Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Walsh v Walsh [2012] NSWCA 57 Hearing dates: 8 March 2012 Decision date: 29 March 2012 Before: Macfarlan JA at [1] Meagher JA at [2] Barrett JA at [35] Decision: (1) Appeal dismissed. (2) The appellant pay the respondent's costs of the appeal. [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.] Catchwords: ESTOPPEL - equitable proprietary estoppel - co-owners of rice growing property and shares with attached water entitlements - respondent purchased appellant's interest in property on understanding encouraged by appellant that would also obtain his interest in shares - whether respondent would suffer detriment from change of position in reliance on encouraged expectation if that expectation repudiated. REMEDIES - equitable proprietary estoppel - whether respondent entitled to have encouraged expectation made good. Legislation Cited: Conveyancing Act 1919 Testator's Family Maintenance Act 1916 Water Act 2007 (Cth) Cases Cited: Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281 Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483 Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 Gillett v Holt [2001] Ch 210 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 Plimmer v Mayor of Wellington (1884) 9 App Cas 695 Ramsden v Dyson (1866) LR 1 HL 129 Riches v Hogben [1985] 2 Qd R 292 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 Category: Principal judgment Parties: Graham Ernest Walsh (Appellant) Maurice Geoffrey Walsh (Respondent) Representation: Counsel: Mr T Hall (Hall Partners, Strathfield) (Appellant) Dr G C Dempsey (Respondent) Solicitors: Hall Partners, Strathfield (Appellant) Noyce Salmon & D'Aquino, Griffith (Respondent) File Number(s): CA 2009/291730 Decision under appeal Citation: Walsh v Walsh [2011] NSWSC 271 Date of Decision: 2011-04-07 00:00:00 Before: Slattery J File Number(s): SC 2009/5696 Judgment 1MACFARLAN JA: I agree with Meagher JA. 2MEAGHER JA: The appellant and respondent are brothers and were the owners as tenants in common in unequal shares of a rice growing property at Bridge Road, Murrami (Farm 1077) in the Murrumbidgee Irrigation Area (MIA) in southern New South Wales. In June 2000, the respondent acquired the appellant's two-fifths interest in that property on the understanding that he would also obtain the appellant's interest as co-owner of certain shares in Murrumbidgee Irrigation Limited (MIL) to which were attached water entitlements. That interest was never transferred to the respondent. 3In proceedings commenced in December 2009 the appellant sought orders for the appointment of trustees for sale of the MIL shares. In defence the respondent claimed that he was entitled to the appellant's interest in the shares by reason, among other things, of an equitable estoppel by encouragement. Slattery J (the primary judge) upheld that claim and made a declaration that the appellant held his interest in the shares on trust for the respondent. This appeal is from that decision. The only ground of appeal in relation to the estoppel is that the primary judge erred in concluding that the respondent had suffered or would suffer detriment by reason of any change of position in reliance upon the expectation created. The underlying facts 4The following facts are not controversial. MIL was responsible for providing irrigation water to landholdings in the MIA. MIL's constitution provided for a member contract between each shareholder and MIL which governed the terms upon which MIL must supply that member's water allocations in respect of the landholding described in the schedule to that contract. As at June 2000, the appellant and respondent were the joint owners of one B class share and six C class shares in MIL. The class and number of shares held were related to the type and quantity of water allocation held under their member contract. The landholding specified in that contract and in MIL's share register was Farm 1077. Because Farm 1077 was used for rice growing, the water allocation to which it was entitled was essential to its viability and profitability. 5Members of the Walsh family had farmed irrigated land in the MIA since 1957. As at April 2000 there were two farming partnerships constituted by various members of the family. The appellant was not a member of either of those partnerships. He had taken a different career path and had not, except occasionally, been involved in any of the farming activities. One of the partnerships, known as "Walsh Agri", carried on a farming business which included growing rice on Farm 1077. The members of that partnership were the respondent, his wife and his parents. At the same time another farming partnership was conducted on other land by members of the family under the name "G. Walsh & Sons". The acquisition of Farm 1077 by the appellant and respondent in 1987 was financed by that partnership, the members of which included, at that time, the respondent but not the appellant. The loan taken by the partnership to acquire that property had been repaid by April 2000. 