Feinster & Feinster and Anor
[2006] FamCA 232
•11 APRIL 2007
FAMILY COURT OF AUSTRALIA
| WILLIAMS & WILLIAMS | [2007] FamCA 313 |
| FAMILY LAW - APPEAL – Property settlement – Contributions – 10 year relationship – Husband sought a greater acknowledgment of his contribution to the asset pool – Husband’s contribution of a property and farming business conducted thereat substantially increased in value since commencement of cohabitation – Whilst it was valid to look at the worth of contribution as at the date of the trial rather than it’s initial value, consideration of other contributions, a lack of evidence attributing increase in value to forces other than the mutual effort of the parties, and the inclusion of the wife’s assets in the asset pool that had also increased in value meant that the weight given to the husband’s contributions at 57.5% to the wife’s 42.5% was not outside an acceptable range. |
| Family Law Act 1975 (Cth) Property (Relationships) Act (1984) NSW |
Bilous v Mudaliar (2006) 35 Fam LR 55
Bremner v Bremner (1995) FLC 92-560; (1994) 18 Fam LR 407
Clauson v Clauson (1995) FLC 92-595; (1995) 18 Fam LR 693
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716; (1979) 5 Fam LR 719
House v The King (1936) 55 CLR 499
Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169
Kardos v Sarbutt (2006) 34 Fam LR 550
Money v Money (1994) FLC 92-485; (1994) 17 Fam LR 814
Pierce v Pierce (1999) FLC 92-844; (1998) 24 Fam LR 377
| APPELLANT: | MR W |
| RESPONDENT: | MS W |
| FILE NUMBER: | NCF | 680 | of | 2004 |
| APPEAL NUMBER: | EA | 34 | of | 2006 |
| DATE DELIVERED: | 11 APRIL 2007 |
| PLACE DELIVERED: | SYDNEY |
| JUDGMENT OF: | KAY, COLEMAN & STEVENSON JJ |
| HEARING DATE: | 29 MARCH 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 FEBRUARY 2006 |
| LOWER COURT MNC: | [2006] FamCA 208 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | MR PAGE, SENIOR COUNSEL |
| SOLICITORS FOR THE APPELLANT: | BOYD OLSEN LAWYERS |
| COUNSEL FOR THE RESPONDENT: | MR BATEY WITH MR LEVY |
| SOLICITORS FOR THE RESPONDENT: | MULLANE & LINDSAY |
Orders
The appeal is dismissed.
The appellant pay the respondent’s costs of the appeal as agreed or failing agreement as assessed.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Williams v Williams.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT |
Appeal Number: EA 34 of 2006
File Number: NCF 680 of 2004
| MR W |
Appellant
And
| MS W |
Respondent
REASONS FOR JUDGMENT
This is the husband’s appeal against orders made by Watts J in property proceedings on 24 February 2006. The effect of the orders was to divide an asset pool worth approximately $3.7 million as to 57½ per cent to the husband and 42½ to the wife.
In his Notice of Appeal the husband seeks orders that would increase his share of the asset pool by a further 10 per cent or $367,950. In his oral submissions Mr Page SC on behalf of the appellant urged us to re-exercise the discretion in his client’s favour so that his client received 75 per cent of the pool of assets although he conceded that an order that saw his client receive 65 per cent of the pool of assets would be within a range of results that would be immune from appellate interference.
The husband’s case on appeal was entirely focussed on the amount that the trial judge ought to have allowed him for the contributions that he made towards the pool of assets available for division between the parties.
Background
Each of the parties was born in 1950. They commenced to cohabit in August 1992, married in July 1999, separated under the one roof in May 2003, finally separating in February 2004. The marriage was dissolved in January 2005.
Throughout the marriage they lived at a property at A. It was a property that had previously been occupied by both the husband’s father and his grandfather.
The pool of assets available for division was determined by the trial judge to be as follows:
Asset
1.
M Pty Ltd
$72,972.00
2.
P Pty Ltd
297,503.00
3.
Wife’s loan account in P Pty Ltd
148,456.00
4.
Wife’s loan account with W P Pty Ltd
15,000.00
5.
Wife’s funds at bank
11,706.00
6.
Balance of CBA joint accounts after Order of JR Johnston
471,000.00
7.
Husband’s bank accounts
173,328.00
8.
Wife’s share portfolio
64,727.00
9.
