Cook and Cook and Ors (No 2)

[2007] FamCA 1426

FAMILY COURT OF AUSTRALIA

COOK & COOK AND ORS (NO. 2) [2007] FamCA 1426

FAMILY LAW – PRACTICE AND PROCEDURE – Discovery

Family Law Act 1975 (Cth)

Hatton v Attorney-General of Commonwealth of Australia, Commonwealth Bank of Australia, and Commonwealth Development Bank of Australia (2000) FLC 93-038

APPLICANT: Ms Cook

RESPONDENT: Mr N Cook

FILE NUMBER: MLF 1997 of 2003

DATE DELIVERED: 14 November 2007

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 15 & 16 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Ackman & Ms Macmillan; Mr Mawson; Mr Wilson

SOLICITOR FOR THE RESPONDENT: Kennedy Wisewoulds; Kenna Teasdale; Madgwicks

Orders

1. That within 21 days Z Constructions Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·Primary/source documents in support of the notes recorded in the detailed profit and loss accounts for the financial year ended 30 June 2006.

   ·Title particulars of each property that makes up the land recorded in the inventory at Note 5 and the land and buildings recorded at Note 6(a) to the financial accounts for the financial year ended 30 June 2006.

   ·Current market valuation of the land recorded in the inventory at Note 5 to the financial accounts.

   ·Valuations of the land and building recorded at Note 6(a) to the financial accounts.

   ·All documents in support of the loans recorded at Notes 8 and 10 of the financial accounts for the financial year 2006.

   ·Its asset register.

2. That within 21 days ZL Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2005 (inclusive).

   ·All documents in support of the loans recorded at Note 4 of its financial accounts for the financial year ended 30 June 2006.

   ·Its asset register.

   ·Primary/source documents which support the loans recorded at Note 6 of its financial accounts for the financial year ended 30 June 2006.

3. That within 21 days Z Earth Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·Its asset register.

   ·All primary/source documents in support of loans recorded at Notes 4 and 7 of its financial accounts for the financial year ended 30 June 2006.

   ·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006.

4. That within 21 days Z Hire Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

   ·Its asset register.

   ·All primary/source documents which support loans recorded at Notes 4 and 7 of its financial accounts for the financial year ended 30 June 2006.

5. That within 21 days ZSC Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·Detailed profit and loss statements for the financial year ended 30 June 2006.

   ·All primary/source documents which support loans recorded at Notes 4 and 6 of its financial accounts for the financial year ended 30 June 2006.

   ·Its asset register.

6. That within 21 days ZSB Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

   ·All primary/source documents which support loans recorded at Note 6 of its financial accounts for the financial year ended 30 June 2006.

   ·Its asset register.

7. That within 21 days Z Services Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·Deed of Company Arrangement.

   ·Schedule of debts forgiven in the financial year ended 30 June 2005.

8. That within 21 days Cook Street Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·Settlement statements for each sale by Cook Street Pty Ltd since 30 June 2002.

9. That within 21 days Cook Investments Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·The financial statements and taxation returns for Cook Investments Pty Ltd in its capacity as trustee of the Cook Equity Trust and in its own capacity from 30 June 2002 to 30 June 2006 inclusive.

10. That within 21 days ZM Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

    ·All financial accounts for the financial years ended 30 June 2002 to 30 June 2006.

    ·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

11. That by 21 December 2007 W, N and D Cook (in their capacity as the Cook Partnership) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

    ·All primary/source documents evidencing the creation of and movement in loans made by the partnership to X Land Pty Ltd, YA Pty Ltd, X Developments Pty Ltd, WL, Mr H, and XC Pty Ltd between 1 July 2000 and 30 June 2006.

12. That within 21 days X Land Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

    ·All primary/source documents which support the recorded loan to X Developments Pty Ltd.

    ·All primary/source documents which record investments in X Developments Pty Ltd, Cook Street Pty Ltd and in R Street.

13. That within 21 days Cook Street Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

    ·All primary/source documents in relation to the secured non-current loan of $2,601,042 in the financial year ended 30 June 2004.

14. That within 21 days X Developments Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

    ·All primary/source documents in relation to investments in XA Pty Ltd, XD Pty Ltd and XC Pty Ltd.

15. That within 21 days XC Pty Ltd (as Trustee for XC Facility) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

    ·Market value of property recorded in the balance sheet as 30 June 2006 at $4,411,822.52.

16. That within 21 days XA Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

    ·Market value of land and buildings referred to in financial accounts at 30 June 2006 at $2,753,566.

    ·The lease between XA Pty Ltd and its tenant.

17. That the wife’s Form 2 application filed 1 December 2006 shall be otherwise dismissed.

18. That all parties’ costs of this application shall be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Cook & Cook is approved pursuant to s 121(9)(g) of the Family Law Act 1975(Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1997  of 2003

MS COOK

Applicant

And

MR COOK

Respondent

REASONS FOR JUDGMENT

1. Mr Cook (“the husband”) and Ms Cook (“the wife”) separated in 2002 after a 26-year marriage.  Their litigation over financial matters started with the wife’s Form 3 Application in 2003.  Despite the passing of four years and several Trial Notice Listings the case has still not been heard to conclusion.

2. I am dealing with the wife’s Form 2 Application filed 1 December 2006.  She seeks the provision of documents by the husband and 19 other respondents, being one partnership of which he is a member, and 18 companies.

3. Before the introduction of the single expert rules, the wife retained an accountant, Mr L, for the purposes of a business valuation.  Since July 2003 he has been provided with certain documents in relation to the various entities but says that he requires further documents to complete his valuation. 

4. The particulars of the documents sought by the wife are set out in an Annexure to her application, attached to these Reasons and marked “B”.  In summary, the wife argues that in light of the husband’s shareholdings, directorships, beneficial interests, and/or control of the corporate structure, the valuation of the various entities is relevant to the property proceedings between her and the husband, and the documents sought are relevant to that valuation.