6In early 2000 relations between the appellant and respondent were strained and there was little communication between them. In about April 2000 the appellant had discussions with his mother about selling his interest in Farm 1077. They were followed by conversations between the appellant and respondent in which they agreed that the respondent would acquire the appellant's interest for an amount of $250,000. In the course of those conversations there was discussion as to whether the respondent would obtain the "full interest in the water allocation with MIL" by virtue of his acquisition of the appellant's interest in the property. Those conversations were the subject of specific findings which are summarised later in these reasons. At the same time the family members agreed to dissolve the partnerships between them so that there was a complete separation of their various interests. Eventually, a deed was executed by family members, including the appellant and respondent, which dealt with the dissolution of the two partnerships. That deed provided that dissolution was conditional upon the purchase by the respondent of the appellant's interest in Farm 1077. On 21 June 2000 contracts for the sale of that interest were exchanged. Settlement took place on the same day by payment of an amount of $25,000 to the appellant and the grant of a mortgage by the respondent to the appellant securing the balance of $225,000. That mortgage provided for principal and interest to be repaid by 15 June 2009. In fact, the principal and interest was repaid by about June 2008. 7Between June 2000 and June 2008 the respondent continued farming operations on the property, utilised water allocations and paid the costs of doing so. He also arranged with MIL for accounts issued by it to be addressed to him and not to him and his brother. At no stage during this period did the appellant suggest that he retained any interest in the MIL shares or the member contract. In about September 2008, and after the mortgage had been discharged, solicitors acting for the respondent requested that the appellant execute transfers of his interest in the MIL shares. The appellant declined to do so except on the basis that his interest was purchased by the respondent at a price which reflected then current market values. 8That proposal was rejected and the appellant commenced proceedings seeking the appointment of trustees for sale of the MIL shares under s 66G of the Conveyancing Act 1919. The decision below 9The respondent defended that claim on three bases. They were that the appellant's interest in the MIL shares was part of the subject matter of the contract for sale, that it was an implied term of that contract that the appellant transfer his interest in those shares and that he had the benefit of a proprietary estoppel by encouragement which should be satisfied by the imposition of a trust and order for the transfer of that interest to him. 10The primary judge rejected the respondent's claim based on the implication of a term ([81]-[85]) and did not decide the claim that the interest in the MIL shares was part of the subject matter of the contract ([86]-[93], cf [45]). 11In relation to the claim to an estoppel, having referred to the often cited passages from the judgments of Brennan J in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 at 428-429 and Priestley JA in Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 at 610, the primary judge described the principal matters which the respondent must establish in the following terms: "(a) one party creates or encourages another party to adopt a particular assumption or expectation that a particular legal relationship existed or would exist between them; (b) the latter party relies upon that assumption or expectation; (c) the latter party's reliance is known or expected by the former party; and (d) the latter party would suffer detriment if the assumption or expectation was not fulfilled by the former party." 12It was not submitted that the primary judge erred in his formulation of the principal matters which must be established. However, it should be noted that the formulation in paragraph (d) does not make clear that the detriment must result from a change of position which has occurred in reliance on the encouraged assumption or expectation. 13The action or abstaining from action in reliance upon the assumption or expectation encouraged is what invites the intervention of equity: Riches v Hogben [1985] 2 Qd R 292 at 300 cited in Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at [35]-[36]; and the detriment that makes the estoppel enforceable is that which "would flow from the change of position if the assumption were deserted that led to it": per Dixon J in Grundt v Great Boulder Proprietary Gold Mines Ltd (1937) 59 CLR 641 at 674. Although that statement was made in relation to common law estoppel, it has been held to apply equally to promissory and proprietary estoppels: Delaforce v Simpson-Cook [2010] NSWCA 84; (2010) 78 NSWLR 483 at [1], [6], [43], [44]. 14The detriment which can support an estoppel by encouragement need not be financial and it is not necessary, where that detriment is the expenditure of money, that the expenditure have been on the property in respect of which the estoppel is sought to be enforced. In Ramsden v Dyson (1866) LR 1 HL 129 money was expended upon the land in respect of which the estoppel was sought to be enforced. In Riches v Hogben the detriment was constituted by the plaintiff selling his possessions, giving up a house in England and bringing his family to Australia in reliance on an expectation that the defendant, his mother, would provide a house in his name if he and his family migrated to Australia. When addressing whether that was sufficient detriment, McPherson J observed (at 300): "Many of the cases involve improvements to the land of the defendant carried out in the belief that the plaintiff had acquired an interest in that land: see Dillwyn v Llewelyn (1862) 4 De G.F.