CALDER & CAXTON

[2015] FamCA 1150

FAMILY COURT OF AUSTRALIA

CALDER & CAXTON [2015] FamCA 1150

FAMILY LAW – INTERIM PROPERTY ORDERS

FAMILY LAW – JURISDICTION – where the existence of a de facto relationship has not been determined – maintenance and litigation funding sought – Application refused

Family Law Act 1975 (Cth)
Corporations Act 2001

Norton & Locke (2013) FLC 93-567
State of NSW v Kable (2013) 252 CLR 118
Strahan & Strahan (2011) FLC 93-466
Zschokke & Zschokke (1996) FLC 92-693

APPLICANT: Ms Calder

RESPONDENT: Mr Caxton

FILE NUMBER: BRC 251 of 2014

DATE DELIVERED: 18 December 21015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 December 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr Sayers

SOLICITOR FOR THE APPLICANT: Clewett Lawyers

COUNSEL FOR THE RESPONDENT: Ms Carew QC

SOLICITOR FOR THE RESPONDENT: Best Wilson Buckley Family Law

Orders

1. The Application in a Case filed 29 August 2014 is dismissed.

2. The Respondent’s costs of and incidental to the Application in a Case filed 29 August 2014 are reserved to the trial Judge.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 251  of 2014

Ms Calder

Applicant

And

Mr Caxton

Respondent

REASONS FOR JUDGMENT

1. The proceedings between the parties commenced on 13 January 2014 when the Applicant filed an Initiating Application in the Federal Circuit Court (the January 2014 Application). Reference to this Application reveals that she sought, by way of final order, that “there be an accounting of the net matrimonial assets and an adjustment be made in favour of the wife which is just and equitable in the circumstances.”

2. The January 2014 Application also contained a request for certain interim financial orders. These included the payment by the Respondent of periodic spousal maintenance, that he pay certain particularised expenses and be restrained from terminating any utility service or taking possession of the motor vehicle in her possession.

3. Additionally, the Applicant sought that the Respondent pay $30,000.00 to her lawyers toward her legal costs and outlays in the proceedings, with the determination as to whether these payments are to be treated as a debt due by her to him or as part of her property settlement entitlement or the provision of maintenance or a contribution towards any costs application to be adjourned to the trial judge.

4. Further orders of a procedural nature, including the appointment of a Court expert to value property, were also sought.

5. In a Response filed on 6 March 2014 (the March 2014 Response), the Respondent proposed that particularised orders be made by way of alteration of property interests “pursuant to section 90SM of the Family Law Act 1975 (Cth).” By way of broad summary, such orders included that he pay the Applicant $100,000.00, transfer to her the ownership of the motor vehicle in her possession (subject to her discharging the lease encumbering it or refinancing the same into her name) and that she transfer to him her interest in 12 shares in B Pty Ltd (an entity in which he owns the remaining 12 shares and resign as secretary for that company.

6. The March 2014 Response also contained the Respondent’s proposal that, by way of interim payment, and in his capacity as director of I Pty Ltd as trustee for the Caxton Trust No.2, he cause the Applicant to be paid $50,000.00 with the classification of such payment (whether to be treated as part of her property settlement entitlement or the provision of maintenance or contribution toward her costs) to be adjourned to the trial judge. He also proposed to meet certain particularised expenses as and when they fell due and to meet any payment of any taxation liability of the Applicant arising from the payment of the $50,000.00 provided to her and to indemnify her in relation to any such taxation liability that may arise from such payment.

7. The Respondent also sought orders for the return of certain particularised chattels and equipment and that real property be valued and subsequently sold, with the nett sale proceeds of the same to be placed into his solicitors’ trust account.

8. In a manner similar to that advocated by the Applicant in the January 2014 Application, the March 2014 Response contains detailed procedural orders, including those for the appointment of a Court expert, in respect of whose costs the parties would contribute equally. The Respondent further proposed that the parties attend at a private mediation and that further directions be made on a date after that event.