The Respondents

1. In this case there is a complex business network.  I have attached two charts from the wife’s summary of argument, depicting the relevant corporate structure.  They are marked “C1” and “C2”.

2. There are four main company groups.  One is the Y Group (the 19^th and 20^th respondents) but as the wife no longer seeks documents against the 19^th and 20^th respondents, that group is no longer relevant to this application.

3. The other three groups are:

   ·The Cook Group (the 10^th and 11^th respondents)

   ·The X Group (the 14^th, and 15^th  to 18^th respondents)

   ·The Z Group (the 2^nd to 9^th and 12^th respondents).

4. In addition, the husband is a partner with his two siblings in the Cook Partnership (the 13^th respondent).

The Cook Group

1. The Cook Group is headed by Cook Investments Pty Ltd (the 11^th respondent), which was incorporated shortly before separation.  The husband is the sole director.  Initially he held the six issued shares.  Subsequently, a further 294 shares were issued to the three adult children of the marriage.  Cook Investments Pty Ltd owns half of Cook Street Pty Ltd (the 10^th respondent), of which the husband is a director.   

2. The husband personally, and as a partner of the Cook Partnership, and Cook Investments Pty Ltd, are represented by Mr Ackman QC with Ms Macmillan.

3. As to Cook Investments Pty Ltd, and the sibling partnership, Mr Ackman submits that the applications are too broad and oppressive, the documents lack sufficient definition, documents have already been provided and no case is made for more, and/or the additional documents sought are not relevant to any issue in dispute.

The X Group

1. As for the X Group, the X Trust, through its trustee X Developments Pty Ltd (the 15^th respondent) has a proprietary interest in various entities.  The Husband holds one third of the shares of that company (with his brother and sister), and is a director.  He is also a beneficiary of the X Trust.

2. The X Group companies (and the 10^th respondent, Cook Street Pty Ltd) are represented by Mr Wilson. It is submitted for these respondents that the wife's application does not comply with Part 13.4.2 of the Family Law Rules 2004, and that there is more than a technical breach. Mr Wilson submits that these parties are asked to produce documents relevant to issues in a dispute of which they are unaware, and the application is too broad, vague and oppressive. In addition, as the accuracy of financial statements already produced is not called into question by the wife’s accountant, there is no evidentiary basis supporting her application for the production of further documents.

3. I note that the 17^th respondent, XA Pty Ltd, has agreed to provide the lease document sought in paragraph 20 of the wife’s application.  I note too the wife no longer seeks documents from XB Pty Ltd (the 18^th respondent).

The Z Group

1. It is the Z Group to which most of the current controversy relates.  The Trustee of the Cook Engineering Trust is Z Nominees Pty Ltd (the 2^nd respondent).  It holds one third of the shares in Z Hire Pty Ltd (the 6^th respondent) which in turn is related to a network of companies, including Z Construction Pty Ltd (the 3^rd respondent), in which Z Nominees also holds one third of the shares.  The husband and his father are directors of Z Nominees.  The husband’s brother W Cook was added as a director very recently, on 1 September 2007.

2. The wife no longer seeks orders against Z Nominees Pty Ltd (the 2^nd respondent), as orders in the terms sought were made against Z Nominees on the first return date.

3. The husband denies that he has a proprietary interest in Z Nominees Pty Ltd or that he controls the Cook Engineering Trust and related Z Group entities.  He says that he has fulfilled his duty of full and frank disclosure in relation to documents within his control and that the wife has now embarked upon a fishing exercise, failing to prove the apparent relevance of the documents sought. 

4. The Z Group companies are represented by Mr Mawson.  He argues that the wife’s application seeks to go beyond the Family LawRules in relation to production of documents by non-parties, is an oppressive and unreasonable intrusion into the business activities of the Z Group, and is not supported by any evidence of a forensic benefit for such intrusion.

LEGAL PRINCIPLES

1. The wife relies on Rule 13.04 of the Rules. 

2. Chapter 13 deals with disclosure.  The explanation at the start of the chapter is that the aim of disclosure is “to help parties to focus on genuine issues, reduce cost and encourage settlement of the case.”

3. Rule 13.04 relates to a party’s obligation to make full and frank disclosure of their financial circumstances, including property owned by or income derived from a corporation, trust, partnership, joint venture, business, or other commercial activity fully or partially owned or controlled by a party.  It specifies too that there must be full and frank disclosure of financial circumstances including in relation to any trust of which the party is a beneficiary, and/or over which the party has any direct or indirect power or control.

4. I have noted that some respondents rely on Part 13.4.2 of the Rules in relation to non-party production of documents.  I will refer to the relevant parts in context below.

5. It is agreed that in applying the Rules as to the production of documents, the test is that laid out by the Full Court in Hatton v Attorney-General of Commonwealth of Australia, Commonwealth Bank of Australia, and Commonwealth Development Bank of Australia (2000) FLC 93-038. In that case, the husband appealed orders of Rose J setting aside various subpoenae, his Honour having applied the “apparent relevance” test. Although in this case the vehicle for obtaining documents is not by way of subpoena, the parties agree that, as in Hatton, the wife here must establish the “apparent relevance” of the documents sought, and in the absence of pleadings, she must do so by reference to the affidavit material.

MATERIAL RELIED UPON

1. The wife relies upon the material set out in Attachment “D” to these Reasons.

2. The husband, Cook Investments Pty Ltd and the sibling partnership (the 1^st, 11^th and 13^th respondents) rely on the material set out in Attachment “E” to these reasons.

3. The Z Group (the 3^rd to 9^th and 12^th respondents) rely on the material set out in Attachment “F”. 

4. The X Group (the 10^th and 14^th to 17^th respondents) rely on the material set out in Attachment “G”.

5. In her Form 2 Application filed 1 December 2006, the wife sought 26 different orders.  As noted, the documents sought in paragraph 1 of her application have now been produced.  The applications in paragraphs 2, 6, 19, 21 to 24, and in the second dot point of paragraph 14 were not pursued.  They included applications for company office bearers to confer with Mr L to discuss the business and/or documents. 

