Bebbington & Bebbington
[2017] FamCAFC 31
•8 March 2017
FAMILY COURT OF AUSTRALIA
| BEBBINGTON & BEBBINGTON | [2017] FamCAFC 31 |
| FAMILY LAW – APPEAL – where the trial judge made orders varying final orders affecting a property settlement between the parties – where the appellant contends that the court was functus officio and had no power to make those orders – where it is accepted that the court has power to vary machinery or consequential orders – whether the orders were machinery or consequential in nature – where the variation did not affect the substantive rights of the parties – where the orders had already been executed. FAMILY LAW – APPEAL – LEAVE TO APPEAL – whether the orders subject of appeal were interlocutory – where the orders did not finally determine the rights of the parties – where leave is required – where there is no utility in the appeal – where leave is refused. |
| Family Law Act 1975 (Cth) |
Family Law Regulations 1984 (Cth)
Family Law Rules 2004 (Cth)
| Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Another (1981) 148 CLR 170 |
Jess and Ors & Jess and Ors (2014) FLC 93-620
Kerr and Kerr (1983) FLC 91-329
Licul v Corney (1976) 180 CLR 213
Medlow & Medlow (2016) FLC 93-692
Millar & Millar (1983) FLC 91-326
Ramsey and Ramsey (1983) FLC 91-301
Ramsey and Ramsey (No. 2) (1983) FLC 91-323
Ravasini and Ravasini (1983) FLC 91-312
Re McBain; Ex parte Catholic Bishops Conference and Another (2002) 209 CLR 372 Rutherford and Rutherford (1991) FLC 92-255
Slapp and Slapp (1989) FLC 92-022
Taylor v Taylor (1979) FLC 90-674
| APPELLANT: | Mr Bebbington |
| RESPONDENT: | Ms Bebbington |
| FILE NUMBER: | BRC | 10953 | of | 2015 |
| APPEAL NUMBER: | NA | 75 | of | 2016 |
| DATE DELIVERED: | 8 March 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 2 March 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 September 2016 |
| LOWER COURT MNC: | [2016] FCCA 2513 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Shoebridge |
| SOLICITOR FOR THE APPELLANT: | Browns Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bunning |
| SOLICITOR FOR THE RESPONDENT: | Wiltshire Family Law |
Orders
The appellant husband’s application for leave to appeal the orders made by Judge Purdon-Sully on 29 September 2016 be dismissed.
The respondent wife’s application to adduce further evidence on appeal be dismissed.
The respondent wife’s application for costs proceed by way of written submissions and be determined without an oral hearing.
Within fourteen (14) days of the date hereof the respondent wife file and serve any affidavit and written submissions upon which she seeks to rely to advance her application for costs.
The appellant husband within fourteen (14) days thereafter file and serve any affidavit and written submissions upon which he seeks to rely in response.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bebbington & Bebbington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 75 of 2016
File Number: BRC 10953 of 2015
| Mr Bebbington |
Appellant
And
| Ms Bebbington |
Respondent
REASONS FOR JUDGMENT
On 29 September 2016, on the application of Ms Bebbington (“the wife”) to enforce earlier property settlement orders made by consent on 2 December 2015 between the wife and Mr Bebbington (“the husband”) altering the interests of those parties in property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”), Judge Purdon-Sully made orders from which the husband seeks to appeal.
Pursuant to s 94AAA(3) of the Act the Chief Justice has certified that it is appropriate for the jurisdiction of the Full Court to be exercised by a single judge with respect to this appeal.
The 2 December 2015 consent orders
The property settlement orders made on 2 December 2015 dealt with, inter alia, a real property then jointly owned by the parties at Northern New South Wales (“the Northern New South Wales property”).
