Emsden and Emsden & Anor
[2018] FamCA 136
•7 March 2018
AMENDED PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004
FAMILY COURT OF AUSTRALIA
| EMSDEN & EMSDEN AND ANOR | [2018] FamCA 136 |
| FAMILY LAW – LITIGATION FUNDING - where final property orders were made in 2008 but which were now the subject of an application under s 79A-where the court had made injunctions 2 years ago restraining the husband from using the significant funds in trust-where the Tax Commissioner has intervened and wants to recover tax from the same funds-where the husband wants a partial release of funds from the restrained property-where the wife’s s 79A application was vague and the grounds unclear-where there is importance in considering the merits of her claim on the husband’s application where candour is critical in an ex parte application but so too, in a discharge or alteration of that order-where there were unanswered questions-application refused. | |
| Family Law Act 1975 (Cth) | |
Bywater Investments Limited v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation [2016] HCA 45
Lane & Lane [2016] FamCAFC 53, (2016) FLC 93-699
Stanford v Stanford (2012) 247 CLR 108
| Strahan & Strahan (Interim property orders) [2009] FamCAFC 166 Thomas A. Edison Ltd v. Bullock (1912) 15 CLR 679 |
| APPLICANT: | Ms Emsden |
| RESPONDENT: | Mr Emsden |
| INTERVENOR: | Commissioner of Taxation for the Commonwealth of Australia |
| FILE NUMBER: | MLC | 4374 | of | 2007 |
| DATE DELIVERED: | 7 March 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 2 March 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Harriss |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INTERVENOR: | Ms Mavroudis |
| SOLICITOR FOR THE INTERVENOR: | ATP Review & Dispute Resolution |
Orders
That paragraph 2 of the orders ought in the application in a case filed on 27 September 2017 by the Commissioner of Taxation for the Commonwealth of Australia is adjourned to the final hearing.
That save as to issues of costs, the interim orders sought by the husband by the response to an application in a case filed 29 November 2017 is dismissed.
That save as to issues of costs, paragraphs 1 to 9 of the response to an application in a case filed by the wife on 30 November 2017 is dismissed.
ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 6 September 2018 subject to any part heard case as a three day case.
The evidence in chief of all witnesses shall be given by affidavit.
TIMETABLE:
By 4 pm on 4 June 2018 the applicant wife file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought;
(b)all affidavits of evidence to be relied upon; and
(c)a financial statement.
The applicant wife pay all required court fees by 4 pm on 4 June 2018.
By 4 pm on 2 July 2018 the respondent husband file and serve upon all other parties:
(a) an amended response setting out with precision the orders to be sought;
(b) all affidavits of evidence to be relied upon; and
(c) a financial statement.
By 4 pm on 6 August 2018 the intervener, the Commissioner for Taxation for the Commonwealth of Australia, file and serve upon all other parties:
(a) an amended response setting out with precision the orders to be sought;
(b) all affidavits of evidence to be relied upon.
and(c) a financial statement.Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon
SUBPOENAE
All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.
By 4 pm on 4 September 2018 all parties file electronically to … a case outline in one document setting out:
(a) the outline of the issues in dispute;
(b) the list of the affidavits to be read;
(c) a concise set of orders to be sought;
(d) the list of objections to evidence requiring a ruling; and
Other than the intervener
(e) a list of assets and liabilities.AND THE PARTIES SHOULD NOTE:
A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.
B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Emsden & Emsden and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 4374 of 2007
| Ms Emsden |
Applicant
And
| Mr Emsden |
Respondent
And
Commissioner of Taxation for the Commonwealth Of Australia
(Intervener)
REASONS FOR JUDGMENT
In December 2008, in the (then) Federal Magistrates Court, final property orders were made between Mr Emsden (the husband) and Ms Emsden (the wife). The orders record that they were made by consent of the parties. The husband then did not have legal representation but the wife did as she appeared by her solicitor.
