Delacey & Redwood
[2021] FedCFamC1A 3
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Delacey & Redwood [2021] FedCFamC1A 3
Appeal from: Redwood & Delacey [2020] FCCA 2612 Appeal number(s): SOA 89 of 2020 File number(s): DGC 2126 of 2019 Judgment of: STRICKLAND J Date of judgment: 8 September 2021 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the judgment suffers from a lack of relevant findings and adequate reasons – Where there is no discernible pathway from the primary Judge’s notes to his analysis and findings at the conclusion of the reasons for judgment – Where the primary Judge erred in the approach adopted in relation to the property of the parties and the assessment of contributions and that renders unsafe the conclusions reached as to the s 75(2) factors – Where an appellate court must be slow to overturn a primary Judge’s discretionary decision on grounds that only involve weight challenges but here that challenge gains considerable force because of the failure of the primary Judge to identify and weigh all of the contributions of the parties – Where it could be argued that there was a failure to properly exercise the judicial discretion and as a result the outcome was plainly wrong – Appeal allowed – Proceedings remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a Judge other than the primary Judge.
FAMILY LAW – COSTS – Where both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Costs Certificates ordered.
Legislation: Family Law Act 1975 (Cth) s 75(2)
Federal Proceedings (Costs) Act 1981 (Cth) s 6 and 9
Cases cited: Coghlan & Coghlan (2005) FLC 93-220; [2005] FamCA 429
Gronow v Gronow (1979) 144 CLR 413; [1979] HCA 63
Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Scott & Scott (1994) FLC 92-457; [1994] FamCA 12
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 71 Date of hearing: 3 May 2021 Place: Melbourne The Appellant: In Person Counsel for the Respondent: Dr R Smith Solicitor for the Respondent: Sterling Walters Lawyers ORDERS
SOA 89 of 2020
DGC 2126 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DELACEY
AND: MS REDWOOD
ORDER MADE BY:
STRICKLAND J
DATE OF ORDER:
8 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Paragraphs 16–21 of the Order made on 23 September 2020 be set aside.
3.The proceedings for property settlement between the parties be remitted to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a Judge other than the primary Judge.
4.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to this appeal.
5.The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to this appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Delacey & Redwood has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
By Further Amended Notice of Appeal filed on 1 March 2021, Mr Delacey (“the appellant”) appeals from one paragraph of the order for property settlement made by a Judge of the Federal Circuit Court of Australia (as it then was) on 23 September 2020. The appeal is opposed by Ms Redwood (“the respondent”).
The paragraph appealed provided for the appellant to pay to the respondent $224,650 within 30 days of the order.
The parties were also in dispute as to the parenting orders to be made in relation to their child X, born in 2016. However, as part of the order made by his Honour on 23 September 2020, the parties have equal shared parental responsibility for the child, the child is to live with the respondent and spend time with the appellant, and there is no appeal against these orders.
RELEVANT BACKGROUND
The appellant is 39 years of age, and the respondent is 37 years of age.
The parties commenced cohabitation in late 2014, married in 2016, and separated in December 2018.
The appellant is a Professional, and at the time of the trial he was employed by Employer M earning in excess of $100,000 per annum.
The respondent is a Professional, and at the time of the trial she was employed as a Professional with Employer K on a salary of $150,000 per annum plus superannuation.
In November 2010, the respondent purchased an investment property in Suburb N for $300,000 with the assistance of a loan of $50,000 from her parents, and a mortgage of $240,000. By 2013 the respondent had repaid her parents and reduced the mortgage to $135,000.
The respondent asserted that when cohabitation commenced she had net assets of $369,000 comprising her equity in the property of $224,000, her motor vehicle, her savings, her share portfolio, her furniture, and her superannuation entitlements.
The respondent also asserted that at the commencement of cohabitation the appellant had net assets of $264,900 comprising a motor bike, savings and superannuation entitlements. The appellant though asserted that he also had a quarter interest in a property in Country L valued at $78,600, and that he had net assets with a total value of $365,000.
