Woodland & Todd
[2005] FamCA 161
•15 March 2005
[2005] FamCA 161
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT BRISBANE
Appeal No. NA8 of 2004 File No. BRF1767 of 2003
IN THE MATTER OF:
DW
Appellant Wife
and
GT
Respondent Husband
REASONS FOR JUDGMENT OF THE FULL COURT
Coram: Finn, May & O’Reilly JJ
Dates of Hearing: 11 June 2004
Date of Judgment: 15 March 2005
APPEAL SUMMARY
MATTER:DW & GT
APPEAL NUMBER: NA 8 of 2004
(BRF 1767 of 2003)CORAM:Finn, May and O’Reilly JJ
DATE OF HEARING: 11 June 2004
DATE OF JUDGMENT: 15 March 2005
CATCHWORDS: FAMILY LAW – APPEALS – PROPERTY SETTLEMENT – FLA 1975 ss 44(3), 75(2) and 79 –Antecedent agreement – Just and equitable – Whether the trial Judge erred in considering assets as at the date of agreement rather than as at the date of trial – Whether the trial Judge erred in considering the applicable law was that at the date of agreement rather than as at the date of trial – Whether the trial Judge failed to have regard to the identity of, the value of, and contributions to, the property as it existed at the time of trial – Whether the trial Judge failed to have any or any proper regard to s 75(2) factors that might be applicable in the division of the property as it existed at the time of the trial.
CASELAW CITED: Burgoyne and Burgoyne (1978) FLC 90-467
Candlish and Pratt (1980) FLC 90-819
Dupont and Dupont (No.3) (1981) FLC 91-104
Schokker v Edwards (1986) FLC 91-723
Thallon (unreported, 12 May 1993, Lindenmayer J)
Woodcock v Woodcock (1997) FLC 92-739
Appeal allowed.
Costs certificate granted to both parties for costs relating to appeal and retrial.
Introduction
This is an appeal by the wife against orders made by Bell J on 16 January 2004 in which his Honour dismissed the wife’s application for property settlement (filed on 15 November 2002) following a trial on 21 October 2003.
In August 1997, the parties had effected a division of their property through an informal agreement. It was the wife’s case at trial that the division amounted to a ‘partial property settlement’ while the husband contended that the agreement was intended to finalise the parties’ financial arrangements. Subsequent to the 1997 agreement, the assets of the parties with which the Court could deal significantly increased, partly due to the enactment of the Family Law Legislation Amendment (Superannuation) Act 2001 (Cth).
In November 2002, the wife commenced proceedings under s 79 of the Family Law Act 1975 (“the Act”) for an alteration of property interests. She was apparently given leave to do so under s 44(3) of the Act by an order of the Federal Magistrates Court. We have not seen the reasons for that decision.
In her initiating application the wife sought a division of property which would provide her with 70 per cent of the then net assets of the parties. It is agreed that the net asset pool at trial amounted to $2,576,972.80. Before us she sought a division of property that would provide her with 43 per cent of the value of the asset pool at trial. The wife asserts that she is entitled to 35 per cent in recognition of contributions and a further adjustment of eight per cent in her favour due to identified s 75(2) factors. At present day values the wife received $790,158 from the earlier division of property and she now asks for an additional sum of $329,842. (43% of $2,576,972.80 = $1,108,098.3. Counsel for the wife rounded this figure up to $1,120,000 less $790,158 to provide the wife with $329,842).
The approach taken in the wife’s case and the figures and mathematics used by both the lawyers and the trial Judge were difficult to follow and not always consistent.
Factual Background
The relevant factual background to this matter as found by the trial Judge was not the subject of argument in the appeal.
At the time of trial the wife and the husband were aged 46 and 51, respectively.
The parties were married in November 1977 and separated in January 1996. They were thus married for over 18 years and separated for eight at the time of the trial.
There are three children of the marriage born 20 December 1980, 7 June 1984 and 11 February 1991. At the date of separation, the children were aged 15, 11 and 4. At the date of the trial, the children were aged 22, 19 and 12.