9. On 11 March 2014, Judge Lapthorn made orders by consent in Chambers.[1] These orders included that:

   [1]Subsequently amended on 30 June 2014 to record the parties’ agreement that the Orders were interim in nature and not final.

   a)the Respondent, in his capacity as director of I Pty Ltd as trustee for the Caxton Trust No.2, cause the Applicant to be paid the sum of $50,000.00 within seven days, meet any taxation liability associated with this payment, meet certain particularised expenses and be restrained from terminating any utility service or taking possession of the motor vehicle in the Applicant’s possession; and

   b)the Applicant return certain particularised chattels to the Respondent and permit him to collect others; and

   c)real property be valued and listed for sale; and

   d)the sale proceeds from the real property be applied to:

   i)meet the costs associated with the sale; and

   ii)reimburse the Respondent any costs of sale paid by him in the first instance; and

   iii)pay to the Applicant the sum of $15,000.00 with the classification of this payment (whether as part of a property settlement entitlement or the provision of maintenance or contribution towards the costs of the Applicant in the proceedings or any costs application against the Respondent by the Applicant) to be adjourned to the trial judge; with

   iv)the balance to be deposited into the trust account of the Respondent’s solicitors.

10. Certain procedural orders were also made, including the appointment of a Court expert in relation to property in respect of which the value was not known or agreed and the matter was further adjourned to 18 July 2014, for directions.

11. On 22 May 2014, the Applicant filed an Application – Contravention asserting that the Respondent failed to comply with the terms of the March 2014 Order in the manner particularised.

12. On 4 July 2014, Judge Lapthorn made orders by consent in Chambers. These orders provided that the Application – Contravention filed 22 May 2014 be dismissed; that the Respondent pay $10,000.00 to the Applicant’s solicitors’ trust account with the classification of this payment (whether to be treated as part of the Applicant’s property settlement entitlement, the provision of maintenance or contribution towards her costs in the proceedings or any costs application against the Respondent by the Applicant) to be adjourned to the trial judge for determination and that the listed date of 18 July 2014 be vacated.

13. On 21 August 2014, the Respondent filed an Amended Response by which he sought that the Applicant’s application for property settlement orders be dismissed and that she pay his costs of and incidental to the proceedings on an indemnity basis.

14. The Amended Response also sought orders in the alternative that his primary position was not favoured: first, that each party is entitled to be the sole legal and beneficial owner of particularised property and entitlements to superannuation or, secondly, that orders be made by way of alteration of property interests pursuant to s 90SM of the Act: namely, that the Respondent pay the Applicant $243,000.00 (inclusive of any amount determined to be considered an add back), transfer the motor vehicle on the premise that the Applicant discharge the lease or refinance the same into her name, that the Applicant transfer her interest in the 12 shares in B Pty Ltd to him and resign as secretary for that company and that the parties otherwise be entitled to be the sole legal and beneficial owner of property in their respective possession.

15. On 29 August 2014, the Applicant filed an Application in a Case (the August 2014 Application) by which she sought orders that the Respondent pay:

    a)$1,200.00 per week periodic spousal maintenance; and

    b)an invoice rendered by Mr C and be responsible for meeting the entirety of the cost of any future valuations or reports of any single expert witnesses engaged in the proceedings; and

    c)$36,564.10 to her solicitors in full payment of an invoice rendered by them; and, thereafter

    d)pay or cause to be paid the same amount of money to her solicitors’ trust account as he had paid or caused to be paid to his solicitors in respect of the proceedings and/or in respect of any accounts rendered by Counsel engaged by his solicitors in the proceedings.

16. The August 2014 Application also contained the Applicant’s proposal that the determination of whether the payments made to her by the Respondent were to be treated as part of her entitlement to property settlement, maintenance or in payment of costs of and incidental to the proceedings, or otherwise, be adjourned to the trial judge and that a declaration be made as to the duration of the de facto relationship: for this purpose, a discrete hearing be allocated on a date to be fixed.

