Dennison & Dennison

Case [2021] FCCA 2039

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dennison & Dennison [2021] FCCA 2039

File number(s): SYC 352 of 2020
Judgment of: JUDGE MORLEY
Date of judgment: 13 August 2021
Catchwords: FAMILY LAW – Interim spousal maintenance application – respondent husband’s material filed out of time – Court declines to consider respondent’s position – case of the applicant that she requires funds for her litigation – where complex matters of corporate law at play – where application fits well within what either party could conceivably receive on the making of final orders – where orders are made as sought by applicant – orders for sale of former matrimonial home with $50,000 to be paid to each party from the net sale proceeds
Legislation:

Family Law Act 1975 (Cth), ss 79, 80, 114, 117

Federal Circuit Court Rules 2001 (Cth), rr 24.03, 24.04

Practice Direction No. 2 of 2017 ‘Interim Family Law Proceedings’
Cases cited: Bevan v Bevan (2013) 279 FLR 1
Candlin & Candlin [2017] FCCA 2211
Forgeard v Shanahan (1994) 35 NSWLR 206
Harris & Harris (1993) 113 FLR 472
Marchant & Marchant (2012) FamCAFC 181
Melville & Melville (No. 3) [2020] FamCAFC 231
Ming & Dao [2020] FamCA 726
Newett & Newett [2020] FamCAFC 76
Salvage & Fosse [2020] FamCAFC 144
Stanford & Stanford (2012) 247 CLR 108
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166
Wenz & Archer [2008] FMCAfam 1119
Number of paragraphs: 99
Date of hearing: 4 August 2021
Place: Sydney
Solicitor for the Applicant: Annamaria Marano of Marano Family Lawyers
Counsel for the First Respondent: Mr Stapleton
Solicitor for the First Respondent: MCW Lawyers
Counsel for the Second Respondent: Mr Bernie
Solicitor for the Second Respondent: Bayside Solicitors
Solicitor for the Third Respondent: No appearance

ORDERS

SYC 352 of 2020
BETWEEN:

MS DENNISON

Applicant
AND:

MR DENNISON

First Respondent

MR C DENNISON

Second Respondent

COMPANY B

Third Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:

1.That by no later than 4:00PM on 27 August 2021 the Applicant and the First Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at C Road Suburb D New South Wales and more particularly described in Certificate of Title Folio Identifier … (‘the former matrimonial home’) by auction as follows:

(a)The former matrimonial home shall be listed with Estate Agent F of Suburb G New South Wales (‘the auctioneer’) for sale by auction within two months of the date of these orders;

(b)The reserve price of the former matrimonial home shall be such amount as is agreed between the Applicant and the First Respondent, and failing agreement being reached between them 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;

(c)The Applicant and the First Respondent shall give such instructions as are necessary to the solicitor for the Applicant to prepare a contract for sale of land and provide it to the auctioneer prior to…

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Dennison & Dennison [2021] FCCA 2039
Case
[2021] FCCA 2039
Decision Date

CaseChat Overview and Summary

The matter before the Court involved an application by Ms Dennison (the Applicant) against Mr Dennison (the First Respondent), Mr C Dennison (the Second Respondent), and Company B (the Third Respondent). The core of the dispute concerned the sale of the former matrimonial home located at C Road, Suburb D, New South Wales, and the distribution of sale proceeds. The Applicant also sought the recovery of specific personal items from the former matrimonial home and sought financial disclosure from the First Respondent.

The legal issues before the Court included whether to order the sale of the former matrimonial home by auction, the terms and conditions of such a sale, the distribution of the sale proceeds, and the Applicant's entitlement to recover specific personal property. Additionally, the Court was required to consider the First Respondent's disclosure obligations and the Applicant's application for costs of interim proceedings. The Court also addressed the process for appointing a single expert to value financial assets.

