Baney and Baney (No. 2)

[2009] FamCA 690

FAMILY COURT OF AUSTRALIA

BANEY & BANEY (NO. 2) [2009] FamCA 690

FAMILY LAW – INTERIM FINANCIAL – exclusive occupation – sale of plant, stock and equipment – distribution of net proceeds – appointment of trustee 
FAMILY LAW – COSTS – lawyer and own client basis – as agreed or assessed

Family Law Act 1975 (Cth)

APPLICANT: Ms Baney

RESPONDENT: Mr Baney

FILE NUMBER: SYF 2852 of 2004

DATE DELIVERED: 26 June 2009

PLACE DELIVERED: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 26 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P. Batey

SOLICITOR FOR THE APPLICANT: Dhaliwal Solicitors

COUNSEL FOR THE RESPONDENT: Mr G. Foster

SOLICITOR FOR THE RESPONDENT: John Carmody & Co

Orders

1.Orders are made in terms of the handwritten document provided on behalf of the wife marked Exhibit A, as amended and attached hereto.

2.Orders are made in terms of the typed document marked Exhibit B and attached hereto.

3.That the operation of the orders made in terms of Exhibit B is stayed for 14 days from today’s date and provided that the husband has paid to the solicitor for the wife $67,000.00 that stay shall continue pending further order.

4.For the avoidance of doubt the order for exclusive occupancy contained in paragraph 8 of Exhibit B which would be a variation of the orders made by Judicial Registrar Loughnan on 23 August 2006, is to commence forthwith upon the activation of the orders in terms of Exhibit B.

5.That the husband pay to the wife the costs of the wife assessed on a lawyer and own client basis such costs to be the costs of and incidental to the enforcement proceedings concluded today being the work summarised in the schedule of legal costs which is Exhibit C.  Those costs to be as agreed or assessed by a taxing officer and to be paid within 14 days of agreement or assessment and subject to the assessment process in any event not later than 7 days after final effect is given to any settlement of property between the parties.

6.The proceedings commenced by an application that the husband be dealt with for contravention of orders filed 23 June 2009 are adjourned to the Judicial Registrar’s Duty List Call-over at 9:30 am on 11 August 2009.

7.Leave to the parties to vacate that date by agreement in the event that the application is withdrawn or otherwise compromised.

8.Leave to the parties to apply in relation to the orders made today on 48 hours’ notice to each other and to Judicial Registrar Loughnan’s associate.

9.Leave is granted to the parties to inspect documents produced on subpoena by the Commonwealth Bank, CBA and American Express.

10.The proceedings are stood over in relation to subpoenas addressed to the husband, to his solicitors and ANZ Bank to 10:30 am on 7 July 2009 AND the Court requested that the solicitor for the wife notify the addressees as soon as practicable of the adjourned date AND it is noted that it will be contended on that date that those subpoenas have not been fully complied with.

[BANEY & BANEY] SYF 2852/04—EXHIBIT  “A”

1)   That the Wife forthwith be appointed as trustee for [D] Pty Ltd as trustee of The [Baney] Family Settlement in the management of the property situate at [G Road, L].

2)   That pursuant to Order 1 the Wife be and is hereby authorised to collect all rental from the property [G Road] as and from the date of these Orders.

3)   That the Wife cause the rental so collected pursuant to Orders 1 and 2 to be deposited into the account [D] Pty Ltd with the ANZ BSB […] A/C No […]- “The [D Pty Ltd] Account”.

4)   That on and from the date of these Orders the requirement for the parties to jointly sign all cheques on the [D Pty Ltd] Account be discharged and the Wife be the sole signatory to the [D Pty Ltd] Account.

5)   That the Wife be entitled to withdraw for her own purpose a monthly sum equal to 60% of the gross rent received pursuant to Order 2 commencing July 2009.

6)   That from the balance remaining the wife ensure the GST payable in respect of the rental received pursuant to Order 2 remain in the account pending payment to the A.T.O of GST on the rental.

7)   That the Wife pay from the balance remaining any rates taxes, insurance and any necessary repairs deemed by her as the responsibility of the Lessor for the property [G Road, L].

8)   From the balance remaining the Wife be entitled to payment of any amount due to her by way of arrears of rental to April 2009 calculated at $21,082.82

a)60% of rental for [G Road property]  from and including May to June 2009

b)Any outstanding costs orders made against the Husband in these proceedings, not already paid.

