Dempsy & Dempsy and Ors
[2008] FamCA 1065
•4 December 2008
FAMILY COURT OF AUSTRALIA
| DEMPSY & DEMPSY AND ORS | [2008] FamCA 1065 |
| FAMILY LAW – PROPERTY – Application for Summary Dismissal – applicable principles – pleadings and affidavit disclose cause of action – cause of action not “doomed to fail” – jurisdiction to make orders for constructive trust – original and accrued jurisdiction |
| Family Law Act 1975 (Cth) ss 106B, 117(2A) |
| Bain Pacific Associations & Ors v Kelly & Ors (2006) FLC 93-270 Baumgartner and Baumgartner (1987) 164 CLR 137 Bigg v Suzi (1998) FLC 92-799 Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Valceski & Valceski (2007) FLC 93-312 |
| APPLICANT WIFE: | Ms Dempsy |
| RESPONDENT HUSBAND: | Mr Dempsy |
| 2nd & 3rd RESPONDENTS: | Mr Herston Mrs Herston |
| FILE NUMBER: | LEC | 227 | of | 2007 |
| DATE DELIVERED: | 4 December 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 28 November 2008 |
REPRESENTATION
SOLICITOR FOR THE APPLICANT WIFE: | Mr Dulley, Solicitor Morrison & Sawers |
COUNSEL FOR THE RESPONDENT HUSBAND: | Mr R Schonell |
| SOLICITOR FOR THE RESPONDENT HUSBAND: | Christopher Hughes & Associates, Lismore |
| COUNSEL FOR THE 2ND & 3RD RESPONDENTS: | Mr N Jackson |
| SOLICITOR FOR THE 2ND & 3RD RESPONDENTS: | Trenches McKenzie Cox Lismore |
Orders
The Application in a Case filed by the 2nd and 3rd Respondents on 1 May 2008 be dismissed.
Leave is granted for F Pty Ltd to intervene in the proceedings.
F Pty Ltd file and serve a Statement of Claim, in respect of any action alleged by it against any of the parties to these proceedings, by 30 January 2009.
The 2nd and 3rd Respondents and the Wife file and serve a Defence to any such claim within 28 days thereafter.
IT IS FURTHER ORDERED THAT
The 2nd and 3rd Respondents file and serve any further written submissions with respect to costs within 7 days after receipt of the Reasons for Judgment reserved today.
The Husband file and serve any written submissions in reply thereto within a further 7 days thereafter.
IT IS NOTED that publication of this judgment under the pseudonym Dempsy & Herston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC227 of 2007
| MS DEMPSY |
Applicant Wife
And
| MR DEMPSY |
Respondent Husband
And
| MRS AND MR HERSTON |
Second and Third Respondents (Wife’s parents)
REASONS FOR JUDGMENT
The husband and wife are involved in contested proceedings for settlement of property. The parents of the wife have been joined as second and third respondents to those proceedings.
Directions were previously made for the parties to file pleadings. On 6 May 2008 the husband filed a statement of claim. Defences by the wife and the second and third respondents have subsequently been filed.
An Application in a Case filed on 1 May 2008 by the second and third respondents seeks an order that the claim by the husband as against them be summarily dismissed. In the alternative the application seeks an order for security for costs in a specified amount.
At the outset of the hearing of this application, the Court was informed that the second and third respondents did not seek the alternative relief and accordingly the only order sought in the hearing was for summary dismissal.
At the conclusion of the hearing, I made orders dismissing that application. I indicated I would later deliver reasons. These are those reasons.
The claim of the husband in so far as it relates to the second and third respondents is said to arise from a series of negotiations and documents that saw the husband and wife leave their property at C and commence farming operations on property owned by the second and third respondents.
A deed of agreement was entered into between the wife and the second and third respondents on 28 June 1995. The husband alleges that the wife entered that agreement as trustee for she and the husband jointly.
