CANTWELL & CANTWELL

[2017] FamCA 117

FAMILY COURT OF AUSTRALIA

CANTWELL & CANTWELL [2017] FamCA 117

FAMILY LAW – PROPERTY – final orders – where asset pool involves a complex structure of assets held in trusts – where parties are in agreeance of a 50 per cent division of assets – where the wife seeks to retain the main income-producing asset – where the husband opposes – where consideration is given to the length of the relationship and the contributions of each party – where it is ordered that each party retain one income-producing asset of similar value

FAMILY LAW – LEGAL FEES – where it can be assumed that the husband has paid part of his legal fees from joint resources – where the wife has outstanding legal fees – where an order is made that there should be a notational add back of each party’s legal fees

Family Law Act 1975 (Cth) s 75, 79

Agius & Agius (2010) FLC 93-442
Bevan & Bevan (2013) FLC 93-545
Biltoft & Biltoft (1995) FLC 92-614
Chorn & Hopkins (2004) FLC 93-204
Masoud & Masoud (2016) FLC 93-689
Ogilvie v Adams (1981) VR 1041
Prince & Prince (1984) FLC 91-501
Stanford & Stanford (2012) 247 CLR 108
Vass & Vass (2015) 53 Fam LR 373
Weir & Weir (1993) FLC 92-338

APPLICANT: Ms Cantwell

RESPONDENT: Mr Cantwell

FILE NUMBER: ADC 1215 of 2014

DATE DELIVERED: 3 March 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 30 November 2015, 1, 2, 3, 4 December 2015, 23 February 2016 and 16 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jordan

SOLICITOR FOR THE APPLICANT: Beachside Legal

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: David Burrell & Co

Orders

1. That by way of settlement of property or alteration of interests in property:-

   (a)Within one hundred and twenty (120) days of the date of this order the husband do pay direct to the trust account of Beachside Legal for and on behalf of the wife the sum of nine hundred and twenty three thousand four hundred and thirty five dollars ($923,435).

   (b)That the husband do forthwith appoint the wife as Appointor and Trustee of CC Trust (in lieu of the current trustee DD Pty Ltd);

   (c)That immediately thereafter the husband do resign as Appointor of CC Trust;

   (d)the wife do have as her sole property any interest of the husband of whatsoever nature in CC Trust, including his credit loan account in the sum of fifty four thousand eight hundred and fifty dollars ($54,850) and the credit loan account of the parties in the sum of seventy six thousand eight hundred and eleven dollars ($76,811).

   (e)The husband do resign as Director of K Pty Ltd as trustee of Suburb CC Trust;

   (f)Any credit loan account or other interest of the husband in Suburb CC Trust to hereafter vest in the wife;

   (g)That by way of distribution in specie of the interest of the wife in Cantwell Family Trust the husband do cause the Trustee to transfer to the wife freehold and unencumbered the property commonly known as I Street, Suburb G;

   (h)That by way of distribution in specie of the interests of the wife in H Trust the husband do cause its interest in H Trust and EE Syndicate (being the portion of the leasehold interest of D Street, E Town) to be transferred to the wife;

   (i)Contemporaneously with the transfer referred to in 1(g) and (h) above and the payment of the sum due to her by way of settlement of property, the wife do cause mortgage number …60 to Bendigo and Adelaide Bank Limited to be discharged and the wife do thereafter indemnify the husband and the Trust in respect of any sum due to Mr EE and Ms EE;

   (j)Any interest of the husband in the speed boat, motor and trailer to hereafter vest in the wife and where necessary the husband to execute all documents in order to give effect thereto;

   (k)The wife do have as her sole property and free from any claim, right or entitlement of the husband the following:-

   (i)Any interest of the husband in L Pty Ltd;

   (ii)Any interest of the husband in FF Pty Ltd;

   (iii)Any interest of the husband in GG Trust;

   (iv)The wife’s savings;

   (v)All chattels and other personalty presently in the possession of the wife;

   (l)The husband do cause HH Pty Ltd as trustee of Mr & Ms Cantwell Superannuation Fund (“the fund”) to rollover to a fund of the wife’s choosing her 50 per cent interest in the fund on the basis that the wife shall not be forced to receive an in specie distribution as may represent her rollover entitlement;

   (m)The husband do indemnify the wife and keep her forever indemnified in respect to:-

   (i)All debts and liabilities of the husband;

   (ii)All debts and liabilities of:-

   ·    R Pty Ltd

   ·    II Trust

   ·    H Pty Ltd

   ·    JJ Pty Ltd

   ·    H Trust

   ·    H Trust & Cantwell Family Trust Partnership

   ·    H Trust & QQ Partnership

   ·    Cantwell Suburb B Trust

   ·    Suburb KK Trust

   ·    Suburb KK Pty Ltd

   ·    Suburb C Syndicate No 2

   ·    LL Pty Ltd

   ·    Suburb MM Trust

   ·    Suburb MM Pty Ltd

   ·    Suburb W Syndicate No 1

   ·    Suburb W Syndicate No 2

   ·    OO Pty Ltd

   ·    Suburb B Property Syndicate

   ·    Cantwell Family Trust

   and any claim they may have against the wife

   (iii)All or any income tax assessable in the wife’s hands of 2015 and 2016 financial years arising from Trust income distributions SAVE AND EXCEPT for dividends received by L Pty Ltd from Suburb CC Trust:

   (n)The wife do indemnify the husband and keep him forever indemnified in respect to:-

   (i)All debts and liabilities of the wife;

   (ii)All debts and liabilities of:-

   ·    GG Trust;

   ·    FF Pty Ltd;

   ·    L Pty Ltd

   ·    H Trust & EE Partnership

   and any other claim they may have against the other.

2. That in default of payment of the settlement sum either in whole or in part and in circumstances where the default shall remain outstanding for a period greater than thirty (30 days) then the parties shall do all things necessary to cause the husband’s interest in S Suburb B, held in the S Suburb B Trust, to be placed on the market for sale upon such terms and conditions as the parties may agree but in default of agreement as may be ordered by this Honourable Court and that following the sale of the said business interest and the payment out of the necessary costs of sale and the discharge of any liability pertaining thereto, the wife shall receive the settlement sum or so much of the settlement sum as shall remain outstanding together with default interest at the rate of ten (10) per cent per annum and the husband shall be entitled to the balance remaining.

3. That a Registrar of this Honourable Court shall have power pursuant to s 106A of the Family Law Act 1975 (Cth) to sign all such documents as may be required to give effect to these orders in circumstances where upon proof by affidavit a party has refused or neglected to sign such documents as may be presented to him or her and that such refusal or neglect has continued for a period longer than seven (7) days after the said documents were presented.

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 Cantwell & Cantwell 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 ADELAIDE

FILE NUMBER: ADC 1215  of 2014

Ms Cantwell

Applicant

And

Mr Cantwell

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. The proceedings relate to a settlement of matrimonial property in relation to a marriage of almost 14 years as at the date of separation.

2. Ms Cantwell (“the wife”) commenced the proceedings by Amended Initiating Application filed on 20 June 2014.

3. The orders currently sought by the wife are now those reflected in her written submissions document as prepared by her counsel and filed on 15 June 2016.  She seeks orders for settlement of property pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”).

4. Mr Cantwell (“the husband”) opposes the orders sought by the wife and seeks orders as set out in his Response filed 22 May 2014, but better particularised in a Minute of Order presented by his counsel at the commencement of the proceedings and in a written submissions document.

5. The financial affairs of the parties are complex and involve their joint and several interests in various Cantwell entities that are of value or hold property interests as follows (referred to collectively as “the Cantwell Group”):-

   ·O Street, Suburb C

   ·1 PP Street, Suburb B

   ·H Trust & EE Syndicate

   ·H Trust & QQ Trust (“QQT”) Syndicate

   ·GG Trust

   ·H  Pty Ltd (“HPL”)

   ·JJ Pty Ltd (“JJ”)

   ·H Trust (“H Trust”) & Cantwell Family Trust (“CFT”) Syndicate

   ·L Pty Ltd (“L”)

   ·S Suburb B

   ·Cantwell Investments Pty Ltd (“Cantwell Investments”)

   ·Cantwell Suburb B Trust (“CBT”)

   ·FF Pty Ltd (“FF”)

   ·Suburb C S

   ·LL Pty Ltd (“LL”)

   ·K Pty Ltd as the trustee of the Suburb CC Trust (“KPL”)

   ·Suburb MM  S Trust (“MMST”)

   ·Suburb MM Pty Ltd (“MMPL”)

   ·Suburb W Syndicate No 2 (“NNS2”)

   ·Suburb W Trust

   ·Mr & Ms Cantwell Superannuation Fund

   ·CFT

   ·M Pty Ltd(“MPL”) as trustee of the S Suburb B Trust

Suburb C S Investments Pty Ltd

1. KPL is the trustee for the Suburb CC Trust (“CT”).  The directors of KPL are the husband, Mr N (“Mr N”), Mr RR (“Mr RR”) and Mr QQ (“Mr QQ”).  Of the 100 issued shares, the husband in his own right holds 25 shares and the wife via L holds 10 shares.  Collectively the parties hold 35 shares.  The husband’s co-directors are persons who have had a long association with both the husband and the wife.  Mr N, Mr RR and Mr QQ all gave evidence on behalf of the husband.  CC Trust (“CCT”) holds 225,000 units together with L which holds 90,000 units out of a total of 900,000 units.