[BANEY & BANEY] SYF 2852/04—EXHIBIT  “B”

1.That the parties forthwith do all things and sign all documents to cause to be sold, in accordance with Orders 2 – 5 herein the l, plant stock and equipment situate at the property “[D Farm]”.

2.That for the purpose of Order 1 the wife be and is hereby appointed as trustee for the husband, and is hereby authorised to do all things , sign all documents and give all necessary authorisations to facilitate the advertising, inspection and sale provided for in Order 1 on behalf of both the husband and the wife

3.That for the purpose of Order 1 the wife be authorised to appoint […] Real Estate [L] to carry out the sale of the plant stock and equipment situate at [D Farm] property in accordance with these Orders.

4.That upon sale of the plant stock and equipment, the net sale proceeds after the deduction of reasonable selling costs be applied in the following priority:

4.1In payment to the wife of any outstanding payment to the wife in accordance with Order 6 made on the 11 June 2009

4.2In payment to the wife of a sum of $67,000 if such sum has not already been paid pursuant to Orders of 20 May 2009

4.3In payment to the wife of any costs Orders made by this honourable court.

4.4The balance to be paid to a controlled money account in the name of the parties pending final property settlement Orders or further order of the court.

5.That for the purpose of sale the Wife is given exclusive occupancy of the property, including all improvements thereon, and unfettered access to all stock plant and equipment. And the Husband is restrained from entering or approaching within 100 meters of the property from the date of these Orders.

6.That within 28 days of the date of sale of all or part of the stock plant and equipment situate at [D Farm], the wife is to provide to the solicitors of the husband a full accounting of all receipts, expenses commissions and charges in respect of the sale of each of the stock plant equipment and real estate.

7.That the Husband be and is hereby restrained from doing anything or engaging in any act or causing any other person to do anything to prevent, impede or frustrate these Orders.

8.That the Husband pay the wife’s costs of and incidental to these Orders on an indemnity basis.

IT IS NOTED that publication of this judgment under the pseudonym Baney & Baney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2852 of 2004

MS BANEY

Applicant

And

MR BANEY

Respondent

REASONS FOR JUDGMENT

1.These are interim financial proceedings. A number of applications are before the Court.  There was a slip rule application in relation to a paragraph of an order made on 20 May 2009; an application by the wife for an order for indemnity costs; an application in a case on behalf of the wife seeking certain orders by way of enforcement; and a contravention application.

2.The brief background has the husband born in 1950 and the wife in 1949.  The parties started to live together in 1984.  They were married in May 1985. They separated for five months, I think, from January 2003 and then finally separated on 5 January 2004.  They have two adult children:  a son and a daughter.  Sadly, the parties’ son is incarcerated at a correctional facility serving a five year prison sentence. The daughter resides with the wife, I think still in the former matrimonial home in Sydney’s suburbs.

3.Following separation, the husband lived in rented premises at E and then in February 2005 he bought a property at E.  D Proprietary Limited also referred to in the papers as DD Proprietary Limited is the trustee for the family trust and superannuation funds.  The husband is the sole director and secretary.  The parties hold one ordinary share each.  In 1999 D Pty Ltd bought a property at G Road, L and the service business operated from that property. 

4.The service business is leased to N and L S who pay a monthly rental, of about $9,800-odd, to the managing agents. The managing agents account to D Pty Ltd for the rental. 

5.These proceedings commenced in 2004. In May of 2005 the parties obtained interim orders, by consent, whereby each transferred to the other a property at L on the basis that each refinanced the property they received. 

6.The wife says that in June 2005 the husband proposed and the wife agreed to her borrowing $185,000 from the ANZ Bank to pay out a company tax debt and a mortgage debt on the business. The plan was that thereafter she would received payments from the business lease, by way of income.  The wife borrowed $185,000 and she rented out Lot 4, L, which was the Lot that she received under the May agreement.  The wife applied the rental on that property to service the debt to the ANZ Bank. There was a shortfall, and it is the wife's evidence that she never did receive the net lease payments. For reasons that I will come to, that is a continuing problem.

7.The wife sold the property at Lot 4, L in 2006. She paid out the ANZ loan, which was then at $180,000; paid some other things, including some legal fees to her then family lawyers; repaid a personal loan; and she used the rest in living costs for her household. 

8.It is the wife's contention in the case that prior to separation she managed the day to day running of a property called the D Farm, and that she worked at T Company, which has been the main business of the family.  In 2004, she obtained some contract work with the local Shire Council in relation to a show or attraction down there.  She obtained another contract in February 2005 and worked until October. In fact she continued on a voluntary basis, until December 2005.