&J. 517; 45 ER 1285; ... . However, it is clear from Crabb v. Arun District Council [1976] Ch. 179 both that the principle is applicable to representations or assurances as to future conduct, and also that it is not confined to acts done on the property of the defendant. The acts or conduct in question may have been done on or with reference to the plaintiff's own property, as in Rochdale Canal Co. v. King (No. 2) (1853) 16 Beav. 530; 51 E.R. 924; and Cotching v. Bassett (1862) 32 Beav. 630; 55 E.R. 40. The critical element is the conduct of the defendant after the representation in encouraging the plaintiff to act upon it: see Olsson v Dyson (1969) 120 CLR 365, 379, per Kitto J." 15In Delaforce v Simpson-Cook the plaintiff successfully maintained a claim to a proprietary estoppel entitling her to a property owned by her deceased former husband. When settling proceedings in the Family Court, in reliance on a promise (which was the subject of a notation in consent orders) that the deceased would bequeath the property to her, she had given up a claim to an amount of $50,000 and not sought an order that she should have title to the property after the death of her former husband. Allsop P (with whom Giles JA agreed) said with respect to the detriment constituted by the abandonment of the latter claim to other relief (at [5]): "This can be described in the language of loss of a chance that is not fanciful or unrealistic, or in the language of proceeding thereafter on the basis of a new or changed convention or conventional basis. ... For instance, if, as here, in reliance upon a representation or encouragement, a court case is abandoned and the representation or encouragement is later sought to be resiled from, the party to whom the representation or encouragement was made and in whom the expectation was raised is left in the position not only of the loss of the entitlement to pursue his or her rights in the case in the past, but also is likely to be in the position of being unable to demonstrate what would, or even may, have happened in the case, it being an alternative, complex and now hypothetical body of human conduct. That the party encouraged cannot show that he or she would have been better off in the posited alternative reality is not fatal to the making out of the estoppel. Indeed, the inability to prove such things reveals a central aspect of the detriment: being left, now, in that position. Of course, if it is self-evident or can be clearly demonstrated that the case was fanciful or otherwise doomed to fail, there may be no real detriment; but that was not the case here. The respondent gave up her right to propound her case in the Family Court on the faith of the deceased's representation. It was not self-evident, or otherwise clearly demonstrated, that she could not have been successful in securing her rights to the subject property after the death of the deceased." 16The primary judge made a number of findings of fact which are not challenged on appeal: [49]-[74]. In particular, he found that in the negotiations which preceded the execution and settlement of the contract for the sale of the land, the appellant said to the respondent that he was "selling everything" and agreed that he was selling "houses, shares, water, pumps, everything", so that he would have no "further interest in the farm": [51]. He also found that the appellant and respondent clarified between them that these references to "water" were to "water rights not water then on the farm": [53]. The primary judge accepted the respondent's evidence that on the basis of these statements he assumed he would "obtain the full interest in the water allocation with MIL" by virtue of his acquisition of his brother's interest in the farm: [53]. He found that the respondent relied on that expectation and that following the completion of the contract for sale, treated the MIL shares and member contract as if he was the sole legal and beneficial owner: [56]. 17The primary judge did not make an express finding that an act of reliance or change of position of the respondent was that he proceeded with the purchase of Farm 1077. In his affidavit evidence the respondent said (affdt 12/3/10 para 21): "As Farm 1077 is a rice farm, the water allocation for Farm 1077 is critical to the production of rice. The farm would simply not be viable without the full water allocation from MIL. I would not have agreed to purchase Graham's interest in Farm 1077 without the full water allocation." That statement was not challenged in cross-examination. In his written submissions to the primary judge (para 68) the respondent maintained the position that he would not have agreed to purchase the property had he not believed that he was also receiving the associated water rights. Before this court the appellant did not dispute that this was how the case was conducted before the primary judge. 