O Street, Suburb C

1. The Suburb C S business operates from premises owned by a partnership of trusts owned by Mr N as to one third, Mr RR as to one third and the husband via his interest in Cantwell Investments as trustee for the CFT as to one third.

S Suburb B

1. MPL is the trustee of CBT. MPL is controlled by the husband and Mr N by their joint directorship and equal shareholding via the husband’s interest in CBT and Mr N by his interest in Mr N Suburb B Trust.

1 PP Street, Suburb B

1. The S Suburb B business operates from premises owned by Suburb B Syndicate (“BS”) being a partnership of the interest held by Mr N in the N Trust as to 50 per cent and the husband’s interest in Cantwell Investments as trustee for CFT as to 50 per cent.

Suburb MM Trust

1. The MMST owns property at AA Street, BB Town and SS Street, Suburb TT, Queensland.  The husband holds a 50 per cent interest in the trust as does Mr UU. 

Suburb MM Pty Ltd

1. Suburb MM LBC is the trustee for the MMST.  The husband is the sole shareholder and the directors are the husband and Mr UU.

FF Pty Ltd

1. The wife is the sole director of FF.  FF is the trustee for GG Trust (“GGT”).

Cantwell Investments Pty Ltd

1. Cantwell Investments is the trustee for the CFT which holds the interest in the properties at I Street, Suburb G, F Street, Suburb G and shares owned by Cantwell Investments.

H Pty Ltd

1. HPL is the trustee for the H Trust which holds an interest in property at VV Street, Suburb W.

L Pty Ltd

1. L is the wife’s company and holds 10 shares and 90,000 units in CT which operates the Suburb C S.

JJ Pty Ltd

1. JJ is a company controlled by the husband and wife both as to directorship and shareholding and has historically been the recipient of management fees in respect of the parties interests in Suburb C S and S Suburb B.

Suburb W Syndicate #1

1. The husband together with three other parties held the interest in property described as WW Street, Suburb W.  The property has been sold but has ongoing relevance to the proceedings in respect of the husband’s assertion that following the sale of the property there was a deficiency of $42,853.  The husband seeks to bring the shortfall into account as a liability of the parties.

Suburb W Syndicate #2

1. HPL as trustee for H Trust holds one half interest with a trust controlled by Mr N.

H Trust & CFT Property Syndicate

1. The syndicate represented by CFT as to 50 per cent and H TRUST as to the remaining 50 per cent held the parties interest in property at X Street, Suburb W.  The property has been sold.

H Trust & QQT Property Syndicate

1. The syndicate is a partnership of the Cantwell interest in H Trust as to 50 per cent and the interest of Mr QQ via QQT as to the remaining 50 per cent.  The syndicate owns the property at Y Street, Suburb W.

HT & EE Syndicate

1. The syndicate is a partnership between H Trust as to 50 per cent and the wife’s daughter and her ex-husband, Mr EE, which owns the property at D Street, E Town.

Mr & Ms Cantwell Superannuation Fund

1. The entity is the self-managed superannuation fund of the parties.  The parties are the trustees of the fund.  The main asset of the super fund is a 50 per cent interest in XX Pty Ltd.  The super fund owns 1 ordinary share and 344,499 C class shares via the trustee of the super fund, HH Pty Ltd (“HH”).

ORDERS SOUGHT

1. The significant dispute between the parties concerns the retention of their separate interests in the Suburb C S business.  The wife is content for the husband to retain his interest in S Suburb B but she seeks orders that the husband transfer both his shares in KPL and his power of appointment and beneficial interest in CCT to her.  The husband strenuously resists the wife’s orders and seeks to retain his interest in both the Suburb C and Suburb B S businesses.

2. The wife seeks orders summarised as follows:-

   ·That the husband do all things necessary to appoint the wife as appointor and trustee of CCT.

   ·That the husband resign as appointor of CCT.

   ·That the husband resign as a director of KPL.

   ·That the husband transfer any beneficial interest in CT to the wife.

   ·That the husband do all things necessary to cause the transfer of the property at I Street, Suburb G from CFT to the wife.

   ·That the husband do all things necessary to cause the transfer of the leasehold of D Street, E Town from H Trust and EE Syndicate to the wife.

   ·That the parties otherwise retain their interests in personalty and realty free from claim by the other.

   ·That there be an adjustment by the payment of a settlement sum to the wife as shall be necessary to represent an equal division and distribution of the parties separate interests in property.

   ·That the husband do all things necessary to cause Mr & Ms Cantwell Superannuation Fund (‘Super Fund’) to rollover to a fund as nominated by the wife her 50 per cent interest in the fund, with such rollover to include an identified painting by a well-known artist but not to include any units, investment or other interest that the fund has in XX.

3. The husband seeks orders summarised as follows:-

   ·That the assets of the parties are to be distributed such as to achieve an equal division of their net assets.

   ·That the husband retain his interest in CFT, CCT, CBT and H Trust with the intent that he will retain his current interest in the Suburb C and Suburb B S businesses.

   ·That the wife transfer the 10 per cent interest of L in the Suburb C S business to the husband.

   ·That the parties do all things necessary to cause the transfer to the wife of the property situate at D Street, E Town.

   ·That the parties do all things necessary to cause the units in MMST to be transferred to Mr UU at a value to be reflected by reference to the current valuations of the BB Town and Suburb TT Queensland properties.

   ·That at the election of the wife she transfer her interest in JJ to the husband.

   ·That the parties cause the property at I Street, Suburb G to be transferred to the wife or at her election to be sold with the net proceeds to be distributed to the parties in equal shares.

   ·That the husband transfer his interest in the speed boat and trailer to the wife.

   ·That there be a superannuation split or rollover of the wife’s interest in the fund to a nominated fund of the wife.

   ·That the parties retain as their sole property their savings, shares, motor vehicles, superannuation entitlements, furniture and household effects, jewellery and all other items of personalty in their name or separate possession free from any claim of the other.

DOCUMENTS RELIED UPON

1. The wife relies upon the following documents:-

   (1)Amended Initiating Application filed 20 June 2014

   (2)Trial Affidavit of wife filed 7 October 2015

   (3)Financial Statement of wife filed 15 July 2015

   (4)Affidavit of Ms ZZ filed 6 October 2015

   (5)Affidavit of Mr AB filed 23 November 2015

   (6)Various Affidavits of Ms BC (the wife’s solicitor) annexing valuation reports.

2. In addition I was assisted by an Outline of Case document filed 30 November 2015 and written submissions provided by the wife’s counsel at the conclusion of the proceedings.

3. The husband relies upon the following documents:-

   (1)Response of the husband filed 22 May 2014

   (2)Trial Affidavit of husband filed 12 November 2015

   (3)Financial Statement of husband filed 11 November 2015

   (4)Affidavit of Mr QQ filed 11 November 2015

   (5)Affidavit of Mr RR filed 11 November 2015

   (6)Affidavit of Mr N filed 11 November 2015.

4. In addition I was assisted by an Outline of Argument document dated 30 November 2015 presented at the commencement of the proceedings and written submissions at the conclusion of the proceedings.

5. As indicated, the parties are agreed that the assets should be divided equally between them but are not agreed either as to the particular interests of each of them that should be included for division, but in particular who should retain their separate interest in the Suburb C S business.

CHRONOLOGY

…/…/62	Date of birth of wife
…/…/68	Date of birth of husband
1994/1995	Parties commence cohabitation
13/08/98	CD Trust is settled, later renamed the CCT
1999	Husband obtains shares in S Suburb B via the CBT and the CFT
…/…/99	Date of marriage
Feb 2000	Husband purchases property at I Street, Suburb G with funds sourced from the CFT
2002	CCT purchases a further 10 per cent interest in Suburb C S bringing his total interest to 25 per cent
2002	CFT purchases property at 2 PP Street, Suburb B
2003	Mr UU (Accountant) offers the parties a share in an investment company XX to be held by HH Pty Ltd as trustee for the Super Fund
Jan 2003	Property at 2 Q Street, Suburb G is purchased by the husband via the CFT
June 2003	Husband purchased a 50 per cent interest in 1 PP Street, Suburb B
Feb 2004	CFT purchases a property at 1 Q Street, Suburb G
2004	CCT purchases a further 5 per cent interest in Suburb C S
2005	Husband together with other parties purchase apartments at the Suburb W development, including WW Street, Suburb W
Oct 2005	II Trust purchases Suburb MM and Suburb KK S businesses
Nov 2006	Parties via HPL purchase a 50 per cent leasehold interest in D Street, E Town.  The property is ultimately transferred to the control of the parties
2008	Wife forms L and acquires a 10 per cent interest in the Suburb C S
2009	CFT acquires additional interest (now one-third) in O Street, Suburb C
Feb 2010	Property at DE Street, Suburb KK is sold for $355,000
March 2010	Parties purchase 50 per cent of speed boat, other owners are Ms and Mr EE
June 2010	Cantwell Investments is registered as the proprietor of 1 and 2 Q Street, Suburb G
2011	Suburb MM and Suburb KK S businesses are sold with proceeds of about $4.7 million
2011	Husband and Mr UU purchase properties via the MMST at AA Street, BB Town, Qld and Unit SS Street, Suburb TT, Qld
2011	Cantwell Investments purchases property at 2 PP Street, Suburb G South
Feb 2012	L purchases property at J Street, Suburb G for $410,000.  The property is later the subject of development at the direction of the wife
April 2012	Property at P Street, Suburb KK is purchased by FF.
2012	Parties cause CFT to provide $55,000 to the wife’s daughter Ms EE to assist in the purchase of a house
Sep 2012	FF as trustee for the GGT purchases a holiday home at EF Street, FG Town
16 Oct 2013	Parties separate
2013	Properties at 2 PP Street, Suburb G South are sold and proceeds distributed
2014	EF Street, FG Town is sold and proceeds divided equally
Dec 2014	Property at 2 Q Street, Suburb G is sold and proceeds distributed
Jan 2015	Sale of 1 Q Street, Suburb G and proceeds distributed
Jan 2015	Sale of Unit X Street, Suburb W.  Husband retains proceeds of $10,839 and applies the proceeds in payment of outgoings
15/9/15	Husband purchases and commences trading and “R” franchise in Country T via Country T GH Pty Ltd

SCHEDULE OF ASSETS AND LIABILITIES

1. The parties have reached substantial agreement as to the identity and the value to be ascribed to their separate and joint interest in property and as to the extent of outstanding liabilities.

