Daily & Daily (No 4)
[2024] FedCFamC1A 185
•17 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Daily & Daily (No 4) [2024] FedCFamC1A 185
Appeal from: Daily & Daily(No 3) [2024] FedCFamC1F 47 Appeal number: NAA 30 of 2024 File number: ADC 4606 of 2018 Judgment of: ALDRIDGE, TREE & CAMPTON JJ Date of judgment: 17 October 2024 Catchwords: FAMILY LAW – APPEAL – Property – Where the husband appeals from final property settlement orders – Superannuation – Where the husband contends the primary judge erred in not adopting the diminished value of his superannuation in the balance sheet due to his legal fees – Where the parties conducted the litigation from the common position that legal fees would be added back to the property pool – Where the matters the husband contends were ignored were explicitly taken into account – Where the appeal against the property settlement orders fails – Binding Financial Agreement – Damages – Where the husband appeals from the finding that he did not suffer any compensatory loss – Where notwithstanding the finding of hardship the husband’s claim for compensatory damages required assessment – Error identified – Appeal allowed in part – Damages assessment remitted for re-hearing – Costs certificates granted.
FAMILY LAW – CROSS-APPEAL – Binding Financial Agreement – Negligence – Where the husband’s former solicitors cross-appeal against the award of damages – Whether the primary judge erred in finding that the husband’s contract claim was not statute barred – Consideration of Orwin v Rickards [2020] VSCA 225 and Davys Burton v Thom [2009] 1 NZLR 437 – Where the “damaged asset” characterisation of when damage is first sustained under a negligently drawn contract is neither binding nor persuasive when applied to Binding Financial Agreements – Where the advice of the solicitors was clearly inadequate – Where the cross-appeal fails – Cross-appeal dismissed.
Legislation: Family Law Act 1975 (Cth) ss 75, 79, 90DA, 90K
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Limitations of Actions Act 1936 (SA) s 48
Cases cited: Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49
Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Daily & Daily (2020) 61 Fam LR 75; [2020] FamCA 486
Daily & Daily (2020) FLC 93-999; [2020] FamCAFC 304
Daily & Daily [2023] FedCFamC1F 222
Daily & Daily (No 2) [2023] FedCFamC1F 858
Daily & Daily (No 2) (2023) FLC 94-151; [2023] FedCFamC1A 122
Davys Burton v Thom [2009] 1 NZLR 437; [2008] NZSC 65
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Orwin v Rickards [2020] VSCA 225
Thompson v Schacht (2014) 53 Fam LR 133; [2014] NSWCA 247
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; [1992] HCA 55
Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12
Number of paragraphs: 147 Date of hearing: 19 September 2024 Place: Heard in Sydney, delivered in Cairns Counsel for the Appellant / Cross-Respondent: Mr Tokley KC with Ms James Solicitor for the Appellant / Cross-Respondent: Charlton Rowley The First Respondent: Litigant in person Counsel for the Second Respondent / Cross-Appellant: Mr Cox KC with Ms Doyle Solicitor for the Second Respondent / Cross-Appellant: Barry Nilsson Lawyers ORDERS
NAA 30 of 2024
ADC 4606 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DAILY
Appellant / Cross-Respondent
AND: MS DAILY
First Respondent
AND: R LAWYERS
Second Respondent / Cross-Appellant
ORDER MADE BY:
ALDRIDGE, TREE & CAMPTON JJ
DATE OF ORDER:
17 OCTOBER 2024
THE COURT ORDERS THAT:
1.The appellant’s Application in an Appeal filed 30 August 2024 is dismissed.
2.The appeal is allowed in part.
3.Order 6 of the orders of the Federal Circuit and Family Court of Australia (Division 1) made 9 February 2024 is set aside.
4.The assessment of damages for the second respondent’s negligence is remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 1) other than the primary judge.
5.The second respondent’s Notice of Contention filed 8 March 2024 is dismissed.
6.The second respondent’s cross-appeal is dismissed.
7.The appellant is to pay the first respondent’s costs of the appeal in the sum of $24,800 within 28 days.
8.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating 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 him in the appeal.
9.The second respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the second respondent in respect of the costs incurred by it in the appeal.
10.The Court grants the appellant and second respondent a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the parties in respect of the costs incurred by them in relation to the rehearing.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Daily & Daily (No 4) has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, TREE & CAMPTON JJ:
INTRODUCTION
On 9 February 2024, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final property settlement orders between Mr Daily (“the husband”) and Ms Daily (“the wife”) and awarded the husband damages for the negligence of his former solicitors (“the solicitors”).
From those orders the husband appeals, which appeal is opposed by the wife and the solicitors. The solicitors also cross-appeal against the primary judge’s award of damages against them, which the husband opposes.
For the reasons which follow, the husband’s appeal against the property settlement orders fails, the solicitors’ cross-appeal fails, but the husband’s appeal against the award of damages succeeds.
BACKGROUND
The husband is presently 52 years of age, and although he was employed as a finance professional, is currently not working.
The wife is presently 49 years of age, and a public servant.
The parties met in 1996, commenced cohabitation in 1997, executed a Binding Financial Agreement (“the BFA”) in mid-2005, married in late 2005 and finally separated in September 2018, thereby concluding a relationship spanning over 21 years.
There were two children born to the marriage, who are presently 15 and 18 years of age.
PROCEDURAL HISTORY
The appeal and cross-appeal arise from complicated and protracted proceedings.
By her Further Amended Response to Initiating Application filed 11 December 2019 the wife sought to set aside the BFA and in the event that occurred, thereafter claimed a property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The husband opposed that relief. The proceedings were bifurcated, such that the validity of the BFA was determined first. For reasons given on 17 June 2020 (Daily & Daily (2020) 61 Fam LR 75) the primary judge ordered that the BFA be set aside, however the husband successfully appealed to the Full Court, who remitted the question of the validity of the BFA back to the primary judge (Daily & Daily (2020) FLC 93-999).
Subsequently, to cover the eventuality the BFA was set aside, the husband joined the solicitors, who advised him in relation to the BFA, into the proceedings and claimed damages for breach of contract and negligence.
On 31 March 2023, for reasons then delivered (Daily & Daily [2023] FedCFamC1F 222; “the March 2023 reasons”) the primary judge set aside the BFA for uncertainty, considered the wife’s s 79 claim, giving an “indicative settlement” (at [286]), and found that the solicitors were liable to the husband in negligence, but deferred the assessment of damages. His Honour also concluded that the BFA would have been set aside on the grounds of hardship under s 90K(1)(d) of the Act. An appeal against the primary judge’s characterisation of the basis for setting aside the BFA was unsuccessful (Daily & Daily (No 2) (2023) FLC 94-151). Accordingly, this appeal proceeds from the premise that the order setting aside the BFA for uncertainty was correct.
Following the determination in the March 2023 reasons, the husband sought to adduce further evidence in the proceedings. For reasons delivered on 13 October 2023 (Daily & Daily (No 2) [2023] FedCFamC1F 858; “the October 2023 reasons”) the primary judge allowed the husband to lead further evidence relating to his legal costs, but otherwise refused to admit the proposed further evidence.
Then, on 27 November 2023, the primary judge heard final submissions as to the appropriate final property settlement orders, and the assessment of damages against the solicitors.
On 9 February 2024, for reasons then delivered (Daily & Daily(No 3) [2024] FedCFamC1F 47; “the 2024 reasons”), the primary judge made final property settlement orders between the husband and the wife, and awarded damages in the sum of $38,000 in favour of the husband against the solicitors.
As we have noted, from both the property settlement orders, and the award of damages, the husband appeals by way of his Amended Notice of Appeal filed 12 July 2024. Both the wife and the solicitors oppose the appeal. Further, in the event the appeal against the award of damages succeeds, the solicitors by their Notice of Contention filed 8 March 2024, seek to restrict any award of damages to the amount of the original award on another basis not relied upon by the primary judge.
However, that is complicated by the fact that by their Amended Notice of Cross Appeal filed 19 April 2024, the solicitors contend that the husband’s claim against them was statute barred, and also challenge the finding of negligence which underpins the award of damages against them. That cross-appeal is, as we have noted, opposed.
No question as to jurisdiction to determine the claim against the solicitors was raised either before the primary judge or on appeal, and we are satisfied that it arises out of the same substratum of facts as those which the challenge to the BFA’s validity involved.
THE HUSBAND’S APPLICATION IN AN APPEAL
By Application in an Appeal filed 30 August 2024, the husband sought the following orders:
1.[The husband] have leave to adduce further and/or fresh evidence at the hearing of the appeal pursuant to Rule 13.39 of the Rules.
2.[The husband] have leave to commence an appeal from the orders of the [primary judge] made in the proceedings on 13 October 2023.
3.[The husband] have leave to amend [his] Amended Initiating Application filed in the proceedings on 13 August 2021 pursuant to Rule 2.50(1)(a)(ii) of the Rules.
4.On or before 12 September 2024:
a.The Husband and the Wife each and file and serve a Financial Statement as at 31 August 2024;
b.The Husband and the Wife are to file a Joint Balance Sheet as at 31 August 2024.
