Carson & Colt
[2022] FedCFamC1A 106
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Carson & Colt [2022] FedCFamC1A 106
Appeal from: Orders made on 29 November 2021;
Orders made on 3 December 2021
Appeal number(s): NAA 105 of 2021;
NAA 108 of 2021File number(s): BRC 4359 of 2019 Judgment of: TREE J Date of judgment: 14 July 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from final property settlement orders, most of which were made by consent, with both parties legally represented – Whether the primary judge considered the justice and equity of the orders – Adequacy of reasons – Where orders made by consent will often justify significant truncation of the reasons – Alleged incompetence of counsel – Where the alleged incompetence must have produced an unfair result – Where the alleged incompetence is not established – Appeal dismissed – Application in an Appeal allowed in part – Costs ordered against the wife. Legislation: Family Law Act 1975 (Cth) ss 79, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
House v The King (1936) 55 CLR 499; [1936] HCA 40
Maviglia v Maviglia [1999] NSWCA 188
Maxwell & Miltiadis (2015) FLC 93-644; [2015] FamCAFC 40
OP v TP and Anor (Conduct of Counsel) (2003) 30 Fam LR 281; [2002] FamCA 1155
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 55 Date of hearing: 5 July 2022 Place: Cairns (via video link) Counsel for the Appellant: Mr Hackett Solicitor for the Appellant: N R Barbi Solicitors Counsel for the Respondent: Mr Bunning Solicitor for the Respondent: McInnes Wilson Lawyers ORDERS
NAA 105 of 2021;
NAA 108 of 2021
BRC 4359 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS CARSON
Appellant
AND: MR COLT
Respondent
ORDER MADE BY:
TREE J
DATE OF ORDER:
14 JULY 2022
THE COURT ORDERS THAT:
1.Save that paragraphs 5–8 (both inclusive) of the wife’s affidavit filed 20 June 2022, and the material exhibited to those paragraphs, is admitted into evidence, otherwise the wife’s Amended Application in an Appeal filed 5 July 2022 is dismissed.
2.Appeal NAA 105 of 2021 is dismissed.
3.The appellant is to pay the respondent’s costs in the sum of $23,000 within 28 days.
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 Carson & Colt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
Ms Carson (“the wife”) appeals from final property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 29 November 2021 in proceedings between herself and Mr Colt (“the husband”).
To the extent that those orders were made by consent, they provide for the wife to pay the husband the sum of $1.5 million within six months, in default of which the wife’s property at Suburb A (“the Suburb A property”) is to be sold, and the $1.5 million paid from the net sale proceeds. Otherwise, each party was to retain the property and superannuation held in their respective names, including for the wife to retain identified business entities and any damages recovered in specified Supreme Court proceedings, or by way of workers compensation.
To the extent those orders were not made by consent, they comprise broad indemnities imposed upon the wife in respect of the husband’s involvement in the parties’ businesses during the relationship.
The husband resists the appeal.
For the reasons which follow, the appeal will be dismissed.
BACKGROUND
The wife was born in 1966 and is presently 56 years old. The husband was born in late 1966 and is presently 55 years old. The parties commenced cohabitation in 2001, married in 2004 and separated in February 2019. Two children were born to the relationship, who are presently aged 17 years and 9 years respectively.
Parenting and property proceedings were commenced by the wife in April 2019. Both aspects of the matter were listed for trial before the primary judge on 29 November 2021, and a timetable ordered for the filing and service of the parties’ trial material. The (then self-represented) wife did not comply with that timetable.
At some point, an order was made in respect of the wife under s 102NA of the Family Law Act 1975 (Cth) (“the Act”). That saw a firm of legally aided solicitors appointed to act for the wife, not only in respect of the parenting proceedings, but also the property trial as well. They filed a Notice of Address for Service on 16 November 2021. However since their appointment occurred so close to trial, they did not confer with the wife until the week before the hearing, which saw the wife’s trial material filed thereafter. Counsel for the wife was only briefed on Thursday 25 November 2021.
