Barrett & Simmel
[2022] FedCFamC1F 896
Federal Circuit and Family Court of Australia
(DIVISION 1)
Barrett & Simmel [2022] FedCFamC1F 896
File number: MLC 9563 of 2021 Judgment of: CARTER J Date of judgment: 16 November 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – summary dismissal – where the husband makes an application seeking to summarily dismiss the wife’s application for orders under s 79A of the Family Law Act 1975 (Cth) – where it is sought that final property orders be set aside – where the wife submits that the method of the valuing the shares was flawed – miscarriage of justice – where the court is unable to be satisfied that the wife has no reasonable prospect of success – husband’s application for summary dismissal dismissed. Legislation: Family Law Act 1975 (Cth) ss 45A, 79, 79A, 113
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09
Cases cited: Barker & Barker [2007] FamCA 13
Bigg & Suzi [1998] FamCA 14
Blackwell and Scott (2017) 56 Fam LR 474
Fancourt & Mercantile Credits Ltd. (1983) 154 CLR 87
General Steel Industries Inc. &. Commissioner for Railways (N.S.W.) (1964) 112 CLR 125
Kowalski & Kowalski (1993) FLC 92-342
Lindon & The Commonwealth (No 2) [1996] HCA 14
M & M [2003] FamCA 1304
Ritter & Ritter & Anor (2020) FLC 93-957
Suiker & Suiker (1993) FLC 92-436
Webster & Lampard (1993) 177 CLR 598
Division: Division 1 First Instance Number of paragraphs: 58 Date of last submissions: 2 November 2022 Date of hearing: 2 November 2022 Place: Melbourne Counsel for the Applicant: Mr Fabian Dixon SC Counsel for the Applicant: Ms Therese Borger Solicitor for the Applicant: Taussig Cherrie Fildes Lawyers Counsel for the Respondent: Mr Geoff Dickson KC Solicitor for the Respondent: Lander & Rogers Lawyers ORDERS
MLC 9563 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BARRETT
Applicant
AND: MR SIMMEL
Respondent
order made by:
CARTER J
DATE OF ORDER:
16 November 2022
THE COURT ORDERS THAT:
1.The husband’s application for summary dismissal of the wife’s Initiating Application filed 11 October 2022 is dismissed.
2.The matter be listed for Case Management Hearing on 2 December 2022 at 9.30 am.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Barrett & Simmel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
Introduction
The wife filed an application on 11 October 2022 seeking that the final orders made by consent on 30 August 2022 (“the final orders”) be varied pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”). That is opposed by the husband, who seeks the wife’s application be summarily dismissed. This judgment deals with that application for summary dismissal.
background
The final orders were made by consent in chambers, and had been signed by the husband on 24 August 2022 and by the wife on 25 August 2022. They were sent to chambers by the wife’s lawyers at about 10.00 am on 30 August 2022, together with a joint letter explaining the final orders, co-signed by the parties’ practitioners. The proposed orders provided for the wife to receive 32.5 per cent of the pool of assets. I note that there is no challenge to the division of assets at 32.5 per cent to the wife and 67.5 per cent to the husband being a fair and appropriate outcome.
Having been satisfied that it was just and equitable that orders be made, and that the proposed orders were appropriate in all the circumstances, the final orders were made by me at 12.23 pm that day.
That joint letter was authored by the wife’s solicitors. It was dated 23 August 2022, and set out inter alia the history of the husband’s acquisition of shares in B Pty Ltd (“B Pty Ltd”). He had previously founded B Pty Ltd, a start-up company, from which he resigned in 2012, retaining his shareholdings. The husband now holds more than 3,000,000 shares in B Pty Ltd, which he will keep as part of the final orders.
About six months before the parties’ final separation, the B Pty Ltd shares were listed at over $1.50 per share. They increased in valued such that in late 2020, around four months after the parties separated, they were valued at over $3.50 per share. As the joint letter set out:
[B Pty Ltd] reached further peaks on 13 August 2021 […] and 5 November 2021 […]. At the time of separation, the [B Pty Ltd] shares [had declined in value] and as at 22 August 2022, [had declined further].