At the hearing of the appeal, King’s Counsel for the husband accepted that the relief sought in paragraphs 1, 3 and 4 was only relevant to any re-exercise of discretion in the event the appeal succeeded. King’s Counsel also agreed that the relief sought by paragraph 2 was only relevant to Ground 16 of the appeal.
We shall therefore defer further consideration of the application until any need to consider it arises. As shall be seen, no such occasion arises, and it shall therefore be dismissed.
THE APPEAL AND CROSS-APPEAL GENERALLY
As we have indicated, there are two aspects to the challenges made by the appeal; first, those directed to the property settlement in favour of the wife (Grounds 1–6) and secondly, those, which in various ways, seek to increase the assessment of damages against the solicitors (Grounds 7–17).
However, as the solicitors’ cross-appeal challenges the validity of the award against them; logically, it needs to be considered prior to the husband’s challenge to the award of damages as, if the cross-appeal were to succeed, Grounds 7–17 of the appeal would fall away.
Further, so far as we understand, the Notice of Contention only falls for consideration if the cross-appeal fails, but Ground 15 succeeds.
GROUNDS OF APPEAL 1–6
Ground 1 was abandoned at the hearing of the appeal.
The remaining five grounds all relate to the exercise of the primary judge’s discretion under s 79 of the Act. Therefore, the usual appellate restraint applicable to such appeals is engaged. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 (“House v The King”) must be established. There, the majority of the High Court 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…
Ground 2
This ground provides:
2.The primary judge erred in determining the value of the adjusted property pool as at 30 June 2022 in the amount of $2,168,151 (net non-superannuation assets) and superannuation assets in the amount of $730,524.
As drafted, this was a complaint that the primary judge erred in determining the value of the asset pool as at 30 June 2022. However as argued, it was rather a moveable feast. Ultimately it landed as an assertion the primary judge erred in determining that the value of the husband’s superannuation was $356,735 (Transcript 19 September 2024, p.19 line 30 to p.20 line 4).
In the March 2023 reasons the primary judge did indeed, in the course of constructing the balance sheet, and formulating the “indicative settlement,” adopt a figure of $356,735 for the husband’s superannuation (at [213]). This was plainly its value as at 30 June 2022. Thereafter, on 1 September 2023, the husband filed an Application in a Proceeding which, amongst other things, sought to adduce further evidence to the effect that, as at 28 September 2023, the husband’ superannuation was only worth $74,867 (the October 2023 reasons at [41]).
In the October 2023 reasons the primary judge refused to admit that part of the further evidence. Although Ground 16, subject to leave to appeal being granted, challenges the October 2023 reasons’ refusal to permit the husband to adduce further evidence, as argued, the ground expressly was restricted to evidence other than the then value of the husband’s superannuation.
Rather, Ground 2, as argued, was in effect, a contention that by the time of the February 2024 reasons, the primary judge ought to have realised that the husband’s financial position, particularly as to superannuation, had changed, and hence not adopted values for it as at 30 June 2022, some 18 months earlier.
The history of all this is rather complicated. Subsequent to the October 2023 reasons, and after final submissions had been heard, on 14 December 2023 the husband had filed an Application in a Proceeding which sought, relevantly:
1.That [the wife] pay to [the husband] urgent spousal maintenance for his reasonable living expenses from her indicative property settlement in the Joint Westpac Account [xxxx59] in the amount of $25,000 lump sum for the next three months or $9,000 per month until interim or final orders are made.
2.That by way of litigation funding the sum of $50,000 be paid to [the husband] from the Joint Westpac Account [xxxx59].
3.That [the husband] have leave to file a further updated Financial Statement (draft filed 14/12/2023).
4.That [the husband] have leave to file a Corrigendum to written submissions (draft filed 14/12/2023).
…
(Husband’s Application in a Proceeding filed 14 December 2023)
As paragraph 3 identified, the husband had simultaneously filed a Financial Statement, which showed that his superannuation had by then reduced to $23,753. However, in the affidavit of the husband contemporaneously filed, he said “[i]n support of my application for urgent spousal maintenance and litigation funding filed herewith I have filed a further updated financial statement” (Affidavit of the husband filed 14 December 2023, paragraph 26).
Despite final oral submissions having concluded on 27 November 2023, the husband also filed a “corrigendum to written submissions of the applicant husband” on 14 December 2023. It did not make any mention of the reduced superannuation balance, but rather resiled from the parties’ agreed earlier position that legal fees should be added back into the property pool (paragraph 3) and further retreated from the husband’s earlier position that there ought to be no adjustment to the parties’ superannuation. Instead, he sought that the parties’ superannuation should be split in the same proportion as their property (paragraph 3).
As recognised by the primary judge, the husband’s diminishing superannuation value was not of direct impact on the balance sheet, because it was being used to fund the husband’s legal fees. Therefore, given that in the 2024 reasons the primary judge added those fees back into the balance sheet, on a simplistic level, the net effect of doing so was zero; the value of the husband’s superannuation just became a notional asset, instead of a real one. The primary judge had recognised that in the October 2023 judgment at [42]–[52] and nothing had changed in that regard by 9 February 2024, when his Honour said at [77] of the 2024 reasons:
77Given the husband’s significant latitude in terms of the evidence that was before me based upon the various Applications in a Proceeding, his affidavit material and updated Financial Statements, I do not consider that there should be any further adjustment to the determination of the settlement sum in favour of the wife.
Had the primary judge adjusted the balance sheet to reflect the actual value of the husband’s superannuation as at February 2024, then there would have had to have been an equal adjustment in the value of the notional asset comprising the added-back legal fees.
We shall discuss the interplay of the husband’s superannuation and legal fees in traversing Grounds 5 and 6, however for the purposes of this ground, we are not persuaded the primary judge erred as (ultimately) the husband contended under this ground.
Ground 2 is without merit and fails.
Ground 3
This ground provides:
3.The primary judge erred in finding that the contributions made by the parties were equal.
As orally argued, this ground bore almost no resemblance to the matters advanced in the husband’s Summary of Argument. Indeed, ultimately only paragraphs 28.2 and 28.3 of that document were pressed (Transcript 19 September 2024, p.24 line 35). They provide:
28. The husband submits that the primary judge erred in:
…
28.2.Failing to take into consideration that the financial impact of supporting the children has largely fallen to the husband including the cost of private schooling and health costs in circumstances where the wife refused to contribute to these costs.
28.3.Failing to take into consideration that post separation the responsibility for the majority of the care arrangements for the children has fallen to the husband who deposed that, “after a gradual progression from equal time in May 2019 as per my affidavits, since 1 July 2022 [the elder child] has lived with me for 95% of the time and [the younger child] has been in my care for 45% of the time. Those arrangements are now relatively long standing and stable” being a position accepted by the wife.
…
(Footnotes omitted)
Those contentions may be swiftly disposed of, in that we are far from satisfied that his Honour quarantined those matters from consideration. Particularly, in the October 2023 reasons, the primary judge said:
26The parties are the parents of [the elder child] (now aged 17 years) and [the younger child] (now aged 14 years). [The husband]contends that since May 2019, there has been a gradual progression from equal time in May 2019 to a position where since 1 July 2022 the percentage care arrangements for the children is such that [the elder child] lives with [the husband] for 95 per cent of the time and [the younger child] for 45 per cent of the time.
27[The husband] considers that the arrangements are now stable and not likely to change.
28No Child Support Assessment is in place and the parties have apparently received correspondence from the Child Support Agency dated 20 April 2023 confirming that for the Child Support Assessment period 1 January 2023 to 30 June 2024, neither parent has a child support obligation to the other.
29The parenting arrangements were given consideration in Daily & Daily [2023] FedCFamC1F 222. The position was summarised at [261] as follows:-
Each of the parties have the shared care of the children. During the course of the proceedings, various assertions were made as to the current parenting arrangements however, neither party sought to reopen the proceedings to adduce evidence as to matters relating to the care of the children and the financial implications that might arise from the parenting arrangements as they apply from time to time.
30As considered, there had been a stay of Child Support Assessment made on 20 December 2019. It is now agreed that there is no current or intended Child Support Assessment for the foreseeable future.
31[The elder child] will reach the age of 18 years in 2024. Even on [the husband’s] case, [the younger child] will remain in what is effectively a share cared [sic] arrangement. At the trial, neither party sought to put forward evidence as to the care arrangements for the children and in particular, the financial consequences of the arrangement. Judgment was delivered on 31 March 2023. Whilst the proceedings remain open, it was upon the application of [the husband] and [the solicitors] that they were not in a position to make submissions in respect of quantum of damages until judgment was delivered.
32[The husband] was given all possible opportunity to introduce evidence as to the financial implication and consequences of the evolving care arrangements for the children.
33It was accepted by the parties, taking into account the age of the children, in particular [the elder child], that the ongoing care arrangements would likely be significantly influenced by the wishes of each of the children.
34It was entirely foreseeable that each of the parties considered the ongoing care arrangements for the children was a matter of significance. Ample opportunity was provided for the issue to be explored.
