CJT and Anor & DAW & DJW

[2006] FamCA 270

[2006] FamCA 270

JFCJTKDT

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 48 of 2005
File No. PAM 5095 of 2002

IN THE MATTER OF:

CJT
KDT

Appellants

- and -

DAW

1^st Respondent & Cross Appellant/Wife

- and -

DJW

^2nd Respondent/Husband

REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN
HEARD:  17^th day of March 2006
JUDGMENT:  13^th day of April 2006

APPEARANCES:                 Mr Roberts of Counsel, (instructed by David Archer & Associates, 2 Mount Street, Glenbrook NSW  2774) appeared on behalf of the appellants.

Mr Kenny of Counsel, (instructed by Lamrocks Solicitors, 1^st Floor, Cnr Henry & Lawson Street, Penrith NSW  2750) appeared on behalf of the first respondent wife.

There being no appearance by or on behalf of the 2^nd respondent husband.

Name of Appeal  CJT, KDT & DAW & DJW

Appeal Number  EA 48 of 2005

Date of Appeal Hearing                   17^th day of March 2006

Date of Judgment  13^th day of April 2006

Bench  Coleman J

Catchwords:   Appeal against orders setting aside sale of property by the husband to the appellants and providing for the resale of the property, repayment of purchase monies to the appellants and division of the balance of the proceeds between the husband and wife.

Appellants contented that contrary to the learned Federal Magistrate’s finding it was not the sale of the property to the appellants which defeated the wife’s ability to recover her entitlement, but rather the husband’s actions consequent upon receiving the proceeds from such sale – Held that on Federal Magistrate’s finding as to valuation of the property at the time of its sale it was not open to his Honour to conclude that the sale defeated an anticipated order as required by s 106B.

Cross appeal against finding with respect to value of property – Held that the reasoning process with respect to valuation was not readily discernible.  

Appeal allowed – matter remitted to Federal Magistrates Court.

Costs certificates.

1. By Amended Notice of Appeal filed 19 August 2005 the appellants appealed against orders made by Federal Magistrate Scarlett on 30 March 2005 in proceedings between the wife and the husband in which proceedings the appellants had been joined.

2. The orders of the learned Federal Magistrate which the appellants challenged set aside a sale by the husband to the appellants of a property in Sydney’s West and, consequent thereupon, ordered the sale of the property and, after re-payment to the appellants of the purchase monies paid by them for the property, and a modest additional sum, the division of the remaining proceeds of sale between the husband and wife.

3. The wife has resisted the appellants’ appeal and sought to maintain the Federal Magistrate’s orders.  By Notice of Appeal filed 23 September 2005 the wife, in effect, cross appealed, such cross appeal being solely limited to the learned Federal Magistrate’s conclusion as to the value of the Western Sydney property at the time of its sale in 2002.

4. The husband has not participated in the appeal process.

BACKGROUND

1. Some dates and events are relevant for present purposes.  The husband and wife cohabited from 1982 to April 2002, marrying in 1987, and having two children of the relationship, they being born in 1983 and 1987, 

2. At the time of their separation the husband and wife owned the Western Sydney property, subject to a mortgage of approximately $135,000.00.  The husband was the registered proprietor of the Western Sydney property.

3. The property was sold by contract of sale exchanged on 8 August 2002 at and for a consideration of $250,000.00.  The property had not been listed for sale with real estate agents or otherwise marketed for the purpose of sale.

4. The husband and wife were negotiating a property settlement at the time the contract for sale of the Western Sydney property was exchanged and draft terms of settlement between the husband and wife were exchanged during September 2002.  On 12 August 2002 the wife caused a caveat to be lodged against the Western Sydney property in support of an interest she claimed to have in that property.

5. The husband signed terms of settlement prepared by the wife’s solicitor on or about 16 September 2002, at which time the wife handed over a duly executed withdrawal of caveat.  The sale of the Western Sydney property was completed on 17 September 2002.

