Spoke & Spoke
[2008] FamCAFC 59
•8 May 2008
FAMILY COURT OF AUSTRALIA
| SPOKE & SPOKE | [2008] FamCAFC 59 |
| FAMILY COURT – APPEAL – whether the trial judge erred in refusing an injunction restraining the sale of the former matrimonial home – whether the trial judge erred in ordering an interim property settlement – whether the appellant was denied procedural fairness – appeal allowed FAMILY COURT – APPEAL – application for leave to appeal – whether in making interim orders for spousal maintenance and the payment of outgoings on the former matrimonial home the trial judge denied the appellant procedural fairness – application granted – appeal allowed FAMILY LAW - COSTS – Costs Certificate granted to the appellant |
| Family Law Act1975 (Cth) – s114 Federal Proceedings (Costs)Act 1981(Cth) – s 9 |
| Aldred and Aldred (No.2) (1985) FLC 91-602 Bearup v Bearup (1993) FLC 92-412 Bennett v Bennett (1992) FLC 92-191 Brazel v Brazel (1984) FLC 91-568 Guthrie v Guthrie (1995) FLC 92-647 Harris v Harris (1993) FLC 92-378 Maday v Maday (1985) FLC 91-636 Stowe v Stowe (1981) FLC 91-027 |
| APPELLANT: | MR SPOKE |
| RESPONDENT: | MS SPOKE BY HER CASE GUARDIAN MR C |
| FILE NUMBER: | MLF | 1437 | of | 2006 |
| APPEAL NUMBER: | SA SA | 78 79 | of of | 2007 2007 |
| DATE DELIVERED: | 8 May 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Warnick, May, Boland JJ |
| HEARING DATE: | 12 February 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 July 2007 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr St John SC |
| SOLICITOR FOR THE APPELLANT: | Dawes & Vary Pty Ltd Lawyers |
| ADVOCATE FOR THE RESPONDENT: | Mr C (by telephone) |
Orders
That the appeal in relation to paragraphs 9 to 11 of the orders made on 27 July 2007 be allowed.
That the application for leave to appeal be granted and the appeal in relation to paragraphs 7 and 8 of the orders made on 27 July 2007 be allowed.
That paragraphs 7 to 11 of the orders made on 27 July 2007 be set aside.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant in relation to the appeals from the orders made 27 July 2007 which were the subject of the Full Court judgment delivered 8 May 2008.
IT IS NOTED that publication of this judgment under the pseudonym Spoke & Spoke is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 78 of 2007 and SA 79 of 2007
File Number: MLF 1437 of 2006
| MR SPOKE |
Appellant
And
| MS SPOKE |
Respondent
REASONS FOR JUDGMENT
Introduction
The appeal by the husband concerns orders made by Watt J on 27 July 2007. In part, due to the appellant’s lawyers understanding of whether the orders were interlocutory or final, an appeal is filed in relation to paragraphs 9 to 11 of the orders and leave is asked to appeal in relation to paragraphs 7 and 8 of the orders. As the application for leave and the appeal itself relate to orders made on the same day, the appeal and application have been heard together. The question of whether leave should be given raises substantially the same issues as the appeal sought to be filed from those orders.
The written submissions of counsel for the appellant acknowledge that leave may be needed in relation to some parts of the appeal depending on how we view the nature of the orders.
The relevant orders are as follows:
7.Until further order the husband pay for the maintenance of the wife the weekly sum of $760 commencing 2 August 2007 and weekly thereafter and continue to make available to her the company car and fuel card presently in her possession.
8.Upon production of accounts and proof of payment of those accounts relating to the utilities at the former matrimonial home the husband is to reimburse the wife for those accounts and to continue to pay for the utilities until she vacates the premises upon moving to Queensland, such utilities to include telephone, gas, electricity, water and council rates and the characterisation of payments pursuant to this paragraph is reserved to the trial judge.
9.In the event that the wife receives an offer to purchase the former matrimonial home which she proposes to accept she must within 7 days convey the terms of the said offer to the husband and he shall have the option within a further 7 days of purchasing the property upon the same terms and conditions.