17. On 5 September 2014, Judge Lapthorn transferred the matter to this Court.

18. On 25 September 2014, Registrar Coutts listed the matter to the judicial duty list. The Order made that day noted that the jurisdiction of the Court was in issue and that the legal representatives agreed (and submitted) that the threshold jurisdictional issues and the substantive issues be determined at one final hearing.

19. On 2 December 2014, the Respondent filed a Further Amended Response to Initiating Application, by which he sought an order, pursuant to s 90RD of the Act, that a de facto relationship, as defined pursuant to s 4AA of the Act, never existed between the parties. As well as seeking an order that the Applicant pay his costs of and incidental to the proceedings on an indemnity basis, the Respondent also sought that, by way of alternative order, he make a cash payment to the Applicant in a sum determined by the joint expert (Mr C Accountants) to be the nett value of her 12 ordinary shares (after taxation and realisation costs) in B Pty Ltd (with this amount to be adjusted to include any amount otherwise considered by the trial judge as an add back).

20. The Respondent also filed a Response to an Application in a Case on 2 December 2014. By that document, he seeks the Applicant’s claim for spousal maintenance be adjourned to the first day of the trial in the substantive property proceedings and the dismissal of her application for orders that he pay the Mr C account, be responsible for meeting entirely the cost of any future valuations or reports, pay any monies to her solicitors; he opposes the making of any “dollar for dollar” litigation funding order.  Given the evidence of Ms D – given after the report prepared by Mr C (which valued each parties’ interests in B Pty Ltd at $343,719.50 exclusive of tax and realisation costs) – the Respondent’s position appears to be based on the primary assertion as to the absence of jurisdiction and, secondly, that the Applicant’s receipt of about $62,000.00 already means that, if the necessary jurisdictional prerequisites are not established, she has already received amounts almost equivalent to the value of her shareholding in B Pty Ltd. 

21. On 9 December 2014, the Applicant filed an Amended Application in a Case seeking relief pursuant to sections 232 and 233 of the Corporations Act, alternative relief pursuant to s 106B of the Family Law Act 1975 (Cth) in the manner particularised and a declaration that the Court has accrued jurisdiction to “entertain/determine” a Statement of Claim seeking the actual payment of (asserted to be unpaid) trust distributions recorded as having been made by the trust to the Applicant.

    Agreed discrete hearing

22. Despite the position recorded by the Registrar in late September 2014, the parties now agree that the determination of the issue of the existence or otherwise of a de facto relationship – within the meaning of that term as defined in s 4AA of the Family Law Act1975 (Cth) - should occur as a discrete hearing.

23. The necessity for a determination as to the existence or otherwise of a de facto relationship between the parties arises because of their competing contentions in relation to this issue.

    The competing contentions

24. The Applicant, who was born in 1971, asserts that the parties lived together:

    a)from 1 August 2007 until 18 March 2008 (seven months); and

    b)from 17 May 2011 until 20 September 2013 (two years and four months).

25. She says they became engaged on 26 October 2011.

26. If her evidence is accepted, the total period during which the parties cohabited was about two years and 11 months. Additionally, she says that the parties’ relationship continued uninterrupted during the period between their cohabitation: in particular, she asserts that, whilst the Respondent did not “officially” live in the same house as she did between March 2008 and May 2011, the parties spent “almost all of our nights together throughout that period” - apart from when the Respondent was working away from E Town.

27. The Applicant’s case, therefore, is that the parties were in a de facto relationship for a period of about six years.

28. In stark contrast, the Respondent, who was born in 1973, contends that the parties only lived together from March 2012 to 20 September 2013. If his evidence is accepted, the total period during which they cohabited is not more than 19 months. He says that his relationship with the Applicant became exclusive when they became engaged and that, before that, he had other intimate partners.

