RILEY & RILEY
[2015] FamCAFC 152
•5 August 2015
FAMILY COURT OF AUSTRALIA
| RILEY & RILEY | [2015] FamCAFC 152 |
| FAMILY LAW – APPLICATION FOR LEAVE TO APPEAL – Where the appellant seeks leave to appeal interlocutory orders made in relation to the production of documents by the respondent for the purposes of property settlement proceedings – Where the appellant asserts that leave should be granted on the basis of error of principle and significant disadvantage – Where, in considering whether there had been an error of principle, the Full Court considered the grounds of appeal and determined no such error had been established – Where the Full Court further found that the orders caused no significant disadvantage or substantial injustice to the appellant – Application for leave to appeal dismissed – Appellant ordered to pay the respondent’s costs. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) – r 13.22(1)(e) |
| APPELLANT: | Ms Riley |
| RESPONDENT: | Mr Riley |
| FILE NUMBER: | SYC | 4900 | of | 2011 |
| APPEAL NUMBER: | EA | 76 | of | 2014 |
| DATE DELIVERED: | 5 August 2015 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn and Strickland JJ |
| HEARING DATE: | 19 August 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: LOWER COURT MNC: | 30 August 2013 [2013] FamCA 994 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lloyd SC |
| SOLICITOR FOR THE APPELLANT: | Blanchfield Nicholls Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE RESPONDENT: | Diamond Conway Lawyers |
Orders
The time for the wife to file an application for leave to appeal the orders made by the Honourable Justice Stevenson on 30 August 2013 be extended nunc pro tunc to 4 July 2014.
The application for leave to appeal referred to in Order 1 of these orders be dismissed.
The application by the wife filed on 1 August 2014 to adduce further evidence be dismissed.
The application by the husband to adduce further evidence contained in a response filed on 12 August 2014 be dismissed.
The wife pay the costs of the husband of and incidental to the application for leave to appeal referred to in Orders 1 and 2 of these orders, with such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Riley & Riley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 76 of 2014
File Number: SYC 4900 of 2011
| Ms Riley |
Appellant
And
| Mr Riley |
Respondent
REASONS FOR JUDGMENT
This is an application for leave to appeal and if leave is granted, an appeal by Ms Riley (“the wife”) against orders made by Stevenson J on 30 August 2013 in relation to the production of documents by Mr Riley (“the husband”) for the purposes of property proceedings which are pending between the parties in the Family Court of Australia and which were instituted by the wife on
5 September 2012.
According to the primary judge’s reasons in relation to the orders now sought to be appealed, the husband holds interests in a number of companies which operate in the travel industry under the umbrella name “M”. All of these companies are registered in foreign jurisdictions. After the parties separated in September 2004, the husband continued to conduct the businesses without any input or intervention from the wife at ([4] – [6]).
APPLICATIONS BEFORE THE PRIMARY JUDGE
On 10 January 2013, the wife filed an application in a case in which she sought the following orders:
1.That within 28 days the Respondent Husband provide to the Applicant Wife the documents set out in the request for documents marked Annexure A.
2. That within 35 days of compliance by the husband with the documents referred to in Annexure A, the wife be at liberty to request answers to specific questions in accordance with the Family Law Rules.
3. That the husband to pay the wife’s costs of and incidental to this application.
Annexure A to the wife’s application in a case read as follows (emphasis added):
A.In respect of each of the following entities:
a.[Z Ltd] (incorporated in [City AA], [Country T])
b.[E Ltd] (formerly [E] ([Country T]) Limited) (incorporated in [City V] in December 2003)
c.[C Ltd] (incorporated in [City V] in April 2003)
d.[D Ltd] (formerly [D] ([City V – Country T]) Limited, formerly [D Country T Limited]) (incorporated in [City V] in August 2008)
e.[DD Ltd] (incorporated in [City V])
f.[EE Pty Ltd] (incorporated in Australia)
g.[JJ Ltd] ([City V]) (incorporated in [City V] in August 2008)
h.[JJ Ltd] ([City V]) (incorporated in [Country T])
i.[E Ltd] (formerly [E Ltd] ([Country S])) (incorporated in [City V] in September 2001)
j.[G Ltd] (incorporated in [City V])
k.[G Ltd] (incorporated in [Country P])
l.[H Ltd] (incorporated in [City V] in April 2004)
m.[H Ltd] (incorporated in [Country N])
n.[II Ltd] (incorporation in [Country Q] in August 2010)
o.[GG Ltd] (incorporated in [Country S])
p.[HH Ltd] ([Country R]) (incorporated in [Country R] in July 2010)
q.[I Ltd] (incorporated in [City V] in August 2001)
r.[J Ltd] (incorporated in [Country U])
s.[K Ltd] (incorporated in [City V] in October 1996)
t.[K Ltd] (incorporated in [Country BB])
u.[L Ltd] (incorporated in [City V] in June 2009)
v.[L Ltd] (incorporated in [Country CC])
w.[FF Ltd] (incorporated in [City V])
Please provide the following documents:
1.Audited financial statements for the years ended 31 December 2004 (or if incorporated later than 2004, then from the date of incorporation) to 31 December 2012.
