Russo & Wylie
[2016] FamCAFC 227
•9 November 2016
FAMILY COURT OF AUSTRALIA
| RUSSO & WYLIE | [2016] FamCAFC 227 |
| FAMILY LAW – APPEAL – PROPERTY – Superannuation – Whether the primary judge erred in the approach he took to the division of the parties’ property with respect to the respondent’s Military Superannuation Benefit Scheme defined benefit (“MSBS benefit”) – Where the MSBS benefit is paid to the respondent as a non-commutable indexed pension which cannot be received as a lump sum and cannot be assigned – Whether the primary judge erred by making an adjustment under s 90SM(3) of the Family Law Act 1975 (Cth) (“the Act”) – Whether the primary judge erred by failing to take relevant matters into account under s 90SF(3) of the Act – Whether the primary judge’s reasons for judgment are contradictory – Where the primary judge evaluated three possible approaches to dealing with the MSBS benefit before ultimately determining that only one of those approaches was just and equitable – Where the appellant contends that the primary judge erred by failing to make a superannuation splitting order pursuant to s 90MT of the Act – Where neither party sought a superannuation splitting order at first instance – No appealable error established – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the appellant was wholly unsuccessful – Appellant ordered to pay the respondent’s costs of the appeal. |
| Family Law Act 1975 (Cth) ss 60CA, 75, 79, 90MS, 90MT, 90SF, 90SM Family Law (Superannuation) Regulations 2001 (Cth) reg 40 |
| Bennett and Bennett (1991) FLC 92-191 Harris v Caladine (1991) 172 CLR 84 Manolis & Manolis (No 2) [2011] FamCAFC 105 Metwally v University of Wollongong (1985) 60 ALR 68 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Sawant & Karanth [2014] FamCAFC 235 Semperton v Semperton (2012) 47 Fam LR 626 Toohey & Egbert [2015] FamCAFC 171 U v U (2002) 211 CLR 238 |
| APPELLANT: | Ms Russo |
| RESPONDENT: | Mr Wylie |
| FILE NUMBER: | ADC | 1715 | of | 2014 |
| APPEAL NUMBER: | SOA | 3 | of | 2016 |
| DATE DELIVERED: | 9 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Strickland & Aldridge JJ |
| HEARING DATE: | 4 July 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 December 2015 |
| LOWER COURT MNC: | [2015] FCCA 3257 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr B McQuade |
| SOLICITOR FOR THE APPELLANT: | Hamilton Legal |
| COUNSEL FOR THE RESPONDENT: | Ms D Morosini |
| SOLICITOR FOR THE RESPONDENT: | Di Morosini & Co |
Orders
The Further Amended Notice of Appeal filed 16 May 2016 be dismissed.
The Appellant pay the Respondent’s costs of the appeal as agreed or assessed.
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 Russo & Wylie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 3 of 2016
File Number: ADC 1715 of 2014
| Ms Russo |
Appellant
And
| Mr Wylie |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Russo (“the appellant”) appeals from property orders made by Judge Cole on 11 December 2015 in proceedings between her and Mr Wylie (“the respondent”). The parties had been in a de facto relationship and the division of their property fell to be determined under s 90SM of the Family Law Act 1975 (Cth) (“the Act”). The orders had the effect of dividing the parties’ assets so that the appellant received 57 per cent of that property and the respondent 43 per cent. In order to achieve this division of property the respondent was required to pay $103,000 to the appellant.
Central to the dispute before the primary judge was the respondent’s Military Superannuation Benefit Scheme defined benefit (“the MSBS benefit”), which was being paid to him as a non-commutable indexed pension. At the time of the hearing the respondent was receiving $33,531.16 per annum, regardless of what other income he might receive. The benefit had been valued at $416,804 pursuant to reg 40 of the Family Law (Superannuation) Regulations 2001 (Cth).
At the outset it must be recorded that a valuation is required by s 90MT of the Act if the court is considering a superannuation splitting order. Although such an order was not ultimately sought by either party, such an order had been in contemplation earlier in the proceedings.