9.The parties could not agree on who would live at the D Farm and the wife filed an application. I made some orders on 23 August 2006 providing for a shared care arrangement whereby the wife would have the use of the farm on some days of the week and the husband, the rest of the time. There were conditions about which rooms the parties occupied and, again, rather familiarly the husband was to provide a key to the wife.

10.Then we come forward to September 2008 and the wife’s application seeking interim spousal maintenance and interim costs.  The husband says, just in the sequence of things, that around that time he was told that some of the cattle on the farm contracted a giardia infection.  And he says, and the wife disputes - that he had informed the wife of that infection, and that the infected cattle should not be mixed with clean stock.

11.Judicial Registrar Johnston made some orders on 22 October 2008 after a contested hearing. The parties were ordered to do everything as officers of D Proprietary Limited to cause that company to pay to the wife by way of dividend the equivalent of 60 per cent of the rent paid on the two leases for the business operated at the G Road property. That was to be done seven days after the rent was received by the company. It was also ordered that within 60 days the husband was to cause $80,000 to be paid into the trust account of the wife's solicitors for interim costs. There were also orders about discovery. 

12.On 17 November 2008 the husband's solicitor advised the wife's solicitor in writing that a review application would be filed.  On 17 November the husband's solicitors wrote to the wife's solicitors and said:

We're attempting to obtain some instructions to put an offer to your client.  Our client returns today from an overseas business trip.  We will get his instructions and we will hold instructions to file that review application.

13.And a letter went back the same day from the wife's solicitors:

Thanks very much.  Why don’t you comply with the order?

14.I am summarising the letter. 

15.On 19 November 2008 the husband filed the review application. On 9 December, the husband's solicitors wrote to the wife's solicitors:

We are instructed that our respective clients have agreed to the  following - - -

16.The letter went on to set out a proposal.  The husband was going to buy a motor vehicle at a purchase price of $25,000 for the wife, and to pay $11,000 off a credit card.  The parties had agreed to vacate the orders of 22 October 2008, and the $80,000 interim costs payment was going to be funded by a loan secured on the service business. 

17.It is clear from a letter of 23 December 2008 from the wife's solicitors, that there was no agreement to the husband’s proposals. That letter noted that the 60 days for the payment of $80,000 expired the day before.

18.There were ongoing protestations on behalf of the husband in relation to his purchase of “a $25,000 car."  The wife's solicitors wrote back, and among other things, said, "In fact, you didn't outlay $25,000 for a car,". It transpires that $20,500 was paid for a car and there was subsequently a sale of the wife's previous motor vehicle, leaving a net outlay of $8500.

19.The letters continued. On 13 January 2009 the wife's solicitor wrote to the effect: "You still haven't complied with the orders. We're going to commence enforcement proceedings, we're going to be seeking costs on an indemnity basis." 

20.The wife says that on 14 January the husband had phoned her and said he would pay her nothing.  The parties had an informal settlement conference on 23 January.  Various payments were made between 22 October and 25 March, he said, totalling $11,439.  The wife says that she tried to sell the cattle because she was without funds and had literally nowhere else to turn and she said that she knew that the husband had sold stock from the farm two weeks earlier, and that she has no notice of the problems in relation to quarantine. 

21.Then on 30 January 2009, and this is the first reference I have seen to the argument, a letter from the husband’s solicitor contained:

As to your client's suggestion our client is in breach of order number 1.

22.That is about the percentage of the lease payments. 

As advised to you on numerous occasions the company [D] does not own the [B Service Business] so our client is not able to cause it to pay a dividend to your client as required by the terms of the order. 

23.On 28 January 2009 the husband discontinued the review proceedings.  He had received approval from a bank to fund the $80,000 payment by a mortgage over the service business.  Then it was discovered that someone had lodged a caveat over the property.  Again, there was a letter from the husband's solicitors on 6 March 2009 saying that order number 1 on 22 October 2008 was unenforceable. At some point the wife sought the issue of a Third Party Debt Notice. On 12 March 2009 the husband's solicitor requested a copy of the notice and that was provided. 

24.On 12 March 2009 the husband says that he was informed by vet that the cattle at the property were still infected.  On 17 March 2009 the husband's solicitor obtained copies of the evidence in support of the Third Party Debt Notices. On 17 March 2009, the husband found out that the wife had removed cattle from the property to sell them at market; that there had been a mixture of the infected cattle with other stock; and a solicitor’s letter went between the parties in relation to that issue. 