2.Detailed trading and profit and loss accounts for the years ended 31 December 2004 (or if incorporated later than 2004, then from the date of incorporation) to 31 December 2012.
3.Management Accounts for the period from Jan 2012 to December 2012.
4.Any document or documents evidencing Analysis by vendor of “Cost of Services” indicating any related parties in the Profit and Loss Account for each year from 2004 (or later date of incorporation) to 2011 and for the period Jan to December 2012.
5.Any document or documents evidencing analysis by vendor of expenses included in overheads/administrative expenses indicating any related parties in the Profit & Loss Account for each year from 2004 (or later date of incorporation) to December 2012.
6.Any document or documents evidencing analysis of staff costs, directors’ emoluments and dividends by employee/director/shareholder for each year from 2004 (or later date of incorporation) to Dec 2012, including where applicable salary and bonuses shown separately for each employee.
7.Any document or documents evidencing profit forecasts and projections for the years 2012 to 2014.
8.Minutes of all meetings of board of directors from Jan 2004 (or later date of incorporation) to date (not redacted).
9.Company tax returns and assessments for the years 2004 to date.
10.Copy of any Shareholders Agreements (not redacted).
11.Copy of Memorandum & Articles or equivalent.
B.In addition to the above companies, please provide any documents providing particulars of any other companies in which [Mr Riley] has a beneficial interest, including (but not limited to) the nature of his interest, the nature of the company’s business, its financial results since 2004 and remuneration or dividends he has received or is receivable by him from such company; including but limited to [AC Ltd].
C.Please provide copies of correspondence, memos, emails, faxes, heads of agreement, memoranda of understanding between [M Group], (being those entities referred to at “A” above) and [BD Pty Ltd] in relation to the proposed acquisition of the [M Group] by that entity.
D.Please provide copies of all valuations of [M Group] prepared in the last five years.
E.Please provide [Mr Riley’s] personal tax returns and tax assessments for the tax years 2004 to 2012 for each jurisdiction in which he is liable to tax (with the exception of [Mr Riley’s] Australian tax returns for 2008 to 2009 and his [Country U] tax returns for the years 2008 to 2010).
F.Please provide documents evidencing particulars of all shareholdings held on trust for [Mr Riley] and provide details of trusts of which [Mr Riley] is a trustee or beneficiary of a trust. Please provide copies of all trust deeds or trust instruments and financial accounts prepared in respect of any such Trust.
G.Please provide particulars of any other parties with whom the group has in the last 5 years or is currently negotiating a potential trade sale, strategic investment, etc of any or all companies within the [M Group] including the names of the parties, the status of negotiations reached, offers made, valuations and, where applicable, reasons why negotiations were discontinued.
H.In relation to any proposed Initial Public Offering (“IPO”) of the [M Group], please confirm:
i.The planned timetable for the IPO and the expected host stock exchange;
ii.Details of the steps already taken to pursue an IPO;
iii.The expected nature of the restructuring of the group necessary to facilitate an IPO and the timescale for the restructuring;
iv.The names of advisors, investment banks and underwriters who have been selected or are under consideration;
v.The companies in the group which will form part of the IPO group;
vi.Copies of any indicative valuations for the IPO; and
vii.Details of legal, accounting, financing and other issues which will require addressing prior to a successful IPO.
