Hunter and Morrison (Summary Dismissal)
[2014] FamCA 199
•28 March 2014
FAMILY COURT OF AUSTRALIA
| HUNTER & MORRISON (SUMMARY DISMISSAL) | [2014] FamCA 199 |
| FAMILY LAW – PROPERTY – Section 79A – Where the wife applied to set aside a consent order and that a revised just and equitable final property order be made – Where the husband sought an order that the wife’s application be summarily dismissed – Where the court noted that in determining an application for summary dismissal, the court may only have regard to the material relied upon by the respondent to the application for summary dismissal – Where the court noted that the onus of persuading the court that there is no reasonable likelihood of success rests with the applicant to the application for summary dismissal – Where the court noted the husband must show the wife’s claim is foredoomed to failure by showing either that none of the stated grounds in s79A have any prospect of being established or that even if establish there is insufficient prospect of the court exercising the discretion to vary or set aside the order under s79 – Where on the wife’s material there was a failure by the husband to disclose relevant information – Where the question is whether the wife has any prospects of success fully demonstrating that the failure led to a miscarriage of justice – Where the court found the wife’s application insofar as it seeks relief under s79A has sufficient prospects of success – Where the court found sufficient prospects of success in persuading the court to exercise discretion under s79 to either vary or set aside or substitute the order – Where summary dismissal refused. |
| Family Law Act 1975 (Cth) ss 79A Pelerman (2000) FLC 93-037 |
| APPLICANT: | Ms Morrison |
| RESPONDENT: | Mr Hunter |
| FILE NUMBER: | TVC | 13 | of | 2010 |
| DATE DELIVERED: | 28 March 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 18 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr McGregor |
SOLICITORS FOR THE RESPONDENT: | McAlisters Cartmill |
Orders
IT IS ORDERED BY CONSENT THAT:
Paragraphs 3 and 16 of the Wife’s Amended Initiating Application filed 4 July 2012 be struck out.
AND IT IS FURTHER ORDERED THAT:
The Husband’s Application in a Case filed 8 August 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunter & Morrison (summary dismissal) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: TVC 13/ 2010
| Ms Morrison |
Applicant
And
| Mr Hunter |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 12 August 2009, Magistrate J Hodgins made final orders with the consent of the parties in relation to both children’s and property matters. By her Amended Initiating Application filed 4 July 2012, amongst other things, the wife seeks new final orders in relation to both children’s and property matters. Relevant to this application, she seeks an order that the consent order made 12 August 2009 be set aside pursuant to s 79A of the Family Law Act, and that revised just and equitable final property orders be made. By his Application in a Case filed 8 August 2012, the husband sought an order that the wife’s Amended Initiating Application filed 4 July 2012 be summarily dismissed. In his submissions made before me, Mr McGregor, counsel for the husband, confined the scope of his client’s Application only to the property orders sought in the wife’s Amended Initiating Application.
THE LAW
Summary Dismissal
Rule 10.12 provides as follows:
A party may apply for summary orders after a Response has been filed if a party claims, in relation to the Application or Response, that:
a. the Court has no jurisdiction;
b.the other party has no legal capacity to apply for the orders sought;
c.it is frivolous, vexatious or an abuse of process; or
d.there is no reasonable likelihood of success.
As I understand the husband’s case, the basis relied upon here was that the wife’s Amended Initiating Application has no reasonable likelihood of success, and is doomed to fail.
In Pelerman (2000) FLC 93-037 at 46 the Full Court said in relation to the test for summary dismissal as follows:-
The gravaman of the appeal is that the trial Judge erred in the exercise of the discretionary power to summarily dismiss the application. It is well established that the following principles apply as were recently reviewed and stated in Bigg v Suzi:-
(a)The power for summary relief is a discretionary one.
(b)Relief “is rarely and sparingly provided.”
(c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
(d)A weak or one that is unlikely to succeed is not sufficient to warrant termination.
(e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial.”
(f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court would ordinarily allow that party reframe its pleadings.
