Swayte & Swayte
[2021] FedCFamC1A 76
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Swayte & Swayte [2021] FedCFamC1A 76
Appeal from: Swayte & Swayte (No. 3) [2021] FamCA 120 Appeal number(s): EAA 35 of 2021 File number(s): PAC 633 of 2020 Judgment of: TREE, GILL & MCEVOY JJ Date of judgment: 7 December 2021 Catchwords: FAMILY LAW – LEAVE TO APPEAL – PROPERTY – Appeal against interim orders – Conjunctive test – Where the grounds of appeal may be meritorious – Question of substantial injustice – Where the appellant could not establish any substantial injustice flowing from a refusal of leave to appeal – Where the appeal in some respect is futile – Application for leave dismissed – Appellant to pay respondent’s costs in a fixed sum.
FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – STAY OF ORDERS – Where leave to adduce further evidence relevant to the appeal was granted – Where a stay of the appealed orders would be futile – No notice given to third party purchaser – Stay application dismissed.
Legislation: Family Law Act 1975 (Cth) ss 79, 114
Home Building Act 1989 (NSW)
Cases cited: Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Swayte & Swayte [2020] FamCAFC 219
Number of paragraphs: 43 Date of hearing: 20 October 2021 Place: Sydney (via video link) Counsel for the Appellant: Mr Hodgson Solicitor for the Appellant: Kalmath Lawyers Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Diamond Conway Lawyers ORDERS
EAA 35 of 2021
PAC 633 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR SWAYTE
Appellant
AND: MS SWAYTE
Respondent
ORDER MADE BY:
TREE, GILL & MCEVOY JJ
DATE OF ORDER:
7 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 27 September 2021 is dismissed.
2.The appellant and the respondent are granted leave to adduce further evidence in the application for leave to appeal comprising the affidavit of the appellant’s solicitor filed 19 October 2021 and the affidavit of the respondent filed 20 October 2021.
3.Paragraph 2 of the appellant’s Application in an Appeal filed 19 October 2021 is dismissed.
4.The application for leave to appeal the orders made by a judge of the Family Court of Australia on 16 March 2021 is dismissed.
5.The appellant pay the respondent’s costs in the sum of $8,524.47.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Swayte & Swayte has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE, GILL & MCEVOY JJ:
INTRODUCTION
By his Amended Notice of Appeal filed on 27 September 2021, Mr Swayte (“the husband”) seeks leave to appeal from interim property settlement orders made on 16 March 2021 by a judge of the Family Court of Australia. Those orders provide, inter alia, for Ms Swayte (“the wife”) to be appointed as sole trustee for the sale of the parties’ property at D Street, Suburb F (“the Suburb F property”) and the H Pty Ltd business (“H Pty Ltd”) conducted on the Suburb F property, with the net proceeds of sale to be held in a controlled monies account.
Also under the 16 March 2021 orders, another property owned by the parties at W Town (“the W Town property”) was ordered to be sold, with the wife again being appointed sole trustee for its sale. After an interim payout of $150,000 to each of the parties, the net proceeds of sale of the W Town property were also to be held in a controlled monies account.
The husband’s appeal, if leave is granted, relates to the entirety of the interim orders made on 16 March 2021. The wife resists the application for leave to appeal, and if necessary, the appeal.
For the reasons which follow, leave to appeal will be refused.
BACKGROUND
The property settlement proceedings between the parties were commenced by the wife on 10 February 2020. Since then the parties have been litigating about various items of real property held by them, particularly the Suburb F property and H Pty Ltd.
On 5 June 2020, the primary judge made interim orders for interlocutory relief similar to the orders now being appealed, under which the wife was appointed trustee for sale of real properties owned by the parties. The husband sought to appeal from those orders, however for reasons delivered on 4 September 2020 (Swayte & Swayte [2020] FamCAFC 219), the Full Court dismissed his application for leave to appeal. It is useful to set out a portion of the Full Court’s reasons for judgment to give some background to these proceedings, as follows:
9.The husband is aged 78 and is working part-time as a [medical professional]. He said that he was presently not in receipt of an income because he has been unable to submit invoices to Medicare since the parties separated in June 2017, as the wife is no longer his [administrator]. The husband expects to receive a lump sum of approximately $200,000 at some stage, which will be subject to an obligation to pay income tax.
