Reamy and Anor and Milne

[2012] FMCAfam 143

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REAMY & ANOR & MILNE [2012] FMCAfam 143

FAMILY LAW – Question of construction of s.90UM – exercise of discretion required on issue of setting aside BFA – principles of equity applicable to rescission apply – can restituto in integrum be effected or the parties be substantially restored to the status quo – material differences between s.121 Bankruptcy Act 1966 and s.90UM Family Law Act 1975 – consideration of practice relevant to non suit.

Bankruptcy Act 1966 (Cth), s.121
Family Law Act 1975 (Cth), s.90UM

Alani v Kruger (1955) 94 CLR 216
Alexander v Rayson [1936] 1KB 169
Bell Group Ltd (In Liq) v Westpac Banking Corporation (No.9) (2008) 39 WAR 1
Cadogan v Kennett (1776) 2 Cowp 432
Cannane v Cannane Pty Ltd (1998) 192 CLR 557
Combis, Trustee of the Property of Peter Jensen (a Bankrupt) v Jensen [2009] FCA 778
Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17
James v ANZ Banking Group Ltd (1985-1986) 64 ALR 347
Jones v Dunkel (1958) 101 CLR 298
On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation(No.3) [2011] FCA 366
Re Barnes; Ex parte Stapleton [1962] Qd R 231
Reamy & Reamy v Milne & Anor [2010] QSC 283

First Applicant: MR REAMY

Second Applicant: MS REAMY

Respondent: MR MILNE

File Number: BRC 10962 of 2010

Judgment of: Burnett FM

Hearing date: 9 February 2011

Date of Last Submission: 9 February 2011

Delivered at: Brisbane

Delivered on: 24 February 2012

REPRESENTATION

Counsel for the Applicant: Mr M.R. Bland

Solicitors for the Applicant: QBM Lawyers

Counsel for the Respondent: Dr A.J. Greinke

Solicitors for the Respondent: Morgan Conley Solicitors

ORDERS

1. Application filed 22 November 2010 be adjourned for directions to 9.30am on 14 March 2012.

2. Respondent’s application for summary dismissal of the application filed 22 November 2010 be dismissed.

3. Each of the applicant and respondent agree proposed orders for directions for the prosecution of the application on or before 4.00pm on 9 March 2012.

IT IS NOTED that publication of this judgment under the pseudonym Reamy & Anor & Milne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 10962 of 2010

MR REAMY

First Applicant

MS REAMY

Second Applicant

And

MR MILNE

Respondent

REASONS FOR JUDGMENT

Introduction

1. In 2010 Mr Milne was a defendant to proceedings brought against him in the Supreme Court of Queensland by the applicants, Mr Reamy and Ms Reamy.  By those proceedings the applicants sought to recover from Mr Milne and his associated corporate entity, [W] a sum of approximately $350,000.00 damages for negligent investment advice.  His defence was unsuccessful and a judgment of $321,323.78 together the with plaintiff’s costs in the proceeding on an indemnity basis were awarded against Mr Milne and [W].

2. In 2007 Mr Milne left his wife and took up with Ms A, an employee of [W] and commenced a de facto relationship with her.  On or about 20 August 2008 they purchased a house together in joint names and commenced to live in that property.  The property was located at Property C (the Property).  At the time of acquisition of the Property it was subject to mortgage to the Commonwealth Bank of Australia.

3. At about the same time as Mr Milne and Ms A were acquiring the Property the consequences of Mr Milne’s negligent advice to the Reamys were manifesting.  There was nothing in the evidence to demonstrate any causal link between these facts although, as appears from the judgment of Douglas J, both Mr Milne and Ms A were probably aware of the fact of the Reamys’ continued losses being occasioned by advice provided by Mr Milne and [W].[1]

   [1] Reamy & Reamy v Milne & Anor [2010] QSC 283 at [23] and [24].