25.On 18 March 2009, the husband's solicitor wrote to the wife's solicitor saying the husband had returned the cattle to the property and secured the property.  Then an application was filed in relation to access to the property.  The husband lodged a lapsing notice in relation to the caveat. 

26.The wife went to the farm on 24 March 2009, there were chains on the front gate and she did not have a key to the lock. On 1 April 2009 I made some orders and the matter was adjourned. I think the orders were substantially in terms agreed between the parties. Two payments of $5000 were to be made by the husband, on 3 April and 1 May. 

27.On 13 May the husband referred a bill from the Office of State Revenue to the wife in respect of half of the land tax debt of a company called O Proprietary Limited. 

28.The wife said she had to borrow money from her father on 15 May. The matter came before me again on 20 May 2009.  I made a raft of orders. Some of them were agreed between the parties.  The first of the orders sought to remedy or give affect to the orders made on 22 October 2008 by requiring the husband to give all necessary directions to the tenant and managing agent of the service business to cause the rental to be paid into certain account, then to cause certain outgoings to be paid and the balance to be paid to the wife.

29.I granted injunctions in relation to the husband, some by consent and I noted that I left in place the order of 2006 in relation to the D Farm. My recollection is that the wife had said she had casual employment with the local Shire Council but there was no evidence of when that was to be. The wife’s response to the husband's proposal was ultimately, "We prefer the orders as they are rather than have any change."  And on that basis I left the orders as they were. 

30.The wife raised ongoing problems in relation to her access to the farm, representing that there were locks on the farm that she could not open. The husband represented that all the locks on the property were keyed alike, and that the wife had the key. On 11 June 2009 I made some orders which included putting the matter over to today, restraining the husband from taking any steps, whether by instructions to the relevant managing agent or otherwise, inconsistent with complete compliance with the spirit of the orders made that day. I gave the wife permission to go to the farm and to commission a locksmith to change any lock to which she did not have access and to have them keyed alike with the key she had and to provide any relevant additional key to the husband. I ordered that the husband pay to the solicitor for the wife $7000 within seven days. 

31.That last order came about on the basis that there was an $80,000 debt for interim costs ordered on 22 October 2008 and payable around 22 December 2008. That amount had not been paid.  The third party debt notices had generated about $12,000, so there was about $67,000 yet to be paid. The parties had reached a default arrangement to borrow $67,000. Somehow the loan was only sought at to $60,000. Thus there would be a shortfall of about $7,000. In the course of the hearing on 7 June 2009, it was put on behalf of the husband that he would make up the shortfall of $7000. After canvassing the matter with the parties I took up that part of the husband’s plan and ordered that the husband pay that $7000 to the wife's solicitors.

32.I suggested on 7 June that if the husband wanted, he could raise $7000 on a credit card. In response to that I was told that his credit cards were at the maximum. Learned counsel for the wife pointed out that the husband's current Financial Statement said that he had no credit card debt.

33.The orders of 22 October 2008 in relation to the payment of $80,000 and in relation to the payment of 60 per cent of the lease payments on the service business to the wife, have not been complied with. In his reasons on 22 October 2008, Judicial Registrar Johnston recorded that he understood that there was something like $6 million in net assets in the pool. There are gaps in the evidence from the husband.  The only evidence we have about an endeavour the husband made to cause compliance with an order made on 22 October 2008 in relation to borrowing $80,000 was a letter sent on 9 December, so two weeks before the deadline, to say that he thought he could borrow some money from a bank.  There is no evidence about anything he did on 23 October, 24 October, 25 October or at any time in November 2008. There was nothing in the orders of 22 October that said that the husband was required to borrow the money.

34.The husband's case is that the order relating to 60 per cent of the lease payments on the G Road service business is an ineffective order.  He did not raise that with anybody as far as we know until a reference to such a problem in December 2008.  So, again, we have October and November 2008 with no action despite a clear intention on the face of the orders. Even today, orders not terribly different in style and in intent are proposed on behalf of the husband. 

35.I take it then that the husband came to think that the problem was a machinery one in terms of the drawing of the orders.  Parties have obligations and lawyers have obligations. There is a provision called a slip rule which has expression in the Family Law Rules, but it is a broader provision than that which says that where a party comes to think that the intent of an order has miscarried on its drafting, then that can be brought back to the judicial officer involved and the order can be rectified.  It is done every day.

36.That was not done. In all of the correspondence in December January there is nothing of the nature of the proposal made on behalf of the husband today, which is quite a simple device which purports to address compliance with the orders. 

