Fryer & Fryer (No. 5)
[2007] FamCA 1367
•22 November 2007
FAMILY COURT OF AUSTRALIA
| FRYER & FRYER (NO. 5) | [2007] FamCA 1367 |
| FAMILY LAW – APPEAL FROM DECISION OF FAMILY COURT JUDGE – PROPERTY SETTLEMENT – Husband’s failure to comply with directions in relation to the provision of financial information – Whether the trial Judge erred in calculating the property pool - Application of the “slip rule” – Appeal allowed – Application for property settlement and wife’s application for costs be remitted for further hearing before the trial Judge. FAMILY LAW – COSTS – Lump sum order made without a bill in taxable form or assessment – Matter to be remitted for rehearing. | |
| CDJ & VAJ (1998) FLC 92-828 |
| APPELLANT: | MR FRYER |
| RESPONDENT: | MS FRYER |
| FILE NUMBER: | MLF | 1388 | of | 2005 |
| APPEAL NUMBER: | SA | 5 | of | 2007 |
DATE DELIVERED: | 22 November 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Warnick, May & Boland JJ |
| HEARING DATE: | 13 September 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 December 2006 |
| LOWER COURT MNC: | [2006] FamCA 1357 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Ingleby |
| SOLICITOR FOR THE APPELLANT: | Harwood Andrews Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Geddes QC & Ms Johns |
| SOLICITOR FOR THE RESPONDENT: | Taussig Cherrie & Associates |
Orders
That the appeal be allowed.
That Orders 1, 2, 3 and 5 of the orders made 15 December 2006 be set aside.
That the parties’ applications for property settlement and the wife’s application for costs be remitted for further hearing before Mushin J.
That until the hearing and final determination of the parties’ applications the undertaking of the husband given on 29 May 2007 and the orders made that day together with the orders made 19 January 2007 continue in force and effect.
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 21 days of the date hereof.
That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further 7 days.
That each party endorse on the cover sheet of any submissions filed pursuant to Orders 5, 6 and 7, the date upon which a copy of that submission was served on the other party.
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 Fryer & Fryer.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: SA 5 of 2007
File Number: MLF 1388 of 2005
| MR FRYER |
Appellant
And
| MS FRYER |
Respondent
REASONS FOR JUDGMENT
After a hearing in relation to property settlement in which, as will be later explained, the husband took only a limited part, Mushin J made final orders on 15 December 2006 summarised as follows:
1.The husband transfer to the wife a house property in Melbourne, the expense of the transaction to be met by the wife.
2. The husband pay to the wife the sum of $41,221; and
3.In relation to costs, the husband pay the wife’s costs fixed at $50,000. Such sum included costs orders previously made totalling $13,854.52.
The husband appeals against all of the orders for property settlement and costs orders.
In the Notice of Appeal it was asked that different orders be made by way of property settlement should the appeal succeed. At the hearing of the appeal counsel for the husband asked for a rehearing before another trial Judge.
It is not necessary in this case to discuss the grounds of appeal in relation to the property orders comprehensively. We formed the view during the hearing of the appeal that it must succeed and informed the lawyers of our conclusions. This leaves various questions, including whether we ought to consider the evidence and possibly impose different orders, or whether the matter should be remitted for further hearing by the trial Judge or before another member of the trial division.
Apart from the appeal in relation to the costs orders, the argument before us in relation to the appeal was principally related to ground four which is as follows:
4.The learned trial judge erred in his assessment of the evidence by finding that the proceeds of the sale of the [house] were separate and distinct from the monies in the husband’s ING account and the [software proceeds] bank accounts.
In the written submissions of the wife in response to the ground it was said:
1.8The respondent acknowledges that the learned Trial Judge erred in his assessment of the evidence to the extent that there was a “double counting” of the proceeds of sale of the [house] in the sum of $118,400. The respondent submits that the proper course of action is for this error to be corrected pursuant to the “slip rule”. The respondent has indicated, in open correspondence from her lawyers to the appellant’s lawyers dated 27 July 2007, a willingness to correct this error pursuant to the “slip rule”. The respondent submits that such a concession should not be construed as an admission that the Appeal has merit. [original emphasis]
In addition to this argument counsel for the wife also submitted that as the application of the husband had been dismissed by orders made by the trial Judge on an earlier occasion (29 March 2006) after a directions hearing, the husband did not have an application to be heard. If an order for remission was made it must be that the wife’s application be heard on an undefended basis.
