GWR v VAR
[2006] FamCA 894
•14 September 2006
[2006] FamCA 894
JFGWRVAR
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT HOBART
Appeal No. SA 23 of 2005
File No. HBF 650 of 2003
IN THE MATTER OF:
GWR
Appellant/Husband
- and -
VAR
Respondent/Wife
REASONS FOR JUDGMENT
BEFORE: Bryant CJ, Finn & Coleman JJ
DATE OF HEARING: 4th day of October 2005
DATE OF JUDGMENT: 14th day of September 2006
APPEARANCES: Mr Mason of Counsel, (instructed by Clerk Walker Solicitors, 57 Davey Street, Hobart TAS 7000) appeared on behalf of the appellant husband.
Mr Proctor of Senior Counsel, (instructed by Murdoch Clarke Solicitors, 10 Victoria Street, Hobart TAS 7000) appeared on behalf of the respondent wife.
Name of Appeal GWR & VAR
Appeal Number SA 23/2005
Date of Appeal hearing 4th day of October 2005
Date of Judgment 14th day of September 2006
Coram Bryant CJ, Finn, Coleman JJ
Catchwords: APPEAL – from decision of Family Court judge - Whether the trial Judge erred in declining to find that the husband’s girlfriend would require the husband to repay his debt to her of $67,000 – Trial Judge’s findings of fact not successfully challenged – Open to the husband to have called his girlfriend to give evidence – Open to trial Judge, to the extent he did, to draw a Jones v Dunkel (1959) 101 CLR 298 inference.
APPEAL – from decision of Family Court judge – Whether the trial Judge erred in preferring the unsubdivided value of the former matrimonial home to the subdivided value – Discussion of principles applicable to valuation of land, namely “valuation for highest and best use” – Valuation principles applicable to valuation of former matrimonial home – Challenge to trial Judge’s decision successful – Discretion re-exercised and subdivided value substituted for value of former matrimonial home.
APPEAL – from decision of Family Court judge – Whether the trial Judge erred in his treatment and valuation of the husband’s superannuation interest – Discussion of approach to, and valuation of, superannuation – C v C (2005) FLC 93-220 followed – No error found on behalf of the trial Judge – Trial Judge’s discretion did not miscarry in relation to either the date at which the superannuation interest was valued or his conclusion in relation to contributions.
Jones v Dunkel (1959) 101 CLR 298
Spencer v Commonwealth (1907) 5 CLR 418
Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980) 146 CLR 336
Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor (2003) 129 LGERA 65
C v C (2005) FLC 93-220
Appeal allowed – discretion re-exercised.
Costs certificates ordered.
By Amended Notice of Appeal filed in Court on the hearing of the appeal, the husband appealed against orders made by Hannon J in proceedings between himself and the wife on 5 April 2005, and amended on 20 April 2005. The effect of his Honour’s orders was to transfer to the wife the former matrimonial home of the parties at B in the state of Tasmania, together with various items of personalty, the wife’s superannuation entitlement, and provision in the sum of $181,981.00 out of the superannuation entitlement of the husband in the Commonwealth Superannuation Scheme by way of a splitting order pursuant to Part VIIIB of the Family Law Act 1975 (Cth) (“the Act”). The trial Judge’s orders also provided for the husband to retain realty at E, together with various other identified items of personalty and the balance of his superannuation interests in the Commonwealth Superannuation Scheme. In lieu of the trial Judge’s orders, the husband sought orders as set out in the Amended Notice of Appeal. The wife resisted the husband’s appeal and sought to maintain the trial Judge’s orders.
BACKGROUND
The parties were married in November 1975 and separated 26½ years later in June 2002.
At the date of judgment the husband was 49 years of age and in full time employment with the Commonwealth Public Service. The husband was then living in the property at E which he had purchased after the parties’ separation.
The wife was aged 48 years at trial and was engaged in full time employment on a contract with the State Public Service which was due to expire in November 2004. The wife also had part time employment as a waitress at a hotel but was on leave without pay from that employment having taken long service leave from May until August 2004. The wife had continued to reside in the former matrimonial home of the parties at B.
There were three children of the marriage, they being aged 25, 22 and 20 at the date of the trial Judge’s judgment.
At the commencement of the marriage neither party had assets of any significance, apart from some savings and motor vehicles. The trial Judge found the assets of the parties to be worth $989,941.00 at trial. His Honour concluded that the parties’ contribution entitlements were equal, and adjusted such entitlements in favour of the wife by 7.5 per cent to produce an overall entitlement of 57.5 per cent to the wife and 42.5 per cent to the husband. The wife’s entitlement was satisfied by her retaining the former matrimonial home together with her superannuation entitlement, some shares, her motor vehicle, proceeds of sale of some land and her chattels and receiving what was, after his Honour amended the orders on 20 April 2005, an order providing for her $181,981.00 out of the husband’s superannuation interest in the Commonwealth Superannuation Scheme.
The husband’s superannuation had been valued in accordance with the regulations at $474,678.00.
REASONS FOR JUDGMENT OF THE TRIAL JUDGE
Having recorded the matters of background referred to above, the trial Judge reviewed the employment history of each of the parties (Judgment, paragraphs 8 and 9) and recounted the history of acquisition of property commencing with the first matrimonial home of the parties at L in the State of Tasmania (Judgment, paragraph 10).
Reference was made to the husband’s inheritance of approximately $17,000.00 from his father’s estate in or about 1985, (Judgment, paragraph 10) and to the wife’s inheritance of $23,000.00 from her mother’s estate in February 1998 (Judgment, paragraph 14). Both of those inheritances were found to have been utilised for the benefit of the family (Judgment, paragraphs 10 and 14).
10. The acquisition of investment properties “[i]n the early nineteen nineties” was discussed by the trial Judge, as was the fate of each of those ventures (Judgment, paragraphs 15-19).
11. The trial Judge listed the “assets and liabilities” of the parties and identified those assets or liabilities which were in dispute. His Honour recorded the major valuation issues to be:
· Whether the former matrimonial home be valued as one property or as a property that reflects the capability to subdivide off a block; [and]
· Whether the husband’s superannuation should be valued at the date of separation or at the date of trial and whether the Court’s discretion to make an order under s.79 should reflect what was submitted was an unrealistic value. (Judgment, paragraph 23)
12. Also in issue, and identified as such by the trial Judge, was whether funds “advanced to the husband by his present partner, Ms W, will be required to be repaid” (Judgment, paragraph 23). Also in issue was “whether the husband’s post-separation liabilities should be taken into account in ascertaining the pool” (Judgment, paragraph 23).