35[The husband] does not put forward any explanation as to why the parenting arrangements for the children was not raised during the course of the proceedings in particular, since the [husband] acknowledges that [the elder child] has lived with him for 95 per cent of the time since 1 July 2022.
36No attempt has been made by [the husband] to set out what might be the financial consequences of the current care arrangements for [the elder child] up to his eighteenth birthday in 2024.
37In circumstances where there is no explanation provided by [the husband] as to why the issue was not raised during the course of the proceedings, given that the parties considered that the children’s parenting arrangements may change depending upon their circumstances from time to time, I should not allow evidence to be called as to the current and likely care arrangements for the children.
(Emphasis added)
Plainly therefore, the primary judge was well aware of what paragraphs 28.2 and 28.3 allege he did not take into account; however, there was no evidence as to the financial implications of them. These aspects of Ground 3 are therefore forlorn.
Although not advanced in the husband’s Summary of Argument, nonetheless under cover of this ground, what the husband primarily pressed before us was based on what the primary judge said in [251] of the March 2023 reasons, as follows:
251To the extent that the husband’s superior income may have resulted in the accumulation of assets ignores the very real contribution of the wife in terms of her own employment, care of the children and her support that enabled the husband to hold well paid employment.
King’s Counsel for the husband argued that the use of the word “ignores” in that paragraph suggested that it involved “[t]he implicit comparison between what cannot be compared to something else” (Transcript 19 September 2024, p.25 lines 26–27).
We disagree. All his Honour was doing was exploring the interplay of various factors.
Ground 3 is without merit and fails.
Ground 4
This ground provides:
4.The primary judge erred in making no adjustment in favour of the husband for s75(2) factors.
As contended in the husband’s Summary of Argument, this was simply a forlorn complaint as to weight. To the extent the ground remained in play, it rested on paragraph 31.1 of the husband’s Summary of Argument, which provides:
31. The husband submits that the primary judge erred in giving:
31.1.No weight to the matters set out in paragraphs [29.2] and [29.3] herein being the care arrangements for the children and that the husband bears the full burden for their health and education costs.
…
(Husband’s Summary of Argument filed 12 July 2024)
The reference to paragraphs 29.2 and 29.3 ought be taken to be a reference to paragraphs 28.2 and 28.3 recited above. That said, as the ground was cast, plainly it is again a weight challenge. Despite that, King’s Counsel for the husband sought to recast it instead as a failure to take relevant matters into account, being (somewhat confusingly) the husband’s poor health and difficult financial circumstances. However, this argument went completely beyond not only the ground of appeal, but also the arguments advanced in the husband’s Summary of Argument. Accordingly, leave to advance it was required (Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23(4)), but sensibly not sought.
In any event, the primary judge did specifically address these matters in the 2024 reasons at [69]–[77].
Ground 4 fails.
Ground 5
This ground provides:
5. The primary judge erred in adding back legal fees to the property pool.
At paragraph 36 of his Summary of Argument the husband says:
36.The husband contends that adding back the amount expended by the parties on legal fees does not do justice and equity as between the parties on account of the following:
36.1.The effect of the addbacks was to artificially inflate the balance sheet with monies no longer available to the parties.
36.2.As at 30 June 2022, the total amount expended by the parties on legal fees comprised $966,067 representing 44.6% of the non-superannuation asset pool. Notwithstanding that the amount spent by the wife on legal fees was $320,264 and the amount spent by the husband $483,033 the primary judge distributed total amount expended by the parties on legal fees 50% as between the parties. By treating the amount expended by the parties on legal fees in this way, wife gained an extra $162,769 by way of cash in her property settlement.
(Husband’s Summary of Argument filed 12 July 2024) (Footnote omitted)
Up until the 14 December 2023 corrigendum to his written submissions, the husband’s (and indeed the wife’s) position had been that their legal fees should be added back into the balance sheet. However, in that corrigendum, he said:
The husband proposes the addback of paid legal fees would artificially inflate the balance sheet with monies no longer available to the parties and therefore should not be an addback.
(Corrigendum to husband’s written submissions filed 14 December 2023, paragraph 3)
As orally argued before us, the case put by the husband was that the impact of the addback of legal fees was so great that it rendered the final outcome neither just nor equitable.
The parties had funded their legal fees using property which otherwise would have been available for division between them. It is inconceivable that no regard could be had to that, particularly as the husband had expended far more on legal fees than the wife.
Ordinarily such disposal of property is taken into account by adding it back into the balance sheet (Chorn and Hopkins (2004) FLC 93-204) but if it had not been, then it would have needed to be taken into account under s 75(2)(o) of the Act.
The nub of the husband’s complaint was that by adding back the parties’ legal fees, but leaving the residual superannuation undivided, when in the husband’s case those fees were mostly sourced from his superannuation, the primary judge had “in effect, taken the husband’s superannuation and added it back into the joint pool with the result that the wife gets nearly a quarter of a million dollars more than if it had been done simply on the total assets” excluding the addbacks (Transcript 19 September 2024, p.30 lines 24–32).
The simple fact is that up until 14 December 2023, the parties had conducted the litigation on a common basis that their legal fees would be added back into the balance sheet. After the trial had concluded, the husband changed his mind in that regard, and also changed his position in relation to the treatment of superannuation, contending that it should be split (which had always been the wife’s position).
However, beyond the extremely brief statement as to the husband’s changed position in the 14 December corrigendum, the arguments put to us were never put to the primary judge. It is trite to observe that a party is bound by their conduct of their case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71). The arguments which the husband now makes clearly could have been met by evidence or submissions (Water Board v Moustakas (1988) 180 CLR 491 at 497), in the sense that the husband’s disproportionate deployment of the parties’ assets on legal fees needed to be accommodated in some way. Just removing the husband’s legal fees from the balance sheet could never have been fair; on any view they needed to be factored in, as did the wife’s. The husband did not, either before us or the primary judge, explain how that should occur, nor did he contend that if they remained in the balance sheet, then some further consideration of the impact of that should be undertaken, whether under s 75(2)(o) or otherwise.
The primary judge did not err by including the husband’s legal fees as notional assets in the balance sheet.
Ground 5 fails.
Ground 6
This ground provides:
6.The primary judge erred in adopting a two pool approach in respect of superannuation and not adjusting superannuation consistent with his adjustments of interests under s 79 of the FLA.
At paragraphs 40–43 of the husband’s Summary of Argument he contends:
40.At the trial of the remitter proceedings the parties contended that their superannuation entitlements should be split. The primary judge did not follow the wishes of the parties and failed to explain why he preferred, instead, that the parties each retain their separate superannuation entitlements.
41.The primary judge erred in not ordering a split of the superannuation entitlements of the parties on account of the following:
41.1.While it may have been the case that the “present” superannuation entitlements of the parties were not dissimilar as at 30 June 2022, the primary judge could not have reasonably apprehended that the same was the case as at 27 November 2023 (in fact he knew quite differently).
41.2.The force in that submission is amplified by the findings that the husband had consistently been making withdrawals from his superannuation entitlement significantly reducing the balance to repayment debt, fund living expenses and pay legal fees (all of which were ongoing).
42.The husband submits that the “present” superannuation entitlements of both parties as at 27 November 2023 was more than likely in the case of the wife the amount of $373,789 and in the case of the husband the amount of $74,867 and accordingly in the combined about $448,656.
43.The husband further submits that the superannuation entitlements should be adjusted consistent with adjustment made in respect of property division (ie on a 70/30 basis).
(Husband’s Summary of Argument filed 12 July 2024) (Footnotes omitted)
Of course, paragraph 40 is a little cute in that it was only after the trial had concluded, by way of the 14 December 2023 corrigendum, that the husband eventually joined the wife in seeking a split of superannuation, but nothing turns on that.
On the values of the parties’ superannuation adopted by the primary judge (derived from the agreed balance sheet), the value of their superannuation as at 30 June 2022 was almost equal. Since then, the husband had used his superannuation to fund his legal fees to the point where, by February 2024, there was little left.
However, so long as the 30 June 2022 values enured, then the point of this ground is fatally flawed. Indeed, ultimately King’s Counsel for the husband conceded that Ground 6 was an echo of Ground 2 (Transcript 19 September 2024, p.42 line 23) and was dependent on the primary judge adopting a different figure for the husband’s superannuation; therefore, it only arose if Ground 2 succeeded. Although, somewhat ironically, if Ground 2 did succeed, it was not necessary to determine Ground 6 (Transcript 19 September 2024, p.43 lines 1–14). Ground 2 has not succeeded, and hence we need not consider Ground 6 further.
Ground 6 fails.
THE CROSS-APPEAL
The solicitors’ cross-appeal challenges the primary judge’s finding that the solicitors were negligent, and extends to only two grounds. We shall consider them individually.
Ground 1
This ground provides:
1.The learned trial judge erred in failing to dismiss that [the husband’s] negligence claim on the ground it was statute barred.
1.1The learned trial judge erred in concluding at [358] that the loss and damage claimed by [the husband] was not sustained until, at the earliest, the date of separation.
