Curtain & Curtain (No 4)
[2024] FedCFamC1F 348
•4 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Curtain & Curtain (No 4) [2024] FedCFamC1F 348
File number(s): ADC 4409 of 2013 Judgment of: MEAD J Date of judgment: 4 June 2024 Catchwords: FAMILY LAW – PROPERTY – Application under s79A – application by the wife seeking to set aside orders made in 2016 – allegation husband failed to disclose financial information before the 2016 trial – wife’s position that had the information been disclosed there would have been a substantially different result in the 2016 proceedings – where the husband seeks the 2016 orders remain as final order and that the wife’s application be dismissed – where it is the husband’s position that at the time of the 2016 trial the wife was aware of the husband’s interest in a trust and that it had no discernible value – where a particular document the wife seeks to be produced had been in her possession from shortly after separation to date of trial – finding that neither party disclosed – no basis for finding miscarriage of justice. Legislation: Family Law Act 1975, ss 79, 79A, 79A(1)(a) Cases cited: Barker & Barker [2007] FamCA 13
Bigg v Suzi (1998) FLC 92-799
Curtain & Curtain [2016] FamCA 577
Curtain & Curtain [2018] FamCA 769
Curtain & Curtain [2019] FamCA 919
Curtain & Curtain [2022] FedCFamC1A 134
Curtain & Curtain [2022] FedCFamC1F 186
Riley & Pateman [2000] FamCA 1296
Suiker & Suiker (1993) FLC 92-436
Division: Division 1 First Instance Number of paragraphs: 215 Date of hearing: 2–5 April 2024 & 8-12 April 2024 Place: Adelaide Counsel for the Applicant: Mr Tredrea Solicitor for the Applicant: Jordan & Fowler Family Lawyers Counsel for the Respondent: Mr McQuade Solicitor for the Respondent: CM 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:
4 JUNE 2024
THE COURT ORDERS THAT:
1.The wife’s Initiating Application filed herein on 29 November 2017 as amended on 8 May 2020 be dismissed.
2.The response to Initiating Application filed herein by the husband on 13 February 2018 be dismissed.
3.All extant applications be otherwise dismissed save as to costs.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE MEAD:
INTRODUCTION
Ms Curtain (the wife) filed an Initiating Application on 29 November 2017 seeking an order pursuant to section 79A(1)(a) of the Family Law Act 1975 (as amended) (the Act) to set aside the final order for property settlement made by Berman J on 15 July 2016 (as amended on 26 July 2016) (“the order”) and thereafter, pursuant to section 79 of the Act, an order for settlement of property or adjustment of interest in property as the court deemed just and equitable. The wife further sought that the husband pay her costs on an indemnity basis.
Mr Curtain (the husband) filed a response on 13 February 2018 wherein he sought that the order remain as a final order, that the Initiating Application be dismissed and that the wife pay his costs on an indemnity basis.
On 8 May 2020 the wife filed an Amended Initiating Application.
Litigation between the parties initially commenced on 25 November 2013 by way of an Initiating Application filed by the wife. She sought final orders for spousal maintenance, child support including by means of departure from an administrative assessment as issued by the Child Support Agency and settlement of property.
That tranche of the proceedings finalised in July 2016 following a trial concerning the outstanding issue of settlement of property, heard by the Honourable Justice Berman. His Honour made final orders for settlement of property on 15 July 2016 (as amended 26 July 2016).
On 12 August 2016 the wife filed an appeal against those orders. The appeal was deemed to be abandoned by the Southern Regional Appeal Registry Appeals Registrar on 28 November 2016.
The trial in this second tranche of proceedings commenced on 2 April 2024.
In addition to various procedural orders made prior to the commencement of trial, four significant interim issues arose that required determination, namely:
·The question of whether or not legal professional privilege attached to documents in the file of Mr KK, solicitor for the husband in respect of Federal Court proceedings between he and W Pty Ltd and its directors Mr LL and Ms QQ;[1]
·The wife’s application to bifurcate her section 79A and section 79 applications;[2]
·The husband’s application for summary dismissal of section 79A application;[3] and
·The husband’s application for leave to appeal the order refusing his application for summary dismissed.[4]
[1] Curtain & Curtain [2018] FamCA 769.
[2] Curtain & Curtain [2019] FamCA 919.
[3] Curtain & Curtain [2022] FedCFamC1F 186.
[4] Curtain & Curtain [2022] FedCFamC1A 134.
The wife’s application to bifurcate her application was refused, as was the husband’s application for summary dismissal of the wife’s application and the husband’s application for leave to appeal the order refusing the application for summary dismissal.
It should be noted that both parties were provided with costs notices dated 5 April 2024. The applicant’s costs notice advised her and the court that to that date she had:
·Incurred fees to Jordan & Fowler including GST in the amount of $214,419.12;
·Had paid to date $111,385.06;
·Had unpaid costs due at that date of $103,034.06;
·Had estimated unbilled work in progress in the amount of $27,000;
·$34,975 held on trust for her;
·Estimated trial costs for trial commencing 2 April 2024 of $60,000; and
·Incurred fees to that date totalling $301,419.12.
The notice included the following statement:
We understand that your costs to date have been paid from your own funds and personal loans from [Mr LL].
The costs notice to the husband from CM Tucker & Associates dated 5 May 2024 disclosed the following information:
·Costs and disbursements paid to CM Tucker & Associates to 31 March 2024 $195,968.29;
·Costs and disbursements outstanding to CM Tucker & Associates as at 31 March 2024 $70,096.18;
·Costs and disbursements paid directly by client including to counsel and experts $138,074.94;
·Anticipated costs to the conclusion of trial estimated $10,000; and
·Counsel fees for 9 day trial $65,000;
The costs notice included the statement that Ms Tucker confirmed that his total costs of $479,139.23 had been totally funded by himself.
It was of significant concern that by the time the trial commenced before me on 2 April 2024 the parties combined legal costs totalled just under $800,000.
PARTIES EVIDENCE AT TRIAL
The wife relied on the following documents at trial, namely:
·Wife’s Amended Initiating Application filed 8 May 2020;
·Wife’s trial affidavit filed 28 February 2024;
·Wife’s Responsive trial affidavit 2 April 2024; and
·Wife’s Financial statement filed 27 February 2024.
The husband relied upon the following documents at trial, namely:
·Response to Initiating Application 13 February 2018;
·Husband’s trial affidavit filed 25 March 2024;
·Husband Financial Statement filed 22 March 2024;
·Affidavit of Mr AJ filed on 21 Match 2024; and
·Affidavit of Mr AK filed 28 March 2024.
Both parties were cross examined at trial as were the husband’s witnesses Mr AJ and Mr AK.
Both parties tendered books of discovered documents to which no objection was taken. In addition, various exhibits were tendered.
ORDERS SOUGHT BY THE PARTIES AT TRIAL
At the conclusion of trial the wife sought the following orders, set out in an email to Associate to Justice Mead on 12 April 2024 4:17pm.
1.That pursuant to s79A(1)(a) the Order made by Justice Berman on 26/7/16 be set aside.
2.That by way of settlement of property or alteration of interests in property:
a.the husband do transfer or cause to be transferred to the wife, with the wife to discharge the Westpac mortgage, the following real property (free from all encumbrances):
i.the land and improvements thereon situated at Section … in [Region AF] commonly known as “[Suburb TT] Property” being the whole of the land described in Certificate of Title Register Books Volume … Folio …, Volume … Folio …, and Volume … Folio … (the property of [E Trust]);
ii.the land and improvements thereon situated at sections … and … in [Region AF] commonly known as “[M Property]” and being the whole of the land described in Certificates of Title Register Books Volume … Folio … and Volume … Folio … (the property of [Mr Curtain] Family Trust);
b.by way of superannuation split [Curtain Pty Ltd] as trustee of [Mr Curtain] Superannuation Fund do transfer to a superannuation fund nominated by the wife the interest of the fund in the land and improvements thereon commonly known as “[N Property]” situated at section … [Region AF] and being the whole of the land described in Certificate of Title Register Book Volume … Folio …;
c.the wife do have as her sole property and free from any claim right or entitlement of the husband:
i.the land and improvements situated at [F Street], [Suburb G] being the land described in Certificate of Title Register Book Volume … Folio …;
ii.[agricultural] plant and equipment employed in the conduct of the [agricultural] enterprise of the parties;
iii.all other personally presently in her possession;
iv.the items of personalty identified at paragraph 218 of judgment of Berman J dated 15/7/16 (still in the husband’s possession);
d.within 30 days of the compliance by the husband in respect to paragraphs 2(a) and (b), there be a financial adjustment between the parties by a payment from the wife to the husband in the amount of $1,079,797.50 representing an equal distribution of the net value of the property pool (“the settlement sum”).
3.That in default of payment by the wife to the husband of the settlement sum and such default continuing for the period of 60 days then all, or part thereof, of the real property the subject of the order be sold, with liberty to the husband to participate in the sale process at his election, and the settlement sum (in addition to such interest arising pursuant to the Family Law Act and Court Rules) to be paid from such sale.
4.That the husband pay the wife’s costs on an indemnity basis.
It was the primary position of the husband at the conclusion of the trial that the orders made by the Honourable Justice Berman on 15 July 2016 (as amended 26 July 2016) should not be disturbed or set aside and that the wife’s application should be dismissed. In the alternative it was submitted on his behalf that the court should find that the wife made no contribution to the funds ultimately recovered by the husband from W Pty Ltd resulting in an outcome whereby the orders of Berman J are preserved in their existing state.
BACKGROUND
The wife and the husband are both aged 60 years of age. They commenced a relationship in 1983, married in 1988 and separated in November 2011. The parties remained living under the same roof from time to time until the wife left the family home with their four children in January 2013 to live in Adelaide.[5] Their four adult children are now aged 30, 25, 23 and 21.
[5] Curtain & Curtain [2016] FamCA 577, 12.
At the time the trial commenced the wife deposed to being employed as a health professional, with an average weekly income of $2,165 inclusive of wages, bank interest, superannuation contributions and a “[…]” fringe benefit. The wife was living alone.[6]
[6] Wife’s financial statement filed 27 February 2024, Part D & E.
At the time of trial the husband deposed to being employed as a manager by AL Pty Ltd with total average weekly income of $2,691. That amount was comprised of wages and investment income. He was living alone.[7]
[7] Husband’s financial statement filed 22 March 2024, Part D & E.
The nub of the dispute in these proceedings was whether the husband had failed in his duty to disclosure to the wife and to the court prior to or at the time of trial before Berman J in April 2016 a letter dated 18 February 2013 setting out the true nature of his employment with W Pty Ltd and the benefits to which he was entitled in Q Trust arising from that employment.
In addition it was the wife’s case that neither prior to the 2016 trial nor at the time of trial did the husband disclose that W Pty Ltd was indebted to E Pty Ltd for work carried out but not invoiced prior to the date of trial and further, that he made no disclosure of having paid various sums to a Ms YY between the date of separation and date of trial.
It was the wife’s case that had all relevant information regarding those matters been disclosed by the husband prior to trial the outcome would have been significantly different than that determined by Berman J.
It was the husband’s position that from sometime after January 2013 when the wife left the former matrimonial home and at least by 1 December 2014 the wife was aware that by correspondence to him from W Pty Ltd dated 18 February 2013 he had received an offer of employment 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.
Kind regards
[Mr NN][8]
and had a copy of that document.
[8] Wife’s book of documents filed 28 March 2024, Item 7 p.51.
It was further his position that at the time of the 2016 trial the wife was of the firm belief that any equitable interest that he may have in Q Trust had no value, such that she elected prior to trial not to pursue any request for particulars of the interest, issue subpoena to W Pty Ltd or Q Trust or request a valuation of same. In addition she did not cross examine him on the issue of any interest or any value of same at trial.
The husband argued that between approximately 2010 and the time the wife left the Suburb TT property in January 2013 the parties had regularly discussed his potential interest in the Q Trust and that in particular he had shown her and discussed with her an earlier written offer from W Pty Ltd dated 28 December 2012.[9] It was his position that she had discussed his potential interest in the trust with both of the solicitors instructed to act on her behalf between late 2013 and shortly before trial in April 2016, as well as with counsel instructed by her during that same period.
