Gerard and Barone
[2018] FCCA 2888
•12 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GERARD & BARONE | [2018] FCCA 2888 |
| Catchwords: FAMILY LAW – Property – 11 year relationship – parties have two children – weight to be given to initial contributions. |
| Legislation: Family Law Act 1975, ss.75(2), 79, 79(2), 79(4), 90MT(1)(a) , 90MT(4), 106A Family Law (Superannuation) Regulations 2001, reg. 14G |
| Cases cited: Stanford & Stanford (2012) 247 CLR 108 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 |
| Applicant: | MR BARONE |
| Respondent: | MS GERARD |
| File Number: | MLC 8697 of 2016 |
| Judgment of: | Judge Harland |
| Hearing date: | 2 August 2018 |
| Date of Last Submission: | 2 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Fisken |
| Solicitors for the Applicant: | Berry Family Law |
| Counsel for the Respondent: | Mr Arnold |
| Solicitors for the Respondent: | Bowlen Dunstan and Associates Pty |
ORDERS
That within sixty (60) days of date of these orders the wife make a payment to the husband in the sum of $203,590.
That simultaneously with the payment in order 1 herein the husband provide to the wife an executed Withdrawal of Caveat with respect to Caveat lodged by him against the property at Property A in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume (“the Property A property”).
That in the event the wife fails to make the payment, or any part thereof, pursuant to order 1 herein, then within a further 14 days both parties do all things necessary to cause the Property A property to be sold on the terms and conditions as recommended by a sales agent nominated by the president of the REIV and the proceeds of sale be disbursed as follows:
(a)First, to pay all costs, commissions and expenses of the sale;
(b)Second, to discharge the mortgage to Bank secured against the Property A property;
(c)The net balance then to be divided as to 80.5% to the wife and 19.5% to the husband.
That the Court allocate, as required by Section 90MT(4) of the Family Law Act 1975, a base amount of $40,000 to the wife (non-member spouse) out of the husband’s interest in the Super Fund 1 member number (“the fund”).
That, pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable with respect to the interest of Mr Barone (member spouse) in the fund:
(a)The wife (non-member spouse) or her legal personal representatives, shall be entitled to be paid an amount in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $40,000; and
(b)There be a corresponding reduction in the superannuation interest of Mr Barone to whom the splittable payment would have been made but for this order.
That order 5 has effect from the operative time.
That the operative time for these orders is the fourth business day after the day in which a sealed copy of these Orders is served on Super Fund 1 (“the Trustee”).
That the Trustee of the fund shall do all such acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of, and make payment to, the wife (non-member spouse) in accordance with order 5 herein.
That the wife (non-member spouse) request the Trustee of the fund to create a new interest in or rollover or transfer the transferrable benefits out of Mr Barone’s superannuation interest into a fund of her choosing in accordance with the requirements of the relevant Trust Deed.
That pursuant to Regulation 14G of the Family Law (Superannuation) Regulations 2001, any payment from Mr Barone’s superannuation interest made after the Trustee has rolled over or transferred the transferable benefits to a fund of the wife’s choosing are not splittable payments.
That the wife otherwise retain to the exclusion of the husband:
(a)The Property A property or the funds received by the Wife pursuant to Order 3(c) herein;
(b)The business 1;
(c)The funds standing to her credit in the bank accounts held in her sole name or in which she has an interest;
(d)Her Motor Vehicle K registration number; and
(e)Her superannuation entitlements including those held with Super Fund 2 and the superannuation split to her from the husband.
That the husband otherwise retain to the exclusion of the wife;
(a)The payment made to him pursuant to Order 1 or Order 3(c) herein;
(b)The business 2;
(c)The funds standing to his credit in the bank accounts held in his sole name or in which he has an interest;
(d)His Motor Vehicle L registration number; and
(e)His superannuation entitlements including those held with Super Fund 1 after the superannuation split to the wife.
That unless otherwise specified in these Orders and save and for the purposes of enforcing any monies due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)Monies standing to the credit of the parties in any joint bank account are to be equally divided;
(c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the owner name thereon;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed;
(g)Each party be solely liable and indemnify the other in respect of their individual debts.
