Karjala & Gallard
[2020] FamCA 110
•28 February 2020
FAMILY COURT OF AUSTRALIA
| KARJALA & GALLARD | [2020] FamCA 110 |
| FAMILY LAW – PROPERTY DIVISION – binding financial agreement – dispute about the validity of the BFA – assertions that the BFA should be set aside on various equitable principles and principles of common law – factual and legal dispute about construction of BFA – whether this court has jurisdiction to determine property issues. FAMILY LAW – JURISDICTION OF THE COURT – need for court to determine facts that ground its own jurisdiction. FAMILY LAW – TRIAL OF SEPARATE ISSUE – whether desirable where major factual discrepancy on most issues exists – held, not desirable – trial of all issues ordered. |
| Family Law Act 1975 (Cth) ss 21(2A), 79, 90K(1)(ab)(iii), 90K(1)(b) Supreme Court (General Civil Procedure) Rules 2015 (Vic) o 47.04 |
| Aspdin v Austin (1844) 5 QB 671 Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (Federation Press, 2012) The Right Honourable Lord Justice Lewison and David Hughes, The Interpretation of Contracts in Australia, Thomson Reuters (1st Australian ed, 2012) (Professional) Australia, Pyrmont, NSW | ||
| APPLICANT: | Ms Karjala | |
| RESPONDENT: | Mr Gallard |
| FILE NUMBER: | MLC | 1250 | of | 2019 |
| DATE DELIVERED: | 28 February 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 17 January 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | J. Williams |
| SOLICITOR FOR THE APPLICANT: | Carew Counsel Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | T. D.O.J. North SC and Ms H. Renwick |
| SOLICITOR FOR THE RESPONDENT: | KCL Law |
Order
On or before 4pm on 6 March 2020 I direct that the parties bring in minutes so as to give effect to these reasons and to provide for the expeditious ongoing conduct of this proceeding to trial.
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 Karjala & Gallard 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 MELBOURNE |
FILE NUMBER: MLC 1250 of 2019
| Ms Karjala |
Applicant
And
| Mr Gallard |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision relates to a threshold jurisdictional issue, namely, whether it is competent for the applicant to bring and maintain this proceeding having regard to the fact that the subject matter of this litigation is also the subject of a binding financial agreement (“BFA”) made between the parties.
In the usual course of events, so long as the intricate steps prescribed by the Family Law Act are satisfied, a valid BFA ousts the jurisdiction of the Family Court thereby denying this court power to pass upon and adjudicate over any aspect of the subject matter contained within the BFA.
In précis form, the applicant commenced this proceeding in February 2019 for a division of property, excluding the assets that are the subject of the BFA made between the parties in 2004.
Several parcels of real estate were relevant in this application. They included but were not limited to –
a)the land and improvements at 1 B Street, Suburb C;
b)the land and improvements at 2 B Street, Suburb C; and
c)the land and improvements at D Street, Suburb E.
At all relevant times the applicant has been employed as a professional and the respondent has worked in a technical field. They have two children, a son 13 years of age and a daughter aged 14 years. Each attends an excellent, single sex private school proximate to his and her home.
The applicant and respondent married in 2004 at which time they commenced cohabitation. They finally separated on 16 October 2018.
Prior to their marrying, the applicant and respondent entered into a BFA on 16 August 2004. It seems wholly uncontentious that the parties entered into the BFA so as to ensure that the property each called the “separate property” was kept under their “full and complete control...without interference or claim by the other”. That was recital H to the BFA. In the BFA the applicant identified her separate property to consist of nine items of real and personal property. The respondent identified his separate property to consist of eight items of real and personal property. In the passages below I have addressed the operative provisions of the BFA.
By order of her Honour Judge Small of the Federal Circuit Court of Australia made 14 March 2019, this proceeding was transferred to the Family Court of Australia. By those orders, her Honour Judge Small conferred upon the applicant sole right of occupancy of 1 B Street, Suburb C and her Honour restrained the respondent from attending that property without first obtaining the applicant’s written consent. Various parenting orders were made. On 19 June 2019 consent property orders were made by Registrar Moser. Further consent orders were made on 27 November 2019 by me.
On that last mentioned date a broader debate emerged concerning paragraphs 1 and 2 of the respondent’s further amended initiating application filed 26 July 2019. Those paragraphs were in the following terms –
1.A Declaration that paragraph J(d) of the Financial Agreement dated 16th August 2004 (“the Agreement”) does not apply to the following assets which assets are declared to be available for alteration of property interests by this Court pursuant to s79 of the Family Law Act 1975:
a) 1 B Street, Suburb C
b) Balance of sale proceeds of 2 B Street, Suburb C
c) 1 F Street, Suburb G
d) D Street, Suburb E
e) H Street, Suburb J
f) Westpac Account …42
g) NAB Account …69
h) Household contents
i) Any other bank account in either parties name
j) Motor vehicles of both the applicant and respondent
The property(“the Assets”)
2.In the alternative (and in the event that the Court refuses to make the declaration in paragraph 1), a Declaration that each party is estopped from relying on paragraph J9d) (sic) of the Agreement in relation to the Assets, and the Assets are declared to be available for alteration of property interests by this Court pursuant to s79 of the Family Law Act 1975.
In the course of debate on 27 November 2019 in which Mr P. Carew appeared for the applicant and Mr T. D.O.J. North SC appeared for the respondent, considerable focus was directed to the mechanics by which the issues to be agitated in paragraphs 1 and 2 of the further amended initiating application were to be presented and determined. It seemed to me that a factual and legal inquiry was enlivened by any examination into whether the declaration propounded in paragraph 1 should be made. Similarly, a factual and legal inquiry was enlivened by any examination into whether the estoppel arose as was propounded in paragraph 2 of the further amended initiating application. In debate on 27 November 2019 I enquired whether both parties wished to avail themselves of the opportunity that I then extended to them for the filing and service of contentions of fact and law in relation to paragraphs 1 and 2 of the applicant’s further amended initiating application. Each took up the invitation with the consequence that I made orders 1 to 4 on 27 November 2019, the terms of which were as follows –
1.On or before 4pm on 16 December 2019 the applicant must file and serve a document setting out with precision her contentions of fact and law on which she relies in respect of paragraphs 1 and 2 of the applicant’s further amended initiating application filed on 26 July 2019.