[9] Wife’s book of documents filed 28 March 2024, Item 13 p.116-119.
He deposed to notes relating to the wife’s attendances on her solicitor and counsel on each of 2 and 4 June 2015 referring to talking about a subpoena to W Pty Ltd and needing to issue a subpoena to the Q Trust and to W Pty Ltd. The note about needing to issue the subpoena made during the consultation on 4 June 2015 followed a note that the wife had a discussion with the parties’ accountant the previous day.
It was further the husband’s position that at the time of the 2016 trial any equitable interest he may have had in the Q Trust or to which he may have been entitled was of NIL value.
The husband also argued that notwithstanding work having been undertaken for W Pty Ltd by him through E Pty Ltd prior to trial he had not disclosed that fact as he had not at the time of trial sent invoices for the work due to the precarious financial circumstances of W Pty Ltd.
With respect to Ms YY, it was his position that she was engaged by E Pty Ltd to assist him. It was his case that subsequently Ms YY was directly employed by W Pty Ltd doing the same work for 2 days per week.
2016 trial
In the wife’s Amended Initiating Application filed on 15 February 2016 she sought more detailed orders for settlement of property, including an order that the husband retain certain specified assets including what was described as “[Q Trust]”.
In the husband’s further Amended Response filed on 31 March 2016 the final orders he sought by way of settlement of property made no reference to retaining any interest in Q Trust.
In the Financial Statement sworn and filed by the husband on 1 April 2016, some three days prior to the commencement of the trial before Berman J on 4 April 2016, he deposed in Part C to working in agriculture and also as a manager employed by W Pty Ltd. He deposed in Part D of the Financial Statement to average weekly income from W Pty Ltd in the sum of $4,538.
Paragraph 41 of the Financial Statement required disclosure of any “interest in a business including a business operated by you as a sole trader, in a partnership or through a proprietary company or a trust”. In that paragraph he deposed to:
·Being the sole director and shareholder in E Pty Ltd;
·An interest in a partnership styled as Curtain Partnership; and
·Being a director in a proprietary company/trust styled W Pty Ltd but having no shares in the company.
He ascribed a value of NIL to the value of his share in that proprietary company/trust as at 1 April 2016.
In paragraph 56 of the financial statement headed “Interest in any trust or deceased estate” he made no reference to any interest in the Q Trust, and in paragraph 57 of the statement which required disclosure of other financial resources there was no reference by the husband to any monies owing to E Pty Ltd by W Pty Ltd nor was there any reference to that matter in Part O of the financial statement under the heading “Additional Information”. There was no reference in Part M of the financial statement headed “About disposal of property” as to monies paid to Ms YY for any reason in the 12 months before separation or since separation.
At trial before Berman J in April 2016 the wife was self-represented. Post separation she had been legally represented, firstly by AC Lawyers from approximately September 2013 and then by Jordan and Fowler Solicitors from approximately August 2015 until late March 2016.
The wife cross examined the husband at trial as to the nature of his employment with W Pty Ltd. That cross examination took place in the afternoon of Wednesday 6 April 2016.[10] The questions were directed to the form of employment the husband was engaged in with W Pty Ltd, namely whether it was employment as described in the employment agreement between W Pty Ltd and the husband which became Exhibit 8 in that trial or whether he was working for the company as a consultant.
[10] Wife’s book of documents filed 28 March 2024, Item 26 p.156-163.
The husband’s evidence in his financial statement was not challenged by the wife, nor did she question him as to any lack of disclosure of an interest in Q Trust.
Save as to the references to income earned from consultancy work for W Pty Ltd in his statement of financial circumstances, the husband had not otherwise adduced evidence as to any interest or potential interest he may have held or to which to he may be entitled in Q Trust as at the date of 2016 trial.
In paragraph 46 of the judgment of Berman J of 15 July 2016 under the heading “Contentious Issues” His Honour said:
There remains no agreement as to the treatment of unpaid creditors in respect of [E Pty Ltd] and in relation to the partnership.
His Honour did not mention that matter further in his judgment.
In paragraph 10 of His Honour’s judgment of 15 July 2016 under the heading “Glossary of Terms” he said, in relation to W Pty Ltd:
In 2014 the husband became a director of [W Pty Ltd]. The husband has a consultancy arrangement with the company.
There was no other reference in His Honour’s judgement to either W Pty Ltd or the Q Trust. Final orders were made by His Honour on 15 July 2016 (as amended on 26 July 2016).
The order contained a provision that the husband retain his interest in E Pty Ltd free from any claim by the wife but made no reference to Q Trust.
SECTION 79A APPLICATION
In the Amended Initiating Application filed by the wife on 8 May 2020 she sought, inter alia, the following order:
1.That pursuant to Section 79A(1)(a) of the Family Law Act 1975 as amended the Order made by Honourable Justice Berman on 26 July, 2016 be set aside.
That order was opposed by the husband in his original Response filed on 13 February 2018.
Section 79A(1)(a) of the Act is in the following terms:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.[11]
[11] Family Law Act 1975 (as amended), s 79A(1)(a).
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 (Barker’s Case) where the court said in [123] when discussing the same concept:
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.
In the unreported decision of Riley & Pateman [2000] FamCA 1296, Jordan J discussed the principals relating to an application pursuant to section 79A of the Family Law Act 1975.
His Honour said:
As is relevant to the matter before this Court, the application was brought pursuant to section 79A of the Family Law Act. Again, as is relevant to this application, the portion of the section applicable reads, that where the Court is satisfied that:
(a) there has been a miscarriage of justice by reason of .. duress … or any other circumstance;
…the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The process gives rise to a wide discretion which is specifically referred to within the section itself to determine whether or not to set aside the earlier orders, and it is a matter for the Court, even if it finds that one of the grounds is established, whether or not to set aside the orders. The Court is obliged to consider the circumstances of the individual case, but it should also consider issues such as the public interest in having litigation finalised, the public interest in overseeing that, in general, the parties should be regarded as being the authors of their own financial outcomes, and finally, as a matter of policy, if there are any defects in the process and there are remedies elsewhere, then ordinarily such matters should not be visited upon the other party to the proceedings.
I accept that the process involves four distinct steps which are as follows:-
(1) Whether one of the grounds has been established, and in this case the ground argued has been duress, although in the course of submissions Mr Hamwood of Counsel for the wife sought to broaden the ground to include any other circumstance.
If such a ground is established, then the next inquiry is:
(2) Whether that ground gave rise to a miscarriage of justice, and if so
(3) Whether the Court in its discretion should vary or set aside the order, and if so
(4) What order should be made applying the provisions of section 79 and 75(2).
…
In this case it was the wife’s position, as set out both in the case outline filed on her behalf on 28 March 2024 and in her counsel’s closing submissions, that the husband failed to disclose relevant financial information to the court before or at the time of the property settlement trial before Berman J in April and May of 2016, and as a result there had been a miscarriage of justice.
It was submitted by her counsel that the husband had concealed matters in respect of which he had a duty to bring before the court at the time of the 2016 trial, that had he disclosed those matters there would have been a substantially different result, and that in those circumstances a miscarriage of justice had occurred.
He submitted in closing that there were four matters to which the court should turn its attention in particular, namely:
·The question of the husband’s entitlement to a 20% interest in the Q Trust at the time of trial in 2016;
·The husband’s claimed equitable interest in land owned by W Pty Ltd in respect of which he lodged caveats in December 2017;
·The husband’s entitlements via E Pty Ltd for work performed for W Pty Ltd completed prior to trial but not invoiced until June 2016; and
·Cash disposals by the husband prior to trial, namely $25,000 to Ms YY in early 2015 as well as other payments to her during his relationship with her.
He submitted that had the husband disclosed his interest in the Q Trust, the provisions made for Ms YY and the value of the deferred invoices, the outcome of the trial would have been materially different.
It was the husband’s position at trial as set out on page 10 of his Outline of Case filed on 28 March 2024 that the wife’s section 79 application should be dismissed on the following grounds:
·At the time of trial and at the time of judgment, any equitable or other interest held by the husband in the W Group had no discernible value; and
·The wife was aware of the details of the husband’s equitable or other interest in the W Group at the time of trial.
THE WIFE’S EVIDENCE
Paragraph 91 of the wife’s trial affidavit filed on 28 February 2024 was in the following terms:
·The letter offering the husband equity in Q Trust, a letter dated 18/2/2013 from W Pty Ltd to the husband was not disclosed by the husband prior to trial or at all and was provided to me by W Pty Ltd post-trial and judgment.
In paragraphs 92 – 106 of the same trial affidavit the wife deposed, inter alia, to:
·The husband failing to comply with an order for disclosure;
·The husband deposing in paragraphs 106 and 127 of his affidavit filed 14 February 2014 to providing consultancy work for W Pty Ltd on an as needs basis as the company’s representative in South Australia, being a director of W Pty Ltd and receiving no renumeration as a director except for travel costs, and providing services as a consultant to represent the company at the rate of $70 per hour and holding no shares in the company;
·The husband disclosing income from W Pty Ltd in his financial statement filed on 14 February 2014 but no interest in the entity;
·The husband providing particulars for a conciliation conference including a statement of assets and liabilities that made no reference to W Pty Ltd or Q Trust;
·The husband providing her with a list of documents on or about 12 February 2016 referring to the employment contract between he and W Pty Ltd;
·Filing an Amended Initiating Application on 15 February 2016 seeking an order that the husband retain certain assets including Q Trust;
·Deposing in her 2016 trial affidavit to:
·Believing the trust was effectively controlled by Mr LL, a businessman interested in transport industry projects;
·The trustee being W Pty Ltd of which the husband was a director but not a shareholder;
·Being unable to say what if any interests, entitlement or expectation the husband had in the trust[12]
[12] Wife’s trial affidavit filed 15 February 2016, paragraphs 80-82.
·The husband filing a trial affidavit on 30 March 2016 deposing to becoming a director of W Pty Ltd in 2014 and;
·Receiving no renumeration as a director but all travel costs being reimbursed and not owning any shares in the company;
·Providing consultancy work for the company from time to time as a South Australian representative;
·The work being undertaken on an “as needs” basis with payment of $70 per hour and motor vehicle allowance of $315 per week for travel costs incurred[13]
·Making no reference to any interest in Q Trust in the list of relevant assets and liabilities he set out in paragraph 159 of that trial affidavit;
·The husband filing an updated Financial Statement on 1 April 2016 disclosing income from W Pty Ltd but a NIL share in the entity;
·The husband’s case outline document provided to her by the husband on 1 April 2016 not disclosing any interest in W Pty Ltd or Q Trust in the pool of assets;
·Being provided with a list of documents including an employment agreement between the husband and W Pty Ltd, the principle terms of which were:
·The husband would be employed as the general manager of the company for a fixed period of 5 years;
·The husband would be paid an annual base salary of $200,000 plus motor vehicle allowance, work expenses and superannuation.
[13] Husband’s trial affidavit filed 30 March 2016, paragraph 51.
In paragraph 70 of her trial affidavit she deposed to a belief that the husband “equitably owned” a property purchased by Ms YY in Town C in early 2015.
In paragraph 133 of her trial affidavit the wife deposed to issues concerning unpaid invoices issued by E Pty Ltd following the April 2016 trial.
THE HUSBAND’S EVIDENCE
In paragraph 174 of his trial affidavit filed 25 March 2024 he deposed to the wife’s assertion of knowing little of his relationship with Mr LL, the W Group, their directors and employees as being untrue.
The husband did not dispute that he did not discover correspondence to him from W Pty Ltd dated 18 February 2013 when he received a request for same from the wife’s then solicitors in correspondence to him dated 2 December 2014 or on an earlier or later date.
He alleged however, as set out in paragraph 27 of these reasons, that at least by 1 December 2014 and probably by late February/March 2013 the wife had a copy of that correspondence, a fact which was not disclosed to him nor to the court at any time prior to or during the trial in April 2016.
In the very lengthy paragraph 175 of his trial affidavit commencing at page 38 and concluding on page 50 he deposed, inter alia, to:
·Becoming acquainted with Mr LL, Ms QQ and commencing involvement with the W Group in 2005;[14]
[14] Husband’s trial affidavit filed 25 March 2024, paragraph 175.
