WAH & GOLAY
[2016] FamCAFC 67
•7 April 2016
FAMILY COURT OF AUSTRALIA
| WAH & GOLAY | [2016] FamCAFC 67 |
| FAMILY LAW – APPEAL – PROPERTY – APPLICATION IN AN APPEAL – application to amend grounds of appeal – application to adduce further evidence – where no objection to the application to amend the grounds of appeal – application to amend grounds granted – where evidence sought to be adduced is an affidavit containing mostly hearsay and no documentation is provided in support – where evidence is irrelevant to the findings of the trial judge and no explanation is provided as to why evidence was not adduced at trial – application to adduce further evidence dismissed. |
| Family Law Act 1975 (Cth) ss 75(2), 75(2)(b), 75(2)(d), 75(2)(f), 75(2)(k), 79, 79(4)(e) and 93A(2) |
Allesch v Maunz (2000) 203 CLR 172
Babett & Falconer (2015) FLC 98-067
CDJv VAJ (1998) 197 CLR 172
Elford & Elford [2016] FamCAFC 45
House v The King (1936) 55 CLR 499
| APPELLANT: | Ms Wah |
| RESPONDENT: | Mr Golay |
| FILE NUMBER: | SYC | 1039 | of | 2012 |
| APPEAL NUMBER: | EA | 144 | of | 2014 |
| DATE DELIVERED: | 7 April 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Murphy & Aldridge JJ |
| HEARING DATE: | 7 April 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 October 2014 |
| LOWER COURT MNC: | [2014] FamCA 833 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Grieve QC |
| SOLICITOR FOR THE APPELLANT: | AJB Stevens Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Kearney SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
The Application in an Appeal filed on 31 March 2016 be granted.
The Application in an Appeal filed on 4 April 2016 be dismissed.
The Appeal be allowed.
Order 2 made on 1 October 2014 be set aside.
In lieu of Order 2 made on 1 October 2014 order that the husband pay to the wife the sum of $663,599.
Certify for senior counsel and junior counsel on the appeal.
The respondent husband pay the appellant wife’s costs of and incidental to this appeal, but not in relation to the Application in an Appeal filed on 4 April 2016, as agreed or assessed within twenty-eight (28) days thereof.
NOTATION:
A.The Court notes that the amount payable by the husband pursuant to Order 2 made on 1 October 2014 has been paid and is to be deducted from the amount payable pursuant to Order 5 of these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wah & Golay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 144 of 2014
File Number: SYC 1039 of 2012
| Ms Wah |
Appellant
And
| Mr Golay |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
MURPHY J
The issues in this appeal against orders for settlement of property made by Rees J pertain primarily to whether her Honour erred in making no adjustment to her assessment of contributions by reference to s 79(4)(e) of the Family Law Act 1975 (Cth) (“the Act”). An additional ground added by amendment without opposition challenges her Honour’s findings as to contributions. It is convenient to deal with the former first.
The failure to make any s 79(4)(e) adjustment and its corollary, that orders reflecting an alteration of interest in property and superannuation in the proportion 87.5 per cent to the husband and 12.5 per cent to the wife was just and equitable, is said to be “plainly unjust”.[1] To the extent that specific discretionary error is asserted, it is said to derive from a failure to take account of relevant considerations, namely, “each of the relevant matters in s 75(2) of the Act”.[2]
[1] Amended Notice of Appeal, ground 1. Footnote references have been added to the settled reasons.
[2] Amended Notice of Appeal, ground 2.
Otherwise, her Honour’s reasons for failing to effect any s 79(4)(e) adjustment are challenged as inadequate, and her Honour is said to have erred in respect of matters said to emerge from her Honour’s finding that the husband was “not truthful as to the source of the money used to pay his first wife”.[3] The sole basis of challenge to her Honour’s assessment of contributions is that the assessment is not “just and equitable”.[4] In oral submissions it was said that such an assessment is “outside the range”.
[3] Amended Notice of Appeal, ground 4.
[4] Amended Notice of Appeal, ground 9.
The so-called “range” contended for at trial was “15-20 per cent of the asset pool”. The ground does not refer to any of the specific discretionary errors referred to in House v The King,[5] and the numerous High Court authorities which have applied it since which have been referred to by innumerable decisions of this Court.
[5] (1936) 55 CLR 499.
