Agapetos & Armani (No 2) - [2024] FedCFamC1F 740

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Agapetos & Armani (No 2) [2024] FedCFamC1F 740

File number: SYC 2768 of 2023

Judgment of: CAMPTON J

Date of judgment: 6 November 2024

Catchwords:
FAMILY LAW – ENFORCEMENT – Injunction – Application for injunctive order in aid of enforcement – Where consent orders were made providing for the application of the sale proceeds of a property held by the husband and the fourth respondent that did not provide for the application of funds to pay out a loan of the fourth respondent secured by way of mortgage over the property – Where the wife seeks an order requiring the fourth respondent to pay the value of funds applied from the sale of the property to discharge the loan and mortgage to an account established pursuant to the orders holding the funds produced from the sale – Where issue exists as to the interpretation of the consent orders sought to be enforced – Where issue exists as to the exercise of discretion to enforce – Orders made requiring the fourth respondent to pay the value of funds applied to discharge its loan into the interest-bearing account established by the consent orders in the joint names of the husband and the wife.

FAMILY LAW – COSTS – Litigation funding – Where the wife has received the benefit of prior litigation funding by way of lump sum and dollar-for-dollars order payable by the husband – Where the wife seeks further litigation funding for legal costs already incurred and future costs payable by the fourth respondent – Where the fourth respondent opposes the relief – Where the financial circumstances of the wife are not dissimilar to those that which existed at the time of the prior litigation funding orders – Where the financial circumstances of the fourth respondent are superior to those of the wife – Where issues generating increased costs as to have continued – Where the fourth respondent submits that costs payable by a non-marriage party for litigation funding ought be exercised sparingly and that the risk of irreversibility is a consideration that “weighs heavily” in the circumstances of this case – Where the husband’s costs are being paid by the second respondent, his mother and the other respondents costs are being paid – Where the part of the wife’s current costs are unpaid – Where the wife’s case is not absent merit – Where absent further litigation funding the wife is unable to participate in this complex litigation – Where the circumstances justify a further litigation funding order payable by fourth respondent to enable the wife to continue to prosecute her claim – Litigation funding ordered payable by the fourth respondent in a fixed sum.

FAMILY LAW – PARTIAL PROPERTY SETTLEMENT – Where the wife seeks the husband pay to her $100,000 by way of partial property settlement – Where the wife seeks funds to purchase furniture and curtains for a new residence – Where the husband has not filed a Financial Statement in over 12 months – Where the husband opposes the relief and submits that his financial circumstances are such that he is unable to meet the order sought – Where the wife sold, absent disclosure, the existing furniture of she and the husband – Where the wife adduced no evidence as to the items sold or the use of the sale proceeds – Orders for the husband to pay to the wife $30,000 by way of partial property settlement proximate to the time for completion of the new residence.

FAMILY LAW – DISCLOSURE – Where the second to fourth respondents have disclosed a significant quantity of documents of entities that are not parties to the proceeding – Where a trust of which the husband is the primary beneficiary will in the future receive a minority interest in the entities – Where the wife seeks additional documents of those entities – Where the second to fourth respondents submit those additional documents are not in their possession or control, are “commercially sensitive”, and are so voluminous that it is “akin to a disclosure under a subpoena” – Where the documents sought are relevant to enable the wife to understand the integers of the consolidated financial statements disclosed to date of those entities – Where orders are made requiring the production of documents in the possession or control of the second to fourth respondents – Where orders are made providing the wife leave to issue a subpoena to the relevant entities to produce the specified documents in the event of the second to fourth respondents cannot disclose them.

FAMILY LAW – ENFORCEMENT APPLICATION – Where the wife seeks for the husband’s mother, as the second respondent, to pay her a fixed sum by way of enforcement of a consent order requiring the second respondent to pay for appropriate accommodation for the wife and the child of the husband and the wife – Where the husband’s mother opposes that relief on the basis she already meets the cost of the wife and the child’s accommodation – Consideration of the consent order to meet the cost of “appropriate accommodation” – Where the monetary periodic value of the accommodation as sought by the wife is not contemplated – Application dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 4, 79, 80, 85A, 90AE, 90AF, 105, 109A, 112AP, 114, 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 11, Div 11.1.7, r 6.04 and r 11.07

Cases cited:
Agapetos & Armani [2023] FedCFamC1F 1072

Alister v R (1984) 154 CLR 404; [1984] HCA 85

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Biltoft & Biltoft (1995) FLC 92-614; [1995] FamCA 45

BSU15 v Minister for Immigration & Anor [2020] FCCA 859

Farina & Lofts and Ors [2019] FamCA 228

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hearne v Street (2008) 235 CLR 125; [2008] HCA 36

Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68

Lao & Zeng (2021) FLC 94-053; [2021] FedCFamC1A 17

Luck& Norwood (2018) FLC 93-869; [2018] FamCAFC 207

M and D [2014] FCWA 50

Mandel & Duan [2024] FedCFamC1A 166

Martin & Martin and Anor (No. 2) [2014] FamCA 232

Masoud & Masoud (2016) FLC 93-689; [2016] FamCAFC 24

Nagel & Clay [2021] FamCA 358

Ramsey & Ramsey (1983) FLC 91-301; [1982] FamCA 42

Samuels v Linzi Dresses Ltd [1981] Q.B. 115

White & Tulloch & White (1995) FLC 92-640; [1995] FamCA 127

Zschokke and Zschokke (1996) FLC 92-693; [1996] FamCA 79

Division: Division 1 First Instance

Number of paragraphs: 151

Date of hearing: 24 October 2024

Place: Sydney

Counsel for the Applicant: Mr Jones SC

Solicitor for the Applicant: Barkus Doolan Winning

Solicitor for the First Respondent: Mr Meehan, Holmes Donnelly & Co Solicitors

Counsel for the Second, Third and Fourth Respondents: Mr Flick

Solicitor for the Second, Third and Fourth Respondents: Cleary Hore Solicitors
ORDERS

SYC 2768 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS AGAPETOS

Applicant

AND:
MR ARMANI

First Respondent

MS ARMANI

Second Respondent

ARMANI PTY LTD (and another named in the Schedule)

Third Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

6 NOVEMBER 2024

THE COURT ORDERS THAT:
1.By way of enforcement and implementation of Order 2 of the consent orders made on 13 September 2023, within 28 days of the date of this orders, the fourth respondent do all things as are necessary to deposit $1,403,010 into the interest-bearing trust account held in the joint names of the husband and the wife, being NAB account #...39 established pursuant to the said 13 September 2023 orders holding the funds produced on the sale of the property at D Street, Suburb E.
2.Within 14 days of them being completed, and in any event no later than 6 December 2024, the respondent husband and the second, third, and fourth respondents provide consolidated financials for the entities comprised in the J Group for the year ending 30 June 2023.
3.The second, third, and fourth respondents provide to the solicitors for the husband and the wife by way of disclosure within 28 days of the date of this order the following documents, as are in the possession or control of any of them:
(a)Any valuations obtained in the last five years for the following:
Various commercial premises listed (i) – (xvi)

(b)Detailed financial statements and management accounts and ledgers to support the information contained in the financial statements including assets, liabilities, income and expenditure for the last three financial years for the entities comprised in the J Group including but not limited to:
Various corporate entities listed (i) – (xiv)

4.In the event of a failure to comply with Order 3, the wife have leave to issue subpoena for the documents not produced directed to the relevant named entities, such subpoena to be issued no earlier than 6 December 2024.
5.Pending further order, by way of litigation funding:
(a)Within 28 days from the date of these orders the fourth respondent pay to the solicitors for the wife by way of litigation funding the sum of $160,000; and
(b)The amounts that the wife’s solicitors receive from the fourth respondent pursuant to these orders are to be applied only to meet the wife’s solicitors costs and disbursements, the wife’s counsel fees, and experts fees for the purposes of the this proceeding; and
(c)The wife’s solicitors are to keep detailed records of all payments made of all legal costs and disbursements paid with funds provided by the fourth respondent.

6.Within 14 days of completion of the acquisition of the real property at F Street, Suburb G (“the Suburb G property”), or on or before 30 June 2025, whichever is earlier, the husband pay to the wife $30,000 by way of partial property settlement.
7.The Application in a Proceeding of the wife filed on 9 July 2024 as amended by the Amended Minute of Orders of the wife (Exhibit 1), the Response to an Application in a Proceeding filed by the husband on 29 August 2024, and the Response to an Application in a Proceeding filed on 30 August 2024 by the second to fourth respondent, are dismissed, save as to costs.
8.The costs of each party of and incidental to the Application in a Proceeding filed on 9 July 2024 and the Responses thereto are reserved.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Agapetos & Armani has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:

