Carver & Munshi - [2022] FedCFamC2F 607

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Carver & Munshi [2022] FedCFamC2F 607

File number(s): MLC 3275 of 2020

Judgment of: JUDGE DAVIS

Date of judgment: 13 May 2022

Catchwords: FAMILY LAW – final property – negative property pool – no slit of superannuation – single expert business valuation considered – single expert business valuation accepted - caveat withdrawal ordered – no orders made altering property interests.

Legislation: Family Law Act 1975 (Cth), ss. 4(1), 72(1), s 75(2), s 79 and 106A

Cases cited:
Antmann M and Antmann M (1980) FLC 90-908

Biltoft & Biltoft (1995) FLC 92-614

Keskin & Keskin and Anor (2019) FLC 93-932

AJO & GRO (2005) FLC 93-218

Stanford v Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 250

Date of last submission/s: 21 January 2022

Date of hearing: 30 September 2021, 1-3, 5 and 19 October 2021, as well as 19 November 2021

Place: Melbourne

Counsel for the Applicant: Mr Hall

Counsel for the Respondents: Ms Wheeler

Counsel for the Respondents: Mr Weil
ORDERS

MLC 3275 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CARVER

Applicant

AND:
MS MUNSHI
Respondent

ORDER MADE BY:

JUDGE DAVIS

DATE OF ORDER:

13 MAY 2022

THE COURT ORDERS THAT:
1.All previous property orders be and are hereby discharged and, for the avoidance of doubt, this includes the order for the sale of the B Street, Suburb C property that was made on 9 September 2020 (and subsequently varied on 5 November 2020).
2.All extant applications for alteration of property interests be otherwise dismissed.

Caveat withdrawal
3.Within 14 days of the date of these orders the Wife do all such acts and things to withdraw at her sole expense any caveat in her name or filed on her behalf secured over any property in the husband’s name, including but not limited to:
(a)the caveat dated 17 November 2021 filed over the property situate at D Street, Suburb E; and
(b)the caveat dated 17 November 2021 filed over the property situate at B Street, Suburb C.

Business
4.The Husband retain all interest in the business of Company F including all trading names (“Company G”) (Business) operated by the above entity including but not limited to all stock, equipment, bank accounts and good will associated with the business.
5.Within 48 hours of the making of these orders the wife provide to the husband’s solicitors the login details including passwords to the business Instagram account and any other social media accounts which are linked with the Business and the husband is to have sole control of these accounts to the exclusion of the wife going forward.
6.The Husband be liable for and indemnify the Wife and keep her indemnified, against any liability incurred:
(a)in the Husband’s name; and
(b)in the name of the Husband and/or or in the name of F Pty Ltd, Company G or any other business which they were involved in operating (relevant business); and/or
(c)in the name of the Wife in connection with any relevant business or other business dealings of the husband,

including but not limited to all claims, demands, proceedings and judgements and the Husband make all payments, including but not limited to all costs, repayments, interest, taxes or other liabilities, as and when they fall due.

Assurances
7.The Husband and Wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
8.In the event that the Wife refuses or neglects to execute a deed and/or instrument in compliance with these orders, the solicitors for the Husband are hereby appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) (Family Law Act) to execute all deeds and/or instruments in the name of the Wife and do all acts and things to give viability and operation to the deeds and/or instruments, and in the event of default, the defaulting party pay the complying party’s legal costs of and incidental to such request and production of the documents to the solicitors, or application to the Court.
9.In the event that the Husband refuses or neglects to execute a deed and/or instrument in compliance with these orders, the solicitors for the Wife are hereby appointed pursuant to Section 106A of the Family Law Act to execute all deeds and/or instruments in the name of the Husband and do all acts and things to give viability and operation to the deeds and/or instruments, and in the event of default, the defaulting party pay the complying party’s legal costs of and incidental to such request and production of the documents to the solicitors, or application to the Court.

Finalisation
10.Unless otherwise specified in these orders and except for the purpose of enforcing the payment of any moneys under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party at the date of these orders save as provided for in these orders.
(b)Each party retain their respective superannuation to the exclusion of the other.
(c)Each party retain their possession and interest in their respective motor vehicles.
(d)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears.
(e)Any money standing to credit any joint accounts of the parties is to be retained by the Husband.
(f)All insurance policies are to become the sole property of the owner named therein.
(g)Each party be solely liable for and indemnify the other against any liability in their sole name including but not limited to any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(h)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

AND THE COURT NOTES THAT:
A.For the avoidance of doubt, there be no alteration of the parties interests in superannuation accounts in their respective names.
B.For the avoidance of doubt, any obligation of the Wife to reimburse the Husband for expert reports obtained and paid by him in the first instance during the course of these proceedings has been satisfied by the terms of these orders. Each party is liable for one half of the cost of any outstanding report fees as at the date of these orders.
C.Pursuant to s 81 of the Family Law Act these orders are intended to finally determine the financial relationship between the parties and avoid the need for further proceedings between them.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Carver & Munshi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DAVIS
OVERVIEW OF PROCEEDING

This proceeding was commenced by Initiating Application filed 30 March 2020 by Mr Carver (Husband). The Husband amended that application on 16 July 2020 and then again on 7 July 2021 (Application).
By the Application, the Husband sought parenting and property orders.
By her Response, which was ultimately amended on 12 July 2021 (Amended Response), Ms Munshi (Wife) likewise sought parenting and property orders.
The Husband’s parents had intervened in the proceeding in respect of a loan of $400,000 which they say that they made to the parties. That aspect of the dispute settled and consent orders were made with respect to it on 29 September 2021. The thrust of those orders was that the Husband was directed to repay that amount to his parents on the terms of the orders.
The parenting dispute, which concerned the parties’ one child, also settled and consent orders were made with respect to it on 30 September 2021. The child, X (Child), was born in 2018. He lives with the Wife and spends time with the Husband pursuant to those orders.
The remaining controversy arises from the parties’ respective applications for final property orders. That dispute came before me for final hearing on 29 September 2021. It was heard in various tranches, in September, October and November 2021. On each occasion, the trial was heard via Microsoft Teams link.
Mr Hall of counsel appeared for the Husband throughout. Initially, Mr Weil of counsel appeared for the Wife. However, from 19 October 2021, Ms Wheeler of counsel appeared on her behalf.
A significant focus of the dispute at trial was the value of F Pty Ltd (F Pty Ltd). That entity owns a health practice which trades as Company G from premises at H Street, Suburb J. Mr Carver is its sole director and shareholder.
In turn, a central aspect of the trial became the reliability of an expert valuation of Company G made by Mr K, a jointly appointed valuer. One reason for the segmentation of the trial was that the Wife contended that Mr K’s valuation was inadequate and that he should revise it. To this end, the Wife submitted that the Husband had provided Mr K with insufficient documentation to enable him to prepare an accurate valuation.
The parties were also in dispute about other issues relating to whether and, if so, to what extent their property interests ought be altered. I deal with those issues below.
Before doing so, I set out some of the background facts giving rise to the dispute.
BACKROUND
The Husband was born in 1982. He is a qualified medical professional and has worked as a medical professional since 2010.
The Wife was born in Country L in in 1976. She left Country L as a refugee and migrated to Australia when she was approximately 2 years old. The Wife currently works as professional on temporary contract.
The parties met and began dating in or about 2012.
In or about 2014, they began living together at M Street, Suburb N (M Street, Suburb N), a property which is registered in the name of the Wife’s parents.
In late 2014, a property at B Street, Suburb C – which became the matrimonial Home (B Street, Suburb C) – was purchased in the name of the Husband. The property was purchased for $790,000 with a 5 per cent deposit of $39,500 paid by the Husband and borrowings for the balance. The Wife gives affidavit evidence to the effect that her father gifted the parties $20,000 to account for her share of the deposit.
The Wife deposes that the parties agreed that B Street, Suburb C would be registered solely in the name of the Husband because this permitted them to avoid mortgage insurance.
Settlement of the purchase of B Street, Suburb C took place on 16 January 2015 and the parties moved in shortly thereafter.
The Wife gave affidavit evidence to the effect that her family, many of whom are skilled tradespeople, contributed extensively to the renovation of B Street, Suburb C. Her affidavit evidence is that they were not remunerated other than by way of some small gifts. The Husband, on the other hand, says that the wife’s family preferred to be paid in kind and were so paid to the value of approximately $50,000.
In November 2017, a second property was acquired at D Street, Suburb E (D Street, Suburb E) and put in the Husband’s name. The property was acquired entirely with loan proceeds.
The Wife deposes that she signed the contract for the purchase of the D Street, Suburb E property but nominated the Husband as purchaser at his request. She later deposes that the Husband refused to allow D Street, Suburb E to be registered in her name. The Husband deposes that the Wife requested this on the basis that she was “adamant that she not be on any paperwork”. He says that he understood this to be due to the Wife’s “issues managing money linked with her bipolar disorder”.
D Street, Suburb E is currently used as an investment property, from which the Husband receives relatively modest rental income. Whether, ultimately, that property produces an annual profit or loss is controversial. The unchallenged evidence of the value of D Street, Suburb E is $1,100,000.
In 2017 or 2018 the parties discussed establishing a business together in the form of a health practice. Ultimately, they collaborated on the establishment of Company G. In or about December 2018, F Pty Ltd entered into a lease agreement for Company G to be located at the premises at H Street, Suburb J.
The parties married in 2018.
The Husband says that the parties separated in October 2019. According to the Wife, separation occurred on 2 April 2020.
The parties lived separated under one roof at the B Street, Suburb C property until the Wife left in or about April 2020.
Company G commenced operation in about May 2020.
The Wife’s role at F Pty Ltd included project managing the fit out of the business premises known as Company G. There was significant controversy at trial about whether the Wife’s vision for that business and business plans which she had produced, were realistic. Amongst other things, there was significant controversy about the appropriateness of her plans for and management of that fit out. That controversy extended to her allocation and management of its budget.
On 9 September 2020, amongst other things, Judge Carter ordered that:
15.The parties forthwith do all such acts and things necessary as may be necessary to cause the property situate at [B Street, Suburb C], in the State of Victoria, more particularly described in Certificate of Title Volume […] Folio […] (“the [B Street, Suburb C] property”) to be placed on the market for sale, on such terms and conditions as are agreed.
16.In the event the parties are unable to agree as to a selling agent within 14 days of these orders, the parties do all acts and things as may be necessary to request the President of the Real Estate Institute of Victoria appoint a selling agent.
17.Pending the sale the Husband shall be solely liable for all outgoings of the [B Street, Suburb C] property, including but not limited to, all instalments pursuant to the mortgage, rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind and ensure that all payments are made as and when they fall due.
18.      Upon the sale, the proceeds be applied as follows:-
(a)       firstly to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgages secured by Westpac on the [B Street, Suburb C] property being:-
(i)Westpac Equity Access Loan BSB […76] account number […57]; and
(ii)       Westpac Rocket Repay account #[…95];
(c)thirdly, the balance, if any, to be held on trust by the Wife’s solicitors in an interest bearing account in the parties’ joint names, until further order or agreement in writing between the parties.
19.In relation to the property situate at [D Street, Suburb E] in the State of Victoria (“the [D Street, Suburb E] property”):-
(a)the Husband shall do all acts and things and sign all such documents as may be necessary to ensure that the rental income received is immediately applied to the mortgage encumbering the [D Street, Suburb E] property; and
(b)the Husband is solely liable for all outgoings of the [D Street, Suburb E] property including all instalments pursuant to the mortgage, rates and taxes, insurance, bills and like apportionable outgoings of whatsoever nature and kind and ensure that all payments are made as and when they fall due.
20.      Both parties be and are hereby restrained from:-
(a)dealing with, disposing of or encumbering or further encumbering any assets in his or her name, in joint names or in his or her control save:-
(i)        in the course of day to day living;
(ii)       in the ordinary course of business; or
(iii)with the prior written consent of the other party or order of this Court; and
(b)paying funds to their parents save with the prior written consent of the other party or order of this Court.
ORDERS ULTIMATELY SOUGHT BY THE PARTIES
The final property orders sought by the Husband in his Application were revised in his closing submissions filed 17 December 2021.
Ultimately, he sought order in the following terms:
FINAL PROPERTY ORDERS PROPOSED BY THE HUSBAND
1.        That all previous property orders be and are hereby discharged.
Caveat Withdrawal
2That within 14 days of the date of these orders the wife do all such acts and things to withdraw at her sole expense any caveat in her name or filed on her behalf secured over any property in the husband’s name, including but not limited to:
(a)The caveat dated 17 November 2021 filed over the property situate at [D Street, Suburb E]; and
(b)The caveat dated 17 November 2021 filed over the property situate at [B Street, Suburb C].
Business
3.That the Husband retain all interest in the business [F Pty Ltd] including all trading names (“[Company G]”) (‘the business’) operated by the above entity including but not limited to all stock, equipment, bank accounts and good will associated with the business.
4.That within 48 hours of the making of these orders the wife provide to the husband’s solicitors the log in details including passwords to the business Instagram account and any other social media accounts which are linked with the business and the husband to have sole control of these accounts to the exclusion of the wife going forward.
5.That the Husband be liable for and indemnify the Wife and keep her indemnified, against any liability incurred in the Husband and/or the Wife’s name or in any business’ name to which the Husband and/or the Wife was an officeholder at any time and for any other business dealings of the husband, including but not limited to all claims, demands, proceedings and judgements and the Husband make all payments, including but not limited to all costs, repayments, interest, taxes or other liabilities, as and when they fall due.
Superannuation Equalisation
6.That paragraphs 6 to 9 inclusive of these Orders are binding on [Super Fund O] ("the Trustee") in its capacity as Trustee of [Super Fund O] ("the Superannuation Fund").
7.Pursuant to Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the wife’s, [Ms Munshi], interest in the superannuation fund, the trustee shall pay to the husband, [Mr Carver], the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $45,242.60 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
8.        That Order 7 has the effect from the operative time.
9.The operative time for the purpose of these Orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of the Superannuation Fund.
Retention of assets and liabilities
10.The husband retain absolutely unto himself free from all claim by the wife:
a.The property situate at [B Street, Suburb C] VIC (“the [B Street, Suburb C] Property”;
b.The property situate at [D Street, Suburb E], VIC (‘the [D Street, Suburb E] property’);
c.His motor vehicle, a [Motor Vehicle 1];
d.His superannuation;
e.Funds standing to credit in all bank accounts in his name or in the name of the business;
f.All chattels currently in his possession.
11.The wife retain absolutely unto herself free from all claim by the husband:
a.Any interest she may have in the property situate at [M Street, Suburb N], (‘The [M Street, Suburb N] property’);
b.Her motor vehicle, a [Motor Vehicle 2];
c.Funds standing to credit in all bank accounts her name;
d.Her superannuation, save for the split as otherwise provided for in these orders;
e.All chattels currently in her possession.
12.Each party be solely liable for and indemnify the other against any liability in their sole name including but not limited to any liability encumbering any item of property to which that party is entitled pursuant to these orders, including but not limited to:
a.        All mortgages;
b.All personal loans, including the loan from the husband’s parents [Ms P] and [Mr Q];
c.        All business loans; and
d.        All credit cards.
Assurances
13.The husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made.
14.In the event that either party refuses or neglects to execute a deed and/or instrument in compliance with these orders, the Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute all deeds and/or instruments in the name of the Husband and/or Wife and do all acts and things to give viability and operation to the deeds and/or instruments, and in the event of default, the defaulting party pay the complying party’s legal costs of and incidental to such request and production of the documents to the Registrar, or application to the Court.
Finalisation
15.Unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any moneys under these or any subsequent Orders:-
a.Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party at the date of these Orders save as provided for in these Orders;
b.Each party retain their respective superannuation to the exclusion of the other;
c.Each party retain their possession and interest in their respective motor vehicles;
d.Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
e.Any money standing to credit any joint accounts of the parties is to be retained by the Husband;
f.All insurance policies are to become the sole property of the owner named therein
g.Each party be solely liable for and indemnify the other against any liability in their sole name including but not limited to any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and
h.Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
NOTATIONS
A.For the avoidance of doubt, any obligation of the wife to reimburse the husband for expert reports obtained and paid by him in the first instance during the course of these proceedings has been satisfied by the terms of these orders. Each party is liable for one half of the cost of any outstanding report fees as at 15 December 2021.
B.That pursuant to s81 of the Family Law Act 1975 these orders are intended to finally determine the financial relationship between the parties and avoid the need for further proceedings between them.

