NA & TIU
[2017] FamCA 282
•1 May 2017
FAMILY COURT OF AUSTRALIA
| NA & TIU | [2017] FamCA 282 |
| FAMILY LAW – DE FACTO RELATIONSHIPS – Where the parties disputed whether they were ever in a de facto relationship – Where both parties were married to other persons at the commencement of the relationship – Where the parties never cohabited – Where the relationship had no public notoriety – Where the respondent remains married to her husband and that marriage is not an empty shell – Where the parties did not combine their resources in a concerted effort to mutually improve their financial positon – Declared a de facto relationship never existed between the parties FAMILY LAW – ORDERS – Discussion of the form the orders should take – Where the respondent sought refusal of the declaration sought by the applicant – Where simple dismissal of the specific application for declaration would not necessarily preclude a fresh application that a de facto relationship existed between different dates – Declared pursuant so s 90RD of the Family Law Act that the parties were never in a de facto relationship |
| Family Law Act 1975 (Cth), ss 4AA, 90RD |
| Hayes v Marquis [2008] NSWCA 10 Jonah & White [2011] FamCA 221 Owens & Benson [2014] FamCAFC 243 |
| APPLICANT: | Mr Na |
| RESPONDENT: | Ms Tiu |
| FILE NUMBER: | SYC | 2315 | of | 2014 |
| DATE DELIVERED: | 1 May 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 27, 28 & 29 March 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Winfield |
| SOLICITOR FOR THE APPLICANT: | Brighton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Morahan |
| SOLICITOR FOR THE RESPONDENT: | Chen Shan Lawyers |
Orders
Pursuant to s 90RD of the Family Law Act, it is declared that no de facto relationship (within the meaning prescribed by the Family Law Act) ever existed between the applicant and respondent.
Otherwise:
(a)The Initiating Application filed on 17 April 2014 is dismissed;
(b)The Response to Initiating Application filed on 20 May 2014 is dismissed;
(c)The Application in a Case filed on 24 June 2016 is dismissed;
(d)The Application in a Case filed on 30 August 2016 is dismissed;
(e)The Response to an Application in a Case filed on 26 January 2017 (seeking five orders) is dismissed;
(f)The Response to an Application in a Case filed on 26 January 2017 (seeking three orders) is dismissed; and
(g)Any and all other outstanding applications are dismissed.
Costs are reserved for 28 days.
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 Na & Tiu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2315 of 2014
| Mr Na |
Applicant
And
| Ms Tiu |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant commenced these proceedings seeking property settlement orders under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”), premised on an allegation he shared a de facto relationship with the respondent.
The respondent denied the parties were ever in a de facto relationship which, if true, deprived the Court of jurisdiction to make orders adjusting the parties’ property interests. As a consequence, the dispute was listed for preliminary hearing to determine whether there ever was a de facto relationship between them.
During final submissions the applicant orally amended his claim for relief in the Initiating Application, filed on 17 April 2014, and instead contended for a declaration under s 90RD of the Act in the following terms:
Declaration that the parties resided in a de facto relationship within the meaning of Section 4AA Family Law Act 1975 from 21 July 2006 to 18 October 2012.
At the commencement of trial, the respondent said she simply sought the dismissal of the applicant’s application, which was different from the declaratory relief under s 90RD of the Act she sought in her Response, filed on 20 May 2014, in the following terms:
A declaration that the Applicant and the Respondent were not in a de facto relationship at any relevant time.
The Act prescribes, relevantly, that parties are in a de facto relationship while they are a “couple living together on a genuine domestic basis”, with due regard to all the circumstances of their relationship (s 4AA(1)). Such “circumstances” of their relationship “may” include those features identified by the Act (s 4AA(2)) but, while those features may guide the Court’s conclusion, none are either individually or collectively determinative (ss 4AA(3), 4AA(4)).
The making of a declaration about the existence of a de facto relationship under s 90RD of the Act does not involve the exercise of judicial discretion (see Jonah & White [2011] FamCA 221 at [39]). Rather, it is a factual determination and the applicant seeking the declaration bears the burden of proving, to the requisite civil standard, that a de facto relationship existed between the parties (see Owens & Benson [2014] FamCAFC 243 at [1], [28]). Moreover, the applicant bore the burden of proving all facts about the de facto relationship which are essential to the existence of the Court’s jurisdiction and the exercise of power under Part VIIIAB of the Act.
