Kruger & Kruger (Deceased) (No 3)
[2023] FedCFamC1A 134
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kruger & Kruger (Deceased) (No 3) [2023] FedCFamC1A 134
Appeal from: Kruger & Kruger (Deceased) by his Legal Personal Representative Mr Gregory [2023] FCWA 31 Appeal number(s): NAA 57 of 2023 File number(s): PTW 3387 of 2012 Judgment of: TREE, CAREW & RIETHMULLER JJ Date of judgment: 16 August 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellants appeal from the primary judge’s dismissal of their claims against the second respondent that the proceeds of sale of a property were held on trust for the appellants through contractual and equitable relief – Contractual agreement – Constructive trust – Equitable charge – Where several grounds assert an inadequate exposure of reasoning – Whilst the structure of the judgment somewhat obscured what the primary judge concluded in relation to the claims, ultimately they are discernible – Where there is no universal requirement to explicitly state each and every “test” against which evidence or a party’s case is assessed – Where the primary judge’s reasoning is adequately exposed – Challenges to factual findings – Where the primary judge’s findings, particularly given her findings about the parties’ credibility, were open on the evidence – Where findings were not glaringly improbable or contrary to incontrovertible facts – Where there was an adequate evidentiary foundation for the relevant considerations – Where no ground of appeal succeeds – Appeal dismissed – No order as to costs. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 79, 117
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105
Douglass v The Queen (2012) 290 ALR 699; [2012] HCA 34
Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
SS Hontestroom v SS Sagaporack [1927] AC 37
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 81 Date of hearing: 28 June 2023 Place: Brisbane (via video link) The First Appellant: Litigant in person The Second Appellant: Litigant in person The Third Appellant: Litigant in person The First Respondent: Litigant in person Counsel for the Second Respondent: Mr Dundo with Ms Lai Solicitor for the Second Respondent: KD Legal ORDERS
NAA 57 of 2023
PTW 3387 of 2012FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS KRUGER
First Appellant
A PTY LTD
Second Appellant
B PTY LTD
Third Appellant
AND: MR GREGORY (AS LEGAL PERSONAL REPRESENTATIVE FOR MR KRUGER - DECEASED)
First Respondent
C PTY LTD
Second Respondent
order made by:
TREE, CAREW & RIETHMULLER JJ
DATE OF ORDER:
16 August 2023
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The second respondent’s application for costs is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kruger & Kruger (Deceased) (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, CAREW & RIETHMULLER JJ:
INTRODUCTION
On 13 March 2023, a judge of the Family Court of Western Australia determined a preliminary issue arising in property settlement proceedings between Ms Kruger (“Ms Kruger”) and Mr Gregory (“Mr Gregory”), who is the personal representative of Ms Kruger’s late husband Mr Kruger (“Mr Kruger”), which proceedings also involved three respondent corporations and an intervener. Ms Kruger, and two of the respondent corporations controlled by her, appeal three orders made on 13 March 2023, which:
(a)dismissed an application claiming that the proceeds of sale of a rural property (“Property D”) previously owned by C Pty Ltd (“C Pty Ltd”) were owned by B Pty Ltd (“B Pty Ltd”) so as to comprise part of the property pool available for division in the property settlement proceedings (Order 1); and
(b)discharged previous orders made in the proceedings in June 2014 and December 2019, which temporarily preserved the proceeds of sale of Property D (Order 2) and restrained C Pty Ltd from interfering with B Pty Ltd’s occupation of Property D (Order 3).
Mr Gregory and C Pty Ltd oppose the appeal.
For the reasons which follow, the appeal will be dismissed.
BACKGROUND
Mr Kruger Snr (“Mr Kruger Snr”) and Ms Kruger Snr (“Ms Kruger Snr”) are Mr Kruger’s parents. During their marriage, they owned lands in remote regions of Western Australia on which they conducted businesses through corporate entities. Their three children worked in the family business. Mr Kruger Snr died in 2004.
Mr Kruger and Ms Kruger married in 1981 and had three children together, Ms G, Ms H and Mr J, all of whom are now adults. Throughout much of their relationship, Mr Kruger and Ms Kruger lived on various properties owned by Mr Kruger Snr and Ms Kruger Snr or entities controlled by them. They separated on a final basis in 2011. In June 2012, Ms Kruger commenced proceedings seeking a division of her and Mr Kruger’s property under s 79 of the Family Law Act 1975 (Cth) (“the Act”). In 2013, Mr Kruger died and his interests in the property proceedings ultimately were represented by Mr Gregory.
In 1968, B Pty Ltd was incorporated by Mr Kruger Snr and Ms Kruger Snr. This company is the third appellant and is now controlled by Ms Kruger. B Pty Ltd is the trustee of the Kruger Family Trust. Mr Kruger and Ms Kruger operated a farming business through B Pty Ltd and the trust. After Mr Kruger died, Ms Kruger became the sole director of B Pty Ltd.
In 1970, C Pty Ltd was incorporated. It is now controlled by Ms Kruger Snr. In 1992, C Pty Ltd acquired Property D on which it ran a farming business until 2005, after which B Pty Ltd effectively assumed control, and rented out most of the property for some years. C Pty Ltd sold Property D in 2020. Before the primary judge, Ms Kruger contended that C Pty Ltd held the proceeds of that sale on trust for B Pty Ltd.
In 2014 and 2015, a trial of Ms Kruger’s claims against C Pty Ltd was heard by Walters J. In October 2016, his Honour determined that Property D was the property of B Pty Ltd and orders to that effect were made on 8 November 2016. C Pty Ltd appealed, and on 15 May 2018, the Full Court allowed the appeal and remitted the matter for rehearing.
In November 2021, the second trial commenced before the primary judge and ran over 15 days, ultimately concluding in April 2022, with judgment being delivered on 14 February 2023.
The primary judge’s decision
The primary judge’s reasons extend to some 334 paragraphs, over 118 pages, arranged under headings and sub-headings. Under the heading “INTRODUCTION” the primary judge explained who the parties were, what their claims or responses comprised, and set out a brief history of the proceedings and the like. Next, under the heading “THE EVIDENCE” her Honour, amongst other things, considered the credibility of the various witnesses, something which we shall need to address shortly.