The arguments of each counsel raised a number of issues:
1.The “slip rule” argument;
Then, should that argument not succeed;
2.Whether in view of the concessions made that there was an error the matter should be remitted for re-hearing or whether we should make different orders. The second issue involves also a consideration of:
a.Whether leave should be granted to the husband on his counsel’s oral application to amend the Notice of Appeal to seek a re-hearing.
b.The effect of the orders made on 29 March 2006.
Leave to allow the oral application for amendment of the Notice of Appeal – that there be a rehearing
In relation to the further oral application for amendment of the Notice of Appeal we mention that in an Application in a Case filed on 10 September 2007 there is contained an application to amend the Notice of Appeal by adding three other grounds. In support of that application the affidavit of the solicitor explains that Dr Ingelby was the second counsel briefed in the matter and that he formed the view that the grounds of appeal should be amended.
The additional summary of argument includes submissions in response to the suggestion that the error can be corrected by use of the slip rule. Whilst unfortunately the application for amendment did not directly seek that the consequence of the appeal being allowed would be to ask for a rehearing, it was apparent from this additional summary of argument that it was at least intended. In view of the importance of this aspect of the appeal we will refer directly to those submissions:
6.Further, the proposed amendment requires the exercise of an independent discretion because the alteration to the size of the pool requires a reassessment of the consequences of a particular percentage division: Noetel v Quealey at para 72; Rosati (1998) FLC 92-804 at para 4.13.
7.Once it is established that there was an error in the approach of the learned trial judge, then the Full Court must either re-exercise the discretion or remit the proceedings for rehearing.
8.To the extent that a specific application is required, the appellant seeks leave to adduce evidence relation to the facts referred to in paragraph 3(j) of his Amended Summary of Argument, namely that the home sold for about twice the value at which it was included in the pool.
The objections of Mr Geddes QC made in respect of any oral application to amend the orders sought in the Notice of Appeal were entirely correct. There was no notice given, despite an amended Notice of Appeal, that this was the order being asked for by the husband. However, that cannot in itself be conclusive. It may have some impact in relation to the costs of the appeal. In our view, to do justice to the parties, leave should be given.
Other issues
Paragraph 8 of the submissions referred to above is connected with another argument. At trial the orders sought by the wife were that the house be sold and proceeds divided whereas the trial Judge made orders that the husband transfer his interest in the house to the wife. Contradictory to this order, in the calculation of the net pool, the trial Judge deducted a sum of $10,000 being an approximate figure for the costs of sale of the home. These are matters of significance since the trial Judge did not simply order that the house be sold and a percentage applied but rather, based on figures including a valuation of the house and costs of sale, ordered that the house be transferred to the wife and the husband pay her a defined figure.
This difficulty is exacerbated by circumstances which have occurred since the orders were made including, as we were told by counsel in his submissions, that the house was sold for $1,500,000 in July 2007 whereas the valuation figure included in the pool of assets was $775,000. This assertion was made although no application was filed to adduce further evidence in this respect. The submissions of counsel for the wife indicated that such an application would be opposed and referred to the fact that the issue of the value of the house had not been litigated before the trial Judge due to the manner in which the husband conducted his case. It is therefore submitted that the husband should not now be allowed to place this evidence before us, nor should there be a rehearing.
It must however be observed that at least part of the source of the problem is that although the wife asked for an order that the house be sold and the proceeds be divided according to a percentage, the Judge ordered that the house be transferred to the wife.
History of the Litigation
To appreciate the matters argued on the appeal it is necessary to provide some history of the applications and the manner in which the hearing unfolded.
The wife was the applicant. The husband filed a Response and Financial Statement on 14 July 2005. He had earlier on 5 July 2005 filed an affidavit replying to material filed by the wife, however the affidavit did not particularise his contributions throughout the marriage. On 25 January 2006 he filed an affidavit annexing a brief medical report. The wife at all times filed the necessary material and complied with orders and directions.