10.  The wife received approximately $42,000.00 from the proceeds of sale of the Western Sydney property.

11.  The husband received approximately $22,000.00 from the proceeds of sale of the Western Sydney property.

12.  The Federal Magistrate found that a just and equitable settlement, based upon the property being worth $260,000.00 would have resulted in the wife receiving approximately $79,000.00 or 85 per cent of the net proceeds of sale of the property.  Such entitlement was not able to be satisfied out of the property of the parties then in existence.

13. Having thus concluded, and further concluding that the appellants were not entitled to the protection afforded bona fide purchasers for value without notice, the learned Federal Magistrate set aside the sale of the Western Sydney property to the appellants, and made orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) to enable the wife to recover her entitlement as determined by his Honour.

THE REASONS OF THE FEDERAL MAGISTRATE

14.  The trial of the proceedings occupied a number of days, the evidence concluding in November 2003, subsequent to which written submissions were apparently made.  The content and date of such submissions are not known to this Court.

15.  The “Relevant Law” was set out at some length, and in ways which are not suggested to be other than accurate, by the learned Federal Magistrate.  The present appeal does not turn on what the relevant law was but rather its application to the facts of the case as found.  Similar observations apply to his Honour’s discussion of “Section 79 - Property proceedings”.

16. Having correctly identified the proceedings before him as involving an application by the wife to set aside the sale of the Western Sydney property to the appellants pursuant to s 106B of the Act and, consequent upon such setting aside, an order for settlement of property, the learned Federal Magistrate set out a number of matters of background, most of those which assume relevance for present purposes having been already referred to.

17.  Under the heading “Issues” the learned Federal Magistrate indicated that the matters for determination included the bona fides of the appellants as purchasers and the essential competing allegations in that regard.

18.  His Honour referred to the extensive valuation evidence before him from three valuers (Mr A, Mr B and Mr M), and the cross-examination of them with respect to their valuations of the Western Sydney property at the time of its sale to the appellants in 2002.  Mr A, the wife’s valuer, suggested the value to have been $350,000.00, Mr B, the valuer for the appellants suggested $285,000.00 and Mr M, the husband’s valuer suggested $240,000.00 - $260,000.00.

19.  The learned Federal Magistrate ultimately (paragraph 95) of his judgment found the value of the Western Sydney property at the time of its sale in 2002 to have been $260,000.00, some $10,000.00 more than the price paid by the appellants.  The wife’s Notice of Cross Appeal challenges such conclusion.

20.  Reference was made to the submissions of each of the husband and the appellants, which were prepared by them after they ceased to be legally represented.  The learned Federal Magistrate found such submissions to be unhelpful.   As noted earlier the Court has not seen those submissions.

21.  The submissions of counsel for the wife were extensively canvassed by the learned Federal Magistrate.  Within the context of the present appeal it is unnecessary to refer in detail to those submissions, save to note that the issue of the valuation of the Western Sydney property at the time of its sale in 2002 was expressly raised by counsel for the wife whose submission was that the Court would find the value at the relevant time to have been “between $330,000.00 and $350,000.00” (paragraph 61).

22.  The unhelpful submissions of each of the husband and the appellants were traversed.  The only matter which was of any possible relevance to the issue which the husband raised in his submissions related to the valuation of the Western Sydney property at the time of its sale.

23.  The appellants’ submissions were examined by his Honour.  Under the heading “Conclusions” the learned Federal Magistrate made a number of observations about the valuation issue without expressing a conclusion in that regard (paragraph 95 and 96), although it is evident from paragraph 115 that he found the Western Sydney property to have been worth $260,000.00 at the time of its sale in 2002. 

24.  The findings of the learned Federal Magistrate were that the property was not sold to the appellants “at a price vastly under its market value” but that they “got a bargain when they purchased the property for $250,000.00”, it being likely that “if the property had been placed with several agents that a purchaser may well have been found at a better price than $250,000.00” (Judgment, paragraph 96).

25.   His Honour found none of the parties who gave evidence before him, the wife, the husband and the male appellant to be “particularly impressive as a witness” for reasons which he detailed.

26.   There has not been any successful challenge in this appeal to any of his Honour’s findings with respect to the credit of any of the parties.

27.  His Honour recorded that he was satisfied that there were:

101. … at all material times, proceedings under the Family Law Act on foot, as there were consent orders prepared to resolve the property proceedings between the parties. The sale of the former matrimonial home from the husband to [the appellants] was negotiated whilst the documentation for those consent orders was being prepared.