4. The Reamys commenced proceedings against Mr Milne and [W] in the Supreme Court of Queensland in 2009 and the matter came on for trial on 24 May 2010.  The facts of the case were relatively straightforward and as the judgment of Douglas J reveals the advice given by Mr Milne was egregious and in the circumstances gave rise to the “inevitable conclusion that (Mr Milne and [W]) breached their duty of care to (the Reamys)”.[2]  In preferring the Reamys’ evidence, the Court was in fact persuaded to accept Reamys’ version of events because of an unexplained deletion and addition to a client questionnaire.[3]  That was a matter essential to their success given Mr Milne’s case.  This issue was one clearly alive and made such by the allegations contained in

   
   

   Mr Milne’s and [W]’s pleadings.[4]  Plainly they bore the evidentiary onus on this point which they failed to discharge.

   [2] At [29].

   [3] At [9] – [10].

   [4] At para [11].

5. The significance of that matter would have been, or at least ought to be, apparent to them.  In the context of this application there is no utility in speculating as to why Mr Milne did not cause the evidence to be produced.  Significantly however at the very time this issue would have been at the forefront of Mr Milne’s consideration in the context of the proceedings then due to commence for trial Mr Milne and Ms A entered into a Binding Financial Agreement (BFA) pursuant to the provisions of the Family Law Act 1975.

6. The inevitable outcome of the trial was that the Court preferred the evidence of Ms Reamy on the “critical factual issue in the case [that] is whether, at that meeting, she said anything to Mr Milne to indicate that she earned approximately $70,000.00 per annum.”[5] The Court accepted Ms Reamy’s evidence that she had informed Mr Milne she was unemployed and “not earning much at all.”

   [5] At [9].

7. That issue was significant to the proceeding. Mr Milne and [W] did not call any evidence on the point. Evidence ought to have been available to them to explain the notations on the relevant client questionnaire. Accordingly the probable adverse impact upon the outcome in the proceeding ought to have been apparent to Mr Milne in the final stages of preparation for trial.  Ms A was not a party to the proceeding and one assumes not privy to the tactical issues alive at the commencement of the trial.  However Mr Milne was and accordingly his proffering and completion of a BFA on the day of the trial against that background was undertaken under a cloud of suspicion.  That suspicion was further amplified because the BFA incorporated a schedule of assets, incomes and liabilities for each of Mr Milne and Ms A which on any reading suggests that he was not solvent at the time of its execution.

8. Additionally, not only did Mr Milne’s schedule of assets and liabilities suggest he was insolvent but the terms of the BFA provided that he transfer to Ms A cash of $25,000.00 and his equity in the jointly owned property subject to her assumption of his mortgage liability.  The consideration for this agreement was expressed to be Ms A’s forgoing of rights to claim maintenance pursuant to the Family Law Act 1975 and “any and all rights she has to the assets of the business.”

9. The basis for suspicion was further fuelled because of doubts as to the relative fairness of the transaction given the personal circumstances of the parties, the length of their relationship and the absence of children.  These are matters upon which no evidence has been formally adduced to date to permit a proper assessment of whether the suspicion is well founded.

10. Additionally, and despite the joint property being transferred to Ms A, Mr Milne continues to reside in the residence.

The Issues

1. It is against that background that the Reamys seek orders to have the BFA set aside pursuant to s.90UM(1)(b) Family Law Act 1975 (FLA) on the ground that the BFA was executed either for the purpose of defrauding a creditor or in reckless disregard to the interests of creditors.

2. For the Reamys it is submitted that they ought be granted summary relief based upon the evidence now before the Court.  They contend the evidence as it presently stands largely incorporates material which is uncontested including the judgment of the Supreme Court, the BFA and evidence of the dates of transfer together with affidavits filed on behalf of Mr Milne.  Further the Reamys contend that there is no need for a trial and that the uncontested evidence is sufficient to support a conclusion that the BFA was entered into for the purpose of defeating a creditor or reckless to the interests of creditors thereby enlivening the Court’s power to set aside the BFA. 

3. For Mr Milne it was contended that as a matter of proper construction of s.90UM either:

   a)The respondents have no case to answer as the evidence does not disclose grounds under s.90UM(1)(b)(i) or (ii) justifying an order setting aside the BFA; and/or

   b)If a prima facie case exists the matter must go to trial as any order under s.90UM(1) is a discretionary one able to be made only after consideration of all the circumstances.

