Barrett & Winnie
[2021] FamCA 625
•26 August 2021
FAMILY COURT OF AUSTRALIA
Barrett & Winnie [2021] FamCA 625
File number(s): BRC 13257 of 2007 Judgment of: KENT J Date of judgment: 26 August 2021 Catchwords: FAMILY LAW – PROPERTY – JUSTICE AND EQUITY – Whether it is just and equitable to make property adjustment orders – Where the applicant contends that property has been dealt with by ante-nuptial or post-nuptial settlements made in relation to the marriage within the meaning of s 85A of the Family Law Act 1975 (Cth) – Where the parties separated almost 16 years ago – Where there has been extensive involvement and contributions made by third parties over a very lengthy period subsequent to the subject marriage – Where the applicant has made no contribution of any significance to the property of the trusts – Where the applicant already holds approximately 95 per cent of the value of the property interests held by the parties. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 85A, 106B Cases cited: Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337; [1981] HCA 1
Bell Lawyers Pty Ltd v Pentelow (2019) 372 ALR 555; [2019] HCA 29
Browne v Dunn (1893) 6 R 67
Burnett v Burnett [1936] P 1
[REDACTED]
[REDACTED]
[REDACTED]
Hargreaves v Hargreaves [1926] P 42
Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56
Mallard & Mallard [2011] FamCA 876
Mayne & Mayne (2011) FLC 93-479; [2011] FamCAFC 192
Meller v Meller (1967) 10 FLR 12
Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195
Prinsep v Prinsep [1929] P 225
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Rollings & Rollings [2009] FamCAFC 87
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Smith v Smith [1970] 1 WLR 155
Stephens & Stephens & Anor (Enforcement) (2009)
FLC 93-425; [2009] FamCAFC 240Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Turnbull and Turnbull (1991) FLC 92-258; [1990] FamCA 157
Young v Young (No 1) [1962] P 27
[REDACTED]
Woodcock v Woodcock (1997) FLC 92-739; [1997] FamCA 5
Woodland and Todd (2005) FLC 93-217; [2005] FamCA 161
Justice Peter Nygh, Section 85A: Is it of much use? (1986) 1 AJFL 10
Number of paragraphs: 280 Date of hearing: 22-26 March 2021; 14 May 2021 Place: Brisbane Solicitor for the Applicant: Morrow Petersen Solicitors Counsel for the Respondents: Mr Hackett Solicitor for the Respondents: Tubaro Lawyers ORDERS
BRC 13257 of 2007 BETWEEN: MR BARRETT
Applicant
AND: MS WINNIE
First Respondent
MR WINNIE
Second Respondent
B PTY LTD
Third Respondent
MS C WINNIE
Fourth RespondentE PTY LTD PTY LTD
Fifth RespondentD PTY LTD PTY LTD
Sixth Respondent
ORDER MADE BY:
KENT J
DATE OF ORDER:
26 AUGUST 2021
THE COURT ORDERS THAT:
1.Save for the admission into evidence the Westpac documents and the documents concerning the applicant’s superannuation interests, each annexed to the affidavit of Mr H filed in support of the Application in a Case filed on 22 April 2021, that application is otherwise dismissed.
2.The Further Amended Application for Final Orders filed on 18 March 2010 be dismissed.
3.Any party seeking any order with respect to costs of the proceedings is to file and serve an Application in a Case in accordance with rule 19.08(2)(b) of the Family Law Rules 2004 (Cth).
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barrett & Winnie has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KENT J:
Mr Barrett (“the applicant”) and Ms Winnie (now Wells) (“the first respondent”) finally separated as long ago as 6 October 2005, now almost 16 years past. Having married in 1991 they divorced on 23 December 2006.
In April 2007, at the applicant’s instigation and insistence that he receive the whole of the title to the residential property at F Street, Suburb G by way of property settlement, the applicant and the first respondent entered into an informal (and thus non-binding) property settlement involving that transfer. As a result the applicant has had the exclusive occupation of the F Street property ever since, and continues to live there with his now wife and 12 year old daughter of that marriage. The F Street property has an agreed value for the purpose of these proceedings of $725,000, subject to mortgage.
On 19 November 2007 the applicant commenced these proceedings against the first respondent for property adjustment orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). It appears from the evidence of the applicant that he was prompted to bring proceedings by learning of a substantial profit being achieved by B Pty Ltd, the third respondent (“B Pty Ltd”), upon the sale of a commercial property in M town known as the N Centre, as will be further discussed.
The second to sixth respondents have been joined as parties to the proceedings on the applicant’s contention that property held by one or other of those respondents, or in which they have an interest, ought form part of the property to be dealt with by orders in these proceedings. In summary and paraphrased form, the applicant contends that the Court should make property settlement orders with respect to property dealt with by what are to be characterised as
ante-nuptial or post-nuptial settlements, in the form of discretionary trusts, made in relation to the marriage within the meaning of s 85A of the Act. Further or alternatively, that such orders (and associated orders pursuant to s 106B of the Act) may be made consistent with principles expressed by the High Court in Kennon v Spry.[1]
[1] (2008) 238 CLR 366 (“Kennon v Spry”).
In my judgment, for the reasons which follow, taking into account the relevant matters referred to in s 79(4) of the Act (as required by s 85A(2)) and the just and equitable requirement in s 79(2) and s 85A(1), even if any or all of the discretionary trusts to be discussed can be characterised as “settlements” within the meaning of s 85A, it would not be just and equitable to make the orders sought by the applicant. The confluence between the sheer length of time since final separation which occurred in October 2005, and the respective contributions of each of the first respondent herself; each of her now adult children, Mr Winnie (“the second respondent”) and Ms C Winnie (“the fourth respondent”), and the first respondent’s now husband, Mr K over that substantial period, renders the conclusion that it would not be just and equitable, nor appropriate, for property adjustment orders to now be made even if the applicant could establish that any property of the second to sixth respondents is amenable to orders. As will also be further explained, I am not satisfied, in any event, that the applicant establishes the case that any property interests of the second to sixth respondents are amenable to the orders sought by the applicant.
Dramatis Personae
The first respondent has three now adult children from a previous relationship, Mr Winnie, Ms C Winnie and Mr O. Mr Winnie and Ms C Winnie are both joined to this proceeding and are the second and fourth respondents respectively. That is primarily due to the roles that Mr Winnie and Ms C Winnie hold in the various entities associated with the first respondent also joined to this proceeding.
The first of those entities, B Pty Ltd, is the third respondent. Each of the first respondent, Mr Winnie and Ms C Winnie are executives. The first respondent and Mr Winnie are the only shareholders and each holds one share beneficially. B Pty Ltd is the trustee company for the Winnie Family Trust.
The second entity, E Pty Ltd Pty Ltd, is the fifth respondent (“E Pty Ltd”). It is now deregistered. Prior to being deregistered, Mr Winnie and Ms C Winnie were executives and E Pty Ltd was the corporate trustee of the P Family Trust, having replaced the first respondent by Deed dated 8 January 1996.