These are proceedings in the Major Complex Financial Proceedings List scheduled for final trial over 10 days commencing on 27 September 2025. Case management and trial directions are expected to be made on 21 February 2025.
The parties to the proceedings are:
(a)The applicant, Ms Agapetos (“the wife”);
(b)The first respondent, Mr Armani (“the husband”);
(c)The second respondent, Ms Armani, (“the husband’s mother”);
(d)The third respondent, Armani Pty Ltd (“[Armani] Pty Ltd”), in its capacity as trustee of the Armani Trust; and
(e)The fourth respondent, B Pty Ltd (“[B Pty Ltd]”).
These reasons determine the Application in a Proceeding of the wife filed on 9 July 2024, the Response to the Application in a Proceeding filed on 29 August 2024, and the Response to the Application in a Proceeding filed by the second, third, and fourth respondents on 30 August 2024.
The orders sought by the wife in her Application in a Proceeding were amended during the hearing to that contained in a Minute of Order (Exhibit 1). Paragraph 5 as sought in Exhibit 1 was further varied over the course of the hearing. The final version of the orders sought by the wife was:
1.That within 14 days of the date of these Orders, the 4^th Respondent deposit into the interest-bearing trust account held in the joint names of the parties, being NAB account [#...39], the sum of $1,403,010.04.
2.That within 14 days of the date of the Orders the Respondent Husband and the 2^nd to 4th Respondent(s) provide the following documents to the Wife:
2.1.Consolidated financials for the entities comprised in the [J] Group for the years ending 30 June 2023;
2.2.Any valuations obtained in the last five years for the following:
[Various commercial premises listed 2.2.1. – 2.2.16.]
2.3.Detailed financial statements and management accounts and ledgers to support the information contained in the financial statements including assets, liabilities, income and expenditure for the last three financial years for the entities comprised in the [J] Group including but not limited to the following entities:
[Various corporate entities listed 2.3.1. – 2.3.14.]
3.Pursuant to s117(2) of the Family Law Act 1975 the 4^th Respondent pay or cause to be paid to the Wife’s Solicitors the sum of $160,000 to be applied toward the Wife’s legal costs incurred or to be incurred with such sum to be paid within 14 days.
4.The Wife’s Solicitors keep detailed records of all payments made by the 4^th Respondent pursuant to Order 3 above and of all legal costs and disbursements paid with the funds provide by the 4^th Respondent.
5.~~That Order 3 of 13 September 2023 be varied as follows:~~ The husband pay to the wife $100,000 by way of partial property settlement within 28 days. In the event of the husband failing or neglecting to comply with this order, then:
5.1within 7 days of the date of the date of non-compliance, the Husband and Wife do all things and sign all documents necessary to draw down the sum of $100,000 from the NAB interest bearing trust account, account ending [#...39] and pay to the Wife the sum of $100,000 by way of partial property settlement.
6.That by no later than 29 October 2024, the second Respondent deposit into [OO Bank] account ending [#...36] held in the name of the Wife the sum of $59,780.
7.That it is NOTED that the Wife will utilise the funds deposited pursuant to Order 6 to meet accommodation costs for her and the child, [X] and costs associated with dog sitting [X’s] dog.
8.That the Husband and 2^nd to 4^th Respondents meet the costs of and incidental to this Application.
The husband opposed the relief sought in paragraphs 1, 2, 5, and 8 in Exhibit 1 and did not wish to be heard as to the relief in paragraphs 3, 4, and 6. The second to fourth respondents opposed the relief sough in paragraphs 1, 2.2, 2.3, 3, 6, and 8 of Exhibit 1. As to the relief sought in paragraph 2.1, these documents were agreed to be provided when available, expected to be in the not distant future. Orders will be made providing the second to fourth respondents a reasonable but closed period of time to complete this disclosure. Each of the husband, second, third, and fourth respondents sought for the wife to pay their costs of an incidental to responding to the Application in a Proceeding.
The relief sought by the husband in paragraph 2 of his Response to an Application in a Proceeding filed on 29 August 2024 was discontinued and withdrawn on 24 October 2024. An order was made granting him leave to issue a subpoena to produce specified documents directed to Mr PP (“the wife’s father”) relevant to QQ Ltd and Agapetos Pty Ltd.
For the reasons that follow orders will be made providing for:
(a)B Pty Ltd to pay $1,403,010 into the account established pursuant to the orders made on 13 September 2023 in the joint names of the husband and the wife;
(b)The second to fourth respondents to have the opportunity to comply with paragraph 2.2 and 2.3 as sought by the wife in Exhibit 1, and in the event of they are unable to do so, the wife have leave to issue a subpoena to the relevant entities;
(c)B Pty Ltd to pay to the wife’s solicitors by way of litigation funding $160,000; and
(d)The husband to pay to the wife $30,000 by way of partial property settlement.
BACKGROUND
The factual history of this matter is dense. The issues in the proceeding have presented with some complexity. The litigation has consumed five days of interlocutory hearing prior to the hearing of the current interlocutory dispute on 24 and 25 October 2024.
The context of this current interlocutory dispute is informed by:
(a)The consent orders made on 13 September 2023 (“the September 2023 orders”); and
(b)The history, the findings made, and the findings that were not made, as recorded in the reasons for judgment delivered on 13 December 2023 (Agapetos & Armani [2023] FedCFamC1F 1072) (“the December 2023 reasons”). No appeal was filed from that determination. During submissions various paragraphs of that judgment were identified as relevant to the current disputes. In the circumstances and in conformity with the obligations codified in s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the contents of those earlier reasons will not be reproduced in these reasons save as where necessary.
That said, it is helpful for the purposes of these reasons to unpack some of that history.
The Armani Trust
In 2013 the husband’s father, Mr H, who passed away in 2022, (“the husband’s late father”), established four “Bloodline Trusts”. The third respondent, the Armani Trust, by way of its trustee Armani Pty Ltd, is one of the four trusts. The husband is identified as the principal beneficiary of the Armani Trust. The husband’s mother is the sole shareholder of Armani Pty Ltd. The husband’s brother, Mr K, and his mother, are its directors.
The wife contends that the nature and character of the husband’s interest in the Armani Trust such that it is the property of the husband in the matrimonial cause (at [116]–[135] of the December 2023 reasons). The husband and the second to fourth respondents oppose the findings as sought by the wife, adopting a differing evaluation of the factual matters said to underscore her contention. The wife seeks alternate relief by way of ss 85A and 90AE, and pursuant to s 79(5) of the Family Law Act 1975 (Cth) (“the Act”) (at [134]), opposed by the husband and the other respondents.
The December 2023 reasons concluded (at [139]) that absent the entirety of all relevant evidence and the testing of that evidence, the findings sought by the wife as to the nature and character of the husband’s interests in Armani Trust would not be made or rejected by way of an interim determination.
The undisturbed finding (at [152]–[156]) in December 2023 reasons record that the Armani Trust is a very significant financial resource of the husband of the character identified by the High Court in Hall v Hall (2016) 257 CLR 490.
As recorded in the December 2023 reasons (at [61]), the capital of the Armani Trust at that time was in the range of just under $5 million. The grant of probate of the husband’s late father’s estate was achieved after that determination, in mid-2024. The executors of the husband’s late father’s estate are the husband’s siblings, Ms N and Mr K. The estate is not a party to the proceeding. It is yet to be administered. No evidence was adduced by Mr K in the current tranche of interlocutory disputes as to any anticipated difficulty in completing the distribution of the estate, or when it would occur.

