BORMAN & HUNTER

[2019] FamCA 1003

FAMILY COURT OF AUSTRALIA

BORMAN & HUNTER [2019] FamCA 1003

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – where the wife is represented by her case guardian – where the parties dispute the nature and length of the relationship – where the husband contends the relationship was some 30 years in duration – where the wife contends that the nature of the relationship was more of a business association – where a de facto relationship was found to exist – where the proposed property pool of the parties includes various family trusts, companies, valuables and real property – where there is a charitable trust – where an order to appoint a corporate trustee unrelated to the parties as trustee of the charitable trust will be made.

Family Law Act 1975 (Cth)

In the marriage of Kowaliw (1981) FLC 91–092

APPLICANT: Mr Borman

RESPONDENT: Ms Wallace As Case Guardian For Ms Hunter

INTERVENOR: Attorney-General, for the State of Queensland

FILE NUMBER: BRC 2660 of 2015

DATE DELIVERED: 20 December 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29, 30 & 31 October 2018; 9, 16 & 27 November 2018,  22 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson QC with Mr Cameron on 29, 30 & 31 October 2018 and 9 November 2018 and Mr Cameron on 27 November 2019 and 22 August 2019

SOLICITOR FOR THE APPLICANT: Alex Mackay & Co

COUNSEL FOR THE RESPONDENT:

Mr Galloway (29, 30 & 31 October 2018; 9, 16 & 27 November 2018)

Mr McGregor (22 August 2019)

SOLICITOR FOR THE RESPONDENT: Jones Mitchell Lawyers (29, 30 & 31 October 2018; 9, 16 & 27 November 2018)
MBA Lawyers (22 August 2019)

COUNSEL FOR THE INTERVENOR: Ms Blattman (16 & 27 November 2018)

SOLICITOR FOR THE INTERVENOR: Crown Law (16 & 27 November 2018)

Orders

IT IS ORDERED BY WAY OF INTERIM ORDER THAT

1. Within 14 days of the date of this Order, Mr Borman take all steps that are necessary to cause three one kilogram bars of gold to be delivered to a place nominated in writing by or on behalf of Ms Hunter.

IT IS FURTHER ORDERED THAT

1. Unless the parties reach agreement about those orders to be made to give effect to the Reasons delivered today, the matter is listed for further hearing at 10.00 am on Friday 31 January 2020 to enable the parties to be heard about the same and, in order to facilitate this process:

   (a)the Applicant file and serve a Minute of Proposed Orders by no later than 4.00 pm on Wednesday 22 January 2020; and

   (b)each of the Respondents file and serve a Minute of Proposed Orders by no later than 4.00 pm on Wednesday 29 January 2020.

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 Borman & Hunter 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 2660 of 2015

Mr Borman

Applicant

And

Ms Wallace as Case Guardian for Ms Hunter

Respondent

And

Attorney-General, for the State of Queensland 

Intervenor

REASONS FOR JUDGMENT

1. Mr Borman[1] and Ms Hunter[2] (whom appears by her Case Guardian, Ms Wallace, who was appointed her administrator for financial matters pursuant to an order made by the Queensland Civil and Administrative Tribunal on … September 2017) met in or about February 1979 in the United States of America, where each of them was born.

   [1] Born in 1943, aged 76 years.

   [2] Born in 1928, aged 91 years.

2. They are in dispute about the nature of their relationship: Mr Borman contended that he and Ms Hunter were in a de facto relationship from 15 February 1980 until 11 September 2014 (that is, for about 34 years) – he said that, until her mental health deteriorated in 2014, they had a close and loving relationship; however, Ms Hunter said that any intimate relationship between them was over before the end of 1999; her account has included, at various times, that they were in a business relationship from approximately 2000 until 2010 and/or that they had an association - which she considered to be more of a business relationship - which she accepted had sufficient “indicia” to give the Court jurisdiction under the Family Law Act1975 (Cth) to make the orders sought.

3. Whatever the conclusion about the nature of their relationship and its duration, the parties remain living at property located at C Street, D Town.  Their continued joint occupation of these premises has been possible because the same was previously used as a health centre and comprises a building of approximately 100 metres in length: Ms Hunter has modified one end of the building to accommodate her needs and lives there with those employed to care for her, whilst Mr Borman resides at the other end of the building.

4. The fundamentally opposed positions of the parties requires the Court to decide whose account is to be preferred: is Mr Borman’s evidence that the parties were in a lengthy de facto relationship to be preferred to that of Ms Hunter’s which was to the effect that their relationship was an association?

5. Resolution of this question is made more difficult by the duration of the period over which it is contended the de facto relationship existed, the time that has passed since it ended (namely, in September 2014, on Mr Borman’s account) and the respective ages of the parties and the effect this might have had on their respective capacities to recall historical events accurately.

Credit

1. In assessing Ms Hunter’s evidence it is clearly relevant to have regard to the contents of the joint report (dated 29 September 2018) prepared by Professor E, a psychiatrist, and Dr F, a clinical psychologist[3] and the contents of the report (dated 24 October 2018) prepared by Dr G, a psychiatrist.[4] The authors of both reports agreed that Ms Hunter had the capacity to swear her affidavit, but differed in their conclusions about her capacity to be cross-examined: the authors of the September 2018 report concluded that, due to limitations in her endurance and her low frustration tolerance, she did not have the capacity to be cross-examined, whereas the author of the October 2018 report opined that she did. None of those who authored the two reports were required for cross-examination and Ms Hunter was cross-examined by Mr Wilson QC (and, on another day, Mr Cameron) for Mr Borman. I consider that both did all that they could have done to ensure that Ms Hunter was cross-examined fairly.

   [3] Exhibit 35.

   [4] Exhibit 34.

2. In assessing Ms Hunter’s evidence, though, I have been particularly mindful of that which I consider both reports to recount: namely, the prospect that, under stress, Ms Hunter may have become frustrated and simply given up in her attempts to understand and answer questions asked of her (noting as I do that the September 2018 report recounts that “when under mild stress” Ms Hunter became confused and frustrated and gave up (“do whatever you want, I don’t care”) whilst the October 2018 report contains an account that, on one occasion during that assessment, Ms Hunter became frustrated and said “I will just fail then” – before continuing with the assessment process after a short break).

3. I consider neither Ms Hunter or Mr Borman were entirely truthful in their evidence and/or in their accounts of relevant matters to others; further reasons for such conclusions follow but, by way of example of that relied on for the same:

   a)I accept that Ms Hunter asserted, in an affidavit sworn in September 2015, that Mr Borman had bought land in H Street, D Town when, at the very best for her on her account, she had no idea what he bought; and

   b)whilst Ms Hunter said, in an affidavit filed in proceedings she started in the Supreme Court of Queensland, that she had been wrongfully removed as director of J Pty Ltd on 30 March 2015[5], she accepted when cross-examined that she had been removed as a director of J Pty Ltd on 1 September 2014; and

   c)I consider the evidence given by Mr Borman when cross-examined about his knowledge of the concept of de facto marriages to be completely unpersuasive and evasive.

   [5] Exhibit 17 at [19] and [20].

4. In addition insofar as Mr Borman is concerned, I accept that he positively told his insurer, when obtaining insurance for the period from 1 August 2018 to 1 August 2019, that he had never been declared bankrupt despite having been a bankrupt between May 1997 and May 2000. I do not accept his assertion that this was simply a mistake on his part; I think it much more likely than not that he deliberately omitted to recount the fact of his previous bankruptcy.

5. I consider that Mr Borman was, on occasion, evasive and quick to assert that he had acted on the advice of lawyers and accountants if he was concerned the answers to questions asked might reflect poorly on him; he was not alone in taking that approach though, as Ms Hunter also adopted a not dissimilar refrain on occasion.

6. Mr Borman accepted that he had never declared Ms Hunter to be his spouse in any tax return he has filed; during his cross-examination, he said that this was because she was not his “spouse” and asserted that the term “de facto”  had only came into existence in the last 10-15 years. I consider his evidence about his asserted absence of knowledge about the existence of the term ‘de facto’ and its meaning both implausible and unpersuasive.

7. During his cross-examination, Mr Borman accepted that he knew perfectly well that, in the tax returns he had caused to be filed over many years, he had been invited to indicate to the Commissioner for Taxation that he had a spouse, or a partner. He said both he and Ms Hunter asserted in the same that they were single “for tax reasons”; he said it had been explained to him by four different accountants over a period of about 20 years that “they” would get a better tax rate if each filed a tax return on the basis that they were “single” and that  every accountant “they” spoke to had told them that it was more beneficial “tax-wise” for him and Ms Hunter to file tax returns separately; he did not say that he had been advised by any accountant to omit the name of his spouse from the returns he signed and caused to be lodged.

8. When Mr Wilson QC challenged Ms Hunter about her assertion in her affidavit that she earned interest on her gold account with K Bank, she had no hesitation in agreeing with his proposition that no interest was earned on that account because “you don’t earn interest on gold”:  that she so readily made the response she did certainly caused me to consider whether that aspect of her affidavit in which she asserted that interest had been earned was the result of unintended error or, perhaps, misunderstanding on the part of those responsible for its preparation – particularly given that Ms Hunter’s difficulties in reading are such that this process entailed Ms Wallace assisting Ms Hunter in that task.

9. Further, whilst Ms Hunter’s evidence about whether she had read her affidavit in the last couple of days prior to the start of the hearing seemed to me to be at odds with the evidence given by Ms Wallace about that, I am not persuaded that Ms Hunter was being deliberately untruthful. However, the fact of discrepancies about such matters certainly casts significant shadows over the reliability of Ms Hunter’s evidence unless it is supported by documentary evidence.

Were the parties in a de facto relationship?

1. Having regard to the evidence before me (which will be discussed in greater detail below), I am persuaded that it is more likely than not that Mr Borman and Ms Hunter were in a de facto relationship from about 1980 until about September 2014. I arrive at this conclusion given:

   a)Ms VV’s evidence (which I accept) of Ms Hunter’s comments to her during interview on 13 September 2014; and

   b)Ms Hunter’s assertion in an Application for a Protection Order filed on about 13 September 2014, that she and Mr Borman had been in a de facto relationship for about 30 years; and

   c)the information she provided to Ms VV, a solicitor engaged on her behalf in about September 2014, which I accept was as Ms VV recorded in the notes she took contemporaneously of her September 2014 interview with Ms Hunter; and

   d)that Ms Hunter’s initial Response, filed in the Federal Circuit Court on 26 August 2015, did not take issue with the Court’s jurisdiction to make orders in the proceedings; and

   e)that, on occasion, Ms Hunter made Wills by which Mr Borman was made the residuary beneficiary of her estate: for example, she made him a significant beneficiary of her estate in a Will dated 16 June 2009 (by which she bequeathed him all of her estate save for eight specific pecuniary gifts which together amounted to $420,000.00); and

   f)at some time Mr Borman made provision for Ms Hunter in his Will;[6] and

   g)that Ms Hunter did not take any steps to assume control over the J Centre business operated from the C Street property during Mr Borman’s bankruptcy and reinstated him as a director of the relevant corporate entity after his discharge from bankruptcy; and

   h)that, on occasions, Ms Hunter granted Mr Borman a Power of Attorney: for example, on 14 January 2010 she executed a Power of Attorney by which she appointed him (or, alternatively, Dr L) as her attorney for financial and personal health matters - an appointment he accepted by signing the attorney’s acceptance that day – and, on or about 12 November 2013, she executed a further Power of Attorney, which he also accepted; and

   i)that, whilst they each operated their own business interests largely separately from the other, they also provided support to each other of a type consistent with the support provided by partners in a de facto relationship: in particular, I consider that Ms Hunter provided financial support to Mr Borman at times when, without the same, he would have been unlikely to be able to retain ownership and/or control of real property; and

   j)they have lived in the same premises since at least 2000 (albeit that they have continued to live in those premises separately under the one roof since September 2014); and

   k)in correspondence dated 19 May 2013,[7] addressed to Mr Borman, Ms Hunter stated that the same was to confirm their understanding that all of her personal belongings (said to include “my paintings; my tapestries; all my furniture; my jewellery and clothes; my car”) “are in joint tenancy with you”) - I note that, when cross-examined, Ms Hunter explained that she had written this correspondence because, as she had written so many bad things about doctors, she was concerned about being sued and thought that the contents of the correspondence would be a way of protecting her belongings in her home; and

   l)my conclusion that, in implementing their shared desire to act to protect their respective assets from the reach of creditors (in Mr Borman’s case) and the possibility of attack by those supposedly resentful of published views (in Ms Hunter’s case) at various times, each enlisted the help of the other – clearly on the basis that, at the time they implemented their respective plans, each trusted that the other would not abuse the power each invested in the other at those times and would act in the interests of the divesting party.