On 5 November 2015, but this time in this Court, the wife sought orders under s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”) to set aside the 2008 orders and, if that occurred, for the Court to then make an order under s 79 of the Act as might be deemed just and equitable. The husband filed a response to the wife’s application on 12 February 2016 seeking its dismissal and costs.
Unfortunately, despite numerous interlocutory hearings, the substantive application has still not been heard. Over some opposition from the husband, I propose to remedy that. The orders preceding these reasons indicate what must be done.
Along the way after the 2008 orders, there have been other disputes between the husband and wife about parenting issues. It would seem uncontroversial that the parties’ children live with the husband and their relationship with the wife is limited as to time. That may be because of geography as the husband lives in Queensland and the wife in Victoria but there have also been arguments about the wife’s mental health and drug usage. The present case is not about those matters.
To add some complexity, the Australian Taxation Commissioner has intervened because he has a dispute with the husband over taxation liabilities.
That background leads to the two issues to be determined by these reasons. They are:
(a)Should $330,000 out of $1.5m held in a solicitor’s trust account (which is subject to a court injunction) be made available to the husband for the purpose of paying his anticipated legal fees as might arise in the months ahead?
(b)Should the wife’s substantive application for relief be set down for final hearing?
The first of the two issues raises questions of whether the court’s approach should simply be one used in the litigation funding-type or partial property settlement cases (see Strahan & Strahan (Interim property orders) [2009] FamCAFC 166) or whether the matter should be approached on the basis of the variation of an injunction restraining the use of funds; or indeed, a combination of all of those concepts.
It is also necessary to know that there were other interlocutory disputes before the court including applications for other relief sought by the husband. He sought they be adjourned and only his litigation funding application (paragraph [6 (a)] above) proceed.
In dealing with the application to adjourn these matters and in particular, the substantive application of the wife, I take into account that:
·The application has been extant for a number so years;
·The determination of the wife’s application will have an impact on the Commissioner’s entitlement (if any) but also (perhaps ironically) the husband’s entitlement to the money currently impressed with the injunction;
·There have been a number of interlocutory hearings using up the Court’s resources;
·The Commissioner is still dealing with the husband’s objections to a taxation assessment and fixing a date may assist in focusing the minds of those responsible for an outcome to get organised; and
·Apart from the husband’s own statement that he has no resources to fund lawyers and cannot conduct the litigation himself because it is complex, there is no evidence to indicate the extent of his asserted impecuniosity and indeed, until only days before this hearing, the family law solicitors had continued to act for him in addition to which, he produced a memorandum of his commercial legal advice from his taxation lawyer.
There are also the interests of the wife and the Commissioner to take into account. It is trite to say that justice delayed is justice denied but in this case, the 2008 orders left the wife with little or no property of significance by comparison to what currently exists (and which may ultimately all belong to the husband anyway). To the extent that the Commissioner is only pursuing the husband for tax, if a debt crystallises, it presumably could not presently be enforced against the restrained funds in case the wife was found to have an interest at law in that money. Thus, the community has an interest in this matter being expedited.
Ultimately, the husband has to advance some reason to show that his interests would be prejudiced if he were forced to litigate. Having regard to the matters to which I turn below about how he views the strength of the cases at law which he is to meet, I consider there is no justification to delay this matter any further. That is not to say that the husband cannot get himself ready for trial as there will be some weeks to organise his evidence. To the extent that he orally maintains he cannot litigate without lawyers, I am not satisfied on any evidence that the prejudice he articulates exists. Accordingly, there is no justiciable basis to further delay these proceedings.
The interlocutory issues not dealt with by these reasons have been wandering around the court for months. Nothing I have seen indicates they have particular significance having regard to what I have just said about the need to determine all outstanding substantive issues. Those applications can be struck out and reissued if they affect the substantive matters.
Turning back to the two matters presently under consideration, for the reasons that follow, the answers to the questions are:
(a)There is not enough evidence to justify an order of the nature of the husband’s relief; and
(b)This case should be listed for trial as soon as practicable.
In simple terms, the Taxation Commissioner seeks a substantial sum from the husband. The husband disputes he owes what they claim and at present, the Commissioner is assessing the husband’s objections to the assessments.
