Dias & Dias (No 2)
[2023] FedCFamC1F 908
•25 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dias & Dias (No 2) [2023] FedCFamC1F 908
File number(s): CAC 261 of 2023 Judgment of: GILL J Date of judgment: 25 October 2023 Catchwords: FAMILY LAW – PROPERTY – Where an adult child of the parties is joined as a second respondent – Where a number of investment properties are in the joint name of the husband, wife and second respondent – Where the three parties have pooled their resources – Where it appears that the second respondent’s claim is in the form of a remedial constructive trust – Where this is based on asserted contributions to household and management tasks – Where the respondents assert an 80-20 split of interests between them in favour of the respondent for five of the investment properties with the respondent to receive $1 for each – Where the respondents’ claim as to the interests of the parties is outrageous – No equitable interest beyond legal interest established – Where the respondents have withdrawn large amounts of money from a joint account without any credible explanation – Significant non-disclosure by the respondents – Adjustment of property interests between the husband and wife to be just and equitable – Adjustment not warranted on contributions – Adjustment warranted pursuant to s 75(2).
FAMILY LAW – PRACTICE AND PROCEDURE – The rule in Browne v Dunn – Where the applicant is released from the obligation to put contentious matters to the respondent as a result of persistent non-responsive answers – Cost Orders – Conduct of the proceedings - Where the first and second respondent repeatedly failed to make financial disclosures – Where the first and second respondents unsuccessfully pursued unwarranted ancillary relief - Costs awarded on party/party and indemnity basis.Legislation: Family Law Act 1975 (Cth)– ss 75(2), 79(4) & 117(2A)(a)
Evidence Act 1995 (ACT) - s 50
Supreme Court Act 1933 (ACT)
Cases cited: Baumgartner v Baumgartner (1987) 164 CLR137 at 149
Bevan v Bevan (2013) 49 FamLR 387
Browne v Dunn (1893) 6 R 67
Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248
Dickons & Dickons [2012] FamCAFC 154
I & I (1995) FLC 92-625 at 82,277
In the Marriage of Aleksovski (1996) FLC 92-705 at 83,437
Kohan & Kohan (1993) FLC 92-340
Munday v Bowman (1997) 22 FamLR 321
Quickley & Pelissier [2016] FamCAFC 124
Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance Number of paragraphs: 220 Date of hearing: 9-13 October 2023 Place: Canberra Counsel for the Applicant: Ms Haughton Solicitor for the Applicant: Elringtons Lawyers Solicitor for the First Respondent: Litigant in Person Solicitor for the Second Respondent: Litigant in Person
Table of Corrections 26 October 2023 In paragraphs 3 and 29 the reference to[BB Street] have been corrected. ORDERS
CAC 261 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DIAS
Applicant
AND: MS DIAS
First Respondent
MR B DIAS
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 OCTOBER 2023
THE COURT ORDERS THAT:
1.All previous orders are discharged.
2.The following applications identified in the minutes of orders sought by the wife are dismissed:
(a)Re 1 - that the court declare that Mr Dias has a cognitive impairment from 29 April 2020.
(b)Re 2 – that any ‘Power of Attorney’, enduring or otherwise, of Mr Dias dated on or after 29 April 2020 be revoked effective at the time they were signed.
(c)Re 3 – that the ‘Enduring Power of Attorney’ of Mr Dias dated 8 September 2012 be valid and effective.
(d)Re 4 - that Land Titles instrument number … lodged at … on 12 January 2023 be revoked at the time they were lodged.
(e)Re 5 - that Land Titles instrument number … lodged at … on 12 January 2023 be revoked at the time they were lodged.
(f)Re 19 - that any costs agreements or provision of any costs agreement entered into between Mr Dias and S Lawyers of Suburb T be set aside under section 288 of the Legal Profession Act.
(g)Re 20 - that any costs agreements or provision of any costs agreement entered into between Mr Dias and U Lawyers of City E be set aside under section 288 of the Legal Profession Act.
(h)Re 21 - that any costs agreements or provision of any costs agreement entered into between Mr Dias and Elringtons Lawyers of Suburb V be set aside under section 288 of the Legal Profession Act.
(i)Re 22 - that any costs agreements or provision of any costs agreement entered into between Mr Dias and any legal professional be set aside under section 288 of the Legal Profession Act.
(j)Re 23 - that Order 9 of the Orders dated 17 March 2023 which states “The Applicant Husband’s costs be reserved.” be discharged.
(k)Re 24 - that Cost Notices of the applicant (if any) be dismissed.
(l)Re 25 - that the applicant, Mr Dias be liable for all costs, including but not limited to taxation of costs, indemnity costs, court proceeding costs and legal representation.
(m)Re 29 - within 2 banking days of the date of these Orders, the applicant, Mr Dias do all things necessary to transfer the reasonable amount of interest accrued (calculated at the Government Land Tax interest rate of 11.06% p.a. compounded monthly) of $12,105.38 as at 25 September 2023 on the funds transferred into Elringtons Lawyers’ Trust Account pursuant to Orders 2 and 7 of the Orders dated 17 March 2023 into the joint account of the First Respondent, Ms Dias and Second Respondent, Mr B Dias, BSB number …, Account number …00, pursuant to sections 80 and 106B of the Family Law Act 1975.
(n)Re 35 - that Mr Dias pay the reasonable cost of compensation (for his acts which lack grounds, harass and malice, disregard court orders and processes and abuse of the discovery process) to Ms Dias.
(o)Re 36 - that Mr Dias be declared a vexatious litigant under section 67A of the Supreme Court Act 1933.
(p)Re 40 - that the First Respondent, Ms Dias be granted permission to provide the Law Society material in relation to the subpoena filed on 19 June 2023, including but not limited to the document returned by National Australia Bank Ltd (the “NAB”).
(q)Re 41 - that the First Respondent, Ms Dias be granted permission to provide the Law Society material in relation to the subpoena filed on 18 July 2023, including but not limited to the document returned by National Australia Bank Ltd (the “NAB”).
(r)Re 42 - that compensation for damages be awarded to the First Respondent, Ms Dias.
3.The following applications identified in the minutes of orders sought by the second respondent are dismissed:
(a)Re 1 - that the court declare that Mr Dias has a cognitive impairment from 29 April 2020 is withdrawn and dismissed.
(b)Re 2 – that any ‘Power of Attorney’, enduring or otherwise, of Mr Dias dated on or after 29 April 2020 be revoked effective at the time they were signed.
(c)Re 3 - that the ‘Enduring Power of Attorney’ of Mr Dias dated 8 September 2012 be valid and effective.
(d)Re 4 - that Land Titles instrument number … lodged at 10:50:13 on 12 January 2023 be revoked at the time they were lodged.
(e)Re 19 - that any costs agreements or provision of any costs agreement entered into between Mr Dias and S Lawyers of Suburb T be set aside under section 288 of the Legal Profession Act.
(f)Re 20 - that any costs agreements or provision of any costs agreement entered into between Mr Dias and U Lawyers of City E be set aside under section 288 of the Legal Profession Act.
(g)Re 21 - that any costs agreements or provision of any costs agreement entered into between Mr Dias and Elringtons Lawyers of Suburb V be set aside under section 288 of the Legal Profession Act.
(h)Re 22 - that any costs agreements or provision of any costs agreement entered into between Mr Dias and any legal professional be set aside under section 288 of the Legal Profession Act.
(i)Re 23 - that Order 9 of the Orders dated 17 March 2023 which states “The Applicant Husband’s costs be reserved.” be discharged.
(j)Re 24 - that Cost Notices of the Applicant (if any) be dismissed.
(k)Re 25 - that all costs in contravention proceeding be against Mr Dias.
(l)Re 26 - that the Applicant, Mr Dias be liable for all costs, including but not limited to taxation of costs, indemnity costs, court proceeding costs and legal representation.
(m)Re 30 - within 2 banking days of the date of these Orders, the Applicant, Mr Dias do all things necessary to transfer the reasonable amount of interest accrued (Land Tax Assessment from the Government with interest rate of 11.06% p.a. compounded monthly) of $12,105.38 as at 25 September 2023 on the funds transferred into Elringtons Lawyers’ Trust Account pursuant to Orders 2 and 7 of the Orders dated 17 March 2023 into the joint account of the First Respondent, Ms Dias and Second Respondent, Mr B Dias (BSB number …, Account number …00) pursuant to sections 80 and 106B of the Family Law Act 1975.
(n)Re 36 - that due to Mr Dias’s lack of grounds, harassment and malice, disregard for court orders and processes and abuse of the discovery process he pay the reasonable cost of compensation to Mr B Dias.
(o)Re 37 - that Mr Dias be declared a vexatious litigant under section 67A of the Supreme Court Act 1933.
(p)Re 41 - that the Second Respondent, Mr B Dias be granted permission to provide the Law Society material in relation to the subpoena filed on 19 June 2023, including but not limited to the document returned by National Australia Bank Ltd (the “NAB”).
(q)Re 42 - that the Second Respondent, Mr B Dias be granted permission to provide the Law Society material in relation to the subpoena filed on 18 July 2023, including but not limited to the document returned by National Australia Bank Ltd (the “NAB”).
(r)Re 43 - that compensation for damages be awarded to the Second Respondent, Mr B Dias.
ORDERS FOR THE SALE OF PROPERTY
4.Mr C, chartered accountant, registered trustee in bankruptcy, registered liquidator and partner principal of the firm D Accountants in City E is appointed as trustee, with power of sale to the extent that sale has not already been effected and completed, of the real property situated at and known as:
(a)F Street, Suburb G;
(b)H Street, Suburb J.
(c)K Street, Suburb G; and
(d)L Street, Suburb G (“the sales”).
5.The conveyancing solicitor is Mr M of N Lawyers of Suburb O (“the conveyancing solicitor”).
6.The trustee is at liberty to continue the appointment of Ms P of Q Company in Suburb R (“the listing agent”).
7.The trustee shall keep the parties updated and informed in writing in relation to the sales.
8.The first and second respondents be and are hereby restrained from communicating with the trustee and/or the listing agent other than when the trustee is complying with his obligations pursuant to the above order.
9.The husband through his legal representatives is at liberty to communicate with the trustee and the listing agent and it is noted that nothing in these orders prevents the husband through his legal representatives from requesting and being provided copies of all documents referring to or relating to the sales from the listing agent and/or the conveyancing solicitor.
10.All parties be and are hereby restrained by injunction from any act or thing which reduces or may reduce the value of the properties referred to in order 4 these orders.
11.Upon settlement of the sales the sale proceeds shall be paid in the following manner and priority:
(a)payment of the agent’s commission and advertising or other expenses (if any) including but not limited to payment of any council and water rates and maintenance levies outstanding in respect of the properties and other outgoings payable on sale;
(b)payment of the legal costs and outlays relating to the sale;
(c)payment of any expenses to be reimbursed to the auctioneer (if any);
(d)payment of the trustee’s reasonable remuneration and disbursements (if any); and
(e)the balance to be held in the trust account of the conveyancing solicitor pending payment in accordance with the orders below.
The proceeds of sale
12.Following the payment of the items referred to at paragraphs 11, the proceeds of the trust account of N Lawyers of Suburb O in relation to the sales of the properties of the parties shall be paid in the following manner:
(a)In relation to the sale proceeds of X Street, Suburb G, (being in the sum of $668,108):
(i)First to the husband one third of those proceeds, plus the amount of $65,995 to the husband in accordance with written direction from his solicitors;
(ii)Then of the remaining balance one half to the second respondent;
(iii)Then the remaining balance to the wife in accordance with her written direction but subject to order 13 below.