   [6] Affidavit of Mr Borman filed 15 October 2018 at [8].

   [7] Exhibit 25.

2. I have arrived at my conclusion about the existence of a de facto relationship despite the following:

   a)that, save for one joint Swiss bank account, Mr Borman and Ms Hunter maintained separate bank accounts during the course of their relationship; and

   b)that Mr Borman never declared Ms Hunter to be his “spouse” on any tax return he submitted; and

   c)that, on 29 September 2015, Ms Hunter filed an Amended Response in which she sought a declaration that their relationship had broken down on or before 31 December 1999 and that, therefore, the Court did not have jurisdiction to make the orders Mr Borman sought in the Initiating Application he had filed on 26 March 2015; and

   d)the matters discussed in paragraphs 67 and 68.

3. The conclusion that Mr Borman and Ms Hunter were in a lengthy de facto relationship does not, though, axiomatically mean that their respective contributions of whatsoever nature during that time were equal or that each should be taken to have any, or any equal, interest in property owned solely by the other. Whilst said in the context of parties to a marriage, there is no presumed community of ownership of property in Australia; nor should it be assumed, simply by virtue of a determination that the parties were in a de facto relationship – even one of significant duration - that their respective legal and/or equitable interests in property should be other than what they are.

4. Whilst most cases are best considered by assessing the relevant statutory considerations globally, this case is one in which I consider that the requirement to determine whether it is just and equitable to make any orders altering the interests of Mr Borman and Ms Hunter in property owned by each of them (and/or property which it is accepted is subject to their control by virtue of their control of corporate entities or trusts) is best discharged by analysing, as chronologically as possible, their respective contributions (of all natures) to property. Such analysis will, in my view, also expose the underlying reality of their relationship since early 1980 and demonstrate the rationale for the decision I have reached about the existence of their de facto relationship and its duration and also about whether it is just and equitable to make orders and the nature of the same.

Chronology of events

1. On balance, I accept as more likely than not that, after Mr Borman travelled to Australia in October 1982, he was joined here by Ms Hunter in January 1983 and that they lived together in rented accommodation in Sydney until about June 1983, when Ms Hunter return to the United States to care for her unwell mother.  Similarly, I generally accept that, after Mr Borman’s return to the United States in about October 1983, he and Ms Hunter lived together in an apartment she maintained, although I also accept as likely that, at various times during this period, Ms Hunter was engaged in caring for her mother in her mother’s three-bedroom home.

2. It seemed to me that both Mr Borman and Ms Hunter agreed that they moved to live in Australia in January 1985. They both agreed that Ms Hunter’s mother travelled with them to Australia: Mr Borman’s evidence was to the effect that he and Ms Hunter travelled as partners and that, in that role, he assisted with her mother’s care, whereas Ms Hunter contended that, whilst Mr Borman assisted her with her mother’s care during this travel, he did not accompany her as her partner but, rather, travelled as her employee and assisted with the practical aspects of her mother’s travel to Australia.  On balance, I think Mr Borman’s account of the manner in which he and Ms Hunter travelled to Australia with her mother in January 1985 is to be preferred.

3. I accept that, as at January 1985, Ms Hunter’s financial situation was such that, as Mr Borman described, she was effectively retired; her financial situation meant that she was not required to engage in paid employment or to operate any business.  Further, I also accept that, as at January 1985, her financial situation was vastly superior to that of Mr Borman’s. I accept that she owned property valued at about $673,427.00, which was comprised of: an M Bank account containing silver, gold bars, cash and jewellery said to have a value of $508,427.00; savings of $150,000.00; a $10,000.00 art and antique collection and furniture valued at $5,000.00.[8]

   [8] Affidavit of Ms Hunter filed 28 September 2019 at [23].

1. Whilst Mr Borman said in his affidavit[9] that, when he came to Australia, he had savings of about $100,000.00 which he brought with him when he moved to live here in January 1985, his evidence during cross-examination was different: when cross-examined, he said that he brought $50,000.00 of his own money with him and also brought $50,000.00 he had borrowed from his father.

   [9] Affidavit of the husband filed 9 October 2018 at [24]

N Street

1. It appears to be uncontentious that, prior to the January 1985 move to Australia, Ms Hunter purchased real property at N Street, D Town (the N Street property).  It is also uncontentious that Mr Borman made no financial contribution to this acquisition.

2. Mr Borman said that he and Ms Hunter lived together as a couple at the N Street property and that, until she died in 1985, Ms Hunter’s mother lived there with them. Mr Borman said that, after Ms Hunter’s mother died, he and Ms Hunter remained living in the N Street property until 2000, when they move to live in property situated at C Street.  In contrast, Ms Hunter denied living with Mr Borman at the N Street property; she also denied living with him there until they moved to live at the C Street property.

O Street

1. I accept that, on about 24 September 1985, Mr Borman bought property located at O Street, D Town (the O Street property)[10] for $120,000.00. It is uncontentious that Ms Hunter made no financial contribution to Mr Borman’s purchase of the O Street property.

   [10] Later renumbered as “92”.

2. Mr Borman said that he contributed $40,000.00 from his savings and borrowed $80,000.00 from T Bank to fund this purchase.

3. Mr Borman said that, after he bought the O Street property, it was renovated to accommodate eight bedrooms and five bathrooms so that customers of the J Centre business, which he originally operated under the name “J Centre”, could attend residential programmes there. Mr Borman said, in essence during his cross-examination, that the money he had left following his purchase of the O Street property was used to cover business expenses as the business made a loss for the first nine months of its operation.

4. Mr Borman said that his father (Mr R Borman) then advanced him another $50,000.00 in 1987 and, after that, a further $48,000.00 such that his total borrowings from his father amounted to $148,000.00. Mr Borman also said that he subsequently borrowed a further $100,000.00 from S Bank, using the O Street property as security and that, consequently, his indebtedness to that organisation by 1989 was $100,000.00. 

5. Mr Borman said that, when he sold the O Street property in 1991 for $152,000.00, he received perhaps $100,000.00 from the sale, which he applied toward paying down debt then secured over the C Street property.  However, he also appeared to say later during his cross-examination that the $152,000.00 achieved from the sale of the property was insufficient to clear the debt secured against it and that, when he went into bankruptcy in 1997, he still owed T Bank the sum of $100,000.00. Such indebtedness casts something of a doubt over Mr Borman’s evidence that the J Centre was profitable from 1987 on and also over his initial evidence that he received anything following the sale of this property.

The J Centre Business

1. Mr Borman said that he and Ms Hunter spent a week at the P Institute in the USA in about 1979, following which he was very interested in the J Program; he said he realised there was a real opportunity to bring the program to Australia as, at that time, he thought there was a growing interest in natural and alternative health in Australia.  He said he returned to the United States of America in May 1985 to participate, on a fulltime basis, in a six week residential programme conducted in TT State during which he learned more detail about the J system. He said he paid all of the costs associated with doing the course (including travel and accommodation) from his own funds.

2. Mr Borman said that, after he returned to Australia in about June/July 1985 following his completion of this six week course, he looked for a suitable property from which he could operate the J business that he had decided to establish. He operated this business in his own name until 1989 when J Pty Ltd was incorporated. Thereafter, the business was operated though J Pty Ltd.

3. Mr Borman said that Ms Hunter made no contribution to the establishment of the J business or its operation.  He said the business was his idea and that he developed it through applying himself to its operation. He also said that he applied the net income he earned from the J business for his and Ms Hunter’s joint benefit.

4. Mr Borman said that, as the J business continued to grow, it became apparent that it needed larger premises from which to operate. He said that he began to search for land on which to build a bigger health centre and, in 1987, located vacant land at C Street, D Town (the C Street property).

The C Street property

1. Mr Borman bought the C Street property in early April 1987 for $78,000.00.  Whilst he said at one point that he used his savings (in an amount of about $10,000.00 to $15,000.00) and borrowings from T Bank (using the equity that had arisen in the O Street property as security for the same) and his father (being a second sum of $50,000.00 which he said his father had advanced in 1987), it also appeared to me that, at another point during his cross-examination, he said that he had purchased the C Street property by using $10,000.00 to $15,000.00 from the second $50,000.00 loaned to him by his father and the balance in borrowings from T Bank.

2. However Mr Borman funded the purchase of the C Street property, it is uncontentious that Ms Hunter made no direct financial contribution to the acquisition of that land in 1987.

3. Mr Borman refuted the suggestion that he was making absolutely nothing from the J Centre business - he said that Ms Hunter had very little input into the business at that time; he appeared to me to be unable to provide a definitive answer to the proposition that he obtained no net benefit from the sale of the O Street property.

4. I accept that after Mr Borman organised and completed the ancillary steps necessary to obtain building approval from the U Council to build on the C Street property, he engaged a builder. I accept that construction on the C Street land commenced in about January 1990 and was competed in about August 1990.  As he was not challenged about this during cross-examination, I accept as likely that, during this period, Mr Borman visited the site on a daily basis to liaise with the builder; I also accept as more likely than not that he continued to operate the J Centre from the O Street property.

5. Mr Borman said that he paid for the construction costs on the C Street property by borrowing money - from his father, V Limited and the builder (in the amount of $50,000.00). I accept that, on about 27 February 1990, he granted V Limited a Bill of Mortgage over the C Street land to secure repayment of the $590,000.00 he had borrowed from that source for the construction costs of the development on the C Street land. I also accept that this Bill of Mortgage was subsequently transferred to W Bank Ltd, which subsequently became W2 Ltd (W2 Bank).

6. Mr Borman said that, on 9 March 1990, he entered into a written loan agreement with the builder: this agreement provided that the loan from the builder was provided to him personally; he also said that an express term of the agreement was he grant the builder a caveat over the C Street property and, consequently, he signed a Form 35 – General Consent in favour of the builder in about March 1990. This was to enable the builder to lodge the same with the Registrar of Titles to secure the loan of $50,000.00 over the C Street property.

