Zan & Wen (No 2)
[2023] FedCFamC1A 130
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Zan & Wen (No 2) [2023] FedCFamC1A 130
Appeal from: Wen & Zan [2023] FedCFamC1F 233 Appeal number: NAA 109 of 2023 File number: MLC 11085 of 2016 Judgment of: AUSTIN, TREE & CHRISTIE JJ Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from final property settlement orders – Procedural fairness – Where the appellant asserts he was denied procedural fairness – Where the appellant was self-represented at times throughout the trial – Length of trial – Where the matter was heard over four years – Where reasons for delay cannot be imputed to the primary judge – Time constraints on submissions not unreasonable – Where appellant was incarcerated for entire period of trial – Where the appellant’s physical location during the trial does not amount to procedural unfairness – Where the primary judge made accommodations for the appellant to understand and answer the case – Where various asserted issues neither individually nor cumulatively constitute procedural unfairness – Whether exercise of discretion was unjust, inequitable and/or plainly wrong – Where no error in the exercise of discretion is found – Adequacy of reasons – Where complaint about the primary judge’s reasons relate to treatment of parties’ assets overseas – Where the primary judge took into account existence of assets overseas – Where no ground of appeal has merit – Appeal dismissed – Slip rule – Where the primary judge’s orders do not reflect her intention – Where the primary judge intended for the first respondent to assume responsibility for mortgage liability and to transfer her interest in companies to the appellant – Where appellant did not approach the primary judge to amend the orders under the slip rule – Exercise of r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by appellate court – Costs ordered. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.01, 7.26, 10.13
Cases cited: Aitken v Aitken (2023) 66 Fam LR 314; [2023] FedCFamC1A 69
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Chang v Su (2002) FLC 93-117; [2002] FamCA 156
Johnson v Johnson (1997) FLC 92-764; [1997] FamCA 32
Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Re F: Litigants in Person Guidelines (2001) FLC 93-072; [2001] FamCA 348
Number of paragraphs: 79 Date of hearing: 2 August 2023 Place: Melbourne Counsel for the Appellant: Mr Gunson SC & Ms O’Connell Solicitor for the Appellant: Easton Legal Counsel for the First Respondent: Mr McCormick Solicitor for the First Respondent: Goldsmiths Lawyers The Second Respondent: Litigant in person (did not participate) The Third Respondent: Litigant in person (did not participate) ORDERS
NAA 109 of 2023
MLC 11085 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ZAN
Appellant
AND: MS WEN
First Respondent
MS BAI
Second RespondentMR GAO
Third Respondent
order made by:
AUSTIN, TREE & CHRISTIE JJ
DATE OF ORDER:
11 august 2023
THE COURT ORDERS THAT:
1.Appeal NAA 109 of 2023 is dismissed.
2.Order 4 of the orders made 3 April 2023 is amended to delete the word “unencumbered”.
3.The first respondent transfer to the appellant all of her right title and interest in the following:
(a)G Company;
(b)L Company.
4.The first respondent indemnify the appellant and keep him indemnified in respect of any mortgage secured over D Street, Suburb E, Victoria.
5.The appellant pay the first respondent’s costs in the sum of $56,000.
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 a pseudonym Zan & Wen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, TREE & CHRISTIE JJ:
By Further Amended Notice of Appeal filed 14 July 2023 the appellant, Mr Zan appeals from orders made on 3 April 2023.
The orders provided for an adjustment of property interests as between the appellant and Ms Wen, the first respondent.
There were two further respondents in the proceedings below who, at first instance, sought repayment of monies advanced by them to the appellant. The orders of 3 April 2023 provided for that repayment and no appeal is brought from that order. Those respondents have not participated in the appeal.
For the reasons which follow the appeal will be dismissed and the orders of the primary judge amended under the slip rule.
THE TRIAL
The proceedings were protracted for reasons discussed by the primary judge. The trial commenced in November 2018. From 16 September 2019 the appellant acted for himself in the proceedings.
One of the key issues for determination concerned the value of the interests of the appellant and first respondent in G Company, a company in Country B (“the Country B company”). An order was made on 2 June 2017 that provided for valuation of the parties’ interests in the Country B company. The report became available on 21 December 2018 and was annexed to an affidavit of Mr PP filed on 16 January 2019 (“the single expert report” or the “HH Accountants report”).
