HERBERT & HERBERT

[2017] FamCA 995

FAMILY COURT OF AUSTRALIA

HERBERT & HERBERT [2017] FamCA 995

FAMILY LAW – INTERIM – SPOUSAL MAINTENANCE – Where it is ordered that the sum of $50,000 be paid to the Wife by way of interim lump sum spousal maintenance from a trust account.

FAMILY LAW – INTERIM – LITIGATION FUNDING – Where the sum of $150,000 be paid to a trust account to discharge legal costs incurred by the Wife and to meet her future legal costs – Where the sum of $86,500 be paid to a trust account to meet the Husband’s future legal costs. 

FAMILY LAW – INTERIM - Where it is ordered that the Husband deposit into the business bank account any funds in other accounts received as receipts of the business – Where it is ordered that only the Husband shall transact on the business bank account – Where the Husband’s application to remove the Wife as a director of the corporate trustee is dismissed – Where the Husband’s application to stay the collection of child support is dismissed.

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Herbert

RESPONDENT: Ms Herbert

FILE NUMBER: BRC 4902 of 2017

DATE DELIVERED: 7 December 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 27 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr George

SOLICITOR FOR THE APPLICANT: Rosen Lawyers

THE RESPONDENT: In Person

Orders

1. That by way of interim lump sum spousal maintenance the sum of $50,000 be paid to the wife at her direction out of the money held in the trust account of B Solicitors on behalf of the husband and the wife.

2. That such amount as is required to discharge the wife’s credit card liability of approximately $15,000 be paid to the wife at her direction out of the money held in the trust account of B Solicitors on behalf of the husband and the wife, such amount only to be used by the wife to discharge credit card debt and with the characterisation of that payment to be determined by the trial judge who hears and determines the substantive property division and spousal maintenance proceedings between the parties.

3. That by way of interim litigation costs funding the sum of $150,000 be paid to the trust account of C Solicitors out of the money held in the trust account of B Solicitors on behalf of the husband and the wife, such sum only to be used to discharge legal costs and outlays already incurred by the wife with other solicitors’ firms and accounting firms and to meet the wife’s future legal costs and outlays as they fall due.

4. That by way of interim litigation costs funding the sum of $86,500 be paid to the trust account of Rosen Lawyers out of the money held in the trust account of B Solicitors on behalf of the husband and the wife, such sum only to be used to meet the husband’s future legal costs and outlays as they fall due.

5. That the husband forthwith deposit into the Commonwealth Bank of Australia account number BSB … No. …94 in the name of D Pty Ltd (“the business bank account”) any funds he still holds in other accounts that he withdrew from that account or that are funds received as receipts of the business, D Pty Ltd, and from this day, until further order, he shall deposit all receipts of the business, D Pty Ltd, into that business bank account and transact business transactions only using that business bank account.

6. That, until further order, only the husband shall transact on the business bank account, withdrawing funds from it to pay creditors and accounts only in the ordinary course of business or to pay his weekly salary or drawings, with any withdrawals made from that business bank account other than in the ordinary course of business or to pay his salary or drawings only to be made with the prior written approval of the wife and otherwise the wife shall not transact at all on that business bank account.

7. That all other interim applications, including the husband’s application to have the wife removed as a director of E Pty Ltd and for a stay of the collection of child support, are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Herbert & Herbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4902 of 2017

Mr Herbert

Applicant

And

Ms Herbert

Respondent

REASONS FOR JUDGMENT

1. In this matter that was before me for hearing in the Judicial Duty List on Monday 27 November there are a number of competing applications to determine.

2. The wife had filed the Application in a Case that resulted in the listing. At the hearing she sought orders that were set out in an Amended Application in a Case filed on 1 November 2017. The husband sought orders set out in an Amended Response filed on 16 November. Matters to be determined now include interim spousal maintenance, interim litigation costs funding, partial property settlement orders, injunctions in respect of the business banking of the accounting business owned by the former couple’s discretionary family trust and operated by the husband, and also an application by the husband for a stay of the collection of child support.