·His association with Mr LL continuing up to and following separation from the wife;[15]
[15] Husband’s trial affidavit filed 25 March 2024, paragraph 175.4.
·He and the wife having social interactions with Mr LL and Ms QQ;[16]
[16] Husband’s trial affidavit filed 25 March 2024, paragraph 175.5.1.
·Numerous discussions with the wife about the Town J development, that generally she was dismissive of the development and expressed the view that he would never realise any financial renumeration from Mr LL and Ms QQ;[17]
[17] Husband’s trial affidavit filed 25 March 2024, paragraph 175.5.2(vii).
·During the Christmas holidays in 2011 he, the wife and their children going interstate for a holiday, staying with the wife’s brother and partner;[18]
[18] Husband’s trial affidavit filed 25 March 2024, paragraph 175.6.
·Whilst there providing a presentation of the proposed transport development to the extended family;
·Discussing the plans again on their visit to Town RR where they stayed with friends after their return to South Australia from interstate;[19]
[19] Husband’s trial affidavit filed 25 March 2024, paragraph 175.7.
·Receiving an offer from W Pty Ltd in late 2012 via Mr NN being a written offer of employment with W Pty Ltd including a share offer and discussing the email and offer with the wife;[20]
[20] Husband’s trial affidavit filed 25 March 2024, paragraph 175.10.
·The offer being in the following terms:
I refer to our recent telephone discussion and advise as follows.
Much has been already discussed and partially agreed, and more recently we have endeavoured to keep your interest by suggesting you become the leader of a working party to assist in the [Town J commercial facility] development. We are now in a position to place a formal offer before you, which we hope will consummate the arrangements and fulfill your needs and in addition enhance this company’s plans with [Town J] and beyond.
We all have read the outline of the General Managers profile previously provided by you and do not have any problems with the scope.
We now outline below what we believe is the mutual understanding of the arrangements previously discussed.
Units in Trust
1.Your or your nominee entity will be issued with $1500000 worth of units in [Q Trust], which is a hybrid Trust with fixed units and discretionary powers on distributions of capital and income. A Trust deed will be made available to you so you can discuss the implications with your financial advisers. The number of units currently on issue total 100, which are currently held 100% by The [OO Family Trust]. New Units will be issued. The number of Units to be issued is yet to be calculated as it is dependent upon the valuation of the [commercial facility]. This matter requires discussion.
2.The issue of Units will require proper documentation along with the employment agreement and will cover various conditions including disposal which will need to tie into that latter agreement. For the time being this letter is an agreement in principle and we envisage a meeting will be required to discuss the salient points.
3.The $1500000 was nominated in two parts (a) $500000 to be allocated to cover the work you did in the application for the Grant and (b) $1000000 to be allocated upon the success the Grant. As you know the Application was successful but conditional. One of the latter conditions imposed was the signing of legal agreements between us and the […] Council and payment by us of all legal fees associated with that documentation. We are still waiting for the documents to be submitted to us. Your appointment will assist us greatly in finally achieving the success of the Grant.
Directorship
If the number of Units issued to you or your Nominated Entity represents more than 10% we would expect and welcome your appointment as Director of the trustee company. You should seek independent advice on the responsibilities of holding a Directorship should you not be aware of that already.
Salary
A total salary of $200k per annum with superannuation at the legislated rate (currently 9%) will be paid, from a date to be selected should you wish to accept the offer. Again an employment agreement will need to be drawn stipulating the conditions to be met by all parties.
Performance incentives
Incentives are always difficult to calculate and often have complicated formulas, whether to base it on gross profit, net profit, gross revenue or success. We believe that to base it on the profitability is too broad particularly where the revenue base is not entirely controllable by the direct efforts of the General Manager. In the case of the the [commercial facility] the revenue flow is totally dependent on the future tenant’s own business success rate and part of it is fixed by lease arrangements. As the strategic plans for [Q Trust] and the [commercial facility] is parent development and there is the desire of the board to spawn other similar developments in other areas, an incentive based on the success of development provides a better case. We would envisage the reward will come through further allocation of Units in either the existing Trust or the new development entities. This will need discussion when we meet.
Please peruse the above and contact us for a formal discussion on the contents and the timing.[21]
[21] Wife’s book of documents filed 28 March 2024, Item 13 p.116-119.
·He and the wife both being suspicious that the offer did not divulge the total number of shares in the company;
·Receiving correspondence from W Pty Ltd dated 18 February 2013 signed by Mr NN in the following terms:
·The offer of a 20% equity in the Q Trust at the commencement of any employment; and
·A further 20% equity in any further transport facility entity subject to performance.[22]
[22] Husband’s trial affidavit filed 25 March 2024, paragraph 175.13.
·The various opportunities the wife had to attend at the Suburb TT property during 2013 and 2014 in his absence, in particular the occasion the wife staying at the property for several days leading up to and following the funeral of her mother sometime in 2013;[23]
[23] Husband’s trial affidavit filed 25 March 2024, paragraph 175.22.2.
·The wife meeting with her solicitor on 11 September 2013 as described in a file note on AC Lawyers letterhead described as “discussion with [Ms Curtain] – 11 September 2013”;[24]
[24] Husband’s trial affidavit filed 25 March 2024, paragraph 175.24 & Husbands book of documents filed on 25 March 2024 Item 13, p.47.
·The following words appearing on the second page of the same file note namely “we spoke about the Q Trust. She referred me to a letter dated 4 May 2013. She thinks he has a share in this”;[25]
[25] Husband’s trial affidavit filed 25 March 2024, paragraph 175.24 & Husbands book of documents filed on 25 March 2024 Item 13, p.47.
·Receiving correspondence from the wife’s solicitors AC Lawyers dated 16 October 2013 regarding various aspects of the settlement process;[26]
[26] Husband’s trial affidavit filed 25 March 2024, paragraph 175.16.
·The correspondence including the words “you have failed to disclose the potential income due to you from the [Q Trust], which was spoken of as being an example of that type of part time role”;[27]
[27] Husband’s trial affidavit filed 25 March 2024, paragraph 175.16.
·A further file note detailing the wife’s attendance on her solicitor on 20 November 2013 headed “personal discussion with [Ms Curtain] – 20 November 2013;[28]
[28] Husband’s trial affidavit filed 25 March 2024, paragraph 175.25 & Husbands book of documents filed on 25 March 2024 Item 14, p.50.
·The following words appearing in the same file note namely “he was given a job offer with [Q Trust] and offered a share in late 2011. This is involved in a [business] venture”;[29]
[29] Husband’s trial affidavit filed 25 March 2024, paragraph 175.25 & Husbands book of documents filed on 25 March 2024 Item 14, p.50.
·A file note of discussions involving Ms AM of counsel and the wife on AC Lawyers letterhead dated 27 March 2014 including the note “we talked about the [transport structure]”;[30]
[30] Husband’s trial affidavit filed 25 March 2024, paragraph 175.30 & Husbands book of documents filed on 25 March 2024 Item 19 p.60-61.
·A letter of report dated 15 April 2014 from the wife’s then counsel Ms AM to her instructing solicitor Ms AN on her attendance with the wife at a conciliation conference on 28 March 2014 at 2:30pm including the following “I understand from your client’s instructions that whilst the parties were attending at the conference, the party’s adult daughter Ms Z was in Region DD at the Suburb TT 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 husbands offer. On the face of it the offer failed to take into account any value regarding the husband’s future business interests. The husband asserts 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”;[31]
[31] Husband’s book of documents, filed on 25 March 2024 Item 20 p.62-66. & 175.31.
·A letter to the husband’s solicitors, AE Lawyers, from the wife’s solicitors AC Lawyers dated 5 May 2014 containing a proposal regarding resolution of the matter including the following:
Our client has some reservations about the basis on which certain valuations were calculated. Once again, this material was provided in only a matter of a few days prior to the conciliation conference. It will need to be further investigated if the matter does not resolve. For the moment only our client is willing to include the stated valuations in the pool of assets.[32]
[32] Husband’s trial affidavit filed 25 March 2024, paragraph 175.32 & Husband’s book of documents, Item 21 p 67-70.
·Correspondence from the wife to her solicitor Ms AN at AC Lawyers on 1 December 2014 commencing as follows:
In view of the fact that we have a conciliation conference Wednesday 3 December 2014, I detail below the outstanding discovery documents we do not have together with missing data that we require from [Mr Curtain].
and continuing on page 4 under the heading W Pty Ltd –Manager Mr Curtain:
Please explain why discovery of letter dated 18 February 2013 was not made
Please explain why discovery of employment agreement dated 10 June 2013 between [W Pty Ltd] and [Mr Curtain] was not made.[33]
[33] Husband’s trial affidavit filed 25 March 2024, paragraph 175.26 & Husbands book of documents filed 25 March 2024, Item 15 p.51-54.
·Correspondence from the wife’s solicitors to the husband’s solicitors dated 2 December 2014, under heading “[Mr Curtain’s] sources of income, [W Pty Ltd –Manager Mr Curtain]”:
Please explain why discovery of letter dated 18 February 2013 was not made
Please explain why discovery of employment agreement dated [mid] 2013 between [W Pty Ltd] and [Mr Curtain] was not made.
Please explain why discovery of invoices were not made.[34]
[34] Wife’s supplementary book of documents, Item 1 p.1.
·Receiving correspondence from the wife’s solicitor AC Lawyers dated 2 December 2014 requesting discovery of the letter dated 18 February 2013, expecting to find the letter in a manila file in the family property office marked W Pty Ltd Contracts but finding it was not in the folder, being concerned as to why that was so but events such as the 2014 agricultural operation, construction of the Town J transport structure and purchase of the wife’s Suburb G property diverting his attention and there being no further requests from the wife’s solicitors for the correspondence;[35]
[35] Husband’s trial affidavit filed 25 March 2024, paragraphs 175.18 & 175.21.
·No further request for discovery of that document being made prior to trial but nevertheless searching for the document a few times, never finding it, and becoming suspicious as to its whereabouts when he could not find it at the Suburb TT property and eventually being able to access a photograph of the correspondence from an old phone after seeking advice about restoring data;
·In a file note headed “discussions between [Ms Curtain] and [Ms AM] and myself” on AC Lawyers letter head dated 2 June 2015 the following appearing:
[Ms Curtain] will do a list of what is outstanding in terms of discovery e.g. Bank Statement and authority to [Mr T]. We talked about a subpoena to [W Pty Ltd].[36]
[36] Husband’s trial affidavit filed 25 March 2024, paragraph 175.27 & Husbands book of documents filed 25 March 2024, Item 16 p.55-56.
·File note headed “Personal Discussion with [Ms Curtain], [Ms AM] and myself at court on 4 June 2015 prior to the hearing before Judge Berman” includes the following:
she had a discussion with [Mr T] yesterday… we need to issue a subpoena to the [Q Trust] and to [W Pty Ltd].[37]
[37] Husband’s trial affidavit filed 25 March 2024, paragraph 175.28 & Husband’s book of documents filed 25 March 2024, Item 17 p.57-58.
·A document headed “Index to folder of relevant documents – mostly 2015 – [Ms Curtain & Mr Curtain]” Item 6 being described as copy W Pty Ltd correspondence to Mr Curtain 18 February 2013 contained in trial folder index for barrister Ms AM;[38]
[38] Husband’s trial affidavit filed 25 March 2024, paragraphs 175.35 & 175.36 & Husband’s book of documents filed 25 March 2024, Item 24 p.81.
·Item 13 contained in draft asset and liabilities sheet prepared by Mr VV given to wife at court on 5 August 2015, described as husband’s interest in W Pty Ltd ATF Q Trust value not known;[39]
[39] Husband’s trial affidavit filed 25 March 2024, paragraph 175.33 & Husband’s book of documents filed 25 March 2024, Item 22 p.78.
·The following words contained in email from Ms Curtain to Mr UU dated 6 August 2015:
I am very happy to do the leg work on the discovery docs so will start compiling that immediately. I will do….a list of what we still need discovered.[40]
[40] Husband’s trial affidavit filed 25 March 2024, paragraph 175.38 & Husband’s book of documents filed 25 March 2024, Item 26 p.88.
