Gough v City of Holdfast Bay (No 4)
[2014] SADC 79
•12 May 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
GOUGH AND ORS v CITY OF HOLDFAST BAY (No 4)
[2014] SADC 79
Reasons for Decision of His Honour Judge Slattery
12 May 2014
EVIDENCE - WITNESSES - IMPEACHING AND RE-ESTABLISHING CREDIT AND EVIDENCE IN CONTRADICTION
Application by the defendant to re-open cross examination of the plaintiff Mr Osman. Defence Counsel seeks the re-opening of cross examination on two grounds – first, on the issue of Mr Osman’s credit, and secondly, that the proposed topic of cross-examination goes to the undertaking as to damages given by Mr Osman in support of an earlier injunction granted by the Court. Question of whether either of those matters are of “sufficient substance” to warrant re-opening of cross examination.
Held:
Matters pertaining merely to the credit of a witness are not of sufficient substance to warrant cross examination.
An enquiry into whether or not the injunction which has been granted in the matter should be sustained, at least in respect of Mr Osman, is a matter of sufficient substance.
Application granted.
Stamp Duties Act 1923 (SA) s71CB ; Evidence Act Generally, referred to.
R v Gassy (No. 3) (2005) 93 SASR 454; Searle v Keayes (1994) 126 ALR 728; Brown v Petranker (1991) 22 NSWLR 717 ; R v Masters (1992) 26 NSWLR 450 ; R v Grant (1958) Crim LR 42; Earl Slick, Leo Michael Seward and Virginia Joy Seward v Westpac Banking Corporation and Ors. [2006] FCA 1711, considered.
GOUGH AND ORS v CITY OF HOLDFAST BAY (No 4)
[2014] SADC 79JUDGE SLATTERY
Application by the defendant to re-open the cross examination of the plaintiff, Mr Raffi Osman. On the 9th day of May 2014 I announced my decision that I would grant permission to the defendant to re-open the cross examination of the plaintiff Mr Osman and that I would later deliver my reasons. These are those reasons.
At pages 1238 and 1239 of the transcript, Mr Osman gave the following evidence concerning real property at Seaview Road, Henley Beach and a marina berth at North Haven both of which were owned by him jointly with his wife.
Q.Moving to another topic and hopefully the final topic, it’s the case, isn’t it, that you are jointly the owner of an apartment which is located at No.7/192 Seaview Road, Henley Beach.
A.Yes, a unit, yes.
Q. You own that with your wife.
A.Yes.
Q.Is that unit rented out.
A.No.
Q. Is it occupied by your son.
A.From before the eviction date, he was there, yeah but after we got the eviction day, we left it empty in case something might happen to us or whatever.
Q. In case you might have the need to move into it.
A.Yes.
Q.It’s also the case, I think, that you own a marina berth at North Haven.
A.Yes.
Q.Is that in the area where the Cruising Yacht Club is.
A.No, it’s Heritage Cove, they call it.
The Seaview Road Henley Beach property is more commonly known as Unit 7, 192 Seaview Road Henley Beach South 5022 and is the whole of the land comprised in Certificate of Title Register Book Volume 5030 Folio 910 (the “Henley Beach property”). The marina berth property is more commonly known as Unit 132, 5A Alexa Road North Haven 5018 and is the whole of the land comprised in Certificate of Title Register Book Volume 5385 Folio 346 (the “North Haven property”).
In his evidence, Mr Osman confirmed that he was the owner jointly with his wife of both of these properties.[1] The relevant pleading of Mr Osman concerning his ability to fund alternative accommodation and the effect of the termination of his residential park site agreement was formerly set out in annexure 12 of the Statement of Claim and at paragraph 16. Prior to Mr Osman being called to give evidence, Mr Tokely SC informed the Court that Mr Osman withdraws the allegations in paragraphs 16.2 and 16.5 of the pleading in annexure 12.[2] In those pleadings, Mr Osman alleged that he would be without a primary place of residence and would be unable to purchase another home if the defendant was permitted to take steps to prevent each plaintiff from continuing to reside in the Caravan Park.
[1] The references made hereafter to the dealing by Mr Osman with his interest in these properties is a reference to that interest in them held by Mr Osman jointly with his wife.
[2] 16. If CHB takes the steps referred to in paragraph 15, Mr Osman:
16.2 will be without a primary place of residence;
16.5. will be unable to purchase another home.