That claim is based on pleaded assertions that there was a relationship of trust and confidence existing between the parties to the marriage and the second and third respondent in and about negotiations which resulted in the deed.
The deed provides, among other things, for an option to purchase exercisable as and from 29 June 2005. By its terms that option vests in “the farmer” who, by reference to the definition in the deed, is the wife.
The husband pleads that, relying upon representations and warranties made by the second respondent on behalf of the second and third respondents and an initial pleaded oral agreement in the context of the pleaded relationship of trust and confidence, he acted to his detriment and benefited the second and third respondents.
The option earlier referred to had significant potential benefits including, for example, the potential acquisition by “the farmer” of the second and third respondents’ farming land, at a favourable purchase price and upon terms where a 10% deposit was required and an interest-free vendor loan was provided with repayments set to a maximum by reference to a formula.
The statement of claim also pleads that on 21 May 2002, the wife and the second and third respondents “secretly, without any involvement of the husband entered into a deed that removed any of the benefits of the first deed, including the option to purchase the farm”.
The husband pleads he was unaware of the existence of that deed until after the separation of the parties, which occurred, after approximately fifteen years of cohabitation, on 22 March 2006.
A number of causes of action are pleaded in respect of the second deed including inducement of breach of contract; breach of fiduciary obligations and deceit. The Court was told at the commencement of the instant application that the claim in deceit was not being pursued. The second deed is alleged to be void and unenforceable as a result of those claims.
In 1999 a factory was constructed on the second and third respondents’ property, principally to accommodate deregulation of the farming industry. A supply agreement was entered into between the husband and the wife on the one hand and the second and the third respondents on the other to the effect that the second and third respondent would supply whatever product was required by the husband and wife for production in the factory.
It is alleged that the second respondent represented that the first deed protected the interests of the husband and the wife in and about the supply agreement and that the second and third respondents’ land upon which the farm activities were conducted would be bequeathed to the wife on the death of the second and third respondents.
The statement of claim alleges that the husband and wife incurred construction costs and any necessary costs of production to deal with executing necessary development and building applications so as to construct the factory.
The company F Pty Ltd was incorporated for the purposes of operating the processing factory. The husband and the wife each own one of the two ordinary shares in the company. It is contended that the operations of the company (and the husband and wife within it) contributed to the value of the second and third respondents’ land, among other things.
The pleading goes on to record a subsequent agreement in respect of a licence to produce product which resulted in negotiations pleaded by the husband to have occurred between he and the second respondent which subsequently broke down.
The husband pleads that, subsequent to the breakdown of those negotiations, the second deed was executed by which according to its terms, the wife purported to effect a disposal of, for no consideration, her right to acquire the second and third respondents’ land arising under the first deed.
The relief claimed by the husband is:-
a)A declaration that the second and third respondents hold F Pty Ltd upon a constructive trust for the benefit of each of the parties in such shares as proportions as determined by this Honourable Court;
b)Alternatively, a declaration that the second and third respondents hold the property upon a constructive trust for the benefit of the wife in such share or proportion as determined by this Honourable Court;
c)Consequential orders for transfer or sale of F Pty Ltd;
d)Alternatively a declaration that the second deed is void and of no effect;
e)Alternatively
i)damages for deceit against the second and third respondents;
ii)damages for inducing breach of contract against the second and third respondent;
iii)damages for breach of contract against the wife and the second and third respondents;
iv)equitable damages for breach of trust against the wife.
f)Alternatively that the second deed be set aside pursuant to s106 (sic) of the Family Law Act 1975;
g)An order that the wife exercise her option to purchase F Pty Ltd in accordance with the relevant clauses of the first deed and, in particular, in accordance with clause 30(d) of the first deed.
In an affidavit filed by the husband, a separate claim by F Pty Ltd limited for breach of contract is mooted. It is accepted that this claim is yet to be pleaded and no application by the company to join these proceedings has yet been made.
In that respect it seems abundantly clear that the company is, for the purposes of matrimonial proceedings, the vehicle of the husband and the wife and fully under their control.
