Cortini & Cortini

[2007] FamCA 737

FAMILY COURT OF AUSTRALIA

CORTINI & CORTINI [2007] FamCA 737

FAMILY LAW - PROPERTY  - Application for funds to prosecute property litigation

Family Law Act 1975 (Cth) - s 117

Wilson (1989) FLC ¶ 90-033
Poletti (1990) 15 FamLR 794
Breen (1990) 65 ALJR 195
Zschokke (1996) FLC ¶ 92-693

Reserved Judgment
(Delivered in Chambers)

Applicant: MS CORTINI

Respondent: MR CORTINI

File Number: MLF 3068 of 2005

Date Delivered: 26 July 2007

Place Delivered: Melbourne (In Chambers)

Judgment of: Carter J

Hearing Date: 29 May 2007

Representation

Counsel for the Applicant: Mr Bartfeld QC

Solicitor for the Applicant: Vincent Verducci & Assoc

Counsel for the Respondent: Mr Scarfo

solicitor for the Respondent: AG & Co

Orders made 29 May 2007

1. That from the proceeds of settlement and the sale of the real property situate at and known as Units 1 to 27 and Units 2 to 14 at S the husband pay or cause to be paid the sum of $134,500 to Messrs  Vincent Verduci and Associates as trustees for the wife.

2. That the said sum of $135,500 be applied by the wife’s solicitors as follows:

   (a)To pay any outstanding legal fees, disbursements or expert fee associated with the wife’s claim for property settlement, and spousal maintenance and departure from an assessment of child support (“the wife’s applications”);

   (b)To pay as and when they are incurred any legal fees, counsels’ fees, experts’ fees and proper disbursements associated with the further preparation and conduct of the wife’s applications.

3. That such part of the sum provided for in par (1) of this order as is not immediately expended by, invested by, the wife’s solicitors in an interest-bearing account in the name of the wife.  The said solicitor be at liberty to draw funds from such account as may be necessary to meet the wife’s obligation to meet legal costs and disbursements.

4. That the wife’s solicitor’s account for any interest earned in respect of the investment account referred to in par (3) hereof.

5. That the payment referred to in par (1) and the interest referred to in par (3) be taken into account by the trial judge and characterised as the said trial judge deems appropriate.

6. That the question of costs of this application be reserved to the trial judge.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:   MLF   3086 of 2005

MRS CORTINI

Applicant

and

MR CORTINI

Respondent

REASONS FOR JUDGMENT

R

eserved

(Delivered in Chambers)

1. Proceedings are pending in this Court for alteration of interests in property, amongst other things.  Mrs Cortini (“the wife”) says she can no longer afford to fund the proceedings and seeks that Mr Cortini (“the husband”) make a payment to her to enable her to do so.

2. The proceedings came before me in a very busy Duty List on 29 May 2007.  I was able to determine the application and made orders.  However, time did not permit me to explain the reasons for those orders.  I now turn to do so.

Short History

1. The husband and the wife were married on 11 May 1991 and separated on 17 May 2005.  It is the wife’s case that, whilst cohabitation did not occur prior to marriage, the parties had a sexual relationship for five years before marriage, at a time when she was residing elsewhere with her son, who was then aged 11.  The husband has not disputed this.

2. There are two children of the marriage, both daughters.  A is aged 15, having been born in October 1991 and L is aged 14, having been born in March 1993.  It is common ground that both these children live with the wife in the former matrimonial home.  The husband does not dispute the wife’s contention that she has been the children’s primary carer since their birth and continues in this role.  The husband adds however that he assisted greatly with the care and for the needs of the children, both during marriage and after separation.

3. The husband is a legal professional in private practice.  He has not filed a recent Financial Statement and I am unsure about his income.  The wife does not engage in paid employment.  Her income derives from family payment and child support which the husband pays for the benefit of the parties’ daughters.  The wife also receives a 50 per cent share of the rental monies from certain items of real estate pursuant to orders made by Dessau J on 24 November 2005.  She has deposed in her Financial Statement that she receives from this source the sum of $364 per week, after deducting repair costs, caretakers' fees, accountants' fees and sundry expenses.  The husband is entitled to the balance of these rental monies pursuant to the same orders.