2. Counsel assisted the Court by the presentation of a joint balance sheet which highlights the areas of agreement and disagreement as to the property of the parties and the value to be attributed.  The following represent the areas of agreement:

ASSETS
No	Description	Value
1	CBT 50 per cent interest in S Suburb B	$672,000
2	Cantwell (CCT and L) 35 per cent interest in Suburb C S	$564,000
3	Husband’s interest in CCT (as per 2015 accounts): ·      Cash  $483 ·      Unpaid PE CT  $54,367	$54,850
4	Husband and wife’s credit loan accounts in CT	$76,811
5	Cantwell (BS – CFT) 50 per cent interest in 1 PP Street, Suburb B	$595,000
6	Husband’s additional interest in BS	$14,128
7	Cantwell (Suburb C Syndicate 2 [“CS2”]) 33.3 per cent interest in O Street, Suburb C	$560,000
8	H’s interest in CS2	$80,655
9	Interest of CFT in I Street, Suburb G	$340,000
10	Interest of CFT in F Street, Suburb G	$380,000
11	Interest of L in J Street, Suburb G	$470,000
12	Interest of GGT in P Street, Suburb KK	$370,000
13	Interest of NNS2 as to 50 per cent of the proceeds of the sale of Z Street, Suburb W	$12,205
14	Cantwell (H Trust & QQT Syndicate)  50 per cent interest in Y Street, Suburb W	$145,000
15	Proceeds of sale received by the Husband from the sale of X Street, Suburb W	$10,839
16	Husband’s interest in MMST which holds properties jointly with Mr UU at AA Street, BB Town Queensland and SS Street, Suburb TT, Queensland	$52,491
17	Husband’s equity in OO Pty Ltd	$58,497
18	Husband’s shares and the proceeds of shares held by CFT	$547,288
19	Proceeds of the sale of shares retained by Husband (personal)	$41,336
20	Wife’s savings at separation	$132,600
21	Part property settlement (husband) from sale of 2 PP Street, Suburb G and EF Street, FG Town	$360,932
22	Part property settlement (wife) from sale of 2 PP Street, Suburb G and EF Street, FG Town	$360,932
23	Cantwell interest in II Trust	$18,590
24	Chattels in the possession of the husband	$12,660
25	Chattels in the possession of the wife	$5,798
26	Husband’s watches	$9,200
27	Wife’s jewellery	$7,975
28	Cash in safe at separation and split equally	$10,000
29	Value of speed boat and trailer (wife)	$25,000
30	Dividends received by husband from CFT and transferred to Country T	$70,000

LIABILITIES
1	Mortgage on 1 PP Street, Suburb B	$370,000
2	Mortgage on O Street, Suburb C	$263,667
3	Mortgage on I Street, Suburb G	$314,352
4	Mortgage on F Street, Suburb G	$250,723
5	Mortgage on J Street, Suburb G	$306,392
6	Mortgage on P Street, Suburb KK	$245,236
7	Liability outstanding following sale of Z Street, Suburb W	$70,866
8	Mortgage on Y Street, Suburb W	$159,080
9	Funds borrowed to effect settlement of VV Street, Suburb W	$61,500
10	Outstanding liability following sale of WW Street, Suburb W	$42,853
11	Husband’s personal tax 2015	$2,263
12	JJ Pty Ltd tax 2015	$6,541
13	CFT tax on share sales made in 2016	$22,049
14	Wife’s personal tax 2015	$3,571

SUPERANNUATION
1	Interest of parties in Mr & Ms Cantwell Superannuation Fund including 2016 tax refund	$512,257

ASSETS IN DISPUTE

No	Description	Husband	Wife
1	Funds received from husband following refinance F Street, Suburb G	Nil	$114,565
2	Cantwell (H TRUST) interest in D Street, E Town	$190,000	$95,000
3	Funds sent by husband to support Country T venture	$550,000	$630,000
4	Balance of proceeds retained by husband following sale of 1 Q Street, Suburb G	Nil	$67,500
5	Funds sent to Country T by Husband 1/7/15 – 31/5/16 at $10,000 per month	Nil	$110,000
6	Funds received by husband from insurance and government grant in respect of 2 PP Street, Suburb G	Nil	$38,000
7	Amount due by Mr UU to OO Pty Ltd	Nil	$280,000

LIABILITIES IN DISPUTE

No	Description	Husband	Wife
1	Mortgage  over D Street, E Town property	$113,810	$56,905

ISSUES IN DISPUTE

1. Whilst the parties have reached agreement that the net property of the parties is to be distributed equally between them, they are not agreed as to the following matters:

   1.The manner in which their separate interest in the Mr & Ms Cantwell Superannuation Fund are to be dealt with.  The wife seeks that her interest be rolled out to her in cash.  The husband proposes an in specie distribution.

   2.There remains a dispute as to the construction of the pool arising from the parties’ inability to agree to certain items of asset and liability as highlighted in the joint balance sheet.  There is also disagreement between the parties as to whether it would be proper to “add back” certain notional assets as nominated by the wife.

   3.Central to the dispute between the parties is the retention of the Cantwell interest in Suburb C S.  The wife via L holds a 10 per cent interest and the husband via CCT owns a 25 per cent interest.  The wife does not seek a transfer of the units held by CCT, but rather she seeks orders that would see the husband relinquish control in CCT to the wife.

   The CCT stands alone in respect of the other assets of the parties and is not linked to S Suburb B.

BACKGROUND

1. The parties met in 1994.  The wife had two children from a previous relationship.  Both children are independent of the wife.  Her daughter, Ms EE, has a connection with the proceedings arising from her involvement with the property at D Street, E Town.  The husband was a full time employee with S and the wife worked in hospitality.  The husband’s involvement with S was with a view to purchasing an interest in a S business if an opportunity became available.

2. The parties commenced cohabitation in 1995 and the husband took up residence with the wife in her premises at Suburb KK.  Given the agreement between the parties as to how the net property is to be adjusted, the lack of agreement as to the extent of the property held by each of them at the date of commencement of cohabitation is of little impact.  There was no valuation evidence in respect of the property held by the parties, but in particular the wife’s interest in the Suburb KK property but it is uncontroversial that the assets held by each of the parties at the commencement of cohabitation were modest.

3. The parties were energetic in their endeavour to promote financial security.  In 1995 the husband became a manager at S Suburb B and pursuant to his contract, and subject to satisfactory performance goals being reached, the husband negotiated to purchase a 25 per cent interest in the S Suburb B business with a view to extending that interest to 50 per cent over time.  The entity by which the interest in the S business was held was CBT owned by the CFT.

4. The wife concedes that the husband worked hard, and shortly after the acquisition of the husband’s interest in S, the wife was also employed in the business.

5. The involvement of the parties in the S brand has its genesis in the early days of their relationship.

6. Mr HI was born in 1996.  Mr HI is the only child of the parties’ relationship.  There is no issue in respect of matters relating to the care and parenting of the child.  It is likely that the wife took on the primary parenting role, notwithstanding that she suffered from post-natal depression and the child’s early behaviour was challenging.

7. The husband concedes that following the birth of Mr HI the wife returned to employment and steadily developed an aptitude for the activities of the business.  The husband acknowledges that the wife was “a proficient employer” and “the [most successful] in the [business]”.

8. He considers that whilst clearly suited to the some aspects of the business, she lacked management skills.

9. The parties each recognise that they brought different but valuable skills to the business venture.  The wife took on responsibility for administration, whereas the husband focussed on developing ongoing management plans and general oversight in relation to other management staff.

10. In late 1998 the parties were approached to consider a partnership effectively between the owners of the Suburb B and Suburb C S businesses.  The husband’s business partner in the Suburb B business was Mr N and in respect of the Suburb C business, Mr RR and Mr IJ.

11. It was agreed that the husband (or his entity) would purchase a 15 per cent interest in the Suburb C business, undertake a management role and a 20 per cent interest in the business premises.

12. On 13 August 1998 the CD Trust was settled with KPL established as the trustee of the trust.  The husband was the appointor and the wife was a default appointor.  In February 2002 the name of the trust was changed to the CCT.