The principles applicable to an application for summary dismissal prior to the commencement of proceedings are clearly established in this Court. (see Bigg v Suzi (1998) FLC 92-799; Bain Pacific Associations & Ors v Kelly & Ors (2006) FLC 93-270).
As each of those cases makes clear, the central principles are those clearly identified by Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 255 and 256, cited in Bigg v Suzi at 84,974 and 84,975:-
“The approach to be taken by the court to the Commonwealth's application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided; [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.]
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor(1994) 118 ALR 385 at 388 ; 68 ALJR 196 at 171 ff, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.]
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [Coe v The Commonwealth(1979) 24 ALR 118 ; 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. [Coe v The Commonwealth(1979) 24 ALR 118 ; 53 ALJR 403 at 409.] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [Church of Scientology v Woodward (1980) 154 CLR 25 at 79 ; 43 ALR 587.] A question has arisen as to whether O 26, r 18 applies to part of a pleading. [Northern Land Council v Commonwealth (1986) 161 CLR 1 at 8 ; 64 ALR 493.] However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”
Before discussing the arguments advanced with respect to the application of those principles, it is first necessary to refer to a matter that, although not strictly necessary for my decision in this case, was nevertheless the subject of significant argument by counsel for the second and third respondents.
Counsel submitted that, in effect, the “evidentiary test” was higher when, as was asserted in the case here, state law is being relied upon for the relief claimed.
Included in the argument with respect to matters said to be the subject of state law was included the claim in constructive trust. Counsel submitted that, ultimately, little turned on that assertion, because, Counsel conceded, the court would have accrued jurisdiction to hear and determine that claim in any event.
With the greatest respect, it seems to me that the true position at least with respect to the claim in constructive trust - is that which is outlined by Brereton J in Valceski & Valceski (2007) FLC 93-312.
There, his Honour said (in the context of an application to transfer to the Family Court pursuant to the cross-vesting legislation where it was necessary for his Honour to decide whether, if transfer occurred, the Family Court would have jurisdiction to entertain the application):-
“[29] Thus, as in many cases under s 79 of the Family Law Act,, it will be necessary to determine if property held by a third party is beneficially property of a party, or if property held by a spouse is not beneficially that party’s property. In such cases there is no reason why – if, in the context of a dispute between husband and wife as to property, an issue arises as to whether the parties or either of them have a beneficial interest in property legally owned by a third party, or do not have a beneficial interest in property held in their own names, or as to the extent of any such interest – the Family Court cannot resolve that issue. It frequently must, and does. It is part of the process of identifying the pool of property of the parties to the marriage, which is available for division between them.
[30] Moreover, beyond merely resolving the issue for the purpose of the s 79 proceedings, the Family Court may, under s 78, make a declaration as to the existing title or rights, if any, that a party has in respect of property (In the Marriage of Moran (1994) 18 Fam LR 534 ; (1995) FLC 92–559)… Section 78(1) authorises that court, in proceedings between the parties to a marriage with respect to existing title or rights in respect of property, to declare the title or rights, if any, that a party has in respect of property. On its face, this is not limited to the rights of each matrimonial party vis-à-vis the other, but embraces the rights of one (or both) spouses vis-à-vis a third party. Section 78(2) then authorises consequential orders to give effect to the declaration…
[31] There is no constitutional objection to orders being made under the Family Law Act which affect or bind third parties, so long as the proceedings in which they are made are a matrimonial cause. The power to legislate with respect to matrimonial causes includes matters incidental thereto. That power does not depend on any accrued jurisdiction, but is part of the ordinary (matrimonial causes) jurisdiction of the Family Court. The source of jurisdiction is s 31(1)(a) of the Family Law Act,: “matters arising under this Act … in respect or which matrimonial causes are instituted”…
[32] Similarly, there is no constitutional reason why, pursuant to s 78 and in aid of or ancillary to proceedings under s 79, a declaration cannot be made that property held by a third party is the beneficial property of a party. In so far as s 78 authorises such a declaration, it is a law with respect to matrimonial causes, just as is s 106B; and a proceeding for such a declaration, like a proceeding under s 106B, is within para (f) of the definition of “matrimonial cause”. If the third party intervenes to place its position before the Family Court, or is joined so as to be bound, that does not deprive the proceeding of the quality of a matrimonial cause. And just because the result can be made binding on the third party similarly does not mean that the proceedings lose their quality of being a matrimonial cause…
[33] Thus relief can be granted under s 106B and s 78 against third parties, as part of the ordinary federal jurisdiction of the Family Court, being within matrimonial cause (f), without involving any question of accrued jurisdiction. Accordingly, the Family Court has ordinary federal jurisdiction in some circumstances to make orders against and affecting third parties under the Family Law Act.