2.On or before 4pm on 10 January 2020 the respondent must file and serve a document setting out with precision his contentions of fact and law on which he relies to advance his construction in relation to paragraphs 1 and 2 of the applicant’s further amended initiating application filed and dated 26 July 2019.
3.The contentions of fact and law referred to in paragraphs 1 and 2 of these orders must address whether all issues in dispute will be determined finally by the determination of a preliminary point about the construction of the binding financial agreement.
4.This proceeding is adjourned to 17 January 2020 for further hearing of the question whether and if so on what terms a preliminary point is to be determined in relation to the construction of the binding financial agreement.
Further orders were made about the various applications that were to be dealt with on 17 January 2020. Paragraphs 8 and 9 of my 27 November 2019 orders were as follows –
8.Paragraphs 4, 12, 17 and 18 of the respondent’s amended response, filed 24 September 2019, is adjourned for a one day hearing on 17 January 2020.
9.Paragraph 5 of the applicant’s further amended initiating application, filed 26 July 2019, is adjourned to be heard as part of the hearing referred to in paragraph 4 of these orders.
Taken in combination, that meant that the matters for hearing on 17 January 2020 were those in paragraphs 4, 8 and 9 of my 27 November 2019 orders.
Synopsis
For the reasons that appear hereunder, in my judgment –
a)having regard to the factual and legal uncertainty of most propositions on which the parties rely to propound or to support the setting aside of the BFA, it is inappropriate to hear and determine all questions about the BFA otherwise than at the trial of all issues in this proceeding; and
b)the parties should formulate orders and directions to advance this case to trial before me in a speedy manner.
Relevant factual matters
Some, but not all, of the information recorded below is useful to put in context the issues that fell for my determination on the hearing of this interlocutory application.
The applicant swore four affidavits in this proceeding. They were made 7 February 2019, 18 April 2019, 29 July 2019 and 14 November 2019. The respondent swore four affidavits also. They were made on 12 March 2019, 9 May 2019, 11 October 2019 and 26 November 2019.
It is useful to first address the more important matters that arose from the applicant’s 7 February 2019 affidavit. She swore as follows –
a)she has been employed as a professional with the same employer for 25 years;
b)she substantiated the marriage and separation dates recorded above as well as the details of the couple’s children and current schooling arrangements;
c)after separation the respondent lived in the house next door to the applicant, so she moved with the children to her father’s home at 2 F Street, Suburb G;
d)during their marriage the applicant and the respondent established a collection of corporate entities including K Pty Ltd, L Pty Ltd, M Pty Ltd, N Pty Ltd, O Pty Ltd and P Pty Ltd;
e)the applicant and respondent at all relevant times were the directors of and shareholders in K Pty Ltd;
f)at all relevant times the respondent was sole director of and shareholder in L Pty Ltd;
g)the applicant and respondent have been shareholders in and directors of M Pty Ltd;
h)M Pty Ltd owns the land and improvements at H Street, Suburb J;
i)the shareholders of N Pty Ltd are K Pty Ltd and O Pty Ltd, and the directors of N Pty Ltd;
j)N Pty Ltd owns the land and improvements at D Street, Suburb E;
k)K Pty Ltd and O Pty Ltd formed a joint venture in June 2010;
l)O Pty Ltd is trustee for the Karjala Family Trust and the applicant is the director of O Pty Ltd;
m)the applicant and respondent are directors of P Pty Ltd and the respondent is its shareholder; and
n)she said she suffers from depression and a heightened state of stress.
In her affidavit made 18 April 2019 the applicant deposed to additional matters. They included parenting issues in the main.
In her affidavit made 29 July 2019 the applicant deposed to the value of the property in this case. She said real estate, cash at bank and household personal effects totalled over $8.6m, that liabilities totalled a little over $2.45m and that the parties’ net asset position was in the order of $6,155,085.
In that affidavit the applicant deposed to the steps she and the respondent took (on what seems to have been her initiative) to establish a strategy of asset acquisition, family wealth creation and tax containment. Properties at 1 F Street, Suburb G, 1 B Street, Suburb C, 2 B Street, Suburb C, and shares were duly acquired. Many of the corporate entities mentioned above were established. At separation, the combined wealth of the applicant and the respondent was considerable.
The respondent exhibited the BFA to his affidavit made 12 March 2019. He said that at the commencement of cohabitation, the applicant owned a number of properties, mainly through the Karjala Family Trust. He said he owned four properties, a self-managed superannuation fund, a motor vehicle and other items of personal property. He said that during the marriage the applicant acquired properties at 1 Q Street, Suburb E and 2 Q Street, Suburb E. He said the applicant also owned properties in Suburb R, Suburb S and Suburb G. He said he owned properties in T Street, Suburb U and in Suburb V. He said he purchased 1 F Street, Suburb G. The respondent gave evidence largely consistent with the applicant’s evidence about N Pty Ltd owning D Street, Suburb E. The respondent deposed to his version of events in respect of the acquisition of 2 B Street in December 2009. He addressed the purchase of H Street, Suburb J by M Pty Ltd. He said he purchased 2 B Street in 2015.
The BFA
The BFA is dated 16 August 2014. It consists of recitals and operative provisions. It is accompanied by a certificate of independent legal advice in relation to the applicant, a certificate of independent legal advice in relation to the respondent and an annexure. It is necessary to go to some of the more important aspects of the BFA.
The BFA incorporated 15 recitals. Those recitals canvassed such matters as the parties’ ages, an expression of their intention to marry, how they owned certain property separately from one another, their wish to keep all their current and future separate property free from any claim by the other except as expressly set out in the BFA, what was meant by the phrase “separate property”, the applicant’s separate property, the respondent’s separate property and the parties’ desire to contract out of Part VIII of the Family Law Act.