The Legislation

1. Section 90UM relevantly provides:

   “Section 90UM

   Circumstances in which court may set aside a financial agreement or termination agreement

   (1)  A court may make an order setting aside, for the purposes of  this Act, a Part VIIIAB financial agreement or a Part VIIIAB termination agreement if, and only if, the court is satisfied that:

   (a)  the agreement was obtained by fraud (including non-disclosure of a material matter); or

   (b)  a party to the agreement entered into the agreement:

   (i)  for the purpose, or for purposes that included the purpose, of defrauding or defeating a creditor or creditors of the party; or

   (ii)  with reckless disregard of the interests of a creditor or creditors of the party; or

   …

   (2)  For the purposes of paragraph (1)(b), creditor , in relation to a party to the agreement, includes a person who could reasonably have been foreseen by the party as being reasonably likely to become a creditor of the party.

   …

   (6)  A court may, on an application by a person who was a party to the Part VIIIAB financial agreement that has been set aside, or by any other interested person, make such order or orders (including an order for the transfer of property) as it considers just and equitable for the purpose of preserving or adjusting the rights of persons who were parties to that financial agreement and any other interested persons.

   …

   (9)  The court must not make an order under this section if the order would:

   (a)  result in the acquisition of property from a person otherwise than on just terms; and

   (b) be invalid because of paragraph 51(xxxi) of the Constitution.

   For this purpose, acquisition of property and just terms have the same meanings as in paragraph 51(xxxi) of the Constitution.”

How is s.90UM to be construed? Does it give rise to a discretion?

1. It is accepted by the respondents that the terms of s.90UM FLA are broader than those provided for in s.121 of the Bankruptcy Act 1966 (Cth). That is to say, for the purposes of s.90UM all that need be demonstrated is an agreement entered “for the purpose or for purposes that included the purpose of defrauding or defeating a creditor or creditors of the party.”[6]  As Collier J (FCA) noted in Jensen the provisions of the FLA contemplate broader grounds for intervention than the provisions of s.121 of the Bankruptcy Act 1966.[7]

   [6] Combis, Trustee of the Property of Peter Jensen (a Bankrupt) v Jensen [2009] FCA 778 at 30 per Collier J.

   [7] At [30].

2. However in this case the respondents contend that even if the preconditions are met which may enliven power under s.121 of the Bankruptcy Act 1966 the position under s.90UM is different. They noted that the opening words of s.90UM(1) provide “a Court may make an order setting aside.”  They submit that the use of the permissive word “may” indicates that the setting aside is not automatic but involves an exercise of discretion by the Court.

3. In support of this contention the respondents refer to the secondary power enlivened under s.90UM(6) which relevantly provided that upon an order setting aside a financial agreement that the “Court may, on an application by a person who is a party to the … financial agreement that has been set aside, or by any other interested person, make such order or orders … as it considers just and equitable …” The respondents contended that even if the prerequisites for the exercise of the power under s.90UM(1) were made out and the Court then has to exercise a discretion whether to set aside the financial agreement. Then it must further and separately consider whether to order a transfer of property.[8]

   [8] Respondent’s submission at para.20.

4. In other words the discretion enlivened under s.90UM(6) arises only after the “financial agreement … has been set aside” pursuant to subsection (1).

5. I agree with the respondent’s submission in that employing the permissive “may” in each of s.90UM(1) and s.90UM(6) the relief provided for in each instance is discretionary with the discretion being enlivened upon the satisfaction of respective conditions.

6. I consider the respondent’s contention that an analogy with equity is sound, in this instance particularly, because s.90UM(1) seeks to discharge the contract on grounds which have form in equity and not law. Likewise s.90UM(6) proceeds from the premise of rescission, the customary equitable remedy available to a party unfairly or unconscionably induced into a contract. That is to say, the effect of the initial order is to dissolve the contract ab initio. With the contract then having been dissolved, the FLA enlivens the rights of the parties for such an order or orders as it considers just and equitable. This invites a consideration of the general principles applicable to that concept under the Family Law Act.

7. This approach is entirely consistent with the principle of restitutio in integrum which requires that upon termination of an executed contract in circumstances where such a contract is deemed to have never been made then each party must get back what he has given under the contract or in other respects be put in the same position as if there had been no contract.[9] However, and more significantly for the purpose of construing the power under s.90UM(1) the remedy is discretionary in the sense that it would only be afforded if, despite precise restitutio in integrum not being possible “… the situation is such that, by the exercise of its powers, including the power to take accounts of profits and to direct inquiries as to allowances proper to be made for deterioration, it can do what is practically just between the parties, and by so doing restore them substantially to the status quo.”[10] That matter invites inquiry and in my view informs the Parliament’s inclusion of the word “may” in s.90UM(1).

