Aldrin & Celona

[2021] FedCFamC1A 16

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Aldrin & Celona [2021] FedCFamC1A 16

Appeal from:

Celona & Aldrin [2020] FCCA 2393

Appeal number(s):

EAA 139 of 2020

File number(s):

SYC 7481 of 2016

Judgment of:

AUSTIN, MCEVOY & ALTOBELLI JJ

Date of judgment:

22 September 2021

Catchwords:

FAMILY LAW – APPEAL – PROPERTY– Where the appellant appeals from final orders adjusting the parties’ property interests 70/30 per cent in his favour – Findings of fact – Assessment of contributions to be approached holistically and not as an audit of the figures assessed by the primary judge – Mathematical precision not required – Where findings of the primary judge were reasonably open on the evidence – Where primary judge erred in failing to include a value for the appellant’s interest in a business as an initial contribution by him – Appeal succeeds on this ground only – Appeal allowed – Matter remitted to Division 2 – Costs reserved.

Legislation:

Family Law Act 1975 (Cth) ss 90SF, 90SM, 90XC

Cases cited:

Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Horrigan & Horrigan [2020] FamCAFC 25

Jabour v Jabour (2019) 59 Fam LR 475; [2019] FamCAFC 78

Kessey & Kessey (1994) FLC 92-495; [1994] FamCA 162

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Pearce & Pearce [2016] FamCAFC 14

Petruski v Balewa (2013) 49 Fam LR 116; [2013] FamCAFC 15

State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588; [1999] HCA 3

Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

Wilde & Wilde [2007] FamCA 1044

Number of paragraphs:

44

Date of hearing:

8 September 2021

Place:

Heard in Sydney (via video-link), delivered in Newcastle

Counsel for the Appellant:

Ms Lowson

Solicitor for the Appellant:

Konstan Lawyers

Counsel for the Respondent:

Mr Todd

Solicitor for the Respondent:

McLachlan Thorpe Partners

ORDERS

EAA 139 of 2020 SYC 7481 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR ALDRIN Appellant
AND:	MS CELONA Respondent

ORDER MADE BY:	AUSTIN, MCEVOY & ALTOBELLI JJ
DATE OF ORDER:	22 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders made on 7 September 2020 and order 1 made on 11 December 2020 are set aside.

3.The matter be remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a judge other than the primary judge.

4.Costs be reserved.

5.The appellant file and serve written submissions on the question of the reserved costs of and incidental to the appeal within 14 days of today’s date.

6.The respondent file and serve written submissions on the question of the reserved costs of and incidental to the appeal within 14 days of the filing and service of the appellant’s submissions in accordance with order 5 hereof.

7.The appellant file and serve any written submissions in reply on the question of the reserved costs within 14 days of the filing and service of the respondent’s submissions in accordance with order 6 hereof.

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 the pseudonym Aldrin & Celona has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

AUSTIN, MCEVOY & ALTOBELLI JJ:

INTRODUCTION

1. By an Amended Notice of Appeal filed 27 May 2021, Mr Aldrin (“the appellant”) appeals against final property settlement orders made by a judge of the Federal Circuit Court of Australia on 7 September 2020. Ms Celona (“the respondent”), who had sought orders pursuant to s 90SM of the Family Law Act 1975 (Cth) (“the Act”) for the alteration of the parties’ interests in assets and liabilities following the cessation of their de facto relationship, resisted the appeal.

2. The appellant’s grounds of appeal raised a myriad of what were said to be demonstrable errors on the part of the primary judge, resulting in a significantly greater award to the respondent than she would otherwise have been entitled to receive. Consistently with established principle however we have concluded that only one of those asserted errors, that relating to the assessment of the appellant’s initial contributions, demonstrates appealable error. For the reasons that follow the appeal will be allowed and the matter remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a judge other than the primary judge.

   BACKGROUND

3. The appellant is presently 71 and the respondent is presently 64 years of age. They commenced cohabitation in late 2012 and did not marry.

