Wardy v NSW Trustee and Guardian

1. [1]

   MACFARLAN JA: This is an appeal from a decision of Slattery J in NSW Trustee and Guardian v Wardy [2020] NSWSC 18 relating to the estate of the late Mr Edmond Wardy who died on 19 July 2009. Mr Wardy’s widow Hassiba Wardy and three children from their marriage (Anthony, Roger and Robert) and also three children from his first marriage (John, William and Sam) survived him. Mr John Wardy is the appellant and the respondent is the administrator of the estate.

2. [2]

   By cl 3(iv) of his last will the deceased left to Hassiba a life estate in a property located on Cleveland Street Redfern (“the Cleveland Street property”), with her children (Anthony, Roger and Robert) to receive the property in remainder. The interim administrator sold that property at auction in November 2012 to pay a substantial taxation debt of the estate.

3. [3]

   It is common ground between those interested in the estate that the rights of its beneficiaries need to be adjusted to put those affected by the sale of the property (Hassiba and her three children) in materially the same position that they would have been in if the sale had not occurred. That is, part of the deceased’s residuary real estate (to which all six children were entitled equally under the will) and his residuary personal estate (to which Hassiba is entitled) needs to be drawn on to compensate the specific devisees of the Cleveland Street property for its sale. This need was referred to by White J (as his Honour then was) in a judgment given in 2014 in relation to family provision claims against the estate (Wardy v Salier [2014] NSWSC 473 at [34]-[37]). I note that John Wardy subsequently purchased the interests of his brothers William and Sam in the residuary real estate with the result that he is now entitled to half of it.

4. [4]

   Subsequent to White J’s decision the respondent sought judicial advice under s 63 of the Trustee Act 1925 (NSW) concerning the adjustment to be made. By judgment of 26 October 2017 Slattery J found that the issue was not apt for the giving of judicial advice in a summary manner but instead should be determined after a contested hearing (NSW Trustee and Guardian v Wardy [2017] NSWSC 1466).

5. [5]

   A contested hearing then occurred, although the relevant relief sought by the administrator’s statement of claim remained:

6. [6]

   The reference to the “Redfern property” was to a multilevel building forming part of the residuary real estate and situated on George Street, Redfern (“the George Street property”). In its submissions on appeal, the administrator described this property as follows:

7. [7]

   In the same submissions, the administrator described the Cleveland Street property devised by cl 3(iv) of the deceased’s will as follows:

8. [8]

   That hearing, occupying five days with supplementary written submissions subsequently lodged, took place before Slattery J. Hassiba and her children did not oppose the granting of the relevant relief sought by the administrator (see [5] above). Its grant was however opposed by Mr John Wardy, the present appellant, who by his amended first cross-claim sought various contrary declarations as to the appropriate substitute for the Cleveland Street property.

9. [9]

   Despite the form of the declaration sought (see [5] above), it does not appear that the hearing proceeded on the basis that the administrator sought judicial advice under s 63 of the Trustee Act. Instead, the parties concurred in the primary judge himself determining the issue of what adjustment of the rights of the beneficiaries should be made by reason of the sale of the Cleveland Street property. The basis upon which the Court could make such a decision was not articulated but is to be found in r 54.3 of the Uniform Civil Procedure Rules 2005 (NSW) which confers broad powers on the Court to make orders concerning estates without the need for the making of a general administration order.

10. [10]

    By his judgment of 29 January 2020 the primary judge made declarations relevant to the present appeal to the following effect:

    1. (1)

       That the administrator “is entitled and authorised” to appropriate the George Street property to the benefit of those beneficiaries who would have been entitled to the Cleveland Street property.

    2. (2)

       That each of those properties has “a current value” of $7,300,000.

    3. (3)

       That the burden of the costs of the substitution referred to in (1) should be borne as to 86.5% by the beneficiaries entitled to the residuary real property of the estate and as to 13.5% by the beneficiary entitled to the residuary gift of personalty. (This was Declaration (5) made by his Honour).

11. [11]

    Mr John Wardy’s appeal to this Court, in the form that it was ultimately advanced, relied upon grounds to the following effect:

12. [12]

    In the course of the hearing in this Court the administrator sought leave to file a notice of cross-appeal challenging the declaration (Declaration (5)) as to the percentages in which the costs of the substitution of the George Street property for the Cleveland Street property should be borne as between the residual real estate and residual personalty beneficiaries. With the Court’s leave, the parties subsequently supplied written submissions in relation to that application.