In construing agreements, recitals have a limited function, a proposition lucidly developed by Lord Justice Kim Lewison in his leading textbook on the subject.[1] Recitals usually express the factual and temporal context in which an agreement is set, reciting the preliminary statement of the narrative, as Lord Wright said in Inland Revenue Commissioners v Raphael.[2] Recitals performed the function of recording a preliminary statement of what the maker of the deed intended should be the effect and purpose of the whole of the deed when made, as was held by Lord Halsbury LC in Mackenzie v Duke of Devonshire.[3] Recitals were treated as being admissible as aids to construction in the 19th century cases an illustration of which is Orr v Mitchell.[4] However, where the operative component of the deed or agreement was clear, recitals were not to be used to control, cut down or quantify the operative provisions, as Sir John Romilly MR held in Holliday v Overton.[5] Yet, in cases where the operative provisions of the deed or agreement were not clear, recitals could be used, a point observed by Lord Esher MR in Ex parte Dawes; Re Moon[6] and by Sir George Jessell MR in Re Mitchell’s Trusts.[7]
[1] The Right Honourable Lord Justice Lewison and David Hughes, The Interpretation of Contracts in Australia, Thomson Reuters (1st Australian ed, 2012) (Professional) Australia, Pyrmont, NSW.
[2] [1935] AC 96.
[3] [1896] AC 400.
[4] [1893] AC 238.
[5] (1852) 51 ER 366.
[6] [1886] 17 QBD 275.
[7] [1878] 9 Ch D 5.
Aside from being relevant as an aid to construction, recitals that import an obligation will be held to bind the party upon whom the obligation is imposed. Early illustrations emerged in the decision of Lord Tenterden CJ in Sampson v Easterby[8] and in the decision of Lord Denman in Aspdin v Austin.[9]
[8](1829) 109 ER 188.
[9](1844) 5 QB 671.
In this case the recitals serve other additional functions. Beyond setting the narrative of the arrangement between the applicant and the respondent, in this case, clause 14 of the BFA imposed contractual obligations upon the parties in relation to the contents and details of the recitals. By that clause the parties warranted the truth and accuracy of the information recorded in the recitals. By that clause the parties also agreed that the obligations created by the recitals wherever appearing were legally binding and that the contents of the recitals created enforceable obligations upon them. That was important for several reasons. One reason was the definitional nature of the term “separated property” which meant the property defined in recital K, the property defined in recital L but also all later acquired property, all income derived from the separate property and all income including salaries received from personal service.
Recital O was also important. It was, by clause 14, a term of the BFA. It provided as follows –
[Mr Gallard] and [Ms Karjala] want to fix their obligations to each other should they separate and want to accept the terms of this Agreement instead of and in full discharge of all other rights and claims each may have against the other pursuant to the Act.
The significance of the status of property being “separate property” belonging solely to one or the other of the applicant or respondent lay in clauses 2, 3, 4 and 6 of the BFA. Those clauses were as follows –
2.[Mr Gallard] and [Ms Karjala] have the unfettered right at any time to dispose of their separate property by gift, transfers to or in trust or by will during their lifetimes without interference by the other party.
3.During their marriage both [Mr Gallard] and [Ms Karjala] have the full right to own, develop, control and dispose of their separate property as if the marriage did not exist.
4.[Mr Gallard] and [Ms Karjala] will not mingle their separate property or separate income. If they mingle or fail to keep separate their separate property or income this shall not change the character of that property.
6.Except as specifically provided in this Agreement, [Mr Gallard] and [Ms Karjala] waive, relinquish and release all right, title and interest in and to any and all of the other party’s separate property.
Pursuant to clause 10 of the BFA, the applicant and respondent agreed that the separate property of each would not fall for consideration if either applied to this court for property settlement orders. Clause 10 was in the following terms –
If [Mr Gallard] or [Ms Karjala] make application to the Family Court of Australia for property settlement, they will not ask the Court to take into account their separate property pursuant to the provisions of Section 75 (2) of the Act.
Pursuant to clause 18 and 19 of the BFA the applicant and respondent recorded how each had received legal advice about the BFA prior to their entry into it. Clause 21 was in the following terms –
This Agreement is intended to be a binding financial agreement under Section 90B of the Family Law Act 1975 and deals with the rights and responsibilities of [Mr Gallard] and [Ms Karjala] with respect to their separate property and separate income.
It was against that factual background that the applications were heard on 17 January 2020.
The applicant’s applications
Most of the time of the hearing on 17 January 2020 was devoted to issues concerning the BFA. However, as is revealed by paragraphs 8 and 9 of the orders made 27 November 2019, an array of other applications fell for determination.
Paragraph 8 of the 27 November 2019 orders referred to paragraph 4 of the respondent’s amended response filed 24 September 2019. In paragraph 4 of the amended response the respondent sought an order for the dismissal of paragraphs 1, 2 and 3 of the applicant’s further amended initiating application filed 26 July 2019. Those three paragraphs in respect of which the respondent sought a dismissal were inextricably connected to the argument about the validity of the BFA. Paragraphs 1, 2 and 3 of the further amended initiating application were as follows –
1.A Declaration that paragraph J(d) of the Financial Agreement dated 16th August 2004 (“the Agreement”) does not apply to the following assets which assets are declared to be available for alteration of property interests by this Court pursuant to s79 of the Family Law Act 1975:
a) 1 B Street, Suburb C
b) Balance of sale proceeds of 2 B Street, Suburb C
c) 1 F Street, Suburb G
d) D Street, Suburb E
e) H Street, Suburb J
f) Westpac Account … 42
g) NAB Account …69
h) Household contents
i) Any other bank account in either parties name
j) Motor vehicles of both the applicant and respondent
(“the Assets”)
2.In the alternative (and in the event that the Court refuses to make the declaration in paragraph 1), a Declaration that each party is estopped from relying on paragraph J9d) of the Agreement in relation to the Assets, and the Assets are declared to be available for alteration of property interests by this Court pursuant to s79 of the Family Law Act 1975.
