Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Saso & Saso has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The appellant appeals against a judgment of the primary judge on 30 May 2025, dismissing her application for spousal maintenance and adult child maintenance for her child.

1. The proceedings have been long and protracted, originally culminating in a trial before Judge Spelleken where her Honour made property settlement orders on 8 February 2024. The lengthy and complex history of the proceedings prior to the property settlement orders are set out in Judge Spelleken's judgment in Saso & Saso (No 3) [2024] FedCFamC2F 145. It is unclear why the spousal maintenance application was not brought at the same time as the property settlement proceedings.
2. The primary judge set out in her reasons a summary of the evidence of the applicant, the respondent and the adult child. None of the witnesses were required for cross examination by the respondent.
3. The applicant was unable to cross examine the respondent as a result of an order pursuant to s 102NA preventing the parties from cross examining each other personally, obtained by the appellant earlier in the proceedings. The appellant did not seek the discharge of that order so as to be able to cross examine the respondent personally.
4. The primary judge identified the relevant law at [46] to [49]. No issue is taken with respect to her Honour's summary of the legal principles. Her Honour considered the financial circumstances of the appellant, concluding that she was satisfied that the appellant was presently unable to support herself (at [50]). Her Honour then turned to consider the capacity of the respondent to pay maintenance but was not satisfied that he had the capacity to pay maintenance at that time (at [54]).
5. The primary judge considered the law relating to adult child maintenance, summarising it at [55] to [58], before turning to the evidence concerning the adult child maintenance application. Her Honour concluded:
   1. I am not satisfied the evidence as presented suggests currently there is medical or other corroborative evidence to support the proposition Ms [Saso] has a disability such that it is necessary for provision to be made for her maintenance in accordance with relevant provisions of the Act.
   2. The only evidence relating to education appears to be an offer for Ms [Saso] to attend upon the [Tertiary Institute J] which would have involved her undertaking a course from 27 January to 19 December 2021. Whilst Ms [Saso] says that she now has a debt in relation to this course, she does not produce evidence that she in fact undertook the course or in fact she has this current debt. There is no information before me that would indicate she has any current educational needs for which she would require maintenance so that she can complete such a course.
6. Her Honour then noted that even if she were in error concerning the adult child's need for maintenance, that she had previously found that the respondent does not have a capacity to meet a maintenance order in any event.
7. As a result, the maintenance applications were dismissed.

1. The appellant appeals from a discretionary judgment and as such the appeal must be determined in accordance with the principles in House v The King (1936) 55 CLR 499, which relevantly provided:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. The appellant relies on three grounds of appeal.
2. Despite directions to file a summary of argument, the appellant merely provided a one page table identifying the judgment the subject of appeal, repeating the first ground of appeal, identifying the affidavit evidence she relied upon before the primary judge, and then referred to pp.47 to 130 of the Transcript 4 November 2024, broadly stating that she had "pointed out evidence where the respondent had deliberately committed perjury and fraud to hide his income".
3. The summary of argument filed by the appellant provided no real assistance in identifying what she alleged were the errors of the primary judge.
4. Despite the appellant's failure to file an appropriate outline, I permitted the appellant to make oral submissions concerning the grounds of appeal.

*** The primary Judge failed to afford the appellant procedural fairness before making the relevant Orders, by ignoring physical evidence proving the respondent has committed perjury and fraud.**

