Kallen and Alvin and Anor (No 3)

[2013] FamCA 880

FAMILY COURT OF AUSTRALIA

KALLEN & ALVIN AND ANOR (NO 3) [2013] FamCA 880

FAMILY LAW – ORDERS – Stay – Where the applicant is seeking a stay of an order pending the appeal of that order – Where the applicant argues an error of law in relation to the absence of any deductions for capital gains tax and realisation costs of real property – Where the applicant argues that the appeal may be rendered nugatory if the stay is not granted.

Family Law Act 1975 (Cth) s 75(2)

Jackson & Balen [2009] FamCAFC 131
Rosati & Rosati [1998] FLC 92-804

APPLICANT: Ms Kallen

RESPONDENT: Mr Alvin

INTERVENOR: Mr B

FILE NUMBER: BRC 11120 of 2009

DATE DELIVERED: 24 October 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Burridge

SOLICITOR FOR THE APPLICANT: Johnson Solicitors  and Attorneys

COUNSEL FOR THE RESPONDENT: Dr Sayers

SOLICITOR FOR THE RESPONDENT: Michelle Porcheron Lawyers

SOLICITOR FOR THE INTERVENOR:

Mr B

B Law Firm

Orders

IT IS ORDERED THAT:

1. The Wife’s Application in a Case filed 18 October 2013 is dismissed.

IT IS DIRECTED THAT:

1. Any written submissions to be made on behalf of the Husband and/or the Intervener in respect of costs applications already made, are to be filed and served on or before Friday 1 November 2013.

2. Any written submissions on behalf of the Wife in response are to be filed and served on or before Friday 8 November 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kallen & Alvin (No 3) 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 BRISBANE

FILE NUMBER: BRC 11120 of 2009

Ms Kallen

Applicant

And

Mr Alvin

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. For determination today is an application brought by the wife for a stay of one paragraph of orders that I made on 30 August 2013 that gave effect to my determination in the substantive property division proceedings between the applicant wife and the respondent husband.  In the substantive proceedings the husband was the applicant and the reasons that I gave for my determination were published on 26 July 2013.

2. The orders that I ultimately made on 30 August 2013 were 25 paragraphs in length.  They were substantially, although not entirely, orders that were made after I had obliged the parties in the proceedings to draft orders that I was to make, giving effect to my determination and the reasons that I had published.   Once I read through the draft orders, I was prepared to accept that they did reflect my determination, my findings and my reasons.  Although they were orders that were drafted in the first instance by agreement between the parties, I am not meaning to convey by that that they can be regarded in any sense at all as orders that the parties were consenting to.  In fact, I acknowledge, quite clearly, that they were not orders that were to be made by consent, both the husband and the wife having maintained cases to this Court in the substantive proceedings that they were each entitled to substantially different outcomes than those that I determined, in the end, were appropriate and just and equitable.

3. By an Application in the Case filed on 18 October 2013, the wife makes application for a stay of paragraph 1 only of those orders. Paragraph 1 of those orders required the wife to pay the husband the sum of $708,971.49 within 60 days of the date of those orders.  There is no dispute between the parties that the 60 days within which the wife was to pay that amount expires on a day next week, at the end of this month, today being 24 October 2013.  There is also no dispute between the parties that none of that amount has yet been paid by the wife.

4. The application for a stay arises out of the fact that the wife has lodged an appeal against that paragraph of my judgment.  In a Notice of Appeal filed on 26 September 2013, the wife appeals against only that paragraph, paragraph 1, of the judgment that I have referred to. 

5. It is important to note that not only are the husband and wife parties to the proceedings and parties to this application in the case today for a stay, but in the substantive proceedings for property adjustment orders between the parties, Mr B, a solicitor, had intervened.

6. Mr B intervened to protect his own financial interests in the case having previously been a solicitor who acted for the husband at some stage in the lead-up to the trial in the property adjustment proceedings.  Mr B had not been paid for the work that he had done for the husband, had obtained a judgment against the husband and had caused a Writ of Execution of that judgment to be registered over the title to a particular piece of real property, registered in the joint names of the husband and the wife.

