Becker and Vale

[2018] FamCA 1074

FAMILY COURT OF AUSTRALIA

BECKER & VALE [2018] FamCA 1074

FAMILY LAW – PROPERTY – Interim – interlocutory application for monies to be preserved in trust account and husband to be removed as director from company and wife appointed in his stead – orders made for monies to be paid to trust account - no order made for husband to be removed as director – substantive proceedings to be set down for final hearing.

Family Law Act 1975 (Cth)
APPLICANT:	Ms Becker

RESPONDENT: Mr Vale

FILE NUMBER: BRC 387 of 2016

DATE DELIVERED: 9 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 21 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr P Hackett

SOLICITOR FOR THE APPLICANT: Evans & Company Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms S Anderson

SOLICITOR FOR THE RESPONDENT: Best Wilson Buckley Family Law

Orders

1. That the sum of $237,787.06 held in the Trust Account of C Lawyers in the name of B Pty Ltd ACN ... (BPL) be paid to the Trust Account of Evans and Company Family Lawyers to be held in the name of BPL pending further Order or written agreement of the Applicant and the Respondent.

2. This Order shall act as an authority and direction to C Lawyers so as to give effect to Order 1 of these Orders.

3. That the costs of the Application in the Case be reserved to the trial.

4. That the matter be adjourned for Case Management Hearing 9.30am on 27 November 2018.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Becker & Vale has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 387 of 2016

Ms Becker

Applicant

And

Mr Vale

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties in these proceedings, the Applicant Ms Becker (62 years of age) and the Respondent Mr Vale (76 years of age) were in a de facto relationship for nearly 20 years before separating in late 2015.  The Applicant commenced substantive property alteration proceedings in the Federal Circuit Court of Australia on 18 January 2016, which were transferred to this Court on 3 July 2017 and allocated to the trial pool on 9 November 2017.

2. The Applicant alleges the Respondent has committed breaches of freezing orders made on 21 January 2016 and seeks remedial orders, which the Respondent opposes.  In the preparation of these Reasons, which have been delayed with regret, it has become clear that steps to list this matter for a final hearing early in 2019 is the proper process – otherwise these parties are likely to be consumed by the conflict and uncertainties identified in this interlocutory dispute, many of which can only be determined by findings made at a final hearing when all relevant evidence has been tested.

Consent order made 21 January 2016 by Judge Lapthorn

1. A consent order (“the said consent order”) made 21 January 2016 is Appendix One to these Reasons. It clearly sought to regulate the future actions of the Respondent as the Director of BPL Pty Ltd (“BPL”) and required regular reporting to the Applicant of the Company’s trading position. Further controls upon the actions of the Respondent were imposed in respect of his role as a Director of D Pty Ltd (DPL) as Trustee for the Vale Family Trust.

2. Subsequent to the said consent order, Carew J on 12 January 2018, discharged order 1.3 (relating to payment of monthly commissions to another entity E Pty Ltd) and order 5. It appears that E Pty Ltd was controlled by the Applicant and was involved in Supreme Court proceedings with BPL, but that the orders of Carew J regularised some form or understanding between the parties as to a new commission payment agreement.

3. The freezing orders contain a preamble in the following terms:

   THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

   And upon the Undertaking given hereby by the Respondent to the Court, and which is acknowledged by the Respondent to be operative until the next Court event (or earlier Order of this Court):-

4. In my view, the order makes it clear that there was an order pronounced “until further order” and additionally, the Respondent provided an undertaking limited “until the next Court event”.  I accept there is a level of possible confusion about this interpretation, however the tender bundle of the Applicant (marked subsequently as Exhibit 3), makes it clear (as paragraph 6 of the Applicant’s case outline summarises) that the Respondent continued to seek variations to the existing orders, well after the “next court event” which, in my view, reinforces the conclusion that the interim order continued in full force and effect even if the Undertaking had expired.

5. I find that the orders are the critical pronouncement and that the Respondent was bound by those orders, unless varied by Court order (as Carew J did for example) on 12 January 2018.