…
[80] By reason of matrimonial cause (f) and s 78 of the Family Law Act, the Family Court has jurisdiction and power, in aid of or ancillary to proceedings under s 79, to make a declaration under s 78 that a spouse is beneficially entitled to property held by a third party, or that a spouse is not beneficially entitled to property in his or her name, so as to bind the third party. …It is part of the ordinary federal (matrimonial causes) jurisdiction of the Family Court, and does not depend on any question of accrued jurisdiction.”
Clearly enough, some of the relief sought by the husband in the statement of claim relies upon this court exercising accrued jurisdiction so as to determine those claims as part of the one justiciable controversy between the parties to these proceedings.
That such accrued jurisdiction exists is now, as it seems to me, not in dispute (see e.g. Valceski, above). Further, as noted above, counsel for the husband appeared to concede that the Court had accrued jurisdiction so as to determine those causes of action.
However, whether the original jurisdiction of the court is relied upon in respect of the claim in constructive trust or accrued jurisdiction is relied upon in respect of other causes of action, it does not seem to me, with all due respect to counsel, that any different “evidentiary test” (or, perhaps, evidentiary onus) is involved.
The court either has jurisdiction or it does not. Once the court has jurisdiction, the test applicable to whether a claim within jurisdiction ought be struck out is, as it seems to me, the same whether the jurisdiction relied upon is original or accrued.
A further argument advanced by counsel for the husband should also be addressed. Counsel submitted that there was no evidence, within the relevant test, by which a court could possibly find a common intention as a foundation for the claim in constructive trust.
It seems to me, however, with respect, that this submission misconstrues the nature of the claim made by the husband in constructive trust. I do not understand any aspect of the pleading to reveal a claim in constructive trust based on common intention (as to which see, e.g. Baumgartner and Baumgartner (1987) 164 CLR 137).
Rather, the claim is, it seems to me, based on the imposition of a constructive trust so as to avoid unconscionability or, as is sometimes said, unjust enrichment. Counsel for the husband referred the court to a passage from Constructive Trusts[1], as follows:
“It is now well established that the constructive trust may be used as a remedy to restore property acquired in conjunction with oral agreements and other informal arrangements affecting land in instances where the court is satisfied that the holder of the legal title is setting up her or his legal rights in a way that amounts to an unconscionable repudiation of the agreement or arrangement. A constructive trust really performs a remedial function in this context and the rationale for its intervention is unconscionable conduction.”
[1] Constructive Trusts, Malcolm Cope, Law Book Company 1992 p.199
Further, the author suggests:
“It is also suggested that the constructive trust, when used in this context, has the effect of remedying unjust enrichment, that would otherwise arise if the defendant was able to retain the property in disregard of the oral trust in favour of the plaintiff. However, what produces the unjust enrichment and which is the basis for the equitable intervention is the unconscionable repudiation of the arrangement. It is therefore a little misleading to say that the constructive trust remedies unjust enrichment.
In order to succeed on the current application, it is necessary for the applicant second and third respondents to have this court conclude that the claim as pleaded and sworn to by the husband either does not disclose a cause of action, is frivolous or vexatious or is doomed to fail.
