Aitken & Aitken (No 5)
[2022] FedCFamC1F 856
Federal Circuit and Family Court of Australia
(DIVISION 1)
Aitken & Aitken (No 5) [2022] FedCFamC1F 856
File number(s): SYC 5021 of 2019 Judgment of: WILSON J Date of judgment: 8 November 2022 Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – parties unable to reach a joint position on minutes to reflect reasons for judgment – consideration of competing orders sought – orders individually specified. Legislation: Family Law Act 1975 (Cth) s 79 Cases cited: Aitken & Aitken (No 3) [2022] FedCFamC1F 496
Aitken & Aitken (No 4) [2022] FedCFamC1F 646
Division: Division 1 First Instance Number of paragraphs: 107 Date of last submission: 4 October 2022 Date of hearing: On the papers Place: Melbourne Counsel for the Applicant: Mr M. Kearney SC and Mr N. Ford Solicitor for the Applicant: Nolan Lawyers Counsel for the Respondent: Mr S. Lloyd SC Solicitor for the Respondent: Avondale Lawyers ORDERS
SYC5021 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS AITKEN
Applicant
AND: MR AITKEN
Respondent
order made by:
WILSON J
DATE OF ORDER:
8 November 2022
THE COURT ORDERS THAT:
1.The parties must bring in a final minute to reflect the orders made herein on or before by 4:00pm on 15 November 2022.
2.I fix 1:15pm on 16 November 2022 for final mention.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Aitken & Aitken has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Wilson j
The task of bringing this litigation to conclusion resembles the labours of Hercules. The parties persist in their disagreements even over the form of wording of orders some of which I ruled on in my reasons dated 7 September 2022.[1] These reasons (hopefully) finally dispose of the trial of this litigation. Where the case goes beyond this is pure speculation.
[1] Aitken & Aitken (No 4) [2022] FedCFamC1F 646.
As was done previously, the husband provided a 29 page revision of orders filed 21 September 2022 that he said –
(a)was consistent with my reasons following trial after I had requested the parties to formulate a minute of orders that corresponded to the reasons handed down on 15 July 2022;[2] and
(b)was consistent with my reasons handed down on 7 September 2022.
[2] Aitken & Aitken (No 3) [2022] FedCFamC1F 496.
On behalf of the wife her counsel continued to push for orders some which had been the subject of observations in my 7 September 2022 reasons.
It is my intention to stipulate in these reasons the form of final orders to be made in this litigation following trial. The orders in paragraphs 1 to 8 below were uncontroversial and so I now make orders in their terms. They were as follows –
Orders
Joinder
1.That [Aitken Pty Ltd] as trustee of [The Aitken Unit Trust] be joined as a party to these proceedings.
Suburb C Property
2.That within 42 days of the date of this Order the Husband do all acts and things and sign all documents necessary to transfer to the Wife all of his right, title and interest in the property situated at and known as [B Street, Suburb C] in the State of New South Wales and more particularly described in Certificate of Title Folio Identifier […] (the [Suburb C] Property).
Suburb F Property
3.That within 42 days of the date of this Order and contemporaneously with the transfer in paragraph 2 the Wife do all acts and things and sign all documents necessary to transfer to the Husband all of her right, title and interest in the property situated at and known as [E Street, Suburb F], in the State of New South Wales and more particularly described in Certificate of Title Folio Identifier […] (the [Suburb F] Property).
Superannuation
3A. That, in accordance with Section 90XT(1)(a) of the Family Law Act 1975 –
1.The Wife (or the Wife's administrators, executors, beneficiaries, heirs or assigns) is entitled to be paid the base amount out of the interests of each of the Husband and the Wife in The [Aitken] Family Superannuation Fund;
2.The Wife's entitlement (or the entitlement of such other person to whom a payment may be made out of the Wife's interest) in The [Aitken] Family Superannuation Fund is correspondingly reduced by force of this Order; and
3.The base amount specified for the purposes of this Order is one hundred percent (100%) of the balances of the accounts of The [Aitken] Family Superannuation Fund being:
3.1.[K Bank] Term Deposit account, being $1,142,332 as at 15 March 2022;
3.2.Westpac Bank account […94], being $2,200 as at 15 March 2022; and
3.3.Westpac Bank account […07], being $104,041 as at 15 March 2022.
4.That the Trustees of The [Aitken] Family Superannuation Fund shall do all such acts and things and sign all such documents as may be necessary to:
4.1.calculate, in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement awarded to the Wife pursuant to the above Order; and
4.2.pay the entitlement whenever the Trustee makes a splittable payment from the interests of the Husband and the wife in The [Aitken] Family Superannuation Fund.
5.That Orders 3 and 4 have effect from the operative time and the operative time is seven (7) days after the date of service of this Order upon the Trustee.
6.That Orders 3A, 4 and 5 bind the trustees of The [Aitken] Family Superannuation Fund.
7.That within twenty eight (28) days of the date of this Order, and simultaneously, the Husband and Wife as the Trustees of The [Aitken] Family Superannuation Fund and as members of the said Fund, shall do all things and sign all documents including but not limited to the signing of Trustee Minutes, serving of all relevant notices and signing all documents as may be necessary to effect the superannuation split referred to herein, and to cease the Wife's membership in The [Aitken] Family Superannuation Fund.
The [Aitken Unit Trust] Loan
8.That forthwith, and in any event no later than 1 December 2022, the Husband and the Wife do all acts and things and sign all such documents necessary and cause each of [D Pty Ltd] and [Aitken Pty Ltd] to do all acts and things necessary to:
8.1cause the repayment of the Loan; and,
8.2meet all liability to the Deputy Commissioner of Taxation in respect of the Loan the subject of the Determination including the payment of all liability for taxation, interest and penalties arising consequent upon the Loan and/or the Determination.
AITKEN UNIT TRUST loan – PARAGRAPH 9
The date in the opening line of paragraph 9 remained contested, the husband wishing the inclusion of the words “as soon as practicable” whereas the wife wished the temporal limitation “no later than 1 December 2022”.
Certainty is gained by a specific date. If the relevant act can be achieved ahead of that date, so much the better.