In relation to these entities and the sixth respondent, counsel for the respondents appeared for all of the named respondents save and except for the fifth respondent which is now deregistered. For the assistance of the Court counsel for the respondents provided a Dramatis Personae in respect of the parties and entities involved.
I am satisfied that the Dramatis Personae provided is accurately sourced to the evidence in this case. I incorporate it (as per the original) in these reasons for judgment as part of my findings and for convenience that appears as “Schedule A” to these reasons for judgment.
The only qualification upon that document which was raised by counsel for the respondents during final submissions concerns the definition of beneficiary within the Trust Deed governing the Winnie Family Trust. As counsel for the respondents pointed out the definition of beneficiary is extremely broad and does not in fact exclude, as counsel originally understood, the second respondent, Mr Winnie as a beneficiary.[2]
[2] Transcript 25 March 2021, p.392 lines 13–21.
I interpolate here that it was in this context that counsel for the respondents also pointed out in submissions, by reference to the Trust Deed for the Winnie Family Trust, governing the appointment and removal of trustee, that the power cannot be exercised by the appointor in their own favour.[3]
[3] Transcript 25 March 2021, p.393 line 44 to p.394 line 2.
On the first day of trial the Court was provided with a Proposed Minute of Order as to the orders sought by the applicant. For ease of reference it is convenient that this document be admitted and marked Exhibit 41.
The “Applicant’s Revised Summary of Argument for Final Hearing Commencing on 22 March 2021” was filed on 22 March 2021, the first day of trial. Counsel for the respondents helpfully prepared, in response to that document, a detailed schedule setting out the factual inaccuracies contained in the applicant’s document or matters asserted in the applicant’s document which were not supported by the evidence. Having reviewed both documents I accept the substance of the submissions made by the respondent’s counsel as contained in counsel’s schedule subject only to any express finding to contrary effect in these reasons.
Without unnecessarily repeating all of that discussion it is convenient for reference purposes that the schedule prepared by counsel for the respondents detailing the inaccuracies be admitted and marked Exhibit 42.
Relationship history
The applicant was born in 1959 and is currently 62 years of age. He is a qualified professional, although presently works as a technician.
The first respondent was born in 1951 and is currently 70 years of age. She is an executive. The first respondent holds degrees in science and humanities and has worked as a health professional, educator and professional and since about 2000 as an executive and consultant.
The parties commenced cohabitation in either 1989 on the applicant’s case[4] or 1990 on the first respondent’s case.[5]
[4] Affidavit of the applicant filed on 26 October 2018, paragraph 3.
[5] The first respondent’s Case Outline filed on 5 March 2021, page 2; affidavit of the first respondent filed on 28 January 2021, paragraphs 7, 8 and 9.
The applicant describes the period of cohabitation as being “in excess of 16 years”.[6] That would seem to overstate things somewhat. By his own account the applicant initially spent significant periods working overseas in South East Asia and in the Pacific subsequent to cohabitation first commencing and it is not in issue that in the latter part of the period prior to final separation the applicant was working in Sydney. Moreover, the first respondent provides evidence, which I accept, of regular volatility in the relationship leading to various periods of separation. Indeed on one of these occasions, in early 1992, the applicant formed the view that the relationship was over but she records a subsequent reconciliation.
[6] Affidavit of the applicant filed on 18 November 2020, paragraph 24.
One striking example given by the first respondent as to the volatility in, and tenuous nature of, the relationship even from early stages is her evidence as to her purchase of the property known as Q Street, Suburb R from her sister in February 1990, that purchase being placed in both names of the applicant and the first respondent, but her subsequent refinancing of that property into her sole name only about six months after its purchase.[7]
[7] Affidavit of the first respondent filed on 28 January 2021, paragraphs 11–14 and Annexure “[…]W2”.
As already noted the first respondent has three children from her previous marriage, namely Mr Winnie born in 1978; Ms C Winnie born in 1980; and Mr O born in 1984. There were parenting proceedings in this Court in relation to parenting arrangements for those children, the effect of which was, it appears, that the children spent time between both parents’ households.
The relationship between the applicant and the first respondent produced one child, Ms I, born in 1995 and who is thus now 26 years of age. Notably, Ms I was only 10 years of age when the parties finally separated in 2005. Final parenting orders made by consent on 13 July 2007 reflect that for a period of about two years subsequent to separation Ms I primarily lived with the first respondent but occasionally stayed with the applicant for short periods.[8]
[8] See, for example, affidavit of the applicant filed on 18 November 2020, paragraph 16.
However, there would appear to be no issue that from 2007 when Ms I was only about 12 years of age the first respondent thereafter undertook a sole parenting role with respect to Ms I. Moreover, from then the whole of Ms I’s financial needs were met by the first respondent albeit that the applicant may have made some relatively minor contribution for a limited period to private school fees for Ms I. Other than that Ms I’s financial support fell entirely to the first respondent as did the discharge of parenting responsibility and her upbringing from when Ms I was 12 years of age.
The first respondent married Mr K in 2007, shortly following her divorce from the applicant in these proceedings. There are no children of that relationship.
The applicant also remarried and has another child from that marriage aged approximately 12 years.
History of litigation
As already noted, the applicant commenced these property proceedings by an Application for Final Orders filed on 19 November 2007. At that stage the application named only the first respondent as a respondent to it. It was on 28 April 2008 that the applicant filed an Amended Application for Final Orders joining Mr Winnie and B Pty Ltd as trustee for the Winnie Family Trust as the second and third respondents, respectively, to these proceedings. The other respondents were subsequently joined.
I do not propose to set out in detail the tortured path this litigation has taken since its commencement. Some of that history, but not all of it, is set out in the reasons for judgment I delivered at an interlocutory stage of these proceedings on 21 September 2018, including reference to my own contribution to delay via administrative error concerning the delivery of those reasons, and reasons I delivered on 26 November 2020.
However, in circumstances where it appears to be one of the applicant’s contentions that it is largely conduct of the respondents that is responsible for the extraordinary delay that has attended these proceedings, relevant to the just and equitable consideration of property adjustment orders now being made, it is necessary to record some observations about the applicant’s conduct of this litigation.
Orders made by consent on 8 September 2008 required the applicant to file and serve Further and Better Particulars relevant to his Amended Application for Final Orders filed on 28 April 2008 by 8 December 2008. That did not occur and time for compliance was extended a number of times, namely:
(a)Orders made by consent on 12 December 2008 extended time for compliance to 5 February 2009;
(b)Orders made on 5 February 2009 extended time for compliance to 26 March 2009;
(c)Orders made on 27 March 2009 extended time for compliance to 20 May 2009;
(d)Orders made on 21 May 2009 extended time for compliance for a fourth time to 28 May 2009 (Order 1). Those orders also relevantly provided:
2.Should the [applicant] not comply with Order 1 of these Orders the Application for Final Orders filed on 19 November 2007 be dismissed.
On 29 May 2009, there having been no compliance by the applicant and no appearance by either party, orders were made by Bell J dismissing the applicant’s Application for Final Orders filed on 19 November 2007. I note that the reference to the applicant’s application being filed on 19 November 2007 appears to have been a recurring reference error, as the applicant filed an Amended Application for Final Orders on 28 April 2008 and it was his non-compliance with orders to particularise that application which led to the dismissal. The orders made by Bell J on 29 May 2009 also directed the applicant’s solicitor to write a letter to the Registrar of the Family Court “providing an explanation” for the applicant’s continued failure to comply.
