Curtain & Curtain
[2022] FedCFamC1F 186
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Curtain & Curtain [2022] FedCFamC1F 186
File number(s): ADC 4409 of 2013 Judgment of: MEAD J Date of judgment: 25 March 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Summary dismissal – Application by husband for summary dismissal of application brought by the wife pursuant to provisions of section 79A(1)(a) of the Family Law Act 1975 – Where it is sought that a final order for settlement of property made in April 2016 be set aside – Where it is submitted that the wife’s documents prima facie do not disclose any fraud or suppression of evidence – Where it is submitted that if the documents do disclose any fraud or suppression of evidence in any event it did not result in a miscarriage of justice – Where it is submitted that there is no reasonable chance of success – Where the wife submits that the husband did not properly disclose his interest in an entity – Where the husband submits that the wife had possession and/or access to documents in question – Where it is found that the wife has established that the husband failed to disclose evidence – Where it is found that the husband intentionally misled the wife and the Court – where the Court is unable to be satisfied that the wife has no reasonable prospect of success – Where the application for summary dismissal is dismissed Legislation: Family Law Act 1975 (Cth) ss 45A, 45A(2), 45A(3), 79, 79A, 79A(1)(a)
Family Law Rules 2004 (Cth) rr 10.12(d), 10.14(a)
Cases cited: Barker & Barker [2007] FamCA 13
Bigg v Suzi (1998) FLC 92-799
Gorga v Gorga [2020] FCWA 51
Lindon v The Commonwealth (No 2) (1996) 136 ALR 251
Ritter & Ritter & Anor (2020) FLC 93-957
Division: Division 1 First Instance Number of paragraphs: 84 Date of hearing: 23-24 August 2021 Place: Adelaide Counsel for the Applicant: Ms Pyke QC Solicitor for the Applicant: Jordan & Fowler Family Lawyers Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: C M Tucker & Associates ORDERS
ADC 4409 of 2013 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CURTAIN
Applicant
AND: MR CURTAIN
Respondent
ORDER MADE BY:
MEAD J
DATE OF ORDER:
25 MARCH 2022
THE COURT ORDERS THAT:
1.That the Application in a Case filed herein on 18 January 2021 be dismissed.
2.That the question of costs be reserved.
3.That trial directions be adjourned to 6 May 2022 at 9.15am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Curtain & Curtain is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
On 4 December 2019 I delivered reasons in proceedings between Ms Curtain (“the wife”) and Mr Curtain (“the husband”) relating to the wife’s application to bifurcate the hearing regarding orders sought by her under s 79A and s 79 of the Family Law Act 1975 (Cth) (“the Act”) in an Initiating Application filed on 29 November 2017. The order made that day dismissed the wife’s application to bifurcate the hearings and dismissed certain interim applications of the husband.
These reasons should be read in conjunction with the reasons delivered on 4 December 2019, particularly the matters contained in paragraphs 1 to 28, 87 to 90 and 92 to 101.
These reasons relate to the Application in a Case filed by the husband on 18 January 2021 wherein he sought the following orders:
1.That the Application of the Wife filed the 29th November 2017 be summarily dismissed.
2.That the Wife pay the Husband’s costs of this Application.
On 19 April 2021 the wife filed a Response wherein she sought the following orders:
1.That the Application in a Case filed by [Mr Curtain] on 18/1/21 be dismissed.
2.That the time for the filing of an affidavit and book of documents by the Respondent be extended to 10/5/21 at 4.00pm.
The matter was argued before me on the papers on 23 and 24 August 2021.
The husband was represented by Mr McQuade of Counsel and the wife by Ms Pyke of Queen’s Counsel.
Background
The background to this matter was set out in detail in my earlier judgment of 4 December 2019 to which I have referred. I incorporate the particular paragraphs of that judgment to which I have referred in the introduction to these reasons to avoid a repetition of the relevant facts.
It was the position of the husband at the hearing on 23 and 24 August 2021 that the wife’s substantial application filed on 29 November 2017 be summarily dismissed. In that application the wife sought that the Court set aside the final order for settlement of property made by Berman J on 15 July 2016 (as amended on 26 July 2016) and in place thereof make such order for settlement of property or adjustment of interests in property as the Court deems just and equitable. It was submitted by the husband’s counsel that it is apparent on the face of the wife’s documents that they do not disclose any fraud or suppression of evidence or if they do, no miscarriage of justice occurred, resulting in the wife’s claim having no reasonable chance of success.[1]
[1] The Husband’s Outline dated 22 August 2021 – pp 3 and 5.
It was submitted by counsel for the wife that on any view the wife’s case shows a reasonable argument and a good chance of success in circumstances where the husband had failed to make proper disclosure of his interest in the Q Trust, that he had taken active steps to conceal the real nature of his equitable interest in that entity prior to the 2016 trial, that he had deliberately misled the Court at trial as to the nature of his involvement/interest with the entity, and that the failure to disclose both the nature and value of that entity and funds due to PP Pty Ltd were both material non-disclosures.[2]
[2] Case Outline filed on behalf of the Wife on 20 August 2021 – pp 5 and 6.
Documents relied on
The husband relied on his Application in a Case to which I have referred together with an affidavit filed on 18 January 2021 and a further affidavit filed without leave on 12 August 2021. The husband also relied on a Book of Documents.
The wife relied upon her Response to the Application filed on 19 April 2021 to which I have referred together with affidavits filed on each of 29 November 2017, 11 November 2019 and 11 May 2021 as well as Volumes 1 and 2 of her Book of Documents and a Supplementary Book of Documents.
Legal principles pertaining to summary dismissal
The Act deals with the issue of summary decrees in s 45A. The relevant sections for the purposes of these proceedings are in the following terms:
45A Summary decrees
…
No reasonable prospect of successfully prosecuting proceedings
(2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a)the first party is defending the proceedings or that part of the proceedings; and
(b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
…
Costs
(6)If the court makes a decree, or dismisses all or part of proceedings, under this section, the court may make such order as to costs as the court considers just.
Action by court on its own initiative or on application
(7)The court may take action under this section on its own initiative or on application by a party to the proceedings.
This section does not limit other powers
(8)This section does not limit any powers that the court has apart from this section.