10. The wife remarried on 31 March 2001 and the husband remarried on 8 December 2001.
11. As stated previously, in August 1997 the parties divided their property through an informal agreement. At the time of the agreement there were no family law proceedings between the parties and neither party sought to formalise the property division in accordance with the Act. The wife did not have a solicitor at the time the agreement was made.
12. The parties agreed that their net asset worth amounted to $872,915.11 as at 31 August 1997 (Exhibit 1). They included the value of the superannuation funds at that time.
13. Exhibit 1 before the trial Judge was the schedule of assets and liabilities together with their values agreed between the parties as at 31 August 1997. The trial Judge set out this schedule at par 29 of his reasons for judgment:
Assets [L] Road, [B] distribution 279,832.00 Term Deposit (Joint) 42,000.00 (i) Superannuation – husband 320,625.59 Superannuation – Wife 350.00 Insurance AMP – Husband 16,000.00 Insurance AMP – Wife 4,000.00 Honda motor vehicle – Wife 20,000.00 Bank Account – husband 2,124.00 Newcrest Shares – Husband (59) 155.76 BHP Shares – Husband 201,065.76 Annual Leave – Husband 15,000.00 Long Service Leave – Husband 81,800.00 [BH] loss -9,000.00 Total Assets 994,980.11(ii) Liabilities ESP debt on shares -66,220.00 Tax on Superannuation -42,000.00 Tax on deposit funds -12,420.00 Share instalment -1,425.00 Total Liabilities -122,065.00 NET ASSET WORTH 872,915.11 (iii) Resources Voluntary Redundancy Payment 250,000.00 Paid in 2000 Net 216,759.00 Accumulated over 28 years – value as at 31.8.97 193,534.82 (i) This figure is recorded as $63,000 in the parties schedule in exhibit 1.
(ii) The correct figure using $42,000 is $973,953 and using $63,000 is $994,953.
(iii)The correct figure using $42,000 is $851,888 and using $63,000 is $872,888.
14. As previously indicated, the wife filed a property settlement application on 15 November 2002. That application was heard by Bell J on 21 October 2003 and dismissed by him on 16 January 2004. The husband had sought the dismissal of the wife’s application. It is against the dismissal of the application that the wife now appeals.
15. The trial of the matter was heard in Brisbane on 21 October 2003.
The Judgment of the Trial Judge
16. At the commencement of the judgment his Honour said:
“3.The initial question for the Court is whether the agreement of 1997 was intended to finalise issues as between the parties, and if so, whether the agreement achieved a just and equitable distribution of property between the parties at that time. The latter will require examination of the net matrimonial pool at date of agreement, and what each party received pursuant to that agreement namely:
(a)Whether the shares held by the husband were legitimately held on trust for the children of the marriage, and consequently what impact they have upon the question of whether the wife received a just and equitable distribution in August 1997;
(b)What impact the husband’s entitlement to long service leave, as reflected in his redundancy payment of December 2000, has upon the equity of the settlement of August 1997.”
17. After referring to certain factual matters the trial Judge considered Schokker v Edwards (1986) FLC 91-723, Woodcock v Woodcock (1997) FLC 92-739 and Thallon (unreported, 12 May 1993, Lindenmayer J) and determined that he could extract from these cases the following principle:
“15....Where there is an agreement prior to any application to the Court for property settlement or even during such application, that parties have come to an agreement whereby one party accepts certain property in full satisfaction of a property claim, it would in my opinion require the Court to take the following steps:
1. Should the property settlement agreement, as in this case, take place some considerable time ago, it would be incumbent upon the Court to come to adopt the following procedure:
a)to ascertain what the parties assets and financial resources were at that time;
b)to apply the law as it applied at that time;
c)to view the history of the marriage;
d)to come to a conclusion at that time of the approximate distribution of the assets of the parties – in other words, what was a just and equitable distribution of the parties’ assets in accordance with the well-known principles.
16.After having done that, it is necessary to consider whether the property accepted by the complaining party came within the just and equitable principles, in other words, did he or she receive at that time an amount which was just and equitable, taking into consideration not only the assets but the law applicable. Consequently, it is incumbent upon me to consider as I have said, the history of the parties and come to a conclusion as to what a Court properly advised upon the evidence and the assets of the parties or either of them and the values of them would come to what could be considered to be a just and equitable result between the parties.
