Daily & Daily
[2020] FamCAFC 304
•9 December 2020
FAMILY COURT OF AUSTRALIA
| DAILY & DAILY | [2020] FamCAFC 304 |
| FAMILY LAW – APPEAL – PROPERTY – Where the primary judge found that hardship within the meaning of subsection 90K(1)(d) of the Family Law Act 1975 (Cth) was established – Where the test for hardship requires a comparison of the position of the child, or the person with caring responsibility, if the agreement remains in place and their position if the agreement is set aside – Where the primary judge reaches no requisite conclusions or findings as to the position if the agreement is upheld, nor any requisite conclusions or findings as to the position if the wife’s s 79 entitlement were determined in the usual way – Where there is an error of law made by the primary judge in applying the test of hardship – Where doubt attends the utility of any rehearing given doubts about the agreement being uncertain – Where resolved the husband ought be afforded the opportunity to address that at first instance – Appeal allowed by consent and matter remitted for rehearing by the primary judge – Costs certificates granted. |
| Family Law Act 1975 (Cth) ss 79, 90G, 90K Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9 |
| Fewster & Drake (2016) FLC 93-745; [2016] FamCAFC 214 Frederick & Frederick (2019) FLC 93-900; [2019] FamCAFC 87 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 |
| APPELLANT: | Mr Daily |
| RESPONDENT: | Ms Daily |
| FILE NUMBER: | ADC | 4606 | of | 2018 |
| APPEAL NUMBER: | SOA | 57 | of | 2020 |
| DATE DELIVERED: | 9 December 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland, Aldridge & Kent JJ |
| HEARING DATE: | 25 November 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 June 2020 |
| LOWER COURT MNC: | [2020] FamCA 486 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Robertson SC with Ms Miller |
| SOLICITOR FOR THE APPELLANT: | Jordan & Fowler Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Pyke QC with Mr Adey |
| SOLICITOR FOR THE RESPONDENT: | Norman Waterhouse Lawyers |
Orders
by consent it is ordered:
The appeal from the order made by the primary judge on 17 June 2020 be allowed.
The proceedings be remitted to the primary judge for rehearing.
it is further ordered:
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 appellant in respect of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by the respondent in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth) 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 of the parties in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Daily & Daily has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 57 of 2020
File Number: ADC 4606 of 2018
| Mr Daily |
Appellant
And
| Ms Daily |
Respondent
REASONS FOR JUDGMENT
Section 90K(1)(d) of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:
90KCircumstances in which court may set aside a financial agreement or termination agreement
(1)A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
…
(d)since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside;
…
On 17 June 2020 the primary judge made a finding that hardship within the meaning of that subsection was established and his Honour consequently made an order that “the financial agreement entered into between the parties dated 21 July 2005 be set aside”.
By Notice of Appeal filed on 14 July 2020, Mr Daily (“the husband”) appeals from that order. Ms Daily (“the wife”) initially opposed the appeal but, in the circumstances to be further discussed, ultimately withdrew that opposition.
For the reasons which follow the appeal is to be allowed; the order made on 17 June 2020 is set aside and the proceedings are remitted for rehearing by the primary judge in accordance with these reasons for judgment.
Relationship history
The husband was born in 1971 and is 49 years of age. The wife was born in 1975 and is 45 years of age.
The parties initially commenced cohabitation in August 1997 before an initial separation in 1999. There is some factual dispute between the parties as to whether they recommenced their relationship in October 1999 or November 2001 (at [18]) although it does not appear that anything of particular significance turns on the difference. The parties became engaged on 27 October 2003 and married on … September 2005. The parties finally separated on 15 September 2018 and obtained a divorce order in early 2020.
The relationship produced two children, namely X born in 2006 and currently 14 years of age and Y born in 2009 and currently 11 years of age. As at the trial, the children had been spending equal time with each parent following consent orders made on 17 May 2019.
Chronology of events re: financial agreement dated 21 July 2005
Taken from the reasons for judgment of the primary judge, the following is the chronology of the central events culminating in the execution of the financial agreement dated 21 July 2005.