The “[J] Group” comprises interrelated entities, one of which is U Pty Ltd. Clause 4.12 of the will of the husband’s late father, forming the grant of probate, provides that shareholdings of any private or public companies held by the estate, excluding Armani Pty Ltd, be distributed as to 22.5 per cent to each of the four “Bloodline Trusts” and as to the balance to a charity, the J Organisation. The Armani Trust further will receive 25 per cent of the shares in Armani Pty Ltd (clause 4.13) and 22.5 per cent of the residue of the estate (clause 4.16).
The wife contends that the value of the distributions from the estate on administration to the Armani Trust will be in the range of $120 million. The husband and the second and third respondents contend it will be in the range of $30 million. In either event, the capital of the Armani Trust will increase by not less than $30 million on completion of the administration of the estate.
B Pty Ltd and the Suburb E Property
In mid-2016 the husband acquired a half interest in D Street, Suburb E as tenants in common in equal shares with the fourth respondent, B Pty Ltd, an existing owner. The husband’s late father was the sole shareholder of B Pty Ltd.
The $2 million cost of the husband’s half share was funded by an advance from the husband’s late father, recorded in a Deed of Acknowledgement of Debt dated mid-2016. The deed provided that the husband’s late father, identified as “the lender”, would advance “the principal sum” of $2,095,510 to the husband, identified as “the borrower”. “The property” was identified as the Suburb E property. Clause 2 of the Deed provides as follows:
(a)The Lender hereby lends the Principal Sum to the Borrower the receipt of which is hereby acknowledged by the Borrower.
(b)The Borrower will not be obliged to repay the Principal Sum to the Lender until such time that the Borrower has sold his right, title and interest in the Property.
(c)In the event the Property is sold, the Borrower must pay to the Lender an amount equivalent to 50% of the price that the Property is sold for (net of amounts paid for agent commission and marketing costs incurred in selling the Property).
(d)The rate of interest payable on the principal sum or so much thereof as for the duration of the loan shall be 0% per annum.
The advance was not secured on the title of the Suburb E property. The obligation to comply with the acknowledgement was a personal liability of the husband.
The husband, the wife, and their child X (currently aged eight) commenced to occupy the Suburb E property shortly after the husband’s acquisition of a half share in it.
In October 2016 a Governance Deed was entered into between B Pty Ltd and the husband’s late father. It records:
Introduction
…
C. The purpose of this Deed is to provide for the transfer by [B Pty Ltd] of its interest in the Property to [Mr Armani] (or the trustee of the [Armani Trust] at the request of [Mr Armani]) following the death of [Mr H].
…
3.        Transfer Notice
3.1 Subject to Clause 5, [Mr Armani] may issue a notice, called a Transfer Notice, directing [B Pty Ltd] to transfer [B Pty Ltd’s] interest in the Property to him or to the trustee of the [Armani Trust].
3.2 Subject to Clause 4, [B Pty Ltd] will, with one hundred and eighty (180) days of receiving a Transfer Notice from [Mr Armani], transfer, without consideration, the Property in accordance with the Transfer Notice, and free of any debt and security for the debt.
…
4.        Alternative Compliance
4.1[B Pty Ltd] may, upon receipt of a Transfer Notice from [the husband], declare such dividends as are necessary (after Tax payable by the recipient of the dividends) to provide to [the husband], by way of gift from the recipients of the dividends, an amount of money equal to the market value of [B Pty Ltd’s] interest in the Property plus the stamp duty payable on the purchase of that interest.
4.2Where [B Pty Ltd] acts under Clause 4.1, then [B Pty Ltd] shall still be obliged to transfer its interest in the Property under Clause 3.2 but only if [the husband] or the [Armani Trust] (as the case may be) pays to it, as consideration, the amount of the gift under Clause 4.1.
5.        Condition Precedent
5.1 The obligations upon [B Pty Ltd] under this Deed are subject to the occurrence of the death of [Mr H], so that until [Mr H] has died, those obligations do not arise under this Deed.
(As per the original)
In October 2021 the husband and the wife exchanged contracts to purchase “off the plan” F Street, Suburb G for $8,895,000. The husband’s father and/or mother paid the 10 per cent deposit and stamp duty, being a total of $1,497,500. The original anticipated time for completion of the acquisition was December 2023. The time for completion of the purchase has now been extended to 30 June 2025.
The second to fourth respondents contend that in late 2021 in the husband’s late father told the husband and the wife that he would only purchase the Suburb G property for them to live in if he retained the entire beneficial ownership in that property and if the Suburb E property was sold and for the proceeds to be remitted to him for the purchase of the Suburb G property. On 22 December 2021, a document was circulated to the husband and the wife by the conveyancing lawyer reflecting the terms of the contended oral agreement. That document was never signed by the wife. On 22 December 2021 the wife wrote in an email to the conveyancing lawyer in which she said:
Hi [conveyancing lawyer] and [Mr K]
The Deed looks good to me.
[The husband’s] also reviewed the document and is also happy.
Are we able to to do DocuSign? [Mr K] I could pick up originals tomorrow (we don’t have a printer).
Thanks
(Affidavit of Mr K filed on 26 June 2023, MRK-13) (As per the original)
The second to fourth respondents submit that, although the drafted deed was not entered, the wife acknowledged in her email her agreement to its content.
The husband and the wife separated on or about 1 May 2022. The wife continued to live with the child in the Suburb E property after separation and until its sale was completed in mid-2024.
The will of the husband’s late father provides:
4.7Subject to Clause 4.8, I GIVE to the trustee of the [Armani Trust] all my right title and interest as lender under the loan by me to my son [the husband].
The wife submitted that the liability of the husband to his father by way of the loan to acquire the Suburb E property, gifted pursuant to clause 4.7 of the will of the husband’s father to the Armani Trust, can be safely disregarded in circumstances where the loan is unlikely to be called upon given that the purpose of the Armani Trust is for the benefit of the husband (Biltoft & Biltoft (1995) FLC 92-614).
The December 2023 reasons record the husband’s position as at May 2023:
111 The husband’s evidence on this topic, from his affidavit filed 29 May 2023, is:
28. As a result of the [...] death of [the husband’s late father], I am now aware, that I have effectively inherited the one-half share entitlement which is presently registered in the name of [B Pty Ltd] from my father, pursuant to the Deed of Governance. I am now aware that I have the option of transferring that interest into my name, or the [Armani Trust].
29. It is my intention to seek to have [B Pty Ltd] transfer its interests to me, unless there is some significant cost or taxation burden or other impediment of which I am presently not aware. I am currently seeking advice in that regard, I have only recently become aware of that inheritance.
The wife’s case prior to the consent orders being made on 13 September 2023 is recorded at [109] of the December 2023 reasons, being:
…the combined effect of the fact of the husband’s late father’s death, the terms of the Will, and the construction of the terms of the [Armani Trust] Deed and the amendments to it, led to the conclusion that the husband was in reality the beneficial owner of the unencumbered value of [Suburb E] subject to a potential taxation impost on transfer to be borne by him, and that the husband and the wife could and should “on-sell” their interest in the [Suburb G] exchanged contract…
The case of the second to fourth respondents prior to the entry of the 13 September 2023 consent orders was that the husband (and the wife) did not have any beneficial interest to the entirety of both the Suburb E and the Suburb G properties. Their contention was that the husband and wife agreed that the Suburb E property was to be sold, that the entire proceeds of sale were to be applied to the acquisition of the Suburb G property, and that the entirety of their legal interest in the Suburb G property was to be held for the husband’s late father. The value of the husband’s half legal interest in the Suburb E property is equal to the value of his liability pursuant to clause 2(c) of the Deed of Acknowledgement of Debt. Clause 4.7 of the husband’s late fathers will assigned his late father’s interest in the Deed of Acknowledgement of Debt dated mid-2016 to the Armani Trust. The remaining half legal interest the husband could achieve in the Suburb E property from B Pty Ltd upon exercising his election pursuant to clause 3.1 of the Deed of Governance dated late 2016 was superseded by the agreement in late 2021. The claim to the entirety of the beneficial interest in the Suburb E and Suburb G properties is grounded by way of a binding agreement, or in the alternative a constructive trust, or estoppel.
It was against that factual matrix and respective claims that the orders made by consent as between the husband, the wife, and each of the second to fourth respondents on 13 September 2023 were entered. They provide:
THE COURT NOTES THAT:
1.The parties have sought competing interlocutory Orders in respect of the sale of properties at [D Street, Suburb E] and [F Street, Suburb G], and for interim accommodation for the Applicant Wife and the child of the Applicant Wife and Respondent Husband ("[X]") pending final determination of the parties 'competing claims.
2.The parties have agreed to an interim regime concerning the competing interlocutory relief sought in respect of [Suburb E and Suburb G].
3.The interim regime is without prejudice to the parties’ respective claims as those claims are currently framed and it is intended by all parties to preserve such rights as each of them contends that they presently have, including without limit:
a) In respect of the Applicant Wife, to a claim in respect of an interest in the entirety of the [Suburb E] property, and in respect of an interest in the [Suburb G] property comprising the interest of a purchaser on contract prior to settlement, with 90% of the funds for completion (in relation to the property purchase price) outstanding and including without limit the Wife's claims as to the rights that the Husband enjoys with respect to his capacity to have the whole of the beneficial interest in [Suburb E] transferred to him and have any loan to him forgiven and with those rights also applying to [Suburb G] in all respects (if found to exist);
b) In respect of the Respondent Husband, to a claim in respect of an interest in the entirety of the [Suburb E] property and the [Suburb G] Property beneficially held by the Second to Fourth Respondents on the basis of an oral and/or written agreement, and/or a resulting and/or constructive trust, and/or an estoppel binding the Applicant Wife and Respondent Husband from denying the agreement or trust claimed;
c) In respect of the Second to Fourth Respondents, to a claim to the entirety of the beneficial interest in the [Suburb E] property and the [Suburb G] property on the basis of an oral and/or written agreement, and/or a resulting and/or constructive trust, and/or an estoppel binding the Applicant Wife and Respondent Husband from denying the agreement or trust claimed.
4.The intention of the parties is to preserve the status quo in terms of their respective interests and rights and claims as they currently stand in relation to [Suburb E] and [Suburb G].
THE COURT ORDERS THAT PENDING FURTHER ORDER:
1. Order that pending further Order:
a)The Applicant Wife to have exclusive occupation of [Suburb E] pending sale on the terms set out in these Orders;
b)That forthwith the parties shall do all act and things and sign all documents necessary to cause the [Suburb E] property to be placed on the market for sale to be managed by the parties in the terms attached and marked "A";
c)The parties are to co-operate to align settlement of the sale of [Suburb E] and the completion of the purchase of the [Suburb G] property so far as is practicable;
d)In the event that the sale of [Suburb E] and completion of the purchase of the [Suburb G] property do not align, the Second to Fourth Respondents are to meet the costs of appropriate accommodation for the Applicant Wife and [X] pending completion of the purchase of the [Suburb G] property;
e)Following completion of the purchase of the [Suburb G] property, the Applicant Wife have exclusive occupation of the [Suburb G] property pending further Orders made by this Court.
2.Order that at settlement of the sale of the [Suburb E] property the sale proceeds be distributed as follows:
(a)In discharge of all selling costs associated with the sale including marketing fees and agents commission;
(b)In payment of the balance then remaining into an interest bearing trust account held in the joint names of the Applicant Wife and Respondent Husband unless there is a contemporaneous settlement of the purchase of [Suburb G] and in those circumstances the balance of the proceeds of sale of the [Suburb E] property will be paid solely towards the funds required to settle the purchase of [Suburb G].
3.That the Applicant Wife and Respondent Husband authorise the payment of the funds held in the interest bearing trust account pursuant to Order 2(b) above towards the settlement of the purchase of [Suburb G] (unless these funds have already been applied by way of contemporaneous settlement).
4.That if further funds in addition to the [Suburb E] sale proceeds are required to be paid to settle on the purchase of [Suburb G], then the Second Respondent will cause to be advanced any further funds required to the vendor to ensure completion of the purchase of the [Suburb G] property by way of an interest free loan to the Applicant Wife and Respondent Husband with the loan to be repayable to the Second Respondent from any future sale of the [Suburb G] property or as otherwise ordered by the Court (with such repayment to be the proportion of the sale price reflected by the proportion of the further funds advanced [such that if the further funds advanced amount to X% of the purchase price for completion of the purchase of [Suburb G], repayment of said loan is to be repayment of X% of the sale price of [Suburb G]), it being noted that any such loan will be without prejudice to any right as to any alleged beneficial interest in the [Suburb G] property or otherwise as asserted by the Respondents and denied by the Wife.
5.That, as a condition of the loan at Order 4, the loan by the Second Respondent is to be secured by a first-ranked mortgage granted to the Second Respondent by the Applicant Wife and Respondent Husband consistent with the terms of these Orders and the terms of the loan as per Order 4 herein.
6.Order that the interim arrangement set out above be without prejudice to the claims of the parties to the [Suburb G] and [Suburb E] properties as they presently stand, being:
a)In respect of the Applicant Wife, to a claim in respect of an interest in the entirety of the [Suburb E] property, and in respect of an interest in the [Suburb G] property comprising the interest of a purchaser on contract prior to settlement, with 90% of the funds for completion (in relation to the property purchase price) outstanding and including without limit the Applicant Wife's claims as to the rights that the Husband enjoys with respect to his capacity to have the whole of the beneficial interest in [Suburb E] transferred to him and have any loan to him forgiven and with those rights also applying to [Suburb G] in all respects (if found to exist), below;
b)In respect of the Respondent Husband, to a claim in respect of an interest in the entirety of the [Suburb E] property and the [Suburb G] Property beneficially held by the Second to Fourth Respondents on the basis of an oral and/or written agreement, and/or a resulting and/or constructive trust, and/or an estoppel binding the Applicant Wife and Respondent Husband from denying the agreement or trust claimed;
c)In respect of the Second to Fourth Respondents, to a claim to the entirety of the beneficial interest in the [Suburb E] property and the [Suburb G] property on the basis of an oral and/or written agreement, and/or a resulting and/or constructive trust, and/or an estoppel binding the Applicant Wife and Respondent Husband from denying the agreement or trust claimed.
7. Note that the:
a)the Second to Fourth Respondents are not, by this interim arrangement, agreeing to any expansion of the marital pool beyond the property which they assert is presently in dispute.
b)the intention of the parties is to preserve the status quo in terms of their respective interests and rights and claims as they currently stand in relation to [Suburb E] and [Suburb G].
(Emphasis added)
EXHIBIT 1 – PARAGRAPH 1 – B PTY LTD TO PAY $1,403,010 INTO THE NAB INTEREST BEARING ACCOUNT IN THE JOINT NAMES OF THE HUSBAND AND THE WIFE CURRENTLY HOLDING THE PROCEEDS OF SALE OF THE SUBURB E PROPERTY PURUSANT TO THE ORDERS MADE 13 SEPTEMBER 2023
Contracts for the sale of the Suburb E property pursuant to the orders made on 13 September 2023 were exchanged in early 2024 for $7.1 million. The sale was completed in early 2024.
The wife says that two days prior to scheduled date for settlement she received notice that it was proposed that a bill facility loan of $1.403 million of B Pty Ltd, secured by way of a mortgage over the Suburb E property in favour of RR Bank, would be paid and discharged. Hence that sum would not be paid in the bank account to be established pursuant to the orders.
Each party made extensive submissions as to whether the wife knew, or ought to have known, prior to the entry of the September 2023 orders, as to the fact and value of the B Pty Ltd loan liability and its security on the title of the Suburb E Property. The relevance of this subject matter was directed to the interpretation of the September 2023 orders, and dependant on that interpretation, as to the discretion to the enforce them.
After payment of real estate agents commission, selling costs, and B Pty Ltd’s RR Bank loan, approximately $5.5 million was paid into the joint NAB account of the husband and the wife established pursuant to the 13 September 2023 orders (in anticipation of the completion of the purchase of the Suburb G property).
The wife contends that the $1,403,010.04 paid to RR Bank on settlement of the sale of the Suburb E property was in “breach” of the September 2023 orders, and seeks for the funds to be repaid by B Pty Ltd, as the entity that benefitted from the discharge of the loan and mortgage, to the interest-bearing trust account which had been established to hold the Suburb E property sale proceeds pursuant to the orders.
The husband and the second to fourth respondents contend that the payment of the B Pty Ltd debt to RR Bank of $1,403,010 was made in compliance with Order 2(a) made on 13 September 2023. The second to fourth respondents contend that in any event, as the husband’s mother is required to cover any shortfall over and above that contained in the joint account to ensure the completion of the Suburb G property, the question as to whether B Pty Ltd should have paid out the loan to RR Bank from the proceeds of sale is best determined at the final hearing, such that it does not require an interlocutory determination.
A preliminary issue – the interpretation of Order 2(a) made on 13 September 2023

