of the parties, pending the final property settlement orders. 

4. The primary judge determined that the parties should complete the contract, and made consequential orders as sought by the husband with respect to the financial arrangements to fund the purchase and meet the ongoing repayments pending trial. The only order challenged by the wife in this appeal is in the following terms:

   3.The parties do all acts and sign all documents necessary to cause the minimum repayments for the Apartment Loan, the variable loan, and the fixed loan to be met from the re-draw facility available on the fixed loan.

5. At the hearing before the primary judge, counsel for the wife made no submissions as to alternative funding arrangements in the event that orders were made for the parties to purchase the apartment, merely saying (Transcript 24 August 2023, p.18 lines 16–19):

   … it’s the package that the husband brings to the table that’s causing my client the difficulties. It’s the overall package, which is now – which he has now crystallised.

6. Whilst there was dispute before the primary judge as to the appropriate source of the power to make orders, counsel for the wife accepted that the Court had power to make the orders, saying (Transcript 24 August 2023, p.29 lines 5–10):

   The real power to make the orders sought by the husband or to obtain the result sought by the husband is, in fact, section – is, in fact, an interim alteration of property interests pursuant to section 79(4), and an exercise of the spouse maintenance power if the facts and circumstances inform that.

7. The effect of the challenged consequential order is to provide a mechanism for the relevant debt repayment (for which the parties are jointly liable) to be met from their assets through the use of the redraw account, without the parties having to make payments from their respective incomes. On the appeal, the wife merely seeks the discharge of the challenged order. If the order is discharged, it does not alter the fact that the parties will remain liable for those mortgage repayments, which the order required to be met from the redraw account. The effect of discharging the order is simply that they would have to either agree to use the redraw account or pay the sums from their income. 

8. As the order is an interlocutory order, it is open to the parties to apply to vary the order if there is a material change in circumstances. Even if the entirety of the redraw facility is utilised, it amounts to only seven per cent of the parties’ assets. Although the benefit of that part, which is capital repayments (albeit a small part), will be available as part of the assets of the parties. This amount can easily be adjusted for in the final orders against the share of the property the husband will receive, which is at least 40 per cent of the assets of the parties on the wife’s case (if the judge finds that it is appropriate).

9. The proposed appeal requires leave, as it concerns an interlocutory order, see: s 28(3)(e)(i) of the Federal Circuit and Family Court ofAustralia Act 2021 (Cth) and reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth). To obtain leave, the applicants must ordinarily show that the decision of the primary judge was:

   …attended by sufficient doubt to warrant it being reconsidered by the Full Court and … [that] substantial injustice would result if leave were refused, supposing the decision to be wrong.

   Medlow & Medlow (2016) FLC 93-692 (“Medlow”) at [57] (Emphasis in original).

10. The purpose of the requirement for leave to appeal interlocutory orders is to minimise expense and delay caused by appeals from orders made prior to trial. The use of the conjunction “and” in the quote by the Full Court in Medlow makes clear that, where it is apparent that there is no substantial injustice that flows from the order subject to the application for leave to appeal, it is not necessary to traverse each of the grounds in order to assess whether there is a ground that is attended by sufficient doubt to warrant it being reconsidered by the Full Court. See Jeffries & Post [2021] FedCFamC1A 92 at [19]: see also, Perica & Perica [2022] FedCFamC1A 184 at [11] and [14] where leave was refused despite the decision being attended by significant doubt.

11. In the present proceedings, I am not persuaded that substantial injustice would result if leave were refused even if the primary judge erred in making the order, as: the order does not place an obligation upon the wife to meet the expenses resulting from the apartment purchase from her income; the wife will continue to reside in the former matrimonial home; there will be more than sufficient funds in the property settlement that the husband will receive (on the wife’s case) to enable the relevant amounts to be adjusted for by the trial judge (if appropriate to do so); and it remains open to the parties to apply to vary the orders if there is a material change in their circumstances. I would therefore refuse the application for leave to appeal.

    HARTNETT J:  

12. I have listened to the reasons of Riethmuller J. I agree with those reasons and the proposed order.

    ALDRIDGE J:  

13. I also agree. The application for leave and the appeal are dismissed.

    Costs

    ALDRIDGE J:  

14. The respondent has applied for an order that the applicant pay his costs in the sum of $8,369.71.  The application has been wholly unsuccessful, and I would make the order for costs as sought.

    HARTNETT J:  

15. I agree.

    RIETHMULLER J:  

16. I agree.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justices Aldridge, Hartnett & Riethmuller.

Associate:

Dated:       14 December 2023