10.By way of partial property settlement, upon settlement of any sale the nett proceeds after payment of the costs of sale and secured liabilities is to be paid:
(a) as to 50% to the wife; and
(b)as to 50% into a trust account on behalf of the parties to be established by the husband’s solicitor held on behalf of the parties.
11.Pending completion of the sale of the former matrimonial home or further order the wife is to have the right to occupy the said property to the exclusion of the husband save that she shall not unreasonably refuse any request by the husband to inspect the property prior to its sale
If the application for leave is granted and both appeals are successful it is asked that orders 7 to 11 be set aside and that this Court re-exercise its discretion and impose an injunction to restrain the wife from dealing with the former matrimonial home.
The essence of the appeal is that Watt J erred in fact and in law by refusing an injunction restraining the sale of the matrimonial home and in ordering an interim settlement of property. The essence of the appeal where leave is requested is that orders in relation to spouse maintenance and payment of outgoings on the home should not have been made and that there was a denial of procedural fairness.
Mr C appeared by telephone as the case guardian for the respondent. At first he asked for an adjournment. It seemed to us that an adjournment was not necessary and the appeal proceeded on the basis of oral submissions from Mr C. He had not filed any submissions or material in reply to the application.
The application before his Honour was that of the wife filed 20 July 2007 and the husband in response, filed 27 July 2007. Although no formal judgment was delivered we have the transcript. Issues in relation to the children were agreed but the other parts of the wife’s application relating to spousal maintenance and the house were disputed as was the husband’s application in relation to the return of a car and injunctions in relation to the home. Part of the difficulty now revealed by both appeals is that the origin of the order in relation to the sale of the home was an oral application made on the day without supporting affidavit material and on no notice to the husband.
Background:
A final hearing was to take place before Watt J on 25 September 2007. On 27 July 2007 the case guardian and the wife attended by telephone link. The hearing was conducted during three separate telephone link-ups in the course of the day. The notation to the orders ultimately made by his Honour is that this was a “mention”.
To appreciate the arguments in relation to these appeals it is necessary to understand the applications before his Honour and consequently we set them out in full. The respondent wife had applied for various orders. At the time of hearing the appeal we were told that the wife still resided in the home. Her application asked for the following orders:
1.For Mr. [Spoke] to increase his support payments to Ms. [Spoke] from the current $760 p.w. to $1761 p.w.
2.That the husband continue to pay all utilities for the former matrimonial home as he has stated that he dos [sic] in his affidavit dated 3rd May 2006 page 6 item 39.
3.That the husband back pay all utilities that he has failed to pay in relation to the former matrimonial home to fully comply with the statement that he has made in his affidavit filed on the 3rd may [sic] 2006 page 6 item 39.
4.For Ms. [Spoke] to be granted permission to travel to Brisbane, Queensland and take up residence there with her two children R and T for an unspecified period as a minimum until the date of the trail [sic] in this case.
5.For Mr. Spoke to return the filling [sic] cabinet and all of Ms. [Spokes] [sic] handwritten notes in relation to this case that unlawfully removed from her desk in the office at the former matrimonial home on or around the 6th July 2006.
The husband asked for the following orders:
1.Wife be granted permission to temporarily relocate to Brisbane Queensland with the children […] until 24 September 2007.
2.The wife’s fuel card be cancelled and the wife return the company motor vehicle […] to the [company].
3.That pursuant to s.114 Family Law Act 1975 the wife be restrained from selling or advertising for sale the former matrimonial home and chattels in the former matrimonial home, or otherwise dealing with or renting out the former matrimonial home.
The basis for the application that the wife be restrained from advertising or making arrangements for the sale of the home was that the property provided security for borrowings of a company for which the parties had joint liability although operated by the husband. In addition, the appellant claimed that the respondent had intentions or had attempted to sell the home in June/July of 2007.
The material before his Honour consisted of Financial Statements of each of the parties, an affidavit of the husband which contents were largely irrelevant to the proceedings before his Honour as it was in support of the application for final orders and an affidavit of the wife largely directed to her reasons for wishing to move to Queensland and her need for an increase in financial support from the husband. There was no reference to the proposed sale of the house or any need for a sale. A further affidavit of the husband, apparently in reply explained the monies and expenses he and the company paid for and on behalf of the wife and children. Reference was made in this affidavit to the husband’s apprehension that the wife would sell the house because it had come to his attention that the wife had listed the house for sale without notice to him.