No claim is made, as I understood the submissions, that the claim was frivolous or vexatious. It seems to me abundantly clear that the statement of claim and affidavit earlier referred to clearly establish a cause of action. The real basis of the second and third respondents’ application if it is to succeed is, it seems to me, that it is doomed to fail.
In simple terms, all of the submissions made by counsel for the second and third respondents in respect of the constructive trust claims were matters that might properly be addressed to a trial court at the conclusion of a hearing.
None of the matters referred to convince me that the claim is “doomed to fail”. Expressed as the corollary, it seems to me that the pleading clearly reveal proper causes of action. Further the evidence of the husband provides an evidentiary basis for those causes of action (although, of course, it is axiomatic that the ultimate merits or otherwise of that clearly arguable case are a matter for trial.)
Specifically in respect of the claim made pursuant to s 106B of the Act, counsel for the second and third respondents submitted that there was scant evidence of the defeat an anticipated order. It was submitted that the only evidence is that there was matrimonial discord and that that was by no means unusual in a relationship and that, in any event, there was a time gap between that and separation.
It was further submitted that even if the second deed was set aside the parties would be left with the terms of the 1995 deed. It was argued that the wife could not possibly be in a position to exercise the option as that deed provided and as is sought in paragraph (g) of the relief sought by the husband.
However, paragraph 27 of the pleading indicates that the husband intends to adduce evidence valuing the wife’s option.
Counsel for the husband submitted that the other elements necessary to establish a claim pursuant to s 106B save for the possibility of defeating an anticipated order have effectively, by counsel for the second and third respondent’s silence been conceded.
It was submitted that the second deed removed, for no consideration, from the asset pool an asset of some considerable value. Certainly, that seems open on the husband’s material.
There was evidence by the husband (the acceptance or otherwise of which is, of course, a matter for trial) that he had been negotiating with the second respondent and that, during those negotiations, the existence of the second deed had not been pointed out to him or mentioned. Indeed, it is submitted, the husband wrote a letter purporting to exercise the wife’s option in circumstances where, unbeknown to him, the second deed had removed it.
It seems to me that each and all of the matters raised by counsel for the second and third respondents are matters relating to the weight of the evidence and whether such evidence is likely to be persuasive at a trial. I am by no means convinced that the husband’s s 106B claim is doomed to fail.
For the reasons just given, I am not at all convinced that the husband’s case does not disclose a cause of action nor that such causes of action as are disclosed in the pleadings are “doomed to fail”.
Each of the causes of action is pleaded to with particularity and is supported by evidence from the husband. The husband is entitled to pursue those claims at a trial.
Accordingly the Application in a Case filed by the second and third respondents is dismissed.
Costs
The husband applies for costs. He submits that the second and third respondents are in no more exalted position with respect to costs merely because they are strangers to the marriage.
It is submitted that, as pointed out by Kirby J in Lindon, above, it is a serious matter to deprive a person of their right to a trial and the second and third respondents, who have at all times been legally advised, ought be taken to be aware of that. This is not an application, it was submitted, that is ordinarily made.
Whilst it was conceded that the affidavit most recently filed by the husband discloses a new cause of action (on behalf of a company for breach of contract) it was submitted that this does not impinge upon the lack of success of the Application in a Case and is, essentially, a matter of re-pleading in respect of which, in the circumstances of this case, it might be expected that leave would be given.
It was also submitted, then, that the second and third respondent have been “wholly unsuccessful” within the meaning of s 117(2A).
It was also submitted that a series of letters sent recently which became Exhibit H1 in the proceedings constituted a bona fide attempt to resolve the matter between the parties which was rejected by the second and third respondents’.
It is appropriate to cite extracts of those letters.