1. The appellant was unable to identify anything that happened at the hearing that would form the basis of a claim that she was not afforded procedural fairness.
2. The primary judge permitted the appellant to appear by video link for the purpose of the hearing.
3. It is apparent from the transcript that the primary judge carefully navigated the many difficulties the appellant presented at the hearing. For example, at the commencement of the hearing lawyers who had been engaged to represent the appellant, pursuant to a grant of assistance as a result of the s 102NA order, appeared before the court and sought leave to withdraw on the basis that their retainer had been terminated by the appellant. The appellant did not dispute that their retainer had been terminated but sought to advise the primary judge of the reason for terminating the retainer.
4. The primary judge attempted to dissuade the appellant from waiving legal professional privilege as to the advice the lawyers had given her with respect to her prospects of success. Nonetheless the appellant set out that her lawyers had wanted her to abandon her case as it lacked merit. The primary judge was then faced with an application for summary dismissal of the matter by the respondent. The primary judge, no doubt wishing to proceed cautiously in light of the events that unfolded, dissuaded counsel for the respondent from pursuing a summary dismissal application and proceeded to hear the matter on the merits.
5. During the course of the hearing her Honour ensured that the appellant was provided with copies of the relevant sections of the legislation.
6. The determination of the primary judgement was made on the unchallenged affidavit material that had been filed.
7. To the extent that this ground refers to claims of a lack of procedural fairness it has no merit and must be dismissed.
8. The ground also alleges that the primary judge ignored "physical evidence proving the respondent has committed perjury and fraud". Whilst the appellant was convinced that the respondent had committed such wrongs, it was difficult for her to identify the evidence that formed the basis for such allegations.
9. The appellant had identified transactions in bank statements of the respondent, from some years ago, where withdrawals or payments from one account were described as rent, and deposits in another of his accounts appeared to correlate with those withdrawals or payments. These transactions occurred in 2021 and 2022; many years before the maintenance application was being heard by the primary judge. The primary judge engaged with the argument in this respect, specifically seeking submissions from the counsel for the respondent on the issue (Transcript 4 November 2024, p.53 line 29 et seq). Her Honour refers to this material at [16] of her judgment. It is difficult to see how this evidence, even if it represents some misleading transactions as alleged by the appellant, goes further than affecting the credit of the respondent, given that it happened some years prior to the period subject to the maintenance application.
10. A similar difficulty arises with respect to a second item of evidence the appellant pointed to, a number of transactions with respect to a Westpac account in US currency, the statements of which appear in the Appeal Book at pp.391-402. This account is in the name of a company, Company E. The account statements were obtained when the appellant subpoenaed Westpac Bank to produce account statements for all accounts that had any connection with the respondent. These statements show that in 2022 some $2 million was transferred into the account from an entity described in the statement as "Company F", and thereafter payments were made to a variety of different people or entities, many prefaced by the initials "INTL", which appears to refer to an international transfer, and with descriptions such as "Technology Service", "Fee", "Trade payment", or "Service payment". There is no evidence that any of the persons receiving the money from this account appears to have any connection to the respondent. The primary judge considered this at [17]-[20] of her judgment, noting that the respondent had ceased to be a director of this corporate entity on 8 September 2021, well before the relevant transactions.
11. The matters relied upon by the appellant do not bear directly upon the capacity of the respondent to pay maintenance at the time that the application was heard before the primary judge. Nor does it appear that the evidence could lead to an inference that the respondent presently has greater funds available to him than he has set out in his financial statement, and as determined by Judge Spelleken in the property settlement judgment between the parties.
12. The arguments made with respect to this ground are without merit. Ground one must be dismissed.