13. For reasons which he gave, the trial Judge concluded that “on the balance of probabilities” Ms W “will not require the repayment of the advanced funds” (Judgment, paragraph 34). His Honour accordingly deciding not to “regard the claimed debt to Ms W as a relevant liability for the purpose of determining the pool of assets” (Judgment, paragraph 34).
14. His Honour referred to a number of disputed matters relating to post separation credit card debts, and how tax refunds had been enjoyed in the post separation period, but decided that these ought not be “added back” or otherwise impact upon the net asset pool. Those conclusions do not assume significance in this appeal.
15. The dispute relating to the value of the former matrimonial home at B related to whether the relevant valuation of the property was its unsubdivided value ($270,000.00), as the wife contended, or, as the husband contended, its subdivided value of $375,000.00. For reasons which he gave, the trial Judge concluded that it was “appropriate to value the property as one lot and I therefore attribute a value to the B property of $270,000.00” (Judgment, paragraph 44).
16. The question of the “approach to be taken of the husband’s superannuation entitlement with the Commonwealth Superannuation Scheme” (Judgment, paragraph 45) arose from the fact that the expert evidence before the trial Judge established that the value of the husband’s superannuation entitlement in accordance with the Family Law (Superannuation) Regulations 2001 was $474,678.00, and had been $242,467.00 at the date of separation (June 2002). The trial Judge referred to the fact that changes to “methods and factors” used to value an employee’s entitlements under the Commonwealth Superannuation Scheme had been varied subsequent to separation, the effect of which was to increase the husband’s entitlement as at 30 June 2004:
45. … by approximately $70,000.00 and another $60,000.00 increase was due to the addition of more than two years of further accrued contributions by the husband together with interest on those contributions.
17. The trial Judge referred to the expert evidence before him that, “for the husband to obtain the full benefit of his superannuation he would need to retire no later than the age of 55 and take a deferred benefit to which he would become entitled at the age of 65” but that:
45. … whether the husband adopts that course or alternatively continues in his employment past the age of 55 is a lifestyle choice for him and does not affect the value to be placed upon his superannuation entitlement.
It was noted that if the husband “decides to continue working past the age of 55 he will continue to receive a salary greater than his expectation from superannuation benefits” (Judgment, paragraph 45).
18. His Honour rejected the contention of the husband that the value of his superannuation entitlement should be referrable to the date of separation rather than 30 June 2004 as he was “not persuaded that the Court should adopt different valuation dates for different assets” (Judgment, paragraph 47). His Honour accordingly included the husband’s superannuation interest in the asset pool at $474,678.00 and that of the wife in her superannuation fund at $45,194.00.
19. The “four discrete subject matters of the appeal” identified by Counsel for the husband are unrelated to the trial Judge’s contribution finding and accordingly it is unnecessary to refer in detail to such matters. Similarly, to only a limited extent does one of those “discrete subject matters” relate to the trial Judge’s consideration of s 75(2) factors. Relevant in this appeal are his Honour’s conclusions with respect to the wife’s alleged undisclosed funds (Judgment, paragraph 66) and the reference (Judgment, paragraph 61) within the context of s 75(2) to the husband’s superannuation entitlement.
THE GROUNDS OF APPEAL
20. Counsel for the husband argued the appeal by reference to four areas of the trial Judge’s judgment. Those four areas substantially related to what could be described as “pool issues” and comprise:
1. Superannuation;
2. Valuation of the former matrimonial home;
3. Debt to Ms W; and
4. Undisclosed cash reserves of the wife.
21. The first challenge articulated by Counsel for the husband was the “loan to the husband’s girlfriend”. The grounds of the Amended Notice of Appeal relevant in that respect were contained in grounds 17 and 18 and provided:
17. THAT the learned Trial Judge erred in fact in finding against the weight of the evidence that the debt of the Applicant Husband to Ms W was unlikely to be enforced.
18. THAT the learned Trial Judge erred in law by failing to give any or adequate reasons why he discounted the debt of the Applicant Husband to Ms W in full, rather than by some lesser proportion.
22. In support of that challenge it was submitted by Counsel for the husband that the trial Judge had erred in failing to find that Ms W would not require repayment of the monies which she had advanced to the husband, the trial Judge having found, correctly it was submitted, that Ms W had in fact “lent” the monies to the husband, totalling in excess of $60,000.00 after adjustments were made. In the alternative, it was submitted that the trial Judge should have “apportioned” the husband’s debt to Ms W and found that a portion of the debt was enforceable. The latter course was never suggested to the trial Judge, as a reading of the submissions of Counsel at trial makes clear (Transcript of 28 September 2004, pages 9-10).
23. Finally, in relation to the debt to Ms W, it was submitted that if, having not taken into account the debt or any part of it for the purpose of determining the net assets of the parties, the trial Judge should have taken it into account as a contingent liability within the context of s 75(2). Such a course was never urged upon the trial Judge, as a reading of submissions made to him at trial confirms (Transcript of 28 September 2004, page 22).
24. In our view, the failure to assert either of the last two mentioned matters before the trial Judge precludes the husband from successfully raising such matters in this appeal.
25. In Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 the High Court said at 438:
The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards.
26. In Metwally (No 2) v University of Wollongong (1985) 60 ALR 68, Coulton v Holcombe (1986) 162 CLR 1 and Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279 the High Court reaffirmed the principle.
27. It remains however to consider the primary challenge raised by grounds 17 and 18, namely whether the trial Judge erred in declining to find that Ms W would require the husband to repay his debt to her. His Honour found “on the balance of probabilities that Ms W will not require the repayment of the advanced funds” (Judgment, paragraph 34). In support of this challenge, reliance was placed upon the trial Judge’s findings that Ms W had “advanced monies to the Husband during and after separation” which advances were “documented by written loan agreements” (Husband’s Summary of Argument, page 7). It was submitted that:
… a Jones v Dunkel inference should have been drawn against the Wife and that the learned Trial Judge should have found that the Husband was liable to Ms W for $67,055.