Unsurprisingly, when the trial commenced on 29 November 2021, then counsel for the wife was uncomfortable with the position both she, her instructing solicitor, and the wife were in, and advised the primary judge early in the piece that she wanted the property trial adjourned, albeit not the parenting proceedings. The primary judge was clearly not enthusiastic about the prospect of any adjournment, and made that plain.
That then resulted in the wife’s counsel seeking to have the matter stood down in order to “have some discussions with my learned friend, in terms of trying to settle the property pool at least. And then I will take some further instructions” (Transcript 29 November 2021, p.13 lines 19–21). That occurred.
When the matter resumed about four and a half hours later, then counsel for the husband handed up to the Court “a property schedule signed by both the parties and a minute of order” in the property proceedings. In due course the schedule was marked as an exhibit (“Exhibit 2”). He advised that there were only two proposed orders that were not agreed. One related to whether the wife should provide the husband with indemnities for any liability he may have arising from his involvement in the parties’ businesses, and the other was whether he should be able to caveat the Suburb A property to preclude the wife from dealing with it prior to him receiving his $1.5 million.
The indemnity issue was shortly thereafter resolved in the husband’s favour, but the caveat issue was left for the following day. However at the commencement of the second day of the hearing, then counsel and solicitor for the wife were granted leave to withdraw, and the matter proceeded with the wife again self-represented. Since the orders which were made thereafter are not challenged in this appeal, and indeed the appeal which related to them (NAA 108 of 2021) was dismissed at the appeal hearing, it is unnecessary to further detail the proceedings.
THE APPEAL GENERALLY
The appeal extends to some five grounds as follows:
1.The trial judge erred in not considering whether the Orders were just & equitable, notwithstanding parts of the Orders purported to be by consent, in circumstances where the Orders were plainly not just & equitable on the material placed before the trial judge.
2.If the trial judge considered the just & equity of the Orders, she erred in failing to deliver any reasons as to why the Orders were just & equitable.
3.The Orders were manifestly unjust on the material before the trial judge and should never have been made.
4.Further, the justice & equity of the Orders could not be ascertained until the quantum of the debt on the Suburb A property was determined or investigated, a matter which the trial judge adjourned to the following day.
5.There was a miscarriage of justice caused by the incompetence of the appellant’s legal representation at trial.
In House v The King (1936) 55 CLR 499 at 504–505, it was 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 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 order, 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 the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
THE APPLICATION IN AN APPEAL
The wife sought to lead further evidence in the appeal, which was in part opposed by the husband.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) gives this Court an unfettered discretion to admit further evidence on appeal. However, case law (albeit relating to the predecessor of s 35) has developed some well-known considerations which a Court will analyse as part of deciding whether to receive further evidence.
The principles relevant to the discretion were discussed by the High Court in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”), where McHugh, Gummow and Callinan JJ observed:
114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
148. … The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
The first document sought to be introduced was what were said to be the notes of the wife’s then solicitor of the events of 29 November 2021. The husband’s objection to the admission of the notes was on several bases. Firstly, that they are not the wife’s document, she does not swear to their correctness, and the author was not called to produce them. Secondly, that they are inadmissible hearsay, and thirdly, that they do not speak to the alleged incompetence of the then counsel of the wife and thus are not relevant.
The paragraph of the wife’s affidavit which exhibits the notes is a little curious, as follows:
4.Throughout the course of the day, my legal representatives provided me with advice in relation to both property and parenting matters. Exhibited to this affidavit and marked “[Ms Carson]-01” is a true and correct copy of [the wife’s solicitor’s] summary of this advice, and a record of the discussions between my legal representatives and me.
(Wife’s affidavit filed 20 June 2022, paragraph 4)
The wife does not depose to any conversation herself, nor does she specifically identify parts of the notes which reflect her own memory. On that basis alone I reject their tender. In any event, the notes are indeed hearsay, and no attempt to justify their admission by reference to any exception to that rule was advanced. I decline to admit them.
