Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Guan v Li (No 2) [2022] NSWCA 261 Hearing dates: 1 December 2022 Date of orders: 13 December 2022 Decision date: 13 December 2022 Before: Ward P at [1] Gleeson JA at [2] Griffiths AJA at [54] Decision: Summons seeking leave to appeal be dismissed with costs. Catchwords: APPEAL – leave to appeal – challenge to freezing order in aid of existing and prospective proceedings in Family Court – judgment creditor seeking to set aside financial agreement between husband and wife and also seeking to set aside settlement deed between wife and husband's trustee in bankruptcy – Family Law Act, ss 90K(1)(aa) and 90K(3) – whether good arguable case for final relief – whether proposed appeal sufficiently arguable to justify grant of leave Legislation Cited: Bankruptcy Act 1966 (Cth), ss 27(1), 58(3)(b) Family Law Act 1975 (Cth), s 90C, 90K(1)(aa), 90K(3) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 7(5) Real Property Act 1900 (NSW), s 105A(6) Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Procedure Rules 2005 (NSW), r 25.14 Cases Cited: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 Guan v Li [2022] NSWCA 173 House v The King (1936) 55 CLR 499; [1936] HCA 40 Li v Tang [2021] NSWSC 1011 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Mourbarak (by his tutor Coorey) v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Ninemia Maritime Corpn v Trave Schiffahrtsgesellschaft mbH und Co KG ("Niedersachsen, The) [1983] 1 WLR 1412; (1984) 1 All ER 398 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Category: Principal judgment Parties: Yanjuan Guan (Applicant) Weijian Li (Respondent) Representation: Counsel: M Condon SC / G Gee (Applicant) P D Reynolds (Respondent) Solicitors: Auyeung Hencent & Day (Applicant) J C Legal (Respondent) File Number(s): 2022/268710 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2022] NSWSC 834 Date of Decision: 15 June 2022 Before: Cavanagh J File Number(s): 2020/73666 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. WARD P: I agree with Gleeson JA. 2. GLEESON JA: The applicant, Ms Yanjuan Guan (Ms Guan), seeks leave to appeal against the judgment and orders made by Cavanagh J in the Common Law Division on 15 June 2022, relevantly, a freezing order made in aid of existing and prospective proceedings by the respondent, Mr Weijian Li (Mr Li) in the Federal Circuit and Family Court of Australia (the Family Court) and refusing Ms Guan's motion to remove a writ of levy of property recorded on the title to a property at Oatlands (the Oatlands property): Li v Tang [2022] NSWSC 834. 3. Ms Guan requires leave as the orders made by the primary judge are interlocutory: Supreme Court Act 1970 (NSW), s 101(2)(e). An earlier application by Ms Guan for leave to appeal was dismissed by the Court on 5 September 2022: Guan v Li [2022] NSWCA 173. The Court held that ground 1 of the then draft notice of appeal was incompetent as it raised a matter for determination in the appeal, if leave was granted, that arose under the Family Law Act 1975 (Cth), relevantly, s 90K(3), and that this Court had no jurisdiction given s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). Ms Guan was given leave to file a fresh application for leave to appeal within seven days, coupled with the draft notice of appeal omitting ground 1. 4. Ms Guan's fresh application for leave to appeal was heard concurrently with the appeal, if leave was granted. For the reasons which follow, I am of the view that leave to appeal should be refused with costs. Background 1. The background to the present application is set out in the judgment of Bell CJ in Guan v Li at [1]-[23], which I draw upon for the following outline. 2. Ms Guan and Mr Frank Tang (Mr Tang) are husband and wife who claim that, since 1 September 2020, they have been separated, although they continued to live in the matrimonial home at the Oatlands property but occupied separate rooms. 3. On 31 August 2021, Schmidt AJ entered judgment for Mr Li against Mr Tang in the sum of $1,909,356.39 following delivery of judgment on 12 August 2021: Li v Tang [2021] NSWSC 1011 (the Tang proceedings). Ms Guan was also a defendant in those proceedings but no orders were made against her. 4. On 1 September 2021, Mr Tang and Ms Guan purported to enter into a binding financial agreement in accordance with s 90C of the Family Law Act. After reciting that the Oatlands property, which Mr Tang and Ms Guan held as joint tenants, had a value of $2,200,000 and was subject to two mortgages totalling $1,381,000, the financial agreement provided for the transfer of Mr Tang's interest in the Oatlands property to Ms Guan. 5. Unaware of the financial agreement, Mr Li applied to record on the title to the Oatlands property a writ for levy of property which was issued in execution of the judgment. The writ was recorded on the title to the Oatlands property on 28 October 2021. 