By her Amended Response, and by her final submissions, the Wife sought the following property orders:
…
5.The husband pay spouse maintenance to the wife in a quantum deemed just and equitable by this Honourable Court.
…
Property
23. That the Registrar of this Honourable Court be forthwith appointed to execute all deeds and documents as may be necessary to place the following properties on the market for sale:
(a)       [B Street, Suburb C] in the State of Victoria …; and
(b)       [D Street, Suburb E.
(“sale of properties”)
24.That within 14 days of these … orders, the parties do all such acts and things as may be necessary to request the President of the Real Estate Institute of Victoria appoint a selling agent.
25.Pending the sale of the properties, the Husband shall be solely liable for all outgoings of the properties, including but not limited to, all instalments pursuant to the mortgage, rates, and taxes, insurance bills and apportionable outgoings of whatsoever nature and kind and ensure that all payments are made as they fall due.
26.      Upon the sale of the properties, the proceeds be applied as follows:
(a)       Firstly to pay all costs, commissions and expenses of the sale;
(b)       Secondly to discharge the mortgages secured by the properties;
(c)       Thirdly, the sum of $450,000 to the Wife;
(d)       The balance to the Husband.
27.The Husband otherwise indemnify and continue to indemnify the Wife with respects to the liabilities of [F] Pty Ltd.
28.Unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any monies under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party at the dates of these Orders save as provided for in these Orders;
(b)Each party retain their respective superannuation to the exclusion of the other;
(c)Each party retain their possessions and interest in their respective motor vehicle;
(d)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(e)Any money standing to credit any joint accounts of the parties is to be retained by the Wife;
(f)All insurance policies are to become the sole property of the owner therein;
(g)Each party be solely liable for an[d] indemnify the other against any liability in their sole name including but not limited to any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(h)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
29.      That the Husband pay the Wife’s costs.
EVIDENCE
Evidence relied upon by Mr Carver
The core documents relied upon and read into evidence by Mr Carver were as follows:
(a)affidavit of Mr Carver affirmed on 15 October 2021
(b)trial affidavit of Mr Carver affirmed on 7 July 2021;
(c)financial Statement filed by Mr Carver on 7 July 2021;
(d)reply affidavit of Mr Carver affirmed 15 September (together with pages that had been missing from it and were emailed to the Court on 30 September 2021);
(e)affidavit of Mr R (property valuer) affirmed on 30 June 2021;
(f)affidavit of Mr S (B Street, Suburb C building surveyor) sworn/affirmed on 1 September 2021;
(g)affidavit of Ms T (architect) affirmed 12 June 2020;
(h)affidavit of Mr U (builder) affirmed 24 September 2021;
(i)affidavit of Ms P affirmed 10 September 2021;
(j)affidavit of Mr Q affirmed/sworn on 11 September 2021; and
(k)Subpoenaed material from:
(i)Dr W dated 16 July 2020;
(ii)Dr Y;
(iii)Company Z; and
(iv)Company AB.
Mr Hall also tendered various other documents at trial. I do not need to list those documents here. However, I have had regard to the whole of the evidence, as well as the whole of the parties’ submissions.
Mr K, the independent single expert business valuer, produced a number of valuation reports over time. Ultimately, Mr Carver relied on the latest valuation report. Prior to that, he had relied on such of the reports as were current as at the various tranches of the trial.
I identify each of the valuation below in the section on valuation evidence.
Ultimately, Mr Carver relied on the Final valuation report. Prior to that, he had relied on such of the reports as were current as at the various tranches of the trial.
Mr Carver’s oral evidence
Evidence in chief
Mr Carver adopted his affidavit evidence.
He also gave oral evidence in chief, including to the effect set out below.
With respect to a F Pty Ltd business plan that the Wife provided to Mr K for the purposes of valuation, Mr Carver gave evidence including that:
(a)The revenue projections:
…were not in any way close to being realistic. They were … numbers provided, I guess, in the business report to the bank in order, I suppose, to try and gain finance. I would classify them as wildly unrealistic, you know, in the order of, you know, apparently $1.8 million in revenue within three years, which is, you know, I would classify as just being just absolutely unattainable and certainly not in any way realistic.
(b)To achieve the revenue projections required the clinic to attain certain accreditations which would:
… better attract health professionals due to the multiple ways in which accreditation is required to increase the quality of your clinic in general through HR practices, complaints, IT services.
(c)Mr Carver added that the accreditation process had been delayed until the ongoing COVID-19 lockdown finishes. (At the time at which Mr Carver gave his evidence, on 30 September 2021, Melbourne lockdown 6 was ongoing.)
(d)Projected revenue was overstated, amongst other things, because ongoing COVID-19 restrictions made it difficult to licence medical professionals to utilise the consultation rooms available at Company G. Many medical professionals were working remotely in the lockdown period.
(e)Projected costs, including the following, were understated:
(i)cleaning fees, given that COVID-19 clearing procedures have inflation of cleaning fees;
(ii)accounting costs, with Mr Carver giving evidence than estimated $481 per month is actually “approximately $10,000 to 12,000 a year;
(iii)computer and software costs, with Mr Carver’s evidence being that an estimate of $466.00 per month actually cost “approximately $1,650 per month”;
(iv)insurance costs, which the plan quotes at $500 per month, and Mr Carver’s evidence stating that they were in fact “approximately $12,000 to $13,000 a year”;
(v)business legal fees, estimated as $250 a month were less than the “initial set up fees for all that was, probably about $6,000…”;
(vi)rent and rates, which were quoted as $8,600 per month, with Mr Carver’s evidence being that the “current rental is $9,000 per month with rates being $1,600 a quarter; and
(vii)debt reduction, as to which Mr Carver said:
Interest and debt repayments were posited to be $13,500 a month.
…
So approximately – so in terms of debt repayments currently – thanks to some reduced interest rates it’s currently sitting at about $6000 a month. So that was actually less.
Cross examination
Mr Weil, who at that stage appeared for the Ms Munshi, cross examined Mr Carver.
Mr Carver gave evidence, including as follows, when cross examined about business plan:
(a)Mr Carver accepted that he had seen the business plan before meeting with the bank for the purposes of obtaining a business loan for F Pty Ltd for the purpose of establishing the Company G Business.
(b)When pressed on whether he had expressed concerns about underquoted figures in the business plan at his meeting with the bank, Mr Carver conceded that, “No, I did not express my concerns at the time during the meeting. No.”.
(c)Mr Carver gave inconsistent evidence on whether he discussed any changes to the business plan with his Wife:
(i)Initially, he gave evidence that he did not discuss any changes, giving reasons that he was assured “that as she was a professional she was the one with the expertise”, and that he “… was not in a position to attempt to convince her of any changes to the business plan”.
(ii)Subsequently, he gave evidence that he “attempted to” raise concerns “just a little bit after seeing the plan itself”.
(d)Mr Carver said that, at the clinic where he was previously employed, his “pure billings” annually were approximately $450,000. He said that this was distinct from his taxable income, which he put at the mid $250,000s because the clinic would take approximately “40 percent” of the pure billings.
(e)Mr Carver also said that he expected that his initial F Pty Ltd earnings would “decrease significantly in the first few years”, whilst he built up the practice and that he accepted this result because he wanted to practice in his own way.
(f)Mr Carver said that he did not expect his income to return to the level of his previous employment for “approximately four to five years.”
(g)As to the choices made in the plan, Mr Carver said that:
In terms of the type of clinic, it was – the choices she made were – increased the cost of all the fit-outs from the expected cost that one would expect from a normal clinic. But because she wanted some sort of bespoke or – I’m not sure, as high-class – as you will see in the business plan, she mentions things like the 35 lobby of a high-end hotel, those sort of choices about everything from beginning of the design through to construction – increased the cost significantly.
Mr Weil put to Mr Carver that, when he commenced living with Ms Munshi in M Street, Suburb N in 2014, he knew that the property was owned by her parents. Mr Carver responded:
I was unaware that it was an apartment owned by her parents, until I was informed of that fact by my parents, in about November or December 2019, and it was at that stage that it was – her father had admitted to my parents, during a phone call, that the apartment in M Street, Suburb N was not actually owned by Ms Munshi. Until that time, she had maintained to everyone, not just me – to everyone that knew her – that that apartment was owned by her. That was – that was her ongoing statements.
Mr Carver conceded that he paid no rent at the M Street, Suburb N property but said that he was contributing by paying the parties’ living costs. Mr Carver also accepted that Ms Munshi was employed on temporary contracts during this period. In cross examination, Mr Carver gave evidence that, at the time at which he was living in M Street, Suburb N, he did not know that that Ms Munshi was paying rent for that property. (Ms Munshi’s father gave evidence that Ms Munshi sometimes, but not always, paid such rent.)
As to the ownership of M Street, Suburb N property, Mr Carver said:
… [Ms Munshi] would often tell a story of when she bought the apartment, how much she paid, when she first moved in, what mortgage repayments she was paying. She made it very clear to everyone that she – that it was her apartment that she had purchased – was paying the mortgage on. There was no mention that her parents were involved in any way, and it was only at the end of 2019 that I learned any different.
Mr Carver gave evidence that in the period before he discovered that Ms Munshi did not own the M Street, Suburb N property, he thought that she planned to use it to service the business’s debt should that become necessary.
Mr Carver gave evidence the Ms Munshi ceased work approximately two months before their son, X, was born in 2018.
Mr Carver accepted that he lost his employment in or about August 2019. His evidence was that this was by “mutual agreement” after the relationship with his employer had broken down. However, when it was put to him that he had consulted with a patient who had died, he accepted that this might have contributed to the termination of his employment.
Mr Carver accepted that Ms Munshi’s family performed substantial work improving B Street, Suburb C. He accepted that such works saved the parties money in the short term. However, he said that “in the long term … [i]t’s now costing me quite a lot of money”. He also gave evidence that the building works were not done under council permit and require remediation works to enable the property be sold.[1]
[1] Mr Carver relies on the affidavit of Mr S of 1 September 2021 to support this contention. Mr S is a building surveyor who gave affidavit evidence, amongst other things, regarding defects in work on B Street, Suburb C which Mr Carver says was performed by Ms Munshi’s family.
Mr Carver gave evidence regarding Judge Carter’s 9 September 2020 order which directed him to sell B Street, Suburb C and how the sale proceeds would be applied:
So at the moment my primary focus is paying down debt. So at the moment I would hopefully after the sale of B Street, Suburb C, would be able to use that to reduce my debt burden.
…
Well, I suppose after the rectification works, the intention would be at some stage to try and pay down my debt.
[Emphasis added.]
This evidence should be viewed set against the backdrop that the final orders which Mr Carver ultimately sought included the vacation of Judge Carter’s orders of 9 September 2020 as well as an order that he retain B Street, Suburb C free from all claims by Ms Munshi.
Mr Carver gave inconsistent evidence about whether Ms Munshi contributed her salary into the offset account for the B Street, Suburb C property:
(a)Mr Carver initially gave evidence that it was “completely incorrect” that Ms Munshi had deposited her salary into the B Street, Suburb C offset account.
(b)Mr Carver then accepted that Ms Munshi did put money in the offset account albeit “[s]poradically and not in very large amounts.”
(c)When pressed about whether Ms Munshi had deposited approximately $358,786.00 into the Westpac offset account, Mr Carver admitted that he had not checked and that as a result he did not know.
Mr Weil cross examined Mr Carver regarding a series of asset and liability figures contained in his outline of case document filed on 27 September 2021. Mr Carver agreed that his total equity in D Street, Suburb E and B Street, Suburb C properties was $659,079.00. He gave evidence that even if the ANZ were to call in its business loan to F Pty Ltd of approximately $797,932.25, it had no right to sell those properties those properties. However, later he said that:
I’ve been in contact with …[ANZ, the business loan provider,] on a regular basis and they do make regular inquiries as to my current financial situation and I have informed them that, at this stage, I’m unable to give them any further details due to current proceedings so I’m not able to answer whether or not they would – if I was to have any influx of that sort of money would ask that I repay any of that loan immediately.
Mr Weil cross examined Mr Carver on various items in Part G of his financial statement dated 7 July 2021. That section relates to personal expenditure. He accepted that several amounts entered in Part G were actually business expenses, which includes payments for the ANZ business loan, equipment hire and the Company G rental payment.
In answer to questions by Mr Weil about a $20,000 drawdown and debt restructuring of the two respective Westpac loans (which are referred to in paragraph 19 of the orders of Judge Carter made 9 September 2020, extracted above) Mr Carver gave evidence that:
So due to the financial stresses with the opening of the business and being almost completely bankrupt, I asked both – I asked Westpac to defer both of those loans for a period of over 12 months and they – they stated that was fine but, obviously, at the end of that period, the deferred payments would be added to the mortgage.
Mr Weil questioned Mr Carver about whether the business F Pty Ltd was “a joint venture” that the parties were doing together, to which Mr Carver responded:
Initially, that was what I had hoped but it quickly became a – a project run by Ms Munshi to the exclusion of everyone else.
Mr Carver continued:
I was informed at the end of 2019 by everyone involved in the project, including staff, tradesmen, architect, that they would no longer work with Ms Munshi and if she was involved in any way, they would stop work and proceed – proceed with legal proceedings against me.
As I later observe, Mr Carver’s evidence in this regard is supported by the evidence of the builder, Mr U, affirmed 24 September 2021.
In cross examination, Mr Carver gave further evidence about his concerns with Ms Munshi’s project management of the fit-out of Company G:
I placed all my trust in Ms Munshi’s ability to manage the project. I had no reason for the majority of the project to doubt that it wasn’t going well.
…
Well, as seen in the affidavit from the – in recollection from the architect, Ms Munshi’s plans went – quickly went from a normal clinic with a normal fit-out to using the very expensive materials, custom joinery, everything needed to be bespoke. The costs of the fit-out ballooned significantly during the time that she was running the – the – the project.
Mr Weil put to Mr Carver that it was unrealistic that he had been an “idle spectator” during Ms Munshi’s alleged mismanagement of the Company G project. In response, Mr Carver gave evidence that:
(a)Mr Carver conceded he had “discussions” where he was told what was happening but that he had no input;
(b)Mr Carver said that “Ms Munshi was in no mood to accept any input or criticism, especially as the project went on.”
Mr Carver accepted in cross examination that $80,000 of the $400,000 which is parents had lent him was used by the parties on personal expenses which included paying down credit cards.
Mr Carver also said that although the vast majority of expenses in their business account records were in fact business and not living expenses, certain costs, such as meals during work, were included in those records.
When Mr Weil questioned him on how he arrived at the figure of $1,600,000 for the cost of setting up the business, Mr Carver responded:
Well, the fit-out alone was close to 1.1. Then there was close to $100,000 worth of fees to the architect. There was also approximately –well, close to six to eight months of ongoing wages. There was $9000 a month for over a year for rent of the property. There was – which is obviously $120,000. There was significant amounts of money spent on IT fit-out, on servers, on equipment, which is all very expensive, fridges, you know, $10,000 worth of refrigeration equipment. It basically all added up to a significant amount.
Mr Carver gave further evidence in cross examination that approximately $1,300,000 was raised through loans. His evidence was that such loans were made up of borrowings from the ANZ for $850,000, a personal loan for $50,000, the loan of $400,000 from his parents and the balance was effectively financed by his creditors agreeing to defer his payment of their debts until he had sufficient income to pay them.
Re-examination
In re-examination, Mr Carver gave evidence including to the following effect:
(a)His Amended Application filed 7 July 2021 sought to discharge all previous property orders, including orders which require the immediate sale of B Street, Suburb C. He attributed this to complications involved with the sale. As I have observed above, Mr Carver gave evidence and led affidavit evidence from to the effect that remediation work on the property was required. Mr Carver contended that he did not have the money to have such works carried out at the moment.
(b)He confirmed that the D Street, Suburb E had lost $17,000.00 in 2019 and similar amounts each year before that.
(c)He said that, as well as the impact of the COVID-19 pandemic, building patient demand is a slow process because “[p]atients generally take a very long time to start seeing other health professionals or new health professionals”.
(d)Mr Carver gave evidence that notwithstanding that Part G of his financial statement, which concerned personal expenditure, in fact recorded a mixture of personal and business expenses, his personal tax return for the year end 30 June 2021 did not include business expenses.
Evidence of Mr Carver’s mother