*** The primary Judge failed to properly consider all of the appellant's evidence before making the relevant Orders.**

1. In support of ground two, the appellant argued that in 2015, the respondent had borrowed money against a home loan and transferred the monies to one of the corporate entities that he operates (see the bank statements in the Appeal Book at pp.332 to 334). She alleged that this money was then used for an investment. These events all occurred long before the property settlement proceedings, which have been determined by Judge Spelleken. It is difficult to understand how this issue relates to the respondent's current capacity to pay spousal maintenance.
2. The appellant also complained that monies may have been deposited with a stockbroker, Stockbroker H, and not disclosed. No subpoena appears to have been issued to Stockbroker H. There is no evidence of monies being transferred to Stockbroker H by the respondent.
3. The appellant again relied upon the transactions with respect to the US currency account, however for the reasons already given, these do not appear to lead to any direct evidence or inference that the respondent has greater resources available to him at present.
4. The appellant also raised the rent transactions claim relied upon under the previous ground.
5. The appellant made many complaints concerning disclosure, and complaints that the respondent's current employer had not responded to a subpoena. It does not appear that an application had been made to enforce the subpoena, nor that an adjournment of the trial had been sought or specific discovery pursued in interlocutory proceedings.
6. The issues relating to disclosure have been long standing and were dealt with by Judge Spelleken in her Honour's judgment at [39]-[47]. The possible consequences for failing to make adequate disclosure were expressed in Weir & Weir [1992] FamCA 69; (1993) FLC 92-338 where the court said that "once it has been established that there has been a deliberate non-disclosure the Court should not be unduly cautious about making findings in favour of the innocent party" (at p.79,593). However, even if non-disclosure had been established, it goes no further than allowing a primary judge great confidence to draw adverse inferences against the person who has failed to make disclosure based upon the evidence that is before the court. As the Full Court in Zha & Wun (No 2) (2025) FLC 94-258 at [80] said:

It must be remembered that a finding that one spouse has not made full and frank financial disclosure allows a more robust approach to fact finding but it does not and cannot fill evidentiary lacunae, nor does it dictate the pathway or pathways which will be appropriate in any given fact scenario.

1. Thus, it is not every case of non-disclosure that will lead to adverse inferences, particularly where the non-disclosure relates to documents that are unlikely to make a difference to the outcome of the proceedings (for example for a long term pension recipient that fails to make full and frank disclosure of their bank account statements in circumstances where there is no basis for considering that they may have resources other than the pension).
2. The concerns about non-disclosure were identified by the primary judge in [13], [16] and [17] of her Honour's judgment. The primary judge also found that the respondent's affidavit and financial statement showed that his expenses exceed his income and, importantly, that his evidence in this regard was not challenged (at [51]). The respondent set out that he was earning an income of around $180,000 per annum (see p.425 of the Appeal Book) as an accountant in his financial statement. It is not a case where his alleged income appeared unreasonably low for the type of employment in which he was engaged. The evidence of the appellant did not demonstrate any basis for rejecting the respondent's financial statement or affidavit evidence, particularly in the absence of cross examination of the respondent.
3. The primary judge listed a variety of debt that the respondent is meeting, including $335,000 payable to his employer, $466,000 payable to the ATO (related to a company of which he had formerly been a director), $17,038 in personal tax liability to the ATO, and $301 per week on a mortgage (the sum having been reduced on hardship grounds). Her Honour noted that because the appellant had not complied with Judge Spelleken's property settlement orders, the respondent was continuing to meet mortgage payments pending the enforcement of the property settlement orders, diminishing his capacity to make any maintenance payments as sought by the appellant. The primary judge accepted that the respondent had a shortfall of income compared to expenses of around $188 per week (at [44]) in circumstances where he has liabilities of $929,857 but assets of only $541,475.
4. There was no recent evidence that suggested that the respondent had a greater financial capacity or property interests than he had disclosed. The appellant has not established that the primary judge erred in her approach to the allegations of failure to make full and frank disclosure.
5. The appellant also argued that the primary judge prevented her from calling her daughter to give evidence with respect to the adult child maintenance issues. She relied upon two affidavits of her daughter that had been filed in the proceedings, however her daughter was not required for cross examination. It does not appear that the appellant had sought leave to have her daughter give further oral evidence in the proceedings (which ought to have been in her affidavit). Rather it appears that the complaint arises from an exchange beginning at p.9 of the Transcript 4 November 2024 where, prior to being advised that the appellant's daughter was not required for cross examination, the primary judge took care to ensure that a potential witness in the proceedings was not present in the video linked room prior to giving evidence. There is no basis for concluding that the primary judge erred in this regard.
6. The appellant complained that there was medical evidence before the court concerning the medical condition of her daughter, described as Triple X Syndrome. There was no opinion from a doctor as to the correct diagnosis of her daughter with this syndrome (only references in medical notes to a diagnosis having previously been made). Indeed, there was no affidavit evidence from a doctor. There were doctors' reports annexed to her affidavits, which were not reports directed to the court (some of which were directed to "To Whom it May Concern"). These reports were clearly hearsay and not admissible. Counsel for the respondent did not approach the matter on a technical basis, instead making the submission that the appellant had been put on notice that the reports would be opposed unless the authors were made available for cross examination. The authors of the medical reports or notes were not made available for cross examination in the proceedings. The primary judge nonetheless considered the most recent medical information that had been provided recounting:
   1. There is an invoice dated 5 May 2023 which relates to medical expenses treatment by Dr [G] in May 2023 for endometriosis or salpingectomy.
   2. I note the questionnaire competed by Dr [G] on 17 July 2024 - Exhibit 2 - indicates Ms [Saso]'s health issue at that time has a full recovery timeframe of 6 weeks and promotes a staged return to work plan resulting in normal shifts by week 3.
   3. I am not satisfied the evidence as presented suggests currently there is medical or other corroborative evidence to support the proposition Ms [Saso] has a disability such that it is necessary for provision to be made for her maintenance in accordance with relevant provisions of the Act.
7. The appellant has shown no error on the part of the primary judge when considering the material that was before her Honour.
8. As the appellant has not been able to identify any evidence before the primary judge that was not considered and which could realistically have made a difference to the outcome of the case, this ground must be dismissed.