The husband first sought legal advice with respect to financial matters during the then de facto relationship with the wife on 26 March 2002 (at [67]). An email from his lawyer to the husband containing preliminary advice was forwarded on 28 March 2002 (at [68]).
The husband provided his lawyer with further instructions in September 2002 and a draft financial agreement was sent to the husband by letter dated 6 November 2002 (at [70] and [73]). On 11 November 2002, following the husband’s lawyer having made amendments as requested by the husband, the husband signed the document albeit that he did not retain a copy of this document (at [75] and [76]). This draft was never finalised or executed by both parties.
The husband subsequently contacted his lawyers on 24 May 2005 requesting a copy of the agreement he had signed on 11 November 2002 and, it seems, the husband then provided a copy of that document to the wife to enable her to obtain independent legal advice (at [88]–[90]).
The wife sought advice from her lawyer and on 27 June 2005 contacted the husband’s lawyers and told them she had been advised that the agreement was not appropriate and would need to be redrafted (at [92]). Importantly, as will be further discussed, terms appearing in the 2002 document do not appear in the redrafted 2005 agreement now to be discussed.
On 15 July 2005 the wife and her lawyer signed a financial agreement redrafted by the wife’s lawyer (at [98]). Relevantly, paragraph 9 of that document provides as follows:
In the event of separation, the parties shall divide their assets and financial resources in full and final settlement of all claims between the parties for settlement of property and spousal maintenance either in the past, present or in the future and under Part VIIIA of the Family Law Act 1975 as amended as follows:-
(a)As and from the date of separation, [the husband] shall retain for his sole use and benefit absolutely free from any further claim or demand of [the wife]:
(i)His assets and liabilities as set out in Schedule A;
(ii)His work entitlements, long service leave, annual leave and other work related benefits save and except any superannuation or pension entitlements accumulated after the date of the marriage;
(iii)His clothing, jewellery and personal effects, and
(iv)Any gifts or inheritances received by him from any source.
(b)As and from the date of separation, [the wife] shall retain for her sole use and benefit absolutely free from any further claim or demand of [the husband]:
(i)Her assets and liabilities as set out in Schedule B;
(ii)Her work entitlements, long service leave, annual leave and other work related benefits save and except any superannuation or pension entitlements accumulated after the date of the marriage;
(iii)Her clothing, jewellery, furniture acquired prior to the marriage and personal effects;
(iv)Any gifts or inheritances received by her from any source.
(c)The net matrimonial assets will be split consistent with family law.
The financial agreement was then given to the husband and, on 21 July 2005, he and his lawyer executed same (at [100]) subject to the following handwritten amendments:
a)In clauses 9(a) and 9(b), the deletion of the words “save and except” and insertion of the word “including” (in relation to the husband’s and the wife’s superannuation and pension entitlements); and
b)In clause 9(c), the deletion of the words “consistent with family law” and insertion of the words “equally between the parties”.
These amendments were initialled by the husband and his lawyer (at [104]). The financial agreement was then returned to the wife who, along with her lawyer, also initialled the handwritten amendments (at [105]).
Schedule A of the financial agreement recorded the husband as having specified net assets of $404,282 in total value, Schedule B recorded the wife as having specified net assets of $32,287 in total value and Schedule C recorded the parties as having specified joint net assets of $142,761 at the time of signing.
Proceedings at first instance and approach of the primary judge
At trial, the husband sought that the agreement dated 21 July 2005 be enforced as if it were an order of the Court.
Conversely, the wife sought a declaration that the agreement was not binding on the parties for want of compliance with s 90G(1) of the Act as, prior to signing the agreement on 15 July 2005, she was not given appropriate legal advice with respect to it (at [117]–[119]). At trial the wife submitted that she had been legally advised that the agreement would not be binding in the event the parties had children and that she had relied upon that advice when executing the agreement (at [119]).
The husband argued that if the prescribed advice was not given, pursuant to ss 90G(1A)(c) and (d), the Court should declare that it would be unjust or inequitable if the agreement was not binding (at [115]).