In respect of the wife’s application under s 79A, the husband disputes any miscarriage of justice has occurred. Indeed, he denies the wife was misled in any way but further, claims she had a second opportunity to know all about the financial affairs after the 2008 orders and she was given more money.
It is important to immediately observe that there were allegations and florid statements involved in this hearing and absent some ability to accept that findings can be made on them, the court’s task is limited to what it accepts is uncontroversial.
The exercise of power relies upon the court’s capacity to make findings to justify the relief granted.
It is also unfortunate that some of the background has to be traversed because of the assertions now being made.
The husband is a businessman and inventor. He is 52 years of age. In 2017, the wife described herself as working in hospitality but otherwise was reliant on Centrelink support. The parties’ children are twins aged 13; they live with the husband. According to the husband, the wife does not provide financial support.
The wife’s present substantive application has remained unchanged since being filed in November 2015. It sought an order under s 79A(1)(a). Without reading the relevant affidavit material, one would remain ignorant of its basis. Section 79A(1)(a) provides:
Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
(the other sub-paragraphs not having been pleaded or raised are ignored)
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
It not being readily apparent what was being asserted, I asked the wife’s solicitor, to articulate the grounds for asserting there had been a miscarriage of justice in 2008. He said the wife alleged “duress, coercion and non-disclosure”.
The husband’s oral response to the wife’s claim was that it was “rubbish” and that in 2008, she well-knew what the financial position was and “got a good deal”. Only the fullness of time will enable the court to determine the correctness of either assertion but in turning to the 2008 orders, it would seem that:
(a)The wife was to receive $75,463 by 72 calendar monthly instalments of $1,048 and a motor car owned by C Pty Ltd the encumbrance on which was to be paid out by the husband. The orders noted that the wife was to “retain” the sum of $17,700 “taken by her at the time of separation”;
(b)The husband was to retain (and presumably, as it did not seem to be a s 78 declaration, the wife was to relinquish any interest in) C Pty Ltd, the product H and everything that went with it along with his car. There were relevant indemnities thereafter relating to business activities and tax.
There was also a curious order made by consent under s 77A of the Act that $35,000 of what the wife received was attributable to her maintenance. Thus, it would seem that she was not just getting a property settlement. As no time element was imported into that order, one must conclude that it was forever. How that impacts on her property entitlement is a matter for future debate but the s 77A order must be seen to have relevance.
I was not informed what the learned Federal Magistrate was told in 2008 and no transcript was provided (nor did it need to be here) but the following “notation” (and therefore not an exercise of any judicial power) appears on the order:
A.That for the purposes of these Orders, the Husband has represented to the Wife that it is his belief that [C Pty Ltd] and the [product H] have no current value. The Husband asserts that the Wife has been provided with all relevant documentation including financial information in relation to [C Pty Ltd] and the [product H] and the opportunity to undertake due diligence and a valuation in relation thereto although this is disputed by the Wife.
One must ask why the notation was necessary if both parties agreed that the orders were just and equitable. One wonders what the court thought of the Husband’s assertion that the wife had had the “opportunity” to do “due diligence” and obtain a valuation but what she saw as the need to claim that she “disputed” that she had had such an opportunity. Was the court told that, notwithstanding its order as to discovery by consent made 9 months before (at a time when both parties were represented by lawyers), the wife had been denied the “opportunity” to have disclosed to her, all of the documents that would have enabled a valuation of the entity C Pty Ltd and the nebulous piece of property known as “product H”? Was the court told by the wife’s then lawyer, as is now asserted, she was acting under duress and coercion? I suspect the answers to those questions will shed light on why the learned Federal Magistrate felt comfortable in making the orders.
These same questions guide my decision which is an exercise of discretion as to whether or not it is appropriate to vary the injunction made by Macmillan J on 24 November 2015.