It was submitted that “for him to have held that there was no liability to Ms W was to draw the very Jones v Dunkel inference that His Honour said he could not draw”.
28. No authority to which we have been referred suggests that the trial Judge should have drawn a Jones v Dunkel (1959) 101 CLR 298 inference against the wife in the circumstances of the proceedings before him. There was no issue that Ms W was in a relationship with the husband. It was the husband who was seeking to have taken into account, for the purpose of determining the net assets of the parties, a debt to Ms W. The fact that the wife subpoenaed Ms W to produce documents and give evidence did not in our view provide a foundation for any Jones v Dunkel inference with respect to the wife, and no authority to which we have been referred supports such a proposition.
29. The decision of the High Court in Jones v Dunkel does little more than confirm what common sense suggests would be the case, namely that where it would be reasonable to expect a party to have called evidence from a witness in relation to an issue, the unexplained failure to do so can justify drawing the inference that the evidence of that witness would not have assisted that party’s cause. Common sense confirms the unreality of suggesting that a Jones v Dunkel inference could sensibly have been drawn against the wife in this case. The husband bore the onus of establishing that he would have to repay his debt to Ms W. Ms W was uniquely placed to give evidence that she expected the husband to pay his debt to her. At no time did she do so.
30. It was further submitted in relation to this challenge that:
His Honour’s decision equates to a finding that it was unlikely that if the Husband and Ms W separate again and for the last time that they or at least Ms W will not regard the balance due under the loan agreements as due and owing according to law and take the agreements off to her lawyer. That corollary only needs to be stated to show how that discretion miscarried. (Husband’s Summary of Argument, page 9)
31. It is necessary to have regard to what his Honour said about the husband’s alleged indebtedness to Ms W in order to evaluate this challenge to the finding that “Ms W will not require the repayment of the advanced funds” (Judgment, paragraph 34). His Honour correctly identified the issue as being whether the “funds advanced to the husband by his present partner” “will be required to be repaid” (Judgment, paragraph 23, our emphasis).
32. His Honour then referred to the history of the relationship between the husband and Ms W and a number of aspects of that relationship (Judgment, first paragraph 24). The history of advances of funds was recounted by his Honour (Judgment, first paragraph 26). There is no suggestion that anything there recorded was inaccurate.
33. Further references (second paragraphs 25 and 26) detailed the advances which his Honour accurately recorded to have been the subject of “loan agreements” drawn up by the husband’s solicitors in 2002 and 2003 respectively (Judgment, paragraph 27).
34. His Honour referred (Judgment, paragraph 28) to the transactions involving two Jeep motor vehicles. Having discussed the rival submissions in relation to the significance of the unexplained failure of Ms W to give evidence, the trial Judge declined to “make an adverse finding against either party” but acknowledged, accurately in our view, that Ms W’ “absence on an important issue creates a gap in the evidence of both parties that makes the Court’s task of determining this issue much more difficult” (Judgment, paragraph 29).
35. His Honour then referred (paragraph 30) to aspects of the relationship, financial and otherwise, of the husband and Ms W. There is no suggestion that anything there recorded was not open on the evidence. His Honour regarded the loan agreements as “only one factor to take into account in determining whether the Court is satisfied on balance that the husband will be required to repay the funds advanced by Ms W” noting that it was “also appropriate to look at the nature of the relationship” (Judgment, paragraph 33), which his Honour proceeded to do.
36. His Honour regarded the “mixing of finances to the extent that Ms W had made advances to the husband and in return he has paid accounts on her behalf” as significant, as was the fact that “Ms W has not requested repayment of any part of the monies during the past three years”, and the fact that “some of the funds were used for the purchase of shares” certain of which were expressed by the husband in his affidavit evidence to be “[i]n trust for Ms W” (Judgment, paragraph 33).
37. His Honour found on the evidence before him that as far as he was “able to foresee, the relationship between the husband and Ms W is a stable one, it has existed for some years and is likely to continue indefinitely” (Judgment, paragraph 34). Those matters were relied upon by his Honour to support his findings with respect to repayment of the advances to Ms W.
38. None of the findings of facts made by the trial Judge has been successfully challenged in this appeal. In our view the issue permitted a number of different conclusions to be drawn, one of which was that in fact drawn by the trial Judge. Nothing to which we have been referred persuades us that it was not open to his Honour to conclude that “Ms W will not require the repayment of the advanced funds”. To the extent that the husband complains of this finding, in our view it was always open to the husband to have called Ms W to give evidence that she required the repayment of the funds advanced to the husband by her. To the extent that the trial Judge did, as was submitted on behalf of the husband, ultimately draw a Jones v Dunkel inference against the husband, in our view it was open for him to do so. Ground 17 thus lacks merit.
39. We also consider that there is no merit in the challenge to the trial Judge’s reasoning contained in ground 18. The reasons why his Honour treated the loans from Ms W in the way in which he did are clear to us as an Appeal Court (see the test adopted in Bennett v Bennett (1991) FLC 92-191). We do not understand Senior Counsel for the wife to disagree with that proposition.
40. The second complaint agitated on behalf of the husband related to a number of the trial Judge’s findings with respect to the value of the former matrimonial home at B. Grounds 11 – 16 of the Amended Notice of Appeal articulate the husband’s complaints in that regard. Those grounds provided:
11. THAT the learned Trial Judge erred in fact by finding against the weight of the evidence that the Council approval for subdivision of the property where the former matrimonial home was situated had lapsed, when it had not.
12. THAT the learned Trial Judge erred in fact by finding against the weight of the evidence that the value of the property where the former matrimonial home was situated was as one block rather than two, that is without regard to the effect of its potential for subdivision.
13. THAT the learned Trial Judge erred in fact by finding against the weight of the evidence that the Wife had no present intention to subdivide the property where the former matrimonial home was situated.
14. THAT the learned Trial Judge erred in fact by finding against the weight of the evidence that the Wife had no present intention to sell the property where the former matrimonial home was situated.