Husband’s share portfolio
24,716.00
10.
1997 Mitsubishi
6,000.00
11.
Household contents
10,000.00
12
12 year old power boat
18,000.00
13.
Wife’s jewellery
2,000.00
14.
Husband’s daughters loan
16,000.00
15.
Interest in Macquarie Investment
79,542.00
Add backs
16.
Proceeds of sale of stock, plant & equipment at C and A
Nil
17.
Add back payment to wife
1,000,000.00
18.
Add back payment to husband
1,000,000.00
19.
Wife’s paid legal fees
18,531.00
20.
Husband’s paid legal fees
20,043.00
21.
TOTAL PROPERTY
$3,449,524.00
Superannuation
22.
Wife’s ABN Amro Morgan
58,059.00
23.
Husband’s superannuation
221,918.00
24.
TOTAL ASSETS
$3,729,501.00
Less liabilities
25.
Wife’s Visa card debt
Nil
26.
Wife’s legal fees
Nil
27.
Wife’s loan from P Pty Ltd
50,000.00
28.
M Pty Ltd taxation
Nil
29.
M Pty Ltd accountant fees
Nil
30.
TOTAL LIABILITIES
$50,000.00
31.
NET ASSETS
$3,679,501.00
At the commencement of cohabitation the husband owned a property at A. He and his father had owned the shares in a company known as M Pty Ltd. The company leased the A property and ran a primary production business. There were three production sheds on the property. The farm and the sheds including the contracts attached thereto were valued at the commencement of cohabitation at $940,000. The husband’s assets at the date of commencement of cohabitation were found by the trial judge to be as follows:
Assets
The A property (with buildings and associated contracts)
$940,000.00
Mercantile Mutual superannuation
37,500.00
Value that the husband had in M Pty Ltd
46,558.00
Boat
28,000.00
$1,052,058.00
Liabilities
Loan to father
($100,000.00)
Personal mortgage
(50-100,000.00)
$852,058.00 - $902,058.00
It was submitted to us (apparently correctly) that the value attributed to the husband’s shareholding in M Pty Ltd assumed a 100 per cent share holding in the company whereas the evidence disclosed that the husband’s father owned half the shares. There was no cross appeal and ultimately nothing appeared to turn upon that error.
It is convenient to note at this point that in 2004 the A property was sold and the parties received a gross sum of $1.7million for the sale of the real estate and $1million for the sale of the business conducted on the property. We will return to the significance of that sale later in the course of these reasons.
At the commencement of cohabitation the wife owned a property at E. It was sold shortly after cohabitation for a net sum of $76,574. That sum, together with inheritances and gifts that the wife received during the period of cohabitation led to a finding by the trial judge, unchallenged before us, that the direct financial contribution made by the wife toward the joint and several assets of the parties during the period of cohabitation from outside sources was approximately $674,200.
In November 1992 the wife set up a company called P Pty Ltd. A large proportion of the monies received by the wife from external sources was applied by her to buy assets for P Pty Ltd.
At the commencement of cohabitation the wife came to live at the A property with her two children from a previous marriage, then aged 9 and 7.
Shortly after cohabitation commenced the A property was expanded from 160 acres to 180 acres. The extra acreage cost slightly in excess of $45,000. At the commencement of cohabitation the husband had ran about 60 head of cattle on the property. Subsequently the parties developed a cattle stud on the property assisted by the wife’s daughter S and an employee of M Pty Ltd.
In 1993 the primary production capacity of the farm was expanded, two new sheds were built. In 2002 three of the original sheds were completely renovated. In 1996 the living quarters at A were refurbished. Between 1999 and 2000 a new homestead was built on A.
In 2002 the parties jointly purchased a property (the C property) for $540,000 of which $532,000 was borrowed from the Commonwealth Bank. The C property was used to expand the cattle stud.
The trial judge found that the wife did virtually all of the washing of clothes, ironing of clothes and purchasing of clothing, purchasing of groceries and cooking. She was assisted by a housekeeper with some of those duties including cleaning and ironing up to five or six hours a week. She took over the paperwork and accounting for the business. She played a role in arrangement finance from time to time for the activities associated with A, the construction of the new home on A and the acquisition of the C property.