Applications in the appeal
There was no objection to the application to amend the grounds of appeal and leave was granted accordingly. The appellant also sought leave to adduce further evidence comprising an affidavit from a solicitor acting for the wife in respect of a claim for damages for personal injuries sustained in a motor vehicle accident. Her Honour referred to that respective claim when considering the matters her Honour considered relevant pursuant to s 75(2). In particular, her Honour found that the wife’s claim had been accepted by the third party insurer “who currently pays for her medical treatment”.[6]
[6] Reasons, at [97].
Her Honour also “assumed” that “the wife will prosecute her claim and recover the appropriate amount of compensation which will cover her medical costs”.[7] A significant proportion of the solicitor’s affidavit is hearsay and, in any event, irrelevant to any findings made by her Honour. Such of the solicitor’s evidence as is relevant as bearing upon her Honour’s findings pertains to asserted medical and out-of-pocket expenses and the extent to which they might be recoverable to the wife’s benefit.
[7] Reasons, at [100].
Three significant problems attend the receipt of that further evidence. First, much, if not all of it, is hearsay. To the extent that, at least in some respects, the solicitor might be able to depose to matters within his knowledge, the foundation for that knowledge is not stated. Secondly, Queen’s Counsel for the wife submitted that the evidence was admissible as indicating his client’s instructions. Leaving aside other issues of admissibility in that respect, an additional difficulty is that her Honour’s unchallenged finding is that the evidence of the wife should not be accepted unless supported by reliable documentation.
Thirdly, and I think very importantly, not only is no explanation offered for why the evidence was not adduced at trial, but her Honour’s unchallenged finding is:
98. No evidence was called in the wife’s case from the solicitors who act for her in those proceedings of the likely outcome of her claim. There was no evidence of any offers of settlement or the current progress of the claim. The only information available to the Court came from a subpoena issued to the wife’s common law solicitors who produced documents only after being notified that a warrant would be sought for the arrest of the relevant partner.
All of the matters which we consider as relevant to the exercise of the discretion inherent in s 93A(2) of the Act referred to by the High Court in CDJv VAJ[8] point against its exercise in favour of the appellant and we refused leave accordingly.
[8] (1998) 197 CLR 172.
The judgment under appeal
The parties’ interests in property and superannuation and, respectively, their values and amounts are not in issue in this appeal. The result is that they are agreed as totalling approximately $3.9 million. The parties cohabited for a little over eight years. After separation, the wife continued to live in the former matrimonial home in respect of which the husband paid the outgoings for about three years until the trial was heard. At the time of the trial, the husband was aged 71 and the wife 59.
Her Honour assessed contributions in the proportion 87.5 per cent to the husband and 12.5 per cent to the wife. That is, her Honour assessed that the contributions of all types made by both parties should see a disparity between them represented by approximately $2.9 million or 75 per cent of the total value of the pool. In arriving at that conclusion, her Honour found that the wife’s direct capital contributions at the outset of the relationship were “not more than $280,000”.[9] The husband’s capital contribution amounted to about $2.4 million.
[9] Reasons, at [33].
Those findings, too, are not challenged on this appeal. It might be noted in passing that, by reference to her Honour’s findings, the husband contributed about 89 per cent of the parties’ then interest in property and superannuation, and the wife about 11 per cent.
In the course of arriving at the conclusions just expressed, her Honour found that she did not accept that the husband “could not remember where he had sourced some $950,000 for the payment to his first wife”.[10] However, her Honour rejected the contention on behalf the wife “that a finding should be made that the husband has no credit in relation to the whole of his evidence”.[11] Her Honour found in respect of the wife that “it seemed reasonable to conclude that her evidence could not be relied upon unless it was supported by a document”.[12]
[10] Reasons, at [18].
[11] Reasons, at [18].
[12] Reasons, at [53].
Central to the findings made in respect to the wife’s evidence, her Honour found that the wife did not, as she alleged, receive income from China during the relationship, did not have an interest in an apartment in China, and did not otherwise have access to financial resources in China as she claimed. Again, none of those findings are challenged as such, although, as has been seen, the appellant wife contends that different weight or conclusions should have been reached by reason of that finding with respect to the husband. I see no merit in any challenges to her Honour’s orders insofar as they stand upon those challenges alone.