On 3 July 2009 the applicant filed an Application in a Case seeking that “the orders made on 29 May 2009 be vacated or discharged on the grounds such orders represent a miscarriage of justice”. Alternatively, the applicant sought that the hearing of 29 May 2009 be reopened. The affidavit of the applicant’s solicitor filed in support of that application annexed a copy of a letter setting out the reasons for the applicant’s failure to comply as required by Order 2 of the orders made on 29 May 2009.[9]
[9] Affidavit of the applicant’s solicitor filed on 3 July 2009, Annexure [Mr H]-1”.
The first respondent opposed the applicant’s application. In the event, orders were made on 10 July 2009 discharging the orders of 29 May 2009.
On 18 March 2010 the applicant filed a Further Amended Application for Final Orders, this time seeking to join an additional three respondents, namely Ms C Winnie, E Pty Ltd and D Pty Ltd Pty Ltd. The applicant filed Points of Claim in relation to the joinder on 17 March 2010.
I interpolate here that the respondents have maintained a position throughout these proceedings that the applicant’s application for property settlement orders ought be dismissed. The respondents have also maintained a number of alternate positions, being that the applicant’s application as against the second to sixth respondents be dismissed, or that the second to sixth respondents be removed as parties to the proceedings.
No active steps were taken by the applicant to progress his application. On 2 December 2012 trial directions were made by Registrar S. It seems that the applicant’s solicitor did not appear on the day those directions were made. The trial directions were later suspended by Registrar S on 5 March 2013. Those orders included a notation to the following effect:
A.There was no compliance by any party with the Trial Directions. Enquiries regarding valuation were made by the Respondents.
Orders were then made by consent on 19 November 2013 which provided for any of the parties to seek any outstanding Application in a Case be listed by 24 January 2014 (Order 2). Failure to do so would see any outstanding Application in a Case to “stand dismissed” (Order 3). The respondents then sought that an Application in a Case filed on 20 April 2010 be listed for hearing. Orders were made by Registrar S on 31 January 2014 for the applicant to file material in response and an Amended Statement of Facts and Contentions, and for the application to be listed on a date to be fixed.
The Application in a Case filed on 20 April 2010 was listed to be heard by Bell J on 10 June 2014. It was later adjourned to be heard by me on 8 December 2014. The applicant did not file any material in response, nor an Amended Statement of Facts and Contentions. At the hearing on 8 December 2014, then counsel for the applicant sought an adjournment on the basis that the applicant’s case had not been adequately prepared. That is obviously at a point more than seven (7) years after the proceedings had been commenced. In the event an adjournment was granted and orders were made (amended on 11 December 2014) which provided a timeline for the filing of material. The applicant did not file any of the material required by those orders prior to 9 March 2015, being the date which the hearing of the Application in a Case had been adjourned to.
Orders were made by me on 9 March 2015 which provided for certain documents to be served on the applicant personally, given concerns that he may be unaware of what had been occurring in the proceedings.
Orders and reasons were delivered by me on 21 September 2018 affording the applicant yet another opportunity to comply with previous orders to file and serve any proposed amended pleading and affidavit in support, and listing the matter to 20 November 2018.
Orders were made by consent on 19 November 2018 vacating the hearing listed for the next day. Those orders provided directions for valuations of real property, entities and personal effects and for the matter to be listed in some four months for review. It was listed for review on 23 October 2019, a hearing which was again ultimately adjourned by consent the day prior.
The matter was then listed to 12 March 2020. On 11 March 2020 orders were made by consent vacating the mention and setting out the timeline for the filing of material to ready the matter for trial.
On 26 August 2020, and prior to the next hearing before me on 6 October 2020, the respondents filed an Application in a Case again seeking that the applicant’s application for property settlement orders be dismissed. On 6 October 2020, following hearing the solicitor for the applicant and counsel for the respondents, I made orders to facilitate response material being filed by the applicant and for the applicant to file a then foreshadowed application to adjourn the proceedings pursuant to s 79(5) of the Act. Both applications were listed to be heard on 20 November 2020.
It bears emphasis that the application foreshadowed by the applicant to adjourn the proceedings pursuant to s 79(5) was said to be based upon the current COVID-19 pandemic and the effect it was having on property values, in particular upon a commercial property in Brisbane and a commercial property in Tasmania owned by the sixth respondent. The point of emphasis is that in the face of the Court again taking active steps to progress this matter finally to a trial after the proceedings had been on foot to that point for some thirteen (13) years, it was the applicant who was foreshadowing yet another application to adjourn the proceedings.
In the event, on 20 November 2020, following exchanges between the Bench and the respective legal representatives, when it was made clear to the applicant that these proceedings had to be brought to a conclusion, the parties consented to the matter being set down for final trial in lieu of either application being heard and determined. Orders were made by consent which provided for various properties to be valued, the applicant’s evidence to be limited to various affidavits already filed, affidavit material to be filed by the respondents and for the matter to be set down for trial for five days commencing 22 March 2021. Relevantly, one of the orders made by consent was in the following terms:
(8)Should the [applicant] default in the compliance of any of these Orders, the Initiating Application for final orders stands dismissed.
In the event, following the completion of the evidence heard at the end of five days of trial on 26 March 2021, the applicant filed an application for reopening of the evidence on 22 April 2021 which application was heard on 14 May 2021.
The point of emphasis for present purposes is that I reject any proposition to the effect that responsibility for the extraordinary delay in these proceedings and their progression can be sheeted home to the respondents. The applicant has been dilatory in prosecuting his application and his contribution to such extraordinary delay is, in my judgment, relevant to considerations of justice and equity.
Application to reopen evidence heard on 14 May 2021
As noted, the trial proceeded for five days commencing on 22 March to 26 March 2021 when judgment was then reserved. Whilst judgment was reserved, on 21 April 2021 the applicant filed an Application in a Case to reopen the evidence which application was heard on 14 May 2021.
The applicant sought to reopen the evidence at trial concerning the following matters:
(a)The identification of the amount of the applicant’s pre and post-separation superannuation;
(b)The application of funds received by the applicant from the sale of two investment properties owned as at separation – relevant to a question of add-backs and the payment of legal fees discussed further below;
(c)The quantum of liability or potential liability for capital gains tax from the sale of certain investment properties;
(d)
The applicant’s parenting contributions over a period of about two years
post-separation; and
(e)Whether the applicant participated in giving guarantees or mortgages to Westpac to support borrowings, a topic further discussed below.
The principles in relation to an application to reopen evidence once judgment has been reserved are well settled in a number of authorities.[10]
[10] See, for example, Stephens & Stephens & Anor (Enforcement) (2009) FLC 93-425; Summitt & Summitt and Ors (Re-opening) [2009] FamCA 365; Mallard & Mallard [2011] FamCA 876 and the authorities referred to in those judgments.