Evidence
The applicant relied upon:
(a)His affidavit filed on 26 January 2017; and
(b)The affidavit of his son, Mr B, filed on 30 January 2017.
The respondent relied upon her two affidavits filed on 20 and 23 March 2017.
The respondent’s affidavits were filed and served late, so there was some preliminary argument about her entitlement to rely upon them and whether an adjournment was needed. Orders were made enabling the respondent’s conditional reliance upon the affidavits (which conditions the respondent duly met) but, to eradicate any prejudice to the applicant, cross-examination of the respondent was postponed to afford the applicant more time to prepare for it. The parties did not require the publication of reasons for those procedural orders. The applicant’s renewed complaint during final submissions about the prejudice wrought upon him by those orders was a hollow din.
Many evidentiary objections to parts of the parties’ affidavits were sustained.
It was common ground the parties enjoyed a sexually intimate relationship for a number of years, which commenced in or about late 2005 and ended in early 2012, but they each perceived the relationship differently. The applicant honestly felt he and the respondent were a couple living together on a genuine domestic basis, whereas the respondent did not have the same degree of emotional investment in the relationship. She considered they were only boyfriend and girlfriend. The characterisation of the parties’ relationship must be determined objectively rather than subjectively (see Hayes v Marquis [2008] NSWCA 10 at [1], [70]), so their individual beliefs, regardless of how earnestly they held them, were of little moment. Nevertheless, the fervour of their perceptions was liable to colour their recollections.
The applicant deposed to his belief the respondent “promise[d] and assur[ed]” him of a “serious long-term relationship” in the early stages of the relationship, when in fact she merely flattered him about the way he made her feel.[1] Despite their respective existing marriages, the applicant asked the respondent to marry him, which question she artfully avoided answering responsively.[2] When the applicant divorced his wife and sought the respondent’s reciprocal commitment to their relationship, she declined to provide it unconditionally, telling him it depended on her future economic fortunes and proper arrangements for her children.[3] The applicant adduced such evidence to prove the parties’ mutual deep commitment to their relationship, when in fact it objectively exemplified the respondent’s reluctance to commit. The applicant’s evidence demonstrated how he tended to construe events consistently with his zealous desire for a lasting relationship with the respondent.
[1] Applicant’s affidavit, paras 8-9
[2] Applicant’s affidavit, para 26(ix)
[3] Applicant’s affidavit, para 26(xvii)
Despite the applicant’s criticism of the respondent’s lack of veracity, they each gave relatively truthful evidence. Both gave evidence that was generally consistent with their individual recollections, which understandably must, given the passage of time, have evolved to correlate with the manner in which they each preferred their relationship to be remembered. They each tended, on occasions, to tailor their evidence in a manner to bolster or verify their individual perceptions of the relationship, but neither appeared to deliberately fabricate evidence.
The nature of the relationship
The Act permits rather than obliges the consideration of various nominated features of a relationship to help determine its character (ss 4AA(1)(c),(2)), but the task of characterisation makes it is “necessary to consider the evidence as a whole, not under isolated headings” (see Hayes v Marquis at [1], [73]).
The parties’ marriages to other persons and their failure to ever cohabit in a single dwelling are material considerations, but not determinative of whether or not they were in a de facto relationship.
When the parties began their relationship, both were married. The applicant divorced in about October 2006, but the respondent remained married throughout. Their marriages do not preclude a finding that they were in a de facto relationship (s 4AA(5)(b)), but the respondent’s retention of her marriage is relevant because it helps contextualise her conduct towards the applicant.
When they met, the applicant was living with his estranged spouse in their home at Suburb C and the respondent was living with her two teenage children in rental accommodation at Suburb D. The respondent’s husband lived in China, but visited Australia occasionally and, when he did so, sometimes stayed with the respondent and their children. Although the respondent and her husband spent little time in one another’s company, they maintained their joint interests in a business, which they operated in both China and Australia. The respondent asserted she and her husband maintained a sexual relationship and it was common ground she aborted her pregnancy in February 2007. The applicant told the respondent of his past vasectomy and did not contend the pregnancy was conceived with him,[4] so the respondent’s relationship with the applicant was not exclusive.