...
The value of the husband’s shareholdings in [B Pty Ltd] …will be determined as at the date of the final orders.
To calculate the pool to effect the agreed percentage division, Order 1.3 of the final orders relevantly provided that the value of the B Pty Ltd shares, as well as shares in C Ltd and D Ltd would be determined “as at the close of trading on the date of these orders”.
Thus, knowing the volatility of the B Pty Ltd share price, the parties reached an agreement to tie the value of the shares to the traded value as at the date the final orders were made.
At the close of the ASX on 29 August 2022, the B Pty Ltd shares were trading at under $1.50 per share. That was a particularly low point for the share price.
The company put in place a trading halt on 30 August 2022, and no shares were traded on the ASX that day. The wife said she became aware of the trading halt on the morning of 30 August 2022, and advised her lawyers of same at 10.52 am that day. My chambers were not notified.
It is apparent that trading halt was implemented in the face of a takeover bid made by a private equity firm, E Pty Ltd (“E Pty Ltd”). B Pty Ltd said on 30 August 2022, it had rejected an offer made by E Pty Ltd, apparently asserting the indicative proposal to acquire 100 per cent of B Pty Ltd shares at around $1.50 was inadequate, and highly opportunistic, being made “at a time of significant share market volatility and cyclical weakness in […] valuations”.
The wife’s material includes an ASIC Form 603 (Notice of Initial Substantial Holder) document, indicating that E Pty Ltd became a substantial shareholder in B Pty Ltd on 30 August 2022, having acquired the shares at around $1.50 a share.
On 31 August 2022 the B Pty Ltd shares opened on the ASX at around $1.50 per share. Also on that day E Pty Ltd announced it had become a substantial holder of B Pty Ltd shares, having acquired the shares at around $1.50 per share.
The wife filed an Initiating Application on 11 October 2022, asserting, in effect, a miscarriage of justice. It is her application that pursuant to s 79A(1)(a) of the Act, Order 1.3 of the final orders should either:
(a)be set aside and varied to include fixed dollar values for the various shares, including the B Pty Ltd shares at around $1.50 per share; or
(b)be set aside and varied to provide that the share price be determined by the ASX listed price on the date of the orders, or if no trade that day for that entity, at the conclusion of trade the following day.
Alternatively she seeks an order “pursuant to 79(1)(a) and/or section 113 of the Act” declaring the B Pty Ltd shares to be around $1.50 as at close of trade on the date the final orders were made. No submissions were made to me regarding this alternate application for a declaration.
If the wife’s s 79A(1)(a) application is not successful, and the pool calculated on the basis that the shares are worth less than $1.50 per share, she says this would result in a miscarriage of justice for “any other circumstance” within the meaning of s 79A(1)(a) of the Act.
I note that if the B Pty Ltd shares are valued at less than $1.50 per share, then the shareholding is valued at approximately $3,600,000. If they are valued at around $1.50 per share, that value increases to approximately $5,000,000.
Senior counsel for the wife submitted the circumstances that give rise to that asserted miscarriage of justice are:
(a)there was no trading of the shares on the ASX on the day the final orders were made. Using the trade price from the day before is not a correct interpretation of the final orders which specify close of trading on the day;
(b)there was trading of the shares on the day the final orders were made, although not publicly, in which the shares were traded at around $1.50 per share. There is no reference in the final orders to trading on the ASX only. Additionally, when the exchange opened the following day, being the day immediately following the making of the final orders, the shares were listed at around $1.50 per share. Accordingly, that value should be used for the purpose of calculating the pool and the wife’s 32.5 per cent entitlement; and
(c)nowhere in the husband’s material does he say he was not aware that the trading halt was about to be called. If he did know, he ought to have disclosed that. If he knew offers were going to be made, he ought to have disclosed that too.
The wife’s application is opposed by the husband. He says the application should be summarily dismissed, and the pool calculated on the basis that the B Pty Ltd shares were worth less than $1.50 per share.
