C & M

[2006] FamCA 212

[2006] FamCA 212

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA30 of 2005

(No. BRM 5977 of 2003)

BETWEEN:
  C

Appellant Wife

AND:
  M

Respondent Husband

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing:              29 September 2005

Date of Judgment:            20 January 2006

Appearances:  Mr Hodges of Counsel, instructed by Smith Stanton, Solicitors, appeared on behalf of the Applicant Wife

Mr Hackett of Counsel, instructed by Journey Family Lawyers, appeared on behalf of the Respondent Husband

C and M                   NA30 of 2005 (BRM5977 of 2003)

Heard:             29 September 2005
Delivered:        20 January 2006

CATCHWORDS:

APPEAL FROM FEDERAL MAGISTRATES COURT – PROPERTY SETTLEMENT – CONTRIBUTIONS – PRE-MARRIAGE CONTRIBUTIONS –JUST AND EQUITABLE – The parties were married for 2 months though commenced making contributions to future “matrimonial” property 18 months prior to marriage – Real property purchased in husband’s name during that period – Wife left after separation with debts arising from marriage – Federal Magistrate made findings in relation to property settlement of 92.5/7.5 in favour of the husband – No adjustment under s 75(2) factors – Method of calculation used by Federal Magistrate left wife with only about 3.8% – The tenor of the assessment of contributions was not consistent with the ultimately minimal award to the wife – Wife also argued that Federal Magistrate incorrectly took into account contributions made by husband’s parents to property

CASELAW CITED:

House v The King (1936) 55 CLR 499

Appeal allowed.  Discretion re-exercised.

1. In April 2005, Federal Magistrate Rimmer determined an application for property settlement between the husband and the wife.  The husband’s parents were intervenors in that application.  Her Honour determined a pool of net assets for division of $264,000 approximately and that the wife should receive 7.5% ($19,829).  She also determined that the husband should bear one-half of certain liabilities in the name of the wife (less half of a liability in his name), that calculation amounting to $12,400 approximately and her Honour ordered that the husband pay the total of $32,244 to the wife.

2. The wife had also sought to set aside a transfer of land made after separation, from the husband to his parents and himself.  That application was not granted as a primary order, but an order was made to operate contingently, if the husband failed to pay the sum ordered to the wife.

3. The wife has appealed the orders and these reasons relate to the disposition of that appeal.  The wife seeks that the transfer of land to the transferees mentioned be set aside and the wife receive 50% of the “net asset pool”.

4. There are four grounds of appeal. One challenges the failure to set aside the transfer.  Of two of the other grounds, there are many paragraphs, some of which are repetitive.

5. Essentially, the appeal against the section 79 (Family Law Act 1975) order asserts;

   a)   a failure by the learned Magistrate to correctly assess the financial contributions of each party, having regard to an agreement about how they would use their earnings.

   b)   the taking into account of an irrelevant matter, namely contribution by the husband’s parents to the construction of a house on the land (which is the property transferred to the husband and his parents) when only the land value was (by agreement) included in the asset pool.

   c)   in deciding to make no adjustment for s 75(2) factors, the learned Magistrate failed to have proper regard to the greater earning capacity of the husband and his much greater share of the assets, based on contributions.

   d)   the award to the wife was manifestly unjust.  In the course of argument of the final point, it was also suggested that there may have been mathematical error in carrying into effect the intention of the learned magistrate.

6. I have come to the conclusion that the appeal must succeed, either because the structure which the Federal Magistrate used to give effect to her assessment of factors did not in fact do so, resulting in the wife effectively receiving 3.8% of the net assets, or if the effect was intended, the result was manifestly unjust.

7. As well, I find merit in the submission that in dividing the pool of assets identified, the Federal Magistrate erroneously took account in favour of the husband contributions by the husband’s parents to property, (namely partial construction of a house on the land), which was not included in the pool.

8. I will detail my reasons for these conclusions after a brief background and summary of the reasons of the learned magistrate, and after reference to the principles of law applicable to the appeal.  Following discussion of the appeal points, I will consider the consequences of allowing the appeal, including any re-exercise of discretion.