The appellant did not accept the value attributed to the Country B company in the single expert report. The appellant did not put questions to the single expert pursuant to r 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The appellant did not make an application to adduce adversarial expert evidence and the appellant did not cross-examine the single expert.
One of the key questions which had to be determined by the primary judge was whether a loan which the appellant purported was made by his cousin to the Country B company was a liability of the company which needed to be taken into account when valuing the company. The primary judge concluded that the loan should be excluded.
In the ultimate result the primary judge divided the assets of the parties (having regard to both assets in Country B and Australia) such that the first respondent was to receive 60 per cent of the net assets and the appellant was to receive 40 per cent of the net assets.
The first respondent’s 60 per cent was to include a property at C Street, Suburb A (“the Suburb A property”) subject to a mortgage and a property at D Street, Suburb E (“the Suburb E property”) subject to a mortgage.
THE APPEAL
The appellant agitated three grounds:
(1)Denial of procedural fairness;
(2)Miscarriage of discretion;
(3)Inadequate reasons.
Although not apparent from the appellant’s grounds of appeal or Summary of Argument, it was evident that the primary judge’s orders did not implement her reasons for judgment in two key respects:
(1)The transfer of the Suburb E property to the first respondent as provided for in Order 4 of the orders purported to be a transfer, “unencumbered”;
(2)The orders did not provide for the first respondent to transfer her interest in the shares in G Company and L Company to the appellant.
The primary judge’s reasons for judgment set out at [350] the assets to be retained by each party so as to implement a 60/40 division of the parties’ net assets.
The first respondent was to receive both the Suburb A property and the Suburb E property subject to the mortgages from the National Australia Bank.
The appellant was to receive the whole of the parties’ interests in G Company and L Company.
The primary judge recorded in her reasons that the Suburb A property had in fact been sold and at the hearing of the appeal we were informed that the settlement of the sale of that property was coincidentally to occur at 10.00 am on the day of the appeal hearing. In any event both parties accepted that the sale would have been completed and the proceeds applied to discharge of the mortgage secured over the Suburb A and Suburb E properties by the time these reasons were available.
While the appellant contended that the errors already discussed were part of a larger set of factors which together established error, he appropriately conceded that the intentions of the primary judge were clear and the errors discussed above were amenable to correction pursuant to the slip rule. We propose to adopt that course.
The first respondent to the appeal also accepted that the primary judge’s orders did not implement her reasons in the manner identified and agreed it was possible to correct pursuant to the slip rule (if we did not otherwise find that the primary judge fell into error).
Ground 1
The Further Amended Notice of Appeal filed 14 July 2023 contained three grounds, the first of which was expressed “[t]he learned trial judge erred by failing to afford the appellant procedural fairness”.
At the hearing of the appeal, counsel who appeared for the appellant sought leave to rely on a further ground of appeal marked “A1” and expressed as “[t]he learned primary judge erred in law by making final orders and delivering reasons for judgment on 4 April 2023 in circumstances where the trial was procedurally unfair”. That document also contained 15 particulars.
Effectively Ground 1 and the further ground contended the same error and leave was granted to the appellant to rely on the further ground in circumstances where the first respondent’s counsel conceded he could meet it by way of oral submissions.
Many of the matters said by the appellant to constitute a denial of procedural fairness were not procedural in nature. During the hearing of the appeal counsel for the appellant was invited to consider whether the material which appeared in the Summary of Argument under the headings:
(d) Credibility and corroborating evidence;
(e) The rental of the Suburb A property;
(f) The refusal of the Country B experts to give evidence;
(g) The [l]oan [o]wed by the company;
could properly be characterised as matters relating to the procedural fairness of the hearing. He accepted that they were not and so those submissions were abandoned and will not be further considered.
The argument of the appellant was that a number of procedural issues which may not in and of themselves be sufficient to amount to a denial of procedural fairness were, when viewed cumulatively, productive of unfairness to the appellant such as to invite appellate intervention.
In essence, procedural fairness requires each party to be given an adequate opportunity to be heard and to present his or her case. That includes an opportunity to lead relevant evidence and an opportunity to make submissions. It also includes the right to know the case which is made against you, to know the evidence which is relied upon and to hear and meet the submissions which are made: Kioa v West (1985) 159 CLR 550 at 582.
It is important to record that the appellant was legally represented up to and including the 12th day of the 19 day hearing. Importantly, he was represented throughout the first respondent’s case and the cross-examination of the first respondent was conducted by the appellant’s counsel. It is accurate to observe that the role of the primary judge in ensuring that the appellant received a fair trial was greater after he became self-represented consistent with the principles set out in Johnson v Johnson (1997) FLC 92-764.