The parties execute all documents necessary to give proper effect to these Orders and in the event that either party fails and/or neglects to sign any document and/or consent to give effect to these Orders, then a Registrar of the Federal Circuit Court of Australia be appointed pursuant to s.106A of the Family Law Act 1975 to execute the document or documents in the name of the party who has failed to comply with the Orders and do all acts and things necessary to give validity and operation to the particular to which the documents relate. The party seeking execution of the documents shall be at liberty to make an ex parte Application to the Registrar.
IT IS NOTED that publication of this judgment under the pseudonym Gerard & Barone is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8697 of 2016
| MR BARONE |
Applicant
And
| MS GERARD |
Respondent
REASONS FOR JUDGMENT
There is little which is factually in dispute in this matter. The cross examination of parties and the husband’s father was focused and limited, recognising that the focus of this dispute is legal and not factual.
The wife was born on 1968 and is aged 50.
The husband was born on 1979 and is aged 38.
The parties started living together in 2003 and married on 2005. They separated under the one roof in December 2013. The husband moved out of the home in December 2015. The parties are divorced.
The parties have two children, [X] born on 2003, aged 14, and [Y] born 2007, aged 11.
To the parties’ credit, they resolved the parenting issues on 11 December 2017 when the matter was originally listed for trial. The parties agreed to a parenting arrangement where they have equal shared parental responsibility, equal holidays, time on special days and during school terms the children live with the mother 9 nights a fortnight and spend 5 nights a fortnight with their father.
The property proceeding was adjourned for final hearing on 25 June 2018. This date was later adjourned to 2 August 2018 by joint request of the parties as the wife was ill. The wife says that this adjournment was due to her being rushed to hospital. She does not provide medical evidence as to this.
The parties agree that when they started living together the wife owned what is now the former matrimonial home at Property A (“the Property A property”) and at that time it had an equity of $233,000. The parties agree that that property is now worth $1,100,000. There is a mortgage of about $17,000. The mortgage was modest during the relationship and parties reduced it by about $50,000 over the course of 10 years.
When the parties started living together the husband moved into the rental property where the wife was living. The Property A property was tenanted. The parties moved into the Property A property after the tenants moved out in August 2003.
By the time of the adjourned trial, the wife also conceded that the $32,000 loan which the husband has represents a joint credit card debt at separation and should be taken into account.
At the beginning of the trial, the wife was also disputing what had happened to funds in the Australian government ownership fund for the children’s education but accepted after being presented with those documents during cross-examination, that those funds were applied to credit card debt as well.
The parties agreed that the wife has a Motor Vehicle K worth $6950 and husband had a car at separation worth $10,000.
The parties also agreed that the husband has superannuation interests totalling $91,346. The wife has superannuation interests of $3279. The husband has accorded his superannuation fund procedural fairness.
The husband bought a Motor Vehicle L last year. It is fully financed. At the hearing his position was that his previous car should be included in the balance sheet as well as the wife’s, rather than his new car.
Exhibit A is a copy of the parties’ child support assessment for the period 6 December 2017 to 31 December 2018. The husband pays child support in the sum of $724.00 a month. The husband’s income is shown as $70,820 and the wife’s as $31,384.
Exhibit B is a bundle of Bank 1 account statements for the parties’ joint bank account. On 29 May 2014, $11,000 was paid into the joint account. On 3 June 2014, $9,000 was transferred from this account and then $9,300 was paid to the parties’ Bank 2 credit card account. Exhibit C is a further bundle of Bank 1 joint bank account statements. The account statements also show the husband’s salary being paid into it. There are also regular deductions of $300 labelled as mortgage payments. He says he paid $300 a fortnight to the wife for mortgage payments. He said he paid the mortgage until 24 June 2017. The husband rejected the wife’s proposition that the husband only made those payments towards the mortgage from 2012 when the wife became unwell. He says he used to attend at the bank and transfer the funds.
The husband does not have his bank statements for the period 2003 to 2012. His bank statements start from 2012. The fact that the husband transferred the funds to the wife and she in turn paid the mortgage rather than the husband paying the mortgage directly makes absolutely no difference to the assessment of the husband’s contribution in this regard. It is not necessary for a party to establish a contribution to a specific piece of property.[1] In the later part of their relationship they made some deposits directly into their joint account.
[1] See majority opinion in Farmer v Bramley (2000) FLC 96-060 and Hurst & Hurst [2018] FamCAFC 146.
