Blecher & Ljungborg
[2023] FedCFamC1F 915
•27 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Blecher & Ljungborg [2023] FedCFamC1F 915
File number: MLC 7310 of 2021 Judgment of: MCGUIRE J Date of judgment: 27 October 2023 Catchwords: FAMILY LAW – PROPERTY- Where the first respondent carried on concurrent de facto relationships with the applicant and the second respondent – Where the first respondent has not participated in the trial – Issues of lack of disclosure by first respondent – Trial proceeded undefended – Considerations of alteration of property interests - Costs Legislation: Family Law Act 1975 (Cth) ss 90RD, 90SK, 90SM(1),(3) and (4), 117 and 117(2A) Cases cited: Chang & Su (2002) FLC 93–117
Stanford & Stanford (2012) 247 CLR 108
Weir & Weir (1993) FLC 92–338
Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 16 October 2023 Place: Melbourne, delivered in Launceston Counsel for the Applicant: Mr McIntyre Solicitor for the Applicant: Verduci Lawyers Solicitor for the First Respondent: Litigant in Person did not participate Counsel for the Second Respondent: Ms Hutchings Solicitor for the Second Respondent: Trapski Family Law ORDERS
MLC 7310 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BLECHER
Applicant
AND: MR LJUNGBORG
First Respondent
MS KLEIN
Second Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
27 OCTOBER 2023
THE COURT ORDERS THAT:
1.That all previous orders be discharged.
2.This matter proceed on an undefended basis against the first respondent, Mr Ljungborg.
3.The Court declares that the applicant, Ms Blecher, and the first respondent, Mr Ljungborg, were in a de facto relationship between 1990 and 2019.
4.The Court declares that the second respondent, Ms Klein, and the first respondent, Mr Ljungborg, were in a de facto relationship between 2014 and September 2020.
5.Pursuant to s 90SL of the Family Law Act 1975 (Cth), it is declared that the first respondent, Mr Ljungborg, has no right, title or interest in the property situate at and known as B Street, Suburb C and being the whole of the land in Certificate of Title Volume … Folio … (“the B Street property”).
6.Pursuant to s 90SL of the Family Law Act 1975 (Cth), it is declared that the applicant, Ms Blecher, has no right, title or interest in D Pty Ltd and/or the E Family Trust, including but not limited to the property at F Street, Town G in the State of New South Wales (“the Suburb G property”).
7.Pursuant to s 90SL of the Family Law Act 1975 (Cth), it is declared that the applicant, Ms Blecher, and the first respondent, Mr Ljungborg, have no right, title or interest in the property situate at and known as H Street, Suburb J and being the whole of the land in Certificate of Title Volume … Folio … (“the Suburb J property”).
8.Within 14 days of the date of Orders being made, the first respondent, Mr Ljungborg, do all acts and things and sign all documents necessary to withdraw, at his sole expense, any caveat lodged by him or on his behalf on the title of the Suburb J Property.
9.The first respondent, Mr Ljungborg, indemnify and keep indemnified the applicant, Ms Blecher, and the second respondent, Ms Klein, against:
(a)all debts, liabilities and outgoings jointly incurred by the parties or any of them or on behalf of the business entities D Pty Ltd, K1 Pty Ltd, L Pty Ltd, N Pty Ltd, M Pty Ltd and any other business owned or operated by the first respondent, Mr Ljungborg, (“the business entities”) including but not limited to:
(i)any security, charge, promise, personal guarantee or undertaking given by the first respondent, Mr Ljungborg, to any bank, building society or other financial institution or commercial entitle in relation to business entities;
(ii)the property dealing, loans, undertakings, business or affairs of the business entities, including all taxation liabilities or duties (including income tax, capital gains tax, and stamp duty and all penalties and interest not yet paid) hereafter assessed against the first respondent respect of income (if any) derived by first respondent, Mr Ljungborg, or allocated to the first respondent by the business entities;
(iii)the creditors of the business entities; and
(iv)all charges or other encumbrances affecting the plant and equipment of other property of the business entities;
(b)all or any manner of actions, suits, causes of action, arbitrations, debts, dues, costs, interest and demands whatsoever both at law and in equity which the first respondent, Mr Ljungborg, and the entities now have or may have at any time against the applicant, Ms Blecher, and/or the second respondent, Ms Klein, or which may arise in respect of any act or thing done or omitted to be done by the applicant, Ms Blecher, and/or the second respondent, Ms Klein, up to and including the date of making of these Orders whether by reason of the applicant, Ms Blecher, and/or the second respondent, Ms Klein, having been an employee and/or director and/or officer of the companies and/or by reason of shareholding within the companies and/or any loan account in name and/or the receipt by applicant, Ms Blecher, and/or the second respondent, Ms Klein, of any money at any time from the business entities or otherwise; and
(c)all liabilities of the business entities arising whether now or in the future and whether alone, jointly and/or severally with the first respondent, Mr Ljungborg, and/or any other person and/or entity including but not limited to taxation liabilities, penalties, interest, and costs.