Justice Morley ordered the sale of the former matrimonial home by auction, specifying a timeframe for listing, the method for determining the reserve price, and the roles of the parties and their solicitors in preparing the contract for sale. The Court detailed the process for obtaining the Certificate of Title and outlined the parties' obligations to cooperate with the auctioneer, including allowing inspections and ensuring the property was presentable. Provisions were made for negotiation if the reserve price was not met at auction and for subsequent auctions if the property remained unsold. The order also stipulated the order of payments from the sale proceeds, including fees, adjustments, legal costs, a sum of $50,000 to each party, and the balance to be held by the Applicant's solicitors pending further orders. The Applicant was granted access to the former matrimonial home to collect specified personal items. The Court also set deadlines for financial disclosure and submissions regarding costs, and established a process for instructing a single expert for asset valuation.

The Court further ordered that if the First Respondent paid $50,000 to the Applicant and it was accepted before the exchange of contracts for the matrimonial home, then the orders for sale and distribution of proceeds would be suspended pending further order. The proceedings were adjourned for further mention and directions.

Orders

Orders of the court

SYC 352 of 2020

BETWEEN:

MS DENNISON

Applicant

AND:

MR DENNISON

First Respondent

MR C DENNISON

Second Respondent

COMPANY B

Third Respondent

ORDER MADE BY:

JUDGE MORLEY

DATE OF ORDER:

13 AUGUST 2021

THE COURT ORDERS THAT:

1. That by no later than 4:00PM on 27 August 2021 the Applicant and the First Respondent shall do all acts and things and sign all necessary documents to effect the sale of the property at C Road Suburb D New South Wales and more particularly described in Certificate of Title Folio Identifier … (‘the former matrimonial home’) by auction as follows:

(a) The former matrimonial home shall be listed with Estate Agent F of Suburb G New South Wales (‘the auctioneer’) for sale by auction within two months of the date of these orders;

(b) The reserve price of the former matrimonial home shall be such amount as is agreed between the Applicant and the First Respondent, and failing agreement being reached between them 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer;

(c) The Applicant and the First Respondent shall give such instructions as are necessary to the solicitor for the Applicant to prepare a contract for sale of land and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer and otherwise act on the sale;

(d) That within 14 days of orders the Applicant and or the First Respondent shall deliver to the Solicitor for the Applicant the Certificate of Title to the property;

(e) If the Certificate of Title to the property is held by someone other than the Applicant and or the First Respondent, then they will:

(i) Sign an irrevocable authorisation and direction (such document to be prepared by the solicitor acting on the sale of the property) to release the Certificate of Title to the said solicitor and deliver the authorisation document to the said solicitor no later than 21 days prior to the settlement date;

(ii) The said solicitor will use the authorisation and direction to obtain and hold the Certificate of Title (in escrow) pending the settlement of the sale of the property.

(f) The Applicant and the First Respondent shall do all acts and things and sign all documents necessary and co-operate in every way with the auctioneer in relation to the sale by auction including allowing inspection of the former matrimonial home at all times reasonably requested by the selling agent and ensuring that the former matrimonial home is clean, neat and in good order at the time of any inspection and on the day of auction.

(g) In the event of a dispute between the Applicant and the First Respondent as to a reserve price they shall accept the recommendation set by the auctioneer for the reserve price and they shall sign the Contract of Sale of Land to effect an exchange and sale of the former matrimonial home no less than 10 days prior to the auction.

(h) In the event the First Respondent refuses and/or neglects to sign any document including but not limited to an agency agreement and the Contract for Sale of Land for the sale of the property, the Registrar of the Federal Circuit Court of Australia and/or the Family Court of Australia at Sydney shall sign the said document in the name of the First Respondent pursuant to section 106A of the Family Law Act 1975 (Cth).

(i) The Applicant and the First Respondent shall attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.

(j) That in the event that the former matrimonial home is not sold at the auction pursuant to order 1 or within 14 days after the date of the auction by further negotiation, then the parties shall cause a further auction of the former matrimonial home to be held within three months after the date of the first auction, with the auction to be repeated at three monthly intervals until the property is sold and for that purpose the provisions of Order 1 and Order 2 shall apply.