1.2The learned trial judge ought to have found [the husband’s] loss and damage arose by no later than the date of the marriage of the parties.
1.3The learned trial judge erred in failing to find no sufficient basis to enliven the discretion in s48(3)(b)(i) of the Limitations of Actions Act (1936) SA.
(As per the original)
Before the primary judge, the husband pleaded claims against the solicitors both in contract and tort, however on appeal, the husband readily acknowledged that it was arguable his contract claim was statute barred, and in the alternative urged that it was open to the primary judge to extend that limitation period under s 48 of the Limitations of Actions Act 1936 (SA).
In the March 2023 reasons, after traversing the relevant authorities, the primary judge said this in concluding that the husband’s claim against the solicitors was not statute barred:
352The intention of the parties was to contract out of the jurisdiction of the Court pursuant to s 79 of the Act and to determine their separate interests to property settlement and division consequent upon a breakdown of their relationship.
353The assumption of each of the parties, but in particular the husband, was that he had received competent legal advice that the BFA he entered into on 21 July 2005 would likely achieve the intended result. I have determined that the agreement was void for uncertainty and have previously determined that but for a consideration of s 90G(1A) of the Act, the BFA was not binding on the parties in circumstances where the provisions of s 90G were not satisfied.
354It is now arguable that a finding of uncertainty would likely impact upon my earlier finding that pursuant to s 90G(1A) it would be unjust and inequitable if the BFA were to be set aside. I do not need to determine that question.
355For 13 years, the parties more or less conducted their marriage and their joint and several personal and financial circumstances based upon an assumption that the BFA would resolve their differences in the event of separation.
356It is likely that whilst the wife gave little or no consideration to the existence of the BFA and its potential implications upon separation as time passed, the actions of the husband in retaining the bulk of his income suggests that his financial conduct during the relationship was at least influenced by his understanding of the effect of the BFA.
357If the parties had never separated, the BFA would have had no adverse impact even though there existed a fundamental breach of the agreement and therefore the potential for loss and damage to arise.
358I therefore find that the important consideration is when the actual damage has been sustained and in this case, that was at the earliest, the date of separation when the parties may have considered the application of the BFA or certainly at the date of the notification and/or institution of proceedings by the wife. Either way, I find that the husband’s claim of negligence is within time.
(Emphasis added)
It can therefore be seen that the critical aspect of the primary judge’s determination was that no actual loss or damage was sustained by the husband before separation (and perhaps not even then).
This ground challenges that proposition by contending that damage had been sustained by the time of marriage (and perhaps earlier), or in the alternative that no opportunity for an extension of time existed.
A cause of action in negligence is complete when damage is first sustained, and it matters not (at least in South Australia) that a prospective plaintiff is unaware of the damage, or the cause of action more generally.
There are two competing characterisations of when a negligently drawn contract first sees damage sustained (of which the BFA is but one example, albeit, if binding, with particular statutorily derived effects). The first is to look at the negligently drawn contract as analogous to a defective asset (Orwin v Rickards [2020] VSCA 225 (“Orwin v Rickards”); Davys Burton v Thom [2009] 1 NZLR 437 (“Davys Burton”)). The second is to regard any loss as merely contingent until events precipitate it (Wardley Australia Ltd v Western Australia (1992) 175 CLR 514) (“Wardley”)). The primary judge preferred the latter. The solicitors contend it is the former.
A convenient starting point is to recognise that there is no authority which binds this Court to hold in favour of the “defective asset” characterisation of the negligently drawn BFA. Davys Burton is not an Australian case, and Orwin v Rickards, even whilst accepting it is persuasive, does not, on a close analysis, suggest that the defective asset analogy is the only one available. To the contrary, at [61]–[64] the Victorian Court of Appeal said:
61As this review of the authorities makes clear, the classification of loss in the present case was a question of real difficulty. For our part, we see real force in the argument that the loss suffered by Ms Orwin other than the payment of fees to Mr Rickards was a contingent loss at the time the financial agreement was entered into. Adopting the language of Wardley, it can properly be said to be ‘unjust and unreasonable’ to expect a person in Ms Orwin’s position to have commenced proceedings at a time when (on her account) she had no reason to suspect that Mr Rickards had been negligent, precisely because nothing had occurred which meant that she had to rely on the agreement.
62Equally, we see no material distinction between the circumstances of the present case and those considered in [Davys Burton]. The purpose of engaging the solicitor to prepare the agreement was the same in both cases: to settle future financial arrangements between the parties to the relationship in a way which would prevent them being later adjusted by a court under legislation enacted for that purpose. And in this case, as in [Davys Burton], the agreement failed entirely to serve the desired purpose. In those circumstances, the ‘damaged asset’ characterisation seems particularly apt.
63On this analysis, either characterisation might properly have been adopted. That is, the agreement which Ms Orwin received from Mr Rickards was so completely ineffective that she could accurately be said to have acquired a ‘damaged asset’. At the same time, it could accurately be said that the solicitor’s negligence had exposed her to a ‘contingent loss’. It follows that the challenge to the judge’s characterisation must be rejected. His Honour’s conclusion had a secure foundation in existing authority.
64What we have said is sufficient to dispose of this ground of appeal. However, it seems to us to be unsatisfactory that the same facts should be open to alternative legal characterisations in this way, when the choice of characterisation produces such dramatically different answers to the limitation question. It is almost 30 years since Wardley was decided by the High Court. This degree of uncertainty in an important area of law is regrettable.
(Emphasis added)
Thus, far from saying that the judgment then under review, which held that the “damaged asset” analogy was appropriate on the particular facts, was the only correct characterisation, the Court of Appeal said it was one of two characterisations properly open to have been adopted. So construed, Orwin v Rickards does not support the solicitors’ argument, but rather it is strongly against it.
In Wardley the plurality of the High Court said at 526–527:
Under s. 82(1), as under the common law, a plaintiff can only recover compensation for actual loss or damage incurred, as distinct from potential or likely damage. In that respect, we agree with the comments of the Full Court of the Federal Court and we disagree with the statement of French J. “that risk of loss is itself a category of loss”. The Act draws a clear distinction in Pt VI between loss or damage which may be recovered under s. 82 and the likelihood of loss or damage which may be prevented or, if not prevented, reduced by one of the remedies under s. 87.
(Emphasis added, footnotes omitted)
At 527 they further said:
… In many instances the disadvantageous character or effect of the agreement cannot be ascertained until some future date when its impact upon events as they unfold becomes known or apparent and, by then, the relevant limitation period may have expired. To compel a plaintiff to institute proceedings before the existence of his or her loss is ascertained or ascertainable would be unjust. Moreover, it would increase the possibility that the courts would be forced to estimate damages on the basis of likelihood or probability instead of assessing damages by reference to established events. In such a situation, there would be an ever-present risk of undercompensation of overcompensation, the risk of the former being the greater.
(Emphasis added)
Later at 532–533 they continued:
In the result, we agree with the decision of von Doussa J. in S.W.F. Hoists & Industrial Equipment Pty. Ltd. v. State Government Insurance Commission. There the insured sued the insurer for loss suffered as a result of a misrepresentation as to the extent of the indemnity or liability coverage provided by a proposed contract of insurance. His Honour held that actionable actual loss (as opposed to a mere potential for loss) occurred only when the insured was called on by a third party to make payments against which it would have been entitled to be indemnified by the insurer under the contract as represented. When the events entitling the third party to make the demand for payment occurred and when the insurer indicated, prior to the making of that demand, that it would not indemnify the insured against any such demand, there was no more than a potential for loss. S.W.F. Hoists and Zoneff v. Elcom Credit Union Ltd. are to be distinguished from the English insurance cases Iron Trade Mutual Insurance Co. Ltd. v. J.K. Buckenham Ltd. and Islander Trucking Ltd. in that the policies of insurance in the Australian cases were worth what was paid for them.
The conclusion which we have reached with respect to the time when the plaintiff first suffers loss in respect of contingent loss or liability accords with the comment of Gaudron J. in Hawkins v. Clayton [(1988) 164 CLR at 601]):
“[I]f the interest infringed is an interest in recouping moneys advanced it may be appropriate to fix the time of accrual of the cause of action when recoupment becomes impossible rather than at the time when the antecedent right to recoup should have come into existence, for the actual loss is sustained only when recoupment becomes impossible.” (Emphasis added)
Gaudron J. went on to point out [at 602]:
“It would be too simplistic to restrict analysis of economic loss merely to a consideration of reduced value or increased liability.”
The conclusion which we have reached is reinforced by the general considerations to which we referred earlier. It is unjust and unreasonable to expect the plaintiff to commence proceedings before the contingency is fulfilled. If an action is commenced before that date, it will fail if the events so transpire that it becomes clear that no loss is, or will be, incurred. Moreover, the plaintiff will run the risk that damages will be estimated on a contingency basis, in which event the compensation awarded may not fully compensate the plaintiff for the loss ultimately suffered. These practical consequences which would follow from an adoption of the view for which the appellants contend outweigh the strength of the argument that the principle applicable to the cases in which the plaintiff acquires property (or a chose in action) should be extended to cases where an agreement subjects the plaintiff to a contingent loss. In such cases, it is fair and sensible to say that the plaintiff does not incur loss until the contingency is fulfilled.