THE Z GROUP

The Husband’s Case in Relation to the Z Group

1. First, the husband points to the delay in this case occasioned by the wife’s various applications for more information. 

2. It does seem that the case has “lurched” through the system, but without progressing to a hearing, as the valuation sought by the wife has not been completed.  The husband would say that she and her advisers have been tardy and unreasonable.  She would say that had the husband and the various related entities been more forthcoming, the valuation would have been completed without this delay.  I cannot reach a definitive view about this long history.  In any event, Mr Ackman for the husband conceded that if it is considered appropriate that the documents sought by the wife should be produced, then that should occur despite any delay to this date.

3. Mr Ackman also referred to the potential for further delay in proceedings if more documents must now be produced.  On the other hand, Mr Dickson for the wife referred to the potential delay if a thorough valuation cannot be prepared and future proceedings need to be interrupted for that to occur.  I am satisfied that this case needs to be readied for trial in a fashion that can see it through to conclusion, even if there is some small delay now to that end. 

4. Next, the parties differ in their interpretation of “apparent relevance”, the argument revolving around whether the husband does or does not have a proprietary and/or controlling interest in various entities, most particularly Z Nominees Pty Ltd and the Cook Engineering Trust (the Trust), it being his assertion that he does not and that therefore such entities can have no relevance, actual or apparent, to the property proceedings between the parties.

5. I note the submission for the wife that as the various companies in the Z Group (and for that matter the husband in his own capacity and as a partner in the siblings’ partnership, and also the other respondents) have already produced documents, that negates the respondents’ argument against the apparent relevance of these entities, and of these documents, which are sought only because the accountant requires a further level of detail in order to complete the valuation.  That is an argument of force.  I shall return to it.

6. There is no dispute that the husband is a director of each of the relevant entities from whom documents are sought.  The proprietary interest in those entities is ultimately held by Z Nominees Pty Ltd as trustee for the Cook Engineering Trust.  It is apparently not disputed that throughout the marriage the husband and the wife received distributions as beneficiaries of the Trust.

7. Senior Counsel for the husband submits that the wife’s case is based on her and her accountant’s simple assertion as to the husband’s control of the Z Group and that she has failed to produce evidence of that control.  He submits that the fact that the husband is a director of Z Nominees Pty Ltd does not give him ownership of the entities in the Group.  Counsel for the wife agrees.  Mr Ackman also submits that the fact that the husband and wife were historically in receipt of distributions from the Trust is not evidence of any proprietary interest of the husband, or of control on his part.  Counsel for the wife again agrees, but submits that a number of other factors indicate the husband’s control of the Trust. 

The “Adding” of Cook Investments Pty Ltd as a Beneficiary

1. The first is described as the “adding” of Cook Investments Pty Ltd as a beneficiary of the Trust, since separation.  The wife’s argument is that as the husband has a proprietary interest in the company, and as he is its sole director, the company must have been added as a beneficiary at his request.  Unfortunately the Trust deed cannot be located.  Her argument derives from the company’s 2005 Profit and Loss Statement which shows “income” of $96,000, by way of “Trust Distribution”.  Note 2 to the financial statements refers to “Trust Distribution [Cook Family] Trust - $96,000”. 

2. The husband, in his affidavit filed 12 December 2004, refers to the “distribution” he receives from the Trust, explaining that his father made the distribution to the company on his behalf, for his role in managing his father’s business affairs.

3. The husband also relies on an affidavit of the Group’s accountant, Mr N, and an additional written statement of evidence by him, tendered without opposition.  Mr N says that the Trust deed cannot be located, but “to the best of his knowledge” Cook Investments Pty Ltd was not “added” as such.  He believes that, along with Mr and Mrs Cook Senior, the husband, his siblings and children, any entity in which the beneficiaries have an interest is automatically a discretionary beneficiary under the Trust deed.  He believes that Cook Investments Pty Ltd accordingly became a beneficiary upon incorporation. 

1. In explanation of the “Trust Distribution” received by the company, Mr N states that he recorded the monies directed to the husband by Mr Cook Senior as “distributions” to Cook Investments Pty Ltd “for tax planning purposes”.

2. These are all matters for trial, for evidence-in-chief and cross-examination.  Evidence can then be tested as to the absence of the Trust Deed, whether or not the husband added the company as a beneficiary, whether or not a sum entered in the books of account specifically as a Trust Distribution was in fact a gift or payment from the father to the husband in gratitude for his assistance in handling his affairs, and as to the husband’s role in relation to that distribution or payment.  At this stage the various positions have not been tested.

NAB Documentation

1. The wife had also relied on National Australia Bank documentation to show the husband’s ownership, or at least his control, of the Z Group.  In his affidavit of 1 December 2006 (at paras 13 to 35), Mr L referred to representations made by the husband to the NAB, as the basis for concluding that the husband is the beneficial owner of shares in Z Constructions Pty Ltd.  He referred to various declarations made by the husband to the NAB in 1996, 2000 and 2002, and relied in particular on an internal memo prepared by NAB, dated 30 September 2002, in which the bank described the husband as having assets of “$20M +”. 

2. The 30 September 2002 memo arose in the context of the bank considering a $2 million loan sought by the husband and two other men for XC Pty Ltd (the 16^th respondent).  In assessing the bank’s capacity to call upon his personal guarantee, the bank listed the husband’s assets at “$20M +” and his liabilities at “$1.8M”, showing a surplus of “18.2M”.

3. On 8 September 2003, after property proceedings had commenced in this court, NAB wrote a letter of correction, stating that the surplus figure of $18.2 million “in fact relates to the entities of [the husband] personally, the [Cook] family, and the [Z] Group, as a combination.”  The letter indicated that a Mr O, who had written the original internal memo, had confirmed that the position did not represent the husband’s personal asset position.