4. The proceedings commenced in the Federal Magistrates Court when the husband filed an application seeking children’s orders on 24 May 2005.  The wife responded on 2 June 2005 and sought orders for an alteration of interests in property as well as children’s orders.  The husband replied on 7 June 2005 and he too has sought, amongst other things, orders relating to property.  The parties have not properly particularised their applications in respect of alterations of interest in property.

5. On 18 July 2005 Hartnett F M transferred the proceedings to this Court, as well as making various other orders.

6. On 11 November 2005 the wife filed an Application in a Case effectively seeking spousal maintenance and also seeking orders in relation to the provision of financial documentation by the husband.  The husband’s response to that application was filed on 21 November 2005 and the proceedings were determined by Dessau J, as seen, on 24 November 2005.  As well as the order relating to the sharing of rental monies her Honour also made orders, inter alia, requiring the husband to produce financial documents in relation to certain named entities.  There was also an order made that the wife be entitled to access the sum of $120,000 which was then on term deposit with the Bendigo Bank in her name, with the characterisation of any monies accessed from this account to be characterised by the trial judge.

7. The parties are currently awaiting a Pre-Trial Conference which has been fixed for hearing on 9 August 2007, following a number of administrative adjournments.

8. The present application was filed by the wife on 18 May 2007.  Contemporaneously the wife caused to be filed an affidavit sworn or affirmed on 17 May 2007 together with an updated Financial Statement.  The wife also relied on an affidavit by her solicitor, Mr Singh, also filed 18 May 2007.

9. The husband did not file a response to the application, however, did file an affidavit on 25 May 2007 in which he opposed the wife’s application.

10. The wife was represented by Mr Bartfeld of Her Majesty’s counsel and the husband was represented by Mr Scarfo of counsel.  A number of orders which had been sought by the wife in her application were abandoned and the focus of the hearing was on the provision of funds to the wife so that she could prepare her case for trial.

11. The hearing was conducted “on the papers”, the parties relying on their respective affidavits and the submissions made on their behalf without any viva voce evidence or cross-examination taking place.

Legal Principles

1. In Zschokke (1996) FLC ¶ 92-693 the Full Court gave extensive consideration to earlier authorities dealing with the power to make an order requiring one spouse to provide the other with funds to prosecute family law litigation. Amongst the authorities considered were Hogan (1986) FLC ¶ 91-704; Wilson (1989) FLC ¶ 90-033; Poletti (1990) 15 FamLR 794; and Breen (1990) 65 ALJR 195.

2. Their Honours concluded, that whilst the then present state of the law remained somewhat unclear, it could be asserted with some confidence in light of Brennan J’s comments in Breen that there was at least power under s 117(2) (“the costs power”) for the Court to make an order which seeks to ensure that one party should be able to prosecute pending matrimonial proceedings and that the other party should provide the first-mentioned party with the funds required to do so.

3. It was further held that the question as to whether such an order could be supported under s 74 (“the maintenance power”) must be considered in the light of Breen and notwithstanding Wilson, to remain open. 

4. The question of whether s 114 (“the injunction power”) could be relied upon was held to remain open given the decision in Poletti.

5. It was further held that the decisions in Wilson and Poletti were authority for the proposition that where there were pending proceedings for property proceedings under s 79 the Court might, pursuant to s 80(1)(h) and independently of the costs power, require the party who is entitled to most of the assets of the parties to provide the other party with funds to conduct his or her case, with the provision of such funds then being a matter to be taken into account in the final settlement of property between the parties.

6. The judge at first instance in Zschokke had considered that there were five criteria which could be drawn from existing authority. The Full Court held that there was no doubt, whether the matter was determined under s 80(1)(h) or as an interim costs (or security for costs) order under s 117(2), or as a maintenance order, certain of the matters identified by her Honour would all be relevant. These were:

   ·A position of relative financial strength on the part of the respondent;

   ·A capacity on the part of the respondent to meet his or her own litigation costs;

   ·An inability on the part of the applicant to meet his or her costs.