3. The husband was represented at the hearing by experienced counsel and his solicitor, whilst the wife was unrepresented, not being able to financially secure the legal representation she has previously had in the proceedings. With respect to the wife, notwithstanding her valiant, best efforts, she did not represent herself with much aplomb. It was only with a careful reading of the affidavit material that was filed and relied upon that I was able to get a proper understanding of her case. This clearly highlighted the need for her to be put in a position where she can fund ongoing legal representation if that can possibly be achieved in a just and equitable manner.

Some Background facts

1. This former couple were married in 1999 after having lived together as a couple for about eight years prior to that. Their relationship ended in separation towards the end of last year. They have three children who are 17, almost 14, and 8 years of age respectively.

2. The children live with the wife and spend time each other weekend with the husband. Those arrangements are not proceeding without difficulty though.

3. The eldest child is about to go into Year 12 at a private girls’ school. The second child is about to go into Year 9 at a private boys’ school. The youngest child still attends the local State primary school near where the wife and children are living.  He is about to go into Year 3.  Needless to say, the cost of the school fees at the two private high schools is great – totalling around $40,000 per year. That has to be paid from net, after-tax income or capital.

4. The husband is a professional. He is self-employed effectively, though the business that he now runs solely, is actually owned by the family discretionary trust of the parties and run through a corporate trustee.  It is understood that this is done for lawful income splitting, tax minimisation purposes.

5. The business was, until sometime last year, owned in an equal partnership. The husband, through the entities previously described, bought the other partner out, borrowing the funds to do that and securing them by mortgage over the former family home of the parties.

6. The wife is not in employment.  In 2009, she obtained a Bachelor degree after around nine years of part-time study. She has not ever worked in the field of her degree major but rather ran a business from the former family home for a couple of years at a time on two separate occasions when the parties’ children were smaller. Otherwise, by apparent agreement between her and the husband, she engaged in full-time parenting and home making.

7. At around the time of separation, the parties, for some reason that is not clear to me, decided to sell their former family home. It sold for $1,670,000. After the liability secured by mortgage was paid out, the balance of the net proceeds was invested in the trust account of solicitors who handled the conveyance. It is not in dispute that there is $410,000 in that trust account at the moment. Plainly, there was a large amount of private and business debt secured by the mortgage over that property. The evidence appears to also support a finding that the wife accessed a re-draw facility that was available just prior to the sale of the property, increasing the secured debt by $60,000 which she used to pay a year’s rent in advance ($31,640) on the rental property she and the children moved into, $1,848 for a removalist’s fees, $574 for some new furniture, $4,483 for solicitor’s fees, and $20,723 to pay a credit card liability incurred in paying legal fees, buying school uniforms and books, paying an electricity bill and $10,732 for other household expenses.

8. Otherwise, the wealth of the parties consists of the business and its net assets including some cash at bank, as well as a couple of motor vehicles, their personal effects and furniture, an interest in a timeshare holiday place, and superannuation in a self-managed superannuation fund. They agree that the total net value of all of their assets is likely to be something not far in excess of $2,000,000.

9. There is also no dispute that earlier this year the wife unilaterally drew funds from the bank account operated by the business sufficient to pay the school fees of the schools attended by the children, for a year in advance.

10. The wife receives child support paid by the husband through the Child Support Agency for the three children. She said in July that she was receiving $496 per week, but more recently that it has gone down to $406 per week. I do not understand the husband to agree that is correct. I will return to that later in these reasons.

11. The wife is now also receiving some benefits paid by the Commonwealth Government, after Centrelink assessment of her position. She gets little, if any, other immediate financial support from the husband.

12. When her rent is due to start being paid again in early January 2018, it will be $565 per week. She asserts a need for $7.30 per week for house and contents insurance premiums, $25.95 per week for car insurance for her car and one their daughter drives. She asserts a need for $20 per week for the registration of the car she drives. She asserts liabilities of $19 and $76 per week for loans and credit card repayments. I understood her to tell the Court at the hearing that her credit card liability is now around $15,000. She also sets out in her Financial Statement filed in July that her other expenses total $1,282 per week of which $781 are for expenses for the children and $501 for herself.