6. In so finding, I reject the submissions of the Respondent articulated at paragraphs 4 to 7 of the Respondent’s outline because:

   a)even if the undertaking was limited as to time, the order was only limited until “further order”; and

   b)if the Respondent “understood that the undertaking remained in full force and effect until the next Court date”, it is clear he “understood” the orders regulating his behaviour remained in full force and effect, until further order – thus necessitating his cross applications for variation of those orders.

7. On this basis, although the Application in a Case filed 25 May 2018 does not seek to deal with the Respondent for the asserted breach of the freezing orders it is proper to consider the transactions undertaken by the Respondent of which the Applicant says she had no notice and which, it is contended, do not amount to a transaction “in the usual course of business” (for BPL at orders 1.2.5 and 1.2.6 and “in the usual course of administration of the Trust” (for DPL as Trustee at order 2.6).

Applications by the parties

1. Consistent with the Application filed 25 May 2018, the Applicant contends for the following orders:

   1.        That the sum of $237,787.06 held in the Trust Account of C Lawyers in the name of [B] Pty Ltd ACN ... ([BPL]) be paid to the Trust Account of Evans and Company Family Lawyers to be held in the name of [BPL] pending further Order or written agreement of the Applicant and the Respondent.

   2.        This Order shall act as an authority and direction to [C Lawyers] so as to give effect to Order 1 of these Orders.

   3.        That forthwith the Respondent do all acts and things necessary for the Applicant be [sic] appointed Director of-

   (a)      [BPL];

   (b)      [D] Pty Ltd ACN ... ([DPL]); and

   (c)      any subsidiary or satellite companies of [BPL] or which the Respondent is associated.

   4.        That the Respondent be restrained from and an injunction granted restraining the Respondent by himself or by his servants or any agent from removing:-

   (a)      the Applicant as Director after being appointed pursuant to Order 3 of these Orders; and

   (b)      [DPL] as Trustee of any Trust.

   5.        That any bank account in the name of, or held on behalf of, any company (including as trustee), referred to in Order 3 of these Orders is to be joint signatory (that is both must authorise) of the Applicant and the Respondent and any decision or transaction relating to such bank accounts and the companies is to be made jointly by the Applicant and the Respondent.

   6.        That the Respondent pay the Applicant’s costs to be fixed in the amount of $11,000.”

2. The Respondent seeks that the Application in a Case be dismissed with costs being awarded to the Respondent “on an indemnity basis”, with the quantum of the order to reflect “the unsupported nature of the allegations continued in the face of clear evidence that no breach of trust or breach [of] duty had arisen”.

3. Counsel for the Applicant Mr Hackett set out in his outline the Affidavits relief upon, as did the Respondent’s Counsel Ms Anderson, in her outline.

Sale of Victorian Warehouse

1. At the time of the said consent freezing orders, D Pty Ltd was the registered proprietor of a commercial property situated at F Street, Suburb G, Victoria (the “Suburb G property”).

2. Without prior notice to the wife, the husband transferred the Suburb G property to BPL for $450,000 on or about May 2017.  The Respondent says the transfer was perfected in the “usual course of administration of the trust”.  The Respondent says that he did so on the advice of his accountants as a repayment of part of a liability owed by the Family Trust to BPL.

3. The transfer of the property then allowed BPL to sell the Suburb G property to a third (unrelated) party H Pty Ltd some months later for $517,000.  The Respondent says this transaction was required to enable BPL “to have working capital to use for expansion and the payment of creditors (including the payment of suppliers)”.  He also deposes that the sale reduced the cost of business operations (by reducing the number of employees by three) and allowed BPL to “improve stock rotation” as the company has “sufficient warehousing facilities in Queensland to hold stock”.

4. I hold concerns about accepting the explanation offered by the Respondent that he performed these two significant transactions, without any notice given to the Applicant, in the belief that he was not in breach of his undertaking AND the interim order.  It may be that the evidence of the Respondent or his “belief” will be tested at the final hearing and could go to his credit.