   [9] Meagher, Gummow and Lehane, Equity, Doctrines and Remedies 4^th ed at 24-040.

   [10] Alani v Kruger (1955) 94 CLR 216 at 223-224.

8. Although the remedy of rescission is one only available to the parties of a contract the plain import of s.90UM is to extend the operation of those principles to third parties (in this case creditors) in the event of demonstrated unconscionability (in this case being by a contractual arrangement intended to defraud or defeat their rights). However as noted above their rights are subject to the customary discretionary considerations required by equity.

9. Plainly in a case such as this where following the entry into the BFA the parties to that transaction altered their respective interests including their financial interests the matter of restoration of the status quo is enlivened and is relevant in equity and must be considered.

10. It follows in my view that s.90UM(1) enlivens a discretion in the Court to entertain the relief provided for in ss.1 upon being satisfied of the matters identified in ss.(1)(b)(i) or (1)(b)(ii) and a right to relief under that provision it is not merely a matter of satisfying those matters simpliciter.

11. In this case a question remains as to whether the discretion under s.90UM(1)(b)(i) or (1)(b)(ii) has been enlivened. If a case can be made for the favourable exercise of discretion under subsection (1) the court would then proceed to consider the exercise of a discretion under subsection (6).

Summary Judgment – No Case

1. The applicant seeks summary judgment. However for the reasons I have outlined above I do not consider the application is one capable of summary determination, until the applicants indicate their intentions on adducing further evidence to address the discretionary question requiring consideration pursuant to s.90UM(1). Given my view of what is required by s.90UM(1) the application presently fails to address the question of whether or not upon the setting aside of the agreement the respondent can either effect precise restitution in integrum, or if not, do what is practically just between the parties to restore than substantially to the status quo.  That would in fact include a consideration of a number of the matters identified by Dr Greinke in his outline.

2. Much of the respondent’s response to the application for summary judgment was directed to the issue of fraud which I address below.  However before doing so I note the respondent also seeks an order for “no case.”  At this stage they have not indicated any “election.”  Arguably the approach adopted by their submissions suggests that if put to an election they would elect to call evidence.  Arguably I should not rule on a no case submission in the absence of an election; Alexander v Rayson [1936] 1KB 169 at 178; Jones v Dunkel (1958) 101 CLR 298 at 330.

3. However there is some dicta to suggest such a practice is not available in the Federal Courts: James v ANZ Banking Group Ltd (1985-1986) 64 ALR 347 at 403. As a matter of fairness I do not think I ought rule upon the matter until the applicants have considered whether or not they intend to call evidence. Plainly the respondent’s attitude to that tactic may be affected by the applicants’’ attitude to and provision of further material.

4. The respondents contend that in any event the application ought be summarily dismissed because, given the difficulties associated with assessment of factors following the executory phase of the BFA, the prospects of a favourable exercise of the discretion are far fetched and fanciful. I do not accept that to be the case. Until the parties have been afforded an opportunity to address the factual matters required no forecast on prospects can be made. Plainly if the applicant does not do more a question may arise. However that will be tempered by an assessment of what the applicants can reasonably do having regard to the fact that they were not privy to the BFA. In any event they should be afforded an opportunity to consider their position given my ruling on s.90UM(1) before the application be summarily determined against them.

5. The respondents contend in any event that the applicant’s application ought be non suited as the applicant’s evidence does not address the requisite matters for operation of s.90UM, and in particular that one of the purposes of a party to the BFA, that being Mr Milne, was the purpose of defrauding or defeating a creditor or acting with reckless disregard to the interests of a creditor.