Mr Carver’s mother, Ms P, adopted her affidavit sworn on 10 September 2021.
The thrust of that affidavit was that the purpose of the $400,000 loan made by Mr Carver’s parents was to relieve the immediate financial difficulties faced by F Pty Ltd. The affidavit also recounts the communications on 2 December 2019 between Mr Carver’s mother and father, on the one hand, and Mr Carver and Ms Munshi, on the other.
By her oral evidence, Ms P confirmed that this conversation concerned the parties’ financial problems, including why they were unable to make drawdowns from the bank needed to pay the builder. Although Ms Munshi disagrees with this in her affidavit of 24 September 2021, after observing her testimony, I accept the evidence of Ms P on this matter and generally.
In cross examination by Mr Weil, Ms P said that:
(a)The $400,000.00 loan was transferred to the parties’ offset account on 4 December 2019.
(b)Mr Carver sent a written acknowledgement to her regarding the $400,000. Amongst other things, that acknowledgement stated:
This loan amount will be repaid ASAP in 2020, including accumulated interest.
(c)Although the loan was supposed to be repaid by December 2020, Mr Carver informed his father and her that he was unable to pay it at that time because of a court order.
(d)She took at face value Mr Carver’s obligation to repay the $400,000, together with interest, on or before 13 October 2021. Ms P added that she did not “believe that … [Mr Carver was] not true to his word”. However, she would not engage in speculation about whether he would be able to pay.
Evidence of Mr U
By his affidavit affirmed 24 September 2021, the builder, Mr U, gave evidence including as follows:
3. From the commencement of the project until around November/December 2019 [Ms Munshi (' Ms Munshi')] was the primary contact through whom I would receive instructions and would liaise with in regards to the build.
4. I experienced [Ms Munshi's] behaviour to change dramatically from around October 2019. From this period onwards I experienced [Ms Munshi] to become aggressive, rude, and her mood appeared to me to be unstable. Her mood would often change quickly and dramatically.
5. Around October 2019 [Ms Munshi] began making allegations that the architect involved in the project, [Ms T ('Ms T')], and I had made a series of errors such as the incorrect classification of the clinic and the flooring. This was inaccurate, and I attempted to explain this to [Ms Munshi] but found her difficult to deal with.
6. [Ms Munshi] ceased paying invoices as required on behalf of [F Pty Ltd] from about October 2019.
7. On 8 November 2019 [Ms Munshi] sent me a series of harassing messages regarding works completed for the project. I was alarmed by this and so alerted the architect, [Ms T], of my concerns. I forwarded screenshots of these messages to [Ms T], and I understand they are annexed to an affidavit from her in these proceedings.
Evidence of [Ms T]
[Ms T] was the architect for the [Company G] fit out. By her affidavit affirmed on 12 June 2020, she gave evidence including as follows:
Mishandling of [Company G] project by [Ms Munshi]
14.On 2 August 2019 a Simple Works Contract was executed by [Company G], with [Ms Munshi] signing in her role as [Company G’s] representative. [Ms Munshi] was supposed to have secured sufficient funding for the project prior to signing.
15.Prior to the signing of the contract [Ms Munshi] gave me the distinct impression she had considerable wealth, as well as financial backing. I now view this to essentially be delusions of grandeur.
16.On 18 October 2019 I emailed [Ms Munshi] to confirm that her payment of the builder's Progress Payment 01 ($382,365.50) was due on 21 October 2019.
17.On 21 October 2019 [Ms Munshi] texted me to advise that she had been hit by a bus door, resulting in a head injury. During the period from 21 October 2019 to 28 October 2019 [Ms Munshi] persisted with claims that her head injury was so traumatic that she was unable to engage properly with the project team, including pay the outstanding payments. We were all of course concerned and sympathetic, and so continued with the project without payment on 'good faith'.
18.On 28 October 2019 we all received an email from the builder, [Mr U] of [Company AC] (‘[Mr U’]), that he was unable to continue to work due to lack of funds, and would have to suspend his role in the project.
…
22.On 5 November 2019, [Ms Munshi] emailed to request a site tour for her investors. The implication seemed to be that these investors would be the means via which the non-payment issue would be resolved, and so [Mr U] and I agreed. [Ms Munshi] had previously spoken of her 'investors' but had always been vague in regards to the details. These investors never attended, I never saw any documentation or correspondence from these investors, and I never met them.
23.On 8 November 2019 at 8:37am [Ms Munshi] issued a group email to advise parties involved in the [Company G] project that she was unable to email and take calls at this time due to health related issues. I was alarmed by this email, as was [Mr U] the builder. [Mr U] called me to express his anxiety relative to the lapsed payment, and what was becoming in both his and my view a series of concerning behaviours by [Ms Munshi].
24.On 8 November 2019 at 10.42am I texted [Mr Carver] to seek his participation in the project, however, he responded to advise that we should speak to [Ms Munshi] as she was the primary contact. I understand from subsequent conversations with [Mr Carver], that he brought this text to [Ms Munshi's] attention & she responded by assuring him that we could not be trusted as we had made some terrible mistakes, however she had it all in hand and did not require his involvement. It was my understanding that [Mr Carver] continued to be [X's] primary carer at that time.
…
28.On 22 November 2019 a mediation was held on site from 4pm in order to address the issues with the [Company G] project, with the primary issue being [Ms Munshi's] escalating behaviour. The meeting was attended by [Ms Munshi], [Mr Carver] and [Ms AD] ([F Pty Ltd]), [Mr U] & [Mr AE] ([Company AC]), myself and [Mr AF] ([AG] Architects) and [Mr U’s] neighbour [Mr AH] who had met [Ms Munshi] via the Real Estate Agent and had initially introduced her to [Mr U].
29.[Ms Munshi] had emailed everyone a proposed meeting agenda earlier in the day which was laced with accusations of non-compliance. Prior to the meeting, both [Company AC] and [AG Architects] had reviewed the compliance items with the Building Surveyor who had confirmed them to be irrelevant. Furthermore, the building surveyor noted that [Ms Munshi's] accusations of non-compliance effectively amounted to self-sabotage of the project.
30.[Ms Munshi] attempted to control the meeting by focusing on what she claimed to be compliance issues. However, [Mr U] raised the issue of [Ms Munshi's] dishonesty and her breach of contract relative to non-payment by tabling a letter of demand he had issued earlier in the day. This prompted the other attendees to express their frustration about [Ms Munshi's] behaviour.
31.[Mr Carver] calmly listened to everyone firstly, and after hearing all views expressed his sincerest apology, and his commitment to rectifying the situation, particularly the outstanding payments.
32.[Mr Carver's] response caused [Ms Munshi] to promptly 'blow up' and 'storm out'. [Mr Carver] reiterated his earlier statement following [Ms Munshi's] departure and confirmed his intention to become more involved the [Company G] project.
33.Following the removal of [Ms Munshi] from her role in the [Company G] project, I can confirm that the project has progressed smoothly and successfully. There were no compliance issues, all payments were rectified, and the business is now open and operational without issue.
Evidence relied upon by [Ms Munshi]
The core documents relied upon and read into evidence by Ms Munshi were as follows:
(a)affidavit of Ms Munshi sworn on 19 October 2021
(b)affidavit of Ms Munshi sworn on 13 July 2021;
(c)Financial Statement filed by Ms Munshi on 13 July 2021;
(d)affidavit of Ms Munshi sworn on 24 September 2021;
(e)affidavit of Dr Y sworn on 30 October 2021;
(f)affidavit of Dr Y sworn on 30 October 2021;
(g)affidavit of Ms AJ sworn on 19 July 2021;
(h)affidavit of Mr AK sworn on 8 July 2021;
(i)affidavit of Mr K sworn 24 September 2021;
(j)Subpoenaed material from:
(i)ANZ filed on 18 January;
(ii)AHPRA filed 25 June 2021; and
(iii)Westpac filed on 6 July 2021.
The Wife also tendered various other documents at trial. I do not need to list those documents here. However, again, I have had regard to the whole of the evidence as well as the whole of the parties’ submissions.
Ms Munshi’s oral evidence
Evidence in chief
Amongst other things, by her evidence chief, Ms Munshi:
(a)Confirmed that the contents of her affidavits were true and correct but for the affidavit affirmed 24 September 2021, which mis-described her two superannuation accounts. In this regard, she gave evidence that the total value of each fund was correct – if the names ascribed to them in that affidavit were switched.
(b)Identified a discrepancy in her financial statement. Ms Munshi listed her Centrelink benefit as $87.00 per week but that this was actually $264.00 each fortnight. In the liability section, Ms Munshi had listed her unpaid tax as $3571 whereas the correct figure was $2,800
(c)At the time of trial, she was employed on a temporary contract for four or five days a week paid at $810 per day.
Cross examination
Amongst other things, Mr Hall cross examined Ms Munshi about:
(a)the $400,000 loan from Mr Carver’s parents; and
(b)loans Ms Munshi listed as a liabilities in her financial statement. Ms Munshi characterises that liability as a loan from her father made in 2018.