28.  There is no doubt that, prior to the wife, on 12 November 2002, commencing the proceedings which his Honour ultimately heard, there were in fact technically no proceedings “on foot” although it is clear that, at the very time the husband was negotiating with the wife’s solicitor in relation to a settlement of property between the husband and wife, he was also proceeding with the sale of the Western Sydney property to the appellants.

29.  The learned Federal Magistrate concluded that the husband intended to sell the property to the appellants in order to “render the proposed consent orders virtually nugatory” and that the husband intended to conceal the sale from the wife and her solicitor (Judgment, paragraph 102).  Those intentions have not been challenged in this appeal.

30.   His Honour concluded that “[i]rrespective of that intention, the disposition was likely to defeat a property order made under the memorandum of consent orders prepared by the wife’s solicitor” (paragraph 103). 

31.  His Honour accepted the submission on behalf of the wife that the property “was not sold to a bona fide purchaser without notice” (paragraph 105) for a number of reasons which he gave.  He was further “satisfied that, if the disposition were not set aside, the husband would lack the capacity to satisfy the proposed property orders that were to be made by consent” (paragraph 106).

32.  The learned Federal Magistrate thus concluded that the sale should be set aside, and the $250,000.00 purchase price, together with other expenses totalling $822.31 (paragraph 110), be reimbursed to the appellants and the transfer to them set aside.

33.  Under the heading “Subsequent Property Orders”, the learned Federal Magistrate determined the entitlements of the husband and wife as against each other.  His Honour found the total assets of the parties, inclusive of the Western Sydney property at $260,000.00, to be $277,794.00. 

34.  The “[l]iabilities at separation” totalled $184,309.80.  Included in that sum was the mortgage which was paid out on completion of the sale of the property to the appellants of $135,906.91 and a series of apparently unsecured debts to credit unions, American Express and various banks which the husband caused to be paid out on completion of the sale of the property. 

35.  His Honour thus found the net assets of the parties to total $93,484.20. 

36.  It is apparent that the “equity” in the Western Sydney property after payment out of the mortgage and the unsecured liabilities was approximately $75,690.00, some $10,000.00 more than had in fact been available at the time the husband caused the proceeds of the sale of the property to the appellants to be disbursed as to approximately $42,000.00 to the wife and approximately $22,000.00 to the husband.  The learned Federal Magistrate’s figures did not include the $872.75 which his orders provided that the parties were to repay the appellants.

THE GROUNDS OF APPEAL

37.  A number of grounds of appeal were agitated on behalf of the appellants.  For reasons which will become apparent, grounds 22 and 25 of the Amended Notice of Appeal enliven most immediate interest.  Those grounds provided:

22. In the exercise of his discretion under section 106B(1) his Honour having found the value of the former matrimonial home as being in a sum of $260,000.00 should have held that with the attenuated costs of the proposed sale as envisaged by the consent orders, the disposition of the former matrimonial home to the Second and Third Respondents in fact had the same result as the sale of the former matrimonial home to the Second and Third Respondents by the First Respondent.

…

25. His Honour, having found that the value of the former matrimonial home was $260,000.00 should have found that the Applicant Wife had not discharged her obligation that the sale thereof defeated or was likely to defeat the orders proposed in the terms of settlement dated 17 September 2002 and the proposed consent orders.

38.  The thrust of these challenges is quite simple.  The learned Federal Magistrate found that the wife was entitled to receive $79,461.57 of the “notional” asset pool.  The wife had in her possession a motor vehicle and household contents worth in total $2,000.00.  She was thus entitled to receive in cash, in round figures, $77,500.00.  She had in fact received $41,706.77 (AB 717).  She was thus entitled to receive a further sum of approximately $36,000.00.  This she clearly could not, even if she had been able to obtain the totality of the assets and/or entitlements which were to pass to the husband pursuant to the learned Federal Magistrate’s Orders (a total of $15,794.00).  If however there was added to those entitlements the sum of $22,457.49 which the husband had paid to himself out of the proceeds of sale of the Western Sydney property, the wife would have received the entirety of her entitlement as found on the “notional” asset pool, or so close to it as to render any setting aside of the sale to the appellants an exercise of discretion which could not reasonably have thus been undertaken.