The 2015 order restrained the husband from “selling, encumbering, transferring or disposing” of any interests held by him in any and all real and personal property, whether held in Australia or elsewhere, including but not limited to any chose-in-action and/or financial resource, and any and all interest in:
(a)…
(b)[C] Pty Ltd and [C] Business Trust, save in the ordinary course of business;
(c)[D] Limited, save in the ordinary course of business;
(d)[C] Superannuation Fund; and
(e)…
The injunction was made on an ex parte basis but it was of a short term duration. On 2 December 2015, both husband and wife appeared before her Honour represented by counsel. They consented to vary the injunctions slightly. On any fair reading of those injunctions, the husband could not sell, encumber, transfer or dispose of his assets. For reasons that remain unstated, he did not endeavour to challenge their continuation notwithstanding his assertions that they had been made unnecessarily on an ex parte basis.
The onus is on the husband to satisfy me that circumstances warrant an alteration to what were drastic orders particularly those involving his business if for no other reason than they have been extant for two years now.
The Commissioner submits the lack of candour of the husband does not justify any alteration and the wife asserts that the orders ought not be altered because the husband has been dishonest in his dealings hiding things from the Court. In respect of many of these florid allegations, I am unable to make findings but I have to look at what has been put forward initially by the husband to see whether he has satisfied the relevant tests.
It is significant that in contemplating the husband’s evidence and the accusations against him, it must be remembered that if the 2008 orders were an exhaustive exercise of the s 79 power in the Act, the $1.5 m presently sitting in the solicitor’s trust account should be seen as the husband’s property to do with whatever he wished. Much will ultimately depend upon what findings the Court makes about not just the actions in 2008 but their connection (if any) to the current property.
The Commissioner’s counsel’s submission was that, inter alia, the husband:
(a)has not been frank in his affidavits with respect to disclosing his financial position such as would justify or warrant the release of any funds;
(b)has not produced bank account statements/records or tax invoices/estimates from his legal advisors;
(c)has failed to mention the acquisition of two properties in Queensland, payments totalling $621,362 having been transferred from D Ltd into his bank account, payments to his lawyers and his daughters’ private school fees.
Other submissions were made on behalf of the Commissioner but it is only necessary for me to deal with those just mentioned.
The affidavit in support of the Commissioner’s application to deny the husband access to funds described how it was ascertained that the husband had “acquired” two properties in CC Town. After reading documents produced by the husband and hearing his submissions, I am not sure what finding can be made about the transactions but it is remarkable that they were not mentioned in the affidavit material which seeks a significant indulgence.
Of the relevant two properties, the husband pointed out that the first was acquired by his superannuation fund and that he had advice that he could do so apparently because the purchase was not caught by any bankruptcy laws. It seems the advice was that superannuation was not affected. That seems overly simplistic when considering where the money came from in the first place but also how, if at all, it impacts upon the wife’s claim. In addition, a bare trust was created which, it would seem, masks the ownership and whilst there are undoubtedly explanations for all this which may be legitimate, it would have been better had this all been disclosed. Even if the superannuation was not caught by the Commissioner’s claim, the same could not be said for that of the wife. If the 2008 orders were set aside, superannuation would presumably be seen as property within the meaning of the Act regardless of when it was acquired or brought into existence.
The second property is caught up in a confusing picture which was also not adequately explained. It appears that the husband was dealing with an officer in the Tax Office with a similar name to an estate agent through whom the second property was purchased. An email after the auction went by mistake to the Tax Officer and in it, the husband bragged that he had been successful and would organise payment. He made a reference to a competing bidder and to being the father at the auction with the twins. Knowing the husband’s background, those statements would have aroused the curiosity of the Tax Office. The husband’s explanation is that this was all innocent and that he was simply bragging. He maintains that his father was the purchaser. His father is a man who has been successful but who is now selling his assets so that the husband can live in a property rent-free. The wife does not accept that and her solicitor observed that there is no evidence to indicate that the money was not provided by the husband himself.
From the perspective of the Commissioner, a significant concern is that none of this financial activity had been disclosed.