The way in which entitlements such as those held by the respondent are dealt with in property proceedings is beset with many complications. The primary judge was acutely aware of these difficulties and referred to Semperton v Semperton (2012) 47 Fam LR 626 (“Semperton”), which extensively discusses the difficulties associated with taking such benefits into account.
The difficulties faced by the primary judge in dealing with the MSBS benefit were compounded by the fact that each party asked his Honour not to make a splitting order under s 90MT in relation to the benefit. Such an order would have divided the regular payments between the parties. Instead, both parties accepted that the benefit should be retained by the respondent, but each proposed different ways of dealing with the division of assets in that event. The respondent sought to have the MSBS benefit excluded from the pool of remaining assets, whereas the appellant sought to have the benefit included in the general pool of assets.
Counsel for the appellant described the four challenges to the judgment in the Further Amended Notice of Appeal as being:
·Error of law in the application of s 90SM(3);
·Failure to take matters into account under s 90SF(3) which should have been taken into account;
·Inconsistency in the primary judge’s reasons and a failure to provide adequate reasons; and
·Constructive failure to exercise jurisdiction in respect of s 90MT of the Act.
Error of law in the application of s 90SM(3)
The appellant submits that the primary judge erred, both at law and in the exercise of his Honour’s discretion, in making an adjustment to the respondent pursuant to s 90SM(3) of the Act after having found that a consideration of the s 90SM factors did not warrant such an adjustment.
Section 90SM empowers the court, in proceedings with respect to the property of parties to a de facto relationship, to make such orders as it considers appropriate altering the parties’ interests in the property.
Subsection 90SM(4) requires the court “in considering what order (if any) should be made under this section in property settlement proceedings” to take into account the various matters listed in paragraphs (a) to (g). Amongst the matters for consideration are the matters raised in s 90SF(3) so far as they are relevant (s 90SM(4)(e)). These sections provide an extensive range of matters to be taken into account when determining the appropriate division of property including, under s 90SF(3)(r), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
Section 90SM(3) provides:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The relationship between s 79(4) and s 75(2), which are the Part VIII equivalents of s 90SM(4) and s 90SF(3), was discussed in Manolis & Manolis (No 2) [2011] FamCAFC 105 (“Manolis”):
65.It can be seen that power to make orders in regard to property is not exhausted after the third step. It is not until orders are made that the power is exhausted. The exercise of power pursuant to s 79 of the Act remains subject to the overarching requirement of justice and equity imposed by s 79(2) until it is exhausted. Therefore, we cannot accept that the Federal Magistrate lacked the “power” to revisit the outcome to which she had been led by her consideration of s 79(4) and s 75(2) factors by reference to s 79(2) of the Act. If so doing persuaded her Honour that her proposed outcome was not just and equitable, she could not properly make orders in those terms.
66.Having regard to the nature and extent of the matters which had been evaluated pursuant to s 79(4) and s 75(2) of the Act prior to her consideration of s 79(2), the Federal Magistrate’s scope for varying the substance of the outcome resulting from that exercise would have been limited. It is difficult to discern specific matters impacting a consideration of s 79(2) which are not articulated in either s 79(4) or s 75(2) of the Act. The section does however oblige the court to “stand back” from its preliminary determination, and consider its impact. So doing may inform the terms of the orders appropriate to produce a just and equitable outcome in those terms. It may result in a re-consideration of s 79(4) and or s 75(2) factors, and a different outcome. Whatever the scope of s 79(2), the court’s determination with respect to it cannot be dependent upon findings or conclusions which are irreconcilable with those recorded in the context of a consideration of s 79(4) or s 75(2). Regrettably, that is what occurred in this case. In our view, paragraphs 71 and 78 of her Honour’s reasons cannot stand together.
There is force in the premise of the appellant’s submission that any adjustment to the parties’ property interests should result from the evaluation of matters under, in this case, s 90SM(4) and s 90SF(3) rather than an impermissible adjustment under s 90SM(3). However, we consider that that is not what his Honour did. Rather, his Honour considered three different approaches to the resolution of the proceedings, two of which his Honour found were not just and equitable under s 90SM and which accordingly were rejected. As to the third approach, we are satisfied that the adjustment to the parties’ property interests by the primary judge was made as a result of the evaluation of the s 90SM(4) considerations, including relevant matters arising under s 90SF(3), and not by some inappropriate reliance upon s 90SM(3).