39.  The thrust of the submission by counsel for the appellants was thus that, on the learned Federal Magistrate’s conclusions with respect to the value of the Western Sydney property at the time of its sale in 2002, it was, on the figures as found by him, not the sale of the property at an under value of $10,000.00 which defeated the wife’s ability to recover her entitlement, but rather the actions of the husband, subsequent to the completion of the sale of the property, in reducing the funds available for that purpose to a level at which the wife could not in fact receive her entitlement in full.

40.  It was thus submitted that it was the husband’s actions which defeated an anticipated or likely order rather than the sale of the property at an under value.  Nothing to which this Court has been referred establishes that the wrongdoing of the husband in “helping himself” as it were, to $22,457.49 of the proceeds of sale of the Western Sydney property occurred in circumstances for which the appellants could properly be held liable.  Whatever the duplicity of the appellants in the sale of the property at an undervalue, there was no suggestion that such duplicity extended to how the husband disbursed the proceeds of such sale.

41.  In submissions dealing with ground 22, reliance was placed upon the advantages of the Federal Magistrate in having seen and heard the witnesses.  Those submissions do not really address this issue however as the challenge is based entirely upon the findings of fact of the learned Federal Magistrate, and do not involve any attempt to challenge any of those findings.

42.  Put simply, it is the case of the appellants, particularly as articulated in these two grounds, that the learned Federal Magistrate erred by not recognising that, on his own findings and conclusions, particularly as to the value of the Western Sydney property at the time of its sale in 2002, the husband’s actions rather than the sale of the property for $10,000.00 less than the value prevented the wife from recovering what his Honour found the wife’s entitlement to have been.

43.  The Court does not need to express any concluded view as to whether or not “notional selling costs” could be relied upon for the purpose of this argument.  If incurred or taken into account, such costs would reduce the $10,000.00 under value to a not insignificant extent.  Doing so however when those costs were not incurred would be hard to justify.  The appellants’ argument gains some strength from the reality that the orders of the learned Federal Magistrate provided for a sale at arm’s length consequent upon the transfer to the appellants being set aside, which, if achieved at a price of $260,000.00 through an estate agent, would reduce the sum of $10,000.00 to some extent.

44.  The Court has considerable sympathy for the position in which it is likely that the submissions on behalf of the husband and the appellants placed his Honour in relation to this issue.  It is quite apparent from reading the transcript of the trial of the proceedings that, unsurprisingly, the focus of inquiry was on the circumstances surrounding the sale transaction from the husband to the appellants, and to the “bona fide purchaser for value without notice” issue. 

45.  His Honour recorded that he received little assistance from the submissions of the husband and, more importantly for present purposes, the appellants in relation to “the law”.  As noted earlier, none of the three parties to the proceedings chose to have the submissions which were made to the learned Federal Magistrate included in the appeal books.  On the hearing of the appeal the Court invited the parties to make such submissions available.  The invitation was not accepted. 

46.  The Court is left with the distinct feeling that the argument which now assumes considerable attraction was the product of hindsight or afterthought, possibly of the kind which the authorities suggest appellate courts should be reluctant to permit (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, Metwally (No 2) v University of Wollongong (1985) 60 ALR 68, Coulton v Holcombe (1986) 162 CLR 1 and Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279).

47.  The Court is reluctantly impelled to conclude that the challenge raised by these grounds is entitled to succeed.  The learned Federal Magistrate having concluded that the Western Sydney property was worth $260,000.00 at the time of its sale to the appellants, and that the total “notional” net assets of the parties amounted to $93,484.00, which included the husband’s MTAA superannuation interest at $13,494.00 (as was clearly open to his Honour following the decision of the Full Court in C v C (2005) FLC ¶ 93-220), the wife would have been able to receive what his Honour concluded to have been her entitlement of $77,461.57 plus her car and furniture out of the “property” of the husband found to still exist and the $22,457.49 to which the husband had “helped himself” had the latter fund not thereby ceased to be available.