7. The other two criteria identified by the learned trial judge, namely complexity in the financial affairs of the respondent and a need for expert investigation into those affairs were also considered by the Full Court.  As they noted, in Hogan, Wilson, Poletti and Breen the husband’s financial affairs could be described as complex or needing expert investigation or both.

8. However, the members of the Full Court agreed with the submission that those factors were not necessarily pre-conditions for the making of an order of the type in question under any of the possible heads of power.  The existence of complexity and/or the need to investigate was said to be a factor or factors which would add considerable weight to the case for an order of the type in question. 

9. In Zschokke, (at 83,216-217) the Full Court also referred to the need for a trial judge, in deciding an application for an advance of funds to enable the prosecution of property settlement proceedings, to be satisfied that the applicant would ultimately receive sufficient funds by way of property settlement to enable the advance to be taken into account in that settlement.

10. In the present case I have determined to utilise the source of power provided in s 117 of the Family Law Act 1975 (Cth) (“the Act”).

11. Section 117 of the Act provides, relevantly, that subject to s 117(2) of the Act, each party to proceedings under the Act shall bear his or her own costs. The word “costs” is not defined in s 4 of the Act, however, it is defined for the purposes of family law proceedings in the dictionary of the Family Court Rules 2004 and means, “an amount paid or to be paid for work done by a lawyer, and includes expenses.” In the context of applications such as I am presently determining the costs could include a claim for monies already paid as well as for anticipated costs.

12. If I am of the opinion that there are circumstances that justify me in so doing, I may, subject to s 117(2A), (4) and (5) and the applicable Rules of Court make such order as to costs, whether by way of interlocutory order or otherwise, as I consider just. (See s 117(2).)

13. In considering what order (if any) should be made under s 117(2), I am required by s 117(2A) to have regard to the matters set out in s 117(2A)(a) to (g). The factors set out in these sub-paragraphs do not comprise a closed list of factors, given that s 117(2A)(g) includes “such other matters as the Court thinks relevant”. Each of the various factors needs to be considered, subject to relevance, however, in Fitzgerald(as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 FamLR 123 the Full Court held at [41]:

    “Nowhere in subsection (2A) or elsewhere in section 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subsection (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.”

Discussion

1. I have been handicapped in formulating an assessment of the pool of assets because the husband has not filed a recent Financial Statement.  However, the wife has set out in par 22 of her affidavit a table identifying five separate items of real estate owned by her or the husband and in one instance, by them both.  In par 23 the wife has set out a further six properties in which she asserts that the husband has an interest.  The husband has responded to both these paragraphs in his own affidavit.  He does not deny the wife’s evidence nor the values attributed to the various assets.  In par 22 of his affidavit he does say that the property in the wife’s name exceeds his property and the tenor of correspondence annexed to the affidavits seems to highlight what the husband regards, and what may be, higher contributions made by him than have been made by the wife.

2. Based on the evidence in the wife’s material, which as I have said has not been disputed by the husband, it appears to be the case that the wife has real estate registered in her name with a total value of $1,005,000.  She also has an 80 per cent interest in six units at E, the units having a total value of $930,000.  The wife’s interest would therefore be $744,000.  The total interest in real estate is therefore $1,749,000.

3. The husband’s interest of 20 per cent in the units would be $186,000 and he also has in his name a property at N, valued at $250,000.  The husband’s interests in the properties listed in par 22 would therefore total $436,000.

4. The wife has set out in par 23 of her affidavit that the husband has an interest in a further six properties.  One of them is a car parking complex which  the wife has said has not as yet been valued but the other properties are valued at a total of $6,320,000.  I do not know. of course, the extent of the husband’s interests in any of those properties.

5. In par 24 of her affidavit the wife has noted that the single expert Chartered Accountant has not completed his report as to the value of the husband’s legal practice;  his entitlement in H Pty Ltd;  his entitlement in the F Trust;  his entitlement in the AG Trust;  the parties’ entitlements in the Cortini Family Trust;  and the parties’ entitlements in the Cortini Superannuation Fund.