I order that the wording “not later than 1 December 2022” is to be included. Paragraph 9 therefore reads as follows –
9.For the purpose of compliance with Order 8 herein and by not later than 1 December 2022, the Husband and the Wife do all acts and things and sign all such documents necessary and cause each of [D Pty Ltd] and [Aitken Pty Ltd] to do all acts and things necessary:
Paragraph 9.1 of the husband’s proposal continued to present an insoluble problem. I addressed the parties’ competing positions on point between paragraphs 16 and 25 of my 7 September 2022 reasons. In those paragraphs I stated that I was minded to make orders in accordance with the husband’s proposal. In this latest iteration of the parties’ proposal on point –
(a)the husband has proposed a different collection of properties to be sold than were proposed on which I expressed certain observations in my 7 September 2022 reasons; and
(b)the wife has maintained her position in relation to the five properties to be sold.
When previously expressing the view that I favoured the husband’s proposal, I stated in paragraph 25 of my 7 September 2022 reasons that it was necessary to incorporate a failsafe proposal in case the Division 7A debt cannot be satisfied by $18,000,000. In the husband’s latest proposal, his counsel incorporated a submission to the effect that the different configuration of properties to be sold derived a value of $18,235,000 as compared with an ATO debt of $17,800,000. He arrived at that arithmetic in the following manner –
(a)selling 2 AA Street, Suburb BB (valued at $4,500,000);
(b)selling 1 YY Street, Suburb BB (valued at $4,535,000);
(c)selling AA Street, Suburb BB (valued at $5,300,000); and
(d)selling 4 AA Street, Suburb BB (valued at $3,900,000).
He previously proposed selling –
(a)J Street, Suburb H;
(b)2 G Street, Suburb H;
(c)1 G Street, Suburb H;
(d)UU Street, Suburb H; and
(e)3 AA Street, Suburb BB.
The wife proposed the sale of different properties. As it happened, her proposal corresponded with the five properties the husband proposed in his penultimate proposal which I said I favoured. Those were –
(a)J Street, Suburb H (valued at $4,600,000);
(b)2 G Street, Suburb H (valued at $3,200,000);
(c)1 G Street, Suburb H (valued at $1,520,000);
(d)UU Street, Suburb H (valued at $8,900,000); and
(e)3 AA Street, Suburb BB (valued at $4,500,000).
Precisely why the husband once proposed a particular collection of properties then he proposed a different collection of properties was unexplained. As it happened the properties most recently deleted from the husband’s proposal largely (but not precisely) corresponded with the wife’s selection. To that small extent, evidence of agreement was manifest.
The husband deleted paragraph 9.2 that appeared in the wife’s proposal. That paragraph addressed the consequences of the possibility that the proceeds of sale of the five properties set out above were insufficient. The husband seemed confident that such an eventuality would not come to pass. I do not share his enthusiasm.
In those circumstances, particularly having regard to there once being agreement about the sale of the five properties listed in paragraph 9.1, it is appropriate to make orders in accordance with paragraphs 9.1 and 9.2 of the wife’s proposal which I now do. Those paragraphs are as follows –
9.For the purpose of compliance with Order 8 herein and by no later than 1 December 2022, the Husband and the Wife do all acts and things and sign all such documents necessary and cause each of [D Pty Ltd] and [Aitken Pty Ltd] to do all acts and things necessary:
9.1to effect the transfer to [D Pty Ltd] of the following properties in repayment of the Loan and interest thereon:
9.1.1[J Street, Suburb H] in the State of New South Wales at the value of $4.6million as determined by the single expert in these proceedings;
9.1.2[2 G Street, Suburb H] in the State of New South Wales at the value of $3.2million as determined by the single expert in these proceedings;
9.1.3[1 G Street, Suburb H] in the State of New South Wales at the value of $1.52million as determined by the single expert in these proceedings;
9.1.4[UU Street, Suburb H] in the State of New South Wales at the value of $8.9million as determined by the single expert in these proceedings; and,
9.1.5[3 AA Street, Suburb BB] in the State of New South Wales at the value of $4.Smillion as determined by the single expert in these proceedings; and,
9.2in the event that the transfers in accordance with Order 9.1 are insufficient to discharge the amount of the Loan and the interest thereon, the Husband and Wife as directors of [D Pty Ltd] do all things and sign all documents necessary to cause [D Pty Ltd] to declare a dividend to each of the Husband and the wife in an amount equal to any shortfall then remaining, which dividend shall be loaned by the Husband and the Wife to [Aitken Pty Ltd] and applied in discharge of the remaining amount owing.
MR XX'S INVOLVEMENT – paragraph 10
I also make an order in terms of paragraph 10 of the wife’s proposal. That much is consistent with paragraphs 26 and 27 of my 7 September 2022 reasons. Precisely why the husband refused to accept that indication, as evidenced by his deleting paragraph 10, was inexplicable.
I make an order in terms of paragraph 10. It is as follows –
10.That forthwith upon the parties' compliance with Orders 8 and 9, the parties jointly instruct [Mr XX] to write to the Deputy Commissioner of Taxation confirming that the parties' have done all things necessary to comply with the Determination.
D PTY LTD – paragraphs 11, 12 and 13
The husband proposed the appointment of AO Accounting Group for the purpose of regularising the accounts of D Pty Ltd. There was no agreement to that.
In the lead up to my 7 September 2022 reasons a debate emerged between the parties about the precise content of the ongoing role of Mr XX and of AO Accounting Group. Provisionally, I indicated that Mr XX should remain involved. The reasoning underpinning that observation was set out between paragraphs 26 and 27 of my 7 September reasons.
In the lead up to my 7 September reasons the husband proposed that AO Accounting Group should be retained to not only address the satisfaction of Division 7A issues but also to determine the value of capital gains tax and fringe benefits tax. In my 7 September 2022 reasons I observed that it was unnecessary for AO Accounting Group to attend to the steps involved in satisfying the Division 7A issues. Mr XX was the proper person to do that. Nevertheless, the husband persisted in the inclusion of paragraph 11.2 which provided for AO Accounting Group to be retained to do that. Such a proposal was not within my earlier observations. I refuse it.
So far as the husband’s proposal for AO Accounting Group to become immersed in issues involving capital gains tax and fringe benefits tax, I wrote in paragraphs 33 to 36 of my 7 September 2022 judgment that the amount of likely fringe benefits tax and capital gains tax was relevant in any determination of whether AO Accounting Group should be involved. I also observed that unless and until the real amounts relevant to fringe benefits tax, capital gains tax and “other taxation liability” was justified, it was difficult to see how the husband’s proposal involving the use of AO Accounting Group was warranted.
