Morin & Simons
[2024] FedCFamC1A 130
•9 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Morin & Simons [2024] FedCFamC1A 130
Appeal from: Simons & Morin (No 2) [2024] FedCFamC1F 170 Appeal number: NAA 89 of 2024 File number: SYC 5136 of 2020 Judgment of: AUSTIN, JARRETT & SCHONELL JJ Date of judgment: 9 August 2024 Catchwords: FAMILY LAW – APPEAL – Where the appeal lies from financial orders made between former de facto spouses – Where the appellant alleged the primary judge failed to accord him procedural fairness by characterising money owed to him as a financial resource rather than as an asset, as he alleged the parties had agreed – Where the characterisation of the money was contentious at trial – Where there was no common position adopted by the parties from which the primary judge could have departed – Where the primary judge did not make factual errors as to the appellant’s initial contributions – Where the primary judge gave sufficient reasons for his assessment of the parties’ contribution-based entitlements – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal. Legislation: Family Law Act 1975 (Cth) Pt VIIIAB, ss 90SF, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Lovine & Connor (2012) FLC 93-515; [2012] FamCAFC 168
Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Stead v State GIO (1986) 161 CLR 141; [1986] HCA 54
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 63 Date of hearing: 29 July 2024 Place: Heard in Sydney, delivered in Newcastle Counsel for the Appellant: Mr Dickson KC Solicitor for the Appellant: Abbott Delaney Lawyers Counsel for the Respondent: Mr Kearney SC Solicitor for the Respondent: Rubin Blight Hardy ORDERS
NAA 89 of 2024
SYC 5136 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MORIN
Appellant
AND: MS SIMONS
Respondent
ORDER MADE BY:
AUSTIN, JARRETT AND SCHONELL JJ
DATE OF ORDER:
9 AUGUST 2024
THE COURT ORDERS THAT:
1.The Amended Notice of Appeal filed on 26 June 2024 is dismissed.
2.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $35,764.26.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morin & Simons has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, JARRETT & SCHONELL JJ
This appeal lies from financial orders made between former de facto spouses under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 19 March 2024.
For the following reasons, the appeal is dismissed.
BACKGROUND
The parties first met in 2004 (at [7]), but the appellant did not admit the parties had ever been in a de facto relationship until trial (at [6]). The parties then agreed they began cohabitation overseas no later than August 2014 (at [17]) and their relationship ended in Australia in February 2020 (at [23]).
The respondent commenced proceedings seeking financial relief under the Act in July 2020. The appellant expanded the dispute to include a parenting cause in respect of their only child in December 2020. The two causes were heard by the primary judge in October 2023 and judgment was pronounced in March 2024.
The parties’ child was born in April 2015 (at [18]). The parenting orders made in March 2024 in respect of the child are not in issue in this appeal. The child lives with the mother in Australia and the father lives in the United Kingdom with his new family.
Consistently with the parties’ concessions, the primary judge found their de facto relationship began in August 2014 and ended in February 2020 (at [170]), in which event jurisdiction under Pt VIIIAB of the Act was enlivened (at [172]). His Honour found:
(a)the net value of the parties’ property and superannuation was $10,342,093 (at [200]);
(b)as the parties agreed, it would be just and equitable to adjust their respective property interests (at [201]);
(c)the parties’ contributions, assessed globally (at [206]), would warrant the division of their property in shares of 58 per cent to the appellant and 42 per cent to the respondent (at [246]);
(d)an adjustment of one per cent in the respondent’s favour was justified by reference to considerations dictated by s 90SF(3) of the Act (at [259]);
(e)the ultimate proportional shares of the parties should be 57 per cent to the appellant and 43 per cent to the respondent (at [259]); and
(f)it was just and equitable to make the adjustment orders as formulated (at [260]–[265]).