On 25 November 2008, the solicitors for the husband faxed to the solicitors for the second and third respondents, a letter which provided as follows:
“Solely for the purpose of saving costs, and without admission as to the merits of your clients’ case, we give notice that we are instructed to consent to paragraph 2 of the orders sought in your application [the security for costs component] which would therefore resolve your clients’ application.
Our counsel, Mr Schonell, as spoken with your counsel, Mr Jackson, today and confirmed the above. Given the terms of your order, we ask you to inform us of your Trust Account details by return, in order for our client to deposit the sum of $11,785 to be held as security for costs.”
The solicitors for the second and third respondents replied the same day, saying relevantly:
“We advise our Trust Account details are as follows:
[details omitted]
We await transfer of the sum of $11,785.”
By letter the same day, Minutes of Consent we enclosed with a further letter by facsimile from the solicitors for the husband, and included in it was also the statement “we propose to contact his Honour’s associate at 11.00am daylight saving time tomorrow, to advise that the matter is settled”. The consent orders enclosed provided that the Application in a Case was withdrawn and dismissed and that by way of security of costs, the specified sum was paid, with a default clause in respect of non-payment.
By facsimile sent 26 November 2008, the solicitors for the second and third respondents replied:
“I wish to remind you that the application for security of costs was abandoned on the last occasion that the matter was before the court. This is a matter for the court records. We also confirm this by way of the directions that were made by consent on 17 June 2008.
The information we provided to you in our facsimile yesterday was only reflective of our clients’ willingness to receive $11,785, and in no way effects our application in its current form for Summary Dismissal of the husband’s Claim, which will proceed on Friday 28 November 2008.”
I invited counsel for the second and third respondents to explain how it was that his instructing solicitors were prepared to accept $11,785 (being the precise sum specified in the application by way of security for costs) on a basis other than that which was contended by the solicitors for the husband. Counsel indicated that “it was a mistake”.
I remain mystified about the basis upon which the second and third respondents claim that $11,785 was being offered to them, and even more mysteriously, how such sum purports to be accepted by them in the absence of it satisfying the claim for security for costs. The basis upon which that sum otherwise purports to be accepted by the second and third respondents remains a mystery.
In any event, relevant to the present application, is the nature and extent of the correspondence as constituting a bona fide attempt to resolve this action without the necessity for an appearance before this court on the return date of the application.
It seems to me clear that there was an offer to settle the application on the basis that the application for summary dismissal, which I have concluded is without merit, be dismissed, and a sum paid in satisfaction of an alternative claim.
If, as the second and third respondents’ solicitor suggests, that alternative claim had previously been withdrawn, the net effect is that that part of the offer to settle, which involves the withdrawal and dismissal of the application for summary dismissal was not accepted by the second and third respondents.
In response to the application for costs, counsel for the second and third respondents submitted that it was premature for a decision to be made in relation to costs until such time as these reasons for judgment had issued. It was said that it was only when the reasons for judgment issued that a proper assessment could be made as to whether the claim was “wholly unsuccessful”.
I confess to being somewhat mystified by this submission. I indicated clearly in the orders that I made and in comments made in respect of the rejection of the application that the second and third respondents’ application had failed. The reason, expressed simply, is clear enough; it cannot be said, in my view, on the pleading and evidence before me either that the husband does not disclose a cause of action or that any is “doomed to fail”.
Nevertheless, because counsel contends that making an order without access to the reasons would be a failure of due process, I propose to afford the 2nd and 3rd respondents the opportunity to make further written submissions in respect of costs consequent upon the issue of these reasons with an opportunity to the husband to reply.
Obviously enough, those written submissions ought address the issue of whether, in turn, any written submissions with respect to costs ought themselves form part of an order for costs.
I have therefore ordered that the second and third respondents provide any further written submissions by them on the issue of costs by not later than 4.00pm on a date 7 days from the date upon which these reasons for judgment are delivered. I will order that the husband file any further submissions in relation to costs arising from the written submissions of the second and third respondents, if any, by 4.00pm on a date 7 days thereafter.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.
Associate:
Date: 4 December 2008
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