15. The Learned Trial Judge erred in that in circumstances where the husband’s application was for the sale of the B property and the Wife’s was for her to retain it, and in circumstances where there was a difference of [sic] he failed to consider the sale of the B property where there was discrepancy of $105,000 between the values relied on by the parties: Phillips and Phillips [2002] FamCA 350, ¶48-50
16. The Learned Trial Judge erred in that he failed to adopt as the value of the property “an estimate of the price which would have been agreed upon in a voluntary bargain between a vendor and purchaser each willing to trade but neither of whom was so anxious to do so that he would overlook any ordinary business considerations”: Commissioner of Succession Duties (S.A.) v. Executor Trustee & Agency Co. of South Australia Ltd. (1947) 74 CLR 358, at p 367
41. The wife asserted that the unsubdivided value of the property ($270,000.00) should be found to be its value whilst the husband asserted that the subdivided value of the property ($375,000.00) was its value. The trial Judge preferred the former to the latter valuation.
42. On behalf of the husband it was submitted that:
The proper test of value following Spencer v The Commonwealth (1907) 5 CLR 418 is “an estimate of the price [for the property] which would have been agreed upon in a voluntary bargain between a vendor and purchaser each willing to trade but neither of whom was so anxious to do so that he would overlook any ordinary business considerations” (Commissioner of Succession Duties (S.A.) v. Executor Trustee & Agency Co. of South Australia Ltd. (1947) 74 CLR 358, at p 367, cited The Commonwealth v Arklay (1952) 87 CLR 159).
43. It was further submitted that $375,000.00 was “the ‘value’ of the property whether in the hands of the Wife or otherwise” (Husband’s Summary of Argument, page 6). It was thus submitted that whether the wife chose now or in the future to subdivide the property was immaterial, its value being $375,000.00, subject to the payment of modest costs of formalising the subdivision, to which it was agreed there was no impediment, and that to adopt any valuation of the property less than $375,000.00 was not to value the property on a “highest and best use valuation”.
44. To the extent that the husband complained that the trial Judge erred in not ordering the sale of the property, such complaint can be swiftly disposed of. The husband did not seek to have the property transferred to him. The trial Judge was able to do justice to the husband’s entitlements without ordering a sale of the property. To order that the wife retain the former matrimonial home fell well within the ambit of the trial Judge’s discretion.
45. On behalf of the wife it was submitted that the trial Judge had not erred “in exercising his discretion to accept the value of the matrimonial home at $270,000 being the agreed value of the property on an unsubdivided basis” (Wife’s Summary of Argument, page 10). Reliance was placed upon the wife’s absence of “present intention to sell the B property in the foreseeable future” and absence of “present intention of subdividing the property because she did not want people living in her back yard” (Wife’s Summary of Argument, page 10).
46. Senior Counsel for the wife also referred to the trial Judge’s declared inability to make a finding as to whether, in the future, the wife would realise the property as one lot or obtain subdivision approval to sell the property as two lots.
47. Reference was made to the history of prior subdivision approval and the fact that, on the husband’s own evidence, “nothing had been done in respect of the subdivision between 1997 and 2004 when the Husband decided to proceed with it”. It was submitted that the trial Judge’s “finding to accept this value [$270,000.00] was made on the evidence of the Wife’s present and future intention not to subdivide the property” and was open to the trial Judge (Wife’s Summary of Argument, page 11).
48. In Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1980) 146 CLR 336 Mason J said at 381:
This Court has consistently applied the rule that on a question of valuation an appellate tribunal is not justified in substituting its own opinion for that of the court below unless it is satisfied that the court below acted on a wrong principle of law or that its valuation was entirely erroneous (The Commonwealth v. Milledge; Commissioner of Succession Duties (S.A.) v. Executor Trustee and Agency Co. of South Australia Ltd.; The Commonwealth v. Reeve). See also Emerald Quarry Industries Pty. Ltd. v. Commissioner of Highways. As with the assessment of damages, especially in personal injury cases, the valuation of property by a court has many of the characteristics of a discretionary judgment. Valuation is a matter of estimation, not of precise mathematical calculation. It certainly involves the making of a value judgment in the metaphorical as well as the literal sense. (footnotes omitted)
49. We propose considering the challenge to the trial Judge’s conclusions with respect to the valuation of B on the basis Mason J described in St Helens Farm.
50. The value of the property was on the evidence either $270,000.00 or $375,000.00. His Honour suggested (Judgment, paragraph 43) that “[t]he issue is the value of the property given the wife’s intention not to subdivide it into two lots”. His Honour then suggested the issue to be “analogous to the issue of whether Capital Gains Tax is to be taken into account in property proceedings”, finding such “analogy” attractive (Judgment, paragraph 43).
51. With respect to his Honour, the issue before him was unrelated to Capital Gains Tax, particularly as his Honour found that there would be no necessity for the former matrimonial home at B to be sold, much less that the sale of the property was “inevitable” as that term can be understood in the light of the decision of the Full Court in Rosati v Rosati (1998) FLC 85-043. His Honour was clearly influenced by the wife’s absence of intention to subdivide the property.
52. In our view, the wife’s intention in relation to the property was not relevant to the issue of fact his Honour was required to determine, namely its value. The passage relied upon by Counsel for the husband in Spencer v Commonwealth (1907) 5 CLR 418 is relevant in this context. Also relevant for present purposes is the reference to the valuation of land “for the most advantageous purpose for which it was adapted” (Spencer at 441) which the learned authors, Rost R.O. & Collins H.G., of Land Valuation and Compensation in Australia, 3rd ed, Australian Institute of Valuers, 1984 at 90 suggest gave rise to the “principle” which is known widely as “valuation for highest and best use”. The learned authors suggest at 90 that:
Recognition of the willing-selling-willing-buyer concept necessarily involves valuation for the highest and best use for which the land is adapted. The prudent and well-informed vendor (whose existence must be assumed) would not willingly part with his land for a price less than that appropriate to its highest and best use; and the well-informed buyer would not expect to be able to purchase it for less. Each party would take into account “not only the present purpose to which the land is applied, but also any more beneficial purpose to which, in the course of events at no remote period it may be applied, just as an owner might do if he were bargaining with a purchaser in the market. This is the mode in which the land would be valued.” (Isaacs J. in the Spencer case).
53. The term “highest and best use” appears to derive from the observation of Isaacs J in Spencer that (at 443):
… whatever the property might have fetched as a future factory site, the highest value of the land was for workmen's cottages.