His Honour found that while satisfied that the wife received sufficient legal advice with respect to the agreement signed by the wife on 15 July 2005 (at [151]), the handwritten amendments made by the husband and his lawyer fundamentally altered the agreement such that it could be considered a new financial agreement (at [172]).
The primary judge was not satisfied that the wife had received the advice required under s 90G(1)(b) of the Act (with respect to the new agreement) and determined that, subject to consideration of s 90G(1A) of the Act, the agreement is not binding on the parties (at [193]).
Upon consideration of s 90G(1A) of the Act, the primary judge found that it would be unjust and inequitable if the agreement were not binding. His Honour recording the following findings:
213.I reject any suggestion that the wife was surprised by the handwritten amendments to the document dated 21 July 2005 and returned to her for further consideration.
214.It cannot be said that the marriage of the parties was imminent nor that the wife did not have the opportunity of legal advice.
215.To some extent it is also a relevant consideration that the husband could not have known whether [the wife’s solicitor] had given the wife advice on the amended document before the wife signed it.
216.Whilst the existence of a lawyer’s certificate is important in that it establishes, subject to evidence to the contrary, that advice as required was given, even without the certificate, it would be permissible to consider evidence of advice in order to establish that the requirements of s 90G(1)(b) has [sic] been satisfied.
217.In circumstances where the wife only accepted at trial for the first time that there must have been a subsequent attendance on [the wife’s solicitor] after 21 July 2005, it is reasonable for the husband to assume that advice was given in circumstances when he handed the signed document to the wife and he told her that she would need to initial the changes in the presence of her lawyer.
218.Perhaps, with the wisdom of hindsight, the husband’s solicitor should have acted out of an abundance of caution and sought confirmation from [the wife’s solicitor] that the requisite advice was given in respect to the amended document.
In passing, we note that the wife filed no Notice of Cross-Appeal with respect to the primary judge’s finding that it would be unjust or inequitable for the agreement to not be binding.
At trial, in the alternative to a declaration pursuant to s 90G(1) of the Act, the wife sought that the agreement be set aside pursuant to s 90K(1)(b), (d) and (e). Those subsections of s 90K(1) provide:
A court may make an order setting aside a financial agreement or a termination agreement if, and only if, the court is satisfied that:
…
(b) the agreement is void, voidable or unenforceable; or
…
(d)since the making of the agreement, a material change in circumstances has occurred (being circumstances relating to the care, welfare and development of a child of the marriage) and, as a result of the change, the child or, if the applicant has caring responsibility for the child (as defined in subsection (2)), a party to the agreement will suffer hardship if the court does not set the agreement aside; or
(e)in respect of the making of a financial agreement–a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable; or
…
The wife contended that the agreement was void, voidable or unenforceable by reason of the husband engaging in unconscionable conduct, namely that the agreement was obtained as a result of duress and/or undue influence. The primary judge did not consider that the wife’s claims of duress, unconscionability or undue influence were made out (at [224]–[256]).
The primary judge then considered whether, since the making of the agreement, there had been a material change in the circumstances relating to the care, welfare and development of a child of the marriage (from [257]). The primary judge set out the matters which the wife relied upon, as follows:
258. The wife relies upon the following matters:-
(1)That at the time that the agreement was made she was employed as a fulltime serving public servant.
(2)That following marriage two children were born namely [X], now aged 13 years and [Y] now aged 10 years.
(3)That the parties agreed the wife would cease her fulltime employment and take on the primary role of caregiver for the children.
(4)That the husband continued in his fulltime employment which resulted in a substantial increase in superannuation entitlements from $67,669 to $970,578 and savings of $74,230 to $693,508 at or about the time of separation.
(5)That as a result of the wife’s role as primary carer to the children she suffered a significant reduction in her earnings and has returned to part-time employment only now comprising 0.8 of fulltime equivalent.
(6)That her capacity to contribute to superannuation and accumulated savings was diminished and in any event is significantly less than the current financial circumstances of the husband.