The Law – Summary Dismissal
Section 46 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and s 45A of the Act both provide that summary judgment can be made where an applicant “has no reasonable prospect of successfully prosecuting the proceeding”. Those sections clarify that the court need not be satisfied that the proceeding is either “hopeless”, or “bound to fail” in order be meet the test of no reasonable prospect of success.
Similarly, r 10.09 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that an application for summary dismissal can be made in circumstances where the application has “no reasonable likelihood of success”.
I note the following observations, taken from those made by Kirby J in Lindon & The Commonwealth (No 2) [1996] HCA 14, at [14], when dealing with a summary dismissal application:
(a)the discretionary power to summarily dismiss an application is rarely and sparingly provided, as it is a serious matter to deprive a person of access to the court;
(b)I must consider only the wife’s material, and determine whether on the face of her material there is no reasonable likelihood her application will succeed;
(c)if there is a serious legal question to be tried, that should be determined at a final hearing;
(d)if there is a defect in the pleadings, the court will ordinarily allow the applicant to reframe their pleading, if it appears that there may be a reasonable cause of action that can be articulated; and
(e)the guiding principle is to do what is just. If there is no reasonable likelihood of success, the court ought dismiss the action, to prevent the applicant from further costs and disappointment, to protect the respondent and to ensure court time is not wasted hearing claims lacking in merit.
I note further the observations of their Honours Mason CJ, Dean and Dawson JJ in Webster & Lampard (1993) 177 CLR 598 at 602–603, where they referred with approval to General Steel Industries Inc. & Commissioner for Railways (N.S.W.) (1964) 112 CLR 125 (“General Steel Industries”) at 129, and Fancourt & Mercantile Credits Ltd. (1983) 154 CLR 87 at 99. Their Honours said that the power to order summary judgment must be exercised with “exceptional caution” and that it “should never be exercised unless it is clear that there is no real question to be tried”. Further, and again referring to General Steel Industries, their Honours said:
Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that "great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his [or her] opportunity for the trial of his [or her] case by the appointed tribunal”.
Often at a preliminary stage of proceedings, an applicant may not have all the necessary evidence in which they will seek to rely at a final hearing. Senior counsel for the wife advised that further evidence would be adduced by the wife, should the matter proceed to a hearing. In particular, I understood the wife wanted to adduce evidence as to the state of the husband’s knowledge regarding the dealings with the B Pty Ltd shares in the days leading up to the final orders being made. That might be relevant to an assertion that the husband failed to disclose information.
I further note the husband bears the onus of satisfying me, on the material before the Court, that the wife’s application has no reasonable prospect of success.
Per Ritter & Ritter & Anor (2020) FLC 93-957 at 79,626, I must take the wife’s evidence at its highest in determining the summary dismissal application, unless that evidence is inherently incredible or unreliable. Accordingly, what I must consider is whether the wife’s evidence, such as it currently is, and if accepted, is capable of supporting her application; Bigg & Suzi [1998] FamCA 14 (“Bigg”) at [6.29].
The wife relied on her Initiating Application, and her affidavit filed 11 October 2022. An affidavit of a Mr F, chartered accountant, was also filed on 11 October 2022. He purports to give evidence as to the value of the B Pty Ltd shares on 30 August 2022. I understand ultimately objection would be taken to Mr F’s evidence, if the matter proceeds to trial. For the purposes of these interim proceedings, I have read and considered Mr F’s evidence, as well as the wife’s affidavit.
Whilst there may be some strong arguments to be made that the wife’s application pursuant to s 79A(1)(a) ought not succeed, for the reasons that follow, I am not satisfied that I can say there is no reasonable likelihood of success.
The Section 79A(1)(a) application
In determining an application pursuant to s 79A(1)(a), the court undertakes four distinct steps. Firstly, the person seeking the relief must demonstrate a ground has been established. If a ground is demonstrated, the court must then consider:
(a)whether the ground gives rise to a miscarriage of justice. If so, then;
(b)whether the court should exercise its discretion to vary or set aside the order; and if so
(c)determine what order should be made in substitution of the order, if any.