7. However, it also appears that Mr Borman and his father (Mr R Borman) ostensibly entered into a Deed dated 23 November 1990.[11] According to the Recitals to the same:

   a)Mr R Borman had advanced Mr Borman the following sums to assist with the acquisition of the C Street property and the establishment of the J Centre on the same: $52,000.00 in June 1985; $30,000.00 in December 1985 and $66,000.00 in June 1989; and

   b)it was agreed between the Bormans that Mr Borman would pay his father interest at the rate of 14% per annum on the amount advanced, and that the principal and interest were to be repayable on demand or on the sale of J; and

   c)it had been agreed between the Bormans that Mr R Borman required security for the principal and interest advanced and so Mr Borman had agreed to provide a second mortgage over the C Street property.

   [11] Exhibit 36.

8. The terms of the Deed then record Mr Borman’s acknowledgment of his receipt of $148,000.00 from his father by the instalments detailed in the Recital and that he has agreed: to pay interest on the same at 14% per annum; to repay the principal and interest on the first of demand or sale of C Street; to provide security by executing a Bill of Mortgage to be registered as a second mortgage over the C Street property. This Bill of Mortgage, in terms reflective of the agreement, was registered on the title of the C Street property on about 6 December 1990.

9. I accept that, on 7 August 1996, a Deed of Forgiveness executed by Mr R Borman on an unparticularised date in June 1996 was notarised in the State of BB, USA. According to the terms of this Deed, Mr R Borman forgave Mr Borman “the whole of all outstanding debt owing to me by him both the principal sums lent and accrued interest (an amount of approximately $400,000.00) which debt is presently secured to me by way of a registered Bill of Mortgage No …13 (…86C) over property owned by my son being the whole of land described as Lot … on Registered Plan No. …County of …, Parish of … Title Reference ….” It was said that Mr R Borman’s execution of “a full release of the above mentioned Mortgage” was the consequence of his forgiveness of the debt his son (Mr Borman) had previously owed to him.

10. My acceptance of the actions outlined immediately above is particularly relevant to the assessment of Mr Borman’s credit because, when he completed his Statement of Affairs for his trustee in bankruptcy in 1997, he asserted that his indebtedness to his father remained; I do not accept his contention that, at the time he completed this Statement, he was unaware of his father’s actions.

11. I accept that, in 2007, Mr Borman and Ms Hunter considered selling the Centre and the C Street property from which it operated. I accept that the documents prepared in relation to that possible sale include various assertions that suggest they had operated the Centre together and were, together, looking to dispose of it.  Mr Borman said that, when Ms Hunter was unable to locate alternative premises that were suitable, given her health issues, she decided that she wanted to stay at the C Street property forever and so they rejected the offer. He also said that she then offered him $500,000.00 for a half interest in the C Street property – a figure he thought very reasonable given that they had been friends, partners, lovers, sex partners and life companions for 27 years; he said that, at that time, he had decided that he was then ready to settle down and, at the time owned the C Street property, had some savings and also owned gold bullion; he said that, by that stage J Pty Ltd and a business operated through FF Pty Ltd (discussed below) were both generating income.

12. Mr Borman ultimately accepted that Ms Hunter has spent approximately $400,000.00 to renovate that part of the building on the C Street property that she occupies to meet her care needs; whilst he contended that her expenditure had reduced the value of the C Street property, there is no expert evidence to support this contention and, in the absence of the same, I do not accept it.

The J Centre and J Pty Ltd

Some history

1. As noted earlier, Mr Borman operated the J Centre in his own name before J Pty Ltd was incorporated on 17 March 1989.  Its original shareholders were Mr Borman (whom owned 9900 of the 10,000 fully paid shares) and his mother, Ms X Borman (whom owned 100 of the 10,000 fully paid shares).  Whilst she said she was, at some stage, a director of the company, Ms Hunter has never owned shares in J Pty Ltd.

2. Mr Borman was the sole director of J Pty Ltd between 11 March 1991 and 23 May 1997 and between 8 August 2000 and May 2013[12]. He was not a director of J Pty Ltd between 23 May 1997 and 8 August 2000 as he was a bankrupt during this period. He also said that, despite his bankruptcy, he nonetheless undertook a managerial role and carried on the day-to-day operations of the Centre.

   [12] Affidavit of Mr Borman filed 9 October 2018 at [113].

3. I did not understand Mr Borman to challenge the evidence given by Ms Hunter about J Pty Ltd’s taxable income since its inception in 1989.[13] I accept that the summary of this in her affidavit accurately summarised the same. I think it clear from that information that, in the period from its opening until Mr Borman’s bankruptcy in May 1997, the Centre operated through the company had not, as Mr Borman admitted, done well; I also accept that it appears likely that it had been able to do little more than earn enough to pay the loan repayments and allow him to keep the doors open. Given that the company’s taxable income in the years during which Mr Borman was bankrupt was, at best, nominal, it is also clear that its fortunes did not improve during this period. It is also clear, though, that from the time J Pty Ltd made tax deductible donations to the J Foundation, its taxable income was significantly affected by the same.

   [13] Affidavit of Ms Hunter filed 28 September 2018 at [89].

4. Mr Borman said that Ms Hunter was not involved in running J Centre Australia; his evidence is that he was solely responsible for the day-to-day running of the business and had always been responsible for the operation and management of the Centre. He said Ms Hunter had very limited involvement in the business: he said that, between 2000 and 2005, she lectured for one hour each week to customers who attended the residential program and she benefited from that by being able to promote her book “…”.  Ms Hunter’s case, in essence, is to the effect that whilst Mr Borman performed the work associated with the operation of the Centre, she was the “brain” behind it; it was also contended on her behalf that her reputation as the author of published work drew people to the Centre and in this way, she was integral to its success. Mr Borman denied Ms Hunter’s assertions that she participated in the business and contributed to its profitability; he said she did not take part in the day-to-day operations of the business and, having established in 1985, he was the one who grew it.

5. Mr Borman said that the income generated by the business paid the mortgage repayments for the loan secured over the C Street property and also met the rates, land taxes, electricity and water charges levied by the relevant local council.  Whilst this may be true in relation to certain of these expenses, it is, I think, relevant to note that, in his Statement of Affairs prepared for his trustee in bankruptcy in 1997, Mr Borman advised that U Council was owed $10,000.00.

6. It is, I think, clearly established that J Pty Ltd made sizeable donations to the J Foundation over a number of years and that these donations enabled it to reduce its taxable income – for example:

   a)in FY2003: whilst its nett operating profit[14] was said to be $189,159.00, the company tax return for that year showed a loss of about $23,000.00 - a difference Mr Borman explained could have been the result of the company making a donation of about $200,000.00 to the J Foundation; and

   b)in FY2004: whilst its nett operating profit was about $219,346.00, its taxable income was about $79,000.00 - the difference being that amount donated by J Pty Ltd to the Foundation; and

   c)in FY2005: whilst its net operating profit was about $323,532.00, its taxable income was $51,436.00 - the difference being that amount donated by  J Pty Ltd to the J Foundation; and

   d)in FY2006: whilst its net operating profit was about $324,454.00, its taxable income was about ($19,153.00) - the difference being that amount donated by  J Pty Ltd to the J Foundation.

   [14] Determined after taking into account expenses such as wages which Mr Borman accepted included the wage paid to him by J Pty Ltd.

7. The evidence clearly establishes that, after the J Foundation was established J Pty Ltd made tax deductible donations to it. Mr Borman denied that Ms Hunter was unaware of donations made by J Pty Ltd to the J Foundation. Whilst he did not admit that the amount donated by J Pty Ltd in the relevant period totalled about $790,000.00, it seems to me that this was the case.

8. Mr Borman agreed that it was possible that, in the figures prepared for prospective purchasers, he had projected that the Centre would achieve a net operating profit of $325,000.00 for FY2007 and $567,000.00 for FY2008 - the latter figure being one which he admitted during cross-examination was “probably optimistic.” That Mr Borman projected the Centre’s possible returns in the manner that he did in the context of offering the Centre’s and the property from which it operates for sale does not necessarily persuade me that his evidence should be treated sceptically: I consider there to be difference between a prospective vendor expressing puff during the course of a sale process and that person giving evidence under oath.

   Current position

9. J Pty Ltd owns no property in its own capacity; it is the corporate trustee of the Borman Family Trust and, in that capacity, is the registered proprietor of the C Street property.

10. The evidence is a little unclear about the manner in which Mr Borman disposed of the 9900 shares he held in J Pty Ltd: according to one document, he transferred the 9900 shares he held in J Pty Ltd to the J Foundation (for which transfer he received “$0”) in August 1995[15]; however, it was also asserted that, in September 1995, he disposed of the 9900 shares in J Pty Ltd (said to be  “subject to W Bank charge”) to the J Foundation and had received nothing as a result of the disposal; further another document records that, on 6 December 1996, Mr Borman gifted the 9900 shares he owned in J Pty Ltd to Ms X Borman (his mother) as trustee for the J Foundation and that this gift was subsequently put into effect by the transfer of those shares to her prior to his bankruptcy.[16] I am satisfied that Ms Borman transferred her 100 shares in J Pty Ltd to the J Foundation (a trust which I am satisfied was established by Mr Borman and Ms Hunter and about which more is said later).

    [15] Exhibit 4, page 17.

    [16] Exhibit 42.

11. Mr Borman said that Ms Hunter acted unlawfully to attempt to remove him as a director of J Pty Ltd on about 17 February 2016.  He said she purported to appoint her then carer (a Mr Y) as a director on and from 17 February 2016 – being the date on which the relevant document was registered with ASIC. I accept that Ms Hunter caused Change of Company documents to be lodged with ASIC on 7 March 2016. These documents advised that Mr Borman had ceased to be a director and the secretary of J Pty Ltd on 17 February 2016, that she and a Mr Y had been appointed as directors of the same on 17 February 2016 and that Mr Y had been appointed secretary of the company on that date also.[17] I note that, when cross-examined about this, Ms Hunter did not remember there being a meeting of the shareholders of J Pty Ltd to decide to remove Mr Borman as a director of the same or appoint her as a director of J Pty Ltd; she said that she was sure that it would have been done because it was necessary and that she wanted to be a director of J Pty Ltd; however, a call for the production of documents by which she was appointed a director of J Pty Ltd was not answered.

    [17] Exhibit 31.

1. I note that Mr Borman did not accept that he had lawfully been removed as a director of J Pty Ltd; he said that, despite this purported removal, he continued to operate the business after February 2016.

2. Given that I accept that, at present, the J Foundation is the sole shareholder of J Pty Ltd, it seems to me that whomever is the trustee of the J Foundation will be able to take whatever action is necessary to have whomever it considers appropriate as the future director/s of J Pty Ltd.

3. When cross-examined, Mr Borman accepted that he had developed a practice of removing funds from the J Pty Ltd account and paying them into his own personal account; he accepted that he had done this for about two and a half years before November 2018; he also accepted that funds he had drawn from J Pty Ltd had been used by him to pay his legal fees - he said he had been advised by his accountant to do this. He said that $233,626.00 of his legal fees had been paid by J Pty Ltd from funds he had drawn from the company in the 2014/2015FY, the 2015/2016FY and the 2016/2017FY and that he had caused this to occur on the advice of his accountant until his current solicitor told him, at some time during 2017/2018, that this was inappropriate, which caused him to stop drawing funds from J Pty Ltd and applying them in that manner.