Despite the fact that neither party quantified the likely fringe benefits tax, capital gains tax or “other taxation liability”, the husband persisted in his request for AO Accounting Group to be appointed to undertake a wide variety of activities as recorded in his version of paragraphs 11, 12 and 13. The wife vigorously opposed those paragraphs contending –
(a)those paragraphs were not sought at trial;
(b)it is improper for me to entertain such an application now, at this late stage of the proceeding;
(c)it would orchestrate procedural unfairness to the wife to permit the husband to seek those orders now;
(d)the taxation consequences have already been the subject of Mr XX’s evidence; and
(e)precisely what is contemplated by “regularising the accounts of [D Pty Ltd]” was not stated.
It might legitimately be said that the husband is agitating for a second time matters already the subject of my determination in relation to paragraph 11. It was put on behalf of the husband that paragraph 11 and all its component parts is required because those steps are necessary for the parties to fulfil the court’s direction that the parties’ net assets be divided equally.
To my way of thinking the wife’s contentions have merit. Appointing AO Accounting Group, which is essentially a stranger to this litigation, now, without having heard from which at trial is procedurally unsound. To the extent that any such appointment is in the face of the wife’s opposition, any order in terms of paragraphs 11, 12 and 13 as proposed by the husband is procedurally unfair.
I refuse to make orders in terms proposed by the husband in his paragraphs 11, 12 and 13. Those paragraphs proposed by the wife which I now make are as follows –
[D Pty Ltd]
11.That the parties forthwith jointly appoint [AO Accounting Group] on behalf of [D Pty Ltd] for the purposes of:
11.1 Regularising the accounts of [D Pty Ltd];
12.[D Pty Ltd] will make all such payments as required and identified in the preceding paragraph for the purposes of regularising its accounts and meeting its tax obligations.
13. The costs of [AO Accounting Group] is to be paid by [D Pty Ltd].
The AITKEN UNIT TRUST properties – paragraphs 14 and 15
There was no protest about an order being made in terms of paragraph 14 of the wife’s proposal. In those circumstances I order as follows –
14.It is declared that the Husband and the Wife hold, and in each instance have held from the date of the acquisition of each property, their interests in and to each of the following properties upon trust for The [Aitken Unit Trust]:
14.1 [ZZ Street, Suburb AB] NSW; and,
14.2 [2 AA Street, Suburb BB] NSW.
So far as the wife’s proposed paragraph 15 was concerned, the husband deleted wording on which he once relied and in the process he derived a form of wording for paragraph 15 that was identical except for the wife’s insistence on the inclusion of the words “and each of the husband and [Aitken Pty Ltd] shall indemnify the wife”. As was recorded in paragraph 40 of my 7 September 2022 reasons, I stated that paragraph 140(c) of my reasons after trial said nothing about any indemnity. The wife’s persistent incorporation of reference to an indemnity is erroneous. The husband’s version of paragraph 15 is correct. I order paragraph 15 in the following terms –
15.That the Wife shall, forthwith upon request, sign all documents as are necessary to transfer her legal title in respect of each of the properties identified in Order 14 to the trustee for The [Aitken Unit Trust].
The AITKEN group entities – paragraphs 16 and 17
Paragraph 16 was disputed as to date and as to amount. The wife contended that the fully franked dividend should be in the sum of $8,693,345.66. The husband contended that the fully franked dividend should be $7,658,144. The difference was explained by the husband on the basis that, so the husband said, the wife can and should address her own taxation matters subsequent to the payment of the dividend. The husband argued that the payment of the dividend should not be fully franked.
The wife contended that the total of the relevant accounts is $17,386,691.32 of which half is $8,693,345.66 being the amount the wife submits should be ordered.
Paragraph 16 of the latest iteration of proposed orders emerged consequent upon my observations in paragraph 148 of the reasons following trial. There it was stated as follows –
148.In the minute that the parties will prepare to reflect these reason, I also require the minute to incorporate this proposed dividend declaration and for the accompanying submission to specifically address –
(a) the amount and date by which that dividend is to be paid;
(b) the amount of tax that will be separately paid on that payment; and
(c)the reasons why the payment of that dividend assists in achieving a just and equitable outcome, especially in dollar terms and in percentage terms.
On behalf of the wife it was put that a fully franked dividend ensures that each party bears the same taxation liability consequent upon the distribution of the dividend, each being the holder of an equal number of shares in U Pty Ltd, each being liable to return the receipt of such dividend to the Deputy Commissioner of Taxation and each having the benefit equally of any available franking credits.
Those contentions go some modest but incomplete way to addressing the matters that concerned me, as were addressed in paragraph 148 of my 15 July 2022 reasons.
The husband’s reasons for seeking orders for the distribution of an amount that had not been franked seem to reflect antipathy towards the wife more than justice and equity. Of course, it was open to make an order for each party to meet his or her own tax liability arising from the dividend to be distributed. But the husband himself had approached this entire litigation on the basis of equality, not only of assets but also of liabilities. Making orders for the distribution of franked dividends ensured equality of liability for tax on the dividend. To my way of thinking, not only is it administratively simpler for an order to be made dealing with a franked dividend but such an order in fact ensures that both husband and wife each bears the same taxation liability consequent upon the dividend being distributed. The amount has been quantified, cent perfectly. The wife proposes that the payment be made “forthwith” connoting immediacy. In those circumstances I make an order in terms of paragraph 16 of the wife’s proposal. The order is therefore as follows –
16.That forthwith the Husband and the Wife shall do all things necessary to cause [D Pty Ltd] to declare a fully franked dividend so as to cause a cash payment to the Wife in the sum of $8,693,345.66.