The wife construes Order 2(a) made on 13 September 2023 as not making provision for the discharge of the mortgage secured over the property to be paid from the proceeds of sale. The wife submitted that the September 2023 orders “are clear in identifying what is to be paid from the net proceeds of the [Suburb E] property”, and that there was an express absence in the agreement embodied in the consent orders between all parties as to the discharge of any mortgage secured over the property.
The second to fourth respondents submitted that on an objective reading of Order 2(a), and that a reading of the orders as a whole, sanctions the payment out of the loan by discharge of the mortgage on settlement. They submitted that the definition of “sale proceeds” had a “well-known and standard commercial meaning” being “what is ultimately received by the vendor after all other costs are accounted for, including after payment of debt secured by way of mortgage over the property”, supported by the “ordinary meaning” of “sale proceeds” as defined in the Cambridge dictionary.
The husband did not make any direct submissions as to the definition of “sale proceeds”.
The proper construction of Order 2(a) pivots the first limb of this dispute.
Prior to the entry of the orders on 13 September 2023, the parties were in dispute as to:
(a)Whether the Suburb E property was to be sold; and
(b)The extent of the beneficial interests held in that property at that time.
It was in that context that the parties, with the benefit of highly qualified and experienced legal representatives, reached an express agreement reduced to writing in the proposed consent orders. Each party requested the Court make orders in the terms of their express written agreement.
Once any financial agreement reached between parties in a matrimonial cause is embodied in consent orders, it is to these orders alone that consideration must be given to their interpretation (Langford & Coleman (1993) FLC 92-346; Nagel & Clay [2021] FamCA 358).
An order should be considered in its entirety on its plain meaning without regard to the subjective intentions of the parties and having regard to extrinsic material only to the extent of resolving ambiguity (Farina & Lofts and Ors [2019] FamCA 228 at [23]).
Irrespective of the fact or terms of disclosure of the fact and value of the B Pty Ltd loan liability and its security on the title of the Suburb E Property, or whether the wife knew or ought to have known of it, it is self-evident that the parties could have included and made clear the fact of the mortgage discharge and payout of the B Pty Ltd loan in the express agreement embodied in the orders. They did not make such express provision.
No authority was identified by the second to fourth respondents for the purposes of matrimonial orders as to the words “proceeds of sale” having a legally accepted meaning of “after any mortgage security discharged” or any similar special or technical meaning. I do not accept that such implied conclusion can be said to be so obvious that it goes without saying.
The insertion of fact in the sequence of the order to pay out the loan secured by the mortgage was capable of clear inclusion in the order. It was not.
The evidence suggests that the pay out of the loan from the funds paid by the purchaser could not be said to be necessary for the implementation of the order. Exhibit 14 was an email chain between the husband’s brother, Mr K, and RR Bank, produced on subpoena issued by the wife returned at the hearing on 24 October 2024. On 22 September 2023, nine days after the consent orders were made, Mr K sent an email to RR Bank in which he said:
We are currently in the process of selling [the Suburb E property]. [B Pty Ltd] owns 50% (my brother [the husband] owns the other 50%) - title attached. [The conveyancer] from [...] is handling the conveyancing and maybe in touch.
Currently [RR Bank] lends [B Pty Ltd] $1.4mm secured against this property as well as our [J Organisation] office in [DD Street].
The most recent Valuation of the office was in 2020 at $2.1mm.
We are happy to pay back the $1.4mm entirely, or simply maintain or reduce it to a level [RR Bank] would be more comfortable with.
Thoughts?
The authority of Mr K to produce the email for B Pty Ltd not clear. He is not a director of B Pty Ltd but is an executor of the estate of the husband’s late father. The sole director of B Pty Ltd is the second respondent, the husband’s mother. She did not adduce any affidavit evidence for the purposes of this tranche of hearings. No document was adduced during the hearing to establish the capacity of Mr K to make representations for or on behalf of B Pty Ltd.
There is no objective ambiguity in Order 2(a). The sequence to be applied to the proceeds of sale of the Suburb E property is clear. The absence of ambiguity makes it unnecessary to refer to any extrinsic material as to usual commercial practice or surrounding circumstances as to disclosure prior to the making of the order. There was no identified aspect of commercial nonsense or causing commercial inconvenience applying to this interpretation of the order.
This conclusion is supported by:
(a)The context of all the words, sentences and paragraphs contained within the orders made 13 September 2023. The regime of selling the Suburb E property in attachment “A” for the purposes of Order 1(d), comprises 16 sub-paragraphs of intricate and detailed mechanics regulating that process. This “chapter and verse” as to the mechanics of sale stands in stark contrast to the contention as to the implicit inclusion of the payment of an amount sufficient to discharge the RR Bank mortgage loan not included in the sequence regulating the application of the consideration paid on completion of the sale; and
(b)The December 2023 reasons recorded, absent challenge:
18Parts of the interlocutory dispute were compromised and reduced to a Minute of Consent Order made in chambers on 13 September 2023. Those orders provide that:
(a) The wife is to have exclusive occupation of [Suburb E] pending its sale;
(b) The sale of [Suburb E] is to occur in alignment with the completion of the purchase of [Suburb G];
(c) If at any point these events do not align, the second to fourth respondents are to finance the wife and [X]’s accommodation in the interim;
(d) The proceeds of sale from [Suburb E], after deduction of sale costs but not paying any contended liability relating to the property, are to be paid into an interest-bearing trust account held in the joint names of the husband and the wife and then applied by the husband and the wife in part payment of the sum required to complete the purchase of [Suburb G] (estimated in the range of $8 million together with stamp duty of $576,775);
(e) The husband’s mother will loan to the husband and the wife, secured by way of mortgage, the shortfall or balance between the proceeds of sale of [Suburb E] and the sum due to complete the [Suburb G] contract, with the loan to not carry interest; and
(f) Following the completion of [Suburb G], the wife to have exclusive occupation of that property pending further orders made by the Court.
(Emphasis added)
The law
The wife identified the source of power for enforcement relied upon to the ground the relief as sought in paragraph 1 of Exhibit 1 was by way of an injunction of Order 2(a) made on 13 September 2024 pursuant to s 114(1), or s 114(3), or s 90AF of the Act mandating that B Pty Ltd to pay the value of the loan repaid to RR Bank on completion of the sale of the Suburb E property in the joint NAB account of the husband and the wife.
Section 105 of the Act empowers the Court to enforce its decrees. To enforce or refuse to enforce an order is discretionary (Ramsey & Ramsey (1983) FLC 91-301). Section 109A of the Act specifically empowers the Court to make rules of the Court in respect of enforcement. Rule 11.07(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) identifies that an injunctive order may be made in aid of the enforcement of an obligation.
Enforcement applications are not an opportunity to revisit the substance of the order sought to be enforced. It is only facts and circumstances arising since the date of the order sought to be enforced that will inform the discretion. Here no application has been made to vary prior order sought to be enforced and as such, the order is valid and binding until varied or set aside.
Section 114 of the Act provides:
114 Injunctions
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
…
(e)an injunction in relation to the property of a party to the marriage;
…
…
(3)A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
The term of “matrimonial cause” is defined in s 4(1)(e) of the Act to include “proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB)”. These proceedings fall within s 4(1)(e) of the Act.
The Full Court in Mandel & Duan [2024] FedCFamC1A 166 (“Mandel & Duan”) at [28] rejected a submission that s 114(1) does not found jurisdiction to make an order against a third party, rather than a spouse, outlining that s 90AF(3)(d) specifically contemplates that s 114(1) is a source of power to make an injunction against a third party.
Section 114(1) does not by its terms restrict the power to make orders and injunctions to the categories set out in sub-paragraphs (a) to (f), but instead requires the court to make such an order as it considers “proper with respect to the matter which the proceedings relate” (Luck& Norwood (2018) FLC 93-869 (“Luck & Norwood”) at [17]). The Full Court in Luck & Norwood went on to explain:
18.As to this latter point, we accept that the word “proper” as referred to in the section has been interpreted to mean “reasonable and just in [the] circumstances” to warrant the making of the injunction (see Farr and Farr (1976) FLC 90-133 at 75,636)…
Section 114(3) of the Act is an auxiliary power capable of use in aid of enforcement. The Full Court in Mandel & Duan noted that s 114(3) “confers an arguably even broader power” than s 114(1) (at [27]).
Section 90AF of the Act provides:
90AF Court may make an order or injunction under section 114 binding a third party
…
(2)In proceedings under section 114, the court may make any other order, or grant any other injunction that:
(a) directs a third party to do a thing in relation to the property of a party to the marriage; or
(b) alters the rights, liabilities or property interests of a third party in relation to the marriage.
(3)The court may only make an order or grant an injunction under subsection (1) or (2) if:
(a)the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and
(b)if the order or injunction concerns a debt of a party to the marriage – it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and
(c)the third party has been accorded procedural fairness in relation to the making of the order or injunction; and
(d)for an injunction or order under subsection 114(1) – the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and
(e)for an injunction under subsection 114(3) – the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and
(f)the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4)
(4) The matters are as follows:
(a)the taxation effect (if any) of the order or injunction on the parties to the marriage;
(b)the taxation effect (if any) of the order or injunction on the third party;
(c)the social security effect (if any) of the order or injunction on the parties to the marriage;
(d)the third party's administrative costs in relation to the order or injunction;
(e)if the order or injunction concerns a debt of a party to the marriage – the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted;
…
(f)the economic, legal or other capacity of the third party to comply with the order or injunction;
…
(g)if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters – those matters;
…
(h)any other matter that the court considers relevant.
(Emphasis added)
Notwithstanding the multiple sources of power identified by the wife to ground her relief sought, the focus of her submissions fell to the considerations as to the injunction in aid of enforcement being just and convenient pursuant to s 114(3) of the Act. The order sought is incidental to the current substantive proceedings, that in turn arise out of the marriage relationship. Order 4 of the orders made on 13 September 2024 records that the intention of the parties was to preserve the status quo in terms of their respective rights and interests in the Suburb G property and the Suburb E property pending determination of the substantive application.
The discretion to enforce Order 2(a) of the September 2023 orders pursuant to s 114(3) of the Act
As to the merits of the wife’s application for the court to enforce its own orders, prima facie, orders are made with the expectation they will be the subject of compliance (BSU15 v Minister for Immigration & Anor [2020] FCCA 859 at [33]–[34]; Samuels v Linzi Dresses Ltd [1981] Q.B. 115; M and D [2014] FCWA 50; see also Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57). As to the balance of convenience favouring the making of the orders sought, each party identified different factors as relevant considerations impacting on the exercise of discretion to enforce Order 2(a) made on 13 September 2023.
Disclosure of the fact and value of the B Pty Ltd loan liability and its security on the title of the Suburb E Property prior to the entry of the consent order
The wife said in her affidavit:
10.The mortgage had not previously been disclosed and there had been no documents provided by way of disclosure by [the husband] or the Fourth Respondents as to the loan or the amount outstanding. In respect of this, the joint Balance Sheet filed in these proceedings on 27 July 2023, a copy of which is exhibited and marked “[MSA]-3”, does not disclose the existence of this loan.
…
16.Relevantly in respect of these documents:
…
(b)The documents identify that [the husband] was a guarantor of his loan which has not been previously disclosed in these proceedings. Neither the guarantee, nor the existence of the loan, was disclosed by [the husband];
(c)[Mr K] signed the guarantor declaration on behalf of [Mr Armani’s] late father pursuant to a Power of Attorney dated 15 April 2021. Again whilst he has sworn an Affidavit in these proceedings on behalf of [B Pty Ltd], neither the guarantee nor the existence of the loan, was disclosed;
…
17.I do not know where the funds borrowed by [B Pty Ltd] (the Fourth respondent) were deposited or for what purpose they were borrowed. On 28 June 2024, [the wife’s solicitors] requested copies of bank statements referable to [B Pty Ltd]. Exhibited and marked “[MSA]-&” is a copy of this correspondence. At the date of this Affidavit no bank statements have been received identifying where the sum of $1,400,000 was deposited.
18.In order for settlement of the sale of the [Suburb E] property to proceed the mortgage secured on title needs to be discharged to give clear title to the incoming purchaser. I do not agree that by allowing settlement to proceed with the loan being discharged (which I was required to do in order to enable settlement to occur) that I consented to the loan as being a legitimate liability…
(Emphasis in original)
In his Case Outline document filed on 18 September 2024, the husband submitted:
3.The [RR Bank] Mortgage was disclosed to the [wife] on multiple occasions prior to and during the course of these proceedings by the [husband].
4.The [husband] submits that the Orders dated 13 September 2023 have been complied with in so far as they have occurred.
The husband adduced no evidence to support these contentions.
The second to fourth respondents vehemently rejected any contention that they had not complied with their obligations of disclosure as to the fact of the B Pty Ltd loan and its security on the title of the Suburb E property prior to the making of the September 2023 orders. In support of this submission, they:
(a)Adduced into evidence a letter from the husband’s solicitors to the wife’s solicitors dated 24 August 2022. The letter records:
Net Asset Pool and Income of the Parties
1. Assets
1.1. [D Street, Suburb EE] NSW […].
1.1.1. Pursuant to the Title Search, which we have previously provided, this property is owned 50% by [B Pty Ltd] and 50% by our client. It is also mortgaged to [RR Bank] for a loan amount of approximately $1,400,000.00.
(Emphasis added)
The second to fourth respondents did not adduce evidence as to, nor any explanation provided as to, how a letter sent on 24 August 2022 (prior to the commencement of this proceeding on 21 April 2023) came into their possession.
(b)Identify that an exhibit to the affidavit of the husband’s brother, Mr K, filed on 28 June 2023, was a real property title search for the Suburb E property recording a mortgage in favour of Westpac.
Each document was disclosed to the wife prior to her entry into the September 2023 consent orders. The wife adduced no evidence explaining her consideration of these documents and the information they conveyed prior to, or in entering, the consent orders regulating the application of the proceeds of the sale of the Suburb E property.
No evidence was adduced by the husband or the second to fourth respondents, prior to the making of the consent orders on 13 September 2023, as to the value of any loan secured by the mortgage on that date.
At the hearing on 24 October 2024 the second to fourth respondents adduced into evidence (Exhibit 10) a RR Bank facility agreement made between the bank and B Pty Ltd entered in 2010 in the sum of $1.4 million. A consideration of that document together with:
(a)Not dissimilar documents in the exhibit, dated 4 June 2020 and dated in July and August 2022;
(b)The management account balance sheets for B Pty Ltd for the financial years ending on 30 June 2018 and 30 June 2019 (Exhibit 8), each recording the fact of a liability in the sum of approximately $1.4 million to RR Bank; and
(c)The wife’s tender bundle (Exhibit 4), including the B Pty Ltd management accounts for 30 June 2022 and 30 June 2023;
establishes that a bill facility valued in the sum of $1.4 million has been the subject of a series of roll-overs by B Pty Ltd from 2010 until the date of the completion of the sale of the Suburb E property.