*** The primary Judge displayed strong bias against the appellant, throughout the hearing.**

1. Despite the strong terms of this ground, the appellant's submissions went no further than alleging that the primary judge did not wish her to tell the primary judge why she had terminated the retainer of her lawyers and take into account the reasons for terminating their retainer. The reasons themselves did not appear to be relevant to the decision the primary judge had to make. As set out above, it was appropriate that the primary judge warn an unrepresented litigant that such material may not be appropriate to be placed before the court for the obvious reason that it could make the appellant's case seem less compelling if the primary judge were told that the appellant's own lawyers had thought she could not succeed. As matters transpired, she told the primary judge of this in any event.
2. There was absolutely no evidence of bias on the part of the primary judge. It appears that effectively the appellant sought to put a case of reasonable apprehension of bias. The relevant test for apprehended bias was set out by the High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [185]:

... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

1. When a person chooses to inform a judge of matters that could, in other circumstances, give rise to concerns of apprehended bias, it is not open to them to rely upon their own conduct to then seek to have the judge disqualified (although no application for the judge to disqualify herself was made during the course of the proceedings).
2. As the appellant's submissions progressed, it appeared that in substance her real concern was that she felt the primary judge's interactions with her were, to use my understanding of her argument, brusque. This is not a basis for concluding that the primary judge was biased or even a basis for considering that "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide".
3. It is a common experience of litigants that interactions with trial judges seem brusque as a result of the keen focus of trial judges upon identifying the issues between the parties, determining what is the relevant evidence, and the difficulties of ensuring a fair trial in accordance with the rules of procedural fairness, all in the context of knowing there is a significant number of other litigants awaiting judicial time.
4. The appellant has not established any basis for concluding that the primary judge displayed any indications of bias nor even an arguable basis for a claim that there was a reasonable apprehension of bias on the part of the primary judge.
5. In the circumstances this ground of appeal must be dismissed.