4. Mr Borman accepted, in essence, that whilst the funds drawn by him from J Pty Ltd had been earned by the business and were the property of the company, he had used the same for his own private purposes (including the payment of his personal legal fees). Whilst he said that his understanding from his accountant was that the company was “under attack” and, as such, his use of company funds to pay his personal legal expenses was a legitimate use of the company’s funds. I found his attempt to explain his actions to be disingenuous; I also note that he attempted to justify his actions in applying company funds to pay personal legal expenses on the basis that his accountant had told him that legal fees paid in this manner were tax deductible.

Mr Borman’s bankruptcy

1. Mr Borman went bankrupt on 28 May 1997. He said his bankruptcy was caused by the actions of the builder he had engaged to construct the premises on the C Street property and denied that he had been made bankrupt because he could not afford to meet the loan repayments in relation to the funds borrowed for the acquisition and development of that property. Whether the latter proposition is correct or not seems to me to matter little, especially as it is clear that, a result of various actions taken by Mr Borman, the builder to whom he was indebted received nothing of that which he was owed.

2. Mr Borman declared a Statement of Affairs on 20 June 1997 (the Statement).[18] In executing the Statement, he declared that, as far as he was aware, the particulars set out in it were correct. When he was cross-examined, he accepted the proposition that the Statement was entirely accurate and said he would not have lied in it and had done the most accurate job he could in preparing it.

   [18] Exhibit 4.

3. In the Statement, Mr Borman asserted that he then owed $125,000.00 to unsecured creditors, the details of which were as follows: approximately. $100,000.00 to Z Brokers as a consequence of a mortgage, incurred in 1989, held over a previously owned property (which must be the N Street property); approximately $15,000.00 to ANZ Bank, in respect of a credit card facility held with that bank and approximately $10,000.00 to State Bank in respect of a credit card facility held with that bank.

4. Importantly, Mr Borman also declared that he owed $1,397,000.00 to secured creditors, which he listed as follows:

   a)W Bank (first mortgage given 1990) – approximately. $560,000.00; and

   b)Mr R Borman (second mortgage given 1990) – approximately. $352,000.00; and

   c)the builder, AA Pty Ltd (in liq) (caveat 1992) – approximately. $475,000.00; and

   d)U Council – approximately. $10,000.00.

5. He ascribed a value of $650,000.00 to the C Street property; said his income in the past 12 months (that is: from June 1996 to June 1997) had been $11,200.00 and provided an estimate of his income for the next 12 months in the same amount (that is: $11,200.00). Mr Borman declared that, at the time he completed his Statement, his gross salary from his employment by J Pty Ltd as an educator was $900.00 per month. Mr Borman also declared that: he had no accounts with banks, credit unions and the like or financial organisations in the last two years; owned no car; was not entitled to any interest in a deceased estate; owned no shares and was not related to his employer (which was accurate given his gifting of his shares in J Pty Ltd to the J Foundation in about mid-1995/late 1996, as discussed above) and was owed no money by any person. He said he believed the cause of his bankruptcy to be that he had granted a third mortgage assuming that property values would rise but they did not. He also said that, to the best of his recollection, he began having difficulties meeting his debts in June 1992 – which is approximately three years after he started the Centre.

6. Such declaration causes me to regard Mr Borman’s evidence with some scepticism: either he was less than truthful when he declared the time at which he started to have difficulties meeting his debts or he has been less than truthful in his assertion that the Centre was profitable from 1987.

7. Interestingly, Mr Borman did not nominate Ms Hunter as the person with whom contact should be made if he could not be contacted, but provided his father’s name and his address in the USA. It would have been open to me to infer from this omission of the details of the person with whom Mr Borman asserted he had been in a de facto relationship since early 1980 that his trustee in bankruptcy was not made aware by Mr Borman of the existence of the de facto relationship he said had, by then, existed since early 1980.

8. However, inference is unnecessary given that, in the Statement, the word “spouse” is struck through in the question “does your spouse, or any member of your family, have a financial interest in your employer’s business”- however, an affirmative answer is also given[19]; further, Mr Borman wrote “NA” in responding to the question asking that he provide the “name of your spouse or de facto partner”.[20] That is, Mr Borman positively told his trustee in bankruptcy that a question asking for him to name his spouse or de facto partner was not applicable: this is, of course, contrary to his position at trial that he and Ms Hunter had been in a de facto relationship which stared in early 1980.

   [19] Exhibit 4, Question 28 on page 10.

   [20] Exhibit 4, Question 35 on page 13.

9. As discussed later, Ms Hunter adopted a not dissimilar approach when she said, in applying for a Protection Order in September 2014, that she had previously been in a de facto relationship with Mr Borman for about 30 years, when her position at trial was, in essence, that they had not been in a de facto relationship, but had participated in an “association”.

10. Mr Borman also said, in his Statement in 1997, that he had no dependants: an assertion I accept given that I accept that Ms Hunter was, at all times during their relationship/association, financially independent of Mr Borman. He said that no party paid or contributed to his rent or board and that he did not expect to receive any benefit or entitlement (such as the payment or rent or board or doctor’s or chemist’s bills) from any other person or entity.

11. In addition, Mr Borman’s Statement also contains some corroboration of Ms Hunter’s account that they did not live together at the N Street property because, in the course of informing that he had the use of a car owned by Ms Hunter, Mr Borman gave her address as being 10 N Street.

12. Mr Borman’s Statement contained the assertions that J Pty Ltd paid approximately $300.00 per year into his superannuation fund with National Australia Bank; that the company was still trading but owed him nothing and that he did not expect any dividend or distribution from it. He provided information about his disposition of his 9900 shares in J Pty Ltd (said to have occurred in August 1995 to the Foundation for “$0” [21]) and also that he had disposed of 9900 shares in J Pty Ltd (described as “subject to W Bank charge) in September 1995 to the J Foundation and had received nothing as a result of the disposal.[22]

    [21] Exhibit 4, page 17.

    [22] Exhibit 4, page 19.

13. When Mr Borman was cross-examined about the debt to his father referred to in his Statement, he said that his debt to his father was initially $148,000.00 loaned at 14% interest – when asked whether this was simple or compounding (as the documents are silent in that respect), he said the loan had compounded over five years to the point where he owed his father quite possibly more than $1,000,000.00.

14. I do not accept this contention given that the Loan Agreement makes no reference at all to interest being calculated on a compounding basis and that the Statement also contains Mr Borman’s assertion that, at that time, the debt he owed to his father had increased from $148,000.00 to $352,000.00.

15. When cross-examined about the loan from his father, Mr Borman said that it had subsequently been forgiven; despite the Deed of Forgiveness having been executed by his father in June 1996 and notarised in BB State USA in August 1996[23], Mr Borman did not accept that his father had forgiven the loan before he went bankrupt on … May 1997: he said that he had not received the Deed of Forgiveness until late in 1997 – he assumed, because of a Minute of a Meeting of Directors dated in 1998 – and that he did not know when he completed the Statement that his father had forgiven him his loan. He said that he had not received the Deed of Forgiveness before he competed his Statement and said that his father had not sent the same to him at that time: he did not, however, really provide any explanation about how he came to have the Deed of Forgiveness in his possession.

    [23] Exhibit 8B

16. I do not accept this aspect of Mr Borman’s evidence; I think it highly unlikely that he would not have known exactly what his financial position and I also think it more likely than not that he was quite prepared to use his indebtedness to his father in order to ensure that the builder was not paid any of the monies owing to him for work done on the C Street property.

17. I accept that, on 15 July 1998, Ms Hunter wrote to Mr CC to advise that she was depositing funds into his trust account to be used in the refinance of Mr Borman’s loan with W2 Bank; I also accept that, in this correspondence, she noted that the funds provided were to be used for that purpose only and that she recorded that she had been assured that, if the refinance did not occur, all moneys would be returned to her immediately.[24]  I accept that this correspondence was the only “formal” action Ms Hunter took in relation to her provision of $105,000.00 to Mr Borman, noting that he was, then, still a bankrupt.

    [24] Exhibit 38.

18. Mr Borman accepted that Ms Hunter helped him to save the C Street property from the exercise by W2 Bank of its power of sale (pursuant to the mortgage it held over the property) by paying the bank $105,000.00 in 1998. Such payment is obviously a direct financial contribution to the conservation of the C Street property: I think it more likely than not that, without this payment at this time, the C Street property would have been sold by the bank. I consider the fact that this sale was averted to be directly causative of the present-day retention of the C Street property.

19. I accept that Ms Hunter provided the funds she did at Mr Borman’s behest; I also accept that she assisted Mr Borman to execute the scheme suggested by his then solicitor, Mr CC, by which W2 Bank was invited to enter into a Deed of Agreement which provided, in essence, that if the Bank was paid $105,000.00, the amount owing to it would be reduced by the corresponding amount and it would not act to sell the C Street property; I accept that, in providing the funds to Mr Borman that she did in this respect, Ms Hunter enabled him to have the bank enter into this Deed, with the consequence that the C Street property was not sold. I think it more probable than not that, without this injection of funds, the bank would have acted to sell the C Street property, particularly given Mr Borman’s evidence to the effect that he had been putting the bank off for some time. I reject his contention of the proposition that the C Street property was saved by the $105,000.00 payment made by Ms Hunter at that time; I also reject his denial of the proposition that, at that time, he had no other way to reduce the loan in the manner demanded by the bank.

20. Mr Borman said that, whilst Ms Hunter did not ask him to repay her the money she had advanced to him, she was repaid the sum of $105,000.00 “gradually over a period of years”- by him personally from his wages and also by J Pty Ltd from its trading income: that is, on his account, he caused the company to repay a liability that was personal to him. Mr Borman also said that he had not kept any record of these asserted gradual repayments, which he said he made in cash, because he and Ms Hunter were “like a married couple”; he could not provide any documentation to establish that he had made whole or part repayments at various times and emphasised that this was not an ordinary business transaction, but one between a loving couple.

21. In the absence of documentary evidence to corroborate him, I am not persuaded by Mr Borman’s evidence that he repaid Ms Hunter the sum of $105,000.00 which she provided to him in about mid-July 1998.

22. I accept that Ms Hunter participated in a scheme, apparently suggested by Mr CC, intended to deal with the issue of the caveat that had been lodged by the builder over the title to the C Street property.

23. I note that, according to the Minutes of Meeting of Directors of J Pty Ltd on 23 January 1998[25], (at which Ms Hunter and Ms X Borman, Mr Borman’s mother were present), the company resolved to appoint Ms Hunter as its Attorney; she is recorded as having noted that Mr R Borman wanted to transfer his second registered mortgage (…60D) - which had been registered over the C Street to secure the debt of $148,000.00 - to J Pty Ltd as Trustee for the J Trust. The Minutes also record that “Mr Borman has indicated his intention to forgive the Company the debt which would be created by the transfer of the Deed.” However, the stated intention to forgive J Pty Ltd the debt that would be transferred is, it seems to me, inconsistent with the Deed of Forgiveness executed by Mr R Borman in about June 1998 (and notarised in August 1998) by which he forgave Mr Borman the very same debt, which had been secured by the Bill of Mortgage.

    [25] Exhibit 8A.