In general the discretion to reopen a hearing and allow fresh evidence is engaged where:
(a)The fresh evidence was not easily available at the time of the trial and could not be discovered despite the exercise of due diligence;
(b)The fresh evidence is so material that the interests of justice require it;
(c)If believed, the fresh evidence would most probably affect the result of the trial; and
(d)There would be no prejudice to the other party by reason of its introduction at a late point in time.
On the hearing of the application the further evidence concerning the parenting aspect became nugatory when it was accepted by the parties that the Court could proceed on the basis that the applicant continued to play a role with Ms I post-separation for a period of about two years, but ceased to do so thereafter. That is, it became unnecessary to adduce any additional evidence in that respect on the stated acceptance by the parties as to these being agreed facts.
Also in the course of argument it was accepted by counsel for the respondents that the unsatisfactory state of the evidence as at trial concerning documents obtained from Westpac (“the Westpac documents”) had the potential for the Court to proceed on an erroneous basis without the additional documents, that is, additional Westpac documents attached to an affidavit of the solicitor for the applicant, Mr H. It was thus acknowledged that those documents could be received into evidence by consent, although debate remained as to the interpretation of them as will be discussed.
What remained then was a dispute as to the superannuation documents and the documents going to legal fees expenditure.
With respect to the superannuation documents it is obvious that in circumstances where the parties separated as long ago as they did that the applicant’s superannuation, given his ongoing employment in the 16 years or so since separation, would be enhanced. Receipt of documents for this purpose was strictly unnecessary once that fundamental concept is accepted. Moreover, specific amounts held were of marginal relevance given that in the period under discussion the applicant increased his superannuation at the same time as the first respondent was, for years, wholly supporting the child of the relationship in both a financial and parenting
contributions-sense. On that basis the superannuation documents were not of particular significance but it is reasonable that they be received by way of further evidence.
In relation to the question of capital gains tax the documents sought to be adduced were obviously available to the applicant at the time of trial and in any event could not advance the case much because of the historical nature of the transactions in respect of sales completed many years ago, as will be discussed. That is, there was in reality no evidence, even with the additional evidence being correspondence from 2012, of there being any real likelihood of there being any burden visited upon the applicant for capital gains tax. On that basis that aspect of the application fails.
Finally, with respect to the question of add-backs and the payment of legal fees, the respondents legitimately objected on the basis that this was not in fact the subject of admissible evidence sworn to by the applicant. That is, there was no direct evidence from the applicant. Moreover, inevitably if this topic were reopened there would be prejudice to the respondents unless the reopening entailed first, the applicant giving direct evidence and the respondents then having the opportunity to undertake further cross-examination.
For these reasons the application to reopen is granted to the limited extent of enabling the Westpac documents and the superannuation documents attached to the affidavit of the solicitor for the applicant to be received as part of the evidence in the case. Otherwise the application with respect to potential capital gains tax and the question of expenditure on legal fees is refused.
Credit issues
Whilst the applicant did not advance any medical evidence in his affidavit filed on 18 November 2020 the applicant deposes to certain health issues and medications he takes for them including daily medication for depression. However, it was not suggested by the applicant that his depression or any of his other health conditions impact upon his cognitive abilities in terms of giving evidence and there was, as noted, no medical evidence to this effect.
Making due allowance for the applicant suffering from some health conditions, including depression, I have to observe that I found the applicant to be an unimpressive and thus an unconvincing witness.
Cross-examination of the applicant yielded the conclusion that in many instances he advanced matters of fact which did not withstand scrutiny. I accept the submission on behalf of the respondents that cross-examination established that much of the applicant’s affidavit evidence was overstated or wrong.
I also accept the proposition that generally the applicant’s evidence ought not be accepted where it is contradicted by another witness, given the findings I refer to below concerning the respondents’ witnesses, unless otherwise established by a document. As to such document or documents the topic of the Westpac documents is an exception further addressed below.
The applicant was prone to be disparaging of the first respondent by making scandalous and offensive assertions about her which were gratuitous in the sense that none of them were supported by any evidence and were not in fact part of the case the applicant advanced. For example, there was this exchange:[11]
[11] Transcript 22 March 2021, p.74 lines 4–20.
[COUNSEL FOR THE RESPONDENTS]: Mr Barrett, you mention in paragraph 7 of this affidavit two family trusts: the Winnie Family Trust and the P Family Trust. You see that?
[THE APPLICANT]: Yes. Yes. Yes.
[COUNSEL FOR THE RESPONDENTS]: And then in paragraph 8, you go on and say that E Pty Ltd was in – and you know E Pty Ltd was the trustee of the P Family Trust?
[THE APPLICANT]: Yes.
[COUNSEL FOR THE RESPONDENTS]: You go on to say that E Pty Ltd was the trustee involved in the [first respondent’s] [business] and provided services and premises to that [business], don’t you?
[THE APPLICANT]: Yes. Yes.
[COUNSEL FOR THE RESPONDENTS]: And you say it’s for the purposes of income tax splitting?
[THE APPLICANT]: Well, in my opinion, anywhere where [the first respondent] could not declare tax, she did. In my opinion - - -
[COUNSEL FOR THE RESPONDENTS]: Isn’t that just generally an Australian pastime, Mr Barrett?
[THE APPLICANT]: In my opinion, she’s a tax avoider.
[COUNSEL FOR THE RESPONDENTS]: Okay. Thanks for that?
[THE APPLICANT]: Absolutely.
(Emphasis added)
In a similar vein was the exchange that occurred when the applicant was cross-examined about the assertion in his affidavit that favourable terms were negotiated with Mr T in respect of the purchase of the N Centre.[12] The exchange was as follows:[13]
[COUNSEL FOR THE RESPONDENTS]: Do you know what the favourable terms that were negotiated with Mr [T] were or was that something somebody’s just told you?
[THE APPLICANT]: Well, basically, I was told she was sleeping with the man. So there’s obviously - - -
[12] Affidavit of the applicant filed on 26 October 2018, paragraph 12.
[13] Transcript 22 March 2021, p.79 lines 36–38.
I note in passing that there is no evidentiary foundation for the assertion that the purchase of the N Centre was negotiated on favourable terms and certainly no credible evidence identified by the applicant for his scurrilous assertion.
In relation to the purchase of the N Centre discussed further below there is an example of the applicant’s approach being what I consider to be obstructive in cross-examination in first disagreeing with a proposition put but then ultimately accepting it. There was this exchange:[14]
[14] Transcript 22 March 2021, p.78 lines 19–31.
[COUNSEL FOR THE RESPONDENTS]: You accept, don’t you, from the documents you’ve seen in this proceedings, that the acquisition of the N Centre by B Pty Ltd was more than 100 per cent financed, wasn’t it?
[THE APPLICANT]: No. I don’t agree.
[COUNSEL FOR THE RESPONDENTS]: How do you say it wasn’t 100 per cent financed?
[THE APPLICANT]: It might have been 100 per cent financed through different channels, through different means.
[COUNSEL FOR THE RESPONDENTS]: Why did you not just agree with me at my first question then?
[THE APPLICANT]: It was - - -
[COUNSEL FOR THE RESPONDENTS]: Are you just deliberately trying to be difficulty, Mr Barrett?
