Moorcroft & Moorcroft

[2018] FamCAFC 253

FAMILY COURT OF AUSTRALIA

MOORCROFT & MOORCROFT [2018] FamCAFC 253

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Application in an Appeal – Where the respondent wife seeks an order for the appellant husband not to be heard on appeal due to his history of non-compliance with orders – Where the Court considers the scope of the discretionary rule not to hear an appeal by a party in breach of past orders – Where lack of obvious merit as to the grounds of appeal – Application for the husband not to be heard on the appeal allowed – Appeal dismissed – Costs.

Family Law Act 1975 (Cth) s 93A(2)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Gafforj (Appeal: Hadkinson Order) [2018] EWCA Civ 2070
Fahmi and Fahmi (1995) FLC 92-637; [1995] FamCAFC 106
Hadkinson v Hadkinson [1952] P 285; [1952] 2 All ER 567
Moorcroft & Moorcroft [2017] FamCAFC 147
Watson & Watson (2013) FLC 93-530; [2013] FamCAFC 25

APPELLANT: Mr Moorcroft

RESPONDENT: Ms Moorcroft

FILE NUMBER: BRC 5266 of 2012

APPEAL NUMBER: NOA 28 of 2018

DATE DELIVERED: 19 December 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Brisbane

JUDGMENT OF: Strickland, Kent & Austin JJ

HEARING DATE: 17 October 2018

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 22 March 2018

LOWER COURT MNC: [2018] FCCA 417

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr R Galloway

SOLICITOR FOR THE APPELLANT: Keyworth Harris and Lowe Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr G Shoebridge

SOLICITOR FOR THE RESPONDENT: Stewart Family Law

Orders made 17 October 2018

1. The appellant husband have leave to file and rely on his affidavit dated 16 October 2018.

2. The Application in an Appeal made by the respondent wife in her outline of argument filed on 28 September 2018 that the appellant husband not be heard on the appeal be allowed.

3. The appeal be dismissed.

4. The appellant husband pay the costs of the respondent wife fixed in the sum of TEN THOUSAND DOLLARS [$10,000.00] with such amount to be paid within 28 days from the date of this order.

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 Moorcroft & Moorcroft 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 28 of 2018
File Number: BRC 5266 of 2012

Mr Moorcroft

Appellant

And

Ms Moorcroft

Respondent

REASONS FOR JUDGMENT

1. By an Amended Notice of Appeal filed on 31 August 2018, Mr Moorcroft (“the husband”) appealed against property settlement orders made between him and Ms Moorcroft (“the wife”) pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) by Judge Coates of the Federal Circuit Court of Australia on 22 March 2018.

2. In effect, the parties’ debts exceeded the value of their alienable assets. Aside from items of personal property in their respective possession, which they each consensually retained, only their superannuation interests were usefully available for division between them. The trial judge made orders for the wife to retain her superannuation, but for the husband’s superannuation to be split equally between the parties, which meant the wife received superannuation of about $387,000 and the husband retained superannuation of about $328,000.

3. Their most significant item of property was the jointly-owned former family home. Both parties eventually advocated for its sale, in the expectation it would yield less proceeds than were necessary to discharge the loans secured by mortgage against it, in which event they would remain jointly and severally liable for the shortfall. If, unexpectedly, the sale yielded any surplus after the discharge of the secured loans, the husband proposed equal distribution of it but the wife wanted it all. The trial judge appointed the wife as the trustee for the sale of the property and ordered that any surplus be paid to her lawyers.

4. With appropriate notice, at the commencement of the appeal, the wife applied for an order precluding the husband from prosecuting the appeal due to his contumelious disregard of several past orders made in the proceedings. In support of her application, the wife had filed an Application in an Appeal on 2 October 2018 seeking leave to rely on her affidavit also filed on 2 October 2018. To be clear, the evidence in that affidavit was intended to explain and prove the husband’s default of various past orders as the foundation for her application for the discretionary order to preclude him from prosecuting the appeal. The evidence was not adduced pursuant to s 93A(2) of the Act in the sense contemplated by the principles developed in CDJ v VAJ (1998) 197 CLR 172.