In order to explain why this is so, it is necessary to turn to the primary judge’s reasons in some detail.
The primary judge first identified the property that was available for division (at [99] to [121]). His Honour then turned to the respondent’s MSBS benefit and referred to Semperton in some detail. His Honour noted the difficulties in taking the value of the benefit into a pool of assets because the benefit was in fact an income stream which could not be converted to a lump sum and could not be assigned. His Honour reached the following conclusions:
148.To consider the superannuation benefit received by the applicant as part of the pool is difficult without consideration of the special characteristics of the fund. The exercise is more one of reviewing the assets, liabilities and financial resources controlled by each party noting that it is an annuity for life and there are ongoing benefits for his surviving spouse. It is able to be valued pursuant to the legislation.
His Honour then said:
150.It may be that when reviewing the orders to consider the justice and equity of the proposed division an adjustment could be made then. I will consider this in due course.
151.In the alternative, I will take the approach as submitted by counsel that the value of the fund be excluded from the pool with the applicant’s entitlement to that fund to be considered as a “powerful” s.90SF(3)(r) of the Act factor.
152.I will also consider it as part of a separate pool.
In these paragraphs we consider that the primary judge postulated three different approaches to dealing with the MSBS benefit, given that neither party wished a splitting order. These were:
·Making a final adjustment “when reviewing the orders”;
·Excluding the MSBS benefit from the general pool of assets with an appropriate adjustment under s 90SF(3)(r) of the Act; or
·Placing the benefit in a separate pool.
His Honour considered the parties’ contributions to their assets (excluding the MSBS benefit) and concluded that their contributions to that property were equal (at [157] to [178]).
His Honour then returned to the MSBS benefit and noted that the present entitlement of the respondent was an annual pension of $33,232 to be adjusted annually in accordance with the CPI. Importantly his Honour noted that if any adjustments were to be made to the parties’ property rights to take account of the MSBS benefit, the appellant would receive a cash amount and not an annuity. His Honour also noted that the respondent was unable to convert the benefit to a lump sum and would continue to receive regular payments for the rest of his life (at [182]).
His Honour found that the parties had contributed equally to the acquisition of the MSBS benefit (at [186]). No challenge was made to this finding on appeal.
The primary judge did not consider that any adjustment should be made pursuant to s 90SM(3)(r) (at [206]).
Importantly, in his Honour’s reasons there then appears the heading “Respondent’s proposed method”, under which his Honour said:
207.If the superannuation is to be considered as submitted by counsel for the respondent then the net value of those assets and resources would be $1,971,040; 50% of that would be $985,520 being the amount to which the respondent is entitled. The respondent currently holds $783,788. This would then mean that the applicant would be required to pay her $201,732.
It is to be recalled that the appellant (the respondent at the hearing) had proposed that there just be one pool of property.
After setting out the assets to be retained by the appellant under this method there appears, again importantly, the heading “Is the proposed division just and equitable?”.
His Honour decided that such a division would not be just and equitable, saying:
209.This would mean that inclusive of super the applicant would have $1,187,252 less the payment of $201,732 leaving him with $985,520 of which $416,804 represents the value of his super fund. A value which he is unable to access other than by weekly payments. The respondent on the other hand will have control of an asset pool which is readily accessible.
210.When 42.3% of the “assets” held by the applicant are not available to him, I do not consider an equal division or that originally proposed to be just and equitable.
We consider that up to this stage the primary judge has acted within the principles set out in Manolis referred to earlier. His Honour determined the parties’ interests in their property and their contributions to it, considered whether any appropriate adjustments should be made and then determined that the result so achieved was, ultimately, not just and equitable.