As a consequence, no evidence in chief was led by Mr Tokely SC from Mr Osman concerning his real property assets. It was during the defendant’s cross examination of Mr Osman by Mr Harris QC that the issue of the real property assets belonging to Mr Osman (and his wife) was raised.[3] On one view, the cross examination did not go to a relevant topic having regard to the content of Mr Osman’s pleading, however, Mr Osman also has the benefit of an injunction restraining the defendant from purporting to re-enter the Caravan Park having terminated the residential park site agreements.[4] In support of the injunction obtained by, inter alios, Mr Osman, an undertaking as to damages was given by Mr Osman. The cross examination of Mr Harris QC was, presumably, directed to that topic; as no objection was raised at the time of the cross examination, the issue of the purpose of the cross examination was not canvassed at the relevant time.
[3] Viz transcript 1238 et seq.
[4] [2013] SADC 170.
In support of the application, the defendant reads the affidavit of Sable Amelia Rose sworn 6 May 2014 (FDN 69). The affidavit informs the Court that Ms Rose, a legal administrative assistant employed by the solicitors for the defendant, has routinely conducted Property Assist online searches in respect of, inter alios, Mr Osman. Ms Rose informs that on Friday 2 May 2014 she conducted an online Property Assist Search in respect of Mr Osman and identified that Mr Osman was reported to be one of the registered proprietors of the Henley Beach and North Haven properties. This search was conducted three days after Mr Osman gave his evidence in cross examination at transcript 1238 et seq on Tuesday 29 April 2014.
Ms Rose also informed that on 5 May 2014 she conducted a further Property Assist search in respect of Mr Osman and identified that the search indicated that Mr Osman was no longer the registered proprietor of the Henley Beach and North Haven properties. Ms Rose obtained transfer documents in respect of those properties and copies of those two transfers are annexed as the second and third exhibits to the affidavit of Ms Rose.
Each of the transfers are dated 3 April 2014 and each disclose a transfer of the relevant interest of Mr Osman in the properties to his wife Bronwyn Meryl Osman in consideration of mutual love and affection. These purport to be transfers between spouses under the operation of s71CB Stamp Duties Act 1923 (SA).[5] In order for the exemption from duty to apply, it is necessary for the relevant property to be the principal place of residence of Mr Osman and his wife. No evidence has been led before me of this fact and the relevant pleadings of Mr Osman and the evidence given by Mr Osman in this Court is inconsistent with the Henley Beach property being the principal place of residence of Mr Osman and his wife.
[5] 71CB—Exemption from duty in respect of certain transfers between spouses etc or former spouses etc
One important matter for consideration and which arises from the submissions in response made by Mr Tokely SC is the relevant dating of the transaction. Following receiving these submissions and the opportunity to more closely examine the exhibits to the affidavit of Ms Rose I formed the view that in order to decide upon that issue and resolve the defendant’s application it would be necessary for me to receive further evidence concerning South Australian conveyancing practice to explain to me the process of lodgement and then registration of transfers. The defendant has filed a further affidavit affirmed by Rebecca Jane Vaysey, a land conveyancer employed by the firm of solicitors, Wallmans Lawyers and dated the 8th day of May 2014. I have given permission to the defendant to also read that affidavit in evidence in support of this application.
Having regard to all of the information that has now been put before the Court, and confining my considerations to the transfer in respect of the Henley Beach property,[6] I can identify the following matters from the document of transfer.
[6] Although I have confined my considerations to the Henley Beach property, the issues arising in relation to that property are identical to those relating to the North Haven property and so I will not separately deal with the North Haven property in these comments. My comments hereafter concerning the Henley Beach property apply mutatis mutandis to the North Haven property.
The transfer is dated 3 April 2014. The registered conveyancer (who has drawn the transfer), Katherine Stolinski has verified the identity of the transferor and the transferee on 31 March 2014. It may thus be readily assumed and I find that it is probable, that the document was signed by Mr and Mrs Osman on or about 31 March 2014 or between that date and 3 April 2014, even though the transfer is dated 3 April 2014. For reasons which I will explain, nothing turns on that fact.