In determining an application for summary dismissal, it is plain that the Court may only have regard to the material relied upon by the respondent to the application for summary dismissal, and further, that the onus of persuading the Court that there is no reasonable likelihood of success rests with the applicant to the application for summary dismissal.
S 79A
S 79A(1) relevantly provides as follows:
Where, on application by a person affected by an Order made by a Court under s 79 in property settlement proceedings, the Court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b)…
(c)a person has defaulted in carrying out an obligation imposed on the person by the Order and, in the circumstances that have arisen as a result of that default, it is just and equitable to set the Order aside and make another Order in substitution for the Order; or
(d)…
(e)the Court may, in its discretion, vary the Order or set the Order aside and, if it considers appropriate, make another Order under s 79 in substitution for the Order so set aside.
In Barker & Barker [2007] FamCA 13 the Full Court discussed the meaning of the phrase “miscarriage of justice” in s 79A(1)(a) at [120] to [124] as follows:
| [120] A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process [original emphasis]” (Bigg v Suzi (supra) at 84,982). See also Suiker (supra); Public Trustee (as executor of the estate of Gilbert) v Gilbert (supra)). Whilst cases such as Suiker (supra), Holland v Holland (1982) FLC 91-243 and Gebert v Gebert (1990) FLC 92-137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation. As the Full Court said in Holland (supra): |
To succeed in an application under s 79A, the wife must show some circumstance leading to a miscarriage of justice. Agreement to a consent order which may not adequately reflect a party’s entitlements under s 79 does not, of itself, show that there has been a miscarriage of justice. There may be cases where the order consented to is so far outside the ambit of what is just and equitable that the Court may infer that a party has acted under duress, in ignorance or as a result of incompetent advice.
[121] We acknowledge the reality of the process by which parties reach agreement about many issues, and in particular about valuations, leading to consent orders. Where a single expert is employed, the valuation may be concluded months before a settlement is reached. There are many factors that may intervene during this period. The opinion expressed in the single expert report will often be the subject of negotiation, either through the formal intervention of the Registrar at a Conciliation Conference, some other formal intervention, or simply negotiation between the parties and their respective solicitors. During the intervening period the normal commerce of life will continue. Sales of properties, whether they be metropolitan or rural and regional, will continue and may affect the value of the relevant properties. It would be incomprehensible to expect that in this arena, that valuations will always be updated on a regular basis.
[122] …
[123] As previously discussed, in order for a claim under s 79A(1) to succeed, the Court must be satisfied that a miscarriage of justice has resulted. It is not sufficiently to merely establish the existence of one or more of the stated grounds, such as suppression of evidence. In Livesey v Jenkins (supra), Brandon LJ had this to say about the nexus between non-disclosure and setting an order aside (at445-6):
I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.
We agree with this statement.
| [124] But s 79A is a remedial section designed to avoid a miscarriage of justice. Where there is some intervening factor known to one party, but not the other, this may lead to a result which is unfair and unjust and can be characterised as a flaw in the judicial process by which the orders were made. There may also be circumstances in which the judicial process could be impugned by a sale after orders were made and in the absence of bad faith by either party or suppression of some relevant fact, if it led to a significant miscarriage of justice. |
In his submissions, Mr McGregor contended that, as part of the process of determining whether or not there has been a miscarriage of justice, it was incumbent on the Court to determine whether it would be just and equitable to vary the orders made under s 79, or put another way, whether the division of property of the parties was not just and equitable, and in this context referred to the High Court’s decision in Stanford v Stanford (2012) 247 CLR 108. Whilst, as will be seen, it is unnecessary to determine that point in this application, in any event, that would be a serious legal question to be determined, which according to Pelerman, should ordinarily be determined at trial.
The word “duress” in s 79A(1)(a) has been discussed in a number of cases. Mr McGregor relied upon a decision of Stephenson J in Nadu v Vedru[1] and particularly paras [23] to [27] thereof, in support of the proposition that there needs to be an actual overbearing of will in order to establish duress.
[1][2008] FamCA 435.
