Floyd v Floyd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2021 04346

PENELOPE JANE FLOYD	1^stplaintiff
JASON PAUL TROMPF	2^nd plaintiff
v
MERILYN RUBY FLOYD (IN HER OWN RIGHT AND AS TRUSTEE OF THE F.E.S. SUPERANNUATION FUND (ABN 42 432 634 076)) AND OTHERS	Defendants

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2023
DATE OF JUDGMENT:	6 March 2023
CASE MAY BE CITED AS:	Floyd v Floyd
MEDIUM NEUTRAL CITATION:	[2023] VSC 115

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CONTRACT – Construction of terms of settlement – Correspondence between parties to settle proceeding.

COSTS – Costs of a related proceeding – Meaning of “incidental to” – Supreme Court Act 1986 (Vic), s 24 – Proceeding dismissed with no order as to costs.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	D Clough	Macpherson Kelley
For the defendants	I Percy	King & Collins

HIS HONOUR:

IntroductionA.

A.1 Background

This judgment is confined to a question concerning costs. Before identifying the specific issue involved, some background should be referred to.
As has been explained in more detail previously,[1] on 5 September 2022, the trial of this proceeding (“the Main Proceeding”) commenced between Penelope Floyd (“Penny”) and Jason Trompf (“Jason”) as plaintiffs, and Merilyn Floyd (“Merilyn”), Robert Floyd (“Robert”) and Northgate Park Pty Ltd (“Northgate”) as defendants (“the Present Owners”).[2] Northgate was sued in its own right and as trustee of the Floyd family trust (“the Family Trust”).
[1]Northgate Park Pty Ltd v Floyd [2022] VSC 783, [1]-[5].
[2]Merilyn and Robert are the directors of Northgate.
Penny is the daughter of Merilyn and Robert. Jason is her husband. Penny’s only sibling is her sister Jodi Floyd (“Jodi”), who is approximately 2 years younger than her. Jodi is not a party to the Main Proceeding.
The Main Proceeding involved an acrimonious and long-running family dispute in which Penny and Jason were pitted against Merilyn and Robert. Jodi supported the position of Merilyn and Robert. Very broadly, Penny and Jason alleged a right to farming property held in the name of Northgate in its capacity as trustee of the Family Trust, amongst other things. It was alleged that this right arose from, amongst other things, a promise that was said to have been made by Merilyn and Robert to both Penny and Jason in 1995 (“the Promise”).
On the first 2 days of the trial, both the plaintiffs and the Present Owners opened their respective cases. Towards the end of the second day, counsel for the Present Owners informed the court that it appeared the operative documentation with respect to the Family Trust was not the 2 trust deeds in the court book (“the Later Deeds”),[3] but rather was an earlier deed executed in 1991 (“the Original Deed”). The court was told that the whereabouts of the Original Deed were unknown.
[3]The Later Deeds were executed together on 24 February 2015.
Thus, the court was alerted to new issues; namely, (1) whether the existence of the Family Trust could be established and, (2) if so, under what terms (if any could be proven) Northgate was obligated to perform its role as trustee of the Family Trust, or whether the Family Trust would instead fail for uncertainty. These issues included the question of what effect and operation, if any, the Later Deeds had with respect to the Family Trust.
For reasons also explained previously,[4] the trial was adjourned so that the issues identified above could be resolved. A separate proceeding was commenced by the Present Owners (“the Advice Proceeding”). In addition to Penny and Jason, Jodi was joined as a defendant, but not because of any issue between her and her parents.[5] The grandchildren of Merilyn and Robert (being 4 children of Penny and Jason and 2 children of Jodi) were also represented in the Advice Proceeding (“the Grandchildren”). All parties accept that the Main Proceeding and the Advice Proceeding are properly described as “related proceedings”.
[4]Northgate Park Pty Ltd v Floyd [2022] VSC 783, [6]-[8].
[5]More recently, Jodi has been appointed as litigation guardian for Merilyn as evidence was adduced of concerns relating to Merilyn’s capacity to properly give instructions.
Before the issues in the Advice Proceeding could be heard, time was needed to put the relevant evidence before the court. As things unfolded, the Present Owners decided to amend the relief they sought in the Advice Proceeding. By an amended originating motion originally dated 29 September 2022 and filed on 6 October 2022, with leave of the court the Present Owners partially withdrew relief previously sought. They also changed their position so that rather than seeking costs, the following was sought:
The parties’ costs of the [Advice Proceeding], including the costs of representation of [the Grandchildren], be taxed and paid out of the trust estate of the [Family Trust] on an indemnity basis.
A hearing in the Advice Proceeding was conducted over 2 days in early and late October 2022.[6] Further submissions were provided in late November 2022. Judgment was delivered on 23 December 2022 (“the Advice Judgment”).[7] As a result of the conclusions reached in the Advice Judgment, Northgate will continue to act as trustee of the Family Trust.[8]
[6]Lay evidence was adduced in early October 2022 and expert evidence was given in late October 2022.
[7]Northgate Park Pty Ltd v Floyd [2022] VSC 783.
[8]Ibid, [89].
The Advice Judgment included an annexure comprising the proposed terms of a trust deed to be executed for the purposes of the continued operation of the Family Trust (“the Replacement Deed”). Upon its delivery, the parties were informed that the Replacement Deed had been prepared to reflect the submissions that had been accepted by the court and that the parties were required to check the draft deed carefully before final orders were made.[9] It was explained that the Advice Judgment was being delivered just before the end-of-year break so that the parties would know the position in relation to the Family Trust and hopefully could continue with settlement discussions in the knowledge that the Family Trust was able to continue in operation.
[9]See addendum: ibid, [91]-[92].
After the summer vacation, the parties agreed on the refinements that needed to be made to the Replacement Deed. Thus, on 2 February 2023, the court received a joint memorandum from the parties that included a proposed minute of orders.[10] After addressing matters relating to the Replacement Deed, the joint memorandum stated that an order should be made that the parties’ costs of the Advice Proceeding, including the costs of representation of the Grandchildren, be agreed or otherwise be taxed and paid from the assets of the Family Trust on an indemnity basis. However, final orders could not be made, for reasons that will become apparent presently.[11]
[10]It was not apparent whether Jodi’s solicitors were involved in the preparation of this memorandum.
[11]On 2 February 2023, counsel for the Present Owners informed the court by email that the orders sought in the joint memorandum from the parties in the Advice Proceeding were inconsistent with a settlement agreement that had since been reached in the Main Proceeding: see par 12 below.