The back sheet of the Memorandum of Transfer provides a number of pieces of information. A Revenue SA stamp in relation to revenue transaction number RX130256331 that is imprinted on the back sheet of the transfer has been completed and is dated 3 April 2014. The usual conveyancing practice is to date the transfer on the same date as the date of assessment of stamp duty on the transfer. Under the Stamp Duties Act 1923, a transaction consisting of a transfer of a principal place of residence from one spouse to another is not susceptible to stamp duty (under the operation of s71CB Stamp Duties Act 1923). The Revenue SA stamp is signed and completed by Katherine Stolinski in accordance with usual conveyancing practice of self assessment for stamp duty. Under that practice, Ms Stolinski, as the registered conveyancer, makes an assessment of stamp duty in respect of the transfer having regard to the content of the Stamp Duties Act and published data of Revenue SA. This includes an assessment of whether any (and if so how much) ad valorem stamp duty is assessable and payable on the transfer. Thus, the Revenue SA stamp was completed by Ms Stolinski at the time that the assessment was made by her, as the registered conveyancer, of the duty assessable in respect of the transfer. Revenue SA, as the taxing authority, is not bound by that assessment and may revisit and reassess the transfer within its discretion.
In the top left hand corner of the back sheet of the transfer, is a barcode stamp. It identifies a number of pieces of information. First, it provides, for the public record, the number of the transfer so that, if the transfer was to be reproduced, it would be identified by a specific number.[7] The barcode stamp also describes the date and time of the lodgement of the transfer. The time is 11:46 am and the date is 8 April 2014. Thus, the evidence discloses that the transfer that was executed on or about 31 March 2014, was dated 3 April 2014 and was lodged at the General Registry Office of the Lands Titles Office on 8 April 2014.
[7] T12112053.
In accordance with the usual operation of the General Registry Office of the Lands Titles Office, the document of transfer must be examined within the General Registry Office for any errors. Insofar as there are any corrections to be made to the transfer, then the document is normally returned to the parties for corrections and then re-lodged. There were no corrections and the transfer was registered on 1 May 2014. The transfer of the North Haven property was registered on 2 May 2014 but for present purposes I will only make reference to a transfer registered on 1 May 2014.
The registration of the transfer on 1 May 2014 is the identification of the commencement date of the indefeasibility of title of Bronwyn Meryl Osman as the sole registered proprietor of the Henley Beach property. That date does not identify the date upon which the whole of the equitable beneficial interest in the property was transferred to Bronwyn Osman which, at the latest, was 3 April 2014 and more likely was 31 March 2014. From no later than 3 April 2014, Mr Osman was the legal owner of an interest in the property as a registered joint proprietor, the equitable interest in which was beneficially owned by his wife. From no later than 3 April 2014, Mrs Bronwyn Osman had the right to lodge a caveat to protect her interest in the property as the equitable owner of the whole of the beneficial interest therein pursuant to the terms of the transfer executed between herself and her husband.
It follows that as at 29 April 2014, the date upon which the evidence was given by Mr Osman, he was not the beneficial owner of an interest as a joint registered proprietor in the property and was merely registered as the legal owner of that interest awaiting the registration of the transfer by the General Registry Office of the Lands Titles Office after the transfer was examined for corrections and then passed.
Mr Harris QC has sought to further cross examine Mr Osman on the question of the transfer for two principal reasons. The first was in relation to the sustainability of his undertakings as to damages. Mr Harris QC also seeks to cross examine Mr Osman so as to raise the inference that Mr Osman has failed to make full disclosure to the Court in relation to his asset position when he was asked about the two real property assets as identified in cross examination on 29 April 2014, day 14 of the trial. Mr Harris QC described that as the substantive matter of cross examination even though it may largely be limited to an issue of credit.
Mr Harris QC contended that the cross examination would affect the credit of Mr Osman; he contended that it was not a basis to refuse leave merely because the further cross examination would be directed to the credit of Mr Osman.
Mr Tokely SC submitted that the only basis made out by Mr Harris QC on the application was in relation to credit and the issue of credit was peripheral and irrelevant because, properly construed, the relevant transfer did not take place until 1 May 2014 and the evidence had been given by Mr Osman on 29 April 2014. Thus, according to the argument of Mr Tokely SC, the evidence, when given by Mr Osman, was correct. And, as there is no substantive issue that would require further cross examination of Mr Osman, the best the defendant could hope for would be collateral attack on the credit of Mr Osman and that should not be permitted.