Apparently, it was common ground that the value of the house was $725,000 and that it is subject to an encumbrance securing company loans in the order of $700,000 which includes an overdraft facility of $500,000. These figures are reflected in the wife’s Financial Statement. The company was meeting all of the repayments.
In relation to maintenance, prior to the making of the orders the husband was paying the sum of $761.00 per week to the wife and meeting fuel card expenses incurred by her. The wife had the use of the house free of expenses other than rates and utilities. Up until May 2007 the husband had paid rates and utilities but ceased to do so, saying that he was unable to meet them financially.
Application for leave to appeal – spouse maintenance and payment of outgoings for the home
During the course of the hearing before Watt J there were submissions made by the case guardian as to significant outstanding amounts owing for rates and other utilities. No evidence was provided as to these amounts said to be outstanding and at first his Honour said that these would need to be particularised and the husband be given an opportunity to look at them. After various discussions which are revealed in the transcript his Honour then thought that the matter could be dealt with by the payment of the husband to the wife of a figure of $1000 per week to include all expenses. Ultimately, the trial judge said:
HIS HONOUR:…So the only orders that I’m going to make at this stage, will establish that until further order, the existing arrangements are to continue, and that the utility costs up to the time of Mrs [Spoke’s] vacation of the home, should be paid from the date of – I’m not dictating orders at this stage, I’m just foreshadowing what I do consider myself able to do today – and that there should be a one-off payment in an amount to be agreed or determined at trial in the absence of agreement.
…
…but I don’t have the evidence to do them today, so I’m not going to do them. So the only orders that I would make would perpetuate the existing situation. As I’ve said, I’ve already made orders in relation to the relocation issue, the filing cabinet, and the only other thing then that I have to deal with, is Mr [Spoke’s] application for a restraining order, and I suppose, the cancellation of the fuel card and the return of the motor vehicle.
…
…my present thinking is that I shouldn’t restrain the wife from selling the house, but should require her to give the husband an option to purchase the house at a price that might be offered by someone else. That is, if she receives an offer, she should give Mr [Spoke] a right, that I would refer to as a right of first refusal, but it doesn’t much matter how it’s termed.
(Transcript, 27 July 2004, page 45)
His Honour then said:
MR CHISLETT: In relation to the utility costs.
…
HIS HONOUR: It was retrospective to the date of your client’s affidavit and prospective to the date of Mrs [Spoke’s] vacation of the premises, but not in a fixed amount at this stage because I don’t have the bills or the figures in front of me – not in detail, and so it will have to be paid upon production of satisfactory proof of the amounts involved and that’s obviously the bills from the utility providers.
MR CHISLETT: Yes, my client had some concern as he thinks that there’s some maybe between $5000 and $6000 and I’m not sure whether this sum can be characterised as an amount which will be determined at trial as a partial property settlement, your Honour.
HIS HONOUR: I think probably given that I have no idea how much is involved on evidence, I think the characterisation should probably be left to the trial, Mr Chislett.
…
HIS HONOUR:…what that means is that while I’m quite prepared to make an order for the ongoing payment of the $760 per week and characterise that as spousal maintenance. The payment of the arrears of utilities may or may not be characterised as a maintenance requirement at trial...
(Transcript, 27 July 2004, page 47-48)
It is clear his Honour intended to leave the characterisation of the payments to the trial but he did order that the husband pay the amounts outstanding defined to include telephone, gas, electricity, water and council rates and further that these expenses be met on an ongoing basis. It is equally clear that at the time that his Honour made those orders he had no idea of the likely cost to the husband. Reference to the Financial Statement of the husband should have demonstrated some doubt about the husband’s capacity to meet such expenses. In view of the manner in which the hearing was conducted and the absence of reasons it is not apparent why his Honour did this. During the hearing of the appeal we were provided with a letter from Mr C dated 16 August 2007 setting out the moneys said to be owing in relation to the house in the sum of $23,870.11.