The matters raised by the appellant which the appellant submitted relate to procedure were as follows:
(a)The fact of the trial having taken place over a period of four years and in a segmented fashion;
(b)Imposing a time limit on the appellant’s oral submissions;
(c)Not providing the appellant with transcript;
(d)Concerns relating to the appellant’s location;
(e)Concerns relating to the interpretation of the evidence; and
(f)Questions of whether the appellant understood and had the opportunity to lead expert evidence.
To the extent that the appellant contends that, from the time at which he became self-represented, he was at a disadvantage, that may well be accurate. Lawyers bring experience and training to their profession which cannot, in the main, be replicated: Re F: Litigants in Person Guidelines (2001) FLC 93-072 at [242]. However, the role of the primary judge is not to ensure that the self-represented litigant is in the same position as the represented litigant but rather to ensure that the self-represented litigant understands the practice and procedure so as to have a reasonable opportunity to participate in his or her own litigation.
The length of time the trial took to complete
The trial commenced on 12 November 2018. The primary judge sets out all of the reasons which caused the trial to occur over such a prolonged period at [4]:
(a) the [appellant] was incarcerated at the time of the commencement of the trial. On [...] September 2018, a County Court jury found the [appellant] guilty of [assaulting] the [first respondent] and on [...] November 2018 the [appellant] was sentenced to five years imprisonment;
(b) all parties required the assistance of [Country B] interpreters;
(c) the [appellant] terminated the services of his fifth set of solicitors in [sic] 6 September 2019 and thereafter acted on his own behalf whilst imprisoned;
(d) the Covid-19 pandemic and multiple lockdowns stopped face-to-face trials in the Melbourne registry of the court;
(e) the prison was subjected to a number of Covid-19 outbreaks and lockdowns which precluded the making of a gaol order for the [appellant] to personally attend court;
(f)the limited time the prison permitted the [appellant] to attend electronic hearings and technical difficulties with the prison electronic facilities;
(g) the second and third respondents acted on their own behalf and were in lockdown in [Country B] during the eventual resumption of the trial; and
(h)the technological challenges to include electronic participation of all four parties and their respective interpreters.
None of these could be characterised as having occurred as a consequence of any action or inaction on the part of the primary judge. The appellant’s counsel, somewhat boldly, submitted that the fact that the hearing had taken place over 19 sitting days spread over more than four years was itself sufficient to constitute procedural unfairness. We do not accept that to be the case.
It is difficult to conceive of what action the primary judge could have taken to address the delay in concluding the proceedings. When pressed, counsel for the appellant submitted that the only solution would have been for the judge, of her own motion, to have aborted the trial. We are not convinced that a failure by the primary judge, absent application, to abort the hearing in the circumstances of this case, constitutes procedural unfairness. Ironically, the trial was attenuated in large part as a consequence of the appellant’s circumstances. The appellant was incarcerated during the whole of the hearing. The appellant (and the respondents) required interpreters, the appellant had five sets of solicitors and subsequently acted on his own behalf.
Imposing a time limit on the appellant’s oral submissions
The appellant submits that it was a denial of procedural fairness to impose a time limit on the making of his oral submissions. The primary judge indicated, at the close of the evidence, that she would take oral submissions the following day. The appellant says that it was not made plain to him that the trial was to end and the opportunity to call further witnesses had ended but it seems that that is precisely what her Honour did when she told the appellant “[t]hat’s your last opportunity”: Transcript 3 November 2022, p.42 line 39. This submission also ignores the fact that the parties led evidence by affidavit and the inquiry of the primary judge was in the context where all of the appellant’s affidavit evidence was before the court and his witnesses had been cross-examined.
After the close of evidence and after hearing the submissions of all the respondents the appellant had about a month before he was required to make his closing submission. The appellant filed an updated Outline of Case Document which included an additional 12 pages of written submissions: Transcript 5 December 2022, p.102 lines 35–39.
The gravamen of the complaint seems to be that the primary judge allocated more time to the submissions of the first respondent. There is no principle which requires that parties are allocated identical time to make submissions. In reality, the transcript reveals that the oral submissions which were made on behalf of the first respondent commenced just prior to the lunchtime adjournment on 4 November 2022 and concluded that afternoon: Transcript 4 November 2022 p.52–93. Effectively the time available to the parties was not dissimilar.