13. No submission was made by counsel for the husband that any of those expenses were unreasonable. Plainly, the wife has a serious weekly shortfall of income as against her expenses. It is easy to see that she would be finding this difficult and stressful. Her position currently looks extremely tenuous and will only get worse for her when the rental payments kick in again in early January 2018, unless she gets some further assistance.

14. The husband asserts that she should and could get employment. Given the history of her employment and the fact that she eschewed taking up a career upon completing her degree in 2009 for parenting and homemaking, with the husband’s agreement and acquiescence, and given the current need for the children to be parented through the difficulties of the parental separation and conflict, I am quite satisfied that she cannot reasonably be considered to have an unfulfilled earning capacity right at this time. Her evidence included detail of how difficult it would be for her to become accredited to find suitable employment, in any event.

15. The husband continues to run the business. His Financial Statement was filed in May. In that he said he had an average weekly income of $2,369 which he attributed to a salary from the corporate trustee of the family trust that actually owns the business. That is equal to $123,188 per annum. He said he had no income from the family trust in addition to that salary. In that Financial Statement, he said he paid $730 per week in tax and $430 per week in rent, $57 in insurance premiums and $17 for car registration, $401 for child support and $489 per week for other expenses that were not set out. In total that is $2,124 per week, leaving an excess of $245.

16. In the affidavit he filed in July, he said:

    I propose in addition to child support that I will arrange for the Trust to pay to the wife a distribution of $1,800 per month payable in advance in addition to whatever amount I am required to pay for child support from time to time. I say that the characterisation of that payment should be determined by the Trial Judge.

17. Clearly, he thought then that he could manage that. However, neither in that affidavit nor in the Financial Statement did he say anything about how much the Trust actually earns and how its income was usually distributed.

18. In her July affidavit, the wife said that the figures with respect to the husband’s income and the income of the Trust (the net profit of the accounting business) were as follows:

    Financial year            Husband             Trust          

    2013  $106,480

    2014  $164,327           $119,589   

    2015  $156,154           $107,307   

    2016  $137,241             $87,473   

19. Since July though, the husband’s position has apparently drastically changed. In an affidavit filed by him on 9 November, the husband said that the business has had a substantial drop in earnings in recent times because the partner he bought out last year has gone off and set up his own business, with many of his own personal clients following him to that business. He says that has happened despite a restraint of trade clause in the buyout contract. The husband asserts, as I understand his evidence, that the gross earnings of the business have dropped from around $1,200,000 to $774,000. He adduced evidence of a cash-flow projection for the business for the current financial year showing gross fees of $774,000 and total expenses of $772,879 giving a net projected surplus of only $1,121. The projection allows though for a gross annual income paid to the husband himself of $140,000.

20. He also adduced evidence of a Profit and Loss Statement for the period 1 July 2017 to 31 October 2017. That listed ‘Accounting fees’ at a total of $276,322 as distinct from the $258,000 his cash flow projection showed for the same period. If that trend continues the gross fees for the year would be around $838,000, not $774,000. The Profit and Loss Statement also listed ‘staff salaries and wages’ (not including his own) at $108,253 for the period, whilst he had listed a total of $130,367 in the cash-flow projection. That is a difference of $66,000 over the full year if that trend continues. His Profit and Loss Statement did not show salary for himself but it had an entry described as “DJH trust distribution no tax” and had a figure of $49,500 beside that. I assume that was the income he said he drew over that four month period. That is the equivalent to just under $150,000 on an annualised basis or $2,855 per week.  That is $10,000 more than allowed for in the cash-flow projection, and the Profit and Loss Statement shows a net profit still after expenses for that four month period of $20,696. Annualised that is $62,088 in addition to the $150,000 already allowed for the husband in the expenses on an annualised basis. That is equal to $4,078 per week.

21. He said that he had prepared a schedule of income and expenses and includes that as an exhibit to the affidavit. It asserts an annual income of $130,000 or $2,500 per week after, notably, allowing for $200 per week distribution to the wife from the Trust. His expenses, including rent and child support at $459 per week, are listed as $2,235 without any amount for school fees. This leaves an estimated surplus, before any private school fees are paid, of $266 per week. The listed expenses do include an amount of $85 per week for “holidays”, which on an interim basis I do not regard as a reasonable amount that should take priority over obligations to support his wife and children.