(b)In relation to the sale proceeds of F Street, Suburb G one third to the husband in accordance with written direction from his solicitors; one third to the wife in accordance with her written direction but subject to order 13 below; one third to the second respondent in accordance with his written direction.
(c)In relation to the sale proceeds of H Street, Suburb J one third to the husband in accordance with written direction from his solicitors; one third to the wife in accordance with her written direction but subject to order 13 below; one third to the second respondent in accordance with his written direction.
(d)In relation to the sale proceeds of K Street, Suburb G one third to the husband in accordance with written direction from his solicitors; one third to the wife in accordance with her written direction but subject to order 13 below; one third to the second respondent in accordance with his written direction.
(e)In relation to the sale proceeds of L Street, Suburb G one third to the husband in accordance with written direction from his solicitors; one third to the wife in accordance with her written direction but subject to order 13 below; one third to the second respondent in accordance with his written direction.
(f)In relation to the sale proceeds of Y Street, Suburb Z (in the sum of $446,486.68) one quarter to the husband in accordance with written direction from his solicitors; one quarter to the wife in accordance with her written direction but subject to order 13 below; one half to the second respondent in accordance with his written direction.
13.Prior to the wife receiving any proceeds from the sales of the properties in orders 12(a)‑(f) a payment from the wife’s share in the sum of $280,300 shall be paid to the husband in accordance with written direction from his solicitors.
14.The husband is immediately entitled to the monies referred to in the above order from monies held in trust for the wife by the conveyancing solicitor regardless of whether the wife has given her authorisation.
15.Upon the payment to the husband referred to in order 13 being made the wife shall thereafter be entitled to receive the proceeds of her share of the sales of the properties set out at order 12.
16.Forthwith upon the payment to the husband in accordance with order 13, the husband shall transfer to the wife his interest in BB Street, Suburb CC, Region W.
17.The husband is entitled to the monies held in trust by his solicitors.
The Country DD account
18.The parties shall forthwith do all things necessary to authorise the release to the wife the funds held in their joint names in an account at the FF Bank, Country DD.
19.In aid of the above order the wife and second respondent shall cause to be sent to the husband all documents necessary for him to execute to give effect to the above order.
The City EE property
20.The parties shall forthwith do all things necessary to transfer to the wife the husband’s interest in the property described in title deed number …, as GG Street …, (“the City EE property”) currently owned one third each by the parties.
21.In aid of the above order the wife and second respondent shall cause to be sent to the husband all documents necessary for him to execute to give effect to the above order.
22.Nothing in orders 18-21 shall be taken to require the husband to travel to Country DD to give effect to the orders.
The collection
23.The husband is entitled to and is the owner of the collection in his possession.
COSTS
24.The wife and second respondent are jointly and severally liable to pay the husband’s costs of these proceedings as agreed or as assessed:
(a)On a party – party basis from the commencement of the proceedings until 12 September 2023;
(b)On an indemnity basis thereafter.
MISCELLANEOUS
25.I direct that a copy of this judgment be transmitted to the Supreme Court for the purpose of the currently stayed proceedings between the parties that are before that Court.
CONTRAVENTIONS
26.The Contravention Applications filed on 8 August 2023, 28 August 2023 and 1 September 2023 are referred to the National Assessment Team for listing.
27.The listing of the contraventions are to be for a full day of hearing before a different judicial officer.
THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 26 October 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 26 October 2023
GILL J
INTRODUCTION
The applicant husband is Mr Dias, born in 1950. The respondent wife is Ms Dias, born in 1953. Both the husband and wife were born in Country DD. The second respondent, the adult son of the husband and wife, is Mr B Dias, born in 1978. The husband and wife married in 1973, and separated in either 2021 or 2022.
ORDERS SOUGHT
The precise orders sought by the parties are set out in a schedule at the end of this judgment. That schedule sets out the minutes each commenced the trial relying upon. It also sets out the balance sheets relied upon by the respondents, as each relied upon the balance sheets as setting out the division of property rather than what was set out in their minutes.
The orders were primarily, although not solely, directed to the husband’s and wife’s former matrimonial home at BB Street, Suburb CC (“the former matrimonial home”), and to investment properties whose title was held by the three parties as follows:
(1)X Street, Suburb G (“the X Street property”);
(2)F Street, Suburb G (“the F Street property”);
(3)H Street, Suburb J (“the H Street property”);
(4)K Street, Suburb G (“the K Street property”);
(5)L Street, Suburb G (“the L Street property”); and
(6)Y Street, Suburb Z (“the Y Street property”) (collectively “the investment properties”).
By the time of the trial a number of those properties had been sold, with the balance on the market, save for the former matrimonial home.
Property is also claimed to be held in Country DD, constituting real property held jointly by the three parties and a joint bank account, alleged to hold $40,000.
Also contentious is a collection of different collectibles, of disputed value, held by the husband.
In high level summary, the husband sought a distribution of property, generally reflecting the current legal interests in the property. This would result in each party receiving a one third interest in the proceeds of the sales of the bulk of their rental properties, save as to one that would have the second respondent receive 50 per cent, the husband and wife 25 per cent each. The wife would receive the former matrimonial home, with a cash adjustment in the husband’s favour, discounted to reflect earlier distribution to him and the receipt of a collection. The wife would receive the Country DD property. The husband would receive a further cash adjustment by reason of monies retained from the rent of their properties.
The wife and second respondent sought orders for the wife to receive the former matrimonial home, the second respondent to receive 100 per cent of the F Street property and 80 per cent of each of the other rental properties, the wife 20 per cent, the husband $1 for each. The husband was also to receive the Country DD property and collection.
The wife and second respondent also sought other orders, including to set aside the filing of documents in relation to the title of the real property that converted the husband’s interest from a joint tenancy to a tenancy in common. They sought orders for the husband to be declared a vexatious litigant pursuant to the Supreme Court Act 1933 (Region W). They sought orders for compensation, in relation to powers of attorney, and in relation to costs agreements entered into by the husband. This is not an exhaustive list. At trial they abandoned, or failed to argue, or failed to lead evidence in relation to the ancillary relief.
MATERIAL RELIED UPON
The husband relied upon the following affidavit material:
(1)Affidavit filed 28 August 2023;
(2)Affidavit of Mr HH filed 28 August 2023;
(3)Affidavit of Mr JJ filed 28 August 2023; and
(4)Affidavit of Mr KK filed 21 September 2023.
The wife relied upon the following sworn material:
(1)Affidavit filed 28 August 2023;
(2)Financial statement filed 15 September 2023; and
(3)Amended balance sheet of 6 October 2023.[1]
[1] The respondents sought to rely upon their balance sheet to correct their financial statement and orders sought.
The second respondent relied upon the following sworn material:
(1)Affidavit filed 28 August 2023;
(2)Financial statement filed 15 September 2023; and
(3)Amended balance sheet of 6 October 2023.
Little remained of the affidavit material filed by the wife and second respondent once objectionable material was struck out.
HISTORY OF THE RELATIONSHIP
The parties were both born in Country DD and met in Australia.
The parties were married and commenced cohabitation in 1973.
The parties’ first child, Mr LL was born in 1975.
The parties’ second child, Mr B Dias was born in 1978. Mr B Dias is the second respondent in these proceedings.
The husband asserts that the parties separated under the same roof in early 2021. The wife complains that the husband has never told her that he wants to separate.
In November 2022, the husband vacated the former matrimonial home and moved into a respite care home. He is suffering from a terminal illness, with the expectation that he will live for only a short period.
PRINCIPLES
The key to the s 79 power to adjust the property interests of the parties to a marriage is that it must be just and equitable, both to adjust the property interests at all (Stanford v Stanford (2012) 247 CLR 108 per French CJ, Hayne, Kiefel and Bell JJ at [35]) and to adjust them in a particular manner (Bevan v Bevan (2013) 49 FamLR 387 per Bryant CJ and Thackray J at [86]).
The necessary first step in consideration of whether it is just and equitable to make an order is to identify “according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property” Stanford per French CJ, Hayne, Kiefel and Bell JJ at [37].
Having identified those interests the court is required to give consideration to the contributions made by the parties.
In Dickons the Full Court, said that “the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage.
Again in Dickons it was noted that the assessment of contributions did not necessitate the identification of a causal link between the contribution and the property, but adopting the description in Aleksovski that “trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) FLC 92-705 at 83,437). This requires that “(a)ny and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4)” Dickons & Dickons [2012] FamCAFC 154 at [18].
The court is further required to have regard to the other matters set out at s 79(4), including the effect of the order on the earning capacity of a party and the matters set out at s 75(2). In this case, in particular, the matters set out at s 75(2)(a), being the age and state of health of each of the parties was identified, noting their ages, and the fact that the husband is suffering a terminal illness with a short life expectancy.
Emphasis was placed upon the husband’s shortened life expectancy. Some emphasis was also placed on s 75(2)(g), relating to the standard of living that is reasonable, and s 75(2)(o) as it relates to “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”, given the manner in which the wife has dealt with property following the end of the relationship.
It then remains necessary to continue to apply the requirement that any adjustment be just and equitable.
Identification of the legal and equitable interests in property
While, in relation to real property held in Australia, there was little apparent complexity in determining the legal title, this was a matter in dispute.
The title in relation to those items of property was identified to be:
(1)BB Street, Suburb CC – tenants in common between the wife and husband;
(2)X Street, Suburb G – tenants in common between the parties;
(3)F Street, Suburb G – tenants in common between the parties;
(4)H Street, Suburb J – tenants in common between the parties;
(5)K Street, Suburb G – tenants in common between the parties;
(6)L Street, Suburb G – tenants in common between the parties; and
(7)Y Street, Suburb Z – tenants in common in unequal shares, a half share to the second respondent, quarter shares to the husband and wife.
Immediately prior to the hearing the second respondent and wife changed their position from receiving equal shares between them in relation to all the investment properties,[2] with a $1 interest to the husband, to an 80–20 claim in relation to those properties (bar the F Street property) favouring the second respondent, with a $1 interest in each to the husband. The respondents further sought that 100 per cent of the shares from the sale of the F Street property be granted to the second respondent, less $1 paid to both the husband and wife.
[2] Minute of Orders Sought by First and Second Respondent filed 25 September 2023 [9]
The second respondent, in advancing his claim of an 80 per cent interest, asserted that this was his legal interest. He submitted that the absence of a defined percentage interest on the land titles register allowed such a conclusion. This is not the case. Insofar as his case was reliant upon such a legal interest, he was, at best, misguided.
The registered title reflected equal shares between the three parties in relation to the X Street, H Street, K Street and L Street properties and, in relation to the Y Street property, 50 per cent in the second respondent’s name and 25 per cent each to the husband and wife. Following the husband taking steps to make it so, his share in the investment properties was held as a tenancy in common, rather than as it previously was, a joint tenancy.
There is no basis upon which it can be inferred that the second respondent holds a legal interest other than as set out above.
Although lacking in clarity, it then appeared that the second respondent and wife claimed the 80 per cent interest, and a 100 per cent interest in F Street on the basis of the contributions made by the second respondent.
He claimed that his interest flowed from both the financial and non-financial contributions that he has made, and from the husband having taken greater than his share from the income derived from the investment properties. The second respondent and the wife appeared to contend an utter absence of contributions by the husband during the relationship, whilst the husband contended that he made significant contributions, particularly financial contributions.
It appeared, at best, that the second respondent’s claim rested upon an equitable interest, presumably in the form of a remedial constructive trust. His claim then rested upon it being inequitable for the husband to claim an interest in the property that denied the second respondent an 80 per cent share, on the basis of the second respondent’s contributions to the property.