The appellant submits that the primary judge inappropriately referred to time limits as though to shut down the appellant. The submissions read: “the trial judge informed the appellant that ‘he has got another 15 minutes the prison will cut him off unfortunately’” (Appellant’s Summary of Argument filed 14 July 2023, paragraph 20). Actually the transcript reads:
HER HONOUR: He has only got another 15 minutes. The prison will cut him off at 1 o’clock unfortunately.
(Transcript 5 December 2022, p.112 lines 23–24)
This is little more than her Honour commenting on the audio-visual arrangements between the prison and the court and endeavouring to make sure the appellant has had the opportunity to make his submissions.
In order to establish that there has been a failure to afford procedural fairness, the appellant must point to a need to address legal or factual matters which was not accommodated because a judge placed unreasonable time constraints on his submissions. That is not the position here.
Transcript
The appellant requested a transcript and the primary judge informed him that it was his responsibility to order one. This cannot be a denial of procedural fairness.
Appellant’s location during the hearing
At all times during the hearing the appellant was in gaol. The primary judge made orders which permitted the appellant to attend the trial in person although on occasion the appellant indicated he preferred to appear via audio-visual link. When the appellant appeared in person he was in a different room from the first respondent but present in the courtroom at all times either by audio-visual link or, while giving evidence, in person. Those arrangements did not result in the appellant being excluded from the hearing at any time and the basis for those arrangements arose out of the appellant’s conviction for assault of the first respondent.
The appellant has not established that the arrangements for the participation of the appellant in the trial resulted in a specified or a general procedural unfairness.
Issues with interpretation
At all times the appellant had the assistance of an interpreter. The complaint on appeal appears to be no higher than, from time to time, either the appellant or the interpreter experienced difficulties hearing or understanding the proceedings. There was no application made during the hearing either while the appellant was represented or after he commenced to represent himself relating to the interpretation of the evidence.
The appellant did not point to any particular part of the transcript which was said to indicate that he had been denied procedural fairness due to issues relating to the interpretation of evidence.
A proper reading of the transcript reveals many instances where the primary judge made sure that the appellant had an opportunity to have submissions translated for him or where the interpreter was given additional time to make sure that the appellant understood the question being asked (see for example Transcript 5 December 2022 p.109, 111, 114).
Questions relating to valuation evidence
One of the examples relied upon by the appellant as indicative of a denial of procedural fairness related to expert evidence concerning the companies in Country B.
Her Honour sets out the history as it relates to orders for expert evidence in paragraphs [214]–[216] of her reasons.
The submission that the primary judge’s rejection of the appellant’s evidence (about valuation) is a denial of procedural fairness is misguided. The primary judge plainly indicated to the appellant that he was entitled to seek an order that the single expert valuation evidence be updated:
HER HONOUR: … Now, so there’s no problem about [HH Accountants] revaluing [Country B] [assets]. It’s just that if you don’t want to share in the cost, he will have to arrange it, pay the cost at first instance and then you can have an argument at trial about who should be liable for the ultimate payment.
(Transcript 17 June 2022, p.8 lines 43–46)
And further:
HER HONOUR: … So, [the appellant], if you want to update the valuations of the [Country B] expert, you need to make those arrangements. You can pay, and then you can argue at trial that [the first respondent], who says she doesn’t want to revalue it, should be responsible.
(Transcript 17 June 2022, p.9 lines 39–41)
Her Honour’s role was to indicate the availability of the course. The appellant’s failure to follow the guidance is not a denial of procedural fairness.
The appellant’s submissions further contend that in circumstances where he plainly disagreed with the single expert evidence about the value of assets in Country B, it was a denial of procedural fairness for the primary judge to place reliance upon it.
This need only be stated to be rejected. The appellant was entitled to challenge the conclusions of the single expert. The appellant was entitled to make an application to rely upon adversarial evidence. He did not. He did attach to his affidavit filed 26 October 2022 a valuation report dated 8 October 2022 but that valuer had not been engaged by him on the same basis as the single expert and accordingly her Honour’s rejection of the conclusions of the report was sound. The appellant was entitled to cross-examine the single expert. He did not. He was not entitled to give his own non-expert opinion about matters of valuation nor was it reasonable for him to expect that the primary judge would permit him to rely on adversarial valuations attached to his affidavit which had been prepared on a premise which was not supported by the evidence.
