Gough & Amado (No. 2) [2008]

APPLICATION FOR REINSTATEMENT OF APPEAL – Where appeal deemed abandoned – Where applicant was unable to prosecute appeal due to illness – Appeal reinstated subject to applicant’s compliance with costs orders.

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That subject to compliance by the applicant wife with Orders 3 and 5 of these orders, the applicant’s appeal filed on 7 May 2007 against the orders of the Honourable Justice Rose made 4 April 2007 is reinstated.
(2) That the applicant wife file and serve any amended Notice of Appeal on or before 15 August 2008.
(3) The applicant wife pay the respondent husband’s costs of and incidental to this application in the sum of $3,500.00 such sum to be paid on or before 15 August 2008.
(4) IT IS NOTED THAT the costs of the respondent husband incurred in the preparation of his affidavit filed 16 April 2008 and the affidavit of Clayton Andrew Long sworn 18 April 2008 are not included in the costs payable pursuant to Order 3 of these orders as those affidavits deal substantially with the relief sought in paragraph 2 of the Response filed on 18 April 2008 which application will be determined by the Full Court.
(5) The applicant wife shall file and serve a draft appeal index on or before 15 August 2008.
(6) That subject to compliance with Order 3 and Order 5 of these orders, the Appeal Registrar is requested to conduct a procedural hearing to settle the appeal books and to make such other directions as are necessary for the hearing of the appeal at a time and date to be notified to the parties.
(7) The husband’s application for security for costs in his Response filed 18 April 2008 is stood over for listing before the Full Court at a sitting to be advised to the parties by the Appeal Registrar.
(8) IT IS FURTHER NOTED that on 17 March 2008 the wife’s trustee in bankruptcy appeared and was provided with documents relevant to this application. The Court is now aware that the wife asserts the sequestration order made against her was set aside on 25 June 2008.

IT IS NOTED that publication of this judgment under the pseudonym Gough & Amado is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: EA 62 of 2007
File Number: SYF 5594 of 2003

Applicant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The application before me is an Application in a Case filed on 12 February 2008 by Ms Gough (“the wife”) in which she seeks orders for the reinstatement of an appeal No EA 62 of 2007.
2. The application is opposed by Mr Amado (“the husband”) in a Response filed 18 April 2008. In the Response, the husband seeks in the alternate, in the event the appeal is reinstated, that the wife be ordered to pay security for costs of the appeal. It was agreed with the husband’s solicitor when the matter was before me on 22 April 2008 that, in the event the appeal was reinstated, the application for security for costs of the appeal would be listed before a Full Court as soon as practical for determination.
3. There have been delays in hearing this application. It was first listed before me on 26 February 2008 when the wife appeared on her own behalf by telephone and the husband was represented by his solicitor, Mr Long. On that day Mr Long tendered a letter which disclosed that the parties had each been made bankrupt for failure to pay a debt for strata levies in respect of a home unit in Sydney (“the matrimonial home”). The matter was stood over before me until 17 March 2008. On that occasion the wife appeared in person, the husband was legally represented by Mr Long, and Mr Mullette appeared as the legal representative for the parties’ trustee in bankruptcy. Directions were made for the husband to file material in opposition to the wife’s application, and the matter was further stood over until 22 April 2008.
4. On 22 April 2008 Mr Mullette again appeared on behalf of the trustee. I delivered ex tempore reasons for judgment on that day when the wife opposed a further adjournment of the matter. I incorporate those reasons as part of these reasons for judgment.
5. On 7 July 2008 the wife was legally represented, Mr Barham of counsel appearing on her behalf. The husband was represented by Mr Bell of counsel. The wife’s affidavit material disclosed that she deposed to the sequestration order against her being set aside on 25 June 2008. There was no dispute that the sequestration order against the husband had also been set aside at an earlier date.

DOCUMENTS RELIED ON IN THIS APPLICATION

1. The wife relied on her affidavit sworn 7 February 2008 in support of the application. On 7 July 2008 I granted leave to the wife to file in Court additional affidavit material being her affidavit sworn or affirmed on 7 July 2008, and an affidavit of Mr B (“Mr B”) sworn on 7 July 2008. She also relied on tendered documents including a medical certificate, receipt and a Health Fund statement.
2. The husband relied on his affidavit which was either sworn or affirmed before a notary public in Indonesia on 16 April 2008 and filed on 18 April 2008. He also relied on parts of an affidavit Mr Long, his solicitor sworn 18 April 2008. Substantial parts of Mr Long’s affidavit address issues relevant to his client’s application for security for costs.