The matter first came before Mushin J on 28 March 2006 for hearing. However, in breach of orders made by Registrar Riddiford the husband had not filed material in relation to his superannuation interests or an updated Financial Statement. The other difficulty was his refusal to allow the single expert to inspect the house for the purpose of providing a property valuation.
Mushin J “…formed the view that the level of unpreparedness of the husband is too high to contemplate proceeding with the trial”. His Honour was also concerned that the husband needed to consider providing “a more relevant and comprehensive affidavit of evidence-in-chief” (Para 4 Reasons 29 March 06).
His Honour then explained the decision he made to adjourn the trial and to make orders as follows:
6.What I have decided to do is make detailed orders for filing of material by the husband and require him to file a Compliance Certificate. I will then appoint a Pre-Trial Conference and provide that if he is in breach of any of the orders any application by him before the Court be forthwith dismissed without further application and, subject to any order of the Trial Judge as to cross-examination and making submissions to the Court, that he play no further part in the proceedings. I have specifically directed that the Regional Coordinating Registrar, […], conduct the Pre-Trial Conference in this matter and any difficulty which arises before her can be referred back to me.
7.I have explained to the husband the seriousness of his situation. Despite the fact that he tells me that he understands, I must say that I am not at all convinced about that and will only be convinced when I am informed of his compliance with the orders.
1.That no later than 4 pm on Friday, 28 April 2006, the husband file and serve the following:
(a)Completed income tax returns for the financial year ended 30 June 2005 in respect of -
(i)himself;
(ii)[the husband’s software company]; and
(iii)the superannuation interests and valuation of [the husband’s software company].
(b)A Financial Statement in accordance with Form 13 in the Family Law Rules 2004.
(c)An affidavit of valuation of his motor vehicle sworn by an appropriately qualified expert.
(d)Any further affidavit of evidence-in-chief on which he proposes to rely in these proceedings.
(e)A Compliance Certificate certifying his compliance with these orders.
2.That both parties attend a Pre-Trial Conference with Regional Coordinating Registrar Field, or such other registrar as she may nominate, at 11 am on 10 May 2006.
3.That in the event that the husband fails to comply with any provision of these orders any application by him seeking orders for alteration of property interests or any matter pursuant to the Child Support (Assessment) Act be thereupon dismissed without further application and any extant application of the wife be thereupon set down for trial on an undefended basis.
4.That notwithstanding paragraph 3 hereof, liberty to reserve to the Trial Judge to determine whether and on what terms the husband should be permitted to cross-examine any witness called in support of the said applications on behalf of the wife and to make submissions to the Court.
5.That no later than 4 pm on 28 April 2006 the husband pay the wife's costs of this adjournment thrown away, fixed in the sum of $9276.
6.That the costs that are ordered to be paid pursuant to paragraph 5 hereof be included in the provisions of paragraph 3 hereof with the intent that in the event that the husband fails to comply with paragraph 5 the operation of paragraph 3 proceed.
7.There will be liberty to apply.
8.I certify for counsel.
(Judgment 29 March 2006)
As was explained in the wife’s further affidavit of evidence filed 25 July 2006, the husband did not comply with Orders 1 and 5 and a great deal of financial information necessary for the trial Judge to determine the matter was not provided by the husband. This is the genesis of the error in “double counting” the sum of $118,400 made by the trial Judge. As the wife described it in paragraph 26 of this affidavit:
26.Given the lack of disclosure by the husband throughout these proceedings and his failure to file an updated Form 13 Financial Statement, I continue to be in a position where I am required to “piece together” the husband’s financial circumstances, and the financial circumstances of the Company and the Fund. The husband operates a number of bank accounts, both in his own right and for the Company and the Fund and there are regular transfers between the accounts.