Relevantly, the adjustment orders made by the primary judge required: the appellant to pay the respondent $803,320 within 90 days (Order 1); the transfer of a jointly-owned real property in Australia to the respondent upon discharge of the mortgage by the appellant (Order 2); and, in the event of the appellant’s default in compliance with those orders, the compulsory sale of an overseas property owned by the appellant (“the City J Property”) to enforce compliance (Orders 4 and 5), which he was restrained from selling or encumbering other than as necessary to enable his compliance with the orders (Order 13). Otherwise, the parties retained personal property and bore responsibility for their own debts (Orders 6–9).
The appellant ultimately appealed from only Orders 1, 4 and 5, governing the cash sum payable to the respondent and the default sale of the London property.
The orders were stayed by the primary judge in July 2024, pending disposition of the appeal.
THE APPEAL
The appeal in its amended form comprises three grounds: the failure to accord procedural fairness to the appellant (Ground A3); two factual errors (Ground A1); and the failure to provide sufficient reasons in respect of the assessment of the parties’ contribution-based entitlements (Ground A2).
It is necessary to first deal with the ground complaining of the denial of procedural fairness (Concrete Pty Ltd v Parramatta Design& Developments Pty Ltd (2006) 229 CLR 577 at 611–612; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]).
Ground A3
The alleged failure to accord procedural fairness to the appellant was not particularised within the Amended Notice of Appeal, but in his Summary of Argument the denial was articulated to be the manner in which the primary judge dealt with some money owed to the appellant by his former employer.
The appellant alleged in the appeal the parties had mutually contended for the treatment of the money as his asset but then, without any warning, the primary judge instead treated it as his financial resource. The appellant submitted this:
25.As will be referred to in Ground 3, His Honour departed from a consent position when it came to the treatment of the Appellant’s [former employment] entitlement at the time of the Trial. Both parties contended that it should be included as an asset, and available for division. His Honour took a different approach and determined to treat it as a resource. For reasons that follow under Ground 3, that was an error.
…
33.While it might be thought to be advantageous to the Appellant that His Honour found the [appellant’s former employment] entitlement existing as at Trial to be a resource not property, the fact is it was a departure from a common position and was done without warning or notice.
34.It being the common position, submissions were only made based on that position. No submissions were invited, much less made, around the scenario contemplated by His Honour.
35.For the Court to depart from a consent position without inviting submissions, is to deny procedural fairness and/or natural justice. …
As will be seen, the situation at trial was not so clear.
In his affidavit filed in October 2023, the appellant deposed that his former employer was due to pay “permanent capital” of AUD $1,162,200 to him in January 2027. He confirmed in his contemporaneously filed financial statement that the permanent capital amounted to AUD $1,162,200. He expressly described that sum as a “financial resource” in his financial statement. Likewise, in his Case Outline document, the appellant described the sum as a “financial resource”.
In the respondent’s Case Outline document, she identified as an issue for determination whether the appellant’s permanent capital should be treated as an asset or a financial resource. She too identified the money as the appellant’s “financial resource” in the draft balance sheet she annexed to her Case Outline.
The issue of the characterisation of the appellant’s permanent capital was not then raised during the trial by either party with the other or with any witness during cross-examination.
By the time of final submissions, the parties agreed the appellant’s permanent capital was valued at $1,232,400. In the appeal, the parties explained the difference between the evidence of its valuation at $1,162,200 and the agreed valuation of $1,232,400 was due to currency fluctuations. Both parties included the latter figure on the balance sheets they separately tendered (at [185]) – the appellant’s as Exhibit 9 and the respondent’s as Exhibit K.
However, the characterisation of that sum as either the appellant’s asset or financial resource remained contentious. Contrary to the appellant’s submissions in the appeal, the treatment of the permanent capital as the appellant’s asset was not clearly adumbrated by the parties as a “consent position” during final submissions. The sum was shown as being either an asset (at item 22) or a financial resource (at item 80) on both exhibited balance sheets.