18The primary judge identified four respects in which he considered that the respondent would suffer detriment if the appellant repudiated the expectation which he had created and encouraged. The first was that repudiation of the expectation would likely lead to the sale of the MIL shares in circumstances where the respondent may lose all of the water allocation to Farm 1077 because he might not be successful in bidding in an open market for the MIL shares: [76]. The second was that if the appellant enforced his rights of co-ownership of the shares, the respondent may be liable to account to him for the use of the water rights during the period 2000 to 2010 in circumstances where the respondent had not made any provision for that liability: [77]. The basis for and amount of any such liability was not addressed. The third, which is related to the first, was that if the respondent was unable to secure water allocations for the property he would have to cease rice farming and the property would diminish in value: [78]. The fourth was that the respondent had lost the opportunity of negotiating with the appellant for the transfer of his interest in those rights at a time before those rights became substantially more valuable following the enactment of the Water Act 2007 (Cth): [5], [79]. The primary judge did not address when and in what circumstances that opportunity would have arisen other than to say that it would have arisen "before the rights became so valuable that now [the respondent] may not be able to afford to buy them": [79]. The issues on appeal 19Because it is my view that the primary judge was correct in relation to his conclusion concerning the estoppel claim, it is not necessary to consider ground 1 of appeal or the appellant's notice of contention which address the implied term and subject matter of contract arguments. The former argument was decided in favour of the appellant and is only pressed by the respondent if the estoppel holding is overturned. The latter argument was not determined by the primary judge and also only arises if the estoppel holding is overturned. 20By ground 2 of appeal the appellant contends that the primary judge erred in concluding that the respondent suffered any detriment. At least one of the arguments made on behalf of the appellant went beyond that ground. However, no objection was taken to that argument being put or addressed by this court. 21First, the appellant argued that the price paid by the respondent for the two-fifths interest in Farm 1077 did not take into account any value of the interest in the MIL shares. It was also said that there was no evidence of any "consideration" being paid for the MIL shares. For those reasons it was contended that the respondent suffered no detriment by reason of his not having received something for which he had given no value. Secondly, it was argued that it was always the respondent's intention to use the property for rice growing and that he would have done so even if he had known that he was only acquiring the appellant's interest in the land. This argument assumes, contrary to the unchallenged evidence, that in the absence of the encouraged expectation, the respondent would have purchased his brother's interest in Farm 1077 and asserts that because he would have done so and continued to farm the land, he suffered no detriment because there was in reality no change in his position. Next, the appellant argued that the loss of the opportunity to negotiate for the purchase of his interest in the shares did not constitute a sufficient detriment because the appellant had no obligation to negotiate or to transfer the shares to the respondent. In support of this proposition he relied upon the decision of Young CJ in Eq (as his Honour then was) in Barnes v Alderton [2008] NSWSC 107; (2008) 13 BPR 25,281. Finally, it was argued that the respondent was only entitled to that relief which was sufficient to remove or reverse, or compensate for, the detriment which the appellant might otherwise suffer. That detriment was not to be measured by the current value of the appellant's interest in the MIL shares so that the respondent would be over-compensated or advantaged by an order that the interest vest in him. To the extent that the detriment was to be measured as the increase in the value of the MIL shares between the date of the contract and the date of hearing, that detriment was outweighed by the respondent having the benefit of the use of the land and water allocations between 1987 and June 2000 and the water allocations from June 2000, in each case without making any payments to the appellant. 