The relevant terms of the consent orders made included the following (with the husband being identified as “the Respondent” and the wife as “the Applicant” in those orders):
29.That within 45 days of the date of these Orders (“the settlement date”), the Respondent transfer to the Applicant all of his right, title and interest in and to the property situate at [Northern New South Wales] in the State of New South Wales, more particularly described as … (“the [Northern New South Wales] property”)
30. That in return for and contemporaneously with the transfer referred to in Order 29 hereof the Applicant will:-
a.Refinance the mortgage held over the property with [a mortgage lending company] mortgage number […] into her sole name therefore removing the Respondent from any and all liability arising thereunder;
b.From the date of settlement of the transfer of the [Northern New South Wales] property to the Applicant, the Applicant will be solely responsible for any and all repayments, rates and levies owing with respect to the [Northern New South Wales] property;
c.Pay to the Respondent, via the Respondent’s Lawyer the sum of $33,000 (“the settlement sum”);
…
34.Upon compliance with Order 30 hereof the Applicant will retain free from any and all claims of the Respondent the [Northern New South Wales] Property.
35.Should the Applicant fail to refinance the mortgage secured against the [Northern New South Wales] property, the [Northern New South Wales] Property is to be sold in accordance with Orders 36 to 39 (inclusive) below.
(Errors and omissions as in original)
Orders 36 to 39, referred to in Order 35, were the orders governing the sale of the property. Order 37 provided for the disbursal of the sale proceeds as follows:
37.The proceeds of sale of the [Northern New South Wales] property shall be paid in the following manner and priority:-
a.To discharge all debt secured by mortgage registration number […] to [a mortgage lending company], for which purpose the parties shall sign an authority and any other documentation required by the [mortgage lending company] to discharge the mortgage;
b.Payment of the agent’s commission and advertising and other expenses payable in respect of the sale;
c.Payment of the legal costs and outlays relating to the sale;
d.The balance proceeds thereafter to be divided as to 70% to the wife and 30% to the husband.
It is readily apparent that Order 29 was not expressed to be subject to, or conditional upon, Order 30. Order 29 imposed upon the husband the requirement to transfer to the wife his interest in the property. Order 30 imposed requirements upon the wife. But even if Order 29 is to be interpreted as conditional upon Order 30 being fulfilled, the circumstance or event of default specifically identified in Order 35 which triggers the sale provisions in Orders 36 to 39 is identified as “[s]hould the Applicant fail to refinance the mortgage secured against the [Northern New South Wales] property…”
The substantive alteration of the respective property interests of each party in the Northern New South Wales property to which Orders 29 and 30 of those orders were directed was:
a)The wife retaining her existing interest in the property with the husband to transfer his interest in it to the wife so as to achieve the position of the wife holding sole ownership of the property;
b)The wife extinguishing the existing joint liability of the parties to the mortgage lending company secured by registered mortgage on the property and thereby “removing [the husband] from any and all liability arising thereunder” by refinancing the joint liability into her sole name;
c)The wife paying to the husband (via his lawyers) the sum of $33,000.
The husband did not literally effect a transfer of his interest in the Northern New South Wales property to the wife within the 45 day period prescribed by the consent orders, the last day of that period being 16 January 2016, a Saturday. The husband did provide a signed transfer, capable of transferring his interest upon registration, which was received by the wife’s legal representatives on 12 January 2016. The wife had secured approval for refinancing from the Bank of Queensland, but in the event was not in a position to effect the formal steps contemplated by Order 30 until 18 January 2016, two days after and the next business day following, 16 January 2016.
However, then and thereafter the husband refused to proceed with the transfer of his interest, insisting that the sale provisions within the orders with respect to the Northern New South Wales property had taken effect.
The orders made by the primary judge on 29 September 2016 authorised and required the transfer of the husband’s interest in the Northern New South Wales property to the wife to proceed, as well as the other steps contemplated in Order 30 of the consent orders to occur within 28 days. That in fact occurred on 21 October 2016.
The husband seeks to contend on appeal, notwithstanding the grounds of appeal in his amended notice of appeal filed on 5 January 2017, only three grounds. Grounds 1 and 2 cover in effect the same contention. That is, that by reason of the consent orders made on 2 December 2015 the Court was functus officio; and the orders made by the primary judge on 29 September 2016 were not machinery, consequential or by way of enforcement but varied the substance of the original orders. The husband’s remaining contention, ground 3, is that if contrary to the first contentions the primary judge had power to make the orders, her discretion to make them miscarried.
Is this appeal nugatory?
The wife contends that before descending into questions concerning the need of the husband to obtain leave to appeal the subject orders, or to the merits of the appeal if leave is granted, that this appeal “is completely without any utility.”