27.I refer to paragraphs 73 to 81 inclusive of my Affidavit concerning the sale, in late 2004, of the [house]. The husband caused the property to be sold without reference to me. He is yet to account for how the sale proceeds have been applied. [The house] was owned by the Company. In my Affidavit, I sought to reconcile how the husband had applied the proceeds of sale of [the house] as the husband had not disclosed the same. At that time, my solicitors and I deduced that after repayment of the Commonwealth Bank […] Loan and transfer of funds to the Fund, approximately $118,438 remained unaccounted for from the proceeds of sale.
28.I am advised by my solicitors and verily believe that the financial statements for the Company for the financial year ended 30 June 2005 demonstrate that:
(a)the company made a capital gain on the sale of [the house] of $132,875;
(b)the company contributed $47,603 to the Fund and paid a redundancy payment of $72,000;
(c)the Company incurred a loss and as a result, was not required to pay taxation on the capital gain.
29.To the best of my knowledge, the proceeds of sale of [the house] have been applied as follows:
(a)The husband transferred $100,000 [into a term deposit account] with Westpac Bank on 8 March 2005;
(b)On 13 September 2005, when the term deposit matured, the husband deposited $58,000 to the Company account and $42,000 to his personal ING account. To the best of my knowledge, the deposit of $42,000 to the husband’s personal ING account was to replenish the account as the husband withdrew $42,000 from that account on 30 June 2005 and deposited the funds to his personal Westpac account;
(c)After transferring $42,000 to his Westpac Classic account [...] on 21 June 2005, the husband then withdrew $47,000 from the account on 23 June 2005 and transferred $47,000 to the Westpac bank account held by the fund.
30.Beyond my piecing together the sequence of transactions with the assistance of subpoenaed documents as referred to in 25 above, I do not know how the husband has applied the proceeds of sale of [the house]. I say that the husband should be required to explain to this Honourable court how the proceeds of sale of [the house] are held or have been applied by him.
In the judgment commencing at paragraph 29, the trial Judge included in the assets what was described as the proceeds of sale of [house] at $118,400. Between paragraphs 33 and 37 his Honour made findings in relation to the proceeds of sale of the [house] property including that it was the husband who unilaterally decided to sell the property and failed to explain how these monies had been used. As his Honour said in paragraph 36:
36.Contrary to various orders and directions made in the preparation of this matter, the husband has not made a full and frank disclosure of all relevant documents relating to the sale of that property. …
In paragraph 37 his Honour said unsurprisingly:
37.I therefore accept the submissions of counsel for the wife that it is not necessary to establish a set value of the [house] property proceeds. Rather, it is sufficient to conclude that the husband has had access to funds which are not able to be precisely determined but are in the vicinity of $118,400.
In making the mathematical calculations in paragraph 101 of the judgment his Honour put in the proceeds of the [house] property at $118,400 as having been received by the husband. There also was included in the husband’s receipts, various bank accounts including an ING account at $50,353 and a [company] account at $59,410.
The appendix to the original submissions on behalf of the husband explains now the circumstances of the sale of the [house] which demonstrates that moneys were paid to the bank accounts and superannuation fund which are otherwise included in the moneys and assets to be received by the husband. This assertion is entirely accepted by the wife in the appeal.
We add for completeness that the hearing itself commenced on 9 August 2006 for a short time, and on 10 August 2006 the husband after appearing in Court, refused to take part in the proceedings.
The effect of dismissing the husband’s application
In the previous judgment of the trial Judge on 29 March 2006 (Appeal Book 241) to which we have referred, his Honour was concerned with the failure of the husband to comply with the directions in relation to the provision of financial information. The failure of the husband to comply with previous directions and generally to provide proper disclosure of his financial position is set out comprehensively in that judgment.
At a pre trial conference before a Registrar on 11 May 2006 it was noted that the effect of the orders of Mushin J on 29 March 2006 was that the husband’s application was dismissed.
Connected with this issue is the Application in a Case filed 9 July 2007 where it is sought by the husband to rely on the evidence of a psychologist that the husband’s ability to understand the consequences of his actions was severely impaired by stress. It needs to be observed that the husband has not appealed the orders of 29 March 2006 so that this evidence, if admitted, can only relate to the hearing and final orders for property settlement. As we mentioned earlier, the husband withdrew from those proceedings on the second day.