Background and reasons of the Federal Magistrate

1. The parties married in October 2002.  The date of final separation was disputed, but her Honour determined it to have been 6 December 2002, so the period of cohabitation during the marriage was but 2 months. 

2. However, the learned Magistrate considered authority to the effect that contributions relevant to alteration of property interests could be made before and after marriage.  Again, the parties were at odds about the period over which such contributions were made, and this issue was also determined by the Federal Magistrate, as follows.

   “51.  I do not accept that they had formed a common intention to save all of the husband’s money to buy a motor vehicle for them and the home. This I am satisfied happened from around the time they decided to marry and that was the time that the engagement ring was purchased by the husband for the wife in March 2001. I accept that despite the fact that their formal engagement party was not until October 2001, it was from March 2001 that they began to contribute to their common future financial goals as she says and not from the inception of their relationship in 1996.”

3. Within that period of “common intention”, land at 6 A Street, B was purchased in the husband’s sole name in June 2001.  The purchase price was $174,000 and the husband obtained a loan of $156,600.  As to the purchase, her Honour found:

   “55.  For reasons which I will detail below, I am more than satisfied that this land was purchased by the husband with the sole intention formed by these parties jointly that it would be the land upon which he and the wife would build their marital home. I do not accept it was purchased by the husband for his parents’ retirement fund.”

4. Her Honour’s reasons commence with the detail of orders sought and a short history, during which the ages of the parties, 29 years at trial, were noted and that there were no children of the marriage.  The learned Magistrate then formulated the issues and identified the material and witnesses before her, before embarking on an extensive review of the law, in particular that dealing with whether a global approach or asset by asset approach was to be used in respect of short marriages.  Her Honour concluded that the asset by asset approach was not mandated.  Her Honour then turned to the law in relation to the setting aside of transactions, the applicable standard of proof and to the credit of the witnesses. In this regard, her Honour expressed reservation about the evidence of each party, but ultimately concluded:

   “52.  However, the evidence of the wife and her parents was in my view more consistently accurate about many more things than was the evidence of the husband and his parents…”

5. The learned Magistrate next discussed the nature of the parties relationship, during which some important findings about contributions were made.  These will be set out later when discussing the arguments on appeal.

6. Then her Honour addressed matters relating to the application to set aside the transfer of the former matrimonial home from the husband to himself and his parents, a transfer which took place a couple of months after separation, on 15 January 2003, the same date on which the wife’s solicitors wrote to the husband advising that the wife had consulted them about property settlement.

7. Her Honour was satisfied the transaction was intended to defeat the wife’s claim.

8. Her Honour then developed a table of the assets and liabilities of the parties at trial and turned to the parties’ contributions.  Her Honour found:

   “84.  There is no doubt in my mind after hearing the evidence that the only financial contribution the wife made to the acquisition of the land at [B] was the sum of $4000 she gave to the husband at the time of purchase/settlement of the contract.

   85.    There is no doubt also I find that these parties did agree that in the main the husband would put his more considerable earnings towards accumulating a deposit on the land from early 2001 but that even having regard to this agreement, I find that at that time he did make the lion’s share of the financial contributions to that property.

   86.    During the period from about March 2001 until separation on 6 December 2001,[as found, 6 December 2002] I find that these parties both contributed to their respective abilities both to the acquisition of their land, the costs of their living expenses, the running and maintenance of their vehicles and the costs of their wedding. It is clear that in doing so they lived well beyond their means and could only do this by accumulating substantial debts, which were largely in the wife’s name, apart from the mortgage which was in the husband’s name. They contributed to the accumulation of those liabilities equally, despite the husband’s assertions himself and through the evidence of his parent’s to the contrary.

   87.    This is an unusual matter in many respects and the way in which they each made their contributions, the husband to the major asset and the wife largely by paying day to day expenses and accumulating substantial personal debt. It would not be equitable for the parties to share otherwise then equally all of those debts, however given the husband’s much greater direct financial contributions it would not be equitable for the wife to share equally in the value of the two major assets, the [A] St property and the husband’s car. This will be a matter to consider carefully in the final step of ensuring that the actual orders made are just and equitable in all of the circumstances of this case and the very reason why it would not be appropriate to assess the parties contributions on an “asset by asset” approach.”