7. Mr B appeared at the beginning of the trial and it was determined that there was no need on his part to play any active role in the course of the hearing and that he would be advised by the Court when the judgment was going to be delivered so that he could take steps to make submissions ensuring his interests were protected.  He did that and he was also party to the process of settling, by agreement, the draft of the orders that was presented to me that led to my orders of 30 August 2013.

8. By those orders, the husband is obliged to pay from the money that he receives from the wife pursuant to paragraph 1, the sum of $55,380.55, together with interest thereon, to Mr B in full and final settlement of his indebtedness, in return for which, Mr B would cause to be withdrawn the writ that was registered over the property.  At the outset of today’s proceedings, Mr B informed the Court that as at 29 October next week, the amount of the debt, having accumulated interest since the trial, will have reached $67,358.70. 

9. Each of the three parties who appear before me today, agree that the granting of a stay of an order pending the determination of an appeal against that order is a matter of discretion for the Court.  As I understand it, they each agree that the principles that are relevant to the determination of just how that discretion is to be exercised are well established by authority.  Those principles have been neatly summarised by counsel who appeared for the wife on today's application in his written outline of argument where he simply cites a passage from a decision of the Full Court of this Court in a case called Jackson & Balen [2009] FamCAFC 131 where in paragraph 28 the Full Court said that:

   The principles to be applied in hearing a stay application pending an appeal are well settled and that those authorities stressed the discretionary nature of the application and that it should be determined on its merits.  Principles relevant to the matter include:

   ·    The onus to establish a proper basis for a stay is on the applicant who comes to the Court seeking the stay.  However, it has been recognised that there is no need for the applicant to demonstrate any special or any exceptional circumstances.

   ·    A person who has obtained a judgment [such as the one that has been given in this case in, particularly, paragraph 1, in favour of the husband] is entitled to the benefit of that judgment.

   ·    A person who has obtained a judgment [such as that obtained by the husband in this case, and I refer, particularly, to paragraph 1 again] is entitled to presume that the judgment is correct.

   ·    The mere filing of an appeal against that judgment is not a sufficient ground for the granting of a stay.

   ·    Questions surrounding the bona fides or otherwise of the applicant are relevant for the Court to consider.

   ·    The Court may grant a stay if it determines that it is appropriate to do so on terms that are fair to all of the parties.  It has been said this may involve a Court weighing the balance of convenience and the competing rights of the parties.

   ·    A weighing of the risk that an appeal may be rendered nugatory if the stay that is sought is not granted, is an important part of the discretionary exercise.  Indeed, it has been said that this is a substantial factor in determining whether it will be appropriate to grant a stay.

   ·    Some preliminary assessment of the strength of the proposed appeal is required.  It has been said that that means the Court has to consider whether the appellant has an arguable case and, in particular, whether the appellant has demonstrated that he or she has an arguable case. 

10. It is not simply a question of determining whether the applicant has a case that can be argued before the Full Court, but rather this Court is to consider just how strong and meritorious that arguable case might be, recognising, of course, that the Court hearing a stay application cannot substitute itself for the Full Court that will ultimately hear and determine the appeal. 

11. There are other relevant matters such as the period of time in which an appeal can be heard and the sort of arrangements and terms that can be put in place having regard to that in order to ensure that the process is fair and, indeed, just to all parties.

12. In this particular case, there really is no need, once having stated the first four principles that I have just outlined, to go back and give any further consideration to any of those.  The statement of those principles and the acknowledgment of them as important principles is sufficient.  The remaining principles are ones upon which submissions have been made, evidence has been referred to. Clearly, some consideration must be given to them by the Court in determining whether to exercise the discretion in favour of the applicant who seeks a stay of paragraph 1 of the orders.

13. The first of those principles that I will turn to and consider is the one that requires me to give some preliminary assessment to the strength of the proposed appeal.  That will require me to begin by looking to the Notice of Appeal and the actual grounds of appeal.  The Notice of Appeal, as filed, contains only two grounds.  As I read them, they are separate and distinct grounds.

14. The first of those grounds asserts that I fell into error by misapplying the principles enunciated in the Full Court decision of  Rosati & Rosati [1998] FLC 92-804 by failing to deduct the estimated capital gains tax and realisation costs for the properties known as the Building O and Building P from the value of those properties or, in the alternative, by failing to make an adjustment pursuant to s 75(2)(o) in the wife's favour by reason of the disparity of some $996,474 in relation to such costs given the property that each party was to retain pursuant to the order.