5. The husband did not oppose the wife’s reliance upon that evidence and, similarly, the wife did not oppose the husband’s reliance upon his affidavit in reply sworn or affirmed on 16 October 2018.

6. Following submissions, the wife’s application was granted and the appeal was dismissed with costs, with reasons to follow. These are those reasons.

Background

1. The proceedings before the trial judge were commenced by the wife in June 2012 and were concluded by the appealed orders made in March 2018. Along the way, numerous orders were made by both the trial judge and this Court in relation to the parties’ financial affairs.

2. On 21 November 2014, the trial judge consensually ordered the husband to do all things necessary to secure the discharge of the joint loans secured against the family home (Order 29) and, if that could not be achieved within two months, the property was to be sold (Order 32). It was noted the home loans then exceeded the value of the property by approximately $290,000 (Notation C). The trial judge also ordered that, in the event of the sale of a second parcel of real property, its net sale proceeds were to be applied in diminution of the loans secured against the family home (Order 35(c)).

3. The husband was unable to re-finance the loans secured over the family home but, notwithstanding, the family home was not sold as the orders required. The husband opposed its sale because he sought final orders for the wife to conditionally transfer her joint proprietary interest in the property to him, the application for which orders he maintained until he, instead, sought orders for the sale of the property in the final written submissions he made to the trial judge in October 2017 after the evidence was closed. In the interim, the husband remained in occupation of the family home and made no effort to sell it.

4. In addition, the husband sold the second property to his new partner and delayed providing the wife with any pertinent information about the sale price and the manner in which the net proceeds of sale were disbursed. It subsequently transpired that, in wilful contravention of Order 35(c), the husband spent $197,863 of the net proceeds for his unilateral benefit. So much was positively found by the trial judge and acknowledged by this Court in the husband’s last appeal (see Moorcroft & Moorcroft [2017] FamCAFC 147 at [17]-[19], [24(b)]). The husband disregarded the order requiring him to use that money to reduce the loans secured by mortgage against the family home and the excuses he proffered to explain his breach were rejected by the trial judge as fatuous.

5. The wife was dissatisfied with the husband’s default of the orders made in November 2014 and, by way of an interim application filed in May 2016, sought more interim orders to resolve the impasse. On 1 August 2016, the trial judge determined the wife’s application by appointing her as trustee for the sale of the family home (Order 1). To facilitate the sale of the property, the husband was ordered to vacate it (Order 3), the wife was given sole use and occupation of it for the purpose of its preparation for sale (Order 5), and the husband was ordered to meet “all outgoings” in respect of the property until its sale (Order 6). The husband was additionally ordered to finalise the pending insurance claim in respect of the property (Order 4) and to pay the wife’s costs of the interlocutory dispute in the fixed sum of $9,436 (Order 9).

6. The husband appealed those orders and sought their stay, however the stay application was ultimately dismissed by the trial judge and the appeal was discontinued shortly before it was due to be heard. On 21 July 2017, this Court ordered the husband to pay the wife’s costs of the abandoned appeal in the fixed sum of $10,000 (Moorcroft & Moorcroft [2017] FamCAFC 147). By then, the trial had already commenced, was part-heard, and was shortly due to resume. For that and other reasons extensively explained, the appeal was futile.

7. On 14 August 2017, when the trial judge dismissed the husband’s stay application and delivered reasons, the trial judge additionally ordered the husband to vacate the family home (Order 2) and made consequential orders to enable his ejection in the event of his default (Orders 3-5). The husband ignored those orders and remained in occupation of the property. It was not until 17 September 2017 that he forfeited possession of the property to the wife.

8. Until then, the husband had been paying reduced sums in only partial satisfaction of loan repayments but, upon vacating the family home, he ceased all payments. By the time orders were made by the trial judge to finally determine the proceedings in March 2018, the mortgage arrears stood at $20,309.

9. Consequently, the adverse financial implications for the wife of the husband’s multiple defalcations during the proceedings may be summarised as follows:

   (a)The husband’s expenditure of $197,863 from the net proceeds of sale of the second property for his own benefit, in breach of Order 35(c) made on 21 November 2014, meant the loans secured by mortgage over the family home were not diminished by that amount and, since the wife is jointly liable for the mortgaged loans, the husband’s breach caused her to lose the benefit of one-half of that sum ($98,931.50). Of course, the mortgagee is free to enforce the entire debt against her severally, but an allowance of only one-half is not unreasonable.