In our view, although the husband was a significant contributor to the difficulties in which the trial Judge found himself in hearing the matter and clearly the judgment and reasons of the trial Judge on 29 March 2006 were well within his power and discretion, it cannot be said that should an appealable error be discovered there could not be a re-exercise or a rehearing because a previous direction had dismissed one party’s claim.
The previous orders and directions, while highly relevant to questions of costs and perhaps a matter to be taken into account in determining whether the case should be completely reheard, or the discretion re-exercised, could not entirely exclude a party. (See The State of Queensland & AnorvJBL Holdings Pty Ltd (1996)189 CLR 146). If the matter is remitted the application before the Judge would be the wife’s application. It would be a matter for the Judge to decide whether, in light of the husband’s successful appeal and any steps he takes to remedy deficiencies, he should be permitted to participate in the re-hearing to a greater extent that the orders of 29 March 2006 allow.
Application to adduce further evidence
In relation to the application to adduce further evidence being the psychologist’s report, it is correct that there has been demonstrated an appealable error (See CDJ & VAJ (1998) FLC 92-828). However, in our view the report attached to the psychologist’s affidavit fails to fulfil many of the criteria necessary for an expert report (See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). In any event its relevance in relation to the appeal as presented by counsel is so marginal that it ought not be admitted. It cannot be said that the admission of this report could make any difference to the appeal.
Slip rule argument
The relevant principles in relation to the slip rule were recently considered by the Full Court in Noetel & Quealey (2005) FLC 93-230. The Full Court referred to its earlier decision in Patching & Patching (1995) FLC 92-585 where it was held (at 81,800) that the slip rule was not an appropriate mechanism for dealing with calculations about the size of the asset pool. Rule 17.02 of the Family Law Rules provides:
(1) If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties.
(2) A Registrar may rectify an error that appears obvious on reading the order.
(3) If the Registrar:
(a) is in doubt about whether there is an error in an order; or
(b) believes that an error in an order has, or may have, arisen from an accidental slip or omission;
the Registrar may take action under subrule (4).
Of interest, the note attached to the rule is as follows:
An amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.
As their Honours in paragraph 62 in Noetel & Quealey (supra) correctly said:
62.The slip rule is a well settled common law convention which allows for an error arising from an accidental slip or omission or an ambiguity or infelicity of expression not of substantive significance to be corrected at any time by a judge by further order.
In this case it is not a matter of an accidental slip in the order, rather that the trial Judge, no doubt for the reasons already explained, was led into error in the calculation of the pool. In particular it could not be said that the order does not correctly state what was actually decided and intended. While it can be said that both sides now agree that the sum of $118,400 should not be included there is a real difference of opinion as to what remedy this error should attract.
As unfortunate as it may be for the parties, especially the wife who diligently prepared for trial, the only possible result of such an error is that the appeal be allowed and a consideration then be given pursuant to the powers of the Full Court on appeal contained in s.94(2) as to whether orders can be made which ought to have been made in the first instance or if appropriate, order a rehearing, on such terms and conditions as considered appropriate.
As counsel for the husband correctly submitted it is necessary there be the exercise of an independent discretion because the alteration to the size of the pool requires a reassessment of the consequences of a particular percentage division.
A consideration of a rehearing or re-exercise
In our view the appropriate order in this respect becomes apparent when we consider how this Court might re-exercise the discretion. First it can be said that the sum of $118,400 should be deducted from the pool. Secondly, it might be said, although this was resisted by counsel for the wife, that the order should be a percentage division of the proceeds of sale as that was clearly the order asked for by the wife at the trial and the husband was not given an opportunity to make submissions resisting transfer. This would provide a remedy itself to the house apparently being sold for a much greater sum than the valuation envisaged.
However, the real difficulty as we see it, is the percentage that should be applied especially considering matters pursuant to s 75(2). We do not see that there can be any real challenge to the judgment of the trial Judge up to that point.
In paragraph 77 of the judgment his Honour found that the husband and wife had contributed almost equally by way of direct financial and non financial contributions during the marriage. However, because of the significant financial contribution made on the wife’s behalf by her parents the wife had made a greater financial contribution. In addition, it was found that the wife made a significantly greater contribution as a homemaker and parent in addition to working in paid employment. His Honour then altered the interests of the parties by five per cent in favour of the wife thereby determining that their contributions during the marriage were 55 per cent to the wife and 45 per cent to the husband.