However in the subsequent Full Court decision of Wagner & Wagner [2009] FamCA FC16 at [41] the Full Court seemingly approved the decision of the New South Wales Court of Appeal in Crescendo Management Pty Ltd & Westpac Banking Corporation[2], which expressly rejected the “overbearing of the will” theory of duress. As noted by Brown J in the earlier decision of Pompidou & Pompidou,[3] in Crescendo Management (supra) McHugh JA (as his Honour then was) followed a passage from a speech of Lord Simon of Glasdale in the House of Lords to the effect that “duress is not inconsistent with act and will, the will being deflected, not destroyed.”
[2](1988) 19 NSWLR 40.
[3][2007] FamCA 878.
The final matter which an applicant under s 79A needs to persuade the trial court of, is to exercise its discretion to vary or set aside the earlier s 79 order, and make a further order under s 79. The authorities establish that this is a distinct phase to the s 79A process.
Summary
It can therefore be seen that in this application, it is incumbent upon the husband to satisfy me, based exclusively upon the material relied upon by the wife, that her claim for relief under s 79A is foredoomed to failure. He may do so by either showing either that none of the matters in s 79A(1) (a)-(e) that are relied upon by the wife have the requisite prospect of being established, or that even if they are established, there is nonetheless insufficient prospect of the Court exercising the discretion to vary or set aside the original order under s 79.
Against that background, I turn to consider the wife’s case.
THE WIFE’S CASE
The 2009 Consent Orders
The wife concedes that she agreed to final property orders as made by the learned Magistrate on 12 August 2009. In substance, these orders saw her receive payment of $150,000.00, obtain title to the business that she was then conducting called “Business E,” but otherwise relinquish any interest in either the former matrimonial home or businesses “Business G” and “Business H” which were previously conducted by the parties via the “Hunter Family Trust.” In addition, by Orders 19 and 22, the husband agreed to indemnify the wife “for all debts incurred by the parties jointly up to and after the date of separation being as 11 November 2008” and “for all tax payable as a result of any distributions from the [Hunter] Family Trust for the 2008 – 2009 financial year.”
Amongst the material tendered by the wife was the parties’ Application for Consent Orders filed in the Magistrates Court on 31 July 2009, which she relied upon as showing her contemporaneous view as to the value of certain assets, and particularly, relevant bank accounts held by the parties. Of importance is that that document shows that the parties estimated that the value of the former matrimonial home was $800,000.00, the value of the three business conducted by the parties was $200,000.00 in total, and that the only bank account held by the parties as at the date of the application had $18,971.62 in it.
In that Application, the parties identified that the division of property contemplated by the proposed consent orders would see the wife receive $160,000.00, or 26 per cent of what was identified as the net pool, and the husband $413,781.63, or 74 per cent of the identified net pool.
At para.44 of her affidavit filed 2 October 2012 the wife, in part, explained her reason for agreeing to the consent orders in the following terms:
I attempted to protect myself by agreeing to a lesser sum in the marital property settlement as immunity to all outstanding liabilities.
At the time of entering into the consent orders, the wife was not legally represented, although she had been at earlier stages of the proceedings.
The wife’s case in relation to duress
At para.9 of the wife’s affidavit filed 2 October 2012 she said as follows:
I felt extremely pressured by [the husband] to agree to his demands, and there is much evidence of the duress he placed upon me prior to property settlement. For the sake of brevity in this affidavit I will provide only two examples, as I believe [the husband’s] non-disclosure of our true financial situation speaks for itself. As early as 25 February 2009 [the husband] threatened to walk away from the business if I pursued an equitable property settlement, writing in an email … “if this goes through a legal process then the business will effectively close down as of the time of separation.” Then on 13 April 2009 [the husband] wrote “…So let’s say you prove $154k worth of value then I will ensure the focus of my legal battle will be to recoup as much of that money immediately back…” telling me “It’s how the system works…”
I have considered both of the emails attached to the affidavit, and consider that they read as fairly typical examples of business like communications between separated spouses, admittedly in the context of what appears to have been a relatively unpleasant separation. Beyond the statement in para.9 that she felt “extremely pressured,” there is no real evidence as to how it is that the wife says the contents of those emails deflected her will. Moreover, the assertion that her will was deflected or overborne does not sit easily with the sentence referred to in para.17 of these reasons, from para.44 of the same affidavit. That is, as Mr McGregor suggested, consistent with a deliberate decision based on sound commercial considerations, rather than the product of some form of duress. Further, as Mr McGregor identified in his submissions, in the Application for Consent Orders, the wife swore that she had independent legal advice about her relevant rights under the Family Law Act and the effect and consequences of the orders made in the terms proposed, and there was a certificate of independent advice from a lawyer which, amongst other things, certified that the lawyer had “given the [wife] independent legal advice as to the meaning and effect of the draft consent orders and explained their rights, entitlements and obligations.”