13. [13]

    For the reasons given below the appeal should be dismissed with costs and the administrator’s application for leave to file a notice of cross-appeal should be allowed with the consequent cross-appeal also being allowed.

The primary judgment

1. [14]

   The primary judge made the following observations and findings relevant to this issue:

The appellant’s submissions

1. [15]

   The appellant submitted for the following reasons that the primary judge should not have approved the substitution of the George Street property for the Cleveland Street property:

2. [16]

   The findings of White J referred to in (a) above were made by his Honour in the course of dealing with family provision claims under the Succession Act 2006 (NSW), for the purposes of which it was necessary for his Honour to consider the nature and value of, and entitlements to, the various assets of the estate. In relation to a substitute for the sold Cleveland Street property, his Honour said (at [37]):

The administrator’s submissions

1. [17]

   In essence the administrator submitted, in reliance on the authorities to which I refer below, that in the circumstances of the present estate the primary judge was justified in identifying an appropriate substitute simply by reference to the respective values of the sold and proposed substitute properties. The administrator submitted that it was unnecessary that the two properties have substantially the same characteristics, for example in income earning potential, or in other respects.

Consideration

1. [18]

   As the primary judge noted, the hearing before him proceeded on the basis that it was appropriate for him to apply the principles stated by Campbell J in Joyce v Cam [2004] NSWSC 621. The same can be said of the hearing in this Court.

2. [19]

   In Joyce v Cam, Campbell J said at [49] and [50]:

3. [20]

   There is no suggestion in what Campbell J said that the rights of beneficiaries “to be put into the position [they] would have been in if the property the subject of the specific legacy had not in fact been sold” require a substituted property to have, as the appellant effectively submits it must, substantially the same characteristics as the property sold, or at least not be fundamentally different in character from it. Indeed, both of the authorities cited by Campbell J (Ewer v Corbett and Chaworth v Beech) speak of an equivalence in “value” which is precisely what Slattery J sought to achieve in the present case. The fact that on this basis the properties may have different characteristics such as one having wholly commercial rental income and one having a mixed residential and commercial rental income is therefore of no significance. As Slattery J pointed out, the differing income earning potentials of the properties was taken into account in the assessment of value.

4. [21]

   There may however be cases in which substitution on the basis of equivalence in value may not fairly adjust the rights of the beneficiaries. For example, the income earning capability of the substitute property may be relevant if the property sold was left by will subject to separate life and remainder interests. Although that is the case here, Hassiba Wardy, who was to be the life tenant of the Cleveland Street property, accepts the substitution of the George Street property, notwithstanding that it does not have the same income earning capacity as the Cleveland Street property and that the substitution prima facie appears to prejudice her interest as life tenant. Her consent to the substitution occurring is not surprising as her three children were entitled under the will to the remainder interests in the Cleveland Street property.

5. [22]

   Mr John Wardy has no bona fide interest in claiming that Hassiba is prejudiced when she does not assert that to be the case and, to the contrary, she supports the substitution of the George Street property. Mr John Wardy cannot be prejudiced by a non-income earning property being taken from residue and substituted for the income earning property being sold so long as, as the primary judge sought to ensure, the values of the properties are substantially equivalent.

6. [23]

   In these circumstances, there was no error in the primary judge’s decision on substitution turning on the equivalence in value of the two properties, without any significance being attached to their ability to earn income. As his Honour pointed out, differences in income earning potential were reflected in the valuations. Once substitution of the George Street property is effected, the administrator will have to deal with it according to the wishes of the adult beneficiaries together absolutely entitled to it (that is, Hassiba and her three sons) unless it is required for payment of estate debts or administration expenses.

7. [24]

   I add that I do not consider White J’s 2014 decision in Wardy v Salier (see [3] and [16] above) to be of assistance to Mr John Wardy’s appeal. His Honour’s reference to the substitute property having an income earning capacity similar to that of the sold property was understandable in light of the terms of the will dividing the interests in the sold property between a life tenancy and remainder. As I have indicated, it would prima facie be unfair to a life tenant to deprive him or her of the income entitlement to which a life tenancy gave rise. As events transpired this however ceased to be a consideration in the present case because the life tenant, Hassiba, was content for the substitution to be made on the basis of the similar values of the sold and substituted property. Effectively therefore, she and her three sons, who were together entitled under the will to the whole of the interests in the sold property, were presumably content to have themselves treated as a family unit. This simplified the administrator’s, and therefore primary judge’s, task in determining the appropriateness of substitution. It enabled regard simply to be had to the respective values of the properties.