A little later under the heading “FACTUAL BACKGROUND”, over some 241 paragraphs spanning 77 pages, the primary judge discussed not only background matters, but made findings on critical disputed matters, and discussed a miscellany of significant events and issues. Her Honour then turned to specifically consider “MS KRUGER’S CLAIMS IN RELATION TO PROPERTY D”, the discussion under which heading occupies some 10 paragraphs over six pages.
Ms Kruger pleaded both contractual and equitable claims in relation to Property D in her Points of Claim filed 13 July 2020, albeit refined by the orders which she ultimately sought at trial. The primary judge noted those orders (relevant to this appeal) as follows:
13 b)There be a declaration that C Pty Ltd holds the remaining proceeds of sale of Property D on trust for B Pty Ltd; or alternatively that C Pty Ltd holds the proceeds of sale of Property D upon constructive trust for B Pty Ltd in such beneficial proportions as the court deems fit; or alternatively that the Property D balance be charged in equity in favour of B Pty Ltd in such amount as the court deems fit.
(Footnote omitted)
As pleaded, the contractual claim asserted that in 2005, C Pty Ltd (by Ms Kruger Snr) had agreed with Mr Kruger and Ms Kruger to transfer Property D to B Pty Ltd (“the Property D Agreement”). The equitable claims contended two alternatives. The first was that the Property D Agreement was a representation upon which Ms Kruger relied to her detriment, such that C Pty Ltd was estopped from denying the existence of a valid contract for the sale of Property D. The second was that B Pty Ltd acted to its detriment on the assumption that Property D had been, or would be, transferred to it under the Property D Agreement, such that either C Pty Ltd held the sale proceeds as constructive trustee for B Pty Ltd, or those proceeds were charged in an unspecified sum in favour of B Pty Ltd.
However it seems as though during the trial, the delineation between the estoppel claim and the constructive trust/equitable charge claim became rather blurred, and indeed the primary judge dealt with them almost collectively.
The primary judge rejected both the contractual claim (at [322]–[325]) and the equitable claims (at [328]–[331]). Specifically the primary judge found that there was no contract for the transfer of Property D to B Pty Ltd, as there was never any concluded agreement as to, among other things, who would bear the considerable capital gains tax which the transfer would otherwise have seen C Pty Ltd incur.
As to the equitable claims, it is convenient at this juncture to set out the entirety of the primary judge’s reasons articulated under the sub-heading “Ms Kruger’s alternative claims in equity”:
326.[Ms Kruger] submitted that if the [Property D] Agreement was not a valid contract, then [C Pty Ltd] was estopped from denying the existence of a valid contract; and accordingly, [C Pty Ltd] held the net proceeds of sale of the [Property D] property upon a constructive trust for [B Pty Ltd] and/or [Mr Kruger] and [Ms Kruger] in such beneficial proportions as the court considered fit, or alternatively the net proceeds of sale of the [Property D] property were charged in equity in favour of [B Pty Ltd] and/or [Mr Kruger] and [Ms Kruger] with such amount as the court considers fit, having regard to the payments and improvements made to the property by [B Pty Ltd] and/or [Mr Kruger] and [Ms Kruger] and/or [Ms Kruger] solely.
327.Effectively, Ms Kruger’s position was that:
a)[C Pty Ltd] and [B Pty Ltd] were estopped from denying the existence of a valid contract;
b)[Ms Kruger] and [Mr Kruger] acted to their detriment, and caused [B Pty Ltd] to act to its detriment, on the assumption that [Property D] would be transferred from [C Pty Ltd] to [B Pty Ltd], including by:
i)Spending money to improve [Property D], including extending the [farm] holding paddocks, extending the fencing, upgrading the [farm] feeding system and other infrastructure;
ii)[Ms Kruger] spent significant amounts of time researching how best to establish and operate a feed lot business on [Property D];
iii)From time to time, [Ms Kruger] and her children provided labour for the benefit of the business operations conducted on [Property D], without payment;
iv)From time to time, [A Pty Ltd] and/or [B Pty Ltd] entered into, or drew down on, financial facilities and invested in new machinery for use in the business operations conducted on [Property D], in the belief that [Property D] had been transferred to [B Pty Ltd];
v)[B Pty Ltd] did not pursue opportunities to purchase other properties, in the belief that [Property D] had been transferred to it; and
vi)[B Pty Ltd] paid the stipend payments, together with other payments for [Ms Kruger Snr]’s benefit, and paid out debts of [Mr Kruger Snr]’s estate, effectively in reliance on there being a concluded agreement.
328.I am not persuaded that [Ms Kruger] established that [B Pty Ltd] and/or [Ms Kruger] and [Mr Kruger] and/or [Ms Kruger] solely is entitled to the various equitable relief sought by her, for the following reasons:
329.Firstly, for the purposes of the second trial, [Ms Kruger]’s position was that [C Pty Ltd] would transfer [Property D] to [B Pty Ltd]. Accordingly, any assumption made about the transfer of [Property D] could only have been in the context of [Mr Kruger]’s and [Ms Kruger]’s respective capacities as directors of [B Pty Ltd] and not in their personal capacities.
330.Secondly, I am not persuaded that [B Pty Ltd] paid out various debts of [C Pty Ltd] and [Mr Kruger Snr]’s estate, paid the stipend payments to [Ms Kruger Snr], and made other payments for [Ms Kruger Snr]’s benefit, in reliance upon an assumption about the transfer of [Property D]. In my view, such payments were also consistent with: (1) [Mr Kruger] and [Ms Kruger Snr] reaching an informal family arrangement that [Mr Kruger] could use [Property D], including on the basis that he looked after [Ms Kruger Snr] financially; and (2) [Mr Kruger]’s comment to [Ms Kruger] that regardless of what happened with [Property D], he had to financially look after [Ms Kruger Snr].