[4] Applicant’s affidavit, para 17; Respondent’s first affidavit, para 21
Despite the applicant’s many references to the parties having joint homes, they never cohabited and always retained their own separate residence. The absence of their “full-time” cohabitation does not preclude a finding they were in a de facto relationship, because the significance of a common residence to the existence of such a relationship turns on its “nature and extent” (see Hayes v Marquis at [1], [78]-[80]), but the respondent’s steadfast refusal throughout the relationship to permanently occupy a common residence with the applicant is a significant feature of the evidence. She chose to maintain a separate residence; she was not forced to do so by extraneous circumstances.
In about August 2006, some months after the parties’ relationship became sexually intimate, the applicant vacated the C Town property and moved into an apartment he bought in Suburb E. He did so in order to live closer to the respondent, who remained living at Suburb D. Although the Suburb E apartment was purchased in July 2006, the purchase was not complete until August 2006,[5] and the applicant was unable to inhabit it until then. The applicant was the sole legal proprietor,[6] even though the respondent provided him with about $100,000 to assist in his purchase of the property and the furniture for it. The respondent characterised the transaction as a loan, whereas the applicant insisted it was the respondent’s financial contribution towards its acquisition, but neither contended it was necessary to determine that dispute as part of the overall dispute about whether they were in a de facto relationship.
[5] Applicant’s affidavit, para 22
[6] Applicant’s affidavit, para 19
In September 2006, the respondent acceded to the applicant’s request to symbolically recognise their relationship. They each signed a document entitled “Marriage Certificate”, created by the applicant on a computer,[7] they exchanged rings, and photographs were taken of them together dressed in wedding attire.[8] The respondent’s participation in such symbolism was conditional upon the certificate and photographs being kept between them.[9] The “wedding” photographs were hung on the wall of the applicant’s apartment, but the respondent said she only submitted to the applicant doing so because he told her it made the apartment feel more homely. Similarly, the respondent insisted that all other photographs taken of them together should not be shown to outsiders.
[7] Exhibit A2
[8] Exhibit A3
[9] Respondent’s first affidavit, paras 69-75
In July 2008, the respondent and her children moved from Suburb D into a new home she bought at Suburb F.
In about June 2009, the applicant sold his Suburb E apartment and moved into rental accommodation at Suburb G, before buying his own apartment in Suburb G in November 2009, using the net proceeds from the Suburb E sale.[10] Again, his move to Suburb G was motivated by his desire to be closer to the respondent after she moved to Suburb F.
[10] Applicant’s affidavit, paras 19, 25, 26(xxxiii)
While the parties always maintained separate residences, the applicant asserted they usually spent three or four days of each week together, when the respondent’s children were at school. The respondent contended she was too busy with her work commitments to enable that level of interaction between them and said their daytime visits were less frequent.[11] The applicant conceded they only ever spent time together overnight when the respondent’s children were away from her care, which the respondent said occurred only a few times each year.[12] The respondent had remote access to the garages at the applicant’s Suburb E and Suburb G apartments, but the respondent said that was because she did not want her car to be seen at the applicant’s home.[13] The respondent kept some odd items of clothing and personal property at the applicant’s home,[14] but the relatively small amount of such clothing and personal property only tended to verify the parties’ lack of cohabitation, contrary to the applicant’s belief.