8. [25]

   Grounds 1, 2 and 3 should accordingly be rejected.

GROUND 4: ABSENCE OF EVIDENCE OF HASSIBA’S WILLINGNESS AND ABILITY TO PAY HER SHARE OF THE COSTS OF THE SUBSTITUTION

1. [26]

   At first instance the appellant contended that substitution of the George Street property was inappropriate in the absence of evidence “led by either Hassiba or any of her children as to their respective financial positions”. The primary judge rejected that argument, stating that “[t]he Court does not have to go into the kind of analysis of the position of individual residuary beneficiaries that Mr John Wardy suggests here”.

2. [27]

   On appeal, the appellant submitted, to the same effect, that the substitution of the George Street property was inappropriate “as no evidence was led at the trial in relation to Hassiba Wardy being ready, willing or able to pay or contribute 13.5%” of the costs of effecting the substitution. As at first instance, he did not provide any significant elaboration of that argument or reference to any authority to support it.

3. [28]

   The administrator’s response on appeal was in my view correct, that is, that “[t]he question for determination by the trial judge related to the substitution of a property for a specific gift in the will that was sold to meet the estate’s debts; not the distribution of the estate”. The question of whether the George Street property was an appropriate substitute for the Cleveland Street property was separate from other aspects of the administration of the estate such as how the costs of the substitution were to be borne as between the residuary beneficiaries and whether the administrator had the means of recouping those costs from those beneficiaries. The rights of the specific devisees of the Cleveland Street property to have an appropriate substitution made from, or by drawing on, the residue of the estate were not dependent on resolution of these further questions. As the primary judge effectively concluded, those issues fell outside the ambit of the proceedings before him. This was so despite his making of Declaration (5) which was made in the circumstances described in [56] to [59] below.

4. [29]

   In any event, the state of the evidence was not such that an inference, requiring rebuttal by Hassiba, could readily be drawn that Hassiba could not fund her share of the costs of the substitution. For one matter, she was entitled under the will to the former matrimonial home (a property in Kensington in Sydney). As well, the residuary personalty, to which she was entitled absolutely, appeared to include a debt in excess of $1 million plus interest owed by Linevale Pty Limited which the administrator said, through the evidence of its solicitors, would be “part used to fund” Hassiba’s contribution to the cost of the property substitution. Obligations of Hassiba to bear part of the property substitution costs could be set off against these entitlements (see generally the principle in Cherry v Boultbee (1839) 4 My & Cr 442; 41 ER 171 discussed in J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane’s Equity Doctrines and Remedies (5th ed, 2014, LexisNexis Butterworths) at [39-110]). As the primary judge indicated, these matters, and certainly the detail of them, were however outside the ambit of what he was required to address in the proceedings.

5. [30]

   By notice of motion returnable at the hearing in this Court the appellant sought leave to rely upon fresh evidence on the issue with which Ground 4 is concerned. In essence that evidence comprised documentary evidence tendered to indicate that the appellant has had difficulty obtaining from the administrator information as to the estate accounts and that such information as has been supplied supports the appellant’s contention that Hassiba will be, or at least may be, unable to pay her share of the costs of the property substitution. The appellant’s application for such leave should in my view be rejected.

6. [31]

   To the extent that the evidence concerns matters occurring before the conclusion of the hearing at first instance (which seems to be largely the case), no “special grounds” for admission of the evidence have been established (s 75A(7) and (8) of the Supreme Court Act 1970 (NSW)). Ordinarily to establish special grounds it must be shown inter alia that the new evidence was not previously obtainable by reasonable diligence (Akins v National Australia Bank (1994) 34 NSWLR 155 at 160). That is not the case here because the appellant could have pressed at first instance for orders for production of documents by the administrator if he were able to persuade the primary judge of their materiality. Whilst the evidence may also to some extent relate to matters occurring after the conclusion of the hearing at first instance, for example as to expenses subsequently incurred by the estate, the application to tender that evidence should be rejected because it has not been shown that any such matter is of any particular significance going beyond that which the appellant contends that the evidence in the former category had. Its materiality has not therefore been demonstrated.

7. [32]

   Ground 4 should accordingly be rejected.