331.Thirdly, even if I was satisfied that it was reasonable for [Mr Kruger] and/or [Ms Kruger] and/or [B Pty Ltd] to rely on an assumption about the transfer of [Property D], I am also not persuaded that [Ms Kruger] established that [Mr Kruger] and/or [Ms Kruger] and/or [B Pty Ltd] suffered detrimental reliance on such assumption. In particular:
a)[Ms Kruger] was critical of, and appeared not to accept, the benefit and detriment report prepared by [Mr K]. However, for the purposes of the second trial, [Ms Kruger] focussed on trying to establish the financial and other alleged detriments to [B Pty Ltd]; and simply ignored the very substantial benefits received by [B Pty Ltd] over the years from being able to use [Property D] for the purposes of its own business operations, including receiving over $1,800,000 in gross income (not including GST) from the […] lease between 2005 and 2010; as well as income from its own [farming] activities on [Property D] thereafter.
b)Although [Ms Kruger] claimed as part of the alleged detriment to [B Pty Ltd], various expenses allegedly incurred by [B Pty Ltd] (whether in its own right and/or as trustee of the [Kruger] Family Trust) for [C Pty Ltd]’s / [Ms Kruger Snr]’s benefit, I was not persuaded that all such expenses claimed by her were accurate and/or incurred for [C Pty Ltd]’s / [Ms Kruger Snr]’s benefit. For example:
i)[Ms Kruger] conceded that some expenses she claimed as evidencing detriment could not be identified as being specifically related to [Property D], as distinct from [B Pty Ltd]’s other farming operations, because such expenses were simply “rolled up” for [B Pty Ltd]’s accounting purposes.
ii)Various expenses claimed by [Ms Kruger] related to [B Pty Ltd]’s business operations on [Property D] after it assumed the use of the property, and to that end, could not be said to be for the benefit of [C Pty Ltd / Ms Kruger Snr].
iii)[Ms Kruger] conceded that some expenses, which she claimed were paid for the benefit of [C Pty Ltd] and/or [Ms Kruger Snr], were not in fact correct (such as the alleged bathroom renovation costs).
c)On the available evidence, I am not persuaded that [Ms Kruger] (in her role as a director of [B Pty Ltd]) did spend significant amounts of time researching how best to establish and operate a feed lot business on [Property D], or that such research significantly assisted [B Pty Ltd], particularly having regard to the fact that I am satisfied that [Mr Kruger Snr] had already established a feed lot business on [Property D] and made enquiries about accreditation prior to his death. Likewise, on the available evidence, I am not persuaded that [Ms Kruger] and her children performed any significant unpaid labour in the business operations on [Property D]. I further observe that any such research and/or labour performed after 1 July 2005 benefited [B Pty Ltd] (not [C Pty Ltd]), given [B Pty Ltd] (as trustee of the [Kruger] Family Trust) had by then taken over the use of [Property D] for its own business operations.
d)I am not persuaded that [B Pty Ltd] acted to its detriment in entering into, or drawing down on, financial facilities on the assumption that [Property D] had been transferred to [B Pty Ltd] and I refer to my earlier findings in these Reasons regarding the specific loan facilities. Further, I am not persuaded that [B Pty Ltd] invested in new machinery for use in the business operations conducted on [Property D] to any significant extent, and again observe that such expenses after 1 July 2005 related to [B Pty Ltd]’s business operations on [Property D], not [C Pty Ltd]’s.
e)There was simply no cogent evidence from which I could conclude that [B Pty Ltd] forwent opportunities to purchase other properties in the belief that [Property D] had been transferred to it.
f)At the end of the day, I am not persuaded that [Ms Kruger] proved that the financial and other alleged detriments to [B Pty Ltd] outweighed the very substantial benefits received by [B Pty Ltd] over the years from its use of [Property D].
(Footnotes omitted) (Emphasis in original)
THE APPEAL
Generally
The Notice of Appeal, as amended, ran to eight grounds. None of them directly challenge the dismissal of the contractual claim, although if successful, Grounds 6, 7 and 8, which challenge credit findings in relation to a number of witnesses, might indirectly do so.
Ground 1
This ground asserts:
1.The primary Judge erred by requiring that any assumptions made about the transfer of [Property D] by [Ms Kruger] and [Mr Kruger] could only have been made as directors of [B Pty Ltd] and not in their personal capacities (Reasons ‘R’ 329) when the primary judge ought to have held that when assessing a claim in equity, the capacities in which assumptions are made are not material because equity looks to substance over form.
(As per the original)
This ground arises from [329] recited above.
The Points of Claim relevantly pleaded as follows:
I. [Property D] Agreement
47. In or about March 2005, following family discussions:
(1)[Mr Kruger, Ms Kruger] and [B Pty Ltd] (through [Mr Kruger] and [Ms Kruger]) presented an offer to [Ms Kruger Snr] and [C Pty Ltd Park] (through [Ms Kruger Snr]) whereby the [Property D Property] and the [Property D] Business would be transferred from [C Pty Ltd] to [B Pty Ltd] upon the terms set out below; and
(2)[Ms Kruger Snr] and [C Pty Ltd] (through [Ms Kruger Snr]) accepted that offer.
48.In conducting themselves in the manner set out above, the parties intended to create legal relations, with the result that a legally binding contract was formed ([Property D] Agreement).
…
50.It was a term of the [Property D] Agreement that [Mr Kruger] and [Ms Kruger] promised [Ms Kruger Snr] that they (ie [Mr Kruger] and [Ms Kruger]) or [B Pty Ltd] would pay out or assume responsibility for all liabilities of [C Pty Ltd].
51.It was a term of the [Property D] Agreement that [Mr Kruger] and [Ms Kruger] promised [Ms Kruger Snr] that they (ie [Mr Kruger] and [Ms Kruger]) or [B Pty Ltd] would pay out or assume responsibility for all liabilities of [Mr Kruger Snr]’s deceased estate.
52.It was a term of the [Property D] Agreement that [Mr Kruger] and [Ms Kruger] promised [Ms Kruger Snr] that they (ie [Mr Kruger] and [Ms Kruger]) or [B Pty Ltd] would pay (Stipend Payments) [Ms Kruger Snr] a monthly amount for the rest of [Ms Kruger Snr]’s life, which amount would be sufficient for [Ms Kruger Snr] to live in reasonable comfort.
53.It was a term of the [Property D] Agreement that a new bank account would be established in the name of [Ms Kruger Snr] into which the Stipend Payments would be deposited.