In cross examination, Ms Munshi, gave evidence, in effect, including that:
(a)She accepted that Mr Carver had to repay the $400,000 to his parents. I extract below the relevant exchange between Mr Hall and Ms Munshi in this regard.
Now, in these proceedings, on – I think it was Thursday of last week, you signed a court order that requires [Mr Carver] to repay his parents the sum of $400,000 plus interest at a prescribed methodology of calculating interest, but he has to pay the whole of that money back to them?---Yes.
Yes. So you acknowledge that that amount is in fact owing by – well, on the document, he owes them that money, and he has to pay it back?---Yes.
(b)Mr Carver may or may not have known of the borrowings from her parents of $21,000 referred to in [52] of her affidavit of 13 July 2021 as “loan owing to my parents (post – separation)”. She said that Mr Carver may have known about this because she used some of the borrowings to pay for household item. However, she accepted that Mr Carver was not part of any conversation with her parents in connection with the loan.
(c)Her reference in that affidavit to a joint liability of $31,000 in the previous line item of that affidavit is a reference to the balance owing of the $52,000 borrowed from her father in 2018. However, despite the fact that she had referred to that liability as joint, Mr Carver was not part of any conversation with her father relating to that loan. She also said that the money went into her bank account. However, she then said it went into the parties, offset account.
Ms Munshi stated that she had no knowledge that Mr Carver’s parents had gifted the couple $50,000 after the entry into the contract for the purchase of B Street, Suburb C but before it settled. When Mr Hall squarely put to her that Mr Carver had tendered bank statements which demonstrated this, she said that she said: “I’ve gone through pages and pages of bank statements, but I don’t recall that line item”.
However, she then accepted, in effect, that in fact she remembered that Mr Carver had told her “something along [the] lines” that such gift had been made.
Ms Munshi also acknowledged that Mr Carver had $107,000 in savings at around that time, which she, in effect, excepted was a contribution by him.
Mr Hall questioned Ms Munshi about the business plans for Company G and her qualifications for project management. Amongst other things, with respect to this topic, Ms Munshi gave evidence as follows:
(a)The latest version of the plan was the version 3 draft plan dated 7 November 2019. She said that the cover statement for that plan said as follows:
At [Company G], the patient experience is unlike any other [health] clinic and more akin to a boutique hotel or airline lounge, with a café, artwork and unique aesthetics that are full to the brim with personality that mirrors the artistic, unconventional and diverse spirit of the local area.
(b)By December 2019 she was no longer involved in the project.
(c)The ANZ was sent version 2 and version 3 of the draft plan. In one of the parties’ consultations with the bank, which was of approximately one hours’ duration, approximately 25 minutes of the meeting was spent looking at the version 3 of the plan.
(d)She had no qualifications or experience in the health care field and no other tertiary qualifications. Ms Munshi confirmed that she had a non-tertiary qualification in project management which was accredited by professional bodies.
Ms Munshi accepted that once she found out that they “were building a small hospital or day surgery and the permit was wrong” she had been engaged in significant conflict with the Architect, Ms T.
Initially, Ms Munshi gave evidence that she had no conflict with the builder, Mr U. She said that, rather, the: “issue was there were drawings missing, and the architect said that she didn’t know that she had to do the drawings. And the – Mr U (sic) said that he didn’t pick up the fact that there was body protection in there, so he did [not] account for the – the budget of that”.
However, Ms Munshi then accepted that there was conflict between Mr U and her: “Sorry, yes?---Conflict as in we were trying to sort out who was responsible and roles and responsibilities, yes.”
Mr Hall put to Ms Munshi that the draft business plan assumes that all patients would be private patients paying $75 for a consultation as opposed to $42 for bulk billed consultations. In response, Ms Munshi said:
So the document says that but also, if you – if you see how I did some of the numbers, we also implied – and we didn’t include Saturday figures for the health care staff to – to make sure that we counteracted that
This evidence is set against a backdrop of Mr Carver’s evidence that the clinic does a mix of full paying private patients and bulk billed patients.
Ms Munshi accepted that the business revenue would be a function of demand; that is, it would be led by patient numbers. She accepted that such numbers would need to be built up over time.
However, Ms Munshi said that this would be more easily achieved if the practice hired more staff. This contrasted with Mr Carver’s evidence that it would not be prudent to take on additional staff until the underlying patient demand was in place.
Mr Hall put to Ms Munshi that on 28 December 2019 at 11:50 pm she had sent an email to the mortgage broker, Mr AL of Company AM, under the subject line: “Just an email between you and me”, which suggested that Mr Carver’s parents would secure the refinancing of the business loan. Ms Munshi explained the reference, “Just an email between you and me” as follows:
Because [Mr Carver] and I were having a lot of arguments at the time, and I was trying to work out a solution before both [Mr AL] and I went to [Mr Carver] with the next steps.
That email referred to Mr Carver’s parents having “4-5 properties” and noted “plus they are both health professionals”. It went on to say that Mr Carver’s parents “probably have more than $400k under the mattress”, before saying “Plus our interest rate would be better than an unsecured loan”.
With respect to this email, Ms Munshi gave the following evidence:
(a)Initially, she stated:
Yes. I was joking around because [Mr Carver’s] dad had just mentioned to me that he had just come into some money because his father just died, and I didn’t mean to joke. I think – I feel horrible reading that now, because I think [Mr Q] and I were talking about putting money towards [X]’s education.
(b)Then, specifically in relation to the $400,000 mentioned in the email, which was the same amount subsequently lent by Mr Carver’s parents, Ms Munshi said:
That’s just a coincidence. I – it wasn’t, you know – it was just a coincidence. Actually, it was a coincidence, because when we were looking at the ANZ loans, it was an unsecured loan and a secured loan, and with the secured loan, the amount was between 300 to 400k as a bridging loan, but we ended up getting an unsecured loan so, ultimately, we didn’t need the 400k if we got the unsecured loan.
…
No. No, because the 400 was actually also – if you take a look at my father’s property, I had a chat with dad. Probably a day before sending this email, and the 400 was what I talked to dad about in getting him to secure 400 for [Mr Carver] and I.
Ms Munshi also confirmed that an earlier email, also sent to Mr AL of Company AM on 28 December 2019, discusses the use M Street, Suburb N to secure further business finance. In answer to a question from Mr Hall, Ms Munshi accepted that she was “putting out feelers” for this.
In effect, Mr Hall put to Ms Munshi that she had sought to give Mr AL of Company AM the impression that M Street, Suburb N had once been in her name. She denied this and relevantly gave evidence as follows:
Because we – I was talking to him and I was joking to him about how we lived there for a while
…
Yes. Yes, about – yes, not joking, but when we were just talking about living arrangements and stuff like that. So 100 per cent, hand on my heart, I did not say, you know, a – I didn’t want him to assume that. And I did correct him on that. Because I did also say, “What if we added Mum and Dad’s property to it as well?”
However, Ms Munshi accepted that in the context of an email sent by Mr AL to her with respect to the potential use of M Street, Suburb N for security, he had asked whether that property was transferred into her parent’s name.By that email, Mr AL went on to say “assuming M Street, Suburb N is debt free this will afford you a loan of 560k which covers the shortfall and any stamp duties in transferring this back to your ownership. Just a thought” [emphasis added].
When Mr Hall asked her if she could explain this, Ms Munshi said: “Yes, because I spoke to him about how [her parents] were willing to help Mr Carver and I out”.
Ms Munshi confirmed that her current income includes her temporary contract wages which are on average $3,645 per week as well as her child support payments that are approximately $147 per week.
Mr Hall went took Ms Munshi’s through her financial statement dated 12 July 2021. Ms Munshi revised down the weekly figure for child minding in part N from $387 to $133.50.
Mr Hall asked Ms Munshi about the level of superannuation that she had at the time that she entered the relationship in 2014. According to Ms Munshi’ affidavit of 13 July 2021 she had $100,000 in super at the commencement of the relationship in 2014. Ms Munshi subsequently conceded that she only actually had $41,233.00 in superannuation at that time.
Ms Munshi claimed that Mr Carver knew that the M Street, Suburb N was not in her name in 2016 as he “saw a lawyer and did a title search”. She also denied that she had represented to Mr Carver’s friends that she owned M Street, Suburb N, although she did say it was possible that she had said this “tongue-in-cheek”.