54. The principle of “highest and best use” finds repeated expression throughout the authorities relevant to the valuation of real property (see Brisbane City Council v The Valuer-General for the State of Queensland (1978) 140 CLR 41; Housing Commission of New South Wales v San Sebastian Proprietary Limited & Others (1978) 140 CLR 196 and The Valuer-General v Fenton Nominees Proprietary Limited (1982) 150 CLR 160). The principle was succinctly stated by Pullin J in Flotilla Nominees Pty Ltd v Western Australian Land Authority & Anor (2003) 129 LGERA 65 at paragraphs 18 and 19:
The test of market value is well known. It is what the hypothetical purchaser desiring to purchase the land would have had to pay for it on the date of resumption to a hypothetical vendor willing to sell it for a fair price but not desirous to sell: Spencer v Commonwealth (1907) 5 CLR 418.
Regard must be had to every element of value which the lands possess. Every such element must be taken into consideration insofar as they increase the value to the owner of the land: Minister of State for Home Affairs v Rostron (1914) 18 CLR 634 at 637. In short, regard should be had to the highest and best use of the subject land, meaning the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential: Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 at 415.
55. Nothing to which we have been referred by Senior Counsel for the wife provides a basis for accepting that the “principle” of “highest and best use” was not applicable to the valuation of the former matrimonial home of the parties in this case. The “highest and best use” of the land at B was as two subdivided lots which was “legally possible” as the learned authors of Land Valuation and Compensation in Australia and the authorities suggest to be required. The requirement of such of subdivision “at no remote period” was also satisfied given the undoubted ability for the subdivision to proceed upon payment of modest sums of money, possibly totalling not more than $2,500. The dicta of Isaacs J clearly applies to the B property, whether or not the wife actually formalises its subdivision into two lots at some future stage.
56. Whilst we can understand that, having considered the issue to be one involving the exercise of discretion, the learned trial Judge would have concluded as he did in the circumstances, we regrettably consider that so doing led his Honour to act on a wrong principle. Applying the appropriate valuation principle of “highest and best use”, his Honour should have found the value of the property to have been $375,000.00. This challenge accordingly succeeds.
57. The third area of complaint agitated on behalf of the husband related to the trial Judge’s treatment of his superannuation interests. Grounds 1 – 10 articulate the particular matters complained of by the husband. Those grounds provide:
1. THAT the learned Trial Judge misdirected himself when considering the value of the Husband’s superannuation interest that it is “rarely appropriate” to adopt a part global approach and a part asset-by-asset approach.
2. THAT the learned Trial Judge erred in law in that he failed to give adequate or any reasons why he should not adopt different valuation dates for the superannuation interest and other property.
3. THAT the learned Trial Judge erred in law in that he failed to give any or adequate reasons why he valued the Applicant Husband’s superannuation interest at the date of the trial and not at the date of separation.
4. THAT the learned Trial Judge erred in law in that he adopted the date of the trial for the valuation of the Husband’s superannuation and not the date of separation, when the evidence was that the Husband had made contributions to it since separation.
5. THAT the learned Trial Judge erred in fact in that he failed to give credit to the Husband for contributions made by the Husband to the value of his superannuation interest between the date of separation and the date of trial.
6. The Learned Trial Judge erred in failing to consider adequately or at all the desirability having regard to their fundamentally different nature of adopting an “asset-by-asset” approach in relation to the “tangible assets” on the one hand and the superannuation interests on the other or alternatively a “global” approach in relation to the one and an “asset-by asst” [sic] approach in relation to the other in assessing both contribution and s.75(2) factors: C and C [2005] FamCA 429 ¶¶58, 63ff; Mackey (unrep’d Coleman J 2and & [sic] 3rd February 2005); Norbis v Norbis (1986) 161 CLR 513.
7. The Learned Trial Judge erred in failing to give any or any adequate reasons why he failed to adopt an asset-by-asset approach in relation to the “tangible assets” on the one hand and the superannuation interests on the other or alternatively a “global” approach in relation to the one and an “asset-by-asst” [sic] approach in relation to the other in assessing both contribution and s. 79(4)(e) (s. 75(2)) factors: C and C [2005] FamCA 429 ¶52,
8. The Learned Trial Judge erred in fact in finding at ¶61 of his judgment that “The Husband will also remain entitled to substantial superannuation benefit that, regardless of when he elects to retire, will remain substantially greater than that of the Wife” : W and W [2005] FamCA 430 ¶37
9. The Learned Trial Judge erred in failing to give any or sufficient weight in assessing the s.79(4)(e) (s.75(2)) factors to the fact that he would shortly make a splitting order the effect of which would be that the husband’s superannuation then valued at $$474,678 would be reduced by $181,981 that 75.1% of its value at the date of separation to $292,697 and the wife’s increased to $227,175: W and W [2005] FamCA 430 ¶25
10. The Learned Trial Judge erred in that having assessed contributions and adjusted for s.79(4)(e) (s.75(2)) factors he failed to take the “fourth step” required by s.79(2) and to consider the overall effect on the justice and equity of his orders of the fact that the Husband’s superannuation benefit would be significantly reduced below the prescribed valuation if he remained in employment past 55, and that if he did retire then that he would lose 10 years salary at not less than his date of trial salary in excess of $60,000 : Hickey and Hickey and AG for the Cwth (2003) FLC 93-143 ¶39
58. In his Summary of Argument, Counsel for the husband concisely made a number of submissions in support of these grounds. As Counsel for the husband submitted, the case was heard by the trial Judge, his Honour’s decision was given and the appeal was filed prior to the decision of the Full Court in C v C (2005) FLC 93-220.
59. It was conceded to be:
… open to the learned Trial Judge to include the amount of the valuation at the date of separation and to make a s. 79 adjustment accordingly. This or making a s. 75(2) adjustment in favour of the Husband (Husband’s Summary of Argument, page 3)
60. It was further conceded that such a course had been acknowledged to be open to the trial Judge by the husband’s counsel at trial.
61. It was submitted on behalf of the husband however that:
Although the Court below was bound to apply the formula provided in the Regulations in “determining” the value (s.90MT(2)), it was not bound by s. 79 to give that value full weight “as if it were” a tangible asset in the Husband’s present possession or control. He could have dealt with it differently, for example, by:
-having regard to the value at separation instead of at trial Wardman and Hudson)
-whether to include the full $474,678 in the one list of assets and liabilities with the “tangible assets” or on the other hand not to do so.