[11] Respondent’s first affidavit, paras 7, 8, 13, 15, 76
[12] Respondent’s first affidavit, para 50
[13] Respondent’s first affidavit, para 77
[14] Exhibits A5, A6; Respondent’s first affidavit, para 51
The parties had little to do with one another’s family. The applicant did some odd maintenance jobs around the respondent’s home and occasionally helped her children,[15] but the respondent always introduced him as her “colleague”, since they were colleagues at a Chinese cultural volunteer organisation.[16]
[15] Applicant’s affidavit, paras 26(xviii), 28
[16] Respondent’s first affidavit, paras 95, 121
The applicant deposed the applicant would tell their “mutual friends” they were a couple,[17] but when pressed to elaborate in cross-examination, the applicant could only name one “mutual friend”, who seemed barely an acquaintance, let alone a friend. He was the real estate agent the applicant engaged to sell his Suburb E apartment, with whom the parties once ate at a restaurant. The parties held hands on that occasion, which the applicant conceded was the only sign they gave him as to the nature of their relationship. It was telling that, in a relationship that lasted some six years, the applicant could not nominate a series of people who were genuinely their mutual friends and acquaintances. The applicant admitted in cross-examination the respondent was reluctant to meet other people because she did not want their relationship revealed.
[17] Applicant’s affidavit, para 29(a)
The parties’ relationship was effectively kept secret from everyone, other than the applicant’s adult son and strangers. The respondent was not even introduced to the applicant’s son until 2007 and, thereafter, her association with the applicant’s relatives was intermittent until it ceased in 2011.[18] The respondent was not contradicted over her assertion she repeatedly asked the applicant to tell his relatives they were only boyfriend and girlfriend.[19] Generally speaking, the applicant would avoid being in the respondent’s company when she was with her friends or relatives.[20] The parties did not wear the rings they exchanged when there was any chance of them being seen by members of her family. The applicant conceded he was “very upset” he could not reveal his relationship with the applicant, other than to his relatives and good friends. He conceded the relationship was kept secret from the respondent’s relatives and friends.[21] Even as their relationship began to disintegrate in early 2012, the respondent refused the applicant’s requests to reveal their relationship to her family.[22]
[18] Affidavit of Mr B, paras 8-9, 21
[19] Respondent’s first affidavit, paras 45, 96, 97, 125; Respondent’s second affidavit, para 16
[20] Applicant’s affidavit, paras 26(xviii)(h), 26(xxii), 31
[21] Applicant’s affidavit, para 33
[22] Applicant’s affidavit, paras 38(c), 38(f), 38(h), 42
Throughout their relationship the parties took holidays together, both within Australia and internationally. Aside from trips to China, which were treated quite differently by the parties, they socialised as a couple when on holidays and were unconcerned whether they were regarded as a couple – married or otherwise. The trips to China were different because the respondent demanded that they interact differently so as not to reveal the sexual nature of their relationship to any of her Chinese relatives and friends they might encounter. The applicant respected her wishes. They travelled on separate flights, with the applicant departing Australia after the respondent and returning to Australia before her. They stayed in separate accommodation when visiting City H, China, if there was any chance of encountering her friends and relatives. The applicant stayed in an apartment owned by the respondent, her ownership of which was unknown to her family and friends, while she stayed with family members. The applicant admitted in cross-examination the respondent did not want to be seen with him and wanted to create the impression with her family she was not involved with any man other than her husband.
Despite the respondent’s denial that the parties inter-mingled their financial affairs,[23] there was some evidence of it. They opened a joint bank account in 2006, but the respondent closed it after only a couple of months and there was no material financial activity in the account before its closure.[24] When asked in cross-examination the purpose of the joint account, the applicant simply said he liked the idea of having a joint account. It served no financial purpose.