37.I made an order on 11 June, that the husband pay $7000 to the wife within seven days.  There is an application for a review of that order.  It does not seek a stay of an order. A party who is the subject of an order is required to do everything he or she can to comply with the order. If they do not like the order they can apply to have it varied or set aside. In the case of an order made by a delegate, they can seek a review of the decision, and they can ask for a stay. Here no stay was sought and there is not a scrap of evidence that the husband did anything from the date I made that order, to try and comply with it.

38.And his obligation is to do everything practicable to comply. With a money order, he was not required to rob a bank, all he had to do is take all steps within his power to cause compliance.  And the inference one draws when no evidence is offered, is that nothing has been done. 

39.The wife seeks her costs. The wife says "The orders have not been complied with and I have been back at Court on umpteen occasions to try and achieve compliance." Shorn of all excrescences, those are the facts of this case. The only extraneous matter that has been raised between October and now is the thing I dealt with in 2006 in relation to the use of the farm. In that regard the husband's application was unsuccessful.

40.This is a meritorious costs application.  It is not for the husband to say, "I've paid other things, like $116 for a Foxtel bill". It is nice and simple. He complies with the order or he compromises something with the wife, or he has the obligation varied. They are the things he has to do, and they cover all situations. The husband has not been successful.  He has asserted at times through correspondence that the wife was content with some other arrangement, but she quickly responded to the contrary.

41.As I said during the course of submissions, the husband’s conduct has the flavour of a ‘meat tray’ mentality.  There is a type of individual that prefers to provide support, not in a grown up way, but in terms of food parcels or whatever. It is a symptom of controlling and manipulative behaviour. Stepping back from it, the broader concern here is that the parties have proceedings before a Superior Court. Presumably, the wife is being asked, or has been asked to consider settlement proposals. She is trying to prepare for a final hearing and the husband's conduct has had the effect of keeping her on short rations, making it difficult for her to prepare. 

42.This is not a case where he says, "My wife could be running her own Bob J T-Mart somewhere," or, "she could just go back to being the managing director of BHP". He agrees that he has always provided her support. Indeed, from 2004 or 2005 the parties agreed that a neat mechanism for that support would be the income that was received from the service business. And order was made in October last year for a fund to address the wife's costs. The review of that order was discontinued. Therefore both parties are obliged to cause the payment to happen and it has not happened.  

43.Well, I do not accept that it has not been possible.  I do not accept that it was not within the husband's capacity to cause substantial compliance with the orders of 22 October in relation to the recurrent amount, or to satisfy the wife in relation to it, or to bring a credible case to have the order varied.  I do not believe it. There is also the fact albeit not relevant to the costs application, of  the dreadful waste of the community resources in relation to the matter.

44.So we come to the proposals to deal with that and the consequences of the wife's legal fees until now. The wife calculates her fees on an indemnity basis at $39,073.75. The argument on behalf of the husband is that those costs were incurred over a period that commences prior to the application made in March 2009. Indeed they do but the issue of as to costs ‘of and incidental to’, proceedings. From the chronology that the wife's solicitors prepared, that is very clearly the case here. The wife was seeking to deal with the consequences of non compliance with the orders.

45.The husband says there should not be an order for costs because "I've done all I can, I've been substantially successful on occasions.  The wife has been unsuccessful on other occasions." I do not accept that submission for the reasons that I have given. 

46.And finally, it is said, if there is to be costs then it should not be on an indemnity basis because the authorities are not met, and because there is a provision of the Rules that says if you are going to seek indemnity costs you have to advise the other party and the Court that there is a costs agreement and provide the details of the costs agreement. Finally, the husband does not accept the estimated quantum.

47.As I said, during the course of submissions, this is not all duck or no dinner.  Costs represent an indemnity. A party and party costs order is a partial indemnity and there are other bases for assessing costs. Costs can be assessed on a common fund basis, on a trustee basis, on a lawyer and own client basis or by way of a full indemnity.  The difference between lawyer and own client and full indemnity is a matter of onus.

48.Generally parties bear their own costs.  The matters the Court takes into account in relation to costs include their financial circumstances.  I have said what I have said about that.  The husband is in control of the patrimony of the parties, to use that word out of Poletti from Nygh J. He has control of the income of the family, he has control of most of the assets of the family.  There is no Legal Aid.  I am told there are no written offers of settlement.  I do not think that is strictly true.  You could describe some of the representations made in the correspondence as trying to resolve some of the issues that are before the Court today. It could not be said that the husband has put a proposal which was likely to find favour with the Court or with the wife today, or one that was similar to the outcome of the proceedings today.