The Full Court of the Supreme Court of South Australia in its decision in R v Gassy (No. 3)[8] considered the relevant principles applicable when an application is made to further cross examine a witness.[9] The relevant position of the judgment of the majority[10] reads as follows:-
“10.1 The Principles
[318] A decision to recall a witness whose evidence has been concluded for further cross-examination, or to allow further cross-examination of a witness still in the witness box after the re-examination has been completed, involves an exercise of discretion by the trial judge.[11] That discretion is to be exercised having regard to the requirements of the interests of justice in the circumstances of the case.[12] Ordinarily, the interests of justice would favour the grant of leave where the evidence sought to be adduced has been overlooked and no prejudice would be occasioned to the other party.[13] Some authorities have gone further and held that generally speaking a judge should always accede to a request to have a witness recalled for cross-examination upon a point of substance which has been overlooked - however incompetently – unless real and incurable prejudice may be occasioned to the opposing party.[14] Obviously practical considerations may also intrude: the availability of the witness and the ease with which he or she may be located so as to be recalled will be relevant matters.”
[8] (2005) 93 SASR 454.
[9] At paragraph [318].
[10] Bleby and White JJ.
[11] Brown v Petranker (1991) 22 NSWLR 717 at 728.
[12] Ibid at 728.
[13] Ibid at 728.
[14] R v Masters (1992) 26 NSWLR 450 at 480. See also R v Grant (1958) Crim LR 42.
There are a number of guiding features that apply in these circumstances. In Searle v Keayes,[15] Tamberlin J considered an application for permission to recall and further cross examine a witness. His Honour commenced a consideration of the relevant principles[16] with the following statement:-
“One important consideration is that litigation must be resolved and not be the subject of continuous re-opening and prolongation.”
[15] (1994) 126 ALR 728.
[16] At page 729.
In that case, a litigant had been self represented until the fifth day of trial and was then able to obtain representation under a relevant scheme conducted by the New South Wales Bar Association. In the course of the five days of hearing when the applicant had personally cross examined a particular witness, the Court had given the applicant two further opportunities to further cross examine the witness. The application disclosed that what was sought to be done was to re-canvass a very large part of the testimony of the applicant and the witness and to reopen it for cross examination. Thus, there were a number of issues in this case: the first was the continuous reopening and prolongation of the case and the second was whether the Court would exercise its discretion and vary what was described as a long tradition that: “only one counsel should question during a single stage in the examination of a single witness…” and that “…this tradition rests on the wise policy of protecting the witness from undue and confusing interrogation as well as securing system and brevity by giving it control of the interrogation into a single hand.”[17] In Searle, all of these matters were taken into account by Tamberlin J in coming to the conclusion that the application should be dismissed.
[17] At page 729 lines 25-29.
In R v Gassy (No. 3), the majority of the Full Court of the Supreme Court of South Australia referred with approval to the principles stated in the New South Wales Court of Appeal decision in Brown v Petranker.[18] That case concerned an application by a party to recall a witness to give further evidence in chief. A number of Courts appear to have formed the view that the principles there stated by Clarke JA are appropriate when considering an application to recall a witness for further cross examination. Relying also upon those decisions and the decision of Jacobson J in Earl Slick, Leo Michael Seward and Virginia Joy Seward v Westpac Banking Corporation and Ors.[19] the relevant principles may be summarised as follows:-
1. The overriding considerations are the interest of justice;
2. The exercise of the Court’s discretion is dependent upon whether the interests of justice require leave to be granted or refused. This enquiry includes an examination of any prejudice to the other party;
3. There are no set or established criteria which guide the exercise of the Court’s discretion in any particular matter. The factors which influence or inform the exercise of the discretion will vary between cases but two matters may be stated as being informative (without being specified as particular rules) and they are:-
3.1 Whether the evidence sought to be adduced in cross examination is likely to be sufficiently probative to carry any real weight in the determination of the issues or is otherwise of sufficient substance;
3.2 Whether there is real prejudice caused either by a delay between the conclusion of the evidence and the time of a proposed recall and whether the person sought to be recalled may have lost the opportunity to adduce evidence from other witnesses on particular topics in respect of which that person would be further cross examined.[20]
[18] (1991) 22 NSWLR 717 at 728-9 by Clarke JA (with whom Handley JA and Waddell AJA agreed).