3.That there be a division of the Assets
matrimonial pool, excluding the assets subject to the Binding Financial Agreement entered into by the parties in 2004equally between the parties.Paragraph 8 of the 27 November 2019 orders referred to paragraph 12 of the respondent’s amended response filed 24 September 2019. Paragraph 12 of the respondent’s amended response was in the following terms –
Should the Wife obtain sole use and occupation of 1 B Street, Suburb C, Victoria (‘1 B Street’), then the Wife during her period of occupation pay:
a)All utilities, rates, taxes and apportionable outgoings on 1 B Street as and when they fall due.
b)The contents and building insurance as and when it falls due.
c) The mortgage as and when the payments fall due.
Her Honour Judge Small made an order for the sole use and occupation of 1 B Street, Suburb C. On 2 January 2020 Westpac Banking Corporation as mortgagee served upon the applicant a notice of default for failing to pay the sum of $20,003.02 by 9 February 2020. It was put by Mr Williams on behalf of the applicant that the applicant and the respondent arranged between themselves that the respondent would, and did, meet all outgoings referrable to that property and that the applicant would, and did, meet all school fees.
On behalf of the respondent Mr North SC acknowledged that 1 B Street was acquired during the course of the marriage. He relied on paragraph 8 and following of the respondent’s 11 October 2019 affidavit. The portion on which Mr North SC relied was the same as the extract that Mr Williams read into the transcript as follows –
The financial arrangements during the marriages were such that [Ms Karjala] did not meet any mortgage payments, or any other costs to maintain the property, and that includes all outgoings, repairs and utility costs. [Ms Karjala] paid the school fees for the children of the marriage, as billed by the children’s respective school. I otherwise funded the vast majority of our living costs.
Mr North SC submitted that no such arrangement existed. He said a triable issue existed about that disputed fact. Mr North submitted that the properties that constituted separated property fell to be determined at trial. He went further, as follows –
MR NORTH: There is also a matter in contention as to the nature of the substance and effect of any arrangement between the parties, with respect to meeting expenses, which forms the foundation in the wife’s case for final relief for a claim for an estoppel that’s stopping my client from relying on particular provisions within the agreement. Now, that’s again
HIS HONOUR: Just one moment. Yes.
MR NORTH: That’s, again, a matter that can’t be resolved without a trial, and indeed, as your Honour would have appreciated from reading the respective notices of contention, one contention on behalf of the husband is any arrangement that the parties entered into after executing their binding financial agreement was one that was premised upon, and incorporated, their continued obligations under that agreement.
HIS HONOUR: Well, that would have the effect of being, in law, a novation. Well, because the BFA, on what you so submit, continues unaffected.
MR NORTH: Yes. Unaffected.
HIS HONOUR: Well, what if these – well, just one second. Do you mind if we tease this out a minute?
MR NORTH: Well
HIS HONOUR: Is there scope to say that the binding financial agreement says what it says, and the parties subsequently enter into an agreement that there is, contradicts, countermands in any shape or form, what the BFA says?
MR NORTH: In our respectful submission, both on the facts as they happened and as a proper construction of this part of the Act, no.
HIS HONOUR: Is it possible that, by their conduct, in which the other side acquiesces, that an estoppel might arise as to the enforcement of some terms of the BFA?
MR NORTH: We won’t exclude the possibility, but when one has regard to the fact that under the Act the parties can’t terminate that agreement, other than by entering into another one.
HIS HONOUR: Okay. So your answer is the provisions of the statute militate against any scope for an estoppel, rendering it impossible to contract out of the provisions of the Act?
MR NORTH: Yes.
HIS HONOUR: Well, that would be the knockout point, wouldn’t it?
MR NORTH: Well, if we succeed on that.
MR WILLIAMS: If you succeed.
HIS HONOUR: That’s true.
MR NORTH: Yes.
HIS HONOUR: And that’s part fact and law, I assume?
It is undesirable for findings of fact to be made in contested interlocutory hearings. In Pollard & Nordberg[10] I drew together the learning on the point in the following way –
70.In Marvel v Marvel[11] the Full Court addressed the complications that presented themselves when on an interim hearing the court is called upon to make findings of fact on disputed evidence. The Full Court embraced the cautioning remark sounded in SS & AH[12] where it was held that findings made at an interim hearing should be made with great circumspection.
71.In Deiter & Deiter,[13]a differently constituted Full Court held that interim hearings are necessarily truncated hearings and a court must be cautious to avoid being drawn into contentious trial issues. Instead, the court should look for agreed issues, care arrangements prior to separation, current circumstances of the parties and the children and the parties’ respective proposals.
72.In Eaby & Speelman[14] the Full Court held that frequently the judge must do the best he or she can by weighing the probability of competing claims and assessing the likely impact on the children in the event that a controversial assertion is relied upon or rejected. The decision in Banks & Banks[15] was to like effect as was the decision in Salah & Salah.[16]
73.In Redmond & Redmond[17] the Full Court held that guidance is often provided by independent expert evidence, even where on an interim contested hearing significant disputes exist in relation to the evidence on which reliance will be placed.
[10] [2019] FamCA 365.
[11] (2010) 43 Fam LR 348.
[12] [2010] FamCAFC 13.
[13] [2011] FamCAFC 82.
[14] [2015] FamCAFC 104.
[15] [2015] FamCAFC 36.
[16] (2016) 56 Fam LR 299.
[17] [2014] FamCAFC 155.
Matters of mixed fact and law needing determination
In my view there is real merit in the contention that disputed factual matters require examination at a contested trial. Put differently, factual findings on the hearing of interlocutory applications should only be made with circumspection. In this case most of the issues are disputed. They require full ventilation at trial. Once one arrives at that point all triable issues should be tried, this one included.
Paragraph 17 of the respondent’s amended response, referred for hearing on 17 January 2020 pursuant to paragraph 8 of the 27 November 2019 orders involved the removal of a caveat lodged against title to the property at 1 F Street, Suburb G, being the whole of the land described in certificate of title volume 4611 folio 165. Mr Williams told me the caveatable interest said to support the caveat was based on the applicant’s “contributions in relation to the acquisition and preservation of that property” (his words). Mr Williams said that if that property is sold, the applicant would consent to an order for the removal of the caveat 21 days prior to the settlement of any such sale.