29. The parties do not have any children together.

    The Respondent’s position in relation to the existence or otherwise of a de facto relationship and the resolution of the proceedings

30. The Respondent says that the parties commenced dating in or around 2007, became engaged on 26 October 2011 and moved in together in March 2012: before this he stayed overnight at the Applicant’s home approximately two nights per week and otherwise lived in a shipping container stored on land he owned at F Town. He agrees the parties separated on a final basis on 20 September 2013 - after what he says was approximately 18 months of cohabitation.

31. On 2 October 2013, the Respondent’s solicitors wrote to the Applicant. This correspondence contains the assertions that the Respondent had instructed that “separation occurred on a final basis on or about 20 September 2013 with the two of you having commenced a de facto relationship and commenced living with each other in 2011 at the time of the acquisition of the [G Street] property.” The contention that the parties commenced living together as a de facto couple in 2011 is repeated in the correspondence. This correspondence also contains an offer that the Respondent pay the Applicant $500,000.00 and she transfer her shares in B Pty Ltd to him.

    Broad overview of respective financial positions

32. The Respondent controls a number of entities, collectively described as the Caxton Group.  A draft report prepared by a single expert[2] ascribes a value of $9,007,790.00 to the Group.

    [2]          as at 18 July 2014.

33. The parties are equal shareholders in B Pty Ltd, which was established in 2012.  It owns premises from which I Pty Ltd trades. The Respondent is the sole owner of shares in I Pty Ltd and its sole director.

34. The Applicant asserts that, despite her ownership in B Pty Ltd, she has received no income or benefit as a result of that shareholding.

35. The Applicant asserts that the nett pool of assets “available for distribution” between the parties has a value in excess of $11,000,000.00. She says the value of the assets she has retained (being household contents) have a value not greater than $10,000.00. This figure does not include the value of her shareholding in B Pty Ltd.

    Broad overview of competing contentions about contribution

36. The parties disagree about the extent of the contributions made by the Applicant: she asserts she made substantial contributions and a failure to make an order or declaration as sought by her would result in serious injustice to her; in contrast, the Respondent asserts that the Applicant did not make substantial contributions and that a failure to make an order or declaration as sought would not result in serious injustice to her.

37. The Applicant says that her non-financial contributions from 2007 until September 2013 enabled the Respondent to focus his attentions upon the growth of the business conducted by the Caxton Group.

38. The Applicant says that she cared for the Respondent after he suffered significant burns in February 2008 and nursed him for at least six or seven weeks after his discharge from hospital.

39. The Applicant says the reason the Respondent ceased to live with her in March 2008 was that he was then unable to contribute to their joint living expenses: previously, he had contributed $1,000.00 per month toward their joint living expenses but as he then started to pay the mortgage repayments in respect of a block of land, car payments, half of the school fees and private health insurance costs for his children from a previous relationship and the costs associated with travelling to see them each alternate weekend, he could not afford to continue to share living expenses. She says she went with him on alternate weekends when he visited his children and assisted him in caring for them at such times; she says she did the washing after they came back from these trips and thereby allowed him to focus on running the business.

40. She also says that, for a number of years, the time they spent involved camping or staying in a caravan which meant additional preparation, planning and cleaning up for her.

41. The Applicant says that, after the Respondent moved out from her house in March 2008, he returned to live in a shipping container located on the land he had bought at F Town – she says he slept there sporadically but continued to stay at her home most of the time and never spent more than about one week at a time at the block; she says he often would not stay there for a period of about a month. She also says that the Respondent spent the majority of his time with his children during holidays at her home.

42. The Applicant admits that she continued to receive single parenting payments from Centrelink during this time: she says that she did so because she thought a ‘defacto spouse’ was someone who was contributing to household expenses and that, even though the Respondent was spending most nights with her, he did not pay any of the household bills.

43. She says that, in late 2009, he gave her a debit card that was linked to his bank account and she used this to pay mostly for expenses associated with the children and their trips to visit them; she also used the card to pay for her own medical expenses in late 2011 and thereafter during their relationship.