6. On the point of fraud the respondents rely upon the observations of the High Court in Cannane v Cannane Pty Ltd (1998) 192 CLR 557 where at 566-67 Brennan CJ and McHugh J, said speaking of s.121(1)[11] of the Bankruptcy Act 1966:

   “[12] Although the party impugning the disposition of property must show an actual intent to defraud creditors at the time of the disposition, the intent may be inferred from the making of a disposition which, to adopt the words of Lord Hatherley LC in Freeman v Pope, “subtracts from the property which is the proper fund for the payment of [the] debts, an amount without which the debts cannot be paid”.  The “proper fund” may consist in assets out of which future creditors as well as present creditors would be entitled to be paid a dividend in respect of what is owing to them.  Therefore a subtraction of assets which, but for the impugned disposition, would be available to meet the claims of present and future creditors is material from which an inference of intent to defraud those creditors might be drawn.  Whether that inference should be drawn depends upon all the circumstances of the case.

   [13] If property be disposed of by sale and the sale price received by the disponor is equal to the true value of the property at the time of the disposition, the creditors have an undepleted fund against which to prove their debts.  But if the property is sold for an undervalue or is given away, that fact is relevant to the intent to be attributed to the disponor in disposing of the property.  The value of the property at the time of disposition may reflect, of course, the prospect of its future increase or decrease in value.  But disposition of property at an undervalue is only a fact from which, dependent on the surrounding circumstances, an inference of fraudulent intent may be drawn.  In Williams v Lloyd; In re Williams, a majority of the Court declined to draw that inference when the disponor was in a financially sound position and transferred property to his wife and children because his wife sought to have the family property preserved against the hazard of loss by her husband.

   [14] Section 121 is not enlivened merely by showing that the disposition has reduced the assets available to the creditors when the disponor is adjudicated bankrupt.  It is the disponor’s intent to deprive creditors of assets against which (or against the proceeds of which) they would otherwise be entitled to prove their debts that enlivens the operation of s.121.  As Dixon CJ said in Hardie v Hanson:

   “The phrase ‘intent to defraud creditors of the company’ suggests that present or future creditors of the company will, if the intent is effectuated, be cheated of their rights.”

   [11] “The then extant s.121(1) Bankruptcy Act provided: “Subject to this section, a disposition of property…with intent to defraud creditors, not being a disposition for valid consideration…is…void as against the trustee in bankruptcy.”

1. The respondent contended that where their Honours referred to the “subtraction” it was not a reference to any disposition of property.  They submitted that in Cannane Brennan CJ and McHugh J had observed where property is sold at a value equal to the true value of the property the fund against which creditors can prove their debt is “undepleted” which matter addresses “subtraction”. However as counsel for the respondent openly conceded in oral submissions this matter is only one of many relevant to drawing the conclusion of fraudulent intention.  That is to say, its absence is not fatal to such a conclusion of intention to defraud citing Cadogan v Kennett[12] where Lord Mansfield stated that:

   “… The question, therefore, in every case is, whether the act done is a bona fide transaction, or whether it is a trick and connivance to defeat creditors.”

   [12] (1776) 2 Cowp 432

2. It was contended that after considering Cannane and subsequent authorities what must be shown is “some subjective element approaching dishonesty.”[13]  That is an actual dishonest intention must be established.

   [13] Bell Group Ltd (In Liq) v Westpac Banking Corporation (No.9) (2008) 39 WAR 1 at [9124] to [9141].

3. It is well settled that whether the existence of such an intention should be inferred from the circumstances of a case is a question of fact.[14]  As matters presently stand the only evidence supporting intention is the inference contended for from the judgment of the Supreme Court and the circumstances of the BFA.  In his submissions the respondent contended that those matters alone are not sufficient to objectively demonstrate such a fraudulent intention.  He contended that at best the date of completion of the BFA is “suspicious”.  Significantly however he contended that what is fatally absent from the evidence is any suggestion that the financial agreement represented an undervalue of the property relative to the obligations incurred in the rights abandoned by Ms A. It is plainly correct that such evidence is absent, many of those matters having been touched upon in the recitals to the BFA but not particularised therein and more importantly, addressed in evidence.

   [14] Re Barnes; Ex parte Stapleton [1962] Qd R 231 at 237 per Gibbs J.