10.The financial affairs of the parties have been substantially controlled by the wife who is presently aged 68, with the assistance of the parties’ son.
11.The parties’ most significant asset consists of real estate at Suburb F upon which the parties and a company owned by them (“H Pty Ltd”) are constructing a[n …] accommodation facility.
12.Development approval for the […] accommodation facility was obtained in April 2010 and provided for the work to be done in three stages. In August 2013, H Pty Ltd entered into a finance facility with Westpac Banking Corporation to fund the development and construction of Stage 1. Difficulties arose with the builder during construction and the parties found it difficult to meet the interest payments and other costs. As such, $230,000 was borrowed from the parties’ daughter and other funds from one of their sons to meet these costs.
13.In July 2019, the parties’ daughter sold her […] apartment and advanced $202,000 to the parties, which was spent on holding costs and other business interests.
14.The last unit in Stage 1 was sold in April 2019. The proceeds of sale of all the units (approximately $14 million) have largely been expended and at the time of the hearing before the primary judge, only $377,000 remained in the trust account of the parties’ accountant firm. The wife’s evidence was that there was a monthly deficit of $71,000 which could only be met from that capital sum.
15.The primary judge noted that the sum of $523,224 was owed to the Australian Taxation Office, the sum of $643,808 was due to be refunded to one of the […] accommodation facility unit owners who had died in January 2019 and land tax was owing in the sum of $40,000, with an estimate that the land tax liability for 2020 would be in the sum of approximately $200,000.
16.In addition, it was a condition of the development approval for the […] accommodation facility that road works to the front of the property were improved at a cost of about $1.15 million. This work remains to be done. The local council holds a bank guarantee for completion of those works in the sum of $675,000 which will be released once they are completed.
17.It was the wife’s case, which was accepted by the primary judge, that the sale of the properties was necessary to maintain the value of Stage 1 of the development and to permit the parties to move to Stage 2.
18.The wife asserted that the present value of the development was between $15 million and $16 million.
19.The primary judge found that “[t]he husband for his part proffers no pathway to resolve the ever-growing difficulty of accumulating liabilities except the suggestion the parties borrow even more funds”.
(References omitted)
Notwithstanding the sale of the properties as ordered on 5 June 2020, in the later hearing before the primary judge which resulted in the 16 March 2021 orders, the wife asserted that the parties still had outstanding liabilities and expenses as follows (at [16]):
(a)a debt to the Australian taxation office in the sum of $517,667 comprising unpaid GST of $324,000 plus penalties and interest with interest continuing to accrue at the rate of 7.98 per cent per annum;
(b)a monthly deficit between income and expenditure for H Pty Ltd and their other business interests of just over $71,000;
(c)a debt to Revenue NSW for land tax totalling $218,864;
(d)a debt due to a deceased estate in respect of unit 5 of H Pty Ltd of $643,308;
(e)an estimated refund in respect of Villa 7 of H Pty Ltd of $1,012,739;
(f)a refund demanded in respect of unit 2 of H Pty Ltd of $735,000;
(g)the costs of carrying out roadworks the subject of a Development Control Order requiring the works to be completed (that being a condition of the development approval for H Pty Ltd) of about $1.171 million, which after release of a Council security bond in the sum of $675,000, would require a net payment of about $496,979;
(h)necessary repairs and maintenance to H Pty Ltd of about $300,000;
(i)estimated costs of completing landscaping and fencing works required to be undertaken by the PP Council in the sum of approximately $486,915;
(j)estimated costs of the provision of awnings over the front and rear balconies of first floor residences at H Pty Ltd of $218,085;
(k)outstanding legal and accounting fees owing in respect of the personal affairs of the husband and wife in the sum of $80,000.
Further, and as we shall detail shortly more significantly, various complaints have been made about H Pty Ltd to the New South Wales Department of Fair Trading (“the Department”), which may result in an application for the appointment of an administrator to H Pty Ltd.