Whilst the husband filed a notice of appeal on 21 October 2016, that obviously did not have the effect of staying the operation and/or enforcement of the 29 September 2016 orders, as is confirmed by r 22.11 of the Family Law Rules 2004 (Cth). Moreover, no application was ever made by the husband under that rule to stay the operation or enforcement, or both, of all or part of the 29 September 2016 orders.[1]
[1] As to the distinction between operation and enforcement see Clemett & Clemett (1981) FLC 91-013 and Millar & Millar (1983) FLC 91-326.
Further and crucially, as the “statement of agreed facts” tendered on the hearing of the appeal with the consent of both parties and marked as Exhibit 1 and received by the Court as further evidence pursuant to s 93A(2) of the Act confirms, the orders made on 29 September 2016 were fully executed on 21 October 2016. That is, none of the orders made on 29 September 2016 nor, for that matter, the orders made on 2 December 2015, remained executory after that which occurred on 21 October 2016. Specifically, on that date the husband’s liability to the prior secured creditor under the former mortgage was fully discharged; the husband’s solicitors collected on the husband’s account a bank cheque in the sum of $33,000; and the wife extinguished the husband’s liability by refinancing the debt into her sole name, and financed the payment made, by assuming liability to the Bank of Queensland. The transfer of the husband’s interest to the wife has been lodged for registration. The funds paid to the husband’s lawyers have not been returned.
Aside from an order for costs of the appeal, the only substantive order the husband seeks on appeal (leaving aside for the moment any orders if leave to appeal is required), is “[t]hat the Orders of the Federal Circuit Court dated 29 September 2016 be set aside.”
Invited to address submissions to the Court as to how, in these circumstances, this appeal has any utility, counsel for the husband initially submitted that if the subject orders are set aside, the husband “will be restored to the position that he was in before the orders made by Judge Purdon-Sully were made.” That submission is not burdened with merit ignoring as it does that the orders have been fully executed with all the consequences of such execution, including the husband taking the benefits of execution. Plainly, the setting aside of the orders, simpliciter, would not address the fact and consequences of the execution of those orders.
Pressed on the point, counsel for the husband submitted that if the subject orders are set aside, the husband would then “have to make up his own mind about how and to what extent he can enforce the consent orders that would be left in force”. Challenged about what order could now be enforced, counsel referred to Order 35 of the consent orders viewed in terms of the preceding orders “which requires a transaction to take place by a certain date.”
On the scenario that the subject orders made on 29 September 2016 are “set aside” the husband would confront what, in my judgment, are insurmountable hurdles to any attempt to now enforce the consent orders made on 2 December 2015.
Part XIII of the Act provides for the “enforcement of decrees”. Section 105(1) of the Act provides:
Subject to this Part, to the regulations and to the applicable Rules of Court, all decrees made under this Act may be enforced by any court having jurisdiction under this Act.
“Decree” is defined in s 4(1) of the Act as “decree, judgment or order”. Thus any order whereby a party is ordered to do something, transfer property or pay money, is enforceable under s 105. However, in the circumstances here there is no obligation remaining to be enforced. The consent orders have been executed. Specifically with respect to Order 35, being the order identified by the husband’s counsel as the focus for any potential enforcement, that order has no executory function. The wife has refinanced the former mortgage debt owed by the parties jointly. There exists no event of default that can be enforced, that is, for the wife to do a thing required to be done by that order which she is yet to do.
Moreover, as the word “may” in s 105(1) makes plain, the legislative intent is that the section confers a discretion as to enforcement.
In Ramsey and Ramsey (1983) FLC 91-301 this discretionary aspect was emphasised by the Full Court. In Bourke v Bourke (1993) FLC 92-406 at 80,165 Moss J emphasised the enforcement function with respect to orders that “are still executory”. Even with respect to executory orders the Court may refuse, in the particular circumstances, to enforce.
In Ramsey and Ramsey (No. 2) (1983) FLC 91-323 Nygh J emphasised that the power of enforcement under s 105 was discretionary and held that a refusal to enforce earlier property orders made in the context of the parties’ subsequent reconciliation could be justified on the basis that the unconditional transfer of the legal title to the wife provided for in those orders, no longer represented her entitlement in equity. This was so because the subsequent conduct of the parties was seen as conferring upon the husband a beneficial interest in the subject property.