5. Similarly, his assertion that both transactions are in the ordinary course of business I find difficult to accept – particularly the sale by BPL.  The Trust selling a property to discharge a debt, could be construed as a transaction in the ordinary course of the administration of the Trust, however the failure to inform the Applicant of this significant transaction at the time he made the decision to do so, is a prima facie breach of general duty for complete and continuing disclosure if not order 2.6.

6. However, BPL appears to be a trading entity, with international trade arrangements, and the purchase and sale of property does not easily fit the description of the ordinary business undertaken by that company.  Again, the failure by the Respondent to give notice to the Applicant about the transaction is a prima facie breach of his general duty to disclose.  Furthermore, I do accept that prima facie the sale is not “in the ordinary course of business” and therefore is a breach of order 1.2.6.  I accept that, as the Applicant has not launched contravention or contempt proceedings (and these Reasons are not an invitation to do so), a proper testing of the excuse or belief of the Respondent, and whether it is reasonable, has not been undertaken.

7. The Respondent, at paragraph 12 of his Affidavit, gives a similar explanation for his decision to sell the prestige motor vehicle to BPL “in order to reduce the Division 7A liability” by $150,000 with BPL then selling the vehicle to Company J “to enable these funds to be used in the business”.  Again, I find the Respondent’s actions amounted to a failure to make full, complete and timely disclosure.

Use of funds from sale of the Suburb G property

1. After the solicitors for the Applicant by email to the Respondent (who appears to have been unrepresented at the time), around 22 May 2018 enquired about a transfer of the Suburb G property, by 24 May 2018, the Respondent had disclosed the reasons for the transactions and that all of the “proceeds of sale (after deduction of commission and other sale costs) were deposited into the trust account of [Mr K] (of [C Lawyers]) solicitor, to be held for and on behalf of [BPL] Co” and that withdrawals from that trust account “have been to pay costs and expenses in the usual course of the business of [BPL]”.

2. After notice was given to the solicitor Mr K on 24 May 2018, that the funds in trust were in “dispute”, the solicitor acknowledged the email.  The solicitor would be well aware of his obligations as trustee of funds, when he has received notice of dispute as to the funds.

3. Mr K swore an Affidavit on 20 June 2018 and relied upon by the Respondent, confirming that the letter from the solicitors for the Applicant advising of the dispute in respect of the funds was received shortly after 12.16pm on 24 May 2018.  Mr K says, at paragraph 6 of his Affidavit:

   6.        …Prior to 24 May 2018 I received instructions to a [sic] draw a number of cheques to [BPL].  These payments were processed on the morning of 24 May 2018.  The cheques were sent that morning to [BPL] by express post in accordance with the instructions received.

4. The solicitor further deposes to asking his receptionist “to hold the cheques to [BPL] which I had signed, but she informed me they had already been posted” and no further cheques have been drawn on the funds, such that the balance of the funds as at 18 June 2018 was $237,787.06.

5. Mr Hackett was careful in not asserting on the evidence available at this time, any breach of law by Mr K and no finding is made by the Court against Mr K.  Suffice it to say, that the Respondent’s conduct in using an account (undisclosed to the wife) operated by Mr K as a trustee for the payment of business expenses is likely to be an issue at the final hearing even if full disclosure has now been made.

6. It is also unclear why Mr K did not contemplate stopping payment on the trust account cheques drawn on the morning of 24 May 2018 but clearly not yet presented, or if he did contemplate such actions, why he decided not to do so.  Again, possibly a collateral matter for the final hearing.