In light of all those matters the wife sought interlocutory relief from the primary judge for the sale of the Suburb F property and H Pty Ltd, contending that the parties do not have the financial capacity to complete Stage 2 of the development. To meet the parties’ liabilities, and the running costs of H Pty Ltd pending its sale, she also sought orders for the sale of the W Town property.
It was the husband’s position before the primary judge that he sought to retain the Suburb F property and H Pty Ltd as part of his entitlement in the final property settlement, and that he would be able to continue the development of Stage 2 by borrowings secured over other assets which he seeks to retain in the final property settlement. He sought orders that, pending the trial, he and the wife share the management of H Pty Ltd, with some exceptions, where he would have sole control.
Further, he contended that another unencumbered property owned by the parties at Z Street, Suburb AA (“the Suburb AA property”) should be sold, as the proceeds of sale would be more than sufficient to meet the parties’ extant liabilities, and fund any ongoing deficits, and hence neither the Suburb F property, H Pty Ltd nor the W Town property needed to be sold.
As earlier noted, on 16 March 2021 the primary judge made orders in accordance with the relief sought by the wife, which orders are the subject of this appeal.
APPLICATIONS IN AN APPEAL
The husband filed two Applications in an Appeal, the first on 27 September 2021 and the second on 19 October 2021.
During argument, the husband ceased to press the first application. It is appropriate that it now be dismissed. As to the second application, insofar as it sought to adduce further evidence it was conceded by the wife, who also relied upon a further affidavit. The new evidence was to the effect that a contract for sale of the W Town property had been signed on 11 October 2021. It initially had a cooling off period expiring at 5.00 pm on 19 October 2021, although during the appeal hearing on 20 October 2021 we were told without objection that the period had been extended to 5.00 pm on 25 October 2021.
However, also in the 19 October 2021 application, the husband sought to stay a number of the 16 March 2021 orders, including the sales of the Suburb F property, H Pty Ltd and the W Town property. As ultimately framed during oral submissions that stay was to operate until the appeal was resolved, and was conditional upon the husband, within 48 hours instituting, and thereafter prosecuting with reasonable diligence, an application for an interlocutory injunction restraining, seemingly, the completion of the contract for the sale of the W Town property, and any sale of the Suburb F property and H Pty Ltd.
However no notice of the stay application had been given to the purchaser of the W Town property, yet plainly, insofar as a stay might somehow impact on its sale, notice needed to have been given. That said, it is hard to see how the stay could be of any utility, at least insofar as the W Town property was concerned. After all, a contract for its sale has been signed, which, as we shall later detail, is now unconditional, and hence it is difficult to see how a stay of orders permitting its sale could prohibit settlement of a binding, executory and unconditional contract. On one view therefore, the stay application was simply an attempt to obtain an order which could be used by the husband to try and scare the purchaser of the W Town property into exercising their rights to terminate the contract within the cooling off period.
Although he tried to deny responsibility for the situation he is now in, the simple fact is that the husband did nothing to try to stay the 16 March 2021 orders until 5 August 2021, when he filed an application seeking that relief. For reasons which are not altogether clear, that application is yet to be listed. On 18 October 2021, the husband filed a further application seeking an interlocutory injunction restraining the wife from proceeding with the sale of the W Town property, or alternatively a stay of the order for its sale. That application was dismissed by Harper J on 19 October 2021, seemingly because the appeal was listed to be heard the next day.
If the husband seeks to restrain the completion of the contract for sale of the W Town property, a stay from the Full Court is not the appropriate vehicle to do so. Even if it were, it would have needed to be brought on notice to the purchaser. Insofar as the stay related to the Suburb F property and H Pty Ltd, given the lack of evidence of any imminent sale, and the husband’s earlier delay, any urgency was the product of that delay, and in any event, likely illusory.
However now the short answer to the Application in an Appeal filed 19 October 2021, insofar as it seeks a stay, is that, given leave to appeal shall be refused, it lacks any utility, and must be dismissed.
LEAVE TO APPEAL
The test adopted in this Court for leave to appeal is a conjunctive one, namely whether the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court, and, if so, whether a substantial injustice would occur if leave were not granted (Medlow & Medlow (2016) FLC 93-692).