In Kerr and Kerr (1983) FLC 91-329 the Court had ordered in March 1977 that the parties join in the sale of the jointly-owned matrimonial home. The proceeds of the sale were to be divided equally between the parties. Later in 1977, the husband proposed to the wife that he buy her interest in the home for half the expected net proceeds of the sale. This occurred. In 1981 the wife applied to the Court to enforce the original order. It was held that the wife was estopped from asserting that the original order was still operative and enforceable because the basis upon which the parties had entered into the original order was no longer operative. The husband had acted to his disadvantage in paying the wife. Nygh J (at 78,250) recorded a finding that the Court had a discretion as to enforcement and that “even if she [the wife] were not so estopped it would be, in the circumstances of the case by reason of her conduct and her delay in seeking such enforcement, inequitable to exercise my discretion to enforce the orders”.
There are obviously distinctions between those cases and this, but importantly in this case there is no executory order to be carried into effect. The husband, not having obtained a stay of the subject orders, acquiesced in them being carried into effect.
In short, there is no executory order capable of enforcement if the subject orders were to be set aside.
It is well settled that an appeal to this Court pursuant to s 93A of the Act is by way of rehearing and this Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time the appeal is heard (CDJ v VAJ (1998) 197 CLR 172 at [111]; Allesch v Maunz (2002) 203 CLR 172).
There being no executory order capable of enforcement if the subject orders be set aside, the order sought by the husband on appeal lacks utility as it would not have the effect of determining an extant legal controversy. The appellate jurisdiction of this Court is expressed in s 93A of the Act to be “with respect to matters arising under this Act…” (emphasis added). In Re McBain; Ex parte Catholic Bishops Conference and Another (2002) 209 CLR 372 Hayne J said at 458:
At the heart of the constitutional conception of “matter” is a controversy about rights, duties or liabilities which will, by the application of judicial power, be quelled. The “controversy” must be real and immediate. That is why it was held, in In re Judiciary and Navigation Acts, that “matter” means more than legal proceeding and that “there can be no matter within the meaning of [s76] unless there is some immediate right, duty or liability to be established by the determination of the Court”. Hypothetical questions give rise to no matter. Further, it has long been recognised that an important aspect of federal judicial power is that, by its exercise, a controversy between parties about some immediate right, duty or liability is quelled…
(Citations omitted)
In Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355 Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ observed that it was central to the purpose of a judicial determination that it “…includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy…”
As this proceeding lacks utility it ought for that reason be dismissed. However, in case I am in error in this respect, I will consider the question of leave to appeal.
Leave to appeal
Whilst the husband’s amended notice of appeal filed on 5 January 2017 included an application for leave to appeal, it was not conceded by the husband that leave is required. The application is made in compliance with an order of an Appeals Registrar made for the purpose of advancing that application on the hearing of the appeal if, contrary to the husband’s primary contention, the Court determined that leave is required.
Pursuant to s 94AA of the Act and reg 15 of the Family Law Regulations 1984 (Cth), leave is required to appeal from a prescribed decree being an “interlocutory decree”. For the purpose of determining whether an order is interlocutory or final, it is the legal effect of the order that is focused upon. Only an order which has the legal effect of finally determining the substantive rights of parties is a final order (see, for example, Licul v Corney (1976) 180 CLR 213 and Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246).
The consent orders, as with any property orders pursuant to s 79 of the Act, crystallised the parties’ respective rights to property. There are cases where the proper interpretation of property orders, either by reason of their express terms or by necessary inference, yields the conclusion that time for the doing of an act as ordered or for the performance of an obligation as ordered is of the essence, in the sense of time being inextricably bound up with an underlying substantive right. Moreover, the effluxion of time after due performance of an act or obligation may be such that the point is reached that underlying substantive rights acquired under the order have materially changed.