Mr Hall asked Ms Munshi about the amount of rent which she paid her father for M Street, Suburb N between 2009 and when they moved into B Street, Suburb C. Ms Munshi gave evidence that she paid him $450 per week, which was the figure contained in paragraph 7 of Ms Munshi’s affidavit sworn on 13 July 2021.
Ms Munshi gave evidence that she had withdrawn $20,000 from her superannuation to pay legal costs.
In re-examination, Mr Weil asked Ms Munshi whether she knew why Mr Carver’s superannuation had not increased since 2014. She replied that she did not.
Mr AK’s oral evidence
In examination-in-chief, Mr AK, Ms Munshi’s father, confirmed that his affidavit affirmed 8 July 2021 was true and correct. By that affidavit, Mr AK gave evidence including that:
(a)He bought M Street, Suburb N in 1999.
(b)Ms Munshi moved into M Street, Suburb N in 2009 as a rent paying tenant.
(c)Ms Munshi paid a below market rent of $850 per month.
(d)Mr Carver moved into the M Street, Suburb N property in 2014 and Mr AK did not receive any rental payments from him.
(e)Ms Munshi has no interest in the M Street, Suburb N property.
(f)Mr Carver knows Ms Munshi has no interest in the M Street, Suburb N.
(g)He visited Mr Carver and Ms Munshi in or about January or February 2019, and Mr Carver then asked whether he could sell the M Street, Suburb N property to help fund the practice.
(h)He had not agreed to sell M Street, Suburb N but was willing to put it up as security for a loan to the practice.
(i)In or about 7 April, he had gifted the Husband and Wife $20,000.
(j)In or about 17 January 2018, Mr AK had lent Ms Munshi $52,663.10 for “ongoing expenses and needs”.
(k)He and other family members had undertaken extensive renovations on the B Street, Suburb C.
(l)Although Mr Carver and Ms Munshi paid for “most” of the building materials, he and his cousin provided unpaid labour to the job on every weekend for approximately six months.
Mr Hall cross-examined Mr AK.
Mr Hall asked if Mr AK agreed that he received $450 per month from Ms Munshi for M Street, Suburb N. Mr AK gave inconsistent evidence in response. He said more than once “…400 a month. Some months more”. However when, on more than one occasion, Mr Hall put to him that his daughter had given evidence that she had paid $450 a month, Mr AK likewise accepted that this was correct.
Mr AK stated that the current tenants of the M Street, Suburb N property pay $2,200.00 per month on a month to month tenancy.
[Mr AK] said that their contract was with [Ms Munshi]: You know the tenants that are living there right now?---Yes.
Have they – they’ve signed a lease, haven’t they?---They signed the lease with [Ms Munshi].
Yes. And when does that expire – do you know when that lease expires, or you don’t know?--No. I don’t know. They will let me know when it expires for the pay. When they pay they call me that rent pay forward to your account.
Do you know what the word lease means? Do you know what a lease is?---Like a rent.
Yes. Yes. Well, we say a lease is an agreement by one person with another to say, “You can live in my house if you pay this money”, basically. Do you agree?---Yes. Yes.
Okay. So there’s a lease now at the moment for the current tenants, isn’t there?---Yes. Yes. The tenant, yes.
Do you know when that lease will end?---Pardon?
Do you know when that lease will finish?---I don’t know. Because [Ms Munshi] said. “Let them stay in there until they go”.
Okay. So are you saying the lease is finished but they’re just staying in there month 20 after month now?---Yes. Yes. That .....
Okay. So the lease has expired but they’re staying in month to month?---Yes. I think - - -
Mr AK then gave evidence that he would not allow Ms Munshi to move into M Street, Suburb N once the current tenants move out because he was concerned that she would not pay all due rent. He said that he needed the full payment in his retirement.
Mr Hall then asked Mr AK why he lent Ms Munshi $52,663.00 having regard to his concerns that she had previously defaulted in her obligation to pay rent.
Mr AK accepted that there was no written agreement documenting the loan. He said that he had paid the money to a bank account of Ms Munshi’s and Mr Carver. Mr AK said that he trusted Ms Munshi would repay the money when he needed it.
From time to time during Mr AK’s evidence, his attention appeared to be diverted to someone else who was in the room with him. Mr Hall pointed out that whispering in that room appeared audible. Ultimately, Mr AK said that his wife was in the room with him.
Mr Weil did not re-examine Mr AK.
The valuation evidence – Mr K
I deal below with the substance of the evidence of Mr K, who again was the jointly appointed single valuer. However, before doing so, I set out some matters of procedural history which give context to it.
I have identified above that the trial was heard in three tranches and that controversy between the parties about the adequacy of the valuation reports produced by Mr K to each stage a was significant driver of that segmentation.
As a result of that dispute, on 5 October 2021, at the end of the first tranche of the trial, I ordered that the parties jointly engage Mr K to provide a supplementary valuation report for F Pty Ltd.
The dispute about the adequacy of Mr K’s valuation endured to the next tranche of the trial, on 19 October 2021. This was the date upon which Ms Wheeler first represented Ms Munshi.
On that day, I adjourned the trial to 19 November 2021 and, amongst other things, in effect ordered that further discovery be provided by Mr Carver and that Mr K was to provide a further valuation. Later, I set out the terms of that order with greater particularity.
Mr K’s reports
Mr K, produced the following valuation reports which were tendered into evidence:
(a)a business valuation report dated 4 March 2021 (First valuation report);
(b)a business valuation report dated 30 June 2021 (Second valuation report);
(c)a supplementary letter dated 30 June 2021 which identified some “minor mistakes” in the Second valuation report (30 June 2021 supplementary letter);
(d)a third valuation report dated 15 October 2021 (Third valuation report); and
(e)a final valuation report on 8 November 2021 (Final valuation report).
Mr K’s oral evidence
Mr K attended Court on three occasions, namely 5 October 2021, 19 October 2021 and 19 November 2021. However, he did not give evidence on 19 October 2021.
Mr K’s oral evidence on 5 October 2021
Mr K confirmed that he was a chartered account with significant experience as a valuer. Mr K’s relevant expertise was uncontroversial.
Mr K gave evidence that he had prepared the First valuation report and the Second valuation report. He also referred to a supplementary letter dated 30 June 2021 which he had prepared and which identified some “minor mistakes” in the Second valuation report.
Mr K gave evidence that the Second valuation report valued the business at $346,000. However, his letter of 30 September 2021 revised that figure to $334,000 on the basis of the minor mistakes referred to therein. His evidence, then, was that his opinion at that time was that $334,000 was an accurate value for the business.
Mr K confirmed that his Second valuation report was based upon the assumption set out in paragraph 3.2 thereof. That paragraph states:
In attaining this value, major assumptions have been made about the future viability of the practice and the ability to meet the targets of the strategic plan, together with the ability to expire considerable debt associated with the comprehensive fit-out of 12 rooms.
Mr K gave evidence to the effect that the actual performance of the business was falling behind the projections in what he referred to as a “strategic plan”. Mr K confirmed that this was the version 3 of the business plan prepared by Ms Munshi.
Mr K gave evidence that he had not placed significant weight on that plan in arriving at his valuation. He said that a significant reason for this was that the actual revenue for the first 12 months of the business was significantly lower than that projected in the plan. He said that he also considered the plan unreliable for reasons including its projected use of a “12 room clinic” when, in fact, there were only four rooms.
Mr K confirmed that proper basis for valuing Company G was to establish its future maintainable income earnings over time.
Mr Hall asked Mr K for his opinion on Mr Carver’s evidence that there were a number of barriers to the clinic realising its full earning potential, including that:
(a)the projected expansion rate of medical professionals was unrealistic until patient demand picks up;
(b)the clinic was not accredited and obtaining accreditation had proved problematic which made it uncertain when the process would be compete; and
(c)COVID-19 lockdowns have delayed the accreditation process by 12 months.
Mr K said that he did not know about this accreditation issue but added that:
I don’t think the number of medical professionals and the holdup that’s probably been caused by both COVID and lack of accreditation actually interferes with my valuation based on that first year’s revenue.
Mr Hall put to Mr K that:
It’s common ground that that business plan document was written – I think, it’s common ground that it was written principally by Ms Munshi. On my client’s evidence, she was the sole author of the document, in which he had no input at all. But what she, herself has agreed is that the document was written with a view to persuading prospective lenders to lend money
Mr K confirmed that in his view the business plan was “heavily optimistic”.
Mr K gave evidence that he had been provided with further accounts and BAS information on 30 September 2021 (which was the second listed day of the first tranche of the trial) which may require him to revise his valuation further.
Mr K said “I think the extrapolation of those BASs indicated that the turnover would be about $500,000 for the year.” This led Mr K to revise his valuation to approximately $360,000 during his oral evidence on that day. Mr K explained this valuation was based on his view of the future maintainable earnings of the business.
Mr Weil cross-examined Mr K.
Mr Weil asked Mr K why his valuation had come down from $380,000 in his 30 September 2021 supplementary letter to $360,000 in his oral evidence. Mr K gave evidence that the 30 September figure was altered to allow for addition information since that letter. Mr K gave the following evidence to that effect:
Well, the way I was doing this was take three different ways of getting to a value and then taking the midpoint. So, the three – the – the value I got to after I’d sent that email, after – after looking at the comparison of the internal accounts with the statutory accounts – I came up with a multiplied value which was less than the value I had stated in the email, and the midpoint, therefore, was less, and I came up with about 360,000. But I do, sort of, like to emphasise that, really, I should be looking at it in more detail.
…
Well, I will explain the – the variances between the internal accounts and the statutory accounts. They all relate to expenses. Now, the expenses between the two look virtually identical – within $1000. But actually, the components of those expenses are actually very different. For example, wages of nearly 94,000 have been reversed out. Now, I don’t understand that. How did that happen? If they were charged up as wages in the internal accounts but then management fees of 45,000 appear that weren’t in the internal accounts. Extra rental se[e]ms to have been accrued. Legal fees, which I’m pretty certain are family law fees, have been reversed out, and there’s quite a few other smaller adjustments – quite a few of them. There was no depreciation or immediate write-off in the internal account; that has been processed, as you often expect, in the statutory accounts. So there are a considerable number of differences between the internal accounts I used for the purposes of the report, and these accounts that I received last Thursday evening. So there are still – there are still issues, really, with investigating one or two of these balances.
Mr Weil asked Mr K why the variance in valuations that had “doubled in six months”. In effect, Mr K replied that this was due to his access to more information. He said in light of this, his previous valuation “shouldn’t be given any weight”. He said that his earlier valuation was produced from limited information, whereas the latter valuation was calculated using 12 months of actual data. Mr K said that a valuation based on such data still could not be given too much weight. Mr K said that it would have been preferable to base his valuation on a few years’ actual data, which is obviously not possible in this case.
Mr K gave evidence to the effect that, at the time of writing his Second valuation report and his supplementary letter of 30 June 2021, he did not have complete rent figures or every available BAS statement.
Mr K described the issue created by this information gap is that extrapolating the business’ income was unreliable, noting that monthly income seems difficult to reconcile at face value. Mr K’s comments included that:
It’s … the third, fourth and fifth months of the 2021 year. And the total of sales over three months is 126,000 near enough. So, that’s 126,000 for three months versus, near enough, 100,000 for one month in June 2021.
…
I would certainly have to consider that very definitely as the going trend. I think I would need more information on who was involved in generating this income.
Mr K was provided with 12 months of BAS statements from 30 June 2020. He was asked to consider those documents and then, in effect, provide his view instater how they might affect his valuation. After the matter stood over briefly for this purpose, Mr K was recalled. He then gave evidence, in effect, that if he were permitted more time to consider the matter there was the potential for his valuation to increase by as much as $100,000 to $250,000.
Counsel for both parties agreed that additional material should be supplied to Mr K. Accordingly, on 5 October 2021, I adjourned the matter to 19 October 2021 and directed that Mr K prepare a further valuation report.
On 15 October 2021 Mr Carver affirmed an affidavit with details of the documents supplied to Mr K. Those documents included additional balance sheets, BAS statements and summaries, loan statements, payroll reports, an updated profit and loss summary, and information concerning correspondence between the parties, Mr K and the business’s accountants being AN Accountants.
19 October 2021
As I observed above, Mr K did not give evidence on 19 October 2021.
In short, the reason for this is that, on the Wife’s application, I granted her an adjournment for reasons which I gave orally on the day.
It is unnecessary for me to rehearse those reasons here. However, to set some context to the circumstances in which Mr K’s Final valuation report was prepared, I make the following observations about the basis upon which that adjournment application was made.
Ms Wheeler, who appeared for the Wife, had very recently taken over carriage of the proceeding from Mr Weil. Ms Wheeler submitted that the matter should be adjourned so that she could better prepare.
She submitted that, more fundamentally, I should adjourn the matter for reasons including the following:
(a)For reasons evidenced in the Wife’s extensive affidavit of 19 October 2021, the day of the hearing:
(i)the Husband had failed to make full and frank disclosure to Ms Munshi’s representatives;
(ii)there were deficiencies with the material the Husband provided to Mr K; and
(iii)Ms Munshi was unaware of discussions that had taken place at a conference between Mr Carver, Mr K and the business accountants.
(b)Mr K’s final analysis had been emailed to the parties at 10:15pm on the previous evening.
(c)The Husband’s assertion of a negative asset pool was not common ground.
(d)Significant issues arose from Mr K’s letter dated 16 October 2021 which stated that there are issues with how data was entered on the Xero accounting system. Ms Wheeler submitted that the letter stated that “this is a serious and substantial matter that needs to be raised before the court”. Mr K’s letter says, amongst other things, that:
(i)those problems made some asset and liability figures difficult to reconcile with bank records for the purposes of the businesses’ valuation;
(ii)on 30 June 2021, the Xero system records the ANZ loan as negative $624,021.00 whereas the bank feed shows a balance of negative $14,211.00;
(iii)this created a variance between the bank feed and the Xero accounts of $893,812.00;
(iv)as a consequence, a net balance sheet liability of negative $299,545.00 would became a net asset of $594,267.00;
(v)Mr K then confirms loan amounts directly with the ANZ and Westpac banks, which changes the net liabilities from negative $1,644,293 to negative $712,866.00;
(vi)Mr K expresses the view that this change is accounted for because AN Accountants have rolled a number of balances into a “Shareholders loan”, resulting in the balance sheet liabilities including a shareholders loan for $877,638.00;
(vii)Mr K also raises the possibility that Mr Carver has been able to reduce his debt and that he may be due repayment of the shareholder’s loan, but adds that further investigation would be needed to clarify this situation.
(e)Given that Mr K’s letter of 16 October 2021 raised the possibility that the value of the business may be higher than is reflected in his Third valuation report, Ms Wheeler argued that that Mr K should justify his use of the future maintainable earnings methodology.
(f)Ultimately, this further analysis may support the conclusion that there was a positive net asset pool.
(g)In all of the circumstances, an adjournment was required in order to afford the Wife procedural fairness.
Mr Hall opposed the adjournment for a number of reasons. Having granted the adjournment for reasons which I gave orally on the day, it is unnecessary for me to recount all of those submissions here. However, again to provide some context to Mr K’s Final valuation report, I set out some of those submissions below:
(a)Mr K final valuation analysis had not been sent to the other side at 10pm the previous evening, rather what was sent was a single page letter from Mr K confirming that the final valuation and analysis which had been sent to the parties on 15 October 2021.
(b)His client accepts Mr K’s revised valuation evidence on its face.
(c)There is a 100 page report documenting the precise documents that the Husband had supplied to Mr K.
(d)It is not common ground that Mr K requires any further information.
(e)The matter should proceed because the valuation is a single expert valuation that is only $6,000 more than the previous valuation.
(f)The Future Maintainable Earning method used by Mr K is the preferred method because other methods such as the net asset method produced a negative valuations.
(g)All additional documents sought had already been provided by Mr Carver.
Again, I adjourned the trial to 19 November 2021, ordered, in effect, that further discovery be provided by Mr Carver and that Mr K was to provide a further valuation that included:
(a)the methodology used and the reasons for its choice;
(b)the Business Valuer’s opinion of value;
(c)the materials, including any communications from the parties or their representatives (Data), that were relied upon for the purposes of making the valuation; and
(d)the Business Valuer’s reasoning process from the Data to his conclusions.
Conclusions expressed in Mr K Final valuation report