(7)As a result of the marriage, the wife’s capacity to earn an income and support herself and the children has been substantially diminished.
With respect to whether the birth of the children constituted a material change in circumstances, the primary judge found:
266.In the present case the parties intended that consequent upon the marriage they would start a family.
267.The agreement is silent as to the provisions of the agreement in the event of children being born save that [19] and [20] of the financial agreement acknowledge the continued application of s 90K of the Act.
268.Whether contemplated or not, the advent of children should be considered as a material change in circumstances since the making of the financial agreement.
…
305.I have found that the birth of the children represents a material change in circumstances. If I am wrong in that contention, I find that the fact of the parties’ separation, the arrangements thereafter for the care of the children by each of the parties and the significant disruption to the children’s lives by now spending time with their parents in two different houses would represent a material change.
With respect to whether, as a result of the material change, the wife would suffer hardship if the agreement was not set aside, the primary judge found:
306.As a result of the material change in circumstances the wife compromised her employment both in terms of the extent of her employment and potentially her capacity for advancement in order to fulfil the role of the children’s primary caregiver.
…
309.The husband gained a significant benefit by the terms and conditions of the agreement not available to the wife, at least to a significant degree, by her less remunerative employment and her reduced capacity for employment.
310.A consideration of the wife’s current financial circumstance reveals that she has expenditure over income. Her asset base is modest and predominantly reflected in her superannuation entitlement which is not able to be utilised by her until she satisfies a condition of release.
….
312. The current position that the wife now finds herself in, namely:-
•Incurring reasonable expenses that significantly exceed her income; and
•No prospect of securing accommodation other than rental accommodation
represents significant hardship that results not just from the care, welfare and development provided by the wife for the children but also her current circumstances of being able to provide appropriately for herself and the children.
Having found that the wife would suffer hardship if not set aside, the primary judge ordered that the agreement be set aside. It is from this order that the husband appeals.
Error in determining hardship
It is well settled that the test for hardship within the meaning of subsection 90K(1)(d) requires a comparison of the position of the child, or the person with caring responsibility, if the agreement remains in place and their position if the agreement is set aside (see Fewster & Drake (2016) FLC 93-745 (“Fewster”) at [67] and Frederick & Frederick (2019) FLC 93-900 (“Frederick”) at [24]).
Whilst on appeal the husband challenges the primary judge’s finding of hardship, his challenge is framed on bases that differ from our determination that the primary judge erred in law by failing to apply the correct test to determine hardship. As was pointed out in the course of argument, we are bound, given the nature of an appeal to this Court by way of rehearing, to correct an error of law whether or not an appellant raises that specific error (see Warren v Coombes (1979) 142 CLR 531).
It is notable that at [272] of the reasons the primary judge correctly identified, by reference to Frederick and Fewster, the need for the identified comparison to be made as the test to be applied. However, in what follows in the reasons for judgment the primary judge reaches no requisite conclusions or findings as to the position if the agreement is upheld, nor any requisite conclusions or findings as to the position if the wife’s s 79 entitlement were determined in the usual way.
With respect to the wife’s position if the agreement were upheld, the primary judge recorded at [286] and [287] the husband’s calculations of the wife’s entitlement under the agreement. Unsurprisingly, for reasons we discuss later, the husband’s calculation was not accepted by the wife, as his Honour recorded at [288].
However, whilst the husband’s calculation of the wife’s entitlement under the agreement did not find ready acceptance with the primary judge, his Honour did not make any determination otherwise as to that entitlement. Indeed, his Honour adverted to a difficulty we likewise raised at the hearing of the appeal when his Honour noted:
315.… It is also a relevant consideration that the parties are not agreed as to the wife’s entitlement, nor is it certain that the provisions of the agreement are capable of clear understanding.
(Emphasis added)
In relation to the wife’s position if her entitlement was determined pursuant to s 79 in the usual way, the primary judge recorded:
313. I have not embarked upon an exercise of seeking to determine what would be an outcome in respect of settlement of property by the application of s 79 considerations and s 75(2) factors.