4. It is submitted for the husband that NAB’s letter of correction undermines any assertion that the husband owns or controls the Z Group, and that the letter is bolstered by a statement of evidence by Mr O from NAB.  In that statement, Mr O said that he prepared the internal memo of 30 September 2002 in his role as the manager of the Business Development Unit.  He does not recall with whom he met before he prepared it, but he was provided with information from the branch/relationship manager from the NAB branch that was dealing with the husband’s loan application.  He does not recall the conversation with the author of the letter of correction, but he states that the information in relation to the husband’s asset position:

   “…is incorrect insofar as it suggests that [the husband] personally holds the assets and liabilities referred to.  It should read [the husband] and others, including his siblings and extended family.”

5. Mr Ackman for the husband submits that a major plank of the wife’s case in relation to ownership and/or control was thus taken away.  I agree with the submission of counsel for the wife that the statement by Mr O falls short of dealing with precisely who said what to whom in the formation of the bank’s memo as to the husband’s position, and how it came into being.  Again, these are matters that will be aired and tested at trial. 

Mr Cook Senior’s Capacity

1. Next, the wife has sworn to her belief that the husband’s father lacks capacity, to underpin her assertion that the husband now has control of the Z Group. 

2. Mr Cook Senior is 83.  He lives in a retirement village.  The husband holds his Enduring Power of Attorney.  The wife’s case is that the husband has executed documents pursuant to it, and the Power of Attorney gives the husband the capacity to make distributions to beneficiaries, including himself and entities in which he has a direct proprietary interest.  Senior Counsel for the husband argues that the Power of Attorney simply authorises the husband to act in a way that his father would have wanted, and it would be contrary to his obligations if he abused that power. 

3. Subsequent to the submission in the wife’s Summary of Argument that there had been no affidavit by the husband’s father about his capacity, Mr Cook Senior filed an affidavit saying that he is not incapacitated and that he can deal with his assets, including the assets of the Trust, at his discretion.  Although issue was taken with his description of Trust assets as his own, I put that to one side for current purposes.  His evidence of capacity was otherwise supported by affidavits from doctors and the husband’s other siblings. 

4. Dr S swore that Mr Cook Senior could not come to court to give evidence as he suffers congestive cardiac failure and atrial fibrillation, limited mobility secondary to vertebral fractures, anxiety, and hearing impairment.  And his hearing is such that he could not give evidence by telephone either.  The evidence otherwise was that he is in command of his faculties and competent to give instructions and make decisions. 

5. The Group’s accountant has sworn that he holds one of the two issued shares in Z Nominees Pty Ltd on trust for Mr Cook Senior.  He said he is entrusted to act in accordance with Mr Cook Senior’s directions and to act in his best interests.  If a major decision is to be made concerning Z Nominees and/or the Trust he consults with Mr Cook Senior who makes the decision.  He said he “directs” the husband in accordance with the wishes of the father, but the day-to-day administration and accounting of the company and Trust are carried out by himself and the husband. 

6. The affidavit material has not been tested.  Counsel for the wife submits it is a matter for trial.  I agree. 

Other Considerations

1. Mr Ackman argues that as an assessment by Mr L in an early report was that the Trust assets were worth $2 million, there is no basis for now suggesting the assets are worth more than $20 million and to be fishing for more documents.  Mr Dickson replies that Mr L’s early reference to $2 million was clearly wrong.  It was before he took into account other information and underlines why more documents are now required.  I am satisfied that Mr L had not then formed a final view.  Nor has he now.  That is why he seeks more information.

2. Both Senior Counsel for the husband and counsel for the wife referred to the Full Court decision in Stephens and Stephens and Ors [2007] Fam CA 680, delivered on 30 July 2007.

3. Mr Dickson for the wife relied upon it as supporting the proposition that if the husband in this case is found to be the effective controller of the Trust, using his position as director of the trustee company and his father’s Power of Attorney, then he can make distributions to himself, and trust assets can be treated as his property for the purposes of a property settlement.  It was submitted that it is not necessary to demonstrate for the purposes of this application that the husband is the only potential beneficiary of the Trust.

4. Mr Ackman for the husband distinguished Stephens on the basis that the evidence in that case was that the husband had previously exercised control of the Trust.  The court had re-instated Mr Stephens to his previous position as a beneficiary and was therefore re-instating him to his previous position of control.  In the present case, it was argued, there is no evidence that the husband had at any time acted in relation to the Trust other than within his obligations as a director of the trustee company.

5. Mr Stephens has sought leave to appeal to the High Court of Australia.  In any event, the Full Court’s decision turned largely on whether a Deed of Relinquishment could be overcome and the husband re-instated as a beneficiary of the relevant trust.  Questions of control then turned on the interpretation of the history in that particular case.  For the purposes of this current case, the issue of the husband’s control is also a live issue.  It is not my role to determine it at this stage of the proceedings.  In due course, the trial Judge will hear all of the evidence tested and will no doubt consider Stephens and any other relevant case-law.

6. The wife does not have to prove her case, or the actual relevance of documents, for the purposes of this application.  She must satisfy the court of apparent relevance only.  I am satisfied she has done that.  First, the Z Group companies have to some extent conceded that, by already producing documents towards the preparation of a valuation.  The documents now sought are to drill into the detail, in order to complete that valuation.  Secondly, the issues raised by the wife, refuted by the husband, are matters to be properly tested at trial.

The Z Group Respondents’ Case

1. Mr Mawson for the Z Group respondents submits that the material sought is beyond the scope of the rules for non-party discovery, is an oppressive and unreasonable intrusion into the companies’ activities, and that some applications are unclear or too broad.  He submits that the wife has failed to show the apparent relevance of the documents sought.  Further, Mr L previously sought audit files from the Z Group, and such material was provided in April 2005, as described in a letter to the wife’s solicitor dated 15 January 2007 (Exhibit KG 1).  The respondents had also agreed to provide audited financial accounts between 30 June 2003 and 30 June 2006.  It is submitted that Mr L has failed to demonstrate what was missing from the material already produced by these respondents so as to show a legitimate forensic purpose. 