In order for such a claim to be made good, the second respondent needs to show that the nature of the pooling of resources between the parties, and the use of that pooling in the acquisition and maintenance of the properties, and otherwise for the purposes of their cooperative relationship, is such that a claim by the husband that the second respondent’s share is limited to his one third, or one half legal interest in the various properties is a claim that, in the words of the plurality in Baumgartner v Baumgartner (1987) 164 CLR 137 at 149, “amounts to unconscionable conduct with attracts the intervention of equity and the imposition of a constructive trust.”
As in Baumgartner, that requires a careful examination of the nature of the cooperative relationship between the husband, wife and the second respondent, and of the nature of the contributions made in the context of that relationship.
Here it may be inferred that the nature of the relationship between the three parties was one directed both to what was described in Baumgartner as “for the purpose of their joint relationship and for their mutual security and benefit” and, it may also be considered, for the acquisition of property for their mutual benefit.
The plurality in Baumgartner observed that
(e)quity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind.
Further, in making such an enquiry the plurality (at [150]) advised that:
The court should, where possible, strive to give effect to the notion of practical equality, rather than pursue complicated factual inquiries which will result in relatively insignificant differences in contributions and consequential beneficial interest.
The evidence of the wife and second respondent
Before dealing with the evidence of the wife and the second respondent, it is appropriate to note the caution with which their evidence should be treated.
Although in many cases global credit findings should be avoided, the wife’s evidence in this case was of a character that meant it cannot be relied upon. The manner and content of the wife’s oral evidence gave strong reason to be cautious in relation to her assertions, other than when adequately supported by reliable evidence.
In large part the wife’s evidence was non-responsive to questioning, evasive and deflecting. Having been warned at the commencement of her evidence that repeated failures to answer questions could leave an impression of the avoiding of questions, and a corresponding doubt as to credibility, the most striking feature of her evidence was in its consistency in avoiding the question that she had been asked.
The avoiding of questions frequently descended into non-responsive statements designed to bolster her case, in particular in gratuitous criticism of the husband.
The wife was repeatedly cautioned in relation to her non-responsive answers. In particular, she was cautioned that her consistent failure to respond may result in the husband being excused from the obligation to put contentious matters to her as a matter of fairness.[3] The wife’s non‑responsive answering rendered compliance with the rule in Browne v Dunn abusive of process to the husband. Despite these warnings the wife continued in her discursive non-responsive answering, which ultimately resulted in the husband being released from that obligation.
[3] cf the rule in Browne v Dunn
To this may be added an apparently selective approach to recollection, wherein the wife was able to give minute detail of matters that she considered benefitted her case but claimed ignorance or innocence of matters that might undermine her case. An evidently highly intelligent woman, her claims of ignorance or naivety in large part lacked any credibility.
Further, the wife’s Financial Statements appeared to be unrealistically and severely inflated, undoubtedly to seek to explain the movement of cash.
In summary, great caution should be exercised before accepting the wife’s evidence on a contentious matter without adequate support from other evidence.
There was also good reason for caution in relation to the evidence of the second respondent.
One reason was the significant lack of disclosure, including as to the accounts into which the proceeds of the rental properties flowed. Further, the second respondent demonstrated an unwillingness to adequately explain the cash withdrawals from those accounts, including the uses to which the cash was put. When explanation was proffered, it was woefully inadequate, leading to a strong impression that the second respondent was being evasive and dishonest in his evidence.
Another example may be seen in the financial statement prepared by the second respondent that appeared grossly and unrealistically inflated in an attempt to (falsely) explain cash removed from the accounts.
There can be little doubt that the second respondent was engaged in a calculated effort to conceal the truth about the disposal of the rental income from the properties.
This impression was reinforced by the second respondent’s evidence about a purported technology investment. He explained that a transfer of $45,030 in February 2023 was an investment in technology, via an entity called MM Company. He also asserted that this formed part of the depreciation claim by VV Company, although there were no documents produced to substantiate such claims.
Despite claiming this he denied that he had made an investment in MM Company. At the same time, again without any supporting material, he asserts that he has a $500,000 debt to MM Company, for software development. He said that although MM Company had conducted software development for him, MM Company is a not-for-profit that provides open-source software. The claims in respect of payments to, and debts in relation to MM Company are far‑fetched, and a fabrication designed to conceal the use of funds by the second respondent.
Accordingly, where not otherwise adequately supported, great caution should be exercised before accepting the assertions from the second respondent.
In relation to his contributions, the claims made by the second respondent commence with his assertion that he saved various earnings as a child such as to enable him to contribute to the purchase of real property in the form of a share of a property with his parents.
In support of that claim, Exhibit R3 is a deed of trust of 1995, which establishes, in explicit recognition of the contribution by the second respondent of 16 per cent of the purchase price that the husband and wife, on completion of the purchase of the property at NN Street in Region W, also known as PP Street would hold 84/100 of the shares in the property as tenants in common, and 16/100 shares on trust for the then 17 year old second respondent, with the trust to vest on his reaching 18 years of age.
The second respondent further asserts his contributions to the property pool include household tasks such as mowing the lawn since 1986, cutting the husband’s hair, washing and vacuuming the cars from a young age, as well as servicing them from 2000 and servicing their computers and phones. He also asserts that he made significant contributions to the management of the family’s QQ Business including developing a website, managing the bookkeeping, telephone and email communications, completing stocktakes and updating distributor records. He says that he received telephone orders, has undertaken bulk mailing, and maintained the computer records for the QQ Business. Enigmatically he says he has done what has been required while the husband travelled overseas each year from 1991 until 2020.
The second respondent asserts that he has participated in all aspects of the running of the rental business, having invested all of his money with the husband, assisted the husband, and worked as a “team player”. He described maintenance work on the various properties. While he denied filing and completing tax returns, the second respondent asserted that he is the only person with an understanding of “all aspects of the business and financial dealings.”
The circumstances of the second respondent asserting that he is the holder of knowledge in relation to the business, yet resisting and defying disclosure orders, form a solid basis for the drawing of inferences against the second respondent.
In describing his particular contributions to the acquisition of the F Street property, the second respondent leans heavily upon the fact that it was he who engaged with the conveyancer. In his oral evidence, following questioning from the wife, he detailed various repair and other tasks that he undertook in respect of F Street. The evidence falls far short of justification for his claim in relation to F Street.
The second respondent gave significant emphasis to his role in the selection and acquisition of the rental properties, alleging that the husband did little other than to sign the contract. This appeared as a major plank in his claim that he has an 80 per cent interest in the bulk of the properties, a claim that appears to completely disregard the capital contributions made by the husband.
Further to this the second respondent describes the pooling of his income (and income from his family including Family Tax Benefit) with that of the husband and wife until a time about the end of the husband and wife’s relationship, when the husband opened his own account and removed funds into it. There was little detail of the extent of paid employment actually undertaken by the second respondent, or the income that was pooled with the husband and wife.
The corollary of the second respondent’s claims is that the second respondent and his family have also shared the benefit of living in the family home, and the cooperation of the husband and wife in the purchase of the various investment properties with the second respondent.
A significant aspect then of his claim rests upon his apparent claim that the husband has made no contributions of any significance for an extended period and has supported an indulgent lifestyle from the wife’s and second respondent’s contributions of their income.
When the husband’s evidence is taken into account and assessed in the light of the wife’s and second respondent’s evidence, such an extreme description of him should be rejected.
The wife’s evidence was, at best, patchy. By her affidavit material the wife contended that the husband left his employment in 1991, a matter not disputed by him. She asserted that she then has worked on a part time casual basis since. While describing the decline in the QQ Business from 1996 she neither described her involvement, nor described the income received from the business, nor the uses to which it was put. Although the wife was critical of the husband for his overseas travel as wasteful, it became apparent that the wife travelled with the husband to Europe up to multiple times each year from the point of the establishment of their QQ Business there. It appears that the QQ Business was one in which both the husband and wife were active.
The wife described that the first of the six investment properties was purchased in 1998, noting that this was seven years after the husband ceased working. This appeared to be an attempt to suggest a lack of financial contribution by the husband, in the face of her relative silence about the income from the QQ Business. It may, however, be thought that, absent the involvement in the QQ Business, there is no sufficient explanation for the parties being in a position to purchase the properties which were, it appears in large part, without encumbrance. The limited evidence of the income of the wife and second respondent does not support the manner in which they were able to acquire properties, suggesting that the conduct of the QQ Business was significant to this outcome.
Despite the second respondent’s apparent computerised record keeping of business records in respect of QQ Business, little detail of the business income was provided. The wife asserted that by some, unidentified stage, the income from QQ Business had become minimal. It may be accepted that by some stage this was so. The wife variously described that it was all over by 1996, although what this meant was unclear, given that she also described that it was in the “2000s the business made $5 to $10 per month.” The wife also then appeared to tie the second respondent’s pooling of resources to this unidentified point in the 2000s, later sheeting it back to the death of his grandparents, apparently in 2001.
At best these assertions appeared to be cherry picked and limited to the ultimate demise of the business, rather than to the period of success enjoyed by the business. This lack of information comes in the context of the husband’s claims that his access to the computerised records was cut off, and the claims by the second respondent that he was the keeper of the records.
The wife asserted that the second respondent put all of his monies into the joint account. There can be little doubt that there was a pooling of income. However, there can be little doubt that if this was the case the second respondent also lived from the funds held in that joint account as he shared the home with his parents, later sharing it also with his wife and four children. One example of him so relying upon his parents was when he lived in Country DD with the extended support of his parents.
The wife says that she received an inheritance of $250,000 over ten years. No evidence was produced to support this, but under cross-examination the wife described that she received cash payments from her father, typically of $1,000 cash each time she visited him. Given the issues with the credibility of the wife there is little reason to accept this assertion.
In further describing the involvement of the second respondent, the wife asserted that he undertook many tasks associated with the rental of the properties, from collecting rent as a child, through to advertising and selecting tenants, dealing with bonds and disputes in the tribunal, bookkeeping and undertaking various repairs and renovations. The wife then set out the repair activities engaged in by the second respondent.
Despite the picture painted by the wife of minimal involvement by the husband, her descent into criticism of him at times painted a contradictory picture, for example, describing him as “always micromanaging everything” and alleging (when it suited) a lack of understanding of the finances as they were dealt with by the husband. This conflicted with her position that he had not contributed, but rather had lived off the proceeds without any involvement on his part.
Until the end of the relationship, the rental income, along with earnings from QQ Business, the mother’s casual work and the second respondent’s intermittent employment, and other income such as through Family Tax Benefit, were deposited into an account held jointly by the husband, wife and second respondent. From that account expenses were paid in relation to the investment properties, along with living expenses for the husband, wife, and the second respondent and his family, consisting of his wife and four children.
Prior to separation this appears to have been undertaken, to a large extent by the husband and second respondent incurring expenses on their credit cards, with such being regularly reimbursed from the joint account.
Although the wife and second respondent painted a minimalistic picture of the contribution made by the husband, describing an indolent and self-indulgent lifestyle, the bank records pointed away from such a conclusion. The credit card statements related to the card operated by the husband[4] from February to November 2022 were filled with transactions at supermarkets, hardware stores, government payments, chemists, medical and various other expenses. While not all of the transactions may be related to what the wife regarded as family purposes, (for example the purchase of a supermarket item to take to a friend’s home) that is not to the point. The overall character of the transactions incurred by the husband speak of involvement and participation inconsistent with the extreme picture painted by the wife and second respondent. While the wife and second respondent saw fit to compile a schedule of the expenditure undertaken by the husband in relation to medical and related expenses for the period July 2021 to June 2022, again the application of the funds to such expenses cannot be excluded from the life of the family.