9. Then under the heading “Other contributions” the learned Magistrate said:

   “89.  There is no dispute that since separation the husband either directly in mortgage and rate payments or by the financial contributions made by his parents to the reduction of the mortgage debt and the construction of the home on the property have made very substantial contributions. Also the wife has contributed after separation by continuing to meet the repayments on various personal lines of credit, credit cards and personal loan. The husband has assisted in making the payment as ordered by Justice Warnick up until the date of these orders. If he has not paid all payments required under the order this should be adjusted in the final figures for payment by the husband to the wife under these orders.

   90.    Overall I am satisfied that this is a matter whereby taking into account all of the contributions made by each of parties, either directly or in the case of the husband, indirectly through his parents since December 2002, that the husband’s contributions to the net pool of assets should be assessed at 92.5% and the wife’s at 7.5%.”

10. As to section 75(2) factors, the learned Magistrate said:

    “91.  Both of these parties are young healthy people. There are no children born of their marriage and neither of them have a duty to support any other person. Each are educated and have the capacity for gainful employment. I am satisfied that there are no adjustments that should be made under s.75(2) as there are no factors in this regard relevant to these parties.”

The principles applicable to the appeal

1. The circumstances in which an appeal court might interfere in an exercise of discretion are clearly set out in House v The King (1936) 55 CLR 499 at pp504-505, where Dixon, Evatt and McTeirnan JJ said:

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

The appeal

1. It is useful to set out the asset/liability table as found by the learned Magistrate.

Assets

Property at 6 A Street, B

$400,000.00

Toyota Motor Vehicle

$9,000.00

Bank accounts:

Suncorp A/C No. 1 (Husband)

Suncorp A/C No. 2 (Husband)

Commonwealth Bank of Australia (Wife)

Suncorp (Wife)

$150.00

$2,000.00

$15.00

$10.00

Worldmark Holdings credits

$5,943.00

Shares:

Telstra 2 – 300 @ $4.93 (Wife)

Telstra 2 – 450 @ $4.93 (Husband)

$1,479.00

$2,218.00

Superannuation:

QR Super (Husband)

Sunsuper (Husband)

Suncorp (Husband)

Unisuper (Wife)

MLC (Wife)

$4,131.00

$1, 798.00

$13,176.00

$5,894.00

$2,863.00

Legal fee paid

$6,330.00

TOTAL ASSETS

$456,035.00

Liabilities

National Australia Bank personal loan (Wife)

$14,259.00

CM debt (Wife)

$500.00

Suncorp (consolidation of debts)

$17,755.00

Worldmark Trendwest

$7,684.00

Mortgage on property at A Street

$151,444.00

TOTAL LIABILITIES

$191,642.00

NETT ASSETS

$264,393

1. If the learned Magistrate had intended the wife to receive 7.5% of the net assets, then she would have received

   7.5% of the net assets = $19,829 NET i.e. after debts included in the pool

2. There is a reasonable inference from what the learned Magistrate said in paragraph 87 of her reasons, (earlier quoted, but repeated in part here) namely:

   “87.  This is an unusual matter in many respects and the way in which they each made their contributions, the husband to the major asset and the wife largely by paying day to day expenses and accumulating substantial personal debt. It would not be equitable for the parties to share otherwise then equally all of those debts, however given the husband’s much greater direct financial contributions it would not be equitable for the wife to share equally in the value of the two major assets, the [A] St property and the husband’s car.…”

   that the Federal Magistrate intended the wife to get NET 7.5% of the net assets, plus a contribution to the debts in the wife’s name (less half the debt in the husband’s name).  In other words, something more than 7.5% of the net assets.