4. However the BFA raises many issues which if answered could lead to a conclusion of actual intention to defeat or defraud creditors.  For instance given Ms A was also an employee of [W] and one assumes in receipt of income and had no dependents the matter of her reasonable needs are not evident.  It is not inconceivable that the mutual acknowledgements as to “need” contained in the recitals are a contrivance.  For instance it is well settled that courts will look to the real substance of the relationship in question.  In Curtis v Perth and Fremantle Bottle Exchange Co Ltd (1914) 18 CLR 17 at [25] the Court said:

   “Where parties enter into a bargain with one another whereby certain rights and obligations are created, they cannot by a mere consensual label alter the inherent character of the relations they have actually called into existence.  Many cases have arisen where courts have disregarded such labels because in law they were wrong and have booked beneath them to the real substance.”

5. See also Hollis v Vabu Pty Ltd (2001) 207 CLR 21 and On Call Interpreters and Translators Agency Pty Ltd v Commissioner of Taxation(No.3) [2011] FCA 366 as more recent illustrations. There does not appear to be any logical reason why the principal articulated in those authorities ought not inform the approach in this instance despite the different legislative arrangements under review they being decisions made in an industrial context.

6. Likewise having regard to the respective assets and liabilities of each of Mr Milne and Ms A, the reasonable obligations of Mr Milne to make provision for Ms A is a matter warranting explanation.  The agreement in substance provides for the transfer of $25,000.00 together with a half share in the property with an approximate value of $252,000.00 plus home contents and furniture in exchange for the discharge of a contingent maintenance obligation arising from a short relationship with no dependent children.  No evidence addresses whether this arrangement broadly accords with what might be expected on an application of the legislation to the facts in question.

7. Furthermore at the time of the agreement (excluding the contingent liability related to the litigation) the negative equity of Mr Milne was $223,000.00 and Ms A $310,000.00 raising prima facie issues about capacity to pay maintenance.

8. Additionally the better part of Mr Milne’s liabilities, aside from his share in the mortgage on the property, relate to miscellaneous creditors including solicitors, the ATO, [W] and a significant number of family creditors including his former wife.  The creditors of Ms A, aside from her interest in the mortgage on the property, relate principally to loans on investment properties.  The circumstances surrounding their acquisition and, by inference, Mr Milne’s obligations directed to Ms A in respect of such properties is at this time unknown.

9. In summary as matters now stand the circumstances surrounding the entry into the BFA when regard is had to: the then extant litigation which objectively appeared to have poor prospects; the background circumstances of each of Mr Milne and Ms A which form the basis of their assets and liabilities; and, the general circumstances of their preceding relationship, lend support to the contention that the BFA was indeed entered into with an intention to defeat or defraud Mr Milne’s creditors.  Of course further evidence would need to be adduced and Mr Milne and Ms A would be required an opportunity to address those matters.

10. In his submissions counsel for the Reamys indicated that it was not then their intention to adduce further evidence.  Understandably the Reamys do not wish to throw good money after bad pursuing fruitless litigation.  But that should not be the end of it.  As the matters presently stand I accept that it is arguable whether an inference of fraud is available to be drawn.  For such an inference to be drawn the factors which I have addressed above and which no doubt would be readily available by third party disclosure and which might lend support to such an inference also need to be considered.

11. The applicants should be permitted an opportunity to adduce such further evidence as might be relevant to that matter.  Plainly there appears to be a case to answer although in my view it requires further embellishment in the material particulars some of which I have addressed.  Likewise there may be an innocent explanation by the respondent.

12. In any event if the respondent proposes to run a no case submission and such is available he should be put to his election. 

Conclusion

1. In conclusion I consider s.90UM gives rise to a discretion and that the relief contended for cannot be automatically provided upon satisfaction of the requisite intention. From the material it appears that the applicants have demonstrated a prima facie case and sufficiently strong to resist an application for summary dismissal. The evidence however is not sufficient to warrant the relief contended for although further inquiry may establish such other facts as are necessary to support the inference. If after further evidence is provided by the applicants the respondent wishes to pursue a no case submission then before such a case is determined he ought to be put to his election. Otherwise he should file such material as is necessary to answer the applicants’ claim.

Orders

1. Application filed 22 November 2010 be adjourned for directions to 9.30am on 14 March 2012.

2. Respondent’s application for summary dismissal of the application filed 22 November 2010 be dismissed.

3. Each of the applicant and respondent agree proposed orders for directions for the prosecution of the application on or before 4.00pm on 9 March 2012.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Burnett FM

Date:  24 February 2012