Sistrom v Urh

[1992] FCA 1054

1054      l??Z .

JUDGMENT No. .....,.,..,...,,., I ,,..,.,,,,,

C A T C H W O R D S

~~.NKRUPTCY - joint tenancy of Torrens title land - whether the bankruptcy of a joint tenant severs the joint tenancy - interest of trustee in bankruptcy caveated but not registered - registration by survivor of the joint tenancy - property vesting in the trustee in bankruptcy in equity but not in law by virtue of s.58(2) of the Bankru~tcv Act - whether a trust created - whether the trust affected by indefeasibility of title provisions - whether a breach of fiduciary duty - whether the trustee in bankruptcy waived or abandoned his interest by failing to register and allowing his caveat to lapse.

Sydney

DAVID WILLIAM SISTROM v. VERA URH

No ACT G 44 of 1991

Davies, Ryan & von Doussa 33.
3 March 1992

IN THE FEDERAL COURT OF AUSTRALIA	)
1
AUSTRALIAN CAPITAL TERRITORY	)
1
DISTRICT REGISTRY	) NO G 44 of 1991
)
GENERAL DIVISION	)

BETWEEN:	DAVID WILLIAM SISTROM Appellant
AND :	VERA URH

Respondent

M:	Davies, Ryan & von DOuSSa JJ.
Date :	3 March 1992
Place:	Sydney

MINUTES OF ORDER

THE COURT DECLARES THAT:

1.           The Respondent holds her ~nterest in the property described in Crown Lease Register Book Volume 224 Folio 93 (ACT Land Titles Office) being Block 14 Section 96 Div~sion of A~nslie Ln the

- . Australian Capital Territory in trust for the Appellant and
herself as tenants in common.

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The orders of the trial judge made 19 July 1991 in this matter be set as~de.

3.	The matter be remitted to the trial ~ u d g e to make all necessary
ancillary and consequent~al orders.
4.	The Respondent pay the Appellant's costs of the hear~ng before

the trial judge and of this appeal.

NOTE :	Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules.
IN THE FEDERAL COURT OF AUSTRALIA	) )
AUSTRALIAN CAPITAL TERRITORY	1
1
DISTRICT REGISTRY	) No G 44 of 1991
1
GENERAL DIVISION	1

BETWEEN:  DAVID WILLIAM SISTROM

Appellant

AND :  VERA URH

Respondent

Coram:	Davies, Ryan & von Doussa JJ.
Date :	3 March 1992

Place: Sydney

REASONS FOR JUDGMENT

The Court:  - .

This is an appeal from an order of a judge of this Court dismissing an application by David William Sistrom ("the Trustee") who is the trustee in bankruptcy of the estate

on 27 March 1987, founded on a creditor's petition presented	of Ivan Urh ("the Bankrupt"). A sequestration order was made against the Bankrupt
by the Deputy Commissioner of Taxation. The Bankrupt died on 18 September 1989, at which date he not been discharged from his bankruptcy. Vera Urh is the Bankrupt's widow. The Bankrupt and Mrs Urh were, at the date of the sequestration order, the registered proprietors as joint tenants of a Crown Lease of land in Ainslie in the Australian Capital Territory, under the Real Prouertv Act 1925 (A.C.T.) ("the Act"), the matrimonial home of the Bankrupt and Mrs Urh.
Subsequent to the sequestration order, the Trustee on 17 July 1987 lodged a caveat with the A.C.T. Land Titles Office, claiming an estate or interest in the land pursuant to that order. However, the Trustee took no step to be registered as the holder of an interest in the Crown Lease under s.132 of the Act.
On 14 November 1989, following her husband's death, Mrs Urh lodged in the Land Titles Office a Memorandum of Notice of Death ("the Memorandum"), and thereby applied, as the surviving joint tenancy, to become the sole registered proprietor of the' Crown Lease , pursuant to s.55 of the Act. Notice of the Memorandum was given to the Trustee by the - . Deputy Registrar of Titles in a letter dated 24 November 1989. Unfortunately, the letter contained errors that may have
obscured its meaning. The letter read:-

the Real Property Ordinance 1925 that the	"I have to lnform you in terms of Sectlon 106 of
registered proprietor in Crown Lease Volume 224 Folio 93, Ivan Urh and Vera Urh of 36 Hawdon Street Ainsl~e has applied for regiatration of Memorandum of Notice of Death numbered 673806 lodged 14th November 1989 from the said Vera Urh to Vera Urh.
Your Caveat numbered 579762 will lapse so far only as it would operate to prevent registration of the above dealing. The said dealing will be duly registered unless an order to the contrary, made by the Court or Judge thereof, be served on or written notice thereof be given to me before the expiration
of fourteen days from the service of t h ~ s notice."