The husband said his parents gave the parties $30,000 in total by way of cheques over a long period and also bought them a car. The husband says he produced bank statements and his mother has handwritten diary entries. She did not annex these to her affidavit. The husband and his father also gave evidence that his parents gave them a car.
There was a dispute about the extent to which the husband’s parents gifted money. The wife conceded in her cross-examination that the husband’s parents were generous, although she said they were generous to the husband rather than being generous to both of them. With respect to the advances from the husband’s parents, she said she did not keep track and was not aware of specific amounts. She said the husband would say “mum and dad have given us some money”. She said that whilst she was present on a few occasions when they gave the husband a cheque, she did not look at the cheques.
The wife did say that the husband’s mother told her in 2016 that they gave them $30,000. She conceded that she did not refer to that in her affidavit. She says she mentioned it to a previous lawyer. Although the wife did not include this in her affidavits, she effectively conceded that was the amount that they had advanced. The husband was not cross-examined about his evidence that they contributed $5,000 for furniture at the beginning of cohabitation.
The husband’s father swore an affidavit and was cross-examined. He said the payments he and his wife gave the parties came from their joint account in Town S. He was asked about a cheque the wife saw which was from (omitted) Pty Ltd. The paternal grandfather said that when he had his (business) that was his service company. He said there is no family trust. He said the wife was often present when they gave the husband money. The wife concedes that the husband’s father built a fence for them.
The wife says that the husband did not always make the $300 fortnightly payment. After being shown the bank statements during her cross-examination, the wife accepted that $11,000 was deposited into the joint account. She says they opened that joint account in 2012 when they were planning to buy a house.
The husband’s Counsel suggested to the wife that she was not across the parties’ financial matters. She said she was not aware where their money was going at the time.
The wife runs her own business as a (employment omitted). She earns a modest income from the business of not more than $30,000. The wife gave evidence that she has had to cease work in the past couple of months because of ongoing kidney stone problems which she is being treated for and that she is currently in receipt of Centrelink benefits. She has not filed any medical evidence. She did say she is receiving treatment currently and is not sure how long that will last, but she has some hope of returning to the business in the future. The nature of her work arrangements mean that she primarily works on weekends and school holidays.
The husband is a (occupation omitted) earning approximately $70,000 per annum. His evidence is that he works part time but earns overtime so his earnings are about the same as what he would earn if he worked full time. He was not challenged in cross examination about his income.
The wife says it is the husband’s choice to work part time.
The wife conceded that the husband looked after the children on some of the weekends when she worked. As she is a (occupation omitted) her work tends to be on weekends and school holidays.
The parties’ legal and equitable interests
The parties agree that they have the following assets and liabilities available for division between them:
Assets
ownership
$
Property A W 1,100,000 Motor Vehicle K W 6,950 Car H 10,000 Total Assets 1,116,950 Liabilities Property A mortgage W 17,000 Personal loan representing joint credit card debt H 32,000 Total Liabilities 49,000 Net assets 1,067,950 Superannuation W 3,279 H 91,346 Total Superannuation 94,625 Net assets plus superannuation 1,162,575
The wife’s submissions
The wife’s submissions were that she has made the overwhelming contribution to the relationship. The asset the parties have now is the asset she had at the beginning of the relationship.
The wife’s Counsel argued that the husband is 38 and in good health whilst the wife is 50 and in poor health. Whilst the wife has re-partnered, it is not contested that her partner lives in (country omitted) and is unable to travel to Australia and she has no intention of going to (country omitted). He does not provide her with any financial support.
The wife’s Counsel emphasised the importance of not making an order for a property adjustment just because the relationship lasted over 10 years. Her Counsel focused on contributions like the fact that the mortgage has been reduced by about $75,000 in 10 years. He acknowledged that the husband’s parents did give some gifts to the parties but not to the extent that the husband claims. The husband conceded that the wife was the primary parent and homemaker. In addition, the s.75(2) factors also overwhelmingly favour the wife.
He submitted that the husband is younger than the wife, has re-partnered and will be able to build up assets and has the capacity to earn, whereas the wife does not have that capacity. The husband was not challenged in his evidence that his partner is a student living in New South Wales.