2. Mr L swore (at para 12 of his affidavit filed 1 December 2006) that in November 2004 he sought the production of the audit files for each of the companies that make up the Z Group, in order to be properly informed of the assets of the Z Group, and their current market value, with a view to calculating the current market value of the shares held by Z Nominees in Z Construction Pty Ltd.  He swore (at paras 47 and 48) that his preliminary view was that a true valuation of the Z Group could not be determined by investigating only the records supporting the consolidated financial statements of Z Constructions Pty Ltd and its controlled entities, but that each company required a separate investigation.  As the Z Group consolidated their financial accounts for reporting purposes, the performance of some companies was “propped up” by companies that were trading at a considerable profit.  Failing companies were then “pulling down” the successful companies.  Accordingly, a consolidated set of accounts would not accurately reflect the true value of each of the companies that make up the group.  Mr L swore that he needed each of the documents sought in the wife’s current Form 2 Application in order to prepare the valuation. 

3. Mr L swore a further affidavit, filed on 5 October 2007.  He reiterated that he required certain documents in order to complete his valuation report.  He set out (at para 13) the material required by him “by way of clarification”.  The documents required are clearly specified.

4. In most instances the documents specified by Mr L are the source documents underpinning the notes to the financial accounts that have been provided.  Otherwise they are specified financial accounts and profit and loss statements.  As such, the request is not too broad.  If they exist, (in some instances “current market valuations” are sought, which may or may not exist) they should be capable of production without undue expense or inconvenience. 

5. In other instances, profit and loss statements for the 2002 to 2006 financial years are sought.  The parties separated in 2002.  This litigation commenced in 2003.  This is not an unreasonable or oppressive time-frame for the consideration of those basic records, and it seems that was conceded in the January 2007 letter referred to above. 

6. Otherwise, asset registers, a particular Deed of Company Arrangement, and a schedule of debts forgiven by one company in one particular year are sought.  Such documents would appear to be relevant and it is reasonable that they should be produced.

7. Mr Mawson specified applications in relation to loans - where “all primary/source documents which support the particular loans” are required - as unclear or too broad.  In my view what is sought is sufficiently clear.  Were the wife to confine her application to specified documents such as loan agreements or correspondence, a relevant document, such as a company resolution, could be overlooked.  It is clear to the respondents that what is sought is any document supporting loans recorded in the financial accounts of these companies. 

8. Mr Mawson argues that what is sought overall is oppressive, or an unreasonable intrusion, and that the wife has failed to show a legitimate forensic purpose for the documents such as to satisfy the apparent relevance test for their production.  At the same time, he argues that the need for many of the documents has already been satisfied, or in the case of the more recent financial accounts, offered to be produced.

9. The letter of 15 January 2007 (Exhibit KG1) indicates that the relevant respondents’ audit files up to and including 30 June 2004 were made available for inspection by Mr L but that Mr L had only attended and inspected the files for less than one hour.  The letter set out the documents typically contained in the audit files and Mr Mawson submits that they contained sufficient information to satisfy the needs identified by Mr L for valuation purposes. 

10. I am satisfied – subject to one exception below – that the documents as sought in relation to this group of companies should be provided.  As Mr Mawson has observed, in some instances they are documents previously made available, in which case it is not oppressive or an unreasonable intrusion for them to be produced.  In other instances they are more up-to-date profit and loss statements which the respondents have indicated a willingness to provide.  In other instances they are the source documents relating to loans recorded in the financial accounts, the asset registers for the 3^rd, 4^th 5^th, 6^th, 7^th and 8^th respondents, and the Deed of Company Arrangement and the schedule of debts forgiven in the 2005 financial year for the 9^th respondent.  It does not appear that they have been produced.  The expert accountant’s evidence that he requires those documents to complete his valuation is clear. 

11. The one exception relates to the application for Z Constructions Pty Ltd to produce each Certificate of Title to land and buildings recorded in a note to its 2006 financial accounts, as sought at paragraph 3 of the wife’s application.  What Mr L requires is title particulars.  It would be oppressive and unreasonable for the respondent company to be put to the trouble and expense of obtaining and producing duplicate Certificates of Title, when a search by the wife’s representatives will inevitably be required in any event, to ascertain any recent dealings with the property or properties.  The asset register and the title particulars are the appropriate and reasonable documents and details to be provided.

12. Subject to that exception, orders will be made pursuant to paragraphs 3 to 5, 7 to 10, and 13 of the wife’s application.

THE X GROUP

1. Mr Wilson’s arguments on behalf of this Group can be divided into three main areas. The first relates to the wife’s non-compliance with the Family Law Rules. The second relates to the broad, vague, and oppressive nature of the description of documents sought. The third relates to there being no evidentiary basis supporting the application for the production of documents.

Non-Compliance with the Rules

1. It is argued on behalf of the 10^th and the 14^th to 17^th respondents that the wife failed to comply with the Rules in relation to the production of documents by a person who is not a party to a case, in accordance with Part 13.4.2 of the Rules. 

2. Pursuant to rule 13.33 a requesting party may serve a Notice of Non-party Production of Documents, requiring the non-party to produce documents relevant to an issue in the case.  The Rules go on to provide a time-frame in which the non-party can object (rule 13.39), and for the party thereafter to apply for a court order for compliance (rule 13.41). 

3. Mr Wilson argues that it is more than a technical breach, as the non-parties cannot be expected to know what is relevant to issues in dispute between the parties. 

4. The rules in relation to the production of documents by non-parties must be viewed in the light of the Explanatory Statement, and in the context of the Rules overall.  The Explanatory Statement notes that the non-party document provisions aim at:

   “…speeding up the process and making it more convenient and less costly for parties by keeping the procedure out of the court system unless there is an objection to the production of documents.  It should also minimise the number of subpoenas to produce documents requested.”