22This final argument raises the question whether the primary judge erred in ordering that the appellant make good the expectation by transferring his interest in the shares to the respondent. The appellant says that this relief exceeded what was necessary to enforce or vindicate the "minimum equity" which was to be measured by reference to the detriment suffered. As will be seen, this argument does not take account of what was said in Giumelli v Giumelli at [40]-[48] or the decisions in Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 at [18]-[20] and Delaforce v Simpson-Cook at [3], [59]. The primary judge did not err in holding that the respondent had suffered relevant "detriment" 23The appellant's first argument, that the respondent suffered no detriment by any change of position involved in expending money to acquire his interest in Farm 1077, does not address any of the respects in which the primary judge considered that the respondent would suffer detriment. Nor does it address any argument put on behalf of the respondent because the respondent did not maintain, either before the primary judge or in this court, that the payment of $225,000 to purchase the interest in Farm 1077 itself constituted or involved financial detriment. More fundamentally it must, in any event, be rejected at a factual level. The respondent's evidence was that the farm would not have sold in 2000 without the water rights for more than $500,000 and if it was sold with the water rights it would have sold "for more than $500,000": Black 83P-V, 85M. He also agreed that if he was buying his brother's interest for $200,000 and that interest included the water rights, he would have been paying less than its "true value": Black 85P. However, it did not follow from this evidence that assuming he was acquiring interests in the land and shares, that he did so at an undervalue. On the contrary, the evidence indicates that the respondent paid $250,000 for a 40 per cent interest in the land. If that interest also carried with it the appellant's 40 per cent interest in the MIL shares, the value attributed to the land and water rights was $625,000. Thus, the respondent's evidence was that the farm alone would not have sold for more than $500,000 whereas he had paid the equivalent of $625,000 on the assumption that he was also receiving the water rights. Contrary to the appellant's submission, this evidence would justify a conclusion that the respondent paid the appellant an amount for his 40 per cent interest in the land which was in excess of his view as to its value without the benefit of the water rights. To that extent it would support the argument referred to above but not made by the respondent. 24The appellant's second argument ignores the respondent's evidence that he would not have purchased his brother's interest in Farm 1077 in the absence of the encouraged expectation. That is a sufficient basis for rejecting the argument which does not, in any event, address any of the respects in which the primary judge considered that the respondent had suffered detriment. Specifically, it does not address the detriment consisting of the lost opportunity to negotiate for the acquisition of the interests in the property and shares before the respondent's change of position in purchasing the property. 25The appellant's third argument does address that fourth respect in which the primary judge held that the respondent suffered relevant detriment but also must be rejected. The primary judge did not identify the time at which the opportunity to negotiate a purchase of the appellant's interest in the MIL shares would have first arisen. The time when the respondent had and lost that opportunity was before he changed his position by purchasing his brother's interest in Farm 1077. That opportunity was to negotiate in the following circumstances to acquire that interest together with the interest in the MIL shares. The appellant desired to sell his interest in the property. The Walsh family wanted to dissolve their existing partnerships so as to separate the interests of the various family members, including those of the appellant and the respondent. There was no ready market for the sale of the MIL shares and water entitlements separate from the landholdings to which they related. To the extent that such shares and entitlements were transferable separately from a landholding, they had a value which was much less than their value in 2008. More significantly, the appellant and respondent were co-owners of the landholding and MIL shares and in the absence of agreement as to the acquisition by one of the other's interests, the land and shares would have to be sold, either by agreement or by the appointment of a trustee for sale. Finally, as the evidence referred to above indicates, the respondent was prepared to pay an amount for the appellant's interests in the property and MIL shares which attributed some value to the shares and water entitlements. 26The prospect of the respondent negotiating an acquisition of both interests for the same price as was paid in June 2000, or a price which was not substantially different, was not fanciful or unrealistic. The appellant did not have the option of selling his interest in the land and holding his interest in the shares and would have had to take a market price for both in the event of a forced sale. As Allsop P observes in Delaforce v Simpson-Cook at [5], the fact that the party encouraged cannot show "that he or she would have been better off in the posited alternative reality is not fatal to the making out of the estoppel. Indeed, the inability to prove such things reveals a central aspect of the detriment: being left, now, in that position". 