BACKGROUND RELEVANT TO THIS APPLICATION

1. The following historical matters are relevant to this application.
2. The parties’ competing property settlement proceedings under s 79 were heard by Rose J on 1 and 2 February 2007 and his Honour delivered reasons and made orders on 4 May 2007 dividing the parties’ net assets which he found to be $571,009.14 as to 80 per cent to the husband and 20 per cent to the wife. At the hearing before his Honour the husband was represented by counsel and the wife was self represented.
3. On 7 May 2007 the wife filed, within the time prescribed in the Family Law Rules 2004, (“the rules”) a Notice of Appeal. No further steps were taken by the wife to prosecute the appeal until the filing of the present application. The Notice of Address for Service shown on the Notice of Appeal is the matrimonial home.
4. On 8 May 2007 the Appeal Registrar wrote to the applicant wife advising, inter alia, the necessity to file a pre-argument statement by 28 May 2007.
5. On 14 June 2007 Messrs Doolan Wagner & Callaghan, solicitors wrote to the Appeal Registrar advising that they had “received initial instructions to act on behalf of Mrs [Gough]”.
6. On 19 June 2007 the Appeal Registrar contacted Messrs Doolan Wagner & Callaghan solicitors and advised that the applicant’s wife’s appeal was deemed abandoned.
7. On 21 June 2007 Doolan Wagner & Callaghan filed a Notice of Address for Service on behalf of the wife. Those solicitors filed a Notice of Ceasing to Act on 29 January 2008.
8. On 28 June 2007 it appears the Notice of Address for Service not having been brought to the Appeal Registrar’s attention, she wrote to the parties personally and advised the appeal was taken to have been abandoned on 25 June 2007 in accordance with the rules. By letter dated 2 July 2007, the wife’s then solicitors wrote to the Court advising they anticipated receiving instructions from the wife to file an application for reinstatement and annexing a copy of a medical certificate, noting a copy of the certificate had been provided to the husband’s counsel, Mr R Bell. The certificate, which is from Dr W, psychiatrist, is in the following terms:

Ms [Gough] has been under my professional care previously, and was again referred to see me on the 25th May, this year.

She has been subjected to repeated and sadistic physical and mental abuse of recent times, and in consequence has become very depressed, and very highly anxious.

I have arranged for her admission to [NC in North Sydney] for inpatient care.

At the moment, and for the foreseeable future, she is quite beyond looking after her affairs. She cannot make decisions, she cannot concentrate, her memory is terrible, and her judgement [sic] is markedly impaired.

It is impossible to prognosticate as to how long this state of affairs will prevail, but it will be for at least six weeks.

[Dr W]

Psychiatrist

1. On 21 February 2008 the wife filed a document which she entitled “Case Outline Summaries of Argument”.

RELEVANT STATUTE LAW AND RULES

1. Section 94(2D) of the Family Law Act 1975 (Cth) deals with applications of a procedural nature in respect of appeals. It is in the follow terms:

Section 94

(2D) Applications of a procedural nature, including applications:

...

(g) to reinstate an appeal dismissed under a provision of the Rules of Court; or

...

may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.

Section 94(2F) provides:

(2F) No appeal lies under this section from an order or decision made under subsection (2B) or (2D).

1. The effect of s 94(2D) is that, other than an application being accepted by the High Court for special leave, any determination I make in this matter is not subject to an appeal to the Full Court.
2. Rule 22.56 of the rules is in the following terms:

Rule 22.56 Abandoning an appeal

(1) If, by the date for compliance (as fixed in accordance with these Rules or extended by an order), an appellant does not file:

(a) a pre-argument statement; or

(b) the appeal books;

an appeal is taken to be abandoned at the end of the 28th day after the date for compliance.

(2) If the draft index to the appeal books is not filed within 3 months after the date of cancellation of the first court date under paragraph 22.15 (a), the appeal is taken to be abandoned.