   That computation makes no allowance for the extra interest which would have been levied against the greater debit loan balance from the time the second property was sold in December 2015, which cost could otherwise have been saved. Nor does the computation make any allowance for money which would have been saved by the timely sale of the family home in accordance with the orders first made in November 2014, which sale the husband thwarted. In breach of the orders, he failed to finalise the insurance claim, failed to vacate the property, and frustrated the wife’s attempts to effect repairs in readiness for its sale.

   (b)The husband has still not paid the wife’s costs in the sum of $9,436 in satisfaction of Order 9 made on 1 August 2016.

   (c)The husband has still not paid the wife’s costs in the sum of $10,000 in satisfaction of the order made by this Court on 21 July 2017.

   (d)The husband failed to pay “all outgoings” in respect of the family home in satisfaction of Order 6 made on 1 August 2016.

   The wife did not quantify in her affidavit the value of all the outgoings the husband failed to pay, but her counsel informed us the outgoings in the nature of mortgage repayments, rates, utilities, insurances and the like approximated $38,000, which figure subsumes the mortgage arrears. The husband’s counsel neither accepted nor refuted that estimate, but did not require the wife to adduce evidence of the fact. No doubt documentary evidence could have been collated by the wife, but given the tortuous litigious history, the parties had no time or money to waste on adjournments. Without objection, we accepted the estimate as accurate for the purpose of the application at hand.

   (e)While the husband finally complied, in September 2017, with the orders made in August 2016 and August 2017 requiring him to quit occupation of the family home, his delayed compliance deprived the wife of its use and caused her to continue incurring rent for alternate accommodation.

   The wife did not depose to the rental cost of her deprivation of the family home. We were informed by the wife’s counsel her rent was $850 per week for the period between August 2016 and September 2017, when the husband finally quit possession. Again, the husband’s counsel neither accepted nor refuted that fact, but did not require the wife to give evidence of it. Similarly, without objection, we accepted as correct the unverified representation from counsel. Calculated over a period of about 13 months, the wife was put to extra rental expense of about $49,000.

10. Therefore, in all, the husband’s disobedience of numerous orders over a number of years deprived the wife of not less than about $205,000.

Legal principles

1. It is well recognised that, subject to various established exceptions, the Court reserves discretionary power to refuse to entertain an appeal brought by an appellant who is in contempt of orders made in the same proceedings. The principle was discussed at length by the Full Court in Fahmi and Fahmi (1995) FLC 92-637 (“Fahmi”) and again more recently in Watson & Watson (2013) FLC 93‑530 (“Watson”) at [25] – [37].

2. The principle was most recently considered by the United Kingdom Court of Appeal in De Gafforj (Appeal: Hadkinson Order) [2018] EWCA Civ 2070 (“De Gafforj”). In that case, the court confirmed that an order refusing to hear the appellant’s appeal by reason of his contempt should not be common place because of the draconian effect (at [9]). The court (at [11]) articulated the pre-conditions for such an order as being a deliberate and continuing contempt, which impedes the course of justice, for which there is no other realistic and effective remedy, and the order is proportionate to the problem. In that case, the appellant husband was in default of numerous maintenance and costs orders made in the underlying proceedings for the benefit of the respondent wife, which orders were not the subject of his appeal. Those circumstances were found to enliven the court’s discretion and so the wife’s application for an order dismissing the husband’s appeal was conditionally granted (a “Hadkinson order” – so named after the seminal authority of Hadkinson v Hadkinson [1952] P 285). The court ordered the appeal would stand dismissed if the husband failed to purge his contempt by paying the outstanding sums in satisfaction of the maintenance and costs orders within a very short period of time.

3. In Watson, the Full Court explained that there is now no material distinction between the discretionary approach to Hadkinson orders in Australia and the United Kingdom. The pre-conditions to the application of the principle, as discussed in De Gafforj, should be interpreted as discretionary factors, the existence of which will permit, but not oblige, invocation of the principle.

