PANGAS v NEWJUR PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and POWELL JJA 22 May 1995, 6 June 1995 [1995] NSWCA 356 FAMILY LAW — ENFORCEMENT OF APPROVED MAINTENANCE AGREEMENT — NO QUESTION OF PRINCIPLE On 2 May 1986 the Family Court approved a maintenance agreement between the appellant and his former wife, the second respondent, pursuant to s87 of the Family Law Act. The agreement involved the appellant transferring his half interest in a property to his former wife, together with the other half interest which he had contracted to purchase from the first respondent, which was a trustee for the children of the marriage. The appellant failed to complete the transfers, and the former wife took proceedings in the Family Court to enforce the agreement. The proceedings were cross-vested to the Equity Division to be heard with proceedings commenced by the trustee against the appellant. The appellant cross-claimed alleging that the maintenance agreement had been rescinded by the parties. The trial judge accepted the evidence of the former wife, in preference to that of the appellant and ordered specific performance. On appeal Held: Dismissing the appeal (1) The Court can only disturb credibility based findings by a trial judge in limited circumstance, none of which were established in this case, Devries v Australian National Railways Commission (1993) 177 CLR 472. (2) The appellant has failed to establish that the judge's findings were factually incorrect or legally erroneous. Priestley JA I agree with Handley JA. Handley JA This is an appeal by Mr Pangas from orders made by Santow J in the Equity Division disposing of an application by the second respondent, the appellant's former wife, for the enforcement of a maintenance agreement approved by the Family Court on 2 May, 1985 pursuant to s87 of the Family Law Act as if it were an order of that court and his own cross application. The proceedings were cross-vested to the Equity Division to be heard with a summons by the first respondent, Newjur Pty Ltd, as plaintiff inter alia for specific performance by the appellant of a contract for sale dated 1 May 1985 relating to its half interest in 10 Milson Road, Cremorne. That plaintiff (the trustee) was the trustee of three settlements for the benefit of the children of the marriage. His Honour ordered the appellant to perform his obligations under the maintenance agreement by transferring both his own and the trustee's half interest in the property at 10 Milson Road, Cremorne to his former wife. He also ordered the trustee to perform its obligations under its contract of sale with the appellant by transferring its half interest to him and delivering a registrable transfer to the former wife. His Honour ordered that a registrar or deputy registrar be empowered to execute the necessary transfers on behalf of the appellant. He also found that the appellant was liable in damages for breaches of provisions in the maintenance agreement and he entered judgment for such damages assessed at $305,000 plus interest. 2 UNREPORTED JUDGMENTS The Judge published his reasons on 22 December 1993 but did not make his formal orders until 3 February 1994. The appellant, by then acting in person, filed a notice of appeal without appointment on 3 March 1994 (SCR Pt51 R5(1)(b)(ii) and a notice of appeal with appointment on 2 June (SCR Pt51 R5(2). The notice of appeal with appointment contained, as required, the grounds of appeal and the orders sought. These included the entry of judgment in favour of the appellant or a new trial. The appellant, still acting in person, failed to prosecute his appeal with diligence or seek a stay of proceedings. In the meantime the former wife enforced the orders directing that 10 Milson Road, Cremorne be transferred to her, became its registered proprietor, and contracted to sell the property. She also took steps to enforce her judgment for damages. Her solicitors issued a writ of execution and registered it on the title to the appellant's property at 15 Hunter Street, Sydney. The Sheriff then started to take steps to sell the appellant's interest in that property pursuant to the writ and this provoked an application by the appellant for a stay. On 20 December 1994 Mrs Cominos, the solicitor for the appellant applied ex parte to Kirby P for a stay of execution. The only order made that day was to adjourn the motion to 22 December. Following a hearing that day Kirby P stayed execution, ordered Category C expedition of the appeal, gave appropriate directions for this purpose and ordered written submissions. Mr Pangas was present when this order was made. The matter was again before Kirby P on the following day when the stay was lifted in respect of the orders relating to 10 Milson Road, Cremorne. On 5 January the Registry sent letters notifying the parties that the appeal would be called over on | February. At the call over the appeal was fixed for 22 May and confirmation of the fixture was mailed to the parties on 7 February. This letter drew attention to the requirements of the rules relating to additional evidence but nothing was said about any requirement for written submissions. According to the appellant's affidavit of 17 May sworn in support of an application heard by Clarke JA on 18 May to vacate the hearing date, the Registrar made no oral direction on 1 February for the filing of written submissions. If this were the case the omission was understandable in view of the direction earlier given by Kirby P and the requirements of SCR Pt51 R26. On the other hand the solicitor for the former wife in a faxed transmission to the Registrar on 8 May reminded him that on | February during the call over he had stated that the "usual letter" would be issued to the parties advising that written submissions would be required prior to the hearing. A belated reminder was then sent to the parties on 9 May which was apparently received by the appellant on the 12th. He wrote the next day to the Registrar complaining of the short notice and seeking an adjournment but was informed that this could only be granted by a judge. On 18 May the appellant in person made an application to Clarke JA on short notice for an adjournment but this was refused. Written submissions were received from counsel for the former wife prior to the hearing on 22 May but none were received from the appellant. When the appeal came on for hearing Mrs Cominos, again appearing for the appellant, made a further application