4. The primary judge found, and this was not challenged on appeal, that they separated in June 2016. The relationship was thus of less than four years duration.

5. There are no children of the relationship and while both the appellant and the respondent have adult children from prior relationships, their children are financially independent of them.

6. On 14 November 2016 the respondent commenced proceedings for the alteration of property interests in the Federal Circuit Court. The final hearing occurred on 24 May 2018, however final submissions were not made until 25 January 2019. On 7 September 2020 orders were made which altered the parties’ relevant property interests on the basis of an overall division 70 per cent to the appellant and 30 per cent to the respondent. By reference to net assets found to total $1,046,877, this reflected a 25 per cent contribution finding in favour of the respondent and an adjustment in her favour of 5 per cent on account of s 90SF(3) matters.

7. Having regard to the  existing property interests and liabilities of the parties, including partial property orders previously made, the primary judge’s determination was found to require a payment  from the proceeds of the sale of a property known as “the B property” to the respondent of $210,063.10, with the balance to be paid to the appellant (approximately $165,325.90).

   THE APPEAL

8. Although the appellant’s Amended Notice of Appeal referred to two principal grounds with numerous sub-grounds which were said to disclose error on the part of the primary judge, the two grounds and their constituent parts were in reality an agglomeration of interconnected complaints asserting errors of fact which caused the exercise of the primary judge’s discretion to miscarry. The failure of the appellant’s Summary of Argument to address the sub-grounds of Ground 2 discretely did not assist in elucidating the complaints. In addition, the purview of the appellant’s appeal was enlarged during the hearing when counsel for the appellant sought and was granted leave to further amend the Amended Notice of Appeal to add to the end of Ground 1(j) the words “or was manifestly unjust”. Leave was also sought and granted to correct the second figure in Ground 2(e1) from $891,404 to $795,404. The respondent did not oppose the grant of leave in relation to these amendments.

9. Nevertheless, it may be accepted that, as the respondent submits, the central issues raised by the appellant’s appeal are:

   (a)as to Ground 1, a series of asserted errors of fact which amount to a mixture of “reasons” or “weight” based grounds, and a consequent contention that the judge’s discretion in settling upon the percentage adjustment miscarried at the contributions assessment stage, in the assessment of 90SF(3) factors, and on the question of whether the proposed orders were just and equitable (and indeed, consequent upon the amendment, that the result was manifestly unjust); and

   (b)as to Ground 2, a series of contended errors of fact, the fundamental premise for which is, in part the treatment by the judge of particular assets and their value and, as a consequence and otherwise, as to the mathematics of the ultimate alteration decision.

10. At the hearing of the appeal, however, the focus was on three principal asserted errors. The first was the finding that the respondent contributed $250,000 to the relationship by reason of an inheritance received from her mother, rather than the lesser amount of $200,000. The second was the primary judge’s omission of the value of the appellant’s interest in a technology business called E Pty Ltd from the assessment of the parties’ initial contributions. The third was the omission of the respondent’s superannuation from the calculation of the parties’ asset pool. It is the failure of the primary judge to include a value for the appellant’s interest in E Pty Ltd in his findings as to the appellant’s initial contributions that we regard as material, and on the basis of which we consider it necessary to allow the appeal. The other two complaints, as well as the balance of the appellant’s grounds of appeal, are without foundation.

11. Each of these matters are dealt with in turn below. Before doing so, however, we observe that aside from the asserted error in the calculation of the parties’ initial contributions, much of the appellant’s appeal comprised challenges to the primary judge’s acceptance of the evidence of the respondent or rejection of the evidence of the appellant. As counsel for the respondent submitted, the obstacles to the success of such challenges are well established (see Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178–179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482–483; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 at [90]; Fox v Percy (2003) 214 CLR 118 at [23]–[26]). Obviously enough, the difficulty that such challenges presented for the appellant was in establishing that the findings made by the primary judge were not reasonably open (see Edwards v Noble (1971) 125 CLR 296 at 304). In the result the appellant was unable to demonstrate that any of these findings were not open, a reality which experience suggests will routinely confront an appellant seeking to make such challenges.