13. There was a close business relationship between the Suburb B and the Suburb C businesses.  The husband was engaged in management and was integral in the development of business policy, extensive management reporting and training systems, together with the operation and development sections of the business.  The husband was assisted by Mr QQ.  Mr RR, Mr N and Mr QQ all gave evidence in support of the husband’s application that the wife transfer her 10 per cent interest in the Suburb C business held by L to the husband.

14. The wife is acknowledged to have taken on a significant role as team leader in respect of the retail aspects of the two businesses.

15. Each of the parties gives considerable value to the actions and involvement of the other in the development of the business interests that had been acquired in both the Suburb B and Suburb C businesses.

16. In November 1999 the premises at O Street, Suburb C was purchased by a consortium comprising of Mr RR, Mr IJ, Mr N, JK Enterprises and the husband.

17. By 2009 the Suburb C Syndicate (“KPS”) retains ownership of a one-third interest in the Suburb C business premises.

18. In July 2002 CCT had acquired a further 10 per cent in Suburb C S, taking the total to 25 per cent.

19. In 2004 the parties purchased an interest in the S business at Suburb MM and Suburb KK in partnership with their accountant, Mr UU.  The II Trust held the interest as to 70 per cent for the parties with Mr UU via units in KL Trust holding 30 per cent.  Whilst there was some complexity to the manner in which the Suburb MM and Suburb KK businesses were held, it appears that the units in relation to the MMST were held by LL Pty Ltd (“LL”) with the directors and shareholders restricted to the husband and Mr UU.  LL was the common trustee for II Trust as to 50 per cent of the units (the entity of the parties) and Unity KL Trust as to 50 per cent (Mr UU).  Since separation, LL Pty Ltd has been dissolved.

20. The parties spread their time amongst the various S businesses.  There is concession made by each of the parties that in respect of their separate areas of expertise, they each worked hard and had as their focus a common goal namely; to pursue financial advantage and security for the family.  In 2005 the parties invested in a housing development at Suburb W, Suburb B.  Various properties were purchased, some in combination with other investors, in particular, Mr N and Mr QQ.

21. The investments have not met with great success and efforts have been made to dispose of the properties with an understanding that it was necessary to sell certain properties, notwithstanding that a loss was anticipated and a liability to the parties would be incurred.

22. In November 2006 the parties via HPL and the wife’s daughter, Ms EE and her husband Mr EE, purchased property at D Street, E Town.

23. The husband considers that ultimately HPL became responsible for the payment of all loan repayments and outgoings in the circumstances where Mr and Ms EE were unable to do so.  The wife concedes that there was an agreement to purchase the interests of Mr and Ms EE by paying to them the sum of $24,000.

24. In October 2007 the wife asserts that she drew down on a line of credit in the sum of $21,403 to enable her son from a previous relationship to purchase a home.  She considers that the money was advanced by way of a “gift” whereas the husband notes that the funds came from CFT, were not a “gift” and have not been repaid.

25. The status of monies allegedly outstanding from her son is in issue.

26. The property of the parties comprise certain investment properties in Queensland.  The parties agreed to purchase shares in XX, a company owned by Mr UU.

27. The Mr & Ms Cantwell Superannuation Fund holds 344,499 “C” class shares in XX and is the principle asset of value in the corpus of the Super Fund. 

28. In 2008 Mr IJ offered his interest in the Suburb C business and premises to the current unit holders.  L purchased 10 per cent of the units in KCCT which took the combined holdings of the parties in Suburb C to 35 per cent.

29. CFT purchased a further 5.3 per cent interest in the Suburb C premises and negotiated the purchase of 50 per cent of the premises from which S Suburb B operated.

30. In late 2010 or early 2011, MMST sold both the Suburb MM and the Suburb KK businesses back to the principal franchisor.

31. In 2011 the husband and Mr UU purchased Queensland properties at BB Town and Suburb TT using the MMST.  The husband also purchased property at 2 PP Street, Suburb G South in the name of Cantwell Investments.

32. L purchased property in 2012 at J Street, Suburb G.  It was the intention of the parties that it had significant potential as a development site.  Whilst the plans for development were well-advanced as at the date of separation, no action was taken to commence the development.  The parties gave initial consideration as to whether they would be able to jointly pursue the development post separation.  Ultimately, the husband did not consider that he was able to contribute the funds necessary to commence the construction costs.  Notwithstanding the husband’s refusal to participate the wife commenced the proposed development by the demolition of the house in January 2015.  The wife sought that the husband provide development costs of $13,500 per month.  The husband refused and ultimately the wife’s claim was the subject of an unsuccessful interlocutory proceeding.

33. In 2014 the wife became aware that the husband had purchased, or intended to purchase, an “R” franchise in Country T.  An order of injunction was made by Judge Cole on 15 August 2014 that restrained the husband other than in the ordinary course of business from disposing of, or encumbering or otherwise dealing with the assets in his possession or control without obtaining the written consent of the wife or the Court.

34. Following an Application in a Case filed by the wife on 17 February 2015 the husband’s Response confirmed that he had purchased a franchise in Country T and that it was “financed by a loan from the Cantwell Family Trust to the new entity “U Pty Ltd” being an amount of $550,000.  Whilst the husband was prepared to concede that his actions might well have been in breach of the injunction he did not do so wilfully and that he believed that he was not restrained from doing so.

35. The financial structure of the associated entities in which the husband and wife have an interest are not straight-forward, but assistance is gained from a flow-chart diagram setting out the corporate tree being Annexure “L” to the trial affidavit of the husband filed 12 November 2015.  There have been changes post-separation as follows:

    ·DD Pty Ltd is the trustee of CT instead of KPL;

    ·LM Pty Ltd is the trustee of II Trust;

    ·HH Pty Ltd is the trustee of the Mr & Ms Cantwell Superannuation Fund.

Suburb C S

1. During the relationship, KPL was the trustee for the Suburb CC Trust.  The directors of KPL were the following persons:

   (a)Mr Cantwell;

   (b)Mr N;

   (c)Mr RR;

   (d)Mr QQ.

2. The shareholders of KPL were as follows:

   (a)The husband 25 shares;

   (b)Mr N 20 shares;

   (c)Mr RR 20 shares;

   (d)Mr QQ 25 shares;

   (e)L 10 shares.

3. The unit holders of the Suburb CC Trust are as follows:

   (a)CC Trust 225,000 units;

   (b)N Suburb CC Trust 180,000 units;

   (c)RR Suburb CC Trust 180,000 units;

   (d)QQ Suburb CC Trust 225,000 units;

   (e)L 90,000 units.

4. The parties’ interest in the unit trust arises from the husband’s control of CCT and the wife’s control of L.

5. The wife seeks orders that would enable her to control the units held in the CT currently held by CCT and L.  The wife controls L and accordingly seeks orders that she be appointed the appointor and trustee of the CCT and that the husband transfer his shareholding in KPL and any credit loan account or other interest of the husband in the trust to vest in the wife.  The husband would also be required to resign as a director of KPL.

6. The wife does not seek to be appointed as a director of KPL, acknowledging that the decision to appoint a director will likely rest with the majority shareholders, Mr N, Mr RR and Mr QQ, who collectively hold 65 shares out of the total of 100 shares held in KPL.

7. The parties have agreed a value for the Cantwell interest in the Suburb C S at $564,000 and in respect of their interest in S Suburb B, the agreed figure is $672,000.  The husband would seek to retain the Cantwell interest in respect of both businesses and the orders that he seeks is that the 10 shares held by L in KPL and the 90,000 units held in CT be transferred to the husband or his nominee.

8. The parties agreed the valuation of the Cantwell interests in Suburb B and Suburb C S by reference to the valuation report prepared by Mr MN dated 19 November 2015.  Notwithstanding, that there was agreement as to value, there is some relevance to the methodology adopted by Mr MN, but in particular in terms of his separate considerations of the discount that should apply for “lack of control and illiquidity”.

9. Mr MN’s convenient summary is to be found at paragraph 1.41 of his report annexed to the affidavit of Ms BC filed 25 November 2015 as follows:

Description	Suburb C (Unit Trust)	Suburb B (Partnership)
Equity value ($)	1,990,147	1,571,455
Equity interest ( per cent)	35	50
Pro rate equity value ($)	696,551	785,728
Control discount ( per cent)	10	5
Liquidity discount ( per cent)	10	10
Net discount ( per cent)	19	14.5
Net discount ($)	132,345	113,930
Value to parties ($)	564,207	671,795
Total value to parties - $1,236,000

1. Mr MN records that the business owners, and in particular, the husband receives no remuneration or fringe benefits from the business, save and except for management fees in respect of Suburb C of $40,909 for the 2015 financial year and $90,905 for Suburb B during the same period.

2. The husband considers that the management fee is justified by his duty which include the following:

   ·Business management;

   ·Staffing (hiring and firing);

   ·Management oversight;

   ·Management development;

   ·Provision of budgeting guidelines;

   ·General administration.

3. Whilst no management fee is paid to any other person in respect of the Suburb B business, in 2015 Mr QQ received management fees of $72,727 to reflect the management duties that he undertakes.

4. The husband acknowledged to Mr MN that following his move to Country T in 2015 his involvement with the business on a day to day basis is by electronic communication, but that he returns to Adelaide on a bi-monthly basis.