for an adjournment. After hearing the parties the Court rejected this application and announced that it would give its reasons later. Even if no oral direction was given for written submissions on | February the Registrar's letter received on 12 May informed the appellant that such submissions were required. This was ten days before the hearing. Even if this URJ PANGAS v NEWJUR PTY LTD (Handley JA) 3 notice was inadequate the appellant, who was then representing himself, must have known that he would have to be ready to make oral submissions on 22 May. He was a litigant with some experience of the work of the courts including appellate courts and he had known since | February that the case would be heard on 22 May. When refusing the adjournment the Court made it clear that the appellant could make all his submissions orally. The hearing then proceeded with Mrs Cominos continuing to appear for the appellant. He had earlier, while acting for himself, filed and served affidavits sworn 28 April and 12 May which Mrs Cominos sought to read as additional evidence pursuant to SCR Pt51 R13A and s75A(8) of the Supreme Court Act. The reception of this further evidence was opposed by Mr Miller QC for the former wife. The Court ruled on his objections to its admissibility and then heard argument in support of and in opposition to its reception. The additional evidence related, almost entirely, to events which had occurred before the trial which were well known to the appellant at the time. Some of it was directed to matters which were not even in issue at the trial. None of it was of a decisive character. The Court ruled that the additional evidence should not be received since the strict requirements in s75A(8) of the Supreme Court Act as interpreted by this Court were not satisfied. The Court then heard the appeal on the materials that had been before the trial Judge. Mrs Cominos continued to appear for the appellant. Her principal submission challenged the Judge's findings of fact based on his acceptance of the evidence of the former wife in preference to that of the appellant. This was directed particularly to the Judge's findings in relation to the agreement said by the appellant to have been made with his former wife on 9 July 1987 "to leave" the trustee as a co-owner with herself of the Milson Road property. This agreement was said to be evidenced by three letters of that date signed by the former wife. She gave an account of the circumstances leading to her signing those letters in her affidavit of 17 March 1991. She was not cross-examined on her allegations. The Judge accepted her evidence and held that there was no consideration for this agreement and that it was vitiated by the undue influence and duress of the appellant. It was these findings which Mrs Cominos sought to displace. It might be noted that the "agreement" purported to be with the trustee alone. The appellant obtained the signature of his wife to the letter addressed to the trustee but was not himself named as a party. The trustee did not seek to enforce that agreement and there is no evidence that it authorised the appellant to procure his wife's signature to these letters or ratified any claim he may have made at the time to have been acting on its behalf. Moreover there is no evidence that it paid or provided the consideration which the appellant said he gave to his former wife for her signatures and it is clear that the consideration relied upon was provided solely by himself. In these circumstances it may be arguable that the appellant was not in any event entitled to enforce this agreement. However this point does not appear to have been taken at the trial and was not argued on appeal and therefore should be put aside. Mrs Cominos referred the Court to statements by the former wife in her oral evidence that she had a bad memory especially when under stress as she had been at the relevant time in 1987 and while giving evidence. Mrs Cominos submitted that the Judge had therefore been in error in accepting the evidence of the former wife in preference to that of the appellant. 4 UNREPORTED JUDGMENTS The trial Judge was in a position of special advantage in relation to this question because he heard and saw the witnesses, a facility which is denied to this Court. This Court can only disturb credibility based findings by a trial judge in limited and special circumstances. The appellant did not establish that the trial Judge failed to use or palpably misused his advantage, acted on evidence which was inconsistent with facts incontrovertibly established, or that his findings were otherwise glaringly improbable. See Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. In these circumstances this Court will not depart from those findings. Mrs Cominos also challenged the trial Judge's findings in relation to the sale by the former wife of her property at 40A Bay Street, Beauty Point. The appellant in his cross-application alleged that the former wife had agreed to give him a first right of refusal in respect of that property but then sold it without doing so. He also alleged that his former wife later released him from all liability under the approved maintenance agreement in return for a release by him of her liability for breach of the agreement for first refusal. The trial Judge noted that although the agreement for first refusal was said to have been confirmed in writing on 17 June 1986 that writing was never produced or its absence explained. He also noted that the appellant had failed to establish or quantify any damage resulting from the breach and that there was no written evidence to support the alleged release by the former wife of her rights under the maintenance agreement. The appellant failed to demonstrate that these findings were factually incorrect or legally erroneous. The decision of the trial Judge on the materials before him was not otherwise challenged before us and neither the execution nor the validity of the s87 maintenance agreement had been challenged at the trial. On the Judge's findings the former wife was entitled to enforce that agreement. Since the only grounds of appeal argued before us have failed the appeal should be dismissed with costs. Powell JA I agree with Handley JA. Appeal dismissed with costs. Counsel for the appellant: C Cominos Solicitors for the appellant: Bouris Cominos Counsel for the respondent: GTW Miller QC/T Austini-Fitzgerald Solicitors for the respondent: Miller Goddard