His Honour then said:
212.This is an appropriate case and I consider there should be an adjustment of 5% in his favour. This would mean that the respondent is entitled to 45% of that pool of resources and assets or $886,968. That would require the applicant to pay the respondent, (allowing for the $783,448 in her control), $103,180 which I would round down to $103,000.
It is here that the appellant submits that the primary judge has taken the impermissible step of making an adjustment, based on general and undefined notions, to the parties’ property interests under s 90SM(3).
Had the reasons ended there, there would have been force in the appellant’s submission. His Honour’s reasons, however, do not end there.
We discern that in his reasons under the headings “Respondent’s proposed method” and “Is the proposed division just and equitable?”, the primary judge considered and rejected the first of his three postulated approaches to the property division.
Under the heading “Superannuation in a separate pool”, his Honour moved to a consideration of whether a better approach would be to deal with the appellant’s superannuation entitlements of $69,474 and the respondent’s MSBS benefit (valued at $416,804) in a separate pool. This is the third of the possible approaches outlined by the primary judge.
In relation to this approach his Honour said that, “having regard to finding an equal contribution and the special nature of the MSBS fund”, an adjustment to the appellant’s entitlement to the non‑superannuation pool should be made such that she was to receive 55 per cent of the pool. Such an adjustment could properly be made by reference to s 90SF(3)(r).
The primary judge found that in order to achieve the desired outcome of a just and equitable division of property under this approach, the respondent would be required to pay to the appellant $102,303 (at [214]). This was not entirely satisfactory, as the primary judge explained:
215.The issue remains however, that the husband’s benefit is not to be split. If the wife’s superannuation was included in the pool (and the husband’s excluded), then I consider there would have to be an adjustment of 5-7% when considering the justice and equity of the division.
Again, this appears to be a finding that the outcome was not regarded by the primary judge as being just and equitable.
There then appears the heading “The applicant’s proposed alternative of the applicant’s fund excluded from the pool”, under which the primary judge considered what we regard to be the second of the three postulated approaches to dealing with the MSBS benefit. His Honour commenced by saying:
216.If I am not to include the applicant’s superannuation benefit in the pool available for division, then I do not consider I can ignore the special characteristics of that asset. Its value is a quantification of the value of the applicant’s access to an income stream for life. Unlike the respondent, he will not be able to convert that to a lump sum.
217.It is of significant value and is a significant financial resource. I note there will be an effect on his entitlement to an income tested pension or benefit.
His Honour noted that the MSBS benefit “is a significant factor when considering the financial resources and needs of the parties” (at [219]). This is clearly a reference to s 90SM(4) and s 90SF(3). This led to his Honour finding:
220.The net value of the resources and assets available for distribution, noting the applicant’s pension fund is excluded (and the respondent’s is not) is $1,554,236. I consider the parties made equal contributions over the 26 years of the relationship. The respondent would not however have the benefit of the MSBS fund. If the entitlement of the respondent was adjusted by 7%, then she would receive $885,914.52 (rounded down to $885,914). This would mean that the applicant would pay her $102,124. I would for the purposes of this exercise round this up to $103,000. This would mean she will receive approximately $200,000 more of the available assets than the applicant.
221.If the parties had elected to have split the applicant’s super, then it is likely there would have been little or no adjustment for the financial resources and needs of the parties. That however is not an option they have taken and an adjustment should be made accordingly.
Finally, under the heading “Conclusion”, his Honour set out two tables showing the assets each of the parties was to retain. The respondent was to retain the MSBS benefit but was to pay the appellant $103,000 to be retained by her along with her other property. The primary judge then said:
225.The above table shows that the applicant is retaining assets with a net value of $770,448. The respondent is retaining assets with a net value of $714,314.
226.When payment of the sum of $103,000 is brought to account the respondent will have assets inclusive of superannuation of $886,788 whilst the applicant will have $667,448, a difference of just over $200,000.
227.This will mean that she will have 57% of the available assets. Noting the respondent’s superannuation is included on this calculation as part of the assets and financial resources. The respondent however will continue to access an annuity worth $416,604.
228.In the circumstance and for the Reasons set out above I consider the orders to be just and equitable.