Part 10.3 of the Family Law Rules 2004 (“the Rules”) set out the practice and procedure and the Court’s powers in relation to an application for a summary order. Part 10.3 is in the following terms:
Part 10.3 – Summary orders and separate decisions
Note:An application under this Part is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).
10.12 Application for summary orders
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
10.13 Application for separate decision
A party may apply for a decision on any issue, if the decision may:
(a) dispose of all or part of the case;
(b) make a trial unnecessary;
(c) make a trial substantially shorter; or
(d) save substantial costs.
10.14 What the court may order under this Part
On an application under this Part, the court may:
(a) dismiss any part of the case;
(b) decide an issue;
(c) make a final order on any issue;
(d) order a hearing about an issue or fact; or
(e)with the consent of the parties, order arbitration about the case or part of the case.
Note:This list does not limit the powers of the court. The court may make orders on an application, or on its own initiative (see rule 1.10).
For the purposes of this matter the Court must have regard to the provisions of s 45A(2) and s 45A(3) of the Act and r 10.12(d) and r 10.14(a) of the Rules in circumstances where the husband seeks an order dismissing the entirety of the wife’s Initiating Application.
The husband’s evidence
The husband relied on the evidence contained in his affidavit filed on 18 January 2021 and on 12 August 2021.
In that filed on 18 January 2021 he deposed to:
·the history of his involvement with Mr LL, Ms QQ and their associated corporate entities including W Pty Ltd the trustee of the Q Trust, and discussions with the wife prior to separation regarding inducements offered to him commencing in 2010 to join W Pty Ltd;
·he and the wife’s social interactions with Mr LL and Ms QQ;
·the wife’s dismissive attitude expressed to him of the concept of the J Town development proposed by W Pty Ltd;
·the various reasons the wife gave him for her dismissive attitude towards the concept;
·him continuing nevertheless to promote the benefits of the proposed development of J Town and the offers he had received from Mr LL and Ms QQ to the extended family and to the wife;
·receiving a written offer of employment from W Pty Ltd in 2012 when he, the wife and their children were holidaying interstate with the wife’s younger brother and partner and discussing the email and the offer with the wife and her brother;
·both he and the wife being suspicious as to the offer not divulging the total number of shares he was being offered in the company although the value of the shares was said to be $1.5 million;
·further discussions in RR Town with the wife and friends about the J Town development proposal and offer from W Pty Ltd during the family’s time there after the interstate holiday;
·the wife confirming to him prior to Christmas in 2012 that she intended to separate from him and move to Adelaide with the children;
·receiving correspondence from W Pty Ltd by email dated 18 February 2013 offering him a twenty per cent equity in the Q Trust at the commencement of any employment and a further twenty per cent equity in any further transport facility entity subject to performance;
·printing the letter out, signing it on 1 March 2013 and hand delivering it at his initial board meeting for the W Pty Ltd Board at SS Town, Queensland in 30 May 2013;
·resigning as “CEO” of the JJ Board in 2013, and returning to the Board his work laptop and car;
·the wife being critical of his resignation from the JJ Board as expressed in correspondence from her solicitor (letter from the wife’s previous solicitors to the husband dated 16 October 2013 – Document 2 in the husband’s Book of Documents);
·being appointed as an officer of W Pty Ltd on 1 May 2013 and commencing employment with that company on 27 May 2013;
·deleting all files and emails from his JJ Board laptop on returning same but retaining a copy of the letter from W Pty Ltd dated 18 February 2013 signed by him on 1 March 2013;
·keeping that copy in correspondence in his filing cabinet at the Suburb TT property;
·preparing a contract of employment between he and W Pty Ltd as requested of him by Mr NN, the accountant and business associate of Mr LL and Ms QQ, signed by him on 10 June 2013 and by Mr NN on 21 June 2013 (Document 3 in the husband’s Book of Documents);
·at all times thereafter being paid as a contractor;
·the wife’s solicitors requesting a copy of the contract by correspondence dated 2 December 2014;
·the copy being included in his discovery as and from 5 December 2014;
·in the correspondence of 2 December 2014 the wife’s former solicitors requesting a copy of the correspondence to the husband from W Pty Ltd dated 18 February 2013 containing the offer of equity in the Q Trust;
·being unable to find the copy of the correspondence after searching in a manila file marked “W Pty Ltd – Contracts” but the document not being in that file;
·his attention thereafter being diverted to farm harvest, the construction of the J Town development and the wife’s signing of a contract for the purchase of a property at Suburb G;
·there being no further requests from the wife’s solicitors for that document;
·trying to comply with extensive requests from the wife and her solicitors for discovery and production of documents;
·the wife being able to access his personal documentation when she attended at the Suburb TT property in February 2013, May/June 2013, November 2013, May 2014 and on or about 6 January 2015;
·further discovery being given to the wife’s solicitors and the wife leading up to the date of trial in 2016;
·no further requests being made by the wife or her solicitors for the correspondence of 18 February 2013;
·not looking for the correspondence of 18 February 2013 again until November 2016 upon receiving a phone call from Mr NN asking for a copy of the correspondence;
·searching for the document in the office at the Suburb TT property and not being able to find the document;
·later going through his old phone and finding a photograph of the correspondence;
·the wife having knowledge of his interest in the Q Trust during the proceedings resulting in the trial in April 2016 including:
·a file note relating to discussions between the wife and her solicitors on 11 September 2013 wherein they spoke about the Q Trust, the wife referring to a letter dated 4 May 2013 and thinking that the husband had a share in the Trust (Document 7 in the husband’s Book of Documents);
·a file note of a discussion between the wife and her solicitors on 20 November 2013 recording the wife reporting the husband had been given a job offer with Q Trust and offered a share in late 2011 involving a transport facility entity (Document 8 in the husband’s Book of Documents);
·a letter from the wife to her solicitor dated 1 December 2014 under the heading of “[W Pty Ltd] – [Manager] [Mr Curtain]”;
·in the letter asking why discovery of the letter dated 18 February 2013 was not made, why discovery of the employment agreement dated 10 June 2013 between the husband and W Pty Ltd was not made, and asking why discovery of invoices were not made (page 4 of Document 9 in the husband’s Book of Documents);
·a file note regarding discussions between the wife, her solicitors and counsel on 2 June 2015 regarding the wife doing a list of what is outstanding in terms of discovery and talking about a subpoena to W Pty Ltd (Document 10 in the husband’s Book of Documents)
·a file note of discussion between the wife, her solicitor and counsel at court on 4 June 2015 including discussing the need to issue a subpoena to the Q Trust and to W Pty Ltd (Document 11 in the husband’s Book of Documents);
·a file note regarding discussions between the wife, her solicitor and counsel on 27 March 2014 recording discussions about transport facility entities (Document 13 in the husband’s Book of Documents);
·a letter from the wife’s counsel to the wife’s solicitor dated 15 April 2014 including the following[3]:
…
I understand from your client’s instructions that whilst the parties were attending at the conference, the parties adult daughter [Ms Z] was [in DD Region] at the […] property taking photos and making copies of financial information in the house. Your client indicated that she wished to have regard to same before making any decision in relation to the husband’s offer. On the face of it, the offer fails to take into account any value regarding the husband’s future business interest. The husband asserts that he has no proprietorial interest in [W Corporation] and that he is simply an employee. Your client understands that he has received an offer of employment which includes a 15% share holdings interest which she considers may be of significant value as that enterprise develops.