[19] [2006] FCA 1711.
[20] Slick v Westpac Banking Corporation at paragraphs [7], [8], [9] and [10].
The interests of justice in this matter are, to an extent, evenly balanced. It is open to the defendant to tender in evidence under the Evidence Act the material in the affidavit of Ms Rose that is part of the public record and to lead evidence through other witnesses in amplification of the matters tendered under the Evidence Act which strike at the credibility of Mr Osman. At one level, the challenge to Mr Osman may be said only to be an attack on his credit, but conversely there has been no suggestion that any further examination of Mr Osman would cause any prejudice to him. In my opinion, none is apparent.
I turn then to consider whether or not the evidence to be adduced in the cross examination will be sufficiently probative to carry any weight in the determination of the issues in the trial. I agree with the submissions of Mr Tokely SC that, without more, merely to assert that Mr Osman may have given wrong evidence is no more than an attack on his credit and is a matter that does not necessarily require further cross examination of him; this, in turn, would not lead to a favourable exercise of the Court’s discretion on the application of the defendant. However, in my opinion, this question raises a number of separate and different considerations. The plaintiffs did not object to the cross examination of Mr Osman on the topic of his assets that, on one view, was not relevant having regard to the amendments made to the separate Statement of Claim concerning Mr Osman. That cross examination therefore could have been relevant only to another matter namely the sustainability of the undertaking as to damages given by Mr Osman in support of the injunction. This is apparently not a matter of substance in the trial as that expression would commonly be understood but conversely, is a matter of substance for the defendant (and, by ordinary inference, the plaintiff Mr Osman). This is because the orders with injunction have been made against the defendant on the application of, inter alios, Mr Osman and the grant of which required Mr Osman to give the undertaking as to damages.
Mr Harris QC argued that it was implicit, that, subject to the usual expenditure on the exigencies of life and legal fees, from the time the undertaking as to damages was given, a plaintiff who enjoyed the benefit of the injunctive order, would continue to carry the burden of the undertaking as to damages and would not therefore purport to alienate his or her assets. I was not directed to any particular authority supporting that proposition. I am unable to accept the submission. The proposition is gainsaid by the very activity of the solicitors for the defendant who have continued to make enquiries about the asset position of Mr Osman (and I presume all of the other plaintiffs who have given the undertaking as to damages). The enquiry is (quite properly) directed to a number of issues including about whether the plaintiffs or any of them continue to be able to sustain the undertaking as to damages.
However, in my opinion that is not the end of the matter. Having regard to the forms of expression used by Jacobson J in Slick and to the decision of the majority of the Full Court in R v Gassy (No. 3), there is no specification on what may be evidence of a matter “otherwise of sufficient substance”.[21] In my opinion, a proper reading of paragraph [9] of the decision of Jacobson J in Slick would suggest that the question of the determination of the issues at trial and arising on the pleadings informs but does not necessarily confine what would be evidence, that is “…otherwise of sufficient substance…”. If it were otherwise, then presumably, the disjunctive “or” would not have been used by his Honour and the conjunctive “and” would have been used before the words “otherwise of sufficient substance” in the last line of paragraph [9] of his Honour’s judgment. That view is consistent with the breadth of the expression of that concept by the majority of the Full Court in R v Gassy (No. 3) at [318].
[21] Compare R v Gassy (No. 3) at [318] and Slick v Westpac at [9].
In Gassy, the majority of the Full Court at paragraph [318] discussed “substance” in the context of a point of substance that had been overlooked in earlier cross examination. My reading of that judgment does not suggest that any question of substance is limited to matters overlooked. Such a contention would also be inconsistent with the Court’s unfettered discretion. In my opinion the evidence under consideration here may inform matters that have already arisen in the proceedings or matters that may develop in the future, the genesis of which may be uncertain or that are embryonic but which are matters that in the ordinary application of proper skill and diligence should be pursued in evidence.