[THE APPLICANT]: Definitely not, Mr Hackett.
[COUNSEL FOR THE RESPONDENTS]: I see. So you accept it was 100 per cent financed?
[THE APPLICANT]: As far as I know, yes.
(As per the original)
Cross-examined about the feature that a property referred to as Q Street, Suburb R was initially purchased in both names but within six months was refinanced by the first respondent into her own name, the applicant asserted that his signature on that document transferring it from joint names to the first respondent’s sole name must have been a forgery by the first respondent. There was this relevant exchange:[15]
[COUNSEL FOR THE RESPONDENTS]: Yes. So the property was transferred from your joint names back to her sole names within six months. Do you agree?
[THE APPLICANT]: That’s what it says on here.
[COUNSEL FOR THE RESPONDENTS]: Thank you. You weren’t paid any money for that transfer, were you?
[THE APPLICANT]: I wasn’t even aware it went back into her name. Must have forged my signature.
(As per the original) (Emphasis added)
[15] Transcript 22 March 2021, p.87 lines 27–31.
The applicant’s evidence then morphed into the assertion that the first respondent has on other occasions forged his signature and he could not say with certainty whether that was the case in this instance. Having asserted it remained a possibility that the first respondent had forged his signature there was then this exchange:[16]
[16] Transcript 22 March 2021, p.88 lines 12–41.
[COUNSEL FOR THE RESPONDENTS]: Mr Barrett, may I suggest to you that the property was transferred back to [the first respondent] within six months because the two of you had then separated?
[THE APPLICANT]: Well, I went overseas at that stage to do a contract in South East Asia so I was away for approximately six months. So how that property got transferred into her name, I have no idea. I wasn’t even in the country.
HIS HONOUR: This is soon after 1990, isn’t it, [counsel for the respondents?]
[COUNSEL FOR THE RESPONDENTS]: It’s in 1990, your Honour. The transfer into their joint names was in February 1990 and into [the first respondent’s] single name in August […] month.
HIS HONOUR: And is it suggested there was a separation before?
[COUNSEL FOR THE RESPONDENTS]: Paragraph 14 of [the first respondent’s] affidavit is what I was putting, your Honour.
At that time, Mr Barrett, may I suggest that when you were home from overseas, you and [the first respondent] would argue a lot. You would pack up and leave. That’s right, isn’t it?
[THE APPLICANT]: Yes.
[COUNSEL FOR THE RESPONDENTS]: And the effects of these arguments accumulated in her, [the first respondent], refinancing the property into her name only about six months after it was purchased. Correct?
[THE APPLICANT]: No. I had no idea.
[COUNSEL FOR THE RESPONDENTS]: I see. So in respect of the title deed which is in evidence before his Honour and the mortgage in favour of [Bank 1] stated on both transactions, they were complicit in this fraud in forging your signature, were they?
[THE APPLICANT]: No idea.
[COUNSEL FOR THE RESPONDENTS]: I see. Thank you.
It was only when the legal representatives of the respondents presented relevant documents to the applicant in cross-examination did the applicant finally withdraw his assertion that the
first respondent may have forged his signature on the transfer.[17] I interpolate here that I do not accept the applicant’s assertion that the first respondent had otherwise forged his signature on documents at any time, including Annexure …W6 to the affidavit of the first respondent filed on 28 January 2021.
[17] Transcript 22 March 2021, p.94 lines 16–28.
Cross-examination of the applicant revealed that despite the appearance cast by the affidavit that the applicant was well aware of, and faithfully reporting, factual matters this was not so. Contrary to the affidavit evidence, cross-examination revealed that the applicant had very limited knowledge of the affairs of E Pty Ltd as trustee for the P Family Trust and of B Pty Ltd as trustee of the Winnie Family Trust. The applicant’s assertion that E Pty Ltd was the service trust of J Firm had no foundation and was later established to be wrong by the applicant’s own solicitor’s cross-examination of the second respondent. Likewise, the applicant’s assertion in his affidavit as to the third respondent undertaking “property...development”[18] was demonstrated to be without foundation.
[18] Affidavit of the applicant filed on 26 October 2018, paragraph 9.
The applicant was obliged to concede in cross-examination, by reference to title searches and documents presented to him, that a number of his assertions as contained in his affidavit were simply wrong. For example, the assertion in his affidavit[19] as to the acquisition of a joint property at Suburb U given that the only property that the applicant and first respondent ever purchased in joint names was Q Street, Suburb R earlier referred to, which was in fact reconveyed into the first respondent’s sole name after about six months given the then breakdown of the relationship.
[19] Affidavit of the applicant filed on 18 November 2020, paragraphs 7 and 14.
The applicant’s assertion in his affidavit[20] that the first respondent purchased V Street, Suburb G in a company name was conceded by him as being wrong upon being shown the relevant title search,[21] which search established that the property had been purchased by the fourth respondent, Ms C Winnie, personally. Likewise, the applicant’s assertion of a contribution in the form of him having provided a mortgage over his property at BB Street, Suburb CC to facilitate the acquisition was also established to be wrong which the applicant accepted once shown a title search.[22] V Street, Suburb G was acquired on 3 May 2001 and the applicant did not acquire BB Street, Suburb CC until subsequently.
[20] Affidavit of the applicant filed on 18 November 2020, paragraph 20.
[21] Affidavit of Ms C Winnie filed on 28 January 2021, Annexure “[...C]W”.
[22] Exhibit 10.
I accept, as will be further discussed, that the Westpac documents evidence that it is more probable than not that the applicant was a co-borrower (with Ms C Winnie) in respect of V Street, Suburb G.
An example of the applicant’s overstatement was his assertions in relation to his property at Suburb DD[23] owned at the outset and his failure to volunteer that at the time the property was encumbered by a mortgage.
[23] Affidavit of the applicant filed on 18 November 2020, paragraph 33.
It seems to me that cross-examination revealed a preparedness on the part of the applicant to overstate things in his affidavit evidence. For example, in his affidavit discussing the business and the company EE Pty Ltd, obviously designed to provide the applicant with some employment, the applicant failed to mention the important fact that this enterprise was funded by the first respondent. Moreover that the business was closed after the applicant was charged and convicted of firearms offences in relation to that business. The applicant also failed to mention that his legal fees incurred with respect to the criminal proceedings against him were paid, at least as to half, by the first respondent.
In a similar vein was the impression the applicant created in his affidavit as to the payment of Ms I’s private school fees subsequent to separation.[24] In cross-examination the applicant conceded that he did not in fact pay for half of his daughter’s school fees in the post-separation period.[25] His contribution to school fees was limited and he did not otherwise provide any financial support whatsoever for Ms I.
[24] Affidavit of the applicant filed on 18 November 2020, paragraph 51.
[25] Transcript 23 March 2021, p.114 lines 32–39.