Of course, it was in fact only Mrs Urh who had applied for registration of the Memorandum, and any transfer resulting from this would have been from the names of the Bankrupt and Mrs Urh as joint tenants, rather than "from the said Vera Urh". The Trustee deposed in an affidavit before the trial Judge that he understood the letter to be saying "that Vera Urh had died and that a Memorandum of Notice of Death was to be lodged on the title." The Trustee therefore took no steps to prevent registration of the Memorandum. However that may be, the caveat lapsed and, on 18 December 1989, Mrs Urh became registered as the sole proprietor of the Crown Lease.

On 20 April 1990, the Trustee applied to the Court for declarations that he held a beneficial interest in one

undivided half of the Crown Lease, such interest being held on

trust for him by Mrs Urh, and that he was entitled to dispose

of this interest pursuant to his powers as trustee in

- .

bankruptcy.

The claim of the Trustee was founded on s.58 of the

Bankru~tcv Act 1966 (Cth) which provides inter a1ia:-

"(l) Subject to thas Act, where a debtor

becomes a bankrupt -

(a) the property of the bankrupt, not b e m g after-acquired property, vesta forthw~th an the Official Trustee or, if, at the time when the debtor becomes a bankrupt, a registered trustee becomes the trustee of the estate of the bankrupt by virtue of section

156A. in that registered trustee;

and

( b )

af ter-acquired property of t h e

b a n k r u ~ t	ves t s , as soon a s it is
acquir;d	by, o r devolves on, t h e
bankruot,	i n t h e O f f i c i a l Trustee

o r , a? a r e g i s t e r e d t r u s t e e a s

t h e t r u s t e e of t h e e s t a t e of t h e

bankrupt, i n t h a t r eg i s t e red

t r u s t e e .

( 2 )	Where a law of t h e Commonwealth o r of a S t a t e o r T e r r i t o r y of t h e Commonwealth
r equ i res t h e transmission of proper ty
t o be r e g i s t e r e d and enables t h e
t r u s t e e of t h e e s t a t e of a bankrupt t o
be r e g i s t e r e d a s t h e owner of any such
property t h a t i s p a r t of t h e property
of t h e bankrupt, t h a t property,
notwithstanding t h a t it v e s t s an equ i ty
i n t h e t r u s t e e , by v i r t u e of t h i s
sec t ion , does not s o v e s t a t l a w u n t i l t h e requirements of t h a t law have been complied with."

The case put for the Trustee was that the effect of the sequestration order of 27 March 1987 was to vest the interest of the Bankrupt in the Crown Lease in the Trustee, and that such vesting of the Bankrupt's interest brought about a severance in equity of the joint tenancy and the creation of a trust imposed upon the registered proprietors, the Bankrupt and Hrs- Urh and, subsequently, on the survivor Mrs Urh, in favour of Mrs Urh and the Trustee as tenants in common in equal shares. The Trustee sought a declaration that he was

the owner in equity of a half-interest in the Crown Lease as tenant in conkon with Mrs Urh.

The application was opposed by counsel for Mrs Urh

on three principal grounds.

It was contended on behalf of Mrs Urh that she did
not hold the property as trustee for herself and the Trustee

as tenants in common, a submission with which the trial Judge

agreed. The trial Judge said:-

"I have not been referred to, nor have I

discovered, any authority for the proposition that, in such carcumstances as pertain in the present case, the respondent is to be treated as holding her legal title to the Crown lease as trustee for herself and the applicant as equitable tenants in common. "

It was also put that the certificate of title was conclusive except in the case of fraud, which was not proved. Reliance was placed on s.58 of the Act which provides:-

"Notwathstanding the exratence in any other person of any estate or interest, whether derived by grant from the Crown or otherwase, which but for this Act might be held to be paramount or to have priority, a person becoming registered as proprietor of land or of any estate or anterest in land under the provisions of thls Act shall, except in the case of fraud, hold the land, estate or interest, subject to such encumbrances, liens, estates or interests as are notafied on the folium of the Register Book constituted by the grant or certiflcate of title of the land, but absolutely free from all other encumbrances, liens, estates or interests whatsoever except as to -

- .