27The respondent's position was quite unlike that of the plaintiff in Barnes v Alderton. She alleged that her brother had promised to give her half of the proceeds of sale of a property owned by him when it was sold. She had made no contribution by way of expenditure on the property. Young CJ in Eq held that her claim to an estoppel by encouragement failed for at least two reasons. First, the statement of the brother was no more than a statement of present and revocable intention. It was not given and understood as tantamount to a promise: Barnes v Alderton at [58], [60], [62]. Secondly, there was no detriment flowing from her alleged change of position. The plaintiff said that if the statement had not been made to her, she would have taken steps to formalise an arrangement with her brother. However, there was nothing she could have done to improve her position as the beneficiary of a mere statement of present and revocable intention, either by way of negotiating with her brother or taking proceedings under the Testator's Family Maintenance Act 1916: Barnes v Alderton at [63], [64]. 28Although the appellant did not address specific arguments to the remaining three respects in which the primary judge held that the respondent would suffer detriment, I propose to address them shortly because the primary judge does not expressly identify, in relation to any of them, the change of position by the respondent from which the detriment "would flow" if the encouraged expectation was departed from. 29As to the first and third of those respects, the only possible change of position would appear to be the respondent's acquisition of his brother's interest in the property in June 2000. Had he not done so, unless in the meantime he had reached agreement with his brother to acquire those interests, the respondent would have remained a co-owner with the appellant and faced the risk of a forced sale of the property and shares. Thus, in the absence of agreement, he would have faced a risk of losing the property and water entitlements and, if they could be dealt with separately, he also would have faced the risk of holding the property as co-owner without the benefit of the water entitlements. He would not, however, have faced the risk of holding the property as sole owner without the benefit of any water entitlements. To that extent these two respects identify a detriment which would arise from the respondent's change of position. It is unnecessary to address the more difficult question whether that detriment was sufficiently substantial to make it unjust or inequitable to allow the appellant to repudiate the expectation created: Gillett v Holt [2001] Ch 210 at 232. 30As to the second respect in which the primary judge found detriment, the only change of position which could possibly give rise to the detriment identified was that the respondent abstained from making some provision for any ongoing liabilities to the appellant. Exactly how those liabilities would arise and what would be their quantum are not clear. More significantly, the respondent did not give evidence, and it is not obvious, that had he appreciated that he had not acquired his brother's interest in the water entitlements, he would have made an ongoing provision for some amount. His case was that but for the encouraged expectation he would not have acquired his brother's interest in Farm 1077 and accordingly he would not have had to address the making of any such provision. For these reasons the primary judge's conclusion as to this detriment is not supported by the evidence and does not flow from the respondent's change of position in reliance upon the encouraged expectation. The respondent was entitled to have the encouraged expectation made good 31The appellant's fourth argument must also be rejected. There is no governing principle that requires that the relief granted be that which is the minimum necessary to do justice: Giumelli v Giumelli at [40]-[48]; Donis v Donis at [18]-[19]; Delaforce v Simpson-Cook at [3], [59]. To the extent that there is a prima facie entitlement to relief on the basis that the adopted expectation is to be made good, that entitlement must be weighed against any injustice to the estopped party in doing so and the detriment suffered by the party who has acted upon the induced expectation. Consideration should also be given to whether the proposed relief has any adverse effects on the interests of third parties. 32In the circumstances of the present case the expectation is not out of all proportion to the detriment which the respondent suffered. The opportunity lost was to acquire his brother's interests in the property and MIL shares for the same or a not substantially different price to that paid in June 2000. The suggestion that requiring the expectation to be adhered to would result in the respondent having acquired the property and MIL shares at an "undervalue" must be rejected having regard to the evidence referred to in [23] above. The "benefits" which the appellant argued should be brought to account are not such as to require a departure from the prima facie position. The fact that the respondent may have enjoyed the use of the whole of the land and water rights since 1987 is irrelevant because he would have enjoyed that benefit in any event until June 2000 and at that time paid an amount which on the evidence attributed some value to the MIL shares. Proposed orders 33For these reasons the appeal should be dismissed with costs. 34The orders I propose are: (1)Appeal dismissed. (2)The appellant pay the respondent's costs of the appeal. 35BARRETT JA: I agree with Meagher 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: 05 April 2012