Her Honour found as matters relevant to the position of the husband with respect to s 75(2) of the Act:
a) the husband was 71, was retired, and a self-funded retiree; and
b) the amount he will be ordered to pay the wife in cash, as both parties sought, “will deplete his retirement fund and, therefore, his income. He will, however, retain substantial assets”.[13]
[13] Reasons, at [92].
As issues relevant to the position of the wife, her Honour found:
a)she was 59;
b)she has not been in paid employment since about 2004;
c)her English is very poor; and
d)she is unlikely to obtain paid employment.[14]
[14] Reasons, at [93].
The central findings made by her Honour in respect of the wife’s prospective claim for damages were that “the wife will prosecute her claim and recover the appropriate amount of compensation which will cover her future medical costs”.[15] Any pain and suffering component of any claim would not be taken into account.
[15] Reasons, at [100].
The Challenges to the trial judge’s Orders: s 79(4)(e)
The essence of the challenges mounted by the appellant wife is that her Honour failed to take account of relevant considerations. That is, of course, recognised as a basis for finding that her Honour’s discretion has miscarried. Allied to that challenge is an assertion that her Honour’s reasons do not illuminate sufficiently the path by which she arrived at her s 79(4)(e) assessment.
In my opinion, her Honour has failed to consider relevant matters and her Honour’s discretion has miscarried as a result. I consider that injustice has been caused to the wife as a consequence.
The written submissions on behalf of the wife at trial addressed a number of issues required to be considered by s 75(2), if relevant. Section 75(2)(b) of the Act required her Honour to consider “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. Her Honour noted at [91] of the reasons that a 12.5 per cent division of the parties’ interests in property and superannuation would see the wife receive “a lump sum of $491,326”.
Her Honour later recorded that when account was taken of the property already possessed by the wife, essentially cash, she would receive an additional $368,804. Mr Kearney SC on behalf of the husband argues forcefully that those two findings and a reading of her Honour’s reasons as a whole make it plain that her Honour has considered as a relevant consideration that which s 75(2)(b) requires. However, despite those arguments, I remain unpersuaded that her Honour did so.
While dollar amounts are referred to as, respectively, the amount which the wife has in her possession and the amount she will receive in total as a result of her Honour’s contributions assessment, I am unable to ascertain where her Honour considered the respective positions of the parties by reference to their property and financial resources consequent upon that mooted division.
The evidence reveals that the parties would receive as a consequence of the contributions assessment approximately the same proportions of the property with which they entered the relationship. After approximately 12 years between cohabitation and trial, embracing more than eight years of cohabitation, the husband was, by reference to the assessment of contributions, possessed of three pieces of real property, including a home in which he would reside valued at $1.25 million, a holiday property and a rental unit from which he derived income, three motor vehicles and $50,000 in furniture. From cash and superannuation, (which because of his age he can take as cash, as he might choose) totalling about $1.64 million, the husband would pay to the wife about $368,000, leaving him with cash resources of about $1.3 million.
Additionally relevant in respect to the issue of financial resources more generally is the fact that the husband was able, at the commencement of the relationship, to source and fund nearly a million dollars in order to pay his former wife. When asked to nominate the source of those funds, he said he couldn’t recall. Her Honour did not believe him. After the same approximately 12 year period under consideration by her Honour, the wife had no home, no other real estate, and no financial resources available to her in China or otherwise. She had only a couple of hundred dollars in superannuation.
By reference to her Honour’s assessment, the wife would have a total of about half a million dollars with which to house and support herself, the latter in consequence of her Honour’s finding that she “is unlikely to obtain paid employment”.[16] Section 75(2)(b) of the Act also required her Honour to consider the “physical and mental capacity” of each party for “appropriate gainful employment”. The husband was a self-funded retiree with significant assets and, after payment of the amount consequent upon the mooted contributions assessment, had nearly $1.3 million in cash with which to support himself.
[16] Reasons, at [93].
The wife had, as her Honour found, little if any prospect of gainful employment. The fact that the husband was 71 at trial, and the wife 59, was very important in the consideration of that comparison. As an instance of that, the section requires, in particular, a consideration of the respective “commitments of each of the parties … necessary to enable”[17] them to support themselves. While, in the context of a broad assessment referrable to s 79(4)(e), that may not require a dollar-for-dollar comparison assessment as might be required, for example, in a spouse maintenance case, I am unable to see where her Honour has given any consideration to this important requirement stipulated by s 75(2)(d).