…
and;
·an Interim Case Outline filed on behalf of the wife dated 5 August 2015, in the list of assets at Item 14 (page 5) “[Q Trust] (trustee [W Pty Ltd]) (H)” with a value of “NK” (Document 16 in the husband’s Book of Documents).
[3] Document 14 in the husband’s Book of Documents.
In paragraph 29 of the husband’s affidavit filed 18 January 2021 he referred to an “INDEX TO FOLDER OF RELEVANT DOCUMENTS – MOSTLY 2015 – [MS CURTAIN] AND [MR CURTAIN].” Item 6 was described as “Copy [W Pty Ltd] correspondence to [Mr Curtain]s 18th February 2013”.[4] He deposed to his solicitors advising that when they inspected the files produced by the wife’s solicitors that document was missing.
[4] Document 18 in the husband’s Book of Documents.
He further deposed to:
·an email from the wife to her then solicitor Mr UU dated 6 August 2015 advising she will take charge of discovery including “… a list of what we still need discovered.” (Document 20 in the husband’s Book of Documents);
·a draft account to the wife from her then solicitors including an Item “... […]10/2014 perusal of [newspaper] article” being an article that was not included in the husband’s discovered documents and relating to the commencement of work on the development;
·a draft affidavit prepared by the wife’s then solicitors Mr VV including in paragraph 44 the following:
44 ... [W Pty Ltd/ Q Trust]
(a)After separation, I learned through an ASIC search that the husband is an [officer] of a company called [W Pty Ltd]. He does not have any shares.
(b)I understand that the company is the corporate trustee of a trust called ‘[Q Trust].
(c)The Chief Executive Officer, [Mr LL], is a person with much experience in this sector. He builds and operates [transport industry entities]. He has invented [a novel transport structure] and I understand that he was interested in having the husband use his marketing expertise to market this invention.
(d)I understand that the husband is either an employee of or contracting for [W Pty Ltd].
·that wording not being used in the affidavit sworn by the wife on 15 February 2016 (Document 22 in the husband’s Book of Documents);
·a draft affidavit prepared by Mr VV including in paragraph 98 at Item 13 “Husband’s interest in [W Pty Ltd] ATF [Q Trust]” with “NK” ascribed to the value (Document 23 in the husband’s Book of Documents);
·a file note of attendance by the wife on her solicitors Mr UU and Ms WW on 25 February 2016 including an advice to settle and reference to the husband as a “small time crook” (Document 24 in the husband’s Book of Documents);
·a Mr VV file note dated 7 and 8 March 2016 under the heading “Balance Sheet (simplified)” at asset number 15 “[Q Trust] (no discernible interest)” with the word “ignore” under the value column (Document 25 in the husband’s Book of Documents); and
·a document headed “SUMMARY OF KEY FACTUAL DETAILS REGARDING MATTER OF [MR CURTAIN] AND [MS CURTAIN]” under the heading “CORPORATE ENTITIES OR PARTNERSHIPS” at Item 7 on page 4 “[Q Trust] – as Trustee for [W Pty Ltd], ABN […] 15 – husband has had offer of employment, query other interest in this venture” (Document 26 in the husband’s Book of Documents).
In paragraphs 30 to 40 under the heading “THE WIFE HAS FAILED TO DEMONSTRATE A VALUABLE ASSET AT TRIAL” the husband set out a summary of his involvement with W Pty Ltd from the time of separation in late 2012 until trial including:
·in 2010 discussing with Mr LL the utilisation of J Town and the option of transporting goods in existing structures;
·in 2011:
·developing the plan after consultation with interested parties;
·presenting same to the Minister of Transport and Infrastructure;
·seeking support for the commercial facility;
·appointing a project team after initial support from the Minister;
·the team including the husband as a project manager on behalf of his employer;
·the group developing a master plan; and
·the master plan resulting in a submission of a development application on behalf of W Corporation for approval of stage 1 of a commercial facility;
·securing Commonwealth funding of $2.5 million in 2012 for the Facility and later securing commitment from XX Company as a potential user upon development of stage 2;
·commencing the development in October 2014 as part of stage 1 including the work relating thereto;
·altering the planning and designing the use of the facility following a major financial global crisis and the further work associated therewith, as well as continuing to work on stage 1 at J Town;
·Mr LL becoming concerned as to lack of support from the South Australian government and threatening to withdraw from South Australia (Documents 27 and 28 in the husband’s Book of Documents);
·further problems arising in relation to the project in early 2016 arising from land rezoning, the need to secure planning and development approvals, difficulties with the Department of Environment, Coastal Protection and the “EPA” and difficulties in persuading companies to invest in the required infrastructure;
·being instructed on 9 April 2016 by Mr LL to stop work on the J Town development and an offer in April 2016 from a company trading in goods to lease the development which offer was not acceptable to Mr LL (Document 29 in the husband’s Book of Documents);
·Mr LL and Ms QQ determining in May 2016 to shelve the project for twelve months;
·Mr NN bringing to the husband’s attention financial issues within the W Group of companies at about the same time;
·stage 1 of the project being completed on 28 October 2016 but the project having no monetary value at that time;
·approval for modified use of the development having been obtained on 4 October 2016;
·an application for land subdivision critical to stage 2 and 3 of the development was approved on 10 November 2016;
·following the completion of stage 1 on 28 October 2016 a dispute arising between the husband and Mr LL and Ms QQ as to offers made to the husband;
·the husband continuing to work towards obtaining approvals for stage 2 and 3 of the project;
·the husband’s services as a contractor to W Pty Ltd being ceased in March 2017 and Mr LL denying ever offering the husband a share in the overall project;
·the husband initiating proceedings in the Federal Court of Australia in 2020 against W Pty Ltd for, inter alia, equitable compensation;
·the claim being defended and a Counter-Claim seeking, inter alia, damages from the husband;
·the husband subsequently filing a Reply and Defence to the Counter-Claim; and
·his claim against W Pty Ltd based on work he completed in stages 1, 2 and 3 of the J Town development which subsequent to the trial between the husband and the wife in the Family Court of Australia is now a valuable asset.