In the respondent’s final submissions, she initially confirmed that all items up to and including item 30 on the exhibited balance sheet were agreed between the parties. This exchange occurred between the respondent’s senior counsel and the primary judge:
HIS HONOUR: Can I rest comfortably on the assumption everything up to [item 30] after what you’ve just submitted is agreed?
[Senior counsel for the respondent]: Anything I don’t take you to, for my part, I understand to be agreed. Will that satisfy your Honour.
(Transcript 30 October 2023, p.295 lines 38–42)
In the appeal, the appellant asserted that exchange should be taken to mean the parties had agreed the permanent capital of $1,232,400 was to be treated by the primary judge as an asset.
Yet, later in the respondent’s submissions, her senior counsel had this further exchange with the primary judge:
HIS HONOUR: Sorry, what do I do with these financial resource items? I mean…
[Senior counsel for the respondent]: What you do with them – and there’s really only one that’s in fact – I’m sorry, subject to what I’ve said about the tax position, which really isn’t a financial resource. There’s the [appellant’s former employer] retainer payable in 2027. You take that into account under 90SF, your Honour. So there’s no actual issue between the parties.
(Transcript 30 October 2023, p.298 lines 9–16) (Emphasis added)
The “financial resource items” there being referred to were items 74–82 on the exhibited balance sheet, which included the appellant’s permanent capital at item 80.
In the appeal, the respondent asserted she was thereby keeping open the option of the appellant’s permanent capital being treated as a financial resource rather than as an asset.
The appellant’s final submissions in the trial followed those of the respondent. He relied upon tendered written submissions, which did not clarify in any way how his permanent capital should be treated. In his supplementary oral submissions, the appellant’s senior counsel explained he relied upon only one of three alternate schedules of assets and liabilities annexed to his written submissions. The schedule he finally relied upon was tendered (Exhibit 9), within which exhibit the appellant identifies the permanent capital as being either an asset or a financial resource.
Having heard the respondent’s submissions, the appellant’s senior counsel did not then assert the parties’ agreement about items 1–30 on the tendered balance sheets meant anything more than that they simply agreed upon the values attributed to those items and extended to the treatment of item 22 as an asset. Nor did the appellant’s senior counsel countermand the respondent’s submission that the “financial resource items”, which included the appellant’s permanent capital at item 80, should be treated as a financial resource under the rubric of s 90SF of the Act. The appellant said nothing at all about his permanent capital in oral final submissions, save for this:
[Senior counsel for the appellant]: …What this provides for, your Honour, is that that sum of money is paid in 2027 when it’s expected that a very large amount of money will be paid to my client from [the appellant’s former employer]. …
(Transcript 30 October 2023, p.317 lines 29–31)
Axiomatically, the parties’ respective positions about the way in which the appellant’s permanent capital should be treated were fluid. The appellant’s submission in the appeal that the parties adopted a common position for the permanent capital to be treated as his asset exaggerates the reality.
The primary judge said this in the reasons to explain why the permanent capital was taken into account as a financial resource rather than as an asset:
187.Item 22 was included apparently by both parties in the property pool. This item is the “permanent capital” or retained earnings ($1,232,400) of the [appellant] held by his previous employer, [name]. The [appellant] is entitled to receive payment of this amount but his entitlement will not accrue until 2027 according to the termination agreement he entered into [i]n [early] 2022. The [appellant] also claimed the payment was discretionary. But he did not make clear why this was so. I accept this entitlement is presently properly characterised as an asset of the [appellant] in the sense it is more than a mere expectation, and probably constitutes a chose in action. But in my view it is more appropriate to take account of this item under s 90SF as a financial resource accruing in the future, as the [respondent] submitted, rather than include it on the balance sheet.
(Emphasis added)
Significantly, the primary judge proceeded on the basis that there was no agreed position adopted by the parties on the issue because the appellant did not join in the respondent’s characterisation of the permanent capital as a financial resource.
The permanent capital was not included as an asset on the schedule of assets and liabilities constructed by the primary judge (at [200]), but was taken into account in assessing the justice and equity of the property adjustment orders, albeit then being described as “retained earnings” (at [257] and [263]).