Paragraph 17 of the wife’s proposal included mechanical details that were to be orchestrated contemporaneously with the payment in paragraph 16 of the proposed orders. Her proposal was in the following terms –
17.That contemporaneously with the Payment the Wife do all acts and things and sign all documents necessary to:
17.1resign as a director of each of [D Pty Ltd] and [Aitken Pty Ltd];
17.2transfer to the Husband her shareholding in each of [D Pty Ltd] and [Aitken Pty Ltd];
17.3transfer to the Husband her units in the [Aitken Unit Trust]; and,
17.4transfer to the Husband all entitlements as the Wife may have in respect of any of the [Aitken] Group Entities, including on any loan account
The husband’s proposal in relation to paragraph 17 was as follows –
17.That contemporaneously with the Payment, the Husband and the Wife do all acts and things and sign all documents necessary to:
17.1.To cause the wife to resign as a director of each of [D Pty Ltd] and [Aitken Pty Ltd];
17.2.
transfer to the Husband her shareholding in each of [D Pty Ltd] and [Aitken Pty Ltd];17.3.
transfer to the Husband her units in the [Aitken Unit Trust] ; and,17.4.to cause a share buyback by each of [D Pty Ltd] and [Aitken Pty Ltd] in respect of the Wife’s shareholding;
17.5.transfer to the Husband all entitlements as the Wife may have in respect of any of the [Aitken] Group Entities, including in any loan account.
Turning first to the share buyback, in paragraphs 47 to 54 of my 7 September 2022 reasons I set out elaborate reasons for rejecting the husband’s share buyback proposal. Nevertheless, the husband ignored that ruling and pressed, for a second time, his share buyback proposal. He propounded the already-rejected share buyback proposal saying it did not affect the wife, it was available at law and there was no “downside” (his words) to it for the wife. In rejecting the proposal for a second time, I adhere to the reasons given for rejecting the proposal for the first time. The husband’s persistence with a proposal already rejected may well have costs consequences to the husband as well as to his legal advisors.
So far as the husband’s underlined inclusions to paragraph 17.1 were concerned, the wife’s acts in resigning and transferring her shareholding to the husband are acts to be done solely by her in which acts the husband need not participate. I see no reason for incorporating a reference to the husband in the opening line of paragraph 17.
Having determined not to order a share buyback in the manner urged by the husband, I make orders in accordance with the wife’s paragraph 17 as recorded above.
Indemnity – paragraph 18
The husband opposed the giving of an indemnity in the form proposed by the wife in paragraph 18 of the latest iteration of the orders to be made.
Paragraphs 55, 56 and 57 of my reasons dated 7 September 2022 addressed the issue of a general indemnity in favour of the wife. In paragraph 57 I held as follows –
57.In my view there is force in Mr Lloyd’s submissions. If Mr Ford is able to find and bring to my attention authority for his contention that the wife as the vendor of her shares would obtain an indemnity, then I will entertain his proposal in respect of paragraph 15 of the wife’s proposal. In the absence of authority, I do not propose to make the order he seeks.
Counsel for the wife did not bring to my attention authority of the nature spelled out in paragraph 57. Instead, counsel for the wife contended that at trial counsel for the husband did not demur to this suggested inclusion in wording.
The contention missed the point.
The demurrer or otherwise at trial did not address my observations in paragraph 57 of the 7 September 2022 reasons. Further, I do not consider that the indemnity is necessary so as to give effect to my reasons. I refuse to make orders in terms of paragraph 18 of the wife’s proposal concerning a general indemnity. Paragraph 18 is omitted.
MR X AND other properties – paragraphs 19, 20, 21 and 22
The parties agreed on paragraph 19 and 19.1. Accordingly I make the following orders –
19.That the Husband do all acts and things, sign all documents and pay all moneys necessary to indemnify the Wife and keep the Wife indemnified against any claim made by [Mr X], arising out of or in relation to:
19.1the property situate at and known as [1 YY Street, Suburb BB] in the State of New South Wales (including that part of the property formerly known as [2 YY Street, Suburb BB]).
The parties agreed on paragraph 20. Accordingly, I make the following order –
20.That the Wife will do all acts and things and sign all documents necessary to assign to the Husband any amount owing to the Wife, if any, by [Mr X] in respect of the portion of the property at [1 YY Street, Suburb BB] in the State of New South Wales.
One qualification exists in that regard, however. The wife’s proposal included as final words to paragraph 20 “beneficially held by [Mr X]”. Those words should be deleted.
Both parties agreed on the form of order in paragraph 21. Accordingly, I make the following order –
21.Subject to these Orders, the Wife retain to the exclusion of the Husband the following assets:
21.1any amount standing to the credit of the Wife in any bank or credit union account;
21.2any superannuation entitlements in which she holds an interest; and
21.3all property and financial resources of whatever nature and kind (including chose in action) in the possession or control of the Wife or to which she is or may become entitled.
So far as paragraph 22 was concerned the parties agreed on its form and so I make the following order –
22.Subject to these Orders, the Husband retain to the exclusion of the Wife the following assets:
22.1any amount standing to the credit of the Husband in any bank or credit union account;
22.2any superannuation entitlements in which he holds an interest; and,
22.3all property and financial resources of whatever nature and kind (including chose in action) in the possession or control of the Husband or to which he is or may become entitled.
The payment – paragraphS 23 and 24
The wife’s proposal was dollar precise and date specific. It was as follows –
23.That the Husband pay to the Wife the sum of $26,751,023 within 60 days of the date of these Orders.
The husband continued to press his contention for regularisation of the accounts of D Pty Ltd, appointing AO Accounting Group, complying with the requirements imposed on each party and then causing distributions to each of 50% of the net assets, after compliance with other aspects of the orders made.
In paragraph 66 to 68 of my 7 September 2022 reasons I addressed and rejected a similar proposal put by the husband. He continues to put the proposal. It is again rejected for the reasons mentioned in paragraph 68. The wife’s proposal is less likely to create ongoing disputation.
Paragraph 24 has been omitted by agreement.
D PTY LTD AITKEN UNIT TRUST – Paragraphs 25 and 26
The parties agreed on paragraph 25. Accordingly I make an order in respect of paragraph 25 in the following terms –
25.That forthwith the Husband and the Wife do all acts and things and sign all documents necessary so as to cause [U Pty Ltd] to list for sale the following properties:
25.1[3 AC Street, Suburb AP] in the State of New South Wales and more particularly described in certificate of title folio identifier […]; and
25.2[1 AC Street, Suburb AP] and [2 AC Street, Suburb AP] in the State of New South Wales and more particularly described in certificate of title folio identifier […];
collectively referred to as "the [Suburb AP] properties".