2. On completion of the sale of the former matrimonial home, the following payments shall be made:

(a) In payment of real estate and auctioneer fees;

(b) In payment of conveyancing adjustments on completion of the sale of the former matrimonial home;

(c) In payment of legal fees and disbursements of the solicitors acting on the sale of the former matrimonial home;

(d) In payment of a sum of $50,000.00 to each of the Applicant and the First Respondent and said payment to be categorised by the trial judge at the final hearing of the proceedings;

(e) In payment of the balance of the sale proceeds to the solicitors for the Applicant for investment of the same in a controlled monies account in the name of the Applicant and the First Respondent and shall be released and paid pursuant to orders of the Court.

3. That within 14 days of the date of these orders, the First Respondent shall provide access to the former matrimonial home to the Applicant at times to be agreed between the parties through their solicitors so as to enable the Applicant to remove such of the following property as is contained in the former matrimonial home as at 13 August 2021:

(a) Photos and frames of the children of the Applicant and the First Respondent, and family photos belonging to the Wife;

(b) Iron;

(c) Fridge in garage;

(d) Kitchenware;

(e) Half share of the linen, towels, sheets, tablecloths;

(f) Half share platters, dinner sets, new and never used (blue);

(g) Dyson vacuum cleaner;

(h) Half share of pots, pans, frypan and cooking utensils;

(i) Hand mixer;

(j) Kosta Boda vase collection and all gifts from the children of the Applicant and the First Respondent to the Applicant;

(k) Large mirror in dining room;

(l) Sewing kit;

(m) Sony camera;

(n) All items that previously belonged to the Applicant’s late parents

(o) Half share of cook books.

4. On the occasion of the Applicant attending at the former matrimonial home for collection of her items or nominees attending on her behalf, the Applicant may attend accompanied by two (2) other persons or the Applicant may be represented in that attendance by a person nominated by her in correspondence between the parties’ solicitors, and on such occasion the First Respondent may at his option remain in attendance at the property but shall not interfere in any way with the collection or removal of the items referred to in these orders by or on behalf of the Applicant.

Financial Disclosure

5. By no later than 4:00PM on 27 August 2021, each of the Applicant and the First Respondent shall cause a letter to be forwarded to the solicitors for the other party specifying further financial disclosure required in relation to these proceedings, and by no later than 4:00PM on 10 September 2021 each of the parties shall provide the financial disclosure sought so far as it is within the party’s power, possession, or control.

Costs Application

6. By no later than 4:00PM on 27 August 2021, the Applicant is to file and serve any written submissions in relation to her application for costs of these interim proceedings.

7. By no later than 4:00PM on 10 September 2021, the First Respondent is to file and serve any written submissions in reply.

8. By no later than 4:00PM on 17 September 2021, the Applicant is to file and serve any written submissions in reply.

Valuation

9. By 4:00PM on 20 August 2021, the Third Respondent Mr C Dennison is to cause a draft letter of joint instructions addressed to the Single Court Expert Ms J be provided to each of the Applicant and the First Respondent setting out the usual material contained in a joint letter of instructions for valuation of financial assets and in addition, setting out competing contentions of the parties in relation to disputed matters affecting valuation.

10. By 4:00PM on 27 August 2021, each of the Applicant and the First Respondent are to serve upon the other parties (other than the Second Respondent Company B) any amendments to the draft letter of instructions as contended for by them.

11. By 4:00PM on 3 September 2021, the Applicant, the First Respondent, and the Third Respondent are to agree upon the final form of the joint letter of instructions to be provided to the Single Court Expert Ms J.

THE COURT NOTES THAT:

A. The joint letter of instructions, so far as the material required therein by the First Respondent is concerned, will include reference to MYOB original sources that he seeks to have presented to and considered by the Single Court Expert in relation to issues affecting valuation.

THE COURT FURTHER ORDERS THAT:

12. In the event that the First Respondent tenders payment to the Applicant in the sum of $50,000.00 and same is accepted by the Applicant at any time prior to exchange of contracts for the former matrimonial property, orders 1 and 2 made today are thereupon suspended pending further order.