Therefore, ordinarily an examination of the merits of the grounds of appeal is required. However in this case we are satisfied that Ground 4, which challenges the absence of any reasons for failing to order the sale of the Suburb AA property, as the husband sought, appears meritorious. Indeed not only did the primary judge not determine the husband’s application to sell the Suburb AA property, but his Honour appears to have been mistaken in thinking that the husband’s proposal for meeting the parties’ extant liabilities and the ongoing losses of H Pty Ltd was further borrowing, rather than the sale of assets (at [46]). Whilst it is true that the now unconditional contract for the sale of the W Town property likely renders an aspect of Ground 4 futile, insofar as the husband’s proposal for the sale of the Suburb AA property was intended to obviate any need for the sale of the Suburb F property and H Pty Ltd, the ground nonetheless remains viable. Hence here the question of leave will be determined by the existence or otherwise of substantial injustice flowing to the husband if he is not permitted to appeal.
Before turning to that issue however, we should briefly explain why the grounds which potentially impinge on the question of substantial injustice do not enjoy merit. The fundamental flaw in them is that the challenges to the primary judge’s conclusion that there was “significant concern” as to the Department intervening in H Pty Ltd by appointing an administrator (at [48]) must fail. Particularly, contrary to the challenges made by Grounds 10, 11, 12, 13, 14, 15, 16 and 17, that finding was well open on the evidence, and the fact that, if greater or lesser weight had been given to particular matters, might have led to a different outcome, does not bespeak error. Given that was the justification for the sale of H Pty Ltd, the outcome cannot be “manifestly unreasonable and plainly unjust” (Ground 7). More, the purpose of the order was to preserve the value of the parties’ property (contrary to the challenge in Ground 8) and the reasons for the decision adequately exposed (contrary to Ground 9).
For completeness we should also address Grounds 1, 2 and 3 all of which assert an absence of power in the primary judge to use the injunctions power contained in s 114 of the Family Law Act 1975 (Cth) (“the Act”) to make the impugned orders, either because they altered the parties’ property interest (Ground 1) or prejudiced or defeated the husband’s prospective claims under s 79 (Ground 2) or diminished, rather than preserved the parties’ property (Ground 3). However it is plain that s 114(1)(e) of the Act confers a wide discretion to order injunctions “in relation to the property of a party” so long as it is considered “proper with respect to the matter to which the proceedings relate”. Here, it was the risk of the Department seeking to appoint an administrator to H Pty Ltd, with the consequences we shall discuss shortly, which was the “significant concern” which enlivened the exercise of the discretion. There is thus no merit in these grounds.
Although the husband’s Summary of Argument paid scant regard to the question of substantial injustice, in his oral submissions the husband advanced three matters which he asserted satisfied this limb.
First, he said that a substantial injustice will be suffered by him if leave were not granted, because the opportunity for him to receive the Suburb F property and H Pty Ltd in the final property settlement will be irrevocably lost to him, a matter specifically raised by Ground 8.
As to that, the wife correctly identifies that the orders of the primary judge expressly contemplated that, if the husband could obtain unconditional finance to purchase the Suburb F property and H Pty Ltd before the exchange of contracts for their sale, then so long as he offered either their fair market values (Order 8), or the amount the putative purchaser was prepared to pay (Order 7), they must be sold to him. Therefore the properties are not necessarily irrevocably lost.
Moreover, the husband’s stated purpose for wanting to obtain the Suburb F property and H Pty Ltd is to embark upon Stage 2 of the accommodation development. There is no reasonable evidentiary basis to conclude that the husband is likely to be able to obtain the necessary finance to undertake that development, as its estimated cost is over $19 million, nor indeed is there even evidence of the financial viability of Stage 2. Whilst in his affidavit relied upon before the primary judge the husband swore that his mortgage broker was preparing such a feasibility study, it is plain from the actual correspondence with the broker annexed to that same affidavit that this was not so, but rather that the broker was awaiting being furnished with the feasibility study by the husband. No such study was in evidence before the primary judge or us.