Paragraph 26 was also agreed. Accordingly I make orders in the following terms –
26. For the purposes of Order 25, the following shall apply:
26.1the Husband and the Wife shall sign all selling authorities as may be necessary to enable the [Suburb AP] properties to be listed for sale initially by private treaty, unless otherwise agreed in writing or advised by the agent, with such licensed real estate agent as agreed by the parties and in the event that the parties are unable to agree upon the appointment of such licensed real estate agent, then such agent will be as nominated by the President of the Real Estate Institute (NSW Division) at the request of the parties or either of them (the estate agent);
26.2the Husband and the Wife shall appoint and instruct such solicitor and/or licensed conveyancer as the parties may agree in writing and failing agreement as nominated by the President of the Law Society of New South Wales (the solicitor);
26.3the Husband and the Wife shall sell the [Suburb AP] properties at such price as the parties shall agree, and failing agreement, then at such price as may be determined by the estate agent to be the estimated market value of the [Suburb AP] properties;
26.4the Husband and the Wife will cooperate in allowing access to the [Suburb AP] properties, including providing all such authorities to the managing agent, at all reasonable times to prospective purchasers and the estate agent and shall vacate the [Suburb] AP properties during inspection times and when required by the estate agent;
26.5the Husband and the Wife will maintain the [Suburb AP] properties in reasonable condition and repair having regard to the present condition and state thereof;
26.6if contracts for the sale of the [Suburb AP] properties by private treaty have not been exchanged within two (2) months of the date of the listing of the [Suburb AP] properties for sale then the parties shall forthwith cause the [Suburb AP] properties to be sold by way of public auction through a licensed auctioneer appointed by the parties or, failing agreement, to be appointed by the President of the Real Estate Institute (NSW Division) for the time being or his/her nominee (the auctioneer);
26.7if listed for sale by way of public auction, a reserve price shall be fixed by agreement between the parties, and if no agreement is reached by fourteen (14) days prior to the scheduled auction date, the reserve shall be determined by a valuer (other than the auctioneer) appointed by the auctioneer;
26.8in the event that the [Suburb AP] properties are to be sold by way of public auction in accordance with Order 25.7 herein, then the estate agent shall nominate the date of auction, which shall not be more than three (3) months after the first listing of the [Suburb AP] properties for sale by private treaty;
As to paragraph 26.9, in my reasons dated 7 September 2022 at paragraph 76 I observed that the husband and wife may need to attend a public auction jointly, and they may need to jointly negotiate with a prospective purchaser. I stated in paragraph 76 that the husband wrongly deleted paragraph 26.9 from his proposed minute.
The husband has wrongly persisted in deleting paragraph 26.9 of the wife’s draft.
That said, in the wife’s version of paragraph 26.9 she has maintained paragraph numbering that includes paragraph 25.8, which no longer exists. Reference to the words “determined in accordance with order 25.8 herein” must be deleted. With that deletion, I make an order largely consistent with paragraph 26.9 (although not word perfectly) as follows –
26.9the Husband and the Wife may attend the said auction sale of the [Suburb AP] properties and in the event that the said reserve price of the properties is not reached, the parties or such of them as attend the said auction sale may negotiate with the highest bidder or any other bidder present at the said auction or any other interested party in an effort to sell the [Suburb AP] properties at a price not more than 5% below the reserve, or at such other price as the parties agree in writing; and
Paragraph 26.10 as proposed by the husband corresponded with the indication I gave in paragraph 78. The wife’s version mirrored that. Accordingly I make an order to reflect paragraph 26.10 in the following terms –
26.10if either or both of the [Suburb AP] properties are not sold at the said auction, then the parties shall relist any unsold [Suburb AP] properties for sale by successive public auctions on 6 weekly intervals on the same terms and conditions as the first auction, save and except the reserve price be set at 95% of the reserve price immediately preceding auction.
Proceeds of sale – paragraphs 27 to 31
It was said by the husband that paragraph 27 was not in issue. That may well be accurate in terms of the overall proposal in paragraph 27 yet two discrepancies appeared in the parties’ respective versions, namely –
(a)the wife’s proposal nominated Nolan’s Trust account whereas the husband’s proposal did not speak of that account; and
(b)the wife’s proposal in paragraph 27.3 spoke of a calculation being made in accordance with order 29 whereas the revised paragraph 29 said nothing about any such calculation.
In those circumstances I make an order in terms of paragraph 27 –
(a)adding the nominated account in paragraph 27.4; and
(b)deleting reference to paragraph 29 in paragraph 27.3.
The new order 27 is as follows –
27.That upon completion of the sale of the [Suburb AP] properties, the proceeds of sale shall be distributed in the following manner and priority:
27.1all costs and expenses of sale including legal costs and disbursements, agents commission, costs of sale, valuers fees, and auction expenses;
27.2the amounts required to pay all outstanding municipal and water rates relating to the property;
27.3payment of the estimated Capital Gains Tax [CGT] liability into an interest-bearing account in the name of the Trustee for the purposes of payment of the CGT liability as and when the liability is realised [the CGT account];
27.4the balance of the proceeds to be paid to Nolan Lawyers Trust Account.
Paragraph 28 was agreed. Accordingly I make the following order –
28.Upon the completion of the sale of both [Suburb AP] properties, the Husband and the Wife shall do all acts and things and sign all documents are necessary to:
28.1repay the loan to [D Pty Ltd] in the sum of $217,945 or such other amount as is then owing;
28.2wind up [U Pty Ltd]; and,
28.3to disburse the net proceeds of sale held in Nolan Lawyers Trust account equally to the husband and the wife.
In paragraph 82 and 83 of my 7 September 2022 reasons I indicated that paragraph 29 of the parties’ proposal should be included so as to reduce the ongoing hostility caused in this litigation. The wife’s latest iteration of the orders sought preserved paragraph 29. The husband persisted in his contention that the order was not necessary. I have already indicated that the paragraph should remain. It ill-behoves the husband to take issue with that earlier indication. Accordingly, paragraph 29 is as follows –
29.That pending settlement of the sale of the [Suburb AP] properties, the rental payments received in relation to the [Suburb AP] properties shall continue to be paid to [U Pty Ltd] and any balance standing to the credit of the company in bank accounts following completion of the sale of the property is to be divided equally between the Husband and the Wife and any such accounts thereafter closed.