It has been said that s 79A is remedial in nature, designed to overcome miscarriages of justice and accordingly, should be construed liberally to effect that purpose. The concept of a miscarriage of justice has been held to concern the integrity of the judicial process; Bigg; Suiker & Suiker (1993) FLC 92-436 (“Suiker”). As such, it can only occur as a result of something that happened before or at the time the order sought to be set aside is made. Events that occur after an order is made cannot provide the basis for an order to be set aside pursuant to s 79A(1)(a).
In Suiker, at 80,472 their Honours said that the words “miscarriage of justice” should not be construed narrowly, and it was “neither necessary nor desirable to attempt to define the matters which may amount to a miscarriage of justice by reason of any other circumstance”. They said it could include matters connected to the proceedings which would influence the outcome.
In Blackwell and Scott (2017) 56 Fam LR 474, Kent J observed at [44] that the intention of s 79A is to provide the court with a discretion that will “permit the Court to relieve a party affected by a s 79…order of an injustice”. However, his Honour continued, that did not mean that s 79 orders are “provisional and subject to ready circumvention”. Case law also makes it plain that the section “cannot be used to circumvent the basic principle that there can only be one property settlement between the parties”: (Kowalski & Kowalski (1993) FLC 92-342 at 79,627).
The value of the B Pty Ltd shares
Turning now to consider the circumstances upon which the wife might rely in support of her assertion that there has been a miscarriage of justice, it seems to me that there are some similarities between the extant case and the case of Barker & Barker [2007] FamCA 13 (“Barker”).
In that case the parties had agreed on the value of a property (“AW”) of $1,650,000, being a property the husband would retain. A few weeks prior to the consent orders being made, the husband rejected an offer made to purchase AW at $2,300,000. He did not tell the wife of that offer, which he did not regard as a genuine offer. He also said at the time the offer was made, he had no intention to sell AW. Also a few weeks prior to the consent orders being made another property in the area (“AB”) sold for a significant sum of money, which the Full Court accepted made it likely that the agreed value of AW was incorrect as at the date the orders were made, and had been undervalued by about $1,000,0000.
The consent orders were made on 26 November 2003 and on 3 December 2003 an offer was made to purchase AW for $2,650,000. That offer was accepted by the husband on 11 December 2003.
The final orders ostensibly provided the wife with approximately 50-55 per-cent of the assets, using the value of AW at $1,650,000. If the property was in reality worth $2,650,000 at the time the orders were made, the payout to the wife calculated using the agreed, and lower value of AW would mean the wife would receive less than 30 per cent of the actual pool.
The trial Judge dismissed the wife’s s 79A application, substantially on the basis that:
(a)the offer made to the husband prior to the orders being made did not have to be disclosed to the wife; and
(b)the fact that AW sold for more post the making of the orders could not form a basis for a s 79A application, as property prices commonly, if not inevitably, fluctuate.
The wife appealed and the Full Court upheld the appeal.
As observed by the Full Court in Barker, when the court makes an order, is must be satisfied that the order is just and equitable. That involves:
(a)agreement as to the assets and value of the assets in the pool;
(b)agreement as to the parties’ liabilities;
(c)an assessment of the parties’ contributions;
(d)consideration of the relevant s 75(2) factors; and
(e)“constructing orders that reflect the above matters and provide for the agreed division of property reached between the parties.”
Their Honours said at [45] –[46]:
The issues for determination in this appeal therefore are, in their broadest terms, was the value agreed for “AW” its “real value”? If it was not, and the real value was considerably more, was there a miscarriage of justice on the face of the orders because the wife did not receive the percentage to which she was entitled as a result of her contributions and the other matters under s 75(2) which were not the subject of controversy? Finally, if so, should the court exercise its discretion in favour of the wife to set aside the orders made by consent?
The first issue therefore is whether the value agreed for “AW” was its “real value” at the time of the making of the orders.