·Contained in copy of draft affidavit of wife prepared by Mr VV:
44…[W Pty Ltd/Q Trust]
aAfter separation, I learned through an ASIC search that the husband is a director of a company called [W Pty Ltd]. He does not have any shares.
bI understand that the company is the corporate trustee of a trust called “[Q Trust]”.
cThe Chief Executive Officer, [Mr LL], is a person with much experience in this sector. He builds and operates [transport vehicles]. He has invented a “[transport structure]” and I understand that he was interested in having the husband use his marketing expertise to market this invention.
dI understand that the husband is either an employee of or contracting for [W Pty Ltd].
which wording was not included by the wife in her trial affidavit filed 15 February 2016.[41]
·Jordan & Fowler file note 7/3/16 and 8/3/16 File review for settlement purposes – reference therein to:
…15 [Q Trust] (no discernible interest) ignore.[42]
·Summary of key factual details regarding matter of Mr Curtain and Ms Curtain prepared by wife’s solicitors including, under heading Corporate entities or partnerships in item 7:
[Q Trust] – as trustee for [W Pty Ltd], ABN […] – husband has had offer of employment, query other interest in this venture.[43]
·Numerous documents being produced by way of discovery to the wife’s solicitors between November 2013 and April 2016, the wife attending at the Suburb TT property on occasions, having unrestricted access to documents at the property and to him providing documents directly to the wife consisting mainly of bank statements, production records, invoices and outstanding accounts;[44]
·At the time of trial in 2016 the wife being well aware of all of his financial dealings and having either been provided with documents or having taken personal documents from the Suburb TT property when he was not present;[45]
[41] Husband’s trial affidavit filed 25 March 2024, paragraph 175.40 & Husband’s book of documents filed 25 March 2024, Item 28 p.98-115.
[42] Husband’s trial affidavit filed 25 March 2024, paragraph 175.43 & Husband’s book of documents filed 25 March 2024, Item 31 p.148-154.
[43] Husband’s trial affidavit filed 25 March 2024, paragraph 175.44 & Husband’s book of documents filed 25 March 2024, Item 32 p.155-158.
[44] Husband’s trial affidavit filed 25 March 2024, paragraph 175.22.14.
[45] Husband’s trial affidavit filed 25 March 2024, paragraph 175.22.15.
In paragraph 176 of his trial affidavit the husband deposed to his interest in any development at Town J being negligible at the time of trial in 2016 and his shareholding in W Pty Ltd being NIL. He set out in detail in paragraph 176 his involvement in the development of the project including undertaking the various planning requirements and stages of the projects, the agitations expressed by Mr LL about the process of the project and the warnings in a press release sent by Mr LL to South Australian investors as well as correspondence from him to the South Australian Premier dated late 2015 expressing concern about the development process and progress.[46]
[46] Husband’s book of documents filed 25 March 2024, Item 33 & 34 p.159-165.
The husband’s witness Mr AK, a forensic accountant, filed an affidavit on 28 March 2024 wherein he deposed to receiving correspondence from CM Tucker & Associates on 5 March 2024 requesting he prepare a valuation regarding the Town J transport structure as of April/May/June 2016, together with a further three emails from her following upon which he prepared a valuation report dated 27 March 2024, annexed to his affidavit. His opinion was contained in paragraphs 5.8 – 5.103 of his report. It was his evidence as contained in paragraph 5.103 of the report that “in light of the facts and circumstances as at April/May/June 2016, there was no discernible value in the proposed [Town J commercial facility] or [Mr Curtain’s] indirect interest therein.”
In paragraphs 177 – 179 of his trial affidavit the husband deposed to issues concerning alleged unpaid invoices to W Pty Ltd for work done by E Pty Ltd. He deposed to:
·The last materials supply invoice being issued for work completed up to October 2015, being discovered prior to trial and the invoice being paid;
·Prior to that consistently providing copies of all invoices to W Pty Ltd as a contractor;
·The local business supplying material for the transport structure constructions closing down for three months in late 2015 due to operational requirements;
·Continuing to work on approvals for the project but not issuing any materials supply invoices for that period and for a further six months until the contracted construction criteria and milestone set by the Federal Government had been met;
·On approval of the milestone report a further payment was provided from the Government to W Pty Ltd which cash flow was relied on by W Pty Ltd to pay costs;
·Issuing an invoice on 19 June 2016 for $86,414.68 for work carried out between 28 December 2015 and 6 May 2016 which was never paid;[47]
·Subsequent invoices being issued between 8 December 2016 and 28 March 2017 totalling $72,937.15;
·Of that second amount, obtaining a settlement and costs in the sum of $38,933.65 which was paid in full after commencing proceedings in the Magistrates Court in Adelaide personally against Mr NN;
[47] Husband’s book of documents filed 25 March 2024, Item 38 p.171.
In paragraph 180 of the husband’s trial affidavit he deposed to engaging Ms YY via E Pty Ltd to assist him.
HUSBAND’S WITNESSES
The husband called two witnesses in addition to himself, being his accountant Mr AJ and a forensic accountant Mr AK. Mr AJ filed an affidavit attaching a capital gains tax work sheet, a copy of the husband’s taxation return for the year ending 30 June 2023 and a copy of an email chain dated 20 September 2023 with respect to the capital gains issue. Mr AJ was cross examined at trial. Mr AK filed an affidavit on 28 March 2024 attaching a valuation of Mr Curtain’s interest in the commercial facility at Town J as at April/May/June 2016. Mr AK was also cross examined at trial.
CROSS EXAMINATION OF THE HUSBAND
On cross examination the husband confirmed that he had been elected to the board of W Pty Ltd in mid-2013 and commenced employment with the company a short time later. When asked if from the end of May 2013 he believed he had an entitlement to 20% of the units in the Q Trust he agreed he did if he did all things right. When asked if for example on 1 June 2013 he had sent an email to Mr NN asking for release of his 20% equity in Q Trust he replied that he had not as there were ongoing discussions about the method of his employment.
He said that he had not sent a letter to Mr NN in June 2013 about the release of the units because W Pty Ltd and/or Q Trust had not produced any financials and he had not done due diligence. He said that as at that date he had no idea of the finances of the company and only knew what Mr LL had told him when trying to induce him to join the company which he found out later was incorrect. He said he had no idea what 20% of the equity in Q Trust would be worth as it owned no land and was a “blue sky” development but he hoped in the future the enterprise would have some worth, and took a risk.
When asked if he had earlier been offered an interest in the trust by a different means he said that after he had visited Town J in 2011 Mr LL had attempted to induce him with an offer of a 50% interest in the enterprise if he helped to develop it. He said he had also received an email from Mr NN on 28 December 2012 wherein he was offered a salary of $200,000 plus superannuation plus 1.5 million shares in Q Trust if he was to take up the offer of employment by the company.
He was asked when he accepted the offer of employment made in the communication of 18February 2013 he thought a 20% interest would be worth up to $1.5 million in units. He said that when he received the earlier offer in late 2012 he shared it with the wife and then went back to Mr NN and asked the value of the 1.5 million shares in Q Trust. He said he was advised that the value was unknown, which was of concern to him.
He said his own thoughts as to the value of a 20% interest when he signed on to work for W Pty Ltd in 2013 were that he knew it was a “blue sky” proposal and that a lot had to be done to achieve a result in the realms of the development overall having a value of $10.5 million to $12.5 million. He said he was also aware that Mr LL had told him that the land on which the development was occurring was in his wife’s superannuation fund.
The husband agreed that when he was working for W Pty Ltd in December 2015 he introduced a company known as AO Company to W Pty Ltd, but was unable to confirm when they executed a heads of agreement. He said at that time his belief was that Q Trust was worth nothing as the South Australian Government had created a zone which took away the land for some 2km or more around Town J. He said that although he was a director of W Pty Ltd in December 2015 he did not see a valuation for Town J, and when asked whether W Pty Ltd had valuations for the trust or the company at that time he said that he did not know because he was not privy to anything Mr LL and Ms QQ did even though he was a director.
The husband said in cross examination that he had not been privy to any independent valuation obtained during the time AO Company and Q Trust were talking and his only involvement with AO Company was in introducing the company, a Western Australian company, to W Pty Ltd/Q Trust, as they were looking for a presence in South Australia.
When it was put to him that as a director of W Pty Ltd he had access to any valuation done at that time he repeated that although he was a director he was not provided with financial details although he requested them several times. He said Mr LL had not said anything to him in or before July 2016 suggesting the development had a value of $30 million but rather, that was Mr LL’s idea of what he wanted for the development rather than a valuation.
When asked if he had disclosed a heads of agreement between AO Company and Q Trust prior to the 2016 trial the husband agreed he did not but said that the heads of agreement were not proceeded with in circumstances where AO Company offered an annual lease rental of $1 per year for forty years.
It was the husband’s evidence in cross examination that throughout the time he was a director of W Pty Ltd his requests for financial statements had been refused or ignored and that at the time of trial in 2016 he was not aware that the equity in Q Trust as at 30 June 2015 was disclosed to be $1,206,956.94 on the balance sheet prepared in March 2017 for the 2015/2016 year.
The husband agreed in cross examination that he received an email from Mr NN dated 1 March 2016 in the following terms:
G'day [Mr Curtain],
Thought I would put down a few thoughts whilst here [overseas], which, where we are was not affected greatly by the [weather event]. The main area of destruction was [elsewhere], albeit the golf club here lost a few massive trees which gave new meaning in the use of fairway woods!
Firstly we must clarify and cement the private equity allocation that you have been promised by [Mr LL] and [Ms QQ] for your success in gaining the Government grants both Federal and State and the additional [Grant]. The main problem as I see it is the settlement process involved with the separation from your former wife. The unit register must state 20% is held by a party other than [Mr LL and Ms QQ].
This will need discussion with your professional advisers, but I suggest a further Unit Trust could be set up with a corporate Trustee, the Directors of which could be your professional advisor and one other. The Unit holder in the trust will need to be someone close to you but not an immediate family member […]. A side letter of Trust could be held allowing the Units to be transferred at a later stage (when your settlement is finally completed) but stating the Units are held on behalf of you or other entity of your choosing.
Secondly a cost price of entry for the 80% needs to be established soon and from what I hear of the […] offer to match the [transport structure] valuation it could be sub $30m. [Mr LL] is asking $40m (ie $32m for his 80%) but we could not ask that level of a private equity entity and then turn around and sell to [AP Company] at a lesser figure.
There is an option not to sell all 80% but part which will satisfy [Mr LL] and [Ms QQ’s] desire to commence the sale down process, however I think it would be better it was a total 80% sell down.
Thirdly, and I have wrestled with this for some time, and that is a percentage of the action for myself. I don't think it is a point of discussion that I can force with [Mr LL] and [Ms QQ], it has to come from them willingly. Conversely I cannot see them accepting any proposition that they should allocate a percentage to me from their holding, coming from you on my behalf, based on the role [E Pty Ltd] has played in the project management of the construction and the continued distrust they have In that regard (have you accounted to them on that score as yet?) Accordingly I have nothing to offer which will see me with any percentage at this stage.
Fourthly the makeup of the board of [AP Company] will require discussion and obviously whoever holds the units in [Q Trust] will need to feature on the board.
Finally we need to sit down and draw a document of private equity participation in [Q Trust] we can put in front of interested parties and of course we should establish a short list of those parties.
I am back from [overseas] late on Friday. You mentioned a meeting in Sydney, what date is that and who is it with?
Cheers
[Mr NN][48]
[48] Wife’s book of documents filed 28 March 20204, Item 14 p.122.
The husband said he had not pursued the transfer of the 20% interest in Q Trust at that time as, in addition to his concerns about Mr NN’s suggestions regarding how the transaction should be effected he did not believe that if he had asked for the transfer of the 20% in any form it would have occurred. When asked why not he said Mr NN was not a shareholder, he could not force Mr LL and Ms QQ to issue shares and there was nothing in the correspondence of 1 March 2016 to suggest that he had confirmed the proposals contained therein with the two owners.