17.Might I also say that where an agreement has been entered into, it is not of course as is well known, binding upon this Court, but it is evidence of what the parties at that time i.e. the time of the agreement or agreements, considered as they were concerned to be fair”.
18. Then after referring to some further factual matters, and setting out the schedule of assets and liabilities of the parties as at 31 August 1997 (which we have earlier set out), his Honour proceeded to exclude significant items from that schedule. The superannuation interests, leave entitlements and redundancy payment were excluded on the basis that they did not constitute property (at least in 1997). The BHP shares and the attached ESP debt were excluded on a basis that they were held on trust for the children. It seems that his Honour concluded that the asset pool would have amounted to $384,956 and he determined that out of the asset pool he particularised, the wife received $345,832 and the husband received $38,155. There is no doubt a typographical error in paragraph 40 such that ‘$136,155’ should read ‘$38,155’.
19. The trial Judge calculated that the wife’s share amounted to 89.83 per cent and his Honour rounded this figure up to 90 per cent.
20. The trial Judge determined that the parties contributed equally during the marriage and that the wife would have been entitled to no more than a further 30 to 35 per cent adjustment on account of s 75(2) factors.
21. At par 43 in the last sentence his Honour concluded the judgment as follows:
“Since she received something like 90 per cent, I would consider that she was adequately compensated as at 31 August 1997”.
22. It seems that his Honour was thus satisfied that the division of property in August 1997 constituted a just and equitable division of property between the parties and dismissed the wife’s application.
Grounds of Appeal
Appeal Ground 1
23. The precise terms of appeal ground 1 are as follows:
1.That in considering the law applicable to the proven facts in the matter before him, the Trial Judge erred in that he:
a) accepted that in 1997 there existed a property settlement between the parties;
b) proceeded on the basis that it was incumbent upon the court to apply to the arrangements between the parties arrived at in 1997 the law as it applied at that time, namely 1997;
c) failed to have any regard at all to the identity of the property as it existed at the time of the trial before him and the values attributable to that property and to then consider the contributions of each of the parties to that property;
d) failed to have any or any proper regard to the factors arising under s 75(2) of the Family Law Act that might be applicable in the division of the property as it existed at the time of the trial before him.
24. In essence the basis of the appeal is that the trial Judge failed to apply the law at the date of trial to the assets at the date of trial.
Appeal ground 1(a): the existence of a property settlement
25. The wife did not press appeal ground 1 (a), which asserts that the trial Judge erred in accepting that in 1997 there existed a property settlement between the parties. Senior Counsel for the wife accepted that the parties effected a property division pursuant to an informal agreement.
Appeal ground 1(b): the applicable law
26. We will now turn to appeal ground 1 (b), which goes to the heart of this appeal.
27. It is the wife’s case that the trial Judge erred in that he considered that it was necessary to consider whether the property division was just and equitable in the light of the law that was in force in August 1997 and if it was then that would be an end to the application.
28. Counsel for the wife submitted that the trial Judge should have considered whether the 1997 agreement was just and equitable by reference to the law that was applicable at the date of the trial.
29. In support of this proposition, Counsel for the wife relied upon Nygh J’s articulation of the following principle in Dupont and Dupont (No.3) (1981) FLC 91-104 (at p 76,763):
“The principle which can therefore be deduced from Burgoyne and Candlish and Pratt is as follows: where there has been an agreement between the parties, other than an agreement prepared for approval under sec. 87, whether registered under sec. 86 or not, and an application is made subsequently under sec. 79 seeking orders inconsistent with the terms of such agreement, the Court must determine that application on its own merits having regard to the factors as set out in sec. 79(4) as they exist at the time of the application under sec. 79 and not at the time of making the agreement: Candlish and Pratt. The agreement should be considered but its provisions only enforced if they coincide with the order which it is just and equitable to make under sec. 79 at the time of the hearing: Burgoyne and Burgoyne”.
30. This was also the submission made by Counsel for the wife at the trial (p 155 AB).
31. In Burgoyne and Burgoyne (1978) FLC 90-467, the parties registered a maintenance agreement pursuant to s 86 of the Act in which the husband agreed to transfer his interest in the former matrimonial home to the wife. The husband defaulted on the transfer of the property and applied for an order under s 79 that the property be sold and the proceeds of sale divided equally between the parties. He sought to have the agreement set aside on the basis that he did not understand the effect of its registration.