(a)	the estate or Interest of a proprietor claimlng the same land under a prlor certiflcate of tatle or under a prior grant registered under the provisions of thls Act; and
(b)	any right of way or other easement created in or exlstang upon the same

. land which is not described, or is misdescr~bed rn the relative

certificate of title; and

(C) any portion of land that may by wrong description of parcels or of boundaries be included in the grant, certificate of title, lease or other document or instrument evidencing the title of the regastered proprretor, not being a purchaser or mortgagee thereof for value, or deriving from or through a purchaser or mortgagee thereof for value; and

(d)	any prior tenancy from year to year or for any term not exceeding three years; and
(e)	any leases, licences or other authoritres granted by the Territory and rn respect of w h ~ c h no provision for registration 1s made; and
(f)	any unpaid rates, taxes or other moneys whlch are expressly declared by any Act or law to be a charge upon land:

Provided that the land whlch is included in any certrfrcate of title or registered instrument shall be deemed to be subject to the reservataons, exceptions, conditions and powers (if any) contained in the grant thereof."

The trial Judge agreed also with this submission and said:-

"There is no evidence before the Court which would support a conclusion that the respondent obtained regrstration by fraud within the meaning of that expression in 8.58 of the Real Property Act. Nor are any of the exceptrons referred to in the lettered paragraphs of that section of any assistance to the applicant. Further, the applrcant has not, in my opinion, established any claim &I personam agarnst the respondent."

A third ground put on behalf of Mrs Urh was that the Trustee, by failing to become registered on the title and by failing to take a step in relation to the matter until after the Gaveat had lapsed, had waived or abandoned any entitlement to the Crown Lease which he had. The trial Judge agreed with this submission and said:-

provides some foundation for assertrng a personal	"But even if that act on the part of the respondent
equity aga~nst the respondent, the conduct of the applicant rs such as, in my oprnion, to deprrve him of the assistance of the Court which he requlres an order to deprrve the respondent of the benefit accruing to her by reason of her registration as the sole proprietor of the Crown lease. The applicant took no step to have hrs antereat in the Crown lease registered between 27 March 1987, the date of the making of the sequestration order, and 18 December 1989, when the respondent became registered as the sole proprietor thereof. Even after receiving the letter dated 24 November 1989, addressed to h m by the Deputy Registrar of Titles, did he take any such step. It may be accepted that that letter was not as clearly expressed as it might have been but it was, in my opinron, sufficient to put the applicant on notrce that the
Registrar was about to register an instrument which
could well have the effect of affecting adversely the interest in the lease which he clamed. If the applacant did not understand what the letter mtended, at is reasonable to expect that he would have sought clarification of rts terms yet the evidence 1s that he did not do so. There can be no doubt that the conduct of the applicant in allowing his caveat to lapse was decisave, so far as the Registrar of Titles was concerned, in allowing the Memorandum of Notice of Death to be registered. Further, even after becomlng aware that the instrument had been registered, there was a delay of some four months before the present proceeding was instituted."

We respectfully disagree with the view taken by the trial Judge on each of these points.

It is convenient first to look at the position as if the property had been general law land which had been held by the Bankrupt and Mrs Urh as joint tenants. The essence of a joint tenancy is that there be a four-fold unity, namely unity of interest, of title, of time and of possession. As Blackstone's commentaries on the Laws of Enuland, 1876 Ed.,

Book 2 at p.180 states:- - .

"joint-tenants have one and the same interest, accrulng by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession."

572-3; Megarry & Wade, The Law of Real Prouertv, 5th Ed.	See also Corin v. Patton (1990) 169 C.L.R. 540 per Deane J. at
pp.420-l; Wriuht v. Gibbons (1949) 78 C.L.R. 313 per Latham C.J. at 323.
Severance of a joint tenancy occurs when there is destruction of this unity of interest. As Deane J. said in Corin v. Patton at 573:-

"Nonetheless, at law, where time, possession, tltle and interest can be seen as of the stuff of property, the questron whether there has been a severance of a joint tenancy by some dealing wlth, or operat~on of law upon, one ~ o i n t tenant's share can, subject to such qualification, be equated with the question whether one or more of the unities of possession, title and interest has been destroyed: in that equation, the unity of time can be disregarded as a practical matter since, if unity of title, lnterest and possession remain undisturbed, the original unity of time will perslst. "