13. The proceedings are listed for further mention and directions at 10:00AM on 29 November 2021.

THE COURT NOTES THAT:

B. On 29 November 2021, the Court will consider the appropriate future dealing with the Amended Response to Application in a Case filed on 4 August 2021.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In Harris & Harris (1993) 113 FLR 472, the Full Court cautioned, prior to the days of Strahan & Strahan:As a generality, the interests of the parties and the Court are better served by there being one final hearing of section 79 proceedings.[2][2] Harris & Harris (1993) 113 FLR 472, 479.EVIDENCE I will go briefly to the evidence of the parties in the matter, and it is not a great deal to go on, to use a bit of a colloquial expression in starting. In relation to the evidence presented by the wife contained in her affidavit of 21 November 2020, she deposes that the matrimonial home, or the Suburb D property, as I will refer to it, has been occupied by the husband since the parties separated on 17 or 18 December 2019, depending on which party’s evidence ultimately prevails (the husband says 18 December 2019, and the wife says 17 December 2019). Nothing turns on that, of course. The wife notes that the husband does not pay an occupation fee for living in the marital home. Then again, if the Court was considering making orders in relation to the husband paying an occupation fee, the Court would move to consider the principles in relation to co-ownership that were expounded by Meagher JA in the Court of Appeal in Forgeard v Shanahan (1994) 35 NSWLR 206. It is also reported in the old de facto relationship cases with CCH. The wife deposes that she has been living in rental accommodation since 2 October 2020. She notes that the husband cancelled the home insurance on the Suburb D without her knowledge and consent, and that she then took steps to ensure that the property was insured so as to safeguard the parties’ joint interest in the value of that property. The wife gives some evidence to the effect that she has observed the Suburb D to be in an unkempt and unmaintained state. Going on to the Strahan issue, the wife indicates she has, to the date of this affidavit in November 2020, paid $44,000 in legal fees in relation to this matter, and that at that time she was “running out of funds to pay for legal fees”. She deposes that she seeks the interim distribution of $50,000 from any proceeds of sale of the Suburb D to pay legal fees and living expenses. She then goes on to give some evidence in relation to her sources of income and expenses that evidence being updated in her later affidavit. She says that in November 2006 she suffered a work injury that led to workers’ compensation payments for about 10 years, and which, she deposes, limits the kind of work in which she can engage. She has been engaged in casual retail shop work. She says that she lost the employment that she had in September 2020 because of the SARS-CoV-2/COVID-19 pandemic. As at 19 November, she had $25,000 in an Bank E account and $600 in an Bank E(2) account. In paragraphs 15 and 16 she gives some evidence in support of her application that she be able to recover possession of certain items of personalty contained in the Suburb D, and she lists those items. She gives some evidence in relation to attempts having been made to negotiate that with the husband being unfruitful.