Under the heading “UNPAID INVOICES” the husband deposed to:
·the last invoice issued for rock revetment supply being for work completed up to October 2015, discovered prior to trial and paid;
·the mine supplying the rock revetment for the development closing down for three months in late 2015;
·no further rock revetment supply invoices being issued during that period or for a further period of six months until the development had met the contracted construction criteria and milestone as set by the Federal Government;
·the husband issuing an invoice to W Pty Ltd on 19 June 2016 for $86,414.68 which invoice has never been paid (Document 30 in the husband’s Book of Documents);
·the husband subsequently issuing invoices 1403 to 1407 inclusive totalling $61,387.15;
·instituting proceedings in the Magistrates Court in Adelaide against Mr NN in relation to invoices 1404 to 1407 inclusive; and
·obtaining a Judgment and costs to the sum of $38,933.65 which was paid in full.
In paragraphs 50 to 55 inclusive under the heading “FAILURE TO PROVIDE FINANCIAL DOCUMENTS” the husband deposed to:
·seeking the financial statements of W Pty Ltd at a board meeting in September 2014 and the financial statements indicating an equity position of $689;
·the husband having been unaware of the equity position of the company prior to engagement;
·the financial statements referring to internal company loans of $2,145,520;
·being advised by board members that Ms QQ would provide details of the internal loans, terms and interest rate being charged but never receiving same;
·seeking financial records from Mr NN and Ms QQ for W Pty Ltd prior to the trial before Berman J, with Mr NN referring to the issue as a matter for Mr LL and Ms QQ;
·no financial records being provided to him; and
·concerns regarding the issuing of subpoenas for the records because of the possible effect on his employment by the W Group.
The wife’s evidence
In the wife’s affidavit filed on 11 May 2021 in support of her Response to the husband’s Application in a Case she deposed to:
·knowing the husband had an association with Mr LL, Ms QQ and Mr NN in relation to the development of the J Town project but not being privy to particulars of that project;
·meeting Mr LL and Ms QQ on one occasion but never meeting Mr NN;
·the husband only making occasional references to work in relation to various projects all over DD Region but not discussing the J Town master plan with her on many occasions;
·not knowing of Mr LL commencing to offer the husband inducements to join W Pty Ltd in 2010;
·the husband not providing her with information of consultations, submissions or discussions relating to the J Town project;
·she and the husband having not had any meaningful discussions and their relationship being barely civil for some years prior to her leaving L Town to live in Adelaide with the children in January 2013;
·only being aware of local talk in the farming community about a number of projects largely relating to any potential competitor companies;
·the husband being dismissed from his employment with DD Development Board in mid-2013;
·DD Board taking legal proceedings against the husband as a consequence of which he repaid a substantial sum to the DD Board;
·having no knowledge of any offers being made to the husband with respect to other employment opportunities;
·the relationship with the husband being virtually non-existent in 2012, him sleeping in another room when he spent time at the farm, him being in a relationship with Ms YY and, from 2011, his salary being paid to his separate bank account whereas it had previously been paid to the parties’ joint account;
·the family interstate holiday being at Christmas in 2011 and not 2012;
·there being no discussions with her or in her presence about the J Town project or any proposal from W Pty Ltd during that holiday, nor any discussions a year later regarding any offer from W Pty Ltd;
·there being no discussions during the RR Town holiday over New Year 2011/2012 or discussions as to any offer from W Pty Ltd;
·not being aware whether the husband arranged for long service leave or not;
·the husband being either dismissed from the DD Board or resigning to avoid dismissal;
·not believing she was informed of the husband’s departure from the DD Board until well after the event;
·admitting the husband became an officer of W Pty Ltd on 1 May 2013 but not knowing when he “commenced employment with [W Pty Ltd]”;
·not knowing the arrangements regarding the husband’s return of his laptop to the DD Board, or whether he kept a copy of the letter from W Pty Ltd which he signed on 1 March 2013, or whether he kept that copy in a filing cabinet at the Suburb TT property;
·having read the employment contract produced by the husband, signed by W Pty Ltd on 21 June 2013, providing for a salary to be paid to the husband of $200,000 plus superannuation contribution and motor vehicle expenses;
·the husband forwarding an email to W Pty Ltd dated 19 August 2013 in the following terms:
Good Morning [Mr LL] and [Ms QQ],
I discussed this letter briefly with [Mr LL] yesterday [Ms QQ].
I am presently going through separation under a collaborative process avoiding the family court.
[Ms Curtain] and her lawyer have asked for correspondence of engagement, with yourself since I have left the [DD Board].
I have told them that I am engaged as a consultant and not an employee on a needs basis to represent the group within South Australia.
I have drafted a copy of a draft letter for your consideration. I am happy to discuss if you have any queries or concerns.