A.2 Issue for determination

Thankfully, after an extremely drawn-out process involving without prejudice discussions over many years, the issues raised in the Main Proceeding have been settled (“the Settlement Agreement”). The Settlement Agreement was reached as a result of an exchange of correspondence. Notwithstanding all parties expressly agreed that the matter had settled, various issues were raised with the court about the scope and meaning of the Settlement Agreement. Further discussions ensued.
With 1 exception, all issues have now been resolved and a formal settlement deed has been entered into recently to reflect the Settlement Agreement. The issue now for determination concerns the question of costs in relation to the Advice Proceeding.[12] The Present Owners contend that, on the proper construction of the Settlement Agreement, those costs were the subject of the Settlement Agreement; and accordingly all parties should bear their own costs in relation to both the Main Proceeding and the Advice Proceeding. In contrast, Penny and Jason submit that the Settlement Agreement only covered the costs of the Main Proceeding and that, in accordance with the Advice Judgment, they are entitled to be indemnified for their costs in the Advice Proceeding.
[12]The deed of settlement and release included the following clause: “The Parties acknowledge and agree that the question of whether Penny and Jason’s costs incurred in relation to the [Advice Proceeding] are to be borne by them personally or by Northgate in its capacity as trustee of the [Family Trust] remains in dispute between the Parties and, in default of agreement as to who is to bear those costs, will be determined by the Court.”
For the reasons that follow, orders will be made in substance:

(1) In this proceeding, being the Main Proceeding, that the proceeding be dismissed with no order as to costs.

(2) In the Advice Proceeding, that the costs of all parties and the Grandchildren be taxed and paid out of the trust estate of the Family Trust on an indemnity basis.[13]

The Settlement Agreement B.