Decision

Reasons for decision

I also take into account what fell from the Full Court of the Family Court of Australia in Salvage & Fosse [2020] FamCAFC 144, and in that matter in particular from the joint judgment of Ryan and Aldridge JJ at paragraphs 15 and 16, 24 and 25, and 29, and the judgment of Watts J at paragraphs 56 to 71 and 130 to 131, which I reproduce herein:[15] It would not be just, for example, for the respondent to have to pay the legal expenses of the applicant, where the case to be taken was weak, fanciful or misguided or where the effect on the respondent of such an order would work an injustice. We do not consider it helpful, however, for there to be a need to identify the applicant’s case as strong, persuasive or such like to justify an order. That invites a descent into semantics and an artificial characterisation of the strength of the proposed proceedings. The consideration should be whether the case to be raised by the applicant is sufficient, in all of the circumstances, as to its nature and prospects, to justify an interim order for costs. This conclusion accords with Zschokke at 83,217, where the Full Court said:… We agree that, as was submitted by [c]ounsel for the wife, the requirement of justice (which was expressly drawn to attention by the Full Court in Hogan and also implied by Brennan J in Breen) must remain a “basic” condition in the making of an order of the type in question under s 117(2).(See also Strahan at [124]).[16] In this matter, the respondent faced the task of persuading not only the primary judge that she had a claim to set aside the Cohabitation Agreement of sufficient merit to justify an interim costs order but also that her subsequent property application was of sufficient merit and value to justify that course. There would be no point in providing funding to pursue a case to set aside the Cohabitation Agreement, unless the Court was satisfied that the respondent would be likely to receive a property settlement of such value as to justify that course.…[24] It was not suggested to his Honour that an evaluation should be undertaken of: the quality and nature of the claim to set aside the Cohabitation Agreement; the likely result that would ensue if a subsequent property division was undertaken; and the likely costs of such a course. No authority directly suggests such a course. We consider, however, that such a consideration is essential in a case such as the present.[25] How else can it be determined that an interim costs order is justified in all of the circumstances? In other words, what is missing is an assessment of the nature and quality of any property claim – what is the likely division that would follow, and are such proceedings justified by the nature and quality of the claim to set aside the Cohabitation Agreement and the likely costs involved?…[29] It follows that the Court did not undertake a necessary consideration. Whilst the grounds of appeal are not well drawn, Grounds 3 and 4 do raise this.…[56] When making an order for litigation expenses, it is important to identify the source of power because that will determine the relevant considerations for making the order (see Zschokke and Zschokke (1996) FLC 92-693 (“Zschokke”); Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 (“Paris King Investments”) and Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466 (“Strahan”) at [221]).[57] The four possible powers referred to by relevant authorities for the making of an order for interim provision of litigation expenses are the powers to make orders as to: property (s 90SM and s 90SS(1)(h) and (k)), costs (s 117(2)), maintenance (s 90SE) and injunctions (s 114(2A)(c)).[58] In a financial case involving de facto spouses, an order for litigation expenses will most usually be made relying upon the property power. If unavailable, for example because of the need to determine jurisdictional facts, the next most obvious source of power is s 117(2) of the Act (see Breen v Breen (1990) 65 ALJR 195) (“Breen”); Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at [2], [10], [60]–[62]; Zschokke and Strahan).[59] Section 117(2) is available “in proceedings under this Act”. In this case, the respondent has commenced proceedings under s 90UM of the Act to set aside the Cohabitation Agreement. This section provides jurisdiction to, in effect, decide whether s 90SA(1) excludes the respondent from making an application under s 90SM. The availability of this Court to determine jurisdiction attracts the provisions of s 117(2).[60] Section 117(1) expresses the general rule that a party to proceedings under the Act shall bear his or her own costs. However, the High Court in Penfold v Penfold (1980) 144 CLR 311 (“Penfold”), said at 315:It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs…[61] The requirement of justice must remain a basic condition in the making of an order of the type in question under s 117(2) (see Strahan at [124] quoting Zschokke). That should be understood to mean justice when balancing competing considerations in favour of or against each of the parties.[62] When considering whether it is just to make an interim order for the provision of litigation expenses pursuant to s 117(2), the court shall have regard to the matters set out in s 117(2A) of the Act. In Zschokke (at 83,217) the Full Court said:If the order is to be made under s 117(2) then, in our view, the matters contained in s 117(2A) must be addressed, and this would seem to have been recognised, if not expressly at least by implication, by the Full Court in Poletti. In saying this we acknowledge that a number of the paragraphs in the sub-section (notably paragraphs (d) failure by one party to comply with court orders; (e) total lack of success by one party in the proceedings; and (f) existence and terms of an offer for settlement) may not have relevance in an application for an order of the type in question. We also acknowledge that it may well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the sub-section, as is permitted by paragraph (g)…[63] In relation to s 117(2A)(a), apart from the general financial circumstances of each of the parties to the proceedings, the Full Court in Zschokke identified the following particular considerations:•a position of relative financial strength on the part of the respondent;•a capacity on the part of the respondent to meet his or her own litigation costs; and•an ability on the part of the applicant to meet his or her litigation costs.[64] As to such other relevant matters, under s 117(2A)(g), the plurality in Strahan at [96] and [141] specifically adopted the following considerations referred to in Paris King Investments at [30]:•the applicant should have “at least an arguable case for substantive relief which deserves to be heard”;•there should be evidence of the applicant’s “likely costs of litigation” (see also Wilson and Wilson (1989) FLC 92-033 at 77,453); and•it is not “an essential pre-condition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.