32. In determining that an agreement registered under s 86 cannot oust the jurisdiction of the Court to hear an application under s 74 or s 79, the Full Court noted (at p 77,393):
“No doubt if proceedings under sec. 74 or 79 are brought the Court would consider the agreement and its effect and the parties’ intentions when they entered into it….(T)he Court would not be bound to give effect to the agreement, unless it reached the view that the proper order to make under sec. 74 or under sec. 79 was that set out in the agreement. In reaching such a conclusion, the Court would be exercising its discretion under those sections and would not confine itself to considering whether the terms of the agreement were proper”.
33. In Candlish and Pratt (1980) FLC 90-819, the parties entered into an agreement, which was neither registered in accordance with s 86 nor approved under s 87 of the Act. The husband commenced proceedings under s 79 seeking orders that were inconsistent with the terms of the agreement. At first instance, the trial Judge enforced the agreement finding that its terms were reasonable at the time the agreement was entered into.
34. The Full Court said (at pp 75,170 - 75,171):
“The Court must consider the issues relevant to the application under s 79 at the time the matter is before it, not retrospectively. In so doing, the existence of the agreement is a relevant factor, as is the fact that the parties have accepted it and acted upon it, possibly to the detriment of one or other of them.
In the view of this Court his Honour did not for the reasons outlined, approach correctly the exercise of discretion under s 79. In particular, he assessed the reasonableness and propriety of the Deed as at the date it was entered into rather than considering what order was just and equitable in the light of the parties’ circumstances at the time the proceedings were before him. It therefore falls to this Court to consider the relevant factors and to determine what order is just and equitable as between the parties in the exercise of the Court’s jurisdiction under s 79”.
35. Counsel for the husband relied upon Woodcock v Woodcock (1997) FLC 92-739 in which the Full Court considered the application of the doctrine of estoppel to property settlement and spousal maintenance applications. The Full Court held that the doctrine of estoppel does not operate to prevent the Court from exercising its jurisdiction to make an order under ss 74, 79 and 85A. Following a detailed review of earlier authorities, their Honours reached the following conclusion (at p 83,968):
“In our view the cases referred to above clearly indicate that the Court’s jurisdiction to grant relief under s 74 or 79 can only be ousted by court order or by an agreement approved pursuant to the provisions of s 87. It may be that the ability of a court to take into account the terms of an unapproved agreement creates in the words of Hoffman LJ ‘the worst of both worlds’ as it will be impossible to predict from case to case, exactly what weight ought to be given to the agreement (Schokker v Edwards: agreement followed; c/f Klesnik: agreement given little weight). However it is the dominant and unwavering thread of all of the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the Court”.
36. Nevertheless, the Full Court held that the facts relied upon to establish the existence of circumstances where the doctrine of estoppel might otherwise operate (eg an agreement reached or a representation made and acted upon) may well be relevant to determine:
“(a)whether it is proper to make an order for the provision of maintenance pursuant to s 74 of the Family Law Act.
(b)whether it is appropriate to make an order for alteration of property interests pursuant to s 79(1) of the Family Law Act.
(c)whether it is just and equitable to make an order for alteration of property interests within the meaning of s 79(2) of the Family Law Act.
(d)whether it is necessary to make an order to do justice within the meaning of s 80(1)(k) of the Family law Act.
(e)whether it is just and equitable to make an order with respect to the application for the benefit of all or any of the parties to, and the children of a marriage of the whole or part of any property dealt with by ante-nuptial or post-nuptial settlements made in relation to the marriage within the meaning of s 85A of the Family Law Act”.
37. It was the husband’s submission that Woodcock (supra), in particular paras (a) to (e) set out above, establishes that where parties have in the absence of a Court order previously divided their assets, the first step is that the trial Judge must determine whether the earlier agreement was just and equitable according to the facts as they existed at the time it was made and according to the law in force at the time it was made in order then to consider whether it would be proper, appropriate and just and equitable to make an order under s 79 for the alteration of property interests. Counsel for the husband submitted to the effect that unless the answer is negative the trial Judge does not then turn his or her mind to the asset pool and the applicable law as at the date of trial. Thus, it appears that Counsel for the husband proposed a threshold test.