On 1 March 2013 the husband filed a response to the wife’s application in which he sought the following orders:
1.That in respect of Orders 1 to 3 of the Wife’s Application in a Case:
1.1As to Order 1:
1.1.1That the Husband produce the documents listed in Annexure A.
1.1.2That the Husband be excused from producing the documents listed in Annexure B.
1.2That Orders 2 and 3 be dismissed.
2.That the Wife pay the Husband’s cost of and incidental to this Application.
It will thus be seen that the husband was prepared to produce certain documents (being those listed in Annexure A to his response). However, it will also be seen that he sought to be excused from producing certain documents (being those listed in Annexure B to his response). We do not consider it necessary to set out in these reasons the lists of documents which were annexures A and B to the husband’s response.
The wife’s application was heard by Stevenson J on 25 June 2013.
DECISION OF THE PRIMARY JUDGE
Her Honour commenced her reasons for judgment by setting out the applications which were before her (as we have done above). She then explained (at [10]) that the husband had provided some documents and had agreed to provide certain others, and that she would not make any order about the documents already produced or agreed to be provided.
Her Honour then explained (at [13]) that the husband objected to the production of various categories of documents sought by the wife and that, based on his affidavits and written submissions, the reasons for his objections “seem[ed] to be” that:
1)the directors of ten companies (the names of which her Honour listed) refused to provide the information sought by the wife;
2)the wife’s request for production of documents in addition to those already made available was “oppressive and vexatious”;
3)additional documents in relation to “[M] ([Country T])” could not be disclosed to the wife “for the safety of persons involved in [M] [Country T] operations;”
4)certain companies identified in the wife’s request were “dormant and non-trading”, and
5)certain of the documents requested had already been made available to the wife.
We will, where necessary later in these reasons, refer in more detail to her Honour’s conclusions in relation to certain of these categories of objections by the husband. It is sufficient at this point to say by way of summary that in relation to each of those categories, her Honour concluded (at [14] to [25]) that:
1)she had not been persuaded by the wife that any of the ten companies in question was a puppet or alter ego of the husband and that, therefore, the husband should not be compelled to produce the documents sought in relation to such companies;
2)she was not satisfied that the husband had made out his objection that the wife’s request was “oppressive and vexatious”;
3)she was not prepared to excuse the husband from compliance with the request concerning the documents relating to the M (Country T) operation because he had provided no evidentiary justification for his objection based on safety concerns;
4)the issue of whether certain companies named in the wife’s request were “dormant and non-trading” was better left to the single expert who was to value the entities in due course; and
5)it was for the parties and their lawyers to determine what documents had been provided to the wife.
Next (at [26] – [28]) her Honour discussed the position in relation to certain shares held on trust for the husband and she concluded that the wife should be provided with copies of the trust documents.
Her Honour then considered (at [29] to [33]) documents which related to the proposed sale of M, being the documents sought in paragraphs B, C, D, G and H of Annexure A to the wife’s application. Her Honour refused to order the production of any of the documents in these categories for a range of reasons, including that the documents did not exist, or would be difficult to identify, or that their production to a stranger to the sale negotiations could create a risk of adverse commercial consequences.
Finally, her Honour considered the issue of the husband’s Australian and Country U personal income tax returns, certain of which he had been “unable to locate”. Her Honour concluded (at [34]) that that “vague excuse” was not a sufficient excuse for non-production and that she would order the husband to produce all tax returns sought by the wife.
Her Honour’s orders were then in the following terms:
(1) That the husband produce the following documents to the wife:
1.1
A Ltd (Formerly B Ltd)
· AFS for the years 31 Dec 2007 to 31 Dec 2011
C Ltd
· AFS for the years 31 Dec 2008 and 2009
D Ltd
· AFS for the years 31 Dec 2009 to 31 Dec 2011
E Ltd (Formerly F Ltd)
· AFS for the years 31 Dec 2004 to 31 Dec 2012
G Pty Ltd(Incorporated in Country P)
· AFS for the years 31 Dec 2005 to 31 Dec 2011
H Ltd (incorporated in City V)
· AFS for the years 31 Dec 2004 to 31 Dec 2011
I Ltd
· AFS for the years ended 31 Dec 2004 to 31 Dec 2011
J Ltd
· AFS for the years ended 31 Dec 2005 to 30 Dec 2011
K Ltd (incorporated in City V)
· AFS for the years ended 31 Dec 2004 to 31 Dec 2011
L Ltd (Documents soon to follow)
Management Accounts
· Country N, Country O, Country P, Country Q, Country R, Country S, Country T and Country U.