[17] Family Law Act 1974 (Cth) s 75(2)(d).
As a related matter, it was submitted before her Honour, it seems uncontroversially, that the wife was in receipt of sickness benefit at the date of trial, a consideration the specific subject of s 75(2)(f). Again, I am unable to see where her Honour has considered that factor. Separate from the requirement to consider, where relevant, the issue of capacity to earn income, s 75(2)(k) obliged her Honour to consider, if relevant, the “duration of the marriage and the extent to which it has affected the earning capacity of the other party”. So, too, s 75(2)(k) requires a consideration of “a standard of living that, in all the circumstances, is relevant”.
As to the former, as well as finding that the wife is unlikely to obtain paid employment in the future, her Honour also found:
101.The wife has lived in Australia since 1999. There is no evidence that she had an earning capacity before the marriage. She earned a small amount in a jewellery business during the marriage for a year or so. Her earning capacity has not been affected by the circumstances of the marriage.
Those findings must be seen against earlier findings made by her Honour that the wife’s taxation returns revealed a taxable income in the 2003 taxation year of $56,900 (in, it should be noted, 2002-2003 dollars). That taxation year embraced the first seven months of the parties’ cohabitation. In the first full taxation year of the parties’ relationship, the wife’s taxable income was $14,300. Thereafter, the wife occupied the position of a full-time homemaker and the evidence reveals no taxable income was earned by the wife.
While, of course, the wife was some 10 years older than she was at the commencement of the relationship and while the wife was, as revealed in the medical evidence before her Honour, suffering from health issues, I am respectfully unable to see how her Honour’s finding, that the wife’s earning capacity was unaffected by the relationship, was open to her on the evidence before her.
In a similar vein, there can be no doubt that the parties enjoyed a very good standard of living during their relationship; much of that, of course, emanated from the husband’s assets with which he entered the relationship, including what was able to be purchased from his substantial cash reserves and the income derived from them and otherwise by the husband. However, the contrast between that standard of living and the comparative standards of living reasonably open to the parties post orders is nevertheless a relevant matter, and one which, in my view, was not at all considered by her Honour.
Her Honour made reference to the report of a “Dr [BB]” – in fact, the report is signed by Dr CC. In the context of considering the wife’s s 75(2) adjustment, and in that context, the “chronic musculoligamentous strain of the lumbar spine and associated chronic pain syndrome”,[18] her Honour said:
96.On 15 August 2013, the wife was involved in a motor vehicle accident. A single expert, Dr [BB][sic], prepared a report for these proceedings in relation to her injuries. Dr [BB] [sic] diagnosed the wife as suffering from chronic musculoligamentous strain of the lumbar spine and associated chronic pain syndrome. He considers that her prognosis is poor and that she does not appear to have responded to treatment. She is not likely to need operative treatment, but would benefit from the services of a pain clinic, which is generally a one-off treatment option. Dr [BB] [sic] says that the likely costs [sic] of a course of multidisciplinary pain management is $5000. He does not recommend physiotherapy. The wife is likely to require paid [sic] medication in the future, but there is no evidence of the likely costs of the medication.[19]
[18] Reasons, at [96].
[19] Reasons, at [96].
The report from Dr CC (BB) was unchallenged. It reveals ongoing complaints about health problems suffered by the wife from about February 2011, primarily as a result of an earlier car accident at about that time. She received physiotherapy. Dr CC said that “It appears that the wife has anxiety and depression”.[20] The wife had earlier referred to the wife’s treating doctor’s notes to the effect that by July 2013, that is some two and a half years after the first accident, the wife was “still suffering from PTSD”[21] (uncontroversially, a reference to post-traumatic stress disorder).
[20] Report of Dr CC, at p5.
[21] Report of Dr CC, p2.
Dr CC noted that the treating doctor had said in June 2013 that the wife “would be requiring psychological counselling and pain management”,[22] but went on to say that “details of any [necessary] psychological counselling is outside the area of my expertise”.[23]
[22] Report of Dr CC, p2.
[23] Report of Dr CC, p6.