He told the court that in May 2013 the owners of the company had expressed an intention to offer him the 20% equity but effectively what they had done was induce him to join the company, which is why ultimately he had to take proceedings in the Federal Court.
When asked if AO Company had made an offer to purchase W Pty Ltd and Q Trust he replied that around early 2016 he thought they offered an annual rental rate of $1 verbally which was reconfirmed in July of that year, in circumstances where AO Company said that the development was unviable and that the price Mr LL was asking was unviable. The husband again said that he was not privy to any valuation that Q Trust may or may not have as at early 2016.
In answer to whether, when the husband read the letter from Mr NN of 1 March 2016, it triggered him to make an enquiry of Mr NN as to the transport structure valuation he said it did not, but it did trigger a concern he was being asked to do something illegal in setting up a trust and effect an illegal transfer of units to a trust involving a third party.
He said he was not concerned with information coming to the Family Court and was trying to get financial information which he thought he had every right to do but that in all of his time with the company there had been no financial Annual General Meeting and it was the owners who were concerned about him being involved in proceedings in the Family Court, not him. He denied that the reason he did not pursue a 20% interest in Q Trust was to keep the matter outside of the knowledge of the court. He said that Mr LL had made it clear to him in two meetings that if the company was brought into the proceedings between he and the wife in the Family Court he would be dismissed. He said that Mr LL had told him he had involvement in the Family Court previously and he considered it to be a threat to his business.
When he was asked if he was saying that at no time while he was involved with W Pty Ltd was he informed of any valuations obtained from time to time he said he didn’t know that any valuations had been prepared but just knew that Mr LL had in mind figures he wanted and was telling people that he had various approvals but that he did not.
On various occasions during the husband’s evidence in cross examination he told the court that any values that had ever been referred to by him in the course of his work with W Pty Ltd or any communications he had written or received were values Mr LL told him he placed on the asset from time to time and he was not aware at any time of any formal valuation.
When asked if he was terminated as a director or employee as at late 2016 he replied that was not the case but that he had been asked to a meeting in late 2016 at which time he had been asked to resign as director but not as the Manager.
The husband agreed that in March 2017 he had formally requested a transfer of units representing a 20% interest in Q Trust to him. He thought it was not the first time he had asked the directors to do that but it was the first time he had done so officially in writing. He denied the proposition that the timing coincided with his knowledge that the Family Court proceedings were finalised including the appeal proceedings.
The husband said he became a contractor for W Pty Ltd rather than an employee in circumstances where, after being sent out for about two hours from the first board meeting he attended, he was called back in and told that W Pty Ltd wanted to avoid payroll tax. He said from June 2013 to November 2016 he was employed pursuant to a signed consultancy agreement rather than the employment contract which both he and Mr NN on behalf of W Pty Ltd, had signed in June 2013. He said he was always paid as a contractor and not under a PAYG employee arrangement.
He denied that the reason his employment was arranged in that manner was because of the circumstances of him continuing to be involved in the agricultural business and said the issue initially arose because of W Pty Ltd wanting to avoid payroll tax. He said the compromise he put to Mr LL was to work as a consultant to enable him to live on the Suburb TT property and not near the Town C airport as Mr LL wished him to do. He said that the reason he had back dated the email that he wrote to Mr LL in August 2013 detailing the changed employment arrangements to early 2013 was that he had been paid on an invoice basis from that date. He said Mr LL had signed the letter dated 4 May 2013 sometime after 19 August 2013.
He was asked if he had any explanation why W Pty Ltd executed the original employment agreement in June 2013 notwithstanding the discussions about a possible consultancy at the first board meeting he attended in May 2013. He said that was their preferred way but he insisted on having an employment agreement although he had to concede something because he could not live in Town C.
With respect to the invoice from E Pty Ltd to W Pty Ltd dated 12 June 2016, some six months after completing the work to which it related, he said that at a board meeting on 28 December 2015 Ms QQ said that the company was under financial stress and could not pay that account until they received the next Government payment, a fact he already knew. He said he was “absolutely” concerned regarding the liquidity of W Pty Ltd but that did not prompt him to send the invoice quickly but rather to try and get the project finished. He denied that prior to the end of 2016 he had sent prompt invoices but agreed that an invoice that had been sent by him to Q Trust Pty Ltd on 28 February 2015 was for work done between 13 January 2015 and 28 February 2015.
He denied that the delay in sending the invoice on 12 June 2016 was because of the family court trial and said it had occurred because he was not the site supervisor at Town J and had been waiting for information from the company that operates a transport business, about what hours had been worked. He said he had been lending his equipment to that company for the work to be carried out but it could only be done when the area was suitable.
He said there had been earlier delays in invoices being paid when he had to wait months and was continually told by Ms QQ that there were cash flow issues. He said he was told at the board meeting on 28 December 2015 by Ms QQ that she wanted him to prepare the next report in approximately March 2016 to be provided to the Commonwealth Government so that funds would be released and that the work could not be completed until then.
He further told the court that on 9 April 2016 Mr LL had told him that the whole project was being put on hold for twelve months in circumstances where it was “close to the rocks” in terms of liquidity problems. He said that he did not tell the wife or Berman J that E Pty Ltd had unbilled work in circumstances where he had no details as to what work had not been billed and he was relying on others to give him details. He reiterated that the invoice dated 12 June 2016 had never been paid, he knew if he had sent the invoice earlier he would not have been paid as there were liquidity problems, that all E Pty Ltd accounts had been disclosed to the wife and the court at the time of the 2016 trial and that any payments E Pty Ltd did receive prior to trial would have gone into an account in the name of that company.
The husband confirmed that during 2014/2015 he was still Manager at W Pty Ltd and that during that time E Pty Ltd was paying money regularly to Ms YY. He said during the time she worked for him under her own company she was paid a consultancy fee of $300 per day and that at some time thereafter her company was employed by W Pty Ltd on a direct basis as a consultant. He said she helped with reports in relation to matters such as work safety, compliance and marketing. When asked who did that work before then, for example in 2013, he said such consulting work regarding the Town J development did not start until late 2014.
When asked who helped with reports after she ceased being a consultant for firstly him and then W Pty Ltd in 2015 he said W Pty Ltd engaged a person to carry out the safety reports. He said that he did not engage anyone else because W Pty Ltd recognised they had a need and then paid Ms YY direct.
He agreed that in early 2015 Ms YY had purchased a unit near to where he lived in Town C to which he contributed the sum of $25,000. He said those funds came from E Pty Ltd and agreed that his relationship with Ms YY ended in 2017. When it was put to him that prior to the trial before Berman J he had gifted $25,000 to Ms YY he denied the proposition and said that the payment was in recognition of her help to get M Property ready to be rented out, cleaning the garden and painting rooms. He further said that on one weekend his daughter Ms BB had been at his Town C property and wrecked things at the unit during a party with her friends. He said the police were called, and that Ms YY had helped him clean up, including cleaning the carpets and getting the property ready for sale.
He agreed she purchased her property in early 2015 and took out a loan in her own name. When asked when he first disclosed that to the wife he said he disclosed all of his bank accounts and considered the payment to Ms YY as reimbursement for her efforts. When asked if he had provided any other money to anyone else other than Ms YY since 2013 he said he did to workers on M Property, paid as agricultural business expenses. He said Ms YY was not paid as an agricultural business expense, that she did not ask for anything and that the consultancy rate of $300 per day was a reduced rate which was paid from the E Pty Ltd account. He said he thought it was claimed as an expense for E Pty Ltd because she sent a tax invoice.
Mr Curtain agreed that settlement in the Federal Court proceedings between he, Mr LL and W Pty Ltd occurred on 3 April 2023. He said his involvement as Manager or Manager of W Pty Ltd had ceased in late 2016 and that in early 2017 W Pty Ltd had entered into a binding agreement with AG Trust. He denied that prior to the trial before Berman J in 2016 he had confidentially known that his 20% share in the Q Trust was worth a lot of money.
In re-examination it was his evidence that at the time of the 2016 trial Town J was far from a fully functioning transport structure.
CROSS EXAMINATION OF THE WIFE
The wife was cross examined at trial. She was asked if it was her case that at the time of the 2016 trial she did not know that the husband had any interest in W Pty Ltd. She replied that it was well documented that she was suspicious before the trial but did not know at trial what interest the husband had in W Pty Ltd and that is why she had asked for discovery.
She agreed that in February 2016 she had filed an Amended Initiating Application seeking inter alia, an order that the husband retain his interest in Q Trust but denied that she knew of the husband’s interest in Q Trust. She denied the husband had told her of any such interest and said she had included that order as she was suspicious.
She agreed that in response to an affidavit of the husband filed on 18 January 2021 wherein he deposed to both parties having social interactions with Mr LL and Ms QQ prior to separation, she had responded in an affidavit she filed on 11 May 2021 that she had met them on only one occasion at dinner when she was still married to the husband.
She said she was unable to recall meeting them on several occasions but agreed the husband had a lot of dinners and that she attended at some. She said the occasion she recalled meeting Mr LL and Ms QQ was some time around 2009 or 2010 although it was too long ago for her to accurately remember.
She agreed that in the same affidavit filed by the husband on 18 January 2021 he had deposed to Mr LL commencing offering inducements to him to join W Pty Ltd in or about 2010. She agreed that such dates were well prior to the parties living separately under the same roof and well before she had moved to Adelaide to live and did not deny that the husband had discussed those inducements from Mr LL when discussing with her the project he was working on.
When it was put to her that the husband had told her Mr LL was offering him a share in the enterprise she said she recalled general discussions with the husband, did not recall when those discussions took place, that they had over several years discussed the high cost of transporting goods and that from her memory the development was a concept.
When asked who told her that Mr LL had offered the husband a share in the enterprise she said she didn’t recall, but that it was before 2013 when she left the Suburb TT property. She agreed that it might have been during the period when she and the husband were living separately and apart under the same roof, that she didn’t recall the specific percentages of Mr LL’s offer but recalled the husband saying that he had been offered the opportunity of being involved in the Town J project.
She said she didn’t recall telling the husband that she thought that the project would never get off the ground, but agreed she was frustrated that he had many off agricultural investments and interests and she was stuck on the Suburb TT property. She agreed that she considered the husband’s time would be better spent working on the agricultural enterprises and was frustrated that that was not his focus.
When it was put to the wife that it was her case that she was unaware of the letter of offer from W Pty Ltd to the husband dated 18 February 2013 until after the 2016 trial she said she did know of the letter because it was documented in Ms AN’s correspondence, but the husband never produced the letter.
The wife said she thought she had the letter of 18 February 2013 in her possession at the time she drafted correspondence to Ms AN on 1 December 2014. When asked how she got it she said she went back to Town L about four weeks after leaving the Suburb TT property as her mother was dying. She said she was staying in the Suburb TT property and still doing all the books and gathered up whatever was in the office to take with her to continue reconciliation of agricultural accounts. She said she didn’t remember seeing the letter specifically then but thought it must have been with the documents that she collected up.
She agreed she may have given a copy of the letter to Ms AN and kept a copy and that in any event, at the very latest by 1 December 2014, the letter had been brought to her attention.
She said she didn’t recall whether the letter formed a part of the brief to Ms AM and agreed that when AC Lawyers were no longer able to act for her she had collected the file from that firm by way of it being delivered to her at her home.
The wife agreed that in an affidavit sworn in support of her section 79A application on 27 November 2017 she said that in early August 2017 she had contacted W Pty Ltd, had a conversation with Mr LL in August 2017 and received from him a copy of the letter dated 18 February 2013.
When asked why she didn’t tell the court in 2016 that she had in fact obtained a copy of the letter dated 18 February 2013 prior to the trial she replied that she knew that she had a copy, she gave it to her solicitor and then asked for discovery of the letter from the husband, which discovery was not forthcoming.
When asked why she did not tell the court in her affidavit dated 27 November 2017 that she had a copy of that letter at least by 1 December 2014 she replied that she had asked for discovery from the husband and it had not been forthcoming. When asked again what prevented her from telling the court that she had obtained a copy of the letter at the latest by December 2014 she said she couldn’t say, and could only apologise if that detail was missing as she was not denying she had seen a copy of the letter.