I note that this dispute, including as to the extent of the respondent’s assets, was not resolved by the primary Judge.
In June 2015, the appellant purchased a house property in Suburb F for $667,000. His Honour recorded that there was a mortgage of $500,000 and noted the appellant’s assertion that he contributed $180,000 to the purchase price and $30,000 towards stamp duty. However, that was not entirely accurate according to the evidence. The mortgage obtained by the appellant was in the nature of a credit loan of $533,600. Further, the appellant paid $35,000 towards the stamp duty, and he contributed $188,500 to the purchase, with some of that money being used to set up a mortgage offset account at the same time.
The parties and their child resided in the property in Suburb F following its purchase, and the respondent continued to rent out her property. She paid just less than one half of the mortgage repayments for that property, and in 2017 she made three payments each of $20,000 towards that mortgage.
In May 2016, the appellant received $78,000 from the sale of the property in Country L, and this was applied to the mortgage over his property in Suburb F.
During the relationship the appellant was unemployed for a number of months, and he withdrew money from the mortgage account over his property. Some of that money was withdrawn after separation, and in particular, $95,000 went towards his legal fees. His Honour recorded that at the time of the hearing the property in Suburb F was valued at $880,000, and the mortgage was $354,200. However, that was not accurate either. The evidence of the appellant was that the mortgage was $489,200, but the offset account had a credit balance of $135,000. It seems that his Honour overlooked this entirely, and in particular, when addressing the various bank accounts of the parties. His Honour excluded the bank accounts from the asset pool, but without referring to, or including amongst those bank accounts, the mortgage offset account (see [127]). It is unknown whether his Honour would have also excluded this account if he had not overlooked it.
The appellant’s case was that he put all of his earnings into the mortgage account, which he used as a savings account. In total he asserted that he deposited $513,000 and drew down $221,000.
At this point I note that many of the figures recorded by his Honour in his reasons for judgment were not accurate and lacked clarity, as well as being internally inconsistent in some respects, and inconsistent with the evidence of the parties.
There was a distinct absence of specific findings by his Honour in this regard, but his Honour did at least make findings as to the asset pool at the time of the hearing, although again the findings were not entirely accurate (see [118]–[121]).
The cause of the lack of clarity in the figures in the reasons for judgment, and as I will shortly explain, the lack of relevant findings and of adequate reasons, would appear to be a direct result of how his Honour has constructed his reasons for judgment, and the content of those reasons. Indeed, I must say that to describe some of the reasons for judgment as such is unfortunately a stretch too far.
Bearing in mind that his Honour was addressing both parenting and property settlement issues, the structure and content of the reasons for judgment was as follows.
A brief introduction was provided followed by a section identifying “Agreed or Uncontroversial Matters”. There was then a short section summarising the affidavits of the parties, followed by a repeat of what was in the family report. To that point, no real difficulty emerges, save and except it could be argued that to simply traverse the family report and quote extensively from it without context, was both unnecessary and unhelpful.
In any event, the real difficulties then emerge. Over approximately 18 pages his Honour simply regurgitates his notes taken during the hearing of the opening and evidence of the respondent, her cross-examination, the evidence of a witness, the opening of the appellant, his cross-examination, the evidence of another witness, the evidence of the family report writer, the final submissions of counsel for the Independent Children’s Lawyer, of counsel for the respondent and, of the appellant who appeared without legal representation.
Being notes, they were sometimes difficult to read and follow, and importantly, do not provide any analysis of the evidence, and no findings. It is only in the last seven pages of the reasons for judgment where his Honour makes relevant findings as to the asset pool, the respective contributions of the parties, their future needs, and as to what is just and equitable. However, there is no pathway from the many pages of his Honour’s notes, to his Honour’s analysis and findings appearing at the very end of the reasons for judgment.