5. Mr MN had no difficulty in accepting the commerciality of the fees and it is reasonable to draw the conclusion that the husband’s involvement in Suburb B and its ongoing management is of greater significance than his supplementary management assistance to Mr QQ in the Suburb C business.

1. At pages 33 and 36 of the MN report the net profit before tax for each of the businesses can be summarised as follows:

2011	2012	2013	2014	2015	2016
Suburb B	$565,726	$511,180	$473,828	$426,325	$454,597	$608,436
Suburb C	$517,127	$527,688	$554,569	$488,137	$635,471	$699,999

1. Mr MN also considers that each of the businesses have been “well-managed given the weak South Australian business environment and more restrictive regulatory regime”.

2. The wife contends that following separation she continued an active and significant role as business manager in the S Suburb B business.  Initially, there appeared some prospect that the parties may cooperate even to the extent of considering purchasing the interest of Mr N, but it is the wife’s evidence that from early 2014 she considered the husband was determined to have her removed from the S business.  The wife ceased her employment at the Suburb B business in February 2014 but continued at the Suburb C business until, she says, the husband again took steps to deny her entry to the business.

3. She further became aware of a motion passed by the directors of KPL on 24 June 2014 seeking to take steps to ensure the wife did not attend the Suburb C business premises, that she relinquish her shareholding and the husband remain as a director and shareholder of KPL.

4. The wife argues that whilst the husband relies upon the evidence of Mr QQ, Mr N and Mr RR to support his contention that they will not work with the wife and accordingly orders should not be made that would allow the wife to continue to hold an interest in Suburb C S, nonetheless whilst the husband’s co-directors gave evidence on his behalf they did not seek to intervene and there does not appear to be any impediment arising out of any trust deed in respect of the settlement of CCT or CT or Articles of Association in respect of KPL which would prevent the transfer of the husband’s interest to the wife.

5. The wife also highlights that since shortly after separation the husband has effectively been a resident of Country T and that his focus has been the development of his interest in the “R” franchises.  Significant money has been extracted from the finances of the parties in order to support the husband’s business interests in Country T and whilst there may be some basis to argue that the husband has some level of management input in respect of the Suburb B business, the same cannot be said for Suburb C where Mr QQ is clearly the manager.

6. The husband refers to his long association with the S enterprise.  He makes the point that prior to the commencement of the relationship with the wife he was already involved with S, and whilst not at that point holding any interest, it was his intention and expectation that he would do so.  I accept that the husband had the foresight to pursue what ultimately became a valuable business interest in the S franchise, but also provided significant financial reward to the parties.

7. Whilst there is some disagreement as to the extent of the role that each of the parties played in the various S businesses, there is a concession by each of them that the other made a valuable contribution and that they worked hard.

8. The parties each brought a different skill set as evidenced by the wife holding the position of business manager for Suburb B up until early 2014.  There is no doubt that the husband’s management expertise was well-regarded, recognised and reflected in ongoing profitability.  Mr MN confirms that the management of Suburb B and Suburb C businesses has been sound.

9. The wife considers that the husband has engaged in deliberate non-disclosure of his financial arrangements, notwithstanding that they were likely to be of interest to the wife and have the potential to adversely affect her interests.  She refers to the husband’s movement of funds from the interest of the parties in the Cantwell group of entities necessary to purchase and maintain the “R” franchise in Country T.  The wife also raises complaint in respect of the manner in which she says the husband did not disclose the circumstances surrounding borrowings and cross-security of the property at O Street, Suburb C which houses the Suburb C S business.

10. The husband was concerned to ameliorate any allegation of non-disclosure by filing his affidavit of 30 November 2015.  That document constitutes an acceptance by the husband that he did not discover any documents specifically relating to a Bankwest second mortgage loan of $275,000 in relation to the Suburb C property secured over a property at WW Street, Suburb W.  The significance is that whilst resisted by the husband, the current cross-security arrangements would make it difficult to effect a transfer of the interest held by CFT in the Suburb C property to the wife.  The husband acknowledges that he made an error and that the documents should have been provided.

11. The consequence for the wife is that she acknowledges that it would now be impracticable for her to seek a transfer of the interests of the CFT in the Suburb C property to her or her nominee.

Mr QQ

1. The evidence of Mr QQ was contained in his affidavit filed 11 November 2015. 

2. He confirms that he is a manager of the Suburb C S business but holds the husband in high regard as being “directly responsible for the overall administration operation of the business.  This role includes legal, commercial, compliance, human resources and dealing with financial lending regulations”.

3. Mr QQ does not consider the wife has the depth of business knowledge nor management experience to replace the husband.

4. Mr QQ does not consider that he would be able to establish a working relationship with the wife and certainly would not wish her to form part of the management team.

5. He considers that whilst he understood that the wife’s entity L held units he considered that they were always controlled by the husband.

6. Mr QQ was cross-examined and confirmed that a number of the operating software that had been put in place by the husband had been the subject of recent change and that the programmes were now completely different.  In addition the credit licence holder for the Suburb C business is Mr QQ.  A licence is necessary to support the business.

7. It is Mr QQ that attends the meetings with the franchisor and there is software as between the franchisor and the franchisee that provides automatic updates.

8. Mr QQ’s involvement in S commenced in 1998.

9. With some reluctance, Mr QQ agreed that the wife had expertise in the segment of the business.

10. The husband does not work in the business and the wife has not attended since March 2014.

11. Mr QQ conceded that part of the motivation for his opposition to the wife holding an interest in the Suburb C business arises because of the husband’s clear objection.  He conceded that the wife was competent to work in the business given her history as a manager of the Suburb B business.

12. Mr QQ acknowledged that when L acquired a 10 per cent interest in the Suburb C business he did not know which entity in the Cantwell group held the interest and it was only following separation that he became concerned.  That unease has its genesis in a belief that the wife may be a disruptive influence.  That is not based on any observation or objective conduct of the wife, but rather the strong opposition as expressed by the husband to the wife retaining her share.  Mr QQ conceded that he had attended a company meeting and was a signatory to a document that reflected the husband’s position namely, that the wife should transfer the units held by L to the husband.  He was unsure about the decision made and considered it was a judgment call as to which course would likely to be the least disruptive.

13. The dilemma for Mr QQ was exacerbated by his confirmation that at one time the wife was considered to be his best friend and that he had always had a close relationship with her.  In terms of her attendance at the business there was no complaint in respect of the diligent discharge of her duties.  The connection between the wife and Mr QQ was further complicated by his acknowledgment that the wife had loaned him $65,000 to buy an interest in a Suburb B property.

14. Whilst he conceded that he would have done things differently and a better course would have been to have not supported either party, he considers that whilst he is able to appropriately manage the business, the husband does possess superior commercial intuition.

15. Whilst difficult to reconcile with his previous relationship with the wife and his distress at having to support the husband, nonetheless it is out of commercial consideration that the husband has his support.

16. The evidence of Mr QQ was qualitatively different to the manner in which his affidavit was crafted.

17. The Suburb C S business is a profitable business and whilst Mr QQ may recognise the considerable skills of the husband, nonetheless there must always be a contingency in case something was to happen to either the husband or Mr QQ.  His support of the wife is more out of a desire to avoid conflict than a reflection that in some way the husband plays an integral part in the ongoing business management.  The evidence does not support that contention.  Mr QQ conceded that the wife was honest and up until separation had demonstrated considerable business acumen in the management of the Suburb B business.

18. An important concession by Mr QQ was that at the commencement of the involvement by L he was unconcerned as to who had control of that entity.

Mr N

1. Mr N confirmed that the directors of KPL are strongly supportive of the husband and the maintenance of his managerial responsibilities, but do not wish the wife to remain as a unit holder.  Under cross examination Mr N conceded that the meeting of the directors of KPL did not occur with any formality but rather, his involvement was by way of a direct telephone conversation with the husband who urged him to support a resolution that the wife be excluded from the business.

2. If Mr N’s evidence is correct then the wife’s allegation that the husband “conceived, directed and orchestrated the illusion of a company meeting to distance the wife from the business” has considerable substance.

3. Not dissimilar to Mr QQ, Mr N conceded that he had no personal difficulty with the wife and that for his own commercial well-being considered that there was more to be gained by the husband remaining as a unit holder and able to provide some management expertise and input.

4. Whilst Mr N was keen to extol the virtues of the husband’s management skills, he was reticent to concede that the husband’s ability to assist was compromised by his continued residence in Country T.  He was unsure as to the husband’s current residence status and could not give an indication of the extent to which the husband came to Adelaide.

5. Mr N made the proper concession that he was highly respectful of the wife and was happy to recognise her performance as a manager at the Suburb B business.  His overall summary of the wife was that she was competent.

6. The difficulty for Mr N was that the husband and wife are in conflict and that has the potential to adversely affect the performance of the Suburb C business.  Given the long relationship between Mr N and the husband he considered that the husband was likely to be more financial advantageous to the value of his interests than would the wife.

7. Like Mr QQ, Mr N had no part in preparing the minutes of the director’s meeting of KPL and is not really sure as to whether the minutes were signed or how the resolution came to be in writing.

8. He did concede that he has confidence in Mr QQ’s ability to manage the business noting that he had been involved in the Suburb C S business for between 10 and 15 years.