Otherwise the material sought to be adduced by the wife’s affidavit of 20 June 2022 was not opposed, and it will be admitted into evidence on the appeal.
As to the material sought to be introduced by the wife’s second affidavit filed 5 July 2022 (i.e., the day of the hearing of the appeal), again it was opposed on several bases, the first of which was its lateness.
Rule 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) requires an application seeking to have the Court receive further evidence on the appeal to be filed at least 14 days prior to the commencement of the sitting in which the appeal is listed for hearing. Although no abridgment of that time was sought, I infer that the wife indeed sought that indulgence. However there must be some basis for granting it. None was advanced, whether in the affidavit of 5 July 2022 or in the wife’s counsel’s submissions. I decline to admit into evidence any of the material in the 5 July 2022 affidavit.
Therefore, save that paragraphs 5–8 (both inclusive) of the wife’s affidavit filed 20 June 2022, and the material exhibited to those paragraphs will be admitted into evidence, otherwise the wife’s Amended Application in an Appeal filed 5 July 2022 will be dismissed.
Grounds 1 and 2
In essence Ground 1 asserts:
(a)that the primary judge did not consider whether the orders were just and equitable; and
(b)that the orders were not just and equitable.
The former challenge may be swiftly despatched, as the primary judge clearly did – albeit in a short-hand way – consider the justice and equity of the orders she was proposing to make, when her Honour said:
HER HONOUR: Yes, I’m otherwise satisfied, in the circumstances, that I should make these orders. It’s appropriate to – to effect – to adjust the parties’ property interests. And the parties have got very experienced legal representatives. And it’s a sensible outcome, in the circumstances where the parties have been in significant dispute for some time. And on the evidence that I have before me – and I will make that statement of assets and liabilities exhibit 2.
(Transcript 29 November 2021, p.21 lines 10–15)
There is no reason to think that the primary judge was there doing anything other than recording her acceptance that the outcome was just and equitable, so as to found an order under s 79 of the Act. Not only should reasons not be subject to an overly critical or pernickety analysis, (AMS v AIF (1999) 199 CLR 160 at 211 per Kirby J) but ex tempore reasons should not be “picked over” (Maviglia v Maviglia [1999] NSWCA 188 at [1]).
As to the second assertion, it is not enough to establish appealable error that I might have reached a different view; rather the result must be plainly wrong (CDJ v VAJ at 231 per Kirby J).
Here, there were a great many variables in play, including a dispute as to the value of the Suburb A property, and the prospects of success of the (unserved) Supreme Court proceedings in which one of the parties’ companies (albeit seemingly in liquidation and receivership) was plaintiff, any damages from which would flow to the wife under the orders (Order 8).
As counsel for the husband before me demonstrated, on one view, the husband was receiving about 35 per cent of the net pool of assets. That a different conclusion can be reached factoring in other, disputed matters, does not point to anything other than that commerciality and compromise were likely at play here in the settlement. Ground 1 fails.
Although Ground 2 asserts an absence of “any” reasons as to why the orders were just and equitable, I infer the ground really is addressed to inadequacy more generally.
The obligation to give reasons is well established. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA with the concurrence of the other members of the bench said:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
An important consideration here is that most of the orders were made by consent, in a case where both parties were represented by experienced counsel, which will often justify significant truncation of the reasons (Maxwell & Miltiadis (2015) FLC 93-644 at [26]). This was plainly such a case. I am not satisfied that the reasons for making the consent orders are inadequate.
However the primary judge’s orders about the indemnities for the husband were not by consent, although the argument about the indemnities was of extremely short compass. At the hearing before the primary judge, then counsel for the husband submitted:
[COUNSEL FOR THE HUSBAND:] ... Whilst I’m on my feet, the next one that’s disputed is 11. These are the indemnities. I think, at least, we all agree at the bar table they’re quite standard in their form. They’re not mutual because that would be wrong as a matter of law in circumstances where the majority of the wife’s entities, the husband has no control or any influence over. So he couldn’t really indemnify in respect of anything anyway. Your Honour has, no doubt, read in the material and you’ve seen the history of this matter of the wife’s dealing unilaterally with companies, transferring – changing who are the directors, shareholdings, those types of things.
