Dusica Moromilov v Dragoslav Vojinovic

[2013] ACTCA 6

DUSICA MOROMILOV v DRAGOSLAV VOJINOVIC
[2013] ACTCA 6 (27 February 2013)

REAL PROPERTY – caveat – equitable interest – application for extension of caveat – lengthy delay – prejudice to defendant.

CIVIL PROCEDURE – discretion to reinstate dismissed proceeding – r 76 Court Procedure Rules 2006 (ACT).

Court Procedures Rules 2006 (ACT), rr 75, 76
Family Provision Act 1969 (ACT)
Limitation Act 1985 (ACT), ss 5(a), 11
Income Tax Assessment Act 1936 (Cth), s 262A(4)

Allen v Tobias (1958) 98 CLR 367
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
University of Wollongong v Metwally [No. 2] (1985) 59 ALJR 481

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 13 - 2011
No. SC 1026 of 2009

Judges:         Higgins CJ, Penfold and Rares JJ
Court of Appeal of the Australian Capital Territory
Date:            27 February 2013

IN THE SUPREME COURT OF THE       )          No. ACTCA 13 - 2011
  )          No. SC 1026 of 2009
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DUSICA MOROMILOV

Appellant

AND:DRAGOSLAV VOJINOVIC

Respondent

ORDER

Judges:  Higgins CJ, Penfold and Rares JJ
Date:  9 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Subject to order 2:

(a) proceedings SC 742 of 2001 be reinstated pursuant to r 76 of the Court Procedure Rules 2006 (ACT); and

(b)   proceedings SC 742 of 2001 be consolidated with proceedings SC 1026 of 2009.

1. Order 1 be stayed from taking effect until 31 May 2012, provided that the stay of order 1 be extended until further order of the Court if the respondent files and serves, on or before 30 May 2012, an affidavit in this appeal, together with written submissions limited to no more than 5 pages, that identifies any reason why it is not in the interest of justice that order 1 have effect.

1. The appeal be allowed.

1. Orders 1, 2 and 3 made by the Master on 1 April 2011 be set aside and in lieu thereof it be ordered that:

(a)    Caveat No 1227080 be extended until 16 May 2012;

(b)  

the plaintiff have leave to file a caveat in the following terms:

“The caveator claims an equitable interest or estate in the Land pursuant to a constructive trust arising from an agreement with Boris Vojinovic”

and upon the plaintiff, by her counsel, having given to the Court of Appeal the usual undertaking as to damages;

(c)    the defendant (Dragoslav Vojinovic) be restrained until further order from dealing in any way with his interest in the land in Block 11 Section 6 Torrens (the Land) or with the Land (including by way of sale, mortgage, lease disposition or increase in sum owed under or secured by any land mortgage or charge, or otherwise create any interest in, the Land);

(d)   The defendant pay the plaintiff’s costs, if any, of the application in the proceeding dated 2 February 2010.

1. The respondent pay the appellant’s costs of the appeal.

IN THE SUPREME COURT OF THE       )          No. ACTCA 13 - 2011
  )          No. SC 1026 of 2009
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DUSICA MOROMILOV

Appellant

AND:DRAGOSLAV VOJINOVIC

Respondent

ORDER

Judges:  Higgins CJ, Penfold and Rares JJ
Date:  20 July 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The stay order of 9 May 2012 be discharged.

2. The application be dismissed.

3. The respondent pay the appellant’s costs.

IN THE SUPREME COURT OF THE       )          No. ACTCA 13 -  2011
  )          No. SC 1026 of 2009
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DUSICA MOROMILOV

Appellant

AND:DRAGOSLAV VOJINOVIC

Respondent

Judges:  Higgins CJ, Penfold and Rares JJ
Date:  27 February 2013
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. On 9 May 2012, the Court made orders allowing this appeal from the decision of the Master made on 1 April 2011 (Moromilov v Vojinovic [2011] ACTSC 54). He had dismissed the appellant’s originating application filed in December 2009 (the 2009 proceedings) seeking an extension of a caveat she had lodged on 21 September 2001 on the title of her former matrimonial home (the land).  The parties had been involved in earlier litigation that the respondent had commenced in November 2001 shortly after the caveat had been filed (the 2001 proceedings).  In the caveat, the appellant “claimed to be entitled to land as a dependent of the deceased previous registered proprietor and that transfer to present registered proprietor is invalid”.  The Court made orders that permitted the appellant to file a further caveat claiming an equitable estate or interest in the land pursuant to constructive trust arising from an agreement with the deceased.  The Court also granted an interlocutory injunction restraining the respondent from dealing with the land and ordered him to pay the costs of the application before the Master.