Notwithstanding that requests for bank statements for the bill loan facility secured by the mortgage have been made by the wife after the settlement of the sale of the Suburb E property, they remain to be disclosed by B Pty Ltd. These bank statements would establish the drawn down value of that the bill facility from the date of the entry of the last facility in mid-2022 until the date of completion of the sale. No explanation was given at the hearing as to why documents of this character could not be disclosed to the wife.
The husband adduced no affidavit evidence as to the mortgage or loan, notwithstanding evidence (Exhibit 10) recording him entering documents guaranteeing the B Pty Ltd debt in June 2020 and a further guarantee provided in August 2022. The fact of his obligation by way of this guarantee did not form part of his input in the joint working balance sheet filed on 27 July 2023.
The parties consider this to be a serious issue in the proceeding. It goes in part to a consideration of the balance of convenience. Findings to be made as to compliance with disclosure obligations by way of these “footprints in the sand” can occur at final hearing when evidence is able to be tested by way of cross-examination.
The contended prejudice if the order is not enforced
The wife in her Case Outline document filed on 16 September 2024 said:
11.Whilst it is the case that the September Orders will ensure that settlement of the [Suburb G] Property will proceed, the difficulty and prejudice to the Wife is that the September Orders provide for the 2^nd Respondent to make available an interest free loan to the Wife and the Husband however the 2^nd Respondent receives the benefit of a percentage amount of the sale proceeds of the [Suburb G] property (if and when sold) commensurate with the amount contributed by the 2^nd Respondent as a percentage of the purchase price.
In respect of this, Order 4 provides:
"That if further funds in addition to the [Suburb E] sale proceeds are required to be paid to settle on the purchase of [Suburb G], then the Second Respondent will cause to be advanced any further funds required to the vendor to ensure completion of the purchase of the [Suburb G] Property by way of an interest free loan to the Applicant Wife and Respondent Husband with the loan to be repayable to the Second Respondent from any future sale of the [Suburb G] Property or as otherwise ordered by the Court (with such repayment to be the proportion of the sale price reflected by the proportion of the further funds advanced [such that if the further funds advanced amount to X% of the purchase price for completion of the purchase of [Suburb G], repayment of said loan is to be repayment of X% of the sale price of [Suburb G]), it being noted that any such loan will be without prejudice to any right as to any alleged beneficial interest in the [Suburb G] property or otherwise as asserted by the Respondents and denied by the Wife."
12. In short, that means that the 2nd Respondent will be required to contribute an additional sum of $ 1,403,010.04 than she would have had to contribute had the mortgage secured to the [Suburb E] Property not been paid out at settlement.
13.The assertion by the 2^nd-4^th Respondent(s) that there is no prejudice to the Wife because settlement of the purchase of the [Suburb G] Property will proceed regardless of the level of funds held in the interest-bearing trust account is without basis. The Wife is prejudiced in circumstances where the funds that may potentially be available to her following the sale of the [Suburb G] Property would be depleted as the 2^nd Respondent will be entitled to a greater share of the sale proceeds because of Order 4.
The second to fourth respondents submitted that there was no prejudice to the wife in circumstances where there was no increase or change in indebtedness and no change in the facility agreement, the discharge of the mortgage was part of the agreement of the 13 September 2023 orders, and that on any construction of the agreement, the wife’s interest is not detrimentally impacted.
There is some merit to the contention as to prejudice advanced by the wife. There is the possibility that by way of Order 4 as made on 13 September 2023, the second respondent will be required to advance additional funds to the acquisition costs of the Suburb G property, and therefore have a claim to a greater percentage of the sale proceeds of the Suburb G property, thereby reducing the value of the pool of property of the husband and the wife.
Prejudice if the order is enforced
Exhibit 14 includes a letter from RR Bank to B Pty Ltd dated 22 September 2023. It records that the B Pty Ltd bill facility was secured against both the Suburb E property and another property it owns at 2 DD Street, Sydney (“the [2 DD Street] property”). It appears there has been no explicit disclosure by B Pty Ltd that:
(a)The RR Bank bill facility was secured on multiple B Pty Ltd properties; and
(b)That other properties were potentially available for its security. Exhibit 10 records B Pty Ltd also has two further real properties at 3A DD Street, Suburb E, and 3B DD Street, Suburb E (“the 3A & 3B DD Street properties”), leased to the J Organisation and U Pty Ltd.
The email in Exhibit 14 dated 22 September 2023 records that the most recent valuation of the 2 DD Street property was $2.1 million. It records that “we” are happy to pay back the $1.4 million in entirety or reduce it to a level that the RR Bank would be comfortable with.
The fact and content of that email was not disclosed by any respondent, including B Pty Ltd. One inference is that there was awareness on the part of the husband’s brother, Mr K, that the bill facility loan needed to be discharged, or the mortgage needed to be shifted, prior to the completion of the sale. There may be alternate interpretations of the content of the email. While that determination will need to await the final hearing, Mr K did not identify the email or its subject matter in his affidavit filed on 26 August 2024. Only he, or the husband’s mother as the director of B Pty Ltd, had capacity to adduce evidence by way of explanation as to these subject matters. They elected not to do so. These factors weigh in favour of the discretion to enforce.
While it is self-evident that B Pty Ltd benefits from its bill facility being paid out, the second respondent, as the sole director of B Pty Ltd, adduced no evidence as to any specific prejudice B Pty Ltd would suffer if the order was made as sought by the wife. No evidence was adduced as to the use of the bill facility funds by B Pty Ltd, or its ability to raise the requisite sum that was repaid, if required. The value of the shareholding of the husband’s late father in B Pty Ltd is recorded in grant of probate to be $15,280,000. B Pty Ltd has received a benefit by way of the loan secured over the property having been discharged, in circumstances where it was anticipated in the email dated 22 September 2023 that it could either discharge the loan or secure the loan facility elsewhere, implicitly absent hardship. This factor weighs in favour of enforcement of the order.
An order requiring B Pty Ltd to pay $1.4 million into an interest-bearing account of the husband and the wife does not irrevocably adjust property. The position of each of the parties is preserved by the preconditions of the orders made on 13 September 2023. As such is not a divesting of property.
Conclusion
Having regard to the matters recorded earlier in these reasons, I find on balance that it is just and convenient to order for B Pty Ltd to pay $1,403,010 into the account in the joint names of the husband and the wife by way of enforcement. Orders ought to be the subject of compliance. No application has been made to vary them. The prejudice identified by the wife as to the potential reduction of the “equity” of she and the husband in the Suburb G property if it is to be sold as recorded in the September 2023 orders attracts weight, as does the absence of evidence as to specific hardship and prejudice to the fourth respondent if the payment is made.
An undertaking as to damages was not sought as a condition of the interlocutory injunctive order. The wife sought for the payment to be made within 14 days. No submissions were made as to a reasonable period for B Pty Ltd to pay $1,403,010 into the account established pursuant to the September 2023 orders. The period for payment should be reasonable. It shall be extended to 28 days.
EXHIBIT 1 – PARAGRAPH 2 – FINANCIAL DISCLOSURE
The wife concedes that there has been substantive disclosure provided by the husband’s mother, B Pty Ltd, and Armani Pty Ltd, including the consolidated financial statements of the entities making up in the J Group. It is uncontroversial that many of the documents disclosed to date are not the documents of the parties to the proceedings. The Armani Trust will, on completion of the administration of the husband late father’s estate, receive a minority shareholding in the entities comprising the J Group.
It is the wife’s case that the evaluation of the consolidated financial accounts of the entities making up the J Group requires the provision of the management accounts and ledgers that make up the integers of those summaries, and valuations for specified commercial premises, for the purposes of in turn obtaining advice underscoring the value of the interest the Armani Trust will receive in the group.
The second to fourth respondents submitted that there was no apparent relevance to the additional documents sought and that they were voluminous. They submitted that the purpose of such disclosure of the documents in sought pursuant to paragraph 2.3 was unclear, as the financial statements had already been provided, and that the disclosure requested was “akin to a disclosure under a subpoena”, which may be set aside where it is oppressive and has no forensic purpose.
The second to fourth respondents identified three paragraphs in the affidavit of Mr K in his capacity as director of Armani Pty Ltd in support of these submissions, being:
28.I am reluctant to disclose the commercially sensitive material because of conversations I have had with [the husband]. On a number of occasions throughout the course of these proceedings, [the husband] has told me that [the wife] has said to him words to the following effect:
I know how your family makes its money. If I were to use that information, you should all be shaking in your boots.
29.These conversations which have been relayed to me by [the husband] have made me concerned that, if the documents were to be provided to [the wife], that they could be made public which could have a material detrimental impact on the Groups’ business…
30.This is also in circumstances where a significant amount of time and resources have already been dedicated to compiling and transmitting the requested documents to the [wife], the bulk of which relate to entities that are not parties to this proceeding and for whom any connection to the [wife] or [the husband] is remote…
(Emphasis added)
The second to fourth respondents further contended that the documents sought were “commercially sensitive” and relied on the conversation the husband conveyed at paragraph 28 of Mr K’s affidavit as above to highlight their concerns as to collateral purpose.
The wife submitted that there was no issue as to relevance as the documents sought were relevant as the first step of the s 79 enquiry is to identify and value the property of the husband and the wife, which may include the Armani Trust. As to the submission that the documents sought on subpoena must have a “legitimate forensic purpose”, the test for such relevance is that there is “sufficient apparent connection to justify their production or inspection” (White & Tulloch & White (1995) FLC 92-640 at 708), and that it is “on the cards” that documents would bear upon and have relevance to the issues in the substantive proceedings (Martin & Martin and Anor (No. 2) [2014] FamCA 232 at [28], referring to Alister v R (1984) 154 CLR 404). The apparent relevance of the documents as sought cannot be reasonably rejected on the material to date. An understanding of the integers underscoring the financial statements already provided is necessary for a valuation of the ultimate shareholding interest received by the Armani Trust from the estate of the husband’s late father.
It was correctly identified by the wife that there was no evidence in Mr K’s affidavit as to the disclosure of the documents being oppressive by way of their volume. Those contentions are not accepted.
I do not accept that confidentiality is a basis upon which disclosure of such documents ought to be refused or restricted due to the following safeguards:
(a)Rule 6.04 of the Rules, which requires disclosed documents to only be used for the purpose of these proceedings; and
(b)That the wife being subject of the Harman undertaking, by which she would not use any information or documents produced in the proceedings contrary to the obligation imposed by law (Harman v Secretary of State for the Home Department [1983] 1 AC 280; Hearne v Street (2008) 235 CLR 125); and
(c)Consequently, by application of s 112AP of the Act, producing the prospect of sanctions being imposed on the wife by way of contempt of the rule or the undertaking.
The law as to the use of documents by the wife is clear. In circumstances where the obligations of the wife are unequivocally recorded in these reasons, I do not accept that the current evidence establishes that wife would act inconsistently with her obligations at law and use any of the documents sought for any ulterior purpose. The protection of the confidentiality of the documents sought is sufficiently protected.
Many of the remaining documents sought by the wife are not documents of the parties to the proceedings. The Full Court in Masoud & Masoud (2016) FLC 93-689 (“Masoud”) emphasised that obligations of disclosure do not permit a party to garner all documents by any means. The second to fourth respondents are nevertheless aiming to disclose all documents they can, notwithstanding Masoud.
No submissions were made as to the reasonableness of the time to be allowed for the second to fourth respondents to use their best endeavours to source and provide the additional documents sought. In the circumstances where much of the material is likely not be in the possession or control of the second to fourth respondents, and may be extensive, the time to be allowed for compliance with the will be 28 days. If some, or all, of the additional documents as sought are not provided, the wife will have leave to issue a subpoena to the relevant entities to produce those sought.
EXHIBIT 1 – PARAGRAPH 3 – LITIGATION FUNDING
On 13 December 2023 orders were made pursuant to s 117 of the Act (“the December 2023 orders”):
(a)For the husband to pay $100,000 to the wife’s solicitors by way of litigation funding on or before 15 January 2024 (Order 1(a)); and
(b)A “dollar-for-dollar” costs order was made payable by the husband in favour of the wife.
The wife’s trust account ledger records that the husband paid the $100,000 pursuant to Order 1(a) of the December 2023 orders on 11 January 2024. The husband has made two payments pursuant to the dollar-for-dollar order. The first payment of $15,334 was made in May 2024, and the second payment of $22,125 in August 2024.
The December 2023 reasons record that the wife’s costs notice at that time recorded that her costs paid of $176,735 were sourced from personal borrowings, and that she had unpaid fees for work not yet billed in the range of $89,762, although it was estimated that her outstanding costs were likely to be more than $100,000 (at [79]). At that time, she estimated future costs of not less than $40,000 to complete a mediation and $810,000 to complete a final hearing. The December 2023 reasons provide that the $100,000 paid by the husband was to meet the wife’s outstanding costs as at that date, and to ensure the proper preparation of a mediation (at [163]). That mediation occurred on 7 June 2024. The proceeding did not compromise.
The costs notice of the wife filed on 23 October 2024 was Exhibit 2. That costs notice records her total costs and disbursements incurred to date are approximately $478,000 of which $407,747 has been paid, with an additional $4,547 held in trust, reserved for the mediator. It provides that the source of funds are “[p]ersonal borrowings ([HH Pty Ltd, Ms JJ, KK Pty Ltd]), partial property settlement and interim costs Order of 13 December 2023”. Her total costs to final hearing are estimated to be $1,376,555, being a further $895,000.
The December 2023 reasons record that the husband’s costs notice provided that as at 20 October 2024 he had incurred costs of $218,726; $34,562 of which was unpaid at that time (at [81]). It was estimated that his future costs of the litigation would reach $273,000.
The costs notice of the husband filed on 23 October 2024 was Exhibit 6. That costs notice records that the husband has incurred costs of $332,455 to date, $310,557 of which had been paid. It records that the future costs and disbursements including the final hearing are estimated to be a further $340,720. It provides that the source of funds are “[y]our mother, except for the sum of $6,090.74 paid by you.”
The costs notice of the husband’s mother filed on 30 October 2024 was part of Exhibit 15. That costs notice records that she has incurred costs and disbursements to date of $12,254, of which $992 is outstanding. It further records that the total future costs and disbursements including the final hearing is estimated to be $17,539. It provides that the source of funds are her own funds.
The costs notice of Armani Pty Ltd filed on 30 October 2024 also formed part of Exhibit 15. That costs notice records that Armani Pty Ltd has incurred costs and disbursements to date of $25,222, of which $2,041 is outstanding. It further records that the total future costs and disbursements including the final hearing is estimated to be $36,100. It provides that the source of funds are Armani Pty Ltd’s own funds.
The costs notice of B Pty Ltd filed on 30 October 2024 also formed part of Exhibit 15. That costs notice records that B Pty Ltd has incurred costs and disbursements to date of $447,562, $36,216 of which remains outstanding. It further records that the total future costs and disbursements including the final hearing is estimated to be $640,586. It provides that the source of funds are B Pty Ltd’s own funds.
The total costs paid by the second to fourth respondents are $445,790. Their future estimated costs to the conclusion of the proceeding are estimated to be $694,225.
By way of summary, the total costs paid by the wife to date are $407,747, the total costs paid by the husband are $310,557, and the total costs paid by the second to fourth respondents are $445,790.
The relevant principles as to the making of a costs order for litigation funding pursuant to s 117 of the Act were recorded in the December 2023 at [103]–[108]. They will not be repeated here. No limitation is imposed providing that only one application for litigation funding can be made. It was uncontroversial at the hearing that s 117 of the Act grounded jurisdiction to make an order requiring a non-marriage party to the proceeding to pay a litigation funding order of a married party (Lao & Zeng (2021) FLC 94-053 (“Lao & Zeng”)). The fourth respondent submitted that the power to require a non-marriage party to pay the costs of a married party by way of litigation funding ought to be exercised sparingly. I do not accept that submission. As identified in the December 2023 reasons (at [103]), before an order as to costs can be made, the Court must be satisfied that the order is, in the circumstances, just (s 117(2) of the Act). Until that point, there is no power to make an order departing from the general rule that each party pays their own costs (s 117(1)). Once enlivened, the broad discretion to make an order as to costs is governed by the considerations contained in s 117(2A) of the Act. It is well settled that not a single s 117(2A) factor has priority, nor must there be more than one factor satisfied. Rather, any one factor may be sufficient.