[13]This reflects the position stated in the Advice Judgment: Northgate Park Pty Ltd v Floyd [2022] VSC 783, [90].

As alluded to above, there have been many settlement discussions between the parties over the course of the dispute, including discussions before the Main Proceeding was commenced.[14] More relevantly, there was a series of exchanges between the respective solicitors which commenced on 29 August 2022 when the Present Owners made an open offer of settlement (“the First Open Offer”). This was followed by a second open offer made by the Present Owners on 8 September 2022 (“the Second Open Offer”). On 7 January 2023, the Present Owners made their third open offer (“the Third Open Offer”), which was accepted by the plaintiffs on 23 January 2023, thus together forming the Settlement Agreement.
[14]These included a 5 hour “mediation” (the circumstances of this meeting were self-evidently unsatisfactory) held on 15 January 2021 that was recorded and was the subject of evidence in the trial of the Main Proceeding.
For the purpose of determining the remaining contest, it is necessary to refer to the terms of the Third Open Offer in some detail. After setting out some extensive background over approximately 10½ pages, the Third Open Offer stated:
[Present Owners’] open offer
…
47. Since our clients made [the Second Open Offer], they have incurred substantial further costs in relation to the [Main] Proceeding (largely due to your clients’ amendment application, in respect of parts of which our clients have been awarded their indemnity costs, which are yet to be quantified and paid by your clients) and the related [Advice Proceeding]. Those further costs incurred are significantly more than the $200,000 cash component of [the Second Open Offer].
48. Despite that fact, our clients repeat [the Second Open Offer] less only the cash of $200,000. A copy of the new offer is Attachment A. Adopting the figures used in [the Second Open Offer], our clients are now offering your clients assets (being ¼ of the farm and the remaining 50% of the Partnership)[15] together valued at between no less than $2.216m and $2.568m. Further, we say “no less than” because as part of their offer our clients will forgive the loans owed by the Partnership to them or their entities, provide a stamp duty indemnity, and also walk away from the indemnity costs recently awarded to them. All up, we believe that our clients’ offer comprises value approaching $2.7m, before the loan forgiveness, and potentially more than $3m once the loan forgiveness is taken into account.
49. Our clients’ offer is open for acceptance until 4.00 pm on Monday, 23 January 2023.
50. A further factor which your clients should also take into account in considering whether to accept this offer is that our clients have reason to believe that your clients have wrongfully used income from the sale of Partnership assets to fund their legal costs of the [Main] Proceeding and for other personal benefit. Those concerns were raised in our letter to you of 19 December 2022 …
…
52. Depending on the response from your clients, if any, to the matters raised in our letter of 19 December 2022, our clients may seek urgent interlocutory relief. They will certainly do so if your clients have used Partnership funds to pay their own legal costs and, in so doing, will seek orders for repayment or restoration of Partnership funds paid out without Merilyn’s consent or order of the Court. In the meantime, our clients reserve all of their rights.
53. We intend to bring this open offer to the Court's attention as soon as possible. If your clients fail in the [Main] Proceeding or obtain a judgment worth less to them than the value of the assets offered to them in this letter, our clients will make an application for a special costs order of and incidental to the [Main] Proceeding, based on (first) [the Second Open Offer] and (also) the offer in this letter.
54. Please acknowledge receipt.
…
[15]Some of the issues related to a partnership which may or may not have been dissolved. It is not necessary to refer to the detail.
Attachment A
Further to paragraph 48 of this letter, and for the avoidance of any doubt, our clients’ open offer is as follows:
…
4. Our clients will cause to be transferred to your clients or their nominees, at no cost to your clients, approximately 176 acres comprising the land at … Greta West, 3675 (Land).
…
5. Our clients will cooperate with your clients in the preparation of the instrument of transfer for the Land so as to minimise lawfully any stamp duty payable thereon, including supporting any application required to be made to the State Revenue Office or similar authority for an assessment. Further, our clients offer to take the stamp duty risk on the transfer, which is valued at $41,250 (assuming a market transfer value of $1,500,000).
6. Your clients will withdraw all caveats lodged over the titles to any land owned or controlled by our clients.
7. The parties will mutually release and discharge each other in respect of all matters and disputes, including costs, arising out of or incidental to the [Main] Proceeding.
8. The parties will bear their own costs of preparing and executing the deed of settlement.
9. The deed of settlement must be executed by each of the parties and the executed counterparts must be exchanged within 14 days of your clients’ acceptance of this offer.
10. Upon execution and exchange of the deed of settlement, the parties will forthwith consent to orders for the [Main] Proceeding to be dismissed with no order as to costs, except for any rights or reinstatement provided for in the deed of settlement.
(Original emphasis underlined and in bold, emphasis added in italics.)
In accepting this offer, the plaintiffs’ solicitors stated:
We refer to your letter dated 7 January 2023. Without any admissions, our clients accept that offer. Please provide our offices with your draft proposed form of deed as soon as possible in light of the 14 day time frame for finalisation of same.
Thus, the key question which remains for determination is whether the costs of the Advice Proceeding fall within the “costs, arising out of or incidental to the [Main] Proceeding” referred to in clause 7 of the Settlement Agreement, or whether these costs are dealt with by the proposed orders the subject of the Advice Judgment.