2. During the hearing before the Master he had indicated to the parties that the 2001 proceedings were still on foot. However, when he delivered his reserved judgment, his Honour said that the effect of r 75 of the Court Procedures Rules 2006 (ACT) was that both the appellant’s counterclaim and the respondent’s claim in those proceedings had been taken to have been struck out in 2003 and his Honour was not prepared to reinstate them under r 76.

3. The Court of Appeal also made an order on 9 May 2012 that the 2001 proceedings be reinstated and consolidated with the 2009 proceedings.  However, that order was stayed for three weeks and the stay was to be extended until further order if the respondent filed an affidavit and written submissions as to why it was not in the interests of justice to order that reinstatement and consolidation.  In the event, the respondent filed, mostly belatedly, a number of affidavits and written submissions.  The respondent’s application to vacate that order was argued on 20 July 2012.  At the conclusion of that hearing we ordered that the stay be discharged and the respondent pay the appellant her further costs incurred in relation to his application.

4. These are our reasons for the orders made on 9 May 2012 and 20 July 2012.

Litigation background

1. The appellant was unrepresented at all times before the Master and remained so until only shortly before the hearing of the appeal when she obtained legal representation pro bono.  The respondent is the son of the appellant’s deceased husband who died on 4 July 2001 (the deceased).

2. On 2 February 2010, the appellant filed an application in the 2009 proceedings seeking an extension of time to bring proceedings, and if granted, relief under the Family Provision Act 1969 (ACT), and an order setting aside transfer of the land dated 29 August 2000 by the deceased to his son.

3. The respondent’s originating application in the 2001 proceedings sought an order for ejectment of the appellant from the land.  The respondent filed a statement of claim in January 2002 that asserted that he was the registered proprietor of the land pursuant to the transfer from the deceased and that the appellant was wrongfully in possession.

4. On 26 February 2002, the appellant’s then solicitors filed a defence.  On 4 March 2002, her solicitors also filed a counter-claim that sought orders that letters of administration of the deceased’s estate be granted to the appellant, that the respondent transfer the land to the appellant as adminstratrix, and that the transfer be set aside, and declarations that:

   (a)the deceased died intestate;

   (b)the transfer was void; and

   (c)the respondent held the land on trust, or constructive trust, for the appellant.

5. The Master found that no further steps had been taken in the 2001 proceedings after the filing of the counter-claim.

Factual background

1. The appellant claimed that the deceased had promised her in 1994 that if she gave up her employment in Serbia and came to live with him in Australia he would look after her for the rest of her life, including by providing her with a house for the rest of her life, and that she would not suffer any detriment from doing so.  She claimed to have acted on these representations by coming here in early 1995, marrying the deceased and thereafter living with and caring for him until his death.

2. The deceased’s signatures on the transfer and his will, each of which was executed while he was in Canberra Hospital receiving treatment for terminal leukaemia, bore no resemblance to the handwriting on what the appellant said had been an example of his signature and writing on a birthday card written to her by the deceased in 1996.  Moreover, the circumstances in which the two documents had been executed raised suspicions as to whether the deceased had capacity to do so.