6. On 19 November 2021, Mr Tang filed a debtors' petition and a trustee in bankruptcy was appointed to his estate. According to the trustee's preliminary report, having called for proofs of debt, Mr Tang's estate had unsecured creditors whose claims amounted to $8 million, although the trustee had not adjudicated on the proofs of debt. This amount did not include Mr Li's judgment debt against Mr Tang. The trustee also noted that he had obtained a real estate appraisal valuing the Oatlands property at approximately $2,500,000. 7. On 14 March 2022, Ms Guan and the trustee in bankruptcy entered into a deed of settlement and release (the settlement deed) which recited that the trustee was of the view that the transfer of Mr Tang's interest in the Oatlands property is void against the trustee under the Bankruptcy Act 1966 (Cth), and may be set aside, that Ms Guan disputed this claim and that the parties had agreed to resolve the trustee's claim. Pursuant to the settlement deed the trustee agreed to transfer Mr Tang's interest in the Oatlands property to Ms Guan for a consideration of $135,000 payable in two instalments. Those amounts were subsequently paid by Ms Guan. The trustee gave Ms Guan a release in wide terms. 8. On 21 April 2022, Ms Guan filed a notice of motion in the Tang proceedings seeking, relevantly, the removal of the writ recorded on the title of the Oatlands property. In her supporting affidavit, Ms Guan deposed that she wished to refinance the mortgage over the Oatlands property and had obtained a loan approval from La Trobe Financial Services Pty Ltd in an amount of $1,560,000. That approval expired on 30 June 2022. 9. On 20 May 2022, Mr Li filed an application in the Family Court against the trustee in bankruptcy seeking leave pursuant to ss 27(1) and 58(3)(b) of the Bankruptcy Act to commence proceedings against the bankrupt, Mr Tang, and Ms Guan (the Federal proceedings), seeking orders under s 90K(1)(aa) of the Family Law Act to set aside the financial agreement between Mr Tang and Ms Guan and, upon the Court setting aside the financial agreement, pursuant to s 90K(3) of the Family Law Act, for such order or orders as the Court considers just and equitable for the purpose of preserving or adjusting the right of persons who are parties to the financial agreement and any other interested persons, including: (1) An order that the registered proprietorship held by the Bankrupt's trustee in bankruptcy in a 1/2 share in the property known as 145a Bettington Road, Oatlands, NSW 2117, being Lot 61 in deposited plan 605386 (Bankrupt's Share of the Property) is by operation of section 42 of the Real Property Act 1900 (NSW) or otherwise paramount, has priority over, or is absolutely free from any interest, or right or entitlement to the same, held or purportedly held by Ms Guan; (2) Further and in the alternative, an order that any right or entitlement held or purportedly held by Ms Guan in the Bankrupt's Share of the Property is void or unenforceable against the trustee in bankruptcy or is subordinate or deferred to the interest held by the trustee in bankruptcy. 1. That leave has since been granted. On 13 October 2022, Mr Li filed an application against Mr Tang and Ms Guan in the Family Court seeking relief under s 90K(1)(aa) and s 90K(3) of the Family Law Act in the terms referred to at [13] above. 2. Also on 20 May 2022, Mr Li filed a notice of motion (which was subsequently amended) in the Tang proceedings, seeking orders that Ms Guan's motion for removal of the writ be stayed until further order or the determination of the Federal proceedings, or alternatively, that Ms Guan be restrained from taking any steps to register the transfer of Mr Tang's interest in the Oatlands property to Ms Guan and from taking any steps to deal with or encumber Mr Tang's interest in the property. 3. The parties' competing motions were heard on 15 June 2022 in circumstances of some urgency. The identified urgency was that Ms Guan proposed to offer her interest in the Oatlands property (including under the settlement deed) as "support" for an undertaking as to damages given by her company, PCI Green Pty Ltd (PCI Green), in separate proceedings involving a caveat lodged by PCI Green. An application by PCI Green for extension of the caveat was listed for hearing on the following day, 16 June 2022, in the Supreme Court of South Australia. 