As to paragraph 30, the husband continued to assert his wish for AO Accounting Group to address fringe benefits tax and capital gains tax issues whereas the wife continued to assert her wish for the involvement of PP Group. In the earlier passages of these reasons I addressed how AO Accounting Group is essentially a stranger to this litigation. No real foundation was given by the husband for his opposition to PP Group. In those circumstances, PP Group is familiar with the accounts of many entities in the group of companies in this litigation. Accordingly I order as follows –
30.That forthwith upon exchange of contracts for the sale of the [Suburb AP] properties, the Husband and the Wife shall do all things to instruct [PP Group] to provide an estimate of the CGT payable as a result of the sale of the [Suburb AP] properties.
Paragraph 31 was agreed except for the reference to paragraph 30.1 in the wife’s proposal which was obviously a reference to paragraph 31.1 as the husband proposed. I make an order in accordance with the husband’s proposed paragraph 31, as follows –
31.That upon the completion of the financial year immediately following the completion of the sale of the [Suburb AP] properties, the parties shall do all things necessary to submit to the Deputy Commissioner of Taxation the income taxation returns for [U Pty Ltd] for the year in which the sale of each property occurred and, forthwith upon the issue of a Notice of Assessment, the Husband and Wife shall provide a copy of their Notice of Assessment to the Trustee and the Trustee shall do all things necessary to pay from the CGT account:
31.1.to the Australian Taxation Office such CGT liability as [U Pty Ltd] is assessed to pay consequent upon the sale of each property; and
31.2.any balance thereafter remaining in the CGT account is to be divided equally between the Husband and the Wife and in the event that there are insufficient funds in the CGT account to meet the payment of the amount required by Order 31.1 above, each of the Husband and the Wife shall be equally liable to meet any such shortfall amount.
Further orders – paragraphs 32 to 39
Paragraph 32 was agreed. Accordingly, I make an order in the following terms –
32.That within 7 days the Husband shall pay to the Wife the sum of $2,200 being that payable by the Husband in respect of the single expert fees and expenses pursuant to the Orders of this Court.
Paragraph 33 was agreed so make an order as follows –
33.That within 7 days the Husband shall cause [D Pty Ltd] to pay to the Wife the sum of $13,320.96 being that payable by [D Pty Ltd] in respect of the [SS Company] single expert fees and expenses pursuant to the Orders of this Court.
In respect of paragraph 34 of an earlier iteration of the proposed orders I indicated that the wife’s proposal for there to be no discharge of interlocutory orders pending compliance with “these orders” was far reaching and imprecise. The details of my observations were set out in paragraphs 88 and 89 of my 7 September reasons. More specifically, I mentioned that unless and until the wife identified the precise orders she said needed to remain operative I was reluctant to make an order in the terms she sought. The husband flatly opposed orders in the form of paragraph 34 of the wife’s draft.
The wife subsequently identified the orders she said she needed to remain intact pending performance of all obligations under the proposed orders. Those paragraphs she said needed to remain were 6, 7, 8, 9, 10, 11, 14, 25 and 26 of the orders dated 28 May 2020 and orders 12, 13, 21, 22, 23 and 24 of the orders dated 23 March 2021. The precise form of order sought by the wife in paragraph 34 was as follows, which the husband sought deleted in its entirety –
34.That pending compliance with these Orders, all the following interim/interlocutory orders entered in these proceedings remain and are not discharged upon the entry of these Orders:
34.1Orders 61 7, 8, 9, 10, 11, 14, 25 and 26 of the Orders dated 28 May 2020; and
34.2Orders 12. 13, 21. 22. 23 and 24 of the Orders dated 23 March 2021.
The wife’s counsel supported the making of orders in the terms recorded in paragraph 34 on the basis that those orders were sought at trial. That is not correct. There was no reference at trial to orders being sought in the precise details as were made in the paragraphs 6, 7, 8, 9, 10, 11, 14, 25 and 26 of the orders made on 28 May 2020. Nor at trial did the wife seek orders in the precise detail as were made in paragraphs 12, 13, 21, 22, 23 and 24 of the orders made on 23 March 2021. Further, the wife submitted that good reason exists to make the order in the revised version of paragraph 34 because the precise form of order in paragraph 34 in its current form is not opposed, it “was the subject of no demurrer” (to use the inappropriately ancient and inaccurate wording of the wife’s counsel) and that the order as presently proposed was not the subject of attention in the 15 July 2022 judgment. I reject that contention. Orders must be just and equitable, whether or not they were the subject of demurrer and whether or not they were opposed.
Counsel for the wife contended that “it would be a curious position if the wife is to be put to the bringing of further applications in the above circumstances.” That contention overlooks the need for finality in litigation. Further, to the extent that any of the orders mentioned in paragraph 35 of the wife’s counsels’ further submissions dated 21 September 2022 were interlocutory, those orders are likely to merge with final orders once final orders are pronounced.
It became necessary for me to examine each paragraph of each order the wife wanted included in paragraph 34.
Paragraph 6 of the 28 May 2020 orders of Rees J contained a restraint on each party from disposing of funds in seven nominated accounts. Paragraph 23 of the order proposed by the wife contemplated payment to the wife of over $26 million in 60 days of the pronouncement of final orders. It seemed readily apparent that the wife fears that in the absence of the restraint imposed pursuant to paragraph 6 of Rees J’s orders, a risk exists of dissipation of assets so as to possibly frustrate the operation of paragraph 23. Having regard to the intense disagreement between the parties there is considerable merit in the wife’s proposal to preserve intact the injunctions ordered by paragraph 6 of Rees J’s orders made 28 May 2020. I make an order largely but not precisely in those terms. When the wife’s counsel engrosses final orders in accordance with these reasons, the order that follows must be given a separate paragraph or sub-paragraph number. The order I now make is as follows –
That other than for the purpose of compliance with these Orders, each party is restrained from removing or transferring any funds from the following accounts:
(a) [D Pty Ltd] Term Deposit account number […11];
(b) [D Pty Ltd] Term Deposit account number […03];
(c) [D Pty Ltd] Cash Reserve Bonus account number […02];
(d) [D Pty Ltd Loan] Account (redraw facility account number not known);
(e) [U Pty Ltd] Business account number […72];
(f) [U Pty Ltd] Cash Reserve account number […86]; and
(g) [U Pty Ltd] Term Deposit account number […78].
