ZAGAR & BACALL - [2020] FamCAFC 268

FAMILY COURT OF AUSTRALIA

ZAGAR & BACALL

[2020] FamCAFC 268

FAMILY LAW – APPEAL – PROPERTY – COSTS CERTIFICATES – Appeal against final property settlement orders – Procedural fairness – Error of law – Appeals allowed by consent – No order as to costs – Costs certificates granted to the parties – Reasons given as to the grant of costs certificates.

Federal Proceedings (Costs) Act 1981 (Cth) ss 3(1)(j), 6, 9

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Cramer v Davies (1997) 72 ALJR 146
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

APPELLANT:

Mr Zagar

RESPONDENT:

Ms Bacall

FILE NUMBER:

SYC

8282

2017

FIRST APPEAL NUMBER:

EAA

2020

SECOND APPEAL NUMBER:

EAA

102

2020

THIRD APPEAL NUMBER:

EAA

116

2020

DATE DELIVERED:

6 November 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Ainslie-Wallace, Ryan & Aldridge JJ

HEARING DATE:

14 October 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

14 May 2020, 17 July 2020 and 23 July 2020

LOWER COURT MNC:

[2020] FamCA 350;
[2020] FamCA 595; [2020] FamCA 598

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Othen with Ms Tabbernor

SOLICITOR FOR THE APPELLANT:

Neil Jamieson & Associates

COUNSEL FOR THE RESPONDENT:

Ms Coulton

SOLICITOR FOR THE RESPONDENT:

O’Sullivan Legal

Orders made on 14 October 2020

IT IS ORDERED THAT:

Appeal Nos. EAA 92 of 2020; EAA 102 of 2020 & EAA 116 of 2020 (“the appeals”) be allowed.
The Orders of a judge of the Family Court of Australia of 18 June 2020, 17 July 2020 and 23 July 2020 be set aside.
The Court grants to the appellant a costs certificate pursuant to the provisions of 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 her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of 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 respondent in respect of the costs incurred by him in relation to the appeal.

IT IS ORDERED BY CONSENT THAT:

There be no order as to costs for the appeal or the substantive proceedings.
The appellant shall pay the respondent the sum of $1,100,000 (“the settlement sum”) as follows:
a.An initial sum of $100,000 as the respondent may direct in writing as soon as practicable but in any event within twenty-eight (28) days of the date of these Orders; and
b.The balance of the settlement…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ZAGAR & BACALL

Details

AGLC: ZAGAR & BACALL [2020] FamCAFC 268
Case: [2020] FamCAFC 268
Decision Date: 6 November 2020

CaseChat Overview and Summary

In this case, Mr Zagar appealed the final property settlement orders made by a judge of the Family Court, while Ms Bacall agreed that the appeals must be allowed and the orders of the primary judge were thus set aside. The parties were able to resolve the property settlement issues between them and consent orders were made by the Full Court on 14 October 2020 resolving those issues. The Full Court also made orders for costs certificates in favour of the husband and wife.

The legal issues the court was required to decide were whether the primary judge's failure to afford the parties procedural fairness meant that the orders made should be set aside, and if so, whether the appeals had succeeded on a question of law. The court also needed to determine whether the appeals were heard in a manner that met the requirements of the Federal Proceedings (Costs) Act 1981 (Cth).

The court found that the primary judge's failure to provide procedural fairness to the parties was a fundamental error that cut to the heart of the integrity of the judicial process, and therefore, the orders made by the primary judge must be set aside. The court further found that the appeals had succeeded on a question of law and had been heard in a manner that met the requirements of the Federal Proceedings (Costs) Act 1981 (Cth). The court granted costs certificates to both parties.

In conclusion, the appeals were allowed by consent, and the orders of the primary judge were set aside. The Full Court made consent orders resolving the property settlement issues between the parties and granted costs certificates in favour of both the husband and wife.

Orders