This does not assist the litigants in understanding how his Honour has arrived at his decision, and certainly does not allow an Appellate Court to easily consider the adequacy of the reasons.
THE APPEAL
The appellant, who to repeat, has not availed himself of any legal representation, had three attempts at presenting competent grounds of appeal in his Notice of Appeal, and just survived an application by the respondent to summarily dismiss the appeal by filing an Amended Notice of Appeal and then a Further Amended Notice of Appeal. However, with the latter, many of the grounds of appeal asserted were still incompetent, and on 9 March 2021 I struck out a number of them.
The grounds of appeal that remained are as follows:
2.The [appellant] appeals on the basis the [respondent’s] initial contributions, equity, money with bank accounts garnered during the relationship were removed were removed due to the [appellant] having little input when the same can be said for the [appellant’s] initial contributions equity, and bank accounts.
3.The [appellant] appeals on the basis the trail judge’s assessments were outside an acceptable range of his property pool distribution.
5.The [appellant] appeals on the basis the outcome is clearly an incorrect distribution of assets for a short-term relationship of a little over 4 years.
6.The [appellant] appeals on the basis the weight given to the [respondent’s] contributions as unacceptably excessive.
7.The ruling allows for removal of the [respondent’s] initial contributions for reasons that they owed nothing to the [appellant’s] input yet included the [appellant’s] initial contributions ($300,000) which owed nothing to the [respondent’s] input.
8.The Judge did not take appropriate consideration to the [respondent’s] refusal to provide a document discovery and to adhere to court orders to provide the documents. The [appellant] brought this to the attention of the court through an application filed on the 17th of February 2020 and heard on the 17th March 2020. At court the Judge decided not to ensure these documents were produced and said he will deal with the non-discover at trial.
(As per original)
Ground 2
Read literally this ground of appeal cannot succeed, but the real issue that it raises is whether the primary Judge has erred in how he has treated the property of the parties.
There is no doubt that it is open to a Judge to adopt an asset by asset approach, or a separate pools approach. For example, Wilson and Dawson JJ said this in Norbis v Norbis (1986) 161 CLR 513 at 532-533:
…Of course, it may be possible and appropriate in many cases to determine the proportions in which the property is to be divided without treating any of the assets separately, but where the interests of the parties differ, a different approach will be open. Section 79, in particular s. 79(4), refers to “any property of the parties to a marriage or either of them” and that expression is sufficient to encompass both the entirety of their property and their individual interests. If the parties’ interests in specific items of property differ or they have made differing contributions, it may be desirable to proceed upon an item by item basis in the division of the property between them. In such a case, justice and equity may best be served by treating the items separately for the purpose of determining the proportions in which they are to be divided, particularly if the overall division is to be effected by the transfer or retention of interests in individual assets, as was convenient in this case. …
(Also see Holland & Holland (2017) FLC 93-798 at [31] and Coghlan & Coghlan (2005) FLC 93-220)
However, what his Honour did was not to take a separate pools approach as referred to in the authorities, but to identify the pool of assets of the parties at [118]–[121], and then exclude from consideration the “pre-relationship assets” of the parties, save and except insofar as those assets may be relevant to be taken into account pursuant to s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”) ([5], [38], [122], [126] and [130]).
As his Honour explains in [126]:
So far as the wife’s pre-relationship assets are concerned I accept that these are matters which owe nothing to the husband’s input. Given the relative brevity of the marriage, and indeed the relationship, only some six or so years at the most, it is inappropriate to include them in the pool in the formal sense. Nonetheless, they cannot be wholly set to one side. They should in my opinion be brought into consideration pursuant to section 75(2)(o) in due course.
It is submitted by the respondent that “his Honour’s language can be considered infelicitous” (paragraph 11 of the respondent’s summary of argument filed 27 April 2021) and there is no error, but I do not accept that submission, and in my view his Honour erred in principle.