In the reasons for judgment, when discussing the parties’ initial contributions upon the commencement of cohabitation in August 2014, the primary judge found the appellant was owed $112,350 in the form of permanent capital by his former employer (at [211(6)]), which finding coincided with the evidence adduced by the appellant.
The appellant also adduced evidence that the value of his retained earnings in August 2014 was $1,192,970, which he expressly characterised as being a financial resource. The primary judge also took that sum into account as an initial contribution by the appellant, saying this in the reasons for judgment:
213.The parties appeared to dispute whether the amount of $1,192,970 said to be retained earnings in [the appellant’s former employment] as at August 2014 should be treated as an initial contribution or financial resource. The [respondent] argued that treating it as an asset effectively capitalised “at the front end” earnings which were drawn or accrued periodically beyond August 2014. I do not accept the [respondent’s] argument as entirely correct, however the evidence as to the characterisation of this amount and the manner in which the quantum was arrived at was confusing. Earlier in these reasons I concluded that the retained earnings in [the appellant’s former employment] should be treated as a future financial resource because the [appellant’s] entitlement to payment will not accrue until 2027. For this reason, it could be thought somewhat artificial to treat the retained earnings as an initial contribution because it was not available to the parties during the relationship or at trial. If the $1,192,970 is removed, the [appellant’s] initial contributions total $1,022,073 and the parties’ initial contributions are materially similar. However, since I have taken the view that the retained earnings should be taken into account under s 90SF as a future entitlement to payment accruing to the [appellant], it is also appropriate to include it in the assessment of initial contributions as such an entitlement at the commencement of the relationship.
(Emphasis added)
We do not accept the proposition that his Honour, without warning or notice, departed from a “common position” adopted by the parties. There was no obvious common position.
But even if there had been a common position adopted by the parties to treat the appellant’s permanent capital as an asset, the primary judge’s treatment of it as a financial resource caused no material prejudice to the appellant.
The appellant submitted this in his Summary of Argument:
33.While it might be thought to be advantageous to the Appellant that His Honour found the [appellant’s former employment] entitlement existing as at Trial to be a resource not property, the fact is it was a departure from a common position and was done without warning or notice.
(Emphasis added)
The appellant’s permanent capital was taken into account as an initial contribution by him in August 2014, but was not included amongst the assets available for division between the parties as he was not expecting payment of the money until 2027. The appellant’s prospective receipt of the money was instead taken into account under s 90SF(3) of the Act but, in application of the s 90SF(3) considerations, the respondent received only a one per cent adjustment, which amounted to an extra $103,421 for her on the net value of the assets. Had the permanent capital of $1,232,400 been taken into account as an asset, the respondent’s overall 43 per cent share of the capital would have equated to $529,932, so the appellant was better off by reason of the course taken by the primary judge. Had the appellant’s permanent capital not been treated as his financial resource and the respondent had thereby lost the one per cent adjustment under s 90SF(3) of the Act, her contribution-based entitlement to 42 per cent of the assets would still have given her a 42 per cent share of the permanent capital in the guise of an asset, which share amounts to $517,608. The appellant would still have been better off.
Not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial (Stead v State GIO (1986) 161 CLR 141 at [10]). In this instance, the treatment of the appellant’s permanent capital as an asset would have been positively disadvantageous for him. Had he expressly advocated for the treatment of his permanent capital as an asset rather than as his financial resource he could not possibly have achieved a better result than he did (Stead v State GIO at [16]). The appellant was given due credit for the capital he brought into the relationship, but the current value of the capital was not treated as an asset amenable to immediate division, so he suffered no practical injustice.
This ground is rejected.
Ground A1
This ground is pleaded as follows:
The Learned Primary Judge erred in making factual findings in relation to the Appellant’s initial contributions in respect to:
(a) His interest in [his former employment]; and
(b) The value of his [Country N property].
