Parties Dispute Orders for Alteration of Property Interests

Curtain & Curtain [2022] FedCFamC1A 134 (31 August 2022)

The applicant filed an appeal from an interlocutory decision dismissing an application for summary dismissal. The applicant argued before the primary judge that the respondent’s application under s 79A of the Family Law Act 1975 (Cth) should be summarily dismissed. The Court, in adjudicating this dispute, assessed if the decision was attended by sufficient doubt to warrant reconsideration.

Facts:

On 15 July 2016, Berman J made final orders for alteration of interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), which were amended on 26 July 2016.  On 29 November 2017, the wife, Ms. Curtain (“the respondent”), filed an Initiating Application seeking to set aside those orders pursuant to s 79A(1)(a) of the Act, on the ground of a miscarriage of justice, by reason of fraud, suppression of evidence (including failure to disclose relevant information) or the giving of false evidence.  

She relied upon: (a) the failure by the applicant to disclose a letter dated 18 February 2013 from W Pty Ltd as trustee for the Q Trust, which confirmed their intention, upon the commencement of his employment with them, to issue him or his nominee with 20 per cent of the equity in the Q Trust; (b) an email dated 19 August 2013 from the applicant to W Pty Ltd, in which he advised them that the respondent and he had separated and (c) the failure by the applicant to disclose income from PP Pty Ltd.

On 13 February 2018, the applicant filed a Response to Initiating Application seeking that the s 79A application be dismissed. Nearly three years later, on 18 January 2021, the applicant filed an Application in a Case seeking that the respondent’s application pursuant to s 79A be summarily dismissed. There was no explanation for his delay in bringing that application. On 19 April 2021, the respondent filed a Response to the summary dismissal application, seeking that it be dismissed. 

It was submitted before her Honour, on behalf of the applicant, that it was apparent on the face of the respondent’s documents that they did not disclose any fraud or suppression of evidence or, if they did, no miscarriage of justice had occurred, such that the respondent’s s 79A application had no reasonable prospect of success. The primary judge delivered judgment on 25 March 2022, dismissing the application for summary dismissal.  On 20 April 2022, the applicant filed a Notice of Appeal seeking, as is required, leave to appeal.  An Amended Notice of Appeal was subsequently filed on 7 July 2022.

Issue:

Whether or not the learned primary judge erred at law and made an error of principle in dismissing the [applicant’s] application for summary dismissal. 

Applicable law:

Family Law Act 1975(Cth) s 45A - provides that the court may make a decree for one party against another in relation to the whole or any part of a proceedings if:

(a) the first party is defending the proceedings or that part of the proceedings; and

(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

 

Harford & Spalding [2022] FedCFamC1A 78 - provides that the merits of the proposed appeal are relevant to the success of an application for leave to appeal.

 

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 - provides that leave to appeal will only be granted where the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court and where a substantial injustice would result if leave to appeal were refused, supposing the decision to be wrong.

Analysis:

Proceedings should not lightly be summarily dismissed and that the evidence to be relied upon by the parties with respect to the s 79A application was as yet untested. The only mention of W Pty Ltd in the reasons for judgment of Berman J was in the context of the applicant becoming a director thereof in 2014 and having a consultancy arrangement with that company (at [56]). Further, neither in the applicant’s Case Outline at trial (whether in the orders sought by him or in his list of assets) nor in his Financial Statement filed for the trial did he disclose any interest, actual or prospective, in W Pty Ltd or the Q Trust (at [57]).

Insofar as it is asserted that her Honour was unable to find that income alleged to have been undisclosed at trial had in fact been received by the applicant, that is immaterial.  The applicant had undertaken work in the period from 28 December 2015 to 19 March 2016, which predated the trial, to the value of $74,200. There is no issue that he had not been paid that amount prior to the trial in April 2016; that is because he had not rendered an invoice for it, deferring doing so until June 2016, after the trial. It was nevertheless a chose in action and required to be disclosed by him.

The applicant deliberately misled the respondent and the Court by not disclosing the unpaid income earned by him from W Pty Ltd between 28 December 2015 and 19 March 2016 and further sought to mislead the respondent and the Court in relation to his employment with W Pty Ltd, including by backdating the letter drafted by him on 19 August 2013 to 4 May 2013.

Conclusion:

The decision of the primary judge is not attended by sufficient doubt to warrant it being reconsidered by the Full Court, nor would a substantial injustice result if leave to appeal were refused, supposing the decision to be wrong.  The application for leave to appeal shall be dismissed. The applicant shall pay the respondent’s costs of the application for leave to appeal, fixed in the sum of $18,370.39.

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