Pursuant to paragraph 18 of the respondent’s amended response, the respondent sought the following order –
18.That the Wife forthwith sign all documents and do all things necessary to:
a) Resign as director of P Pty Ltd.
b)Transfer her 6 shares in M Pty Ltd to the Husband.
Mr Williams did not press for the interlocutory determination of the issue recorded in paragraph 18. To the contrary – he said the issue was a matter for trial. He submitted as follows –
Paragraph 18, this relates to the wife’s involvement with – I will call it a superannuation extension investment. What occurred was that the husband had a superannuation fund, which was the Gallard Superannuation Fund, and that, through mechanical means of the acquisition of a company called Kalatex Group, that purchased a property at H Street, Suburb J in 2010. What the wife says is, “Well, I was involved in that, in the acquisition of that. My interest is not so much in the original Gallard Superannuation Fund, but during the course of the marriage, the extension of that fund, and the acquisition of that property, was something that I was involved in, and in fact, I am a director, appointed with the consent of the husband, of the Kalatex company, and I am involved in relation to some involvement in respect to the ongoing nature of that investment property, as it is an investment that I have an interest in”.
The wife’s position, as a director and shareholder, is reflected in Kalatex Proprietary Limited, where the husband and wife are both equal shareholders or directors. So that’s a matter for trial, and it’s a matter for a mop up in relation to what occurs when these parties’ final interests are determined by the court, either by agreement, there will be consequential orders as to the release of those shares. In all probability, that property will be sold and there would be some adjustment between the parties, or alternatively, the wife would leave that investment and there would be some other adjustment, she would say, from other properties held, but the premature removal of the wife prior to any determination by the court is, in my submission, inappropriate on an interim basis. The taxation returns in relation to the super fund are up to date. You may recall that there’s an argument by the husband that the superannuation fund was non-compliant for a period of time due to an argument between the husband and wife, or non-cooperation. That has been rectified, and the superannuation fund is up to date in relation to its financial obligations.
Paragraph 7 of the orders made on 27 November 2019 related to the proceeds of sale of 2 B Street, Suburb C. That property is not expressly mentioned by the terms of the BFA. According to paragraph 66 of the respondent’s 12 March 2019 affidavit, he purchased 2 B Street, Suburb C on 30 January 2015 for $841,000 using borrowed funds of $790,000 and the balance from his own sources. He said settlement of the sale of 2 B Street was effected on 8 March 2019, a little less than five months after the parties separated. In the form of a submission, he said in paragraph 66 of that affidavit that 2 B Street was his separate property under the BFA.
Paragraph 7 of the 27 November 2019 orders also referred to the proceeds of sale of D Street or the funds in the D Street mortgage offset account. The applicant contended in paragraph 1 of her further amended initiating application that declaratory relief was sought to the effect that recital J(d) of the BFA does not apply to (among other properties) D Street, Suburb E. So far as that piece of real estate was concerned, in paragraph 4(b) of his further amended response to the initiating application, the respondent sought a declaration that 50% of D Street, Suburb E was the separate property of the respondent and/or the Gallard Family Trust.
In paragraph 9 of the 27 November 2019 orders, paragraph 5 of the further amended initiating application filed 26 July 2019 was called in issue. Paragraph 5 was in the following terms –
5.That upon settlement of the sale of the property at 2 B Street, the proceeds of sale be applied in the following manner and priority:
a) To discharge the mortgage encumbering 2 B Street;
b) To discharge the mortgage encumbering 1 B Street;
c)The sum of $75,000 to the wife for the purpose of payment of the children’s school fees and associated expenses for the 2019 school year;
d)The balance to be retained in an interest-bearing account held in the joint names of both parties or in a solicitor’s trust account, to be applied to the CGT liability on the sale of 2 B Street.
As has been outlined above, the applicant sought orders for the division of assets equally between the parties. She also sought a declaration that the parties are estopped from relying on the BFA and that instead, all assets are to be divided in accordance with s 79 of the Family Law Act. She contended that a degree of urgency applied to this case and she cited in support the need to address the proceeds of sale of 2 B Street in a particular manner, the respondent concurrently contending that 2 B Street was beyond the jurisdiction of this court having regard to the provisions of the BFA.
Very little attention was devoted in the applicant’s affidavits or written submissions to her contentions concerning estoppel. While I recognise that debate about the existence and effect of an estoppel is a matter of mixed fact and law, the factual elements giving rise to the legal consequences outlined by the High Court in Waltons Stores (Interstate) Ltd v Maher[18] and Commonwealth v Verwayen[19] were not elucidated to make out the estoppel plea in the further amended initiating application. Being a court of law and equity,[20] this court has power to adjudicate over issues of estoppel, quintessentially equitable in nature. The Full Court pronounced on principles of estoppel in In the Marriage of H B Schokker & Edwards,[21] In the Marriage of Neale,[22] In the Marriage of Woodcock,[23] and In the Marriage of Cierpiatka.[24]
[18] (1988) 164 CLR 387.
[19] (1990) 170 CLR 394.
[20] s 21(2A) of the Family Law Act.
[21] (1986) 11 Fam LR 446.
[22] (1991) 14 Fam LR 861.
[23] (1997) 21 Fam LR 393.
[24] (1999) 25 Fam LR 548.
In this case the plea has been raised that the parties are estopped from relying on the BFA. To embark upon any consideration of that plea, a detailed factual examination is involved. That is likely to involve the resolution of disputed facts and it will inevitably involve cross-examination.
For an effective plea of estoppel to be made out, the High Court has held that six legal and factual matters must be established.[25] They are as follows –
1.the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;
2.the defendant has induced the plaintiff to adopt that assumption or expectation;
3.the plaintiff acts or abstains from acting in reliance on the assumption or expectation;
4.the defendant knew or intended him to do so;
5.the plaintiff’s action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and
6.the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.
[25]Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387.
Naturally, unless those matters are admitted, and in this case they are not, then a factual excursus must be undertaken leading to factual findings on which legal holdings are made.