15. The second ground of appeal contains a typographical error in that it asserts that the determination of the notional percentage division of the pool in the proportion of 77.5 per cent to the wife and 27.5 per cent to the husband was plainly wrong and manifestly unjust to the wife and, accordingly, the exercise of discretion has miscarried.   It is acknowledged that it is a typographical error because those two figures, simply, do not add up.  It is clear that I determined that the division of the property of the parties was to be done in accordance with a percentage determined as to 72.5 per cent to the wife and 27.5 per cent to the husband.

16. I will go back to the first ground of appeal and just put it in context in terms of the judgment that I gave in this particular case.  In my judgment, I determined, ultimately, that the net property interests of the parties were valued at $8,260,353.  There was some discussion during the course of the submissions made by the legal representatives for the parties this morning around a figure of $8,729,000 but, as I see it, that is a gross figure and did not take into account agreed liabilities of the parties that were set out in paragraph 17 of some $635,000. The actual figure of $8,260,353 was one that I reached after deducting those.  I have set it out in a later paragraph in the judgment, namely paragraph 114.

17. Included in the net property interests of the parties, were interests in two commercial properties that the parties owned through various entities.  There was no dispute that they should be included as property interests of the parties.  One of those commercial properties was a building that has been referred to as the Building O situated on the Gold Coast and in which the parties, through an entity, have absolute ownership.  The other is a commercial building in Brisbane referred to as the Building P in which the parties, through entities controlled by them, have a one-third interest along with two other unrelated third parties.

18. The valuation of those interests, in itself, was not in dispute between the parties.  A single expert provided a valuation opinion that was placed before the Court as an agreed valuation opinion going to the value of the parties’ interests in those buildings.  That expert also gave opinion evidence as to the estimated realisation and capital tax gains tax liabilities associated with each of the buildings and the parties’ interests therein.  What was in dispute between the parties at the trial and, ultimately, at the end of the trial, was whether or not those notional, estimated realisation and CGT liabilities in respect of the two commercial properties should actually be included as liabilities in calculating the net property interests of the parties.

19. Ultimately, in my determination, the orders that I made provided for the wife to keep the parties’ interest in the Building O, solely, for herself and for the husband to keep the parties’ interest in the Building P, solely, for himself.  I ultimately determined that there was to be no allowance in determining the value of the net property interests of the parties in respect of the notional realisation costs and CGT estimates because there was no evidence before the Court upon which I could make any finding that it was likely that either of those properties was to be sold in the near future or upon which I could be satisfied that either of those properties might actually have to be sold to meet the orders that I made.

20. It is that exercise of my judgment against which the wife, on one ground, appeals, asserting that I have misapplied the principles enunciated by the Full Court in the decision of Rosati, thereby falling into error.  I have before me the outline of argument prepared and handed to the Court by counsel for the applicant wife.  He addresses the question of the arguability and strength of the wife's appeal on this particular ground in paragraph 12 of his submissions.    He referred, in that paragraph, to one relatively short passage from the Full Court's decision in Rosati and that passage is contained within paragraph 6.36(b) of the Full Court's judgment in Rosati.

21. It is worth, in my view, reciting the entirety of paragraph 6.36 of Rosati here in the delivery of my reasons for judgment in respect of this application today.  I will not read through it all now as the parties are all capable of doing that themselves, but in my reasons when they are published I will include the entirety of paragraph 6.36 from Rosati.  It can be seen that the paragraph, or the small portion that counsel for the wife has included in his submissions today, is that which is subparagraph (b).

    6.36It appears to us that although there is a degree of confusion, and possibly conflict, in the reported cases as to the proper approach to be adopted by a court in proceedings under s.79 of the Act in relation to the effect of potential capital gains tax, which would be payable upon the sale of an asset, the following general principles may be said to emerge from those cases:-

    (a)Whether the incidence of capital gains tax should be taken into account in valuing a particular asset varies according to the circumstances of the case, including the method of valuation applied to the particular asset, the likelihood or otherwise of that asset being realised in the foreseeable future, the circumstances of its acquisition and the evidence of the parties as to their intentions in relation to that asset.