Exhibit 13 was the wife’s Financial Statement filed on 21 April 2023, which the second to fourth respondents submitted demonstrated the wife’s ability to meet her costs. The second to fourth respondents submitted that there was no evidence as to the wife’s contended perilous financial position and identified that her Financial Statement demonstrates that she is a joint director of L Pty Ltd, an investing vehicle, and is a guarantor of a property in City BB which is of significant value. They submitted that the wife did not provide an explanation as to why she cannot source money from her other property interests to fund the litigation or why her father cannot contribute funds to her legal fees.
The December 2023 reasons record:
142The import of the wife’s case that she may not have access further funds to pay her costs by way of loans was not challenged. The most recent financial statements of both [Agapetos Pty Ltd] and the [C Trust] do not reveal any available funds to provide to the wife or to repay the husband’s loans due from each. The attempt to sell [Agapetos Pty Ltd] failed.
No direct challenge was made to that finding.
At the hearing the wife indicated that some of the furniture from the Suburb E property had been sold. The second to fourth respondents were critical of the wife in adducing no evidence as to how much this furniture was sold for, or where the sale proceeds were applied. There is some force to that submission.
The second to fourth respondents identified what was described as an unexplained anomaly (not suggesting any impropriety) in the trust account ledger of the wife’s solicitors in the following table:

Opening Balance: 5,025.00

Date Date Paid / Received Entered On Reference Description Payment Details Debit Credit Balance

11/0/1/2024 11/0/1/2024 11/0/1/2024 023351 Ms Agapetos DIRECT DEPOSIT Reference Drawer – Ms Agapetos’s Legal fee CAM 100,000.00 105,025.00

18/01/2024 18/01/2024 18/01/2024 015408 Barkus Doolan Winning: Trust to Office Transfer EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06 13,049.23 68,759.01

18/01/2024 18/01/2024 18/01/2024 015408 Barkus Doolan Winning: Trust to Office Transfer EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06 50,127.82 18,631.19

18/01/2024 18/01/2024 18/01/2024 015408 Barkus Doolan Winning: Trust to Office Transfer EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06 10,123.27 8,507.92

18/01/2024 18/01/2024 18/01/2024 015408 Barkus Doolan Winning: Trust to Office Transfer EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06 23,316.76 81,808.24

18/01/2024 18/01/2024 18/01/2024 015408 Barkus Doolan Winning: Trust to Office Transfer EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06 3,482.92 5,025.00

04/03/2024 04/03/2024 04/03/2024 023588 Ms Agapetos: On account of transcript fees DIRECT DEPOSIT Reference 3,853.60 8,878.60

06/03/2024 06/03/2024 06/03/2024 015562 Transcript Fees DIRECT DEPOSIT 15526 Transcription Service #...09 1,772.00 7,106.60

18/03/2024 18/03/2024 18/03/2024 015598 Barkus Doolan Winning: Trust to Office Transfer EFT – TRUST TO OFFICE TRANSFER 15562 Cash at Bank – NAB #...06 2,081.60 5,025.00

11/04/2024 11/04/2024 11/04/2024 023786 Ms Agapetos Refund - Transcript Fees DIRECT DEPOSIT Reference Drawer – Transcription Service 230.13 5,255.13