24. According to the Minutes of Meeting on 23 January 1998, it was resolved that J Pty Ltd would accept appointment as trustee of the J Trust and would hold the mortgage pursuant to the terms of the Deed of Trust.

25. By a document entitled “Deed of Gift” and undated save for “1998”,[26] Mr R Borman ostensibly acknowledged that he had transferred all his right, title and interest in the registered mortgage over the C Street property to J Pty Ltd as trustee for the J Trust for the sum of $148,000.00 (the face value of the mortgage); he then forgave the Trustee the full value of the mortgage by way of gift,[27] with the intention that the C Street property become the absolute unencumbered property of the J Trust. On about 2 February 1998, Mr R Borman executed (in BB State USA) a Transfer[28] of the Mortgage No …60D to J Pty Ltd for consideration of $148,000.00.

    [26] Exhibit 8D.

    [27] Despite having already earlier forgiven the loan which supported the mortgage.

    [28] Exhibit 8E.

26. Even if I am wrong in the conclusions I expressed earlier about Mr Borman’s knowledge of his father’s forgiveness of the debt owed to him (as outlined by Mr Borman in his Statement),  Mr Borman’s evidence when cross-examined about this issue included that, having received the Deed of Forgiveness and other documents from his father during the course of his bankruptcy, he did not remember telling his trustee in Bankruptcy that he had learned that his asserted debt of approximately $352,000.00 to his father had been forgiven; I simply do not accept Mr Borman’s attempt to take cover behind his asserted receipt of legal advice and that he had simply done only what his then legal adviser had “directed” him to do.

What happened after Mr Borman was discharged from bankruptcy?

1. I accept that Mr Borman was discharged from bankruptcy in Mr Borman was discharged from in May 2000. I accept that he resumed being a director of J Pty Ltd from 8 August 2000.  I also accept that he continued to operate the business run through J Pty Ltd.

The Hunter Family Trust is established

1. The Hunter Family Trust (the HF Trust) was established by Deed on 3 November 2000.[29] Ms Hunter and Mr Borman are trustees of the same; both are primary beneficiaries, as is/was a Ms RR.

   [29] Exhibit 32.

2. When asked about the establishment of this Trust during her cross-examination, Ms Hunter said that she had asked that she be appointed as a trustee of it and that Mr Borman had also been appointed as a trustee of it. She clearly suggested that Mr CC, who had prepared the Trust Deed, was a person who was “against” her and “for” Mr Borman.

3. Relevantly, Ms Hunter said that the HF Trust had been established on her instructions after she was told that it was the best thing for her to do to protect her assets in case she was sued by “big companies” because of adverse things she had said. That she caused Mr Borman to be a trustee of this Trust and that he accepted this appointment is, I think, a further indicia of the nature of the relationship between them at the time it was declared.

4. Ms Hunter appeared to accept that the shares she had previously owned in FF Pty Ltd had been transferred into this Trust; she also said during her cross-examination that she accepted that it sounded like she had placed the funds she received from the sale of the N Street property into this trust; when she was asked how much was currently in this Trust’s bank accounts (given that she had said in an affidavit filed in 2018 that, as at 31 October 2002, it had funds of $430,197.57), she said that she did not know and that her lawyers and accountant would know. I accept that Ms Hunter was being truthful in the responses she gave to the questions asked of her about this Trust. I am not persuaded that she was deliberately being evasive or obtuse in answering as she did.

5. I think that her evidence that she “hoped” that the Trust still exists provides a good example of her state of knowledge of her current financial and other affairs as at the date of the hearing.

Hunter Family Trust

1. When asked about the establishment of this Trust during her cross-examination, Ms Hunter said that she had asked that she be appointed as a trustee of the trust and that Mr Borman had also been appointed as a trustee of it. She clearly suggested that Mr CC, who had prepared the Trust Deed, was a person who was “against” her and “for” Mr Borman. Ms Hunter said that the Trust had been established for asset protection purposes in case she was sued by “big companies’ because of things she had said; she said that the Trust was established on her instructions after she was told that it was the best thing to do. Ms Hunter appeared to accept that the shares she had previously owned in FF Pty Ltd had been transferred into this Trust and that it sounded as though she had deposited the sale proceeds she received from the sale of the N Street property into it also. When asked whether this Trust had any bank accounts, she said that her lawyer would know if it did.

The joint DD Bank account

1. According to documents from DD Bank, Mr Borman and Ms Hunter appear to have signed those documents needed to open a joint account on about 20 June 2002 - I do not accept Ms Hunter’s assertion that Mr Borman opened the joint DD Bank account without her knowledge and by forging her signature.

1. I accept that their joint account was opened in July 2002.[30] According to these documents both were “contracting partners” and both declared that the contracting parties were the beneficial owners of the assets. The terms of the Joint Account Agreement which applied to the account included that any joint holder be individually entitled to have unrestricted access to the account. Nothing in the evidence before me particularly illuminates the opening balance of the joint account and I accept Ms Hunter’s contention that it was modest.

   [30] Exhibit 23.

2. I accept that, when the joint DD Bank account was opened, the balance was modest. I also accept that, save for the $550,000.00 she transferred from her DD bank account to this account, Ms Hunter made no deposits to the account. I accept that the $550,000.00 Ms Hunter deposited into the joint DD Bank account were transferred by her from her own DD Bank account (that is, the account held solely by her in her name) and that such founds originated from those she had at the commencement of her relationship with Mr Borman.[31]

   [31] Affidavit of Ms Hunter filed 28 September 2018 at [25].

3. Whilst Ms Hunter initially said that she did not accept that Mr Borman had made contributions to the joint account over the years[32], she ultimately said that she knew he had caused cheques received by him in payment of what he described as two modest pensions from  the US government (the first of which he said he started to receive in 2005 and the second in 2007 and which, at trial, totalled about USD$1,300.00 per month, or about AUD$1,800.00 per month) to be sent to DD Bank; whilst she originally did not accept that he had caused them to be deposited into the joint DD Bank account, she ultimately said that he may have, as she had no way of knowing where he sent his money. Mr Borman said that he had caused his pension cheques to be deposited into the joint DD Bank account.

   [32] Affidavit of Ms Hunter filed 28 September 2018 at [24].

4. Mr Borman consistently said that he had caused his US pension cheques to be deposited into the joint account[33] and I accept this aspect of his evidence. During his cross-examination, he said, in effect, that he first started to send his US pension cheques to Mr EE every month in 2007 and that he thought he had last made cheque deposits into the joint account in 2010 or 2012.

   [33] Affidavit of Mr Borman filed 15 October 2018 at [80].

5. Whilst he also said that he thought he had provided bank statements for that account, these did not form part of the evidence before me; additionally, Mr Borman’s evidence did not include a quantification of the total of the funds he said he had caused to be deposited into the joint DD Bank account.

6. It is, I think, relevant to record that, during her cross-examination, Ms Hunter said, in essence, that the opening of the joint DD Bank account was to protect Mr Borman in case he was sued. It is, I think, unlikely that one would assist another in such a manner and for such a purpose if the relationship between the people was that of business associates only.

Actions are taken in relation to the C Street property

1. Mr Borman appeared to me to have said that, whilst he finally caused the debt to W2 Bank, secured by mortgage over the C Street property, to be repaid in full in or about 2006 and that the bank executed a transfer to transfer its mortgage over the C Street property to J Pty Ltd in about July 2006, the property remained encumbered by the caveat earlier registered by the builder.

2. I accept that Mr Borman and Ms Hunter participated in a scheme, which I suspect was the result of advice provided by Mr CC, to cause the transfer of the C Street property to J Pty Ltd as trustee for the BF Trust in the manner outlined briefly below. I also note that, when asked whether she had signed various documents, Ms Hunter repeatedly asserted that she signed those which she did because Mr CC had told her that if she did not sign them she would lose the money she had advanced to Mr Borman. She also appeared to me to accept the suggestion that, according to Mr Borman’s account to her, the steps that were to be taken were intended to finally defeat the impact of actions previously taken by Mr Borman’s creditor.

The Borman Family Trust (the BF Trust) is established

1. I accept that the Borman Family Trust was established by written deed on 19 February 2007. I accept that Mr Borman and Mr CC were the appointors of the BF Trust and, as such, had the power to appoint and remove the trustees of the same. I accept that Ms Hunter was initially appointed as trustee of this Trust and accepted appointment as its sole Trustee on 19 February 2007.

2. I accept that, by Lease executed on 26 February 2007[34], Mr Borman granted a lease (which was said to commence on 1 January 2006 and expires on 31 December 2031) of the C Street property and all the buildings and improvements on it to J Pty Ltd[35] for a prescribed rent of $36,000.00 per annum (or $3,000.00 per calendar month), with a rent holiday for the first six months. Mr Borman said that, on about the same day, J Pty Ltd granted to itself priority of the two mortgages and then exercised its power of sale to sell the C Street property to Ms Hunter for $550,000.00. 

   [34] Lodged on 5 April 2007.

   [35] Exhibit 39.

3. Mr Borman said that, on 18 April 2007, Ms Hunter, in her capacity as trustee of the BF Trust, resolved to enter into a contract to purchase the C Street property: the intention according to him was that she execute the contract in her name and hold the property in trust for the BF Trust; that day she executed a Declaration of Trust acknowledging that she was purchasing the C Street property in her name for $550,000.00, with the intention to hold it for and on behalf of the BF Trust.

4. Whilst Ms Hunter originally asserted that she did not knowingly consent to the transactions which resulted in Mr Borman, via his control of the BF Trust, effectively having control of the C Street property, she later accepted, when cross-examined, that she signed the necessary documents with the requisite intention that she hold the C Street property on Trust for the BF Trust. I also accept, as more likely than not, that she acted as she did because she thought that, as the sole Trustee of the BF Trust at the time of this transaction, she controlled it; I think it much more likely than not that she did not appreciate what it meant that Mr Borman and Mr CC were the appointors of the BF Trust and, therefore, had the power to remove the trustee. I accept as more likely than not that she did not take any steps to have it formally recorded anywhere that the BF Trust owed her $550,000, on account of her provision of the funds, because she did not understand at that time that she “had to do that”.

5. I accept that, by Transfer executed on 26 April 2007, J Pty Ltd (exercising power of sale under mortgage No …12) transferred the C Street property to Ms Hunter for consideration of $550,000.00.[36] It seems that stamp duty of $30,725.00, assessed on the amount of $850,000.00 (being what the property was apparently appraised or valued at, at the time) was also paid by Ms Hunter.[37]

   [36] Exhibit 40.

   [37] Affidavit of Ms Hunter filed 28 September 2018 at [70].

6. Mr Borman said that Ms Hunter paid the ostensible purchase price of $550,000.00 from money she had on deposit in her name only with DD Bank.[38] On the evidence before me, it seems that this occurred in April 2008.[39] I think it clear that the $550,000.00 provided by Ms Hunter was property to which Mr Borman had made no direct financial contribution; I accept these funds  were sourced from funds she owned at the time they started their relationship.

   [38] Affidavit of Mr Borman filed 9 October 2018 at [101].

   [39] Exhibit 24.

7. Mr Borman said that the sum of $550,000.00 was deposited into joint DD Bank account and not paid to J Pty Ltd. I accept that this was the case.

8. That Mr Borman and Ms Hunter joined together to act as they did is, I think, a further indicia of the nature of the relationship between them at that time.