4. No question of the principle’s application arises when the disobeyed order is the subject matter of the appeal (Watson at [36(f)(ii)]), since the disobedience of an allegedly flawed order, properly challenged, is potentially defensible. Relevantly for present purposes, none of the orders of which the husband has been, or remains, in breach are the subject of his appeal. The appeal relates exclusively to the orders made on 22 March 2018.

5. Significantly for this appeal, it is not necessary for there to be any antecedent formal determination of the appellant’s guilt of the contravention or contempt. Facts which establish the disobedience at the time the discretion arises for exercise will suffice (Watson at [36(c)]). Moreover, all the breached orders in this instance were made within the same matrimonial cause, as the principle requires (Watson at [36(e)]). No discretionary order was made to shut out the contemnor in either Fahmi or Watson because, in each case, the contempt was not committed in the same cause of action (Fahmi at 82,428 – 82,429; Watson at [44]).

6. When circumstances give rise to the discretion, its exercise depends upon the balance which must be struck between the appellant’s right to procedural justice and countervailing public policy considerations, the ambit of which is not confined (Watson at [36(g)]). The Full Court in Watson exemplified relevant public policy considerations as the obstruction of justice caused by the contempt (such as by impeding the ascertainment of truth or by impeding the enforcement of orders) and the contemnor’s application amounting to an abuse of process. But public policy is an amorphous concept and should not be considered as being limited to those examples (De Gafforj at [13]). In De Gafforj, the enduring failure of the appellant to pay sums of money to the respondent and the unlikelihood of his rectification of the default were public policy considerations which engaged the Hadkinson principle.

7. The parties accepted the validity and applicability of those principles. Their dispute was confined to the way in which the discretion should be exercised in this instance.

Conclusions

1. The husband contended the errors of the trial judge were so pronounced that his entitlement to procedural justice necessitated that his appeal be entertained, whereas the wife submitted his right was overwhelmed by the weight which reposes in public policy considerations. As the orders made at the appeal portended, the discretionary balance fell in the wife’s favour.

2. In essence, the husband’s submissions distilled to the propositions that his appeal had merit and more than a trifling sum of money rode on its outcome.

3. It is common ground that, leaving aside relatively minor items of personal property (the future ownership of which was not contested) and superannuation, the parties were in financial deficit. Their liabilities exceeded the value of their assets. The trial judge did not make the findings for which the husband contended about the parties’ existing assets and liabilities but, regardless, there was a deficit.

4. Even though the husband contended the trial judge erred by failing to incorporate his contingent liability for capital gains tax (estimated by him in the sum of $151,518) within the “pool of assets and liabilities”, its inclusion would have made no appreciable difference. The liability would only have accentuated the deficit found by the trial judge. As the husband’s final written submissions revealed, even if his contentions about the assets and liabilities comprising the “pool” had been entirely accepted, the deficit would still have been measured at about $383,000.

5. The husband submitted in writing to the trial judge at the close of the evidence:

   This matter is principally about debt. The financial position of the parties at separation was negative. This is agreed by the parties, and has been plainly clear at all times during these proceedings.

   …

   …In simple terms, the outstanding balance of the home loans exceeded the valuation of the [family home], preventing the Husband from applying to refinance the loans.

   …

   The Wife has been aware at all times since separation that the financial position of the parties was negative…This is not in dispute.

   …

6. The parties conducted the trial mutually believing the sale proceeds of the family home will be insufficient to discharge the whole of the debt secured against the property, which expectation they still hold, and so they will remain jointly and severally liable for the residual debt.

1. The husband’s liability for the capital gains tax had not crystallised at the time of trial because he had not lodged his tax returns for the preceding few years. In any event, in his final written submissions, he applied for an order requiring him to bear exclusive liability for the tax and to indemnify the wife against any liability for it (which order the trial judge made), though it must be acknowledged he did so in tandem with an application for the parties to retain their own superannuation interests (which order the trial judge did not make).