    (b)If the Court orders the sale of an asset, or is satisfied that a sale of it is inevitable, or would probably occur in the near future, or if the asset is one which was acquired solely as an investment and with a view to its ultimate sale for profit, then, generally, allowance should be made for any capital gains tax payable upon such a sale in determining the value of that asset for the purpose of the proceedings.

    (c)If none of the circumstances referred to in (2) applies to a particular asset, but the Court is satisfied that there is a significant risk that the asset will have to be sold in the short to mid term, then the Court, whilst not making allowance for the capital gains tax payable on such a sale in determining the value of the asset, may take that risk into account as a relevant s.75(2) factor, the weight to be attributed to that factor varying according to the degree of the risk and the length of the period within which the sale may occur.

    (d)There may be special circumstances in a particular case which, despite the absence of any certainty or even likelihood of a sale of an asset in the foreseeable future, make it appropriate to take the incidence of capital gains tax into account in valuing that asset.  In such a case, it may be appropriate to take the capital gains tax into account at its full rate, or at some discounted rate, having regard to the degree of risk of a sale occurring and/or the length of time which is likely to elapse before that occurs.

22. In his written outline of argument, counsel for the wife highlighted subparagraph (b), particularly the latter part of that sub-paragraph.  Counsel has highlighted the passage that says:

    …or if the asset is one which was acquired solely as an investment and with a view to its ultimate sale for profit then a general allowance should be made for any capital gains tax payable on a sale in determining the value of that asset for the purposes of these proceedings.

23. It is clear from those written submissions, and it was made even clearer by his oral submissions, that Mr Burridge was asserting that the wife’s case on appeal will be that although I found that there was no evidence that would satisfy me that a sale of the properties referred to was inevitable or would probably occur in the future, that I erred by way of not being satisfied that these assets were assets acquired solely as investments and with a view to their ultimate sale for profit, whereupon, pursuant to Rosati the incidence of realisation costs and CGT liability ought to have been taken into account in determining the net property interests of the parties that were to be adjusted between them.

24. I took it, by the submissions that Mr Burridge made in writing and orally that, principally, he was submitting to the court, paragraph 6.36(b) of Rosati is the paragraph that contains the principle that I have misapplied.  I thought carefully about that during the course of Mr Burridge’s submissions and I am not moved substantially by the idea that his submission is correct or that I have erred in that respect.  I am not satisfied that that argument has very good prospects of success at all in the Full Court.

25. However, although Mr Burridge did not make the submission in his written submissions, there was discussion between him and me during the course of his oral submissions about the potential for an argument to be made that I have misapplied the principles discussed in subparagraph 6.36(c) and or subparagraph 6.36(d) of Rosati.  It can be seen from the citation included in my reasons above that in subparagraph 6.36(c) that the Full Court put words in italics. The words of the second line of that subparagraph are the key words, namely the words:

    ..but the Court is satisfied that there is a significant risk that the asset will have to be sold in the short to mid-term...

1. And in that respect the Full Court effectively said:

   Where the Court is satisfied in that regard the Court may take that risk into account as a relevant s 75(2) factor.

   That is, as I understand it, the second limb of the first ground of the wife’s appeal in this case.  It seems that she is alternatively arguing that I misapplied this principle by not finding that I was satisfied that there was a real risk that the asset would have to be sold in the short to mid-term, and by not taking that factor into account at the s 75(2) adjustment stage of the proceedings.

2. I indicated to Mr Burridge during the course of argument that I considered there was greater strength, if I can use that expression, in that argument on the appeal than in the first limb of the argument.  And I acknowledge at this point of my reasons that I am still of that view, that is that the wife has an arguable case on this particular limb of ground one and that it has potentially some strength as I see it.  Although, I hasten to say I do not go as far as saying it is an extremely strong argument having regard to the way in which it was presented to me by counsel for the applicant today.

3. I turn, then, to the second ground of appeal, the second of two distinct grounds of appeal.  Mr Burridge, in his written submissions, deals with the question of the merits or the strength of that ground of appeal in one paragraph, namely, paragraph 14.  In essence, his submission is that I made no notional percentage adjustment pursuant to s 75(2), despite there being a number of likely relevant factors identified in the reasons.  He effectively says (and I believe I am doing justice to his submissions by saying this) that this argument relates to the weight that I gave to the contributions findings in the case and then the weight that I gave to matters relating to adjustments.