A danger exists in conducting a separate trial of issues rather than conducting a trial of a proceeding in its entirety. While a facility exists in this court for a trial to be conducted on a discrete point, learning at the highest level cautions against such a course. In Tepko Pty Ltd v Water Board[26] Kirby & Callinan JJ held as follows –
168.The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P[27] and Fitzgerald JA[28] were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd[29] attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.[30]
169.The second and related comment is this. A party whose whole case is knocked out on a trial of a preliminary or single issue, may suspect, however unjustifiably, that an abbreviated course was adopted and a decision reached in the court’s, rather than the parties’, interests.
170.Thirdly, there is an additional potential for further appeals to which the course of the trial on separate issues may give rise. Indeed, that could occur here were this appeal to be allowed and a retrial had in which the remaining issues of causation and damages were decided. Single-issue trials should, in our opinion, only be embarked upon when their utility, economy, and fairness to the parties are beyond question.
171.The fourth of our comments is related to evidence compiled, committed to writing and filed in advance of the hearing. Parties frequently, either together or separately, compile “books of documents”. Although most of these have the potential to be admitted in evidence, often they are defective in form. Many of them are often irrelevant, or their significance is either not recognized or adverted to during the hearing. Their status, as in the case of the letter written by Mr Rhodes, can be ambiguous. Discrimination and economy should be exercised by those who prepare cases in which documentary evidence is likely to be extensive and important. Those who conduct such cases should ensure that what is actually in evidence, and its relevance and significance, are clearly identified.
[26] (2001) 206 CLR 1.
[27] [1999] NSWCA 40.
[28] [1999] NSWCA 40.
[29] (1999) 198 CLR 180.
[30] emphasis is mine.
A comparable sentiment was earlier expressed by the Appeal Division of the Supreme Court of Victoria (Brooking, Smith & JD Phillips JJ) in Jacobson v Ross & Jacobson.[31] That case turned on a different rule, obviously enough (Order 47.04 of the Rules of the Supreme Court of Victoria). Yet the complexities associated with the determination of a separate issue can be traced to statements of the House of Lords in Nissan v Attorney-General.[32] As counsel I had direct experience of the futility of the determination of a preliminary point because that determination, rather than contracting the litigation, led to two appeals to the Court of Appeal and two applications for special leave to the High Court of Australia.[33] I respectfully agree with the views of Kirby & Callinan JJ where their Honours held that the attractions of the trial of issues rather than the trial of cases in their totality are often more chimerical than real.
[31] [1995] 1 VR 337.
[32] [1970] AC 179.
[33] Husain v O & S Holdings (Vic) Pty Ltd [2004] VSC 274; Husain v O & S Holdings (Vic) Pty Ltd [2005] VSC 269; Husain v O & S Holdings (Vic) Pty Ltd [2005] VSCA 269; O & S Holdings (Vic) Pty Ltd v Husain [2006] HCATrans 274; Husain v O & S Holdings (Vic) Pty Ltd (No 2) [2007] VSCA 70 and Husain v O & S Holdings (Vic) Pty Ltd [2007] HCATrans 399.
Returning to the applicant’s statement of legal contentions, the applicant asserted that s 90K(1)(ab)(iii) of the Family Law Act had been enlivened. That is a contention of reckless disregard of the interests of the other person. The manner of raising this contention was as follows –
74.The Applicant maintains that, at the time of entering into the Agreement, it was the parties’ intention that the purpose of the Agreement was to keep separate all assets held at the date of the marriage, and that assets acquired during the marriage would be the subject of alteration pursuant to section 79 of the Act.
75.If the Respondent admits that he intended the Agreement to quarantine assets of the parties at the date of the marriage, and was aware that the Applicant was under the belief that she agreed that assets acquired by the parties during the marriage were capable of adjustment under the Act, with the express intention of using all his income for personal gain at the expense of the Applicant, he did so with reckless disregard for the interests of the Applicant.
Self evidently, an assertion of “reckless disregard” at law invites a fact-intensive investigation. In appropriate circumstances it may involve an examination of the intent of the person said to have engaged in the conduct amounting to reckless disregard. That cannot be done, nor should it be done, in a manner detached from the overall trial of all issues in the case.
The applicant also invoked s 90K(1)(b). She said she wished to enforce the BFA yet at the same time she wished to sever parts of it. She contended that recital J(d) was void, voidable or unenforceable and she relied on clause 12 in support of her contentions for severance.
She submitted that the BFA’s definition of “separate property” does not reflect the intention of the parties.
Correction of the instrument properly embodying the intention of the parties is the province of equitable principles concerning rectification. Where rectification is sought, one party ordinarily alleges that the written instrument does not accurately embody the agreement reached. In Maralinga Pty Ltd v Major Enterprises Pty Ltd,[34] Mason J held that rectification may be ordered where the instrument sought to be rectified does not reflect the common intention of the parties. In this case, a claim to rectification is made. In paragraph 81 of her statement of facts and legal contentions, the applicant said the following –
81.The Applicant maintains that the at the time of entering into the Agreement, it was the parties’ intention that the purpose of the Agreement was to quarantine all assets held by each of them at the date of the marriage, and that assets acquired during the marriage would be the subject of alteration pursuant to section 79 of the Act.
[34] (1973) 128 CLR 336.
Ordinarily, when construing a written agreement evidence of parties’ subjective expectations, intention and wishes is inadmissible. An excellent distillation of relevant legal principles relating to the construction of contracts was given in the reasons for judgment of Gillard J in Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Ltd,[35] citing the observations of Mason J in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales.[36]The intention of the parties is usually divined by resort to the words used themselves. Here, a dispute emerged about whether the BFA should be rectified on the basis that in its current form the BFA does not accurately record the parties’ intentions. That is a triable issue. It should be tried along with all other issues to be tried. To do otherwise enlivens the risks to which Kirby & Callinan JJ averted in Tepko.
[35] [2000] VSC 415.
[36](1982) 149 CLR 337.