The combination of all of the evidence about how much money has been circulating here at a time when the injunction was in place is disconcerting. It may be that there is a perfectly innocent explanation for that but the obvious concern raised is whether the money, if spent on lawyers to fight litigation, could be recovered. The husband acknowledged that it could not.
The husband’s submission is that the Commissioner has no case and his lawyer has advised him accordingly. In an affidavit he filed, the husband relied upon the written memorandum of advice of a Mr DD. Because of the Court’s rules about annexures, I handed the documents back to the husband which had already been served on the practitioners. I warned him that it may be that his memorandum was a waiver of privilege and consequently gave him an opportunity to seek advice. He returned to say that he was not waiving privilege. I have not read the memorandum but counsel for the Commissioner submitted that the memorandum did not take the matter very far anyway.
The nub of the husband’s submission is that he is being pursued unfairly by the Commissioner whom he said has all of the resources of the Commonwealth whilst he is being denied access to money to fight a legal battle which he maintains is complex. The Commissioner has agreed not to pursue debt recovery whilst the objection process and any negotiations are ongoing. However, the husband maintains that his case will be proved correct and that it is the same as that determined by the High Court in Bywater Investments Limited v Commissioner of Taxation; Hua Wang Bank Berhad v Commissioner of Taxation [2016] HCA 45.
In Bywater, the Federal Court held that as central management and control of various companies was exercised in Australia, they were residents of Australia for income tax purposes. The argument was that the directors were resident abroad and that is where their meeting occurred, and accordingly, the central management had to be seen as abroad. That contention was rejected. The issue became whether the central management and control was in Australia. Much depended upon what findings of fact the trial judge had reached. The trial judge had found that the central control and management was in Sydney. As such, the High Court said:
The idea that the business model of the company was so simple that all that was required for the exercise of its central management and control was to abide by (a particular person’s) directions (in Australia) is untenable……. There were numerous transactions which had to be considered and numerous decisions of consequence which had to be made about each of them. But, as Perram J found, it was (this person) who made every one of those decisions. (That person) alone organised every deposit and every loan to the related entities, and every purchase and sale of shares, and (the person) alone made each decision of consequence about the transactions and about the course of the company's business generally. There was no occasion for the directors to exercise any measure of judgment in respect of the transactions or the direction and policy of the company more generally. All the directors ever did was mechanically carry out (the person’s) directions. In truth and substance, that was an abrogation of the powers of management of the directors and in effect usurpation by (the person) of the functions of the board.
It is obvious that whilst Bywater is the authority upon which the husband’s advice seems to depend, there is interesting language in his affidavit material consistent with what was being considered in Bywater. Needless to say however, until there is a finding of fact inconsistent with those findings of Perram J, I cannot see how the authority is of any significance in assessing whether or not the Commissioner has a “nonsense” claim as the husband would have it. As I understand the facts, the Commissioner has not prosecuted proceedings and at this stage is only working out what he says the husband owes. Accordingly, the husband’s contention is of no assistance to me.
In the same vein, I can only consider the exercise of discretion to revisit the injunction in the light of the evidence each party puts forward to indicate that there is a cause to prosecute and a potential award of interest to protect. The evidence of the wife was drawn from a series of affidavits filed since 2015. The primary affidavit was filed in that year and, as I observed in the hearing, her assertions of being “pressured” and the like are not evidence of duress or coercion without more detail. There was no evidence from the solicitor who acted for the wife and who appeared before the learned Federal Magistrate. Nothing has been said to corroborate the assertions or opinions of the wife about coercion.
It would seem that the primary basis of the wife’s claim arises out of an allegation of “material” non-disclosure. “Material” has presumably been used in the sense of a significant or important document or documents and, where a solicitor was representing the wife, the obvious question arises as to why this discovery was not undertaken. The evidence of the wife was more directed to what had happened since 2008 but that focuses on issues of candour and the justification for, and maintenance of, the injunction. Thus, it is difficult for me to assess the merits of the wife’s claim. However, because this is an application to vary an injunction, I do not have to consider much because there has been no application to wholly discharge the injunction.