22. He also adduced into evidence an income and expenses schedule which started from the premise that he would have gross income of $140,400 per annum or $2,700 per week, which also included $85 per week for holidays, $800 per week for private school fees and $910 per week for child support. Those last two figures come from the latest assessment that has issued from the Child Support Agency.

23. That income and expenses schedule has him with a net deficiency of $864 per week or $779 if the $85 for holidays is not allowed. That is $40,508 per year.

24. I must say, particularly without the benefit of cross-examination of the husband, or hearing any submissions addressed to the apparent differences between the projected cash-flow and the Profit and Loss Statement for the first four months of this financial year which suggests that net income for those four months was actually higher than the projected outcome in the cash-flow document upon which he has based the estimated income of $140,000 for the year, I am reluctant to simply accept the husband’s assertions that his income is limited to that amount. Indeed, if his income for the financial year actually is more likely to be around $200,000 gross, then the $40,000 deficiency, even after allowing for child support as assessed in the latest assessment, including the school fees at $800 per week can be seen to virtually disappear.

25. Accordingly, I am not persuaded to accept, without more at this point in time, that the after expenses income of the business available to be paid or distributed to the husband in this current financial year will be as low as $140,000. It could, on the husband’s own evidence, possibly be as high as $200,000.

The Recent Child Support Assessments and their Impact

1. In an affidavit filed on 16 November, the husband adduces evidence of recent assessments made by the Child Support Agency. The assessments that issued on 9 November included one for the period 1 August 2017 to 31 December 2017. It applies a taxable income of $227,000 for the husband and results in a weekly child support assessment of $909 or $3,955 per month. The assessments also included ones for the periods 1 January 2018 to 24 October 2018 (when the eldest child turns 18) based on the taxable income of $227,000 per annum and the fact that private school fees will be payable. The child support payable for those periods is assessed at $1,637 per week, including the obligation to pay the private school fees.

2. The Notice of Decision which includes the written reasons for those decisions was also adduced into evidence by the husband.  It included observation that the husband’s income in the 2016 financial year would have been a total of $163,926 if he had not used the Trust to split the income with other members of the family, including his parents who, it is recorded, he conceded were not actually paid the income notionally distributed to them. However, when one adds the $60,000 that the evidence showed the Trust distributed to the wife in that same year, it can be seen how the Child Support Agency accepted the husband’s real income to be around $227,000 per annum if he is not distributing any to the wife.  It is also noted that the husband had not yet submitted the 2017 tax returns.

3. The husband says in his affidavit that these changes in the assessments are “based on a misunderstanding of what [his] actual income will be” and “fails to take into account the change of income which will occur as a result of [his former partner] taking approximately [one third] of the clients away from the accounting business.”

1. The Notice of Decision did in fact make reference to the husband’s assertions that the business income was going to be substantially lower this year but it was also observed that “no documentary evidence has been provided in support of these claims”. Another relevant matter is the reference in the Decision to the husband advising that he did not intend to take any legal action against his former partner for breach of the restraint of trade clause in the buy-out contract.  He gave no evidence about that decision himself.

2. In his latest affidavit, the husband exhibits letters showing that clients were leaving the business and going with the former partner. Prima facie, it appears as if there may be some truth in the assertions, but a finding that the husband’s income is going to be down this financial year because of this does not mean the Court has to accept his assertion that he is only going to earn $140,000 before tax. As I have already observed, the husband’s own Profit and Loss Statement for the first four months apparently showed him earning around $212,000 on an annualised basis, which is less than the Child Support Agency was satisfied he was earning in the past, but not by much.

3. The husband said:

   I am in the process of preparing an objection to the change of assessment decision.

4. He also said:

   I am agreeable to pay the current assessment of child support of $1,909 per month.

   The Court understands that to be a reference to the amount assessed as payable for the current period before this most recent assessment that issued on 9 November became applicable. That amount he said he is agreeable to paying is the equivalent of $440 per week.