3. Before the Master the appellant led evidence of a letter dated 29 January 2003 to her former solicitors from Dr Michael Pidcock, the deceased’s treating specialist oncologist.  Dr Pidcock had reviewed the deceased’s patient progress notes between his admission on 4 August 2000 and 22 November 2000 when he had been transferred out of the hospital.  Dr Pidcock said that during that time the deceased received intensive therapy for acute myeloblastic leukaemia.  He had experienced significant infectious complications and bleeding episodes that may have interfered with his ability to express himself and to make clear business decisions.  Dr Pidcock observed that some of the medications given to the deceased would be expected to impair his concentration and cognition and that his periods of physical weakness and pain may have impaired his mental functions.  The doctor said that the deceased’s medications were varied and highly complex, covering 15 documents in his inpatient file, and included morphine, other analgesics and antihistamines, all of which had sedative effects.  The deceased had also received corticosteroids at the time of chemotherapy, which Dr Pidcock said could produce restlessness and euphoria.

4. Dr Pidcock opined that the various drugs with which the deceased had been treated could have impaired his concentration span.  He said that the deceased was suffering from a severe and life threatening illness that may have affected his ability to make rational and carefully considered decisions.  He added that, as a personal observation, the appellant:

   was an exceptionally caring and devoted spouse and was seen to be at his bedside day and night throughout the course of his hospital admission.  I formed the distinct impression that they had a close and loving relationship and it therefore comes to me as a great surprise that [the appellant] appears to have been excluded as a beneficiary of his estate. 

5. Following the filing of the counter-claim in 2002, the litigation between the parties did not progress.  However, their respective positions remained the same.  The appellant continued to live in the former matrimonial home, notwithstanding that the land was registered in the name of the respondent.  He ceased to press for her ejectment.  That situation persisted until 2007 when the appellant took a trip to visit relatives in her native Serbia.  While she was away, the respondent entered the matrimonial home, removed the appellant’s effects, and took up possession.

6. When the appellant returned from Serbia later in 2007 she discovered that she no longer had a home.  She led evidence before the Master that at that time she was destitute and without capacity to seek legal representation.  Although she had been a lawyer in Serbia, she was not familiar with, or qualified to practice, law in this country.  However, the caveat remained in place.  The appellant discovered only in late 2009 that a notice seeking to have the caveat lapse had recently been initiated by the respondent.  That led to her commencing the 2009 proceedings.

The hearing before the Master

1. During the course of argument on 23 April 2010 his Honour told the parties on a number of occasions that he considered the 2001 proceedings were still probably still on foot, the appellant’s counter-claim had never been dealt with and he could not see that it was not still “alive”, although everyone had treated the 2001 proceedings as defunct and nothing had happened in them since early 2002.  His Honour said late in the hearing that the counter-claim had not been dealt with and seemed to raise the issues that the appellant wished to raise.  His Honour told counsel for the respondent that:

   … that counterclaim raises the issues that you’ve talked about here and there it is in an action which is still current before the Court.  It’s a separate action but I direct the two files be kept together. 

2. Counsel replied that he had not been briefed with the 2001 pleadings and had not seen the counter-claim before.  His Honour offered to adjourn but counsel for the respondent did not avail himself of that opportunity.  However, counsel’s complaint had to be understood in the context that the appellant had annexed her counter-claim in the 2001 proceedings to her affidavit sworn 19 December 2009 in support of her originating application in the 2009 proceedings.  Just before his Honour reserved his decision he said of the counter-claim:

   But it’s still there, it’s still on the books and it’s never been taken any further but it hasn’t been dismissed.  So I’ll leave that for both of you to think about as to where it might go next. 

3. The 2001 proceedings, clearly enough, provided a foundation for the appellant’s claim to extend the caveat, after she became aware of the respondent’s attempts to have it removed in late 2009. At no point during the course of the hearing, or after his Honour reserved judgment, did he inform the parties that he considered that by reason of r 75 both the respondent’s claim and the appellant’s counter-claim were taken to have been struck out at the end of one year after the last step taken in the 2001 proceedings: i.e. as from about March 2003.

The Master’s judgment

1. But that is what the Master concluded in his reasons for judgment. There, his Honour referred to r 76(2). That gave the Court a discretion to reinstate proceedings that have been deemed to be struck out by force of r 75, if it is in the interests of justice to do so. He noted that neither party had made such an application. Having regard to his Honour’s statements during the course of the hearing, the absence of such an application was hardly surprising.