It follows that in circumstances where his Honour made no relevant conclusions or findings about either the wife’s notional s 79 entitlement, nor her entitlement under the agreement, the comparison between them necessary to apply the test to determine hardship within the meaning of the subsection was not made.
In the result, on the hearing of the appeal and after an adjournment to enable senior counsel for the husband and Queen’s Counsel for the wife to consider their position, senior counsel for the husband acknowledged that if the appeal were to be allowed by reason of the error of law identified as to the application of the test, with the order made on 17 June 2020 being set aside and the proceedings being remitted for a rehearing by the primary judge, there would be no utility in this Court addressing each of the grounds of appeal the husband raised. For her part, Queen’s Counsel for the wife did not seek to be heard in opposition to the appeal being allowed on this basis by reason of error of law, and for the subject order to be set aside and the proceedings remitted for rehearing by the primary judge. Indeed, she consented to those orders being made.
Utility of rehearing
Neither senior counsel for the husband nor Queen’s Counsel for the wife ultimately advanced any opposition to the proceedings being remitted to the primary judge to be reheard in accordance with any directions this Court might make.
As we raised with the parties on the hearing of the appeal, a central aspect of this matter which gives us considerable disquiet about an order for rehearing of the proceedings, is whether the subject agreement will ultimately be found to be void for uncertainty. As already noted, at [315] of his Honour’s reasons the primary judge expressed reservations about whether the provisions of the agreement “are capable of clear understanding”. We share those reservations. At the least, the proper construction of the financial agreement must be identified so as to be able to determine what assets the parties are to receive under it, a finding necessary for the consideration of the issue of hardship.
Queen’s Counsel for the wife submitted it to be the wife’s intention to contest enforceability of the agreement, by reason of uncertainty of its terms, if the stage is reached that enforcement of the agreement is pursued by the husband.
Reference has been made to an earlier version of a financial agreement drafted by the husband’s lawyer in 2002. The primary judge refers (at [78]) to the essential terms of that agreement including its references to “accretion” to the individual assets of each party as well as a term providing that:
… Assets and resources acquired during the course of the marriage … shall be deemed to be owned by the parties in the proportions described in any document evidencing title.
In short, the effect of that agreement was to quarantine not only the identified assets held by each party respectively at the time of the agreement, but any “accretion[s]” to those assets. Moreover, if title to a property was attributed to specific proportions of ownership that would likewise quarantine that interest for the benefit of that party.
Importantly, none of these terms or like terms appear in the subject financial agreement dated 21 July 2005.
In the 21 July 2005 agreement the husband’s assets and liabilities as at the date of the agreement are set out in Schedule A; those of the wife in Schedule B and those described as “joint” in Schedule C as follows:
Schedule A – [The husband’s] Assets and Liabilities
Description
Details
$
Bank accounts
Westpac – Deposit …57
52,319
Westpac – Savings …79
99,183
Westpac – Savings …85
243
Westpac – Cheque …39
24
Westpac – Visa …31
30
Direct Shares
GG Company – 1000 shares @ $4.83
4,830
HH Company – 3030 shares @ $6.46
19,574
Managed Funds
JJ Company – Account …48
Cash
876
MM Company – 11968 units @ $2.21
26,476
LL Company – 5897 units @ $2.94
17,386
NN Company – 16483 units @ $1.82
29,945
PP Company – 365 units @ $1.17
427
Property
L Street – Extra Equity
75,000
Wine Collection
Various
10,000
Superannuation
W Company Super Trust – …49
67,017
KK Super Fund – …53
952
Liabilities
No liabilities
0
Total Net Assets
404,282
Schedule B – [The wife’s] Assets and Liabilities
Description
Details
$
Bank accounts
QQ Bank – …51 S1
1,731
QQ Bank – …51 S8
773
Superannuation
TT Super – …83
29,783
Liabilities
No liabilities
0
Total Net Assets
32,287
Schedule C – [The parties’] Joint Assets and Liabilities
Description
Details
$
Bank Accounts
Westpac – Home Loan …45
-268,757
Westpac – Savings …01
1,489
Westpac – Visa …75
29
Property
L Street, Suburb M
450,000
Less [the husband] extra equity
-75,000
House contents
Furniture etc
25,000
Motor Vehicle
Motor vehicle 3
10,000
Liabilities
No liabilities
0
Total Net Assets
142,761
The essence of the agreement is that each party is to retain each party’s separately identified assets and liabilities.