It is unnecessary to deal with this matter any further other than to observe that there was an absence of procedural fairness. The absence of reasons creates the difficulty that it is impossible to appreciate the steps taken by his Honour leading to the making of the maintenance order and the order in relation to the payment of outgoings related to the house. Leave should be granted to appeal. It is clear that there are errors in that orders were made without necessary evidence and that the orders work a substantial injustice to the appellant. We would also allow the appeal in relation to orders 7 and 8 for the same reasons.
The appeal – orders for sale of the home
There are thirteen grounds contained in the further amended notice of appeal filed 29 October 2007. Although it will not be necessary to deal with each of these we reproduce the grounds to demonstrate the nature of the appeal:
1.The learned Trial Judge erred in fact and in law in refusing an injunction restraining the sale of the matrimonial home and/or in ordering an interim settlement of property in favour of the Wife.
2.That the learned Trial Judge failed to give proper reasons for the Orders made.
3.That the learned Trial Judge failed to accord the Husband procedural fairness in proceeding to hear oral submissions that the Wife be at liberty to sell the matrimonial home.
4.That the learned Trial Judge took into account improper considerations when determining that the Husband’s application for an injunction restraining dealings with the matrimonial home be refused.
5.The learned Trial Judge erred in refusing the injunction sought by the Husband restraining dealings with the matrimonial home.
6.That the learned Trial Judge failed to give any, or sufficient, consideration of the perspective effect upon the operations of the company conducted by the Husband in refusing the injunction sought and permitting a sale of the matrimonial home.
7.That the learned Trial Judge took no, or no sufficient account of the final hearing of property matters being scheduled to proceed within weeks of his Order.
8.That the Orders made gave no realistic opportunity for the Husband to receive a transfer of the matrimonial home, notwithstanding his application that he be permitted to do so.
9. Notwithstanding the apparent reason(s) for refusing the injunction sought by the Husband, the Orders made permitting a sale of the matrimonial home did not advance the position of the Wife, or progress the proceedings, in any meaningful way.
10.That the learned Trial Judge failed to accord the Husband natural justice in making an order for interim settlement of property without Application by the Wife for such Order and/or without foreshadowing same to the Husband prior to determining such Order was appropriate.
11.That the learned Trial Judge erred in making an Order granting an interim settlement of 50% of the nett proceeds of sale in favour of the Wife.
12.There was no proper basis upon which the Trial Judge could order an interim settlement of property.
13.That when making Orders for an interim settlement of property the learned Trial Judge failed to give consideration to established principles of law and/or failed to give proper consideration to the prospective entitlements of the parties.
In relation to the application for an injunction and the oral application by the case guardian for sale of the home and associated orders, the written submissions of the appellant’s counsel, we think, are so comprehensive and useful we can do no better than reproduce them in part here:
12.Counsel for the Appellant opposed the proposition that the Wife be at liberty to forthwith sell the home and objected to the unexpected and informal mode of the application. When the Case Guardian made submissions to the effect that the home be sold the Trial Judge variously observed: “That is not something I’m going to decide today” […]. He further commented that he would be loath to order a sale because it would limit the options available to the Trial Judge […] also noted it would be “very unusual” to pre-empt the Appellant’s position by authorising the sale “… when there is a final hearing coming up in literally a matter of weeks and where Mr [Spoke] has said through Mr Chislett today that he seeks the option of buying the house…” […]. At […] the Trial Judge commented that it was very difficult for a sale to proceed because it reduced the options available “…in a significant way” […], that he would not authorize a sale where a party was seeking to retain the asset […].
13.Notwithstanding the objections of [sic] made on behalf of the Appellant, and the comments of the Trial Judge included in the preceding paragraph, the Trial Judge shortly thereafter proceeded to change his attitude […], commenting that it would enable matters to progress. Moreover, the Trial Judge did not during the course of submissions give proper reasons why, notwithstanding his earlier misgivings, he proceeded to consider the appropriateness of the property being forthwith sold by the Respondent.
14.However, it appears by implication that the potential failure of the parties to agree upon a rental payment for the premises in which the Respondent would temporarily reside in Queensland was the genesis of his change in approach […]. This was an improper and irrelevant consideration.