38. In our view, this is an incorrect statement of law. We consider that Woodcock does no more than confirm the principles stated in Dupont (no 3), Candlish & Pratt and Burgoyne.
39. Where parties enter into an agreement concerning property, other than an agreement approved under the provisions of the Act or embodied in consent orders, and one party subsequently commences proceedings under s 79 for an alteration of property interests, the Court must determine the application on its merits having regard to the factors as set out in s 79(4) as they exist at the time of the hearing of the application under s 79 and according to the law in force at that time and not, as to either of those two matters, at the time the agreement was made. There is no threshold test, before embarking upon the s 79 exercise, to determine whether the earlier agreement was just and equitable at the time it was made according to the facts as they then existed and the law then in force. The earlier agreement should be considered (as an indication of what the parties may have regarded as just and equitable at the time), but its provisions only given effect if they coincide with an order which is just and equitable according to s 79 at the time of the hearing.
40. In determining s 79 applications in circumstances where there has been an earlier agreement, it will often be necessary to consider what was the value of the parties’ assets at the time of the agreement, what their various contributions were to that time, and what might have been an appropriate s 75(2) adjustment. A consideration of these matters might well be necessary in order to provide a background to the parties’ understanding of what was a just and equitable settlement at the time. However, and perhaps more significantly, it would generally be necessary for the Court to acquaint itself with changes in the composition and value of the property pool, so that post-separation contributions can be assessed.
41. In the present case therefore it may well have been necessary for the trial Judge to consider these various matters existing at the time of the agreement. However it was also necessary for him to go further and to consider the composition and value of the assets and the various matters referred to in s 79(4) as they existed at the date of the hearing. The fact that he did not undertake this further exercise must lead to the conclusion that there is substance in ground 1 (b).
Appeal ground 1(c): property pool assessment and contributions
42. Pursuant to appeal ground 1(c), the wife asserts that the trial Judge erred in that his Honour failed to have regard to the identity of the property as it existed at the time of trial and the value of the property and failed then to consider the contributions of each of the parties to that property.
43. Following our conclusions in regard to appeal ground 1(b), we are of the view that this assertion also has substance. The trial Judge was required to refer to the asset pool at the time of the hearing and consider the contributions of both parties to that property.
44. At trial the parties agreed that their net asset worth amounted to $2,576,972.80 (pp 172-173 AB).
Asset/Liability Position
Agreed as at 20 October 2003
Despcription Husband Wife As Trustee for the children of the marriage [S] property
[C] property
Less mortgage debt
To Commonwealth Savings Bank$325,000.00
$1,100,000.00
($475,616.00)
$949,384.00
[H] property
Less mortgage debt$800,000.00
$57,339.25$742,660.75
Shares in Husband’s name:
Newcrest Mining
BHP Billiton
BHP Steel
AMP
Qantas shares
Qantas deferred
WMC
Alumina
$14,810.82
$424,698.12
$5,286.68
$6,103.70
$974.61
Nil
Nil
Nil
$451,873.93
$683.22
$170,074.08
$15,826.86
Nil
Nil
Nil
$5302.50
$6321.00
$198,207.66
Shares in the Wife’s name:
Telstra
TAB
AMP
$4,165.00
The Husband’s superannuation
BHP Billiton
Qantas
$138,169.00
$34,447.73
The Wife’s Superannuation $18.958.00 Husband’s personal bank accounts $710.40 $8,521.60 Wife’s bank accounts $6,375.00 Wife’s motor vehicle $10,000.00 Husband’s household furniture, chattels and other assets $5,500.00
Wife’s household furniture, chattels and other assets $8,000.00
Total $1,580,084.90 $790,158.75 $206,729.26 TOTAL $2,576,972.80
45. It was agreed that the wife’s net asset worth amounted to $790,158.75 and the husband’s net worth amounted to $1,580,084.90. The dispute in relation to the identity of the property to be included in the pool was on account of shares worth $198,207.66 and $8,521.60 in the husband’s personal bank account, allegedly held in trust for the children.
