CHARISTEAS and CHARISTEAS

[2017] FCWA 183

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CHARISTEAS and CHARISTEAS [2017] FCWA 183

CORAM: WALTERS J

HEARD: 3 - 17 AUGUST & 13 SEPTEMBER 2016

DELIVERED : 12 FEBRUARY 2018

FILE NO/S: PTW 4624 of 2006

BETWEEN: MS CHARISTEAS

Applicant

AND

MR CHARISTEAS
First Respondent

AND

LEWIS BARTON AND ANGELINA CHARISTEAS (As Executors of the Estate of J CHARISTEAS)
Second Respondents

AND

XYZ PTY LTD
Third Respondent

AND

LEWIS BARTON
Fourth Respondent

AND

ANGELINA CHARISTEAS
Fifth Respondent

AND

E CHARISTEAS
Sixth Respondent

AND

MS SOLANO
Seventh Respondent

AND

MS MAGNOLI
Eighth Respondent

Catchwords:

FAMILY LAW – PROPERTY SETTLEMENT – Where husband, wife and their three adult children are specified beneficiaries of a discretionary trust – Where spouses have a fixed and irrevocable entitlement to a share of capital upon a vesting of the Trust – Whether spouses' Trust entitlement is property for the purposes of the Family Law Act 1975 (Cth) – Where control of the Trust in dispute – Where husband found to be the controller of the Trust and the Trust's property – Where the Trust and its corporate trustee found to be a disguise or false front – Where husband devised and implemented a scheme or strategy to distance himself from the Trust and to defeat anticipated orders in property proceedings – Consideration of the role of husband and directors of corporate trustee in husband's scheme or strategy – Where directors of corporate trustee did husband's bidding and were "puppets" – Where directors of corporate trustee failed to exercise their fiduciary duties to the beneficiaries of the Trust – Where the Trust should not have involved itself in the spouses' property dispute – Consideration of whether husband's or wife's conduct was reckless, negligent or wanton – Consideration of dicta in Kowaliw & Kowaliw (1981) FLC 91-092 – Whether paid legal fees should be added back – Whether an early vesting of the Trust should be ordered – Consideration of Part VIIIAA of Family Law Act 1975 (Cth) – Orders made for the Trust to be vested

FAMILY LAW – PRACTICE AND PROCEDURE – ISSUE ESTOPPEL - Where the wife argued issue estoppel in relation to previous findings – Consideration of Blair v Curran (1939) 62 CLR 646 – Where only aspect in dispute was whether a previous judicial decision was “final”

Legislation:

Family Law Act 1975 (Cth)
Legal Profession Act 2008 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant : Ms G. Anderson and Ms A. McShera

First Respondent : Mr P. Dowding SC and Mr F. Robertson

Second Respondents : Mr S. Penglis

Third Respondent : Mr S. Penglis

Fourth Respondent : Mr S. Penglis

Fifth Respondent : Mr S. Penglis

Sixth Respondent : Self Represented Litigant

Seventh Respondent : Self Represented Litigant

Eighth Respondent : Self Represented Litigant

Solicitors:

Applicant : DCH Legal Group

First Respondent : Slater & Gordon

Second Respondents : West End Legal

Third Respondent : West End Legal

Fourth Respondent : West End Legal

Fifth Respondent : West End Legal

Sixth Respondent : Self Represented Litigant

Seventh Respondent : Self Represented Litigant

Eighth Respondent : Self Represented Litigant

Case(s) referred to in judgment(s):

Ascot Investments Pty Ltd v Harper and Harper (1981) 148 CLR 337
Ashton & Ashton (1986) FLC 91-777
Attorney-General (Cth) v Breckler (1999) 197 CLR 83
Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98
Australian Telecommunications Corp v Barnes (1996) 125 FLR 335
B & B [2006] FamCA 883
Babett & Falconer (2015) FLC 98-067
Badar Bee v Habib Merican Noordin [1909] AC 615
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Bevan & Bevan [2013] FamCAFC 116
Blair v Curran (supra), DP World Australia Ltd v Fremantle Port Authority [2009] WASCA 16
Bonacci & Bonacci [2012] FamCAFC 15
Bremner & Bremner (1995) FLC 92-560
Burnham v Carroll Musgrove Theatres Ltd & Victoria Arcade Ltd (1928) 41 CLR 540
Calder & Calder (2016) FLC 93-691
Chapman & Chapman [2014] FamCAFC 91
Charles & Charles [2017] FamCAFC 3
Clauson & Clauson (1995) FLC 92-595
Commonwealth of Australia v Cockatoo Dockyard Pty Ltd [2006] NSWCA 322
VC & GC (Costs) [2010] FamCAFC 222
VC & GC and Ors [2010] FamCAFC 62
[Charisteas & Charisteas & Ors] [2008] FCWA 148
[Charisteas & Charisteas & Ors] [2008] FCWA 40
[Charisteas & Charisteas] [2009] FCWA 119
[Charisteas & Charisteas] [2009] FCWA 42
VC and GC and Ors [2011] FCWA 89
[Charisteas & Charisteas] [2012] FCWA 1
Charisteas & Charisteas [2015] FCWA 15
Charisteas & Charisteas [2016] FCWA 106
AC and Ors & VC and Anor (Costs) [2015] FamCAFC 117
AC and Ors & VC and Anor [2013] FCWA 60
Davidson & Davidson (1991) FLC 92-197
Dekker & Dekker [2014] FCWA 61
Dickons & Dickons [2012] FamCAFC 154
Fauna Holdings Pty Ltd and Ors & Mitchell (2000) FLC 93-053
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630
Fielding & Nichol [2014] FCWA 77
Fitzgerald-Stevens & Leslighter [2015] FCWA 25
G & G [2004] FamCA 1179
Goodwin & Goodwin (1991) FLC 92-192
Gould and Gould; Swire Investments Ltd (1993) FLC 92-434
Harrington & Harrington and Ors (2007) FLC 93-317
Harris & Harris (1991) FLC 92-254
Hayton v Bendle (2010) 43 Fam LR 602
Hickey & Hickey & Attorney-General for the Commonwealth of Australia [2003] FamCA 395
Hook v Administrator General of Bengal (1921) LR 48 Ind App 187
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kowaliw & Kowaliw (1981) FLC 91-092
Kuligowski v Metrobus (2004) 220 CLR 363
McMahon & McMahon (1995) FLC 92-606
[M v M] [citation omitted]
Money & Money (1994) FLC 92-485
Murphy v Abi-Saab (1995) 37 NSWLR 280
NHC & RCH (2004) FLC 93-204
Norbis v Norbis (1986) 161 CLR 513
Omacini v Omacini (2005) FLC 93-218
OSF & OJK (2004) FLC 93-19
Pierce & Pierce (1998) 24 Fam LR 377
R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309
Raja of Ramnad v Velnsami Tevar (1920) LR 48 Ind App 45
Ram Kirpal Shukul v Mussumat Rup Kuari (1883) LR 11 Ind App 37
Ramachandra Rao v Ramachandra Rao (1922) LR 49 Ind App 129
Re

F – Litigants in Person Guidelines (2001) FLC 93-072

Re Hay's Settlement Trusts [1981] 3 All ER 786
Russell v Russell (1999) FLC 92-877
Saxena & Saxena (2006) FLC 93-268
Scott & Danton [2014] FamCAFC 203
Scott v Commissioner of Taxation (No. 2) (1966) 40 ALJR 265
Sharrment Pty Ltd & Ors v Official Trustee in Bankruptcy (1988) 82 ALR 530
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Townsend & Townsend (1995) FLC 92-569
Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278
Vass v Vass (2015) 53 Fam LR 373
Wardle v Agricultural and Rural Finance Pty Ltd; Agricultural and Rural Finance Pty Ltd v Brakatselos [2012] NSWCA 107
Waters & Jurek (1995) FLC 92-635
Way & Way (1996) FLC 92-702
XYZ Pty Ltd and Anor & Charisteas & Ors; ABC Pty Ltd & Charisteas and Ors [2017] FamCAFC 112

Contents

Catchwords:

Legislation:

Representation:

Counsel:

Solicitors:

Case(s) referred to in judgment(s):

Preamble

Abbreviations and other terms used

Introduction

Overview

Introductory comments regarding the husband (including as a witness) and, briefly, regarding the wife

AC

Mr Barton

The wife's brother

Significant findings in the 2010 appeal judgment

Findings in the 2011 trial judgment, and Annexure A

The 2013 appeal judgment: Summary regarding the Trust

The 2013 appeal judgment: Other significant findings

Procedural fairness

s 90AF(3)(a) – whether orders or injunctions are "reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage"

Conclusion in relation to the 2013 appeal

Findings from the 2013 appeal judgment restated in the 2013 appeal costs judgment

The effect of the interpretation judgment

Issues for determination in the 2016 trial

Issue estoppel

The Trust (and Annexure B)

Who controls the Trust?