Even on its extended meaning, the wife’s material is insufficient to establish duress, and in any event is wholly devoid of any material which would connect the asserted duress with a miscarriage of justice. This aspect of the wife’s case is foredoomed to fail.
The wife’s case in relation to the husband’s failure to disclose relevant information
The wife relies upon a number of alleged failures on the part of the husband to disclose information prior to the consent orders being entered into.
Some understanding of the circumstances which gave rise to the alleged failure to disclose can be gathered from the religious background that each of the parties to the marriage had, which included a belief that the husband was the head of the household and should control, amongst other things, the parties’ finances. It may be that this provides some explanation as to why it is that, shortly after separation, and notwithstanding her clear legal entitlement to access the parties’ funds, the wife agreed to receive a relatively meagre weekly allowance, and surrendered to the husband her credit cards and agreed that she would not access their joint bank account. In making that observation, I do not overlook the fact that the wife says that in part she was motivated to so agree because she was desperate to see her children at that time as well.
The largest single failure to disclose relied upon by the wife relates to a bank account which was held in the husband’s sole name at the ANZ Bank at Suburb I. This account was first opened after separation, and $150,000.00 was transferred to it from a mortgage off-set account in the parties’ joint names on 29 December 2008. As at 30 June 2009, it appears from the balance sheet of the Hunter Family Trust, that the Suburb I account held $122,724.01. There is no direct evidence as to what the balance of that account was as at the date of the consent orders.
The wife asserts – and it seems clear – that not only was the existence of this account not disclosed by the husband at any time prior to the consent orders being made, but thereafter there were at least two denials of the existence of any additional account by the husband’ s solicitors, albeit in fairness to them, ultimately the existence of the account was disclosed under cover of a letter from those solicitors to the wife dated 14 March 2012.
However the matter is not as clear cut as it may initially seem, in that, although the funds were held in that account in the husband’s sole name, it seems that in fact those funds were assets of the Hunter Family Trust. It was that trust which conducted the three businesses of the parties, and in turn it was those three businesses which the parties identified in their Application for Consent Orders as being estimated to be worth $200,000.00. In the balance sheet for the Hunter Family Trust as at 30 June 2009, it was said that the trust – and therefore the three businesses conducted by it – had total assets worth $397,466.84, and total liabilities of $391,741.61, thereby seeing a net asset position of only $5,725.23. As I have already identified, amongst the assets held by the Trust as of that date was the Suburb I account with a balance of $122,724.02.
Therefore it can be seen that although the account was not disclosed by the husband to the wife prior to the consent orders, at least from an accounting perspective, as at that date, even taking into account those funds, the book value of the net asset of the position of the company was only slightly in excess of $5,000.00, whereas the parties agreed that the value of all three relevant businesses was $200,000.00.
The basis upon which the parties reached the valuation of $200,000.00 is completely unclear. It does not appear as though either had the assistance of any formal valuation at arriving at that estimate.