15.The Case Guardian submitted that a sale of the home was appropriate because of the Respondent’s proposed temporary move to Queensland. Neither party was in favour of the home being rented out when the Respondent travelled to Queensland […]. It was common ground that periodic financial obligations arising on the loans secured upon the home were being regularly met by the Appellant and were not in arrears. The Case Guardian did not submit that there was urgent financial reason why the home should be forthwith sold, nor that a sale was required to meet the Respondent’s anticipated interim maintenance needs or those of the children of the marriage.
16.It was argued on behalf of the appellant that he had before the Court an application that he retain the home as part of a final settlement of property between the parties (subject to any payment to the Respondent deemed appropriate) and, further, that retention of the home was important to the ongoing operations of the […] company operated by him. […].
17.It was common ground that the home was encumbered by bank loan and credit facilities of the company totalling approximately $700,000 and effectively fully drawn. It was orally submitted by the Case Guardian that the home had a present market value in the “mid-800’s” (Transcript page 37 line 38). In her Financial Statement sworn 24 January 2007 the Wife had however deposed to a value of $725,000 […]. Accordingly, there was little (if any) equity in the home following payment of selling costs (estimated by the Case Guardian at $25,000).
18.It was additionally submitted for the Appellant that he was not in a position to purchase the Respondent’s interest in the home unless and until a final property division had been determined. The mechanism adopted by the Trial Judge of the Appellant being notionally entitled to match the offer of a prospective purchaser in practice give him no realistic opportunity of effecting a purchase (Ground 8), including the fact that by the terms of the Order the Husband would likely be required to additionally pay Stamp Duty upon any such transfer.
As to what might be described as ‘partial property settlement’ it was submitted that:
19.At the conclusion of the last of the three telephone calls constituting the hearing the Trial Judge refused the injunction sought by the Appellant and made orders permitting the Wife to sell the home subject only to notifying the Appellant of any offer of purchase she proposed to accept to allow the Appellant the opportunity of matching the proposed sale price.
20.The Trial Judge did not deliver formal reasons but, insofar as they can be discerned from comments passed during the hearing, his reasons for refusing the injunction sought and/or permitting the sale of the home do not appear to have been financially-based. At pp.41 & 45-46 of the Transcript wherein The [sic] Trial Judge determined that further hearing of the case would best be progressed by the sale the Wife proposed and that denying permission for the sale could lead to substantial delay in further hearing. No reasons explaining the facts and considerations that had led to this conclusion were given.
21.The case for the Appellant for an injunction was compelling (see eg. Stowe v Stowe (1981) FLC 91-027 & Aldred and Aldred (No.2) (1985) FLC 91-602). The Appellant had a reasonable claim before the Court for a transfer of the home into his sole name as part of a final property division. A disposal of the home would defeat such claim. There was further a seriously prospective detrimental effect upon the operations if a company which was the sole source of the Appellant’s livelihood if a disposal of the home was effected because it secured significant company debt. The intention of the Respondent to dispose of the home was admitted.
22.The Trial Judge gave no or no sufficient reasons explaining why it was appropriate that the Respondent be at liberty to sell the home (see eg Brazel v Brazel (1984) FLC 91-568; Maday v Maday (1985) FLC 91-636; Bennett v Bennett (1992) FLC 92-191 – Grounds 1,2,4,6,8 & 9).
23.The reasons advanced by the Case Guardian in seeking a dismissal of the injunction application and/or permission to sell the home did not include the reasons the Trial Judge relied upon. Such reasons as were advanced by the Trial Judge in justifying the Orders he proposed to make had not foreshadowed to the Appellant. Such failure amounted to a denial of procedural fairness (see eg Guthrie v Guthrie (1995) FLC 92-647 – Ground 10).
24.The reasons advanced by the Trial Judge in justifying the Orders he proposed to make were improper considerations for the purpose of the applications he was required to determine (Appeal Ground 4).