Is the Trust property?

The role of the Trust in these proceedings and in the sale of the C properties

AWPL (as trustee for the ADT)

G Pty Ltd

Should the Trust be vested?

The spouses' Super Fund and the husband's Super Fund

AF Funding Ltd

The 2016 trial

E Charisteas, Ms Solano and Ms Magnoli were unrepresented

Post-trial developments

Sale of the former matrimonial home

CS&M loan accounts with the Trust

Orders sought

Law in relation to alteration of property interests

Approach prior to the decision of the High Court in Stanford v Stanford (2012) 247 CLR 108

Stanford v Stanford (2012) 247 CLR 108

Summary of current position

Existing property interests of parties

Property Schedule

Comments on the property schedule

Disputed items – overview

Legal fees – overview

Calculation of the spouses' entitlements in the Trust

Items #4: Shares in SPL

Items #9(a), (b) and (c), #14, #20, #21 and, #53: the former matrimonial home sale proceeds, moneys received by spouses and adjusted liabilities

Items #15 and #16: Debt to AF Funding and allocation for living expenses

Item #17: Wife's outstanding tax liability (SPL)

Item #22: Husband's income tax liability

Item #23: Loan from [Ex]

Items #24 to #28 (inclusive): Husband's credit cards

Item #31: BP, BC

Items #51 and #61 – GPL asset and liability

Item #57: Loan account of the husband's father

Items #55 and #56: AC's loan accounts

Items #48, #49 and #50: CS&M loan accounts

Items #7 (and #58) and #19 (and #47): The spouses' loan accounts

Items #52, #59 and #60: "Minor loan accounts"

Line items 79 to 97 (inclusive) in exhibit J5: Legal fees and associated liabilities

Line items 102 and 103 in exhibit J5: "Tacked on" items

Effect of the exacerbating factors

Preliminary Considerations

Contributions

Conclusion regarding the spouses' respective contributions

Section 75(2) factors

Wastage/Kowaliw

Age and state of health

Income, property and financial resources, earning capacity and capacity for employment

Other factors

AF Funding debt – living expenses

Husband's credit card liabilities

ADT

Moneys received from the wife's previous solicitor

Overview of the previous four items

Costs of vesting the Trust

Additional factors raised in WFS

The legal costs incurred by the Trust

The costs charged by Mr Barton

The sale of the C properties

Distributions made to Ms Leva and her family by the Trust

The impact of the way in which the husband has run his case

Conclusions regarding the s 75(2) factors

Just and equitable?

Structure of the Orders

Vesting

GPL's loan accounts

Proceeds of sale of the former matrimonial home

Previous orders regarding categorisation of lump sum payments to the spouses

Further payment of $734,860 to the wife

Fate of the spouses' Super Fund

SPL shares

Other orders

Costs

Conclusion regarding orders

ANNEXURE A

ANNEXURE B

ANNEXURE C

ANNEXURE D

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Preamble

1These Reasons comprise the 14th judgment (at first instance or on appeal) handed down in these proceedings – which commenced in this Court over 10 years ago. Because much of the terrain comprising the bleak landscape of the case has been fought over many times, I am reluctant to embark upon the task of mapping it from the outset. Instead, I shall assume that the reader has a working knowledge of the most significant of the previous 13 judgments.

2The previous judgments are these:

a)Crisford J's Reasons delivered 10 April 2008 ([2008] FCWA 40);

b)Crisford J's Reasons delivered 18 December 2008 ([2008] FCWA 148 – "the 2008 trial judgment");

c)Crisford J's Reasons delivered 29 April 2009 ([2009] FCWA 42);

d)Crisford J's Reasons delivered 10 September 2009 ([2009] FCWA 119);

e)Reasons of the Full Court (comprising Warnick, Boland and Thackray JJ) delivered 29 March 2010 ([2010] FamCAFC 62 – "the 2010 appeal judgment");

f)Reasons of the Full Court (comprising Boland and Thackray JJ – Warnick J having retired after the delivery of the 2010 appeal judgment) delivered 5 November 2010 (dealing with the issue of costs arising from the 2010 appeal judgment) ([2010] FamCAFC 222);

g)Crisford J's Reasons delivered 9 December 2011 ([2011] FCWA 89 – "the 2011 trial judgment");

h)Crisford J's Reasons delivered 11 January 2012 ([2012] FCWA 1 – "the stay judgment"); and

i)Reasons of the Full Court (comprising Bryant CJ, Finn and Strickland JJ) delivered 11 April 2013 ([2013] FamCAFC 60 – "the 2013 appeal judgment");

j)my Reasons delivered 10 February 2015 ([2015] FCWA 15 – "the interpretation judgment");

k)Reasons of the Full Court (comprising Bryant CJ, Finn and Strickland JJ) delivered 18 June 2015 (dealing with the issue of costs arising from the 2013 appeal judgment) ([2015] FamCAFC 117 – "the 2013 appeal costs judgment");

l)my Reasons delivered 14 November 2016 ([2016] FCWA 106 – "the recusal judgment"); and

m)Reasons of the Full Court (comprising Bryant CJ, Ryan and Moncrieff JJ) delivered 30 June 2017 ([2017] FamCAFC 112 – "the recusal appeal judgment").

3Given the enormous quantity of material presented to the Court, it is impossible to deal with every argument or difference of opinion raised or expressed by the parties. More importantly, it is not necessary to do so. If I do not make mention of a specific document, or refer to some other form of evidence, it is because I have formed the view that it is unnecessary to do so. However, I have done my best to deal with the evidence I consider to be relevant to the parties' dispute.

4It is not my role to restate all the evidence before the Court. Still less is it my role to "chase every rabbit down its burrow". I accept, however, that it is my role to resolve the parties' dispute within the parameters of their respective cases and in accordance with the Court's jurisdiction and powers. I accept, as well, that I am obliged to provide reasons for the decision I have reached and that those reasons should reveal why I have decided the case in the way I have. The reasons should also disclose that justice has been done.

5Further to the above comments, I refer to the well-known passage from the decision of Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385:

[The judge's duty to state his reasons for deciding as he/she does] does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing: R v Barnet London Borough Council; Ex parte Nilish Shah [1983] 2 AC 309, at 350. A judge will, of course, appreciate the possibility of points being taken or decided on appeal which were not taken or decided below and for this reason he may decide, and give reasons for his decision on, matters which in strictness he need not decide.

However, the decision of a particular submission may be an essential part of the judge's reasoning to his final conclusion. This may be so because it is necessarily so, ie, because he cannot come to his final conclusion without deciding it; or because the reasoning which in fact he follows makes it so. In such a case, the duty of the judge will vary according to the way in which the case has been conducted and according to the reasoning which he has followed. Ordinarily he may confine his attention to the points which have been taken and the submissions made in relation to them. (I put aside cases involving, for example, constitutional or jurisdictional issues, where special considerations may apply.) In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.