Even though his Honour was able to segregate pre-relationship assets into one pool, and post-cohabitation assets into another pool, his Honour was obliged to exercise his discretion “by reference to the nature, form and characteristics of the property in question and the nature, form and extent of the parties’ contributions of all types across the entirety of their relationship” (Holland at [33]).
Thus, it is not open to a trial Judge to “exclude” property unless contributions to that property can be established (Holland at [34]). Unfortunately, that is precisely what his Honour did (e.g. see [126]).
To adopt a two pools approach to the assessment of contributions, his Honour’s task was to assess contributions across the whole of the period from the commencement of cohabitation to the trial, in respect of the pre-relationship assets, and to assess contributions separately across the same period, in respect of the post-cohabitation assets. In my view, his Honour failed to do this.
For example, although the appellant made no contributions of any nature to the pre-relationship assets of the respondent prior to the commencement of cohabitation, that is not the case post-cohabitation.
The evidence of the appellant was that in 2018 he renovated the property in Suburb N, and he carried out regular garden maintenance. Granted, the respondent disputes that, or rather the extent of what the appellant did, but his Honour failed to make any finding about this, it only briefly appearing in his notes of the appellant’s final submissions.
Further, although the parties generally kept their finances separate, there was what the appellant described as a shared card that the respondent primarily used for day to day purchases, but which the appellant paid off. And this was in the period between the birth of the child in mid 2016, and March 2018, when the respondent was on maternity leave and being paid one half of her salary, with the appellant paying the majority of the expenses according to his evidence.
Clearly, an argument could also be mounted by the appellant that his meeting the expenses of the household assisted the respondent in maintaining her investment property at Suburb N. And added to that is the evidence of the use of the share card with the appellant also paying it off between April 2018 and December 2018. Again though, none of this was taken into account by his Honour.
In the respondent’s summary of argument the respondent’s counsel submitted that the respondent was not challenged by the appellant with respect to her evidence as to who did what, and in particular, in relation to the property at Suburb N, and that that was a basis for his Honour to treat the pre-relationship assets differently. However, it clearly works both ways, and the appellant was not cross-examined as to his evidence deposed to in his affidavits as to these matters. And in any event, there is no rule of law that a Judge must accept evidence which is unchallenged (Scott & Scott (1994) FLC 92-457, at 80,729–80,731). The point though is that his Honour did not address the appellant’s evidence as to these matters in his reasons for judgment.
His Honour, of course, did look to assess the contributions of the parties post-cohabitation and up to the trial, in relation to the post-cohabitation assets identified in [130] as being “included” in the pool, namely the appellant’s property in suburb F, the respondent’s motor vehicle, the appellant’s motor bike, and what his Honour termed “the [respondent’s] re-establishment costs”.
I make two comments about these “assets” before I continue. First, it was common ground between the parties that the appellant’s motor bike was purchased four years before cohabitation, and thus it is a mystery as to how this asset is included in the pool, and not excluded like all other pre-relationship assets. Secondly, the inclusion of the $10,000 re- establishment costs is extraordinary. Because the respondent’s evidence was that the appellant retain most of the chattels in the property at Suburb F, his Honour considered that “the [respondent] should be entitled to some adjustment to enable herself to re-establish her circumstances”, and as his Honour described it he allotted “the necessarily arbitrary figure of $10,000 in this regard” ([124]). However, how, and on what basis that should become one of the included assets of the parties in the pool, is unexplained. I was informed by the appellant though that on the same day as his Honour delivered his reasons for judgment, the court reconvened and after hearing submissions, the $10,000 amount was removed from the pool of assets, and was simply added to the amount to be paid by the appellant to the respondent after the percentage division calculation was made. However, there is no transcript of that, nor reasons for judgment delivered.