12. In this vein, and having regard to many of the challenges advanced in this appeal, it should be reiterated that the identification and assessment of the parties’ respective contributions for the purposes of the Act is to be approached holistically (see Dickons v Dickons (2012) 50 Fam LR 244 at [21], [24] and [26]; Pearce & Pearce [2016] FamCAFC 14 at [101]; Jabour v Jabour (2019) 59 Fam LR 475 at [64]; Horrigan &Horrigan [2020] FamCAFC 25 at [35] and the cases there cited). Mathematical precision is not required and has long been eschewed (see Norbis v Norbis (1986) 161 CLR 513 at 522–523).

13. A properly conceived appeal will seldom, if ever, involve an overly critical or pernickety analysis of the primary judge’s reasons given the large element of judgment, discretion and intuition which is involved (see AMS v AIF (1999) 199 CLR 160 at [150] and the cases there cited). The exercise to be undertaken by a trial judge in altering property interests is a broad adjustive one which, although it requires careful evaluation of the evidence, and appropriate assessment of contributions, is not to be equated with an accounting audit (see Wilde & Wilde [2007] FamCA 1044 at [83]). This reality should always be borne in mind where it is sought to challenge a primary judge’s assessment of contributions on appeal.

14. Against this background of the relevant legal principles we turn to consider the various asserted errors which are the subject of the appeal.

    The respondent’s inheritance from her mother

15. Grounds 1(b), (c) and (d) of the Amended Notice of Appeal challenge the primary judge’s finding that the respondent brought $250,000 in to the relationship from her mother’s estate. The appellant accepts that the respondent brought $200,190 in from this source, but contends that the additional $50,000 the respondent says she obtained from her mother’s estate was not proven by a corroborative bank statement or otherwise. Thus it is submitted that the respondent’s initial contribution figure should be reduced by $50,000.

16. The respondent asserted in her trial affidavit and in cross examination that she received $250,000 from her mother’s estate. Although it is true that she was only able to produce one bank statement which disclosed the receipt of $200,190 on 23 October 2012, she also produced evidence of the payment to her and her brother of a further $374,000 into a joint trustees account to be held by the two of them. She maintained that she received approximately $50,000 of this sum, and that some $750,000 which was left by her mother was divided three ways.

17. We do not accept, as the appellant contends, that the primary judge failed to resolve the dispute in relation to this question by analysis of the evidence. His Honour considered and ruled against the relevant objections to the respondent’s affidavit evidence (at [55]–[57]), ultimately accepting her evidence that $250,000 was the amount that she received (at [90]). The absence of a document clearly corroborating the receipt by the respondent of a further sum, whether on 23 October 2012 or thereafter, did not mean, in all the circumstances, that his Honour was bound to reject the respondent’s evidence. His Honour’s finding was entirely open, and the appellant’s challenge on this ground must be rejected.

    The omission of the appellant’s interest in E Pty Ltd from the parties’ initial contributions

18. Ground 2(b) of the Amended Notice of Appeal challenges the primary judge’s treatment and synthesis of the appellant’s 50 per cent interest in E Pty Ltd at the outset of the relationship. Grounds 1(h), 2(d), (f), (g), (h), and (j)(ii) and (iv) are, in effect, arithmetic complaints based wholly or partially on this asserted error.

19. It is plain that in paragraph [103] of the reasons, where the primary judge set out the appellant’s assets and liabilities at the commencement of the relationship, his Honour did not attribute any value to the appellant’s interest in E Pty Ltd at that time. However, this was in circumstances where his Honour had accepted (at [93]) that the appellant’s interest in E Pty Ltd could not have been nil at the time of cohabitation because shortly afterwards, perhaps as little as three months afterwards (see at [27]), the appellant realised $130,000 for his share of E Pty Ltd.