Abbreviations and other terms used

6In these Reasons, and unless otherwise indicated:

a)all statements of fact comprise findings of fact;

b)I have referred to the applicant and the first respondent as "the wife" and "the husband" (and I mean no disrespect by doing so), because it is less confusing than referring to them in other terms;

c)I have referred to the husband and the wife (jointly) as "the spouses";

d)I have referred to the spouses' former matrimonial home at [Suburb S] as "[the former matrimonial home]";

e)I have referred to the husband's mother, Mrs [Angelina Charisteas] as "AC";

f)I have referred to [XYZ Trust] as "[the Trust]";

g)I have referred to [G] Investments Pty Ltd (which is the only corporate beneficiary of the Trust) as "GPL";

h)I have referred to the third respondent, [XYZ Pty Ltd] (as trustee for the Trust) as "[XYZPL]";

i)because the second, third, fourth and fifth respondents were all represented by the same solicitors and counsel, and because their interests in the proceedings were in harmony and their cases were conducted concurrently, I have referred to them (collectively) as "the additional parties";

j)because the interests of the sixth, seventh and eighth respondents (who are the spouses' adult children) were also in harmony, and their cases were conducted in parallel, I have referred to them (collectively) as "[CS&M]";

k)I have referred to the five member family unit comprising the spouses and CS&M (and only the spouses and CS&M) as "the immediate family" (and, accordingly, to the spouses and CS&M collectively as "the immediate family members");[1]

[1] Clearly, AC and the husband's sister, Ms [Leva], are not part of the immediate family as I have defined it.

l)I have referred to the business styled "[X] Liquor Store" as "the Liquor business", and to the premises from which the Liquor business was conducted as "the Liquor Store Premises";

m)I have referred to the commercial property at [C]as "[the C properties]";

n)where necessary, I have referred to the properties in [B] as "[Property A]", "[Property B]", "[Property D]" and "[Property E]";

o)I have referred to the [GC & SC] Superannuation Fund as "the spouses' Super Fund";

p)I have referred to [S] Holdings Pty Ltd as "[SPL]";

q)I have referred to the [AD] Trust as "[ADT]" and the trustee of ADT, [AW] Pty Ltd, as "[AWPL]";

r)I have referred to the particulars of accepted/challenged findings provided by the wife, the husband and the additional parties pursuant to the orders made on 22 March 2016 and 17 May 2016 as each party's "schedule of accepted findings";

s)I have referred to the merged particulars of accepted paragraphs/findings – being the paragraphs/findings contained in the 2011 trial judgment that have been accepted by the wife, the husband and the additional parties – as "Annexure A";[2]

t)I have referred to the orders made by Crisford J on 9 December 2011, pursuant to the 2011 trial judgment, as "the 2011 property orders";

u)I have referred to the parties' written closing submissions in the manner described below;

v)I have referred to the trial conducted before me in the second half of 2016 as "the 2016 trial";

w)I have referred to [AF] Funding Ltd (formerly [I C] Ltd) as "[AF] Funding";

x)I have referred to the previous judgments delivered in these proceedings in the manner described in the Preamble to these Reasons;

y)I have referred to all affidavits filed by or on behalf of the parties or witnesses as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides, among other things, that "to swear" includes "to affirm"); and

z)unless otherwise indicated, references to legislation are references to the Family Law Act 1975 (Cth) – although, when necessary, I have referred to this enactment as "the Act" or "FLA".

[2] Annexure A is attached to and forms an integral part of these Reasons.

7Most of the parties provided detailed written closing submissions. The husband and the additional parties also provided written submissions in response to the wife's written submissions. The submissions provided were as follows:

Date of written submission	Provided on behalf of:	Abbreviation
31 August 2016	The husband	"HFS 1"
24 August 2016	The Trust and AC	"TFS 1"
24 August 2016	CS&M	"EFS"
7 September 2016	The wife	"WFS"
12 September 2016	The husband (in response to WFS)	"HFS 2"
Undated	The Trust and AC (in response to WFS)	"TFS 2"

8According to Mr Dowding SC and Mr Penglis (who appeared for the husband and the additional parties respectively), HFS 2 and TFS 2 were prepared for the purpose of shortening the hearing on 13 September 2016. They said that all they had done was "put in writing what we would otherwise submit orally": see 13 September 2016 transcript at 16-17.

Introduction

Overview

9The cast in this saga is large. The husband, [Mr Charisteas], and the wife, [Ms Charisteas], are aged approximately 64 and 57 respectively. They married [in] 1979 and separated finally in early 2005. They divorced in May 2007.

10It is important to record that there were significant difficulties in the spouses' marriage for a lengthy period prior to their final separation. These difficulties date from the beginning of 1997 (if not earlier).

11The spouses continued to live in the former matrimonial home [in] Suburb S ("the former matrimonial home") from the date of final separation until the husband moved out in November 2006 – a period of just under two years.

12The spouses have three children: [E Charisteas] (who is now approximately 36) and twins, [Ms Solano] and [Ms Magnoli ] (who are now approximately 35). As I have said, I shall refer to them (collectively) as "CS&M" – and I mean them no disrespect by doing so.

13CS&M continued to live with the wife at the former matrimonial home after the husband moved out. They are aligned with their mother and estranged from their father. They are also estranged from their paternal grandmother – who is herself party to these proceedings.

14The husband's father died in February 2008, aged 80. The executors of his estate are [Lewis Barton] and the husband's mother, Mrs Angelina Charisteas ("AC"). In their roles as the executors of the estate of the husband's father, they are the second respondents in these proceedings.

15XYZ Pty Ltd ("[XYZPL]") is the third respondent. XYZPL is the trustee for the XYZ Trust ("the Trust"). The Trust was settled in June 1985 and is currently due to vest in June 2064. The husband was the original guardian and appointor of the Trust. The specified beneficiaries of the Trust are the immediate family members: the husband, the wife and CS&M. The husband's father was a general beneficiary of the Trust prior to his death. AC, and the husband's sister, [Ms Leva], remain general beneficiaries of the Trust.

16The property orders made by Crisford J pursuant to the 2011 trial judgment ("the 2011 property orders") included a provision requiring XYZPL to exercise its powers under the Trust's deed of settlement to bring forward the vesting date of the Trust from June 2064 to 30 June 2010. The Full Court set that provision aside when it allowed an appeal against paragraphs 2, 3 and 4 of the 2011 property orders on 11 April 2013: see the 2013 appeal judgment.

17Where appropriate, I shall refer to the orders contained in paragraphs 2, 3 and 4 of the 2011 property orders as "the early vesting orders".

18The fourth respondent is Mr Barton. Mr Barton is a director of the accounting firm [BP] Pty Ltd. He is also a director of XYZPL, and has been since 2006.

19The fifth respondent is AC. AC is approximately 86. Like Mr Barton, she has been a director of XYZPL since 2006.

20Although not a party to the proceedings, the husband's sister, Ms Leva, has had some involvement with the case. She did not participate in the 2016 trial.

Introductory comments regarding the husband (including as a witness) and, briefly, regarding the wife

21In the recusal judgment at [54], I said of the husband as a witness:

… he was confident to the point of being supercilious, and rarely made any attempt to disguise his attitude of condescension towards the wife. I am satisfied that he is a shrewd businessman, who was nimble in his attempts to pre-empt and avoid questions which he perceived might harm his case. He was not a credible witness. I am more than satisfied that he was capable of the type of chicanery attributed to him by the wife and his children.

22I do not resile from those comments. Indeed, in my opinion the husband also presents as opinionated, controlling and vindictive.

23As I shall explain in these Reasons, the husband involved himself (and others) in various machinations that occurred in 1997, and at other times, when he perceived the wife may be minded to make a claim to the assets of the Trust. These machinations comprised part of an elaborate, cynical and extended ruse or game plan intended to give the (false) impression that the husband was not, or was no longer, in control of the Trust. They were also intended to defeat, neutralise or frustrate anticipated orders in any property settlement proceedings which the spouses or either of them may commence or pursue. I shall refer to this extended ruse or game plan as "the Stratagem". The expression "chicanery" used in the passage from the recusal judgment quoted above refers to the Stratagem.