Some of the entities are in liquidation. So it’s really of no moment. Because the liquidator will have whatever authority the liquidator has under the Corporations Act and at Common Law in liquidating the entities. However, because of the deficiencies in the wife’s disclosure, because of the conduct by her in refusing to comply with the court’s orders, the indemnity is unnecessary, in my respectful submission, as drafted just and equitable, so as to ensure that there can be no further changes to the liabilities that affect my client. Whatever the wife chooses to do with the property pool as it remains is a matter for her. The other reason why we say just and equitable is that your Honour will see from the property pool that in the financial resources – I’m indebted to my learned friend, [counsel for the wife], for her efforts today with this.
Because you will see that having taken instructions – both her and her instructing solicitor. We had no idea of the loans due to the entities that the wife controls. We thought they were in the order of 3.8 million. And you will see they’re actually in the order of 10 million. That’s excluding the litigation, which is presently pleaded at 9.1. But said to be amended to 16 to 20 million. There’s a significant amount of financial resources that she is – that – that are due and owing, so the wife says, to entities she controls. It’s that type of non-disclosure about the finances and the financial affairs that causes my client some concern. And that’s the reason why we simply seek the indemnities. But I understand that [counsel for the wife] has been provided with instructions by her client to not accept them. So in summary, 11 and 3, we ask you to make…
(Transcript 29 November 2021, p.16 line 36 to p.17 line 20)
Then counsel for the wife opposed the indemnities on the grounds that they “will expose [the wife] potentially to unlimited liability” (Transcript 29 November 2021, p.20 line 10). She further pointed out that it was not only extant, but also future litigation that could be required to be indemnified (Transcript 29 November 2021, p.20 lines 21–22).
It will be appreciated therefore that, as argued, the choice for the primary judge was binary – either there should be no indemnities or there should be unlimited indemnities.
Her Honour’s reasons for ordering the indemnities are as follows:
HER HONOUR: Well, I mean, I guess she is compromising her action, isn’t she? On the basis that he gets a certain amount. And she probably have, out of anybody, the best idea of – of what the position. I appreciate that there are some uncertainties. Because there’s a – you know, litigations that’s on foot or about to start or something like that. And she will get the benefit of that, in terms of the compromise. It’s not unusual that indemnities are given in circumstances where these properties, for example, she’s retaining them, isn’t she? The indemnities are in relation to – let me have a look where they are.
[COUNSEL FOR THE WIFE]: Yes.
HER HONOUR: She’s retaining all of those, the various entities and the like, isn’t she?
[COUNSEL FOR THE WIFE]: That’s so your Honour.
HER HONOUR: All right. Yes. Well, is there anything further ---
[COUNSEL FOR THE WIFE]: No, your Honour.
HER HONOUR: --- that you want to say? All right. Well, I’m going to make the indemnities. It’s appropriate in the circumstances, for the reasons that I’ve outline, to make them…
(Transcript 29 November 2021, p.20 lines 25–47)
It therefore appears that the main, and perhaps only, basis for the primary judge ordering the indemnities was that the wife was retaining “various entities and the like” as the husband had argued. That much is self-evidently correct. In other words, the wife was taking such value as the parties’ businesses represented, and the primary judge reasoned that associated potential burdens should go with such benefits. Given the way in which the parties presented their arguments, that is a sufficient exposure of the reasoning for the ordering of indemnities.
Ground 2 fails.
Ground 3
Ground 3 repeats an assertion I have already rejected in discussing Ground 1, and need not be further addressed.
