Zan & Wen
[2022] FedCFamC1A 158
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Zan & Wen [2022] FedCFamC1A 158
Appeal from: Order dated 14 June 2022 Appeal number(s): NAA 153 of 2022 File number(s): MLC 11085 of 2016 Judgment of: TREE, CAREW & HARTNETT JJ Date of judgment: 6 October 2022 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the husband appeals from interim orders providing for the sale of a property and distribution of the proceeds of sale – Where the relief which the husband seeks by way of the appeal remains available to him at trial – Where no substantial injustice would result if leave were refused – Unnecessary to consider the grounds of appeal – Leave refused – Appeal dismissed – Costs ordered against the husband in a fixed sum at finalisation of principal proceedings. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28 Cases cited: Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Number of paragraphs: 23 Date of hearing: 29 September 2022 Place: Heard in Sydney (via video and audio link), delivered in Cairns The Applicant: Self-represented litigant (via audio link with an interpreter) Counsel for the First Respondent: Mr McCormick Solicitor for the First Respondent: Goldsmith Lawyers The Second Respondent: Self-represented litigant (did not participate) The Third Respondent: Self-represented litigant (did not participate) ORDERS
NAA 153 of 2022
MLC 11085 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ZAN
Applicant
AND: MS WEN
First Respondent
MS BAI
Second Respondent
MR GAO
Third Respondent
order made by:
TREE, CAREW & HARTNETT JJ
DATE OF ORDER:
6 october 2022
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The applicant’s Application in an Appeal filed 12 September 2022 is dismissed.
3.The first respondent’s Application in an Appeal filed 16 September 2022 is dismissed.
4.The Notice of Appeal filed 12 July 2022 is dismissed.
5.The applicant is to pay the first respondent’s costs fixed in the sum of $20,000 within 28 days of the finalisation of proceedings MLC 11085 of 2016.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zan & Wen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, CAREW & HARTNETT JJ:
introduction
Mr Zan (“the husband”) seeks leave to appeal, and if granted, to appeal from an interim property settlement order made by the primary judge on 14 June 2022 in proceedings between him, Ms Wen (“the wife”) and the second and third respondents.
The interim orders provide for the sale of a property at Suburb A (“the Suburb A property”) and specify how the sale proceeds are to be distributed. Particularly, Order 4 provides that after the associated sale costs and discharge of two mortgages, the balance of the net sale proceeds are to be held on trust for the parties in the wife’s solicitor’s trust account pending the final hearing. Order 4 is the only order sought to be appealed.
It is apparent from the husband’s Notice of Appeal that he does not challenge the sale of the property and the mortgages paid, but rather he seeks additional orders for payment of any taxes relating to the sale of the property, outstanding utility arrears associated with the property and repayment of a loan allegedly owed to the second and third respondents. Additionally, he seeks that the balance proceeds be held in the parties’ own bank account.
The wife opposes the application for leave and the appeal. The second and third respondents did not participate in the appeal.
For the reasons which follow, the application for leave to appeal will be refused, and hence the appeal will be dismissed.
background
These proceedings commenced on 14 November 2016. Final parenting orders were made on 28 May 2019, which left the property issues in dispute.
The husband has been incarcerated at a correctional facility in Victoria since September 2018, after being convicted of offences against the wife.
The parties’ property pool is comprised of considerable assets in both Australia and Country B. The property trial has been ongoing since November 2018, with the latest tranche of the part-heard trial occurring in October 2019. The combination of COVID-19 restrictions and the fact that the husband is incarcerated had prevented further trial dates since, however the trial is now due to resume on 3 and 4 November 2022.
On 2 June 2022, the wife filed an application seeking, inter alia, the sale of the Suburb A property (which was subject to a default notice by the mortgagee) and that there be a part property settlement in her favour of the net sale proceeds. The husband did not file any response to the wife’s application, and asserts that he was never served with her application before the hearing.
The application came before the primary judge on 14 June 2022 for determination. The husband did not appear at that hearing seemingly due to technical difficulties connecting via video link from the prison. The second respondent also experienced technical difficulties initially but was able to appear by the end of the hearing.
At the conclusion of the hearing, the primary judge made a raft of interim orders concerning the sale of the Suburb A property and distribution of the proceeds of sale. As mentioned, her Honour ordered that the sale costs be paid, the two mortgages be discharged and that the remaining balance be held on trust for the parties pending the final judgment. The order providing for the distribution of the sale proceeds is the only order the husband appeals in his Notice of Appeal.
On 11 July 2022, the husband filed an application before the primary judge seeking, in effect, that the Order of 14 June 2022 be set aside, and for the wife to provide disclosure of rental income and tax information associated with the sale of the Suburb A property. That application is listed before the primary judge for interim hearing on 7 October 2022.
leave to appeal
Whilst s 28 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) imposes the requirement for leave to appeal an interlocutory order, it does not set out the requirements to be met for that leave to be granted, and thus the Court’s discretion to grant leave remains unfettered.
The test adopted in this Court, which was confirmed in Medlow & Medlow (2016) FLC 93-692, provides that leave to appeal will only be granted where:
(a)The decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and
(b)If leave were refused, a “substantial injustice” would ensue.
It is convenient to consider the issue of substantial injustice first. Unfortunately, none of the husband’s material addressed this issue. Even more unfortunately, it seems clear that the husband is under the misunderstanding that the 14 June 2022 orders preclude him from contending at the resumed trial that the payment of taxes, utility arrears and the contended loan ought be made from the net sale proceeds. Plainly those orders effect no such thing.
Likewise it seems that the husband is under the misapprehension that the order that the net sale proceeds to be placed into the wife’s solicitor’s trust account vests those monies in those solicitors. Of course that is not the case.
All of the relief which the husband seeks by way of the appeal remains available to him at trial. More, he seeks by his Application in a Proceeding filed 11 July 2022 to, in effect, set aside the 14 June 2022 orders.
Given all that, plainly there would be no injustice – much less substantial injustice – if leave to appeal were refused.
It is thus unnecessary to consider the asserted grounds of appeal in the husband’s Notice of Appeal, none of which were proper grounds in any event.
Leave to appeal is refused.
Other matters
The refusal of leave makes it unnecessary to consider either the husband’s Application in an Appeal filed 12 September 2022 to adduce further evidence in the appeal, or the wife’s Application in an Appeal filed 16 September 2022, both of which will also be dismissed.
Leave to appeal being refused, the Notice of Appeal filed 12 July 2022 will be dismissed.
costs
In the event the husband’s appeal failed, the wife sought costs of $20,000. Whilst not opposed by the husband, he sought payment be deferred until the conclusion of the principal proceedings, a course not opposed by the wife. We shall therefore so order.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Carew & Hartnett. Associate:
Dated: 6 October 2022
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