10.The parties retain all their right, title and interest in and to their superannuation entitlements and have no further claim on such entitlements of the other.
11.Other than, as otherwise set out in these Orders, the parties have the sole right, title and interest in any other property which is, at the date of these Orders, in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
12.The parties do all acts and things and give all consents and execute all documents and writings necessary to give effect to these Orders.
13.In the event that a party refuses or neglects to sign or execute and return any deed or instrument or document required for the implementation of these Orders, including but not limited to a Client Authorisation form for a PEXA transaction, within 14 days of a written request to do so by another party (“the non-defaulting party”), then the Registrar of the Court be empowered pursuant to s 106A of the Family Law Act 1975 to sign and execute such deed, instrument or document in the name of such defaulting party and to do all acts and things necessary to give validity to the operation to the deed or instrument or document.
14.Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party, as at the date of these Orders;
(b)any monies standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)monies standing to the credit to the parties in any joint bank account/s shall be distributed to the second respondent, Ms Klein, within seven (7) days of the date of these Orders and, forthwith upon such division, the parties shall do all acts and things and sign all such documents as may be required to close any joint bank account/s;
(d)each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;
(e)all insurance policies are to become the sole property of the owner as named;
(f)each party be solely liable for an indemnity the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(g)any joint tenancy of the applicant, Ms Blecher, and the first respondent, Mr Ljungborg, in any real or personal estate is expressly severed; and
(h)any joint tenancy of the second respondent, Ms Klein, and the first respondent, Mr Ljungborg, in any real or personal estate is expressly severed.
THE COURT NOTES
A.Pursuant to s 90ST of the Family Law Act 1975 (Cth), the parties intend that these Orders shall, as far as practicable, finally determine the financial relationship between them and avoid further proceedings between them.
COSTS
15.The first respondent, Mr Ljungborg, pay the costs of each of the applicant, Ms Blecher, and the second respondent, Ms Klein, set in a quantum of $10,351, such to be paid within 30 days of the date of these Orders, whereupon non-payment of those costs will attract interest rates set in the regulations to the Family Law Act 1975 (Cth) and Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
16.All extant applications be dismissed.
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 of Blecher & Ljungborg has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATIONS
Ms Blecher, the applicant, seeks property settlement orders on an undefended basis against the first respondent, Mr Ljungborg, with jurisdiction claimed under the de facto powers of the Court following an asserted de facto relationship between 1990 and 2019, where there are now three adult children.
Ms Klein, the second respondent, also asked for orders for property settlement following what she asserts is a de facto relationship with the first respondent between 2014 and September 2020. She also asked the Court to proceed undefended.
The applicant commenced these proceedings by Application filed 30 June 2021. The first respondent initially participated in the proceedings and filed documents. The second respondent joined the proceedings in her Response filed 23 March 2022. The first respondent has not participated in these proceedings since about January 2023. He has not filed trial material. He was on notice as to an undefended hearing. He did not attend Court on the listed trial date of 16 October 2023. As such, the Court determined to hear the Applications undefended the first respondent.