[4] Exhibit H11
The picture painted of the husband by the wife and second respondent received a further blow during the evidence of the wife. In eschewing knowledge of the financial operation of the partnership between the parties that operated the rental properties the wife asserted that the husband had taken the responsibility for lodging of tax returns all their life together, and that she lacked any understanding of the financial arrangements. While there was good reason to doubt the wife’s naivety in respect of the financial arrangements, her ready placing of responsibility on the husband tended to negative the uninvolved description that she sought to otherwise depict.
The picture of the husband as uninvolved in the operation of the rental properties should be rejected.
The husband’s account of contributions
The husband asserts that at the commencement of the relationship neither of the parties had any significant assets. He claims that he had been working full-time and supported his wife for two years whilst she completed her university studies, after which, she began working an educator.
Excepting for short periods of time when the wife was on maternity leave following the birth of their two sons, the husband and wife worked full-time from 1975 until the early 1990s.
He describes that the parties purchased their first home in Suburb O in or about 1975 and lived in the home with their two children until its sale in 1993 or 1994. Using the proceeds from the sale of the Suburb O property, the parties then purchased the block of land of the former matrimonial home in Suburb CC, which was constructed in late 1995. The husband and wife originally purchased the former matrimonial home as joint tenants, but the title was severed and changed to a tenancy in common in equal parts when the husband moved out in November. The husband asserts that over the years, he has carried out numerous improvements to the former matrimonial home, including erecting internal walls, doors and cupboards, converting the rumpus room into three smaller rooms, constructing retaining walls, installing a grey-water and rain-water tank system and building two large storage sheds. The husband asserts that the second respondent has lived at the matrimonial home rent free the vast majority of his life.
At some point in the 1970s, the husband asserts that the parties purchased their first investment property, a unit in Suburb RR. He later asserts that it was purchased in approximately 1982 and later sold.
The husband claims that they established their QQ Business as a couple in partnership in 1975, after an acquaintance had shown them the products and invited them to join QQ Business. He claims that the wife was initially resistant to joining but ultimately agreed so that they could purchase the QQ Business products at wholesale prices. The business then grew in the 1970s and 1980s to the point, he says, that it generated more income than they earned from their full‑time salaries and the husband and wife both resigned from their jobs in 1991 and 1990 respectively. The resignation appears agreed by the parties, although the wife says that she has worked casually as an educator since then. The resignation is consistent with the picture of success of the QQ Business as described by the husband.
At that point, the parties decided to expand their QQ Business to Country DD and they both travelled to the country, leaving their sons (teenagers at the time) with fellow QQ Business members. The husband asserts that he remained in Country DD for a period of six months whilst the wife returned to Australia after two months because she was homesick. During his cross-examination, the husband later claimed that the wife was in Country DD for four months. The husband clearly struggled with recollection while giving evidence. However, either account supports the notion that the wife was heavily involved in the development of the QQ Business.
The husband asserts that the QQ Business built up very quickly in Country DD, and within six weeks, 500 people had joined and the business generated a turnover of $30,000 per month for many years. Both parties agreed that 500 people signed up with their QQ Business on the first formal day of the operation of the Country DD business. Again, this renders the husbands’ description of the success of the business realistic.
Upon his return to Australia six months later, the husband asserts that the QQ Business in Australia had suffered tremendously, many of their business partners had left and there was hardly anything left. He claims that the business never recovered. He claims that both parties ran the Australian QQ Business, with the wife taking responsibility whilst he was overseas.
Meanwhile the husband continued to place his efforts into building the Country DD business, as well as establishing a business in Country TT. He says that much of their success came from the Country DD QQ Business. Over a period of some years, the husband asserts that he gave numerous talks to people in Country DD about QQ Business and was invited as a speaker to QQ Business’s biannual meetings with the wife and QQ Business frequently paid for all their expenses to attend these events. At one point in the 1990s, the husband asserts that he was invited to be MC to a large meeting in Country DD that over 10,000 people attended, which the wife was not invited to attend.
It appears that the wife also frequently attended such events. She described that she assisted in organising them.
Although the husband claims that the wife was not involved in the day-to-day operation of the business and claimed that the wife was not involved in the running of the Country DD business beyond organising some appointments, their frequent travel together, and apparent cooperation points to the wife having a stronger involvement than described by the husband.
The husband asserts that they used the profits from their QQ Business, and from their prior full-time positions, to purchase investment properties. Once the mortgages (it being unclear to what extent there were mortgages) on the properties were paid off, they were then sold and more properties were purchased. Along with the generating of rental income, the monies described by the husband from QQ Business forms the only feasible explanation for the parties’ capacity to acquire the six unencumbered rental properties. The assertions of the wife and second respondent as to the use of their, apparently limited and inconsistent, income, do not realistically explain the purchases.
As part of their acquiring of investment properties, in 1994 the parties purchased, as described above, the property in Suburb OO with the second respondent. The husband says that at the time, the second respondent was working for their QQ Business doing office work, as well as collecting rent from the tenants. The salary the second respondent received was deposited into the parties shared bank account, as the husband asserts that, until recently, the second respondent did not have his own bank account. The husband asserts that the salary the second respondent received never reflected the share of the title he acquired in that property. However, as identified above, the deed asserts the contribution of 16 per cent, and the allocating of a corresponding share of the property to the second respondent. The husband’s assertion that the second respondent contributed less than the 16 per cent should not be accepted.
The husband described that he and his wife entered into a partnership, named UU Company, in 2000 to manage and increase their property portfolio. He described that the second respondent entered into the partnership in 2003 to enable him to learn the family business whilst the husband and wife extensively travelled overseas. He asserts that the second respondent did not receive any income from this partnership until FY 2014/2015, where he earned $1,611. The husband asserts that during the five years prior to that, he and his wife earned $73,799 and $32,255 respectively. He claims that in the past 14 years, he has received 50.42 per cent of the income generated from the partnership, whilst the wife and second respondent have received 32.33 per cent and 17.35 per cent. A section 50 certificate tendered by the husband better set out the varying allocation of the income for a number of years. This division of income did not appear to be disputed, although no partnership agreement was tendered to explain the division.
The husband asserts that he looked after the investment properties including carrying out extensive maintenance on the investment properties over the years, sometimes assisted by the second respondent. He says he and the wife became less involved about 20 years ago when they started travelling more often and allowed the second respondent to take over. The husband asserts that the second respondent mismanaged the properties, causing them to lose tenants and income.
At some point during their marriage, the parties also purchased the City EE property, held in one third shares between them (Exhibit H5). The husband asserts that the second respondent did not contribute any funds to the purchase of this property and the husband and the wife paid for any outgoing fees, including body corporate, electricity, water and general upkeeping costs. The husband claims that the second respondent lived in this property rent-free for a period of six months during his 20s whilst working as an educator in City EE. He later asserts in his cross-examination that the first respondent lived in the property for a year.
It did not appear to be controversial that the second respondent lived in the City EE apartment for an extended period.
Post separation issues
In September 2021, the husband opened a bank account in his sole name with the ANZ Bank. Amounts totalling $12,750 were deposited into this account between then and November 2022. This was done without notice to the wife or second respondent, and the husband provided the bank with a different address to the home address. Despite the use of an alternate address the wife was quickly aware of the existence of the account as, although the husband had, it appears, endeavoured to give his sister’s address, he gave an address of someone else associated with the parties who, on receipt of correspondence from the bank to the husband, told the wife that he had received such. When he opened this account there remained approximately a quarter of a million dollars in the three-way account.
This was a major source of complaint on the part of the wife. Until then all funds appeared to pass through the one account shared by the three parties. Part of this passage of monies included, as described above, the use of credit cards by the parties, in particular the husband and second respondent, for various expenses, with the credit cards being paid out from this account each month. It was also an account from which funds had been used by the parties for the purchase of real estate. For example, in November 2019[5] the parties had accumulated over $500,000 in the account from which in excess of $430,000 was withdrawn to fund the purchase of the F Street property.
[5] Ex H12
On 29 August 2022, the wife and second respondent opened a joint bank account. It should be observed that the wife and second respondent did not disclose the statements from this account despite repeated requests for disclosure. Further, they objected to the husband inspecting these accounts when produced on subpoena from the NAB, thereby delaying further his access to such.
Rent from at least some of the investment properties began being deposited into the joint account shared by the wife and second respondent from when it was opened. No withdrawals were made from this account until after 7 November 2022, when $210,000 was transferred into this account from the account the respondents shared with the husband and the husband then caused the three-way account to be frozen.
Until this time, it appears that payments for expenses were still being drawn from the three‑way account, despite significant rent proceeds being deposited into the two-way account, such that prior to the deposit of the $210,000 the new account had accumulated almost $47,000.
From this point cash withdrawals from the two-way account commenced, asserted to pay various expenses including those related to the rental properties, the first such occurring on 2 December 2022. The wife was unable to describe what the various payments were in relation to, which assumed some significance given the size of the payments (including one of $45,030 on 7 February 2023, that was later ascribed to technology investment).
The wife explained that these were used to pay various unidentified expenses, wherever a credit card surcharge would be incurred. This included payments in relation to the rental properties. This explanation rang hollow where the rental properties were income producing, and where many expenses in relation to them would be deductible.
In January 2023 the husband caused the title in the jointly held properties to be converted from joint tenancies to tenancies in common.
In January 2023 the second respondent opened a further account in his sole name[6] (the “sole account”) and from the beginning of February 2023 rent from the properties was deposited into that account. When asked why it was not an account with joint names, the wife said that the second respondent has four children, a medical condition, his wife did not work and that it was in order to ensure that he had something. That account received rent, salary and various government payments.
[6] Exhibit H10.
On 22 February 2023 the husband commenced proceedings under the Family Law Act 1975.
In early 2023 the parties were before the Supreme Court as the wife and second respondent had commenced proceedings against the husband there a month earlier. Those proceedings have since been stayed pending the resolution of proceedings in this court. Shortly thereafter, a number of cash withdrawals were made from the two-way account, including four withdrawals across 15 March 2023 to 17 March 2023, each just under $10,000. In partial explanation for the cash withdrawals the wife explained that a bush trip was planned, and that they would pay cash when they travelled. It was unclear when this trip was planned for, and it was not an explanation that was in any way convincing. Rather, it appeared to be an attempt the empty the account.
On 15 March 2023 the wife completed a sworn Financial Statement. Although she said that she typed the entries together with the second respondent, she denied that they discussed the figures. In that document the wife asserted expenses of $3,961 per week, which she described to the court as necessary to support her family, including $1,200 per week for food (for herself, the second respondent, his wife and their children). Against this she asserted an income of $237 per week from work.
In that statement the wife did not disclose the cash withdrawals. She, unconvincingly, explained that this was on the basis that she did not think that they were significant.
Importantly, the wife asserted in that document that she held $10,000 in an account, but in truth the balance of the account was approximately $180,000.[7] The wife said that she did not, at the time, know that this was the balance of the account. This was however the lowest balance on the account since November the previous year, and the wife’s assertion of $10,000 should be seen to be a deliberate misleading as to her financial circumstances, under circumstances where, due to a lack in disclosure, the husband could have no knowledge of what was in the account.
[7] Exhibit H7.
On 15 March 2023 monies commenced being withdrawn from the sole account, with cash of $9,700 being withdrawn on that day, in addition to the almost $40,000 in cash being withdrawn over a few days from the two-way account.
An interim hearing then took place on 17 March 2023. The wife and second respondent emailed a screen shot setting out three current balances of $12,847.86, $151,113.32 and $54,098.88. Obviously, this did not disclose the significant cash withdrawals that had just been made.