   But, as indicated in paragraph 21, even to receive 7.5% of the net assets, the wife would also have to receive sufficient to discharge the debts in her name, namely, $32,514.  Of course, she retained some assets from the table, of which the learned Magistrate has apparently not taken account, but which amounted to:

   Bank  25
                Shares  1479
                Superannuation  5894
                “ ”  2863
     = 10,261

   Had account been taken of the assets of the wife, then for the wife to receive 7.5% of the net assets, the following is the calculation:

   7.5% of $264,393 =  $19,829

   Less assets already held    10,261

   Plus sufficient to discharge wife’s debts    32,514

   Payable by husband  $42,082

3. As earlier seen the amount that the learned Magistrate ordered the husband to pay was $32,244.  Even had the learned Magistrate wished the wife to receive 7.5% of the net assets, but pay half of the husband’s “Trendwest” debt, the payment from the husband would have been $38,240.

4. Under the calculations of the Federal Magistrate, what the wife ultimately received and retained was:

   Payment from the husband       $32,244

   Plus assets retained                  $10,261          = $42,505

   Less debts   $32,514

   =   $9,991

   $9,991 is 3.8% approximately of the net pool of assets in this matter.

5. As to whether that result is what was intended by the learned Magistrate, as well as the passage set out earlier, the following paragraphs, some of which were also set out earlier, are informative.

   “51.  I do not accept that they had formed a common intention to save all of the husband’s money to buy a motor vehicle for them and the home. This I am satisfied happened from around the time they decided to marry and that was the time that the engagement ring was purchased by the husband for the wife in March 2001. I accept that despite the fact that their formal engagement party was not until October 2001, it was from March 2001 that they began to contribute to their common future financial goals as she says and not from the inception of their relationship in 1996….

   53.     I am satisfied, after hearing all of the evidence, that the wife and the husband formed a common intention to save from the husband’s income and to use the wife’s income and credit cards in relation to their ordinary day to day expenditure and then later for the wedding. I accept that this was done as the parties wanted to buy land on which to build a home. I accept that they did this from around the time they decided to marry in March 2001…

   86.  During the period from about March 2001 until separation on 6 December 2001,[as found, 6 December 2002] I find that these parties both contributed to their respective abilities both to the acquisition of their land, the costs of their living expenses, the running and maintenance of their vehicles and the costs of their wedding. It is clear that in doing so they lived well beyond their means and could only do this by accumulating substantial debts, which were largely in the wife’s name, apart from the mortgage which was in the husband’s name. They contributed to the accumulation of those liabilities equally, despite the husband’s assertions himself and through the evidence of his parent’s to the contrary.”

6. True it is that the learned Magistrate also referred to the husband having made “…the lion’s share of the financial contributions…” to the land, and to contributions of each party post-separation and of the husband’s parents, but overall the tenor of her assessments are not in my view consistent with the ultimately minimal award to the wife.

7. However, a matter perhaps worthy of note is that the learned Magistrate has not referred to detail of comparison of the overall financial contributions of each of the husband and wife during the period of “common intention”.  Rather she has used general terms such as “…his more considerable earnings…” (para 85).

8. The possibility exists that the detail might demonstrate a disparity as overwhelming as the ultimate decision.  This prospect however, is partly diminished by the terms of paragraph 86 of the learned Magistrate’s reasons, which as earlier seen were:

   “86.During the period from about March 2001 until separation on 6 December 2001, [as found, 6 December 2002] I find that these parties both contributed to their respective abilities both to the acquisition of their land, the costs of their living expenses, the running and maintenance of their vehicles and the costs of their wedding. It is clear that in doing so they lived well beyond their means and could only do this by accumulating substantial debts, which were largely in the wife’s name, apart from the mortgage which was in the husband’s name. They contributed to the accumulation of those liabilities equally, despite the husband’s assertions himself and through the evidence of his parent’s to the contrary.”

1. These terms are somewhat inconsistent with a conclusion of overwhelming (as against merely greater) financial contributions by the husband.

2. Furthermore, counsel for the husband did not point to evidence showing any dramatic difference in capacity to make contributions; though he did make detailed submissions about contributions to the real property acquisition.  However, those contributions, given the “common intention” of the parties, are of lesser significance than the comparative capacities.