Mr RR

1. Mr RR gave evidence similar to that of Mr QQ and Mr N.  His preference is for the husband to maintain his present managerial responsibilities and he did not wish for the wife to return to paid employment in the Suburb C business.

2. Under cross examination Mr RR acknowledged that he is not really involved in the day to day activities of S but rather, was simply an investor.  Perhaps highlighting an inconsistency in his affidavit, Mr RR expressed his view that the problem wasn’t with the wife personally or that she held 10 per cent of the units but rather that the husband brought with his involvement management expertise.  Mr RR was happy for the wife to keep her 10 per cent interest but not to accumulate any more.

3. When pressed he was of the view that whilst he would not like the wife to remain involved, he would have to live with that decision.  There is no suggestion that orders as sought by the wife would adversely affect the financial viability of the Suburb C S business.

4. Whilst at this stage Mr RR has no plans to sell his interest, he confirmed that there had been an earlier consideration for Mr RR and Mr N to sell their separate interests to the husband, the wife and Mr QQ but subject to finance being available.

5. I am satisfied that Mr RR approaches his interest in the S business on a strictly pragmatic and commercial basis.  If the right price was offered Mr RR would be prepared to dispose of his interest.

6. Whilst I accept that the initial preference of Mr QQ, Mr N and Mr RR would be for the current ownership arrangements of Suburb C S to remain unchanged, none of them have sought to intervene in the proceedings or to rely on more than an assertion that if they have to choose then their history of association with the husband would make his retention the preferable outcome.

7. In terms of Mr N and Mr RR they are sanguine in the sense that they are investors and given the right price would consider disposing of their interest.  Mr QQ is in a different position given his active involvement as the business manager.  Under cross examination he was prepared to concede that his relationship with the wife was one of respect and a recognition that whilst not his first choice, the Suburb C Business would continue to prosper if the wife retained an interest.

8. The husband has acted in a cavalier fashion in respect of the business enterprise in Country T, the utilisation of funds of the Cantwell Group to further that venture and the non-disclosure to the wife of the guarantee and security arrangements over the premises of the Suburb C Business.

9. The value of the interests and the income stream in respect of Suburb C and Suburb B are not dissimilar and in any event Mr MN recognised that the Suburb B business had less uncertainty in terms of control and liquidity than did the Suburb C business simply because of the greater interest held by the husband.

10. The parties have been integrally involved with the S franchise for the entirety of their period of cohabitation.  It has clearly been the financial engine of the property and assets accumulated by the parties.  I also accept that notwithstanding the valuation by Mr MN, each of the husband and wife consider that the S businesses have a greater personal value than is possibly reflected in the valuations.

11. I also suspect that whilst it is an easy statement for the husband to assert that upon the wife transferring the interest held by L to the husband she will receive fair value, the obvious reluctance by each of them to relinquish their interest in the S businesses would suggest that the parties at least consider that the value of their interests is not necessarily reflected in the MN valuation outcome.

12. The husband has utilised the funds of the Cantwell Group to set up a business in Country T and in addition he seeks to retain both the interest held in the Suburb C and Suburb B S businesses.

13. It would seem obvious that the wife’s motivation for seeking to retain the Cantwell interest in the Suburb C business is a reflection that the business has a track record and the income stream is reliable, whereas if the wife were to set up her own business enterprise there must be some level of uncertainty as to its future success.

14. In the circumstances of this case I consider it a reasonable outcome taking into account the long period of cohabitation and their separate but nonetheless equal involvement in the S business for the husband to retain the Cantwell interest in the Suburb B Business but for the wife to retain the parties’ interest in the Suburb C business.

Did the husband receive funds from the refinance of F Street, Suburb G?

1. The contention of the wife is that the majority of the progress payments required by the builder for F Street, Suburb G (the last of six town houses built at 2 PP Street, Suburb G) were met by the parties from their joint and separate resources.  It was intended that when bank finance was approved the parties would be refunded the building costs that had been contributed by each of them.  The refinanced sum paid to the husband was $114,564.  The wife considers that the parties had an agreement that the funds would be divided between them to reimburse their separate contributions.  The husband retained the funds and the wife considers that it should be “added back” to the pool.

2. The husband does not concede that he has received the advantage of the refinanced sum.

3. There is little evidence to suggest that the husband received the sum in the manner as suggested by the wife and even if that were to be the case there is no evidence that would suggest that the husband was privately advantaged.  The development of the F Street property took place in 2012 and given the complex financial structure of the Cantwell Group, there is no suggestion that the monies were retained by the husband with a view to disadvantaging the wife.

4. The parties did not consider their finances to be based upon a concept of strict accounting or that they would ultimately be the subject of an audit.  Whatever mistrust now exists between the parties, there is no evidence to suggest that in 2012 the husband was motivated to do anything other than to further the joint interests of the parties and to improve and value add to their property and financial well-being.

5. Whilst I do not consider that I am prevented from considering whether a sum of money might appropriately be considered as an “add back”, in circumstances where it is reasonable to bring to account the overall financial position and management of the parties finances, there remains the strong likelihood that monies received by the husband from the refinancing have been utilised in other areas not necessarily now able to be identified.

6. I do not consider there is sufficient evidence to support the wife’s contention that the sum of $114,564 should be added back into the pool.

D Street, E Town

1. The husband seeks to bring to account the interests of the parties via HT and the EE Syndicate in the D Street, E Town property at $190,000.  The wife contends that the Cantwell interest should reflect the legal interest of the parties namely, a one half interest or $95,000.

2. The husband’s evidence is that whilst the initial intention was that the parties would purchase a one half interest in the property, the wife’s daughter and son in law were not able to continue their share of the payments of the loan and the outgoings and ultimately they conceded that notwithstanding the manner in which the property was held, it should be considered as a Cantwell interest.

3. The wife argues that whilst there was an agreement to purchase the interests of her daughter and son in law for $24,000, payment was never made and the agreement did not proceed.

4. The husband refers to the terms and conditions of the agreement for sale and purchase of the property as comprised in Exhibit “2”.

5. The agreement refers to a purchase price of $81,350 with no deposit to be paid.  The vendor is Mr EE and Ms EE with the purchaser being HPL.

6. The Memorandum of Transfer of mortgage signed by the parties but not dated refers to the consideration in the following terms:-

   Eighty one thousand three hundred and fifty dollars ($81,350) which sum has been paid by the transferee as trustee of the H Trust. 

7. The Memorandum of Transfer would appear to refer to monies already having been paid namely, the extent to which the husband and wife had paid loan repayments and outstanding liabilities.

1. The wife did not call evidence from her daughter and in this regard I prefer the evidence of the husband to that of the wife.  I propose to bring to account the Cantwell interest in the E Town property at $190,000.

Funds sent to Country T

1. The parties agree that the husband sent substantial funds to Country T to set up the “R” franchise.  The husband is prepared to concede that as at 30 June 2015 he caused the sum of $550,000 to be drawn from the account of CFT to be sent to Country T.  The wife refers to the balance sheet for the 2015 accounts and argues that the amount of $630,000 was sent.  In addition, the wife argues that the husband has been sending $10,000 per month to Country T to support the business and his living and other expenses.  The balance sheet for the trust refers to the Country T entity as “U Pty Ltd” and records that it owes a loan to the CFT in the sum of $630,000.

2. In evidence the husband appears to accept that the figure of $630,000 is represented in the 2015 balance sheet.

3. A difficulty arises however in that the document relied upon by the wife is not the financial statements for the trust but rather a report from the accounting software used by the husband.

4. Whilst it is difficult to be definitive, consideration must be given to the manner in which the husband transferred funds from the trust without any warning or advice to the wife.  Whilst it is the husband’s position that he did not think the injunction applied to this particular transaction, I find his explanation to be less likely than the wife’s contention namely, that if notice had been given to the wife, given the state of the litigation, she would have taken steps to stop the transfer of any funds.

5. Whilst there is a dispute on the evidence, I prefer the position adopted by the wife than the husband.  I consider that I am entitled to take a robust approach to the evidence in circumstances where there has been a deliberate material non-disclosure. See Weir & Weir (1993) FLC 92-338.

6. In those circumstances it was incumbent upon the husband to present the circumstances by which he financed the Country T franchise with transparency.  The husband has not done so and given that there is a dispute between the parties I prefer the evidence of the wife based upon the balance sheet which appears to confirm the loan outstanding from U Pty Ltd in the sum of $630,000.

7. The wife also seeks to bring to account an amount that she considers the husband has spent since 30 June 2015 in supporting the Country T business and paying for his living expenses and outgoings.  There is little evidence other than the wife’s assertion of the amount spent.  The wife has chosen not to value the husband’s Country T business but rather to reinstate (with the husband’s partial consent) the lump sum amount transferred.

8. There is no concession by the husband in respect of monies that have been paid over time.  Whilst I am reasonably certain that money has been diverted by the husband, the evidence is scant and the Court has had no ability to consider monies that have been transferred and the purpose for which that has occurred.  Obviously if money has been used by the husband to support his living expenses and other reasonable outgoings then this would not be likely to support a sum being notionally added back to the pool.  It might also be the case that the decision by the wife not to value the husband’s business makes it difficult to determine the appropriate treatment for the component of monies utilised by the husband for any shortfall in the business.

9. I do not propose to bring to account the wife’s claim for money that she alleges has been forwarded by the husband to Country T.