In a similar vein the appellant’s submissions assert that the determination by the primary judge to accept the evidence of the single expert valuer about the value of the Country B company constitutes a denial of procedural fairness.
The single expert expressed a view about the value of the interests of the appellant and the first respondent in the entity namely AUD $8,125,052 or $2,586,440 if a loan from the appellant’s cousin to the Country B company were found not to be a legitimate liability. The appellant asserted a value of $2,060,000.
The primary judge accepted that the balance sheet of the Country B company dated 31 December 2015 (Exhibit W-20) did not record a loan from the appellant’s cousin.
The primary judge addressed this issue comprehensively at [245]–[263]. In those paragraphs the primary judge cites a number of different evidentiary bases for her conclusion that the liability to the appellant’s cousin ought not be taken into account in reaching a value of the parties’ interests in the company. Accordingly, she accepted the single expert value on that basis.
Nothing in the primary judge’s approach to the receipt and consideration of the opinion evidence on this topic can be regarded as a denial of procedural fairness to the appellant.
Although it is somewhat difficult to understand, it appears as though the appellant raises in support of a denial of procedural fairness the fact the primary judge considered the assets of the parties’ located in Country B in her determination of the parties’ case when the appellant had submitted she ought not.
The submissions of the appellant state at paragraph 24: “The trial judge noted the difficulties with enforcement but nevertheless decided to make orders in respect of both the Country B and the Australian assets”. This submission is not accurate. There is a distinction to be drawn between making an order which directly concerns an asset (for example, an order for sale or transfer) and making orders which take into account the existence of property. The primary judge did the latter.
What constitutes procedural fairness will differ from case to case. It is unquestionable that the appellant faced challenges that would not have been faced by a person who was not incarcerated, a non-english speaker and without legal representation but those factors alone must be demonstrated to have resulted in a denial of procedural fairness productive of error. The mere enumeration of the particular challenges faced by the appellant without more will not attract appellate intervention. We have considered whether the various issues raised when viewed cumulatively are capable of constituting procedural unfairness to the appellant. We do not accept this was the case. This ground is without merit.
Ground 2
Ground 2 asserts that the decision of the primary judge was “wrong, unfair and did not do justice to the parties”.
The focus of this ground is not on the procedure but the outcome.
The orders which resulted from the primary judge’s findings and her consideration of the relevant statutory criteria was an exercise of the discretion afforded by s 79 of the Family Law Act 1975 (Cth). The breadth of that discretion has been the subject of considerable judicial writing and it is accepted the mere fact that a different judge may have reached a different conclusion will not demonstrate error.
In order to be successful it would be necessary for the appellant to demonstrate that the resulting orders were “plainly wrong”: CDJ v VAJ (1998) 197 CLR 172.
Under the rubric of Ground 2 the appellant explored a number of different matters which did not fall neatly within the ground as articulated.
One of those matters was a complaint that the primary judge had not identified the source of funds from which the appellant was to make the payment to the first respondent (and the second and third respondents). The appellant knew that the first respondent was seeking an order which would require him to pay her a lump sum.
The submissions argue that the appellant does not have the capacity to make the cash payment ordered by the primary judge. That submission is dependent upon an acceptance that the primary judge was in error when she accepted both the value of the Country B company and the income which the lease from the company to the hospital could generate. For reasons discussed above that submission is not sustainable.
The appellant relied on paragraphs [66]–[68] of Aitken v Aitken (2023) 66 Fam LR 314:
66.The point was well made in Yavuz and Yavuz [2017] FamCAFC 74 where, at [180], the Full Court stated:
In our judgment there is merit in the complaints that the trial judge was bound to consider, but did not properly consider, the prospect of real properties having to be sold for the husband to secure funds and the relevant consequences. Those included potential realisation costs on property sales and capital gains taxation. In addition, taxation on distributions to the husband via his partnership might be incurred or via “top up tax” on dividends from TT or via distributions from HH, in order to place funds in the husband’s hands sufficient to make the ordered payment to the wife.
67.That is not to say that, where circumstances justify, the Court will often provide a party with what is, in effect, a first right of purchase of the other party’s interest in property for an identified fixed amount. This may be in circumstances where it is contemplated that the acquiring party will be required to borrow funds to exercise that right of acquisition. However, even in those circumstances, to ensure that the matter is finalised, in the event that sufficient funds cannot be raised, the Court will usually include a default order that provides for the subject property to be sold, with the net sale proceeds being divided between the parties according to the percentage adjustment determined to be appropriate in the proceedings. No such default order was made in this case.