20. Whilst it was clearly open to the primary judge to reject (at [96]) the appellant’s assertion in his trial affidavit that E Pty Ltd was worth $227,570 at the time of cohabitation, that did not provide a basis for his Honour to attribute a nil value to the appellant’s interest in E Pty Ltd at the time of cohabitation thereby depriving him of a credit for the capital value of that asset introduced into the relationship. As the primary judge acknowledged, the appellant’s interest in E Pty Ltd had a value, and consideration of all the relevant evidence could not properly have resulted in the appellant’s interest in E Pty Ltd being wholly excluded from the assessment of his assets and liabilities at the time of cohabitation. We accept that the primary judge erred in failing to attribute a value to E Pty Ltd at the time of cohabitation.

21. It is no answer to say (as the respondent submits), that it was permissible for the primary judge to synthesise the assessment of the appellant’s contributions by reference to the appellant’s disposition of his interest in E Pty Ltd and the application of the proceeds of that sale to service other debts, and that on this basis it is “tolerably clear” that the appellant’s interest in E Pty Ltd was taken into account in the analysis.

22. The primary judge made an assessment of overall contributions explicitly on the basis of his findings as to the initial contributions made by the parties. His Honour purported to embrace exactitude in assessing the parties’ initial contributions. Plainly the appellant’s interest in E Pty Ltd was not included in the analysis, as it should have been, as an initial contribution made by him. This infected the primary judge’s assessment of the parties’ overall contributions which was approached on a holistic basis.

23. In the face of the evidence evaluated as a whole (see Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 141) it is difficult to see how $130,000 would not have been the appropriate figure to take into account as an initial contribution of the appellant. Had this occurred, the appellant submits, not unreasonably, that this would have resulted in his initial contributions being assessed as $588,404, rather than $458,404. On a total asset base of $891,404, this would have meant that his share of the initial contribution was 66 per cent, rather than 60 per cent.

24. To make this point is more than merely pernickety, to use the language of the respondent’s written submissions. Had the primary judge not excluded the value of the appellant’s interest in E Pty Ltd from the appellant’s initial contributions it must follow that his Honour would have accorded a greater percentage interest to the appellant at the stage of his assessment of the parties’ respective overall contributions to the relationship. The error in respect of the differential capital contributions was an important feature which vitiated the discretionary exercise given the brevity of the parties’ relationship.

    The omission of the respondent’s superannuation from the asset pool

25. Ground 2(e) of the Amended Notice of Appeal challenges the primary judge’s decision not to include the respondent’s superannuation in the parties’ asset pool. Grounds 2(e1) (as amended), (g), (h), (i) and (j)(i) and (iii) are, in effect, arithmetic complaints based wholly or partially on this asserted error.

26. The primary judge found (at [85]) that the respondent’s superannuation was $54,577, treating it as a financial resource available to her and excluding it from the net asset pool. The appellant submits that this figure should have been included in the net asset pool (at [131]), although at the hearing of the appeal counsel for the appellant could put the claim no higher than that it was not inconceivable that the respondent could have cashed in this superannuation interest on a hardship application.

27. The primary judge was not obliged to include the respondent’s superannuation as part of the pool. As the respondent submitted, s 90XC of the Act does not operate to deem superannuation interests to be property for the purposes of the Act more generally (see Coghlan & Coghlan (2005) FLC 93-220 at 79,641–79,644). And as the respondent also submitted, the approach adopted in relation to her superannuation paralleled the approach taken by the primary judge in relation to the appellant’s property in Suburb X, a life estate in which is held by the appellant’s elderly brother. The approach adopted by the primary judge was entirely open and the appellant’s challenge on this ground must be rejected.

    The remaining challenges

28. The balance of the appellant’s appeal grounds were either dealt with in passing at the hearing of the appeal, or as arithmetic consequences of other grounds and were not the subject of specific attention. Nonetheless, for completeness we deal with them as follows.