[23] Respondent’s first affidavit, paras 26, 43, 52
[24] Respondent’s first affidavit, paras 27-28, 33-35
Aside from the joint account, the applicant made use of the respondent’s own account, with her consent. In June 2008, he deposited $490,000 into the respondent’s account,[25] but more than that amount was returned to him by the respondent in September 2008 and November 2009.[26] The applicant also transferred money from the respondent’s account into his own account before withdrawing the money in cash and returning it to the respondent.[27] Although the ultimate purpose of that circuitous process was not satisfactorily explained, the applicant did not contend he was financially prejudiced by those transactions. Even if the applicant intended to thereby imply he helped the respondent with her “business projects”,[28] he admitted he did not “actively participate” in her business on a “day to day basis”.[29] The respondent asserted the applicant did not participate in her business or development projects at all.[30] Although the applicant alleged the parties invested in shares together,[31] it was in fact the respondent trading shares using her own money, albeit perhaps with the benefit of the applicant’s advice.[32] The applicant acknowledged the respondent told him towards the end of their relationship she had “never spent a cent of [his] money”.[33] Any money he spent on credit cards for the respondent’s benefit was reimbursed.[34] Whenever the parties socialised outside of their homes, according to the applicant, they paid “for almost equal number of times” and “did not discuss who paid”.[35]
[25] Applicant’s affidavit, para 18(vii)
[26] Respondent’s first affidavit, para 39
[27] Applicant’s affidavit, paras 18(vii), 18(xiv)
[28] Applicant’s affidavit, para 18(vii)
[29] Applicant’s affidavit, paras 18(iv), 18(x)
[30] Respondent’s second affidavit, para 60
[31] Applicant’s affidavit, para 18(xi)
[32] Respondent’s first affidavit, para 42
[33] Applicant’s affidavit, para 46
[34] Respondent’s first affidavit, paras 17, 85, 146
[35] Applicant’s affidavit, para 15
In November 2011 the applicant purchased an off-the-plan apartment in a Suburb I development project conducted by the respondent.[36] The applicant contended the property was bought by the parties jointly but, when asked in cross-examination whether he conceded the respondent would therefore now have an equitable interest in that property which she could assert against him, he obfuscated. Even if his answer and the manner in which it was given could properly be construed as an admission of her equitable interest (which is doubtful), it was curious why the extraction of the admission was so difficult, given his contention of their joint ownership of assets. Conversely, any denial of her interest in the property was contrary to his case. The respondent certainly had no legal proprietary interest in that apartment. As had always been the case, neither party had any legal proprietary interest in the other’s assets.
[36] Applicant’s affidavit, para 18(xiii)
The parties fell into dispute in February 2012 when the respondent was diagnosed with leukaemia and admitted to hospital for treatment. The applicant admitted their interaction became fractious at that time, which resulted in the respondent successfully obtaining apprehended violence orders against him from about July 2012.[37] The respondent even instituted proceedings against the applicant in the NSW Supreme Court in August 2012 seeking orders to suppress his divulgence of any information about the existence and nature of the parties’ relationship, which proceedings were later settled.[38]
[37] Applicant’s affidavit, para 64; Respondent’s first affidavit, para 162
[38] Applicant’s affidavit, paras 65, 71; Respondent’s first affidavit, para 163
The applicant deposed he started to lose his feelings for the respondent from the end of October 2012,[39] but the respondent alleged the applicant admitted to her in April 2012, while she was in hospital, that he knew the relationship had ended.[40] The respondent executed a power of attorney in favour of the applicant in April 2012 to enable his sale of her apartment in City H, China, which act the applicant contended demonstrated the inherent trust in their relationship, but it was more likely evidence of the respondent trying to rid herself of him. He was pestering her for money. The apartment was worth about AUD$80,000 and she could not rely upon her Chinese relatives to handle its sale because they did not know of its existence.[41]
[39] Applicant’s affidavit, para 68
[40] Respondent’s first affidavit, Annex N (para 29)
[41] Respondent’s first affidavit, Annex N (paras 29-43)
Conclusions and Orders
The applicant set himself an almost impossible task of proving the parties’ relationship existed until 18 October 2012. He chose that date because it correlated with the making of an apprehended violence order against him for the respondent’s protection. The applicant’s counsel submitted that was the date from which he accepted the relationship ended, but that submission was not consistent with the evidence. The applicant gave no such evidence and the respondent asserted the applicant told her, in April 2012, he knew the relationship was over. From February 2012 onwards, the respondent was in hospital and the parties fell into conflict. The parties’ relationship, whatever its proper characterisation, most probably finally broke down sometime between February and April 2012. Consequently, at least in respect of the relationship’s duration, the applicant failed to prove the case for the declaration he sought.
Both parties conducted the trial disclaiming that any declaration could be made in alternative terms to those they each proposed. They denied it was open to the Court to find, for example, that a de facto relationship did exist between them, though for a shorter period than the applicant alleged. Their contentions are rejected. It would be properly open to make a declaration under s 90RD of the Act about the existence of a de facto relationship between the parties and its duration, provided the evidence enabled such findings to be made to the requisite civil standard of proof, in which case it is still necessary to consider whether the parties were ever in a de facto relationship for a shorter period than was contended by the applicant.