5. Rule 1.04 provides that the main purpose of the Rules is to ensure that each case is resolved “in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.” Rule 1.12 specifically empowers the court, on application or on its own initiative, to dispense with the rules. The court may take into account the main purpose of the rules, including the administration of justice, whether an application was promptly made, whether non-compliance was intentional, and the effect that granting relief would have on each party and parties to other cases in the court.

6. On 24 November 2006, Mushin J made an order in this case in the following terms:

   “7.That to the extent necessary and pursuant to Rule 1.12 of the Family Law Rules all provisions of the Rules relating to the initiating of any Application for third party discovery be dispensed with.”

7. Mr Wilson observed that Mushin J’s order was not binding on non-parties, who only became respondents to this application a week or two after his Honour’s orders were made.  However, the order was clear.  And these non-parties are not disadvantaged. 

8. If, as argued by Mr Wilson, the purpose of the rules is to ensure that a non-party has an adequate understanding of the relevance of documents in proceedings in which they are not otherwise involved, I am satisfied that in this case his client companies are not disadvantaged.  First, the husband is a director of the relevant companies.  Secondly, these respondents have already produced documents for the purposes of the wife’s forensic accountant’s report.  They argue now about the production of documents going beyond the financials.  In those circumstances, it is difficult for them to argue that they cannot have an adequate understanding of the relevance of documents in the property case between husband and wife.

9. In addition, the wife’s application has proceeded since December 2006.  Although Mr Wilson argues that there was no chance for compliance or an objection before the wife simply filed her application, in the ten subsequent months, the matter has remained hotly contested, with various attendances at court.  To now dismiss this application without dealing with it on its merits would add to the delay and expense for the parties, and the non-party respondents – a not inconsiderable consideration given that the husband and wife have been fighting over financial matters for more than four years – and given the impact on other parties who wait in crowded court lists. 

The Application Being Too Broadly Cast, Vague and Oppressive

1. I do not accept that the documents being sought by the wife are too “broadly cast, vague and oppressive”. 

2. Precise documents or categories of documents are sought.  In relation to Cook Street Pty Ltd (para 11 of the wife’s application), settlement statements for each sale since June 2002 is sought.  I was told in submissions, without anyone taking exception, that it involves about 15 settlement statements.  Otherwise, primary/source documents are sought to support a secured non-current loan of $2.6 million odd in the books of account of Cook Street Pty Ltd (para 16 of the wife’s application), and a loan to X Developments Pty Ltd recorded in the accounts of X Land Pty Ltd (in para 15).  Documents are also sought to support inter-company investments recorded in the books of X Land Pty Ltd and X Developments Pty Ltd (in paras 15 and 17), and to support the market value of properties recorded in the balance sheets of XC Pty Ltd and XA Pty Ltd (in paras 18 and 20).  Obviously, if any such documentation does not exist, it cannot be produced or brought into existence for the purposes of meeting this application. 

No Evidentiary Basis to Support Production

1. It is argued that as the accuracy of the financial statements already produced to the accountant have not been called into question, there is no evidentiary basis supporting the application for the production of the documents sought. 

2. It is clear from the affidavit of Mr L that this material - that I have already noted is sufficiently narrow, specified, and identifiable - is required for him to complete the valuation.  It is material that complements or augments the material already provided.  It drills down to the next level of detail as required by the accountant and in my view it thus satisfies the apparent relevance test.  Accordingly, I propose making the orders as sought in paragraphs 11, 15, 16, 17, 18 and 20 of the wife’s application. 

COOK INVESTMENTS PTY LTD

1. Paragraph 12 of the wife’s application deals with Cook Investments Pty Ltd, the 11^th respondent.  The wife seeks true copies of “primary/source documents recording its dealings with [Cook] Equity Trust.” 

2. That application is expanded upon in Mr L’s affidavit of 5 October 2007.  At para 13(k), he specifies:

   “…financial statements and taxation returns for [Cook] Investments Pty Ltd in its capacity as trustee of the [Cook] Equity Trust and in its own capacity from 30 June 2002 to 30 June 2006 inclusive”. 

3. Mr L goes on to state that he seeks in particular all documents relating to Cook Investments being added as a beneficiary of the Cook Engineering Trust and distributions made by that trust to Cook Investments Pty Ltd.

4. Senior Counsel for the husband submits that the documents sought have either been produced to the wife, or made available for inspection at the office of the solicitors for the 11^th respondent but have not been inspected.  Further, Mr L’s clarification extends the request from that contained in the wife’s application.  And, it was argued again for the husband that the wife incorrectly asserts that this company was “added” by the husband as a beneficiary of the Cook Engineering Trust. 

5. It is true that Mr L seeks documents in his affidavit that go beyond the detail of paragraph 12 of the wife’s application, but the affidavit narrows rather than expands the documents sought, by defining the documents with greater particularity.  I am satisfied that the documents are thus sufficiently identified in the application when read in conjunction with Mr L’s affidavit, so that they are sufficiently clear and the husband is not disadvantaged.  The order should reflect the definition in the affidavit.  Otherwise, I agree that documents relating to Cook Investments Pty Ltd being added as a beneficiary of the Cook Engineering Trust do go beyond the application, but in any event the husband’s sworn evidence is that there are no such documents.

6. Mr Ackman said that various documents had already been made available for inspection.  It is clear from the correspondence outlined in paragraphs 3 to 9 of the wife’s affidavit filed on 5 October 2007 that some sort of impasse arose between the solicitors.  Although the solicitors for the husband claim that they advised the wife’s solicitors that the relevant documents were available for inspection, it is clear from the wife’s affidavit that her solicitors were waiting to be notified by the husband’s solicitors as to when various bank documents were in fact available.  Seven months passed in the meantime.  The situation only appears to have been clarified in August 2007.