    Ground 1(e)

1. Ground 1(e) of the Amended Notice of Appeal contended that the primary judge erred in finding that the respondent’s financial support allowed the appellant to retain ownership of the B property in the absence of evidence in support of that finding and where there was contrary evidence as to other sources of money for the appellant. This ground is plainly untenable. The primary judge considered the evidence in relation to this matter explicitly (at [113]). His Honour was entitled to make an assessment, on the basis of that evidence, about what effect the receipt of those monies from the respondent might have had on the appellant’s position in relation to the B property. As the respondent submits, there is nothing to suggest that the findings which are the subject of complaint here were not reasonably open on the evidence. Indeed, the primary judge’s findings in this regard seem entirely unremarkable.

   Grounds 1(f) and 1(g)

2. Ground 1(f) contended the primary judge erred in finding that the respondent made substantial non-financial contributions to the relationship in all the circumstances, including but not limited to the fact that she was overseas without the appellant for more than 10 months of the relationship. Ground 1(g) contended that the primary judge erred in failing to find that the appellant made substantially greater non-financial contributions to the relationship than the respondent. The complaint is, essentially, that the primary judge confused non-financial contributions with financial contributions and that his Honour’s findings in relation to non-financial contributions did not reflect the evidence adduced (at [117]–[124]).

3. We do not accept these criticisms. As the respondent submits, the contentions of the appellant as to the respective non-financial contributions of the parties were considered explicitly by the primary judge, including in relation to the respondent’s overseas travel (at [117]–[120]). They were the subject of a finding (at [117]) that both parties made significant non-financial contributions towards the relationship and in particular to the maintenance, improvement and upkeep of the B property. The primary judge also found that the respondent made a contribution in the form of her care for the appellant after he suffered a heart attack, in helping him to manage his debt, and in encouraging him to moderate his spending habits (at [119]).

4. It is axiomatic that, as the primary judge correctly observed, the assessment of contributions is almost inherently incapable of precise calculation and the process must be undertaken holistically (see Kessey & Kessey (1994) FLC 92-495 and Petruski v Balewa (2013) 49 Fam LR 116, to which the primary judge referred, in addition to the cases cited above at [12] and [13] ). In our assessment there is nothing to suggest that the primary judge’s findings in relation to non-financial contributions were not reasonably open on the evidence.

   Ground 1(h)

5. Ground 1(h) contended that the primary judge erred in finding that the parties’ respective overall contributions were 75 per cent to the appellant and 25 per cent to the respondent when the appellant’s overall contributions were significantly greater than 75 per cent. The complaint essentially is that a proper exercise of the discretion, unaffected by a failure to accord adequate weight to the contributions, would necessarily have found that the appellant’s contributions were 85 per cent.

6. We have accepted that the primary judge erred in the treatment of the appellant’s initial contributions insofar as his Honour excluded the value of E Pty Ltd. Because the primary judge made an assessment of overall contributions explicitly with regard to his findings as to the parties’ initial contributions, it must follow that the 75 per cent holistic assessment of the appellant’s overall contributions was erroneous. In our assessment, however, any error in the primary judge’s assessment of overall contributions is confined to his Honour’s failure to include the value of E Pty Ltd in the appellant’s initial contributions. The appellant’s challenge to the primary judge’s assessment of overall contributions more generally must be rejected. It is no more than a challenge to the weight to be attributed to particular factual findings which were properly the subject of the primary judge’s exercise of discretion. No manifest error in the exercise of discretion has been identified, and the appellant’s submissions do no more than advance a difference of opinion about what the result might have been.

   Ground 1(i)

7. Ground 1(i) contended that the primary judge erred in finding that the respondent had any entitlement to an upward adjustment of her share of the net asset pool as a result of s 90SM and s 90SF factors. The complaint is that ultimately the only reason identified for providing an upward adjustment of 5 per cent was that the appellant had greater financial resources than the respondent, and there was a lack of cogent evidence to support the making of any adjustment.