The applicant also asserted that issues of uncertainty emerged from recital J. Perhaps they do. At this stage of the proceeding I am unable to say, however. To address the issue a factual examination must be undertaken of matters canvassed in the High Court’s decision in Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd.[37].
[37] (1968) 118 CLR 429.
At paragraph 88 of her statement of facts and contentions the applicant asserted that the definition of separate property at paragraph J(d) is void, voidable or unenforceable. That seemed to me to be something of an omnibus complaint although its statutory wellspring is s 90K(1)(b). It must not be forgotten that the applicant executed the BFA after having received advice about its contents, terms and effect. As the High Court held in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd,[38] following the old English decision in L’Estrange v F Graucob Ltd,[39] a person is presumptively bound by a document that he or she signs. In terms of the proper approach to construing the BFA, guidance of undeniable veneration is given by Lord Romilly MR in Re Strand Music Hall Co[40] where his Lordship held as follows –
The proper mode of construing any written instrument is, to give effect to every part of it, if this be possible, and not to strike out or nullify one clause in a deed, unless it be impossible to reconcile it with another and more express clause in the same deed.
[38](2004) 219 CLR 165.
[39][1934] 2 KB 394.
[40](1865) 55 ER 853.
Issues concerning the alleged impossibility of reconciling recital J(d) with other parts of the BFA should not be considered “on the run”, so to speak, during the interlocutory phase of this litigation or as a trial of a separate issue.
The applicant asserted that the BFA was the product of a mutual mistake. She described in paragraph 92 the existence of a mutual mistake. The applicant did not identify whether she relied on a common law doctrine of mistake or whether she relied on the equitable doctrine (different results emerging depending on which was selected). She did not cite Taylor v Johnson[41] as the jurisprudential source of her contention. Inferentially, by contending the existence of a mutual mistake the applicant is calling into question whether an agreement came into existence at all. That position, if advanced by the applicant, stands at odds with the contentions she concurrently advances about the validity of parts of the agreement yet how other parts of it must be severed. It seemed to me the applicant’s contentions in relation to mistake were confused. I do not place much store on the authorities cited in paragraphs 107 and 108 of the applicant’s statement of contentions having regard to the authority of the High Court in Taylor v Johnson. In Corelli v Beroni,[42] Tree J followed Taylor v Johnson in a BFA case.
[41](1983) 151 CLR 422.
[42][2019] FamCA 911.
Rectification arguments advanced by the applicant, that are premised on the existence of the agreement, are likewise inconsistent with arguments that the BFA’s existence is denied by reason of mutual mistake.
The applicant advanced contentions about “the common law principle of unjust enrichment.”That encapsulation may be intended to refer to the common law cause of action for money had and received to which Lord Mansfield referred in Moses v Macferlan[43] which French CJ addressed in the High Court’s dissertation about restitution and unjust enrichment in Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (“AFSL”).[44] The doctrine of unjust enrichment was propounded as recently as 1987 in Pavey & Matthews Pty Ltd v Paul[45] and later in Roxborough v Rothmans of Pall Mall Australia Ltd.[46] Yet in AFSL, unjust enrichment came to be seen as a taxonomical concept, at least according to French CJ. At its core, the foundation of an action for the recovery of money had and received was the notion that retention of the money by the payee would be “against conscience,” as Lord Mansfield held in Moses v Macferlan, a point on which the plurality in AFSL heavily relied.
[43](1760) 97 ER 676.
[44](2014) 253 CLR 560.
[45](1987) 162 CLR 221.
[46](2001) 208 CLR 516.
Since AFSL, it is now to be regarded as being the law that the concept of unjust enrichment is rejected as a definitive legal principle but it is embraced as a unifying legal concept. So much was held by Gageler J in AFSL, applying David Securities Pty Ltd v Commonwealth Bank of Australia.[47] In AFSL, Gageler J traced the origins of the action for restitution of money paid under a mistake to the 18th century form of action known as indebitatus assumpsit. To such a cause of action a defendant was deprived of defences otherwise available, had a different cause of action been chosen. Gageler J also addressed the observations of the court in Australia & New Zealand Banking Group Ltd v Westpac Banking Corporation[48] to the effect that recovery of money paid under a mistake of fact had restitution at its core.
[47](1992) 175 CLR 353.
[48](1988) 164 CLR 662.
It seems to me, therefore, that AFSL is the current guiding principle in respect of restitutionary claims, subsuming unjust enrichment and rendering the authorities cited in paragraph 118 of the applicant’s contentions of lesser persuasive authority than AFSL. In my view it would be unwise to try as a separate issue a disputed contest of fact and law about restitution. An investigation of contested facts leading to a restitutionary claim are not best suited to the trial of a separate issue in my view.
Turning now to the respondent’s contentions, paragraphs 27 and following of his 10 January 2020 document reveal that matters of both fact and law as well as mixed matters of fact and law are in issue. For example, the respondent –
a)said he intended to enter the BFA and to be bound by its terms;
b)denied he acted with reckless disregard for the applicant’s interests;
c)said the terms of the BFA, especially recital J, were prepared and submitted to the respondent;
d)said the applicant obtained legal advice about the BFA prior to her execution of it;
e)argued that recital J(d) was accurate;
f)advanced a construction of “future separate property,” “property later acquired,” “income or other gains” and other provisions of the BFA;
g)disputed the applicant’s contentions about uncertainty;
h)disputed the applicant’s contentions about mutual mistake;
i)disputed the applicant’s contentions about severance;
j)disputed the applicant’s contentions about rectification;
k)said he met all repayment’s in relation to borrowings associated with various properties; and
l)denied the applicant’s contentions about unjust enrichment (sic).
He sought orders in the nature of declaratory relief in respect of 1 F Street, Suburb G, H Street, Suburb J, 50% of D Street, Suburb E and the net proceeds of sale of 2 B Street, Suburb C.