68.In summary on this issue, having regard to the parameters of s 79 of the Act, as explained in the Full Court authorities to which we have referred, we are satisfied that the capacity of the husband to pay the lump sum amount to the wife within the specified 60 day time period was a “fundamental and obvious” issue that required, but did not receive, adequate consideration in the proceedings (Macedonian Orthodox Community Church at [120]).
The situation is different here because the primary judge found that the appellant had not made full and frank financial disclosure. The principles discussed in Chang v Su (2002) FLC 93-117 have application.
Further, the appellant’s submissions at trial did not address this issue when he was on notice of the orders sought.
The appellant also submitted the primary judge had not taken into account costs of sale of an asset to satisfy the payment to the first respondent. The appellant was on notice that the first respondent sought 70 per cent of the assets. The primary judge ordered that she receive 60 per cent. If he wanted to lead admissible evidence about costs of sale he was not prevented by any action of the primary judge.
Finally, the appellant says failure to discharge an interim injunction was an error. Rule 5.01 of the Rules provides:
Effect of final orders on interlocutory orders
On the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect.
Accordingly, this submission is without merit.
Errors in the orders
It was in the context of Ground 2 that the appellant raised the fact that the primary judge had made an order that the first respondent receive the Suburb E property unencumbered and that the orders failed to provide for the transfer of the first respondent’s interest in the two companies in Country B to the appellant. It is plain that the primary judge intended the first respondent to assume responsibility for the mortgage secured over the Suburb E property. It is equally plain she intended the appellant to receive the whole of the parties’ collective interests in the companies in Country B.
The appellant did not approach the primary judge to amend the orders under the slip rule. It is necessary for an appellant to exhaust his or her remedies before seeking appellate intervention: Kingsley & Secretary, Department of Communities and Justice [2021] FamCAFC 10 at [5]. An appeal brought on this basis alone could not succeed.
Nothing in the written or oral submission of the appellant has persuaded us that the primary judge’s determination was unjust, inequitable and/or plainly wrong. There having been no proper basis established to question the exercise of the primary judge’s discretion we are not persuaded this ground has any objective merit.
Ground 3
The complaint about lack of reasons is about the primary judge’s treatment of the parties’ assets in Country B. At the time of the hearing before the primary judge there were no proceedings on foot in Country B between the parties. The appellant had voluntarily discontinued them. It was in that context that the primary judge came to hear the parties’ dispute. There being no proceedings on foot (at [156], [159], [160]) and conscious of difficulties with enforcement of orders relating to the Country B property (at [139], [161]), the primary judge made no orders about the Country B property (that was the appellant’s position). His real complaint is that in making the orders which her Honour did she took into account the existence of the Country B property. She was entitled to approach the matter on that basis. It was an orthodox application of the court’s duty to consider all of the property of the parties wheresoever located when approaching the assessment of their contributions to the acquisition, conservation and improvement of those assets.
The lack of reasons ground has no merit.
DISPOSITION
The appeal will be dismissed.
The orders of the primary judge will be amended under the slip rule pursuant to r 10.13(1)(e) of the Rules to reflect the clear intention in paragraphs [284], [340], [344] and [350].
That will require deletion of the word “unencumbered” where it appears in Order 4.
We were informed that the net proceeds of sale of the Suburb A property which are referred to in Order 9(a) of the orders of the primary judge will be paid in the first instance to discharge the Suburb E mortgage. For abundant caution, and to address the submission about the operation of Order 12(f) consistent with the intentions of the primary judge in particular at [350], we will make an additional order under the slip rule requiring the first respondent to indemnify the appellant in respect of any mortgage secured against the Suburb E property.
It will be necessary to make orders to implement the intentions of the primary judge which provide for the first respondent to transfer her interests in the two Country B companies to the appellant.
COSTS
As the appeal will be dismissed it is necessary to deal with the first respondent’s application that the appellant meet her costs in the sum of $56,000.
The first respondent filed a Schedule of Costs in accordance with the Rules. The appellant resisted the making of an order for costs on the basis that there were no justifying circumstances. The appeal having been dismissed the appellant has been wholly unsuccessful and on that basis we propose to order that he meet the first respondent’s costs. The appellant conceded the quantum was appropriate and on that basis we will make the order as sought.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Tree & Christie. Associate:
Dated: 11 August 2023
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