…
P. Summary
106.It is Ms Kruger’s case that, as at the commencement of this proceeding, B Pty Ltd held an equitable interest in the Property D Property by reason of the Property D Agreement.
…
Q. Estoppel re Property D Agreement
108.If (which Ms Kruger denies), the Property D Agreement is not a valid contract for the sale of the Property D Property, then Ms Kruger pleads as set out below.
109.On 22 February 2002, Mr Kruger met with Ms Kruger Snr and discussed Mr Kruger and Ms Kruger purchasing the Property D Property.
110.Sometime between 22 February 2005 and 7 March 2005, Ms Kruger Snr informed Mr Kruger that she agreed to Mr Kruger and Ms Kruger purchasing the Property D Property.
111.Sometime between 22 February 2005 and 7 March 2005, Ms Kruger represented to Mr Kruger that Ms Kruger Snr had agreed to Mr Kruger and Ms Kruger purchasing the Property D Property.
112.Sometime between 22 February 2005 and 7 March 2005, Mr Kruger represented to Ms Kruger that Ms Kruger Snr had agreed to Mr Kruger and Ms Kruger purchasing the Property D Property.
113.Shortly after 7 March 2005, Mr Kruger again represented to Ms Kruger that Ms Kruger Snr had agreed to Mr Kruger and Ms Kruger purchasing Property D Property.
114.After 7 March 2005, Mr Mr Gregory represented to the Ms Kruger that he was providing accounting advice to Ms Kruger Snr, Mr Kruger and Ms Kruger in respect of perfecting the Property D Agreement.
115.Ms Kruger relied on the representations pleaded above.
116.Ms Kruger Snr knew or ought reasonably to have known that Mr Kruger would inform Ms Kruger that Ms Kruger Snr had agreed to Mr Kruger and Ms Kruger purchasing the Property D Property.
117.C Pty Ltd Park knew or ought reasonably to have known that Mr Kruger would inform Ms Kruger that Ms Kruger Snr had agreed to Mr Kruger and Ms Kruger purchasing the Property D Property.
118.Ms Kruger Snr knew or ought reasonably to have known that Ms Kruger would rely on the information pleaded above.
119.C Pty Ltd Park knew or ought reasonably to have known that Ms Kruger would rely on the information pleaded above.
120.By reason of the matters pleaded above, C Pty Ltd Park and B Pty Ltd are estopped from denying the existence of a valid contract containing the terms pleaded in Part I above.
R. Equitable interest in Property D Property
121.If (which Ms Kruger denies): (1) a valid contract does not exist; or (2) C Pty Ltd Park and B Pty Ltd are not subject to the estoppel pleaded in Part Q above; then Ms Kruger pleads as set out below.
122.Mr Kruger and/or Ms Kruger caused B Pty Ltd to act on the assumption that the Property D Property had been or would be transferred from C Pty Ltd Park to B Pty Ltd.
…
124.Mr Kruger and Ms Kruger acted in the manner on the assumption that the Property D Property had been or would be transferred from C Pty Ltd Park to B Pty Ltd.
125.By reason of the matters pleaded above, C Pty Ltd Park holds the Property D Property upon constructive trust for B Pty Ltd and/or Mr Kruger and Ms Kruger in such beneficial proportions as the Court thinks fit.
126.In the alternative, by reason of the matters pleaded above, the Property D Property is charged in equity in favour of B Pty Ltd and/or Mr Kruger and Ms Kruger with such amount as the Court thinks fit having regard to the pleaded payments and improvements.
…
AND MS KRUGER CLAIMS:
(1)A declaration that C Pty Ltd holds the proceeds of sale of the Property D Property in the KD Legal trust account upon Trust for B Pty Ltd.
(2)In the alternative to prayer (1) above, a declaration that C Pty Ltd Park holds the proceeds of sale of Property D Property upon constructive trust for B Pty Ltd in such beneficial proportions as the Court thinks fit.
…
(7)A declaration that the Property D Balance is charged in equity in favour of B Pty Ltd with such amount as the Court thinks fit.
(Emphasis added)
These claims evolved slightly during the second trial, as the Minute of Final Orders filed 4 November 2021 sought:
9.There be a declaration in equity that by no later than 9 August 2005 the [Property D] property, then registered in the name of [C Pty Ltd], was beneficially owned by [B Pty Ltd] in its capacity as the trustee for the [Kruger] Family Trust.
10.There be a declaration that at all material times [C Pty Ltd] held and holds the proceeds of sale of the [Property D] property on Trust for [B Pty Ltd] as trustee for the [Kruger] Family Trust.
11.In the alternative to the preceding paragraph, a declaration that at all material times [C Pty Ltd] held and holds the proceeds of sale of the [Property D] property upon constructive trust for [B Pty Ltd] as trustee for the [Kruger] Family Trust in such beneficial portions as the Court thinks fit.
Against that background, we do not construe [329] as doing anything more than directing attention to the fact that the way in which Ms Kruger’s case was advanced, both at paragraph 122 of her Points of Claim and by reference to the orders sought, focused upon her and Mr Kruger as being the controlling minds of B Pty Ltd, such that it was them acting in their capacities as its directors which was significant. In that sense it was really an observation antecedent to the second and third reasons immediately thereafter advanced for rejecting the claim (at [330]–[331]). From those it is plain that, contrary to the submissions advanced by Ms Kruger on appeal, the primary judge well recognised that the estoppel claim was separately advanced directly by Ms Kruger, albeit to the benefit of B Pty Ltd.
In any event, Ms Kruger’s case was never that she nor Mr Kruger had any greater or different assumption in their personal capacities than they had in their role as directors of B Pty Ltd.
No error as contended by Ground 1 is established and therefore it fails.
Ground 2
This ground asserts:
2.The primary Judge failed to give adequate reasons for declining to conclude that the payments made by [B Pty Ltd] (R330) were not made in reliance upon an assumption about the transfer of [Property D].