It is relevant to consider whether there is some merit in the wife’s claim before giving the husband some of what is apparently presently his property because I would need to know the extent of the wife’s claim if she was successful. Here, I have accepted that the wife has been given advice and is continuing her application but the evidence about that claim was not illuminating. Arrangements parties make about their property during their relationship may be based on assumptions. Did the wife presume that the husband was being open and candid? What arrangements occurred during their relationship based on assumptions which were no longer well-founded and if so, why? As the High Court has observed, it can still be assumed that any necessary or desirable adjustment can be made to their property interests consensually (Stanford v Stanford (2012) 247 CLR 108, at [44]).The evidence as to merit must focus on more than just a bad deal because otherwise, it would be easy to establish a miscarriage of justice.
The wife has two apparent grounds. In respect of the first, she must ultimately point to evidence of duress or coercion such as to vitiate consent. Consent to an order must be free and informed consent and the evidence of her then solicitor would assist.
In respect of the second ground, that relating to disclosure, failure to disclose matters peculiarly within the knowledge of a party can permit a misunderstanding on the part of the other. The “notation” to the 2008 orders is intriguing. What was suppressed and was it wilful concealment of something the husband had to disclose? Here, I do not know. (see the discussion in Lane & Lane [2016] FamCAFC 53, (2016) FLC 93-699)
The submission of both the Commissioner and the wife ultimately comes down to whether the court accepts the candour of the husband.
In Thomas A. Edison Ltd v. Bullock (1912) 15 CLR 679 Isaacs J noted the “duty” of a party asking for an ex parte injunction to tell the Court all material facts relating to the right to the injunction sought. As his Honour observed, “Uberrima fides” is required, failing which, the order would almost “invariably fall”. So too, an application, such as here, well after the event, requires comprehensive evidence to justify the exercise of discretion to alter or discharge the order. Relevant to that exercise is whether the non-disclosure of facts (here by the husband to this hearing) was serious. Had the facts not been disclosed, the order sought by the husband might have been made and had that occurred, (as the husband concedes), the money would not have been returned because it would have been spent on legal fees. Unlike partial property settlement cases, any adjustment may also not be possible here against other assets because of the amounts of the two claimants.
Thus, the evidence brought by the Commissioner about:
·What had happened in relation to the two CC Town properties;
·The payments into the husband’s banking account in 2016 and 2017;
·The transfer of significant funds to lawyers and his lifestyle;
·The husband’s capacity to orchestrate borrowings between D Ltd and C Pty Ltd as late as February 2017 relating to the CC Town purchase,
are all dismissed by the husband but these things were happening when he was saying that he had no funds.
The wife pointed to the absence of evidence about the documents associated with the liquidation of the relevant corporate entity in Asia. The husband’s family lawyer wrote to the wife’s lawyer that the documents were not within the “possession or power” of the husband but the husband could not explain what that meant or what steps he had taken to get the documents. Whilst his evidentiary position in an affidavit drawn by his lawyers was that he was not expecting there to be anything left after the liquidation concluded, must be questionable where he must have known of all of the money being transferred as claimed by the Commissioner. No explanation was forthcoming other than a dismissal of any concern being justified and in the context of the wife’s claim being “rubbish”.
The husband observed that there was not a level playing field in the litigation in the sense of his being against the might of the Commonwealth and his stridently held view that the wife had people behind her who were funding the s 79A application. All of these assertions are just that. The husband had lawyers acting for him until only days ago and there was no evidence about the potential costs and how the lawyers would propose to assist if at all. His father’s largesse in liquidating assets and providing rent-free accommodation was something that the husband was very proud to report but in respect of his father assisting him with funding to run a case which was bound to succeed, the concept was immediately rejected on the basis that the husband would not ask him.
In conclusion, based on the concession by the husband that he could not see how any money he used could be clawed back or repaid, together with my concern about the lack of a comprehensive picture required in such an application as this, the husband’s application must fail.
I certify that the preceding Fifty Three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 March 2018.
Associate:
Date: 7 March 2018
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