Regards
[Mr Curtain]
·not knowing how the husband was paid but denying the alleged change of arrangements was made by W Pty Ltd to suit themselves but rather, to confirm the husband’s untruth, relying on the accompanying letter prepared by the husband and backdated to 4 May 2013 (Document 6 in the wife’s Supplementary Book of Documents);
·the employment contract being included in the husband’s discovery as from 5 December 2014;
·her solicitors sending an email to the husband dated 2 December 2014 seeking the correspondence from W Pty Ltd to the husband dated 18 February 2013;
·staying at the farmhouse for the purpose of her mother’s funeral in early 2013 but not subsequently entering the farmhouse after separation;
·on about one occasion per year driving around the paddocks with her father;
·her sisters collecting items from her late mother’s house in L Town;
·Law Firm ZZ or AB doing a Will for the husband;
·that ultimately being the reason she had to instruct new solicitors;
·sending an email to the husband dated 2 May 2014 but being uncertain if the husband has produced the entire document;
·sending an email to the husband dated 4 November 2014 but not attending at the farm or conducting a search for the wife’s uncle’s gun;
·sending an email to the husband on 6 January 2015 as alleged by the husband;
·attending L Town and the J Town shack on infrequent occasions but being unable to say when;
·the husband giving further discovery to her prior to the April 2016 trial;
·her solicitor requesting a copy of the email from W Pty Ltd to the husband dated 18 February 2013;
·not knowing the circumstances of the husband trying to find the original or ultimately finding a copy on his telephone;
·admitting discovery was given by the husband from time to time but denying she had unrestricted access to the farmhouse or that she had taken any of the husband’s documents from the farm;
·the parties’ daughter Ms Z maybe having copied some documents at the farm;
·acknowledging the existence of the various file notes referred to in the husband’s affidavit in support of his Application in a Case;
·not having any documents that confirm any 2011 offer from W Pty Ltd;
·not knowing where the information came from in the Law Firm AC file note dated 20 November 2013 (Document 8 in the husband’s Book of Documents);
·not recalling the content of the discussions with her solicitor and counsel on 2 June 2015 (Document 10 in the husband’s Book of Documents);
·not knowing what documents the parties’ daughter Ms Z may have copied from the farmhouse;
·the husband asserting at the financial conference on 28 March 2014 that he had no interest in W Pty Ltd and was just an employee;
·agreeing her case outline document dated 5 August 2015 refers to any value of the husband’s interest in Q Trust as “NK”;
·agreeing the schedule of assets and liabilities prepared as a draft by Mr VV (Document 17 in the husband’s Book of Documents) refers to the husband’s interest in Q Trust as “NK”;
·not recalling whether the correspondence from W Pty Ltd to the husband dated 18 February 2013 (Document 18 in the husband’s Book of Documents) was missing or not from documents provided to the husband’s solicitor;
·acknowledging the existence of the draft affidavit prepared for her by Mr VV (Document 22 in the husband’s Book of Documents) and not knowing why the wording in any document subsequently filed by her was different to that in the draft;
·not knowing and not being able to admit the contents of paragraphs 30 to 36 and 38 to 40 of the husband’s affidavit filed 18 January 2021;
·not knowing and not being able to admit the contents of paragraph 37 of that document save that she does not accept that as at approximately May 2016 the J town project had no monetary value;
·not knowing and not being able to admit the contents of paragraph 41 of the husband’s affidavit save that there are now proceedings between the husband and W Pty Ltd;
·understanding the husband was in a business arrangements via PP Pty Ltd with Mr AD from L Town, crushing and supplying rock to the J Town development and possibly to others;
·having no recollection of the husband disclosing the invoice prior to trial but will investigate the matter;
·not believing the husband disclosed his participation in the business arrangements with Mr AD in his trial affidavit;
·the husband’s financial statement filed 1 April 2016 disclosing a “nil” income from PP Pty Ltd;
·believing the husband held back invoices until after trial in 2016;
·Document 30 in the husband’s Book of Documents being an invoice dated 19 June 2016, shortly after the trial was concluded, which included work done from December 2015;
·not believing the husband made any reference at trial to any failed attempts to obtain records from W Pty Ltd; and
·not being able to say when stage 1 of the J Town project was completed.
The wife also sought to rely on her two earlier affidavits filed on each of 29 November 2017 and 10 November 2019. No objection was raised by the husband’s counsel. Both of those affidavits refer to the wife’s application for an order setting aside the final order for property settlement made by Berman J on 15 July 2016 (as amended on 26 July 2016).
I do not intend to set out at length the evidence in those documents but accept that the matters to which her counsel referred in submissions are relied on by the wife, particularly to support a timeline of regular requests for discovery on the part of her solicitors, a failure on the part of the husband to comply with discovery and deliberate withholding of information from the wife and the Court as to the true position of his interest or future entitlements in W Pty Ltd and/or the Q Trust as at the date of trial.
The husband’s further evidence
On 12 August 2021 a further affidavit was filed by the husband without leave. No objection to the affidavit was raised by the wife’s counsel.
To the extent that the affidavit was relevant to the issues at hand, the husband deposed to:
·consistently providing discovery of his invoices to W Pty Ltd as a contractor from the start date of 20 May 2013;
·telling the wife that being employed by W Pty Ltd as a consultant was a costs saving exercise for Mr LL and Ms QQ to avoid payroll tax in South Australia;
·never being in a business arrangement with Mr AD from L Town or AD Pty Ltd;
·Mr AD providing contract and hire services through his company to W Pty Ltd; and
·Mr AD borrowing fertiliser and a prime mover in 2010, 2011 and 2012 in respect of which the wife issued an invoice that had not been paid.
Summary dismissal
It is important to note that the issue to be determined arising from the husband’s Application in a Case filed on 18 January 2021 is whether the wife’s Initiating Application filed on 29 November 2017 seeking to set aside a final order for settlement of property should be summarily dismissed. That is of course a different question to whether the wife should succeed in her application to set aside the final order for settlement of property made by Berman J on 15 July 2016 (as amended on 26 July 2016).
The second question however, is relevant to the consideration of the first issue, in that the husband can only succeed in obtaining an order for summary dismissal if the Court is satisfied that the wife has no reasonable prospect of successfully prosecuting the proceedings,[5] noting that no reasonable prospect of success does not equate to the Court finding the proceedings to be hopeless or bound to fail.[6]
[5] Family Law Act 1975 (Cth) s 45A(2)(b).
[6] Family Law Act 1975 (Cth) s 45A(3)(a) and (b).
It is important in determining an application for summary dismissal that the Court take the respondent’s evidence at its highest.
In [66] and [70] of the judgment of the Full Court in Ritter & Ritter & Anor (2020) FLC 93‑957 at pp 79,626 and 79,627, their Honours said:
66.The determination of the issue must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case ‘at its highest’ unless the respondent’s version is inherently incredible or unreliable…
…
70.We are of the view that her Honour’s reasons demonstrate that she failed to do as she indicated, take the husband’s evidence at its highest but, instead distracted her consideration by addressing what ultimate orders might be made while understanding that the husband had not had the opportunity to put on that evidence.