24The husband submits that "the wife's conduct of the proceedings has extended the period of litigation and… caused the parties considerable financial loss": see HFS 1 [6]. I disagree. The genesis of the most significant complexities in the proceedings is the Stratagem, together with the husband's grim determination to unsettle the wife (as a litigant) in the hope that she would eventually conclude that the game was not worth the candle.

25No doubt, all parties' conduct as litigants will be considered when and if an application for costs is made – along with all other relevant factors.

26Although no serious attack was mounted on the wife's credibility, I will record that she was an impressive witness. I accept that she did her best to honestly recall events which have happened over an extended period of time, and to give explanations when called upon to do so. That is not to say that she was incapable of making errors about some things (for example, where she may have been mistaken or where her memory may have been lacking). By and large, however, I accept her evidence as truthful and accurate. I have no hesitation in preferring her evidence where it conflicts with that of the husband (and, for that matter, where it conflicts with that of AC – and, where appropriate, the husband's father).

AC

27AC gave evidence in the 2016 trial. She had sworn a lengthy and detailed affidavit on 31 January 2011, which affidavit was re-sworn on 10 February 2011. According to a jurat on p 35 of the affidavit, it was "translated and read" to her in [Bulgarian] on both 31 January 2011 and 10 February 2011. As mentioned below, and according to the translator's jurat, only five of the dozens of annexures to the affidavit were translated and read to her in Bulgarian.

28AC also swore a financial statement on 31 January 2011. She affirmed both the affidavit and the financial statement on 10 March 2011, when giving evidence during the 2011 trial.

29Both the affidavit and the financial statement were included in the list of affidavits relied upon by the additional parties in their papers for the judge for the 2016 trial. The Court received the additional parties' papers for the judge on 26 July 2016.

30AC gave evidence in the 2016 trial on 11 August 2016. As will shortly become apparent, I have grave concerns regarding her evidence and am not prepared to place any weight on it. Indeed, I am reluctant to describe the matters deposed to in her affidavit as "her evidence", because I am more than satisfied that it was not. In this regard, I refer to WFS [52] and [53].

31In the recusal judgment, I said of AC:

56.…I have absolutely no doubt that [she] had no real understanding of many of the matters set out in her affidavit. That was abundantly clear to me from her evidence (which was given through an interpreter on the seventh day of the trial, 11 August 2016). I do not resile from any of the comments I made [during the trial] regarding the evidence of [AC], including the comments I made regarding the propriety and manner of the preparation of her affidavit.

57.… Among other things, the suggestion was made that [AC]'s recollection and comprehension skills may have deteriorated since she swore her primary affidavit some five years earlier. I reiterate, however, the following comments…:

[The] person who called [AC] had every opportunity to ask her to affirm her affidavit to obtain evidence from her that perhaps her recollection had deteriorated over the years. Nothing was done in that regard. …

…

… [These] parties have had the best legal advice money can buy. A king's ransom has been spent on legal fees. Decisions have been made. No attempt was made to lead evidence regarding any change in her mental capacity over the past five years …

58.[AC] is an elderly woman. Her English is poor. To put it as gently as possible, she is an unsophisticated person, with only the most rudimentary understanding of business or financial matters. I am satisfied that she had no genuine understanding of the comparatively complex financial matters dealt with in her affidavit and the commercial documents attached to it. There was simply no credible evidence before me that her understanding of those matters was or could possibly have been any better when she swore her affidavit. That is not to say, of course, that she could not have given instructions regarding "family" matters, such as her background, her relationship with her late husband and their efforts over the years to improve their financial position and support their children. I accept that she did give instructions in relation to such matters, to the extent that she was able to do so. But I have no hesitation in finding that a significant proportion of the matters deposed to in her affidavit (relevantly, those areas of the affidavit dealing with financial and commercial matters) could not have been sourced in her instructions. To put it bluntly, much of the affidavit was constructed by others and did not properly comprise evidence she was capable of giving. I do not know from whom the instructions relating to the financial and commercial matters contained in the affidavit came, but they did not come from [AC]. If the legal practitioner who caused the affidavit to be sworn and filed in these proceedings was aware of that fact, then such actions comprise (at the very least) a serious neglect of that practitioner's professional obligations and duties as an officer of the court.

59.Much was made (or attempted to be made) of [AC]'s anxiousness at the commencement of her evidence and alleged problems regarding the interpreter. I have not ignored those factors. The fact of the matter is, however, that [AC] soon settled into giving her evidence and the interpreter assured the Court (after some initial problems) that she and the witness could understand each other without difficulty. I find that these factors had absolutely nothing to do with [AC]'s lack of knowledge and lack of understanding of the financial and commercial matters set out in her affidavit.

32Some of the previous judgments include observations to the effect that the husband's father could speak but not write in English, and that AC spoke in Bulgarian and had difficulty speaking in English. Similarly, observations were made to the effect that the husband's parents relied on the husband and his sister for assistance with financial documents and other arrangements, including their dealings with banks, doctors and accountants.

33As I have said, a large number of the annexures to AC's affidavit were not translated to her when it was re-sworn on 10 February 2011. Counsel for the wife in the 2011 trial did not apply to strike out the annexures that had not been translated: see 9 March 2011 transcript at pp 78-9. Instead, he made the following submission:

… I do point [to the fact that many of the annexures have not been translated] and draw it to your Honour's attention about possibly the weight that can be attached to the evidence which relies on the documents where the witness hasn't actually been comprehended (sic) to her what the documents actually are. So I simply make the point, really, as a matter of weight at this point.

34Crisford J accepted that it was appropriate for the wife's counsel to raise the point. Her Honour added (9 March 2011 transcript at p 79):

… I think we should deal with it this way: when [AC] is being cross-examined, if she is cross-examined on any particular document that appears to me to assume some relevance and which has not been translated, then we are going to have to go through the step of having it translated. I cannot see that will arise.

35Her Honour also accepted that it would have been "ridiculous" to have a large number of the documents translated: 9 March 2011 transcript at p 79. Her Honour was clearly referring to formal commercial or conveyancing documents such as transfers, mortgages, certificates of title and the like, as the submissions from counsel for the husband and counsel for the additional parties make clear: 9 March 2011 transcript at pp 78-9.

36AC was cross-examined on the following day (10 March 2011): see 10 March 2011 transcript at pp 20-29. As I have recorded, she affirmed her affidavit sworn 31 January 2011 (and re-sworn on 10 February 2011) and her financial statement sworn on 31 January 2011. She had no recollection of a number of matters, some of which had been dealt with in her affidavit sworn only a month earlier. Other questions elicited confused or garbled answers. For example:

Counsel for the wife: … [AC], as far as you know did your husband discuss with you throughout your marriage the contents of any wills he made?

AC (via interpreter): Yes. Yes. He was telling her everything. She was trusting him and she believed in him.

Counsel for the wife: And, [AC], are you able to recall whether your husband wanted to leave [XYZ] to [Mr Charisteas] and [Mr Charisteas'] three children before the Family Court litigation started?

AC (via interpreter): Yes. Yes.

Crisford J: Can you make sure that you translate every word of that if possible? You might have to break it down, but I would like to hear the translation of that?

AC (via interpreter): Yes. Yes. Yes, she said, yes, but at that time we liked each other, but after that [Mr Charisteas'] children didn't come to funeral or their grandfather and they didn't come and they don't come to see their grandmother and also they didn't tell the grandma that one of the girls is engaged and because of that she's very upset and she made her decision.

37It is clear from the above that, in this example, AC was confused about whose wishes formed the subject of the question. Alternatively, she appears to have conflated her late husband's wishes with her own.