Judgment
After setting out the background, resolving disputes about the size of the asset pool and making observations of the evidence of the parties and their various witnesses as to the contributions each of them made during the course of cohabitation, the trial judge continued under the heading “Conclusions in relation to contributions”. He said:
134.The husband submits that what he had at the commencement is significant and that significance is evidenced by:-
134.1The ability of the parties to borrow for the purposes of building a new home in 1999;
134.2The ability to borrow for the purchase of [the C property] in June 2002;
134.3The ability to borrow to allow the expansion of the business to be carried on by the company on the husband’s property in 1998;
134.4The ability to expand investments into public company shares throughout the course of the cohabitation;
134.5The ability provided to the wife by the security of accommodation an income to fulfil her wish to maintain her inheritances, gifts and investments as her own property independent of that of the husband;
134.6The provision to the parties and the children of the wife rent free accommodation and the provision of income to both the wife and the children of the wife.
135.The husband submits that in contrast the wife used some of her inheritance to make a contribution towards the construction of a new home on [the A property] in 1999.
….
137.It was submitted by Counsel for the husband that apart from contributions outside the marriage the contributions of the parties during the cohabitation and during the separation are equal.
138.The husband asserts that he made a greater contribution towards the financial wealth generated by the parties during the cohabitation. He was the person primarily responsible for the physical day to day slog of growing the chickens. He agrees the wife did assist in organising the paperwork in relation to the chicken growing business.
139.There is a concession that the wife made a greater contribution in the role of homemaker and towards the rebuilding of the new house.
140.I find that both during the period of the cohabitation, both parties made equal direct and indirect contributions from their own personal efforts (as opposed to contribution provided by initial capital or from capital introduced).
141.Both parties agree that nothing in the period post separation warranted any further adjustment in relation to contributions.
His Honour then made reference to three earlier decisions of the Court, namely Bremner v Bremner (1995) FLC 92-560; (1994) 18 Fam LR 407, Pierce v Pierce (1999) FLC 92-844; (1998) Fam LR 377, and Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169. He concluded:
146. In assessing the respective contributions in this case, and putting an appropriate weight on the capital introduced by both parties, and at the same bringing into consideration the myriad of other contributions each made in the course of their relationship (and excluding at this point contributions made by the husband in support of her children), I am of the view that the contributions of each party were as to 55% by the husband and 45% by the wife.
His Honour then turned to considering of the balance of relevant s 79(4) factors and concluded that it would be appropriate to make a further adjustment of 2½ per cent of the pool of assets in favour of the husband because of the contributions the husband had made towards the upkeep of the wife’s children. His Honour concluded that an overall adjustment that saw the husband receive the first 15 per cent of the pool of assets or approximately $550,000 more than the wife would adequately represent the disparity in contributions as found by him.
The appeal
Whilst the Notice of Appeal contains two grounds, Mr Page on behalf of the husband sought to argue only one ground submitting that the trial judge had given manifestly inadequate weight to the contributions of the appellant and had seriously undervalued them.
In support of the proposition that the husband’s contributions to the pool of assets had been significantly undervalued Mr Page took us to a series of recent decisions of the NSW Court of Appeal in claims that fell to be determined pursuant to the provisions of s 20 of the Property (Relationships) Act (1984) NSW. That legislation concerns claims between parties who have never been married seeking to adjust their interest with respect to their property. The legislation requires the court:
…to make such order adjusting interests of the parties in the property as to it seems just and equitable having regard to
(a)the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or the financial resources of the parties or either of them; and,
(b)the contributions, including any contributions made in a capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and or one or more of the following namely:
(i)a child of the parties;
(ii)a child accepted by the parties or either of them into the household of the parties, whether or not the child is either of the parties.
The legislation is similar to but not identical with s 79 of the Family Law Act 1975 (Cth) (“the Act”) that (in so far as is relevant) provides as follows:
Alteration of property interests
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; …
…
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
…
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage … to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
…
75 (2) The matters to be so taken into account are:
…
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account…
In Kardos v Sarbutt (2006) 34 Fam LR 550 the parties had lived together for three years. There were no children of their relationship. At the commencement of the relationship the appellant owned real estate worth $290,000 which at the time of trial was worth $683,500. The respondent owned real estate at the commencement of the relationship worth $241,000 which at the time of the hearing was worth $405,400. During the course of the relationship the appellant had earned $190,000 while the respondent had earned $110,000. At the trial each received a return of their initial capital and otherwise shared equally in the combined capital growth, subject to a minor allowance for the fact that one of the parties had provided the use of her house as the parties’ joint residence.