(citations omitted)
To succeed in her application pursuant to s 79A of the Act, the wife must satisfy the Court, being a person affected by an order made by the Court under s 79 in property settlement proceedings, that there has been a miscarriage of justice by reason of fraud, duress or suppression of evidence (including failure to disclose relevant information, the giving of false evidence or any other circumstance). If the Court is so satisfied it may vary the order or set the order aside and, if it considers appropriate, make another order under s 79 in substitution for the orders so set aside.[7]
[7] Family Law Act 1975 (Cth) s 79A and 79A(1)(a).
It will be necessary for the wife to succeed to firstly satisfy the Court that the husband failed to disclose relevant financial information to the Court at the time of the hearing before Berman J and secondly, that as a result, there has been a “miscarriage of justice”.
In Bigg v Suzi (1998) FLC 92-799 at p 6.39 the Full Court of the Family Court said, in discussing the concept of miscarriage of justice:
6.39.In Public Trustee v Gilbert (supra) the Full Court also decided that as a miscarriage of justice for the purposes of s 79A(1)(a) must arise out of the judicial process, the integrity of that process cannot be put in question by something which happens after that process has been completed. Thus it held that a miscarriage of justice can only occur by reason of a fact or event which occurs before or at the time of the making of the relevant order which is sought to be set aside.
That passage was cited with approval in Barker & Barker [2007] FamCA 13 at [118] (Barker’s Case) when considering whether to exercise its discretion in favour of the wife, in circumstances where only the husband had been aware of a previous offer to purchase land he retained as part of a consent order for settlement of property. He subsequently sold the land for the price offered, being a price considerably higher than the value attributed to it by a licensed valuer prior to the parties entering into the consent order.
In [123] of Barker’s Case the Court, in its discussion of the concept of miscarriage of justice said as follows:
As previously discussed, in order for a claim under s 79A(1) to succeed, the Court must be satisfied that a miscarriage of justice has resulted. It is not sufficient to merely establish the existence of one or more of the stated grounds, such as suppression of evidence. In Livesey v Jenkins (supra), Brandon LJ had this to say about the nexus between non-disclosure and setting an order aside (at 445-6):
I would end with an emphatic word of warning. It is not every failure of frank and full disclosure which would justify a court in setting aside an order of the kind concerned in this appeal. On the contrary, it will only be in cases when the absence of full and frank disclosure has led to the court making, either in contested proceedings or by consent, an order which is substantially different from the order which it would have made if such disclosure had taken place that a case for setting aside can possibly be made good. Parties who apply to set aside orders on the ground of failure to disclose some relatively minor matter or matters, the disclosure of which would not have made any substantial difference to the order which the court would have made or approved, are likely to find their applications being summarily dismissed, with costs against them, or, if they are legally aided, against the legal aid fund.
We agree with this statement.
It is the nub of the wife’s case that despite an acknowledged request in writing from her then solicitors, Law Firm AC, to the husband’s then solicitors Law Firm AE dated 2 December 2014 requesting an explanation of why the letter from W Pty Ltd to the husband dated 18 February 2013 had not been made available and advising it was still required, the document was not discovered at that time or at any other time prior to trial.
In addition, the wife contends, in support of her s 79A application, that the husband deliberately withheld other documents that gave lie to his claim of merely working on a consultancy basis for W Pty Ltd and having no interest or prospective interest in that entity or in Q Trust. Further, she contends he was not frank in cross-examination about those matters such that the understanding gained by the wife and the Court of the true relationship between the husband, W Pty Ltd and Q Trust was incorrect, and the suppression of that evidence ultimately resulted in a miscarriage of justice.
That letter, being Document 1 in the husband’s Book of Documents accompanying his affidavit sworn 18 January 2021, was from W Pty Ltd, trustee for the Q Trust. It was dated 18 February 2013 and addressed to Mr Curtain, B Street, C Town. It was stated to be via email and was in the following terms:
Good Morning [Mr Curtain],
This letter is to confirm the intention upon your employment with [W Pty Ltd] to issue you or your nominee with 20% equity in the [Q Trust] by way of an issue of Units in the Trust. At the time of your commencement of employment, these Units will issue as well as your election to the board of the company.
Further it is the intention of the [W Group] to issue you with a 20% carrying equity in any future [transport facility entity] subject to your performance as set out in your employment contract.
Please contact me any time if you have further requirements and or questions.
The correspondence was signed by Mr NN and countersigned by the husband on 1 March 2013.
The employment agreement between the husband and W Pty Ltd was Document 3 in the husband’s Book of Documents. The document, signed by the husband in the presence of Mr NN on 10 June 2013 and by Mr BB as the authorised representative of W Pty Ltd on 21 June 2013, set out, inter alia, the following:
·that the husband was appointed to a position in accordance with the terms of the agreement;
·the agreement was to commence on 20 May 2013 and continue to 20 May 2018;
·there was a probationary period of three months from the commencement date;
·remuneration was stated to be a base gross salary of $200,000 with superannuation of $18,000, being a total salary of $218,000, with an annual motor vehicle allowance of $18,000; and
·there was no reference in that document to the matters referred to in the correspondence from W Pty Ltd as trustee for the Q Trust to the husband dated 18 February 2013.
In paragraph 25 of the husband’s affidavit filed 18 January 2021 he conceded that he did not produce the correspondence of 18 February 2013 in response to the written request of 2 December 2014, and further confirmed in paragraph 26(b) of that same affidavit that the document was not produced at any later time prior to the date of trial. In that paragraph the husband deposed inter alia to:
Further discovery was given to [Ms Curtain’s] solicitor and [Ms Curtain] leading up to the date of the Trial. No further request was made for the correspondence of the 18th February 2013…
In Gorga v Gorga [2020] FCWA 51 Justice O’Brien discussed the legal principles relating to disclosure in [29] to [32] inclusive where his Honour said:
29.Disclosure by the parties of documents in their possession or control relevant to matters in issue is fundamental to the conduct of all civil litigation. A failure to disclose relevant documents will ordinarily give rise to a miscarriage of justice [In the Marriage of Morrison (1995) FLC 92-573].