-whether to make some s.75(2) adjustment in favour of the Husband. (Husband’s Summary of Argument, page 4)
His Honour was asserted to have done “none of these things and did not consider the last two”.
62. In support of the husband’s complaint, reliance was placed upon the evidence before the trial Judge as to the value of the husband’s superannuation interest at the date of separation and calculated in accordance with the regulations of $242,467.00; that the husband contributed to the interest between the date of separation both in his “service contribution and his productivity bonus to which the Wife made no contribution”; that the husband’s “employer contributed to the value of the interest after the date of separation”; and that the wife “made no contribution within the meaning of s.79(4) to the increase in value of the interest after the date of separation” (Husband’s Summary of Argument, page 4).
63. The trial Judge was submitted to have erred in valuing the superannuation interest at the date of hearing, essentially on the basis asserted by him (Judgment, paragraph 47) was not open to him. It was further submitted that the trial Judge failed at the “‘s.75(2)’ step” to have regard to “the likelihood or the realistic probability of the Husband securing value of $474,678 from his superannuation interest” (Husband’s Summary of Argument, page 5).
64. The effect of the splitting order made by the trial Judge was asserted to have been to leave the wife:
… the superannuation interests with the former matrimonial home unencumbered and superannuation interests “valued” at $227,175, and the Husband with real estate equity of $30,000 and superannuation “valued” at $292,697. (Husband’s Summary of Argument, page 5)
65. The trial Judge’s determination of the apportionment of the assets and superannuation interests of the parties by reference to contributions was submitted to have been erroneously impacted upon by having “overlooked” that he was about to award the wife:
… 43.8% of the total superannuation “pool”, (a dollar difference of $65,522) or His Honour erroneously treated this 12.4% difference as “substantially greater” when assessing the s.75(2) factors. (Husband’s Summary of Argument, page 5)
66. Reliance was placed upon the effect of the trial Judge’s order which was that the husband’s superannuation interest “then valued at $$474,678 [sic] would be reduced by $181,981” in circumstances where “75.5% of its value at the date of separation to $292,697 and the wife’s increased to $227,175”.
67. The trial Judge was thus submitted to have erred in his treatment of the husband’s superannuation interest. Counsel for the husband urged on the Court in oral submissions a further error on the part of the trial Judge in relation to the unchallenged expert evidence of Mr B with respect to the impact of the husband electing not to retire at 55 years of age and receive the sum which he would be likely to receive. It was submitted that the trial Judge’s reasons for judgment did not evidence that he had sufficiently regarded the fact that, if he elected to work until age 65, the value of the husband’s superannuation may decline by as much as $90,000.00 as a consequence, albeit the husband would be likely to earn significantly more in that period than he would have thus lost.
68. On behalf of the wife it was submitted that the trial Judge was entitled “to adopt a global approach to the assets, including the Husband’s superannuation entitlement”. Reliance was placed upon the decision of the High Court in Norbis v Norbis (1986) 161 CLR 513 in support of that assertion.
69. We agree that it was open to the trial Judge to adopt the “global approach” which he did to the husband’s superannuation interest. As the High Court made clear in Norbis, whether a “global” or “asset by asset” approach is adopted, the requirement of a just and equitable order remains, and is to be determined by the same provisions of Part VIII regardless of which approach is adopted. This is also consistent with the decision in C v C (2005) FLC 93-220.
70. On behalf of the wife, it was submitted that it had been open to the trial Judge to “not adopt different valuation dates for the superannuation interest and other property” (Wife’s Summary of Argument, page 3) and that his Honour’s reasons for doing so were adequate. Reliance was placed upon submissions made at trial by counsel for the husband in support of those assertions.
71. We do not perceive the trial Judge to have erred in having regarded to the value of the husband’s superannuation interest at the date of hearing as the relevant valuation for determining the net assets of the parties. So doing had the considerable advantage that “all property” was being considered by reference to its value at the same date. The unreality of dealing with assets valued some two years apart was thus avoided.
72. The more significant issue is whether, having regard to all of the evidence in relation to the value of the husband’s superannuation interest at separation, and the circumstances in which it increased from that figure to the $484,678.00 value at trial, produced an outcome which fell outside the ambit of a reasonable exercise of discretion by the trial Judge.
73. On behalf of the wife it was submitted that the trial Judge “gave the Husband credit for his contribution to the valuation of his superannuation interest between the date of separation and the date of trial” (Wife’s Summary of Argument, page 4). Reference was made to the unchallenged expert evidence of Mr B that the entitlement of the husband of $242,467.00 at 13 June 2002 increased to approximately $399,440.00 at separation by virtue of the Commonwealth Superannuation Fund obtaining approval to value the husband’s interest by reference to “special methods” or factors between the date of separation and the date of hearing. The increase referrable to post separation contributions of the husband and/or his employer, by way of service or monetary contributions, was thus in the order of $75,000.00 in the post separation period, rather than approximately $230,000.00. It was submitted that the trial Judge was clearly aware of those matters. Reliance was placed upon the fact that the husband’s contributions between separation and the date of trial approximated some $17,000.00.
74. It was submitted on behalf of the wife, necessarily with the benefit of hindsight, that the trial Judge’s treatment of the husband’s superannuation interests substantially accorded with the decision of the Full Court in C v C.
75. As to the trial Judge’s conclusions with respect to the positions of the parties as a consequence of the orders he proposed making, particularly with respect to superannuation, it was submitted that the trial Judge had not erred in finding that “the Husband will also remain entitled to a substantial superannuation benefit that, regardless of when he elects to retire, will remain substantially greater than that of the Wife” (Wife’s Summary of Argument, page 7) even after the effect of the splitting order proposed by the trial Judge was taken into account. It was submitted on behalf of the wife that no finding of fact made by the trial Judge in that regard was other than “in accordance with the evidence”, and that the exercise of his discretion in relation to the facts as found did not fall outside the ambit of a reasonable exercise of that discretion.
76. It is necessary to consider the trial Judge’s reasoning in relation to the treatment of the husband’s superannuation interest. His Honour correctly identified the topic as a “matter of contention” (Judgment, paragraph 45) and referred to the evidence of Mr B, including his evidence of the valuation of the interest at 30 June 2004 ($474,678.00); the valuation at separation in June 2002 ($242,467.00); and the impact of the Commonwealth Superannuation Scheme having “obtained the authority of the Attorney-General to use special methods and factors in valuing an employee’s entitlements under the Scheme”, the effect of which was “to increase the husband’s entitlement as at 30 June 2004”. His Honour was clearly aware that “another $60,000.00 increase was due to the addition of more than two years of further accrued contributions by the husband together with interest on those contributions” (Judgment, paragraph 45).