4. There was no dispute before the primary judge that the source of the Court's power to make a freezing order against Ms Guan was the inherent jurisdiction (see Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; [1999] HCA 18 at [57]), and the Uniform Procedure Rules 2005 (NSW) (UCPR), r 25.14. In opposing the freezing order, counsel for Ms Guan relied upon arguments that: 1. there was no evidence of a prima facie case that the settlement deed could be set aside under s 90K(3) of the Family Law Act because there was an absence of evidence that the trustee in bankruptcy was not entitled to enter into the settlement deed; 2. there was no utility in such an order because (a) Mr Tang's interest in the Oatlands property had vested in the trustee in bankruptcy and Mr Li had not commenced proceedings against the trustee to review the trustee's decision to enter into the settlement deed, and (b) there was no application before the Family Court to set aside the settlement deed and the Family Court did not have jurisdiction to do so; and 3. a freezing order would cause prejudice to Ms Guan by preventing her refinancing the mortgage over the Oatlands property and using that property as security for the undertaking given by PCI Green in the South Australian proceedings. 1. By ex tempore judgment delivered on 15 June 2022, and upon Mr Li through his counsel giving the usual undertakings as to damages, Cavanagh J granted the freezing order sought by Mr Li, giving the following dispositive reasons at J[62]-[63] and [77]-[80]: [62] As set out in Grainger [Grainger v Bloomfield & Anor [2015] FamCAFC 221; (2015) 304 FLR 351] there may be some uncertainty as to the extent of the power under s 90K(3) but I accept that the plaintiff has at least a reasonable argument that the power conferred by s 90K(3) would extend to the making of an order setting aside not just the BFA but the deed of settlement and release. [63] I do not accept the no utility point raised by the second defendant. … [77] In the end, I am satisfied that the orders sought by the plaintiff in the amended motion by way of a freezing or asset preservation order should be made. [78] I am satisfied that it is necessary to make such orders to prevent what may be an abuse of process by the first defendant in taking steps to dispose of his primary asset immediately after orders were made, the effect of which was a judgment of $1.9 million against him. [79] Again, it is not for me to say anything more about that other than to say that I am satisfied that the orders sought by the plaintiff are necessary to prevent a possible abuse of process. That is, the disposal of the primary asset by the first defendant to his wife under the Family Law Act, and then when a dispute arose with a trustee, entry into an agreement with the trustee by means of a payment of $135,000 for, in general terms, a 50% interest in a property valued at, as I understand it, $2.2 million. [80] In the circumstances of the undertaking of the plaintiff as to damages, I propose to make the orders sought in the plaintiff's amended motion for a preservation order. 1. The primary judge also refused Ms Guan's application for removal of the writ. In view of subsequent events (see [21] below), it is not necessary to set out his Honour's reasons at J[83]-[85]. The draft notice of appeal 1. The draft notice of appeal contains six grounds: 1 The primary judge erred in failing to take into account the following matters in determining whether he could, and should, grant an asset preservation order: a. whether the respondent had established an arguable case to set aside the Settlement Deed; b. the strength of any such case; c. whether the jurisdiction to make an asset preservation order was properly invoked where there was no evidence that the Trustee was engaged in conduct that might be characterised as an abuse of process; and d. whether the respondent would suffer significant prejudice if the asset preservation order was not made. 2 The primary judge erred in making findings of fact which attributed a value to Mr Tang's estate that was far greater than the true position [J[79]). 3 The primary judge did not act on the only evidence as to the quantum of claims that might be made by the unsecured creditors of Mr Tang's estate [J[76]). 4 The primary judge erred in placing no weight on the undertaking proffered by Ms Guan, in circumstances where, if that was accepted by the court, Mr Li would not be substantially prejudiced [J[73]). 