My Assessment of the Spousal Maintenance Matter

1. The wife seeks to have her credit card debt paid out. I consider it a proper use of the funds they have invested in trust to do that so as to save the high interest charged on credit card debt. Accordingly, her weekly credit card payment should not be included in her expenditure needs. With the rent, I calculate her expenditure needs to be $1,138 per week (not including expenditure for the children) and $573 per week before the rental expense arises again in January.

2. If the husband’s before tax income for this financial year is around $212,000 or $4,076 per week, I do not know what his tax will be on that. In his evidence, he said it would be $42,388 or $815 per week on a gross income of $140,000 and that his expenses, with the higher child support assessment that included $910 per week in periodic support and $800 per week for the school fees, would total $3,564. That would leave him with almost $600 (if the $85 for holidays is not allowed) from which to pay the extra tax. That equals $31,200 per year. It is possible that the extra tax payable on the $72,000 in annual income could be less than or equivalent to $31,200, the equivalent of 43 per cent of the additional earnings.

3. Accordingly, given the child support assessments that have been put in place, including the obligation to pay $800 per week for school fees in the new year, I cannot be satisfied that the husband has the capacity to pay from his income a periodic spousal maintenance amount at this point in time as well. Nevertheless, the wife has a need for financial support and there is capital sitting in the trust account of a firm of solicitors in the amount of $410,000.

4. I consider it proper to make an order that the parties authorise $50,000 to be paid out of the trust account of that firm of solicitors to the wife as a payment of lump sum interim maintenance.

5. I also consider it proper to make an order that the parties authorise $15,000 to be paid out of the trust account of that firm of solicitors to the wife to discharge her credit card debt. The characterisation of that payment I will leave to the Trial Judge.

Interim Litigation Costs Funding

1. The wife’s evidence is that she already owes approximately $54,000 in legal fees and fees to accountants who have advised her. She owes another $9,500 to another firm of solicitors. That is a total of about $63,500.

2. The wife applies for $150,000 of the funds held in trust to be paid to a firm of solicitors she intends to retain to represent her. If she pays out the fees that are owed, that would leave $86,500 for prospective costs and outlays. She does not really depose sufficiently in evidence to properly support that, but the husband does not oppose the amount being paid to her, as long as he can get a similar amount.

3. I am satisfied that the circumstances justify the interim costs order and that a payment of $150,000 to the wife’s solicitors of choice to be used only for past legal costs and outlays incurred in these proceedings and to be held on account of future costs and outlays, is a just order.

4. The husband gave no evidence about any costs and outlays currently owing. He gave no evidence about estimated future costs and outlays. Nevertheless, I accept he will have future legal costs and outlays that will have to be paid and that the expenses he set out in his income and expenses schedule did not include legal costs and outlays in these proceedings. Accordingly, I consider a just order to be one that permits the husband to have as much money from the capital in trust for his future costs and outlays as I have allowed for the wife, namely $86,500. My orders will provide for that. 

5. The husband proposed that as much as $175,000 be released to each of the parties and be characterised as partial property settlement. I am not persuaded that is the proper order to make. As much of that capital should be retained as is possible at this point in the proceedings, given the only other significant asset is the business itself.

Injunctions

1. There is evidence that earlier this year the wife instructed the parties’ bank to restrict the use of the business bank account to a “two to sign” basis. It is understood that there was $74,100 in that bank account but that it might have been subsequently transferred out into another account by the husband.  The husband apparently set up another bank account and has been transacting business deposits and withdrawals through that account ever since. He wants orders now that allow him access to money in the business accounts without restriction by the wife and that permit him to go on transacting on the business account without restriction. He wants the wife to be removed as a Director of the corporate trustee of the family trust as well.

2. For her part, the wife seeks orders that all business deposits go through the business bank account from this point in time and that the husband be ordered to transfer the money from the second account he opened into the original business bank account. The wife says nothing about control of the funds after deposits into the account, whilst the husband clearly wants sole control subject to obligations to disclose to the wife the accounts on an ongoing basis. His counsel pointed out to the Court that paragraph 12 of the Orders of the Registrar of 5 October this year provide for monthly disclosure to the wife of certain named business documents including bank statements for all business bank accounts.