Therefore even if the husband were able to receive the Suburb F property and H Pty Ltd as part of his entitlement under the ultimate property settlement, the stated purpose behind doing so, namely to proceed with Stage 2, has not been demonstrated to be feasible on the evidence. Nor was it demonstrated that even if he did receive the Suburb F property and H Pty Ltd he would be able to obtain the necessary finance to progress the development.
It is true that, as the husband points out in his Summary of Argument, the effect of the orders of the primary judge is to require the sale of approximately $19 million in assets to meet a little more than $4 million in liabilities. However to so frame the outcome ignores that the most significant problems in relation to H Pty Ltd are not financial.
As we have said, the real concern of the primary judge identified at [48] was the prospect of the appointment of an administrator to H Pty Ltd by the Department, or “the appointment of a receiver and/or liquidator to the business” by a creditor.
That concern was well supported by the evidence of Mr CC, a solicitor specialising in accommodation facilities, who was assisting the parties in responding to the Department’s concerns. His affidavit filed 22 October 2020 details that those concerns in part relate to the failure by the parties to complete Stages 2 and 3 of the development. Particularly it appears that the residents who purchased leases in Stage 1 of H Pty Ltd were promised that by now, a significant range of amenities, including a hydrotherapy pool, function room, dining room, cinema and lecture theatre, billiard, bingo and gaming room, medical suites, respite care facilities, library, croquet lawn and bowling green, would have been constructed. None have been. Unsurprisingly, it is said by the Department that the failings in this regard may constitute misleading and deceptive conduct.
But there are other concerns which the Department is also investigating, including the mismanagement of residents’ deposits, and defects in construction of H Pty Ltd which, it seems, might constitute breaches of the Home Building Act 1989 (NSW). Mr CC’s evidence was that in light of all these concerns the Department may apply to appoint an administrator to H Pty Ltd, however it is unlikely to do so if the operator is taking steps to address those matters (Mr CC’s affidavit filed 22 October 2020, paragraph 29). Thus part of his strategy has been to advise the Department that the parties have made progress to address those concerns, and are working to sell H Pty Ltd (Mr CC’s affidavit filed 22 October 2020, paragraphs 31 and 35). By making those representations he has, in effect, been keeping the Department at bay.
However if the sale of H Pty Ltd does not progress, or other issues arose, then his evidence was that the Department may well act to appoint an administrator (Mr CC’s affidavit filed 22 October 2020, paragraphs 37 and 40). Even leaving aside the administrator’s own costs (said likely to quickly reach $500,000), the effect of the appointment of an administrator could be quite disastrous, including the potential of a “fire sale” of the H Pty Ltd assets (Mr CC’s affidavit filed 22 October 2020, paragraph 38).
At [48] and [49], the primary judge said as follows:
48. … There is significant concern as to Departmental intervention in the business of the H Pty Ltd by reason of the appointment of an administrator. There is clear evidence from an experienced solicitor that in the event that there is a Tribunal order on the complaint of a resident that such an order may well trigger an application to the Supreme Court of New South Wales for the appointment of administrator. In that circumstance the parties will lose all control in relation to the ongoing business and one would assume that the administrator would take steps to sell the business to a new appropriately qualified operator. Present indications are that by reason of the ongoing dispute as to the conduct of the business as between the husband and wife, the provisions of the Corporations Act could be enlivened by a creditor seeking the appointment of a receiver and/or liquidator to the business.
49. It is readily apparent that facilitating a sale of the business and the underlying real estate by the wife would address the prospective financial damage that would flow from the appointment of an administrator or a receiver and/or liquidator by a creditor. Allowing the current operator to sell the business in a timely manner, one would expect would alleviate the pressures and uncertainty evidenced by the wife in this present application. Otherwise, the husband faces the reality that in the event that the wife is unwilling to continue to endeavour to operate and conduct the business in the circumstances as they are, she may make application for the appointment of a receiver and/or liquidator in any event.