In relation to s.75(2) matters, whilst as his Honour records in paragraph 86 of the judgment he was concerned about the husband’s mental capacity, there was no evidence before him about the husband’s health. This is despite what is now contained in the application to adduce further evidence that the husband had been seeing a psychologist from as early as May 2004.
In our view there are numerous matters in fairness to both parties that may provide a result different to the 10 per cent in favour of the wife by way of adjustment under s.75(2) as found by the trial Judge. This would include the circumstances of the parties’ child, the income of the parties and their capacity for work. The other important fact is that the percentage may be altered due to the significantly increased size of the pool by reason of the proceeds of sale of the house. Counsel for the wife also indicated that they would wish to provide evidence about the efforts of the wife in relation to the house prior to sale.
We are mindful of the significant costs already incurred by the wife and the conduct of the husband. Bearing in mind those factors and that it would create some real difficulties especially for the wife if this matter were to begin again in its entirety the better course would be to remit the matter to the trial Judge where the sum of $118,400 can be excluded from the pool, the proceeds of the house sale can be included and his Honour can consider any evidence as directed by him. The remission would be for the purposes of Mushin J:
(1)Reconsidering the “Assets and Liabilities” table in light of these reasons and any further evidence as his Honour may receive; and
(2)Reconsidering the s 75(2) factors and the justice and equity of any orders.
This course is consistent with the submissions made by each counsel although we are aware not one that either directly suggested. (See transcriot 13 September 2007 at pages 8 and 18 (Dr Ingleby’s submissions) and pages 19-20 (Mr Geddes QC)).
Costs
Ground 5 of the Notice of Appeal is the only ground relating to the costs order. It asserts an error in the exercise of discretion by ordering a lump sum costs order in the amount of $50,000.
The submissions of the husband were mostly directed to the quantum, in particular that the trial Judge had “simply plucked (the figure) out of the air”.
There is no challenge to previous costs orders in the sum of $13,854.52.
It is submitted that as the matter became a “short property case” the sum was excessive.
The reasons a costs order were made were entirely clear and included:
·The husband’s conduct throughout the proceedings including interlocutory proceedings and failure to comply with court orders; and
·The effect of the husband’s conduct of the proceedings was to put the wife to great expense.
In our view it was well within the trial Judge’s exercise of discretion to conclude that there were circumstances justifying an order for costs.
The submissions filed on behalf of the husband on 26 September 2007 in support of the ground included the following:
2.In particular, the appellant submits that the costs order attempted to compensate the wife for the costs of her whole conduct of the proceedings in circumstances where it is impossible to attribute responsibility for the totality of the costs to the husband. By way of example, the wife was required to file an application, a financial statement, and an affidavit of evidence by reason of the existence of the proceedings and not by reason of the husband’s conduct.
3.Further, in support of the reasoning in paragraph 7(b) of the appellants’ summary of argument, there is no basis for the finding in paragraph 114 that a taxation would have been delayed by “yet more negative conduct from the husband”.
4.The costs order was punitive and arbitrary and for those reasons did not constitute a proper exercise of discretion pursuant to section 117 of the Act.
In the further submissions provided by the wife on 1 October 2007 it is explained that the wife did seek the costs of the whole of the proceedings and on an indemnity basis in the sum of $82,430.53. The trial Judge was informed that on a party and party basis they were approximately $52,000.
A real difficulty for the trial Judge in fixing the amount of the costs, as he was asked to do, was the absence of the husband and the absence of a detailed bill of costs from the wife.
In our view the proper course would have been to make an order for an assessment although his reasons for fixing the sum as contained in paragraph 114 of the judgment were both practical and reasonable in the circumstances of that hearing.
As we intend to remit the matter to his Honour the issue of the quantum of costs should also be remitted.
I certify that the preceding fifty four paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date:
Key Legal Topics
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Family Law
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Civil Procedure
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Appeal
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Costs
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