2. The Master held that it would only be in the most extraordinary of circumstances that the Court would contemplate reinstating an action had that had been struck out by operation of the Rules and that a compelling explanation for the delay needed to be forthcoming. He said that the only point in further extending the caveat would be to preserve the status quo pending the determination of the application to set aside the transfer and that no proper or formal application for such an order had been made ([20] - [21]).

3. His Honour held that to allow the proceedings to go to trial now would impose inevitable prejudice on the defendant.  He observed that no order seeking to set aside the transfer of the land had been sought until the filing of the appellant’s interlocutory application in February 2010, more than nine years after its execution.

4. His Honour, however, overlooked the prayers for relief in the counter-claim that the transfer be declared void ab initio and that the present respondent held the land on trust for the deceased.

5. His Honour referred to the default limitation period of six years under s 11 of the Limitation Act 1985 (ACT). He did not refer to s 5(a) of that Act. That section provided that nothing in the Act applied to a cause of action to recover land or an estate or interest in land or to enforce an equitable estate or interest in land. It was clearly arguable that the appellant sought relief in the counter-claim to enforce an equitable estate or interest by claiming that the respondent held the land on constructive trust for her by reason of the deceased’s promises to her inducing her to join him in Australia.

6. His Honour referred to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and said that he was satisfied that an extension of the limitation period would be likely to cause actual prejudice to the respondent. He said it would be inevitable that the recollection of prospective witnesses, including those who had witnessed the signing of the will and transfer, would have faded. He said that unless the transfer were set aside, there was no practical point in pursuing a challenge to the will or making any claim under the Family Provision Act regardless of limitation issues.

7. His Honour observed that, although he had not received any evidence from the respondent, he appeared to have treated his stepmother shabbily, without compassion or generosity of spirit.  His Honour held that the 2001 proceedings had been struck out and that he had to dismiss the 2009 proceedings.

The appeal

1. At the hearing of the appeal the appellant was represented.  The real issues between the parties had been squarely raised in the 2001 proceedings and re-agitated by the 2009 application.  The respondent put no evidence before the Master or the Court of Appeal to suggest that he had suffered any prejudice at all, and only pointed to presumptive prejudice from the passing of time.  During the course of the hearing of the appeal counsel for the respondent, who had also appeared below, again asserted that the respondent was prejudiced by delay.

2. It became clear during argument before us that the interest claimed in the caveat was not sufficiently expressed to identify a caveatable interest.

3. Both sides had been told by his Honour several times during the hearing that the 2001 proceedings were still on foot and that the counter-claim remained before the Court to be heard and determined. It appears that during the period in which judgment was reserved, his Honour had regard to rr 75 and 76 and to considerations of prejudice. In those circumstances his Honour’s dismissal of the 2009 proceedings, on the basis that the 2001 proceedings had been struck out, was a denial of natural justice to the appellant.

4. While it may be taken that some prejudice inevitably flows from a delay in seeking relief, prejudice in this case was not occasioned simply by the appellant’s inaction.  Both parties did nothing in the 2001 proceedings once the appellant had raised her counter-claim to an interest in the land.  That claim was supported by contemporaneous evidence that suggested that she could establish an equitable interest in the land arising from the deceased’s representations to her as well as that the will in the respondent’s favour and the transfer to him had been executed by the deceased in circumstances that showed that the appellant had a reasonably arguable case for the other relief she had sought in the counter-claim.

5. The appellant remained in occupation of the matrimonial home for a further five years after her counter-claim was filed.  There was no explanation by the respondent before his Honour or the Court of Appeal of why he had not proceeded with his ejectment claim.  In light of the allegations the appellant had raised in the counter-claim, the natural inference to be drawn from that inaction was that the respondent feared to litigate her claim at that time.  Rather, when the appellant left Australia to travel to Serbia in 2007, the respondent took matters into his own hands and evicted her from the home in which he had allowed her to live for the previous five years following her filing of the counter-claim.

6. The respondent was fully on notice of the appellant’s reliance on the counter-claim during the hearing before the Master.  However, despite being legally represented, and, so, conversant with the Rules, the respondent did not take the point that the 2001 proceedings were not on foot.  Nor did he lead any evidence of actual prejudice, were the appellant to be allowed to litigate her 2009 proceedings on the basis of her pleaded counter-claim in the earlier 2001 proceedings and the evidence she put before the Master.