38It is also clear from AC's inability – at that stage – to answer questions which required an explanation (as opposed to leading questions) that she did not have the knowledge or the recollection, or both, necessary to have given instructions for the preparation of her affidavit. The following extract from the 10 March 2011 transcript at p 28 provides a good example (references to Mr Charisteas and Lewis Barton are references to the husband and Mr Barton respectively):

Counsel for the wife: [AC], do you know anything about a $2.7 million loan facility obtained by the trust, the [XYZ] Trust, in 2005?

AC (via interpreter): Yes.

…

Counsel for the wife: [AC], do you have an understanding of the 2005 loan arrangement at the time it was made?

AC (via interpreter): Was her husband alive then, 2005?

Counsel for the wife: Yes?

AC (via interpreter): She can't remember because her husband was doing everything.

Counsel for the wife: Would it be fair, [AC], to say that you relied entirely on your husband and [Mr Charisteas] regarding financial matters?

AC (via interpreter): Yes, her husband was doing that.

Counsel for the wife: So is it your understanding, [AC], that your husband was directly involved in the 2005 loan arrangements for [XYZ]?

AC (via interpreter): Yes, he was doing everything. He trusted him, whatever he was doing.

Counsel for the wife: Do you agree, Ma'am, that [Mr Charisteas] presented you with the business opportunity to lend money to the [RB] Family Trust?

AC (via interpreter): Can you please repeat the name of the trust?

Counsel for the wife: [RB] Family Trust?

AC (via interpreter): No, [Mr Charisteas] didn't tell her anything.

Counsel for the wife: Who told you, [AC], about the opportunity to lend money to the [RB] Family Trust?

AC (via interpreter): Ms [Charisteas] talk with [Mr Barton] and she talk with [Mr Charisteas], and they found that and that was [Mr Charisteas’] work, that was [Mr Charisteas’] job, actually, and they put all the money there.

39References to AC's capacities also appear in the interpretation judgment at [199] to [226], under the heading The Leva application (being a reference to an application filed on 8 October 2014 seeking, among other things, the appointment of the husband's sister as an additional director of XYZPL). Obviously, the interpretation judgment was written well before the 2016 trial commenced.

40Extraordinarily, the only reason given by AC in her affidavit in support of the Leva application for seeking to appoint her daughter as a third director of XYZPL (in addition to AC and Mr Barton) was so that AC could "mentor her in the duties as a director and the operation of [the Trust] as part of (her) succession planning".

41The wife's argument in relation to this subject was summarised in the interpretation judgment at [213]:

The wife argues that [AC] is not in a position to "mentor" Ms [Leva] as "she herself, by reason of her language limitations, limited education and lack of business experience and sophistication lacks the ability to manage [the Trust]". She points out that [AC] "has previously given evidence in these proceedings that she relies on [Ms Leva] to assist her with daily activities including banking, shopping etc".

42The following passages from the interpretation judgment bear repeating at this stage:

210.During the course of argument on 9 December 2014, [AC's solicitor] said that "it is difficult for [AC] to talk to Mr [Barton]" (who is the other director of [XYZPL]) and that Ms [Leva] is "often involved in those meetings", and "she (Ms [Leva]) wants to become a director". He also suggested that it was some form of infringement of [AC's] "rights" to be restrained from appointing Ms [Leva] a director of [XYZPL] if she wishes to do so.

211.[AC's solicitor] explained that [AC's] communication difficulties with Mr [Barton] stem from language difficulties ([AC] speaks [Bulgarian] and [Italian] and has limited English language skills) and not from any form of friction between them.

…

221.… [AC] provided three "justifications" for the proposed appointment of Ms [Leva] as a director of [XYZPL]: the first related to "mentoring" and "succession planning" and was referred to in the affidavit filed [by AC] in support of the [Leva] application. The second related to communication difficulties with the other director (Mr [Barton]) and the third related to [AC's] "rights" to do as she sees fit. The second and third justifications were first mentioned at the hearing.

222.It is apparent from [AC's solicitor's] submissions that Ms [Leva] already attends meetings of the directors of [XYZPL] with [AC], and that she assists [AC] at those meetings by interpreting for her when necessary. It is also apparent from [AC's solicitor's] submissions that Ms [Leva] "wants" to be a director, as opposed to [AC] wishing to appoint Ms [Leva] to "mentor" her. I infer from [AC's solicitor's] submissions, from the affidavit material relied upon in support of the [Leva] application and from the previous judgments (both at first instance and on appeal) in these proceedings, that Ms [Leva] is already very familiar with the structure and functioning of [XYZPL] and the Trust. It is difficult to see, therefore, why she needs to be appointed as a director for her mother to "mentor" her in the manner suggested (if, indeed, [AC] is capable of "mentoring" Ms [Leva] at all).

223.As for [AC's solicitor's] submission regarding the "rights" of [AC], little needs to be said apart from observing that those rights are subject to the powers of the Court, properly exercised.

43Having seen and heard AC give evidence during the 2016 trial (and taking into account the matters discussed above), I have not the slightest doubt that she could never have mentored anyone in relation to the duties of a director and the operation of the Trust. She had no understanding of them herself – whether at the time she swore her affidavit for the 2011 trial, in 2014, at the time of the 2016 trial, or at any other time.

44In TFS 2 [19], it is submitted as follows:

The fact that someone in her eighties, her first language is [Bulgarian], has limited command of English and received little formal education, all of which causes her to rely upon guidance and assistance from others, is wholly irrelevant to whether or not she is the controller of the Trust's assets (which is a mixed question of law and fact). To say that such a person cannot be the controller of the assets of the Trust is both wrong in law and highly discriminatory.

45The Court regards this submission as both misconceived and unnecessarily disrespectful. At heart, it amounts to what is known as a straw man argument, in that it purports to refute an argument that was never made. AC's age, language difficulties and educational limitations, and their relevance, have been discussed in these Reasons. To suggest that those matters, in themselves and without more, "cause her to rely upon guidance and assistance from others" is disingenuous and flies in the face of the other evidence before the Court.

46It was never submitted or implied that a (hypothetical) person of AC's age, language difficulties and educational limitations cannot be the controller of trust assets. It is abundantly clear to the Court, however, that AC, herself, is not and never has been the controller of the Trust's assets.

47Notwithstanding the various arguments put forward in closing submissions and the focused submissions presented by Mr Donaldson SC on 13 September 2016 (on behalf of the additional parties' solicitor), I do not resile from the findings I made in the recusal judgment regarding AC's lack of knowledge about and inability to understand the financial and commercial matters deposed to in her affidavit – including at the time she swore it. I give absolutely no weight to those matters, which could not have been sourced in instructions provided by her.

48Further, and as summarised in WFS [52] and [53], AC's lack of understanding of commercial and financial matters extended well beyond the matters deposed to in her affidavit and the structure and functioning of the Trust.

49It is lamentable that – as appears to be the case – a legal practitioner, or practitioners, caused or permitted:

•AC to swear her 2011 affidavit;

•the affidavit to be filed; and

•the affidavit to be relied upon in these proceedings (including in the 2011 trial and the 2016 trial).

50In my opinion, such actions are disreputable, and comprise a serious neglect of the practitioner's, or practitioners', professional obligations and duties, including as an officer, or officers, of the Court.

51So concerned am I by the actions of the relevant legal practitioner or practitioners that I propose to refer a copy of these Reasons to the Legal Profession Complaints Committee, which has statutory responsibility under the Legal Profession Act 2008 (WA) for supervising the conduct of legal practitioners in Western Australia.

Mr Barton

52In the recusal judgment at [65], I said that Mr Barton, like the husband, was an unimpressive and unreliable witness. I added, at [66], that I regarded parts of Mr Barton’s evidence as disingenuous, if not deceitful. I do not resile from those findings.

53Indeed, I regard Mr Barton as little more than a stooge. Save for meeting the husband on one occasion at a professional conference some six months earlier, Mr Barton had no previous contact (let alone professional dealings) with the family until solicitors auditioned him at the end of 2006 for the roles he eventually played in these proceedings.