3. The wife sets out her gross income for the years ended 2001,2002 and 2003 in her affidavit filed 18 June 2004 as $28,850, $27,323 and $21,324 respectively.  Though I have not located comparative figures in relation to the husband’s income, in his Financial Statement filed 2 July 2004 his annualised salary was shown as $67,496 and in his Financial Statement filed 23 December 2004, at $55,055.  Some idea of the proportionality of the parties’ respective earnings during the relevant period might therefore be gained.  Considering after tax-income, a significant disparity likely existed, but not one utterly disproportionate.

4. In summary, I repeat that I doubt that the Federal Magistrate intended the consequences of her orders.

5. If she did, in my view, in a case of a period of contributions of 20 months, as to which the learned Magistrate assessed a common intention of the parties to use their incomes to meet their living expenses and acquire property, and in which the most significant asset by far was land acquired in pursuit of that common intention, that asset having strongly appreciated in value, notwithstanding the findings of greater contributions by the husband, both during the period of 20 months and post-separation, to the assets in the pool (bearing in mind value added by the home partially built on the land was excluded), an award, effectively of 3.8%, was manifestly unjust to the wife.

6. Further, as early indicated, with regard to the argument that the Learned Magistrate erroneously took account of contributions by the husband’s parents, I am of the view that when the learned Magistrate said, as earlier seen

   “89.  There is no dispute that since separation the husband either directly in mortgage and rate payments or by the financial contributions made by his parents to the reduction of the mortgage debt and the construction of the home on the property have made very substantial contributions.  Also the wife has contributed after separation by continuing to meet the repayments on various personal lines of credit, credit cards and personal loan.  The husband has assisted in making payments as ordered by Justice Warnick up until the date of these orders.  If he has not paid all payments required under the order this should be adjusted in the final figures for payment by the husband to the wife under these orders.

   90.    Overall I am satisfied that this is a matter whereby taking into account all of the contributions made by each of parties, either directly or in the case of the husband, indirectly through his parents since December 2002, that the husband’s contributions to the net pool of assets should be assessed at 92.5% and the wife’s at 7.5%.”” (emphasis added)

   she erroneously took account in the husband’s favour of contributions, (namely those of the husband’s parents to construction of the home), to an asset not included in the pool for division.

7. Accordingly, I am of the view that the appeal should be allowed.

8. As to the appeal against the failure of the learned Magistrate to directly set aside the transfer of the land to the husband and his parents, counsel for the wife’s submissions were extremely abbreviated.  In effect, I take them to be that at the least, if on a re-exercise of discretion the wife is awarded 50% of the asset pool, it will be necessary to set aside the transfer to provide a source of funds to meet the award in favour of the wife.  Beyond that, counsel’s submission is no more than that the Federal Magistrate, having found grounds upon which the transfer could be set aside, ought to have set it aside.

9. The terms of section 106B(1) and (3) are:

   “106B(1)

   In proceedings under this Act, the Court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.

   106B(3)

   The Court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.”

10. It is clear from the terms of the section quoted that, though the “grounds” for an order to set aside a transaction be made out, a discretion whether to actually set aside that transaction remains.  The arguments of counsel for the wife did not address the terms of this section and did not demonstrate that the exercise of discretion was in any way flawed.

Consequences of success of the appeal

1. Both counsel requested that in the event of the appeals success, I re-exercise the discretion if at all possible.  Neither party sought to put further evidence before me.

2. Except as discussed there was no challenge to the learned Magistrate’s identification of relevant contributions.  Rather, the challenge was to her assessment of them, and the implementation of that assessment.

3. Addressing the matter as one in which the parties made contributions:

   “…the husband to the major asset and the wife largely by paying day to day expenses and accumulating substantial personal debt…” (para 87 Reasons of Federal Magistrate)

   but in which the husband made “much greater direct financial contributions” (para 87, see also para 89) and as a matter in which the overwhelming majority of value in the parties’ assets came from capital gain on land purchased with a “common intention”, I am of the view that contributions favour the husband 80%, to the wife 20%.

4. I see no need to apply different percentages to, on the one hand, assets and on the other hand, liabilities.

5. In my view, if, as found, the liabilities were incurred pursuant to “common intention” they ought to be included in calculation of the net pool for division.