30.The duty of disclosure is owed not only to the other party, but to the court. It includes not only a duty to disclose relevant documents, but a duty to disclose all material information [Livesey v Jenkins [1985] 1 All ER 106, 114; cited with approval in various decisions of the Full Court of the Family Court of Australia]. That duty in turn is ‘fundamental to the whole operation of the Family Law Act in financial cases’ [In the Marriage of Briese (1986) FLC 91‑713; cited with approval in Black & Kellner (1992) FLC 92-287 and subsequently].
31.The duty is proactive, and will not be satisfied by merely responding to specific requests by the other party. That must logically be so, given that the requesting party will generally have incomplete knowledge as to the documents in the possession or control of the other party prior to disclosure being given.
32.Consistently with its proactive nature, the duty is continual. Timeliness is central to it. The imposition by the court or by rules of specific timeframes for disclosure of particular documents, or for that matter dates by which formal undertakings as to disclosure must be given, are not intended as the ‘outer limits’ of the obligation to provide disclosure, nor are they to be used as a vehicle for obfuscation [In the Marriage of Briese (1986) FLC 91-713].
The husband had a duty to disclose to the wife and to the Court the letter to him from W Pty Ltd dated 18 February 2013.
The information contained in that correspondence was, on the husband’s evidence contained in his affidavit filed 18 January 2021, known only to the husband. It contained reference to benefits W Pty Ltd as trustee for the Q Trust intended to confer on the husband upon his employment with W Pty Ltd.
The employment contract signed by the husband on 10 June 2013 and W Pty Ltd on 21 June 2013 made no reference to those benefits. The husband’s evidence contained in paragraph 21 of his affidavit filed 18 January 2021, was that he was appointed as an officer of W Pty Ltd on 1 May 2013 and commenced employment with that company on 27 May 2013.
By correspondence dated 19 August 2013 from the husband to Mr LL and Ms QQ he advised that:
·he and the wife had separated;
·they were avoiding the Family Court by a collaborative process;
·the wife and her lawyers had asked for correspondence of engagement with W Pty Ltd; and
·he had told them he was engaged as a consultant and not an employee.
In addition, he drafted a letter for their approval backdated to 4 May 2013. This purported to be a letter to him from Mr LL of that date offering him a “consultancy on a rate at a rate of $75/hour, plus the reimbursement of specific cost travel and accommodation costs on presentation of receipts.”[8]
[8] Document 6 in the wife’s Supplementary Book of Documents.
These three pieces of correspondence could not be described as other than information material to the question of property settlement as between the husband and the wife.
The husband’s duty to disclose the correspondence of 18 February 2013 was not waived by the wife’s then solicitors failing to ask for that correspondence again subsequent to their request of 2 December 2014 and prior to trial.
It was submitted by counsel for the husband that the husband can satisfy the Court that the wife’s s 79A application should be summarily dismissed in circumstances where on the face of her affidavit in support of her Response to the husband’s Application, there is no evidence of a miscarriage of justice either because she has not disclosed either a fraud or suppression of evidence material to the proceedings or, in the event that the Court is satisfied in that regard, she has not established that such fraud or suppression of evidence resulted in a miscarriage of justice.
He further submitted that the wife is unable on the face of her documents to establish any value in relation to the asset she says was not disclosed, being any interest the husband may have in W Pty Ltd, in circumstances where she must establish the existence of that interest at the time of trial and the value at trial, as opposed to establishing that it had a value subsequent to trial. He submitted that the miscarriage of justice can only arise through the trial process itself and not as a result of a post-trial event or process.
It is established law that proceedings should not lightly be summarily dismissed.
In Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 at 255 and 256 under the heading “Approach: applicable principles” Kirby J set out the approach to be taken by a court in respect to an application for summary relief. The principles outlined by Kirby J were as follows:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief…is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r I 8, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading…
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(footnotes omitted)
The evidence to be relied on by the parties with respect to the s 79A application is as yet untested.
There is no doubt that at the time of trial in 2016 the wife in her Amended Initiating Application specifically sought an order including the husband retaining his interest in the Q Trust.
On page 4 of the reasons of Berman J of 15 July 2016 under the heading “[W Pty Ltd]” his Honour said as follows:
In 2014 the husband became [an officer] of [W Pty Ltd]. The husband has a consultancy arrangement with the company.
W Pty Ltd was not mentioned further in his Honour’s judgment.
In the husband’s case outline prepared by his then counsel dated 1 April 2016, no orders were sought by the husband with respect to any interest he may have in W Pty Ltd or the Q Trust. The list of assets contained therein made no reference to those entities and in addition, his financial statement filed for the purposes of trial did not disclose any interest or prospective interest in those entities.
Document 16 in Volume 1 of the wife’s Book of Documents filed 11 November 2019 was transcript of the wife’s partial cross-examination of the husband commencing at 4:05pm on Wednesday 6 April 2016. The husband agreed that there was a signed employment agreement between he and W Pty Ltd. When asked if he had informed the wife when the employment contract was signed, he replied that she had already gone to Adelaide.
Justice Berman then asked questions of the husband involving the arrangements under which he engaged in work for remuneration with W Pty Ltd. The essence of the husband’s evidence was that he had originally signed the employment contract appointing him as “[an officer]” of W Pty Ltd but that ultimately he had only undertaken work on a consultancy basis at the rate of $70 per hour plus motor vehicle expenses because he needed to keep working on the farm and living on the farm.
He told Justice Berman that neither he nor Mr NN received any remuneration as officers of the entity other than their direct travel costs, and further that he did not receive superannuation entitlements nor was he covered for work cover or received holiday pay.
He agreed with the proposition put to him by Justice Berman that he was the one who had approached W Pty Ltd following upon his separation from the wife telling them that he wanted to work on a consultancy rather than as an employee and that they agreed with his proposal even though they did not have to agree.
On page 6 of the transcript at lines 23 to 44 the following exchange took place between the wife and Justice Berman:
[HIS HONOUR:] So she puts a document. But it was for five years. Yes, [Mr Curtain]? It was five years? ‑‑‑ That’s correct. The employment contract I signed was for five years.
Okay? ‑‑‑ Yes.
[Ms Curtain], do I need to know more than in 2013 [Mr Curtain] engaged in a contract of some sort of employment with this company and it was five years in 2014?
[MS CURTAIN]: 2013
HIS HONOUR: 2013 or 2014. He decided – [Mr Curtain] decided to approach these people to see if he could change the arrangements. Is that – is there more to it than that?