9. I also accept that, at some time after September 2014, Ms Hunter caused the sum of $550,000.00 to be transferred from the joint DD Bank account back into the DD Bank account she held only  in her name.[40]

   [40] Affidavit of Mr Borman filed 9 October 2018 at [103].

Discussions about the possible sale of the Centre and the C Street property

1. I accept that, in late 2007, Mr Borman entered into discussions about the possible sale of the J Centre and the C Street property with a Mr UU.[41] Whilst the sale obviously did not proceed, it is clear that various documents prepared for the prospective sale of the business and the C Street property (whether for Mr UU specifically or more broadly) refer to the involvement by Mr Borman and Ms Hunter in the business in a  manner that suggests to me that it was intended to convey that the operation of the Centre had very much been a joint venture - for example, it was said that:

   After founding, building, owning and operating the business for 22 entirely enjoyable years, [Mr Borman] and [Ms Hunter] wish to retire and to pursue other interests. They can be extremely proud of their achievements as they offer up the opportunity for another owner to love, cherish and enrich the next generations of [J Centre] devotees.

FF Pty Ltd[42]

[41] Exhibit 41.

[42] Exhibit 18:  ASIC Current & Historical Organisation Extract

1. I accept that J Centre No 1 Pty Ltd was registered on 12 August 2002 and, following a change of name in January 2005, was known as FF Pty Ltd.[43] I accept that Ms Hunter was appointed as a director of the same on 12 August 2002. She originally owned all of the shares in it but, as I understand the history, Mr Borman acquired shares in it in January 2010.  On Ms Hunter’s account, these shares were transferred to her in about September 2016 such that, at present, she is the sole shareholder in FF Pty Ltd.[44] This transfer is the subject of challenge by Mr Borman.

   [43] Affidavit of Ms Hunter filed 28 September 2018 at [94].

   [44] Affidavit of Ms Hunter filed 28 September 2018 at [101].

2. It seems that Mr Borman was a director of FF Pty Ltd between 15 January 2010 and 1 January 2016. Mr Borman said Ms Hunter made him a director of the company in 2010 because she was fearful she was going to die. 

3. When cross-examined, Ms Hunter was unsure whether she was a director of FF Pty Ltd but accepted the assertion that she is its sole director. She was also unsure about the document relied on for the assertion that, since 5 February 2006, FF Pty Ltd has been the trustee of the J Foundation. When asked whether she recollected taking any steps in February 2006 to change the Trustee of the J Foundation, Ms Hunter said that, whilst she remembered wanting to get Mr Borman out of her life, she could not point to anything specific that had happened. Mr Borman’s evidence was to the effect that, when Ms Hunter told him before September 2014 that she had unilaterally established a bank account in the name of FF Pty Ltd as Trustee for the J Foundation, he told her that she could not use FF Pty Ltd as trustee of the same because they were its trustees.

4. Mr Borman said that, to the best of his recollection, he did not cause the bank account in the name of FF Pty Ltd as trustee for the J Foundation to be established: he denied authorising or initiating cash transfers from FF Pty Ltd to the J Foundation and said that Ms Hunter initiated all of the transfers that occurred. He also said she did not consult him or give him any advance notice that she intended to transfer his shares in FF Pty Ltd to herself and that he received no consideration for the purported transfer of his shares. He also said that her actions in this respect occurred at about the same time (albeit a month earlier) as she acted unilaterally to cause him to be removed as a director of J Pty Ltd.

5. Mr Borman said that, despite becoming a director of FF Pty Ltd in January 2010, he only became involved in the company’s business activities in 2012 when, on his account, Ms Hunter effectively transferred its business into GG Pty Ltd: he denied causing FF Pty Ltd to cease trading in 2012 and then carrying on the business it previously conducted via GG Pty Ltd. When cross-examined, he also said that he did not recall registering the business name “GG products” and said that, if he did, he acted on Ms Hunter’s instructions.

6. It is accepted that GG Pty Ltd paid rent for its use of the C Street property until a number of years before the 2018 hearing.

Ms Hunter is removed as trustee of the BF Trust

1. I accept that, on 4 August 2009, Mr Borman and Mr CC (in their capacity as appointors of the BF Trust) resolved to remove Ms Hunter as trustee of the same and to appoint J Pty Ltd in her stead.

A new Trustee is recorded on the title of the C Street property

1. I accept that, on 29 September 2009, a Form 1 – Recording of New Trustee was registered on the title of the C Street property. By that document, Ms Hunter transferred the whole of the estate in fee simple in the C Street property to J Pty Ltd in its capacity as trustee for the BF Trust.

2. I accept that, as a consequence of the actions described above, the C Street property is property of the BF Trust.

GG Pty Ltd

1. Mr Borman said that, in 2012, Ms Hunter was faced with a $20,000.00 judgment against FF Pty Ltd. He said she told him she had been advised to liquidate that company and transfer all of its assets to a new company: GG Pty Ltd. He said she also told at the time that it was her intention to ensure that she had no assets in her name in Australia. He said, in essence, that in furtherance of this plan, she asked him to incorporate GG Pty Ltd (a name he accepted she had invented) and to be the sole shareholder and director of the same.

2. When challenged in cross-examination that no Judgment had been entered against FF Pty Ltd, Mr Borman said that Ms Hunter had told him that it was going to be.

3. Ms Hunter’s case is, in essence, is that Mr Borman misappropriated the business she previously operated via FF Pty Ltd, by acting as though it had been transferred to GG Pty Ltd; she denied ever agreeing to this and asserted that, through GG Pty Ltd, Mr Borman continues to use her name and reputation to promote the business he operates via GG Pty Ltd without payment to her for her contribution to the same. It was advanced on her behalf that this was the case despite her ownership of the copyright for (at least some of) the publications it sells.

4. Mr Borman rejected the suggestion that, in essence, he simply took over the business Ms Hunter had run through GG Pty Ltd because she had been unwell and helpless to prevent him from doing so. Despite rejecting this proposition, he also said that he had been the managing director of GG Pty Ltd in name only for the first two years following its incorporation – that is, until 2014, the year in which he asserted that he and Ms Hunter separated. He said that, during the first two years, Ms Hunter’s staff had done most of the work involved in running the business because she was frequently bedridden; he said that, despite this, she continued to make the decisions about the business and he simply signed the quarterly BAS statements and the annual income tax statement when asked to do so; he also said that, for the first two years (that is, until 2014) he never considered GG Pty Ltd to be “his” because Ms Hunter ran it as she had always run FF Pty Ltd.

5. Mr Borman also said that, when Ms Hunter “turned on him” in 2014, he decided that, because of her “irrational” behaviour, he did not want her anywhere near the website or to be able to email customers because he was concerned she might ruin the business.

6. Given Mr Borman’s own evidence (as summarised briefly above), I accept the contention made on behalf of Ms Hunter that, from 2014, Mr Borman took over the business she had previously run through GG Pty Ltd. I also accept that Mr Borman did not receive any distributions or dividends from GG Pty Ltd in the FY2014-2018 (inclusive) and thus did not benefit in that way from his assumption of control over the business operated though the company. However, I consider that he did benefit, in a sense indirectly, during those years when GG Pty Ltd paid rent to J Pty Ltd for its occupation of the premises on the C Street property because such payments increased the ability of J Pty Ltd to make payments to him, whether by way of wages or superannuation contributions.

7. Ms Hunter’s evidence was to the effect that Mr Borman caused GG Pty Ltd to sell her publications and products, which had previously been sold online by FF Pty Ltd, and by doing so he retained the benefits earned from her intellectual property in those products. On the evidence before me, I accept that it is more likely than not that this occurred.

8. It is not disputed that Mr Borman has not caused GG Pty Ltd to pay Ms Hunter anything from its profits since 2014; it is not disputed that he has retained all of the income earned by GG Pty Ltd since then and applied the same for his own purposes. Mr Borman initially said that he was justified in taking this approach because all of the products held by FF Pty Ltd had been transferred to GG Pty Ltd at Ms Hunter’s request and, therefore, she was not entitled to the fruits of her inventions/work; however, he also said that he was not sure that there was a document which evidenced the asserted transfer of “everything” from FF Pty Ltd to GG Pty Ltd and then that he did not know whether there was any transfer from FF Pty Ltd to GG Pty Ltd.

9. When asked whether he used Ms Hunter’s intellectual property for GG Pty Ltd, Mr Borman said “hers as a result of an oversight.” I consider that this answer amounts to an admission that he knows he has caused GG Pty Ltd to use Ms Hunter’s intellectual property and receive the benefit of the same for its sole purposes – and, given his control of GG Pty Ltd, he has received such benefits for his sole purposes – in circumstances where there was never any transfer of Ms Hunter’s intellectual property to GG Pty Ltd.  I am persuaded that Mr Borman in effect appropriated the business Ms Hunter operated through GG Pty Ltd between 2012 and 2014.

10. I also accept that Mr Borman has caused GG Pty Ltd’s use of Ms Hunter’s intellectual property to continue on an ongoing basis since 2014; he accepted that, as at the date of the hearing in 2018, he continued to use Ms Hunter’s image and name on the website used by GG Pty Ltd to promote its business and sell its products; he accepted that, despite his evidence being that Ms Hunter had nothing to do with the operation of GG Pty Ltd or the business operated through it since 2014, its website continues to refer to her by name: for example, customers are told to confirm their request to receive “[Ms Hunter] free ezine enabling you to keep posted on [Ms Hunter’s] latest research, tips and more” – a message that is signed “[Ms Hunter’s] team”.

11. Whilst Mr Borman said, when cross-examined, that he thought that they should perhaps delete these messages, it is clear he has not done so since assuming control of GG Pty Ltd and its business in 2014. Given his actions and the contents of the website, I do not accept his rejection of the proposition that, since he took over the business operated through GG Pty Ltd in 2014, he has simply been trading off Ms Hunter in every conceivable way and exploiting her image, her reputation and/or her intellectual property. I also accept, as more likely than not that Mr Borman caused the staff who work for him to change the PayPal account operated by GG Pty Ltd from one over which Ms Hunter had control to one over which he has control and, by so doing, ensured that she did not receive any payments from the sale of products as had previously been the case prior to 2014.

12. A proper appreciation of Mr Borman’s attitude to his stewardship of the businesses operated through J Pty Ltd and GG Pty Ltd can be appreciated by considering his answer to why, given that each of these entities continued to trade and earn income after the September 2014 separation, he did not remit any of the income they earned to Ms Hunter: he said, in essence, “why would I want to do that? She has treated me abominably.” He also said that he knew she had a source of funds and would not be “starving in the street.”

1. On 9 November 2018, I ordered that Ms Hunter be released from the undertaking previously given so as to permit her to draw up to $275,000.00 from funds held in the B Bank account; I did so on the basis that she asserted that she needed to be able to access funds up to that amount to meet her anticipated living expenses - (estimated to be $186,000.00 for the following six months) and to pay outstanding and anticipated legal fees of $90,000.00. Further drawings from the B Bank account have been made in the amounts and at the times noted in the table above.