1. The appellant explained in evidence that the reason for her inaction was her destitute circumstances.  Moreover, since the respondent had not pursued his claim to eject her, it was understandable that the appellant did not see the need to incur the expense of a fully contested case.

2. The Master decided the issue of whether it would be in the interests of justice to permit the 2001 proceedings to be reinstated against the appellant without any evidence of actual prejudice from the respondent.  Moreover, while the legally represented respondent was on notice at the hearing that his Honour considered, then, that the 2001 proceedings were on foot, the respondent did not seek an adjournment or an opportunity to lead evidence of actual prejudice, having also elected not to do so prior to the hearing before the Master.  Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ said in University of Wollongong v Metwally [No. 2] (1985) 59 ALJR 481 at 483:

   It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

3. It was striking that the respondent had not put any evidence before the Court to deal with his own conduct or ability to conduct a defence of the 2009 proceedings, let alone the 2001 proceedings.  The appellant’s evidence before the Master established that she had a reasonably arguable case of an equitable interest in the land based on the deceased’s representations and also on an intestacy, as the surviving spouse, if the transfer were void.  The respondent chose to fight the proceedings below without adducing any evidence of actual prejudice.  The appellant explained her financial difficulties, which inhibited her prosecuting any proceedings after she had been ejected in 2007 until 2009.

4. Prior to ejecting her while she was overseas, the respondent would have had to prosecute his claim in the 2001 proceedings to achieve his ends.  He was aware of the problems that would confront him in meeting the appellant’s clearly pleaded 2002 counter-claim from when it was filed.  Given that he was from that time aware of the evidence he needed to fight her claim, it is difficult to see what prejudice he suffered by both parties letting lie the sleeping dogs of their respective cases in the 2001 proceedings.  It was only because the respondent acted outside that litigation and while the appellant was away that he turned the tables on her.  It can be inferred that he was aware of her financial circumstances.  Once again, he took two more years before seeking, in late 2009, to set in train proceedings for removal of her caveat.  When he did, she responded by bringing the second action.  He gave no explanation for this delay.  He could be expected to have anticipated that she would react but he did not explain how he was prejudiced when she did.

5. It appeared to us that, while the caveat was bad in form, there was sufficient evidence to support the appellant’s claims for a constructive trust and for the transfer to be set aside, on the basis that the appellant’s counter-claim were treated as a pleading, to justify the orders sought in the 2009 proceedings. 

6. Neither party had had any opportunity before the Master to deal with the question of whether the 2001 proceedings should be reinstated under r 76(2). The Court of Appeal ordered on 9 May 2012 that they be reinstated and consolidated with the 2009 proceedings but stayed that order taking effect until 31 May 2012. The Court ordered that the stay would be extended if the respondent filed and served on or before 30 May 2012 an affidavit in the appeal together with written submissions limited to no more than five pages that identified any reason why it was not in the interests of justice that the reinstatement and consolidation order have effect for the purposes of r 76(2). That was to give the respondent an opportunity to have the Court resolve whether, despite the continuation of the 2009 proceedings, the 2001 proceedings should be treated as struck out or allowed to proceed, since the 2009 proceedings would raise the same issues.

The subsequent application that the r 76 order be vacated

1. The respondent filed a number of affidavits, and made barely intelligible written and oral submissions, in support of his application to vacate the orders we made on 9 May 2012 that the 2001 proceedings be reinstated and consolidated with the 2009 proceedings.

2. In essence, the affidavit evidence demonstrated that the attesting witnesses to the deceased’s execution of the transfer and his will had either made statements relatively contemporaneously or had a sufficient recollection of the events to indicate that the respondent would not suffer any substantive prejudice from having to deal with the 2001 proceedings.