3. I am persuaded that it is in the parties’ interests and a necessary step for protection of their assets on an interim basis and to allow ongoing transparency, to make an order requiring the husband to put any money that remains from money he has taken from the business account back into that business account. I am persuaded that it is in the interests of justice as between these parties as well as convenient, to make an order that all income received by the business be deposited into the one business account and for all transactions in respect of the business to be conducted on that account. I am, though, also satisfied that it should just be the husband who has access to that account and not the wife, unless by further order. I will include in my orders an order that the husband only transact on that account, in so far as withdrawals are  concerned, in the ordinary course of business, including withdrawing or transferring funds on a weekly basis for his own salary or drawings (that includes enough to pay his ongoing child support obligations). Other withdrawals, not by way of salary for himself or business expenses will require the written approval of the wife.

4. I am not persuaded that the wife should be removed as a director of the corporate trustee at this point in time.  I was not taken to evidence that convinces me that the wife, acting as a director, is causing such disruption to the business that she must be removed to protect the value of the asset that is the business.  I do not consider there to be a compelling case for her removal.

The Husband’s Application for a Stay of the collection of Child Support

1. The husband has had his child support obligations reassessed in recent times. He is unhappy with those recent assessments and says he intends to file an objection in the near future, by which he will seek to persuade the CSA that the reassessments are incorrect. He applies for a stay of the collection of child support pursuant to s 111C of the Child Support (Registration and Collection) Act 1988 (“the Registration and Collection Act”).

2. That section applies if a proceeding has been instituted:

   (a)In a court having jurisdiction under the Registration and Collection Act;

   (b)Before the Registrar under Part VII of the Registration and Collection Act;

   (c)Before the AAT for an AAT first review; or

   (d)Under Part 6A or 7 of the Child Support (Assessment) Act 1988.

3. That section provides that a party to the proceeding may:

   (a)in the case of a proceeding instituted in a Court – apply to that Court for an order under this section; or

   (b)otherwise – apply to a Court having jurisdiction under this Act for an order under this section.

4. Section 104 of the Registration and Collection Act confers jurisdiction for matters arising under the Act on this Court.

5. The husband has not instituted an action for a change of assessment in this Court or for any order other than a stay of the collection of child support. He has not yet lodged his objection with the Registrar under Part VII of the Registration and Collection Act to the decision to reassess his child support that has already been made. He is not in proceedings in the AAT. Nevertheless, he is in proceedings in this Court under the Family Law Act and this Court does have jurisdiction under the Registration and Collection Act as well. Accordingly, I do consider he is entitled to seek an order from this Court pursuant to s 111C of the Registration and Collection Act for a stay of collection of child support.

6. The Court may grant a stay of collection if it considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.

7. Having regard to what I have already said in these reasons about the husband’s income and likely ongoing income for the rest of this financial year in the light of the child support assessments that are currently in place and the expenses the husband set out in the schedules attached to his affidavit evidence, and the fact that he has not yet lodged an objection to those assessments, I do not consider it desirable to stay the Registrar’s collection of child support from the husband, even at the reassessed levels, taking into account the wife’s need to receive child support and for the children’s school fees to be paid. I will not stay the collection of child support. If the husband intends to lodge and prosecute an objection, then he should do that and prosecute it as quickly as he can. If he is able to persuade the Registrar to change the assessment again, then well and good. If he has paid the extra child support in the meantime, then he will get credit for that against any future assessed amount that he has to pay.

8. I do not consider it desirable to stay the collection or even to limit the amount that is collected to a lower amount, as was effectively submitted by counsel for the husband as an appropriate outcome pending the lodgement and determination of the husband’s objection. As I have already observed, I am not convinced that the husband does not have the capacity to pay the reassessed levels of child support at this point in time as is submitted on his behalf. Further, I do not consider it appropriate at this point in time, as was submitted for him, to cause next year’s private school fees for the children to be paid from what will remain of the parties’ limited invested capital when, prima facie, the Child Support Registrar has assessed the husband as being able to afford to pay those fees from his income. The capital should be preserved as best it can be pending the progress of these proceedings. 

9. I will not grant the stay sought and I will make the orders set out at the commencement of these reasons.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 December 2017.

Associate: 

Date:  7 December 2017