(3) If the appeal is taken to be abandoned, the appellant may be ordered to pay the costs of the other parties to the appeal.

1. Also relevant is r 22.57 of the rules. It is in the following terms:

Rule 22.57 Application for reinstatement of appeal

(1) A party may apply to have an appeal abandoned under subrule 22.56 (1) reinstated.

(2) In determining an application under subrule (1), the court may consider, among other things, the following:

(a) the main purpose of these Rules (see rule 1.04);

(b) the administration of justice;

(c) whether the application has been made promptly;

(d) whether the non-compliance was intentional;

(e) whether there is a good reason for the non-compliance;

(f) the extent to which the party has otherwise complied, in the case, with orders and legislative provisions;

(g) whether the non-compliance was caused by the party or the party’s lawyer;

(h) the effect of non-compliance on each other party;

(i) the effect that reinstating the appeal would have on each other party and on parties to other cases in the court;

(j) an order for costs, including costs on an indemnity basis;

(k) whether a party should be prevented from taking any further steps in the appeal until the costs are paid.

1. Rule 1.04 is in the following terms:

The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.

Note Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.

EVIDENCE

1. In her affidavit sworn or affirmed 7 July 2008 the wife deposed that she returned to Australia from France on 18 January 2008 and then received the correspondence from the Court notifying her that the appeal had been discontinued. She asserted she received this correspondence at the same time as she received notification of the creditor’s petition filed against her in the Federal Magistrates Court.
2. The wife also deposed to recalling a visit from a solicitor whilst she was an inpatient at NC. She further asserted that it was always her intention to pursue the appeal.
3. The wife annexed to her affidavit a copy of clinical notes from NC. The NC clinical notes reveal that the wife was admitted on 31 May 2007 and discharged on 4 July 2007. Her diagnosis was “AXIS 1 Adjustment Disorder and Alcohol Abuse”. Her medications on discharge were noted. Her “Mental State Examination” was noted as “[a]nxious, agitated, [e]motionally labile, [e]ngages, [n]ot suicidal”. “Inpatient management” was noted as:

The patient appeared to have significant social problems which increased her anxiety to the point where much of her interactions appeared to take on a dysfunctional hue on the ward because of this. However, as her anxiety diminished she appeared to improve and she felt calm enough to cope with her difficulties outside [NC]. Accordingly she was discharged after trial overnight leave from [NC]. She was planning to shortly return to France.

1. “Recommendations for Future Management” were noted as “[c]ontinued psychiatric follow up to help with psychotherapeutic support in the light of her other social problems”.
2. Mr B also swore an affidavit in the wife’s case. He asserted he was the de facto partner of the wife having been such since approximately September 2003. Much of Mr B’s material is inadmissible. Mr B said that on or about 12 July 2007 he met the wife after she was released from hospital and had a conversation with her. He said he did not see the wife again until late October 2008 [semble October 2007] (paragraph 31). It is not clear from Mr B’s affidavit whether this meeting was in Australia or France.
3. In his affidavit Mr Long referred to the wife filing her Notice of Appeal on 7 May 2007 and that on the same day she filed an application seeking a stay of Order 2 made by the trial Judge that she vacate the matrimonial home.
4. On 9 May 2007 Rose J made an order that there be a stay of the proceedings in respect of Order 2 of his orders made on 4 May 2007, which stay would expire on 3 June 2007.
5. Mr Long also relied on the orders and judgment of Rose J made 11 May 2007. On that occasion Rose J dismissed the wife’s application for a stay of all orders and further ordered that she pay the husband’s costs of and incidental to her application for a stay. Costs were to be agreed or “taxed” (assessed). Order 2 of his Honour’s orders made 4 May 2007 was in the following terms:

That on or before 11 May 2007 the respondent shall vacate the property leaving it in good order and condition and remain away from the property.

1. Mr Long noted that the wife’s pre argument statement was due to be filed on 28 May 2007. Mr Long deposed that between June 2007 and September 2007 he received and replied to correspondence from Doolan Wagner & Callaghan on various topics and that the wife “was able to and did give instructions to lawyers throughout this period on many topics that she initiated”. Mr Long annexed to his affidavit a letter to Doolan Wagner & Callaghan dated 12 September 2007. In that letter the husband’s solicitor, inter alia, said:

...