The screen shot also did not disclose any account details. The husband subsequently requested the account details which had not been provided. They were not provided.
On that day a Senior Judicial Registrar made orders that the sum of $205,098.88 be deposited into the trust account of the husband’s solicitors. This money was transferred from joint accounts into the trust account in line with the orders.
Cash amounts continued to be withdrawn from the sole account, including $9,900 on 3 April 2023, and again on both 5 and 6 June 2023.
The second respondent completed the partnership tax return in relation to the husband, wife and himself for FY 2022-23. He did so without reference to the husband.
On 6 July 2023 a Senior Judicial Registrar made specific disclosure orders in the following terms:
13.Within 28 days of the date of these Orders, the First and Second Respondent’s shall comply with their duty of disclosure in accordance with Rule 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 including but not limited to the following:
a. Providing copies of all bank statements in their names or held jointly with any other person or persons on or behalf of one of the parties of the period 1 January 2021 to date;
b. Providing a copy of all documentation in their possession or control regarding all rental income received from the properties in the names of the parties of the period 1 January 2021 to date; and
c. Providing information and details concerning all income received from the [QQ Business] that is operated in Australia and [Country DD] for the period for 1 January 2021 to date.
These orders were disregarded by the wife and second respondent. When the husband sought, shortly prior to the trial, to fill the gap through a subpoena directed to the NAB that produced of the two-way account statements the second respondent and wife objected to the husband having access to the documents. Representations were made to the Senior Judicial Registrar both that the documents were not relevant, and that the husband could access them himself. This can only be seen as a cynical exercise in resisting proper disclosure.
This post separation history is supportive of the contention made by the husband that the second respondent and wife have retained undisclosed cash reserves, retained from the various cash withdrawals and the withdrawals in aid of their claimed technology investment with MM Company.
Conclusion as to legal interests
Contrary to the position taken by the wife and second respondent, the evidence does not display an inequality of contributions. Rather, the picture that emerges is of long-standing cooperation between the three parties, both in relation to the acquisition and operation of the rental properties, and in mutual support as the second respondent and his family shared the family home with the husband and wife. It may be accepted that each contributed in different ways, and that their contributions ebbed and flowed in the various domains in which they were made. However, the evidence does not support, for the purpose of determining the parties’ equitable interests, anything other than a general equality.
The wife’s and second respondent’s position as to his contribution-based interest is misplaced. The second respondent’s interest are no different to what was reflected in the title to the properties.
In terms of the balance of the property held overseas, little information was available in respect of the Country DD real property, or the bank account. All parties expressed uncertainty as to the Country DD bank account. The husband led evidence to show that he has taken steps to establish the status of the bank account, but that those steps have been unsuccessful. The wife and second respondent do not appear to have taken any steps in relation to the bank account, taking the position that if there is an amount that it should stand to the credit of the husband.
Absent reason to consider that the account balance has changed, it should be considered that about $40,000 is held in that account. This is particularly so given that the second respondent ultimately agreed that there was $40,000 in the account but asserted, without indicating why, that he could not access the account.
Despite the protestations by the wife and second respondent as to an unawareness of the status of the Country DD property, this was not on the basis of an assertion that neither was on the title, or that something had happened to the property. The protestations of a lack of awareness appeared to be on the basis that anything could have happened and so who would know if there is such a property.
Again, the husband was frustrated in his steps to procure evidence about the property.
What was established by the documentation produced from Country DD is that there is a property purchased in City EE the names of all three parties. What was uncontroversial is that the second respondent lived in it for a period.
Both the second respondent and wife asserted that if the property exists, the husband should receive it in any property distribution. The wife and the second respondent appeared to agree with the husband’s contention that the property was worth $150,000, on the basis that the husband should receive it. Given the limited success on the part of the husband in obtaining evidence in relation to the City EE property and Country DD bank account, there remains uncertainty as to the steps that may need to be taken to effect any transfer of either to the husband.
Given the conduct of the second respondent and wife, in relation to disclosure and the operation of the bank accounts, it can be expected that they will not readily comply with orders that compel them to transfer interests to the husband. There is little reason at present to consider that the husband would not comply with transfer obligations. There is also little reason to think that the second respondent would not cooperate with orders that favour the wife given their strongly aligned approach to the litigation.
A further contentious issue arose as to collectibles acquired through the marriage. In large part this related to a collection acquired over many years by the husband. Initially it also related to a collection of items by the wife, although the evidence in relation to this trailed off during the proceedings, leaving the focus upon the collection.
It appears that during the relationship the collectibles were held in a large safe located at the former family home. The husband removed the items form the safe and incapacitated the safe.
The wife and second respondent contended that the collection was worth $2.5 million, although for the purposes of the litigation, said that attributing a value of $1 million would be sufficient. Their position was that the husband should retain the collection.
The parties were therefore in sharp dispute about the value of the collection.
In aid of the proposition that the collection was of significant value the wife asserted that the husband had continually spent significant funds on the purchase of the collectibles. The wife painted a picture of waste on the part of the husband in respect of his travel to Country DD and his expenditure on collectibles. In her oral evidence she said that over a number of years the husband would spend $20,000 per year on collectibles. As her evidence unfolded this was revealed to be a grossly exaggerated account. Having made the assertion the wife then accepted that she had travelled with the husband to Country DD across a number of years, and that the $20,000 referred to was not necessarily $20,000, at times being $10,000, and was not in fact all for the purchase of collectibles but involved the whole of the costs of their combined travel.
This left the basis upon which the wife asserted prolific expenditure on collectibles unestablished. While it may be considered that the husband has purchased collectibles over many years, expenditure of the nature asserted by the wife was not established.
The husband led direct evidence as to the value of the collection from a Mr KK, who conducts a business specialising in the trade of particular collectibles. He is a member of industry associations and has been conducting auctions since 1978. He has longstanding experience in relation to the value of collectibles and was able to give opinion evidence by virtue of that expertise.
He assessed the collection as of a value of $8,700. Under cross-examination he explained that this was an assessment of an Australian market value for the collection and observed that collectibles would typically sell for about 10 to 20 per cent of their purchase price. He accepted the proposition that the collectibles market is very different from what it may have been 30 years ago, where the collectibles would have attracted many more times their current value.
He was also asked about the container within which the collectibles were kept and their value. His opinion was that the containers themselves carried no ongoing value, once used, other than the value of the collectibles contained therein.
Mr KK opinion should be accepted as representing an approximate value of the collection held by the husband.
In challenging the valuation, Mr KK was asked about the volume of collectibles presented to him, describing that they would fill a cabinet of approximately 1.9m by .9m by .45m volume. Whilst the wife and second respondent contended that this was smaller than the safe in which the collectibles had been kept at the home, they did not make good any assertion that the husband had less than the full collection valued.
Finally, the husband contended that the wife and second respondent hold cash, the expenditure of which has not been adequately accounted for, in the sum of $197,983.97, along with a technology investment claimed by the wife to the value of $30,000 (which appears to constitutes a part of the $197,983.97). It should be concluded that there is no such investment. The wife claimed a debt in relation to the payment or investment of $100,000 in technology in her Financial Statement, claiming in her oral evidence to have paid out $30,000 to MM Company. She appeared to assert that she had given this money to MM Company with no expectation of receiving a return. There was no documentation. There was no believable explanation. Neither debt nor payment should be accepted.
The husband seeks that the withdrawals be reckoned as still within the control of the wife and second respondent.
In order to quantify those withdrawals, the husband prepared a s 50 Evidence Act 1995 schedule. The schedule identified rent being received from July 2022 totalling approximately $150,000. Importantly the schedule also identified what was described as notable withdrawals, totalling just under $200,000, all except one of which was in excess of $2,000, and all of which, except for one, were cash withdrawals. The remaining withdrawal of $45,030 on 7 February 2023 was explained by the second respondent to be the payment in respect of technology to MM Company. As observed before, no material was provided to substantiate this claim, and the explanation was not accepted. Where the MM Company related monies went remains an unresolved mystery.
In the absence of satisfactory explanation as to the use of the cash withdrawals, itself in a context of more general lack of disclosure, there is little reason to consider that the cash amounts were expended on living, holiday, educational, medical and expenses related to the rental properties. Perhaps some were, but in the absence of evidence that moved beyond the assertions of the wife and second respondent, there is no adequate reason to conclude that they were so used.
Given the manner in which the wife and second respondent made cash withdrawals, their lack of adequate explanation of such, and the lack of supporting documentation, it is reasonable to conclude that such cash monies remain under the control of the wife and second respondent, albeit in an undisclosed location.
The husband should not be denied his share of those cash funds, in which he continues to hold an interest, and an amount equalling one third should be paid to him.
Even if this is wrong, the alternative conclusion would be that the wife and second respondent have disposed of these funds in a manner that, on the wife’s part, represented a premature distribution of the property interests of the husband. In such a circumstance the amount should be notionally added back to form a part of the pool from which the husband’s claim should be drawn.
The pool of property
The pool of property may be reckoned as follows:
The real property
It is convenient to set out the properties that were in play as at the commencement of the proceedings. This included six investment properties that became subject to orders for sale, with the second respondent appointed as the trustee for the sales, so that by the time of the trial a number of the properties had been either settled, or contracts for sale had been exchanged. The proceeds are held on trust by the solicitor appointed under the orders to act on the conveyancing.
The former matrimonial home, is a property held equally by the husband and wife. On 1 September 2023, orders were made for valuation of the matrimonial property. The husband’s solicitors engaged a valuer who assessed the market value on 8 September 2023 as $950,000. This value was unchallenged by the respondents.
The Y Street property was acquired under the names of the husband, the wife and the second respondent in 1998, in 25 per cent, 25 per cent, 50 per cent shares respectively. This property was sold for $460,000 in late 2023. In late 2023 the sale was settled and $446,486.68 was deposited in the N Lawyers Trust Account.
The L Street property was acquired under the names of the husband, the wife and the second respondent in 2002. It was sold in late 2023 for $665,250. It has not yet settled.
The X Street property was acquired under the names of the husband, the wife and the second respondent in 2003. It was sold for $705,000. In late 2023 the sale was settled and $668,108 was deposited in the N Lawyers Trust Account.
The K Street property was acquired under the names of the husband, the wife and the second respondent in 2007. It sold for $685,000. It has not yet settled.
The F Street property was acquired under the names of the husband, the wife and the second respondent in 2019. This property was listed for sale at a price over $660,000. It has not yet sold.
The H Street property was acquired under the names of the husband, the wife and the second respondent in 2011. Although an oral agreement was reached to sell the property for $500,000, as at the time of the trial no contract had been exchanged and the sale of the property then fell under the control of a newly appointed trustee for the sale of the property, a registered liquidator.
The City EE property, owned one third each by the parties.
Three cemetery plots, one for each of the parties.
To give a rough idea of the quantum for the division of the proceeds of these sales, assuming net of sale expenses, and divided in accordance with the ownership percentages for each of the properties, results in the following approximate divisions:
(a)Y Street property 25 per cent, 25 per cent, 50 per cent shares $446,486.68
(i)Husband $111,621.67
(ii)Wife $111,621.67
(iii)Second respondent $223,243.34
(b)L Street property unsettled $665,250
(i)Husband $221,750
(ii)Wife $221,750
(iii)Second respondent $221,750
(c)X Street property $668,108
(i)Husband approximately $222,703
(ii)Wife approximately $222,703
(iii)Second respondent approximately $222,703
(d)K Street property unsettled $685,000
(i)Husband approximately $228333
(ii)Wife approximately $228333
(iii)Second respondent approximately $228333
(e)That still leaves the sale of the F Street and H Street properties, unsold to be divided once achieved.