7. To avoid any doubt, the Respondent provided a personal undertaking in writing to the Court on 21 June 2018 in the following terms:

   1.        In my personal capacity and in my capacity as Director of [B Pty Ltd]:

   a.        I will only draw upon the funds being in the Law Practice Trust Account of [C Lawyers] for the payment of suppliers and creditors of [BPL] in the ordinary course of business;

   b.        In the event that funds are to be draw from the Law Practice Trust Account of [C Lawyers] for the purposes set out in paragraph 1a above, I will cause to be forwarded directly to the Applicant’s solicitors not less than 48 hours prior to providing instructions to C Lawyers:

   i.         A copy of the invoice/s to be paid; and

   ii.        A letter of instruction to [C Lawyers] to draw the relevant funds.

   c.        I will not:

   i.         Sell, transfer, dispose of, assign, encumber or otherwise deal with my shares in [B Pty Ltd];

   ii.        Issue any further shares in [B Pty Ltd];

   iii.      Appoint or remove any director/s of [B Pty Ltd];

   iv.       Alter or vary the signatories to the bank accounts of [B Pty Ltd];

   v.        Enter into any contract, agreement, option or other instrument for the sale or disposal of any assets of [B Pty Ltd];

   other than in the ordinary course of business of [B Pty Ltd] and without providing at least 14 days’ notice in writing to the Applicant’s family law solicitors of my intention to do so.

   2.        In my capacity as Director of [D Pty Ltd] as Trustee of the Vale Family Trust (the trust):

   a.        I will not:

   i.         Alter the Appointor of the Trust;

   ii.        I will not replace the Trustee of the Trust;

   iii.      I will not make any amendments to the beneficiaries of the Trust or the classes of beneficiaries;

   iv.       I will not cause or permit the Trust to vest;

   v.        I will not alter the provisions of the Trust Deed;

   vi.       I will not enter into any contract, agreement, option or other instrument for the sale or disposal of any asset of the Trust;

   other than in the ordinary course of administration and management of the Trust and without providing at least 14 days’ notice in writing to the Applicant’s family law solicitors of my intention to do so.”

8. At the hearing conducted on 21 June 2018, the Court raised whether any documents existed as to the three cheques identified and drawn in the Trust Ledger of C Lawyers on 24 May 2018.

9. On 22 June 2018, in accordance with my direction, the Court received a document by email (under cover of an email from the Respondent’s solicitors) (see Exhibit 4) which in summary asserts that:

   a)these cheques were drawn by C Lawyers on 24 May:

   -    $25,765.61

   -    $47,575.86

   -    $34,227.49

   b)once the funds, deposited into the L Bank account of BPL on 25 May 2018 were “cleared”, two payments were made on 31 May 2018 through M Bank Business Systems in Euro for the equivalent of $25,745.43 and $34,200.69; and

   c)a further payment was made via M Bank on 5 June 2018 for $47,520.20, again in the Euro equivalent.

10. Invoices for the supplier have been produced.  It is a matter for the Applicant, at the hearing, to indicate whether these transactions (and perhaps others) were made by BPL in “the ordinary course of business” or not.

Discussion of relief sought

1. The Applicant argues that the Respondent has conducted himself in a “clandestine way” and in nothing “other than clear deceit and defiance of the orders” and that as the Respondent “has moved abroad” the preferred option for the Court is to remove the Respondent from his directorship. It is asserted that to do otherwise will allow the Respondent to reduce the assets within the jurisdiction by moving funds and stock abroad and out of the Court’s jurisdiction.

2. If the Court is not persuaded to remove the Respondent and appoint the Applicant, then other alternatives could be to appoint the Respondent as a second director or to appoint a receiver to the business.

3. The Respondent says that at best, for the Applicant, the Respondent misunderstood his undertaking, and that his explanations for the sale of the Suburb G property and the prestige motor vehicle, reveal the actions “were in the interests of the Trust and/or the company” and no breach of the director’s duties has been demonstrated.

4. The business operated by BPL appears to be the major remaining asset.  The parties’ last Financial Statements filed (Applicant on 15 June 2015; Respondent on 1 March 2016) revealed extensive debts; credit card liabilities barely covered by the only real property (jointly owned) then existing at N Street, Suburb O.  The Court is not aware whether that property still exists.