25.The Trial Judge did not properly consider or determine all relevant matters when coming to his decision, including:
(a)Why each of the specific objections of the Appellant to the proposed sale of the home was without substance or was overborne by other considerations;
(b)Why the Respondent should be permitted to seek Orders entitling sale without proper notice having been given to the Appellant; or
(c)The practical effect of the Order he proposed to make, especially:
(i)how the Orders would progress the financial position of the Respondent and/or expedite final hearing, especially when there was no or little equity in the home and marketing, sale and settlement of the home was likely to extend to a date no earlier than the date appointed for final hearing […];
(ii)notwithstanding that the funding difficulties of the company were conceded by the Case Guardian […] and recognized by the Trial Judge […], how the prospective detrimental effect upon the operations of the company of the loss of its security for necessary loan facilities were accommodated by the proposed Orders and/or could otherwise be overcome; and
(iii)why the Appellant’s final application to retain the home should be effectively refused or rendered nugatory.
(d)The limitations the Orders would impose upon the Court when final Orders for settlement were made (notwithstanding the Trial Judge’s seeming recognition of that difficulty during the hearing – see earlier)
26.The reasons advanced by the Trial Judge as justifying the Orders made did not and could not materially advance the position of the Respondent and/or progress the proceedings in any meaningful way (Ground 9).
Partial property settlement
27.Whilst the Trial Judge commented that he could not see Mrs [Spoke] was not entitled to 50% of the assets notwithstanding that no formal or oral interim application had been made by the Case Guardian or the Appellant for an interim property settlement, the Trial Judge on his own motion further determined that the Wife receive an interim property settlement of one-half of the proceeds of sale of the home following deduction of necessary selling expenses and discharge of all registered encumbrances. This potential Order and/or the fact an interim property settlement was even being considered, was not foreshadowed by the Trial Judge to counsel for the Appellant. In proceeding to make such Orders the Appellant was denied procedural fairness (Ground 10).
28.When making Orders for interim settlement of property the Trial Judge did not undertake proper consideration and/or give proper reasons as to why the Court should embark on a partial settlement of property, nor matters relevant pursuant to s.79 of the Family Law Act, including the value of the home, the respective contributions of the parties during the marriage, the prospective entitlements of the parties at the final hearing. Or why the net proceeds should be divided in the manner ordered or at all (See Harris v Harris (1993) FLC 92-378 and Bearup v Bearup (1993) FLC 92-412 and Grounds 11, 12 & 13)
In addition counsel submitted that the orders were ‘piecemeal’ in nature and were not supported with proper reasons. In relation to the proper orders to be made should the appeal be allowed it was submitted that if the Full Court were to remit the matter for rehearing another judge should hear the matter. The appellant seeks to have the orders of Watt J set aside and have an injunction relating to the restraint of sale of the house imposed.
To the extent that leave is necessary in relation to these grounds of appeal we would give it by reason of the lack of procedural fairness and the serious impact of the orders upon the husband.
We would allow the appeal. Apart from there having been no notice to the husband of an application for sale together with the absence of supporting material there was no apparent need for such orders. It is impossible to understand what was thought to be the utility of an order for sale of the house. The solicitor for the husband informed his Honour that it was not conceded that the house had to be sold and that the husband was hoping to retain it. The order for sale should not have been made nor should the further orders in relation to division of proceeds.
As to paragraph 11 of the orders and the occupation of the home, the husband had agreed to the wife’s application to move to Queensland. The only reason to set this order aside is the reference to “pending sale”. We do not understand that the husband otherwise seeks occupation of the home.
With respect to his Honour he was correct when he said:
…I had, in a sense, the best of intentions in listing this matter for today, but it is just not going to be practicable to be able to deal with these issues on the evidence before me at the moment, and given all the variables that there are. […]
(Transcript, 27 July 2004, page 31)
The husband also appeals against the failure of his Honour to impose an injunction against the wife. There were proper reasons for such an application including that the house is in the wife’s sole name and the husband’s belief that the wife had already listed the property for sale. Although we are of the view that his Honour should have made such an order at that time on an interim basis we do not have material before us now which would support such an order. It is to be hoped that the final hearing will not be delayed however if there is any current basis for the husband to apprehend that the wife may sell the property an application could be brought.
Costs
The appellant asked for his costs if he was successful. In view of the reasons we have given for allowing the leave applications and the appeal(s) an order should be made granting a cost certificate to the appellant. The respondent who was in person did not ask for costs.
I certify that the preceding Twenty-Eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 8 May 2008
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