Despite alleging factual errors, the alleged errors are not identified by either the ground or the appellant’s Summary of Argument, thereby breaching r 13.23(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
We will deal with the two alleged factual errors sequentially, starting with the capital held by the appellant in his former employer.
As already observed under Ground A3, the appellant adduced evidence that, in August 2014, he enjoyed “permanent capital” of $112,350 held by his former employer. The primary judge accepted that evidence, finding he did then have such capital (at [211(6)]). His Honour also accepted the appellant’s evidence that he had “retained earnings” with his former employer of $1,192,970 in August 2014 (at [213]). There was no factual error and, moreover, those sums were taken into account as initial contributions by the appellant.
As for the Country N property, the appellant deposed he bought the property through a corporation for over AUD $1,000,000 in May 2014, several months before the parties’ cohabitation began in August 2014. He also deposed to some expenditure by him in “building works” and “repair[s] and maintenance” on the property, commencing from some indistinct time in 2014 and continuing until 2019. The Country N property is mortgaged and he deposed to it having a net value of about AUD $1,799,147 at the time of trial.
The primary judge accepted the appellant’s evidence about his initial contribution of the encumbered Country N property at the value he ascribed (at [211(2)]). The primary judge also took the Country N property into account in the division of assets at the value he ascribed to it and subject to the value of the mortgage he alleged (at [265]). There was no factual error. It is simply false for the appellant to submit his Honour undervalued the Country N property.
Just before final submissions commenced in the trial, the appellant sought to tender adversarial expert opinion evidence going to the value of the Country N property in August 2014, but he withdrew the application as it was debated. Evidently, the appellant initially wanted to try and establish the Country N property was worth more at the commencement of cohabitation than the sum for which he bought it about three months beforehand, but he gave no direct evidence about what improvements (if any) were done to the property and how much money he spent on them between May and August 2014, so the expert opinion evidence was likely to be inadmissible without such foundational factual evidence. In any event, the abandoned application to re-open the evidence has no bearing upon this ground, which complains only of factual mistake.
Ground A2
This ground is pleaded as follows:
The Learned Primary Judge failed to provide sufficient reasons in relation to the assessment of the contribution-based entitlements of the parties.
It is as well to observe at this point that the primary judge’s obligation was only to give sufficient reasons for the ultimate discretionary judgment, which may entail the need to comprehensively explain intermediate steps in the exercise of discretion. However, the overall adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the cause of action, and the significance of those elements to the course of the hearing. Reasons are not necessarily inadequate merely because they fail to minutely explain every step in the reasoning process that leads to the ultimate conclusion (DL v The Queen (2018) 266 CLR 1 at [33]).
At the start of the trial, the appellant pressed for findings that his overall contributions overwhelmed the mother’s and should be assessed at 80/20 per cent in his favour, with an adjustment in the respondent’s favour of five per cent, which would warrant an ultimate division of property in proportions of 75/25 per cent favouring him. Yet, he asserted his overall entitlement to 76 per cent at the beginning of the trial and between 67.6 to 68.7 per cent at the end of the trial. Evidently, his position was flexible.
The respondent conducted the case throughout on the basis that the ultimate division of assets should be equal.
There was remarkably little factual controversy over the nature of the parties’ contributions, which necessarily means their disparate views about their respective entitlements were due to divergent subjective opinions rather than objective facts.
The primary judge assessed the parties’ contributions globally, assessing their contribution-based entitlements at 58 per cent to the appellant and 42 per cent to the respondent (at [206] and [246]). An adjustment of one per cent in the respondent’s favour was found pursuant to the factors prescribed by s 90SF(3) of the Act (at [259]). The eventual division was therefore 57 per cent to the appellant and 43 per cent to the respondent (at [259]).