Buried, seemingly unassumingly in the minutiae of paragraph 38, was the contention in subparagraph (c). It was as follows –
further or in the alternative, if contrary to the Respondent’s contentions the Agreement is void, voidable or unenforceable by reason of any of the matters alleged by the Applicant or that any part thereof may not be enforceable because of an estoppel then the Respondent seeks an Order setting aside the Agreement as a whole and/or restraining each party from enforcing any entitlement under the Agreement;
In other words, the respondent himself sought an order setting aside the BFA if the applicant succeeded in her contentions about the BFA being void, voidable or unenforceable. Of course, it is permissible for inconsistent pleadings to be advanced. However, in the circumstances of this case the respondent’s contentions in paragraph 38(c) of his contentions of fact and law were contrary to his threshold proposition pursuant to which he propounded the validity of the BFA.
Bifurcation
The respondent urged me to decide separately the issues in the notices of contention. In paragraph 53 of his statement of facts and contentions the respondent said the following –
Here there is at least a reasonable prospect that the separate decision on the issues raised by the Notices of Contention will:
a)dispose of a significant and likely the most complex part of the case;
b) make the overall trial substantially shorter; and
c) save substantial costs.
Conversely, the applicant asserted that any bifurcation of the proceeding will lead to a duplication of aspects of the case. She said the following –
If the proceedings are bifurcated in that only the preliminary point is determined then that will require the Court to have a second hearing and the Court will be required to hear the contributions arguments a second time.
In my view a very real risk exists that any bifurcation of the proceeding by conducting an examination of the validity of the BFA will not achieve the end result urged by the respondent in paragraph 53 of his statement of facts and contentions. In my view the observations of Kirby & Callinan JJ in Tepko are apposite. To my way of thinking, whatever benefit may be thought to arise from the trial of the separate issue about the construction of the BFA is more chimerical than real. There is merit in the applicant’s contention that a large measure of duplication will be encountered in the determination of aspects of the BFA. Those include whether and if so what property is covered by the terms of the BFA, the interpretation of the BFA, whether the BFA is vitiated by equitable principles, whether (if the BFA is valid) certain property is to be divided under s 79 and whether (if the BFA is void) all or part of the property in issue in this case is to be divided, to name but a few issues. I respectfully agree with the observations of the Full Court of the Supreme Court of Victoria in Jacobson v Ross & Jacobson that the determination of a preliminary issue is reserved for a very particular category of case. This is not one of them. This case involves a litany of disputed factual issues relating to nearly each item of real estate. In addition, there is the spectre of interlocutory appeal if a preliminary issue is determined, thereby adding to the length and cost of the proceeding.
Embedded in the respondent’s threshold contention about the validity of the BFA is the recognition that any determination about s 79 involves an examination of this court’s own jurisdiction in relation to the facts of this case. If the respondent is correct in his contentions and the BFA is valid, subsisting and operative, then this court’s jurisdiction is ousted. Conversely, if the BFA is not valid, then this court has jurisdiction to make property division orders under s 79.
It is well settled that every court, superior or otherwise, undoubtedly possesses implied jurisdiction upon the principle that a grant of power carries with it everything necessary for its exercise. The High Court has so held in Grassby v The Queen[49] and in Pelechowski v Registrar, Court of Appeal (NSW).[50] As Dr Mark Leeming SC wrote (prior to his Honour’s elevation as the Honourable Justice Leeming) –
That implied jurisdiction includes the authority to decide whether the court’s jurisdiction has been validly invoked, whenever an issue arises (say, because a defendant asserts an immunity from service or that a subject matter limitation has been exceeded).[51]
[49] (1989) 168 CLR 1.
[50] (1999) 198 CLR 435.
[51] Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (Federation Press, 2012) paragraph 2.5.
In Hazeldell Ltd v Commonwealth[52] Isaacs ACJ held that the very first duty of any court in approaching a cause before it is to consider its jurisdiction. That proposition has been repeated, at length, in such cases as Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd,[53] Old UGC Inc v Industrial Relations Commission of New South Wales,[54] Robins v Incentive Dynamics Pty Ltd[55] and Zhang v Zemin[56] to name a few.
[52] (1924) 34 CLR 442.
[53] (1911) 12 CLR 398.
[54] (2006) 225 CLR 274.
[55] (1999) 91 FCR 423.
[56] (2010) 79 NSWLR 513.
Even if parties do not raise the court’s jurisdiction, it is competent and proper for the court to do so of its own motion as was held in Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq).[57]
[57] (2000) 99 FCR 554.
Parties cannot consent to jurisdiction if jurisdiction does not exist. That statement is generally attributed to Coleridge J in Bunbury v Fuller.[58]
[58] (1853) 156 ER 47.
Where highly contestable questions of fact arise upon which the court’s authority depends, the grant of jurisdiction carries with it power to determine the existence of facts upon which jurisdiction depends. Authority at High Court level has repeatedly so held in such cases as D.M.W. v C.G.W.,[59] R v Gray; ex parte Marsh,[60] Re Macks; ex parte Saint,[61] Kennon v Spry[62] and Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia.[63]
[59] (1982) 151 CLR 491.
[60] (1985) 157 CLR 351.
[61] (2000) 204 CLR 158.
[62] (2008) 238 CLR 366.
[63] (2012) 249 CLR 398.
If a court finds that it has no jurisdiction to determine the controversy presented in the application, then in the exercise of implied jurisdiction, it has authority to stay or dismiss the proceeding for want of jurisdiction making a costs order. The High Court so held in Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd[64] and Willocks v Anderson.[65] The Full Court of the Family Court of Australia has also considered matters on point in such authorities as In the Marriage of Yunghanns,[66] Black v Black[67] and Norton & Locke,[68] to name but a few.
[64] (1943) 67 CLR 25.
[65] (1971) 124 CLR 293.
[66] (1999) 24 Fam LR 400.
[67] (2008) 38 Fam LR 503.
[68] (2013) 50 Fam LR 517.
There is no doubt that I have power to determine jurisdiction about whether s 79 applies to the facts of this case.
I decline to bifurcate this proceeding.
This case calls for some careful case management. It also calls for an early trial. I propose to adjourn the further hearing of the proceeding for a short time to enable the parties to bring in minutes so as to –
a)give effect to these reasons; and
b)provide for the ongoing conduct of the proceeding to trial.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 28 February 2020.
Associate:
Date: 28 February 2020
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