5 The primary judge ought to have held that: a. the respondent had not established an arguable case to set aside the Settlement Deed or, if he had, that such a case was weak; b. the conduct of the Trustee in entering into the Deed could not be characterised as an abuse of process; c. by reason of the quantum of claims of other unsecured creditors against the estate of Mr Tang, the respondent would likely recover no more than 5.5 cents in the dollar; d. as such, the disadvantage to the appellant in granting the relief sought by the respondent far exceeded any prejudice the respondent might suffer if relief was refused. 6 The primary judge ought to have ordered the respondent to remove dealing AR531462, being the writ for levy of property registered against title reference 61/DP605386. 1. Ground 6 was overtaken by events during the hearing. Counsel for Mr Li gave an undertaking to the Court, without admissions, to remove the "stale" writ recorded on the title to the Oatlands property within seven days. It is common ground that the writ was stale, as the "protected period" of six months had expired: Real Property Act 1900 (NSW), s 105A(6). Submissions 1. In her summary of argument, Ms Guan challenged the freezing order on three bases, contending that the primary judge erred as follows. 2. First, in failing to take into account material matters, namely, whether: 1. Mr Li had established an arguable case to set aside the settlement deed; 2. the jurisdiction to make an asset preservation order was properly invoked where there was no evidence that the trustee was engaged in conduct that might be characterised as an abuse of process; and 3. Mr Li would suffer significant prejudice if the settlement deed was not set aside. 1. Second, in attributing a value to Mr Tang's estate that was far greater than the true position. 2. Third, in placing no weight on the undertaking proffered by Ms Guan, in circumstances where, if that was accepted by the Court, Mr Li would not be substantially prejudiced. 3. It is convenient to address proposed grounds 1-5 by reference to these identified issues. Disposition of application for leave 1. The decision whether to make a freezing order in aid of the existing and prospective Federal proceedings involved a matter of practice and procedure and the exercise of judicial discretion. Decisions of this kind are difficult to challenge for sound reasons. As explained in PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [5], discretionary decisions "engage the strictures against over-ready appellate interference and the corelative need for 'added restraint' associated with House v The King (1936) 55 CLR 499 [at 504-505]; [1936] HCA 40 with the consequence that a 'heavy burden' lies on an applicant seeking leave to appeal from a discretionary judgment on a question of practice or procedure" (citations omitted). 2. None of the proposed grounds of appeal raises an issue of principle or question of public importance. The focus of argument on the application for leave was whether Ms Guan had demonstrated a reasonably clear injustice or ground going beyond something that is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]: Mourbarak (by his tutor Coorey) v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [12]. First issue: whether the primary judge failed to take into account material matters 1. Ms Guan submits that the primary judge failed to take into account whether Mr Li had established a good arguable case for final relief to set aside the settlement deed, relying upon s 90K(3) of the Family Law Act (grounds 1(a) and (b) and 5(a)). 2. The expression "good arguable case" is used "in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better than 50 per cent chance of success": Ninemia Maritime Corpn v Trave Schiffahrtsgesellschaft mbH und Co KG ("The Niedersachsen) [1983] 1 WLR 1412; [1984] 1 All ER 398 at 404. As Mustill J explained at 404, what is required is a preliminary appraisal of the plaintiff's case, rather than an attempt to have a premature trial of the action. 3. In my view, there is no clear error on the part of the primary judge. 