5. As indicated at the commencement of these Reasons, the longer this matter continues in the list where trust and respect between the parties is at a very low ebb, if it exists at all, the Respondent’s operation of BPL will continue to be an issue.

6. However, without repeating findings already made, the evidence does not persuade me at this stage that the Respondent’s continued operation of the business is deficient.  It is apparent that the Applicant ceased as a director some years ago, and introducing her into the business again now has not been demonstrated as necessary.  In fact, her lack of recent engagement in the business and the customers etc, could cause some operational difficulties.

7. Appointing the Applicant as an additional director to effectively “keep an eye” on the Respondent is, because of the distrust in their current relationship, impracticable in my view.

8. As a result, I refuse to make orders appointing the Applicant as a director.

9. The circumstances surrounding the establishment by the Respondent of the Trust Account with C Lawyers as a form of “working” account do raise concerns, as do the transactions performed on 24 May 2018. The Respondent, as the Trust Account Ledger reveals at Exhibit 1 (including the funds withdrawn on 24 May 2018), that the balance available at 19 February 2018 (after payment of legal expenses) amounted to $455,262.35 after which payments were made to BPL on 29 March 2018; 30 April 2018; 10 May 2018 and 24 May 2018 totalling $217,475.29.

1. If the Respondent, as the Director operating the business, claims he needs funds to make a payment in the ordinary course of business until the final hearing, he will have to justify the expense to the Applicant and in my view, considering a trial is likely within six months, the best way of protecting those funds is to require them to be paid into the Trust Account of the Applicant’s solicitors Evans & Company Family Lawyers. I will so order.

2. I will therefore make the orders at the commencement of these Reasons, listing the matter for further case management on the date fixed.

3. I propose to reserve the parties’ cross applications for costs of this Application in a Case to the final hearing, when some of the conduct in this matter (such as might touch upon s.117(2A)(c) and (d) of the Family Law Act 1975) can be better assessed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 9 November 2018.

Associate:

Date: 9 November 2018

APPENDIX ONE

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

And upon the Undertaking given hereby by the Respondent to the Court, and which is acknowledged by the Respondent to be operative until the next Court event (or earlier Order of this Court):-

1. That, in respect of B Pty Ltd ACN ... (hereinafter “BPL”):-

   1.1He will, in his capacity as Director of BPL, cause to be provided to the Applicant, within 48 hours after the date of this Order:-

   1.1.1Statements of account in respect of any bank facility standing in the name of BPL for the period 20 December 2015 to 20 January 2016;

   1.1.2A report as to the income and expenses of BPL for the period ended 31 December 2015;

   1.1.3Each the Respondent and the Applicant shall be entitled to receive daily reports on the performance of the company and this Order shall act as authority for the provision of such information. 

   1.2He will not (cause or permit, including in his capacity as Director of BPL), save with the giving of 30 days’ notice in writing to the Respondent and any family lawyers acting for her from time to time:-

   1.2.1Sell, transfer, assign, encumber, alienate or otherwise deal with his shares;

   1.2.2Issue any further shares in BPL;

   1.2.3Appoint and/or remove any director/s;

   1.2.4Alter or vary the signatories to the bank accounts of BPL;

   1.2.5Make any loan or advance to any other person or other company or entity, or guarantee any loan or contractual advance to any other person or entity, other than in the usual course of business of BPL;

   1.2.6Enter into any contract, agreement, instrument or other document in connection with the assets of BPL, other than in the usual course of business of BPL.

   1.3He will, in his capacity as Director of BPL, cause the monthly commission payment due to E Pty Ltd to be paid as and when it falls due. 

2. That, in respect of D Pty Ltd ACN ... (hereafter referred to as “DPL”) as Trustee for the Vale Family Trust ABN … (hereafter “the Trust”), he will not cause or permit (including in his capacity as Director of the Trustee), save with the giving of 14 days’ notice in writing to the Respondent and any family lawyers acting for her from time to time:-

   2.1Any alteration to the Appointor of the Trust;

   2.2The replacement of the Trustee of the Trust

   2.3Amendment to the beneficiaries of the Trust;

   2.4The vesting of the Trust

   2.5The alteration to the Trust Deed; or

   2.6The sale, transfer, assignment, encumbrance (or further encumbrance, as the case may be), or alienation of the assets of the Trust, other than in the usual course of administration of the Trust.