4. I am not satisfied, I must say, on the submissions that are put to me today about this particular point, that there is a great deal of strength in the argument that I was, by my percentage division of  72.5 per cent in the wife’s favour as opposed to 80 per cent that the wife seeks, plainly wrong and manifestly unjust in the exercise of my discretion.

5. So I turn, then, having set out those considerations, to what I see as the next important consideration for me.  That is the weighing of the risk that the wife’s appeal may be rendered nugatory if I do not grant the stay that she seeks, and I acknowledge at this point, to his credit, Mr Burridge for the wife, indeed, accepted that this is probably the most significant factor in respect of the determination of this application today.

6. Mr Burridge for the wife addresses the point in his written submissions in paragraph 10.  He says that at the heart of the wife’s case is the argument that if her appeal is successful it would be rendered nugatory or likely nugatory if I do not grant the stay.  He says that this is because there is a risk that the husband will not be able to, or would be unlikely to repay the sum of $708,971.49,  having regard to, among other things, the absence of evidence by the husband in relation to his outstanding legal fees and the amount that is likely to be deducted from the amount that is paid by the wife;  having regard to the fact that the husband no longer lives in Australia but in Indonesia; having regard to the fact that there are other assets retained by him but that they are unlikely to support refinancing to the extent required should it be necessary for the husband to repay the sum; and also, having regard to the tendency by the husband referred to in a number of parts of the reasons to engage in significant but unexplained expenditure.

7. Counsel also then goes on to refer to the need by the wife to realise assets in order to meet the sum she is to pay.

8. As I have said, the net pool of property interests that I determined was to be divided or adjusted between the parties had  a total value of $8,260,353.  Of that, I determined that the husband was to receive or retain net property interests in the order of 27.5 per cent.  That equals in dollar terms $2,271,597.  By paragraph 1 of my orders that the wife seeks to stay, the wife is to pay the husband the sum of $708,971.49.  She of course is to retain, on my orders, just under six million dollars in net property interests - $5,988,755.

9. To understand the wife’s submission that there is a real risk that her appeal will be rendered nugatory, one must look at those figures and then consider the fact that the wife is to pay the husband $708,971, which is a fairly large portion of the $2,271,597 that he is entitled to, and whether or not, if she paid that to him and was ultimately successful on appeal, there is a substantial or significant risk that that amount might nevertheless be lost to her.  For the wife it is submitted that if she is entirely successful on the appeal as currently framed, she would only have to pay the husband $40,000, not $708,000.

10. The orders required for Mr B to be paid out of the $708,000, as I see it, and this is a very relevant factor that I am now going to turn to.  Mr B has informed the Court that he is prepared to give an undertaking that if the money that is owed to him is paid, he will nevertheless ultimately abide the order of the Full Court.  That is, if it is determined that the wife succeeds on her appeal and that she should never have paid the $708,971, he would abide by that and pay back any money he has received if he is ordered to. 

11. Of course the Court would accept the significance of that offer to make such an undertaking and Mr B himself points out in his written submissions if he breached that he would expect to be struck off as a solicitor.  That is a pretty powerful submission, identifying to the Court Mr B’s understanding of the significance of giving such an undertaking to the Court.  So, as I see it, what I really have to consider in this context now is the risk that $641,613 might be lost to the wife if she is ultimately successful on her appeal.

12. Now I turn further to point out again that on her own case, if she is totally successful she would still have to pay the husband $40,000, which therefore means that I only really have to look at the question of whether or not $600,000 is at risk of being lost if I do not grant the stay.

13. Taking $708,971 off the husband’s entitlement of $2,271,000 leaves $1,562,000.  So apart from the $708,000 cash payment that he is to receive the husband retains net property interests valued at $1,562,000.  That includes a real property that was included in the pool at the amount of $595,000. That is just short of the $600,000 we are talking about.  That is a property registered in both the parties’ names.  It also includes the parties’ one-third interest in the Building P, which, at its gross value at the trial, was $711,250.  So those two figures take us to just in excess of $1,300,000 worth of property that the husband otherwise has.  They are real property interests in Australia, one that is part-owned by the wife.