(As per the original)
This is the first of several grounds asserting an inadequate exposure of reasoning. The obligation to give reasons is well established. In Bennett and Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
We have already set out [330] of the primary judge’s reasons above. The challenge raised by this ground is encapsulated by paragraph 13 of the appellants’ Summary of Argument as follows:
13.It is not possible to discern why the Appellants’ case was rejected in this regard. With respect, it was not sufficient to simply say that the Appellant’s case was explicable by alternative cases. The Appellant’s are left not really knowing why their case was rejected, other than because there were alternative explanations – without any positive finding being made in relation to either of those alternative explanations and reasons being provided for those findings. Such an absence really insulates the reasoning process from any real penetration or analysis.
(Footnote omitted)
In equitable claims such as those invoked here, the onus of satisfying the primary judge of reliance lies with the party asserting it (Sidhu v Van Dyke (2014) 251 CLR 505 (“Sidhu”) at [61]). To discharge that onus requires the Court to be satisfied on the balance of probabilities (s 140 of the Evidence Act 1995 (Cth)). It is clear from [330] that the primary judge was not so satisfied, as there were other credible explanations for the payments, which either inferentially the primary judge preferred, or at least meant that Ms Kruger did not persuade her Honour that her assertions of reliance were more probable than not.
Whilst this ground, perhaps understandably enough, focuses upon the brief reasons pertaining to the rejection of Ms Kruger’s claim at [330], it is nonetheless plain that other aspects of the reasons are also relevant. Specifically:
(a)at [41] the primary judge said that she “should treat Ms Kruger’s evidence with considerable caution” including because it lacked balance, and had been reconstructed to best suit her case. No challenge to this is advanced by this appeal. Given that Ms Kruger was the only person who contended that the various payments were made in reliance upon the relevant assumption, the significance of [41] cannot be ignored when considering the primary judge’s reasoning;
(b)at [173] the primary judge rejected Ms Kruger’s evidence that in February 2006, she and Mr Kruger had both instructed Mr Gregory to proceed to have the contract for sale of Property D assessed for stamp duty (and thereafter presumably lodged to register a transfer) as “not plausible” because there was not any concluded agreement or understanding for the sale of Property D. Again, no challenge is made to that finding. Necessarily, this in part explains why the primary judge was not satisfied payments were made in reliance on any underlying agreement;
(c)at [148] (and elsewhere) the primary judge concluded that the Property D Agreement was never a concluded agreement “because there were still essential or critical terms yet to be resolved, including the payment of capital gains tax”;
(d)at [331(b)] the primary judge rejected the wife’s case that various expenses allegedly incurred by B Pty Ltd for C Pty Ltd’s or Ms Kruger Snr’s benefit were accurate and/or incurred for C Pty Ltd’s or Ms Kruger Snr’s benefit and set out various examples.
Hence, the primary judge’s reasoning is sufficiently exposed.
However, even if this ground were meritorious, it could not lead to the appeal succeeding, as the primary judge was not satisfied that reliance on any representation that Ms Kruger Snr made about transferring Property D was reasonable (Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247 at [187]–[188], and the authorities therein referred to). Whilst the structure of the judgment somewhat obscures what the primary judge concluded in relation to the reasonableness of any reliance, ultimately it is discernible.
A convenient starting point is the first sentence of [331] recited above, which shows that her Honour was not satisfied that reliance by Mr Kruger, Ms Kruger or B Pty Ltd on the assumption of the transfer of Property D was reasonable. Her Honour had earlier specifically found that any reliance by Ms Kruger upon any representation by Ms Kruger Snr, that she had agreed to Mr Kruger and Ms Kruger purchasing Property D, was not reasonable at [140] and [152]. No challenge to that finding is advanced by this appeal.
Whilst these latter two paragraphs were likely principally directed to the estoppel claim, of necessity they must also apply to the constructive trust/equitable charge claim as well. That is because it is inconceivable that reliance by Ms Kruger on a representation made to her personally (Points of Claim, paragraph 115) was unreasonable, but reliance upon an identical assumption in her capacity as a director of B Pty Ltd (Points of Claim, paragraph 124) was not. Further, there is no reason to think that there is any room to differentiate between the reasonableness of Ms Kruger’s reliance, and any reliance by Mr Kruger (who in any event, did not claim it). Therefore, this ground, and indeed Grounds 3 and 4 also, are moot.
Ground 2 fails.
Ground 3
This ground asserts:
3. Further, or alternatively the primary Judge erred:
a.In law in requiring that the representation or assumption about the transfer of [Property D] be the only reason for the detrimental reliance, when it only needed to be one of the reasons; and/or
b.In fact in concluding that the payments made by [B Pty Ltd] (R330) were not made in reliance (in part or in whole) upon an assumption about the transfer of [Property D] when such a finding was against the weight of the evidence.
(As per the original)
Although correctly stating the law (Sidhu at [70]–[73]), sub-ground (a) nonetheless starts from a mistaken premise, namely that the primary judge did indeed require the representation or assumption to be the sole inducement, which was neither expressly done by the primary judge, nor does it arise by necessary inference on a fair reading of the relevant passages of her Honour’s reasons recited above. Ground 3(a) fails.
As to the factual challenge made by Ground 3(b), it is sufficient to say that, particularly given the cautionary approach which the primary judge took in relation to Ms Kruger’s evidence, the finding was reasonably open (Edwards v Noble (1971) 125 CLR 296 (“Edwards v Noble”)), and, given that this was a trial where Ms Kruger’s credit was obviously a significant matter, it was not glaringly improbable or contrary to incontrovertible facts (Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”) at [28]–[29]).
Two examples of the sufficient evidentiary basis will suffice. Firstly, the stipend payments to Ms Kruger Snr referred to in [330] were always treated by B Pty Ltd as loans to her in its annual accounts (e.g. at [175]). Secondly, even on Ms Kruger’s own evidence, which on this occasion the primary judge accepted, “Mr Kruger told Ms Kruger that regardless of what happened, he had to financially look after Ms Kruger Snr” (at [127]).
In any event, the unchallenged finding that any contended reliance was unreasonable, again renders this ground moot.
This ground fails.
Ground 4
This ground asserts:
4. The primary Judge erred in law and in fact (R331) by:
a.failing to find that [Mr Kruger] and/or [Ms Kruger] and/or [B Pty Ltd] suffered detrimental reliance, when such a finding was against the weight of the evidence; and
b.assessing the question of detrimental reliance by requiring that the detriment to [B Pty Ltd] “outweigh” the financial benefit received from the use of [Property D].