It is clear that the first respondent has not cooperated in respect of making full disclosure. As such, and in summary, the applicant effectively seeks an order which would give her right, title and interest in the residential property situated at B Street, Suburb C in Victoria (“the B Street property”). That property has a value previously agreed by the first respondent at $800,000. It is encumbered to an amount of $446,000. Similarly, the second respondent also asked for orders which would give her right, title and interest in the home occupied by herself and the child of her relationship with the first respondent, X (born 2017) (aged six years) at H Street, Suburb J in Victoria (“the Suburb J property”) valued at $780,000 and encumbered by a mortgage of $550,000.
The first respondent is a businessman with extensive and complex business and corporate arrangements. As best, as has been discovered, where the applicant and the second respondent both claim a degree of secrecy by the first respondent in his business dealings, is that he is involved in a business. Searches by the parties have disclosed interests by the first respondent or his company entities in other real property but where, as set out above, the focus of both the applicant and the second respondent is to retain those properties in which each currently live with their children being a dependent child in respect of the second respondent and three adult children in respect of the applicant.
BACKGROUND – THE APPLICANT AND THE FIRST RESPONDENT
The applicant was born in Country P in 1967. The first respondent was also born in Country P in 1968. Both parties are Australian citizens.
The parties commenced their relationship in 1990. That relationship continued until December 2019 when the first respondent moved out of the home shared by the family unit at the B Street property in Victoria.
There are now three adult children of the relationship. They all continue to live with the applicant in the B Street property.
The applicant says, and I accept, that the first respondent handled all of their finances and business dealings during that relationship whereupon he bought and sold a number of properties and operated corporate trust entities.
The applicant worked for a period during the relationship including in a business of the first respondent. She was, however, primarily occupied as home maker and parent.
The applicant has identified a number of corporate interests of the first respondent despite the lack of cooperation in discovery and disclosure by the first respondent. The companies identified are:
(a)D Pty Ltd (which is the trustee of E Family Trust);
(b)K2 Pty Ltd;
(c)K1 Pty Ltd which is the trustee and corporate owner of:
(i)L Pty Ltd;
(ii)N Pty Ltd; and
(iii)a business known as M Pty Ltd.
At the commencement of these proceedings in 2021, D Pty Ltd held the title to the B Street property being the home occupied by the applicant and the adult children. At that time discovery has identified the trustee company, D Pty Ltd, also owning properties at:
(a)1 Q Street, Suburb C, Victoria;
(b)2 Q Street, Suburb C, Victoria;
(c)R Street, Suburb S, Victoria; and
(d)T Street, Suburb U, Victoria.
At the commencement of the proceedings the first respondent himself also owned a property at V Street, Suburb W in Victoria. Further, at the commencement of proceedings, the trustee company D Pty Ltd also owned a property in New South Wales being F Street, Town G in New South Wales (“the Town G property”). That property was identified as being unencumbered, save by a caveat securing an asserted loan to a third party. That third party was joined by order of this Court but has not participated in the proceedings by filing documents or any other evidence. The interests of the third party, if any, is unknown as is the value of the property at Town G.
In 2018 the first respondent alleged that he sold a commercial property and contributed $338,000 from the proceeds of sale of that property to the purchase of the Suburb J property in Victoria with the second respondent. As such, the first respondent initially claimed an interest in the Suburb J property, although now pursues no such interest and effectively cooperates with the second respondent’s application, as does the second respondent cooperate with the applicant’s application.
In 2021 the Commonwealth Bank commenced legal proceedings for recovery of debt owed by the first respondent and companies conducted by the first respondent. Those proceedings sought inter alia to sell all the properties listed above including the home occupied by the applicant and her children. All such properties were sold, save and except for the B Street property and the proceeds of such sales cleared the majority of debt owed by the first respondent to the Commonwealth Bank.
In June 2022 this Court made orders that the B Street property be transferred into the applicant’s sole name “on trust for the parties pending final orders in these proceedings”. That order was made subject to the applicant being able to discharge the existing Commonwealth Bank mortgage as part of the transfer. As such, in September 2022 the applicant obtained finance in an amount of $446,000 sufficient to pay out the remainder of the debt owed to the Commonwealth Bank, to remove caveats from the property and thereby secure the title to her, albeit, now with a debt of $446,000.