7. I cannot make any definitive finding as to whether or not the precise documents sought from the 11^th respondent were already available for inspection as claimed on its behalf.  It is simply unclear.  In any event the documents sought are sufficiently defined and should now be produced pursuant to paragraph 12 of the wife’s application, narrowed by the description in Mr L’s affidavit.

THE SIBLING PARTNERSHIP

1. In paragraph 14 of the wife’s application she seeks production by the husband and siblings on behalf of the Cook Partnership (the 13^th respondent) of:

   “all primary/source documents in support of loans made by the partnership to [X Land] Pty Ltd, [YA] Pty Ltd, X Developments] Pty Ltd, [WL], [Mr H], and [XC] Pty Ltd.” 

2. She had also sought all bank records of the partnership as and from 1 July 2004 but withdrew that application.

3. The husband objects to the production of documents on the basis that what is sought is too broad, lacks definition of a time-frame, and is oppressive.  Further, there is no evidence of a dispute in relation to material already produced, and the documents requiring a detailed history of transactions are not relevant to any issue in dispute.

4. Again, in Mr L’s affidavit, he narrows what is sought by referring in particular to “all documents evidencing the creation of and movement in all loans” made by the partnership to the specified entities between 1 July 2000 and 30 June 2006.  Provided the order is expressed in those terms, I am satisfied that it is sufficiently clear and not oppressive, and is reasonably part of what is required by the forensic accountant to arrive at his valuation. 

5. Again I cannot make any definitive finding as to whether these particular documents, or some of them, have already been made available to the wife.  They seem to have been caught in the same impasse as the Cook Investments Pty Ltd documents.

THE ORDERS

1. The orders I propose, subject to submissions as to form, are as follows:

   1.That within 21 days Z Constructions Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       Primary/source documents in support of the notes recorded in the detailed profit and loss accounts for the financial year ended 30 June 2006.

   ·       Title particulars of each property that makes up the land recorded in the inventory at Note 5 and the land and buildings recorded at Note 6(a) to the financial accounts for the financial year ended 30 June 2006.

   ·       Current market valuation of the land recorded in the inventory at Note 5 to the financial accounts.

   ·       Valuations of the land and building recorded at Note 6(a) to the financial accounts.

   ·       All documents in support of the loans recorded at Notes 8 and 10 of the financial accounts for the financial year 2006.

   ·       Its asset register.

   2.That within 21 days ZL Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2005 (inclusive).

   ·       All documents in support of the loans recorded at Note 4 of its financial accounts for the financial year ended 30 June 2006.

   ·       Its asset register.

   ·       Primary/source documents which support the loans recorded at Note 6 of its financial accounts for the financial year ended 30 June 2006.

   3.That within 21 days Z Earth Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       Its asset register.

   ·       All primary/source documents in support of loans recorded at Notes 4 and 7 of its financial accounts for the financial year ended 30 June 2006.

   ·       Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006.

   4.That within 21 days Z Hire Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

   ·       Its asset register.

   ·       All primary/source documents which support loans recorded at Notes 4 and 7 of its financial accounts for the financial year ended 30 June 2006.

   5.That within 21 days ZSC Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       Detailed profit and loss statements for the financial year ended 30 June 2006.

   ·       All primary/source documents which support loans recorded at Notes 4 and 6 of its financial accounts for the financial year ended 30 June 2006.

   ·       Its asset register.

   6.That within 21 days ZSB Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

   ·       All primary/source documents which support loans recorded at Note 6 of its financial accounts for the financial year ended 30 June 2006.

   ·       Its asset register.

   7.That within 21 days Z Services Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       Deed of Company Arrangement.

   ·       Schedule of debts forgiven in the financial year ended 30 June 2005.

   8.That within 21 days Cook Street Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       Settlement statements for each sale by Cook Street Pty Ltd since 30 June 2002.

   9.That within 21 days Cook Investments Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       The financial statements and taxation returns for Cook Investments Pty Ltd in its capacity as trustee of the Cook Equity Trust and in its own capacity from 30 June 2002 to 30 June 2006 inclusive.

   10.That within 21 days ZM Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       All financial accounts for the financial years ended 30 June 2002 to 30 June 2006.

   ·       Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

   11.That within 21 days W, N and D Cook (in their capacity as the Cook Partnership) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       All primary/source documents evidencing the creation of and movement in loans made by the partnership to X Land Pty Ltd, YA Pty Ltd, X Developments Pty Ltd, WL, Mr H, and XC Pty Ltd between 1 July 2000 and 30 June 2006.

   12.That within 21 days X Land Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       All primary/source documents which support the recorded loan to X Developments Pty Ltd.

   ·       All primary/source documents which record investments in X Developments Pty Ltd, Cook Street Pty Ltd and in R Street.

   13.That within 21 days Cook Street Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       All primary/source documents in relation to the secured non-current loan of $2,601,042 in the financial year ended 30 June 2004.

   14.That within 21 days X Developments Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       All primary/source documents in relation to investments in XA Pty Ltd, XD Pty Ltd and SC Pty Ltd.

   15.That within 21 days XC Pty Ltd (as Trustee for XD Facility) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       Market value of property recorded in the balance sheet as 30 June 2006 at $4,411,822.52.

   16.That within 21 days XA Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

   ·       Market value of land and buildings referred to in financial accounts at 30 June 2006 at $2,753,566.

   ·       The lease between XA Pty Ltd and its tenant.