(As per the original)
It will be appreciated that sub-ground (a), which asserts that the finding was not reasonably open on the evidence, focuses upon the notion of detriment, rather than reliance per se, which was the gravamen of Ground 3(b).
At the outset, it should be recognised in relation to both sub-grounds, that so long as the findings that there was in fact no relevant reliance, and that any reliance was unreasonable, remain intact, success on this ground would not see the appeal allowed.
Nonetheless, briefly addressing the matters raised by this ground, what is sufficient to comprise detriment has been addressed in a number of cases, of which Sidhu at [84] is the leading authority. Here what the primary judge said at [331(a)-(f)] succinctly and adequately explains why her Honour concluded that detrimental reliance was not established on the evidence. Plainly such a finding was well open (Edwards v Noble).
As to sub-ground (b), which focuses upon [331(f)], it cannot be the case that a judge is compelled to ignore substantial benefits in determining the existence or otherwise of detriment. Here the benefits were almost overwhelming, comprising rental income totalling in excess of $1.8 million (excluding GST) over five years (at [331(a)]) which allowed Mr Kruger and Ms Kruger “to live a better lifestyle than they had previously been able to enjoy” (at [228]).
We are not persuaded that the primary judge was adopting some mathematical approach in making the observation which she did in [331(f)], but rather was simply stating the obvious, namely that viewed holistically, B Pty Ltd did very well out of its post 2005 use of Property D.
Ground 4 fails.
Ground 5
This ground asserts:
5. The primary Judge:
a.erred in law in requiring throughout her reasons (R137, 139, 145, 148, 150, 172(b), 177(c), 186(c), 200, 205, and in particular 327(b)(vi)) that there be a “concluded agreement” in order to found the equitable claim, when all that was required was a representation or assumption; or
b.in the alternative, did not provide adequate reasons in relation to the test she was applying when dealing with the Appellant’s equitable claim.
(As per the original)
A significant difficulty with sub-ground (a), is that Ms Kruger’s pleaded estoppel case was specifically that the representation was that there was a concluded, albeit not valid, agreement (Points of Claim, paragraphs 108, 110, 111 and 120) and indeed the assumption relied upon in the constructive trust claim was specifically that Property D “had been or would be transferred” from C Pty Ltd to B Pty Ltd (Points of Claim, paragraphs 122–124). A party is bound by the way they conducted their case at trial (Metwally v University of Wollongong (1985) 60 ALR 68).
However a further difficulty with this sub-ground is that it conflates the primary judge’s consideration of the contractual claim with her Honour’s consideration of the equitable claim. Thus:
(a)[137] clearly relates to the contractual claim;
(b)[139] is in the same category;
(c)the reference “to not being satisfied that there was any concluded agreement in relation to Property D” in [145] is but one reason why the primary judge was not satisfied that there was, in fact, detrimental reliance. Her Honour immediately thereafter discusses other facts which means that the lack of any concluded agreement was not alone determinative;
(d)[148] is clearly in the context of the contractual claim;
(e)the observation that the relevant parties “had still not reached a concluded agreement for the proposed transfer of Property D” in [150] was made in the context of discussing the evidence of a witness, and it informed the rejection of a part of his recollection as accurate;
(f)the discussion in [172(b)] was in relation to the accuracy of a representation in a document and Ms Kruger’s evidence about it, and in any event seems to be clearly directed to the contractual claim;
(g)[177(c)] is in the same category as [172(b)];
(h)[186(c)] is in the same category as [172(b)] and [177(c)];
(i)[200] is clearly a reference to the contractual claim;
(j)[205] is also in the context of a discussion about the contractual claim;
(k)[327(b)(vi)] is expressly a recital of Ms Kruger’s case.
Therefore the premise underpinning sub-ground (a) is not made out.
As to sub-ground (b), we have already set out the relevant principles against which the adequacy of reasons are to be assessed. There is no universal requirement to explicitly state each and every “test” against which evidence or a party’s case is assessed, but rather the reasons must be “sufficient to identify the principles of law applied by the judge” (Douglass v The Queen (2012) 290 ALR 699 at [8] albeit concededly in a different context).
Here the primary judge recited Ms Kruger’s equitable claims at [327] by reference to her Points of Claim. Those pleadings accurately reflect the matters necessary to be established in order to enliven equitable relief, and hence by addressing them, the primary judge adequately identified the principles of law being applied.
Ground 5 fails.
Ground 6
This ground asserts:
6.The primary Judge did not give adequate reasons for the findings that [Ms G]’s (R43), [Ms H]’s (R45) and [Mr J]’s (R47) memories had undergone rewriting and reconstruction over the years to align with their mother’s narrative of events, and/or in any event, such findings were against the evidence or weight of the evidence in circumstances where, inter alia, the primary affidavits containing their evidence were sworn eight years before the trial (in October 2013).
(As per the original)
It will be remembered that Ms G, Ms H and Mr J are Mr Kruger and Ms Kruger’s three children. The paragraphs the subject of this ground are as follows:
43.[Ms G] was cross-examined by Mr [Gregory] and Mr Dundo on 11 November 2021. I was satisfied that I should treat [Ms G]’s evidence with caution, including in particular: her recollections of comments allegedly made by [Mr Kruger] and [Ms Kruger Snr], for the following reasons. Firstly, over time, I consider that there is a strong likelihood that [Ms G]’s memories have undergone some “rewriting” and “reconstruction” to align with her mother’s narrative of events. At the time of [Mr Kruger Snr]’s death, [Ms G] was 17 years old. I am not persuaded she then had the maturity and level of understanding of commercial/financial matters to fully comprehend what was happening, including of conversations that she overheard. Secondly, whether [Ms G]’s recollections about some conversations were correct or not, the substance of the conversations were clearly incorrect – for example, that [Mr Kruger] told her he was “left nothing” under [Mr Kruger Snr]’s Will “other than debt”. []Ms G also conceded under cross-examination that she could not remember the dates or details of various conversations or comments that were alleged to have been made as it was all too long ago. Thirdly, I am satisfied that [Ms G] struggled to give her evidence in a balanced manner, as she was not only clearly aligned with her mother, but also harboured a negative attitude towards [Ms Kruger Snr]. In particular: I do not accept [Ms G]’s evidence that [Ms Kruger Snr] “didn’t sign things easily” and “made sure that she read documents before signing them”. Under cross-examination, [Ms G] was unable to recollect any occasion when she saw [Ms Kruger Snr] read any documents and conceded that she simply assumed that [Ms Kruger Snr] did read the documents. [Ms G] was also unable to recollect any occasion when she saw [Ms Kruger Snr] ask a question about a document that had been left for her to sign and she was unable to recollect any occasion when she saw [Ms Kruger Snr] sign a document.