1. As the appellant has not established any of the grounds of appeal, the appeal must be dismissed.

1. The respondent sought costs in the event that the respondent succeeded and has annexed two schedules of fees setting out the estimated fees calculated on the party-party scale, and the estimated fees calculated on an indemnity basis, which are listed in the respondent's Amended Schedule of Costs at totals of $10,842.14 and $19,910 respectively. However, the columns were not correctly totalled and in fact come to $20,486.27 and $36,088.80 respectively.
2. The appellant argued that there should not be a costs order if she was unsuccessful, but in the event that there is a costs order, it should be limited to $500.
3. The respondent also points out that correspondence was sent by the respondent's solicitor to the appellant early in the appeal process in an attempt to avoid unnecessary costs. The first letter was sent on 7 July 2025 advising the appellant that her Notice of Appeal will likely be summarily dismissed or otherwise unsuccessful and encouraging her to obtain independent legal advice. Further correspondence was emailed on 29 August 2025 requesting the appellant withdraw her appeal and warning that should she fail to do so, the respondent would seek a costs order against her on an indemnity basis and again urging the appellant to obtain independent legal advice. The relevant letters were provided at the hearing of the appeal without objection by the appellant, who confirmed that she had received them. However, those letters did not offer to settle the appeal, such as forgoing all or part of the costs incurred if the appeal was abandoned at that point. The correspondence was not a genuine offer of compromise, but merely a threat to seek indemnity costs if the appeal was not discontinued: see, for example, Jones & Anor v Millward & Anor [2005] QCA 76; [2005] 1 Qd R 498; Dr Leo Shanahan v Jatese Pty Ltd (No 2) [2018] NSWSC 1306; Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd (No 2) [2021] VSCA 116 .
4. Costs in family law matters are to be determined in accordance with s 114UB of the Family Law Act 1975 (Cth) which provides that the ordinary starting point is that "each party to proceedings ... is to bear the party's own costs".
5. Section 114UB(2) provides for the court to make a costs order if "there are circumstances that justify it in doing so", subject to considering the matters listed in s 114UB(3). The parties had already received a detailed judgment by the primary judge dismissing the appellant's claim. Both parties have limited financial resources, although the appellant is in a far worse financial position as the respondent has a significant income. At no point in the appeal process did the appellant articulate with precision the facts and circumstances which she relied upon in the appeal to support her grounds of appeal. The respondent's claim that the appeal had no prospects of success in the respondent solicitor's letters were not an offer to compromise, however they did alert the appellant to the reality that she would be required to articulate an argument on the appeal.
6. Given the nature of the way in which the appeal was presented it must have been apparent to the appellant that there were no real grounds for the appeal that she was able to articulate, well before the appeal coming on for hearing. Whilst the appellant's position was without merit, I did not form the view her conduct was merely to cause costs to the respondent or was reckless as to the prospects, rather she was genuine in her beliefs.
7. I am not satisfied that the conduct of the appellant was such as to justify costs beyond party and party costs on this occasion.
8. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) include a scale of costs in Schedule 3 setting out the scale costs as set out in the rules after advice from the Joint Costs Advisory Committee (a successor of the Federal Costs Advisory Committee: see generally Weiss v Barker Gosling [1993] FamCA 58; (1993) FLC 92-399 at 80,073). The scale costs rates (where there is an appropriate item) are the "maximum amount of party and party costs a person may recover" (save for some limited exceptions): see r 12.18.
9. The respondent's schedule of costs setting out the scale fees incurred until 23 September 2025 lists items totalling $3,846.65 which I accept as an accurate assessment of party and party costs for the work done up to this point. However, the estimated fees sought thereafter do not withstand scrutiny, for example, $1,801.86 for "Quantifying costs pursuant to scale" (when the schedule contained only 88 items), $2,402.48 for eight hours of preparation for the appeal hearing by the instructing solicitor (when counsel had been briefed to draw the Summary of Argument and argue the appeal), $1,201 for four hours of conferencing with counsel when the appeal turned entirely on the filed documents with which counsel would have been briefed, and $2,402.48 for eight hours to attend by video for an appeal that took less than half a day to hear. I am not persuaded that party and party fees for counsel ought to include both a full day for drawing the Summary of Argument and a further full day to prepare for this appeal given its limited compass, both at the highest end of the scale (rather than the mid-point which appears more appropriate given the nature of the appeal).
10. Having regard to the circumstances of this case and the costs estimates, I am persuaded that it is appropriate to make a lump sum costs order in the sum of $10,500 in favour of the respondent.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.