IT IS FURTHER ORDERED BY CONSENT:

1. That the Respondent will make, file and serve:-

   3.1Response;

   3.2Affidavit in support of interim relief sought in the Response and addressing, with respect to any transaction which he has undertaken for genuine business purposes with respect to BPL since 20 December 2015:-

   3.2.1Each transaction undertaken;

   3.2.2The asserted basis for each transaction; and

   3.2.3Records which support the asserted basis, which are to be exhibited to the Affidavit;

   3.3Financial Statement;

   within 30 days after the date of this Order, and that the Applicant shall have 30 days in which to make, file and serve a Reply.

2. That within 14 days of the date of this Order, the Respondent disclose all original documents supporting his allegations at paragraph Nos. 47 and 48 of his Affidavit filed by leave today, being 21 January 2016.

3. That:-

   5.1The Respondent be at liberty to attend the work premises at both Units … and P Street, Suburb Q, and to reside at Unit …;

   5.2Unless otherwise agreed between the parties in writing, or until further Order, the Applicant will not attend the premises referred to in paragraph 5.1, but will conduct her work for BPL from the former matrimonial home;

   5.3Seven (7) days prior to the start of each calendar month, the Applicant, via her solicitor, will send a “job’s list” to the Respondent’s solicitors setting out which matters she plans to attend to as set out in paragraph 73 of her Affidavit filed 18 January 2016, but not the matters set out at 73(c), (d) and (e);

   5.4Further to paragraph 5.3 above, where relevant the Applicant will set out a maximum deal limit to inform any negotiations she is permitted by the Respondent to conduct;

   5.5Within 4 days of receiving the “job’s list” the Respondent, via his solicitor, will provide his approval or otherwise for each item;

   5.6As part of her “job’s list”, the Applicant will set out the hours sought for PA/secretarial assistance and the Respondent shall not unreasonably decline provision of same through the company;

   5.7By this Order, the parties authorise the company’s IT provider to take a copy of:-

   5.7.1The business files on the Applicant’s laptop and provide same to the Respondent; and

   5.7.2The business files on “Jenny’s computer” and provide same to the Applicant.

4. That, within 7 days of the date of this Order, the Respondent cause the Applicant to be paid $50,000 as an interim property order and paid to her solicitors’ trust account. 

5. That it is hereby declared pursuant to section 45 of the Federal Circuit Court Act 1999 that it is appropriate and in the interests of the administration of justice, to allow interrogatories and discovery.

6. That within twenty-eight (28) days of the date of this Order, the parties shall exchange the following documents by way of disclosure:-

   8.1.Details of any property owned, whether in their sole name or via company or trust including real estate and personal property;

   8.2.Any superannuation they hold;

   8.3.Income from all sources, including any benefits received in relation to, or in connection with, employment or business interests or the operation of any company, partnership or trust with which they are associated or have received income from;

   8.4.The details of any company, partnership or trust in which they are an appointor, a trustee, a director, shareholder or similar officeholder or part owner (units or shares);

   8.5.In relation to any trust or company with which they are or have been associated, details of involvement, the income or benefits received from the trust company;

   8.6.Details of any gift or other disposition of property made to them or by them before, during or after the separation;

   8.7.In relation to current and historical records:-

   8.7.1.Bank statements on every account held or controlled (personal name, company name or trust) for the past three (3) years;

   8.7.2.Financial statements for them personally, for any partnership, for any trust company (except a public company) in which they have an interest, and for any other company or trust in which they have an interest, including:-

   8.7.2.1.The financial statements themselves;

   8.7.2.2.Taxation returns (including personal taxation returns for 2012 to current);

   8.7.2.3.Taxation assessments;

   8.7.2.4.Balance sheets;

   8.7.2.5.Depreciation schedules; and

   8.7.2.6.Business activity statements for 2012 to current.