4. The starting point is to observe that an appellate court should be conscious of not "picking over an ex tempore judgment", and should give due allowance for the pressures under which judges deal with the urgent applications before them: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]. Here, the primary judge was required to give a decision under significant time pressure, given the imminent hearing of the application for extension caveat in the South Australian proceedings the following day. 5. The primary judge was undoubtedly aware of the requirement for a good arguable case, which was common ground between the parties. This requirement was acknowledged in Mr Li's written submissions in chief (par 33(g) and (h), par 34(c)), and his Honour recorded at J[47], Ms Guan's oral submission to similar effect as follows: Further, the second defendant submits that there is no evidence of a prima facie case that the deed of settlement and release could be set aside. In the end, the second defendant's position is that the plaintiff is not seeking any orders in the FCFCOA which would allow that Court to set aside the deed of settlement and release, and further that the FCFCOA does not have the power to do so. 1. Ms Guan's submission that there was an absence of evidence that the trustee was not entitled to enter into the settlement deed misunderstands Mr Li's case for final relief under s 90K(3) of the Family Law Act. Mr Li relied below on the correspondence between the legal representatives of Ms Guan and the trustee for the inference that the financial agreement played a significant role in their communications as to why the trustee should agree to transfer Mr Tang's share in the Oatlands property to Ms Guan. At the level required of an arguable case, it was open to the primary judge to be satisfied that setting aside the settlement deed would be a just and equitable adjustment of the rights of the parties under s 90K(3) of the Family Law Act. 2. Nor should the finding at J[62], concerning the scope of the power conferred by s 90K(3) of the Family Law Act to make an order setting aside the settlement deed, be read narrowly or in isolation from his Honour's express reference at J[47] to the requirement of an arguable case for final relief, the finding at J[63] rejecting the no utility argument (which was premised, among other matters, on the absence of proceedings by Mr Li to review the trustee's decision to enter the settlement deed), and the finding at J[79] that the orders sought by Mr Li were necessary to prevent a possible abuse of process. It is implicit in his Honour's reasons that he was satisfied that Mr Li had an arguable case for the final relief in the prospective Federal proceedings. 3. Ms Guan submits that the primary judge failed to consider whether there was evidence that the trustee in bankruptcy had engaged in an abuse of process, and a finding to this effect was necessary to engage the jurisdiction to grant a freezing order (grounds 1(c) and 5(b)). The argument now put by Ms Guan was not advanced by Ms Guan before the primary judge. In any event, it was not part of Mr Li's case below that the trustee had engaged in an abuse of process. 4. Ms Guan also submits that the primary judge failed to take into account whether Mr Li would suffer significant prejudice if the settlement deed was not set aside (grounds 1(d) and 5(c) and (d)). This argument was directed to the question of the balance of convenience or balance of prejudice. 5. The primary judge considered the extent of the likely prejudice to Mr Li if a freezing order was not made. His Honour found that the effect of the freezing order would be to preserve the value of the Oatlands property so as to prevent Ms Guan depleting the value of that property to the detriment of Mr Li: at J[51]-[52]. Having recorded at J[74] Ms Guan's submission that even if Mr Li is successful in his application in the Federal proceedings, he will end up with something less than $150,000, his Honour accepted Mr Li's submission that the amount that might be recovered was not an important factor in the exercise of the discretion in circumstances where there had been no investigation into the proofs of debt lodged with Mr Tang's trustee in bankruptcy: at J[76]. 6. On a fair reading of the reasons, his Honour was saying no more than that since the trustee was still investigating the amounts claimed by unsecured creditors, the estimate by counsel for Ms Guan of $150,000 as the amount that might be recovered was not as an important factor in the exercise of the discretion. That conclusion was open to his Honour. 7. It is not necessary to refer to the calculations which underlie Ms Guan's submission in support of ground 5(c) that his Honour ought to have held, when considering the balance of convenience, that Mr Li would recover no more than 5.5 cents in the dollar of his judgment debt. The argument now made was not advanced before the primary judge, and as counsel for Ms Guan properly accepted, would only arise if this Court granted leave and allowed the appeal and was re-exercising the discretion afresh. 