However, Recital K in the agreement provides as follows:
K.Entitlements to assets and gifts or inheritances under this Deed extends to any appreciation in value attributable thereto and whether or not the asset has been sold or dealt with such that it has changed character provided the asset held at separation is clearly traceable to the original asset, gift or inheritance.
As raised in exchanges between bench and bar in the course of the appeal hearing, it seems to us that assuming Recital K (see Clause 2 of the financial agreement as well as general principles of construction) is to be given operative effect, very real difficulties attend the interpretation of Recital K. For example, there would appear to be significant scope for debate about whether, and to what extent, an asset held at separation “is clearly traceable” within the intended meaning of that clause.
Whatever meaning can be given to Recital K, we do not consider that it can be interpreted as embracing income earned during the marriage being added to bank accounts and thereby quarantined in the ownership of the person who owns the bank account. Moreover, we do not see that clause of the deed more generally operating with the effect that, simply because a real property acquired during the marriage was placed in a title in specific proportions (as was the case with the property referred to as the B Street property) that this then, by operation of the agreement, quarantines to each party the same apportionment of title. However, reference to paragraphs 47 to 65 of the husband’s trial affidavit filed on 17 April 2020 indicate that both of these approaches are taken by the husband in asserting his calculation of the wife’s entitlements if the agreement were to be applied, as referred to by the primary judge (at [286] and [287]).
Our reservations driven by the apparent ambiguities that attend the meaning of the subject agreement, and in particular Recital K, led us to the preliminary view that there may well be no utility in remitting these proceedings for a rehearing if, as the primary judge put it, the subject agreement is not “capable of clear understanding”. In other words, that it is void for uncertainty.
Senior counsel for the husband submitted that before this Court could legitimately act on the conclusion that the subject agreement is void for uncertainty the husband ought be afforded an opportunity to address that issue, perhaps with further evidence. Senior counsel for the husband flagged the potential need for the appeal to be adjourned for that purpose. We accept there is force in the contention that the husband would need to be afforded a further opportunity to address the issue before this Court determined it. We also consider that there is merit in the proposition that the questions of whether or not the agreement is void for uncertainty or whether it can be enforced are questions that ought be determined in the first instance at trial level. Our concern is the costs the parties may incur.
As already noted, for her part Queen’s Counsel for the wife alluded to the wife’s intention to raise uncertainty of terms of the agreement at any enforcement stage of the proceedings, if that stage is reached. Given our serious reservations about the enforceability of the terms of the agreement, we raised with the parties during the appeal hearing the desirability of the parties engaging in alternate means of resolving their dispute given what has already been spent by them in the trial proceedings to date, and what potentially remains to be spent on a remitter of these proceedings, with yet a potentially further dispute awaiting at any enforcement stage concerning the validity of the subject agreement.
Conclusion and costs
In the result, satisfied as we are as to the error of law made by the primary judge in applying the test of hardship, we consider that the order made by his Honour ought be set aside and, with some hesitation for the reasons outlined above, consider it appropriate for an order to be made for the proceedings to be remitted to the primary judge for rehearing.
As discussed in the course of the hearing of the appeal, we see no reason that the proceedings ought not be remitted to the primary judge, rather than another judge. Obviously enough the proceedings fall to be considered and determined in the light of these reasons for judgment.
Each party sought costs certificates for the appeal and the rehearing of the proceedings and we are satisfied that such certificates ought be granted.
For these reasons we make the orders set out at the commencement of them.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Kent JJ) delivered on 9 December 2020.
Associate:
Date: 9 December 2020
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