In this case, as in most, the weight of the evidence was not all one way. Some aspects of the evidence tended to support the applicant’s contention that a de facto relationship existed: in particular, the sexuality of their relationship, the regularity of their personal interaction over some six years, their joint holidays, and the modest degree to which they used their own money for the benefit of the other. However, the preponderance of evidence did not support the applicant’s contention the parties lived together as a couple on a genuine domestic basis because, in summary:
(a)The respondent demanded secrecy about the sexual nature of the parties’ relationship from start to finish. It was not a case of her only being initially cautious about the public revelation of their association, since she insisted they conduct the relationship clandestinely throughout. Even when it ended, she sought and obtained orders from the NSW Supreme Court to suppress the publication of any information which would tend to publicly reveal the relationship. The relationship had no public notoriety. The parties had no mutual friends. They only displayed affection publicly when in the company of complete strangers, the husband’s adult son and his wife, or one other person they barely knew. The symbolism of the importance of their relationship, manifest in the mock marriage certificate, rings, and photographs, was artificial because such symbolism is usually intended for public display, but in this case it was kept private. Most likely, the respondent decided to indulge and appease the applicant’s desire for the trappings of permanence.
(b)The respondent maintained her relationship with her husband, to whom she was and still is married. Although their personal relationship may be enigmatic and difficult to define, they maintain relations on several different levels – sexual, domestic, and commercial. They still associate, with and without their children, in both Australia and China. They still jointly conduct their business in both Australia and China. The marriage is not an empty shell.
(c)The parties never shared a common household. They associated during daylight hours at their respective homes on occasions during the week, when they would not be disturbed by the respondent’s children. They only ever stayed overnight together when the children were not with the respondent, either because they were visiting their father and relatives in China during school holidays or they were away from the respondent’s home for some other unusual reason. The parties’ cohabitation was not precluded, either temporarily or frequently, by extraneous circumstances beyond their reasonable control, such as distant work commitments or involuntary detention. They did not live together because the respondent refused the applicant’s entreaties to do so. She did not want her children, husband, or family to know of her intimate personal relationship with the applicant. To the extent he was even known to them, the respondent insisted on introducing him merely as a colleague.
(d)At no stage of the relationship did the parties ever jointly acquire property and, although from time to time they each used their money for the benefit of the other, they did not combine their resources in a concerted effort to mutually improve their financial fortunes. It was notable how the parties’ investments and the respondent’s business interests remained segregated.
As the applicant told the respondent, he indeed “devoted” himself to their relationship,[42] but his devotion did not prove its quality. He wanted more from it than the respondent and, despite his ardent wish to believe otherwise, the relationship did not attain the quality of a de facto relationship. It was not imbued with the bilateral dedication of the deeply emotional and financial kind intrinsic to de facto relationships. For that reason, the applicant’s claim for declaratory relief fails.
[42] Applicant’s affidavit, para 51
The question then arises as to the manner of disposition of the proceedings. By reason of the manner in which the respondent amended her case at the commencement of trial, she only sought refusal of the particular declaration sought by the applicant but, if that was the only decree made, an argument might then arise about the applicant’s entitlement to bring a fresh application under s 90RD of the Act for a declaration that a de facto relationship existed between different dates from those he contended in these proceedings. Such a fresh application would be inconsistent with the factual findings now made, but not necessarily estopped by simple dismissal of the application for declaration that a de facto relationship existed between two specific dates. The appropriate manner to dispose of the dispute is to therefore declare, consistently with the evidence, that the parties were never in a de facto relationship, as permitted by the Act (s 90RD(1)) and as originally sought by the respondent.
Since the parties were never in a de facto relationship, no jurisdiction exists to entertain the applicant’s ancillary application for property settlement relief. His Initiating Application will therefore be dismissed, as will all other outstanding final and interim applications. The proceedings will thereby be finalised.
Costs are reserved for 28 days.
I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 1 May 2017.
Associate:
Date: 1 May 2017
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