It is insufficient for the intervention of an appellate court that my considerable disquiet, if shared by other members of the Bench, might have resulted in a conclusion that the considerations relevant by reference to s 75(2) should have resulted in adjustment to the wife. However, where an examination of the record reveals that considerations relevant to that section and, in turn, relevant as informing a just and equitable result in a s 79 application, have not been considered, appellate error is established.
For the reasons just given, I consider that to be the case here.
The challenge to the trial judge’s contributions assessment
The terms of the amended ground of appeal relied upon to challenge her Honour’s contribution finding are important to the arguments pertaining to it and to my conclusion and should be quoted. The amended ground provides:
That Her Honour erred in concluding that, having regard to the parties’ respective contributions, both financial and nonfinancial, to the acquisition, maintenance and improvement of their property, it was just and equitable to make orders conferring upon the appellant 12.5% of the total net assets (including superannuation).[24]
[24] Amended Notice of Appeal, Ground 9.
In seeking to meet the challenge mounted by that ground, Mr Kearney SC helpfully referred us to the recent decision of this Court in Elford & Elford [2016] FamCAFC 45. I agree, with respect, that it has particular resonance to the facts and circumstances of this case.
It is appropriate, I think, to quote the passages from Elford relied upon in particular by Mr Kearney SC. Those passages commence with reference to what was said by Kirby J in CDJ v VAJ[25] and proceed as follows:
61.The problem to which his Honour refers is exacerbated when it is difficult, if not impossible, for the court to answer the further question, “plainly wrong by reference to what?” In other areas of the law involving quintessentially discretionary decisions by reference to statutory requirements or criteria (general damages in tort and sentencing in criminal law are two examples) that subsidiary question is answered by reference to decided cases that seek to embrace the principle that in exercising any such discretions, like cases should be treated alike. In family law property cases comparisons with earlier cases have traditionally been eschewed, most commonly by reference to the axiom that each marriage is unique.
62. Here, the challenged result is said to be “plainly wrong” but, as is almost always the case, the basis for the contention is only that the relevant party (here the wife) should have received more. The contention risks this Court engaging in an exercise that is not permitted, described by a former Chief Justice of Australia in this way in Sharman & Evans (1977) 138 CLR 563, at 565:
... the function of a court of appeal, in my opinion, is not to offer what in connexion with another discipline would be called “a second opinion”. Such a court is strictly confined to the remedy of error in the trial or in the assessment of the trial Judge. It cannot be too strongly said that a mere difference of opinion ... does not indicate error on the part of the trial Judge...
[25] (1998) 197 CLR 172.
That Court went on to quote from Babett & Falconer (2015) FLC 98-067 at [31] to [37]. I will not repeat those passages here but, again, I consider they have direct relevance to the issues in this case.
No specific discretionary error is identified in the amended ground of appeal. Stripped to its essentials the argument is, in my view, simply that this Court would have arrived at a different conclusion. That alone is not sufficient to attract the intervention of this Court. I am unable to see any other basis upon which it could be said that her Honour’s contribution assessment was “plainly wrong”.
I reject the assertion of error in respect of contributions.
Conclusion
I conclude, then, that error has been established in respect of her Honour’s s 79(4)(e) assessment with the result that her Honour’s discretion miscarried with resultant injustice to the wife.
I would order as a consequence that the appeal be allowed. I would also order that the Application in an Appeal seeking amendment of the Notice of Appeal be allowed, and that the Application in an Appeal seeking to adduce further evidence be dismissed.
Remitter or re-exercise
Senior counsel for each of the parties are agreed that in the event the appeal was allowed, this Court should determine the substantive application and make orders considered by us to be just and equitable.
With the principles emerging from Allesch v Maunz[26] in mind, each of the parties’ counsel submit that the facts and circumstances existing at the time of this appeal, by which that determination should be made, are those as appear in the record. Consequently, neither seeks to adduce further evidence. In addition, neither counsel seeks to make any additional arguments.
[26] (2000) 203 CLR 172.
I adopt, then, the interests of the parties in property and superannuation found by her Honour and, respectively, their values and amounts. I also consider her Honour’s contribution assessment to be appropriate. I also adopt each of the findings made uncontroversially by her Honour in considering s 75(2). In addition, it will be clear from what I have earlier said that I consider that her Honour ought to have taken account of the matters earlier identified. I do so, and give them weight.