(f)The Country DD property held in third shares
The personal property
Collection in the possession of the husband, valued at $8,700
Partial property settlement received by the husband into the trust account of Elringtons Lawyers, less the reimbursement of the husband’s credit card as at separation, of $186,600.
When to this is added the serious non-disclosure, in the face of orders that provided for specific disclosure, and the unjustifiable resistance to the husband accessing subpoenaed material designed to fill the gap of that non-compliance, the wife and second respondent’s conduct becomes even worse.
In relation to s 117(2A)((d), the proceedings themselves were not necessitated by non-compliance with previous orders of the court.
In considering whether a party has been wholly unsuccessful pursuant to s 117(2A)(e), it may well be the case that the wife and second respondent have been wholly unsuccessful. However, given the conclusions reached in respect of the other matters contained in s 117(2A) it is not necessary to determine this.
No relevant offer in writing pursuant to s 117(2A)(f) has been identified.
Other relevant matters pursuant to s 117(2A)(g) have not been identified.
Given the manner in which the second respondent and wife ran their cases together, these factors warrant an order for the wife and second respondent to be jointly and severally liable for the husband’s legal costs. Despite the fact that the husband did not fully recognise the second respondent’s share until September, the conduct of the second respondent and wife is such as to justify their meeting the husband’s costs on a party-party basis to 12 September 2023.
From that point, the extreme nature of the conduct of the wife and second respondent, in the face of the recognition of the husband’s recognition of the second respondent’s claim is of such a nature as to warrant an award for indemnity costs. The conduct of the wife and second respondent formed an extreme departure from the proper conduct of the litigation, and, when combined with the nature of the relief they pursued against the husband, is indicative of a wilful disregard of known facts, where they should have known there was no chance of success, and indicative of the pursuit of an ulterior motive.
These matters bring the case into the exceptional category that warrants an order for indemnity costs.
Conclusion as to costs
The wife and second respondent will be jointly and severally liable to pay the husband’s costs in the proceedings, on party-party basis until 12 September 2023 and thereafter on an indemnity basis, as agreed or as assessed.
I certify that the preceding two hundred and twenty (220) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 25 October 2023
Applicant’s amended minute of orders sought
(1)That Order 1 of the orders made on 6 July 2023 and amended 10 July 2023 be varied to remove the Second Respondent MR B DIAS as the Trustee and substitute in his place Mr C, Chartered Accountant, Registered Trustee in Bankruptcy, Registered Liquidator and partner Principal of the firm D Accountants, City E (“Trustee”) at the Second Respondent’s cost.
(2)That within seven days of the date of these Orders, the Second Respondent shall provide to the Trustee all documents referring to or relating to the sale of the properties referred to in Orders 6b, 6c, 6d and 6e and a set of keys for each of those properties.
(3)The Applicant, First Respondent and Second Respondent be and are restrained from interfering with the sale of the properties referred to in Order 2 and/or contacting the listing agent.
(4)All parties be and are hereby are restrained by injunction from any act or thing which reduces or may reduce the value of the properties referred to in Order 2.
(5)The respondent and second respondent each be responsible for and pay one half of any arrears of council rates, water levies and/or land tax owing as at the date of settlement of the sale of the properties referred to in Order 6 with such sums to be paid from any sums payable to them pursuant to Orders 6.4.8 and/or 6.4.9.
(6)Upon completion of the sales of:
(a)X Street, Suburb G;
(b)F Street, Suburb G;
(c)H Street, Suburb J.
(d)K Street, Suburb G;
(e)L Street, Suburb G; and
(f)Y Street, Suburb Z
the sale proceeds from the properties shall be paid in the following manner and priority:
6.1 Payment of the agent’s commission, advertising or other sale expenses payable (if any) payable on the sale BUT excluding the sums to be paid by the respondents pursuant to Order 5 and/or the second respondent pursuant to Order 1;
6.2 Payment of the legal costs and outlays relating to the sale;
6.3 Payment of any expenses to be reimbursed to an auctioneer (if any);
6.4 The proceeds of sale then remaining after payment of the expenses referred to in Orders 6.1 to 6.3 inclusive shall be disbursed to the husband as follows:
6.4.1 1/3rd of the funds relating to X Street, Suburb G,
6.4.2 1/3rd of the funds relating to F Street, Suburb G;
6.4.3 1/3rd of the funds relating to H Street, Suburb J;
6.4.4 1/3rd of the funds relating to K Street, Suburb G;
6.4.5 1/3rd of the funds relating to L Street, Suburb G; and
6.4.6 25% of the funds relating to Y Street, Suburb Z.
6.4.7 Payment to the Applicant from the First and Second Respondents’ entitlements pursuant to Orders 6.4.8 and/or 6.6.9 such sums as may be required to pay any costs orders made pursuant to Order 17;
6.4.8 Subject to the Second Respondent having paid the Tustees fees and charges provided for in Order 1 and any costs order made pursuant to Order 17, payment to the Second Respondent as to:
a. 1/3rd of the proceeds relating to X Street, Suburb G with such sum to be calculated after payment from the sale price the amounts referred to in Orders 6.1 to 6.3 inclusive;
b. 1/3rd of the proceeds relating to F Street, Suburb G with such sum to be calculated after payment from the sale price the amounts referred to in Orders 6.1 to 6.3 inclusive;
c. 1/3rd of the proceeds relating to H Street, Suburb J with such sum to be calculated after payment from the sale price the amounts referred to in Orders 6.1 to 6.3 inclusive;
d. 1/3rd of the proceeds relating to K Street, Suburb G with such sum to be calculated after payment from the sale price the amounts referred to in Orders 6.1 to 6.3 inclusive;
e. 1/3rd of the proceeds relating to L Street, Suburb G with such sum to be calculated after payment from the sale price the amounts referred to in Orders 6.1 to 6.3 inclusive;
f. 50% of the proceeds relating to Y Street, Suburb Z with such sum to be calculated after payment from the sale price the amounts referred to in Orders 6.1 to 6.3 inclusive; and
6.4.9 Subject to the first respondent having paid any costs order made pursuant to Order 17, and subject to her having paid the payment to the husband pursuant to Order 5 the balance then remaining to be paid to the First Respondent.
(7)That the wife shall pay to the husband $541,000 (“the payment”) and contemporaneously with the payment the Applicant shall do all acts and things necessary including to sign all documents, instruments and writing necessary to transfer to the First Respondent at her expense all of his right, title and interest to the property known as BB Street, Suburb CC in Region W.
(8)Unless otherwise agreed in writing the payment shall be paid by paying to the husband the first $541,000 the wife would otherwise receive pursuant to Order 6.4.9 but for this Order.
(9)IT IS DECLARED that any Partnership of which all the parties are/were partners is dissolved at 30 June 2022.
(10)The First and Second Respondent shall share equally and pay the Commissioner of Taxation any income tax and penalties which are owing or become owing by the Applicant in relation to any any Partnership distribution to him for the year ended 20 June 2023 and thereafter and/or all rental income derived from any real property held in his name as and from 29 August 2022.
(11)The husband transfer to the First Respondent at her expense all of his right, title and interest in and to:
11.1 VV Company formerly trading as UU Company and/or the partnership operating under the joint names of all 3 parties;
11.2 The QQ Business;
11.3 The apartment in Country DD at GG Street; and
11.4 The bank account held in the names of the parties with the FF Bank in Country DD.
(12)The husband shall retain the collection in his possession.
(13)The husband and wife shall each retain to the exclusion of the other all their right, title and interest in and to 1 of the 2 burial plots they own.
(14)IT IS DECLARED that the second respondent’s legal and equitable interest in the following investment properties at all relevant times and in particular as at the date of their sale pursuant to Orders made in this Court is as follows:
14.1 A 1/3rd interest in X Street, Suburb G;
14.2 A 1/3rd interest in F Street, Suburb G;
14.3 A 1/3rd interest in H Street, Suburb J;
14.4 A 1/3rd interest in K Street, Suburb G;
14.5 A 1/3rd interest in L Street, Suburb G; and
14.6 A 50% interest in Y Street, Suburb Z.
(15)Unless otherwise specified in this Agreement, the husband and wife are each solely entitled to the exclusion of the other to all other property and chattels of whatever nature and kind in their possession and for this purpose:
15.1 Bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s records;
15.2 Insurance policies are deemed to be in the possession of the beneficiary;
15.3 Superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
15.4 Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
(16)That the First and Second Respondents be and are hereby permanently restrained from taking any further step in proceedings numbers SC … and SC … in the Supreme Court in relation to the legal and equitable ownership of the real properties referred to in Order 6 save and except to deal with any costs application sought by the Respondent to those proceedings being the Applicant in these proceedings.
(17)The First and Second Respondents shall pay the Applicant’s costs of and incidental to these proceeding on an indemnity basis.