Their Honours said whilst AW was sold post the making of the orders, it could not be said that its value grew by a million dollars only in the few days after the making of the orders. Rather, the sale so promptly after the making of the orders corroborated the wife’s case that it was worth substantially more at the time of the orders than the earlier agreed amount. They said the sale of AB should also have led the trial judge to find that it was likely that AW was worth at least $1,000,0000 more than the figure used at the time the orders were made. Further, they said whilst the sale of AW post-dated the making of the orders, that did not demonstrate the property had gone up in value since the orders were made. Rather, they said “the circumstances which enabled the sale at $2,650,000 had already occurred by the date of hearing approximately a month earlier.”
Additionally, their Honours observed at [72]:
Mutual mistake or misunderstanding based on a concession made, or on an agreement reached leading to a result which is not appropriate nor just and equitable can lead to a finding that there has been a miscarriage of justice under s 79A ([M] and [M] [2003] FamCA 1304 per Kay, Holden and Monteith JJ).
Of course, as their Honours said, the mere effluxion of time and consequent changes in the marker of themselves will not create an injustice. However, they continued:
But s 79A is a remedial section designed to avoid a miscarriage of justice. Where there is some intervening factor known to one party, but not the other, this may lead to a result which is unfair and unjust and can be characterised as a flaw in the judicial process by which the orders were made. There may also be circumstances in which the judicial process could be impugned by a sale after orders were made and in the absence of bad faith by either party or suppression of some relevant fact, if it led to a significant miscarriage of justice.
Their Honours concluded that the circumstances of that case did reflect a miscarriage of justice, as a result of “any other circumstance”, as the value of the parties’ net property, including AW did not reflect the real value of at least AW at the time the orders were made. That resulted in the wife at [126]:
receiving a substantially smaller percentage of the property than that which the parties had submitted was a just and equitable outcome.
In relation to the extant case, the wife’s s 79A application, it is effectively her case that the real value of the B Pty Ltd shares at the time the final orders were made is not reflected in the ASX price at close of trade on 29 August 2022 (and in my preliminary view, there was no change to that price until 31 August 2022). The shares, she says, did not leap in value the day immediately after the final orders were made – but were in actual reality worth around $1.50 per share on the day the final orders were made. She would say that is corroborated by discussions between B Pty Ltd and E Pty Ltd on the day the final orders were made. She may seek to adduce further evidence regarding any previous discussions in this regard.
Accordingly, it could be argued that a miscarriage of justice arose out of the circumstances that:
(a)the method agreed and fixed by the parties to determine the value of the shares was flawed and did not accurately reflect the true value of the shares as at the day the final orders were made; and
(b)as a result of using that flawed method of valuation, the wife will not receive 32.5 per cent of the pool properly calculated, being the percentage that the parties – and the court – have agreed is her entitlement.
Non-disclosure
Non-disclosure, or the suppression of evidence can amount to a miscarriage of justice, warranting the court’s intervention pursuant to s 79A(1)(a) of the Act.
In the case of Suiker, orders were set aside under s 79A(1)(a) in circumstances where the husband had not made full and frank disclosure to the court regarding the amount of his superannuation payout. The parties negotiated on the basis his entitlement would be around $27,000. About two months before the final orders were made, the husband applied for redundancy and was advised his payout would be around $160,000. He did not advise the wife. This was held to be a miscarriage of justice. The court said the husband had a duty to disclose to the wife before the consent orders were made that he had applied for redundancy and what his payout was likely to be. Their Honours said the necessity for full and frank disclosure was fundamental to the aims of the Act.
Similarly, in Barker the Full Court said the husband was obliged to have informed the wife about the offer to purchase AW, even if the husband did not regard that as a genuine offer.
In the case before me, there is some vague suggestion that perhaps the husband had some knowledge of the trade halt. It is unclear if it is asserted he knew more than that. If he did have knowledge of the impending acquisition of a substantial number of shares by E Pty Ltd at that higher price and did not inform the wife, that perhaps could amount to a miscarriage of justice. The court would need to know what knowledge the husband had, and then determine whether or not that was information he had a duty to disclose. Other than a vague suspicion that he had some knowledge, there is no evidence to support that assertion. There is currently no evidence that the husband was involved in, had any knowledge of, or any influence at all in relation to the acquisition of shares by E Pty Ltd. Senior counsel for the wife indicated his client intended to adduce further evidence regarding this aspect of the matter.