Period Total: 103,853.60 104,083.73

No evidence was adduced by the wife to explain the anomaly. It is self-evident that the trust to office transfers recorded on 18 January 2024 arithmetically total $100,000, being the value of the litigation funding payment made by the husband. It is the balance figure of $81,808.24 on that date presents as an anomaly that is mathematically obscure.
The Financial Statement of the wife filed on 12 September 2024 is not indicative of any material improved change in her financial circumstances since the December 2023 reasons.
The financial circumstances of B Pty Ltd, as recorded earlier in these reasons, are far superior to those of the wife. Those circumstances support and do not militate against the making of an order as to litigation funding as sought by the wife.
The second to fourth respondents submitted that when the “disputed assets”, being the Suburb E property, the Suburb G property, and the Armani Trust, are put to one side, then the liabilities asserted by the wife in the working balance sheet (Exhibit 5) “significantly outstrip” the value of the assets. As such, they submitted it may be unlikely that an interim costs order as sought by the wife would be able to be recovered if the wife is unsuccessful at final hearing. The second to fourth respondents submitted that although this is not a determinative factor as to litigation funding, it does “weigh heavily against the award of interim costs in the exercise of the discretion in the facts of this case”.
The case of the husband as to his property interests is not on all fours with the second to fourth respondents. During the hearing the following exchange occurred:
HIS HONOUR: And who is the legal owner of [B Pty Ltd’s] half interest that’s going into [Suburb G].
[SOLICITOR FOR THE HUSBAND]: My client. I – I accept that your Honour.
HIS HONOUR: Are you sure? Who is the legal owner of [B Pty Ltd’s] half interest that’s going into [Suburb G]? You said it was your client, do you want to think about it.
[SOLICITOR FOR THE HUSBAND]: I will take the – the
HIS HONOUR: Do you want some time to think about that?
[SOLICITOR FOR THE HUSBAND]: I will take some time to think about that your Honour.
Later, the solicitor for the husband submitted:
HIS HONOUR: So is it [the husband’s] case that half of the money that’s in the account is his money?
[SOLICITOR FOR THE HUSBAND]: It is his case that the [Suburb G] deed requiring that all funds that he owns, whether – whether by way of interest from [B Pty Ltd] or by way of the other half share he held, is to be for the purchase of the [Suburb G] sale in accordance with the [Suburb G] deed of acknowledgement of debt.
(Emphasis added)
The merits of the wife’s case were considered in the December 2023 reasons (at [109]–[164]). That factor remains unchanged. The wife identified the husband’s case is that, to the extent he has an interest in the Suburb E property, he accepts that she is entitled to half of it. The husband has not provided any indication as to whether the Armani Trust is likely to call on repayment of its loan. That trust remains a very significant financial resource available to him. The capital of that trust is to increase by not less than $30 million. The husband for the past 18 months has not adduced any evidence as to the revenue impost should he make the election under the Governance Deed for B Pty Ltd to transfer its interest in the Suburb E property to him absent encumbrance. The second to fourth respondents indicated that if the election was made by the husband, they would oppose it.
The second to fourth respondents submitted that reversibility of a litigation funding order is a consideration that “weighs heavily” in the circumstances of this case. In Lao & Zeng Ryan J citing Zschokke and Zschokke (1996) FLC 92-693 (“Zschokke”), with whom Ainslie-Wallace J agreed, said:
48The next point is that it is the requirement of justice that is the basic principle to which Zschokke speaks and not as the appellant suggests, reversibility. Reversibility and the ability to take the payment into account in the final hearing are considerations of fluctuating relevance having regard to the source of power under which the payment is sought. So much is clear from Zscokke itself as it is only in relation to the application of s 79 and s 80(1)(h) of the Act that this issue “must … be an integral part” (at 83,220) of such an order. Thus, although in Zschokke the Full Court was not satisfied that the wife would receive a property settlement greater than the sums already advanced by the husband, that was not the end of the matter and their Honours continued (at 83,221):
However, while the conclusion in relation to the uncertainty of the amount of the wife's eventual property settlement award may be fatal to an application under s.80(1)(h), it is not necessarily so to an application under s.117(2). It is just one of the matters to be balanced in the exercise of the discretion under the latter sub-section.
49It is also significant that in Zschokke the Full Court said that there must be a question about whether it is possible to make a litigation funding order under s 117(2) even though the order could not be taken into account in a final hearing. For example in parenting proceedings or where no right of action exists under s 79. If their Honours considered that reversibility and the ability to take the amount into account in a final property hearing was an essential element to the exercise of power under s 117(2) it follows that in the examples given such an order could not be made. Their Honours’ conclusion that in relation to those examples the “position is less clear” demonstrates that they were not satisfied that an order of the type under discussion here must be able to be reversed or taken into account at the final hearing.
50As to the highlighted words, the words “seem desirable” and “most cases” contemplate that there will be cases where even though the amount paid may not be able to be made subject to an order as discussed or be taken into account in the final hearing, the interests of justice may nevertheless justify an order under s 117(2) for interim funding or security for costs. The passage extracted by the primary judge from Zschokke cited at [190] reinforces this point. See also Strahan at [95] where, having referred to this passage from Zschokke, the Full Court agreed that whether it will be possible to take the amount payable under the order into account in a final hearing is but one consideration.
51As to the second of the passages in Zschokke upon which the appellant relies, the additional point made by their Honours is that by its nature an interlocutory litigation funding order can be taken into account, or at least had regard to, in the final hearing. Nevertheless and as they went on to explain, it is generally desirable that an order be made for the funds provided to be taken into account in this manner. Nothing in the language indicates that reversibility is a requirement and failure to be satisfied of it is fatal to an order being made under s 117(2).
(Emphasis added)
Uncertainty exists as to whether reversibility can be achieved in this case at or after a final hearing. It cannot be said that the $160,000 will not be recoverable if the wife is unsuccessful in her final relief sought. It would be capable of reversal if the husband achieves what has says is his inherited interest in the B Pty Ltd half share of the Suburb E property. The potential not to enable claw back weighs against making the litigation funding order sought to be payable by the fourth respondent.
The wife seeks funding to specifically pay outstanding current costs owed to her solicitors for work already undertaken, to obtain advice on the grant of probate of the husband’s late father and the additional trust interests of the husband that she contends have not been the subject of disclosure, and to obtain specialised accounting and other advice as to the anticipated future value of the Armani Trust upon its receipt of distributions from the estate of the husband’s late father. The litigation funding order is targeted for specific purposes to aid the wife in the continuing prosecuting her case.
In her affidavit filed on 9 July 2024, the wife further submitted:
47.On 27 May 2024 a deposit was made into [the wife’s solicitors] trust account by [the husband’s solicitors] pursuant to [the dollar-for-dollar] Order. This is the only payment that has been made towards my legal fees in accordance with the “dollar-for-dollar” Order notwithstanding that the Order was made almost 7 months ago.
48.Since the making of the dollar for dollar order, my solicitors have received approximately 20 emails from [the husband’s] solicitors of which 16 were attaching letters and approximately 33 emails from the Second to Fourth Respondent s Solicitors of which 20 were attaching letters. We have also participated in a mediation on 7 June 20224.
It is noted that this was prior to the second payment pursuant to the dollar-for-dollar order of $22,125 as made in August 2024. Nevertheless, the dollar-for-dollar order as made on 13 December 2023 is not operating to level the playing field between the husband and the wife in circumstances where satellite interlocutory disputes between the wife and the other respondents have achieved focus while the husband has taken a less than active, or somewhat backseat, participation in the progression of the litigation. The dollar-for-dollar order alone is insufficient to permit the wife to adequately participate in this complex litigation.
The fourth respondent is in a position of relative financial strength when compared to the wife. The fourth respondent has a capacity to meet its own litigation costs. The husband’s mother continues to meet his litigation costs. There is an inability of the wife to meet her own costs.
The circumstance recorded in the December 2023 reasons as to the David and Goliath event of the wife being under-resourced versus the financial might of the second to fourth respondents, who are aligned with the husband in some respects (at [146]), remains apposite. In circumstances where the wife does not have the province of much of the information as to the property and resources of she and the husband, it would ordinarily be anticipated that her costs to date would be greater than those of the other parties. They are current less on a paid basis than those of the second to fourth respondents.
The conduct of B Pty Ltd and the husband in discharging the mortgage loan secured over the Suburb E property contrary to the express terms of the consent orders of September 2023 has increased costs in the proceeding. The bank statements for the bill facility could easily have been provided to the wife. They were not.
Save as to it being self-evident as to the payment of monies being a detriment and as to the issue of claw back, no other evidence was adduced or factor identified as to hardship being incurred if B Pty Ltd was ordered to pay $160,000 in litigation funding.
No application was made to discharged or vary the dollar-for-dollar order as made on 13 December 2023 as a condition of the further litigation funding order being made as sought by the wife. Implicitly, it was uncontroversial that the December 2023 order would continue if the order sought to be payable by B Pty Ltd was achieved.
A consideration and weighing of the above factors on balance justify an order for litigation funding payable by the fourth respondent in favour of the wife.
No submissions were made as to the reasonableness of the quantum as sought by the wife. I am satisfied that the litigation funding order sought by the wife is just. It will be made, save that a period of 28 days is a reasonable time frame for B Pty Ltd to arrange its affairs for payment.
EXHIBIT 1 – PARAGRAPH 5 – PARTIAL PROPERTY SETTLEMENT
The wife relied on the power of the Court pursuant to s 79 and s 80(1)(h) of the Act. The December 2023 reasons record relevant principle at [101]–[102].
The wife submitted that the funds she seeks is “well below the amount that she will receive at the conclusion of the proceedings having regard to the financial resources that are available to the Husband”, including the sale proceeds from the Suburb E property, and that she required such funds to “meet expenses and to acquire furniture for the [Suburb G] Property”. The wife further submitted that even on the view of the second to fourth respondents, that the balance sheet of the husband and the wife may total between $518,000 – $618,000, that the $100,000 is “within the bounds of reason” and submitted that the value of partial property settlement sought was able to be clawed back, if necessary, upon the making of final orders. During the hearing of the application the wife further submitted that the value of the curtains was $28,913 and furniture to be purchased was $74,967.
The husband submitted that the wife had sufficient access to furniture from the Suburb E property. As outlined above, some of the furniture from the Suburb E property had been sold. The joint draft balance sheet of 4 April 2024 (Exhibit 5) recorded the value of the furniture and artwork of the Suburb E property at $250,000. The wife’s disclosure failures assume significance. The items she has disposed of are unknown. The items she proposes to purchase may be replacement items, may be upgrades of items, or may be additional items that she desires. The wife’s evidence is deficient as to these subject matters.
The wife’s disclosure failures on these subject matters prevents the achievement of justice and equity to further adjust property to enable the acquisition of furniture.
In her affidavit the wife said:
65.The [Suburb G] property will not have curtains. Curtains will be required to be installed for the privacy of [the child] and I. I have a quote from [...] for the installation of curtains at the [Suburb G] property which totals $28,913.50…
The installation of curtains to the Suburb G property is a different category of proposed expenditure. The property will require curtains to facilitate the privacy of the wife and the child. There is no suggestion that if the property is sold, the curtains will not be sold with the property, and hence their impact on the property will not be lost. The husband did not submit that applying $28,931 for curtains for the Suburb G property was unreasonable.
The husband submitted that he does not have monies available to provide to the wife. In his affidavit the husband said:
3.Since my last affidavit, I have continued to receive distributions from the [Armani Trust] in accordance with my earlier distributions. My overall income remains the same.
4.I have continued to receive support from my Mother for expenses that I cannot afford such as legal fees, [the child’s] private school fees (including extracurricular activities) and other miscellaneous expenses.
The last Financial Statement of the husband was filed on 18 October 2023, prior to the delivery of the December 2023 reasons. In those reasons, a finding was made as to the husband having a position of relative strength compared to the wife. I do not accept his submission that his financial circumstances are sufficient reason not to order a partial property settlement in favour of the wife. He continues to receive approximately $20,000 each month in distributions from the Armani Trust. The trust remains a very valuable resource to him as it was in December 2023, it soon to have a greatly increased capital value. He adduced no evidence as to any difficulty in accessing his financial resources whether it be by way of the Trust or his mother, so as to comply with the December 2023 litigation funding order. On his case as to his interest in the Suburb E property and the value of the wife’s current property, an order for partial property settlement equating to the cost of the curtains is capable of claw back.
On a consideration of the above matters, an order will be made requiring the husband to pay to the wife the sum of $30,000 by way of partial property settlement. As the wife proposes to apply these monies to acquire curtains, an order will be made that the funds be paid to the wife within 14 days of settlement of the Suburb G property or on or before 30 June 2025, whichever is the earlier.
EXHIBIT 1 – PARAGRAPH 6 – ACCOMMODATION COSTS