S 75(2) factors

1. Counsel for the wife nominated the wife’s taxable income as disclosed in her Financial Statement of January 2005 at $41,340.  Counsel for the husband seemed to submit that the wife’s capacity may be even greater, but in any event, even having regard to the lesser figure proffered by her counsel, the brevity of the periods of contribution and cohabitation, the ages of the parties and the absence of restrictions on earning capacity arising from the marriage, I do not consider there ought be any adjustment for a disparity of earning capacity.  Nor, for similar reasons, do I consider there ought be any adjustment for the disparity of assets brought about by the division based on contributions, or on account of any other factors.

Terms of the order

1. 20% of $264,393 is $52,879.  The wife will retain assets of $10,261, so she must receive net $42,618 which means she must receive that sum, plus the debt to be cleared, namely $32,514.

2. Therefore, if he wishes to retain what he has the husband must pay $75,132.

3. I see nothing to indicate that the husband need be deprived of the opportunity of paying such sum to the wife, thereby avoiding a need to set aside the transfer of the real property to himself and his parents.  In those circumstances, it might appear that all that is necessary from the wife’s standpoint, is an amendment to orders 1 and 5 of the orders of the Federal Magistrate follows.  Order 1 presently reads:

   “1.    That the husband pay to the wife the sum of $32,244 within 6 weeks from the date of these orders.”

4. Orders 2 to 4 inclusive provide for, in the event of the husband’s failure to pay the sum referred to in order 1, the setting aside of the transfer of land, its sale and payment of nominated costs and debts from the proceeds.

5. Order 5 then presently reads:

   “5.    That the balance thereafter be distributed between the husband and the wife in such proportions as will see the wife receive an amount equal to 7.5% of the net asset pool.”

6. It is not clear to me whether the “net asset pool” was to be recalculated using the gross sale price, less costs of sale, but assume that was the intent of order 5.

7. It does seem to me that if the term in order 5 “net asset pool” includes the insertion of the gross sale price of the property (even less costs of sale) into the table otherwise developed by the learned Magistrate, effectively the wife may share in the value added to the land by the partially constructed home.  Though potentially this may produce an unfairness to the interveners, there is of course no appeal by either the husband or them against the orders of the Federal Magistrate.

8. However, it also seems to me that, depending on what comprised the “net asset pool”, because under order 4 the liabilities are discharged from the proceeds of sale, before division of 7.5% to the wife, she may, under the orders as issued, have received more under order 5 of the orders of the Federal Magistrate, than under order 1, even if the value of the pool did not change.

9. I intend, (and I do not take counsel for the wife to have argued otherwise) that even if the real property is sold, the wife should receive only a share of the value of the land, not the value added by the partially constructed house.  On the other hand, if the real property is sold, she should receive a share of the current land value.  To achieve this it is necessary to add an order providing for assessment of that value.

ORDERS

1. That the appeal be allowed.

2. That order 1 of the orders of Federal Magistrate Rimmer made 19 April 2005 be amended by the deletion of the words and figures “thirty two thousand two hundred and forty-four dollars within six weeks from the date of these orders” and insertion of the words and figures “seventy-five thousand one hundred and thirty-two dollars on or before 28 February 2006”.

3. That order 4A, as follows, be inserted:

   “4A.  That forthwith upon sale, the husband and wife jointly instruct a real estate valuer to assess the land value comprised in the sale, that valuer, failing agreement, to be appointed by the Chief Executive Officer of the Real Estate Institute of Queensland.”

4. That order 5 of the orders of Federal Magistrate Rimmer made 19 April 2005 be deleted and in lieu thereof the following order be inserted:

   “5.    That from the balance thereafter the husband pay to the wife $42,618 plus or minus 20% of the difference between the land value comprised in the sale, as assessed pursuant to order 4A, and $400,000.”

   I certify that the preceding 53 paragraphs

   are a true copy of the Reasons for Judgment

   herein of the Honourable Justice Warnick.

   ………………………………….
     Associate

   Date: 20 January 2006