Paragraph 7 of the same orders fits into a similar category. I now make an order in similar terms which should appear separately in the final version of these orders. It is as follows –
That the Husband is restrained from doing any act or thing, either directly or indirectly so as to remove the Wife as a signatory or to remove her online viewing access to any and all bank accounts in the name of:
(a) [D Pty Ltd] ACN […];
(b) [U Pty Ltd] ACN […]; and
(c) [Aitken] Pty Ltd ACN […] (“the Companies”)
and for the purposes of giving effect to this order the Husband shall ensure that at all times the wife is provided with all necessary passwords and shall sign all necessary authorities directed to the bankers for
Paragraph 8 of the orders of Rees J made 28 May 2020 related to the husband and wife causing term deposits invested in the names of D Pty Ltd, U Pty Ltd and Aitken Pty Ltd (as defined in my reasons of 15 July 2022) upon maturity to be reinvested as term deposits for a further 12 months. Even recognising that the sale of certain real estate may take many months, in 12 months’ time these orders should be fully performed, at the latest.
The real issue with which the wife seems concerned related to the interval between the date of these final orders and the date on which the husband actually does as he is ordered to do.
The words “subject to orders 1 and 16” are likely to be contentious. In addition, the wife does not press either. There is no utility in including those words, in my view.
The inclusion of the words “unless otherwise agreed in writing or as ordered by the court” should remain so that any contravention in the performance of all obligations under these orders for 12 months may be accommodated to enable the placement of term deposits for one or more periods of less than 12 months.
Paragraph 9 is something of a belt-and-braces provision imposing on each party mutual restraints preventing the sale or transfer of the parties’ shares or adversely dealing with their interests in D Pty Ltd, U Pty Ltd and Aitken Pty Ltd unless each agreed in writing. Paragraph 9 contained no end date during which the restraint will operate. In its present form the restraint is permanent. It should not be. There should be a finite date in the restraint. It is not for me to draft the parties’ orders in order to specify a particular date. However, specifying an end date at which the restraint ceases to operate that coincides with the latest date for events to be completed under these orders or a date agreed by the parties (howsoever unlikely it may be that the parties agree on anything) has a degree of logic to it. To my mind, the date in this paragraph should correspond with the date set out in the immediately preceding paragraphs referrable to paragraph 8 of the orders of Rees J made 28 May 2020.
Proposed paragraph 34 also sought the inclusion of paragraph 10 of the orders of Rees J made 28 May 2020. In that paragraph Rees J ordered the husband to provide to the wife within 14 days of the conclusion of each month an email with a collection of accounts and other financial information for D Pty Ltd, U Pty Ltd and Aitken Pty Ltd for the preceding month. That order was made in the lead up to trial in circumstances where a dispute had emerged about the timeliness in the provision of financial information. As these reason reveal, it is conceivable that a significant amount of time will elapse in the parties complying in full with their obligations under these orders. Insofar as any effluxion of time is referrable to or impacts upon D Pty Ltd, U Pty Ltd and Aitken Pty Ltd, then in the intervening period and for so long as the wife is a director of any of those companies, she is entitled to be provided with the financial information set out in paragraph 10 of the orders of Rees J. Accordingly, in my view it is necessary to add to paragraph 10 “until further order” and to include a date beyond which the obligation to provide financial information does not run. In view of the 12 months referred to in paragraphs 8 and 9, that same period should be specified in paragraph 10.
The form of the order I have in mind to be made for paragraph 10 will be as follows –
[Until further order and for a period not exceeding 12 months from the date of these orders that] the Husband, in his capacity as director of the Companies, ensure that within 14 days of the conclusion of each month the Wife is provided by email with:
(a)the management accounts for the Companies for the preceding month, including but not limited to a copy of all documents relating to:
(i)tax invoices;
(ii)BAS payments;
(iii)GST payments:
(iv)PAYG payments:
(v)superannuation payments:
(vi)wages payments;
(vii)credit card statements;
(viii)the reconciliation receipts for transactions incurred on the credit card statements and any other amounts paid; and
(ix)payments made by [Mr X] to the [Aitken Unit Trust].
(b)the MYOB ledgers, sub-ledgers and MYOB backup-data file and bank files for the preceding month;
(c) the Business Activity Statements as and when they are lodged;
(d) the Income Tax Returns as and when they are lodged; and
(e) the Financial Statements as and when they are prepared.
Paragraph 11 of the orders of Rees J made 28 May 2020 were the subject of the wife’s proposal for incorporation in final orders. That order seemed sensible. It read as follows –
That pending further Order the Husband is restrained from varying or altering any insurance policy of the Companies without the written consent of the Wife.
Consonant with the reasoning in relation to the orders of Rees J made 28 May 2020 in respect of paragraphs 8, 9 and 10 (as detailed above) to my mind a need exists for applicable insurance policies to be maintained until all obligations under these orders are fully performed. Paragraph 11 in the form ordered by Rees J on 28 May 2020 should be replicated in these orders.
Paragraph 12 of the orders of Rees J made 28 May 2020 were said by the wife to be necessary. It made sense to include an order in those terms because such an order ensured stability. That order was as follows –
That the husband, without requiring the consent of the wife, shall pay as they fall due the operating expenses of [D Pty Ltd] in the categories described under the heading “Expenditure” at pages 5 and 6 of the Financial Statements for the year ended 30 June 2019.
So far as paragraph 14 of those orders were concerned, the husband submitted during earlier exchanges that the modest amount of $10,000 calling for his notification to the wife orchestrated hardship to him. Having regard to the magnitude of the operations of D Pty Ltd in 2020, it was not surprising that the husband complained in the way he did about this order. Paragraph 14 in its current form is silent about the consequences of the wife refusing to authorise an expenditure of more than $10,000. In that scenario, whether for good reason or otherwise, if the wife opposed any expenditure of more than $10,000 paragraph 14 said nothing of the circumstances and consequences that applied in that eventuality. Provision should be made for that.
I refuse to make an order in terms of paragraph 25 of Rees J’s orders as sought by the wife. Such an order is absurd in the context of the value of this litigation.
I make an order in terms of paragraph 26 of the orders of Rees J. However, it must be expressed to operate for no longer than any further order or until the time stipulated in paragraph 8, 9 and 10 elapses. The wife’s counsel should formulate that order.
The wife also sought inclusion in these orders of various portions of the orders of Rees J on 23 March 2021.