14. As was submitted by Mr B and on behalf of the husband, those property interests are indeed relevant and significant in the consideration of whether or not the appeal would be rendered nugatory.  The husband is residing overseas and these property interests are here in Australia.  The fact that he is residing overseas, in my view, makes not much difference to the availability of those interests for the wife to recoup any money that she has paid if she is ultimately successful on the judgment.

15. For the wife, much was made of findings that I made in the case about the husband’s alleged profligacy and his ability to spend a lot of money in a short space of time.  It may be that a substantial amount of the money might go to pay his lawyers.  It may be that he might spend the rest of it fairly quickly, but as I have said, there is then the real property interests that one could turn to to recover the $600,000 that is at risk in the event that the wife is completely successful on appeal.

16. I am really not convinced that the wife makes out a good case that if she is not granted the stay that her appeal will be rendered nugatory.  I consider, as Mr Burridge says, that this is a very influential factor in the exercise of my discretion, particularly having regard to the fact that I have already determined that I do not consider the prospects of success on the appeal as being very strong at all.

17. I make reference to another aspect of the matter as it is argued before me today.  The wife puts before the Court evidence that has been referred to by her counsel that in order to meet the obligation of paying the husband some $708,000, she chooses to sell one or both of two real properties that she is, by the remaining orders, retaining as her sole property.

18. It is submitted that in order now to comply with the order she would have to do that by way of a fire sale and some evidence is put before the Court to suggest that if she has to sell these properties quickly that she will get less for them than she would if they were to be sold over a longer term, more appropriate sale program.  It was submitted to me that if I do not grant the stay that fact will result in her being in a poorer financial position if she is ultimately successful on the appeal than she would be if I put the stay in place giving her the ability not to have to sell one or both of the properties.

19. Mr B rightly pointed out to the Court in his submissions that the onus is on the applicant to come to the Court and persuade the Court that the granting of a stay is appropriate and that there is a proper basis for a stay.  He pointed out to the Court, a fact which I accept, that the wife has put no evidence whatsoever before the Court that could persuade the Court that she has absolutely no other option but to sell one or both of these two properties in a fire sale fashion.  I bear in mind at this point that the orders that I have made in the case are prefaced on her retaining net property interests of just under $6,000,000 in value.  There is no evidence whatsoever before the Court that the wife has made efforts to go and seek finance from a bank or borrowings in some form, secured against all of that equity or further secured against the equity.

20. So I accept the submission made by Mr B, which submission was equally made by Dr Sayers for the husband, that absent that evidence, little weight can be given to the evidence that the wife is choosing to meet the liability by the sale of two properties and now that can only be done on a fire sale basis in a fashion that will ultimately leave her, if she is successful on the appeal, worse off than she would be if she is able to get a stay.

21. Some question was raised about bona fides.  It was submitted that because the wife has not transferred her interest in one of the real properties that the husband was to retain to him as ordered, that I should somehow determine that against her in respect of bona fides.  I do note that it is rather odd that a person is not seeking a stay of orders that she has chosen for one reason or another not to comply with.  However, I do not take the issue as far as actually saying that I am satisfied that there is no bona fides in her appeal.

22. I acknowledged during the course of argument that I do understand that the wife is disappointed and unhappy with the outcome of the case, particularly having regard to the way in which she argued her case and the outcome that she was arguing for.  I do not regard her appeal as being anything other than a bona fide exercise of her rights to argue that I made a mistake and misapplied the law.  That is indeed her right and there is nothing that I see that causes me to consider that there is anything other than bona fides in that approach.

23. Ultimately, as is probably clear by now, I am not persuaded that this is a case where a stay of paragraph 1 of the orders is an appropriate exercise of the discretion having regard to all the principles and all of the evidence that is currently before me.  Upon the undertaking given by Mr B to the Court this day, that he will abide any order of the Full Court of this Court on the wife’s appeal, filed on 26 September 2013, I order that the wife’s application in the case for a stay, filed on 18 October 2013, is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 October 2013.

Associate:

Date:  13 November 2013