GROUNDS 7, 8 AND 14: WHETHER THE 25% DISCOUNT FROM THE AFFORDABLE HOUSING VALUE WAS JUSTIFIED

1. [33]

   This issue arises out of evidence, accepted by the primary judge, of Mr John Price, one of the administrator’s valuers, valuing the George Street property as a redevelopment site for affordable housing at $7,200,000. Mr Price arrived at this figure after making a 25% discount to reflect the time, costs and risks in obtaining approval to redevelop the site as affordable housing. The appellant contended at first instance, and contends on appeal, that no, or only a minimal, discount should have been made.

2. [34]

   The “affordable housing” reference is to the State Environmental Planning Policy (Affordable Rental Housing) 2009 (NSW) (“the SEPP”) which provides for bonus floor space ratios (“FSRs”) and other advantages to developers where a proposed development includes “affordable housing” as defined by the SEPP.

The primary judgment

1. [35]

   At first instance the administrator relied on valuation reports of Mr Price and Mr Ronil Besele whom his Honour heard cross examined at some length. The appellant’s expert, Mr Allan Teale, also provided reports and participated in a joint evidence session with Mr Price and Mr Besele.

2. [36]

   His Honour reached the following conclusions on the discount issue that is the subject of the present grounds of appeal:

3. [37]

   His Honour then referred to the opposing views of Mr Teale and gave a number of reasons to the following effect for accepting Mr Price’s evidence rather than that of Mr Teale.

4. [38]

   First, his Honour considered as follows that Mr Price’s relevant experience was much the greater:

5. [39]

   Secondly, his Honour addressed the views that Mr Price and Mr Teale respectively expressed regarding the likelihood of delay in obtaining development approval under the SEPP. The experts considered this issue particularly in relation to what had occurred concerning a nearby site, in Abercrombie Street, Darlington, for the development of which SEPP approval had been obtained. His Honour considered that what occurred concerning that site supported Mr Price’s views that delay was likely in relation to the subject site.

6. [40]

   Thirdly, his Honour found Mr Price’s views about uncertainties in obtaining the benefit of the SEPP persuasive. His Honour considered that evidence of Mr Besele provided some support for Mr Price’s views.

7. [41]

   Fourthly, his Honour stated that he did not share Mr Teale’s confidence that no heritage issue would arise in relation to redevelopment of the George Street property, particularly due to the mural on the northern external wall (see [48] below).

Consideration

1. [42]

   On appeal, the appellant contended that no, or no significant, discount should have been made, in essence because obtaining SEPP approval would be “a fait accompli” and would take considerably less time to obtain than Mr Price opined. These submissions however concerned issues requiring evaluative conclusions of his Honour in relation to the formation of which his Honour had the considerable advantage over this Court of seeing and hearing the expert witnesses give their explanations for the views that they took. Whilst his Honour’s conclusions were not discretionary decisions, their evaluative nature required the standard of appellate review analogous to that described in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 to be applied (see Federal Commissioner of Taxation v St Helens Farm (ACT) Pty Ltd (1981) 146 CLR 336 at 381; [1981] HCA 4 and White v Redding (2019) 99 NSWLR 605; [2019] NSWCA 152 at [61] and [87]-[88]).

2. [43]

   Thus it was necessary for the appellant to demonstrate to this Court that the primary judge had “in some way mistaken the facts or the legal principles to be applied or otherwise demonstrated error, which may be discernible only on the basis that the result is outside a reasonable range” (ibid at [61]). The appellant was not able to do this. In particular, he did not establish any significant factual or legal error, or demonstrate that his Honour’s conclusions were unreasonable. It is sufficient in this regard to refer only to the following specific points arising out of the appellant’s submissions.

3. [44]

   First, Mr Price, who was found to have had far greater relevant experience than Mr Teale, explained, that (as summarised by the administrator):

4. [45]

   Secondly, the conclusions to be drawn from what occurred in relation to two nearby properties sold for redevelopment as affordable housing (the one in Abercrombie Street referred to above and another in Marsden Street, Camperdown) were very much a matter of subjective opinion. Mr Price’s opinions appear to be reasonable and were in any event not the sole basis of his views on the need for the discount.

5. [46]

   Thirdly, the appellant submitted that it was unreasonable for Mr Price to allow for an 18 month period to obtain SEPP approval when the George Street property would in that period “have the benefit of continuing rental income”. This was however substantially inconsistent with the appellant’s reliance in relation to other aspects of the appeal on the fact, demonstrated by the evidence, that the income from the George Street property was very low due to the property’s condition and other factors (see for example the appellant’s argument quoted at [15] above in para (c)).