(Bold emphasis added, footnotes omitted)
Although Wardley was determined in a markedly different context, those statements seem particularly apt here. It would be unjust and unreasonable for one or both parties to an intact marriage (or de facto relationship) which may never fail, to nonetheless commence proceedings before the occasion for the statutory implementation of the BFA’s effect has arisen. As Wardley recognises, the assessment of damages at such a time would be almost farcical, as there would be so many imponderables, with a distinct risk of under compensation. Whilst it may be accepted that the only certainty about an assessment of damages is that it will probably prove to be either too high or too low, if damages were assessed in relation to an intact marriage, the assessment may bear no resemblance to any actual loss eventually suffered.
To the extent that the New Zealand Supreme Court, or an Australian intermediate appellate court may have said anything different, we regard ourselves as bound by Wardley.
In this case, also relevant to the date when the ascertained or ascertainable loss was first suffered by the husband as a result of the solicitors’ negligence, is:
(a)the fact that the BFA on its face only came into operation upon the parties’ marriage (Clause 1). Thus if the parties never married, no occasion for loss could arise; and
(b)section 90DA(1) of the Act which provides:
(1)A financial agreement that is binding on the parties to the agreement, to the extent to which it deals with how, in the event of the breakdown of the marriage, all or any of the property or financial resources of either or both of the spouse parties:
(a)at the time when the agreement is made; or
(b)at a later time and before the termination of the marriage by divorce;
are to be dealt with, is of no force or effect until a separation declaration is made.
(Emphasis added)
Whilst we accept that s 90DA(1) is of no application to a BFA which does not meet the statutory requirements (like this BFA does not), nonetheless it mandates that a negligently drawn, but otherwise binding, BFA would only become of force and effect upon a separation declaration. How, in relation to such a BFA, ascertained or ascertainable damage would be suffered at any earlier time is very difficult to see. Why the cause of action for negligence in relation to such a BFA should have a different commencement date from one where the negligence was such that the BFA was never binding at all, is also quite unclear.
It should be borne in mind that the plaintiff in such cases bears the onus of proving damage, including (if their claim encompassed it) the loss they would suffer if their marriage or de facto relationship failed. Litigation in the context of an intact and healthy relationship, which is unlikely to fail, would see plaintiffs as virtual sitting ducks for defendants, or more likely their professional indemnity insurers.
Moreover, and with great respect to those who have seen it differently, we have great difficulty with the “damaged asset” analogy applying to a BFA. That is because the BFA is not a tangible or even intangible asset, nor anything like it. It is two things. First, it is an agreement as to how, if particular events ensue, the parties’ property ought to be divided (leaving to one side any spouse maintenance component); and secondly, it is a potential defence to property adjustment proceedings.
King’s Counsel for the solicitors conceded a party to a BFA could not assign their rights under a BFA to another, and indeed not assign the BFA itself. Moreover, we cannot see that they could assign or transfer their rights to bring property proceedings, or any defence to them which they may have derived from the BFA and the relevant statutory provisions. A BFA, or at least certainly this one, is not an asset, nor remotely resembles one. Why then the drawing an analogy between a negligently drawn BFA and a damaged asset is thought apt, is difficult to see.
Finally, we should observe that as King’s Counsel for the solicitors said in the course of his introductory oral submissions to us, because it was void ab initio, in fact the husband got nothing at all by entering into the BFA. Hence it was not akin to a damaged asset, but rather it was nothing whatsoever. The subsequent attempt by King’s Counsel to walk back that bold introduction was unconvincing.
Ground 1.1 and 1.2 of the cross-appeal are without merit, and hence we do not need to address Ground 1.3.
Ground 1 fails.
Ground 2
This ground provides:
2.The learned trial judge erred in finding at [415] that [the solicitors were] negligent in failing to give advice identifying a residual risk of uncertainty which was not patent on the face of the agreement, in circumstances where [the solicitors] had at an earlier time advised that it was very difficult to ensure any agreement would be effective in the event that the parties separated, and had also given advice that particular clauses (which were amended) raised issues of uncertainty.
In considering this ground, a convenient starting point is the primary judge’s findings of negligence at [406]–[415] of the March 2023 reasons as follows:
406What is apparent, is that whilst [the husband’s former solicitor] may have gained or even retained some memory of her earlier involvement with the husband in 2002 and 2003, her engagement by the husband to assist in the consideration and if so advised execution of the final BFA, occurred over a period of 30 minutes duration.
407There is nothing to suggest that [the husband’s former solicitor] was compelled to conclude the matter in what might be considered an unnecessarily short period of time to properly allow a consideration of a draft agreement prepared by another solicitor, a consideration of what is required for the financial agreement to gain the status of a BFA pursuant to the Act, and to advise the husband as to the advantages and disadvantages of entering into the proposed BFA, including matters involving lack of compliance with s 90G of the Act and factors that might set aside an agreement pursuant s 90K and 90KA of the Act.
408The advice given by [the husband’s former solicitor] did not rise above the suggested pro-forma letter extracted from the CCH loose leaf reporting service. It is not suggested that the letter of advice to the husband was specific to the circumstances as presented by him.
409I consider that [the husband’s former solicitor’s] advice to the husband was cursory, nonspecific and as to whether the agreement could be the subject of handwritten amendment without further specific advice, it was wrong.
410Whilst I find that the husband was aware of the risk of a BFA being set aside, I consider that if that was the extent of [the husband’s former solicitor’s] advice to him, it falls significantly short as to what might be considered is a duty by [the husband’s former solicitor] to take reasonable care in advising the husband given her representation of being an Accredited Family Law Specialist.
411In Heydon v NRMA Ltd & Ors [2000] NSWCA 374, Malcolm AJA described the duty of care owed by a solicitor in the following terms:-
145.In my opinion the approach adopted in Rogers v Whitaker is applicable to the duty of care of legal practitioners and the standard of care. Both barristers and solicitors owe a duty of care to those whom they advise or for whom they act. In the present context, their duty is to exercise reasonable care and skill in the provision of professional advice. The standard of care and skill is that which may be reasonably expected of practitioners. In the case of practitioners professing to have a special skill in a particular area of law, the standard of care required is that of the ordinary skilled person exercising and professing to have that special skill….
412[The husband’s former solicitor], and by necessary implication [the solicitors], were required to exercise reasonable care but not necessarily to ensure any particular result.
413[The husband’s former solicitor] did not draft the BFA, although it could be said that her hand written amendments as to essential terms and conditions had the consequential effect of creating a new agreement that would attract compliance pursuant to s 90G of the Act.
414It was not suggested by [the husband’s former solicitor] to the husband that her ability to provide a professional service was limited to advice only pursuant to s 90G of the Act. The husband was entitled to assume that given [his former solicitor] had previously drafted various financial agreements, he could have confidence that she could provide comprehensive advice not just in respect of the provisions of the BFA but also as to the integrity of the document namely, whether there was a risk that it could be considered as void for uncertainty.
415Accordingly, I am satisfied that the husband has established a breach of duty with respect to the 2005 fresh retainer and that the [solicitors] have not made out a defence pursuant to s 41 of the Civil Liability Act.
(Emphasis added)
The solicitors now contend, in effect, that the primary judge applied too high a standard when assessing negligence (Solicitors’ Summary of Argument filed 7 June 2024 paragraphs 37–40). Later they say:
43.Whilst the primary judge ultimately found specific terms of the BFA were uncertain, [the primary judge] did not make any finding to that effect during the first trial and the Full Court did not express any concluded view on the first appeal. During the course of the second trial credible arguments were made as to the to the interpretation of the relevant clauses and integrity of the agreement. It could not be said that the ultimate finding that the document was void for uncertainty was inevitable such that that conclusion would have been patent on the face of the document to any reasonable solicitor in the position of [R Lawyers] in 2005.
44.In the context of judging negligence the Court must, of course, eschew hindsight. And it would not be appropriate to bring to bear knowledge of the later financial dealings of the parties which may have thrown additional light on the scope for uncertainty in interpretation or application of the BFA.
45.Further, even allowing that a reasonably competent solicitor in the position of [the husband’s former solicitor] would or should have appreciated that uncertainty was a risk associated with the efficacy of the BFA, it was not negligent to fail separately to identify that risk when clear advice had been given that it would be very difficult to ensure that a BFA would be effective in the event of a separation.
(Emphasis added, footnotes omitted)
This seems to be little more than a suggestion that if the primary judge did not initially recognise that the BFA was void for uncertainty, and the first Full Court was ambivalent about it, then the solicitors should not be blamed for not recognising it either. We disagree and indeed, this is the very hindsight which the solicitors purport to eschew. In our view, the solicitors’ advice was clearly inadequate. Indeed a 30 minute advice session for this BFA was always fraught with the highly likely risk of inadequate advice. In fact, any oral advice was always going to be fraught.