[65] In respect of the first of the considerations referred to in the preceding paragraph, that the applicant should have at least an arguable case for substantive relief which deserves to be heard, the trial before the primary judge and the submissions before this Court proceeded on the basis that the statement made by the Full Court in Strahan at [141] was correct. The primary judge was asked to make an assessment as to whether or not the respondent had at least an arguable case for substantive relief which deserved to be heard. The test adopted in Strahan was formulated by Brereton J in Paris King Investments at [30]. It was an objective test. Brereton J had apparently drawn upon an earlier statement made by Moss J in Chester v Chester (1995) FLC 92-612 (“Chester”), which was in different terms. Moss J said, “[i]t is desirable that the [a]pplicant should provide evidence of having been advised by the [a]pplicant’s solicitor that the [a]pplicant has a good case on the merits” (at [27]). This was a subjective test and in this case, as discussed below, the respondent’s solicitor made such a submission. The test proposed by Brereton J and adopted by the plurality in Strahan went beyond the mere advice of the lawyer for the applicant for the litigation funding order. The test is “at least an arguable case”. The hearing of an application for a litigation funding order is not an occasion to run a rehearsal of the substantive application on tested evidence. As Kirby J said, in the context of a summary dismissal application, in Lindon v Commonwealth (No 2) (1996) 136 ALR 251 at 256, “[e]xperience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment”. Departure from an earlier decision of the Full Court should be done “cautiously and only when compelled to the conclusion that the earlier decision is wrong” (Nguyen v Nguyen (1990) 169 CLR 245 at 268-270). It was not argued before us that the Full Court in Strahan was wrong. Absent argument, I am not compelled or prepared to say that the Full Court had set an inappropriate test.[66] The plurality in Strahan at [96] also made reference to further considerations articulated in Paris King Investments at [31]. The first was that an order may “make a provision for litigation expenses at a rate that appears reasonable in all the circumstances”. In Kendling v Kendling (2008) 39 Fam LR 404 at [48], the Full Court, referring to a statement by Nygh J at first instance in Poletti & Poletti (1990) 15 Fam LR 794 (“Poletti”), said that it was not necessary to require an “itemised bills of cost” or that the costs “be at scale” or that a taxation assessment under the Family Law Rules 2004 (Cth) is required. The second was that “an order can be made in respect of costs already incurred as well as of future costs”. In Chester, Moss J at [26] notes that general principles expressed in earlier cases under the Matrimonial Causes Act 1959 (Cth), included recognition that the object of an interim costs order “is to provide the [a]pplicant with a means to continue the conduct of the litigation not to reimburse the [a]pplicant for moneys already expended on or towards her costs”. In Paris King Investments, Brereton J at [31] expressed the view that an order can be made in relation to costs already incurred but the exercise of distinction between costs already incurred and those to be incurred may be relevant to the discretion to make an order, and its quantum.[67] Cases involving a dispute on the facts as to jurisdiction, may raise the question as to whether or not an order for litigation expenses is recoverable if the party against whom the order is made is ultimately successful in opposing the application for substantive relief. In the context of an interim property case, the Court in Strahan at [99] endorsed the statement in Harris and Harris (1993) FLC 92-378 (“Harris”) at 79,930:… [T]he Judge must be satisfied that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or that the order which is contemplated is capable of being reversed or adjusted if it is subsequently considered necessary to do so.[68] However, in relation to an order for litigation expenses, the Full Court in Zschokke at 83,221 said:However, while the conclusion in relation to the uncertainty of the amount of the [applicant’s] eventual property settlement award may be fatal to an application under s 80(1)(h), it is not necessarily so to an application under s 117(2). It is just one of the matters to be balanced in the exercise of the discretion under the latter sub-section.[69] As Kent J said in Rakete v Rakete (2012) 48 Fam LR 325 (“Rakete”) at [55]:… [T]he capacity to repay, whilst a relevant consideration, cannot be elevated to the status of an essential pre‑condition to the making of an Order in cases involving s 90K [or s 90UM]…[70] The High Court in Breen said at 195–195 that an order for the interim provision of litigation expenses “should be so framed as to protect the parties from any risk of injustice arising from the manner in which the funds are expended”. There is no question that his Honour fulfilled that requirement in this case by attaching to the litigation funding order, the provision “which monies are only to be used to meet the [respondent’s] legal costs in these proceedings”. If a party pays to the other party monies for litigation funding, that party at least should obtain the advantage of moving the litigation towards finality.[71] The Full Courts in both Harris and Strahan make comments to the effect that there should be as few interim applications for orders for litigation expenses as possible.…Conclusion about the primary judge’s exercise of discretion[130] An appellate court will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment and intuition involved. This court does not have the authority to disturb a decision simply because, faced with the same material, it might have reached a different conclusion to that under appeal. The claim that the exercise of the primary judge’s discretion miscarried when making the litigation funding order, fails.Conclusion about the appeal and leave to appeal against the litigation funding order[131] Given that none of the grounds of appeal which challenge the order for litigation expenses succeed, the appeal against the order would fail if leave were granted. The decision of the primary judge is not attended by sufficient doubt to warrant it being reconsidered by this court and the first limb of Medlow & Medlow (2016) FLC 93-692 at [57] is not satisfied. Accordingly, the appellant’s application for leave to appeal the litigation funding order should be dismissed.