8. This ground must also be rejected. In the first place, while it may be accepted at a level of generality that an upward adjustment should be used sparingly in a later life relationship of short duration, it is demonstrably wrong that it was only the appellant’s greater financial resources that provided a basis for the adjustment. As the respondent correctly submitted, the primary judge explicitly considered the fact that the respondent was in poor health and could no longer work, that she had limited income, financial resources, and superannuation, and that she had limited accommodation options (at [125]–[130]).

9. Secondly, and as the respondent also submitted, this challenge reflects no more than an argument that in the exercise of the s 90SF(3) discretion the primary judge should have been less generous to the respondent than he was. This is no basis for appellate intervention.

   Ground 1(j)

10. Ground 1(j) contended that the primary judge erred in failing to apply, or properly to apply, the just and equitable test in that his Honour awarded a sum of money to the respondent that substantially exceeded the assets that she had brought into the relationship. As has been mentioned, this ground was amended at the hearing of the appeal with the addition of a contention that in the alternative the award to the respondent was, for this reason, manifestly unjust.

11. As we have observed in relation to Ground 1(h), it follows from our acceptance that the primary judge erred in the treatment of the appellant’s initial contributions by excluding the value of E Pty Ltd that his Honour’s 75 per cent assessment of the appellant’s overall contributions was erroneous. Had this not occurred the appellant’s overall contributions would likely have been found quantified at a higher proportion. However in our assessment any manifest injustice or failure on the part of the primary judge to make an alteration of property interests that was, in all the circumstances, just and equitable goes no further than his Honour’s E Pty Ltd error in the assessment of initial contributions. The primary judge’s reasoning in relation to the financial and non-financial contributions of the parties, and in relation to s 90SM and s 90SF factors, has not otherwise been impugned. If it results in the respondent receiving more, in real terms, than she brought into the relationship then that is not reflective of error.

    Ground 2(a)

12. Ground 2(a) contended that having adjusted the value of the B property to $920,000 under the slip rule, the primary judge erred in failing to account for the increase in value of $20,000 in calculating the parties’ respective entitlements. The appellant does not seek an adjustment on this basis alone, but submits that if any of the other contended errors are made out and a re-calculation is required, this additional $20,000 should be considered in that recalculation.

13. We do not accept that the primary judge’s reasoning is affected by any error in this respect. As we have stated, and as his Honour observed (at [121]–[123]), the assessment of contributions is almost always inherently incapable of precise calculation. No mathematical or pernickety analysis is possible or appropriate in the assessment of financial and non-financial contributions. Having regard to the contributions of all kinds determined to have been made we are unable to accept that a difference of $20,000 would have had any material bearing on the primary judge’s decision.

    REMITTAL

14. Counsel for the appellant conceded at the hearing of the appeal that if only the appellant’s argument in relation to the E Pty Ltd error were to be successful, then it would be preferable for the Court as presently constituted to deal with the matter by the re-exercise of the primary judge’s discretion rather than remitting the matter. In all the circumstances we would have been prepared to proceed on this basis, however counsel for the respondent pressed for the matter to be remitted, even if only the E Pty Ltd argument were to succeed.

15. Appealable error having been demonstrated, the parties are entitled to be given the opportunity to adduce current evidence either in the re-hearing at first-instance or on the re-exercise of discretion in the appeal (see Allesch v Maunz (2000) 203 CLR 172 at 183 and 191–192). As the respondent wishes to avail herself of this opportunity the only feasible outcome is for the matter to be remitted to Division 2 of this Court for rehearing by a judge other than the primary judge.

    COSTS

16. Insofar as the costs of the appeal are concerned, although the appellant seeks his costs of a successful appeal it is apparent that there has been an exchange of correspondence between the parties which is not before the Court and which may have a bearing on the question of costs. Accordingly costs will be reserved and the parties will be ordered to file written submissions on the question of costs. The question of costs will be determined in chambers on the filed submissions.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, McEvoy & Altobelli.

Associate:

Dated:       22 September 2021