The respective asset positions of the parties consequent upon an 87.5 per cent/12.5 per cent assessment of contributions has already been set out, as to the asset and resource position of each of the parties consequent upon that mooted assessment. There is a very significant disparity between the parties. The husband funds his retirement from his assets and resources which remain considerable. There is no suggestion that there will be any change to that in the future. They are the assets, resources and income of a man who is now 72. He lives in a $1.2 million home, has available to him a valuable piece of real property that he uses as a holiday home, and owns a unit subject to a debt, from which he receives income.
I consider that an adjustment of 7.5 per cent is appropriate. That equates to approximately $294,000. That adjustment would see the wife receiving 20 per cent of the parties’ interests in property and superannuation, or in dollar terms, approximately $786,000. The husband will need to source and pay approximately $663,000.
The disparity between the parties’ respective positions of 60 per cent represents, in dollar terms, about $2.35 million. The husband will retain his three pieces of real property, his three cars, his $50,000 worth of furniture, and have cash and superannuation – which is effectively cash – of slightly more than $1 million. The wife is currently in receipt of sickness benefit, has not worked remuneratively for some years and, in all likelihood, will not in the future. She has a number of health issues. It is not contended that the husband has any such issues.
I consider that the relationship has had a detrimental impact on her capacity to earn income. Her current standard of living is markedly poorer than the husband’s and markedly poorer than that enjoyed by the parties during their relationship. All but about $18,000 of the property retained by the wife is in cash. Thus, from an amount of about $750,000 in cash that she will receive, she will need to re-house and otherwise support herself in the absence of remunerative income. In that respect, I note her age by comparison to the husband’s age.
Such a result seems to me to be just and equitable. I would then, order that Order 2 made by her Honour on 1 October 2014 be set aside, and in lieu, I would order the husband to source and pay to the wife an amount in cash such that the wife receives 20 per cent of the net assets and superannuation of the parties as found by her Honour.
RYAN J
I agree.
ALDRIDGE J
I also agree.
RYAN J
The orders will be:
a)That the application filed 31 March 2016 be granted.
b)That the application in an appeal filed 4 April 2016 be dismissed.
c)The appeal be allowed.
d)Order 2 made 1 October 2014 be set aside.
e)In lieu of Order 2 made 1 October 2014 the husband be ordered to pay to the wife the sum of $663,599.
The wife seeks her costs of the appeal which order the husband opposes. The costs sought are on a party/party basis up until 17 June 2015 and thereafter on an indemnity basis. It is the husband’s position that the Court would not make an order for costs and that it would be appropriate to grant certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to each of the parties.
The wife’s application for costs is presented on the basis that, in her appeal, she sought an order that the husband pays her $761,000, and secured an order for the payment in the amount of $663,599. She has, she says, therefore been substantially successful in the appeal. She also relies on the fact that the husband’s financial circumstances are greatly superior to hers and that there can be no doubt he has the capacity to pay her costs. Those propositions are not in issue and, without more, would support an order for costs in her favour. However, in addition, she presses the fact of offers that were made, and counter-offers, in an attempt to resolve the issues in the appeal. The effect of those is an offer to compromise the appeal was made by the husband, which would have resulted in the wife receiving an additional $100,000, to which she counter-offered with a willingness to settle on the basis of an additional $250,000.
She has, therefore, been approximately $45,000 better off as a result of the orders that will be made in the appeal. This supports, in my view, an order for costs. I am not persuaded that it would support an order for indemnity costs. The correspondence tendered in the application for costs does not suggest that the approach taken by the husband has about it the imprudence which is referred to in the cases to which senior counsel for the appellant took us.
I would, therefore, make an order that the respondent pay the appellant’s costs of and incidental to this appeal, but not in relation to the Application in an Appeal filed on 4 April 2016: those costs be as agreed or assessed, and payment made within 28 days thereof. Self-evidently, the conditions precedent for the granting of a costs certificate are not met.
MURPHY J
I, too, am not persuaded that an order for indemnity costs should be made. I otherwise agree with the orders proposed by the presiding judge and with her Honour’s reasons.
ALDRIDGE J
I agree.
RYAN J
The further order of the Court is that the respondent pay the appellant’s costs of and incidental to this appeal but not in relation to the Application in an Appeal filed 4 April 2016 as agreed or assessed within 28 days thereof.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Murphy & Aldridge JJ) delivered on 7 April 2016.
Associate:
Date: 28 April 2016
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