Here, it is apparent the primary judge concluded that the second of the postulated approaches to dealing with the matter was the approach that led to a just and equitable outcome. As we have seen, the adjustment to the parties’ property interests under that approach was not made pursuant to s 90SM(3) but rather s 90SM(4). This is made clear by his Honour undertaking the consideration of whether the orders were just and equitable as the very last step.
Thus, in summary, in the light of the parties’ insistence that there not be a splitting order as to the MSBS benefit, the primary judge postulated three different ways of approaching the division of the parties’ assets, each of which his Honour considered in turn. His Honour rejected the first option (making a final adjustment under s 90SM(3)) and the third (placing the benefit in a separate pool), but ultimately adopted the second (keeping the assets in one pool but making an adjustment in favour of the appellant to account for the respondent continuing to receive the MSBS benefit).
Although it would have been helpful for the primary judge to have set out the course that he was taking with greater clarity, when the reasons are read as a whole, we consider that his Honour in fact acted in accordance with the principles in Manolis. His Honour had looked at two possible approaches to the division of the property but rejected each as neither would have led to a just and equitable result. That caused his Honour to reconsider the s 90SM(4) factors, which led his Honour to make an adjustment of seven per cent in favour of the appellant.
The primary judge did not make the error asserted by the appellant and this ground fails.
Failure to take matters into account under s 90SF(3) which should have been taken into account
The appellant’s submission under this ground was:
19.Although conceding at paragraph 220 that Mr [Wylie’s] access to a pension was “a significant factor when considering the financial resources and needs of the parties” this factor was not taken into account in his Honour’s consideration of section 90SF(3). That in itself ought to have led to an adjustment to the de facto Wife and to the extent that it was not taken into account the Learned Trial Judge fell into error.
(Footnote omitted)
The primary judge expressly took the respondent’s MSBS benefit into account at [216] - [221], in the course of considering the approach that he ultimately adopted. That consideration led to an adjustment of seven per cent in favour of the appellant under s 90SM(4), which of course includes s 90SF(3).
Further, given his Honour’s other findings, the only justification for an adjustment of seven per cent or $103,000 was so that the respondent could retain his MSBS benefit. It is to be recalled that his Honour made a finding that the parties had contributed equally to the acquisition of the benefit. While a cash adjustment of $103,000 is significantly less than 50 per cent of the valuation of the benefit ($416,804), it is to be recalled, as his Honour found, that $103,000 would be received in cash and would be immediately available to the appellant, whereas the payment of the benefit to the respondent could only ever be in the form of a pension. In doing so the primary judge clearly took into account the MSBS benefit, which led to a cash adjustment being made in favour of the appellant.
This ground has not been established.
Inconsistency in the primary judge’s reasons and a failure to provide adequate reasons
Although ground three is drawn rather expansively, the submissions made under it were limited. They were summarised in the Summary of Argument as:
20.His Honour’s Reasons are neither clear nor unequivocal, and are riddled with inconsistencies.
(Footnote omitted)
The appellant’s submissions proceed on the basis not that the primary judge was considering a number of different approaches to dealing with the MSBS benefit but rather that the reasons are a confused set of contradictory findings.
The obligation to give reasons is well known (see Bennett and Bennett (1991) FLC 92-191 at 78,266). The parties must be able to understand the basis of the decision and “the extent to which their arguments had been understood and accepted”: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [59].
The extensive survey of the primary judge’s reasons which we have already undertaken above indicates to us the path that his Honour took to resolve the issues raised by the parties. His Honour’s reasoning process can be discerned. Whilst that path could have been more clearly delineated, we have been able to distil the reasons why his Honour took the course that he did.
We have indicated that the primary judge proposed three different approaches to the property division, two of which he rejected. When his Honour’s reasons are so understood there are no sets of inconsistent findings and the premise for this ground falls away. It does not succeed.
Constructive failure to exercise jurisdiction in respect of s 90MT of the Act
Under this ground the appellant makes the bold submission that despite both parties having opposed the making of a splitting order in relation to the MSBS benefit and having asked the primary judge to take another course, his Honour nonetheless erred by not making such a splitting order. The appellant submits that an obligation to make such an order arises from the terms of s 90MS and s 90MT of the Act which, the appellant contends, require the court independently to arrive at a decision which is just and equitable regardless of the parties’ proposals.