Following the legal action by the Commonwealth Bank, an amount of $147,245 was paid into the applicant lawyers trust account. Those monies were distributed as to $107,245 to the Commonwealth Bank and $20,000 to each of the applicant and the first respondent.
The applicant says that there are also outstanding council rates in respect of the B Street property in a sum of $9,241.
The orders sought by the applicant, subject to the unknowns of the values of properties in the possession or control of the first respondent, would give her around 58 per cent of the property pool. The applicant justifies such a distribution with reference to property retained by the first respondent and his superior earning capacity.
The applicant is unskilled with limited experience and works with limited income.
BACKGROUND - RELATIONSHIP BETWEEN THE SECOND RESPONDENT AND THE FIRST RESPONDENT
The second respondent was born in Country P. She is now a permanent resident of Australia. She is 33 years of age. She has two children from a previous relationship.
Both parties are Australian citizens.
The parties commenced the de facto relationship in 2014 and separated in about September 2020.
There is one child of the relationship, namely X born 2017 (aged six years). X lives with the second respondent and spends no time with the first respondent. There is a child support assessment relevant to the first respondent in respect of X. The first respondent is habitually in arrears, having previously been in excess of $20,000 in arrears. He is now some $7,000 in arrears. Payment of arrears was secured only when the first respondent attempted to leave Australia.
The first respondent informed the second respondent that he had separated from his relationship with the applicant in 2012, and prior to the second respondent commencing a relationship with the first respondent. The facts before the Court, however, show that the first respondent had continued his de facto relationship with the applicant during the course of his de facto relationship with the second respondent.
As with the applicant, the first respondent has not made full and proper disclosure of his financial position in respect of his relationship with the second respondent. As such, the Court may be less cautious in respect of determinations in relation to the property held by the first respondent.[1]
[1] Chang & Su (2002) FLC 93–117; Weir & Weir (1993) FLC 92–338.
The first respondent has not filed trial material and has not made full financial disclosure despite the Court orders. The first respondent has not cooperated with property or business valuations. The first respondent did not cooperate with orders of the Court, under the Commonwealth Family Violence and Cross-Examination Scheme, in not engaging with Victoria Legal Aid.
The second respondent continues to reside in the Suburb J property with X and her other children.
The second respondent has limited income from her own business and as such is supplemented by Commonwealth benefits.
The Suburb H property was purchased in 2018 with a loan obtained from the second respondent’s father, such being subject to a written loan agreement dated 10 April 2018. A part of her father’s contribution was utilised by the first respondent in respect of “business matters”. There is evidence of cash deposits into the first respondent’s bank accounts. Those monies were repaid by the first respondent to the second respondent at settlement on 11 September 2018, but where the purchase was completed with the assistance of a mortgage loan.
Contemporaneously with the settlement of the purchase of the Suburb H property, the first respondent sold a commercial property bringing proceeds of $817,851. At that stage, the first respondent was running a business known as “[K Company]”. The first respondent purchased motor vehicles and other equipment for the business.
Substantial renovations have been made to the Suburb H property, financed by the second respondent, to a sum of $109,340.
The second respondent worked in the first respondent’s business for periods, during the relationship, but was also the primary carer of X and the primary homemaker.
EVIDENCE
The applicant relied on an amended Application filed 3 October 2023 and her trial affidavit filed on the same date.
The second respondent relied upon her amended Response, trial affidavit and financial statement, all filed 23 September 2020. She relied on an affidavit of Ms Y, valuer, filed 4 October 2020 in respect of the valuation of the Suburb H property. The second respondent also relied on an affidavit of Morgan Madden, solicitor, in respect of issues of service and attempted service on the first respondent and also in respect of her cost’s application.
RELEVANT LAW
Section 90SK of the Family Law Act 1975 (Cth) (“the Act”) provides some geographical requirements in respect of a declaration of a de facto relationship pursuant to s 90RD of the Act.