54The husband filed his initiating application on 18 August 2006. The wife filed her response on 4 October 2006.[3] Shortly thereafter, Mr Barton was cold called by representatives of Kim Wilson & Co, who asked him to come in for "an interview". He had never communicated with either of the representatives from that firm before, and he was not told what the interview would be about: see 12 August 2016 transcript at 65-6.

[3] These documents have been amended as the proceedings have progressed.

55Mr Barton said that he was introduced to the husband's father shortly after the interview. Clearly, he knew nothing of the family's history prior to that time.

56On 23 November 2006, formal steps commenced to involve Mr Barton in the Trust's affairs: see the additional parties' chronology, items 163-8.

57It follows that Mr Barton was well and truly "on the scene" when the husband's father swore his affidavit on 19 December 2006. Mr Barton confirmed that he read the affidavit shortly after it was sworn.

58It was around this time that Mr Barton "retrieved" the corporate records of XYZPL and AWPL from the husband.

59Despite his formal involvement in the case as, among other things, a trustee of the estate of the husband's father, I am satisfied that his real role was to "run interference" (to use an American colloquialism).

60I note that the solicitors who auditioned him at the end of 2006 were then the solicitors for the parties that became the second, third, fourth and fifth respondents in these proceedings (although the husband's father had not yet passed away at that stage and, of course, Mr Barton had yet to begin performing the role allocated to him). In my opinion, it was no coincidence that the same firm had represented Mr [LM] (the late father of the wife and her estranged brother, [GM]) in the complex property proceedings in this Court between GM ("GM") and his former wife: see [M] v [M] [citation omitted]; see also the 2011 trial judgment at [415]. I shall refer to these proceedings, and Penny J's judgment, as "the [M] proceedings" and "the [M] judgment" respectively.

61As I have explained below, GM was a close friend of the husband in these proceedings. The evidence reveals that the husband discussed his brother-in-law's Family Court proceedings with him, in detail, on a number of occasions.

62It is clear beyond argument that Mr Barton’s evidence "could not establish the facts concerning the method of acquisition of trust assets prior to his appointment". Indeed, this was conceded by Mr Penglis on behalf of the additional parties: see the recusal appeal judgment at [72]. Even if I regarded Mr Barton as a credible witness (which he was not), his evidence about this subject can be given no weight.

63Having regard to some of the matters argued in the appeal from the recusal judgment, it should be noted that Crisford J also commented on the hearsay nature of certain of Mr Barton’s evidence. For example, in the 2008 trial judgment, her Honour said at [120]:

… Although I consider [Mr Barton’s] evidence was relevant it was clearly of a hearsay nature and thus inadmissible. I was not pointed to any exception to the rule against hearsay such that it became admissible. …

64The additional parties suggested on more than one occasion that evidence elicited from Mr Barton in cross-examination somehow became evidence led by the wife and upon which she was compelled to rely: see, for example, TFS 2 [37]. I reject this suggestion and need say no more than it reflects what appears to be a fundamental misunderstanding of the nature of both the law of evidence and the trial process.

65In the recusal appeal judgment at [69] and [70], their Honours record two exchanges that occurred during Ms Anderson's cross-examination of Mr Barton. I do not propose to reproduce those exchanges in these Reasons, but they make clear (as did other evidence given by Mr Barton) that – to the extent weight can be given to anything Mr Barton said – he saw his primary roles as trustee of the Trust (or, more accurately, as a director of XYZPL) as being to –

a) "help protect AC" after the death of her husband; and

b) "protect the Trust".

66Mr Barton’s roles were, and are, expansive: see WFS [71] and [72]. In cross-examination, however, he said his "main job" was to "look after the matters in relation to taxation and accounting". He added that, in addition (12 August 2016 transcript at p 73):

I had to help protect [AC]. [The husband's father] explained to me that all the assets of the trust were generated by he and [AC]. And he wanted me to protect [AC] after he died.

67The above comments reveal that, even if it might be perceived that he was acting independently (which I do not accept), Mr Barton fundamentally misunderstood his role as trustee of the Trust – or, again more accurately, as director of XYZPL qua the Trust's corporate trustee.

68In a paper entitled "A trustee's lot is not a happy one: Discretionary trusts and self-managed superannuation funds" (2010) 34 Australian Bar Review 25, Brereton J discussed (among other things) the general duties of trustees, including trustees of discretionary trusts:

a)Under the heading Duty to act impartially between the beneficiaries, his Honour wrote (footnotes omitted):

Article I. This duty is perhaps more relevant where there are different types of beneficiaries… In a case such as this, the trustee has a duty to avoid actions which benefit one class of beneficiaries at the expense of other classes. It does not mean that the trustee of a discretionary trust must treat all potential beneficiaries equally.

b)Under the heading Duties of trustees in respect of discretionary powers, his Honour cited a lengthy passage from Re Hay's Settlement Trusts [1981] 3 All ER 786, which passage includes the following (again, footnotes omitted):

Article II. … Whereas a person who is not in the fiduciary position is free to exercise the power in any way that he wishes, unhampered by any fiduciary duties, a trustee to whom, as such, a power is given is bound by the duties of his office in exercising that power to do so in a responsible manner according to its purpose. It is not enough for him to refrain from acting capriciously; he must do more. He must "make such a survey of the range of objects or possible beneficiaries" as will enable him to carry out his fiduciary duty. He must find out "the permissible area of selection and then consider responsibly, in individual cases, whether a contemplated beneficiary was within the power and whether, in relation to the possible claimants, a particular grant was appropriate"…

Article III. …

Article IV. [Thus] the duties of a trustee which are specific to a mere power seem to be threefold. Apart from the obvious duty of obeying the trust instrument, and in particular of making no appointment that is not authorised by it, the trustee must, first, consider periodically whether or not he should exercise the power; second, consider the range of objects; and third, consider the appropriateness of individual appointments.

c)His Honour also made the following observations:

i)The trustee's discretion "must be exercised with honesty and with a consideration of the issues and options available and determining the best course of action".

ii)Although the trustee's discretion cannot be impugned on the basis that it was "unfair, unreasonable or unwise", it can be impugned if it was exercised "in bad faith, arbitrarily, capriciously… wantonly, irresponsibly, mischievously or irrelevantly to any sensible expectation of the settlor… or without giving a real or genuine consideration to the exercise of the discretion": see Attorney-General (Cth) v Breckler (1999) 197 CLR 83.

d)Finally, under the heading Conclusion, his Honour said:

Article V. The convenience of discretionary trusts, and the wide powers they confer directly on trustees and indirectly on appointors, should not be allowed to mask the considerable obligations that a trustee assumes.

69I shall refer to Brereton J's paper referred to above as "the Brereton article".

70Assuming he was acting independently (which assumption I reject), the above references support my finding that Mr Barton fundamentally misconceived his role as director of XYZPL as trustee for the Trust. That he had been given instructions by the husband's father (who was not the Trust's settlor) to "protect" AC – or, for that matter, to "protect the Trust" – was irrelevant to the performance of his fiduciary duties.

71Mr Barton was not the agent or delegate of the husband's father, and he was obliged to act impartially between the beneficiaries. He could not flagrantly favour one beneficiary over the others because he had been directed to do so by the husband's father (or by the husband, or anyone else), or because, through some misguided sense of loyalty, or any other reason, he believed he was obliged to do so; nor could he unashamedly discriminate against one or more of the specified beneficiaries.

72The exchange recorded in the recusal appeal judgment at [70] shows that Mr Barton was involved in the decision to appoint AC as a director of XYZPL. He agreed that she should be appointed as a director, but for reasons that were unrelated to the welfare or best interests of the specified beneficiaries of the Trust. He said the decision was made jointly by the husband's father and himself, and that it was made in spite of AC's language difficulties and "educational background". I am satisfied that it was also made in spite of AC's lack of knowledge and understanding of business and financial matters as discussed under the subheading AC above.