For completeness, we reject any suggestion that advice as to potential uncertainty given by the solicitors in 2002 enured in 2005. Unsurprisingly, King’s Counsel was unable to identify any authority to the effect that the obligation to give competent advice under a subsequent retainer can be discharged by advice given under an earlier retainer some years prior.
Ground 2 fails.
Outcome of cross-appeal
The cross-appeal fails.
THE REMAINING APPEAL GROUNDS
We now return to the husband’s appeal, and the remaining grounds of appeal which relate to the solicitors, and more precisely, challenge the assessment of damages against them.
However, at the outset we should explain that, as orally argued before us and as distinct from what the husband’s Summary of Argument contended, it was said that the gist of all of the grounds of appeal against the assessment of damages was the failure of the primary judge to properly delineate between the separate issues of causation of loss and the assessment of damages. Particularly, it was said that the primary judge wrongly concluded that a finding that the BFA was liable, apart from any issue of uncertainty, to be set aside under s 90K(1) of the Act was a distraction. Rather, what the primary judge needed to be satisfied of was that some loss comprising the loss of a chance to negotiate a binding BFA had occurred. The question of whether the BFA would have been set aside under s 90K did not foreclose the assessment of damages.
We should note that neither the King’s Counsel nor the junior counsel who argued the appeal before us had any role in drafting or settling the husband’s Summary of Argument. Perhaps reflective of that, as we have noted already, on several occasions counsel did not seek to support what was in the husband’s Summary of Argument, and sensibly so.
Whilst time pressure no doubt also prompted the brief oral submission of the husband which we have encapsulated above, and although King’s Counsel did not expressly eschew the numerous other arguments advanced by the Summary of Argument, it is convenient nonetheless to commence by addressing Grounds 15 and 17 first, as they seem to really be the focus of this aspect of the husband’s appeal as argued.
Ground 15
This ground provides:
15.The primary judge erred in finding that the husband suffered no compensatory loss.
The main task for the primary judge in the February 2024 reasons was to determine what position the husband would likely have been in but for the solicitors giving negligent advice, and particularly failing to advise that the BFA was void for uncertainty.
However, the husband’s case was a little more complicated, because not only did he contend that the solicitors were negligent in failing to advise that the BFA was void for uncertainty, but more, they were negligent in failing to advise that it was liable to be set aside under s 90K(1)(d) of the Act if the parties subsequently had children.
In the March 2023 reasons at [72] the primary judge concluded:
72Each of the parties contemplated that there would be children. It is accepted that the husband’s evidence is that without a BFA he would not have entered into the marriage, although whether the husband made his position clear, is an issue in dispute. It is also reasonable to accept the wife’s position that children were contemplated. Significant issues were likely to arise in circumstances where the parties were in agreement that there would be children of the marriage. Whilst the wife’s intention that the BFA would not bind her if there were children of the relationship is clearly subjective, it is not unreasonable to expect that the BFA would have had provisions to contemplate such an outcome.
(Emphasis added)
Then at [373] of those same reasons the primary judge said:
373It is agreed that the draft BFA was the subject of substantial amendment by [the husband’s former solicitor]. The following summary of the events of 21 July 2005, as prepared by Senior Counsel for [the wife], does not appear to be the subject of challenge:
•[The husband’s former solicitor] completes the “file re-opening form” with a matter description: “prenuptial agreement” date of new instructions 21/7/2005;
•Handwritten note of attendance of [the husband’s former solicitor] on the husband for 30 minutes;
•No opportunity for [the husband’s former solicitor] to review her notes from 2002 or 2003 nor advise on matters that the husband had instructed he wanted included in the BFA;
•Telephone attendance of [the husband’s former solicitor] (in the presence of the husband) on the wife’s solicitor concerning changes to the BFA;
•[The husband’s former solicitor] advises the husband that removing references to children would have no impact on the BFA;
•In cross examination, [the husband’s former solicitor] concedes that the statement concerning the removal of any reference to children would probably be something she would have said;
•The BFA was amended in hand to reflect the three concerns identified by [the husband’s former solicitor], the amendments were initialled and the BFA was given to the husband to obtain the wife’s signature; and
•No further advice provided to the husband including the formalities of the creation of a BFA pursuant to s 90G of the Act.
(Emphasis added, footnote omitted)
Later at [403]–[410] his Honour said:
403I find that [the husband’s former solicitor’s] evidence regarding her denial of any conversation with the wife’s solicitors concerning a reference to children, and her denial that she had told the husband there was no need for any reference to children to be included in the agreement, is to be preferred over the evidence of the husband. However, it is significant that the topic of what would happen upon the birth of a child and whether that might represent a material change in circumstances was not raised by [the husband’s former solicitor] and should have been the subject of specific advice.
404I have regard to the evidence generally and it is a reasonable consideration that the events in question occurred on or before 21 July 2005 in circumstances where the evidence was being given by [the husband’s former solicitor] in 2018.
405The Court is assisted by the [solicitors’] retention of documents, file notes and correspondence (Exhibit “2”).
406What is apparent, is that whilst [the husband’s former solicitor] may have gained or even retained some memory of her earlier involvement with the husband in 2002 and 2003, her engagement by the husband to assist in the consideration and if so advised execution of the final BFA, occurred over a period of 30 minutes duration.
407There is nothing to suggest that [the husband’s former solicitor] was compelled to conclude the matter in what might be considered an unnecessarily short period of time to properly allow a consideration of a draft agreement prepared by another solicitor, a consideration of what is required for the financial agreement to gain the status of a BFA pursuant to the Act, and to advise the husband as to the advantages and disadvantages of entering into the proposed BFA, including matters involving lack of compliance with s 90G of the Act and factors that might set aside an agreement pursuant s 90K and 90KA of the Act.
408The advice given by [the husband’s former solicitor] did not rise above the suggested pro-forma letter extracted from the CCH loose leaf reporting service. It is not suggested that the letter of advice to the husband was specific to the circumstances as presented by him.
409I consider that [the husband’s former solicitor’s] advice to the husband was cursory, nonspecific and as to whether the agreement could be the subject of handwritten amendment without further specific advice, it was wrong.
410Whilst I find that the husband was aware of the risk of a BFA being set aside, I consider that if that was the extent of [the husband’s former solicitor’s] advice to him, it falls significantly short as to what might be considered is a duty by [the husband’s former solicitor] to take reasonable care in advising the husband given her representation of being an Accredited Family Law Specialist.
(Emphasis added)
Whilst the solicitors contend that the bolded section in [373] above was in fact not agreed, and is inconsistent with the first sentence of [403], no challenge beyond that assertion is properly made before us. In any event it is the second sentence of [403] which is the critical finding by the primary judge.
In his written submissions filed 24 November 2023 at paragraph 52, then King’s Counsel for the husband said:
52.It clearly follows from those findings that [the solicitors] were in breach of duty under the third retainer in at least two respects: first, in failing to achieve a financial agreement whose terms were sufficiently certain to enable them to be enforced; and, secondly, in failing adequately to address in the financial agreement provision for children of the marriage so as to negate or avoid the possibility of a successful challenge to the agreement under s 90K(1)(d).
(Husband’s written submissions filed 24 November 2023) (Emphasis added)
Those submissions continued:
68.The Court can find that a reasonable and competent solicitor in the position of [the husband’s former solicitor] would have drafted a financial agreement in sufficiently clear terms to reflect the instructions given to her, whatever might be those instructions, so as to render it binding (that is, not vulnerable on the ground of uncertainty).
69.Further, a reasonable and competent solicitor in the position of [the husband’s former solicitor] would have been alive to the provision in s 90K(1)(d) of the Act, and its implications, and to the very real possibility that the parties intended (a) to marry and (b) to have children, and to have taken steps to provide for a division of property as between the Husband and the Wife in the event of a failure of the marriage but, in addition, to make provision for the care, welfare and development of any child of the marriage, or at least to have advised the Husband on the need for such a provision to avoid rendering any financial agreement vulnerable to a challenge by the Wife on the hardship ground.
70.The latter matter could have readily been accommodated by [the husband’s former solicitor] obtaining instructions from the Husband and an intimation from the Wife through her solicitors of any shared or mutual intention as to the number of children (if any) they would wish to have, and the schooling and other facilities and advantages they would want for those children during their childhood and adolescence, to the point where the parents no longer had legal responsibility for them.
71.Of course, it must be conceded that the Wife may have wished to negotiate around such terms and so the Husband cannot claim with absolute certainty that the Wife would have accepted the terms he proposed. Disagreement by the Wife and an agreement on some different terms is a contingency of which the Court may take account.
72.The negligence of [the husband’s former solicitor] and [the solicitor] has made it impossible for the Husband to prove the precise terms of a binding financial agreement which would have been acceptable to the Wife. However, it is the Husband’s pleaded case that unless the Wife agreed to terms acceptable to him there would have been no financial agreement and no marriage. As noted above, the Court at R [72] of the First 2023 Judgment appeared to accept the Husband’s evidence to that same effect.