Respondents’ balance sheet
Description Ownership Mr Dias’s value Ms Dias’s value Mr B Dias’s value ASSETS 1 BB Street, Suburb CC Region W Ms Dias Nil $850,000.00 Nil 1a WW Street, Suburb XX Region W Mr Dias $950,000.00 Nil Nil 2 Net proceeds of sale of Y Street, Suburb Z Region W, being $446,486.68 held in N Lawyers Trust Account. Mr Dias, Ms Dias, Mr B Dias $1 $89,297.34 $357,189.34 3 Net proceeds of sale of X Street, Suburb G Region W, being $688,108.07 held in N Lawyers Trust Account. Mr Dias, Ms Dias, Mr B Dias $1 $137,621.61 $550,486.46 4 Net proceeds of sale of K Street, Suburb G Region W, contract $685,000 exchanged on 2023.09.09 and awaiting settlement for funds of $NK to be held in N Lawyers Trust Account. Mr Dias, Ms Dias, Mr B Dias $1 0.2 ($NK-$1) 0.8 ($NK-$1) 5 Net proceeds of sale of L Street, Suburb G Region W, contract of $662,500 exchanged on 2023.09.30 and awaiting settlement for funds of $NK to be held in Mr N Lawyers Trust Account. Mr Dias, Ms Dias, Mr B Dias $1 0.2 ($NK-$1) 0.8 ($NK-$1) 6 Net proceeds of sale of F Street, Suburb G Region W, being $NK held in N Lawyers Trust Account. Mr Dias, Ms Dias, Mr B Dias $1 $1 $NK-$2 7 Net proceeds of sale of H Street, Suburb J Region W, being $NK held in N Lawyers Trust Account. Mr Dias, Ms Dias, Mr B Dias $1 0.2 ($NK-$1) 0.8 ($NK-$1) 8 Cemetery plots Mr Dias $25,588.00 Nil Nil 9 Property in Country DD Mr Dias $100,000.00 Nil Nil 9a Properties in Country YY, in Country ZZ, or another location Mr Dias NK Nil Nil 10 Bank account of Mr Dias. Mr Dias $2,340.00 Nil Nil 11a Funds from NAB account of Mr Dias, Ms Dias and Mr B Dias of $54,180.72 transferred into Elringtons Lawyers Trust Account NAB …68, Acc No. …65 on 2023.03.20. Funds include Ms Dias and Mr B Dias superannuation withdrawals, Ms Dias and Mr B Dias salaries, Ms Dias inheritance, Mr B Dias. Mr Dias, Ms Dias, Mr B Dias Nil Nil $54,180.72 11b Funds from NAB account of Ms Dias and Mr B Dias of $151,000.00 transferred into Elringtons Lawyers Trust Account NAB …68, Ace No. …65 on 2023.03.20. Funds include Ms Dias and Mr B Dias superannuation withdrawals, Ms Dias and Mr B Dias salaries, Ms Dias inheritance, Mr B Dias. Ms Dias, Mr B Dias Nil Nil $151,000.00 12 NAB Retirement account of Ms Dias and Mr B Dias Ms Dias, Mr B Dias Nil Nil Nil 13 NAB Classic Banking account of Mr B Dias Mr B Dias Nil Nil Nil 14 Funds in Country DD Mr Dias Not disclosed Nil Nil 15 UU Company Mr Dias $19.00 Nil Nil 16 QQ Business membership Mr Dias, Ms Dias Nil Nil Nil 17 Collectibles. Value stated on Mr Dias dated 2023.10.03, sealed 2023.10.05 09:01 which have all been taken by Mr Dias on 2023.01.20. Collection cost was E$2,500,000. Entire collection was taken by Mr Dias. 2023.03.16 email of Mr Dias states the value of one item, which does not include the other item, is $1m ($1,000,000.00). Mr Dias $8,700.00 Nil Nil 18 Collection retained by Ms Dias and/or Mr B Dias. Ms Dias, Mr B Dias Nil Nil Nil 19 Motor Vehicle 1 Ms Dias, Mr B Dias Nil $58.00 $5,742.00 19a Motor Vehicle 2 Mr B Dias Nil Nil $2,200.00 20 Notional unpaid/unearned interest on trust funds in Elringtons Lawyers Trust Account Mr Dias, Ms Dias Nil Nil Nil Assets subtotal NK NK NK ADDBACKS 20a Interest rate of 11.06% p.a. compounded monthly on funds transferred into Elrington Lawyers Trust Account. The rate is the rate the Government, Revenue Office, Land Tax Assessment Notice of 2023.06.08. $12,105.38 interest as at 2023.09.25. Mr Dias Nil $12,105.38 Nil 20b ANZ account of Mr Dias, with address of BG and EG. BSB …, Account No. …79. Mr Dias Nil $11,006.06 Nil 20c Stamps cost prices Mr Dias Nil $1,000,000.00 $250,000.00 20d NAB Personal Credit Card of Mr Dias payments from joint NAB account 2019.10.22-2022.10.24 Mr Dias Nil $296,150.03 Nil 21 Undisclosed withdrawals 2022.01.24-2023.07.21 Ms Dias, Mr B Dias Nil Nil Nil 22 Undisclosed withdrawals after 2023.07.21 Ms Dias, Mr B Dias Nil Nil Nil 23 Undisclosed cash received from rental properties since at least 2022.08.29 Mr B Dias Nil Nil Nil 23a Mr Dias partnership distribution 2009.07.01-2022.06.30 Mr Dias Nil $255,259.00 Nil 23b 2022.06.30 medical expenses 2021.07.01-2022.06.30 (1 year) for Mr Dias Mr Dias Nil $27,834.92 Nil 23c 2022.12.06 For the 5 month period to 6 December 2023, (some of) Mr Dias’s expenses was $13,422.40. If this was used to calculate Mr Dias’s expenses for the year ending 30 June 2023, Mr Dias’s expenses would be $32,213.76. Mr Dias Nil $13,422.40 Nil 23d 1975 Ms Dias’s scholarship Ms Dias Nil $1,500 Nil 23e 1998 Mr B Dias Mr B Dias Nil Nil $4,000.00 23f Mr Dias’s brother Mr AB medical expenses, house repairs, overseas trip. Mr Dias Nil $15,000.00 Nil 23g 2019.07.07 Mr Dias not working since 1991 and travel each and every year from 1991-2020. Mr Dias Nil $80,000.00 Nil 23h 2022.08.18 14:51 Mr Dias taking items in collusion with Ms AC Mr Dias Nil Undisclosed by Mr Dias Undisclosed by Mr Dias 23i 2022.07.01 Mr Dias tax invoices purchases from QQ Business 2022.07.01-2023.09.07 Mr Dias Nil $6,593.91 Nil 23j 2023.09.04 Centrelink Family Tax Benefit (“FTB”) Income Statement for Mr B Dias’s children. Mr Dias Nil Nil $246,700 23k 2023.09.12 Rates for BB Street, Suburb CC Region W, 2023.07.01-2024.06.30 Mr Dias Nil $2,792.86 Nil 23l Funds in Country DD Mr Dias Nil $40,000.00 Nil 23m Undisclosed funds in bank/financial accounts of Mr Dias in Country YY, in Country ZZ, in cryptocurrency, or another account. Mr Dias Nil NK Nil Addbacks subtotal Nil NK NK LIABILITIES 24 Tax liability including capital gains Mr Dias NK Nil Nil 25 Capital Gains Tax (“CGT”) Ms Dias, Mr B Dias Nil E$300,000.00 E$300,000.00 26 Supreme Court fees Ms Dias, Mr B Dias Nil E$20,000.00 E$20,000.00 27 Property selling, marketing, conveyancing fees Ms Dias, Mr B Dias Nil E$60,000.00 E$60,000.00 28 Share of rates/land tax/water Order 11 of Orders dated 2023.07.06 Mr Dias, Ms Dias Nil Nil Nil 29 Legal fees Mr Dias Nil Nil Nil 30 Technology investment Ms Dias, Mr B Dias Nil E$1000,000.00 E$500,000.00 31 Repairs to BB Street, Suburb CC Region W Valuers report showed ceiling fallen in and other concerns Ms Dias Nil E$250,000.00 Nil 32 Credit card Mr Dias Nil Nil Nil 32a MasterCard Credit Card Mr B Dias Nil Nil Nil 32b Acquire a family home Mr B Dias Nil Nil $1,200,000 32c Family Tax Benefit (“FTB”) Mr B Dias Nil Nil $30,000 Liabilities subtotal Nil E$730,000 E$2,110,000 SUPERANNUATION Name of Fund Member Mr Dias’s value Ms Dias’s value Mr B Dias’s value 33 Superannuation Fund 3 Ms Dias Nil $230.00 Nil 34 No disclosure documents from Mr Dias Mr Dias Not disclosed Nil Nil 34a Superannuation Mr B Dias Nil Nil $80,000.00 Superannuation subtotal Nil $230.00 $80,000.00 FINANCIAL RESOURCES Description Ownership Mr Dias’s value Ms Dias’s value Mr B Dias’s value 35 No disclosure documents from Mr Dias Mr Dias Not disclosed 36 Financial resources subtotal Not disclosed Nil Nil OTHER Description Ownership Mr Dias’s value Ms Dias’s value Mr B Dias’s value No disclosure documents from Mr Dias Mr Dias Not disclosed Other subtotal Not disclosed Nil Nil TOTAL (assets + addbacks – liabilities + superannuation + financial resources + other) NK NK NK Respondent wife’s minute of orders sought
1.That Mr Dias has cognitive impairment since 29 April 2020.
2.That any ‘Power of Attorney’, enduring or otherwise, of Mr Dias dated on or after 29 April 2020 be revoked effective at the time they were signed.
3.That the ‘Enduring Power of Attorney’ of Mr Dias dated 8 September 2012 be valid and effective.
4. That Land Titles instrument number … lodged at … on 12 January 2023 be revoked at the time they were lodged.
5.That Land Titles instrument number … lodged at …on 12 January 2023 be revoked at the time they were lodged.
6.Transfer of property at BB Street, Suburb CC, Region W
7. That the Registrar of the Federal Circuit and Family Court of Australia be appointed to execute all deeds, documents and instruments in the name of the Applicant, MR DIAS and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments to transfer (without encumbrances, caveats, etc) to the First Respondent, MS DIAS all his right, title and interest to the property known as BB Street, Suburb CC, Region W (Volume … Folio …; Suburb CC Section … Block …), including but not limited to signing the Land Titles Transfer Form 052 - T (“Transfer form”) pursuant to sections 78 and 80 of the Family Law Act 1975.
8. Sale of rental properties being:
(a) X Street, Suburb G Region W;
(b) Y Street, Suburb Z Region W;
(c) K Street, Suburb G Region W;
(d) H Street, Suburb J Region W;
(e) L Street, Suburb G Region W; and
(f) F Street, Suburb G Region W.
9. That the net proceeds of the sale of each property, listed in Order 1 of the Orders dated 6 July 2023, held in conveyancer’s trust account be disbursed as follows:
(a)One dollar ($1) to the Applicant, MR DIAS; and
(b) The balance equally between the First Respondent, MS DIAS and the Second Respondent, MR B DIAS.
10. That the Second Respondent, MR B DIAS, remain as the solely appointed Trustee (the “Trustee”) for the sale of the properties pursuant to Order 1 of the Orders dated 6 July 2023.
11. That Mr M, of Mr M Solicitors Suburb O, Region W remain as the conveyancing solicitor (the “conveyancer solicitor”) for the sale of all the properties pursuant to Order 3 of the Orders dated 6 July 2023.
12. That Ms P of Q Company Suburb R, remain as the listing agent (the “listing agent”) for the sale of all properties pursuant to Order 6 of the Orders dated 6 July 2023.
13. That the properties shall remain listed for sale by auction in accordance with the Orders dated 6 July 2023 with the reserve price and timing of auction to be in accordance with the Orders dated 6 July 2023 in conjunction with consultation between Ms P and MR B DIAS pursuant to Order 7 of the Orders dated 6 July 2023.
14. That the sale price of the properties shall be an amount in excess of the reserve price, however in the event that the reserve price is not reached, the sale price of the property shall be any offer received after the auction to buy the properties at a price that is at least 90% of the reserve price or a price as agreed between MR B DIAS and the purchaser pursuant to Order 8 of the Orders dated 6 July 2023.
15. That MR DIAS and MS DIAS be restrained from interfering with the sale of the properties by any means and by contact the listing agent or the conveyancing solicitor throughout the sale process unless with the written consent of MR B DIAS pursuant to Order 10 of the Orders dated 6 July 2023.
16. Upon completion of the sale of each of the properties, the proceeds of sale shall be applied in the following manner and priority:
(a) The payment of the agents commission and advertising or other expenses if any, including but not limited to the payment of any council and water rates, maintenance levies outstanding in respect to the properties and any other outgoing payable on sale;
(b) The payment of the legal costs and outlays relating to the sale;
(c) The payment of any expenses to be reimbursed to an auctioneer if any; and
(d) The net proceeds of sale to be disbursed as follows:
i. One dollar ($1) to the Applicant, MR DIAS; and
ii. The balance equally between the First Respondent, MS DIAS and the Second Respondent, MR B DIAS.
17. That Order 8 of the Orders dated 17 March 2023 which states “Until further order, from the funds held on trust, pursuant to section 77 of the Family Law Act, by way of urgent maintenance the Applicant Husband’s solicitors be at liberty to transfer the sum of $2,100 per week to the [AE Aged Care facility] to be applied to the housing and care of the Applicant Husband at that facility.” Be discharged pursuant to section 83 of the Family Law Act 1975.
18. Costs
19.That any costs agreements or provision of any costs agreement entered into between Mr Dias and S Lawyers of Suburb T be set aside under section 288 of the Legal Profession Act.
20.That any costs agreements or provision of any costs agreement entered into between Mr Dias and U Lawyers of City E be set aside under section 288 of the Legal Profession Act.
21.That any costs agreements or provision of any costs agreement entered into between Mr Dias and Elringtons Lawyers of Suburb V be set aside under section 288 of the Legal Profession Act.
22.That any costs agreements or provision of any costs agreement entered into between Mr Dias and any legal professional be set aside under section 288 of the Legal Profession Act.
23.That Order 9 of the Orders dated 17 March 2023 which states “The Applicant Husband’s costs be reserved.” be discharged.
24.That Cost Notices of the Applicant (if any) be dismissed.