The wife seeks enforcement application of Order 1(d) of the consent orders made on 13 September 2023. It provided:
1. Order that pending further Order:
…
d)In the event that the sale of [Suburb E] and completion of the purchase of the [Suburb G] property do not align, the Second to Fourth Respondents are to meet the costs of appropriate accommodation for the Applicant Wife and [the child] pending completion of the purchase of the [Suburb G] property.
(Emphasis added)
Extensive correspondence was adduced into evidence passing between the solicitors for the wife and the solicitors for the second to fourth respondents as to disputes regarding what is “appropriate accommodation” for the purpose of the order, and as to its cost. Continuing this dispute, much of the hearing as to this relief focused on what the term “appropriate accommodation” as contained in Order 1(d) encapsulated.
The wife submitted that “it is in the interests of justice and appropriate” that she and the child have suitable accommodation on the basis that the September 2023 orders permitted her to have exclusive occupation of the Suburb G property following settlement. She further submitted that the sum of $59,780 sought was to be applied to:
31.1. Dog sitter for $60 a night being a total of $5,880 (98 nights if required);
31.2.Cost of furnished accommodation at $550 a night - 14 weeks 30/11 - 14/2 (98 nights) being a total of $53,900.
Exhibit 4 included a letter from the wife’s solicitors to the solicitors of the husband and the solicitors for the second to fourth respondents that listed multiple residences which the wife contended to be appropriate accommodation. Exhibit 9 contained a series of rental real property searches undertaken by the second to fourth respondents said to be comparable to the Suburb E and Suburb G properties. It also included, by way of contrast, the rental property in Suburb O which the wife proposed to live in pursuant to Order 1(d).
The second to fourth respondents submitted that the accommodation of the wife to be paid for by the second respondent needs to be proportionate, reasonable, and sensible when comparison is had to the Suburb E and Suburb G properties. They further submitted that the five-bedroom house in Suburb O is not reflective of the terms of the order as “appropriate accommodation” due to its size and cost of $6,000 each week in rental payments, or $570 each night. The second to fourth respondents said they have committed to an amount of $350 each night, as demonstrated by an email from their solicitors to the wife’s solicitors as Annexure G of the wife’s affidavit filed on 24 October 2024, and that the wife is therefore seeking an order of double that amount.
The second to fourth respondents further submitted Order 1(d) did not create an obligation which put the second to fourth respondent in arrears, and as such there is no case that can be made for an enforcement application.
I accept the submission of the second to fourth respondents that any accommodation to be paid for by them for the benefit of the wife and the child should be proportionate, reasonable, and sensible. I further accept that a five-bedroom house in Suburb O with a rental expense of $570 each night, or $6,000, is beyond what could be “appropriate accommodation” for the purposes of Order 1(b).
The value of appropriate accommodation for the purposes of Order 1(d) is not capable of enforcement by way of an obligation to pay money pursuant to ch 11 of the Rules. It is not capable of enforcement of an obligation, other than an obligation to pay money pursuant to Div 11.1.7 of the Rules. The wife did not identify a sufficient evidentiary foundation to equate the term “appropriate accommodation” to a monetary periodic sum. The wife did not make any application to vary Order 1(d) made on 13 September 2023. The wife’s relief pursuant to paragraph 6 of Exhibit 1 will be dismissed.
The Court proposed that, subject to agreement, a determination be made fixing the amount payable by the second respondent for the purposes of Order 1(d), to quell the controversy as to accommodation costs to be paid. The parties could not agree to that course. The disputes between them and further litigation on this subject matter appears inevitable.
All parties sought an order in their favour for costs. Submissions are yet to be received in relation to costs. In those circumstances, it is appropriate for a determination as to costs to be reserved to the final trial.
CONCLUSION
For all of the above reasons orders are made as set out herein.

I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.
Associate:
Dated: 6 November 2024
SCHEDULE OF PARTIES

SYC 2768 of 2023

Respondents

Fourth Respondent:

B Pty Ltd

File number:	SYC 2768 of 2023
Judgment of:	CAMPTON J
Date of judgment:	6 November 2024
Catchwords:	FAMILY LAW – ENFORCEMENT – Injunction – Application for injunctive order in aid of enforcement – Where consent orders were made providing for the application of the sale proceeds of a property held by the husband and the fourth respondent that did not provide for the application of funds to pay out a loan of the fourth respondent secured by way of mortgage over the property – Where the wife seeks an order requiring the fourth respondent to pay the value of funds applied from the sale of the property to discharge the loan and mortgage to an account established pursuant to the orders holding the funds produced from the sale – Where issue exists as to the interpretation of the consent orders sought to be enforced – Where issue exists as to the exercise of discretion to enforce – Orders made requiring the fourth respondent to pay the value of funds applied to discharge its loan into the interest-bearing account established by the consent orders in the joint names of the husband and the wife. FAMILY LAW – COSTS – Litigation funding – Where the wife has received the benefit of prior litigation funding by way of lump sum and dollar-for-dollars order payable by the husband – Where the wife seeks further litigation funding for legal costs already incurred and future costs payable by the fourth respondent – Where the fourth respondent opposes the relief – Where the financial circumstances of the wife are not dissimilar to those that which existed at the time of the prior litigation funding orders – Where the financial circumstances of the fourth respondent are superior to those of the wife – Where issues generating increased costs as to have continued – Where the fourth respondent submits that costs payable by a non-marriage party for litigation funding ought be exercised sparingly and that the risk of irreversibility is a consideration that “weighs heavily” in the circumstances of this case – Where the husband’s costs are being paid by the second respondent, his mother and the other respondents costs are being paid – Where the part of the wife’s current costs are unpaid – Where the wife’s case is not absent merit – Where absent further litigation funding the wife is unable to participate in this complex litigation – Where the circumstances justify a further litigation funding order payable by fourth respondent to enable the wife to continue to prosecute her claim – Litigation funding ordered payable by the fourth respondent in a fixed sum. FAMILY LAW – PARTIAL PROPERTY SETTLEMENT – Where the wife seeks the husband pay to her $100,000 by way of partial property settlement – Where the wife seeks funds to purchase furniture and curtains for a new residence – Where the husband has not filed a Financial Statement in over 12 months – Where the husband opposes the relief and submits that his financial circumstances are such that he is unable to meet the order sought – Where the wife sold, absent disclosure, the existing furniture of she and the husband – Where the wife adduced no evidence as to the items sold or the use of the sale proceeds – Orders for the husband to pay to the wife $30,000 by way of partial property settlement proximate to the time for completion of the new residence. FAMILY LAW – DISCLOSURE – Where the second to fourth respondents have disclosed a significant quantity of documents of entities that are not parties to the proceeding – Where a trust of which the husband is the primary beneficiary will in the future receive a minority interest in the entities – Where the wife seeks additional documents of those entities – Where the second to fourth respondents submit those additional documents are not in their possession or control, are “commercially sensitive”, and are so voluminous that it is “akin to a disclosure under a subpoena” – Where the documents sought are relevant to enable the wife to understand the integers of the consolidated financial statements disclosed to date of those entities – Where orders are made requiring the production of documents in the possession or control of the second to fourth respondents – Where orders are made providing the wife leave to issue a subpoena to the relevant entities to produce the specified documents in the event of the second to fourth respondents cannot disclose them. FAMILY LAW – ENFORCEMENT APPLICATION – Where the wife seeks for the husband’s mother, as the second respondent, to pay her a fixed sum by way of enforcement of a consent order requiring the second respondent to pay for appropriate accommodation for the wife and the child of the husband and the wife – Where the husband’s mother opposes that relief on the basis she already meets the cost of the wife and the child’s accommodation – Consideration of the consent order to meet the cost of “appropriate accommodation” – Where the monetary periodic value of the accommodation as sought by the wife is not contemplated – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 4, 79, 80, 85A, 90AE, 90AF, 105, 109A, 112AP, 114, 117 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 11, Div 11.1.7, r 6.04 and r 11.07
Cases cited:	Agapetos & Armani [2023] FedCFamC1F 1072 Alister v R (1984) 154 CLR 404; [1984] HCA 85 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 Biltoft & Biltoft (1995) FLC 92-614; [1995] FamCA 45 BSU15 v Minister for Immigration & Anor [2020] FCCA 859 Farina & Lofts and Ors [2019] FamCA 228 Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Langford & Coleman (1993) FLC 92-346; [1992] FamCA 68 Lao & Zeng (2021) FLC 94-053; [2021] FedCFamC1A 17 Luck& Norwood (2018) FLC 93-869; [2018] FamCAFC 207 M and D [2014] FCWA 50 Mandel & Duan [2024] FedCFamC1A 166 Martin & Martin and Anor (No. 2) [2014] FamCA 232 Masoud & Masoud (2016) FLC 93-689; [2016] FamCAFC 24 Nagel & Clay [2021] FamCA 358 Ramsey & Ramsey (1983) FLC 91-301; [1982] FamCA 42 Samuels v Linzi Dresses Ltd [1981] Q.B. 115 White & Tulloch & White (1995) FLC 92-640; [1995] FamCA 127 Zschokke and Zschokke (1996) FLC 92-693; [1996] FamCA 79
Division:	Division 1 First Instance
Number of paragraphs:	151
Date of hearing:	24 October 2024
Place:	Sydney
Counsel for the Applicant:	Mr Jones SC
Solicitor for the Applicant:	Barkus Doolan Winning
Solicitor for the First Respondent:	Mr Meehan, Holmes Donnelly & Co Solicitors
Counsel for the Second, Third and Fourth Respondents:	Mr Flick
Solicitor for the Second, Third and Fourth Respondents:	Cleary Hore Solicitors

SYC 2768 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS AGAPETOS Applicant
AND:	MR ARMANI First Respondent MS ARMANI Second Respondent ARMANI PTY LTD (and another named in the Schedule) Third Respondent

ORDER MADE BY:	CAMPTON J
DATE OF ORDER:	6 NOVEMBER 2024

Opening Balance:		5,025.00
Date	Date Paid / Received	Entered On	Reference	Description	Payment Details	Debit	Credit	Balance
11/0/1/2024	11/0/1/2024	11/0/1/2024	023351	Ms Agapetos	DIRECT DEPOSIT Reference Drawer – Ms Agapetos’s Legal fee CAM	100,000.00	105,025.00
18/01/2024	18/01/2024	18/01/2024	015408	Barkus Doolan Winning: Trust to Office Transfer	EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06	13,049.23	68,759.01
18/01/2024	18/01/2024	18/01/2024	015408	Barkus Doolan Winning: Trust to Office Transfer	EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06	50,127.82	18,631.19
18/01/2024	18/01/2024	18/01/2024	015408	Barkus Doolan Winning: Trust to Office Transfer	EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06	10,123.27	8,507.92
18/01/2024	18/01/2024	18/01/2024	015408	Barkus Doolan Winning: Trust to Office Transfer	EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06	23,316.76	81,808.24
18/01/2024	18/01/2024	18/01/2024	015408	Barkus Doolan Winning: Trust to Office Transfer	EFT – TRUST TO OFFICE TRANSFER 15373 Cash at Bank – NAB #...06	3,482.92	5,025.00
04/03/2024	04/03/2024	04/03/2024	023588	Ms Agapetos: On account of transcript fees	DIRECT DEPOSIT Reference	3,853.60	8,878.60
06/03/2024	06/03/2024	06/03/2024	015562	Transcript Fees	DIRECT DEPOSIT 15526 Transcription Service #...09	1,772.00	7,106.60
18/03/2024	18/03/2024	18/03/2024	015598	Barkus Doolan Winning: Trust to Office Transfer	EFT – TRUST TO OFFICE TRANSFER 15562 Cash at Bank – NAB #...06	2,081.60	5,025.00
11/04/2024	11/04/2024	11/04/2024	023786	Ms Agapetos Refund - Transcript Fees	DIRECT DEPOSIT Reference Drawer – Transcription Service	230.13	5,255.13
Period Total:	103,853.60	104,083.73

SYC 2768 of 2023
Respondents
Fourth Respondent:	B Pty Ltd