46. As to contributions, the trial Judge largely assessed the parties’ contributions during the marriage only rather than up to the date of trial, save for the fact that his Honour noted that the wife continued as the primary carer of the children and that the husband contributed $203,259.92 by way of child support from separation up to the date of trial, which equates to a payment rate of $186.00 per week per child over the seven-year period. The trial Judge failed to otherwise detail the history of the parties’ financial relationship after separation, presumably as he reached the view that he was not required to.
47. Appeal ground 1(c) also must succeed.
Appeal ground 1(d): s 75(2) factors
48. Pursuant to appeal ground 1 (d), the wife asserts that the trial Judge erred in that his Honour failed to have any or any proper regard to the factors arising under s 75(2) of the Act that might be applicable in the division of the property as it existed at the time of the trial.
49. The trial Judge addressed the issue of s 75(2) factors at par 43 of his Honour’s reasons for judgment:
“As at say August 1997, the following matters are of importance in relation to the s75(2) factors. The father has a substantial imbalance in relation to his earning capacity as against the mother’s. Secondly, he had large financial resources. He was of course only about 43 and could not anticipate having at that time, I emphasise once again, the superannuation entitlement vesting in him prior to at least 55. I would have thought taking those matters into consideration that insofar as the contributions during marriage were concerned, it would have been equal. Taking into consideration the responsibility of the mother for the children, the fact that there is an imbalance between her opportunity to have a salary anywhere near that of the father. The fact that the husband has reasonably generously supported the children has also supported the wife for a period until she received employment from her present husband’s company. I consider that the wife would have been entitled to no more than 30 to 35 per cent loading for s75(2) factors. Since she received something like 90 per cent, I would consider that she was adequately compensated as at 31 August 1997”.
50. Counsel for the wife submitted that the trial Judge’s use of past tense on occasions suggests that his Honour considered the relevant s 75(2) factors as at August 1997 rather than as at the date of trial. The wife’s counsel did concede, however, that his Honour considered one factor as at the date of trial, that is, the substantial imbalance in relation to the parties’ earning capacity.
51. Apart from other considerations, in order to determine what order, if any, should be made pursuant to s 79 as at the date of the trial, the trial Judge was required to consider all relevant s 75(2) factors that existed at that time.
52. As the trial Judge limited his consideration to August 1997 factors and that of the parties’ disparate earning capacities, appeal ground 1(d) also must succeed.
Remaining Grounds of Appeal and Conclusion
53. The errors of the trial Judge demonstrated in ground 1 inevitably lead to the appeal being allowed. In our view it is not possible for the Court to re-exercise the discretion for a number of reasons including the need to make findings about the parties’ financial circumstances as at the date of the trial and other s 75(2) matters notwithstanding some suggestion in the submissions of both Counsel that we should do so. Unfortunately therefore the matter must be remitted for re-trial.
54. As to the remaining grounds of appeal, grounds 3 and 4, which are respectively concerned with the trial Judge’s treatment of the parties’ superannuation entitlements and with the husband’s redundancy payment, must have substance given our conclusions in relation to ground 1. Ground 2 also appears to us to have some substance. But given that we have determined that there should be a new trial, it is unnecessary that we say more about these remaining grounds.
Costs
55. At the conclusion of the hearing of the appeal we received submissions in relation to the costs of the appeal. We are of the opinion in this case that as the appeal has succeeded on an error of law, we propose in light of the submissions received to grant certificates under the Federal Proceedings (Costs) Act1981 both in respect of the appeal and of the retrial to both parties.
Orders
56. That the appeal be allowed.
57. That the orders made by the Honourable Justice Bell on 16 January 2004 be set aside.
58. That the application for property settlement be remitted for rehearing at the Brisbane Registry of this Court.
59. That the appellant wife is granted 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 wife in respect of the costs incurred by the wife in relation to the appeal.
60. That the respondent husband is granted a costs certificate pursuant to the provisions of s 6 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 husband in respect of the costs incurred by the husband in relation to the appeal.
61. That both parties are granted a costs certificate pursuant to the provisions of s 8 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 both parties in respect of such part as the Attorney General considers appropriate of any costs incurred by both parties in relation to the new trial granted by these orders.
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