3. It is important to bear in mind that the underlying substance of the 2009 proceedings had been raised and was very largely duplicated in the 2001 proceedings.  That was why the Court considered, when making all the orders of 9 May 2012, that the 2001 proceedings should be reinstated and consolidated, unless the respondent could show some particular reason in relation to the 2001 proceedings why that ought not occur.  In other words, the issues and factual substratum in both proceedings were essentially common and on 9 May 2012 no harm or prejudice to the respondent was apparent to the Court were the 2001 proceedings to go to trial with the 2009 proceedings.  The respondent’s evidence and arguments, to the extent that they were intelligible, confirmed that this was so. 

4. The respondent contended that he had lost the opportunity of proving that the 2001 proceedings and the underlying dispute between him and his step-mother might have been resolved in about 2004.  The respondent asserted that this was because he, his wife and other relevant witnesses had forgotten whether a supposed undocumented settlement agreement was reached and what its unspecified terms might have been.  Whatever that supposed agreement may have been, it did not result in any orders being made in the 2001 proceedings.  Its existence was completely inconsistent with the parties’ conduct up to 2007 when the respondent took matters into his own hands after the appellant left for Serbia.

5. This highly dubious and improbable scenario also entirely eschewed the fundamental problem that the very same issues and claims made by the appellant in the 2009 proceedings, which will proceed to trial in any event, were made by her in the 2001 proceedings.  The respondent could not even identify what supposed resolution of the 2001 proceedings might have occurred.  Thus this argument, which would also have been a complete answer to the 2009 proceedings, had not a scintilla of substance.  The time of the Court should not have been taken up by it.

6. Next, the respondent argued that allowing the 2001 proceedings to continue would be emotionally cruel to him.  That argument had no legal foundation.  He then contended that it would be difficult for witnesses to recall the historical events.  That argument simply failed to engage with the problem that those events were already raised by the 2009 proceedings and had to be faced there.

7. The respondent relied on his own asserted impecuniosity as another basis for opposing reinstatement and consolidation of the 2001 proceedings.  That argument ignored the reality that, first, he was locked into the 2009 proceedings in any case and, secondly, the appellant had done nothing to bring about his asserted financial position.

8. Next, the respondent asserted that he had no financial records to prove his financial circumstances, including his own contributions to maintaining the mortgage over the land.  That argument suffered from the obvious problem that the 2001 proceedings, to which those financial records were always relevant and in which they were therefore discoverable, had never resolved.  Of course, those records were also discoverable in the 2009 proceedings.

9. The respondent also had to maintain his financial records of his business dealings for at least five years under s 262A(4) of the Income Tax Assessment Act 1936 (Cth), he having used the mortgage over the land as security for his commercial property development activities. It was highly improbable that the respondent did not have any bank statements or tax returns, let alone any means of access to copies of such documents, for any part of the period since he took the transfer in 2000. If he has destroyed or failed to keep his financial records, particularly in light of the existence of both the 2001 and 2009 proceedings, he will suffer the ordinary forensic consequence of that conduct indentified in Allen v Tobias (1958) 98 CLR 367 at 375 per Dixon CJ, McTiernan and Williams JJ.

10. Last, the respondent argued that the appellant was guilty of laches.  Once again, that argument was devoid of merit.  First, it ignored the problem of the substantial overlap between the 2001 and 2009 proceedings.  Secondly, the appellant had explained that her inaction between her eviction in 2007 and her institution of proceedings in 2009 was due to her impecuniosity.  Moreover, the respondent was unable to articulate any way in which he acted to his detriment as a result of the appellant’s short delay.

11. For these reasons we concluded that the respondent’s opposition to the reinstatement and consolidation of the 2001 proceedings was without substance. The respondent’s application was dismissed and we discharged order 2 (the stay order) made on 9 May 2012. As a result, order 1 made on 9 May 2012 took effect.  We ordered the respondent to pay the appellant’s costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:     27 February 2013

Counsel for the Appellant:  Ms J Stuckey-Clarke
Solicitor for the Appellant:  Nicholl & Co
Counsel for the Respondent:  Mr C Ryan
Solicitor for the Respondent:  Lander & Co
Date of hearing:  9 May, 20 July 2012
Date of Orders:  9 May, 20 July 2012
Reasons for judgment:  27 February 2013