Document(s) evidencing profit forecasts and projections for the years 2012 and 2014
· M Group Annual Sales Chart (1997 to 2014); and
· M Group Annual Sales Chart by Country (1997 to 2014).
Company Tax Returns (Documents soon to follow)
· Estimates for B Ltd (Country U) for 31 December 2008, 2009 and 2010 already provided (see Tab 1).
Copy of Memorandum & Articles of Association
· W Ltd by C Pty Ltd;
· Y Ltd; and
· K Ltd (amended on 30/11/11)
· X Ltd.
Documents relating to the husband’s beneficial interests
Valuations of M Group
· K Pty Ltd (2006); and
· J Pty Ltd (2005 & 2006).
1.2documents evidencing particulars of all shareholdings held on trust for the husband, including trust deeds or instruments and financial accounts prepared for any such trust
1.3copies of all of the husband’s Australian and Country U personal income tax returns for the years 2004 to 2012 inclusive.
THE MATTERS RELIED ON FOR LEAVE TO APPEAL
The matters relied on by the wife for leave to appeal her Honour’s orders are as set out in the wife’s notice of appeal:
·first, the grounds of appeal record the errors of principle infecting the trial judge’s judgment; and
·second, refusal of relief will result in the appellant being significantly disadvantaged in her ability to properly prosecute her case and will preclude the court from having the benefit of her case being fully and/or adequately presented.
Given that the first of the matters relied on in support of the application for leave to appeal relies on errors of principle which the grounds of appeal assert were made by the primary judge, it is necessary for us to consider these grounds to ascertain what, if any, errors of principle may have been made by her Honour.
CONSIDERATION OF THE GROUNDS OF APPEAL
The first ground of appeal asserts that the primary judge “failed to give proper, or adequate, reasons in the exercise of her discretion when considering the provisions of Rule13.22(1)(e)” of the Family Law Rules 2004 (Cth).
Rule 13.22(1)(e) provides:
13.22(1)A party may seek an order that:
…
(e)the party be partly or fully relieved of the duty of disclosure.
It emerged, particularly from the written submissions of the wife, that this ground was directed to her Honour’s having upheld the objection of the husband to the production of documents relating to ten particular companies because the directors of those companies refused to provide information sought by the wife.
The full text of her Honour’s reasons for upholding this particular objection to production by the husband is as follows (emphasis in original):
15.The husband annexed to his affidavit of 19 April 2013 copies of Minutes of Directors’ Meetings in respect of all of these companies, at which they resolved to provide no documents to the wife. In each case, the Minutes recorded that the husband declared an interest and left the room while the matter was discussed and the directors voted against production of documents to the wife.
16.On behalf of the wife, it was contended essentially that the directors’ refusal of consent is no bar to the husband producing any such document which in fact “is or has been in his possession or under his control for the purposes of Rule 13.7”. It was submitted that “the fact of the refusal of the directors does not render the husband ‘unable to produce’ but results in the matter being one in which it is within the court’s discretion as to whether an order will be made pursuant to Part XIII Rule 22(1)(e)”. Part 13 Rule 22 [sic] allows the court a discretion to relieve a party of the obligation to disclose documents in some circumstances.
17.In my view, the wife failed to establish that the documents which she now seeks in respect of these companies are or have been in the husband’s possession or control. The fact that the husband previously provided similar material to the wife does not establish that he has had or is currently in possession of the documents now named in the Application in a Case.
18.Additionally, a number of persons and entities other than the husband are shareholders in these companies. Nothing in the wife’s evidence persuaded me that any of these companies are a puppet or alter ego of the husband. In my view, those persons and entities are entitled to make such decisions as they see fit in relation to the management of the companies.
19.These considerations persuade me that there should be no order to compel the husband to produce the documents sought by the wife in relation to these companies.
The essential submission made in support of this first ground of appeal is that her Honour had exercised the discretion to excuse the husband from disclosure of the documents sought because the wife had failed to establish that the documents were in the husband’s possession or control, but that her Honour had given no reasons for concluding that the husband, being a director of all the companies, would not in the ordinary course of business be in possession or control of the documents in question.