Thus, the alienation by one joint-tenant wholly or partially of his interest in the property will sever the joint tenancy by bringing to an end the unity of interest. Such an alienation may be voluntary or involuntary. As Fisher J. said in Re Holland: ex parte Official Trustee in Bankruotcv (1985)

5 F.C.R. 165 at 166:-

"Severance is achaeved in a number of ways, and in particular by alienatlon, wholly or partially and whether such alienation be voluntary or involuntary. An example of an involuntary alienatlon LS the bankruptcy of one of the joint tenants and the consequent vesting of his lnterest an h ~ s trustee - see Megarry & Wade, The Law of Real Property (4th ed, 1975), pp 404-405, Morgan v

- . Marquis (1853) 156 ER 62 at 63. Re Butler's Trusts

(1888) 38 Ch.D. 286."

Fisher J.'s view that the effect of the operation of in property jointly held by a bankrupt and spouse was upheld	s.58 of the Bankruptcy Act would be to sever a joint tenancy
in Re Francis: ex uarte Official Trustee (1988) 19 F.C.R. 149. At p.153, Forster, Woodward and Spender JJ. referred to authorities establishing this proposition to which we have already referred including Moraan v. Marauis in which Parke B. said at 63:-

"Then the e f f e c t of t h e bankruptcy was t o render the assignees as tenants i n common of the goods with Shute",

to the more recent statement by Goff J. in Re Rushton: ex parte National Westminster Bank Ltd v. Official Receiver [l9721 Ch. 197 at 203, when his Lordship said:-

".. the bankruptcy, indeed, works a severance"

and to recent editions of Megarry & Wade and of Halsbunr's
Laws of Enaland where the proposition is accepted.

When the land is registered under the Torrens system, the position is different insofar as the legal title

and the equitable ownership must be distinguished. The effect

of s.58 of the Bankruotcv Act, where a bankrupt and his wife

are the registered proprietors of Torrens title land as joint

tenants is to operate in equity to sever the joint tenancy and

to impose an obligation upon the registered proprietors to

- .

hold the land in trust for the trustee in bankruptcy and for the wife of the bankrupt as tenants in common in equal shares. Thus, s.58(2) specifically provides that "property ... vests

does not so vest at law until the requirements of that law	in equity in the trustee, by virtue of this section, [but]
have been complied with."
In Corin v. Patton at 587, Toohey J. explained that an unregistered dealing does not effect a severance at law for, under a Torrens statute, the Register is conclusive of
the interest registered. Toohey S . said:-

"As Baalman observed in the first edit~on of The

Torrens System in New South Wales (1951), p.331:

,With regard to land under the R.P. Act, whatever relations may be set up between the jo~nt tenants by drspositions dehors the reg~ster, their registered estates can be severed only by some dealings amounting to an assignment, which results Ln an alteration of the register-book.'

The'same proposition, wrth some change in language, appears in the second edition of the work, edited by Woodman and Grimes (1974), p.351.

Mr Baalman's observation LS undoubtedly correct, having regard to the terms of s.41(1) of the Act which provides:

'No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of thrs Act ...'"

Thus, to effect severance in law, a trustee in bankruptcy must have his interest registered.

Compare for example the position under the Law of Propertv Act 1925 (U.K. ) . Megarry & Wade, 5th Ed., point out at pp.434-435 that the effect of that Act was to provide that the only form of CO-ownership was joint tenancy and that a tenancy in common could not exist at law but that this did not

preclude the existence of a tenancy in common in equity or	affect the right in equity to sever a joint tenancy at law.
The distinction between the position in law and in equity was expressly recognised by Deane J. in Corin v. Patton at 574-5 where his Honour said:-

"There are crrcumstances in which equity will impose a trust for tenants in common of land held by legal jornt tenants notwithstanding that there has been no relevant mutual agreement, understanding, dealing or ~ntention between or on

the part of the joant tenants. The only example of such circumstances whach would seem to De relevant for present purposes is the voluntary or involuntary alrenation in equity (a.. the creataon of a trust) of one legal joint tenant's interest an the land. Where such alienataon has occurred, equity will, subject to any overrad~ng competing equities, enforce a trust not only of the alienated interest but of the whole of the land under which the legal joint tenants hold it as trustees for tenants in common in equity. The explanation of why that is so as not free of difficulty. Ultmately, it must be found an the nature of joant tenancy and the manner in which equity acts Ln such a case."