49.As to whether either party was wholly unsuccessful in the proceedings, it is probably too complicated for that.  Certainly, it is fair to say that the wife to date has been wholly unsuccessful, if you measure success as having compliance with effective orders.

50.Whether there has been a breach of Court orders.  There has been a breach of orders.  The orders of 22 October 2008 in relation to raising a fund of $80,000 were not met. There has not been substantial compliance with the orders in relation to recurrent support. 

51.As to the conduct of the parties.  The husband has not acted in timely way in seeking to impugn the orders of 22 October. He is a bit of a risk taker. He was served with an application that he be dealt with for contravention today, an application which on its face says if you do not come, you will be arrested.  I have an affidavit of personal service on him, and he is not here. His excuse was to be that the wife of his partner in business is not well, and therefore the husband was required at work. I was not asked to do anything about that today and was asked to put that application over. Nevertheless, that was a risky strategy.  He should not take a risk like that in the future.  If you receive a document which is in effect a conditional ex parte arrest warrant, then you should do something about it.

52.I am going to make orders substantially as sought by the wife today. It seems to me that the wife should not be out of pocket in relation to her costs over the period for which costs are sought by her. The husband has a right to be heard about the quantum of costs. Unfortunately, that is likely to condemn the parties to further litigation, but I cannot fix that. There is an estimate given.  I am told that the husband has not seen the wife’s costs agreements. He is entitled to get some advice about that. He is faced with a time costed schedule without any numbers attached to it and a summary of the total number of hours spent. The husband is entitled to see a bill in taxable form. He might ultimately be advised that this is a proper estimate, but there we are. 

53.Now, in relation to the substantive orders, I asked Mr Batey to prepare a set of orders that he thought would be effective in addressing his client's entitlements under the October orders and the consequences, and he has prepared something which would have the wife appointed as trustee for the company. She would be responsible for authorising and causing payments out and to retain money to address the obligations of the original orders, and to address outstanding obligations such as obligations in relation to costs. In addition she seeks that the parties sell all the personalty at the farm, and that she be appointed trustee to do that for them; that she make certain payments including a payment to herself of the $7000 that was to be paid seven days after 11 June to the extent that it has not already been paid; the $67,000 - there might be a double counting of $7000 there – and the $67,000 that has not been paid out of the original obligation of $80,000. She would retain a sum accounting for any outstanding costs owed to the wife and would preserve the balance. For the purposes of the sale, the wife seeks exclusive occupancy of the property; the husband would be restrained from entering and the wife would account to the solicitors for the husband for the sale and so on. 

54.It is the husband’s proposal that, "We fix all this by a simple device, that by the close of business on 3 July, the parties do all things to cause [O Pty Ltd] to pay the wife $4000, and $3000 from [D Pty Ltd]."  And then that the parties do all things to provide the managing agent with a joint authority to cause 60 per cent of the gross rentals received by the property less agent's commission and GST, and that that authority would be an irrevocable authority, without their joint signature or a Court order.  He says that would address a number of orders that I have made on previous dates.  He seeks that the wife's applications to be appointed as trustee for various purposes to be stood over on seven days notice and the same for the contravention application.  That ignores the $67,000 or the $60,000 but I think the husband's case would be, he thinks, all impediments to that have been removed to the planned borrowing of $60,000. Mr Batey for the wife is not sanguine about that, he thinks that the wife’s litigation lender may well prevent the proposed borrowing due to the caveat.

55.The response of the wife to the husband's proposal is to the effect that the husband agreed to similar orders in the past and yet he has done nothing to comply with the orders or has not substantially complied with the orders. Thus it is argued that I cannot trust him.  

56.Earlier today, I asked Mr Foster, the husband’s counsel, whether his client was mentally ill. It beggars belief that he could get himself into such a pickle. The parties are people of means and obvious intelligence. Here the obligations fall to the husband because he is the one with carriage of the parties' affairs, and he has not been able to meet those obligations. One would want to avoid making draconian orders, and I will try and avoid that here too, but it would be a triumph of hope over experience just trust the husband to belatedly meet his obligations.

57.What I will do, because I suspect that this is going to matter more to the husband than anything else, I am going to stay the operation of the suite of orders that Mr Batey has proposed in relation to the personalty on the farm, to a date. If by that date the husband has, in fact, caused the wife to receive $67,000, then these orders will not be carried into effect. If not those orders will automatically be carried into effect.

I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  28 July 2009