Principles relevant to the construction of a commercial contractC.

The parties were in agreement that the approach taken in construing the Settlement Agreement should be in accordance with the principles applicable to construing a commercial contract. In short, it was common ground that the words in question should be given their natural and ordinary meaning as understood objectively by a reasonable business person, rather than any subjective intentions. From this perspective, the court may be required to consider the circumstances surrounding the contract and the commercial purposes and objects to be achieved.[16]
[16]Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544, 551 [16] (Kiefel, Bell and Gordon JJ), 571 [73] (Nettle J, dissenting). See also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, 116-117 [46]-[52] (French CJ, Nettle and Gordon JJ), 134 [118]-[120] (Bell and Gageler JJ); Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 352.2 (Mason J).
In construing the words “or incidental to” in clause 7 of the Settlement Agreement, the plaintiffs relied on 2 definitions of “incidental to” sourced from online versions of the Oxford English Dictionary, being “happening as a result of”[17] or “liable to happen to; to which a thing is liable or exposed”.[18]
[17]Oxford English Dictionary (application at 6 March 2023) “incidental” (def 2).
[18]Oxford English Dictionary (online at 6 March 2023) “incidental” (def 2).
A number of cases concerning the meaning of “incidental to” in the context of an award of costs were also referred to. These included Myer v Myer,[19] in which it was held that costs of an earlier proceeding which had been “misconceived and afterwards dropped” could not be considered to be included in the costs of and incidental to the later proceeding the subject of determination.[20] It was also held in that case that, despite the fact that when making an order for costs the words “incidental to” were often or usually omitted, the addition of such words “might be of importance possibly in regard to preliminary investigations and expenses and other matters”.[21]
[19][1932] VLR 322.
[20]Ibid, 325.2 (Cussen ACJ).
[21]Ibid, 327.8- 328.1.
Later decisions have suggested that the words “incidental to” add little to the alternative of “costs of the proceeding”, or merely extend the application of an order for costs to costs incurred in preparation for litigation or as part of settlement negotiations.[22]
[22]Mio Art Pty Ltd v Macequest Pty Ltd (No 2) [2013] QSC 271, [5], [17]-[20] (Jackson J); Aged and Community Care Victoria Ltd v Warley Hospital Inc (2011) 33 VR 102, 117-118 [70]-[73] (Habersberger J); Talacko v Talacko [2009] VSC 446, [5]-[7] (Osborn J); Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2) (2009) 24 VR 155, 195 [9] (Maxwell P, Neave and Redlich JJA); Re Hudson; Ex parte Citicorp Australia Ltd (1986) 11 FCR 141, 144.2 (Pincus J).
In Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2),[23] the Victorian Court of Appeal was required to determine whether orders in respect of the costs of the appeal should include the words “and incidental to”.[24] The Court stated that, as the statutory language of section 24 of the Supreme Court Act 1986 (Vic) suggests, “an order for ‘the costs of the proceeding’ is synonymous with – and has the same effect as – an order for ‘the costs of and incidental to the proceeding’”.[25] Notwithstanding this, it was determined that the words “and incidental to” should remain in the orders as drafted, as to omit them would amount to an implicit acceptance of the appellant’s contention that the words had significance.[26]
[23](2009) 24 VR 155.
[24]Ibid, 195 [7]-[9].
[25]Ibid, 195 [9] (Maxwell P, Neave and Redlich JJA).
[26]Ibid, 195 [8]