48. In the circumstances, on the learned Federal Magistrate’s own findings and conclusions, it was, with the greatest of respect, and the Court suspects with the benefit of a greater than usual measure of hindsight, and the shrewd input of counsel on the appeal, not reasonably open to his Honour to conclude that the disposition of the Western Sydney property in 2002 defeated an anticipated order in the sense required by s 106B.

49.  It is unnecessary having reached this conclusion to address other grounds of appeal, particularly as it is common ground that if the appeal was successful there would, regrettably, need to be a further hearing of the proceedings.

50.  Given however the re-hearing may be limited in such fashion as this Court considers appropriate (see R v W [2001] FamCA 268), it is necessary to consider the wife’s cross appeal.

51. If the cross appeal is successful there can be no issue that the valuation of the Western Sydney property at the time of its sale to the appellants in 2002 would necessarily be a matter for determination on the re-hearing of the wife’s application under s 106B of the Act. If the appeal were to fail, that would not necessarily be the case.

THE WIFE’S CROSS APPEAL

52.  The wife, by her Notice of Cross Appeal, challenged the learned Federal Magistrate’s conclusion as to the value of the Western Sydney property in 2002 in the following terms:

1. That the Learned Federal Magistrate erred in paragraph 116 of his findings in assigning the property in Western Sydney a value of $260,000.00.

2. That the Learned Federal Magistrates [sic] finding in paragraph 116 as to the value of the property at Western Sydney is inconsistent with the Federal Magistrates [sic] findings as to the credit of the valuers appointed by each of the parties.

53.  In support of this challenge, counsel for the wife asserted that the reasons for the conclusion as to the value of the property were inadequate as it was quite “impossible to determine how the Trial Judge arrived at his conclusion as to the value of the property” (Respondent Wife’s Submissions, page 17).  Counsel for the appellants, for reasons which will emerge, was unable to offer serious resistance to the cross appeal. 

54.  As noted earlier, the valuation of the Western Sydney property in 2002 was a major issue at trial.  Each party relied upon the evidence of expert valuers.  It is apparent that those valuers were cross-examined. 

55.  The wife’s valuer, Mr A, gave evidence in chief and was cross-examined and re-examined for approximately 1 hour on 24 November 2003.  Albeit wrongly referred to in the transcript as “Orchid”, Mr A resumed his evidence during the morning of 25 November 2003 at which time he was further cross-examined before being re-examined by counsel for the wife, concluding his evidence some 40 minutes later.  In addition to his written evidence, Mr A’s oral evidence occupied approximately 1 hour 40 minutes of hearing time. 

56.   Mr B, the valuer for the appellants, gave evidence in chief and was cross-examined, his evidence occupying from approximately 12.30pm on 25 November until approximately 2.50pm, something in excess of an hour of the trial.

57.  Mr M, the husband’s valuer was examined in chief and cross-examined for about 1 hour. 

58.  The learned Federal Magistrate referred to the valuers’ evidence under the heading “Evidence” but did not there express anything which suggested a preference for the valuation of Mr M to those of Mr A and Mr B.  In dealing with the submissions of counsel for the wife, his Honour recorded the submission of counsel for the wife that the property be found to be “worth between $330,000.00 and $350,000.00”, a clear assertion that his Honour would prefer the opinion evidence of Mr A to that of Mr B or Mr M.

59.  It is common ground that his Honour found the value of the Western Sydney property in 2002 to be $260,000.00 (paragraph 115), a footnote to which makes clear beyond doubt that Mr M’s figure was preferred to those of Mr A and Mr B.

60.  It is common ground that his Honour’s reasons for such conclusion are to be found in two paragraphs.  Those paragraphs read:

95. … Whilst the valuation evidence took a considerable amount of hearing time, I am not satisfied that the property was sold to [the appellants] at a price vastly under its market value. Mr A valued the property at $350,000.00. Mr B valued the property at $285,000.00, although CJT in his submission seems to have taken some trouble to discredit the evidence of his own witness.

Mr M came in with the lowest valuation, namely $260,000.00 at August 2002.