However, neither is so in this case. The orders did not prescribe that time was of the essence for the acts to be performed nor can the orders as a whole be sensibly interpreted as producing that result. In short, the orders cannot sensibly be interpreted to mean that if the 45 day period was not strictly adhered to, but performance by the 47th day was achievable (as was the case) the underlying substantive rights conferred by the orders would be, as a result of such delay, materially different.
The primary judge found, at [25], “[w]hilst having made the consent orders under s.79 of the Act, the Court is functus officio with no power to vary the substance of the orders, it does have the power to make machinery orders to give effect to the orders.” No issue is taken with this statement of principle.
The husband contends that her Honour did not identify the power on which she relied to make the orders, however a consideration of the reasons as a whole makes plain that her Honour was asked to consider varying the orders on the basis that they were consequential or machinery orders.
It is now well settled that the power of the Court to alter property interests is “a once and for all proposition” (Slapp and Slapp (1989) FLC 92-022 at 77,360 (“Slapp”)) and no power lies to alter the substantive provisions of a s 79 property settlement order (see Taylor v Taylor (1979) FLC 90-674). Despite this, the Court has power to vary the “consequential” provisions of an order made pursuant to s 79 of the Act (see Ravasini and Ravasini (1983)
FLC 91-312 (“Ravasini”)).
In Ravasini, the Full Court considered the nature of consequential orders, from 78,126:
There is no question of the power of the Court to make what we would with respect suggest is more properly called a consequential order. The real questions are what is the proper definition of a consequential or machinery order and where is the dividing line between a consequential order which may be varied or modified and a substantive order which the Act gives no power to the Court to modify or vary…
…
It is appropriate then to look at what a consequential order is. The Shorter Oxford Dictionary defines “consequential” as meaning “Following esp. as an effect, immediate or eventual, or as a logical inference”.
The Universal English Dictionary defines the word as “Following as a consequence, on what has gone before, resultant: consequential alteration in wording of a document, those made necessary by others already made.” The same dictionary defines “consequence” as “Event which follows upon something else which is, or appears to be, the cause; a result, outcome of what has gone before.”
A consequential order then, in a property matter, would include an order following logically or of necessity from a prior substantive order.
What a consequential order is not is an order the effect of which is to vary the prior order for property settlement. It is not possible to suggest that even the slightest variation of the original order is a consequence of it. What is being submitted in this appeal is that the original order should be amended not as a consequence of that order itself, not as a necessary follow up of that original order but rather as a consequence of events which have happened in the market place since that order was made rendering the facts on which it was based no longer accurate.
Whether what is to be done is termed a consequential order or a machinery order the result is the same. The Court has no power to vary the original order. It has power to enforce the order and to modify the machinery provisions of the order to effect enforcement provided that by so doing it does not affect the substantive rights of the parties. That power can also be used to spell out the effect of the order where that is not clear.
It is argued by counsel for the husband that the orders ultimately made by her Honour vary the substance of the s 79 orders and “go further than just giving effect to the Original Orders”.
In Slapp, the Full Court considered an appeal against orders varying the time for compliance with the transfer of property. In that case, there was a provision in the relevant orders which appointed the appellant as the trustee for sale of real property, which appointment was only discharged on the respondent meeting the financial obligation by a certain date. The respondent brought an application to seek to extend that date.
Nygh J (with whom Fogarty and Bulbeck JJ agreed) observed:
As counsel for the wife has pointed out, this Court in Bray and Bray (1988) FLC 91-968; 12 Fam. L.R. 563, held in an almost identical situation that an order which substitutes an alternative order if certain preconditions are not fulfilled by a certain time, confers upon the beneficiary of that order a substantive right. In other words, the orders as originally framed by his Honour … provided that if the money was not paid by 11 July 1988 or such further time as the parties might by agreement extend – there would be vested in the wife a substantive right of quite a different kind to that provided for in the first alternative.
… [T]his meant that on 30 September 1988 the wife became entitled pursuant to the orders, as amended by consent, to a quite substantively different entitlement, not merely as a matter of legal right, but also as a matter of substantive consequence…
In my view that situation falls fairly and squarely within the scope of the earlier decision in Bray and Bray. It cannot be described as merely a change of machinery but it had the effect of depriving the wife of a right of substance which the earlier orders of the court, as amended, had vested in her.