[MS CURTAIN]: I – yes. Yes. I think there is, your Honour. And I put it to - - -
HIS HONOUR: Well, put to [Mr Curtain]what more to it there is.
[MS CURTAIN]: Put to [Mr Curtain] that he initially signed this employment agreement, which is all executed, dated 21 June 2013 and then had a rethink and went “Whoopsie. This is sort of a fairly concrete declaration to income, which I don’t want to have, because I’m – you know” - - -
On page 7 of the transcript the following exchange took place between the husband and Justice Berman as recorded in lines 12 to 40:
HIS HONOUR: All right?
So, [Mr Curtain], have a look. This the document that [Ms Curtain]has been describing as the employment contract. I’ve not seen it. I’m assuming it has got some detail to it? ‑‑‑ Your Honour, I know this document inside-out. I actually drafted the document up. So - - -
You drafted it. All right. Then Madam Court Officer, can I have the document, please. Because I’m going to have it – I’m going to tender it, [Ms Curtain]. All right? Thank you. Can I just have a – spend a moment.
Is there another document which sets out the new arrangement? ‑‑‑ There’s a letter - - -
A letter? ‑‑‑ Yes, yes. From the managing director.
And was that in 2014 or 2000 and - - -? ‑‑‑ 2000 – no. 2013.
Okay. So this was done – this was signed by all of you in June of 2013. So when do you say, [Mr Curtain], that the agreement was renegotiated or the arrangements were the subject of further negotiation and a letter then arrives which reset the arrangements? ‑‑‑It was at the first – yes. It was at the first board meeting.
Yes. How long after this? ‑‑‑ Only about two weeks.
Okay. No. It did have – no. This was the employment contract? ‑‑‑ Yes.
This was your employment package. Exhibit 8 will be employment agreement between [W Pty Ltd] and the husband.
What Mr Curtain did not tell his Honour was:
·that he had received the letter from W Pty Ltd, trustee for the Q Trust dated 18 February 2013; and
·that the correspondence purportedly from Mr LL to him dated 4 May 2013 had been drafted by him on 19 August 2013 for Mr LL and backdated to the May date.
It was submitted by the husband’s counsel that the Court should note that the letter to the husband of 18 February 2013 refers to an “intention” to issue the husband or his nominee with a twenty per cent equity in the Q Trust by way of an issue of “Units in the Trust”. The intention was that the Units would issue upon the commencement of his employment which Mr McQuade submits did not occur.
Mr McQuade is quite correct in submitting that on the face of the wife’s documents she has not at this preliminary stage established that the husband had any interest in W Pty Ltd or the Q Trust as at the time of trial in April 2016, nor has she established any value with respect to the asset that she says was not disclosed.
True it is that the wife did not become aware of offers made to the husband regarding the position of “[an officer]”, the salary, and the offer of Units in the Trust until approximately August 2017, leading to the filing of her Application on 29 November 2017 to set aside the final order for settlement of property.
Following the filing of that Application the process of discovery revealed certain communications between the husband, Mr NN, Mr LL and Ms QQ, and between Mr LL and the wife.
The husband was aware however prior to trial in 2016 that he had received a formal written offer of employment from W Pty Ltd t on 27 December 2012 essentially in the same terms as evidence given by him during trial, but had also received the correspondence of 18 February 2013. In addition, he knew he had received correspondence from Mr NN approximately one month prior to trial, including discussion as to how the Units in the Q Trust could be allocated to him in a manner that allowed them to be transferred to him at a later stage when settlement as between he and the wife was finally completed.
All of that information was material to the matter before the Court.
The husband failed to disclose any of those documents. He had an obligation to do so.
The fact that the husband took no formal steps to obtain the benefit to which he considers himself entitled until the issuing of proceedings in the Federal Court in 2020, an application in respect of which he may or may not succeed, is immaterial to this element of the parties’ dispute.
I find that the wife has established that the husband failed to disclose information material to the facts of the case before Justice Berman prior to and during the trial in 2016.
I find that the husband intentionally misled the wife and the Court as to the true nature of his relationship with W Pty Ltd and the Q Trust.
Had those facts been known to the wife, her legal advisers and to the Court the outcome of the proceedings MAY have been materially different.
The wife in unable at this time to establish a value for any interest the husband may have held in the company and/or the Trust as at the date of trial, or whether it was a resource available to the husband as opposed to an asset or whether he had any interest at all. That question is now in the hands of the Federal Court.
Nevertheless, that failure on the part of the wife is attributable to the husband’s lack of disclosure prior to and during trial and his lack of frankness in his evidence before the Court. Neither she nor the Court had the requisite knowledge to pursue what may have been important and material issues.
As to the issue of the alleged failure of the husband to disclose income from PP Pty Ltd as deposed to in paragraph 58 of the wife’s affidavit filed 11 May 2021, the husband deposed in paragraphs 44 to 48 of his affidavit filed 18 January 2021 that the last rock revetment invoice issued by him prior to trial was for work completed up to October 2015, which invoice was discovered prior to trial and paid.
Both parties refer to Document 30 in the husband’s Book of Documents being an invoice to Q Trust Pty Ltd from PP Pty Ltd dated 19 June 2016. It is the husband’s evidence that the invoice was issued by him on 19 June 2016 for $86,414.68.
In paragraph 46 the husband deposed to continuing to work on approvals for the project after the mine which supplied the rock revetment closed down for three months in late October 2015, but did not issue any supply invoices during that period and for a further period of six months until the invoice issued on 19 June 2016. He deposed to this invoice never having been paid.
There is no doubt however that it does refer to rock haulage for the period 28 December 2015 to 6 May 2016, including the period 28 December 2015 to 19 March 2016 which predated the trial. The invoice amount for that period totals $74,200. The invoices the husband deposes to subsequently issuing all post-date the trial.
This is a matter of less significance than that relating to any interest the husband may have in W Pty Ltd or the Q Trust. Nevertheless, an amount of $74,200 is not trifling, although it is the husband’s untested evidence that the amount was never paid.
Taking all of those matters into account I am unable to find that the wife has no reasonable prospect of successfully prosecuting the proceedings she has instituted with respect to s 79A(1)(a) of the Act.
For those reasons I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 25 March 2022
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