96. In my view, [the appellants] got a bargain when they purchased the property for $250,000.00. It would appear that if the property had been placed with several agents that a purchaser may well have been found at a better price than $250,000.00.

61.  Observations made with respect to the appeal are relevant to the cross appeal.  The Court suspects that his Honour received little or no assistance from either the husband or the appellants by way of submissions as to the value of Western Sydney in 2002.  The fact remains however that a reader of his Honour’s judgment is not able to discern the reasoning process by which he determined that Mr M’s valuation was to be preferred (see Pettitt v Dunkley (1971) 1 NSWLR 376, Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).

62. It is clear that other valuations, including a valuation as high as $350,000.00 could have been found on admissible expert evidence to have been the value of Western Sydney in 2002. Had that been the case, the outcome of the proceedings, both with respect to s 106B and s 79, would have been likely to have been quite different and more favourable to the wife.

63.  The cross appeal is entitled to succeed.  The practical implication of such success is that there can be no basis for limiting the scope of the re-trial of the proceedings by excluding from the ambit of such re-trial the valuation of the Western Sydney property in 2002.

CONCLUSION

64.  The appeal and cross appeal having succeeded, it is appropriate that the orders of the learned Federal Magistrate be set aside.  There is no real issue that, the appeal and cross appeal having succeeded, there must be a re-hearing.  There is, sensibly, no suggestion by counsel for the appellants or the wife that this Court should in any way seek to limit the scope of such re-hearing.

65. The orders of the learned Federal Magistrate, so far as they affect the interest of the appellants, should be set aside. There being no suggestion that, as a consequence of doing so, the husband would have any basis for seeking that the wife repay him any money she has received from the proceeds of the sale of Western Sydney, setting aside the s 79 orders made by the learned Federal Magistrate is necessary as the issue of the relief to which the wife is entitled will be a matter for determination upon the re-hearing of the proceedings.

66. The orders consequential upon the s 106B orders made by the learned Federal Magistrate should also be set aside.

67. The husband having not appealed any of the learned Federal Magistrate’s orders, Orders 10 and 13 made by him ought not to be set aside. Order 12 should be set aside lest it be thought to constitute any impediment to the wife seeking orders, as she may ultimately need to, under s 79 with respect to the assets there referred to.

68.  The husband has not appealed any of the Federal Magistrate’s orders.  The success of the appellants has not involved any successful challenge to the findings of the learned Federal Magistrate with respect to the conduct of the husband.  Nor did any of the grounds of appeal agitated on behalf of the appellants involve any challenge to the learned Federal Magistrate’s findings with respect to the conduct of the husband.

69.  Notwithstanding that there will have to be a re-hearing, the unchallenged findings of fact of the learned Federal Magistrate with respect to the husband’s conduct render, on the material before this Court, an entirely appropriate exercise of discretion the order for costs (Order 15) made against the husband.  That order should not be set aside.

COSTS

70.  Counsel for the appellants and the wife sought costs certificates with respect to the appeal and with respect to the re-trial of the proceedings.  The husband has not participated in the appeal process.  Nothing to which the Court has been referred suggests any basis upon which the husband should have the benefit of the costs certificate for the re-trial of the proceedings.

71.  Not without some reluctance having regard to the matter of submissions in the lower Court referred to earlier in these reasons, the Court is persuaded that costs certificates should issue to the appellants with respect to the appeal and the re-trial of the proceedings.  The respondent wife is clearly entitled to the benefit of a costs certificate with respect to the appeal and the re-trial.

ORDERS

1.That the appeal of the appellants filed on 27 April 2005 be allowed.

2.That the cross appeal of the wife filed 23 September 2005 be allowed.

3.That Orders 1, 2 3, 4, 5, 6, 7, 8, 9, 11, 12, 14 and 16 of the orders of the Federal Magistrates Court of 30 March 2005 be set side.

4.That the proceedings be remitted for hearing in the Federal Magistrate’s Court by a Federal Magistrate other than Federal Magistrate Scarlett.

5.That the Court grants to the Appellants a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellants in respect of the costs incurred by the Appellants in relation to the appeal.

6.That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.

7.That the Court grants to the Appellants and the Respondent Wife a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

I certify that the preceding
71 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 13/04/06