The wife sought an order for the appointment of the PP Group to be accountants for each of the Aitken Group entities. That was paragraph 12 of the orders made by Rees J on 23 March 2021. In the passages above I have recorded the husband’s opposition to that proposal. However, in the passages above I have also recorded the husband’s preference for the appointment of AO Accounting Group being rejected. As the above reasons record, PP Group has been ordered to undertake certain accountancy tasks. The order in the broad form of paragraph 12 was not warranted. It was as follows –
12.Following the finalisation of the financial accounts and income tax returns of each of the [Aitken Group] entities for the financial year ended 30 June 2020 the parties do all acts and things and sign all documents and writings necessary to jointly engage the [PP Group] to be appointed as the accountants for each of the [Aitken Group] entities.
I decline to make an order in that form. The role of PP Group has already been recorded.
The same comments apply to the wife’s wish to include paragraph 13 of the orders made by Rees J on 23 March 2021. That order was as follows –
13.The parties do all acts and things and sign all documents and writings necessary to ensure that [PP Group] take instructions from both parties and always consult the wife regarding all relevant matters pertaining to the [Aitken Group] entities.
I decline to make an order in those terms.
The wife sought an order in these final orders in the form of paragraph 21 of the orders made by Rees J on 23 March 2021. That order was as follows –
21.It be noted that pursuant to Order 10 made on 28 May 2020, the husband was to provide to the wife various documents including management accounts and that [D Pty Ltd] has now transitioned to Xero and Hubdocs.
I refuse to make that order. Not only has it already been once made but it imposes no obligation on any party. No purpose is served by incorporating it.
Paragraph 22 was an order the wife wanted incorporated in these final orders. It was as follows –
22.The husband forthwith do all acts and things and execute all documents and writings to enable the wife to have 24 hour read access only to Xero and Hubdocs referred to in order 20.
I refuse to make that order. The time for compliance with it is long past. The order required a particular activity to be done “forthwith”, that is to say immediately. If the task was not done, little point is served in imposing the very same obligation on the husband for a second time.
The wife also wanted paragraph 23 of the orders of Rees J made 23 March 2021 included in these final orders. That order was as follows –
23.The husband forthwith comply with Order 10 of the Orders made on 28 May 2020, including provision to the wife of the following documents via the Xero or Hubdocs platforms for the period from 1 September 2020 and until further Order:
(a)the management accounts for the Companies for the preceding month, including but not limited to a copy of all documents relating to:
(i) tax invoices;
(ii) BAS payments;
(iii) GST payments;
(iv) PAYG payments;
(v) superannuation payments;
(vi) wages payments;
(vii) credit card statements;
(viii)the reconciliation of receipts for transactions incurred on the credit card statements and any other amounts paid; and
(ix)payments made by [Mr X] to the [Aitken Unit Trust].
(b)the XERO/MYOB ledgers, sub-ledgers and XERO/MYOB backup data file and bank files for the preceding month;
(c) the Business Activity Statements as and when they are lodged;
(d) the Income Tax returns as and when they are lodged; and
(e) the Financial Statements as and when they are prepared.
As with the immediately preceding orders, paragraph 23 of Rees J’s 23 March 2021 orders was expressed in a temporal context relevant to the date 23 March 2021. By that paragraph Rees J commanded a certain thing to be done immediately. That date has passed. No doubt the reasoning behind requiring the husband to provide the financial information there specified was to enable the wife to better understand various aspects of the group accounts. That financial information was used in determining the s 79 application. I am unable to see the ongoing need for that information to be supplied into the future.
I refuse to make the order sought to reflect paragraph 23 of the orders of Rees J made 23 March 2021.
Paragraph 24 of the orders of Rees J made 23 March 2021 became irrelevant. I decline to make an order in those terms.
Mechanical orders – Paragraphs 35 to 38
Returning to the draft of the final orders proposed by the parties, and focusing away from the orders made by Rees J on 28 May 2020 and 23 March 2021, paragraph 35 was the subject of agreement so I make orders consistent with its terms as follows –
35.That the Husband and the Wife do all acts and things and execute all documents, authorities and writings necessary to give effect to these Orders.
The parties did not dispute the wording of paragraph 36 so I make an order consistent with it as follows –
36.That if either party refuses or neglects to execute any deed or instrument necessary to give effect to this Order then a Registrar of the Federal Circuit and Family Court of Australia, Sydney Registry, be appointed pursuant to section 106A of the Family Law Act, 1975 to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
Previously, paragraph 37 proposed a form of costs order. In my 7 September 2022 reasons at paragraph 91 I said I did not propose to make orders about costs without knowing what application was made. As a result, and without renumbering the sequence of orders, the parties deleted the former paragraph 37. That is appropriate yet the paragraph numbering should regain its sequential character.
The default provision of paragraph 38 was not disputed, in the form set out in paragraph 38. Accordingly, I make the following order –
38.That in the event of any dispute arising regarding compliance with these orders, each of the parties be granted liberty to restore the proceedings on 14 days' notice.
Trustee for sale – Paragraph 39
Colloquially described as “trustee for sale”, an earlier iteration of the proposed orders that formed the basis of my reasons dated 7 September 2022 was the subject of comment in paragraph 93.
The wife has repeated her inclusion of paragraphs 39 to 45. The husband has opposed the inclusion of those paragraphs. In my reasons of 7 September 2022 I observed that the content of those paragraphs were not the subject of debate. Counsel for the wife attempted to reverse the argument by contending that the provisions in those orders were among minutes proposed on 16 March 2022 and that “such relief was the subject of no demurrer by the husband”. To my mind, that argument seemed to be a contention, by other words, that the wife had previously included a request for those orders, in respect of which the husband had said nothing by way of protest, in consequence of which orders in those terms axiomatically follow. That is not so. If put on that basis I wholly reject the proposition. Orders under s 79 of any description must be just and equitable. I am unable to see, at this precise juncture, that orders in terms proposed in paragraphs 39 to 45 are just and equitable. I decline to make them. If the husband does not comply with paragraph 23 of these orders then the wife has her usual remedies.
What next
The wife has already pointed out that it has taken an unusually long time to bring this litigation to a close. Whether or not that is true, her intransigence is partly to blame for that. That said, the parties to this litigation are very far from being exemplars as model litigants.
I order (and this is not a gentle request) that the parties reconfigure the minutes submitted to reflect the orders made herein within seven days by 4:00pm.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 8 November 2022
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