For our part, we have no difficulty in discerning her Honour’s reasons for excusing the husband from producing the documents in relation to the companies in question. Those reasons emerge clearly from the paragraphs in her judgment set out at [20] above. Accordingly, the reasons challenge contained in the first ground of appeal could not succeed.
The second ground of appeal asserts that her Honour misdirected herself in making a finding “that other shareholders of the various companies under consideration were able to make decisions as they saw fit in relation to the management of the companies when the issue at hand related to the husband’s obligation and capacity to produce the relevant documents”.
We can only say in relation to this ground that nothing put to us in support of it has persuaded us that, in the exercise of her discretion under r 13.21(1) to relieve the husband from his duty of disclosure, her Honour was not entitled to have regard to the attitude of the other persons who had interests in the companies in question. Thus we could not find substance in the ground.
The third ground of appeal asserts that her Honour erred “in assuming there was evidence available to her, that a single expert (if appointed) would be in possession of the documents objected to by the husband” enabling him, or her, to complete a valuation or that some other event might happen.
The reference in this ground to a single expert indicates that it is directed to her Honour’s conclusion in relation to the husband’s objection to the production of documents relating to certain companies which were asserted to be “dormant and non-trading”. Her Honour said as follows about that matter (emphasis in original):
23.On this issue, the written submissions on behalf of the wife read as follows:
“73. Disclosure of at least the last two years Financial Statements is necessary in the case of dormant or non-trading companies to disclose the existence or otherwise of any assets or liabilities those companies may have. That is of particular relevance in circumstances where there is a relationship between various companies in the [M Group].
74.The existence of any liabilities is of particular importance and more so if they are irrecoverable to other entities in the group as that will be relevant to the valuation of those entities”.
24.It seems to me that these matters are more properly left to the single expert who will value the entities in due course. The expert will request whatever documents he or she considers necessary for that purpose. In my view the wife has anticipated what the single expert will require before that person has been afforded any opportunity to formulate his or her own view. I am thus unpersuaded by these submissions.
We can see no error on her Honour’s part in, effectively, deferring in the course of interlocutory proceedings a decision concerning the production of documents relating to companies which the husband claimed were “dormant and non-trading”, pending the appointment of a single expert who could call for such documents as he or she considered necessary. There was, as we understand it, no issue before her Honour but that a single expert would be appointed in due course to value the parties’ interests in the M Group. Therefore, there can also be no substance in this ground.
The fourth ground of appeal asserts that her Honour “had no evidence available to her which would give rise to a ‘concern’ that there could be a commercial impact on negotiations for the sale of the M Group if documents sought by the wife, were provided to her and in the premise mistook the fact or allowed an extraneous matter to affect her and otherwise failed to afford the Appellant an opportunity to be heard regarding such a ‘concern’”.
This ground is clearly directed to her Honour’s discussion of and conclusions regarding documents relating to the proposed sale of M Group, being the documents sought in paragraphs B, C, D, G and H of Annexure A to the wife’s application.
Relevantly to this ground of appeal, her Honour said:
29.The written submissions on behalf of the husband maintained that he has no documents which fall within the ambit of paragraphs G and H of annexure A of the wife’s Application in a Case. The wife offered no evidence to the contrary.
30.I am concerned that there may be a commercial impact on negotiations for the sale of [M Group] if this information is released to a third party. I will not order that the husband provide these documents to the wife.
31.I hold the same concern in relation to the documents sought by paragraph C of the annexure to the wife’s Application in a Case. In my view, production of these documents to a stranger to the negotiations for sale of [M Group] to [BD Pty Ltd] creates a risk of adverse commercial consequences. I will not order the husband to produce these documents to the wife.
In the wife’s written outline of argument it is submitted that she had given an undertaking not to disseminate material in her possession. It is further submitted (and presumably in light of the undertaking) that her Honour failed to identify the concern which she had and failed to identify the evidence relied on to reach that conclusion.
We consider that the concern which her Honour identified in [31] of her reasons, about “a risk of adverse commercial consequences” if documents were produced to a stranger to the sale negotiations, was self evident. Moreover, we consider that there is much force in the submissions made on behalf of the husband to the effect the undertaking “would not be able to be satisfied if breached”. We therefore conclude that this fourth ground could not be established. But in any event, as will be clear when we will later discuss the wife’s application to adduce further evidence, as events have transpired, the complaint in this ground must now be regarded as moot.