The Court of Appeal (Basten JA, Hunt AJA and Brereton J) allowed an appeal by Ms Kardos and reduced the amount payable by her from $100,000 to $36,000. In so doing the court said that to give due weight to the relative contributions of the parties it was appropriate to recognise that capital gains are often the product of the initial introduction of property rather than of ongoing contributions. It was said that increments in capital value of an asset held at the outside of a relationship were not part of the fruits of the relationship but arose as a result of the asset having been held by one of the parties at the commencement of the relationship and not the result of the joint efforts of wage earning, homemaking and parenting and mutual support. Brereton J said at [61]:
If one party has a house worth $250,000 at the outset and it appreciates during the relationship to be worth $750,000, the contribution is of a house which at separation is worth $750,000 – not of money worth $250,000.
In a later decision a differently constituted Court of Appeal in Bilous v Mudaliar (2006) 35 Fam LR 55 Ipp JA with whom Giles and McColl JJA agreed was careful to limit the effect of what had been said by Brereton J in Kardos v Sarbutt. Bilous v Mudaliar was a case that involved claims arising out of an 11 year relationship. The pool of assets was $1.7million. The trial judge had awarded the male partner 20 per cent of the available pool of assets. The Court of Appeal increased his share by a further $200,000. When commenting of the views of Brereton J in Kardos, Ipp JA said at [62] – [63]:
… His Honour appears to have stated a rule to the effect that, for the purposes of determining what order should be made under s 20(1) of the Property Relationships Act, any increase in value in assets initially contributed should be regarded, in all circumstances, as entirely a contribution by the party who contributed those assets. If that’s what his Honour intended, I do not agree.
Determinations as to what order should be made under s 20 are to be made solely on the grounds of the justice and equity of the case. The justice and equity of the case may derive from the fact that the party who owns the family home or other party was able to retain that property, while the market value increased, because “of joint efforts of wage earning, homemaking and parenting, and mutual support”. In some instances the non-financial contributions of one party may result in property of the kind in question not having to be sold. In other instances, the non-financial contributions of one partner may allow the other to advance his or her career and earn a high income that enables the property in question to be maintained and retained. Thus, an increment in capital value may well result, indirectly, from joint efforts of wage earning, homemaking and parenting and mutual support.
We think that there is force in the proposition that a reference to the value of an item as at the date of the commencement of cohabitation without reference to its value to the parties at the time it was realised or its value to the parties at the time of trial, if still intact, may not give adequate recognition to the importance of its contribution to the pool of assets ultimately available for distribution towards the parties. Thus where the pool of assets available for distribution between the parties consists of say an investment portfolio or a block of land or a painting that has risen significantly in value as a result of market forces, it is appropriate to give recognition to its value at the time of hearing or the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in so doing it is equally as important to give recognition to the myriad of other contributions that each of the parties has made during the course of their relationship.
In Pierce v Pierce when speaking of the relevance to be paid to initial contributions the Full Court (Ellis, Baker and O’Ryan JJ) referred to Fogarty J in Money v Money (1994) FLC 92-485 at 81,054; (1994) 17 Fam LR 814 at 816:
…respective contributions of the parties over a long period of marriage “offset” the significance which might otherwise be attached to a greater initial contribution by one party…ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be latter factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.
The Full Court (Ellis, Baker and O’Ryan JJ) then said at [28]:
In our opinion it is … a question of what weight is to be attached, in all the circumstances, to the initial contributions. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
Pierce v Pierce was a case in which the husband brought in $200,000 cash into the relationship. He applied that money towards the purchase of a matrimonial home. He was employed throughout the marriage and supported the wife who, whilst in some paid employment primarily attended to domestic tasks and taking care of the children. The Full Court assessed the parties’ respective contributions to a pool of $320,000 as 70 per cent in favour of the husband and 30 per cent in favour of the wife at the end of a 10 year relationship.