44. The Applicant says that the Respondent moved back to live with her in her house in May 2011 and at that time she notified Centrelink she was in a de facto relationship. She says the Respondent finically supported her from this time onward.

45. The Applicant asserts that she contributed during the relationship to the establishment and growth of the Caxton Group. Her evidence is that her contribution was very substantial in that she attended at the office each day and performed administrative tasks. The Applicant says that, whilst distributions were made to her by the Caxton Trust No. 2 such that her 2011/2012 and 2012/2013 tax returns declare a taxable income of $150,000.00, she never actually received the money distributed to her.

1. The Applicant says she also performed all of the domestic duties within the parties’ home and, in 2011-2012, oversaw the construction of a house they shared. She was able to do this because, on her case, the Respondent encouraged her to leave the part-time employment in which she was then engaged so as to be able to oversee the construction of the house every day. She says she completed the owner builder certification in the Respondent’s name and arranged all of the tradespeople and was responsible for the selection of building materials, fittings and fixtures for the house. She also says she contributed physically to the construction of the house and established gardens and undertook mowing of the 20 acre block.

2. She says she also project managed the renovation of a house which the Respondent acquired in his own name in 2012.

3. The Respondent says the parties maintained separate finances save for his gift to the Applicant of 12 shares in B Pty Ltd and never had any joint bank accounts. He met all the expenses when the parties lived together and also paid amounts to various of the Applicants’ creditors. He says that, when the parties became engaged in 2011, he owned property with relatively significantly greater value than that owned by the Applicant.

4. The Respondent says that, apart from filling in and assisting with administrative tasks associated with the business on approximately three or four days in total during their relationship, the Applicant did not participate or assist with the operation of the business entities in which he has an interest; that she did the housework when they lived together and had not worked since undergoing surgery in about mid-2010.

5. He applied significant funds (of about $440,000.00) toward establishing B Pty Ltd in 2011 which trades through I Pty Ltd as trustee for the Caxton Trust No.2.

6. He says that he bought the F Town property (then vacant land) in around 2006 for $275,000.00: he borrowed 90 per cent of the purchase price from a commercial lender and paid the balance from his cash savings; it remained vacant until around November/December 2011 when he and the Applicant started to build a home on it; the construction was funded by income derived through I Pty Ltd and the parties moved in around March 2012. He says that, before that, the Applicant lived at another property with her son and he visited and spent a couple of nights per week there (as well as some of his time on the H Region seeing his children) and otherwise lived in a shipping container on the F Town property.

7. The Respondent says the Applicant made no financial contribution to the F Town property. He also says she rarely visited his children with him – attending on only about approximately six occasions and that, when his children visited him before March 2012, they stayed with him at the shipping container on the F Town property. He says that he and his children stayed overnight at the Applicant’s home on approximately three or four occasions and that she cared for them on some occasions during some school holiday periods when he was working and on one occasion her mother assisted.

8. He says that he Applicant never stayed with him in his shipping container because it was not to her standard of accommodation and she had her own home. This differs from her account.

9. The Respondent says he was the primary income earner during the relationship and the Applicant the primary homemaker; that he maintained the outside of the home and assisted with the cooking and cleaning and, when they entertained, he would prepare and cook food.

10. The Respondent says the Applicant had access to his credit card until about 2 December 2013 and charged approximately $17,025.00 to this account between late September 2013 and December 2013. He says he also paid her approximately $2,000.00 after separation and, on 19 December 2013, offered to pay her $10,000.00 as partial property settlement.

11. The Respondent does not accept any suggestion that the Applicant contributed equally to the accumulation and maintenance of the property of the parties and does not accept that she supported the establishment of the B Pty ltd business or attended to administrative or bookkeeping functions other than in the minimal way to which he deposes.

12. The Respondent’s positon is that, even if jurisdiction is established, the Court would not be persuaded that it is just and equitable that any property settlement or adjustment order is made.