There was a fifth ground of appeal but it was expressly abandoned by Senior Counsel for the wife during his oral submissions to us (Appeal hearing transcript p. 22 line 10).
Given that we have concluded that none of the grounds of appeal could succeed, and given also our reasons for so concluding, it must follow that we have been unable to find any error of principle made by her Honour in reaching the decision now sought to be appealed.
Before turning to consider whether any substantial injustice or, in the words of the wife’s application for leave to appeal, significant disadvantage, has been caused to the wife by the decision, it will be useful to refer to the applications to adduce further evidence which were before us at the hearing of the application for leave to appeal.
THE APPLICATIONS TO ADDUCE FURTHER EVIDENCE
The wife filed an application to adduce further evidence on 1 August 2014. The further evidence sought to be adduced by that application consisted of documents which the wife had unsuccessfully sought from the husband, but had been subsequently able to obtain on subpoena from the proposed purchasers (being BD Pty Ltd) of the M Group after the proposed sale (which, it will be recalled, was the subject of the fourth ground of appeal) had fallen through (apparently at a date subsequent to the decision now sought to be appealed). It emerges from the written outline of argument on behalf of the wife (at [13]) that the purpose of this further evidence was to establish that the husband had been in possession or control of documents which he was not prepared to provide to the wife.
As we endeavoured to explain to Senior Counsel for the wife at the hearing before us, we have great difficulty in understanding why, once the documents concerning the proposed sale were available to the wife, a further interlocutory application was not made at first instance rather than pursuing these appellate proceedings (at least in so far as they relate to the documents now produced on subpoena) (See Appeal hearing transcript p. 19-20). We were, and remain, strongly of the view that the appropriate course was a further interlocutory application at first instance. We will therefore dismiss the wife’s application to adduce further evidence.
In his response filed on 12 August 2014 to the wife’s application, the husband also sought to adduce further evidence. That application was not pursued before us, but we will need to formally dismiss it.
CONCLUSION IN RELATION TO APPLICATION FOR LEAVE TO APPEAL
Returning then to the issue of the application for leave to appeal the orders made on 30 August 2013, we have already determined that no error of principle in the making of those orders has been established.
As to whether any substantial injustice, or even significant disadvantage, has been suffered by the wife on account of the orders, we are far from persuaded that it has. The orders in question were interlocutory orders and could always have been varied by a further application at first instance if new material (such as that which was the subject of the wife’s application to adduce further evidence) became available, or if circumstances changed. A possible change of circumstances necessitating a further interlocutory application might well have occurred once the single expert was appointed and started work on valuing the businesses in question (as indeed was anticipated by the primary judge at [12] of her reasons). We cannot therefore identify any disadvantage, let alone injustice, to the wife in the making of the orders. Accordingly, we will not grant the wife leave to appeal the orders.
THE NEED TO EXTEND TIME FOR THE FILING OF THE APPLICATION FOR LEAVE TO APPEAL
For reasons which we need not canvass, the wife was unable to file her application for leave to appeal the orders made on 30 August 2013 within the prescribed time. On 1 July 2014, she filed an application seeking an extension of time to file the application for leave to appeal the orders made on 30 August 2013. There was no opposition by the husband to that application to extend time, and the wife therefore filed her notice of appeal (which contains the applications for leave to appeal) on 4 July 2014. It will, however, be necessary for us to make an order formally granting the extension of time.
COSTS
At the conclusion of the hearing of the application for leave to appeal, we invited submissions in relation to the costs of the application.
Senior Counsel for the wife submitted that a determination of the costs of the application for leave to appeal should await the outcome of further proceedings at first instance. We agree with Senior Counsel for the husband that there would be no utility in such a course, and we propose now to determine the issue of costs.
In the event that either the wife’s application for leave to appeal, or her appeal (if leave was granted) failed, Senior Counsel for the husband sought a costs order in his client’s favour. Little was put in opposition on behalf of the wife to such an order.
Given the lack of success of the wife’s application for leave to appeal, we propose to order that she pay the husband’s costs of the application as agreed or assessed.
I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn & Strickland JJ) delivered on 5 August 2015.
Legal Associate: M. Love
Date: 5 August 2015
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