However there is a further layer of complexity arising from the trust position as at 30 June 2009, and that is that the balance sheet showed that, as at that date, amongst the liabilities of the trust were substantial “unpaid present entitlements” to a number of people, including the husband and the wife. As to that, the unpaid present entitlement of the husband was said to be $128,416.56, and the unpaid present entitlement of the wife was said to be $128,502.18. Therefore whilst on the book value of the net assets of the trust, there was only a slender surplus, that surplus was only arrived at after factoring in unpaid present entitlements to the parties of $256,918.74. At least according to the books of account of the trust, it held sufficient assets to enable the payment of those sums to both the husband and the wife, as well as the other beneficiaries. Therefore it can be seen that, at least according to the trust’s books of account, it would be erroneous to value the parties’ respective interests in the three businesses at $200,000.00; assuming that the books of account accurately reflect the actual values of relevant assets, the value of their interests in the trust and the businesses must necessarily have been at least $256,000.00.
Whilst I accept that the wife’s material does not say what, if anything, she would have done differently had she known of the existence of the husband’s bank account, the weight that would be given to such evidence, given that it would arguably be wholly self-serving – would likely be slender in any event.
Therefore given what, on the wife’s evidence, seems to be a clear failure by the husband to disclose relevant information, the real question is whether she has any prospects of successfully demonstrating that that failure led to a miscarriage of justice, as that term is explained in the authorities.
In my view the wife does have sufficient prospects. Particularly:
·Given the absence of any formal valuation of the three businesses or the assets of the trust, the existence of a cash asset, as at 30 June, in excess of $122,000.00, must have been relevant to and had bearing upon whether or not as at the date of the consent orders, the value of the parties’ businesses was only $200,000.00;
·The existence of a vested but unpaid present entitlement in the wife of $128,502.18 at the time of the consent orders would, to any competent legal adviser, have caused considerable reflection as to whether a division of property in favour of the wife of only $150,000.00 was just and equitable in the circumstances. That entitlement was far more likely to have been discovered by the wife and her advisers if the existence of the Suburb I account had been disclosed;
·The failure of the husband to disclose the existence of the Suburb I account, particularly given the circumstances in which it was established after separation, and funds moved from joint accounts into it, would justify an inference that the husband was aware that the disclosure of that account could have a bearing of real substance to the property division;[4]
·The above matters lie at the core of the process by which the wife came to agree to the Consent Orders, and indeed the factual basis – including a reasonable assumption of full disclosure – upon which the Court made the Consent Orders;
·The sums in question are of sufficient moment that it cannot be said that, had they been disclosed, they would not necessarily have made a substantial difference to what order the Court would have approved.
[4]See Morison v Morison (1995) FLC 92-573 at 81,671.
The final consideration then is whether or not the third aspect which the wife would be required to persuade a trial court of, namely that it should exercise the discretion to either vary or set aside the order, and if appropriate, make another order under s 79 in substitution for the Consent Order, has sufficient prospects of success.
At present, there is little material from which the value of the Hunter Family Trust, as at the date of the consent orders, could be established, other than the relevant balance sheet as at 30 June 2009, and the parties’ estimates as at the time they completed their Application for Consent Orders in July and August 2009. Whether or not the Court is minded to exercise the s 79A discretion will no doubt in large part be informed by the value of that trust’s assets, comprising the three businesses as at the date of the consent orders, and the then value of those businesses is, as I have said, unclear.
However there are other matters which are also relevant and relied upon by the wife, albeit in a different context. They are the fact that, rather than paying the $150,000.00 payable under the Consent Orders directly to the wife by way of cash settlement, the husband in fact purported to distribute it to her by way of distribution under the Hunter Family Trust. This potentially gives rise to a tax liability in the wife, which although under the Consent Orders would be the obligation of the husband to pay, could give rise to a markedly different result than had been estimated by the husband prior to settlement, namely that the total liability for both parties for tax would be about $75,000.00 for three financial years.
Further, the payment to the wife by way of distribution under the trust has had a further consequence, namely that it transpired that a social security benefit which the wife received in 2008-2009, was in fact over paid to her. This has given rise to a liability to repay that benefit to the relevant authority, in an amount in excess of $43,000.00. It is not presently clear whether such a liability would be a debt “incurred by the parties jointly up to and after the date of separation” as contemplated by Order 19, such that there would be an obligation on the husband to indemnify the wife in respect of it.