COSTS APPLICATION

We assume that the wife is currently in Australia. In any event the international facsimile number provided to us by you for service does not work. We advise that on Friday 14 September 2007 we will seek that the Court accept that substituted service has been affected [sic] on the wife through yourselves...

...

YOUR INSTRUCTIONS

We are now asking you yet again:

(a) Are you instructed in relation to the abandoned appeal?
(b) Are you instructed in relation to the Cost Application to be heard on 14 September 2007.
(c) By virtue of your last two letters we assume but ask you to make clear are you instructed in relation to the implementation of the court’s judgement [sic] at first instance.

...

1. Mr Long further deposed that on 14 September 2007 the wife was legally represented by Archbold Legal Solutions who instructed Mr Frank Coyne of counsel to appear at the Court on the return date of the husband’s costs application. He deposed that a Notice of Address for Service was filed by Archbold Legal Solutions on 18 September 2007. Mr Long said, (at paragraph 24), “Ms [Gough] was instructing two sets of lawyers at the same time, yet she took no steps regarding her abandoned Appeal”.

DISCUSSION

1. Before me the wife’s counsel formulated his submissions to correspond with the order of r 22.57. I propose to follow a similar course in considering this application.

The main purpose of the rules

1. I have already set out the content of r 22.57 and r 1.04 earlier in these reasons. The wife’s counsel emphasised that for her case to be resolved in a “just” manner it was necessary for her to have the opportunity of challenging the trial Judge’s orders, and that there were circumstances, namely the state of the wife’s health in 2007, which supported reinstatement of the appeal.
2. Counsel for the husband pointed out that the proceedings had commenced in 2003, that the parties were not young and their assets were modest. He submitted that the wife had not prosecuted the appeal in a timely manner, and had caused the husband to incur additional costs. He said r 1.04 supported the husband’s assertion that the wife’s application for reinstatement of the appeal should be dismissed.
3. There was no evidence before me relevant to any delay caused by either of the parties from the commencement of the proceedings until the hearing before the trial Judge which occurred on 1 and 2 February 2007 with reasons for judgment being published and orders made on 4 May 2007. As I have already noted the wife, who was self represented, filed her Notice of Appeal promptly (on 7 May 2007).
4. I accept that during the period the wife was required to file a pre-argument statement and draft appeal index she was hospitalised at NC, and that Dr W’s opinion was that she was unable to look after her affairs for at least six weeks from 25 May 2007. The evidence of the wife’s movements after her discharge from NC is scant. It appears she travelled to France for some time, and then resided in Perth.
5. There was no up to date evidence before me about the sale of the matrimonial home pursuant to the orders of the trial Judge to implement the sale of that property. There was no evidence that the wife had received her entitlement from that property pursuant to the trial Judge’s orders.
6. I accept that reinstatement of the appeal will continue the litigation, and that the time from filing the appeal to hearing will be longer than normal because, in part, of the abandonment of the appeal. However the delay from January 2008 to July 2008 rests with both parties by reason of the failure to sell the matrimonial home and pay strata levies which led to the filing of creditor’s petitions and the parties’ subsequent bankruptcies.
7. Overall I am not satisfied that the provisions of r 1.04 disqualify the wife’s application in the circumstances I have outlined above.

Administration of justice

1. I accept that absent reinstatement or an application under s 79A the property orders made by the trial Judge are final and binding on the parties, and the wife will have no opportunity to challenge the orders. The husband is prima facie entitled to the fruits of the judgment particularly bearing in mind the wife’s application for a stay of the orders was refused by the trial Judge.
2. The husband’s counsel submitted that the Notice of Appeal did not disclose any proper grounds of appeal, and I should take this factor into account in the exercise of my discretion.
3. The grounds of appeal as best I can discern them assert three errors by the trial Judge:
   • That his Honour made a factual error which error vitiated his exercise of discretion;
   • That the exercise of discretion by the trial Judge was outside the reasonable ambit of his discretion so that the orders made were not just and equitable; and
   • The wife was denied procedural fairness as she did not see final outline of submissions provided by the husband’s counsel until after his Honour’s reasons for judgment.
4. I note that no particulars of the factual error are pleaded. I also note the well established principles on the limits of appellate interference with a discretionary judgment. As to the third asserted error, the trial Judge in his stay judgment noted at paragraph 14 of his judgment of 11 May 2007:

Exhibit 15 was filed in court prior to the conclusion of the hearing, namely on 2 February 2007 and the applicant responded directly to it during the course of her oral submissions. Consequently, that ground of appeal is nothing other than a blatant misrepresentation.