In AJO & GRO (2005) FLC 93-218 (AJO & GRO), the Full Court of the Family Court of Australia identified four important steps for the determination of property disputes. At [46] Warnick and Le Poer Trench JJ, observed that:
46.The four important steps to be taken in determining a property dispute are well defined (see for example Ferraro and Ferraro (1993) FLC 92-335 at 79,560) and they are:
(a)to identify and value the net property of the parties (usually as at the date of trial);
(b)to consider the contributions of the parties within paragraphs (a)-(c) of s 79(4);
(c)to consider the s 75(2) factors; and
(d)to consider whether the order proposed is just and equitable.
More recently, in Keskin & Keskin and Anor (2019) FLC 93-932 at [37], the full Court of the family Court of Australia adumbrated the preffered approach to the application of the section.
Property Pool
As observed above, the Husband’s fundamental contention is that the property pool has a negative value. In particular, he contends that his net asset position is ($224,934.67).
The Husband’s specific contentions as to the make-up of that asset position are expressed in his adjusted list of assets and liabilities which form of Schedule 1 to these reasons. It is unnecessary for me here to repeat his contentions as reflected in that schedule.
However, it is useful to recall that the major items of property that might be available to the pool from the Husband are as follows:
(a)B Street, Suburb C, which had an unchallenged expert valuation of $1,400,000;
(b)D Street, Suburb E, which had an unchallenged expert valuation of $1,100,000; and
(c)his ownership of the whole of the shareholding in F Pty Ltd which owns and operates the business, Company G which, as at the time of trial, was valued by Mr K at $352,000.
Separately, the Husband contends that he has superannuation of $34,908.
Significant issues in dispute between the parties include:
(a)Whether Mr K value of the business ought be accepted.
(b)The true extent of the Husband’s liabilities.
(c)Without limiting (b) the extent to which it is appropriate to take borrowings of the Husband into account in determining his asset position for the purpose, in turn of determining the parties’ asset pool.
The Value of Company G
I deal first with the question of the value of Company G. This issue consumed more time than any other at trial. Again, controversy about the value of that business was also a reason for the segmentation of the trial.
As I have observed above, Ms Wheeler, on behalf of the Wife contended that the value of that business was at least $1,173,330. It will immediately be apparent that this figure contrasts starkly with the valuation of Mr K, the single expert and jointly appointed valuer.
I have considered all of Ms Wheeler’s submissions as to how she arrives at that figure, including those which I have extracted above.
Moreover, I have considered all of Ms Wheeler’s submissions to the effect that Mr K’s valuation was unreliable including because it was based on inadequate disclosure by the Husband, and that an unduly low multiple was adopted as well as that it was based on the wrong overall methodology.
Likewise, I have considered Ms Wheeler’s extensive cross examination of Mr K.
Despite these matters, I accept Mr K’s valuation of the business of Company G.
I do so for reasons including following.
First I have the advantage not only of reading Mr K’s reports in the context of the evidence as a whole but of observing him give his evidence. I found him to be a credible witness. That is, I considered his evidence not only to be honest but careful and considered. As Ms Wheeler, herself, submitted Mr K had many opportunities to consider his valuation over a considerable period. He landed on a value of $352,000.
Secondly, ultimately, Mr K was satisfied that he had sufficient information to conclude that that was the appropriate figure. He gave evidence to that effect.
Thirdly, Mr K expertise as a valuer was uncontroversial.
Fourthly, Mr K provided the only direct valuation evidence before the Court. At no stage did the Wife seek to interpose evidence from another valuer. This is so, despite her dissatisfaction with Mr K’s valuation throughout. Whereas I have considered Ms Wheeler’s alternative methodology and conclusion, with respect, that is no substitute for the evidence of an independent qualified valuer. I am not persuaded by the Wife’s contention that the valuation should be disregarded as the product of inadequate disclosure. Amongst other things, again, ultimately Mr K gave evidence that he was satisfied that he had sufficient material before him to land on his final valuation figure. Mr K had been candid at earlier stages of the proceeding about his concern about the adequacy of the information to which he then had access.
Fifthly, without limiting my acceptance of Mr K’s valuation and the methodology which he adopted in order to produce it, I accept his evidence with respect to the earnings multiple which he selected. Ms Wheeler challenged Mr K extensively with respect to this. I had the advantage of observing the exchanges between Ms Wheeler and Mr K on this matter. As I observed above, Mr K was steadfast in maintaining that the multiplier which he selected was appropriate in the circumstances. Those circumstances, in essence, were the fledgling nature of the business and the risk associated with it. His reasoning in this regard was entirely credible.
Sixthly, for the avoidance of any doubt, without limiting my consideration of the alternative approaches to the valuation of the business by Ms Wheeler, I have considered and rejected the “value to owner” method. Amongst other considerations, Mr K who is an experienced independent expert considered that such an approach did not alter his view as to the correctness of his valuation.
Other high order factual findings
I have considered the credit of each of the witnesses who gave oral evidence before me.
I do not consider that it is useful to undertake a complete examination of the reliability of every piece of evidence given by such witnesses. I have surveyed the major the factual disputes between the parties in some detail above.
I will confine my observations to my conclusions on some of the high order factual issues with direct relevance to the determination of the extent of the property pool, whether I should alter the parties’ property interests and whether the Wife’s circumstances are such as to trigger an order for spousal maintenance. I reach those conclusions after having considered all of the evidence and the whole of the parties’ submissions.
First, I accept that the Husband is required to repay his parents the $400,000 loan made by them to him. I have already stated that I found the Husband’s mother to be a completely reliable witness. The Husband’s mother gave oral evidence which was consistent with her affidavit evidence and that of the Husband’s father. The thrust of her evidence was that the transfer of that amount was in the nature of a loan and secondly that the Husband’s parents expected its repayment. This is consistent not only with a contemporaneous written acknowledgement of the debt but a later order of this Court requiring its repayment. That order was made with the consent of the Wife. Moreover, I have extracted above the exchange between the Husband’s counsel and the Wife in cross examination wherein the Wife concedes that the Husband is required to repay the $400,000.
Secondly, I accept the evidence of the Husband that the establishment costs for the Company G business were in the order of $1,600,000. Likewise I accept his evidence that those costs were made up of the borrowings from his parents, or at least $320,000 of them, a $50,000 personal loan and the balance being in the nature of deferrals of debt by creditors. I have dealt already with the amount of $400,000. The husband adduced compelling evidence of the institutional borrowings which he alleged. Having observed him give his evidence, I am persuaded that amounts remained outstanding to creditors.
Thirdly, I accept the Husband’s evidence of the extent of his indebtedness generally. This, together with my acceptance of Mr K’s valuation evidence, yields the conclusion that he has a net negative asset position.
Fourthly, I accept that remediation work is required on B Street, Suburb C. This was the unchallenged evidence of the building surveyor to which I have referred above. I am also persuaded that the Husband has difficulty in paying for that remediation work at this stage and that it is desirable that such work be carried out prior to any sale. However, I doubt that anything really turns on this point. This is because, in the context of a negative asset pool, I cannot see what advantage is gained by the parties in forcing the sale of the property.
Fifthly, whereas I accept that the Wife does not own M Street, Suburb N legally or beneficially, I find that it is a resource which is available to her.
I say this in light of my consideration of all of the evidence.
In particular, her father said that she, in effect, has the lease with the tenants of that property. For example, he says that she has let them stay there.
Further, I find that during the early stages of her relationship with the Husband, the Wife held herself out as having an interest in the property. Moreover, I find that she held herself out to Mr AL of Company AM as having owned the property at some stage. This is the only reasonable construction of her email exchanges with him which I have extracted above.
Although the Wife’s father gave inconsistent evidence about the rent which he had charged her for that property, the upshot of his evidence is that she did not always pay rent. Further, by his affidavit, he deposes to having charged her a discounted rent.
The Wife’s interactions with Mr AL do not reflect well on her credit generally. Amongst other things, she inaccurately give Mr AL the impression that she once owned M Street, Suburb N. Further, when challenged on this in cross examination her endeavour to dispute this was no credible. Likewise, I did not find credible her evidence in cross examination that the reference which she made to him about $400,000 not being about the amount which had been lent by the Husband’s parents.
Sixthly, I find that both parties made significant contributions to the relationship. I accept that the Husband had $107,000 at the commencement of the relationship. Although I accept that the borrowings which they respectively made from their families were not joint, I also accept that some of those funds were contributed to their joint expenses. By way of example only, I accept that not all of the $400,000 which the Husband borrowed was contributed to the business but that at least some of the balance was contributed to the parties’ joint expenses.
Likewise, I find that both parties contributed to the establishment of the Company G business. I accept that the Wife was doing her best to implement what she thought was a potentially propitious vision for the business.
However, I likewise accept that she became very difficult to deal with at least by the time that she ceased participating in the establishment of the business and that this caused significant friction with those who were engaged in carrying out the work necessary to make it operational. Such a finding is supported by the evidence, not only of the Husband, but the builder, Mr U and the architect Ms T. The evidence of the independent witnesses was not challenged.
Moreover, I consider that the Wife’s vision for the business resulted in its over capitalisation. However, the Husband certainly does not lie blameless in this regard. I accept the submission made on behalf of the Wife that he cannot seriously contend that he was an idle spectator.
It is that over capitalisation that has resulted in the modest value of the business. At this stage, it is pointless to cast about for blame in this regard. The parties now have to live with the reality that there is a negative asset pool.
Eighthly, I accept the Husband’s evidence about his earning capacity. I do not agree with the submission made by Ms Wheeler to the effect that it is inappropriate to regard his earning capacity in the context of a salary which he draws from the business. To deal with the matter otherwise does not pay regard to the fact that the earnings which are not drawn by him as a salary have been accounted for when determining the capacity of the business to pay its expenses.
In any event, having regard to the fact that the relationship was relatively short, the asset pool is negative and, for reasons to which I will come, I am persuaded on the evidence that the Wife can support herself, I do not consider that it is just and equitable to alter the parties’ property interests in this case.
Ninthly, in reaching this conclusion I have had regard to all of the s 75(2) factors. Amongst other things, I accept that both parties are in good health. Without limiting this observation, I consider that the Wife’s mental health issues are being satisfactorily managed. This was the subject of unchallenged affidavit evidence tendered by her. Further, I have had regard to the earning capacity of both parties.
I have dealt above with some conclusions on the Husband’s earning capacity in the context of his business. In addition to those considerations, I have had regard to the fact that the Wife pointed out that the Husband was involved in consulting with a patient who died. This may have an impact on his earning capacity outside of his business.
I agree with the submissions made by the Husband to the effect that the Wife has demonstrated a consistent history of earning at a level by which she can support herself, living reasonably. As at the time of trial the Wife’s earnings were in fact relatively high; that is, she was being paid at a rate of approximately $800 per day. I reject the Husband’s contention that I should treat this as an amount which she could earn on a permanent full-time basis. However, I do find that this indicates that the Wife has marketable skills and this buttresses my finding that her earning capacity is such that she does not require spousal maintenance. That is, again, she is well able to support herself.
I would reach this conclusion even if the Wife did not have M Street, Suburb N as an available resource. However, I have found that she does. This further supports my conclusion that she does not require spousal maintenance.
Tenthly, I accept that the Wife has significantly more superannuation than the Husband. Despite this, I will not make the orders sought by the Husband adjusting the parties’ interests in their superannuation. The Husband’s overarching contention in this proceeding has been that it is not just and equitable that there be an adjustment to the parties’ property interests. After considering all of the evidence and submissions, I have accepted that this is so. The tenor of the Husband’s submission with respect to superannuation runs aground his overarching position. However, fundamentally, in all the circumstances, I do not consider that it is just and equitable to split the parties’ superannuation. Amongst other things, the relationship was relatively short and the Wife had a larger superannuation balance at its commencement.
I make orders in the terms set out above.