Determination
The crux of the s 79A application, as I see it, is whether:
(a)the parties should be held to their agreement as to the method by which the value of the volatile B Pty Ltd shares was to be fixed to the ASX trade price on the day the final orders were made to calculate the division of the parties’ assets, and whether the s 79A application ultimately be dismissed; or
(b)the method agreed to by the parties to fix the value of the shares to the close of trading on the day the orders were made did not reflect their actual, and substantially higher value, as at the time the final orders were made. The result is that using that lower share value would mean the wife would receive far less than the 32.5 per cent of the pool which the parties – and the court – agreed she was entitled to, and as such a miscarriage of justice has occurred.
It may also be that the wife is able to establish a miscarriage of justice if she is able to demonstrate that the husband knew of the trading halt and/or the negotiations between B Pty Ltd and E Pty Ltd, and that he should have disclosed this information to the wife. As indicated, further evidence would be needed to persuade the court as to the husband’s knowledge. Additionally, the court would also need to be persuaded that there was an obligation on him to disclose.
Certainly, there are arguments supporting the husband’s position that the s 79A application should ultimately be dismissed. That includes his assertion that the final orders were made in good faith using an agreed method of setting the value of the shares for the purpose of calculating the pool and the wife’s entitlement in that pool. The parties were both represented by competent solicitors, and the proposed orders were crafted by the parties and their legal representatives. The parties came up with that unusual mechanism specifically to take into account the volatility of the shares, which had, over the course of the parties’ negotiations, fluctuated substantially. The volatility of the shares was well known to the parties and their representatives.
Additionally, neither party had any influence over the share price. The husband, as I understand it, will say neither party had any knowledge of or influence over the trading halt or negotiations with E Pty Ltd. The wife’s solicitors controlled the timing of when the proposed orders were forwarded to my chambers. They were advised by the wife as to the trading halt shortly before the final orders were made, but my chambers were not contacted to request the making of the orders be postponed until trading resumed. Was that a deliberate decision, in case the shares fell in value?
There is of course much case law that makes it plain that effluxions of time and changes in market value upwards or downwards will not, of themselves, create an injustice.
But as was the case in Barker, it may be that at the precise time the orders were made, the parties’ agreed method of determining share price did not accurately capture the real value of the shares. That is, not that the shares jumped in value the day after the orders were made by me, which would not attract relief under s 79A of the Act. Rather, that circumstances were in play at the time the final orders were made meant that the day I made the orders, the shares were worth about $1,500,000 more than when they were last traded on the ASX. Accordingly, the agreement that the wife would receive 32.5 per cent of the pool would not be achieved by attributing the shares the lower share value. Instead, on the wife’s case, she would be receiving only around 27 per cent of the parties’ assets.[1] Of course that is a smaller discrepancy in terms of percentage difference than considered by the court in Barker. That may well go to the question of whether the discretion ought be exercised in the event the court is satisfied there has been a miscarriage of justice.
[1] This figure is calculated using the Aide Mémoire prepared on behalf of the wife. The husband does not agree with the figures in that document.
In my view, the circumstances outlined could, arguably, support a finding there has been a miscarriage of justice. There is a serious case to be tried. In those circumstances, the summary dismissal application must fail. I further note that the court must be very careful regarding an application for summary dismissal in circumstances where an applicant seeks to provide further evidence. In this matter the wife does wish to continue her investigations into, and adduce further evidence in support of her currently inchoate assertion that perhaps the husband had knowledge of information he was obliged to disclose.
The matter will need to proceed to a final hearing in the usual manner. Nothing I have said in this judgment should be taken as an indication that the wife’s application will ultimately be successful, or unsuccessful. The court may determine that there has been no miscarriage of justice. It is also possible the court may decline to exercise its discretion to vary or set aside the order. However, for the purposes of this interim application for summary dismissal, I am of the view that the wife’s application could not be said to have no reasonable prospect of success. Accordingly, I dismiss that husband’s application in that regard, and otherwise list the matter for mention to set the matter down for a final hearing.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 16 November 2022
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