She agreed that when she discovered the letter dated 18 February 2013 she had not sought to return it to the husband nor had she provided a copy to the husband. When asked if she had instructed her solicitors to give a copy of the letter to the husband she said she left it in their hands.
The wife agreed that she had discussions with Ms AN in September 2013, and agreed that on her own evidence that was after she came into possession of documents she had removed from the Suburb TT property. She said she had not studied the documents when she first took them because it was a busy time and she had a lot of things to catch up on for the children and the bookwork to do for the agricultural business.
She agreed that Ms AN had noted on that occasion that the wife thought the husband had a share in Q Trust. When asked whether, when she expressed that view to Ms AN, she believed it to be true she firstly replied she was suspicious and when asked again agreed that she thought that he did. She said she was led to that belief because the husband talked of the project when they were still living on the Suburb TT property and she thought he told her at the collaborative mediation he was working there.
She agreed she had discussions with the husband but when asked whether he told her he would be getting a 20% share she said she didn’t remember specifics, that originally they talked of opportunities but he later said he was employed at W Pty Ltd.
She agreed she saw Ms AN again in November 2013, and that if Ms AN had written in the notes of that appointment that she told her the husband had been given a job offer by Q Trust and offered a share in the business in late 2011, she would have said that to Ms AN. When asked how she had come by that information she said it was maybe through discussions with the husband, but then agreed she could only have known that fact through discussions with husband.
She was asked, in circumstances where the notes recorded searches being done including in relation to W Pty Ltd, why she would have instructed Ms AN to undertake those searches. She replied that she would say it was in preparation for the trial, but she did not think a subpoena had ever been issued to W Pty Ltd.
Asked if she was able to recall mentioning a feature of the transport infrastructure during a conference involving herself, Ms AN and Ms AM, her then barrister, in March 2014, when at that time there were no works but simply a hole in the ground she said she didn’t recall and that it may have been a way to refer to the project. She was unable to recall whether she initiated discussion about that matter, didn’t recall whether at that stage she knew the infrastructure had not been built and relied on what the lawyer documented in the notes to be correct.
When questioned on correspondence from Ms AM to Ms AN dated 15 April 2014 she said she could not dispute but could not recall telling Ms AM that the parties daughter Ms Z was at the Suburb TT property at the time of their conference taking photos. When asked why she had instructed Ms Z to do that she replied Ms Z was possibly copying documents for the purpose of her trying to finalise the bookwork involved in the agricultural business at the time of trial. She agreed that Justice Berman had found that she had no dealings with the business after she left in January 2013 but said that was not the case. She agreed she had not challenged that finding at the time of lodging her appeal.
In reference to the correspondence from Ms AM to Ms AN she was asked what future business interests she thought the husband had as at April 2014. She replied that he had many different interests off agricultural, including entities such as P Company, S Company, R Company and W Pty Ltd. She said she couldn’t remember whether she thought W Pty Ltd was a business interest of the husbands at that time and could not recall whether she said to her counsel that it might be of value in the future, but that if it was in Ms AM’s letter she did say that.
When it was put to her that the tenor of the letter of report written by Ms AM to Ms AN was that she (the wife) did not have the letter dated 18 February 2013 in her possession she replied it may have been in the boxes she took from the Suburb TT property and then when she saw it and read it she gave it to her lawyer.
She agreed that the suggestion of a 15% offer to the husband from W Pty Ltd couldn’t have come from the letter dated 18 February 2013 because that referred to a 20% interest. It was suggested to the wife that the reference in Ms AM’s correspondence of 15 April 2014 to the wife thinking that the value of the enterprise might increase in the future implied that her thought at the time she made the statement to Ms AM was that it had no value but may have in the future. She replied that it might have been based on what the husband had told her and what the public knew. She said that at the time she made that statement as recorded by Ms AM she had no idea whether the husband’s interest in the development had any value.
When asked what steps she had taken to find out, she said she gave her lawyer any information she had. She said that she didn’t know where any understanding about a possible 15% shareholding for the husband in the development could have come from other than the husband, and that it may have come from a discussion with him before she left the Suburb TT property regarding the project, at which time she had suspicions.
When it was again put to the wife that the only way she could have had any understanding of any interest the husband may have if not from the letter dated 18 February 2013 must have been from the husband she agreed that may have been the case, or that it may have come from a friend of his. She said that she just remembered talking with the husband about the potential that the project had. She agreed that in 2011 or 2012 it was possibly the case that the husband was not backward in telling her that he expected a share in the project.
She agreed that after Mr UU commenced acting for her he filed an interim case outline on her behalf on 5 August 2015, and that Item 13 in the list of assets, described as the Q Trust, was drafted in accordance with her instructions with the value recorded as “not known”. She agreed that the outline told the court that the husband had an interest in the Q Trust but that she didn’t know how much it was worth. When asked again what steps she took to find out she said it was in the lawyer’s hands. When asked if she had instructed her new lawyers to perform a valuation she said she didn’t know but was probably relying on discovery. She agreed she never instructed a valuer.
The wife was asked to look at a draft of an affidavit of hers marked “draft 6/11/15” and asked if she ever had occasion to peruse that document in November 2015. She said she couldn’t recall and that it was clearly a draft.
She was asked to look specifically at paragraphs 81 – 83 of the draft affidavit wherein under the heading Q Trust it stated that she believed the trust was effectively controlled by Mr LL, a businessman interested in the transport industry and transport structures, that the trustee was W Pty Ltd of which the husband is a director but not a shareholder and that she was unable to say what if any interest, entitlement, or expectation the husband had in the trust. She was then asked what steps she had taken to ascertain those details.
She said that communication between she and the husband was not great and she just accepted that he didn’t tell her what he didn’t want to. It was put to her that by then she had the letter dated 18 February 2013 and she replied that she didn’t know what it meant. When asked if she had asked her lawyer what the letter meant she said she asked for disclosure of the letter from the husband which was not forthcoming.
When it was put to her that the letter indicated the husband holding a 20% interest in the entity, and whether it was the case that she had never asked any of her legal advisors what that meant, she replied that she had not and that “we” didn’t know the value of the project or where it was at. She said that “they” relied on Mr Curtain to tell them. When it was put to her that she thought at the time of the draft affidavit being prepared that the project had no value she said that was not correct, and that she did not know.
When it was put to her that the husband had very recently filed a valuation showing there was no value to his interest at the time of the draft affidavit she replied that the husband said that he was a contractor, but she conceded that a contractor can have equity in an enterprise. When it was put to her that what the husband was saying was correct, in that he had no shareholding prior to the trial, she agreed that accorded with a search that was done.
The wife said she did not recall what she had said to Ms AN when she had delivered the letter dated 18 February 2013 to her but agreed that she (the wife) must have thought that the letter had some significance. She said that at the time she knew that the husband was working for W Pty Ltd, that she had earlier discussions with him regarding the project and so had an ongoing query. She said she didn’t know the exact arrangements between he and W Pty Ltd or what his financial interest was.
When she was asked again why Ms AN wrote to the husband on her instructions on 2 December 2014 requesting discovery of the letter of 18 February 2013 when she (the wife) had a copy she replied she did not recall needing to get another copy but was keen to establish what financial interest the husband had in W Pty Ltd. She said that was her position up to and during the 2016 trial.
The wife denied that she did not question the husband about his financial interest in W Pty Ltd during the 2016 trial. When asked why she had not questioned the husband at trial about the contents of the letter of 18 February 2013 she replied that she already had and that he didn’t respond.
When counsel put to her that she had not asked the husband one question about the letter or its contents during the trial in 2016 she said that she did ask him about his interest and that it was entirely up to him how he answered. When asked again why she did not ask the husband about the contents of the letter at a time that he was giving evidence on oath she replied that she missed that, and that she was sorry about that.
She agreed that she had two experienced family law solicitors acting for her in the period up to the time of trial. She disagreed with the proposition that she did not ask the husband about his financial interest in the project at trial because at that time she knew it had no value, and repeated that she did ask him in cross examination what financial interest he had in W Pty Ltd.
When counsel put to her that if she had asked such questions that fact would be referred to in the affidavit of one or other party for the purpose of the current trial she replied that her solicitor wrote her affidavit. When asked whether she had read and signed her affidavit she said she relied on her solicitor to word her affidavit the way he saw fit.
The wife said she had not read the valuation of Mr AK recently produced to the court as it had only just come in, and when it was put to her that it had come in the week prior to the trial she replied, “did it – my lawyer may have sent it to me”. When it was suggested to her that she wasn’t interested in that information she said that she worked all over Easter and didn’t have a chance to read the report.
It was put to the wife, in the context of the contents of paragraph 5.102 of the report of Mr AK, that her view at the time of the 2016 trial, in accordance with the view of Mr AK, was that the project had no discernible value. She denied that proposition and said she had no idea what it was worth. When asked why she had not tried to find out she said that she did and that she didn’t know the background to the Mr AK report or Mr AK’s expertise.
The wife agreed that in her trial affidavit sworn on 15 February 2016 she had made no mention of contacting W Pty Ltd but said the trial was not until April and that she may have been in contact between February and April when she was preparing for trial.
She agreed that on 1 April 2016 when the husband filed a statement of financial circumstances wherein he declared to having no shareholding in W Pty Ltd that was correct as shown by a search and further that he had declared no financial interest in W Pty Ltd at the time of trial. She said she was not disputing what he might have put in his financials, and that she had “maybe not” cross examined him on his statement of financial circumstances at trial.
When asked if she was saying that Mr UU failed to grasp the significance of the letter dated 18 February 2013 she said she didn’t know.
The wife was questioned about a file note prepared by her solicitors at Jordan and Fowler dated 7/3/16 and 8/3/16 and agreed she had seen the file note. It was headed “file review (for settlement purposes)”.
When asked about an office attendance with Mr UU on 25 February 2016 she said she was unable to recall that appointment but relied on the notes being accurate. She was unable to recall whether Mr UU advised her that her chances of success in retaining the agricultural properties was NIL but accepted that if it was in the notes it was accurate, based on what they knew at the time. She agreed that she persisted with that argument at trial and did not succeed in keeping the agricultural properties.
When asked when she had seen the file review note she said it was when reading through the husband’s book of documents and she didn’t recall seeing it prior to the trial before Berman J. She agreed there was a balance sheet (simplified) in the document, that Item 15 in that document was Q Trust and that the word “ignore” was next to that item in the asset list. When asked if she recalled Mr UU telling her that he didn’t think that there was any value in the husband’s interest in the Q Trust she replied that he didn’t know.
She agreed that on the fifth page of the review it was noted that she had described the case to Mr UU as a multimillion dollar agricultural case and that when the file note was created her interest was predominantly in being able to retain the Suburb TT property.
When questioned about document 34 in her list of discovered documents she agreed that it was W Pty Ltd financials to 30 June 2014 which she thought had been obtained from solicitor Mr KK’s subpoenaed file obtained after the order of Berman J dated 27 September 2018. When asked what efforts she had made or taken to obtain the profit and loss statements for W Pty Ltd prior to the 2016 trial she replied none, and when asked if that was despite instructing her solicitors to issue subpoena to W Pty Ltd at some stage she said it must have been discussed but never done.
She agreed that she had said earlier she was keen to ascertain the value of the husband’s interest in W Pty Ltd but said she didn’t pursue the issuing of a subpoena.
In cross examination the wife told the court that she believed the husband equitably owned a property purchased by Ms YY in Town C on early 2015, but conceded she had no evidence in relation to that issue. When she was asked whether it was “okay” to allege matters without any evidence she replied that “we” got discovery prior to trial from Ms YY’s lawyer and when asked whether that information disclosed no equitable interest owned by the husband in the property but she still nevertheless persisted with her allegation, she replied that they got information that he loaned Ms YY $25,000 short term.
CREDIT OF THE PARTIES
Overall I found the wife to be an unreliable witness who throughout lengthy cross examination gave answers to questions in a manner intended to obfuscate the issues to which she was being directed.
I find that her frequent suggestion during cross examination that she had had “suspicions” about the husband’s interest in Q Trust was designed to mislead the court, in circumstances where she conceded that for some years prior to separation the husband had regularly discussed with her inducements from W Pty Ltd to commence employment with them on the basis of an offer of an interest in Q Trust. She further conceded that it was likely the husband had told her in 2013, during collaborative mediation, that he was working for Q Trust and further, that her evidence to the court to the effect that she had only met Mr LL and Ms QQ one occasion was untrue.