I certify that the preceding two hundred and fifty (250) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Davis.
Associate:
Dated: 13 May 2022
Schedule 1 – Husband’s table of assets and liabilities
(negative amounts are represented in brackets)

CARVER AND MUNSHI – TABLE OF ASSETS, LIABILITIES, SUPERANNUATION

ASSETS & LIABILITIES – of HUSBAND VALUE EVIDENTIARY BASIS OF VALUE

REAL ESTATE

B Street, Suburb C $1,400,000 Single expert valuation report, exhibit A7, not challenged.

Westpac Equity Access Loan a/c …57 ($759,625.82) The parties’ evidence agrees on this value. See tables at para 36 of Husband’s Reply Affidavit (exh. A3); and para 52 of Wife’s Trial Affidavit (exh. R4) (‘tables’)

Westpac Rocket Repay loan …95 ($20,807.23) The parties’ evidence agrees on this value as per their tables.

D Street, Suburb E $1,100,000 Single expert valuation report, exhibit A7, not challenged.

Westpac Bank Bill Business Loan ..07 ($1,061,487.70) The parties’ evidence agrees on this value as per their tables

Net: $658,079.25

THE BUSINESS

Business Company G $352,000 Concluded opinion of single expert Mr K. Report dated 8 November 2021

Liabilities incurred to establish business:

Mr Q & Ms P advanced 4.12.19 ($400,000) Tripartite consent order of 29 September 2021.

Interest accrued on Ms P/Mr Q loan ($20,310.71) Evidence of Ms P(exh. A6) unchallenged as to interest accrued (para 33)

Less repayments made since 29.9.2021 order $10,000 Paragraph 12 of Husband’s supplementary affidavit sworn & filed 15 October 2021,
and second $5k payment on 3 November 2021 evidenced by ANZ lodgement receipt

ANZ Business Loan ……76 advanced 23.12.19 ($797,932.73) The parties’ evidence agrees on this value as per their tables.

Westpac Fixed Rate Personal Loan …02 ($44,486.65) Husband’s evidence (paragraph 36 of exh A3) not challenged during XXN. Wife admitted this balance is owing when shown statement during XXN.

ANZ F Pty Ltd Overdraft ……82 ($13,730.50) The parties’ evidence agrees on this value as per the Husband’s table, and the Wife’s Outline of Case filed 28 September 2021 (‘Wife’s Outline’)(p12 of 43, line item 19).

Net: ($914,460.59)

MISCELLANEOUS

Westpac Offset Account …73 $32,738.72 The parties’ evidence agrees on this value as per their tables.

Motor vehicle 1 E $3,000 As above

F Pty Ltd trading a/c Westpac …78 $736.45 As above

Westpac Office account …23 $549.20 As above

Westpac Everyday Account …81 $31.67 As above

Mastercard ($5,609.57) Husband’s evidence (paragraph 36 of exh A3) not challenged during XXN.

Altitude Qantas Credit Card ……88 NIL Not disputed.

Liability for unpaid legal costs Disregarded S117(1) Family Law Act 1975; Chorn & Hopkins [2004] Fam CA 633, paragraph 58.