Whilst the finding of “significant concern” in [48] is sought to be challenged by Ground 17 of the Amended Notice of Appeal, the one paragraph devoted to it in the husband’s Summary of Argument demonstrates its lack of merit. Essentially the husband argues that, since the Department had done nothing to intervene in H Pty Ltd in the six months prior to the 16 March 2021 orders, the primary judge’s finding as to “significant concern” was factually wrong. Such an argument is bound to fail, as plainly, given Mr CC’s evidence, there was a sufficient evidentiary basis for that finding. Indeed there was little, if any, evidence to the contrary. It is not to the point that the husband could not cross-examine Mr CC to challenge his evidence before the primary judge. The evidence was nonetheless available to be acted upon.
Further, it cannot be glossed over that the effect of not selling the Suburb F property and H Pty Ltd would be to either compel the wife to continue to operate the latter against her will (at [23]), or force her to accept the husband’s co-management of it (as sought in the husband’s Response to Application in a Case filed 26 November 2020, paragraph 9). Given that, even on the husband’s own case, he had little to do with H Pty Ltd pre-separation, and absolutely nothing to do with it post-separation, how his inexperience could benefit co-management is unclear. Indeed, not only has the husband had no recent or relevant experience in managing H Pty Ltd, he has not been able to lodge even a single claim with Medicare arising from his business for some years (at [14]). The husband’s scepticism about the Department’s claims does not give much cause to hope that his involvement in the management of H Pty Ltd would alleviate the risk of the Department’s further intervention. Moreover, there is no sign that the trial of this matter would be ready to proceed in the near future, and hence no matter what management arrangements prevailed, they might last some years.
Given all of these matters, we are not persuaded that the husband’s appeal – even if it were successful, and the matter remitted, as he seeks – would be likely to see him able to keep the Suburb F property and H Pty Ltd in the ultimate property settlement, so as to complete Stage 2 of the development. Put another way, any inability to do so is unlikely to be ameliorated by the grant of leave to appeal.
It therefore follows that the husband has failed to establish that, assuming the decision of the primary judge was erroneous, not permitting him to appeal to maintain the prospect of him ultimately keeping the Suburb F property and H Pty Ltd, would cause him to suffer a substantial injustice.
Secondly, the husband claimed that if he was unable to appeal the 16 March 2021 orders, which thwarted his desire to keep the W Town property as part of his ultimate property entitlement, that too would cause substantial injustice. Precisely how the husband could ever take both H Pty Ltd and the W Town property is unclear. Nonetheless, this issue has now fallen away. After the appeal was heard, and pursuant to orders made at that hearing, on 26 October 2021 the Court was advised that on 25 October 2021 the contract for sale of the W Town property became unconditional as the purchaser had not exercised its right to terminate during the cooling off period. It is not apparent how the husband could now rescind, terminate or refuse to complete that contract, or otherwise not be required to transfer the W Town property to the purchaser. In that event he, at least on one view, appeared to concede that his proposed appeal, insofar as it dealt with the W Town property, would be futile. Even if that was not conceded, then nonetheless plainly the appeal would, in that respect, be futile. Hence to refuse leave to appeal would not occasion injustice to the husband, much less of any substantial kind.
Thirdly the husband said that, if he is not given leave to appeal, then substantial injustice would be visited upon him by virtue of the wife being the sole trustee for sale of the Suburb F property, H Pty Ltd and the W Town property, with him being wholly precluded from involvement in the sale process. However to require these parties to co-operate in any way would be a recipe for disaster, as the primary judge recognised at [44] when he noted their “inability to cooperate and to deal with the complex issues arising from their financial affairs”. No ground of the proposed appeal sought to disturb that finding, which is plainly correct, and again it follows that no substantial injustice would flow from leave not being granted.
CONCLUSION
Accepting that the proposed appeal has merit, nonetheless no substantial injustice arising from a refusal of leave has been established by the husband. Leave to appeal is therefore refused.
COSTS
In the event that the husband failed the wife sought costs in the modest sum of $8,524.47. Unsurprisingly, no challenge was made to that quantum, however a costs order generally was opposed by the husband on the basis that there were no circumstances sufficient to justify it in this case.
We disagree. Ultimately the husband has been unsuccessful and there is no reason to think that he is without the means to comfortably meet the wife’s claimed costs. Further, there are no circumstances which warrant any delay for their payment beyond the usual 28 days.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Gill & McEvoy. Associate:
Dated: 7 December 2021
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