The most startling aspect of her evidence however was contained in paragraph 91 of her trial affidavit, where she deposed to the husband having never disclosed correspondence to him from W Pty Ltd dated 18 February 2013 offering employment and a 20% interest in Q Trust and further that she had not obtained a copy of that correspondence until receiving same from Mr LL on or about 7 August 2017. During cross examination she freely conceded that she had obtained a copy of the letter of offer from the Suburb TT property herself, most likely at the time she had collected a significant quantity of documents relating to the agricultural business enterprise at the time she stayed in the parties’ Suburb TT property in the absence of the husband, at or about the time of her mother’s death and funeral.
I am satisfied that the document was not inadvertently gathered up by her with other documents as she suggested but, in circumstances where I accept the husband’s evidence that he had put a copy of that document in the filing cabinet in a file marked “[W Pty Ltd] contracts”, I find that the wife had intentionally removed the document and at no time prior to the 2016 trial disclosed to the husband that she had removed the document nor attempted to return to him, at the very least, a copy of the document.
To the contrary, she had instructed her solicitor on 2 December 2014, likely some 18 months or so after she had obtained the copy of the correspondence, to write to the husband to seek discovery of the very same document.
The wife adduced no evidence for the purposes of the 2016 trial that she had the letter in her possession from the early part of 2013 nor was that raised in her affidavit filed for the purposes of this trial.
When pressed on that matter in cross examination she told the court that she knew as at 2 December 2014 when she gave her solicitor instructions to seek discovery of the letter that she had a copy of the letter and gave it to her solicitor. She said that discovery of the letter was not forthcoming. When asked why she had failed to tell the court that fact in her affidavit filed on 27 November 2017 in support of her Initiating Application seeking an order to set aside the order of Justice Berman of July 2016, she replied again that she had asked for discovery and it had not been forthcoming. When asked what prevented her from telling the court that she had obtained a copy of the letter at the very latest by 1 December 2014 she said she could only apologise if that detail was missing as she was not denying she had seen a copy of the letter.
The obligation for disclosure applied equally to the husband and the wife, including as to the existence of the letter of offer to the husband dated 18 February 2013. Neither party discovered the document as being a document in their possession or control either prior to the 2016 trial or during that trial. The wife adduced no evidence in the current proceedings as to any efforts having been made, in the full knowledge of the terms of the offer of 18 February 2013, to ascertain prior to trial exactly what steps the husband had taken in terms of employment and realisation of the expressed intention of W Pty Ltd to offer the 20% interest to him upon commencement of his employment, or of any steps having been taken to issue a subpoena in the absence of unsatisfactory disclosure by the husband.
Discovery of the letter dated 18 February 2013, as was sought in the letter she instructed her solicitor to write to the husband on 2 December 2014, would have elicited no more information than that which she had already had in her possession for a period of approximately 18 months.
She adduced no evidence to explain why she had not taken advice, particularly from her counsel Ms AM, with respect to the issuing of subpoenas to Q Trust and W Pty Ltd. Notwithstanding her evidence that she was anxious at all times up to the date of the trial in 2016 to ascertain the extent of the husband’s interest in Q Trust and the value of same, I am unable to find any evidence to support that assertion on the part of the wife.
She conceded in cross examination that she had several attendances upon her solicitor Ms AN and on her counsel Ms AM during which she raised a belief that the husband had an interest in the Q Trust, and told the court she was led to that belief because the husband had talked of the project while they were still living at the Suburb TT property. In addition, she thought he had told her during collaborative mediation that he was working for W Pty Ltd.
At her appointment with Ms AN on 20 November 2013 she conceded she told Ms AN that the husband had been given a job offer by Q Trust and offered a share in the business in late 2011. None of this material was brought to the attention of the court in 2016. Nor, in circumstances where she had the opportunity to cross examine the husband whilst under oath during the 2016 trial were any of those issues put to the husband.
His Honour Justice Berman commented in paragraph 124 of his judgment of 15 July 2016 to the wife choosing not to assist the court with clear evidence with respect to certain matters, and in paragraph 125 of the same reasons to her exhibiting a level of bravado when giving evidence that she did not feel she should be criticised for. Both of His Honour’s observations I find to be apposite to the evidence the wife provided to the court in this trial and her presentation and answers in cross examination.
Overall I found the husband to be a more reliable witness. His explanation for not producing the letter of 18 February 2013 to the court and to the wife in 2016 was less than satisfactory. Nevertheless, I accept that there was a level of veracity in respect of the evidence he gave as to the aversion Mr LL expressed to him regarding W Pty Ltd being associated with any proceedings in the family court and the possible impact on his employment if he attempted to press for access to financial information to which he was entitled as a board member. That evidence is supported by matters contained in the letter from Mr LL to the wife to which I have referred in paragraph 201 of these reasons.
I accept the husband’s evidence that he took a risk and accepted the offer of employment and the conditions of that offer in the context of it being a “blue sky” development which he hoped would ultimately be successful. I accept that he had a genuine belief at the time of trial in 2016, that his interest as at April 2016 in the Town J development via an interest in Q Trust was of very minimal if any value. The only evidence before the court at this trial was that contained in the valuation of Mr AK referred to earlier herein. Mr AK was cross examined at length but I find his evidence was not shaken in that cross examination.
Other than in circumstances to which I refer in particular, I preferred the evidence of the husband over that of the wife in respect of matters where there was dispute.
HAS THE GROUND BEEN ESTABLISHED
In the wife’s case outline prepared by her then solicitor Mr UU on 28 March 2004 the following appears:
The wife argues that the husband failed to disclose relevant financial information to the court at the time of the trial and as a result there has been a miscarriage of justice
The husband has failed to disclose:
a.His interest in [W Pty Ltd] (see below);
b.Particulars of his financial relationship with [Ms YY] (and in particular the provision of substantial funds to her (see below);
c.The existence of unpaid invoices due by [W Pty Ltd] to the husband/[E Pty Ltd]/[Ms YY] (via [AQ Pty Ltd]) and held back pending the completion of the family law proceedings (see below)[49]
[49] Wife’s case outline filed 28 March 2024, p.7.
In closing the wife’s counsel submitted that the ground upon which the wife relied to support her application, namely the provisions of section 79A(1)(a), had been satisfied in that the husband had concealed matters in respect of which there had been a duty upon him to bring before the court at the time of the trial in 2016 and that had he done so there would have been a substantially different result, leading to a conclusion that a miscarriage of justice had occurred.
W Pty Ltd
It was submitted on behalf of the wife that the husband had not disclosed correspondence to him from W Pty Ltd dated 18 February 2013.
It was submitted that correspondence to him from Mr NN dated 7 August 2015[50] together with correspondence to him from Mr NN dated 1 March 2016[51] was not disclosed at or before the 2016 trial.
[50] Husband’s book of documents filed 25 March 2024, Item 35 p.166.
[51] Wife’s book of documents filed 28 March 2024, Item 14 p.119.
It was alleged that in withholding the information regarding his entitlement to a 20% interest in the equity of Q Trust at the time of trial the wife and the court were misled as to the value of the assets available for distribution between the parties.
It was further alleged that the husband was aware of the value of the enterprise as at April 2016 and in failing to disclose his 20% interest in Q Trust in circumstances where the wife was unaware of that interest, he failed to alert the wife or the court to the existence of that asset or its value.
The wife deposed in paragraph 91 of her trial affidavit filed on 28 February 2024 to the following:
·The letter offering the husband equity in Q Trust, a letter dated 18 February 2013 from W Pty Ltd to the husband was not disclosed by the husband prior to trial or at all and was provided to me by W Pty Ltd post-trial and judgment.
·That letter, as previously set out herein in paragraph 22 of these reasons is 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.
Kind regards
[Mr NN][52]
[52] Wife’s book of documents filed 28 March 2024, Item 7 p.51.
It was not disputed by the husband that he failed to disclose the letter. He told the court that upon receipt of a request for discovery specifically including that letter, contained in correspondence from the wife’s solicitors dated 2 December 2014, he searched for the letter where he expected to find it at the Suburb TT property but he was unable to locate the document in the house at that time or at any time thereafter.
It was the husband’s evidence that the wife had removed his copy of the letter from the Suburb TT property at a time she attended the Suburb TT property when he was not present some time after his receipt of same, such that at least by 1 December 2014, but more likely at a much earlier date she had a copy of the letter in her possession and had at some time provided a copy to her solicitor.
In Gorga v Gorga [2020] FCWA 51 Justice O’Brien, in discussing the legal principles relating to disclosure said at [29]:
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].
As discussed earlier herein in paragraph 51 to succeed in an application pursuant to the provisions of section 79A(1)(a) of the Act the court must be satisfied that there is evidence of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance before considering the question of whether such circumstances have occasioned a miscarriage of justice. The facts of this case are that neither party discovered the document prior to trial and neither party adduced any evidence before His Honour Justice Berman as to any interest the husband may have in the trust.
The duty of disclosure applies to both parties equally. It was not until the wife was being cross examined in these proceedings that she conceded she had a copy of the correspondence to the husband dated 18 February 2013 in her possession probably from late February/early March 2013 when she removed it from the Suburb TT property where she had been staying post separation in the absence of the husband and certainly by at the latest 1 December 2014. The trial before Justice Berman did not commence until 4 April 2016.
I find that the wife was aware, as a result of direct discussions with the husband from at least 2010 or 2011, he was in regular discussions with Mr LL concerning proposals from Mr LL that he join W Pty Ltd on the basis of being assigned an interest in Q Trust. I accept the husband’s evidence that the conversation had been open and frank, had occurred in front of both family members and friends in the Christmas period 2011/2012. She agreed that the husband had not been “backward” in telling her of offers being made to him in at least the two or three years prior to the parties’ separation in January 2013 and of his expectation of a share in the project.
I accept the husband’s evidence that in December 2012 the husband discussed with the wife the lengthy and detailed offer of employment contained in correspondence to him from Mr NN dated 28 December 2012, and that the parties were agreed as to their concern that the offer did not divulge the total number of shares the husband would receive in the company. The letter of 28 December 2012 stated, inter alia, that W Pty Ltd was “now in a position to place a formal offer before you”, and the letter of 18 February 2013 referred to its purpose being to confirm the intentions of W Pty Ltd in the terms set out therein.
I find that at the time the parties separated in January 2013 both parties had knowledge of the intention of W Pty Ltd to offer the husband employment together with a issue of units in Q Trust, that by March 2013 (three years prior to the 2016 trial) or at the very latest by 1 December 2014 (16 months prior to the 2016 trial) the wife was aware of the contents of the correspondence to the husband dated 18 February 2013 and, that at some time during the collaborative process undertaken by the parties in 2013, on the wife’s evidence, the husband told her he had commenced employment with W Pty Ltd.
I find the wife was further aware that at the time of trial in 2016 the husband was still employed by W Pty Ltd as that was disclosed on his financial statement. I find that in addition to neither party discovering the letter of 18 February 2013 to the other of them or the court prior to or during trial, neither party disclosed in their respective cases as presented to Berman J in April 2016 their knowledge of the husband’s potential interest in Q Trust.
During cross examination in these proceedings the wife was unable to explain why she had not deposed in her trial affidavit in the 2016 trial as to her knowledge of the contents of the letter of 18 February 2013 to the husband, and why she had not deposed to that fact in her affidavit in support of her application to set aside the order of Berman J of 15 July 2016. Likewise she was unable to give any satisfactory explanation as to why any, what she frequently referred to in her evidence in cross examination as “suspicions”, were not pursued by her or her legal representatives on her instructions in the period of two to three years prior to trial by way of questions to the husband or by way of obtaining information from W Pty Ltd and/or Q Trust through subpoena if not satisfied with responses from the husband or by requesting that a valuation of any interest he may have in Q Trust be obtained if she was not satisfied as to information obtained prior to trial.