Given this ground is confined to an attack upon the sufficiency of the reasons given for only the parties’ “contribution-based entitlements”, it is important to record how the primary judge dealt expressly with the parties’ overall contributions in specific categories, including: initial contributions (at [208]–[215]); financial contributions during the relationship (at [216]–[227]); financial contributions after their separation (at [228]–[232]); non-financial contributions (at [233]–[236]); and contributions to the welfare of the family (at [237]–[240]).
It is not now contended that any of the findings made in respect of the parties’ contributions were wrong, other than under Ground A1, which complaints have already been rejected.
When assessing their contributions, the primary judge summarised the parties’ submissions (at [244]–[245]), but did not entirely accept the submissions of either party (at [246]). Relevantly, the primary judge concluded this:
246.…Having carefully considered the evidence concerning contributions, and giving the parenting and homemaker contributions considerable weight I conclude that overall the [appellant] made a greater contribution financially during the relationship. I do not consider this is outweighed by the fact that for long periods during the relationship the [respondent] was compelled to parent alone, while the [appellant] was pursuing his career and indeed another relationship with his current wife. After separation the [respondent] made the greater parenting contribution while the [appellant] made a greater financial contribution. Overall I assess the contributions 42 per cent to the [respondent] and 58 per cent to the [appellant].
The appellant submitted this in the appeal, which captured the essence of this ground:
18.It is not clear whether [the primary judge] concluded that contributions during the relationship were equal, or those made post separation were equal or otherwise. Initial contributions are not mentioned at all in that paragraph. Accordingly, the reader cannot discern how such matters were synthesised to arrive at the contribution assessment of 42/58%.
That complaint is, in our view, unjustified and amounts to the appellant’s demand of mathematical precision from the primary judge when the appellant conducted a case which was anything but mathematically precise.
In the Case Outline document given by the appellant to the primary judge at the commencement of the trial, he presciently quoted Lovine & Connor (2012) FLC 93-515, in which the Full Court said (at [41])(AB 1166-1167):
…No amount of devotion to mathematics is capable of transforming a discretionary exercise involving many component parts, each mostly unamenable to precise computation, into one of aggregating separately finely calculated components to reach an overall outcome.
Then, in final submissions, the appellant quoted the same authority to his Honour, so he must have been keen to emphasise the point. It was not unreasonable for the primary judge to accept his submission.
Appellate courts reviewing an exercise of discretion at first instance should avoid an overly critical or pernickety analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved (U v U (2002) 211 CLR 238 at 270; AMS v AIF (1999) 199 CLR 160 at 211). The task of moving from a qualitative to a quantitative assessment of the parties’ contributions in a financial cause under the Act is not always easy (Mallett v Mallett (1984) 156 CLR 605 at 625). An assessment of such contributions need not be the subject of “over-zealous attention” (Norbis v Norbis (1986) 161 CLR 513 at 524). It is only necessary that the appellate court be able to discern either expressly or by implication the path by which the result has been reached (Bennett & Bennett (1991) FLC 92-191 at 78,267).
That obligation was discharged in this instance as the primary judge’s assessment of the parties’ contribution-based entitlements fell roughly between their own polarised assessments. Having regard to the relative scarcity of any factual controversy over the parties’ contributions, the assessment of their entitlements in proportional shares of 58/42 per cent was satisfactorily explained by the reasons given. This ground fails.
DISPOSITION
The appeal is dismissed.
In the event of dismissal of the appeal, the respondent sought that the appellant pay her party/party costs of the appeal, assessed in the sum of $35,764.26. We acknowledge parties should usually bear their own costs of litigation under the Act (s 117(1)), though costs orders may be made if circumstances justify it (s 117(2)). In considering the factors stated in s 117(2A) of the Act, the respondent should have her costs in the sum sought because the appeal was wholly unsuccessful (s 117(2A)(e)) and the appellant’s financial circumstances do not militate against the order. The appellant submitted the costs order should be discounted to $30,000, but we decline to do so when his own costs of the appeal were more than double that sum.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Jarrett and Schonell. Associate:
Dated: 9 August 2024
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