Ratio Decidendi

Legal Principle Established

The relevant part for the evidence is the bar graph indicates that in December 2019 there was a sum of about $300,000 in that account, whereas in January 2020 there was a sum of $100,000 remaining in the account. Accordingly, in the period from the end of December 2019 to the end of January 2020, a sum of $200,000 had gone from the account.CONSIDERATION Now, the first issue raised in the matter is the application of the wife that the Suburb D be sold. That, of course, is an order available to the Court on the interim basis on various heads, either by way of an order in pursuance of a property distribution, which is what is put here, or even an order under section 114 of the Act by way of a mandatory injunction requiring the parties to take certain steps in relation to their property, often used in the cause of preserving assets in circumstances where the Court is satisfied equity is being eroded and that it should be addressed in the interests of justice. It is not the basis put before the Court on the evidence in this matter. I have the financial statement of the wife and the financial statement of the husband, as I have referred to, and they reveal that, as at the relevant dates of those financial statements, both of which go back quite some way now – the husband’s to March of 2020 and the wife’s to January of 2020 – nevertheless, at that time the husband was opining that the Suburb D had a value of $940,000, and the wife opining it had a value of $1 million, and it being mutual between them that it was unencumbered, that there is not security by way of registered mortgage for any loan account. The thrust of the case put forward by the wife was that she needs funds for the payment of legal fees in this matter so that she can maintain legal representation in what is, on the telling of any of the parties, a complex matter, or a matter with its complexities, and, secondly, to provide some funds to her for payment of living expenses. She asserts that the only source for those funds in an immediate sense is by way of sale of the Suburb D. The thrust of her case in relation to the personalty she seeks to recover is that she needs that to set herself up in her rental accommodation with the ordinary necessities of life, that they are available, and that that would save her having to expend money, which she does not, she says, really have on replacing those items. In relation to disclosure, she says that she has not received full and frank financial disclosure as required by the Act and the Rules from the husband, and that the husband needs to be compelled by the Court. The thrust of the husband’s case is that the wife had a significant sum of money about six months prior to separation, half a million dollars, at about the time of the separation something in the order of $300,000, and that the wife has given no evidence or explanation, certainly not in her evidence before the Court on the interim hearing, as to what has happened to those funds.