6. The husband has not disputed this in his material.  He has specifically referred to pars 22-24 of the wife’s affidavit but in his own affidavit he concentrates on the history of the assets, some of which were transferred into the wife’s name and highlights what he considers to be his infinitely superior contributions when compared with those of the wife.

7. The wife has set out in her Financial Statement her liabilities which total $190,000, including legal costs.  There is reference in the correspondence annexed to the affidavits of debts to the National Australia Bank amounting to some $225,000, otherwise I have no idea of what may be the liabilities of the husband or any of the entities.

8. However, what can be gleaned from the undisputed material is that the parties are registered as proprietors, either in their own names or together, of real estate with a total value of $2,185,000, being the real estate described in par 22 of the wife’s affidavit.  Even if a deduction was made for the amount said to be owing to the National Australia Bank, there would be a nett entitlement in this real estate alone of $1,960,000.  I repeat this does not take into account the husband’s interests in the real properties listed in par 23 of the wife’s affidavit, which may or may not be included in the value of some of the entities at least detailed in par 24 of the wife’s affidavit.

9. As earlier noted, the parties have not particularised their applications in respect of alterations of interests in property.  This is not a criticism given that the process of discovery and valuations appears not to have been completed.  Nonetheless, the parties will need to give attention to this very soon.  In the meantime, whilst acknowledging that I cannot make any findings or predict the eventual outcome of the proceedings, certain matters do emerge on the uncontested evidence.

10. The nett entitlement of the parties in the real estate listed only in par 22 of the wife’s affidavit is $1,960,000.

11. As earlier noted the wife was granted access to funds in her name of $120,000 with the characterisation of any monies accessed to be determined by the trial judge.  She now seeks a further $134,500, again with the characterisation of the payment to be determined at trial.  In all she therefore seeks, or has had, a total of $254,500.  This would equate to about 12.98 per cent of the sum of $1,960,000.

12. It is the husband’s case, as can be discerned from his affidavit, that the wife contributed only $10,000 towards the purchase of some fixtures and fittings for the former matrimonial home, and otherwise that the wife made no contributions whatsoever towards the acquisition or repayment or maintenance of any of the properties mentioned in pars 22-24 of the wife’s affidavit.  Further, the husband has deposed that with the exception of the W property, which forms part of the superannuation fund, and the property at N, which was purchased after separation, all the properties were purchased prior to the marriage and either were paid in full prior to the marriage, or were self sufficient in the repayment of the mortgages.  Additionally, the husband has alleged that the former matrimonial home was purchased prior to marriage, but settled just after the marriage.  He had initially contributed the sum of about $110,000 towards the purchase and borrowed a further $120,000 or thereabouts.  Subsequently, the mortgage was paid out in full in or about 2003, following the sale of a property the husband says he had in partnership with others.  This property had also been, according to the husband’s evidence, fully paid for and purchased prior to marriage.  The husband also alleges that in or about 1990 he received advice to divest himself of property and accordingly transferred the former matrimonial home together with some of the investment units into the wife’s name.

13. Even if it is established at the final hearing that the husband’s initial contributions vastly exceeded those of the wife and that he was overwhelmingly the person who contributed financially during the marriage, that does not mean that the wife’s contributions will be ignored.  The weight to be given to any disparity in those financial contributions will be assessed and considered in the circumstances of a 14 year marriage, during which, and at the very least, it is common ground that the wife was the primary carer of the parties’ two children.  Authority dictates that the wife’s contributions to the welfare of the family should not be regarded in a token way.

14. When the time comes to consider the s 75(2) factors the parties’ respective incomes and earning capacities will be compared as well as their obligations to continue to care for their children (inter alia).

15. While I am not able to make any findings as to the extent and value of the financial circumstances of the husband and wife, I am comfortably satisfied that there is a serious case to be tried and the wife has a prima facie claim to a reasonable property settlement for the reasons discussed above.  I am also satisfied that the payment of the amount sought, and the other payment made pursuant to the order of Dessau J on 24 November 2005 would be able to be taken into account in the final determination of the substantive applications of these parties.