Ground 4
This ground is based on a misconception that the quantum of the debt attached to the Suburb A property was yet to be determined at the time when the orders of 29 November 2021 were made. However Exhibit 2 makes it plain that the debt was agreed at $1.5 million, as does the transcript (Transcript 29 November 2021, p.15 line 6). What remained was only the question of whether that agreed indebtedness had arisen in breach of earlier injunctions made by the primary judge, such as might justify ordering the husband being permitted to caveat the Suburb A property to protect his right to payment under the orders. (I leave to one side how that was, or could be, a caveatable interest, as it does not impact upon this appeal).
Ground 4 fails.
Ground 5
Ground 5 was central to the wife’s arguments before me. In general terms, and indeed almost by way of background, she said that given then counsel for the wife told the primary judge that:
(a)“we require more time to work the property case” (Transcript 29 November 2021, p.10 line 4);
(b)there were outstanding subpoenas (Transcript 29 November 2021, p.11 line 8);
(c)the wife hadn’t disclosed updated bank statements (Transcript 29 November 2021, p.11 line 10);
(d)the property proceedings were “not ready to run” (Transcript 29 November 2021, p.11 line 25);
(e)“my solicitor needs to get some further instructions from the client” (Transcript 29 November 2021, p.11 lines 33–34); all of which meant
(f)“that’s my difficulty with running the property matter” (Transcript 29 November 2021, p.12 lines 2–3).
her settlement of the property proceedings, rather than pressing for an adjournment, led to an unfair outcome.
However, as I have already noted, the primary judge was plainly troubled about adjourning the property trial, given the vintage of the proceedings, the fact that the problems identified by the wife’s then counsel were of long standing, and the prospect that if the trial of the parenting and property proceedings did not jointly proceed, the wife may not continue to be in receipt of legal aid funding for the property trial. I read the transcript as demonstrating that the wife’s then counsel well understood the chances of the property proceedings adjourning were slight.
In his Summary of Argument filed 4 May 2022, counsel for the wife correctly identified that incompetence of counsel is only appealable error if “incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result” (OP v TP and Anor (Conduct of Counsel) (2003) 30 Fam LR 281). Five specific matters were relied upon by him in an attempt to make good that argument here.
Firstly, that then counsel failed to direct the primary judge “to the evidence that established the debt on the Suburb A property had not incurred in breach of court orders” (at paragraph 29). However on 29 November 2011, then counsel did make it plain that the wife denied any breach, and in any event that issue was left for determination the next day. There is nothing in this point.
Secondly, that then counsel failed to direct “the [primary] judge to the evidence on contributions” (at paragraph 30). However counsel for the husband had, very early on in the hearing, conceded that “[the wife] bought in much greater than my client. So that’s not going to trouble you” (Transcript 29 November 2022, p.7 lines 5–6). This was later noted by the primary judge at Transcript 29 November 2022 p.21 lines 22–24. Again this point is without merit.
Thirdly, that then counsel “should not have agreed to the [primary] judge making some orders by consent while factual issues remained to be determined” (at paragraph 31). However the only issues not agreed were the indemnities and the caveats, and only the latter involved any factual dispute, being specifically only whether the $1.5 million debt was incurred in breach of prior injunctions. This point also is unmeritorious.
Fourthly, that then counsel for the wife should have corrected the husband’s submission that the division affected by the orders was 35 per cent in favour of the husband (at paragraph 32). Yet as I have already noted, on one view, that was indeed the outcome.
Finally, orally counsel for the wife contended that his predecessor ought to have taken the primary judge to the material which established that the quantum attributed to some of the liabilities listed in Exhibit 2 were wrong. However the simple fact is that the wife had signed Exhibit 2, and contended it correct, except to the extent her disagreement was noted on it. No obligation of the kind contended therefore arose on her then counsel.
None of the alleged incompetence is established, much less that counsel’s conduct may have had the effect of producing an unfair result.
Ground 5 fails.
OUTCOME
No ground of appeal has succeeded and hence the appeal must be dismissed.
COSTS
In the event that the appeal failed the wife conceded that costs should be ordered against her, and did not dispute the sum claimed, being between about $20,000–$27,000. I am satisfied a figure of $23,000 is appropriate. They should be paid within 28 days.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 14 July 2022
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