The applicant attempted in both his affidavit evidence and oral evidence to attribute responsibility and sole responsibility to the first respondent for the fact that he had effectively no caring responsibility for Ms I beyond about two years post-separation when she was only about 12 years of age. Notwithstanding conceding in cross-examination that he had spent more than $250,000 on legal fees to pursue these proceedings, it is clear that he did not agitate any matters concerning parenting proceedings despite his complaints that it was the first respondent’s conduct precluding him having a relationship with Ms I. Notably, at the same time as spending money on legal fees the applicant was not making any contribution whatsoever to the financial support of Ms I. Whilst the N Centre will be discussed further below, the applicant conceded in cross-examination that his assertion[26] as to the applicant having provided some financial support for the acquisition of the N Centre by the third respondent was simply wrong.[27] That concession was made after being shown the actual finance facility and title searches of his properties.
[26] Affidavit of the applicant filed on 18 November 2020, paragraph 58.
[27] Transcript 23 March 2021, p.115 lines 30–31.
In contrast to the assessment of the applicant, I did not have the same reservations concerning the evidence of the first respondent or the second respondent, Mr Winnie or the fourth respondent, Ms C Winnie.
Annexure …W1 to the affidavit of the first respondent filed on 19 March 2021 is a letter dated 20 January 2021 from Dr FF, a medical oncologist who has undertaken care of the first respondent for advanced breast cancer since 11 March 2020. That letter refers to the first respondent having struggled with her treatment and diagnosis and that “[t]reatment has affected her cognitively, emotionally and physically”. I do not accept the criticisms advanced in the submissions of the solicitor for the applicant to the effect that the first respondent displayed some selective ability of recall when it suited her. In my judgment the first respondent displayed a careful approach to giving her evidence and in circumstances where allied to cognitive affects such a long period has elapsed since events under discussion it was understandable that the first respondent did not always have complete recall of all details.
I was keenly aware, in approaching my assessment of the first respondent as a witness, that she has been subjected to some adverse credit findings in the past in relation to litigation including the fair work proceedings which will be referred to. It is also the fact that the first respondent was deregistered. Notwithstanding the resulting caution with which I approached the assessment, I am satisfied that the first respondent gave careful and truthful answers and that both her affidavit and her oral evidence overall is reliable. At the very least I prefer the first respondent’s evidence to that of the applicant where there exists any conflict which cannot be resolved by commercial property to contemporaneous documents.
Likewise, save and except for one significant matter, I found each of Mr Winnie and Ms C Winnie to be convincing and reliable witnesses. Again, I prefer their evidence, respectively, where there is any departure between their evidence and that of the applicant and the applicant’s version is not independently supported by documentation.
The significant matter referred to concerns the documents sourced to Westpac, including Exhibit 15 and the Westpac documents annexed to the affidavit of the applicant’s solicitor relied upon in the reopening of the evidence on 14 May 2021. In my judgment, the Westpac documents overall establish, contrary to the evidence of Mr Winnie and Ms C Winnie, that it is more probable than not that the applicant signed documents with Westpac as a co-borrower in respect of the purchase of V Street, Suburb G, discussed below, and that the applicant signed a limited guarantee for a limited period of operation when the N Centre was refinanced, also discussed further below.
In summary, the Westpac documents evidence that in April 2001 the applicant was a
co-borrower for the purchase by Ms C Winnie of V Street, Suburb G. There is no suggestion the applicant actually contributed any money. Moreover, it would appear that in 2005, when the third respondent was refinancing the N Centre, the applicant provided limited guarantees totalling $400,000 with respect to the refinancing, for a limited period, and may have also provided some security over his property at W Street, Suburb G again for a limited period. Importantly, balanced against this, the applicant’s evidence is clearly wrong insofar as he has asserted a role played by him in the acquisition of the N Centre in the first place.
Doubt exists over whether the applicant actually granted a mortgage over his W Street property to Westpac on the basis of title searches. That is, searches of the relevant title do not reveal the registering of any mortgage. In my judgment the onus was upon the applicant to clearly establish the complete picture with respect to the Westpac documents, but this he failed to do. The evidence is less than clear, even with the Westpac documents admitted on the reopening. However, I proceed by giving the applicant the benefit of the doubt.
Chronology of relevant events – findings
The following findings resonate with the just and equitable requirements in each of s 79 and s 85A of the Act, and with the s 79(4) assessment.
As already noted, the first respondent was born in 1951 and is thus now 70 years of age, whilst the applicant was born in 1959 and is aged 62 years; both have repartnered and the applicant has a daughter aged 12 years from his current relationship.
The second respondent was born in 1978 and the fourth respondent was born in 1980.
In 1982 the P Family Trust was established.[28]
[28] Affidavit of the first respondent filed on 28 January 2021, paragraph 4.
In 1984 the P Family Trust purchased the property known as the Suburb GG unit on behalf of the first respondent and her sister.[29]
[29] Affidavit of the first respondent filed on 28 January 2021, paragraph 4.
In 1987 the first respondent acquired her interest in the business then trading as J Firm.[30]
[30] Affidavit of the first respondent filed on 28 January 2021, paragraph 5.
In late 1988 the property known as the HH Region unit was purchased by the first respondent. The applicant maintains that the parties commenced cohabitation at the HH Region unit although this is disputed by the first respondent. In the event, it appears to be acknowledged that cohabitation commenced in late 1988 or early 1989 by both parties and nothing turns on any difference. Notably, cohabitation of the parties throughout the relationship was in various properties to which the applicant made no financial contribution.
Accepting that it was in 1989–1990 that the applicant and first respondent commenced cohabitation, it is to be noted that in the early period of their cohabitation there was an interruption to it by reason of the applicant undertaking work in South East Asia for two separate periods of six months each.
On 1 August 1989 the first respondent sold the HH Region unit and purchased a commercial property at JJ Street, Suburb KK.[31]
[31] Affidavit of the first respondent filed on 28 January 2021, paragraph 7 and Exhibit 30.
In 1989 the applicant sold a residential property he owned in Suburb DD, he says, for approximately $77,000[32] albeit that the evidence establishes that it was subject then to a mortgage.[33] In cross-examination the applicant was not in a position to refute the proposition that the net proceeds amounted to no more than approximately $40,000 when account was taken of the mortgage.[34] The applicant contends that he provided the net sale proceeds of the Suburb DD property to the first respondent at her request for a loan. The first respondent contends that the applicant provided the proceeds of sale to his own mother.[35] I accept the evidence of the first respondent in preference to that of the applicant. I do not accept that the applicant contributed any funds from the sale of the Suburb DD property to the relationship.
[32] Affidavit of the applicant filed on 18 November 2020, paragraph 33.
[33] Transcript 22 March 2021, p.98 line 37.
[34] Transcript 22 March 2021, p.98 line 39 to p.99 line 11.
[35] Affidavit of the first respondent filed on 28 January 2021, paragraph 10.
It bears emphasis in this context to point out that the applicant acknowledged in
cross-examination that, leaving aside his own investment properties, the parties kept their finances completely separate and the applicant made no direct financial contribution to the acquisition of the various properties acquired in the course of the relationship. Nor did he make any contribution to the maintenance or outgoings of those properties in which the parties resided, as will be further discussed.