1. The total amount sought by the wife is $134,500.  Her solicitor has estimated that the wife will incur approximately $72,000 in relation to costs, disbursement and counsel’s fees in preparing her case up to the Pre-Trial Conference.  Those costs include legal costs as at the date of his affidavit but do not include costs of the present application.  The costs include fees to be paid to the single expert Chartered Accountant, and fees paid to the joint valuer.  Mr Singh estimates that the wife will incur a further sum of approximately $62,500 for legal costs and disbursements, together with fees for senior and junior counsel in preparing the case for trial and for attending at trial.  He has noted that the wife has already paid accountants’ fees of $7,784 up to February 2007 and that further accountants’ fees will be incurred.

2. Mr Singh has deposed that he is not prepared to be responsible for the payments of the disbursements, experts’ fees and/or counsels’ fees which he has particularised, nor is he prepared to wait until the completion of the matter in order to receive his own profit costs.  He has said that he would be forced to cease to represent the wife in the event that the present application was successful unless some other satisfactory arrangement could be made for payment of counsels’ fees and disbursements, or alternatively, for security for payment of these items.  He concluded his affidavit by noting his advice to the wife that her property settlement would substantially exceed the amount she is seeking by way of interim costs.

3. The husband deposed in his affidavit to his belief that the wife’s costs as set out in her solicitor’s affidavit were excessive.  A number of matters raised in the husband’s affidavit are argumentative and matters for comment.  It is convenient to note here that the husband, who as seen, is himself a solicitor, prepared his own affidavit for the present proceedings.  Further, the firm of solicitors of which he is a partner, act for him in these proceedings.  It can be seen particularly from the correspondence annexed to the various affidavits, that the husband himself, is to all intents and purposes, acting on his own behalf, although I do note that he retained counsel for the present proceedings.  The tenor of some of the correspondence and the affidavit prepared by the husband demonstrate a lack of objectivity, if not bitterness, and the wisdom of the husband continuing to act on his own behalf could well be queried.  Nonetheless, he is presently in a much more fortunate situation than is the wife in respect of legal costs, if not disbursements and expert fees.

4. Because of his legal knowledge and involvement in the various businesses and entities the husband has, or has had, much more information and documentation available to him than appears to be the situation in the wife’s case.  I note, for example, that par (8) of the orders made by Dessau J on 24 November 2005 required the husband to produce to the wife’s solicitors a significant number of documents, including financials, although it also appears from that paragraph that some documents had already been produced to the wife’s solicitors.  This should not be read as any determination of whether or not the husband has made full disclosure.  This is not a matter I am asked to determine and it is a task I could not perform in any event given the circumscribed nature of these proceedings.  However, it certainly appears to be the case that the wife and her solicitors did not have the same knowledge and documentation that the husband had, and accordingly, it may well be that the wife’s costs will be greater as a consequence.  A significant number of items of real estate have had to be valued, and as I have recorded elsewhere, the single expert Chartered Accountant has not completed his report in a significant number of areas.

5. Given these matters, in my view, the amount of costs sought by the wife is not unreasonable.

6. As I have already recorded the wife filed an updated Financial Statement and her total average weekly income was said in that document to be $696.  That figure includes child support for the parties’ two daughters.  The wife has sworn to personal expenditure, including fixed expenditure as set out in Part G and Part N of the Financial Statement in the sum of $1,905 per week.  By far the largest component of that expenditure is expenditure for the children of $1,336 per week.  The husband claims that this expenditure is “extraordinary”;  that the wife must be overspending and living outside the means of an unemployed woman with two children;  and that all of this demonstrates her “complete detachment with reality which has been manifested throughout these proceedings”.

7. It is clear that the wife has had access to significant funds since the parties’ separated, if for no reason other than par (9) of the orders made by Dessau J on 24 November 2005 pursuant to which the wife was entitled to access a term deposit account in her name with the Bendigo Bank standing at some $120,000.  However, it must be recalled that par (9) of her Honour’s orders also provide that the characterisation of any monies accessed be determined by the trial judge.  As I have already determined, that money, together with any amount that I may order to the wife in accordance with her application will not, in my view, exceed an amount that she is likely to receive by way of property settlement, and accordingly this does not stand as an impediment to making an order in the wife’s favour.