Such a trust was recognised by Fisher J. in

Holland where his Honour said at 167:-

"[Tlhe joint tenancy was severed on the 'disposal' of the husband's share of the property and this disposal occurred when he was declared bankrupt and has interest vested in has trustee in equity. The Real Property Act does not deny the 'disposal' - it merely prescribes the procedures under whach the trustee becomes the registered proprietor of the estate of the bankrupt."

This view was approved by Forster, Woodward and Spender JJ. in

Re Francis at 153.

- .

Equitable interests as tenants in common thus flowed

from the operation of s.58 of the Bankruptcv Act upon the

obligation was imposed upon those persons, in the first	joint tenancy and the severance in equity of that tenancy. An
instance the Bankrupt and Mrs Urh and after the Bankrupt's death, Mrs Urh alone, who held the legal title. The equitable interest did not arise from any personal act or default on the part of the surviving spouse. But nevertheless, from the making of the sequestration order on 27 March 1987, Mrs Urh was a trustee and later the sole trustee of the Crown Lease the ownership of which, in equity, was vested in the Trustee and in Mrs Urh as tenants in common in equal shares.
This position was not altered by the registration of the Memorandum of Death. From the date of the sequestration order until Mr Urh's death, the Bankrupt and Mrs Urh were trustees of the legal estate in the sense we have explained. On the Bankrupt's death, Mrs Urh was the sole remaining legal registered proprietor and she remained a trustee; indeed, from the date of death she was the trustee of the legal estate. The title in law was a joint tenancy. On the death of the Bankrupt, Mrs Urh was entitled, at least in the absence of any application by the Trustee to the contrary, to have the Memorandum of Death registered. But she nevertheless remained trustee of the legal estate for the Trustee and for herself as tenants in common 'in equal shares.

- .

The indefeasibility provisions of the Torrens Title

statutes, of which s.58 of the Act is an example, do not

provided that the interest is one which can be enforced in preclude the enforcement of an equitable interest in property	equity against the registered proprietor. Thus, Lord
Wilberforce, delivering the opinion of the Privy Council in Frazer v. Walker [l9671 1 A.C. 569 at p.585 said:-

"[Tlheir Lordsh~ps have accepted the general principle that registration ... confers upon a registered proprietor a tltle to the interest in respect of which he is registered which is...immune

from adverse claims, other than those spec~fically
excepted. In doing so they wish to make clear that
this principle in no way denies the right of a
plaintiff to bring against a registered proprietor

a claim in personam, founded m law or in equity, for such relief as a court act~ng in personam may grant. That thrs is so has frequently, and rrghtly, been recognised in the courts of New Zealand and Australia: see, for example, m v. Mayor, etc.. of Wellinqton [l9241 N.Z.L.R. 1174, 1223 and Tatauranqi Tairuakena v. Mua Carr [l9271

N.Z.L.R. 688, 702."

The passage from Bovd's case referred to reads in part (per

Adams J.):-

"The power of the Court to enforce trusts, express

or implied ... has been repeatedly exercised".

See also Brennan J. in	v. Nicolav INo.21 (1988) 164
C.L.R. 604 at pp.653-654.

The registration of the Memorandum of Death thus regularised the legal title, for Mrs Urh was the survivor of the two persons who had been registered as the proprietors as joint tenants of the legal estate in the land. That registration did not affect the equitable obligations which bound Mrs Urh as trustee.

It is perhaps unnecessary to add that Mrs Urh, as registering the transfer, so as to disentitle the bankrupt

trustee, could not take advantage of her own act, the act of

estate from its interest in the Crown Lease. Mrs Urh, as a trustee under a fiduciary duty recognised by equity, could not rely upon s.58 of the Act for her own benefit. In equity, a person under a fiduciary duty towards others will not be permitted so to act in relation to property the subject of the duty as to disadvantage those to whom the benefit is owed or to benefit the person who owes the duty. Such a course is regarded in equity as unconscionable and fraudulent in the equitable sense. As Story, Commentaries on Emitv Juris~rudence, 6th Ed. (1853), states in para. 1261:-