2. Given the parties’ agreement to retain their own items of personal property, their superannuation interests were the only divisible property amenable to adjustment orders under Parts VIII and VIIIB of the Act. The wife’s superannuation interest was valued at $59,177 and it was agreed she should retain it. The husband’s superannuation interest was valued at $655,534 and, while he wanted to retain it, the wife wanted one-half of it ($327,767). The trial judge acceded to her application and so the wife received 54 per cent of the parties’ aggregated superannuation interests.

3. The parties’ relationship lasted about nine years and they have four children, aged between 8 and 14 years at the time of trial, who will continue to live primarily with the wife. The trial judge found, without challenge in the appeal, the husband earns and will likely continue to earn considerably more than the wife: about $325,000 per annum. Against that background, it is difficult to conceive how any just and equitable outcome could have been achieved by the wife’s receipt of much less superannuation than was ordered. Even if the husband had expected the wife’s eventual share of the superannuation interests would reflect her joint liability for the contingent capital gains tax debt (say $75,000, being about one-half of $151,518), her notional half share of the liability would only have resulted in an adjustment of much less than the overall cost to her of the husband’s persistent breaches of orders in these proceedings. Contextualised in that way, the appeal concerned a relatively modest sum of money.

4. If the appeal was entertained then, assuming its success, the parties agreed the inevitable result was remitter of the proceedings for re-hearing. Most likely in the re-hearing, the parties would be confined to a narrow argument about the just and equitable division of superannuation worth around $714,000 in total, none of which money would be available for their use to meet their financial obligations until their retirement many years hence, other than by way of a subsequent successful application to the superannuation trustees for the release of the funds on grounds of hardship. So the husband would still have no resource, besides his regular income which he has so far resisted using, to remedy his breaches and alleviate the wife’s losses. As was recognised in De Gafforj (at [12]), the husband’s ability to pay money to rectify his contravention of orders “come[s] into play when the court decides whether and how to act on the contempt”. In this instance, on the husband’s own case, he had no prospect of being able to rectify his multiple contraventions of orders even if his appeal was entertained, it enjoyed success, and he obtained the property settlement orders for which he applied on re-trial.

5. As for the contended merit of the appeal, we were not convinced of it, though that is not to say it was entirely unmeritorious. Without descending into detail, most, if not all, of the grounds of appeal appeared capable of an easy or ready answer. For example:

   (a)The asserted errors in the form of the orders (Grounds 2 and 3) could be cured by the trial judge’s exercise of the slip rule or by an application to the trial judge for consequential orders to enable the enforcement of the primary orders, if needed.

   (b)The asserted error of a failure to find the extent of the parties’ respective contributions (Ground 4) was largely a moot point, since there was no alienable property to divide between them.

   (c)The complaints about the superannuation splitting orders (Grounds 5 and 6) have already been addressed above, at least in a contextual sense.

   (d)The complaint about the failure to include the husband’s contingent capital gains tax liability in the “pool” (Ground 7), even if validly made, could only be rectified by enlargement of the parties’ debt and thereby worsen their financial position.

   As to that contingency, there has been no assessment of capital gains tax payable by the husband, not least because he has failed to file tax returns for some years. On the second day of trial the husband produced an accounting estimate, which was heavily qualified as to the assumptions applied in making that estimation. The author of the estimate was not called to prove the evidence or to be tested upon it. As at the hearing of the appeal, the husband’s failure to lodge tax returns persisted and his affidavit filed for the appeal contained no stated intention to address the default.

   (e)The complaint about the notional add-back of $197,863 as an asset of the husband (Ground 8) was weak in light of his concessions about his expenditure of funds in contravention of the orders made by the trial judge in November 2014.

   For clarity, the husband’s appeal, in so far as it related to this sum of money, was directed to an alleged error of the trial judge which reflected in the orders made on 22 March 2018. It was not a challenge to the validity of the order made on 21 November 2014, which required him to apply that money to the mortgage registered against the family home, which order he clearly breached.

   At trial, the judge attempted to redress the husband’s expenditure of that money by finding it was prematurely distributed to him and notionally allocating it to him as an asset. However, that did not practicably afford either the wife any advantage or the husband any disadvantage because its addition to the “pool” as an asset was not enough to establish a surplus of assets over liabilities. Had it been ignored, or some lesser figure adopted instead, the deficit of liabilities over assets would have been even greater.