13. It is against this background and in the circumstances of these many and varied factual disputes that the Applicant’s interim application falls to be determined.

    The Application for interim relief

14. The Applicant seeks[3] a number of interim orders which, if made, would require the Respondent to:

    a)pay her $1,200.00 per week by way of interim spousal maintenance; and

    b)pay an invoice issued by the firm engaged to value his interests in various entities comprising the Caxton Group: a group provisionally valued at $9,007,790.00[4]; and

    c)be responsible for the costs associated with any further expert reports; and

    d)pay $36,564.10 to her solicitors to meet her legal costs incurred to date; and

    e)pay funds to her solicitors by way of what is commonly known as a ‘dollar for dollar’ order to meet future legal expenses associated with these proceedings.

    [3]          By her Application in a Case filed 29 August 2014.

    [4]          Inclusive of any taxation and realisation costs.

15. I do not accept the submission made by Counsel for the Applicant to the effect that, having consented to Orders[5] on two previous occasions, the Respondent is now estopped from denying the existence of a de facto relationship which meets the statutory prerequisites required to be established to found jurisdiction. Whilst of greater persuasion, I also do not consider that I can conclude on an interim basis that, having agreed on two occasions to Orders that he pay the Applicant sums of money, the Respondent should be considered as having admitted the existence of those facts necessary to establish jurisdiction.

    [5]It is well established  that orders made by a federal Court which is established as a superior court of record are valid until set aside, even if made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction): State of NSW v Kable (2013) 252 CLR 118 wherein various authorities including Cameron v Cole (1944) 68 CLR 571 are cited.

16. In any event, it is the Court which must be persuaded that such facts are made out – a conclusion I consider I am unable to reach given the existence of the Respondent’s sworn evidence which contradicts the conclusion pressed on behalf of the Applicant.

17. Further, as was remarked upon by Gaegler J in State of NSW v Kable (2013) 252 CLR 118 at [56]:

    There is, however, a critical distinction between a superior court and an inferior court concerning the authority belonging to a judicial order that is made without jurisdiction. A judicial order of an inferior court made without jurisdiction has no legal force as an order of that court. One consequence is that failure to obey the order cannot be a contempt of court. Another is that the order may be challenged collaterally in a subsequent proceeding in which reliance is sought to be placed on it. Where there is doubt about whether a judicial order of an inferior court is made within jurisdiction, the validity of the order "must always remain an outstanding question" unless and until that question is authoritatively determined by some other court in the exercise of judicial power within its own jurisdiction.

    (footnotes omitted)

18. The Federal Circuit Court is not a superior Court of record. The nature of an interim hearing makes it impossible for me to authoritatively determine whether, at the time each of the Orders was made by consent, the Federal Circuit Court had jurisdiction to make them.

19. As noted, the Respondent[6] opposes the making of any interim order for spousal maintenance and litigation funding orders on the basis that, until the jurisdictional facts required to be established are established, the Court lacks jurisdiction to make the orders sought by the Applicant.

    [6]          Response 2 December 2014.

20. At this stage and on the basis of the material before me – which of course has not yet been tested or explored in the same way as is possible at a trial - I am not prepared to conclude that the parties are not in a bona fide dispute about those facts the establishment of which is central to the existence of jurisdiction.

21. I accept the submissions made by Ms Carew of Queens Counsel insofar as these submissions deal with the application for interim maintenance. I consider that, in circumstances where the Court cannot determine the necessary jurisdictional facts – these being the subject of dispute between the parties – the Court does not have the jurisdiction to make the order for interim maintenance sought by the Applicant.[7] This conclusion makes it unnecessary to canvass the Applicant’s evidence in support of such application any further.

    [7]          Norton & Locke (2013) FLC 93-567

22. The limitation outlined above does not, however, attach where the source of power relied upon to make an order for the payment of litigation expenses is that provided by s 117(2) of the Act: pursuant to which, if the Court is satisfied that there are circumstances that justify it in doing so, the Court may, subject to s 117(2A) of the Act, make such order as to costs as the Court thinks just.