8. Grounds 1 and 5 are not sufficiently arguable to justify any grant of leave to appeal. Second issue: value of Mr Tang's estate 1. Ground 2 contends that the primary judge erred in attributing a value to Mr Tang's estate that was far greater than the true position. This mischaracterises his Honour's reasons at J[79], which are set out at [18] above. Plainly, his Honour was referring to the value of the Oatlands property, not Mr Tang's estate. Moreover, in referring to the value of the Oatlands property as $2.2 million, his Honour was not referring to the net equity. Nor did his Honour fail to take into account the debts secured by the mortgage over the Oatlands property. He referred to those matters at J[13], [68]-[69] and [74] of his reasons. Leave to appeal on ground 2 should be refused. 2. Ground 3 is related to ground 2. It contends that the primary judge did "not act" on the only evidence as to the quantum of claims that might be the unsecured creditors of Mr Tang's estate, being the $8 million of unsecured creditors identified in the trustee's report. There are two answers to this ground. 3. First, as indicated, it was well open to his Honour to proceed on the basis that there was some uncertainty as to the value of the claims of unsecured creditors because their proofs of debt against Mr Tang's estate were subject to investigation by the trustee. 4. Second, as Mr Li correctly submitted in this Court, the significance of the $8 million figure in the trustee's report was subsumed by the calculation of how much Mr Li could expect would be realised on the sale of the Oatlands property. As to this, at J[76] the primary judge proceeded on the basis of "something less than $150,000", being the figure given by counsel for Ms Guan in submissions. Ms Guan cannot advance a different argument on appeal. Leave to appeal on ground 3 should be refused. Third issue: Ms Guan's undertaking and the balance of convenience 1. Ground 4 contends that the primary judge erred in placing no weight on Ms Guan's undertaking not to sell, dispose of, or encumber the Oatlands property other than by way of the first mortgage securing the principal amount of no more than $1,560,000. 2. The primary judge dealt with the undertaking at J[71]-[73] of his reasons. After referring to the terms of the undertaking, and recording that it was relied upon by Ms Guan for the submission that the risk of dissipating the assets by selling the Oatlands property was not significant, the primary judge found that the undertaking did not deal with the South Australian proceedings, and that on his understanding of Ms Guan's submissions, "she wanted to have the whole of the property so she could offer it up as some sort of security in those proceedings": at J[72]. That finding is not contested. 3. The undertaking did not deal with the South Australian proceedings in terms. Nor did counsel for Ms Guan address how the undertaking was intended to interact with the South Australian proceedings in which Ms Guan sought to offer the whole of the Oatlands property as security for an undertaking as to damages given by her company, PCI Green. 4. The primary judge further found that "in the circumstances of this case, I am not satisfied that the undertaking has the effect of reducing the risk of the second defendant diminishing the assets": at J[73]. That finding was well open to his Honour. The undertaking did not preserve that status quo. The undertaking would not have prevented the perfection of Ms Guan's asserted equitable interest in the Oatlands property or a drawdown from the equity in the Oatlands property of an amount up to $1,560,000, both of which would be detrimental to Mr Li. 5. The weight to be given to the undertaking was a matter for the assessment of the primary judge. It is not to the point that this Court might have exercised the discretion differently if the discretion had been conferred on it in the first place – such as to accept the undertaking – any such conclusion would be immaterial: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]. 6. Ground 4 is not sufficiently arguable to justify any grant of leave to appeal. Fresh evidence on appeal 1. Given the above conclusions, is not necessary to address Ms Guan's application to rely upon several affidavits as fresh evidence on appeal, if leave is granted and there is a re-hearing. Conclusion and Orders 1. None of the criteria for a grant of leave to appeal is satisfied. Accordingly, leave to appeal should be refused. The applicant should pay the respondent's costs of the application. The order I propose is that the summons seeking leave to appeal be dismissed with costs. 2. GRIFFITHS AJA: I agree with Gleeson JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2022