2. Given: my conclusion that Ms Hunter’s pre-cohabitation property was the original source of the funds held in the B Bank account; and my conclusions about the manner in which these two people managed their finances during their relationship and the consequence of that on the determination of those orders which are just and equitable; and the absence of evidence to enable me to quantify Mr Borman’s total contribution to the funds previously held in the joint DD bank account; and my conclusion about the ownership of the funds from which she has drawn; and Ms Hunter’s personal circumstances and her relatively long-standing need for care; and that I accept the contention that, since 2014, Mr Borman has had the benefit of receiving all of the income generated by GG Pty Ltd (in the circumstances discussed earlier); and my acceptance of the principles that parties are not required to go into a state of suspended economic animation pending the resolution of proceedings such as this and that the notional adding-back of property which I accept has, in the majority, been spent on meeting the reasonable care needs of a person in Ms Hunter’s circumstances (given the manner in which she has historically arranged for her personal care needs to be met since 2014) ought be the exception rather than the rule, I decline to exercise the discretion to notionally add-back those funds which Ms Hunter has drawn from the B Bank account.

The Statutory considerations

1. Having concluded that, on balance that I am satisfied that Mr Borman and Ms Hunter were in a de facto relationship from about February 1980 until about September 2014, I am required to consider first whether, in all the circumstances of their particular circumstances, it is just and equitable to make any orders altering their interests in their property.

2. In approaching this task, it is important to remember that the finding that parties had been in a lengthy de facto relationship does not result in any presumption or assumption that their interests in property should be different to what they are and have been as a result of the various decisions made during the currency of that relationship about the manner in which property acquired during the same would be owned and dealt with; the mere fact that a de facto relationship was of significant duration does not mandate that the parties to the same should receive property of equal value as a result of  proceedings such as these. Further, the mere fact that parties were in a lengthy de facto relationship does not mandate that, in exercising the broad discretion involved in determining whether it is just and equitable to make any orders altering their existing legal and equitable interests in the property the subject of proceedings, the Court apply any presumption that the contributions made by Mr Borman and Ms Hunter during the same were equal.

3. I consider that, even though I have been persuaded that Mr Borman and Ms Hunter were in a lengthy de facto relationship, they actually approached their respective financial positions within the same in a manner more akin to that of business partners or associates: each was involved in various real property transactions to the exclusion of the other; each maintained separate bank accounts save for the sole joint account with K Bank; each used the other as a protective shield when facing “attack” from parties external to their relationship where such “attack” involved risk to the property each owned individually; whilst  they lived together at the C Street property and, I think both contributed in different ways to the operation of the J Centre business operated from there,  each later ran their own separate business, albeit a business that was complimentary of the business run by the other, using staff each individually employed; their financial situations remained largely separate – whilst Ms Hunter helped Mr Borman to retain the C Street property by providing him with $105,000.00 at what I consider to be a vital time, the J Centre thereafter supported Mr Borman and, via its profits, enabled him to cause himself to receive significant personal superannuation entitlements – entitlements that were not made available to Ms Hunter despite the fact that, on both parties’ accounts, she at least lectured at the J Centre on a regular basis and, as a result, would (had the parties wanted to act to achieve this) have been in a position to receive superannuation contributions from J Pty Ltd in the same manner in which Mr Borman received them.

4. Whilst the evidence revealed that, on occasions, each of Mr Borman and Ms Hunter evidenced their intention to benefit the other after their death, such intentions did not seem to me to cause either of them to change the way in which they chose to own property during their de facto relationship – further, both sought to assert control over various entities in which both were directors and Mr Borman in particular acted in his own interests (rather than joint interests) when, on 4 August 2009, he caused Ms Hunter to be removed as the trustee of the BF Trust and replaced by an entity under his control.

5. In arriving at these conclusions, I note that Mr Borman accepted that he and Ms Hunter conducted separate businesses and did not intermingle their businesses finances. 

6. I have already found that Mr Borman has possession of three one kilogram bars of gold which are owned by Ms Hunter. Such finding does not represent any change in the ownership of that property. He will be ordered to provide Ms Hunter with this property within a short period of time hereafter.

7. Insofar as it was asserted by Mr Borman that he and Ms Hunter applied their financial resources for mutual benefit, the same could almost be said of any occupants of a share house. That another, including one with whom a party is in a de facto relationship, obtains benefit from financial resources does not, it seems to me, mandate that justice and equity will only be achieved if there is a change ordered to the existing legal or equitable ownership of the resources from which that benefit is derived.

8. Whilst I have accepted that Mr Borman caused his US pension to be deposited into the joint K Bank account between about 2007 and about 2010-2012, I have no evidence which quantifies the amount of that contribution. I accept that both Mr Borman and Ms Hunter largely supported themselves financially during the course of their relationship: Ms Hunter from funds and property she had at the commencement of the same and Mr Borman from the earnings of the J Centre business (whether when operated as a residential facility or in its iteration as an online business).

9. I am not persuaded on the evidence before me that, other than in relation to the specific matters to which I have particularly referred in these Reasons, either of Mr Borman or Ms Hunter supported the other financially. I consider that both chose to live very much separately financially; save for the situation in respect of GG Pty Ltd from 2014 onwards, both assisted the other to deal with real or anticipated threats to their ongoing ownership or control of property each owned or controlled individually and both did so from the perspective of assisting the other to maintain control of the threatened entity or business.

10. I accept that Ms Hunter received not insignificant inheritances during the course of the de facto relationship which I have found to have existed. I think it much more likely than not that, consistent with the shared approach to financial matters during their relationship, she applied these funds in whatever manner she determined was appropriate; I accept she was likely generous in gifting her money to those whom she befriended (given her evidence, which I accept, that she had provided at least $350,000.00 to friends over the years); I think it much more likely than not that this was an approach she took consistently during the relationship.

11. In so far as the day-to-day operations of the J Centre run from the C Street property is concerned, I think it much more likely that not that Mr Borman undertook the same; I think Ms Hunter’s approach to business management was very likely always to have been that of a delegator to staff; I accept as highly likely  that she approached the running of her enterprises (such as FF Pty Ltd prior to 2014) from this perspective: that is, she was the decision-maker and the instigator who delegated responsibility for day to day tasks to others; in contrast, I accept as more likely than not that Mr Borman did the day-to day tasks associated with the operation of the J Centre and was assisted in these by staff he employed for that purpose. I also accept though, that Ms Hunter contributed to the success of the J Centre by virtue of the fact that the book she authored created a certain amount of custom for the centre and I think it highly likely that she was “a presence” at the centre. I am not persuaded that Mr Borman was only able to achieve what was achieved from the operation of the J Centre and the business operated from the C Street property because of Ms Hunter’s inspiration, encouragement and enterprise; I accept that he brought his own energy to the creation and operation of the J Centre.

12. A proper appreciation of Ms Hunter’s current attitude to Mr Borman’s contribution to the operation of the J Centre during their relationship can be seen from her answer when asked whether he had been responsible for the day-to-day running of the same: she said, in effect, that he had done “the dog’s work” whilst she did “the intelligent part” of the work needed to run the business.

13. I also accept as more likely than not that, at various times prior to September 2014, Mr Borman assisted Ms Hunter during illness and supported her in dealing with the consequences of the same; I think it highly likely that Ms Hunter provided care to Mr Borman at various times also; I accept each employed staff to help them in their respective businesses; I also accept as more likely than not that both Mr Borman and Ms Hunter did various domestic chores and that it is more likely than not that, on occasion, both benefited from chores or tasks done by staff employed by the other.

14. However, I also accept that, after the September 2014 separation of the parties, Mr Borman has solely received the benefit of Ms Hunter’s intellectual property as a result of the manner in which I have found him to have acted vis-à-vis the operation for the business now operated through GG Pty Ltd. Given that he has not provided Ms Hunter with any part of the financial benefits achieved from this business despite it continuing to trade on her reputation, to some extent at least, and selling products she created (amongst other products sold), I consider that Ms Hunter has made an on ongoing contribution since September 2014 to Mr Borman’s financial support. The difficulty lies, I think, in attempting to quantify the same given that the actualisation of the financial benefit has also required ongoing input from Mr Borman.

15. I accept that Mr Borman, who is about 15 years younger than Ms Hunter, enjoys significantly better health than Ms Hunter. I accept that her health could easily be described as relatively poor; however, it also seemed to me that, whilst Ms Hunter requires 24 hour care and, as Mr Borman said, has done so for at least the last few years, the carers and associated service providers she has been able to employ to care for her appear to have ensured that she continues to enjoy her life.

16. Given my conclusion about the ownership of the funds held in the B Bank account referred to above, Ms Hunter has that as well as the gold bullion to be returned to her possession by Mr Borman from which to support herself financially in the future; as well as the property under his control (which includes the gold bullion in his safe after the return to Ms Hunter of three one kilogram bars of gold), the evidence is to the effect that Mr Borman receives about $300.00 gross per week as a consequence of his employment by J Pty Ltd and about $500.00 per week from his US pensions; in addition, he continues to run the business operated through GG Pty Ltd.

What should happen to the C Street property?

1. As noted earlier, Mr Borman and Ms Hunter both live in the 100 metre long premises on the C Street property.

2. Mr Borman sought to receive the C Street property which has served as his home since 1990. He said he had a great deal of emotional attachment to the C Street property and contended that his claim to it was greater than Ms Hunter’s: he said he was responsible for buying the vacant land in 1987; he designed the building; arranged finance and engaged the builder; obtained the necessary building approval and caused the loan secured by mortgage to be repaid. He also said that he had conducted J Pty Ltd’s business from the property and would suffer serious prejudice if he was required to vacate it.

3. Whilst Mr Borman said that he intended to continue to operate J Pty Ltd’s business from the property, he accepted when cross-examined that, given that the residential programme ceased by 2008 and its business now consisted of mail order and business over the internet, he would not need to operate it from the C Street property in order to continue to operate it; he also accepted that the manner in which the products are sold meant that there was no longer any requirement for significant storage space.

4. Whilst he accepted that he could run a mail order business from somewhere other than the C Street property, Mr Borman said he did not want to do that; what he wanted to have was what they had before - which was much more than a mail order business. He also said that he needed the C Street property to do what he wanted to do with it - which was to restore it to a “happy, joyous environment that it was 10 years ago before [Ms Hunter] went downhill first and then created a baleful presence starting in 2014.”

5. Mr Borman said he was happy for Ms Hunter to continue to live in the premises on the property on a rent-free basis until she is no longer capable of remaining there or her death.  He said that he was also willing to cause J Pty Ltd as Trustee of the BF Trust to grant her an appropriate registrable interest so as to secure her rights to continue to live in the premises on the property on a rent-free basis and to afford her peace of mind in that regard. He said there has been no incidents between Ms Hunter and himself before or since their separation that would persuade the Court that they could not both continue to live in the premises on the C Street property: given the size of the premises, there is ample room for each of them to continue to live as they have been. Mr Borman denied that he had acted in any way to cause Ms Hunter detriment whilst she has lived at the Julie away property: he denied having a plan to cut the electricity supply and said that the electricity has never been cut.  He said that, whilst there had earlier been some issues between himself and Ms Hunter’s carers, these had not persisted after 2017.

6. However, when she was asked in cross-examination whether, if it was decided that the C Street property would remain in the BF Trust under the effective control of Mr Borman, she wanted to stay living on the property for the rest of her life or move, Ms Hunter said “I would rather be dead.”