1. The wife’s counsel at the hearing before me submitted that the wife, not having had the benefit of legal advice, now wished to file amended grounds of appeal, and he briefly outlined a number of challenges which the wife wished to agitate in an Amended Notice of Appeal.
2. I accept the Notice of Appeal as presently drafted lacks particulars and does not disclose cogent grounds of appeal. However given the submissions of the wife’s counsel about proposed amended grounds of appeal I give less weight to the submission of the husband’s counsel on this topic than I otherwise would in the exercise of my discretion. I also take into account the husband’s pending application for security for costs when a more detailed examination of any amended grounds can be undertaken.

Whether the application has been made promptly

1. The wife deposed that she only became aware of the abandonment of the appeal in January 2008 and thereafter promptly filed this application. I accept that the wife had no knowledge that she had been made bankrupt until the hearing before me on 26 February 2008, and at all times thereafter she agitated to have this application determined and not adjourned. The husband’s solicitor did not oppose the adjournments sought by the trustee in bankruptcy. Whilst there was a delay from May 2007 until January 2008 I am satisfied the wife’s explanation, although not entirely satisfactory, is supported in part by the exhibits in these proceedings. I accept she was not competent to prosecute the appeal at least in May/June 2007.

Whether the non-compliance was intentional

1. From my discussion above, I am satisfied that the wife’s failure to file her pre-argument summary and draft appeal index was unintentional.

Whether there is a good reason for the non-compliance

1. I am satisfied that there was a good reason for the wife’s non-compliance with prosecution of the appeal per se. The wife’s admission to NC impeded her compliance with the rules in respect of filing a draft appeal index and pre-argument statement. At the time the wife filed her appeal the evidence discloses that she was living in the matrimonial home, and the order requiring her to vacate that property was stayed until 11 May 2007. The wife’s failure to provide a new address for service promptly thereafter is explicable in the circumstances of her admission to NC.
2. I have some concerns about the wife’s actions in the period around September, 2007 some months after her discharge from hospital, although the correspondence from the husband’s solicitors to solicitors who may have been acting on her behalf at the time puts in issue whether or not those solicitors had instructions from the wife. The provision of the international facsimile number suggests the wife was in France at that time. The wife’s failure to change her address for service from the matrimonial home to her subsequent Perth address is less clear. However, I note that Messrs Doolan Wagner & Callaghan filed a Notice of Address for Service on behalf of the wife, and did not file a Notice of Ceasing to Act until 29 January 2008.
3. Overall, on balance, I am satisfied that there are reasons for non-compliance by the wife, and that at least in the period May to July 2007 there were cogent reasons for her non-compliance with the rules.

The extent to which the party has otherwise complied, in the case, with orders and other legislative provisions

1. It is asserted on behalf of the husband that the wife is in breach of orders by the trial Judge. Mr Long asserted the wife did not vacate the matrimonial home by 3 June 2007 and the husband incurred costs packing up furniture and cleaning the matrimonial home. There is no evidence of any enforcement proceedings. I accept that during this period the wife was hospitalised in NC.
2. Mr Long also deposed that the husband had obtained a costs order against the wife for the substantive proceedings, and that the husband sought payment in part satisfaction of that order from the wife’s share of the proceeds of sale of the matrimonial home and this part of the husband’s application is pending. So far as I am aware, no appeal was filed by the wife against the costs order. The husband’s solicitor exhibited to his affidavit a bill of costs which was prepared on a party and party basis. There is no evidence of service of the bill on the wife. Mr Long in his affidavit (paragraph 42) asserted the time to challenge the bill had expired, and that the husband intended to have the bill “taxed”. Given the costs issues have not been finalised, and that the husband seeks payment from the wife’s share of proceeds of sale of the home, I disregard this issue as a factor to take into account under this sub-rule.

Whether the non-compliance was caused by the party or the other party’s lawyer

1. No submissions were addressed to me in respect of this sub-rule. I am unable on the evidence before me to consider this factor.