77. The trial Judge considered the effect of Mr B’s evidence to be:
45. … that for the husband to obtain the full benefit of his superannuation he would need to retire no later than the age of 55 and take a deferred benefit to which he would become entitled at the age of 65. However, whether the husband adopts that course or alternatively continues in his employment past the age 55 is a lifestyle choice for him and does not affect the value to be placed upon his superannuation entitlement. If he decides to continue working past the age of 55 he will continue to receive a salary greater than his expectation from superannuation benefits.
These findings of fact are unchallenged, and sensibly so, having regard to the evidence of Mr B from which each of those findings became open to the trial Judge.
78. Reference was also made to the cross-examination of Mr B in relation to the “fairness of the scheme” of which the husband was a member and to Mr B’s evidence that “if he was asked to do the calculation at the date of trial, he would simply produce an answer which produced $474,000.00 and say that was the prescribed mandated approach and made no further comment” (Judgment, paragraph 46). There is no suggestion, whatever its fairness, that Mr B’s opinion was other than correct.
79. In a case where a splitting order was sought, the trial Judge treated the husband’s superannuation interest “as property for the purposes of paragraph (ca) of the definition of matrimonial cause in s.4”. That approach was undoubtedly open to his Honour, particularly in the light of the decision of the Full Court in C v C.
80. His Honour expressly referred to the submissions on behalf of the husband that the superannuation entitlement be valued “at the date of separation” rather than the date of trial. His Honour declined to do that as he was “not persuaded that the Court should adopt different valuation dates for different assets” (Judgment, paragraph 47). His Honour accordingly included the husband’s superannuation interest in the asset pool at $474,678.00 and the wife’s interest in two superannuation funds at $45,194.00.
81. The contribution entitlements of the parties were considered by the trial Judge, his conclusion being that such entitlements should be considered equal (Judgment, paragraph 59). In the course of his consideration of contributions (Judgment, paragraphs 52-59) his Honour recorded that since the date of separation in June 2002 “it cannot be overlooked that he [the husband] has continued to make the contributions to superannuation that has resulted at least in part to his superannuation having the present benefit as included in the asset pool” and also that “[t]he wife has also made contributions to her superannuation and those contributions are also reflected in the assets available for distribution between the parties” (Judgment, paragraph 53).
82. Within the context of his consideration of s 75(2) the trial Judge referred to the income of the husband (Judgment, paragraph 61) and the wife (Judgment, paragraph 62), which, it is not disputed, revealed the husband’s capacity to be approximately double that of the wife ($60,000.00 per annum compared with $30,000.00 per annum). In the course of discussing those matters the trial Judge recorded that the husband “will also remain entitled to a substantial superannuation benefit that, regardless of when he elects to retire, will remain substantially greater than that of the wife’s” (Judgment, paragraph 61).
83. It is common ground that the husband’s superannuation entitlement, on the evidence before his Honour, was potentially divided as to $292,697.00 on the part of the husband and $227,175.00 on the part of the wife. The evidence suggested that, in order to achieve that outcome, the husband would need to receive those entitlements, particularly from the husband’s Commonwealth Superannuation Fund, which could only occur if the husband elected to retire at age 55, some 6 years distant. On the evidence before him, the trial Judge was entitled to conclude that the husband would be likely to earn over that period approximately $180,000.00 gross more than would the wife. His Honour referred to the fact that “[a]s a consequence of the orders” he proposed making, the wife would retain the former matrimonial home unencumbered, her superannuation, her motor vehicle and the chattels in her possession (Judgment, paragraph 63).
84. His Honour was also aware of the husband’s asset position and outgoings. His Honour observed:
65. When consideration is had to the disparity in the earning capacities of the parties that is likely to continue until the end of their working lives and the significantly greater superannuation benefits that will accrue to the husband compared to those that will accrue to the wife, I am satisfied that their [sic] should be some adjustment in favour of the wife for the s.75(2) factors.
85. It is apparent that nothing to which we have been referred suggests that the trial Judge erred in fact in his consideration of the husband’s superannuation interest. The trial Judge’s discretion to value the superannuation interest of the husband at the date of hearing rather than the date of separation did not involve error. Nor are we persuaded that his Honour’s conclusion with respect to contributions fell outside the ambit of a reasonable exercise of discretion.
86. As his Honour recorded, the parties cohabited for almost 27 years. His Honour had regard to the post separation period and to the manner in which the husband’s superannuation increased in that period. His Honour was aware of the contributions made by the husband in that period, as well as the other contributions made by both parties subsequent to separation. His Honour was aware of the implications of the splitting order which he proposed making, as paragraph 69 of his reasons makes clear, albeit the sum there referred to was subsequently increased by approximately $6,000.00 pursuant to the Slip Rule. The trial Judge clearly considered, as paragraph 67 of his reasons makes clear, what each party would ultimately receive, and in what form each party would receive those assets and interests.
87. As his Honour correctly observed (paragraph 61), whether the husband elected to retire at age 55, thereby maximising his superannuation interest when that was able to be taken, or continued to work and earn, as Mr B’s evidence makes clear, significantly more by way of income than he would be likely to lose in respect of his superannuation interest by doing so, the husband’s superannuation was able to “remain substantially greater than that of the wife’s”, even after a further period of 6 years in which, on the evidence before him, the trial Judge was entitled to find that the husband was likely to earn approximately $180,000.00 gross more than was the wife.
88. In Norbis v Norbis Brennan J said at 540:
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
89. As the decision of the Full Court in C v C makes clear, the impact of superannuation interests, particularly where, as in this case, they have not vested, in proceedings for settlement of property, involves the exercise of discretion. The observations of Brennan J cited above are particularly relevant in that context. For the parties to leave this marriage in the respective positions resulting from the trial Judge’s orders does not in our view produce an outcome which falls outside the reasonable ambit of his Honour’s discretion. We thus do not find this ground to have merit.