In Talacko v Talacko,[27] a dispute arose as to whether orders that the defendant pay the plaintiff’s costs of and incidental to the hearing of preliminary issues included costs in respect of preparation for the hearing and in connection with the hearing.[28] After referring to Fifteenth Eestin Nominees Pty Ltd v Rosenberg (No 2),[29] Osborn J noted that the words “of and incidental to the hearing” had been used in his Honour’s orders as to costs to make it abundantly clear that the costs were not intended to be restricted to those strictly of the hearing itself.[30]
[27][2009] VSC 446.
[28]Ibid, [1]-[2].
[29](2009) 24 VR 155.
[30]Talacko v Talacko [2009] VSC 446, [6].
While these cases and definitions are of some assistance, naturally the phrase “incidental to” in the more expanded phrase of “in respect of all matters in dispute, including costs, arising out of or incidental to the [Main] Proceeding” must be construed in light of the terms of the Settlement Agreement as a whole, in the context of the relevant surrounding circumstances.[31]

AnalysisD.

[31]Compare, in relation to the correct meaning of “consequential loss”, Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358, 389 [93] (Nettle JA, with whom Ashley and Dodds-Streeton JJA agreed).

The Present Owners acknowledged that the Third Open Offer was silent as to how the Advice Proceeding would be disposed of. It was properly conceded that the terms of the Third Open Offer did not “spell out” that it also extended to the Advice Proceeding. Notwithstanding these concessions, the Present Owners submitted that the Third Open Offer should be objectively understood as quelling all issues in dispute in both proceedings, and advanced the following matters as relevant to the proper construction of clause 7 of the Settlement Agreement:

(1) The plaintiffs expressly pleaded the Advice Proceeding as part of the case they sought to make in the Main Proceeding, which was the subject matter of the Settlement Agreement.

(2) The Present Owners relied upon determinations made and evidence given in the Advice Proceeding to defend the claim that was compromised by the Settlement Agreement.

(3) Both the Main Proceeding and the Advice Proceeding were the subject of a ruling that evidence in either proceeding would be evidence in the other proceeding (until the time of any judgment in either proceeding).

(4) It was agreed between the parties that findings in the Advice Proceeding would bind the parties in the Main Proceeding.

(5) A separate proceeding was required by the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and, so it was contended, form should not triumph over substance and the subject matter of the Advice Proceeding was part of the means by which the plaintiffs sought to establish their claim which was ultimately the subject of the Settlement Agreement.