25. That the Applicant, MR DIAS be liable for all costs, including but not limited to taxation of costs, indemnity costs, court proceeding costs and legal representation.
26. Funds transferred into Elringtons Lawyers Trust Account
27. Within 2 banking days of the date of these Orders, Applicant, MR DIAS do all things necessary to transfer the sum of
$54,098.88$54,180.72 transferred into Elringtons Lawyers’ Trust Account pursuant to Order 2 of the Orders dated 17 March 2023 into the joint account of the First Respondent, MS DIAS and Second Respondent, MR B DIAS (BSB number …, Account number …00) pursuant to sections 80 and 106B of the Family Law Act 1975.28. Within 2 banking days of the date of these Orders, the Applicant, MR DIAS do all things necessary to transfer the sum of $151,000.00 transferred into Elringtons Lawyers’ Trust Account pursuant to Order 7 of the Orders dated 17 March 2023 into the joint account of the First Respondent, MS DIAS and Second Respondent, MR B DIAS (BSB number …, Account number …00) pursuant to sections 80 and 106B of the Family Law Act 1975.
29. Within 2 banking days of the date of these Orders, the Applicant, MR DIAS do all things necessary to transfer the reasonable amount of interest accrued (Land Tax Assessment from the Government with interest rate of 11.06% p.a. compounded monthly) of $12,105.38 as at 25 September 2023 on the funds transferred into Elringtons Lawyers’ Trust Account pursuant to Orders 2 and 7 of the Orders dated 17 March 2023 into the joint account of the First Respondent, MS DIAS and Second Respondent, MR B DIAS (BSB number …, Account number …00) pursuant to sections 80 and 106B of the Family Law Act 1975.
30. Funds taken from the Respondents and deposited into ANZ account of the Applicant
31. Within 2 banking days of the date of these Orders, the Applicant, MR DIAS do all things necessary to transfer the sum of $11,006.05 deposited into his personal ANZ Bank Account (BSB: …; Account number: …79) with the address of Mr AD and Ms AC (of WW Street, Suburb XX, Region W) into the joint account of the First Respondent, MS DIAS and Second Respondent, MR B DIAS (BSB number …, Account number …00, pursuant to section 106B of the Family Law Act 1975.
32. Collection
33. That the cost price of the collectibles which have been taken by MR DIAS, MR DIAS pay MS DIAS $1,050,000.00.
34. Vexatious acts
35. That MR DIAS pay the reasonable cost of compensation (for his acts which lack grounds, harass and malice, disregard court orders and processes and abuse of the discovery process) to MS DIAS.
36. That MR DIAS be declared a vexatious litigant under section 67A of the Supreme Court Act 1933.
37. Maintenance
38. That there be no order as to maintenance, and no relief for or agitation of maintenance can be pressed for or sought in the future.
39. Subpoenaed material
40. That the First Respondent, MS DIAS be granted permission to provide the Law Society material in relation to the subpoena filed on 19 June 2023, including but not limited to the document returned by National Australia Bank Ltd (the “NAB”).
41. That the First Respondent, MS DIAS be granted permission to provide the Law Society material in relation to the subpoena filed on 18 July 2023, including but not limited to the document returned by National Australia Bank Ltd (the “NAB”).
42.That compensation for damages be awarded to the First Respondent, MS DIAS.
Second Respondent’s minute of orders sought
1.That Mr Dias has cognitive impairment since 29 April 2020.
2.That any ‘Power of Attorney’, enduring or otherwise, of Mr Dias dated on or after 29 April 2020 be revoked effective at the time they were signed.
3.That the ‘Enduring Power of Attorney’ of Mr Dias dated 8 September 2012 be valid and effective.
4. That Land Titles instrument number … lodged at … on 12 January 2023 be revoked at the time they were lodged.
5.Transfer of property at BB Street, Suburb CC Region W.
6. That the Registrar of the Federal Circuit and Family Court of Australia be appointed to execute all deeds, documents and instruments in the name of the Applicant, MR DIAS and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments to transfer (without encumbrances, caveats, etc) to the First Respondent, MS DIAS all his right, title and interest to the property known as BB Street, Suburb CC, Region W (Volume … Folio …; Suburb CC), including but not limited to signing the Land Titles Transfer Form 052 - T (“Transfer form”) pursuant to sections 78 and 80 of the Family Law Act 1975.
7. Sale of rental properties being:
(a) X Street, Suburb G, Region W;
(b) Y Street, Suburb Z, Region W;
(c) K Street, Suburb G, Region W ;
(d) H Street, Suburb J, Region W;
(e) L Street, Suburb G, Region W; and
(f) F Street, Suburb G, Region W.
8. That the net proceeds of the sale of each property, listed in Order 1 of the Orders dated 6 July 2023, held in conveyancer’s trust account be disbursed as follows:
(a)One dollar ($1) to the Applicant, MR DIAS; and
(b) The balance equally between the First Respondent, MS DIAS and the Second Respondent, MR B DIAS.
9. That the Second Respondent, MR B DIAS, remain as the solely appointed Trustee (the “Trustee”) for the sale of the properties pursuant to Order 1 of the Orders dated 6 July 2023.
10. That the Trustee, MR B DIAS is not required to keep the Applicant, MR DIAS updated and informed in relation to the sale of the properties.
11. That Mr M, of N Lawyers Suburb O Region W remain as the conveyancing solicitor (the “conveyancer solicitor”) for the sale of all the properties pursuant to Order 3 of the Orders dated 6 July 2023.
12. That Ms P of Q Company Suburb R, remain as the listing agent (the “listing agent”) for the sale of all properties pursuant to Order 6 of the Orders dated 6 July 2023.
13. That the properties shall remain listed for sale by auction in accordance with the Orders dated 6 July 2023 with the reserve price and timing of auction to be in accordance with the Orders dated 6 July 2023 in conjunction with consultation between Ms P and MR B DIAS pursuant to Order 7 of the Orders dated 6 July 2023.
14. That the sale price of the properties shall be an amount in excess of the reserve price, however in the event that the reserve price is not reached, the sale price of the property shall be any offer received after the auction to buy the properties at a price that is at least 90% of the reserve price or a price as agreed between MR B DIAS and the purchaser pursuant to Order 8 of the Orders dated 6 July 2023.
15. That MR DIAS and MS DIAS be restrained from interfering with the sale of the properties by any means and by contact the listing agent or the conveyancing solicitor throughout the sale process unless with the written consent of MR B DIAS pursuant to Order 10 of the Orders dated 6 July 2023.
16. Upon completion of the sale of each of the properties, the proceeds of sale shall be applied in the following manner and priority:
(a) The payment of the agents commission and advertising or other expenses if any, including but not limited to the payment of any council and water rates, maintenance levies outstanding in respect to the properties and any other outgoing payable on sale;
(b) The payment of the legal costs and outlays relating to the sale;
(c) The payment of any expenses to be reimbursed to an auctioneer if any; and
(d) The net proceeds of sale to be disbursed as follows:
i. One dollar ($1) to the Applicant, MR DIAS; and
ii. The balance equally between the First Respondent, MS DIAS and the Second Respondent, MR B DIAS.
17. That Order 8 of the Orders dated 17 March 2023 which states “Until further order, from the funds held on trust, pursuant to section 77 of the Family Law Act, by way of urgent maintenance the Applicant Husband’s solicitors be at liberty to transfer the sum of $2,100 per week to the AE Aged Care facility to be applied to the housing and care of the Applicant Husband at that facility.” Be discharged pursuant to section 83 of the Family Law Act 1975.
18. Costs
19.That any costs agreements or provision of any costs agreement entered into between Mr Dias and S Lawyers of Suburb T be set aside under section 288 of the Legal Profession Act.
20.That any costs agreements or provision of any costs agreement entered into between Mr Dias and U Lawyers of City E be set aside under section 288 of the Legal Profession Act.
21.That any costs agreements or provision of any costs agreement entered into between Mr Dias and Elringtons Lawyers of Suburb V be set aside under section 288 of the Legal Profession Act.
22.That any costs agreements or provision of any costs agreement entered into between Mr Dias and any legal professional be set aside under section 288 of the Legal Profession Act.
23.That Order 9 of the Orders dated 17 March 2023 which states “The Applicant Husband’s costs be reserved.” be discharged.
24.That Cost Notices of the Applicant (if any) be dismissed.
25. That all costs in contravention proceeding be against MR DIAS.
26. That the Applicant, MR DIAS be liable for all costs, including but not limited to taxation of costs, indemnity costs, court proceeding costs and legal representation.
27. Funds transferred into Elringtons Lawyers Trust Account
28. Within 2 banking days of the date of these Orders, Applicant, MR DIAS do all things necessary to transfer the sum of
$54,098.88$54,180.72 transferred into Elringtons Lawyers’ Trust Account pursuant to Order 2 of the Orders dated 17 March 2023 into the joint account of the First Respondent, MS DIAS and Second Respondent, MR B DIAS (BSB number …, Account number …00) pursuant to sections 80 and 106B of the Family Law Act 1975.29. Within 2 banking days of the date of these Orders, the Applicant, MR DIAS do all things necessary to transfer the sum of $151,000.00 transferred into Elringtons Lawyers‘ Trust Account pursuant to Order 7 of the Orders dated 17 March 2023 into the joint account of the First Respondent, MS DIAS and Second Respondent, MR B DIAS (BSB number…, Account number …00) pursuant to sections 80 and 106B of the Family Law Act 1975.
30. Within 2 banking days of the date of these Orders, the Applicant, MR DIAS do all things necessary to transfer the reasonable amount of interest accrued (Land Tax Assessment from the Government with interest rate of 11.06% p.a. compounded monthly) of $12,105.38 as at 25 September 2023 on the funds transferred into Elringtons Lawyers’ Trust Account pursuant to Orders 2 and 7 of the Orders dated 17 March 2023 into the joint account of the First Respondent, MS DIAS and Second Respondent, MR B DIAS (BSB number …, Account number …00) pursuant to sections 80 and 106B of the Family Law Act 1975.
31. Funds taken from the Respondents and deposited into ANZ account of the Applicant
32. Within 2 banking days of the date of these Orders, the Applicant, MR DIAS do all things necessary to transfer the sum of $11,006.05 deposited into his personal ANZ Bank Account (BSB: …; Account number: …79) with the address of Mr AD and Ms AC (of WW Street, Suburb XX, Region W) into the joint account of the First Respondent, MS DIAS and Second Respondent, MR B DIAS (BSB number …, Account number …00) pursuant to sections 80 and 106B of the Family Law Act 1975.
33. Collection
34. That the cost price of the collectibles which have been taken by MR DIAS, MR DIAS pay MR B DIAS $250,000.00.
35. Vexatious acts
36. That due to MR DIAS’s lack of grounds, harassment and malice, disregard for court orders and processes and abuse of the discovery process he pay the reasonable cost of compensation to MR B DIAS.
37. That MR DIAS be declared a vexatious litigant under section 67 A of the Supreme Court Act 1933.
38. Maintenance
39. That there be no order as to maintenance, and no relief for or agitation of maintenance can be pressed for or sought in the future.
40. Subpoenaed material
41. That the Second Respondent, MR B DIAS be granted permission to provide the Law Society material in relation to the subpoena filed on 19 June 2023, including but not limited to the document returned by National Australia Bank Ltd (the “NAB”).
42. That the Second Respondent, MR B DIAS be granted permission to provide the Law Society material in relation to the subpoena filed on 18 July 2023, including but not limited to the document returned by National Australia Bank Ltd (the “NAB”).
43.That compensation for damages be awarded to the Second Respondent, MR B DIAS.
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