90. Finally, Counsel for the husband argued that the trial Judge had erred in his treatment of the “UNDISCLOSED CASH RESERVES OF WIFE”. Grounds 19 and 20 of the Amended Notice of Appeal contain that complaint. Those grounds provided:
19. The learned Trial Judge erred in law in failing to include i [sic] his calculation of the property in the possession or control of the Wife cash she conceded during cross-examination that she had withdrawn after separation being an amount exceeding $7,000.
20. That the learned trial Judge erred in law in failing to have any regard to the fact of the wife’s concealment and to her failure to give full and frank disclosure of the existence of the cash reserves referred to in the preceding paragraph.
91. On behalf of the husband it was submitted that the trial Judge failed to take into account the “cash so withdrawn” of “at least $7,000” which the wife had failed to disclose “in her sworn testimony, in correspondence or in her case in chief” (Husband’s Summary of Argument, page 9). The Court was referred to pages 405-413 of the Appeal Book at which that evidence emerged.
92. It was sensibly conceded by Counsel for the husband that the sum complained of in this context was de minimus. The trial Judge was aware of the monies to which the wife referred in her cross-examination. Reliance was placed upon the evidence of the husband that, since separation, “he had received $32,986 in tax refunds, he had received $15,983 being the [M property] sale proceeds in cash” and had increased his mortgage over his property by approximately $50,000.00 (Wife’s Summary of Argument, page 13).
93. The Court was referred to the evidence of the husband in relation to his “spending spree”. Relevant in that context were the following passages:
So you would agree with me, GWR [the husband], that you have wasted a substantial sum of money, over $130,000 since separation?---Yes.
Those figures were taken from your visa card statements and didn’t include other expenditure from your cheque account or your Diner’s credit card. So you have spent more than that, haven’t you?---Yes.
In fact you made substantial cash withdrawals from your cheque accounts at separation?---I have.
…
Could you go through and if you don’t accept those withdrawals that I have had typed out and correlate the dates?---Are you wanting me to agree that these are actual withdrawals?
Yes?---Well, if that’s a list of this - - -
Yes?--- - - well, yes, I agree they’re withdrawals.
They total $20,760?---That’s correct.
…
Some of these withdrawals could be payments for tools as that one was?---They could.
For electrical goods?---They could.
For furniture?---Not necessarily furniture, no. Furniture, usually I bought on credit card.
For holidays?---Yes, cash for holidays.
Because really from about December 2003, if you have a look at my schedule, you started withdrawing amounts of $1000 regularly. If you can have a look, from 12 December 2003, there was a withdrawal of $1000 cash?---Correct.
…
So we really have had a large amount of expenditure which I think you have already agreed with me since separation?---That’s correct. (Transcript of 9 September 2004, pages 67-69)
94. The trial Judge was aware of the husband’s assertions in relation to the wife’s “undisclosed reserves”. His Honour expressly referred to the issue (paragraphs 66). His Honour acknowledged that:
66. … the wife has been able to save some moneys that she has used to assist the children but this has occurred as a result of her prudent lifestyle and not because she has an undisclosed source of funds.
95. His Honour was also mindful of the fact that:
66. … On the other hand the husband has taken holidays, usually with Ms W and has expended funds on other forms of entertainment about which he was cross-examined and that have contributed to his living beyond his means and have led to any financial difficulties of which he now complains.
96. The husband’s evidence (Transcript of 9 September 2004, pages 53-4) with respect to his “spending spree” revealed:
That [increasing the mortgage] means that there’s less to go round between you and your wife?---I had to refinance because my finances got out of control, so I wasn’t managing them very well.
…
No, you didn’t stay with her [husband’s sister in Sydney], I put to you. You stayed in an expensive hotel, didn’t you?---On the first occasion, yes.
I’ve been through what you did up there. You had a very nice holiday spending lots of money, didn’t you?---That is correct.
The evidence of the husband provides ample foundation for the trial Judge’s declining to increase the husband’s entitlement by virtue of the wife’s undisclosed funds. The trial Judge’s conclusions with respect to the post separation period were well within the ambit of his discretion.
CONCLUSION
97. The ground of appeal directed to the valuation of the former matrimonial home having succeeded, the appeal must be upheld given the quantum of the disparity in the valuations of that property. No other ground of appeal has found favour. Save for one matter, in respect of which the parties were given the opportunity to adduce further evidence, this Court would be able to re-exercise the trial Judge’s discretion. This we would do by substituting the figure of $375,000.00 for the figure of $270,000.00 in the inventory of assets and dividing those assets as to 57.5 per cent to the wife and 42.5 per cent to the husband. So doing would result in a reduction of potentially approximately $44,000.00 in the splitting order to be made in the wife’s favour given that the wife will be retaining an asset worth approximately $105,000.00 more than the trial Judge found that she would.
98. It is common ground that there was evidence, albeit inconclusive, at trial that a number of fees, charges and expenses, apparently of modest magnitude, would be incurred if the former matrimonial home were to be subdivided. Counsel for the husband and Senior Counsel for the wife each sought the opportunity to place before this Court an agreed figure in that regard and, failing agreement in that regard within a short period, 14 days having been suggested, that a single expert be appointed to determine that figure. Subsequent to the hearing of the appeal, the Court was provided with a “JOINT STATEMENT” in which the “remaining cost to the parties of completing the subdivision of the former matrimonial home” would total $6,311.00, particulars of which sum appeared in the “JOINT STATEMENT”. That figure having been agreed, the Court is able to re-exercise the trial Judge’s discretion in the manner indicated above. So doing results in the entitlement of the husband increasing by $41,942.83, being 42.5 per cent of $98,689.00 ($105,000.00 - $6,311.00). As the wife will retain the increased value of the matrimonial home it is necessary to reduce the splitting order by the sum of $41,942.83.
COSTS
99. Both parties sought that, in the event of the appeal succeeding, costs certificates issue pursuant to the Costs (Federal Proceedings) Act 1981. In our opinion costs certificates should issue to each party.
ORDERS
That the appeal be allowed.
That Order 6(a) of the orders made by the Honourable Justice Hannon on 5 April 2005 be varied to substitute the figure of “$140,038” for the figure of “$181,981” appearing in that order.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to the appeal.
That the Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by the respondent wife in relation to the appeal.
I certify that the preceding
99 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 13/09/2006
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