   (f)The miscellany of asserted erroneous factual findings by the trial judge (Grounds 9 and 10) appeared to have little, if any, bearing upon the appealed orders.

   (g)The generalised complaints about the lack of adequate reasons and the miscarriage of discretion (Grounds 1 and 11) were not usefully elaborated in the husband’s Summary of Argument.

6. Therefore, the merit of the appeal, as contended by the husband, cannot have the strong consideration in the discretionary exercise he anticipated. We accept he may have had an arguable case in some respects, but it was far from an irresistible attack upon the trial judge’s orders. The lack of obvious merit retarded the weight which could be reposed in the appeal grounds and, hence, the consequences of denying him an audience in the appeal in the discretionary process.

7. In contrast, after enduring six years of litigation, the wife had a keen and legitimate desire to enforce the trial judge’s orders when his Honour’s decision is presumptively correct (see Australian Coal & Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627) and in not being put to the trouble or expense of responding to the husband’s challenge to the correctness of the trial judge’s decision when he is demonstrably unwilling to be bound by orders which do not suit him. She was understandably anxious to avoid being ensnared in perpetual litigation until the husband finally obtains a result with which he is satisfied and will comply.

8. Aside from the wife’s interests, the broader public interest is served by courts ensuring that curial orders are duly observed. If breached orders are left unenforced, public confidence in the courts’ capacity to quell litigious disputes is undermined. The disobedience of orders almost inevitably involves, first, an innocent party incurring more cost and inconvenience to enforce the orders against the defaulting party, and second, the diversion of resources by the courts from other deserving disputes to entertain the enforcement applications. Litigants should not expect that the cost of their recalcitrance will be borne by the community. Courts are obliged to spend resources fairly and efficiently, which obligation may sometimes transcend the interests of parties to the litigation. The resolution of litigation serves the public as a whole, not merely the parties to the proceedings (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 189-190, 211-215, 217).

9. If an appellate court willingly entertains an appeal by a defaulting party, despite the default being persistent and brazen, public confidence in the legal system is similarly sapped. Generally, the attribution of resources to entertain appeals of modest merit, which are unlikely to produce substantial change to the underlying result even if successful, brought by appellants in egregious and continuing breach of orders should desirably be avoided.

10. In this instance, there could be little argument about the seriousness of the husband’s contraventions of orders: they were multiple rather than singular, they were committed over several years, and they caused the wife’s deprivation of considerable sums of money when she could ill afford it. In the affidavit the husband swore or affirmed on the cusp of the appeal, he had the opportunity to apologise for and explain his contraventions, which opportunity he eschewed. In carefully chosen language, he did not deny salient facts alleged by the wife about his defaults. Nor did he make appropriate admissions or proffer any explanation for his conduct. There was no room to infer his remorse or regret. Importantly, he did not depose to his intention to rectify his defaults, either soon or at all.

11. Drawing upon the discretionary features mentioned in Watson and De Gafforj, the husband’s contempt of past orders was deliberate and is continuing, his conduct obstructed the course of justice because the breached orders seemed unlikely to ever be capable of enforcement, and there was no other reasonably feasible remedy for his default but to decline to entertain his appeal. There was no utility in adjourning the appeal and giving the husband further time within which to rectify his defaults as there was no reasonable prospect of his rectification and an adjournment would only serve to subject the parties to more delay and expense. Just as in De Gafforj, the husband’s multiple and continuing failures to pay significant sums of money to, or on behalf of, the wife was sufficient to invoke the discretionary application of the Hadkinson principle. On balance, the discretionary considerations weighed more heavily in favour of refusal to entertain the husband’s appeal.

Costs

1. Upon dismissal of the appeal, the wife sought that the husband pay her costs of and incidental to the appeal in the fixed sum of $10,000. The husband’s counsel commendably conceded the costs order was impossible to resist and, further, it was difficult to contest the reasonableness of the proposed quantum of the order, which we took to be another concession. An order was made in those terms and the husband was allowed 28 days to pay, commensurately with his proposal.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Austin JJ) delivered on 19 December 2018.

Associate:

Date: 19 December 2018