I do not accept the submissions on behalf of the husband that the orders made by her Honour varied the substantive rights of the parties. Particularly, I note the terms of Order 35 of the consent orders, which provided:
Should the Applicant fail to refinance the mortgage secured against the [Northern New South Wales] property, the [Northern New South Wales] Property [sic] is to be sold in accordance with Orders 36 to 39 (inclusive) below.
This position is clearly distinguishable from the case of Slapp, in which the orders provided for the appellant to be appointed as trustee for sale in default of the payment of monies. However, in the instant case, no substantive rights are conferred on the husband in the event the property failed to be transferred within the 45 days provided by the orders. The substantive right was conferred on the husband in the event the wife failed to refinance the mortgage secured against that property. As such, extending the time for the transfer to be effected did not alter the right of the husband to seek the sale of the property if the wife was unable to refinance the mortgage.
In my judgment it is tolerably clear that the substantive alteration of property interests pursuant to s 79 of the Act effected by the consent orders is as earlier identified, that is, the transfer of the husband’s interest to the wife in the Northern New South Wales property; the extinguishment of the husband’s liability to the existing mortgagee and assumption of that liability by the wife via refinancing; and the payment of the sum of $33,000 by the wife to the husband. It is likewise tolerably clear, in my judgment, that the mechanisms as to timing and steps were purely machinery or consequential provisions to effect the substantive alterations of property interests being carried out.
The orders made by the primary judge did not have the legal effect of finally determining substantive rights. The orders made were consequential or machinery in nature and are properly characterised as interlocutory in terms of their legal effect. Leave to appeal is thus required.
Whilst the discretion to grant leave is unqualified and unfettered, the nature of the discretion and guidelines for its proper exercise in a given case have been canvassed in a number of authorities (see Adam P. Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Another (1981) 148 CLR 170; Rutherford and Rutherford (1991) FLC 92-255; Jess and Ors & Jess and Ors (2014) FLC 93-620; Medlow & Medlow (2016) FLC 93-692).
I need not repeat what has already been observed as to the lack of utility of this appeal beyond noting that those observations are relevant to the question of leave.
In my judgment in the circumstances of this case, predominantly the feature that no relevant orders remain executory, leave to appeal could not justifiably be granted unless the husband could demonstrate that substantial injustice would result if leave were refused.
Not only did the husband fail to demonstrate how any purported prospect of “enforcement” of the original orders was other than illusory, he did not demonstrate how any injustice would be occasioned to him if he did not have the opportunity to pursue that course. Even on the hypothetical enforcement advanced by the husband, resulting in the orders for sale of the Northern New South Wales property taking effect, it was not demonstrated that this would be of any benefit to the husband. As but one example, it was not shown that after meeting the realisation costs and discharging liabilities, that the husband’s ordered share of 30 per cent of the net sale proceeds would even be as much, let alone more than, the $33,000 the husband has already received under the orders as executed.
Leave to appeal ought be refused. That renders it unnecessary to address the challenges on appeal.
Costs
In the event that the application for leave to appeal was refused, or if leave was granted but the appeal was dismissed, the wife sought an order for costs on an indemnity basis.
In either of those events the husband did not oppose an order for costs being made against him on the usual terms on a party and party basis, but was opposed to costs being awarded on an indemnity basis as was foreshadowed in the wife’s application by her counsel.
The wife sought to have an opportunity to advance an application for costs on an indemnity basis subsequent to judgment being delivered. Leave was given to the wife to file and read an affidavit of her lawyer without objection by the husband at the hearing as to the costs the wife has incurred. Otherwise both parties agreed that the wife’s application should proceed by way of written submissions without the need for any further oral argument.
I will therefore order that the application proceed by way of written submissions and that within 14 days the wife file and serve any written submissions upon which she seeks to rely to advance her application for costs. The husband should have 14 days thereafter to file and serve any written submissions upon which he seeks to rely in response.
The wife’s application to adduce further evidence on appeal was resolved on the basis that the Court receive Exhibit 1 being the “statement of agreed facts” earlier referred to. That document having been received, an order can formally be made otherwise dismissing the wife’s application to adduce further evidence on appeal.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 March 2017.
Associate:
Date: 8 March 2017
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