10. The agreement between the parties as to the appropriate adjustment of property does not allow for any consideration in respect of section 75(2)(o) and accordingly I propose to bring to account the sum of $630,000 in relation to the Country T venture but no other sum is to be added back.

Funds received by husband with regard to 2 PP Street, Suburb G

1. The wife refers to the sale of two townhouse sites at 2 PP Street, Suburb G.  Following the sale the parties received a partial property settlement, each in the sum of $291,000.  The wife alleges that the husband received additional payments namely the sum of $30,000 by way of an insurance payment following the liquidation of the first builder and then the sum of $8,000 that was received by way of grant from the State Government.

2. There is scant evidence to assist the Court in determining the matter and in any event it is unlikely that the money allegedly received by the husband has been quarantined.  The wife seeks that the money be added back into the asset pool, but in the absence of any cogent evidence it is not possible to find that in some way the husband has gained an unfair advantage by the purported retention of monies as alleged.

Husband’s equity in OO Pty Ltd

1. The wife seeks to bring to account the sum of $280,000 as being represented by an amount to be paid by Mr UU to OO Pty Ltd.  The husband acknowledges that he has equity in OO Pty Ltd of $58,497.

2. The evidence is that the husband is a director and shareholder of OO Pty Ltd, but the company was in reality a creature of Mr UU.  The husband relies upon a discovered document being a balance sheet for the 2015 financial year which shows the total equity at $83,568.

3. Mr UU gave evidence that the company was set up in 2006 to act as an employer of the staff of S Suburb KK.  The company still exists but there are only book entries and there is no active trading by the company.

4. The witness confirms that he received $295,000 to hold in trust for future tax liability and it is his reasonable expectation that the extent of the taxation liability will be $184,653.03 with a remaining balance of $110,346.97.  The entitlement of the husband and Mr UU in OO Pty Ltd is $83,568 and the witness agrees that the husband’s share is $58,497.

5. I accept the evidence of Mr UU.

Mr & Ms Cantwell Superannuation Fund

1. The parties are members of the Mr & Ms Cantwell Superannuation Fund.  The fund is self-managed.  The wife seeks to roll out her member entitlement to a fund of her choosing.

2. The parties agree that the value of the fund should be $512,257 made up of an investment in XX (a company owned and controlled by Mr UU) of $344,500 and shares in public companies held by the fund in the sum of $115,000 and other assets in the amount of $51,000.  The value of the fund is also adjusted for a 2016 tax refund estimate of $2,894.  Part of the corpus of the fund is a painting by a well-known artist which appears in the accounts at a value of $5,227.

3. The fund’s investment in XX is illiquid.  It comprises an interest in the development activities of XX.  The wife does not want her rollover to include an in specie entitlement in respect of the interest in XX, but does seek that her rollover include the painting.

4. Any inability on the part of the trustee (controlled by the husband) to effect a rollover by the transfer of cash is to be made up by the husband.

5. The husband seeks that there be a superannuation splitting order whereby the member entitlements of the parties are adjusted to a position of equality, or whereby the wife retains such greater proportion of the combined member entitlements in the fund as she may elect.

6. There has not been an election by the wife to seek a split of the superannuation fund other than to reflect the member entitlements of each of the parties.  No evidence has been presented as to the current value of the parties separate membership entitlement, but as at 30 June 2015 the wife’s interest was $252,001 and the husband’s interest was $256,942.

7. The wife seeks to do no more than to rollover her member entitlement and accordingly consideration need not to be given to a superannuation split.  Notwithstanding that the parties in the proceedings are also the directors of HH Pty Ltd being the trustee company, there is no evidence of procedural fairness, nor is there agreement as to how the wife’s interest is to be crystalized.

8. Neither party seeks that the interests of the parties in the superannuation fund be brought to account other than by a two pool approach.  The husband is not able to resist the wife’s application for a rollover to occur, nor is he able to require that the nominated fund be a self-managed fund to enable any rollover to include in specie assets.

9. There is little evidence as to how an in specie distribution could occur and it seems that in the absence of agreement, the wife is entitled to her rollover interest to be paid in cash and with the potential consequence that the fund may need to be wound up if the principal assets of the fund namely, the interest that it hold in XX and the publicly listed shares are not able to be readily disposed of.

10. Mr UU was questioned on the construct of the super fund and in particular the manner in which the fund holds its interest in XX.

11. The following exchange is recorded on 3 December 2015:-

    [Mr UU]:The ramifications are that the [Cantwell] Super Fund is not the only party that owns shares in this entity.  The majority of the shares in its entirety are owned by myself and my associate companies which is reflected in the equity value of the shareholdings.  My personal opinion is that I do not want to sell the properties to realise exit from the company.  My preference would be if the super fund wanted to exit the company then I would make arrangements to facilitate a buyout of their shares.

    His Honour:   If you wanted to buy out the super fund would you pay $344,000?

    [Mr UU]:Yes.  From my perspective I am not in the business of my client’s losing money.  That’s their original capital.  Regardless of the valuation which I personally believe that if the valuations were done today on today’s market then the end result may as we have seen on other property valuations come in either on par or lower.  Which may, if one was to do a complete calculation or assessment of the overall value of the company may mean that their investment is a bit lower.

12. I am satisfied that there is an ongoing business relationship between Mr UU and the husband.  They continue to be engaged in various joint ventures and many of the entities that comprise the Cantwell Group benefit from the ongoing advice and expertise of Mr UU.

13. Whilst obviously orders cannot be made that would bind Mr UU to give effect to his evidence, I am satisfied that it is likely to happen and I propose to make orders that would facilitate the rollover of the wife’s interest and entitlement in Mr & Ms Cantwell Superannuation Fund and if rollover of her member entitlement is not able to be effected, then the husband will be required to do all things necessary to cause such of the investments of the fund to be liquidated as may be necessary to effect the rollover.

14. I do not consider it appropriate that the husband should be responsible from his personal property to make up any shortfall.  It will be a matter for the husband as to whether the Super Fund should be wound up but given the evidence of Mr UU the rollover of the wife’s member entitlement should be a straightforward exercise.

Husband’s parents’ loan

1. The husband seeks to bring to account a liability of the parties representing a loan from his parents in the sum of $208,000.

2. The husband alleges that monies were borrowed from his parents in about 2007 in circumstances well known and understood by the wife.  The monies provided by the husband’s parents involve an interest that they held in XX.

3. The wife considers that the husband’s parents’ loan was to XX in the first instance and was later “transferred” to one of the UU entities namely, NO Pty Ltd.  The husband’s parents were not called and there is no suggestion of a direct claim by them in respect of the parties.

4. The issue seems to be that the husband’s parents’ loan is directly connected to the property of the parties.

5. Mr UU confirms that the husband’s parents had money invested in XX which was then invested in NO Trust and finally by way of a loan to CFT.  XX had clearly invested money in NO Trust according to a consideration of the balance sheet.  It may be that CFT owes money to NO Trust but it would not seem to be self-evident that the parties or any of their entities are in a direct contractual relationship with the husband’s parents.

6. At this stage it is acknowledged that the husband’s parents have not asked for their money back and any demand to crystalize their interest presumably would be directed to XX, which in turn would rely on NO to bring to account its asset base which presumably includes a loan to CFT in the absence of any clear demand by the husband’s parents.

7. In Biltoft & Biltoft (1995) FLC 92-614 the Full Court considered the position of an unsecured creditor and acknowledged the procedure adopted in Prince & Prince (1984) FLC 91-501 namely, that the net property of the parties should be determined by considering the total liability including those that are unsecured.

8. That said, there is no rule of priority as between a creditor and a spouse and whilst the rights of third parties cannot be ignored it is open to the Court to consider the nature of the liability bringing to account concepts of whether it is vague or uncertain and the likelihood of the creditor pursuing the liability.

9. The Court did not have the advantage of hearing evidence from the husband’s parents and there remains the fundamental uncertainty as to their intention and expectation.

10. If the husband is correct in his assertion that the parties have a liability in favour of his parents in the absence of any existing claim, the orders that are proposed by each of the parties does nothing to extinguish the purported liability to the husband’s parents.

11. Whilst not the subject of submission, there exists the possibility that any claim by the husband’s parents may now be statute barred (see Ogilvie v Adams (1981) VR 1041, Agius & Agius (2010) FLC 93-442 and Masoud & Masoud (2016) FLC 93-689).

12. Accordingly, I do not propose to bring to account any liability against the property of the parties in favour of the husband’s parents.

Wife’s unpaid legal fees

1. As at 12 June 2016 the wife’s outstanding legal fees were in the sum of $146,144.  She seeks to bring that liability to account as a liability against the property of the parties which would have the net effect of the husband paying one half of the sum outstanding.

2. The wife justifies the inclusion of her unpaid legal fees as a liability on the basis that the husband has funded his legal fees from income from CFT. The husband accepts that he has been able to pay his legal fees on an ongoing basis, but submits that there is no evidence “as to the extent of his costs, the amounts paid, or as to the source of funds for payment”.

3. The Full Court in Vass & Vass [2015] FamCAFC 51 said:-

   [138]There is no error committed per say in adjusting the parties’ actual property interests by a calculation involving notionally adding back into the pool sums which have been dissipated by the parties.  We reject any suggestion that the decision of Bevan & Bevan (2013) FLC 93-545 - or more particularly, the decision of the High Court in Stanford & Stanford (2012) 247 CLR 108 – is authority for any necessary contrary solution. Some statements made by the High Court may lead to the conclusion that references to “notional property” as have been referred to in decisions of this Court and at first instance may need to be reconsidered.