In any event, to continue, his Honour’s assessment of the respective contributions of the parties is to be found in two paragraphs, namely [131] and [132]. There his Honour traversed a minimal number of the contributions of the parties when compared to the evidence before him, and then only by general description, and concluded as follows:
…Taking all these matters together and noting the imperfections and the internal inconsistencies in the parties’ respective positions, and noting the [appellant’s] far greater contribution to the purchase of the Suburb F property, I would assess the parties’ contributions as being 55 per cent to [the appellant] and 45 per cent to the [respondent].
Then of course his Honour only applies that to the included pool of assets identified in [130].
Thus, there is no overall assessment of the respective contributions of the parties, and without that, it is not possible to discern the prospective entitlements of each of the parties based on that assessment. And as the Full Court explained in Holland at [69]:
…Without a finding as to the prospective entitlements of each of the parties based upon an overall assessment of contributions it is not possible to discern the foundation for her Honour’s assessment of s 75(2) including, importantly but not exclusively, s 75(2)(b)…
His Honour has clearly erred in his approach to the property of the parties, and in his assessment of contributions, and that also renders unsafe his Honour’s conclusions as to the s 75(2) factors. I will take that up shortly.
In the meantime I find that there is no merit in Ground 2 in the way that I have interpreted it. Of course, even if the errors that I have found were not strictly asserted in this ground, the decision of the High Court in Warren v Coombes (1979) 142 CLR 531 at 553 is authority for the proposition that where an appellate court finds error in the orders made by a primary Judge, the court should correct it.
Ground 6
It is convenient to discuss this ground next, as the errors identified in addressing Ground 2 clearly impact on this weight challenge, and render it meritorious. The difficulty is that those errors render his Honour’s conclusions with respect to the contributions of the parties at the very least, unsafe.
There is no doubt that an appellate court must be slow to overturn a primary Judge’s discretionary decision on grounds that only involve a challenge to the attribution of weight in making the impugned decision (Gronow v Gronow (1979) 144 CLR 413 per Stephen J at 519– 520). However, here, that challenge gains considerable force because of the failure of the primary Judge to identify and weigh all of the contributions of the parties over the period from the commencement of cohabitation to the trial in relation to the pre-relationship assets of the parties. His Honour’s conclusion of a 55 per cent/45 per cent division only related to the pool of assets excluding the pre-relationship assets, noting of course the anomaly in relation to the appellant’s motor bike.
Described in that way, it is not so much allocating excessive weight to the respondent’s contributions, as alleged in the ground of appeal, but rather a failure to identify and weigh all of the contributions of the parties.
I pause to indicate that with the brevity of the reasons assessing the respective contributions of the parties in relation to the included assets, it is almost impossible to discern the pathway that led his Honour to his conclusions. That of course reveals a lack of adequate reasons, and although there is no ground of appeal directly asserting that, it is clearly something of which the appellant rightly complains. And in terms of this Court being able to correct errors, albeit not raised in the appeal, I again refer to the High Court decision of Warren v Coombes.
In any event, however described, his Honour has erred in his assessment of the respective contributions of the parties.
The balance of the grounds of appeal
Having reached the stage that I have in considering this appeal, it is readily apparent that the appeal must be allowed. Thus, I do not see any need to address the remaining grounds in any detail, and I only make the following brief comments.
Ground 3
As with most of the grounds of appeal it is difficult to discern precisely what the appellant’s complaint is in this ground.
However, having found that the primary Judge fundamentally erred in principle in his approach to determining the applications for property settlement that were before him, it could well be argued that there was a failure to properly exercise the judicial discretion, and as a result the outcome was plainly wrong. As can be seen, that stems from the error of principle identified in addressing Ground 2.
Ground 5
This is a restatement of Ground 3 and requires no further comment.
Ground 7
This is a restatement of Ground 2 and also requires no further comment.
Ground 8
This is a ground that cannot succeed. No appealable error is identified as submitted by the respondent’s counsel in the written summary of argument.