When the property at A was sold the nett proceeds of sale after payment of debts were acknowledged by Mr Page to be approximately $1,900,000. He submitted to us that $580,000 of the $1 million growth in the value of the property during the course of the parties’ relationship could reasonably be attributed to improvements to the property financed by both of the parties but that a balance of $450,000 ought to have been credited to the husband as attributable to growth in the value of the asset that he introduced into the relationship. The trial judge made no findings about who if anybody should get credit for the improvement in the value of the parties’ assets beyond describing their value at the commencement of the proceedings, describing their value at the conclusion of the proceedings, and describing the contributions that each of the parties had made to the course of their relationship. He then reached his assessment that the appropriate capital division based on contributions should be 55:45 in favour of the husband.
Mr Batey on behalf of the wife submitted that it would be inappropriate for the Appeal Court to be critical of the trial judge’s approach to the matter. There was no evidence that could attribute the capital growth in the value of the husband’s asset simply to market forces. The property had been significantly developed during the course of the relationship. It had grown in size. The primary production had been increased from three sheds to five sheds. A new home had been built on the property at a cost of $400,000. How much of the growth in the parties’ asset pool could be attributed to the husband’s contributions when compared to the wife’s contributions was a matter peculiarly within the discretion of the trial judge and it was submitted no error had been demonstrated as to the manner in which the trial judge approached his task.
In Hunt v Zuryn (2005) FLC 93-226; (2005) 34 Fam LR 169 the Full Court (Kay, May and Boland JJ) allowed an appeal in a property case where a pool of assets of $1.12million had been assessed for contribution purposes as 75 per cent in favour of the husband and 25 per cent in favour of the wife. The Court in allowing the appeal indicated that an assessment of 75:25 fell outside the realms of an acceptable range saying at 79,730; 170:
Such an assessment ought adequately recognise that much of the parties’ wealth can be attributed to the capital growth in the assets introduced by the husband at the commencement of the marriage but at the same time bringing into consideration a myriad of other contributions each made in the course of their relationship.
Appellate principles
This was a discretionary judgment. The circumstances in which the Full Court should interfere with a discretionary judgment are well known. In Gronow v Gronow (1979) 144 CLR 513 at 519; (1979) FLC 90-716 at 78,848; (1979) 5 Fam LR 719 at 722 Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
In House v The King (1936) 55 CLR 499, at 504 - 505, Dixon, Evatt and McTiernan JJ. said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Clauson v Clauson (1995) FLC 92-595 at 81,909; (1995) 18 Fam LR 693 at 707 the Full Court said:
Section 79 grants to the trial Judge a very wide discretion: see generally De Winter and De Winter (1979) FLC ¶90-605 at 78,092 per Gibbs J; Mallett v Mallett (1984) FLC ¶91-507 at 79,110; (1984) 156 CLR 605 at 608; Norbis v Norbis (1986) FLC ¶91-712; (1986) 161 CLR 513, and the discussion of this aspect in Ferraro, supra, at 79,565-6.
That being so, the limited nature of the appeal process must be recognized, as the numerous authorities in relation to the appellate review of discretionary orders demonstrate: see, for example, House v The King (1936) 55 CLR 499 at 505; Lovell v Lovell (1950) 81 CLR 513-519; Gronow v Gronow (1979) FLC ¶90-716; (1979) 144 CLR 513; Mallett, supra, at 79,111 and 79,119, and Ferraro, supra, at 79,556.
In the absence of an error in approach or principle, the failure to take into account relevant circumstances, or the taking into account of irrelevant circumstances, the challenge must be that the orders fell outside a reasonable exercise of discretion, that is, that the orders were “unreasonable or plainly unjust''.
In its widest formulation the discretion and its immunity from challenge was described by Brennan J in Norbis, supra, at FLC 75,178; CLR 540 in relation to the decision of the Court of Appeal in Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343 at 345 as:
“The ‘generous ambit within which reasonable disagreement is possible' is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.''
Conclusion
In this case whilst it remains arguable that the trial judge did not give ample weight to the husband’s contributions when measured not in terms of their initial value but in terms of their ultimate value to the parties, given the myriad of other contributions identified by the trial judge, the lack of evidence that would point clearly to the growth in the asset being attributed to forces other than the mutual effort of the parties and taking into account that similar gains made to the wife’s investments have been left in the pool of assets, we cannot say that this case falls outside of the acceptable range that would make it appropriate for the Full Court to interfere. Accordingly the appeal is dismissed.
Costs
Given that the appellant has been wholly unsuccessful, we think it appropriate the he pay the respondent’s costs of the appeal as agreed or failing agreement as assessed.
I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court
Associate:
Date: 11 April 2007
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