…
45.Prior to her cross-examination, significant portions of [Ms H]’s affidavits were struck out. [Ms H] was then briefly cross-examined by Mr [Gregory] and Mr Dundo. I am satisfied that I should treat [Ms H]’s evidence with caution for the following reasons. Firstly, like [Ms G], I consider that there is a strong likelihood that [Ms H]’s memories have undergone some “rewriting” and “reconstruction” over the years to align with her mother’s narrative of events. At the time of [Mr Kruger Snr]’s death, [Ms H] was only 14 years old. I am not persuaded she then had the maturity and level of understanding of commercial/financial matters to fully comprehend what was happening, or any significant personal involvement in such matters. Much of [Ms H]’s evidence was very general in nature and it was evident that she had little awareness or understanding of “the specifics” of her family’s business arrangements. Secondly, I am satisfied that [Ms H] struggled to give her evidence in a balanced manner, as she was not only clearly aligned with her mother, but also harboured a very negative attitude towards [Ms Kruger Snr].
…
47.[Mr J] was cross-examined by Mr Dundo on 12 November 2021. I considered that [Mr J] was a very unimpressive witness and that I should be very cautious about accepting aspects of his evidence for the following reasons. Firstly, I consider that there is a very strong likelihood that [Mr J]’s memories have undergone considerable “rewriting” and “reconstruction” over time to align with his mother’s narrative of events, particularly given his ongoing close financial relationship with his mother through their involvement in the farming business. At the time of [Mr Kruger Snr]’s death, Mr J was only 12 years old. Although [Mr J] purported to give detailed evidence of the business and financial arrangements that occurred following [Mr Kruger Snr]’s death, including in relation to [Property D], I am not persuaded [Mr J] had any significant personal involvement in such matters, or the maturity and level of understanding of commercial/financial matters to comprehend what was happening. [Mr J]’s insistence under cross-examination that he was a participant in the discussions between [Mr Kruger] and [Ms Kruger Snr] about financial matters that took place after [Mr Kruger Snr]’s death was simply not credible. Secondly, I am satisfied that [Mr J] was simply unable to give his evidence in a balanced manner, given his very negative attitude towards [Ms Kruger Snr].
(Emphasis in original)
If the primary decision-maker has stated that he or she does not believe a witness, no detailed reasons need necessarily be given as to why that is so (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 (“Re Minister for Immigration”) at [67]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280 per McHugh JA). Moreover it is only the main factual findings that are required to be adequately explained, and there need not be “a minute explanation of every step in the reasoning process that leads to the judge’s conclusion” (DL v The Queen (2018) 266 CLR 1 at [33]), nor is a court required to give “the sub-set of reasons why it accepted or rejected individual pieces of evidence” (Re Minister for Immigration at [67]).
Whilst that is sufficient to dispose of this ground, in any event the reasoning is clearly exposed, and even bearing in mind the considerable delay between the conclusion of the second trial and the delivery of reasons, her Honour did not have to further explain why she reached each of the two or three conclusions founding her caution in respect of the three witnesses’ evidence.
Moreover, given the absence of any challenge to the adverse findings in relation to Ms Kruger’s evidence, the utility of this ground in relation to supporting witnesses is debatable.
The challenge that the findings were against the weight of the evidence is equally forlorn as plainly, even if only from the recited paragraphs above, there was an adequate evidentiary foundation for the relevant conclusions (Edwards v Noble).
Ground 6 fails.
Ground 7
This ground asserts:
7. The primary Judge did not give adequate reasons for the findings at R63 that:
(a)Mr [Gregory] generally had a good recollection of events that were often (but not always) corroborated by contemporaneous documents;
(b)Mr [Gregory]’s explanations of commercial / financial / business related matters involving the [Kruger] family were not only commercially plausible but also generally consistent with contemporaneous documents;
and in any event, those findings were against the evidence or weight of the evidence.
(As per the original)
Like Ground 6, this ground is both a reasons challenge and an assertion of a factual error.
The relevant finding is at [63]:
63.In assessing Mr [Gregory] as a witness, I am satisfied that he was polite, patient and helpful in giving his evidence. Mr [Gregory] impressed as generally having a good recollection of relevant events, which were often (but not always) corroborated by contemporaneous documents. In this regard, although [Ms Kruger] (through her counsel) was highly critical of Mr [Gregory]’s failure to produce some documents, I accept Mr [Gregory]’s evidence that he was unable to retrieve some documents (including emails) stored on a computer / server retained by his former business partners and which were subsequently deleted. I am also satisfied that Mr [Gregory] did not generally keep detailed notes of meetings and telephone calls with clients, including members of the [Kruger] family. Mr [Gregory] impressed as having a very good understanding of the [Kruger] family businesses, entities, financial arrangements, and key business-related events that occurred over time. I considered that his explanations of commercial / financial / business related matters involving the [Kruger] family were not only commercially plausible but also generally consistent with contemporaneous documents.
(Emphasis in original)
We have already noted that reasons for rejecting a witness’ evidence are not universally required, and although here the challenge is as to the acceptance of Mr Gregory’s evidence, similar principles apply (Re Minister for Immigration at [67]).
Inevitably, matters such as those challenged by Ground 7(a) are matters of impression. Appellate courts should not lightly interfere with such findings given their “permanent position of disadvantage as against the trial judge” (Fox v Percy at [77] citing SS Hontestroom v SS Sagaporack [1927] AC 37 at 47).