6. [47]

   In these circumstances, grounds 7, 8, and, so far as it relates to these grounds, 14 should be rejected.

GROUNDS 10 AND 14: WHETHER THE PRIMARY JUDGE ERRED IN CONCLUDING THAT THERE WERE HERITAGE ISSUES IN RELATION TO THE GEORGE STREET PROPERTY

1. [48]

   These grounds of appeal relate to a factor that Mr Price took into account in concluding that it was appropriate to make a 25% discount when assessing the value of the George Street property on the basis that it would be redeveloped and used for affordable housing. Mr Price referred to a mural on the northern external wall of the George Street property as one of the factors giving rise to “uncertainties” in connection with the obtaining of development approval (compare [41] above).

2. [49]

   The primary judge described that mural, and expressed conclusions on the issue, as follows:

3. [50]

   On appeal the appellant relied on the statement in a report of Mr Besele that “[t]he subject property is not listed as a Heritage Item”. The absence of such a listing however does not of itself contradict Mr Price’s view that heritage questions could adversely affect the obtaining of SEPP approval in a timely fashion. The primary judge gave persuasive reasons for rejecting Mr Teale’s views on this issue and no arguable basis for this Court taking a different view on the issue was identified by the appellant. Ground 10 (and Ground 14 to the extent that it relates to Ground 10) should accordingly be rejected.

APPLICATION FOR LEAVE TO FILE CROSS-APPEAL

1. [51]

   In the course of the hearing in this Court the administrator sought the Court’s leave to file a notice of cross-appeal challenging Declaration (5) of the orders made at first instance. That Declaration, which I have summarised in [10(3)] above, is in the following terms:

2. [52]

   The “administrative expense” referred to was identified in the orders as the cost of the appropriation of the George Street property in substitution for the Cleveland Street property (see [5] and [10] above), as well as the cost of providing compensation to Hassiba for a loss of rental income in the period between the sale of the latter and the appropriation of the former.

3. [53]

   The ground of appeal stated in the draft notice of cross-appeal is as follows:

4. [54]

   As the appellant opposed the grant of such leave, the parties were directed to lodge short written submissions on the issue subsequent to the hearing.

5. [55]

   As background to the resolution of the issue, it should be noted that White J, in the judgment of 30 April 2014 referred to in [3] above, stated:

6. [56]

   The pleadings before Slattery J did not raise any issue concerning the proportions in which the relevant costs should be borne by the residuary real and personal estates. Indeed, in the administrator’s Outline of Submissions dated 30 November 2018 provided by its counsel to Slattery J, it was stated at [64]:

7. [57]

   The footnotes to this paragraph identified the references to the “Supplementary CB” as being to a letter from Mr John Wardy’s solicitors dated 9 December 2016 described in the footnotes as “articulating this position, citing passages of White J’s judgment in [2014] NSWSC 473”. The letter stated expressly that the effect of White J’s judgment was that “debts and liabilities” of the estate were to be borne as to 13.5% by the residuary personal estate and 86.5% by the residuary real estate.

8. [58]

   Moreover, the administrator’s Further Written Submissions dated 7 January 2019 stated at [7]:

9. [59]

   In these circumstances it is apparent that the hearing below proceeded on the agreed basis that the costs of the property substitution were to be borne in the percentages stated in Declaration (5) made by Slattery J. The parties did not further explain on appeal how that declaration came to be made but it can be readily inferred from what the parties did identify that it was made without opposition, and indeed with the at least implicit assent of both parties.

10. [60]

    With different representation on appeal to that which it had at first instance, the administrator now seeks to challenge Declaration (5). It does not contend that this Court should make a different declaration. Rather, it submits that there should be no declaration made as to the relevant percentages because the appropriate percentages will change over time depending upon the likely fluctuating relative values of the residuary personal and real estates. It submits that the relevant percentages should be determined when the substitution of the George Street property for the Cleveland Street property is made and it points to the fact that it is common knowledge that real estate values, at least, have changed significantly since April 2014 when White J’s judgment was delivered.