8. The husband has pointed to the fact that the wife disclosed in her Financial Statement an amount of $40,800, suggesting that she could utilise this sum for her legal costs.  He added that he did not have any such amount available to him.  This contention is not entirely devoid of merit however clearly the funds held by the wife would not satisfy the anticipated legal costs involved.  Further, it is appropriate in my view, that any remaining capital be retained and, if necessary, applied towards the normal vicissitudes of life.

9. The husband also pointed out that the wife’s solicitors accepted instructions and accordingly, at least in his view, they should continue to act.  He further suggested that the matter could be referred to Legal Aid or alternatively, her solicitors’ costs could be secured by way of a charge over the property “if any awarded to the wife”.  I cannot accept this contention.  Firstly, it is obvious that the assets held in the wife’s name would preclude Legal Aid being granted in the normal course of events.  Secondly, the wife’s solicitor has deposed that he is not prepared to wait for his profit costs and thirdly, there are outstanding disbursements and further disbursements to be incurred in relation to counsels’ fees and accountants’ fees and the like.  It was the husband’s case that he would need to make provision for his own costs for the pre-trial and eventual trial.  However, he did not detail any anticipated difficulty in this regard.

10. It was also contended on behalf of the husband that he did not have the funds requested by the wife.  It was the wife’s case, however, that the monies sought by her could be met from the proceeds of sale of certain property at S.

11. It appears to be common ground that the husband has a 15 per cent interest in the S Trust.  The husband said in his affidavit that this interest “vests with my family Trust and not me personally”.  In any event, R Pty Ltd, as trustee for the S Trust owned property known as Units 1 to 27, 2 to 14 at S.  This property was sold earlier this year.  Settlement was due to take place on 31 May 2007.  The single expert Chartered Accountant, Mr O, estimated that the proceeds of sale would be approximately $378,060.  The husband expressed in his material uncertainty as to the amount of Capital Gains Tax which would be required to be paid, however, it is clear that any such liability will not be payable at the present time.

12. Originally upon becoming aware of the sale the wife’s solicitors requested an undertaking from the husband that the funds distributed under the sale would be held on trust for both parties.  The husband responded a few days later by letter dated 30 March 2007, explaining that he was not able to provide the requested undertaking.  It was his intention, he said in that letter, to utilise the nett proceeds of the sale firstly, to clear all debts due to the National Australia Bank of some $225,000 and to place the balance in an interest-bearing deposit to be used by him for the payment of Capital Gains Tax when later assessed.

13. The wife’s solicitors responded on 17 April 2007 saying that the wife did not consent to the proceeds of sale being utilised by payment of debts to the National Australia Bank.  At that stage, the wife’s position was that the sum should be invested and not used in any way without her prior consent, pending the outcome of the substantive applications.  In the same letter the wife’s solicitors went on to advise that the wife had virtually exhausted all her funds and they explained to the husband that they had been provided with details of the accounts showing how the monies had been expended, namely, and principally, for everyday household expenses, together with education and other expenses for the children.

14. Subsequently, on 30 April 2007, the wife’s solicitors again wrote to the husband advising that she was unable to fund her expenses in relation to the proceedings.  The payment of $134,500 was requested to cover litigation expenses.  Details of how that amount was calculated was set out.  Further funds were also sought in relation to work to be carried out on the former matrimonial home, however, this was not a matter pursued before me.  The wife’s solicitors noted that the husband had not responded to their letter of 17 April 2007 and advised that, in the absence of an undertaking that the husband’s share of the sale proceeds would be invested and not distributed, except with the consent of both parties or an order of the Court, an application for a restraining order would be made.

15. The husband’s response as to this was contained in a letter dated 1 May 2007.  He rejected the request, although the language he used was rather more colourful than mine.