This is not to say that a party may seek in such an application to embark upon further cross examination on matters and issues extraneous to the action. This is why the application for leave should ordinarily disclose the proposed topics for further cross examination. That said, there will often be evidence which is “…otherwise of sufficient substance…” that relates to the proceedings as a whole and about which one or other of the parties would seek to inform the Court. An obvious example is the case in point: the plaintiffs have the benefit of the injunction at the cost of the burden of the undertaking as to damages. A plaintiff who has given the undertaking but then shifts away his assets by a process of alienation of them without a concomitant benefit in return, in my view, raises a matter about which there may be further cross examination in order to derive evidence that is otherwise of sufficient substance. The further cross examination will also be allowed because the actual position was known only by the plaintiff Mr Osman and the defendant was, at the relevant time of the cross examination, without the means to ascertain the true position despite the application of all proper diligence required of a solicitor. It was in that background that the earlier cross examination occurred.
Therefore, on the question of matters of “evidence … otherwise of sufficient substance …”, it is my opinion that an enquiry as to whether or not the injunction which has been granted in the matter should be sustained, at least in respect of Mr Osman, having regard to the undertaking as to damages that he has given and his subsequent dealing with his assets, are matters about which there should be further cross examination. That view is reinforced by two further matters. The first is that at the time that he was cross examined, there was no evidence obtainable by reasonable enquiries by the defendant to indicate that Mr Osman had in any way dealt with his assets. The affidavit of Ms Rose referred to earlier in this judgment, indicates that the solicitors for the defendant have diligently followed up on the position of Mr Osman. The second is that Mr Osman was cross examined on the topic. At the time that he was cross examined, there was no doubt that he was no longer the equitable owner of his joint interest in each of the properties and he was merely the legal owner of them beneficially for his wife until such time as the transfers that had been signed and lodged were registered. The whole of the beneficial interest in both the properties therefore belonged to his wife as the equitable owner of them, he was the legal owner of the joint interest in the properties which he held for the benefit of his wife and he was not in a position to deal with that beneficial interest in the properties at the relevant time that he was cross examined. Insofar as he had any interest as an owner, he held that interest beneficially for his wife, to whom he had transferred his interest. He failed to give evidence of any of these matters.
Finally, addressing what the majority of the Full Court described as practical considerations in its decision in R v Gassy (No. 3) at [318], there is no suggestion of any prejudice said to arise by reason of the delay between the conclusion of Mr Osman’s evidence and the time of his proposed recall nor may it be suggested that Mr Osman has lost any opportunity to adduce evidence from other witnesses in the proceedings. This is so for a number of reasons, not the least of which is that separate Statements of Claim have been included as annexures to the principal Statement of Claim in this action so that each of the plaintiffs is in a position to inform the Court of their particular personal circumstances.
Therefore, in the exercise of my discretion, I order that the application of the defendant be granted, and that Mr Osman be presented for further cross examination on the topics as adumbrated earlier in these reasons at a time to be fixed by the Court.
(1)In this section—
shared residence means—
(a) in relation to spouses or domestic partners—their principal place of residence of which both or either of them is owner;
(b) in relation to former spouses or domestic partners—their last principal place of residence of which both or either of them was owner,
but does not include premises that form part of industrial or commercial premises.
(2)Subject to subsection (3), an instrument of which the sole effect is—
(a) to transfer—
(i)an interest in a shared residence; or
(ii)registration of a motor vehicle,
between parties who are spouses or former spouses, or domestic partners or former domestic partners; or
(b) to register a motor vehicle in the name of a person whose spouse or former spouse, or domestic partner or former domestic partner, was the last registered owner of the vehicle (either alone or jointly with the person),
is exempt from stamp duty.
(3) An instrument described in subsection (2) between parties who are former spouses or former domestic partners is only exempt from stamp duty if the Commissioner is satisfied that the instrument has been executed as a result of the irretrievable breakdown of the parties' marriage or relationship.
(4) Where an instrument was not exempt from stamp duty under this section by reason only that the Commissioner was not satisfied that the instrument had been executed as a result of the irretrievable breakdown of the parties' marriage or relationship, the party by whom stamp duty was paid on the instrument is entitled to a refund of the duty if the Commissioner is subsequently satisfied that the instrument had been executed as a result of the irretrievable breakdown of the parties' marriage or relationship.
(5) The Commissioner may require a party to an instrument in respect of which an exemption is claimed under this section to provide such evidence (verified, if the Commissioner so requires, by statutory declaration) as the Commissioner may require for the purpose of determining whether the instrument is exempt from duty under this section.
(6)This section applies in relation to instruments executed after its commencement.
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