7. Ms Hunter said she would definitely move if she could find somewhere where the environment was not so bad it made her ill; however, she also said she had previously, on many occasions, tried to find a place other that the C Street property at which to live but it was “impossible”: she said the buildings were poisonous to her and it was all too hard to find alternative accommodation that met her needs and did not adversely impact her health. She ultimately said that she thought it would be impossible for her to find somewhere to live other than at the C Street property because she felt that all buildings are “toxic” for her unless she is in her own home with clean air coming in. Ms Hunter also remarked that most of the approximately $400,000 she has spent on the C Street property after September 2014 (at least on or associated with that part of it which she occupies)  had been spent to improve the premises to meet her specific needs.

What should happen to GG Pty Ltd?[75]

[75] The financial accounts of which are Exhibit 12.

1. It was agreed that this company has a value of $17,000.00 for the purposes of these proceedings. What was not agreed was by whom the entity should be received or retained.

2. Mr Borman said that Ms Hunter has not taken any part in the business operated by GG Pty Ltd since September 2014; he wants to retain the company. Ms Hunter seeks to receive the company and thereby, from her perspective, regain control over her intellectual property and obtain the benefit of the income generated by it.

3. Mr Borman said GG Pty Ltd  not going very well; there had only been a very small profit the last year and that the company was probably going to lose money he would keep its current employee out of a sense of loyalty; despite saying that he was “essentially” keeping GG Pty Ltd going to keep that employee going, Mr Borman said that he would object to GG Pty Ltd  being transferred to Ms H as she proposed (and that she would  employ a manger to manage it); he said he objected because J Pty Ltd and GG Pty Ltd had always been interlinked and complimented each other and to separate them would put them into conflict with each other because they sold similar products; he also considered that Ms Hunter was not presently competent to run a company. He wanted to continue to retain it and run it as he has since 2014.

4. Ms Hunter sought that Mr Borman be ordered to: transfer his shareholding in GG Pty Ltd to her; complete any outstanding financial reporting for the company in consultation with a chartered accountant and deliver such documents to her; resign as an officeholder of the company; transfer his interest in the website known as “…” to her and remit any information relating to GG Pty Ltd which is necessary for her to resume the trading of the business.

5. Given Ms Hunter’s personal circumstances, it seems to me that Ms Wallace (or someone employed by her on behalf of Ms Hunter) would be required to operate this business on her behalf. Ms Wallace’s evidence was, in effect, that she projected that, if Ms Hunter took over the operation of the business operated through GG Pty Ltd, the same could provide her with an income of about $60,000.00 per year. She said she arrived at this figure using the figures in the tax returns prepared on behalf of the company and on the assumption that, if Ms Hunter achieved the orders in respect of GG Pty Ltd that she sought and also received the C Street property, there would be no need for the company to pay rent for its occupation of the premises at C Street and, therefore, would, she thought achieve a profit. She sad that she believed that GG Pty Ltd could produce an income of about $60,000 per annum for Ms Hunter, taking into account the fact that she would have to pay someone to run the business for her.

Who should be the future trustee of the Foundation?

The Foundation’s trustees

1. As noted earlier, when the Foundation was first established, Mr Borman and Ms Hunter and a Ms PP were its trustees. There is a factual dispute about whether Mr Borman was lawfully removed as a trustee of the Foundation and replaced by FF Pty Ltd, an entity under Ms Hunter’s control.

1. According to the contents of a document entitled “Deed” dated 5 February 2006[76], Mr Borman, Ms Hunter and Ms RR retired as trustees of the Foundation and appointed FF Pty Ltd to act as trustee of the Foundation. Mr Borman challenged that he had ever retired as a Trustee of the Foundation. He said that he did not ever remember signing the Deed; he also said he would never have signed it and that it would have made no sense to appoint FF Pty Ltd as trustee for the Foundation as he and Ms Hunter were already trustees. He also said he thought Ms Hunter may have forged the document, which he said he had first seen during the 6 to 12 months prior to the trial and in the course of the proceedings.

   [76] Exhibit 13.

2. Mr Borman’s challenge to the authenticity of this Deed was matched by Ms Hunter’s similar challenge to the authenticity of various documents. Despite the allegations and counter-allegations of forgery made by both Mr Borman and Ms Hunter, there was no expert evidence before me to assist in the resolution of their competing contentions.

3. It was submitted on behalf of Mr Borman that the Court would find that Ms Hunter and Mr Borman are the Foundation’s current trustees and that FF Pty Ltd is not the current trustee of the Foundation.

4. I accept that, pursuant to the Trust Deed:

   a)the Trustees of the Foundation may apply the income and capital of the Foundation at their discretion, provided that such income and capital shall be applied solely towards the promotion of the purpose and object of the Foundation prescribed in Clause 4.1 of the same;[77] and

   [77] Clause 4.2 of the Trust Deed.

   b)the Trustees are not required to pay or apply income of the Foundation in the year of its receipt and may, in their absolute discretion, pay or apply the income at any time or times or hold or carry the income forward for subsequent payment or application;[78] and

   [78] Clause 4.3 of the Trust Deed.

   c)every discretion, power and authority conferred on the Trustees by the Deed shall be exercisable by them in their absolute discretion.[79]

   [79] Clause 5.1 of the Trust Deed.

5. I also accept that, in considering Mr Borman’s past oversight of the Foundation, the nature of the discretion afforded to the trustees of the same as a consequence of these provisions cannot be forgotten.

6. Even taking that into account and considering the submissions made on behalf of Mr Borman in opposition to the course proposed by Counsel for the Attorney- General on her behalf, I accept the submissions made on behalf of the Attorney-General for the State of Queensland; I consider the appropriate course to be that a corporate trustee other than an entity under the control of either Mr Borman or Ms Hunter be appointed the trustee of the Foundation. Given this conclusion, I consider it unnecessary to resolve the issue of the identity of the current trustee of the Foundation as orders can, it seems to me, be appropriately framed to overcome the dispute between Mr Borman and Ms Hunter about this issue.

7. I have arrived at the decision to accede to the Attorney-General’s application because I generally accept the submissions made by Counsel for the Attorney-General in urging that I conclude that such an order is appropriate in the circumstances of this case.

8. In arriving at this decision, I have accepted, as was submitted, that the main considerations which guide the decision about whether or not to remove the parties as trustees of the Foundation are: the interests of the beneficiaries; the security and integrity of the trust assets and the way in which the trust has been administered in terms of efficiency and faithfulness to its purpose. I have also accepted that the exercise of any jurisdiction to remove a trustee is exercised having regard to the interests of the beneficiaries, to the security of the trust property, to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee.

9. I accept the thrust of the submissions made by Counsel for the Attorney-General to the effect that Mr Borman was vague in his evidence about the future intentions in relation to the Foundation. I also consider, despite the submissions made on Mr Borman’s behalf in defence of his stewardship of the Foundation, that the evidence persuades of a conclusion that such stewardship has not been appropriate; that there has been nothing of real substance done to promote the Foundation’s charitable purposes; that there is nothing in Mr Borman’s evidence to suggest that there is likely to be any change in the future to the manner in which he has previously overseen the Foundation. I also accept the submissions to the effect that Mr Borman’s management of the Foundation to date had not been appropriate in that he has not promoted its charitable purpose (being to use its funds for the advancement of education); I accept the contention that he has been idle in this respect and that it appeared that he proposed to remain so into the future. I also accept and accord particular weight to the submissions made by Counsel for the Attorney-General about the consequences for the value of the property of the Foundation of the inter-relationships between Mr Borman, J Pty Ltd and the Foundation.

10. In addition, I consider that certain aspects of Mr Borman’s actions already the subject of consideration above (for example: using company funds to pay personal legal expenses without an apparent appreciation of the issues associated with that course of action) persuades me that it is appropriate that the trustee of the Foundation be someone other than him or an entity under his control.

11. Given all of these matters, and even taking into account the submissions made on his behalf in support of his opposition to the relief sought by the Attorney-General, I have concluded that to permit Mr Borman or any entity under his control to be the trustee of the Foundation would be detrimental to the interests of the beneficiaries of the same. I also accept the thrust of the submissions made on behalf of the Attorney-General and Mr Borman in so far as they relate to the prospect of Ms Hunter or an entity under her control (via her financial administrator) being the trustee of the Foundation.

12. I also record that the evidence before me at the hearing suggested that:

    a)SS Limited is, subject to undertaking all necessary due diligence in accordance with its policies,  prepared to accept an appointment as Trustee for the Foundation, to abide the terms of appointment as made by the Court and to manage the Foundation in accordance with the declaration of trust instrument; and

    b)the Public Trustee of Queensland had advised that, as long as there were identifiable liquid assets of the Trust and it had been administered properly, there might be no reason that the Public Trustee would not accept the role of trustee of the Foundation.

Conclusion and justice and equity of the proposed orders

1. For the reasons outlined above, I am satisfied in all the circumstances of this case that it is just and equitable and appropriate that orders be made to ensure that:

   a)subject to the imposition of a life interest in favour of Ms Hunter over the same, there is no change to the manner in which the C Street property is owned; and

   b)Ms Hunter is granted a life interest in the C Street property with such interest to include the right to permit any persons necessary to provide care for her to come onto the property and with such life interest to be in respect of that part of the premises on the C Street property that she currently occupies and such other incidental aspects of the property as are necessary to enable her to use and enjoy the property in which she is to have a life interest; and

   c)subject to the above, Mr Borman retains and receives the property he currently owns, which includes:

   i.all bank accounts and credit cards held in his name solely; and

   ii.the household furniture and contents in his possession;  and

   iii.his entitlement in the Borman Superannuation Fund;  and

   iv.his interest in GG Pty Ltd and the business operated through the same ; and

   v.his interest in the Borman Family Trust (subject to any limitations on the same which arise as a consequence of the imposition of the life interest in favour of Ms Hunter adverted to above); and

   vi.the gold in his possession, other than three one kilogram bars which have been found to be the property of Ms Hunter and which he is to deliver to her or at her direction or at the direction of her administrator for financial matters; and

   vii.his motor vehicle; and

   viii.his motorcycle; and

   ix.the monies already received by him by way of interim property distribution pursuant to Court Order.

   d)in addition to the above, Ms Hunter retains and receives the property she currently owns, which includes:

   i.her shareholding in FF Pty Ltd ACN …;  and

   ii.her interest in the Hunter Family Trust;  and

   iii.her interest in the H Discretionary Trust;  and

   iv.the monies received by her by way of interim property distribution pursuant to Court Order;  and

   v.all bank accounts and credit cards in her name solely;  and

   vi.the three one kilogram bars of gold which Mr Borman will be ordered to return to her possession; and

   vii.the household furniture, contents and artworks in her possession.

   e)SS Ltd (Community & Social Investments Division) or such other trustee from whom the Attorney-General of Queensland has obtained consent be appointed as trustee of the J Foundation.

2. Whilst I intend to afford the parties the opportunity to be heard further in relation to the specific terms of the Orders to be made to give effect to the conclusions outlined above - and I intend to make orders to facilitate this process - it is, I think, just and equitable and appropriate that interim orders are made to require Mr Borman to deliver the three one kilogram bars of gold I have found Ms Hunter to own to her, or at her direction, or at the direction of her financial administrator. Consequently, I make orders in the terms appearing at the commencement of these Reasons to give effect to these conclusions.

I certify that the preceding four hundred and sixteen (416) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 20 December 2019.

Associate:     

Date:              20 December 2019