16. In all of those circumstances, in my view, there was a fund from which the monies sought by the wife could be met.  The husband clearly had control of it.  It is further the case in my view, that the wife established that she did not have the capacity to pay her own legal costs.

17. It is convenient to note here that the wife had pointed out in her affidavit that she could not borrow funds to be secured by the properties to which she holds title because the nature of the interest transferred to her is, inter alia, the subject of the property proceedings in this Court.  Presumably this is a reference to par (4) of the husband’s Reply filed in the Federal Magistrates Court on 7 June 2005 in which he sought:

    “That there be a Declaration that the real estate properties located at [E], and [B], together with any other asset or interest held by the husband prior to the marriage are the sole and exclusive property of the Husband.”

18. In any event the wife, in my view, would not have the capacity to service any such loan given her financial circumstances.

19. I now turn to consider the matters set out in s 117(2A) of the Act.

Financial Circumstances

1. I have already referred to the wife’s updated Financial Statement and the matters set out therein.  As seen, her total average weekly income was disclosed to be $696 before tax.  That sum included maintenance or child support in the sum of $288;  Family Payment of $44.00;  and nett rental after deducting repair costs, caretakers fees, accountants fees and sundry expenses of $364.  That rental payment arises from par (2) of the orders made by Dessau J on 24 November 2005 which entitled the parties to be entitled equally to the rental monies received from certain named real properties, after deduction of commission.  Whilst I do not have the benefit of an updated Financial Statement from the husband, self-evidently he is entitled pursuant to the same order to the balance of the rental income from those properties.  He is in employment from which he presumably derives some income.  The parties have considerable financial resources which have also been recorded earlier.  I have no further information as to the husband’s financial circumstances save as has already been noted elsewhere.

Legal Aid

1. Whilst this matter was not addressed it is quite obvious to my mind from the nature of the parties’ resources at least, that neither party would be entitled to a grant of legal aid.

Conduct of the Parties to the Proceedings in relation to the Proceedings

1. I have already referred to par (8) of the orders made by Dessau J on 24 November 2005 requiring the husband to produce significant documentation.  I also note that some four months earlier Hartnett F M made orders on 18 July 2005 and par (3) of those orders required the husband to produce significant documentation as well.  In the circumstances of the case as it has been conducted before me, it is obviously impossible for me to make any determination as to whether there has been any delay or other complications in disclosure.

Whether the Proceedings were necessitated by the Failure of the Party to the Proceedings to Comply with Previous Orders of the Court

1. This matter is not relevant.

Whether any Party to the Proceedings has been Wholly Unsuccessful in the Proceedings

1. This matter is not relevant.

Offer in Writing to Settle the Proceedings

1. This is not a relevant matter.

Such Other Matters as the Court Considers Relevant

1. In my view, these proceedings have a degree of complexity which can be easily seen from pars 22, 23 and 24 of the wife’s affidavit.  A significant number of business entities and items of real estate have had to be valued and the Chartered Accountant’s Report has not as yet been completed.  Clearly, the wife needs assistance from her legal advisers and other professionals and experts so that the extent of the husband’s financial affairs can be ascertained.

2. I am satisfied that the wife does not have the capacity to meet her own litigation costs and I am also satisfied that the husband is in a superior position to the wife in respect of legal costs, if not disbursements and expert fees.

3. I am satisfied on the evidence that the wife’s solicitor is not prepared to wait for his profit costs;  nor is he prepared to be responsible for the payment of disbursements, experts’ fees nor counsel’s fees.  No meaningful alternative arrangement can be made in the circumstances of this case and in those circumstances I accept that the wife’s solicitor will be forced to withdraw.  This would leave the wife in the almost impossible situation of having to conduct complex litigation without legal representation.

4. I am satisfied that the requested funds and funds already paid to the wife can be taken into account at the final hearing.

5. In all those circumstances I am satisfied that the wife has established justifying circumstances and that an order should follow.  For those reasons I made orders on 29 May 2007, inter alia, in the following terms which are set out on p 3 of the Cover Sheet and Orders at the beginning of this Judgment.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carter.

Associate:                 

Date:    26 July 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CORTINI & CORTINI