23. It is well established that it is not necessary that a party establish ‘extraordinary’ or ‘exceptional’ circumstances in order to establish ‘justifying’ circumstances: all that is necessary is that circumstances exist which justify an order in favour of the Applicant, the requirement of justice being the ‘basic’ condition in the making of an order under s 117(2).

24. I am satisfied that the Respondent’s financial position vis-a-vis the Applicant is such that he is in a position of relative financial strength when compared to her. I consider that the evidence establishes that he has capacity to meet his own litigation costs and that she does not have the capacity to meet her own legal costs.[8]

    [8]Zschokke & Zschokke (1996) FLC 92-693; Strahan & Strahan (interim property orders) (2011) FLC 93-466

25. That, however, is not the end of the necessary analysis. In addition to these matters, the Court must also consider the matters prescribed by s 117(2A) of the Act (where they are relevant) and other relevant matters.

26. The Applicant says she used $20,000.00 of the $50,000.00 payment made to her by the Respondent to meet her living expenses, to repay her mother $2,000.00 and to pay a bond of $2,100.00 to secure her rental accommodation. The balance, in the amount of $30,000.00, was retained by her solicitors and applied to payment of her outstanding legal fees and disbursements. She also says that she received $9,000.00 of the $11,959.00 paid to her by the Respondent in July 2014, which she says she applied to meeting day to day living expenses.

27. As already noted, it appears, therefore, that the Applicant’s financial circumstances are significantly more constrained than those of the Respondent. She owes her solicitors no less than $36,564.10 and has been advised that the costs associated with a trial are likely to be in the vicinity of a further $50,000.00 to $100,000.00 (plus Counsel’s fees). I accept that she is not in a position to meet this financial impost from her own resources unless regard is had to her shares in B Pty Ltd.

28. I take into account that it appears that there may be some degree of complexity in the financial affairs of the Respondent in particular. [9]

    [9]Strahan & Strahan (2011) FLC 93-466, [90] referring to Zschokke & Zschokke (1996) FLC 92-693, 83,218.

29. The parties are in dispute about the extent of the debt payable by B Pty Ltd to I Pty Ltd – the quantum of which affects the value of their interests in the former entity. This dispute cannot be resolved until trial.

30. The consequence of that dispute is that, if resolved in favour of the Respondent, the value of each party’s interest in B Pty Ltd (when tax and realisation costs are taken into account) is about $69,000.00: an amount not much more than already paid by the Respondent to the Applicant.

31. Given this, there is, I think, uncertainty about whether it is likely to be possible to take into account in the final proceedings any further amount ordered to be paid to the Applicant.[10]

    [10]Strahan & Strahan (2011) FLC 93-466, [95] referring to Zschokke & Zschokke (1996) FLC 92-693, 83,217 & 83,221

32. Where the power relied upon as the basis for making the litigation funding orders sought by the Applicant is that which requires the Court to be satisfied that the circumstances justify the making of such an order (being one which departs from the usual starting point for litigants involved in proceedings in the Court), the stark reality that any further amount required to be paid by the Respondent to the Applicant may not be able to be taken into account persuades me that the circumstances do not justify the making of the orders sought on an interim basis.

    Contribution to the payment of outstanding invoice from Mr C

33. The Applicant says that she cannot afford to pay her share of the cost of the expert report in the manner envisaged by the Order made on 11 March 2013 which provided that the parties meet this cost equally and that an order should be made requiring the Respondent to meet the costs of the same.

34. The amount unpaid is $69,360.70 which is apparently referable to an interim account – the Applicant’s solicitors hold no funds from which to meet this payment.

35. Given that the matter is to be listed for a determinant of the discrete issue of the existence or otherwise of a de facto relationship between the parties, I consider that this issue can be further considered at that time.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 December 2015.

Associate:     

Date:    18 December 2015