The appellant did not seek an adjustment or assert that there should be one as a result of an alleged failure to provide full and frank disclosure. Thus, it is not open to the appellant to now raise this issue on appeal (Metwally v University of Wollongong (1985) 60 ALR 68, at 71).
In any event, the appellant has failed to identify what finding or inference the primary Judge ought to have drawn from any purported failure to disclose.
In [38] his Honour mentioned in passing the appellant’s complaints with respect to discovery, but described the appellant’s discovery requirement as “excessive”.
Having addressed the grounds of appeal I wish to make two further observations. The first is in relation to his Honour’s assessment of the relevant s 75(2) factors, and in particular his Honour’s treatment of the respondent’s pre- relationship assets.
There is no ground of appeal directed to this issue, but again, if it is nevertheless apparent that an error has been made, this Court is able to rectify it.
The initial point to make is one that I have made earlier in these reasons, and as expressed by the Full Court in Holland at [69]:
…Without a finding as to the prospective entitlements of each of the parties based upon an overall assessment of contributions it is not possible to discern the foundation for her Honour’s assessment of s 75(2) including, importantly but not exclusively, s 75(2)(b)…
However, apart from that, curiously his Honour has sought to invoke s 75(2)(o) to take into account the excluded pre-relationship assets of the respondent ([5] and [126]). Plainly, the relevant paragraph is s 75(2)(b), namely taking into account the income, property and financial resources of each of the parties, and not s 75(2)(o).
Aside from that error, all his Honour relevantly says in the brief two paragraphs devoted to the consideration of the s 75(2) factors is as follows:
134.The loading that one might ordinarily give to the [respondent] for the care and expenses relating to [the child’s] upbringing are however in my view significantly offset by the assets that she already has. …
Again though, there is a decided absence of reasons revealing his Honour’s path to making no adjustment in favour of either party in respect of future needs. For example, it is not explained how the respondent retaining excluded assets totalling in value in excess of $450,000, can offset a loading that might ordinarily be given for having the care of a child, when the asset pool to which the loading would apply is $561,000 on his Honour’s own calculations (excluding the amount of $10,000) ([130]).
The other observation is as to his Honour’s treatment of the superannuation entitlements of the parties. Under the heading of “Just and Equitable” his Honour said this:
143.Finally I should note that the division of the parties [sic] properties I am going to make will leave their superannuation to one side. The relationship was not of any great length and it is reasonable to suppose that the bulk of their superannuation has accrued before or after it. To the extent that the parties have differing amounts, these are matters to which in a sense weight has been given in the overall adjustment of 55/45 of the relevant assets already referred to.
The difficulty that this Court has is with the last sentence. It is unclear what his Honour means by saying that “these are matters to which in a sense weight has been given” (my emphasis), because nowhere in his reasons for judgment does his Honour do that, or even explain what weight is being attributed. There is a complete absence of any reference to this when arriving at the finding that there should be a 55 per cent/45 per cent division.
CONCLUSION
Having found merit in the appeal, the appeal must be allowed, and paragraph 16 of the Order set aside. It is also necessary to set aside paragraphs 17–21 of the Order, because they provide for the sale of the property at Suburb F if paragraph 16 is not complied with.
The appellant in effect seeks that in allowing the appeal this Court re-exercise the discretion and make an order reversing the order appealed against, and requiring the respondent to pay him the sum of $36,393.
However, it is not possible for this Court to do that. In the absence of findings and reasons there is no alternative but to remit the proceedings to Division 2 of the Federal Circuit and Family Court of Australia for rehearing by a Judge other than the primary Judge.
COSTS
The appellant failed to file a schedule of costs as ordered, and at the hearing of the appeal I refused to allow him to seek an order for costs. However, both he and the respondent sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in the event of the appeal being allowed on a question of law. It is appropriate for costs certificates to be granted for the appeal, and I will so order. I note that neither party sought a costs certificate for the rehearing.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strickland. Associate:
Dated: 8 September 2021
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