73In TFS 2 [30], it is submitted that:

… whether Mr [Barton’s] explanation for decisions in relation to the Trust (namely that he was carrying out the husband's late father's wishes) is or is not a proper basis for making decisions as a director of the trustee company, the fact is that it is wholly inconsistent with the wife's case that Mr [Barton] is in effect the husband's puppet.

74This submission assumes that the Court accepts Mr Barton’s explanation to the effect that he was carrying out the wishes of the husband's father. That is not a safe assumption. Even if it were, the circumstances of Mr Barton’s appointment and the directions he allegedly received from the husband's father (or from anyone else) do not prevent the Court from concluding – as it has – that Mr Barton is the husband's puppet. He is no less a puppet if the husband caused or permitted someone else to pull his strings. Similarly, and to stretch the analogy a little further, he is no less a puppet if the husband (or someone else on his behalf) wound him up like a wind-up toy and set him on his way.

75I am satisfied that Mr Barton did not have the freedom to act independently in the interest of all beneficiaries or potential beneficiaries of the Trust, and did not do so.

76In my opinion, Mr Barton’s–

a)actions in relation to the sale of the C properties and its aftermath and consequences;[4] and

b)persistence in pursuing the sale of the former matrimonial home (which is described in TFS 2 [36] as "implementing a course of action which the husband's father had initiated when he was alive"),

[4] This subject will be discussed later in these Reasons.

exemplify his lack of objectivity and impartiality. In this regard, and to the extent that they have not already been dealt with in these Reasons, I accept, and adopt, WFS [89(e)] and [90].

77Similarly, in WFS [96], it is submitted that Mr Barton justified pressing for the sale of the former matrimonial home "on the basis of wishing to make further investments" – in circumstances where those "investments" would have been made on the recommendation of the husband. There is much force in this submission, which reinforces the Court's findings regarding Mr Barton’s lack of objectivity and impartiality.

78As I shall presently explain, I am satisfied that the Trust and, necessarily, XYZPL, are entities which pretend to be what they are not (other than in the most formal, ritualistic sense), and that they are impostures. The Stratagem (as I have referred to it above) necessarily involved the erection and maintenance of a "false front". Mr Barton’s recruitment was an integral part of the Stratagem. Indeed, he conceded that appearances were an important consideration in the conduct of the Trust after his appointment. Further, and bearing in mind that the husband had managed the Trust's affairs for many years prior to Mr Barton’s recruitment from relative obscurity, it is extraordinary that Mr Barton would not have consulted with him at the earliest possible opportunity – and done so openly. In my opinion, the following extract from the 12 August 2016 transcript at p 69-70 is telling (emphasis added):

Ms Anderson: … What I'm asking you to consider is, did you resolve to… have a heightened care in carrying out your duties as trustee because of the position that you had been placed in, in the middle of this family dispute? In other words, you thought about it long and hard. Did you do that when you were put into this position, or you didn't give it any thought at all?

Mr [Barton]: I was given the full background of how the Trust was created, why it was created, from what assets it was created, as to what had happened from the inception of the Trust. I mean [the husband's father] gave me a full background on the whole lot.

…

Ms Anderson: And – and did you have a discussion with [the husband] about this?

Mr [Barton]: Not at all.

Ms Anderson: So, having been introduced by [the husband], referring to this role, having spoken to his father, having learned that there was a family dispute, you didn't have any discussions with [the husband]?

Mr [Barton]: Not with those initial discussions. But, I did subsequently with [the husband] because [the husband] had been paid $15,000 a year from 2000 and – sorry, from 1997 up until my appointment.… to carry out a role of management, give advice, etcetera, to the Trust.… He also looked after the mail, the books and made sure the bookkeeping got done and the BASs and all those things were lodged.

Ms Anderson: All of that, so I'm…?

Mr [Barton]: We chose – we made a conscious decision at that point in time, [the husband's father] and I, that nothing should change in regard to that. It would look like we're trying to change the circumstances. Ten years down the track maybe we should have. But, right now, that's what we did and we didn't change anything. We haven't changed assets or liabilities in the balance sheet, that's why the debt owing to [the husband's father] is still in the accounts 10 years on. So everything has remained the same, everything has been the way it was when [the husband's father] used to run the business.

e)having calculated the entitlement of each of the specified beneficiaries in accordance with (d) above, the Trustee must pay the city entitlements to the specified beneficiaries in the following manner:

i)to the wife: the wife's entitlement together with the whole of the husband's entitlement;

ii)to the sixth respondent: his entitlement;

iii)to the seventh respondent: her entitlement; and

iv)to the eighth respondent: her entitlement.

Proceeds of sale of former matrimonial home

15.The whole of the net proceeds of sale of the former matrimonial home situated at and known as [the former matrimonial home], together with all interest earned in respect thereof, be paid to the wife forthwith.

Further payment to the wife

16.By not later than 4 PM on Monday, 16 April 2018, the husband must pay to the wife the sum of $734,840 (which amount includes the sum of $1250 in respect of the unpaid costs order made 10 August 2015) ("the Main Payment").

17.Subject to paragraph 18 below, and if the husband fails or refuses to pay to the wife the Main Payment in accordance with para 16 above, then the husband must pay interest to the wife on the Main Payment, or so much thereof as shall remain unpaid, at the rate specified in or in accordance with s 117B(2)(b) of the Act and Rule 17.03 of the Family Law Rules – such interest be calculated from 16 April 2018 to the date of actual payment.

18.Notwithstanding para 17 above, in the event of the husband failing or refusing to pay to the wife the Main Payment in accordance with para 16 above, para 25 below be discharged forthwith and – without further notice to the Parties or any of them – para 26 have full force and effect and operate in substitution for para 25.

[S] Holdings Pty Ltd

19. Forthwith upon receipt of the Main Payment, the wife must:

a)transfer to the husband, or to his nominee, her shareholding in [SPL];

b)resign any office she may hold in [SPL] (including, but not limited to, the office of director of [SPL]); and

c)transfer and assign to the husband the whole of her share and interest in any loan account or indebtedness —

i)due or owing by her to [SPL]; or

ii)due or owing to her by [SPL].

20.The husband indemnify the wife and keep her indemnified from all debts, liabilities and obligations of the wife relating to or arising out of:

a)[SPL];

b)any security, charge, promise, personal guarantee or undertaking given by the wife to any bank, building society or other financial institution or commercial entity in relation to [SPL];

c)the property dealing, loans, undertakings, business or affairs of [SPL], including all taxation liabilities or duties (including income tax, capital gains tax and stamp duty and all penalties and interest not yet paid) hereafter assessed against the wife in respect of income (if any) derived by the wife from, or allocated to the wife by, [SPL];

d)any loan account or indebtedness due or owing by the wife to [SPL];

e)the creditors of [SPL]; and

f)all charges or other encumbrances affecting the plant and equipment or other property of [SPL];

and from all actions, proceedings, costs, claims and expenses in respect thereof.

21.By not later than 4 PM on Monday, 16 April 2018, the husband must pay to the sixth respondent, [E Charisteas] the sum of $265,433 ("the [S] Payment").

22.If the husband fails or neglects to pay to the sixth respondent the [S] Payment in accordance with para 21 above, then the husband must pay interest to the sixth respondent on the [S] Payment, or so much thereof as shall remain unpaid, at the rate specified in or in accordance with s 117B(2)(b) of the Act and Rule 17.03 of the Family Law Rules – such interest be calculated from 16 April 2018 to the date of actual payment.

23. Forthwith upon receipt of the [S] Payment, the sixth respondent must:

a)transfer to the husband, or to his nominee, his shareholding in [SPL];

b)resign any office he may hold in [SPL] (including, but not limited to, the office of director of [SPL]); and

c)transfer and assign to the husband the whole of his share and interest in any loan account or indebtedness —

i)due or owing by him to [SPL]; or

ii)due or owing to him by [SPL].