The applicant deposes that both she and the first respondent were born in Country P, but both are Australian citizens and have habitually resided in Australia with the de facto relationship taking place in this country. The second respondent was also born in Country P. She is a Permanent Resident of Australia. The de facto relationship endured in Australia. The first respondent is an Australian citizen. There is a child of that relationship, X, born in Australia. The relevant property is situated in Australia.
Section 90SM of the Act gives the Court power to alter the interests of parties from a de facto relationship in property. “Property” includes assets and liabilities, with amendments to the Act, providing that “superannuation may be treated as property”. The discretion now at s 90SM(1) is a broad one providing:
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them—altering the interests of the parties to the de facto relationship in the property; or
(b)…
Significantly, and following the important decision of the Full Court in Stanford & Stanford,[2] the Court should not, however, make an order under this section unless it is satisfied in all of the circumstances that it is just and equitable to do so. That is, the Court must make an independent and discrete determination as to whether it be just and equitable, in the particular circumstances, and factual platform of each case, to make an order altering property interests of the parties. This consideration is not to be simply conflated with a consideration of contributions pursuant to s 90SM(4).
[2] (2012) 247 CLR 108.
In the matter before me, the evidence makes it clear that the first respondent was engaged in lengthy de facto relationships with each of the applicant and the second respondent. There are children of each relationship. Property, including real property, has been purchased during the course of each relationship, and there are encumbrances on those properties. Where it is clear that each of the de facto relationships has ended, I am satisfied it is just and equitable to make orders altering the property interests of the parties in respect of each relationship.
It follows, therefore, that the Court must determine the relevant property pool in respect of each relationship and attribute value to the assets and liabilities. The Court then turns to consider the contributions of each of the parties to the property pool, or property pools, where those contributions may be of a direct or indirect financial type or non-financial contributions including as homemaker and parent. The Court then considers whether there should be any further adjustment to any of the parties, after the consideration of contributions, on account of any relevant factors under s 90SF of the Act. Significantly, the concept of justice and equity permeates the entire consideration and determination.
CONSIDERATION – APPLICANT’S APPLICATION
Given the lack of disclosure and cooperation of the first respondent, and the leeway given to me by the authorities mentioned above, I accept the evidence of the applicant as to the property pool and values as follows:
1. B Street property $800,000 2. Town G property $175,000 3. Various company entities in control of the first respondent Not known 4. Mortgage (B Street) -$446,000 5. Council rates arrears -$9,000 6. First respondent’s superannuation $105,000 7. Applicant’s superannuation $40,000 Total $665,000
The relationship was a relatively long one. I am satisfied that the applicant has made considerable contributions in an indirect financial sense towards the businesses, now retained by the first respondent, albeit, that value is not known. I am satisfied that the applicant made a superior contribution as home maker and parent, where it is clear that the first respondent was conducting concurrent relationships with the applicant and the second respondent.
I am satisfied that the applicant’s earning capacity is limited by reason of her commitment to the relationship with the first respondent, thereby allowing the first respondent to develop his business interests.
The applicant has limited skills, qualifications, and experience thereby limiting her income potential.
The applicant proposes a settlement whereby she retain the B Street property but subject to the mortgage interest (equity $354,000) and superannuation ($40,000), but together with the mortgage (-$446,000) and council rates arrears (-$9,000), which gives her net assets of $385,000.
She proposes that the first respondent retain the Town G property ($175,000) and his superannuation ($105,000) together with company entities and their assets, which are not known to her, but which left out of the equation would give the first respondent property, including superannuation of $280,000. This would equate to a 58 per cent distribution of the net property to the applicant and 42 per cent to the first respondent. Given the first respondent’s lack of cooperation and the presumption that he retains valuable business assets, this is a reasonable settlement and one that is just and equitable in the circumstances. I will order accordingly.