   8.7.1.Superannuation member benefit statements (or if a self-managed fund, the financial returns for the Fund) from 2012 to current;

   8.7.2.Share trading records (eg. Margin loan transactions, E Trade statements, stockbroker transactions);

   8.7.3.Any appraisals/valuations held for chattels including motor vehicles and furniture that they own or hold in their possession or have disposed of since separation;

   8.7.4.Details/records of any life assurance;

   8.7.5.Any other document in their possession, power or control which would assist in determining their income, expenses, assets, liabilities and financial resources; and

   8.7.6.Any other document in their possession, power or control which would assist in determining the value of their interest in any company, partnership or trust in which they have an interest or with which they are associated, including documents relating to transactions, contracts (executed or unexecuted), business proposals and any document relating to the future trading of the company, partnership or trust.

7. That within fourteen (14) days of the exchange of disclosure as provided for by the preceding order, the Respondent shall provide to the Applicant a schedule identifying:-

   9.1.The property and superannuation interests of the parties (including any alleged “add-backs” that the Respondent contends should be taken into account);

   9.2.The alleged value of each item of property and superannuation interests (and if not known, then so stating); and

   9.3.The liabilities that the Respondent believes should be taken into account.

8. That within seven (7) days of receiving the Respondent’s schedule, the Applicant shall respond to the schedule to identify:-

   10.1.Any additional property or superannuation (including “add-backs”) in which the Applicant has an interest that is not included on the list and any other property that the Applicant believes should be taken into account;

   10.2.Any item of property or superannuation that is agreed or disputed;

   10.3.Any liabilities that are agreed or disputed about being taken into account; and

   10.4.Any value that is agreed or disputed.

9. That in the event any item in the pool is not agreed, a Court Expert shall be appointed pursuant to Rule 15.09 of the Federal Circuit Court Rules 2001 to conduct a valuation of the disputed asset and for that purpose, the Applicant shall provide to the Respondent:-

   11.1.The names of the three (3) proposed experts; and

   11.2.A list of the property to be valued.

10. That the cost of the Single Expert/s be met by BPL at first instance, with characterisation, and/or the apportionment of responsibility of the payment of those costs being, in the absence of agreement between the parties, a matter reserved to the Trial Judge.

11. That the parties attend, and make a bona fide effort to reach agreement at a private mediation in relation to the matters to which the proceedings relate within six (6) months of the date of these Orders, with the Applicant to propose a panel of three (3) mediators, and the Respondent to select the mediator from that panel.

12. That the cost of the mediator shall be met by BPL at first instance with characterisation, and/or the apportionment of responsibility of the payment of those costs being, in the absence of agreement between the parties, a matter reserved to the Trial Judge.

13. That the parties each have liberty to apply on the giving of 48 hours’ notice to the other.

14. That each party’s costs of today, being 21 January 2016, be reserved.

15. That:-

    17.1The Respondent has leave to file the Affidavit sworn by him, and the Affidavit sworn by Mr R on 20 January 2016;

    17.2That the Respondent shall, within 7 days, file the Response (referenced in the List of Documents read by him) and pay the filing fee.

16. That the matter be adjourned to 9.30am on 20 June 2018, for directions only.

17. That the parties will have liberty to vacate that Court event if Minutes of Consent, accompanied by a joint letter addressing the justice and equity of any proposed orders, is delivered to the Court.

THE COURT ORDERS UNTIL FURTHER ORDER: 

1. That this matter be adjourned to 9.30am on 20 June 2016 in the Federal Circuit Court of Australia at Brisbane for directions only.

2. That the parties have liberty to vacate the adjourned date if terms of settlement are filed together with a joint letter addressing the issues of justice and equity and in the event of any superannuation splitting order, evidence of procedural fairness being afforded to the trustee of any relevant fund and such orders are approved prior to the return date.