The effect of non-compliance on the other party

1. In his affidavit the husband, who is aged 71 years, deposed that he no longer resides in Australia, and that he moved out of Australia to obtain secure employment and have the benefit of family support. However he deposed that he no longer has the benefit of family support, and that he is concerned he will be harassed by the wife or Mr B. He stated that his only asset is the proceeds of sale of the matrimonial home. He deposed that he has employment and his employer provides accommodation and use of a motor vehicle. He is in receipt of income of approximately $7,000.00 per month and has savings of approximately $30,000.00. He deposed that he is unable to return to Australia as he has no place to live and no employment. The husband deposed that after paying all expenses he expected to receive between $50,000.00 and $70,000.00 from the proceeds of sale of the matrimonial home.
2. I accept that ongoing litigation will adversely affect the husband, although I note there is no stay of the trial Judge’s orders and the husband has the right to receive his share of the net proceeds of sale of the matrimonial home. I take into account the husband will proceed with an application for security for costs of the appeal if the appeal is reinstated.
3. At this point it is appropriate I summarise my conclusions before turning to the question of costs, although I accept that the two remaining sub-rules are intricately linked with my conclusions.
4. The issue of whether or not the appeal should be reinstated is finely balanced in this case. The present grounds of appeal do not disclose substantial prospects of success, but now the wife is represented, proper grounds of appeal will be filed. The pool of assets is modest, and the husband is aged 71. Neither party appears to be in good health, and each will no doubt suffer stress as the result of ongoing litigation. The wife’s explanation for delay in filing her pre-argument statement and draft appeal index is explicable by reason of her medical condition. Her delay between July 2007 and January 2008 is unsatisfactory particularly as she appeared to instruct lawyers during this period in respect of aspects of the litigation. Delay from January 2008 however must be sheeted to both parties for failure to make arrangements to ensure the strata levies were paid which lead to their respective bankruptcies. The consequences for the wife if the appeal is not reinstated are substantial. The husband can pursue an application for security of costs of the appeal. It is not necessary for him to travel to Australia for the hearing of the appeal and he can be represented, as he has to date, by his solicitor and counsel. Weighing all of these factors I find in the exercise of my discretion that refusing the wife’s application would work a substantial injustice on her which outweighs the prejudice to the husband.

An order for costs, including an order for indemnity costs.

1. I accept that in reinstating the appeal the Court will have granted the wife an indulgence. The wife has not put any evidence of her present financial circumstances before the Court. The trial Judge found that the wife is the sole registered proprietor of a property in France which the trial Judge found to have a value of $107,000.00. The trial Judge also found the wife had a substantial financial resource as a 2/10th beneficiary of her late mother’s estate. The wife’s entitlement of approximately $845,000.00 however is not available to her until 31 March 2014. I was advised the wife had paid funds to obtain the discharge of the sequestration order. I accept the wife appears to have capacity to meet a costs order.
2. No submissions were made to me on behalf of the husband that the wife should pay the husband’s costs on an indemnity basis. I am not satisfied in the circumstances of this case that it would, in any event, be appropriate to make a costs order on an indemnity basis.
3. The parties have had four appearances before me in this application. However on all but the last occasion the husband was represented by his solicitor not counsel, and appearances were not unduly lengthy. The adjournments, except the last adjournment, were caused by the parties’ respective bankruptcies. In the circumstances of this case I am satisfied that I should make an order for costs in a finite sum on a party and party basis rather than subject the parties to an assessment process with consequent costs and delays. In fixing costs in a sum certain I have taken into account that Mr Long’s affidavit has been substantially prepared in support of the husband’s application for security for costs, and that he will be at liberty to claim costs for preparation of that affidavit on his security application. Having regard to the duration of the proceedings before me, and to scale fees for counsel, I find that it would be appropriate to order the wife pay the husband’s costs in the sum of $3,500.00.

Whether a party should be prevented from taking any further step in the appeal until the costs are paid

1. In the circumstances of this very finely balanced application, I am satisfied it would be appropriate to require the wife to pay the husband’s costs of $3,500.00 on or before 15 August 2008 and reinstatement of her appeal be conditional upon compliance with this order.

I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.

Associate:

Date: 10 July 2008