   17.That the wife’s Form 2 application filed 1 December 2006 shall be otherwise dismissed.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date:  14 November 2007

Z NOMINEES PTY LTD

As Trustee for the Cook Engineering Trust (“the Trust”)

(2^nd Respondent)

and

Z CONSTRUCTIONS PTY LTD

(3^rd Respondent)

and

ZL  PTY LTD  

(4^th Respondent)

and

Z EARTH PTY LTD  

(5^th Respondent)

and

Z HIRE PTY LTD  

(6^th Respondent)

and

ZSC PTY LTD

(7^th Respondent)

and

ZSB PTY LTD

(8^th Respondent)

and

Z SERVICES PTY LTD

(9^th Respondent)

and

COOK STREET PTY LTD  

(10^th Respondent)

and

COOK INVESTMENTS PTY LTD                

(11^th Respondent)

and

ZM PTY LTD

(12^th Respondent)

and

N COOK (as a partner of the COOK PARTNERSHIP)

(13^th Respondent)

and

X LAND PTY LTD

(14^th Respondent)

and

X DEVELOPMENTS PTY LTD  

(15^th Respondent)

and

XC PTY LTD

(16^th Respondent)

and

XA PTY LTD

(17^th Respondent)

and

XB PTY LTD

(as Trustee for the XB Unit Trust)

(18^th Respondent)

and

YA PTY LTD  

(19^TH Respondent)

and

Y INVESTMENTS PTY LTD  

(20^th Respondent)

ORDERS SOUGHT BY THE WIFE:

1.That forthwith X Nominees Pty Ltd (in its capacity as trustee for the Cook Engineering Trust) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·All primary/source documents which support the existence of assets of the Trust being a loan to RT and loans to the Cook Family Trust.

2.That each of the following companies provide Mr L with its authority to view its business and confer with its management:

·          Z Constructions Pty Ltd

·          ZL Pty Ltd

·          Z Earth Pty Ltd

·          Z Operations

·          Z Hire Pty Ltd

·          ZSC Pty Ltd

·          Z Services Pty Ltd

3.That forthwith Z Constructions Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Primary/source documents in support of the notes recorded in the detailed profit and loss accounts for the financial year ended 30 June 2006.

·Each Certificate of Title which makes up the land recorded in the inventory at Note 5 to the financial accounts for the year ended 30 June 2006.

·Current market valuation of the land recorded in the inventory at Note 5 to the financial accounts.

·Certificate of Title to the land and buildings recorded at Note 6(a) to the financial accounts as at 30 June 2006.

·Valuations of the land and building recorded at Note 6(a) to the financial accounts.

·All documents in support of the loans recorded at Notes 8 and 10 of the financial accounts for the financial year 2006.

·Its asset register.

4.That forthwith ZL Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2005 (inclusive).

·All documents in support of the loans recorded at Note 4 of its financial accounts for the year ended 30 June 2006.

·Its asset register.

·Primary/source documents which support the loans recorded at Note 6 of its financial accounts for the financial year ended 30 June 2006.

5.That forthwith Z Earth Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Its asset register.

·All primary/source documents in support of loans recorded at Notes 4 and 7 of its financial accounts for 30 June 2006.

·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006.

6.That forthwith Z Operations deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

·All financial documents being balance sheets and profit and loss accounts for the financial years 30 June 2002 to 30 June 2006 (inclusive).

·Its asset register.

7.That forthwith Z Hire Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

·Its asset register.

·All primary/source documents which support loans recorded at Notes 4 and 7 of its financial accounts for the year ended 30 June 2006.

8.That forthwith ZSC Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Detailed profit and loss statements for the financial year ended 30 June 2006.

·All primary/source documents which support loans recorded at Notes 4 and 6 of its financial accounts for the year ended 30 June 2006.

·Its asset register.

9.That forthwith ZSB Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2005 [6?] (inclusive).

·All primary/source documents which support loans recorded at Note 6 of its financial accounts for the year ended 30 June 2006.

·Its asset register.

10.That forthwith Z Services Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Deed of Company Arrangement.

·Schedule of debts forgiven in the financial year ended 30 June 2005.

11.That forthwith Cook Street Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Settlement statements for each sale by Cook Street Pty Ltd since 30 June 2002.

12.That forthwith Cook Investments Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Primary/source documents recording its dealings with Cook Equity Trust.

13.That forthwith MZ Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·All financial accounts for the years ended 30 June 2002 to 30 June 2006.

·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

14.That forthwith W, N and D Cook (in their capacity as the Cook Partnership) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·All primary/source documents in support of loans made by the partnership to X Land Pty Ltd, YA Pty Ltd, X Developments Pty Ltd, WL, Mr H and XC Pty Ltd.

·All Bank records of the Partnership as and from 1 July 2004.

15.That forthwith X Land Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·All primary/source documents which support the recorded loan to X Developments Pty Ltd.

·All primary/source documents which record investments in X Developments Pty Ltd, Cook Street Pty Ltd and in R Street.

16.That forthwith Cook Street Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·All primary/source documents in relation to the secured non current loan of $2,601,042 in the financial year ended 30 June 2004.

17.That forthwith X Developments Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·All primary/source documents in relation to investments in XA Pty Ltd, XD Pty Ltd and XC Pty Ltd.

18.That forthwith XC Pty Ltd (as Trustee for XC Facility) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Market value of property recorded in the balance sheet as 30 June 2006 at $4,411,822.52.

19.That XC Pty Ltd provide Mr L with its authority to view its business and confer with its management.

20.That forthwith XA Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Market value of land and buildings referred to in financial accounts at 30 June 2006 at $2,753,566.

·The lease between XA Pty Ltd and its tenant.

21.That forthwith XB Pty Ltd (as Trustee for the XB Unit Trust) deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·All primary/source documents in relation to its investment in YA Pty Ltd.

22.That forthwith YA Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·Detailed profit and loss statements for the financial years ended 30 June 2002 to 30 June 2006.

·Its asset register.

·All primary/source documents which supported the company’s loan application to Capital Finance (recorded in the financial accounts as at 30 June 2006 as a secured interest bearing liability).

23.That YA Pty Ltd provide Mr L with its authority to view its business and confer with its management.

24.That forthwith Y Investments Pty Ltd deliver to Marshalls & Dent, Solicitors for the wife, true copies of:

·The financial accounts for the financial years ended 30 June 2002 to 30 June 2006 (inclusive).

1. That the wife’s costs of and incidental to this application be reserved to be determined by the Trial Judge.

1. Such further or other orders as this Honourable Court deems meet.

THE X GROUP
THE Y GROUP			THE COOK GROUP