The wife’s Counsel submitted that this is an exceptional case where the husband made minimal contributions. The mortgage was modest and this is an exceptional case where a comparison of the contributions are that the husband’s contributions were minimal compared to the wife’s and that in addition the wife has significant s.75(2) factors in her favour. The wife cannot afford to refinance the property. It would not be equitable to require her to make a payment to the husband as she would lose the house she brought into the relationship.
The husband’s submissions
The husband’s case is that there should be a split of the husband’s superannuation interests equalising the parties’ entitlements. The husband seeks an order that the wife pay him the sum of $395,828.95 which he says represents 35% of the net non-superannuation assets. A 10% differential for the wife’s initial contributions is $213,000. His Counsel cautioned against double counting a s.75(2) adjustment for the wife’s care of children and the disparity in the parties’ income.
The husband says that this recognises her significant initial contribution and also provides for a 5% adjustment in her favour for s.75(2) factors.
The wife’s case is that there should be no adjustment to the parties’ property entitlements, leaving the wife with the house subject to the mortgage and her car and the husband with the personal loan, his car and superannuation. The husband says that on the wife’s case he would walk away with joint debt and his superannuation and she would walk away with a house worth over a million dollars. This would be an unjust result.
The husband’s Counsel argued that Stanford & Stanford (2012) 247 CLR 108 is the authority for a number of propositions but those propositions do not include that the court must look at the minutiae of parties contributions. The court must not conflate considerations and must determine what is just and equitable in an unprincipled manner. She submitted that the cases the courts have considered since Stanford where it has been found that is not just and equitable to make any adjustment of the property interests have been in the following circumstances:
a)short marriages;
b)where the parties kept their finances separate; and
c)the parties agreed that neither of them would make a claim.
The husband’s Counsel further submitted that the difficulty in this case has been that the wife presented her case as a Stanford case when it has never fallen into that category.
The parties were in a relationship for 10 years and 10 months. The husband argues that apart from the wife’s initial contribution, their contributions should be seen as equal.
The wife’s evidence with respect to the contributions made by the husband was vague. The wife has now further conceded that the credit card debt was a joint debt and that the personal loan the husband has is a result of that debt. The wife has, at the very least, conceded that the husband’s parents contributed $30,000.
The reality is that the wife brought to the relationship an asset with an agreed equity of $233,000 and it is appropriate that this is recognised but it would be disproportionate to not make any adjustment for special market forces contributed to increasing the value of the property as well as the myriad of contributions the parties have made.
The husband’s Counsel submitted that, apart from the initial contributions by the wife, their contributions should be seen as equal. This takes into account the gifts from husband’s parents. Alternatively, there should be a 5% adjustment in the wife’s favour for her contributions.
With respect to s.75(2) factors the reality is that the wife earns a modest income from her business. There is no medical evidence with respect to the impact of any medical condition on her earning capacity and an adjustment cannot be made on the basis of her health in these circumstances.
The husband has no objection to the wife being given the opportunity to make a payment to him without selling the house. However, the reality is, that given her lack of borrowing capacity, she will need to sell her house and both parties will need to rehouse themselves.
The husband’s Counsel agreed to the submission that the sale clause should be expressed in percentage terms not fixed amount.
With respect to the proposition that the husband should keep all of his superannuation to enable the wife to retain the house, in circumstances where there is no evidence as to the wife’s capacity to make any payment to the husband even if the husband retains all of his superannuation, I am not satisfied that it would be just and equitable for there to be no apportionment of the parties entitlements with respect to both currently realisable and deferred assets.
The husband’s Counsel submitted that the husband was not challenged about evidence with respect to his partner. In my view, the fact that both parties have re-partnered does not advance matters when neither is cohabiting with their partner and there is no evidence that either partner provides any financial support.
Finally, the husband’s Counsel submitted that the decision must be made in a principled manner. The argument put by the wife’s Counsel was that it would not be just and equitable to make an adjustment because in the future the husband may be married and have a house with a mortgage, whereas the wife will not be in that position, is not supported by any authority. To take those things into account would result in error. I accept these submissions.
Discussion of legal principles and conclusion
Until the High Court decision in Stanford & Stanford (2012) 247 CLR 108, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Act in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
“It will be recalled that s 79(2) provides that "[t]he 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. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
1. Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
2. Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
3. Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
The High Court also pointed out that what is just and equitable is different in every case.
In Pierce v Pierce (1998) FLC 92-844 at paragraph 28 the Full Court said:
In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. 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.