SUBTOTAL: $31,446.67

HUSBAND’S NET CURRENT ASSETS ($224,934.67)

ASSETS & LIABILITIES – of WIFE VALUE EVIDENTIARY BASIS OF VALUE

Motor vehicle 2 $8,000 The parties’ evidence agrees on this value as per their tables.

ANZ Access Advantage Account …48 $8,086 Wife’s Outline, p10 line item 4.

Acc no. …14 Minimal As above

Unpaid legal costs Disregarded S117(1) Family Law Act 1975; Chorn & Hopkins [2004] Fam CA 633 paragraph 58.

SUBTOTAL: $16,086

ADDBACKS

50% court expert valuation costs to July 2021 $2,208.27 Real estate valuations cost $1,800; business valuations at 30.6.2021 cost $2,616.55

WIFE’S NET CURRENT ASSETS $18,294.27

TOTAL NET CURRENT ASSETS ($206,640.40)

SUPERANNUATION

HUSBAND

Super Fund AS $34,908.80 The parties’ evidence agrees on this value as per their tables.

TOTAL: $34,908.80

WIFE

Super Fund O $81,840

Super Fund AT $19,000

Employer AP Superannuation $4,562

Superannuation the Wife applied to legal costs $20,000

TOTAL: $125,402

TOTAL SUPERANNUATION: $160,310
Schedule 2 – Wife’s table of assets and liabilities

Item

Asset

Ownership

Value
(Approximate)

1. B Street, Suburb C Victoria (“former matrimonial home”) Husband E$1,400,000

2. D Street, Suburb E, Victoria– Company F* Husband E$1,100,000

3. F Pty Ltd * Husband E$ AT LEAST 1,173,330

4. ANZ Account ending #...48 Wife $8,086

5. Westpac Account ending #...14 Wife $Minimal

6. ME Account Wife Nil

7. Westpac Off-set account #...73 Husband $32,738

8. Westpac Everyday account #...81 Husband $31.67

9. Westpac Bank Day to Day account #...78 Husband $736.45

10. Westpac Bank “Office miscellaneous costs” Husband $549.20

11. Motor vehicle 1 Husband E$3,000

12. Motor vehicle 2 Wife Wife E$8,000

13. Frequent Flyer Points Husband $N/K

TOTAL`
E$3,726,471

Item

ADD BACKS

Ownership
Value
(Approximate)

14. Rental proceeds received by Husband from D Street, Suburb E property after payment of mortgage, rates and utilities Husband E$7,668

15. Increase on Bank Bill Business Loan ending #...07 (D Street, Suburb E mortgage) by Husband on 29 April 2021 (original amount owing at separation E$1,041,487.70) Husband E$20,000

16. Additional drawdown by Husband on Westpac Equity Access Loan #...57 since separation (original loan amount owing at separation E$729,000) Husband E$30,000

SUB E$57,668

TOTAL

TOTAL E$3,784,139.32

Item

LIABILITIES

Ownership

Value
(Approximate)

15 (sic) Westpac Rocket Repay Home Loan #...95 (former matrimonial home) Husband -$20,807.23

16. Westpac Bank Bill Business Loan (D Street, Suburb E property) Husband -$1,061,487.70

17. Westpac Equity Access Loan #...57 (former matrimonial home) Husband -$759,625.82

18. ANZ Business Loan #...76 F Pty Ltd -$797,932.73

19. ANZ Overdraft F Pty Ltd -$13,730.50

20. Loan owing to Wife’s parents Joint E$31,000

21. Loan owing to Wife’s parents Wife E$21,000

TOTAL E -$2,705,583.98

NET TOTAL E $1,078,555.34

Item
SUPERANNUATION

Ownership

Value
(Approximate)

22. Wife’s superannuation Wife E$94,562

23. Husband’s superannuation Husband E$34,908.80

File number(s):	MLC 3275 of 2020
Judgment of:	JUDGE DAVIS
Date of judgment:	13 May 2022
Catchwords:	FAMILY LAW – final property – negative property pool – no slit of superannuation – single expert business valuation considered – single expert business valuation accepted - caveat withdrawal ordered – no orders made altering property interests.
Legislation:	Family Law Act 1975 (Cth), ss. 4(1), 72(1), s 75(2), s 79 and 106A
Cases cited:	Antmann M and Antmann M (1980) FLC 90-908 Biltoft & Biltoft (1995) FLC 92-614 Keskin & Keskin and Anor (2019) FLC 93-932 AJO & GRO (2005) FLC 93-218 Stanford v Stanford (2012) 247 CLR 108
Division:	Division 2 Family Law
Number of paragraphs:	250
Date of last submission/s:	21 January 2022
Date of hearing:	30 September 2021, 1-3, 5 and 19 October 2021, as well as 19 November 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Hall
Counsel for the Respondents:	Ms Wheeler
Counsel for the Respondents:	Mr Weil

MLC 3275 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CARVER Applicant
AND:	MS MUNSHI Respondent

ORDER MADE BY:	JUDGE DAVIS
DATE OF ORDER:	13 MAY 2022

CARVER AND MUNSHI – TABLE OF ASSETS, LIABILITIES, SUPERANNUATION
ASSETS & LIABILITIES – of HUSBAND	VALUE	EVIDENTIARY BASIS OF VALUE
REAL ESTATE
B Street, Suburb C	$1,400,000	Single expert valuation report, exhibit A7, not challenged.
Westpac Equity Access Loan a/c …57	($759,625.82)	The parties’ evidence agrees on this value. See tables at para 36 of Husband’s Reply Affidavit (exh. A3); and para 52 of Wife’s Trial Affidavit (exh. R4) (‘tables’)
Westpac Rocket Repay loan …95	($20,807.23)	The parties’ evidence agrees on this value as per their tables.
D Street, Suburb E	$1,100,000	Single expert valuation report, exhibit A7, not challenged.
Westpac Bank Bill Business Loan ..07	($1,061,487.70)	The parties’ evidence agrees on this value as per their tables
Net:	$658,079.25
THE BUSINESS
Business Company G	$352,000	Concluded opinion of single expert Mr K. Report dated 8 November 2021
Liabilities incurred to establish business:
Mr Q & Ms P advanced 4.12.19	($400,000)	Tripartite consent order of 29 September 2021.
Interest accrued on Ms P/Mr Q loan	($20,310.71)	Evidence of Ms P(exh. A6) unchallenged as to interest accrued (para 33)
Less repayments made since 29.9.2021 order	$10,000	Paragraph 12 of Husband’s supplementary affidavit sworn & filed 15 October 2021, and second $5k payment on 3 November 2021 evidenced by ANZ lodgement receipt
ANZ Business Loan ……76 advanced 23.12.19	($797,932.73)	The parties’ evidence agrees on this value as per their tables.
Westpac Fixed Rate Personal Loan …02	($44,486.65)	Husband’s evidence (paragraph 36 of exh A3) not challenged during XXN. Wife admitted this balance is owing when shown statement during XXN.
ANZ F Pty Ltd Overdraft ……82	($13,730.50)	The parties’ evidence agrees on this value as per the Husband’s table, and the Wife’s Outline of Case filed 28 September 2021 (‘Wife’s Outline’)(p12 of 43, line item 19).
Net:	($914,460.59)

MISCELLANEOUS
Westpac Offset Account …73	$32,738.72	The parties’ evidence agrees on this value as per their tables.
Motor vehicle 1	E $3,000	As above
F Pty Ltd trading a/c Westpac …78	$736.45	As above
Westpac Office account …23	$549.20	As above
Westpac Everyday Account …81	$31.67	As above
Mastercard	($5,609.57)	Husband’s evidence (paragraph 36 of exh A3) not challenged during XXN.
Altitude Qantas Credit Card ……88	NIL	Not disputed.
Liability for unpaid legal costs	Disregarded	S117(1) Family Law Act 1975; Chorn & Hopkins [2004] Fam CA 633, paragraph 58.
SUBTOTAL:	$31,446.67
HUSBAND’S NET CURRENT ASSETS	($224,934.67)

ASSETS & LIABILITIES – of WIFE	VALUE	EVIDENTIARY BASIS OF VALUE
Motor vehicle 2	$8,000	The parties’ evidence agrees on this value as per their tables.
ANZ Access Advantage Account …48	$8,086	Wife’s Outline, p10 line item 4.
Acc no. …14	Minimal	As above
Unpaid legal costs	Disregarded	S117(1) Family Law Act 1975; Chorn & Hopkins [2004] Fam CA 633 paragraph 58.
SUBTOTAL:	$16,086
ADDBACKS
50% court expert valuation costs to July 2021	$2,208.27	Real estate valuations cost $1,800; business valuations at 30.6.2021 cost $2,616.55
WIFE’S NET CURRENT ASSETS	$18,294.27

SUPERANNUATION
HUSBAND
Super Fund AS	$34,908.80	The parties’ evidence agrees on this value as per their tables.
TOTAL:	$34,908.80
WIFE
Super Fund O	$81,840
Super Fund AT	$19,000
Employer AP Superannuation	$4,562
Superannuation the Wife applied to legal costs	$20,000
TOTAL:	$125,402
TOTAL SUPERANNUATION:	$160,310

Item	Asset	Ownership	Value (Approximate)
1.	B Street, Suburb C Victoria (“former matrimonial home”)	Husband	E$1,400,000
2.	D Street, Suburb E, Victoria– Company F*	Husband	E$1,100,000
3.	F Pty Ltd *	Husband	E$ AT LEAST 1,173,330
4.	ANZ Account ending #...48	Wife	$8,086
5.	Westpac Account ending #...14	Wife	$Minimal
6.	ME Account	Wife	Nil
7.	Westpac Off-set account #...73	Husband	$32,738
8.	Westpac Everyday account #...81	Husband	$31.67
9.	Westpac Bank Day to Day account #...78	Husband	$736.45
10.	Westpac Bank “Office miscellaneous costs”	Husband	$549.20
11.	Motor vehicle 1	Husband	E$3,000
12.	Motor vehicle 2 Wife	Wife	E$8,000
13.	Frequent Flyer Points	Husband	$N/K
TOTAL`	E$3,726,471

Item	ADD BACKS	Ownership	Value (Approximate)
14.	Rental proceeds received by Husband from D Street, Suburb E property after payment of mortgage, rates and utilities	Husband	E$7,668
15.	Increase on Bank Bill Business Loan ending #...07 (D Street, Suburb E mortgage) by Husband on 29 April 2021 (original amount owing at separation E$1,041,487.70)	Husband	E$20,000
16.	Additional drawdown by Husband on Westpac Equity Access Loan #...57 since separation (original loan amount owing at separation E$729,000)	Husband	E$30,000
SUB	E$57,668
TOTAL
TOTAL	E$3,784,139.32

Item	LIABILITIES	Ownership	Value (Approximate)
15 (sic)	Westpac Rocket Repay Home Loan #...95 (former matrimonial home)	Husband	-$20,807.23
16.	Westpac Bank Bill Business Loan (D Street, Suburb E property)	Husband	-$1,061,487.70
17.	Westpac Equity Access Loan #...57 (former matrimonial home)	Husband	-$759,625.82
18.	ANZ Business Loan #...76	F Pty Ltd	-$797,932.73
19.	ANZ Overdraft	F Pty Ltd	-$13,730.50
20.	Loan owing to Wife’s parents	Joint	E$31,000
21.	Loan owing to Wife’s parents	Wife	E$21,000
TOTAL	E -$2,705,583.98
NET TOTAL	E $1,078,555.34

Item	SUPERANNUATION	Ownership	Value (Approximate)
22.	Wife’s superannuation	Wife	E$94,562
23.	Husband’s superannuation	Husband	E$34,908.80