I find that the contents of paragraph 91 of her affidavit filed in these proceedings on 28 February 2024 were patently untrue. True it was that the husband did not provide a copy of the letter of discovery to the wife’s solicitors when requested or to court at the time of trial or at any other time, nor did he adduce any evidence regarding that issue at trial in 2016 nor discover correspondence from Mr NN of August 2015 and 1 March 2016. In addition, he did not disclose correspondence from him to Mr LL of 19 August 2013, including the draft of the correspondence he prepared for Mr LL’s signature backdated to 4 May 2013, such that neither the wife nor the court were aware of that correspondence. Nevertheless, in circumstances where:
·The wife was the applicant;
·She was well aware of the history of discussions between the husband and W Pty Ltd regarding his employment with that company and the likely benefits that may flow therefrom;
·She had knowledge of the lengthy and detailed letter of offer to the husband of 28 December 2012; and
·She had knowledge of the contents of the correspondence to the husband from W Pty Ltd dated 18 February 2013
and knowledge in 2013 that he was working for W Pty Ltd, the wife chose not to pursue that issue at any level in preparation for trial notwithstanding being represented for almost all of the time between September 2013 and 28 March 2016 by experienced family law solicitors and on occasion counsel, receiving advice concerning issuing subpoena to W Pty Ltd and Q Trust, and her solicitor informing the husband’s solicitors as early as 5 May 2014 during negotiations that for that time only the wife was willing to include stated valuations in the pool of assets. That of course did not include any value for the husband’s interest in Q Trust.
I am not satisfied that the husband suppressed evidence by way of failure to disclose relevant information such as to provide the basis for the necessity for the court to consider whether a miscarriage of justice has occurred.
I find that the wife removed the copy of the correspondence from the manilla folder in which the husband had placed it at the Suburb TT property and that she did not disclose that fact to him prior to or during the trial. I accept the husband’s evidence that despite searching for the letter not only on or about 2 December 2014 but on other occasions he was unable to find the letter until some considerable later time after obtaining assistance from a data company.
I accept the husband’s evidence that the wife had no interest in the project, did not believe that it was likely to be a successful project that would lead to any financial benefit to the husband in the future, was focused on the issue of retention of the family property at trial and elected not to seek orders that the husband retain any interest in Q Trust. I find that had the wife chosen to discover the correspondence of 18 February 2013 prior to trial and adduce evidence as to the existence of that correspondence and her knowledge of the history behind the contents of that correspondence, those matters would have been before the court at least by the time of trial in 2016 and probably much sooner.
I am unable on the evidence to find that the wife was misled as to the husband’s interest or potential interest in Q Trust at the time of trial and accordingly was not mislead as to the value of any such interest. Nor do I find that the wife suffered any prejudice in circumstances where she conducted the trial on her own behalf in 2016, in circumstances where she had been represented up to a very short time prior to the commencement of trial, had received advice regarding the matters to which I have referred and elected not to pursue that advice.
It was the husband’s evidence in these proceedings that notwithstanding his belief when he took up employment with W Pty Ltd in 2013 that he should be entitled to the 20% share in Q Trust, as time progressed he became less and less confident in the intention on the part of his employers as expressed in the correspondence to him of 18 February 2013 ever coming to fruition. It was his position that notwithstanding being a director of W Pty Ltd he was privy to very limited financial information about the company notwithstanding requests for same and knowing that he had an entitlement to same, he had not been willing to pursue requests because of his knowledge of Mr LL’s aversion to involvement of any employees in family court proceedings, let alone his company becoming involved.
It was the husband’s position that he did not adduce any evidence at trial of any interest in Q Trust because at that time there had been no issue of units in the trust to him, he had no knowledge of the value of the enterprise as at April 2016, if any valuations did exist he had not been privy to them and that as a result of problems arising in relation to the project in early 2016 including with government authorities, and in the absence of any successful negotiations with possible investors Mr LL had become increasingly disillusioned such that by 9 April 2016 the husband was instructed by Mr LL to stop work on the Town J extension. It was his evidence that stage 1 of the project was completed in October 2016 but to his mind the project had no monetary value at that time. He said an application for land subdivision critical to later stages of the development was approved in November 2016.
It was the husband’s evidence that he was asked to resign as a director of W Pty Ltd in late 2016 and his services as a contractor to W Pty Ltd ceased in early 2017. It was his evidence that his concerns about the intention to issue units in the Q Trust to him expressed to him on 18 February 2013 coming to fruition were realised when Mr LL refused to honour the intention, such that ultimately the only option available to him was to take proceedings in the Federal Court. Ultimately he commenced those proceedings in 2020 and after paying significant costs from his own pocket secured litigation funding without which he would have been unable to pursue the claim. The matter concluded by agreement in 2023.
As I have said previously herein, I am satisfied that the husband’s concerns regarding the possibility of receiving the interest W Pty Ltd had told him they intended in their letter of offer were reasonable in all of the circumstances to which I have referred. I find that to pursue information from his employers as to the company finances at the time of trial in April 2016 may well have been prejudicial to his ongoing employment with the company. There was no such prejudice to the wife regarding proper and appropriate enquiries being made of the husband prior to trial and information being sought by way of subpoena to W Pty Ltd and/or Q Trust if the husband had refused to properly or adequately respond to any such enquiries.
Item 11 of the wife’s book of documents was a letter from Mr LL to Ms Curtain. I find that it was a letter that clearly illustrated the tenuous nature of the husband’s relationship with Mr LL and Ms QQ, the owners of W Pty Ltd. Mr LL stated, inter alia, in that correspondence:
…after his appointment, when I heard about your separation and the […] finance issue, I met with him and asked to please explain. He told me that the [finance issue] was just a misunderstanding and that he would never betray good friends like [Ms QQ] and I.
Regarding the separation with you, I advised him at the same time and many times later, that we would have never employed anyone who was going through a divorce, as we had done this once before with a senior guy, and we could not get him to focus for 18 months and finally we had to part company.
As for me, I was busy with overseas contracts, and reasonably comfortable that [Mr Curtain] was looking after [Town J] extension. I was unaware that he did not come into our employment and stayed as a contractor presumably to minimise paying you more money on the divorce settlement. He also requested us to deny the proposed share holding agreement if we were asked.
…only when we started to realise the depth and consistent pattern of his fraud and deception did we discover that you also may have been a victim of this behaviour. Perhaps his renumeration package including future shareholding had been well understated for his family court evidence?
The purpose of this letter is to firstly apologise to you for withholding information about the proposed shareholding, as we try not to get6 involved in family disputes. We are truly sorry about this after hearing the outcome of your case, now that we are in full knowledge of your ex-husband’s dishonesty and lack of integrity.
Secondly, we are agreeable to stand witness in any court to verify the above facts and hopes this assists in getting some justice for you and your children.[53]
[53] Wife’s book of documents filed on 28 March 2024, Item 11 p.102.
I find that information about any interest the husband may have had in 2016 in Q Trust was not peculiarly in his knowledge but rather the wife chose to conceal her knowledge of the matters to which I have referred, chose not to adduce any evidence regarding the matter at trial and indeed specifically sought an order that the husband retain any interest he may have in Q Trust. I am not satisfied that she took that position as a result of any misleading or adequate information on the part of the husband, notwithstanding he did not discover the letter.[54]
[54] Suiker & Suiker (1993) FLC 92-436.
It was also the wife’s evidence that the husband failed to provide any particulars to the court in the 2016 trial of his financial relationship with Ms YY and in particular the provision of funds to her. It was the husband’s evidence that the funds that he paid to Ms YY for work contracted to her to assist him with his work at W Pty Ltd were paid to her on invoice from her company from funds in E Pty Ltd. E Pty Ltd was a company found by Justice Berman in paragraph 10 of his judgment of 15 July 2016 to have been set up by husband in May 2013 as a new entity to operate the agricultural business, a company of which the husband was the sole director and shareholder. It was the husband’s evidence that he had contributed $25,000 to Ms YY at the time of her purchasing her unit nearby in early 2015 which funds had come from E Pty Ltd. When asked when that information was first disclosed to the wife he replied that he had disclosed all of his bank accounts to the wife prior to trial in 2016.
In cross examination the husband agreed that during 2014/2015 when he was Manager at W Pty Ltd, E Pty Ltd, one of his entities was providing money regularly to Ms YY. He said her consulting fee was $300 per day, that she sometimes worked one day and sometimes two days per week as she had other work and that sometime in 2015 she ceased being employed by him and was employed by W Pty Ltd direct. It was his evidence that he was not reimbursed by W Pty Ltd for that expenditure but ultimately the company employed her direct. The husband said in cross examination that he and Ms YY ceased their relationship in 2017.
In circumstances where I have referred to finding that for the most part I preferred the evidence of the husband over that of the wife in these proceedings, I am not satisfied, on the basis of the evidence of the wife contained in paragraphs 70 and 133 of her trial affidavit filed on 28 February 2024 or from cross examination of the husband that he either intentionally supressed or failed to disclose relevant information about that issue. Nor am I satisfied on the wife’s evidence that the matter was of such relevance that it was worthy of pursuit in terms of the likely additional expenditure in legal fees.
As to the question of existence of unpaid invoices due by W Pty Ltd to the husband/E Pty Ltd and held back pending the completion of the family law proceedings, I accept the evidence of the husband that he had not forwarded the invoice for the work done between 28 December 2015 and 6 May 2016 because of being aware that it was unlikely to be paid due to financial constraints effecting W Pty Ltd at that time. I further accept his evidence that the work was never paid notwithstanding funds being available for W Pty Ltd to pay that amount from the extension of the government grant received by them in 2016, and I note that the subsequent invoices referred to by the wife in paragraph 133 of her trial affidavit were issued between 19 June 2016 and 28 March 2017.
There was no evidence adduced by the wife as to the period of work covered by those invoices but I am satisfied they were not in existence nor had the work been done by the time of trial in 2016 and in those circumstances would not have constituted evidence that was either supressed or in respect of which the husband failed to disclose.
I also expressed concern as to whether the wife ever provided a copy of the letter to the husband from W Pty Ltd dated 18 February 2013 to her solicitors or counsel. I make no finding in that regard but note the wife was represented throughout almost the entirety of the litigation save as for the actual trial before Berman J in April 2016, by extremely experienced solicitors and counsel. Notwithstanding the numerous notes to which I have referred in these reasons there is no reference in any of them to the existence of or terms of that particular correspondence which in the circumstances of this case is unusual.
CONCLUSION
For those reasons I find that the wife has not satisfied the court that the husband either intentionally supressed or failed to disclose information regarding his potential interest in Q Trust in that the existence of the potential interest in that entity was known to the wife prior to separation, and the wife was aware of the detailed offer forwarded to the husband on 28 December 2012 which was in the terms of the letter of offer to him dated 18 February 2013. I further find that at the time of trial in April 2016 no interest in Q Trust had been assigned to him and he genuinely believed in the event that any such interest was ever assigned to him it had minimal or no value.
I note that the only evidence before this court in April 2024 as to the possible value of the husband’s interest as of April/May/June 2016, in light of the facts and circumstances at that time, was not discernible in that there was no discernible value in the proposed Town J commercial facility.[55]
[55] Valuation of Mr Curtain’s interest in the commercial facility at Town J dated 27 March 2024, paragraphs 5.102 & 5.103.
I find that the wife was not misled as to the circumstances of the husband’s interest in Q Trust at the time of trial.
I am not satisfied that the husband intentionally suppressed or failed to disclose information concerning payments made to Ms YY in 2014/2015 or that he supressed or failed to disclose relevant information concerning the revetment invoice issues on 6 May 2016. In the event that I am mistaken in that regard I find the remarks referred to earlier herein in paragraph 18 of these reasons from Barker’s Case namely:
…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…[56]
are opposite to this matter as regards both of those issues.
[56] Barker & Barker [2007] FamCA 13 at [123].
In closing I express my serious concern about the costs incurred by both parties in these proceedings.
I find the observation and finding of His Honor Justice Berman contained in paragraph 125 of his reasons delivered on 15 June 2016 apposite to the conduct of the wife during these proceedings namely:
…her conduct could only be described as recalcitrant and it was clear both by her actions but also exemplified by a level of bravado when giving evidence that she did not feel she should be criticised…
For those reasons I make the orders as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 4 June 2024
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