Section 90MS merely provides that in proceedings under s 79 or s 90SM of the Act, the court may make orders in relation to the superannuation interests of the parties but may only do so under Part VIIIB of the Act, which concerns the allocation of superannuation interests.
Section 90MT(1) sets out the various orders that a court “may” make in relation to a splittable superannuation interest. It provides:
(1) A court, in accordance with section 90MS, may make the following orders in relation to a superannuation interest (other than an unsplittable interest):
(a) if the interest is not a percentage-only interest––an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i) the non-member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations; and
(ii) there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
(b) an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i) the non-member spouse is entitled to be paid a specified percentage of the splittable payment; and
(ii)there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
(c)if the interest is a percentage-only interest––an order to the effect that, whenever a splittable payment becomes payable in respect of the interest:
(i) the non-member spouse is entitled to be paid the amount (if any) calculated in accordance with the regulations by reference to the percentage specified in the order;
(ii)there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for the order;
(d)such other orders as the court thinks necessary for the enforcement of an order under paragraph (a), (b) or (c).
The balance of the section deals with the valuation of the interest and the allocation of a base amount to the non-member spouse.
Whilst, of course, orders under s 90MT must be made judicially, there is nothing in either s 90MS or s 90MT that evinces an overarching obligation to make orders that are just and equitable regardless of the wishes of the parties. It is to be recalled that it is implicit in the parties’ requests that the court make orders other than superannuation splitting orders that the parties accepted such orders would be just and equitable.
The use of the word “may” in the section and the various orders that are available to the court point against a splitting order being mandatory. The aim of the sections that deal with property division is to achieve an overall result that is just and equitable. In any given case there may be a number of ways of achieving that, which may or may not involve a splitting order. No single path is mandated.
Property proceedings are civil proceedings, in this case between adults of full capacity. There is no reason why the parties could not agree to resolve the proceedings, in whole or in part – for example by agreeing on the values of particular property or that particular assets would be retained by one party or the other. Whilst it is true that consent orders under s 79 or s 90SM still require a court to be satisfied that the orders are just and equitable, where parties are represented little more than their consent is required to enable the discretion to be properly exercised (Harris v Caladine (1991) 172 CLR 84 at 96 and 124).
These two factors suggest that very considerable weight should be given to the combined approach of the parties. Indeed, if the primary judge had proposed a different course to that chosen by the parties, the requirements of natural justice would have required him to receive submissions on it. In this case, consistently with the course they have taken, both parties would have submitted to his Honour that a splitting order should not be made. It is most difficult to take a different course on appeal (Metwally v University of Wollongong (1985) 60 ALR 68).
In support of the submission that s 79 and s 90SM confer a wide discretion on the court, to the extent that the court is not bound by the proposals of either of the parties, the appellant relied upon U v U (2002) 211 CLR 238, Sawant & Karanth [2014] FamCAFC 235 and Toohey & Egbert [2015] FamCAFC 171. Each of these authorities is a parenting case in which the court is obliged by s 60CA of the Act to regard the child’s best interests as the paramount consideration. It is well established that this overarching consideration can transcend the parties’ proposals. There is no such similar provision in relation to s 79 or s 90SM. These cases do not assist the appellant.
This ground does not succeed.
Conclusion
Given that there is no merit in any ground of appeal, the appeal must be dismissed.
Costs
The appeal has been entirely unsuccessful. That circumstance supports the making of an order that the appellant pay the respondent’s costs of the appeal. Counsel for the appellant, properly, accepted that this was so but submitted that because the financial position of the parties was approximately the same the appropriate outcome was that there be no order as to costs. We are not persuaded that this is sufficient to overcome the appellant’s lack of success. The appellant will be ordered to pay the respondent’s costs.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland and Aldridge JJ) delivered on 9 November 2016.
Associate:
Date: 9 November 2016
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