Q Street property
In around February 1990 the applicant and the first respondent purchased Q Street, Suburb R from the first respondent’s sister, albeit that the first respondent alone funded the purchase. The first respondent’s evidence, which I accept, is that the purchase was funded by mortgage from Bank 1 that she met any costs associated with the purchase and the applicant made no contribution to same.[36] It is the applicant’s evidence that he did contribute to the purchase, but he does not “recall how much [he] put in”.[37] I prefer the evidence of the first respondent.
[36] Affidavit of the first respondent filed on 28 January 2021, paragraph 12; Transcript 24 March 2021, p.292 lines 19–28.
[37] Transcript 22 March 2021, p.84 line 47 to p.85 line 35.
Q Street, Suburb R was initially purchased in joint names, though as earlier referred to was transferred into the first respondent’s sole name in August 1990.[38] The first respondent says, and I accept, that this was as a result of the applicant rarely being home (as he was working overseas at the time) and frequent arguments when he was home.[39] The first respondent refinanced the mortgage with Westpac in mid-1991.[40]
[38] Affidavit of the first respondent filed on 28 January 2021, Annexure “[…]W2”.
[39] Affidavit of the first respondent filed on 28 January 2021, paragraph 14.
[40] Affidavit of the first respondent filed on 28 January 2021, Annexure “[…]W2”.
The first respondent sold Q Street, Suburb R in mid-1992 and purchased a property at LL Street, Suburb MM and a unit in Suburb NN unit.[41] The first respondent says that she funded the purchase of both by way of mortgage secured over the Suburb GG unit and by funds received from her mother.[42] I accept that evidence. No contribution of any kind was made by the applicant to the acquisition.
[41] Affidavit of the first respondent filed on 28 January 2021, paragraphs 16–17 and Annexures ““[…]W2” and ““[…]W3”.
[42] Affidavit of the first respondent filed on 28 January 2021, paragraph 17.
Change of trustee
In 1991 the applicant and first respondent married. Also in 1991 the first respondent became the sole trustee of the P Family Trust and registered a change of trustee on the title of the Suburb GG unit.
Suburb PP property
In 1993, the first respondent sold the Suburb GG unit.[43] The first respondent used the sale proceeds received, in combination with a loan, to fund the purchase of the property at OO Street, Suburb PP.[44] The first respondent says that she purchased OO Street, Suburb PP to support the applicant in his work as a businessman at the time.[45] I accept that evidence. Again, no financial contribution to the acquisition or maintenance of OO Street, Suburb PP was made by the applicant.
[43] Affidavit of the first respondent filed on 28 January 2021, paragraph 19.
[44] Affidavit of the first respondent filed on 28 January 2021, paragraph 20.
[45] Affidavit of the first respondent filed on 28 January 2021, paragraph 20.
OO Street, Suburb PP was transferred to E Pty Ltd in May 1999, prior to being sold by E Pty Ltd in April 2001.[46]
[46] Exhibit 8.
QQ Pty Ltd
On 4 January 1994 the first respondent financed the applicant into operating QQ Pty Ltd and the conduct of a business as its executive.[47] That business ultimately failed, as earlier referred to. Whilst it is unclear how much capital was lost, the point of emphasis is that it was the first respondent who assisted the applicant financially with respect to this business, as well as with the applicant’s legal fees in his consequent criminal proceedings.
[47] Affidavit of the first respondent filed on 28 January 2021, paragraph 20 and Annexure ““[…]W4”.
Ms I
As already noted, it was in 1995 that the only child of the relationship, Ms I was born.
Transfer to the P Family Trust
On 11 April 1996 each of LL Street, Suburb MM and Suburb NN unit were transferred by the first respondent to the P Family Trust.[48]
[48] Exhibits 33 and 35.
Winnie Family Trust
On 21 September 1998 the third respondent company was incorporated and the Trust Deed for the Winnie Family Trust was settled. From incorporation of the company each of the first respondent and her son, Mr Winnie were executives and each were 50 per cent shareholders. Under the terms of the Trust Deed for the Winnie Family Trust the first respondent was the appointor and the range of beneficiaries included the spouse of the first respondent.
On 10 May 1999 the first respondent transferred each of OO Street, Suburb PP and JJ Street, Suburb KK to E Pty Ltd as trustee for the P Family Trust.[49]
[49] Exhibits 8 and 31; affidavit of the first respondent filed on 28 January 2021, paragraph 36 and affidavit of the second respondent filed on 28 January 2021, paragraph 7.
In July 1999 Suburb NN unit was sold and a property at RR Street, Suburb SS was purchased by the fifth respondent for $300,000.[50]
Affidavit of Mr Winnie filed on 28 January 2021, paragraph 7; affidavit of Ms C Winnie filed on 28 January 2021, paragraph 20.
Deregistration and business
On 22 December 1999 the first respondent was deregistered following disciplinary proceedings commenced by a professional organisation. Thereafter the first respondent pursued an appeal to the Queensland Court of Appeal (which was unsuccessful) and a likewise unsuccessful application for special leave to the High Court.[51]
[51] Affidavit of the first respondent filed on 28 January 2021, paragraph 36; affidavit of Mr Winnie filed on 28 January 2021; paragraph 5; and affidavit of the applicant filed on 18 November 2020, paragraph 17.
The first respondent deposes that in this period, in about early 2000, she and the applicant were “living separate lives” and effectively separated under the same roof.[52] I accept the first respondent’s evidence in this respect.
[52] Affidavit of the first respondent filed on 28 January 2021, paragraph 35.
In 2000 arrangements were made, in circumstances where the first respondent was unable to continue to practice as a professional, for her business partner, Mr TT to undertake the business pending the qualification of Mr Winnie, the second respondent to undertake the business in his own right.[53]
[53] Affidavit of the first respondent filed on 28 January 2021, paragraph 37; affidavit of Mr Winnie filed on 28 January 2021, paragraph 5.
V Street property
In May 2001 the fourth respondent, Ms C Winnie, purchased V Street, Suburb G for $650,000. It is Ms C Winnie’s evidence that the purchase was funded by $200,000 provided to her by the P Family Trust, which had been received from the sale of OO Street, Suburb PP, and a loan from Westpac obtained in her name.[54]
[54] Affidavit of Ms C Winnie filed on 28 January 2021, paragraphs 21 and 72.
It is the applicant’s case that he “signed documents in [his] name that were required by Westpac for the purposes of” the purchase of V Street, Suburb G, which were either a guarantee or provision of BB Street, Suburb CC owned by him as security.[55] Ms C Winnie denies this was the case and says that while she obtained a mortgage from Westpac to fund the purchase of V Street, Suburb G,[56] the applicant did not provide a guarantee and could not have provided BB Street, Suburb CC as security as he did not own the property at the time.[57]
[55] Affidavit of the applicant filed on 18 November 2020, paragraph 20. See also Transcript 22 March 2021, p.96 lines 12–18.
[56] Transcript 24 March 2021, p.219 lines 41–44.
[57] Affidavit of Ms C Winnie filed on 28 January 2021, paragraph 21; Transcript 24 March 2021, p.219 line 46 to p.220 line 1; Transcript 24 March 2021, p.221 lines 36–38.