In Williams & Williams [2007] FamCA 313 the Full Court states at the paragraph 26:
We think 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 between 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 of the time it was realised rather than simply pay attention to its initial value at the time of commencement of cohabitation. But in doing so 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.
I have considered the other cases referred to by counsel being Norman& Norman [2010] FamCAFC 66; Clauson & Clauson [1995] FamCA 10 and Hunt & Zuryn [2005] FamCA 297. It is not necessary to discuss them separately.
In this case, most of the asset pool is made up of the wife’s initial contributions. She had significant equity in that property at the beginning of the relationship. The property has increased significantly in value during the course of the relationship. Whilst the husband refers to doing some works on the property, they are not major.
The comments of the Full Court in Eufrosin v Eufrosin [2014] FamCAFC 191 with respect to the holistic nature of the task of assessing contributions throughout the whole relationship are relevant here.
The Court is obliged not just to identify and assess the wife’s initial contributions but all the parties’ contributions. It is not disputed that the wife was the primary parent and homemaker and the husband was the primary income earner. The husband also contributed to the parenting of the children and the wife also earnt an income. In addition to these contributions, there are the contributions made on behalf of the husband by his parents.
Both parties seek the sale order be expressed in percentage terms. The Full Court in Jarrott and Jarrott [2012] FamCAFC 29 succinctly explain why this is the correct approach at [21]:
As is not in doubt, and the authorities to which Senior Counsel for the husband referred confirm, the Court has consistently held that orders involving the realisation of assets for their implementation should be expressed in percentage terms so that the outcome of the realisation of such assets does not alter the overall percentage entitlements of the parties in the event of the asset, or assets, being realised for significantly more or less than the values relied upon at trial (see Waters & Waters (1981) FLC 91-019, Smith & Smith (1991) FLC 92-261 at page 78,759 and Docters Van Leeuwen & Docters Van Leeuwen (1990) FLC 92-148 at page 78,024).
I am satisfied that the wife has s.75(2) factors in her favour. She is older than the husband and has flexible working life ahead of her. She has integrated care of two children. The husband also has a greater earning capacity than the wife.
The introduction of the reforms to superannuation legislation[2] enabling the Court to make superannuation splitting orders in 2002 was a significant reform enabling parties’ superannuation interests to be treated as assets that can be divided between the parties rather than as a financial resource. It is important to recognise that superannuation is a different species of assets than assets that are readily available to both parties. Parties cannot access the superannuation until they satisfy a condition of release. The public policy behind compulsory superannuation is clear. When parties separate there is a tension between the parties seeking to have access to readily realisable assets in order to re-establish themselves and superannuation is to provide for their retirement.
[2] The Family Law Legislation Amendment (Superannuation) Act 2001 (Cth) inserted Pt VIIB into the Family Law Act 1975 (Cth). Part VIIB provides the court with the ability to make orders which “split” superannuation.
The parties’ superannuation form a modest part of the pool, being the sum of 8%. The wife has minimal superannuation. The wife seeks that there be no superannuation split in order to reduce any payment she is ordered to make to the husband. The husband says that there should be an equal superannuation split. The wife currently has little superannuation. The husband will be spending substantial and significant time with the children. He pays child support. The circumstances of this case are not such that I am satisfied that there should be no superannuation split, particularly in the absence of any evidence that that would make a difference between the wife being able to retain the home and pay the husband out or selling the home. I will make the superannuation splitting order the husband seeks which will equalise the parties’ superannuation entitlements.
The wife’s proposed outcome is not within the range of what is just and equitable. It would see the husband walk away with just his car and $32,000 in joint debt and his superannuation that represents 6% of the net asset pool including superannuation. However, the wife’s initial contributions must be given real and substantial weight given that the vast majority of the asset pool remains the asset which she brought to the relationship.
I am satisfied that there should be a division of the parties’ non-superannuation assets the proportion of 80% to the wife and 20% to the husband. This acknowledges a 5% adjustment for the wife’s s.75(2) factors and a 25% adjustment acknowledging significantly greater contributions. The effect will be that the wife will receive $854,360 and the husband will receive $213,590 of the net non-superannuation pool.
The parties will keep their cars.
I am satisfied that the orders I make are just and equitable.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 12 October 2018
Key Legal Topics
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Family Law
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Equity & Trusts
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