CONSIDERATION – SECOND RESPONDENT’S APPLICATION
Given the first respondent’s lack of participation, cooperation and disclosure, I accept the second respondent’s evidence in respect of the property pool as follows:
SECOND RESPONDENT’S ASSETS AND LIABILITY POOL
First respondent’s assets and liabilities
1. Town G property $175,000 2. D Pty Ltd Not known 3. K1 Pty Ltd Not known 4. L Pty Ltd Not known 5. N Pty Ltd Not known 6. M Pty Ltd Not known Subtotal $175,000 7. Superannuation Fund 1 $107,000 8. First respondent’s liabilities Not known Total known net assets and liabilities including superannuation $282,000 SECOND RESPONDENT’S ASSETS AND LIABILITIES
1. Suburb H property $780,000 2. Z Pty Ltd Nominal 3. AA Pty Ltd Nominal Total Assets $780,000 Superannuation 4. Superannuation Fund 2 $1,000 Sub total of assets including superannuation $781,000 Liabilities 5. Suburb H mortgage $550,000 6. Australian Taxation Office debt $31,000 7. Loans from family members and friends $550,000 Total liabilities $1,131,000 Total net property of the second respondent -$350,000
The second respondent has made substantial contributions to the relationship with the first respondent by reason of being the primary carer, home maker and parent to X. The second respondent also worked and made contributions, both financially and by her efforts to the first respondent’s business interests.
The second respondent has been the primary carer for X since separation and where the first respondent has been dilatory in his responsibilities towards payment of child support. The second respondent will continue to have sole responsibility for the care of X with no expectations of assistance, either actually or financially, from the first respondent.
The second respondent has limited income and earning capacity, where she has her own small business interest, but where her income is supplemented by government benefits. The assumption of the Court is that the first respondent has retained significant business interests for his own use and benefit.
Despite the financial disparity set out above, the second respondent takes a pragmatic approach to this matter in seeking orders which would allow her to retain the home at Suburb H, albeit, whilst also retaining considerable debt. Whilst it is difficult to attribute the status of justice and equity to such orders, for all practical purposes, the second respondent would be unable to enforce more beneficial orders in her favour. In all these circumstances, the Court is prepared to make the orders sought by the second respondent.
COSTS
Each of the parties now seeks an order for costs against the first respondent and each in a quantum of $10,351 when calculations of reasonable party/party costs where it is clear from the costs notices from this Court that the “indemnity” or solicitor/client costs incurred by each party are significantly greater and where it is also clear that the lack of participation by the first respondent in these proceedings has caused considerable costs that may have otherwise been unnecessary.
Matters of costs are dealt with at s 117 of the Act where there is a general rule at subsection (1) that each party to proceedings in these Courts be responsible for his or her own legal costs. That general rule, however, is subject to a discretion enlivened in the Court at subsection (2) to make an award of costs to a party if there are “justifying circumstances”. It is well‑established that the term “justifying circumstances” is not to be read as synonymous with “extraordinary circumstances”. In considering whether there are justifying circumstances and whether to make an order for the costs the Court is mandated to consider matters set out at the subsection (2A).
This is not a matter where either the applicant or the second respondent are persons of any considerable wealth. They have both assumed substantial liabilities whilst retaining properties for themselves and their children where it is highly likely that the non-participating first respondent is in a superior financial position to either the applicant or the second respondent and where he has clearly retained business interests not disclosed to this Court as to their nature and value.
These being property matters, issues of legal aid assistance are not relevant.
The conduct of the parties to the case is relevant. As mentioned above, each of the applicant and the second respondent have been put to arguably unnecessary costs by reason of the nonparticipation of the first respondent and his failure to make proper disclosure of assets and valuations.
Each of the applicant and second respondent have been wholly successful in the orders that they seek against the first respondent.
This is not a matter where offers of settlement are relevant to my consideration.
In all the circumstances, I am satisfied that there are just justifying circumstances in the Court making awards for costs in respect of the both the applicant and the second respondent. There will be orders that the first respondent pay the costs of each of the applicant and the second respondent set in a quantum of $10,351, such to be paid within 30 days of the date of these orders, whereupon non-payment of those costs will attract interest rates set in the regulations to the Act and Rules.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 27 October 2023
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