The Westpac documents, part of the evidence the subject of reopening on 14 May 2021, confirm that the applicant signed Westpac documents as a co-borrower with respect to the loan from Westpac for V Street, Suburb G. Ms C Winnie is therefore incorrect in denying that the applicant signed any documents from Westpac for the loan, although Ms C Winnie is correct that BB Street, Suburb CC was not given as security. Notably though, the applicant made no contribution to loan repayments and indeed made no contribution to the maintenance or conservation of V Street, Suburb G despite his occupation of it.
Ms C Winnie sold V Street, Suburb G in June 2004 for $980,000.[58]
[58] Affidavit of Ms C Winnie filed on 28 January 2021, paragraph 22; Annexure “[…C]W2”.
Suburb CC property
In September 2001 the applicant and the first respondent purchased BB Street, Suburb CC. It was purchased in the applicant’s sole name and subject to a mortgage in favour of Westpac.[59] This was a rental property. Thus it was that, keeping his finances separate, the applicant retained rental income from BB Street, Suburb CC whilst residing in V Street, Suburb G as referred to, without making any financial contribution to V Street, Suburb G.
[59] Exhibit 10.
The mortgage over BB Street, Suburb CC was discharged on 8 March 2004, prior to separation.
The applicant holds, or has received the benefit of, approximately 95 per cent of the value of the property interests held by the applicant and first respondent as earlier identified. The respondents contend that in these circumstances there is no basis to further adjust property interests in the applicant’s favour.
In my judgment, the assessment of contributions results in the conclusion that it would not be just and equitable, nor appropriate, within the meaning of s 79 of the Act, to make orders further adjusting any property interests in favour of the applicant.
Section 75(2) factors
As already noted, the first respondent has turned 70 years of age and the evidence of her oncologist is that she is subject to treatment for a serious and chronic cancer condition.
The first respondent’s income is modest but of course she has, as I have already referred to, significant financial resources available to her in the form of property held by the various trusts and other entities referred to.
In comparison to the first respondent’s position, the applicant is somewhat younger at 62 years of age and his current income earning capacity is superior.
In my judgment there is no basis to make any adjustment of the existing property interests of the parties or either of them by reason of any assessment of relevant s 75(2) factors.
Justice and equity
For the reasons already explained I am not satisfied that it would be just and equitable to make property adjustment orders as sought by the applicant. The applicant’s application ought be dismissed.
Costs
The parties ought have the opportunity to address any questions of costs by reference to these reasons.
Without pre-empting anything at all, one of the matters potentially needing to be addressed emanates from the decision of the High Court in Bell Lawyers Pty Ltd v Pentelow[129] given the feature that throughout these proceedings, until the trial itself, the respondents, all with common interests, were represented by J Firm/the second and fourth respondents.
[129] (2019) 372 ALR 555.
Of course the parties ought have the opportunity to make submissions about that aspect as indeed all aspects referable to the question of any costs sought as a result of the outcome of these proceedings, in the event that any application for costs is forthcoming.
I certify that the preceding two hundred and eighty (280) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kent. Associate:
Dated: 26 August 2021
“SCHEDULE A”
DRAMATIS PERSONAE
Applicant (Husband) Mr Barrett DOB …1959
First Respondent (Wife) Ms Winnie (now K) DOB …1951
Relationship Cohabitation: 1989
Married: 1991
Issue: Ms WWW DOB …1995
Separated: 06.10.2005
Divorced: 23.12.06
Second Respondent Mr Winnie DOB …1978
Son of Wife from prior marriage.
Professional & executive of J Firm Pty Ltd.
Executive of Third & Fifth Respondents
Third Respondent B Pty Ltd
Executives: First, Second and Fourth Respondents
Shareholders: First & Second Respondents
Trustee: of the Winnie Family Trust
The Winnie Family Trust Deed dated 21 September 1998 (after cohabitation)
Settlor: Mr BBBB
Trustee: B Pty Ltd
Beneficiaries: (a) Fourth Respondent & Mr O (a non-party)
(b) Any parent, child or grandchild of any person in (a)
(c) Any spouse, widow or widower of any person in (a) & (b)
Appointor: First Respondent (removed and replaced by Second Respondent by Deed dated 5 February 2008)
Clause 7(5): Precludes appointor appointing self as trustee.
Fourth Respondent Ms C Winnie DOB …1980
Daughter of First Respondent from prior marriage.
Professional & executive of J Firm Pty Ltd.
Executive of Third, Fifth & Sixth Respondents.
Fifth Respondent E Pty Ltd Pty Ltd
Status: Deregistered.
Executives: Second & Fourth Respondents and Mr O (a non-party, 1984), First
Respondent ceased on 1.12.99.
Shareholders: Ms CCCC (First Respondent’s mother) & First Respondent
Trustee: of the P Family Trust
P Family Trust Deed dated 1982 (prior to cohabitation)
Settlor: Mr DDDD
Trustee: First Respondent & Ms EEEE initially. First Respondent alone by Deed dated 1 July 1991. First Respondent removed by Deed dated 8 January 1996 and E Pty Ltd Pty Ltd appointed.
Beneficiaries: (a) Second Respondent
(b) Fourth Respondent
(c) Mr FFFF [removed by Deed dated 1.7.91] and replaced with Mr O
(d) Mr GGGG [removed by Deed dated 1.7.91]
(e) Ms CCCC
(f) First Respondent [subject to clause 21]
(g) Ms EEEE [removed by Deed dated 1.7.91]
(h) All the children (other than named above), grandchildren and remoter issue of Mr GGGG [amended to First Respondent by Deed dated 1 July 1991]
(i) The next of kin of the last to die of the beneficiaries
(j) Such other person nominated by the Trustees prior to the Distribution Date
Appointor: Mr GGGG. Following his death, Ms CCCC (Cl 23). She was replaced by the Second Respondent by Deed dated 25 August 2005.
Clause 21: Notwithstanding anything to the contrary in this Deed expressed or implied no discretion or power by this Settlement conferred on any person or on the Trustee shall be exercised and no provision of this settlement shall so operate as to cause any part of the income or capital of the Trust Fund to become payable to or applicable for the benefit of the Settlor or any other person who has given transferred or made over any investments to the Trustee to be held on the trusts herein contained.
Settlement by First Respondent: Transferred property to the trust in March 1999 at a value of $425,000 and further property at a value of $560,000.00 in May 1999.
Sixth Respondent: D Pty Ltd Pty Ltd (incorporated after separation)
Executives: First & Fourth Respondents.
Previous Executives: Mr K 28.11.05 to 11.08.17 and Second Respondent 29.05.11 to 01.08.13.
Shareholders: First Respondent & Mr K
Trustee: of the JJJ Trust
The JJJ Trust Deed dated 1 December 2006 (after separation)
Settlor: Second Respondent
Trustee: D Pty Ltd Pty Ltd
Beneficiaries: First Respondent and Mr K and B Pty Ltd
Appointor: Mr K
The DDD Trust Deed dated 12 March 2004
Settlor: Mr KKKK
Trustee: First Respondent
Beneficiary: Ms WWW, children or grandchildren of Ms WWW, spouses of children or grandchildren of Ms Respondent
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