24.The husband indemnify the sixth respondent and keep him indemnified from all debts, liabilities and obligations of the sixth respondent relating to or arising out of:

a)[SPL];

b)any security, charge, promise, personal guarantee or undertaking given by the sixth respondent to any bank, building society or other financial institution or commercial entity in relation to [SPL];

c)the property dealing, loans, undertakings, business or affairs of [SPL], including all taxation liabilities or duties (including income tax, capital gains tax and stamp duty and all penalties and interest not yet paid) hereafter assessed against the sixth respondent in respect of income (if any) derived by the sixth respondent from, or allocated to the sixth respondent by, [SPL];

d)any loan account or indebtedness due or owing by the sixth respondent to [SPL];

e)the creditors of [SPL]; and

f)all charges or other encumbrances affecting the plant and equipment or other property of [SPL];

and from all actions, proceedings, costs, claims and expenses in respect thereof.

[GC & SC] Superannuation Fund

25.Subject to para 18 above, upon receipt of the Main Payment by the wife in accordance with para 16 above (together with interest, if any, payable in accordance with para 17 above):

a)Para 5 of the orders of 10 September 2009 be discharged.

b)The husband and the wife must sign all such documents and do all such acts and things as shall be necessary to appoint [G Charisteas] Pty Ltd ("the new trustee") as the trustee of the [GC & SC Charisteas] Superannuation Fund ("the spouses' Super Fund").

c)These orders shall bind the new trustee and the husband and the wife.

d)In accordance with Section 90MT(l)(b) or (c) of the Act –

i)the husband is entitled to be paid 100% of the wife's interest in the spouses' Super Fund, such amount to calculated (if necessary) in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

ii)the entitlement of the wife in the spouses' Super Fund is correspondingly reduced to zero.

e)In the alternative to (d) above, the husband, the wife and the new trustee sign all such documents and do all such acts and things as may be necessary for the rollover or transfer of 100% of the wife's interest in the spouses' Super Fund to the husband in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth).

f)The operative time for the orders contained in this paragraph is 4 days after the date upon which the wife receives the Main Payment in accordance with para 17 above.

g)Contemporaneously with the wife's compliance with the orders contained in this paragraph, the husband indemnify the wife and keep her indemnified from all debts, liabilities and obligations of the wife in respect of, associated with, or arising from the wife's involvement with or interest in the spouses' Super Fund, including (but not limited to) any tax liabilities and unpaid income tax assessed or hereinafter assessed against the wife in respect of income derived or deemed to have been derived by the wife from the spouses' Super Fund – and from all proceedings, costs, claims or demands in respect thereof.

26. Subject to para 18 above, and notwithstanding paragraph 25 above:

a)Para 5 of the orders of 10 September 2009 be discharged.

b)The husband and the wife must sign all such documents and do all such acts and things as shall be necessary to appoint such person or entity as the wife shall nominate ("the new trustee") as the trustee of the [GC & SC Charisteas] Superannuation Fund ("the spouses' Super Fund").

c)These orders shall bind the new trustee and the husband and the wife.

d)In accordance with Section 90MT(l)(b) or (c) of the Act:

i)the wife is entitled to be paid 100% of the husband's interest in the spouses' Super Fund, such amount to calculated (if necessary) in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

ii)the entitlement of the husband in the spouses' Super Fund is correspondingly reduced to zero.

e)In the alternative to (d) above, the husband, the wife and the new trustee sign all such documents and do all such acts and things as may be necessary for the rollover or transfer of 100% of the husband's interest in the spouses' Super Fund to the wife in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth).

f)The operative time for the orders contained in this paragraph is 20 April 2018.

27.Pending the full implementation of the orders in paras 25 and 26 above (whichever shall ultimately apply), the husband and his servants and agents be restrained by injunction from:

a)disposing of, transferring, assigning, adversely dealing with, charging, encumbering, further encumbering, distributing or otherwise dealing in anyway whatsoever with all property and assets of any kind whatsoever presently owned by or in the possession of the spouses' Super Fund or under its control (including, but not limited to, [BP] and all moneys presently held by the spouses' Super Fund or standing to its credit in any account in any bank, building society or other financial institution);

b)borrowing any moneys or any further moneys by or on behalf of the spouses' Super Fund;

c)repaying (whether in whole or in part) any loans or loan accounts owed or allegedly owed by the spouses' Super Fund;

d)removing any fixtures or fittings from [BP]; and

e)doing, causing, authorising or facilitating any act or thing which has or may have the effect of:

i)demolishing, razing, dismantling, breaking, defacing, polluting or damaging [BP] in any way whatsoever;

ii)diminishing the utility or aesthetic appeal of [BP] in any way whatsoever; and/or

iii)otherwise diminishing the value of [BP].

Other property

28.The husband's share and interest, if any, in the following forthwith vest in the wife –

a)any funds standing to the wife's credit in any account in her name in any bank, building society or other financial institution;

b)the wife's jewellery;

c)the antiques (if any), furniture, chattels and effects in the wife's possession; and

d)the wife's superannuation entitlements in any other superannuation fund in which she has entitlements.

29.Except as otherwise provided for in these orders, the wife's share and interest, if any, in the following forthwith vest in the husband –

a)any funds standing to the husband's credit in any account in his name in any bank, building society or other financial institution;

b)the husband's [Mercedes] motor vehicle;

c)the husband's jewellery;

d)the antiques (if any), furniture, chattels and effects in the husband's possession;

e)the husband's entitlements in [G Charisteas] Superannuation Fund.

30.Unless otherwise specified in these orders, and save for the purposes of enforcing any moneys due under these or subsequent orders:

a)each spouse be solely entitled to the exclusion of the other to all other property (including real property, superannuation entitlements and choses-in-action) in the possession of such spouse at the date of these orders;

b)each spouse be solely liable for and indemnify the other against any liability encumbering any item of property to which that spouse is entitled pursuant to these orders; and

c)each spouse be solely liable for any debt standing in the name of that spouse.

Other orders

31.All Parties must forthwith sign all such documents and do all such acts and things as shall be necessary to give effect to these orders.

32.All Parties and their servants and agents be restrained by injunction from signing any document or doing any act or thing relating to or associated with:

a)the Trust;

b)the early vesting;

c)the retained legal fees;

d)the spouses' Super Fund;

e)[BP];

f)[GPL]; and

g)the [G] loan accounts,

other than in accordance with these orders.

33.All Parties have liberty to apply for procedural or mechanical orders for the purpose of implementing these orders.

Costs

34.All parties have leave to apply for costs in the following manner:

a)In the event that any party ("costs applicant") proposes to seek costs from another party or parties ("costs respondent"), the costs applicant must – within 28 days – file and serve a minute of orders sought as to costs, together with any written submissions that the costs applicant wishes to make ("costs application").

b)If –

i)a costs application is made; and

ii)the costs respondent wishes to oppose the costs application;

the costs respondent must – within 28 days of service on the costs respondent of the costs application – file and serve a minute of orders sought as to costs together with any written submissions that the costs respondent wishes to make ("costs response").

c)The written submissions forming part of the costs application and the costs response must not exceed a maximum of 15 pages in each case.

d)In the event that any party seeks to make oral submissions with respect to costs, that party must – within 14 days of service of the costs response on the party upon whom the costs response must be served – write to the Court requesting that the matter be listed for a special appointment and setting out:

i)the available dates for all relevant parties to appear; and

ii)the likely length of the special appointment.

e)Prior to writing to the Court to request the said special appointment, all relevant parties must confer with respect to availability and the likely length of the said special appointment.

f)In the event that –

i)no party seeks to make oral submissions with respect to costs; or

ii)the cost respondent fails or refuses to file a costs response within the time specified in (b) above,

any costs application be thereafter determined on the papers.

35. The issue of costs (as programmed in the preceding paragraph) –

a)be assigned to and determined by a Judge other than the Honourable Justice Walters (who is due to retire with effect from midnight on the night of 15/16 February 2018) ("the assigned Judge"); and

b)be managed by the assigned Judge and finalised as soon as practicable.