In my view, there are numerous difficulties with the construction contended by the Present Owners.
First, from the time of the filing of the amended originating motion, the issue of costs in the Advice Proceeding was never in issue.[32] The Advice Judgment gave no reasons for stating that costs ought to be dealt with by taxation on an indemnity basis because that was the agreed position between the parties.[33] Naturally, given that the costs of the Advice Proceeding are to be paid from trust funds, it was still necessary for the court to state the position in relation to costs (which reflected what would ordinarily occur in relation to an application such as the 1 made in the Advice Proceeding).[34]
[32]See par 8 above.
[33]Northgate Park Pty Ltd v Floyd [2022] VSC 783, [90].
[34]Mantovani v Vanta Pty Ltd (No 3) [2022] VSC 357, [10] (McMillan J); In re Buckton [1907] 2 Ch 406, 414.4 (Kekewich J).
Secondly, the Present Owners sought to rely upon what was contained in paragraph 47 of the Third Open Offer,[35] and in particular the reference to the related Advice Proceeding, as suggesting that the costs of that proceeding were also covered by the terms offered. However, that paragraph was also concerned with the further costs in relation to the Main Proceeding. There is nothing in the language to suggest that somehow the costs in another proceeding were to be covered in the Third Open Offer, which expressly dealt with “the Proceeding” (which in turn was expressly defined as a reference to the Main Proceeding, and only the Main Proceeding).
[35]See par 16 above.
Further, as discussed immediately above, this language must be read in the context of the fact that from late September 2022, the costs of the Advice Proceeding were not in issue, a position which was subsequently affirmed in the Advice Judgment. Furthermore, the language used in the First Open Offer and the Second Open Offer in respect of the issue of costs (both being made at a time when the Advice Proceeding had not been heard and determined) was the same as the relevant language used in the Third Open Offer. Those earlier offers could not sensibly be understood to seek to resolve the position in relation to the Advice Proceeding, which remained on foot, was contested and was not sought to be resolved by the First Open Offer or Second Open Offer. There was nothing in the wording of the Third Open Offer which suggested that the phrase “costs, arising out of or incidental to the Proceeding” in that offer somehow had a different meaning to the preceding open offers.
Thirdly, the Advice Proceeding did not arise out of the Main Proceeding and was not merely incidental to it. Although the necessity for the issues raised in the Advice Proceeding appeared to become apparent for the first time during opening submissions in the trial of the Main Proceeding, these issues would have arisen entirely independently of whether the allegations the subject of the Main Proceeding had been made or not.
Fourthly, the mere fact that the Advice Proceeding was referred to in the pleadings in the Main Proceeding was of little moment. Based on the determination of the Advice Proceeding, various potential scenarios might have arisen (at least initially, though the issues narrowed over time). The Promise was concerned with property which may or may not have been property of the Family Trust depending upon the outcome of the Advice Proceeding. The relevant references in the pleadings were no more than a consequence of the parties not then knowing the precise position in relation to the legal and beneficial ownership of the property in dispute.
Fifthly, the fact that a ruling was made that evidence in the Advice Proceeding would also be evidence in the Main Proceeding is also of little moment. That ruling was made simply to avoid the possibility of inconsistent findings, or the eventuality of further evidence being led later in the Main Proceeding concerning matters that had already been decided in the Advice Proceeding (whether or not that would have given rise to inconsistent findings). As it turned out, that risk did not eventuate. Reflecting the quite separate issues that were raised in each proceeding, there was no cross-examination of any lay witnesses in the Advice Proceeding. To the extent that there might have been controversial evidence that affected the Main Proceeding, that evidence was only treated as stating the position of the Present Owners (and could later be the subject of challenge in the Main Proceeding), rather than being an uncontested position for the purposes of both proceedings.[36]
[36]Northgate Park Pty Ltd v Floyd [2022] VSC 783, [16].
Sixthly, the mere fact that the parties to the Main Proceeding would be bound by any findings in the Advice Proceeding was something that necessarily followed (all parties in the Main Proceeding also being parties in the Advice Proceeding), and did not give rise to a consequence that the Advice Proceeding was incidental to the Main Proceeding.
Seventhly, properly characterised, the question is not 1 of form over substance. The Advice Proceeding included additional parties and raised issues for determination that would affect the Family Trust on an ongoing basis and in relation to matters that went far beyond those the subject of the Main Proceeding.
For completeness, although not directly relevant to the correct construction of the Settlement Agreement,[37] it would be remiss not to refer to an email that was sent by the Present Owners’ solicitors on 27 January 2023 to my associates. In that email, the court was informed that the Main Proceeding had settled by acceptance of the Third Open Offer. After noting that the parties were finalising a formal deed of settlement, it was stated that the Settlement Agreement did not affect the Advice Proceeding. The court was informed that the parties were presently drafting what was hoped to be an agreed memorandum to be provided to the court in due course. From this email and the subsequent joint memorandum,[38] it would seem that it was not readily apparent to those representing the Present Owners that the natural and ordinary meaning of the words now in issue was other than as contended for by the plaintiffs on this application.

ConclusionE.

[37]FAI Traders Insurance Company Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343, 350.6-351.6 (Brooking J, with whom Nathan and Eames JJ agreed), 353.3 (Nathan J).

[38]See par 11 above.

For the reasons stated, the Present Owners’ contentions as to the correct construction of the Settlement Agreement must be rejected. Orders will be made accordingly.[39]
[39]See par 14 above.

[2023] VSC 115

6 March 2023