73.In his evidence, the Husband deposed that without a satisfactory financial agreement he would not have entered the marriage.
74.It is accepted that the Husband must prove on the balance of probabilities that there was available to him an opportunity or opportunities of securing a better financial result than that which was delivered to him under the judgment of the Court. It goes without saying that the Husband had the opportunity, with proper advice, to secure a financial agreement, if one was to be entered into, which was not void for uncertainty. That opportunity must be treated as a certainty. [The solicitors] cannot be heard to say otherwise. Then, consistent with the evidence, there are only two realistic possibilities open. Either the Husband would not have reached agreement with the Wife on a financial agreement and would not have entered the marriage or the Husband would have reached agreement with the Wife on the terms of a financial agreement consistent with his instructions to [the husband’s former solicitor] but including a sufficient provision for any child of the marriage, in the event of a breakdown in the marriage, so that the agreement was not vulnerable to being set aside under s 90K(1)(d).
75.Once the Husband has established on the balance of probabilities the existence of one or other of those opportunities, it is for the Court to value the extent or degree of the opportunity and its worth by a process of informed estimation (eg, see Berry v CCL Secure Pty Ltd (2020) 271 CLR 151, 170 [29], 171 [32]).
76.The point was put this way by the plurality in Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 355:
… we consider that acceptance of the principle annunciated in Malec requires that damages for deprivation of a commercial opportunity, whether the deprivation occurred by reason of breach of contract, tort or contravention of s. 52(1), should be ascertained by reference to the court’s assessment of the prospects of success of that opportunity had it been pursued.
…
on the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence, the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities.
It is no answer to that way of viewing an applicant’s case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.
Also compare Hall v Meyrick (at first instance) [1957] 2 QB 455.
77.If there had been no marriage and no property settlement, then the Husband would have been better off to the extent of the extent of:
77.1 $250,000 paid in 2018;
77.2 The indicative settlement sum of $741,634;
77.3 Costs incurred by him in the proceedings; and
77.4 Any successful costs claim by the Wife against him.
78.If there had been consensus reached on a financial agreement, and that agreement had made appropriate provision for any child of the marriage so as to avoid the destructive operation of s 90K(1)(d), and if it be assumed that the agreement had made provision for the division of assets in the terms of the financial agreement in suit, then the financial result, put broadly, would have been something in the order of $250,000.
79.Hence, swinging a broad axe, and that is all the Court can do in the circumstances, the Court should find that the Husband is worse off as a result of [the solicitors’] negligence in an amount something in the order of $991,634 (representing the sum of $250,000 already paid to the wife and the indicative property settlement sum). Additionally, the Husband has unnecessarily wasted $820,000 or thereabouts on legal costs as the natural and direct consequence of the negligence of [the solicitors].
80.In all the circumstances, an award of damages should be made in favour of the Husband against [the solicitors] in an amount of $1,811,634, together with the amount of any successful costs claimed by the Wife against him.
(Bold emphasis added, footnote omitted)
The solicitors contend – as they did before the primary judge – that those submissions were not supported by the husband’s pleadings. Thus, for example they said in their written submissions filed 27 November 2023:
37. In short, the husband did not plead (or otherwise articulate) much less prove:
(1)the content of the more detailed or specific advice that a reasonably competent family law practitioner should have been given about s 90K(1)(d) (as noted above, the only pleading relevant to his was in general terms at SOC [45.6]);
(2)that the husband would have taken particular steps to mitigate the hardship risk by proffering any particular instructions that would have immunised the BFA from the risk of being set aside for hardship grounds in the circumstances that ultimately unfolded;
(3)that those steps would have rendered the BFA invulnerable to be setting aside in the events that ultimately occurred.
(Solicitors’ written submissions filed 27 November 2023)
Likewise before us, the solicitors again contended in their Summary of Argument filed 9 August 2024:
51. In summary [the solicitors submit]:
(1)The husband’s approach does not reflect, and in fact is inconsistent with, the pleaded case and the basis on which the trial was conducted.
(a)The husband’s pleaded case against [the solicitors] was to the effect that if the BFA lacked certainty (and [the solicitors were] negligent in that regard), he suffered loss because a certain agreement reflecting what he contended was the intended effect of the BFA would not have been liable to be set aside on hardship grounds, such that his loss was as set out in paragraph SOC [50.3].
(b)That is, he claimed the difference in outcome between what he contended to be the effect of the BFA (assuming it to be certain) and the settlement sum following a consideration of the wife’s entitlement pursuant to s 79 of the FLA.
(c)The husband’s case was that an agreement which corresponded with the meaning of the BFA contended for by him (but which was enforceable) would not have been liable to be set aside on hardship ground.
(d) Consistently with this, the only counter-factual case pleaded and pursued by the husband related to certainty. The implicit contention in SOC [50.3] was necessarily that if the BFA is uncertain, then:
(i)[The solicitors] ought to have advised amendments which would remove any ambiguity in relation to the husband’s intent, for example, that “work entitlements” in cl 9 of the BFA included income not paid into the joint account; and
(ii)that a BFA to that effect which was more certain would have been agreed by the wife and would not have been set aside on hardship grounds.
(2) In relation to any ‘alternative BFA scenario’:
(a)the husband did not advance a case at trial through his pleadings or submissions that:
(i)a competent practitioner would have advised the husband to explore the inclusion of some particular provision or provisions in the BFA with a view to mitigating the risk of it being set aside on hardship grounds;
(ii)had such advice been given he would have given instructions to adopt that approach; and
(iii)such approach would have been agreed and ultimately been successful in avoiding a finding of hardship.
(3) In relation to a ‘no agreement scenario’:
(a)there was no pleaded case of loss and damage in this scenario; and
(b)it is entirely speculative. The Court could not conclude that had there been no BFA and no marriage in 2005, the husband would have been financially advantaged in any particular sum, much less the sum claimed. That entails an assumption (not sought to be made good or tested in any way in lay or expert evidence) that had the husband not married the wife:
(i)he would not have remained in a de facto relationship with her for some period, potentially resulting in significant financial consequences upon their separation;
(ii) he would not have entered some other relationship in which he may have not been the primary income earner upon the advent of children.
(Footnote omitted)
However, paragraph 45.6 of the husband’s Statement of Claim specifically pleaded:
45. In breach of the Continuing Retainer, [the solicitors]:
45.6.failed to advise the [husband] that the effect of s 90KA(1)(d) of the Act was that “a material change in circumstance” was either/or the birth of a child or separation, simpliciter.
(Husband’s Further Amended Initiating Application filed 13 August 2021, as amended in Court on 24 August 2021, Annexure C)
Likewise, paragraph 46 relevantly contended:
46. If [the solicitors] had informed the [husband] that:
46.1.the terms of the Draft Agreement, the First Deed, the Second Deed or the Third Deed respectively would not result in the division of the assets of the parties in accordance with his instructions as set out in paragraphs 13 and 35 and sub-paragraph 17.3 above;
46.2.failed to advise the [husband] that cl. 17 of the Third Deed was void by reason of s 90E of the Act;
46.3.did not advise the [husband] that the terms of the Third Deed were not specifically enforceable as a contract because they lacked certainty;
then [the husband] would have insisted that the Third Deed be amended to reflect his said instructions and re-executed in compliance with the Act by the parties.
(Husband’s Further Amended Initiating Application filed 13 August 2021, as amended in Court on 24 August 2021, Annexure C)
Paragraph 13.3 of the husband’s Statement of Claim specifically pleaded that he wanted the BFA to provide “for different scenarios, including the birth of a child or children of the marriage” which was only obliquely traversed by paragraph 9 of the solicitors’ defence, and certainly not denied.
The solicitors’ traverse of paragraph 45.6 is curious. It is found at paragraph 33 of their defence, as follows:
33.[The solicitors deny] paragraph 45 of the Claim and repeats paragraphs 5, 9, 23, 25 and 26.2 above and further:
…
33.6as to sub-paragraph 45.6 says there is no s 90KA(1)(d) in the Act and further says that the [husband] was advised of and was aware of the effect of s 90K(1)(d) of the Act.
(Solicitor’s Response to Further Amended Initiating Application filed 13 December 2021, Annexure A)
Exactly what that denial and further plea means is unclear, but either way the issue had been raised. Paragraph 46 was met with a general denial (Solicitor’s Response to Further Amended Initiating Application filed 13 December 2021, Annexure A, paragraph 34).
The husband’s Statement of Claim made the usual averment of loss and damage, and particularised it to a degree in paragraphs 50–53 as follows:
50. In the event that this Honourable Court finds that:
50.1.the Third Agreement is not enforceable for want of certainty of its terms; or
50.2.the Third Agreement is enforceable but that the division of the assets of the parties in [sic] not in accordance the [husband’s] instructions as set out in paragraphs 13 and 35 and sub-paragraph 17.3 above;
then [the husband] has, or will, suffer loss and damage by reason of [the solicitors’] breach of the Continuing Retainer because:
50.3.in the event the Third Deed is not enforceable, he will be liable to pay [the wife] more by way of property settlement than he would have been required to pay her pursuant to the Third Deed.