Therefore it can be seen that there are valid arguments open to the wife to support the exercise of the discretion under s 79A. Given the availability of those arguments, it cannot be said that her prospects of having the s 79A discretion exercised in her favour is wholly without merit.
It follows that, since:
(a)the non-disclosure of the existence off set account, and the monies in it seems clear and indeed uncontroversial;
(b)I am satisfied that the wife has sufficient prospects of establishing that the non-disclosure led to a miscarriage of justice; and
(c)I am satisfied that there are viable arguments available to the wife that the ultimate trial court should exercise it discretion under s 79A;
the wife’s Amended Initiating Application, insofar as it seeks relief under s 79A based upon non-disclosure of the Suburb I account, is not foredoomed to fail.
The wife’s case arising out of the husband’s alleged defaults
The wife relies upon a number of alleged defaults by the husband of his obligations under the Consent Orders, comprising:
·The transfer to the wife of a Holden vehicle when it was still subject to lease;
·The demand for the payment to the husband by the wife of $7,000.00 on account of the lease pay-out for the car;
·The failure to pay tax obligations arising out of the wife’s receipt of $150,000.00 being characterised as a trust distribution, rather than as a payment directly pursuant to the Consent Orders;
·The fact that the husband has submitted a Statement of Distribution to the ATO for the financial year ending 2008 in which he claimed he distributed the sum of $128,599.00 to the wife.
As to the car, Order 17 only required the husband to transfer to the wife all of his right title and interest in the Holden; that he did. The complaint of the wife really is that he failed to disclose in the Application for Consent Orders that the vehicle was subject to a lease. Therefore I do not think it reasonably arguable that the transfer of the car subject to lease was a default of Order 17.
As to the demand that the wife deal with the lease payout in relation to the car, that was not something which the husband was prohibited from doing under the orders. Again it is not reasonably arguable that such comprised a breach of the Consent Orders.
As to the failure to pay the wife’s alleged tax liability, in fact the wife has never submitted a tax return in which she has disclosed the receipt of the $150,000.00 as income. Therefore I do not think it reasonably arguable that there is presently any breach of Order 22.
Finally as to the distribution, or at least asserted distribution, of $128,599.00 to the wife from the Trust in the financial year ending 2008, there was nothing in the orders which prohibited the husband from so purporting to do. Indeed, given that the orders specifically contemplated that the husband only indemnified the wife in relation to tax liabilities for the 2008/09 years, it may reasonably be inferred that the husband at the time intended to act as he subsequently did in relation to the 2008 year. This really seems to be a further complaint of non-disclosure, in that the husband did not disclose to the wife his intention of so attributing income to her, or alternatively to the extent that it had in fact already been done, the fact that he had purported to do so.
For these reasons I am not satisfied that the wife has an arguable case for relief under s 79A in relation to the husband defaulting in carrying out obligations imposed on him under the Consent Orders.
CONCLUSION
The husband’s application for summary disposal of the wife’s Amended Initiating Application must fail.
During the course of argument, Mr McGregor made complaint in relation to the adequacy of the articulation of the property settlement which the wife seeks in any fresh exercise of discretion under s 79A. It is unnecessary to traverse that argument in great detail; suffice to say that an inadequate articulation of a claim is not of itself a basis for summary dismissal, but rather, as established in the authorities, is a basis for permitting a re-articulation of the claim. Whilst clearly the wife will need to spell out with some specificity precisely what relief she is seeking, at the moment, given the allegations of continuing non-disclosure, the wife would only be doing so on a provisional basis. To my mind there is no utility at this point in requiring the wife to descend to greater specificity than she already has in her Amended Initiating Application.
During the course of argument it was conceded by the wife that the form of the Application in paras 3 and 16 did not comply to the rules, and on that basis both of those paragraphs of Amended Initiating Application filed 4 July 2012 ought be struck out.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 March 2014.
Associate:
Date: 28 March 2014
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