"Upon	s lmr la r	grounds,	where	a	t r u s t e e ,	o r o the r
person,	s tanding	m	a	f i d u c i a r y r e l a t i o n ,	makes	a

p r o f r t out of any t r a n s a c t i o n s wi th ln t h e scope of

h i s agency o r au thor i ty , t h a t p r o f i t w i l l belong t o

h i s c e s t u i que t r u s t ; f o r it i s a conat ruct rve

fraud upon t h e l a t t e r , t o employ t h a t proper ty

cont rary t o t h e t r u s t , and t o r e t a i n t h e p r o f r t of such misapplicatron; and, by opera t ion of Equity, t h e p r o f i t i s unmediately converted I n t o a

cons t ruc t ive t r u s t i n favor of t h e p a r t y e n t i t l e d

t o t h e benef i t . For t h e l i k e reason a t r u s t e e ,

becoming a purchaser of t h e e s t a t e of has c e s t u i que trust, 1s deemed incapable of holding it t o h r s own use; and it may be set as ide by t h e c e s t u i que

t r u s t . Nor is t h e doc t r ine confided t o t r u s t e e s ,

s t r i c t l y s o ca l l ed . It extends t o a l l o the r

persons standrng i n a f i d u c ~ a r y r e l a t i o n t o t h e

par ty , whatever t h a t r e l a t i o n may be."

See also Nocton v. Lord Ashburton [l9141 A.C. 932 per Viscount

Haldane L.C. at 954, PhiDDs v. Boardman [l9671 2 A.C. 46;

v. Zacharia (1984) 154 C.L.R. 178 per Deane J. at 198;

HosDital Products. Ltd v. United States Suraical Cor~oration

(1984) 156 C.L.R. 41.

- .

The last issue is whether the Trustee waived or

abandoned his equitable interest in the Crown Lease by failing

to act promptly to have his name registered on the title as

s.132 of the Act provides and by failing to take any step

within due time upon receipt of the notice of the memorandum given to the Trustee by the Deputy Registrar of Titles by the letter dated 24 November 1989, a letter which was, of course, misleading if not unintelligible. In general, the failure of a trustee to act promptly will have no effect on the transmission of title for which s.58 of the Bankru~tcv Act provides. As Fisher J. said in Re Holland at 167:-

"[Alny fa i lure of a trustee t o reg i s ter promptly h i s rnterest should not i n the ordinary course d ic ta te the nature of h i s e s t a t e and the entrtlements of credrtors. The answer t o a questron of law, such a s thrs , should not turn upon the speed of otherwrse wrth whrch the trustee reg i s ters the fac t that the e s t a t e of the bankrupt has vested i n him."

Section 58 operates by virtue of the Bankru~tcv Act. If the trustee in bankruptcy does not seek to acquire property which is onerous he must disclaim under s.133 of the Bankru~tcv Act.

Of course, property may be lost through the operation of law, as by the operation of s.58 of the Act, or

I£ the trustee acts in such a manner towards another person

and in respect of property as to estop him in law or equity

from making a claim as to that property. See e.g. Meagher,

Gummow & Lehane, Equitv Doctrines and Remedies, 2nd Ed.,

- .

Chapter 36. But no such circumstance occurred in the present instance. Section 58 of the Act did not operate so as to bring to an end the Trustee's entitlement in equity to a half

would preclude him from asserting his claim to that property.	interest in the Crown Lease and the Trustee did nothing which
Mere delay is not sufficient. Compare J. & H. Just (HoldinqsL Ptv Ltd v. Bank of New South Wales (1971) 125 C.L.R. 546.
In these circumstances, we would allow the appeal and would set aside his Honour's order. We would declare that Mrs Urh holds the Crown Lease in trust for the Trustee and herself as tenants in common. The matter should be remitted to the trial Judge to make all necessary ancillary and consequential orders. We would order that Mrs Urh pay the costs of the hearing before the trial Judge and the costs of this appeal.
I certify that this and the 15 preceding pages
are a true herein of
the Court. Associate: Date :  3 March 1992
Counsel for the appellant:  Mr R.J.Weber
Solicitors for the appellant: Blake Dawson Waldron
Counsel for the respondent:  M r B.A. Meagher
Solicitors for the respondent: Gilpin and Associates
Date of hearing:  14 November 1991
Date of judgment:  - . 3 March 1992