Particulars
(a)Pursuant to the Third Deed [the husband] would have satisfied his obligations by paying to the applicant [sic] the sum of $215,291 and she would have additionally retained the following assets, namely;
(i) furniture and effects;
(ii) [Motor Vehicle 2];
(iii)the funds standing to her account with [QQ Bank] and her superannuation.
(b)[The husband] is unable to provide particulars of what property settlement might be determined by this Honourable Court, save to say that the monetary amount of the property orders must by definition be greater than would [sic] due to [the wife] under the Third Deed where the Court has determined that the [wife] will suffer “hardship” within the meaning of s 90K(1)(d) of the Act if the Third Deed is not set aside.
50.4.in the alternative to paragraph 50.3 above, if the Third Deed is enforceable but does not result in the division of the assets of the parties in not in accordance the [husband’s] instructions, he will be liable to pay [the wife] more by way of property settlement than he would have been required to pay her as set out in paragraph 50.3, Particular (a) above; and
50.5.[the wife] makes a claim to spousal maintenance (that is yet to be determined by this Honourable Court) that could and should have been excluded pursuant to the Third Deed if drawn in accordance with [the husband’s] instructions;
50.6.[the husband] has been denied the benefit of cl. 12 of the Third Deed, thereby requiring him to vacate the matrimonial home and relocate in rental accommodation;
50.7.he has incurred, and is liable to his advisers for, the costs of these proceedings, including the appeal to the Full Court of this Honourable Court.
Negligence
51.In the alternative to [the husband’s] claim for breach of contract, in the events set out in paragraph 50 above, and by reason of the failures of [the solicitors] set out in paragraph 45 above, [the solicitors were] in breach of [their] concurrent duty of care to the [husband].
52.By reason of the negligence of [the solicitors] set out in paragraph 52 above, [the husband] has, or will, suffer loss and damage
Particulars
[The husband] repeats sub-paragraph [50-50.3] above.
(Husband’s Further Amended Initiating Application filed 13 August 2021, as amended in Court on 24 August 2021, Annexure C)
Clearly the loss of chance claim was not then particularised, but it later was in the husband’s written submissions, which as we have shown, simply relied upon characterisations of the evidence and earlier findings which we have set out.
Given those earlier findings by the primary judge in the March 2023 reasons, what the primary judge then did in the 2024 reasons is a little difficult to follow. Particularly, he rejected that the husband would, if told that a BFA could not be drawn so as to avoid risk of it being set aside under s 90K(1)(d) have insisted on “absolute certainty” (at [41] of the 2024 reasons). Further, his Honour rejected the husband’s claim that without “absolute certainty of outcome and in the absence of such advice and assurance from the solicitor, he would not have entered into the marriage” (at [42] of the 2024 reasons and see also [44]).
This then led the primary judge to say at [46]:
46The unchallenged finding of hardship and the acceptance by the husband that the financial agreement is void for uncertainty, subject to the question of damages if any arising from the husband’s legal fees, permits of a finding that the husband has not suffered any compensatory damages.
It is clear that, notwithstanding the quite specific findings in the March 2023 reasons discussed above, in the 2024 reasons the primary judge failed to grapple with the husband’s case that his compensatory damages claim included a claim for damages for the lost opportunity to negotiate a BFA which made provision for the birth of a child or children.
That seemingly accepted negligence (given the March 2023 reasons) required the primary judge to engage with the difficult tasks of:
·evaluating the likelihood that the wife would have agreed to include such terms in the BFA, and if so, what those terms might have been; and in that event
·consider the prospects that the BFA would nonetheless have been susceptible to being set aside under s 90K(1)(d); and then
·to consider what additional sum beyond that payable under the BFA would have been ordered under s 79.
It is not to the point, even if was correct (which it is not), that the husband did not challenge the hardship finding, and that he accepted that the BFA was void for uncertainty. His claim for compensatory damages survived both of those matters and required assessment, as was explained by the New South Wales Court of Appeal in Thompson v Schacht (2014) 53 Fam LR 133 at [76]. It follows that the primary judge was wrong to conclude otherwise.
If what the primary judge was saying in [46] was that the chain of causation was broken by the “finding of hardship” then his Honour had misconceived the nature of the husband’s case, being a loss of a chance to negotiate a BFA which would survive s 90K(1)(d). Indeed, as the husband contends, it was unnecessary for the primary judge to determine the hardship claim at all in order to assess damages against the solicitors, and by doing so the primary judge appears to have lost focus on the distinction between causation and damage.
Ground 15 is made out.
However, that is not the end of the matter, as the solicitors’ Notice of Contention necessarily arises for consideration. It provides:
The order of the learned trial judge’s decision to decline to award any additional damages claimed by [the husband] because those damages were not proved to have been caused by any negligence of [the solicitors] can be upheld on the alternative basis that the learned trial judge ought to have found that it was not incumbent on a reasonable solicitor in the position of [the husband’s former solicitor] in 2005 to have provided any specific advice as to whether the birth of a child would have amounted to a material change of circumstances for the purposes of s 90K(1)(d) of the Family Law Act 1975 (Cth).
(Solicitors’ Notice of Contention filed 8 March 2024)
Unfortunately, neither the solicitors’ Summary of Argument, nor their oral submissions addressed the Notice of Contention.
The Notice of Contention seeks to argue that the failure to advise that the birth of a child would have amounted to a material change of circumstance for the purposes of s 90K(1)(d) was not negligent, and hence the primary judge erred in so concluding.
Doing the best we can, it appears that the solicitors argue that there was no negligence in the failure to advise about the risk of invocation of s 90K(1)(d) upon the birth of child.
We disagree. Children were contemplated by both parties. A BFA which did not accommodate that would always be fraught. It was clearly incumbent upon the solicitors to so advise, as the primary judge correctly found.
The Notice of Contention fails and should be dismissed.
Ground 17
This ground provides:
17. The primary judge erred in his assessment of damages.
As argued, this ground was solely restricted to the primary judge’s treatment of the husband’s claim for his legal costs of the proceedings against the wife, as damages against the solicitors. That said, little – if any – of the oral argument in support of this ground was reflected in the husband’s Summary of Argument.
There can be no doubt that the solicitors’ negligence caused the husband loss, comprising legal fees which were unnecessarily incurred by him as a result of two things; first, the solicitors’ failure to advise that the BFA was void for uncertainty meant he did not instruct the solicitors to re-draw it so that it was certain, and hence incurred costs of litigating that issue as against the wife; and secondly, that the solicitors’ failure to advise that the birth of a child would likely see s 90K(1)(d) engaged meant he lost the chance to have the BFA drafted in a way which provided for that eventuality in its terms, and hence he arguably incurred costs of litigating that issue.
Seemingly because the primary judge did not accept that the second loss was caused by the solicitors’ negligence, no assessment of the costs occasioned by that negligence was undertaken (see for example [61] of the 2024 reasons).
We are of the view that an assessment of damages comprising legal fees for both limbs was required, as both caused the husband to incur costs beyond those which would otherwise have been incurred by him, although given that the s 90K(1)(d) related negligence led to a loss of chance, some, and perhaps a substantial, discount for contingencies would likely be required.
Nonetheless Ground 17 is made out.
THE REMAINING GROUNDS
The success of Grounds 15 and 17 mean that the primary judge’s assessment of damages must be set aside and undertaken afresh. As shall be seen, that assessment must be remitted.
In those circumstances there is no utility in dealing with the remaining challenges to the assessment (Boensch v Pascoe (2019) 268 CLR 593 at [8]) and we decline to do so. As an aside however, we should note that what we have said about it being unnecessary for the primary judge to have determined the hardship claim, would likely have seen other grounds succeed, and certainly his findings in that regard should not be seen as creating some fetter on any future assessment of damages.
OUTCOME
The husband’s appeal as against the wife fails, but as against the solicitors succeeds, leading to the necessity to set aside the assessment of damages against the solicitors, and undertake that assessment afresh.
However, a number of obstacles lie in the path of us undertaking that assessment, including the absence of necessary findings of fact by the primary judge, the husband’s desire to put on further evidence, and the failure of either the husband or the solicitors to make meaningful submissions addressed to the reassessment on the appeal.
It is therefore expedient to remit the assessment of damages as against the solicitors to a judge other than the primary judge, and we shall so order.
Although there is potential for the wife to claim that any award of damages is then amenable to s 79 division, she expressly disavowed any intention in that regard. As regards her, the proceedings are therefore now concluded.
COSTS
The appeal against the wife failed, and as he sensibly conceded, the husband should pay her costs in the sum of $24,800.
In the event the appeal against the solicitors succeeded, and/or the Notice of Contention failed, the husband sought no order as to costs, but rather sought costs certificates. We shall make orders for certificates in favour of both the husband and the solicitors for the appeal and the rehearing.
As regards the cross-appeal, notwithstanding it failed, no costs schedule was filed by the husband in respect of it, and hence no order for costs shall be made.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Tree & Campton. Associate:
Dated: 17 October 2024
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