11. [61]

    I add that I do not read White J’s judgment, which was the genesis of the parties’ agreed position as to percentages at first instance, as indicating that the percentages he identified would necessarily be applicable for all purposes and for all time. Rather, his Honour stated the percentages applicable at the time of his judgment as they appeared from the evidence. He did so to identify the nature and value of the assets and liabilities of the estate for the limited purpose of determining the family provision claims that were before him.

12. [62]

    In this Court the appellant opposed the grant of leave to file the cross-appeal and, if leave were granted, the allowance of the cross-appeal. He relied in particular on the absence of any explanation for the administrator’s delay in challenging Declaration (5), the administrator’s acceptance at first instance of the position reflected by the declaration and an asserted absence of exceptional circumstances which would warrant a grant of leave to make the challenge for the first time on appeal.

13. [63]

    The appellant also argued that “it cannot be said that had the [administrator] taken the reverse position below (ie that which it now seeks to take) that [that] would not have altered the course of the trial”. In that regard he asserted that legacies have in the past been paid to Hassiba and Mr John Wardy’s brothers (William and Sam) on the assumption that the relevant proportions for payment of administration expenses were as stated in Declaration (5).

14. [64]

    That different percentages to those of 13.5% and 86.5% might, depending on the value of the assets of the estate, be applicable in the future when the George Street property is substituted for the Cleveland Street property, or at some other time found to be relevant, does not however mean that the percentages used when the legacies were paid were incorrect at the time of their payment. Their correctness would depend upon the then prevailing value of the assets in the residuary estates. This argument of the appellant does not therefore in my view identify any prejudice to the appellant that would flow from setting aside Declaration (5).

15. [65]

    For the following reasons, I consider that the administrator should be granted leave to file the notice of cross-appeal and that the cross-appeal should be allowed, with the consequence that Declaration (5) should be set aside.

16. [66]

    First, the point that the administrator seeks to raise has merit in that the administration expenses should not be borne according to percentages estimated in 2014 by reference to evidence of asset values then applicable. Rather, they should be borne in the percentages estimated to be applicable at or about the time of the property substitution or such other date as is found to be relevant. The parties apparently, and in my view erroneously, understood White J’s judgment to say something different.

17. [67]

    Secondly, the point that the administrator seeks to raise on appeal is one of law. Appropriately, the administrator does not seek a declaration stating differing percentages. Rather, it seeks no more than the Court’s affirmation of the principle that the percentages should be those estimated by the administrator as at the date considered by the administrator, or if necessary by a court, to be that relevant for the purposes of the substitution that has been authorised. Identification of that date has not thus far been the subject of argument.

18. [68]

    Thirdly, for the reasons stated above, I do not consider that the appellant has demonstrated that he might be unfairly prejudiced by this Court allowing the point to be raised.

19. [69]

    To allow the point to be taken in these circumstances is consistent with the principles stated in the oft-cited High Court decision in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; [1950] HCA 35 (see also TTY167 v Republic of Nauru [2018] HCA 61; (2018) 93 ALJR 111 at [21]) where the Court sanctioned the raising for the first time on appeal of points of law whose determination could not have been affected by the calling of additional evidence at first instance.

20. [70]

    So far as costs of the application for leave are concerned, I consider that in light of the lateness with which the administrator raised the point and sought leave to cross-appeal, it should pay the costs of the written submissions lodged by the parties subsequent to the hearing in this Court, as the principal subject of those submissions was the proposed cross-appeal. There should not otherwise be any order for costs of the cross-appeal as no significant time was occupied during the oral hearing in relation to the proposed cross-appeal, and no part of the preparation for the appeal related to it because it had not then been foreshadowed.

ORDERS

1. [71]

   For the reasons given above, I propose the following orders:

   1. (1)

      Appeal dismissed with costs.

   2. (2)

      The appellant’s notice of motion filed on 2 February 2021 dismissed with costs.

   3. (3)

      Leave granted to the respondent to file a notice of cross-appeal in the form provided to the Court.

   4. (4)

      Direct the respondent to file and serve its notice of cross-appeal within 14 days of the date of this judgment.

   5. (5)

      Allow the cross-appeal.

   6. (6)

      Pursuant to the cross-appeal, set aside Declaration (5) made by Slattery J on 29 January 2020.

   7. (7)

      Order the respondent to pay the appellant’s costs of the supplementary submissions filed in this Court.

   8. (8)

      Otherwise make no order as to costs of the cross-appeal.

2. [72]

   MEAGHER JA: I agree with Macfarlan JA.

3. [73]

   WHITE JA: I agree with Macfarlan JA.