4. Similarly it is important to recognise the proposition in Chorn & Hopkins (2004) FLC 93-204 namely, that the parties to proceedings should pay their own costs unless the Court orders otherwise.

5. There is no evidence that the husband has outstanding legal fees.  It is reasonable to assume that they have been paid from the resources of the parties, but in particular derived from CFT or the Cantwell Group generally.  The husband has paid $190,669 whereas the wife has paid $60,481.

6. By reference to the costs statements of the parties, I find that the husband has paid his legal fees from the joint resources of the parties, but the wife has paid her legal fees from money retained by her at separation.  Therefore the amounts so paid should be added back into the pool as represented by $190,669 for the husband and $60,481 for the wife, but there should be a corresponding reduction in the amount attributed to the wife’s savings at separation.

7. The settled balance sheet is as follows:-

ASSETS
No	Description	Value
1	Cantwell (CBT) 50 per cent interest in Suburb B S	$672,000
2	Cantwell (CCT and L) 35 per cent interest in Suburb C S	$564,000
3	Husband’s interest in CCT (as per 2015 accounts): ·      Cash  $483 ·      Unpaid PE CT  $54,367	$54,850
4	Husband and wife’s credit loan accounts in CT	$76,811
5	Cantwell (BS – CFT) 50 per cent interest in 1 PP Street, Suburb B	$595,000
6	Husband’s additional interest in BS	$14,128
7	Cantwell (Suburb C Syndicate 2 [CS2]) 33.3 per cent interest in O Street, Suburb C	$560,000
8	Husband’s interest in CS2	$80,655
9	Interest of CFT in I Street, Suburb G	$340,000
10	Interest of CFT in F Street, Suburb G South	$380,000
11	Interest of L in J Street, Suburb G	$470,000
12	Interest of GGT in P Street, Suburb KK	$370,000
13	Interest of H Trust in D Street, E Town (H Trust & EE Syndicate)	$190,000
14	Interest of NNS2 as to 50 per cent of the proceeds of the sale of Z Street, Suburb W	$12,205
15	Cantwell (H Trust & QQT Syndicate)  50 per cent interest in Y Street, Suburb W	$145,000
16	Proceeds of sale received by the Husband from the sale of X Street, Suburb W	$10,839
17	Husband’s interest in MMST which holds properties jointly with Mr UU at AA Street St, BB Town Qld and SS Street, Suburb TT, Qld	$52,491
18	Husband’s equity in OO Pty Ltd	$58,497
19	Husband’s shares and the proceeds of shares held by CFT	$547,288
20	Proceeds of the sale of shares retained by husband (personal)	$41,336
21	Wife’s savings at separation less $60,481	$72,119
22	Part property settlement (Husband) from sale of 2 PP Street, Suburb G and EF Street, FG Town	$360,932
23	Part property settlement (Wife) from sale of 2 PP Street, Suburb G and EF Street, FG Town	$360,932
24	Cantwell interest in II Trust	$18,590
25	Chattels in the possession of the husband	$12,660
26	Chattels in the possession of the wife	$5,798
27	Husband’s watches	$9,200
28	Wife’s jewellery	$7,975
29	Cash in safe at separation and split equally	$10,000
30	Value of speed boat and trailer (wife)	$25,000
31	Dividends received by husband from CFT and transferred to Country T	$70,000
33	Funds sent to Country T by husband to 30/6/2015	$630,000
34	Husband’s paid legal fees to 23/5/2016	$190,669
35	Wife’s paid legal fees to 12/6/2016	$60,481
TOTAL	$7,069,456
LIABILITIES
1	Mortgage on 1 PP Street, Suburb B	$370,000
2	Mortgage on O Street, Suburb C	$263,667
3	Mortgage on I Street, Suburb G	$314,352
4	Mortgage on F Street, Suburb G	$250,723
5	Mortgage on J Street St, Suburb G	$306,392
6	Mortgage on P Street, Suburb KK	$245,236
7	Liability outstanding following sale of Z Street, Suburb W	$70,866
8	Mortgage on Y Street, Suburb W	$159,080
9	Mortgage on D Street, E Town (HT & EE Syndicate)	$113,810
9	Funds borrowed to effect settlement of VV Street, Suburb W	$61,500
10	Outstanding liability following sale of WW Street, Suburb W	$42,853
11	Husband’s personal tax 2015	$2,263
Wife’s personal tax 2015	$3,517
12	JJ Pty Ltd tax 2015	$6,541
13	CFT tax on share sales made in 2016	$22,049
TOTAL	$2,232,903
NET BALANCE	$4,836,553

SUPERANNUATION

1 Interest of parties in Mr & Ms Cantwell Superannuation Fund including 2016 tax refund $512,257

Necessary approach to consider

1. Stanford (supra) requires a consideration of whether there ought to be an alteration on the basis and equity of the legal and equitable interests of the parties.

2. The High Court in Stanford (supra) sought to define its likely application to cases in the following manner:-

   [42]In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of the choice made by one or both of the parties, the husband and the wife are no longer living in a marital relationship.  It would be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of the property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that the existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the Court make a property settlement order. What order, if any, should then be made is determined by applying section 79(4).

3. The parties consent to orders being made pursuant to section 79 of the Act. In the circumstances of this case and taking into account that the parties made a mutual commitment during the course of a long marriage, I am satisfied that it is just and equitable to embark upon a consideration and adjustment of the property interests of each of the parties.

4. Accordingly, I set out the interests of the parties or either of them in the property as follows:-

PROPERTY INTERESTS OF HUSBAND

Cantwell 50 per cent interest in Suburb B S	$672,000
Cantwell 50 per cent interest in 1 PP Street, Suburb B	$595,000
Husband’s additional interest in BS	$14,128
Cantwell 33.3 per cent interest in O Street, Suburb C	$560,000
Husband’s interest in Suburb C Syndicate #2 (“CS2”)	$80,655
F Street, Suburb G	$380,000
P Street, Suburb KK	$370,000
50 per cent proceeds of sale of Z Street, Suburb W	$12,205
Cantwell 50 per cent interest Y Street, Suburb W	$145,000
Proceeds of sale of X Street, Suburb W	$10,839
Funds send to Country T for R business	$630,000
Husband’s interest in MMST  (properties held with Mr UU at BB Town and Suburb TT, Queensland)	$52,491
Husband’s interest in OO Pty Ltd	$58,497
Husband’s shares or proceeds of shares in CFT	$547,288
Proceeds of sale of shares retained by husband (personal)	$41,336
Part property settlement to husband from sale of 2 PP Street, Suburb G properties	$360,932
Husband’s legal fees	$190,669
Cantwell interest in II Trust	$18,590
Husband’s furniture and effects	$12,660
Husband’s watches	$9,200
Cash in safe at separation (husband)	$5,000
Balance of dividends received by husband (CFT) from Suburb B entities	$70,000
TOTAL	$4,836,490,

LIABILITIES OF HUSBAND

50 per cent mortgage on 1 PP Street, Suburb B	$370,000
33.3 per cent mortgage on O Street, Suburb C	$263,667
Mortgage F Street, Suburb G	$250,723
Mortgage P Street, Suburb KK	$245,236
Westpac liability Z Street, Suburb W	$70,866
50 per cent mortgage Y Street, Suburb W	$159,080
Liability re borrowed funds to effect settlement of X Street, Suburb W	$61,500
Estimated deficiency on sale of WW Street, Suburb W	$42,853
Husband’s personal tax	$2,263
JJ tax 2015	$6,541
CFT tax on share sales 2016	$22,049
TOTAL	$1,494,778
NET BALANCE	$3,341,712

PROPERTY INTERESTS OF WIFE

Cantwell 35 per cent interest in Suburb C S	$564,000
Husband’s additional interest	$54,850
Credit loan account of parties in Suburb CC Trust	$76,811
I Street, Suburb G	$340,000
J Street, Suburb G (L)	$470,000
Cantwell interest in D Street, E Town	$190,000
Wife’s savings at separation less $60,481	$72,119
Part property settlement from sale of 2 PP Street, Suburb G	$360,932
Furniture and effects in possession of wife	$5,798
Wife’s jewellery	$7,975
Cash in safe at separation	$5,000
Speed boat and trailer	$25,000
Wife’s legal fees paid	$60,481
TOTAL	$2,232,966

LIABILITIES OF WIFE

Mortgage I Street, Suburb G	$314,352
Mortgage J Street, Suburb G	$306,392
Mortgage D Street, E Town	$113,810
Wife’s personal tax 2015	$3,571
TOTAL	$738,125
NET BALANCE	$1,494,841

1. The wife is to retain net assets in the sum of $1,494,841.

2. The husband is to retain net assets in the sum of $3,341,712

3. Accordingly, in respect of the wife’s entitlement to 50 per cent of the property of the parties in the total sum of $2,418,276, she has retained $1,494,841.  She is to receive a settlement sum from the husband in the sum of $923,435.

4. Given the amount involved it is reasonable that the husband pay the settlement sum in 120 days with provision in case of default.

5. I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and seven (207) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 3 March 2017.

Associate:

Date:  3 March 2017