As to sub-ground 7(b), to state the conclusion is to adequately give reasons for it.
In her Summary of Argument, Ms Kruger referred to a document handed up by her counsel during his address, which extensively critiqued the evidence of opposing witnesses, including Mr Gregory. However merely because counsel chose to approach it in that way, did not mean it was therefore incumbent upon the primary judge to deal with the issue of Mr Gregory’s credibility in that minute level of detail, including because her Honour was “not required to mention every fact or argument relied on by the losing party as relevant to an issue” (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]).
The factual challenge advanced by this ground did not confront the difficulties placed in its way by Edwards v Noble, and plainly there was a sufficient factual basis for those conclusions, of which many illustrations appear in the reasons.
This ground fails.
Ground 8
The final ground asserts:
8.The primary Judge did not give adequate reasons for the findings at R66, R67 and R297 to the effect that [Ms Kruger Snr]:
a.Had extremely poor short-term memory but was able to recall accurately significant events that occurred in the months and years after [Mr Kruger Snr]’s death;
b.Generally trusted [Mr Kruger] and signed document when asked to do so including at times signing a page without the whole document or without having a clear understanding of what the document was; and
c.relied on others when making financial and business decisions and had a limited understanding of the corporate structure;
and in any event those findings were against the evidence or the weight of the evidence.
(As per the original)
Like Grounds 6 and 7, this ground challenges the adequacy of reasons for factual findings, in this instance relating to Ms Kruger Snr, but then, on the assumption that challenge fails, contends the findings were erroneous.
The relevant paragraphs of the reasons are as follows:
66.[Ms Kruger Snr] was cross-examined by Mr [M] over approximately 3 ½ days, albeit with extra breaks. I was satisfied that I should treat [Ms Kruger Snr]’s evidence with considerable caution as it quickly became evident from her cross-examination that: Firstly, [Ms Kruger Snr] had an extremely poor short-term memory, for example: on a regular basis, she was unable to recall questions put to her earlier in the day by Mr [M]. Secondly, some of the evidence in [Ms Kruger Snr]’s trial affidavit gave the impression of having been “constructed” for her by her solicitors, in particular: by reference to third party banking and accounting records, rather than being information that [Ms Kruger Snr] was able to recollect and understand. In summary, I am satisfied that by the time of the second trial, [Ms Kruger Snr] did not remember many of the key commercial and financial transactions in which she and/or [C Pty Ltd] were involved in recent years or understood the purpose or effect of those transactions.
67.Nevertheless, I am satisfied that [Ms Kruger Snr] was able to recall many significant events that occurred over the years which concerned her family (albeit not always in great detail), including in the months and years after [Mr Kruger Snr]’s death. I will deal with [Ms Kruger Snr]’s evidence in more detail later in these Reasons. However, at this point, I record that I accept [Ms Kruger Snr]’s evidence that: Firstly, during her long marriage to [Mr Kruger Snr], he was responsible for the “finances”, including liaising with the accountants and bankers, negotiating purchases and sales of major assets and writing out the cheques. [Ms Kruger Snr] had a very limited understanding of the parties’ corporate structure and was content to leave such matters to [Mr Kruger Snr]. Secondly, [Ms Kruger Snr] trusted [Mr Kruger Snr] implicitly and, for example, would sign documents when he requested her to do so, without reading them first or even having a clear understanding of what the documents were. Thirdly, after [Mr Kruger Snr]’s death, [Ms Kruger Snr] also generally trusted [Mr Kruger], including signing documents when he requested her to do so, including at times: (1) signing just the signing page without the entire document attached; or (2) even if the entire document was attached, without reading it first, or having a clear understanding of what the document was.
…
297.I am satisfied that by the time of the second trial, [Ms Kruger Snr] had no recollection of the events in question or their intended purpose. I concur with [Ms Kruger] that [Ms Kruger Snr]’s actions in relation to the lodgement of the income tax returns and placing [A Pty Ltd] into administration had every appearance of attempting to force the sale of [Property L]. Given [Ms Kruger Snr]’s lack of financial / business sophistication, I consider it highly unlikely that [Ms Kruger Snr] came up with the idea herself and rather, consider it very likely that one or other of [Ms Kruger Snr]’s advisors recommended it to her as a strategy to force the sale of [Property L]. Given that the first trial judgment was then reserved, I considered that such stratagem, if that is what it was, reflected very poorly on [Ms Kruger Snr] and her relevant advisor/s.
(Footnote omitted) (Emphasis in original)
Again, the reasons challenge must fail as there was no obligation to give a sub-set of reasons for partially accepting Ms Kruger Snr’s evidence (Re Minister for Immigration at [67]).
Nonetheless, as to [66], it can be seen that this was an explanation as to why the primary judge would treat Ms Kruger Snr’s evidence with caution – a matter favourable to Ms Kruger, as indeed is [297]. At [67] the primary judge explained why, notwithstanding that caution, she accepted Ms Kruger Snr could nonetheless remember “many significant events”. There is a tension between those two notions, but it is clearly explained. Likewise the impugned finding challenged by Ground 8(b) is adequately explained in [67].
As to Ground 8(c), whilst no finding in those express terms is contained in any of the paragraphs recited above, nonetheless it seems an appropriate inference drawn from them. However there is an adequate exposure of the reasoning for that finding.
Again, Ms Kruger’s Summary of Argument in dealing with this ground focused on the critique of evidence handed up by her counsel during his address, albeit in relation to Ms Kruger Snr. In that regard, we simply repeat what we have said in relation to Ground 7 about the impact of such a document upon the obligation to give reasons.
There was ample evidence to support the relevant conclusions recited in sub-grounds (b) and (c), examples of which may be found at [189] and [217].
Ground 8 fails.
CONCLUSION
No ground of appeal succeeds, and it follows that the appeal will be dismissed.
COSTS
In the event the appeal failed, C Pty Ltd sought its costs of $30,000. However it is obvious that the person behind C Pty Ltd, namely Ms Kruger Snr, is in a vastly superior financial position to any of the appellants. We are not persuaded that the default position established under s 117 of the Act, namely that each party bears their own costs, should be departed from here.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Carew & Riethmuller. Associate:
Dated: 16 August 2023
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