Forlan and Forlan
[2017] FamCA 668
•31 August 2017
FAMILY COURT OF AUSTRALIA
| FORLAN & FORLAN | [2017] FamCA 668 |
| FAMILY LAW – PROPERTY – CONTRAVENTION – Where orders of the Court restrained the husband from disposing, selling or transferring assets unless he provided the wife with a contract of sale and notice of receipt of the proceeds of sale – Where the wife alleges the husband contravened these orders on multiple occasions in relation to sales of assets – Whether the wife has established a contravention in relation to each allegation – Whether the husband has a reasonable excuse for failing to comply with the orders – Where many of the allegations of the wife are found to have been established. |
| Family Law Act 1975 (Cth) ss 112AA, 112AB, 112AC, 112AD Family Law Rules 2004 (Cth) rr 15.51, 15.64, 21.08 Supreme Court Civil Rules 2006 (SA) r 160 Supreme Court Civil Supplementary Rules2014 (SA) r 157 |
| APPLICANT: | Ms Forlan |
| RESPONDENT: | Mr Forlan |
FILE NUMBER: | ADC | 1582 | of | 2015 |
| DATE DELIVERED: | 31 August 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 31 July 2017 – 2 August 2017 |
REPRESENTATION
| COUNSEL FOR APPLICANT: | Ms Lewis |
SOLICITOR FOR APPLICANT: | Black and Wood Divorce & Family Lawyers |
| RESPONDENT: | In Person |
Orders
The Court Noted that the Contempt Application filed by the wife on 29 May 2017 was withdrawn on 31 July 2017.
The Court Noted that as to allegations 24(a), 24(b), 31 and 34 to 45 inclusive, the Contravention Application filed by the wife on 5 April 2017 was withdrawn.
The Court Found that Mr Forlan contravened orders of this Court without reasonable excuse as contended in the following allegations in the Contravention Application: 1(a), 1(b), 2(a), 2(b), 3(a), 3(b), 4(a), 4(b), 5(a), 5(b), 6(a), 6(b), 7(a), 7(b), 9(a), 9(b), 10(a), 10(b), 11(a), 11(b), 12(a), 12(b), 13(a), 16(a), 19(a), 19(b), 20(a), 20(b), 21(a), 21(b), 22(a), 22(b), 23(a), 23(b), 25(a), 25(b), 26(a), 26(b), 27(a), 27(b), 28(a), 28(b), 29(a), 29(b), 32 and 33.
The proceedings are to be listed on a date convenient to the parties and the Court in relation to consequential orders under Part XIIIA of the Family Law Act1975 (Cth) arising as a result of those findings.
Otherwise the Contravention Application filed on 5 April 2017 is dismissed.
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 Forlan & Forlan 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 ADELAIDE |
FILE NUMBER: ADC 1582 of 2015
| Ms Forlan |
Applicant
And
| Mr Forlan |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Forlan (“the wife”) alleges that on multiple occasions Mr Forlan (“the husband”) contravened without reasonable excuse, orders made by this Court on 30 November 2015, 23 February 2016 and 10 June 2016. The orders are interlocutory orders made in proceedings for settlement of property between the parties. Although they are now divorced, for convenience I will refer to the parties as the wife and the husband, respectively.
The wife commenced these proceedings by filing a Contravention Application on 5 April 2017. She filed a related Contempt Application on 29 May 2017.
The hearing
The hearing of the wife’s Applications was fixed for two days being, 31 July 2017 and 2 August 2017. On 31 July 2017 the parties were both present and the wife was represented by counsel and solicitors. Although the matter had not been fixed for hearing on 1 August 2017 or on any day after 2 August 2017, with the cooperation of the parties, arrangements were made for the hearing to continue between 11.30 am and 3.00 pm on 1 August 2017 and on 3 and 4 August 2017, if necessary.
On 31 July 2017, the wife’s counsel advised that the Contempt Application filed 29 May 2017 was withdrawn. Similarly, during the hearing, the Contravention Application was withdrawn as to allegations numbered 24(a), 24(b), 31 and 34 to 45 inclusive.
After the close of the wife’s case, the Contravention Application insofar as it contained allegations numbered 13(b) and 16(b), was dismissed. The husband was then required to present his evidence in relation to the remaining allegations.
On 2 August 2017 final submissions were made as to findings of contravention without reasonable excuse and judgment was reserved.
The husband took little meaningful part in testing the wife’s case or in presenting his own. In fact, in the unusual circumstances of this case, much of the evidence against the husband was from his own, earlier filed affidavits. He made a few objections to the wife’s affidavit, declined the opportunity to cross-examine the wife and gave scant evidence in his own case. He presented the evidence of no witnesses other than himself. Unusually, in re-examination, for the first time he gave some detailed evidence about some of the transactions that are the subject of allegations. The husband’s submissions were brief and had little direct relevance to the contravention proceedings. For some years the husband has suffered a condition that he says, adversely affects his balance and concentration. On one occasion during the trial he sought and was given a break in the proceedings because he said he was unable to concentrate.
I indicated to the parties that if required, a subsequent appearance in relation to sanctions would be conducted by electronic means from Sydney. Neither party objected to that course.
For the benefit of the husband, in that regard I obtained an indication of the nature of the sanction that would be proposed on behalf of the wife, in the event that there was a finding of a contravention without reasonable excuse. The wife’s counsel said that she would be submitting that an appropriate penalty would range from requiring the husband to enter into a bond to be of good behaviour for a period of two years to “a suspended term of imprisonment sentence on entering into a bond to be of good behaviour”.
Short history
There is no general background material in the evidence before me. I gather that the parties were married and have subsequently divorced. The substantive proceedings relate, at least in part, to settlement of property between the parties.
I understand that the parties were each involved in a number of companies. I gather that the business of at least some of the companies was the provision by hire or otherwise of equipment. There is reference in the evidence to the F Group and the Forlan/F Group. Specific companies mentioned include F1 Pty Ltd, F Pty Ltd and E Pty Ltd. The husband and the wife were directors of at least some of the companies. The husband’s father, Mr J Forlan was the founder of at least one of the companies and is the majority shareholder of at least one of the companies. I gather that one or more of the companies is now in administration.
The orders that are the subject of the contravention proceedings were in the nature of injunctions restraining or compelling the husband in relation to certain conduct in respect of assets.
The specific orders in question were as follows:
Orders made on 30 November 2015
(1)That the hearing of the interim proceedings is adjourned to 3.30pm on 29 January 2016.
…
(6)That during the period of the adjournment a mandatory injunction is granted requiring the husband to provide to the wife through her solicitor with a copy of any contract for sale of any item and if no written document confirmation of an intention to sell any item not less than seven (7) days prior to a contract being signed or an intention to dispose of, sell or transfer any item and following any sale, to confirm receipt of payment of such sale proceeds within seven (7) days of it having been received.
Orders made on 23 February 2016
…
9.That order 6 of the order made on 30th November 2015 do continue.
Orders made on 10 June 2016
…
(6)That the husband be restrained and an injunction granted requiring the husband to provide to the wife through her solicitor with a copy of any contract of sale of any item and if no written document then a confirmation of an intention to sell any item not less than seven (7) (sic) prior to a contact being signed or an intention to dispose, sell or transfer any item and following any sale to confirm receipt of payment of such sale proceeds within seven (7) days of it having been received.
…
(9)That within seven (7) days after the payment by or on behalf of the husband of any money sourced from the F Group in payment of accounts rendered by his solicitors including in addition to expenses associated with the preparation of his case, the husband pay or cause to be paid the same sum of money to the solicitors for the wife.
(10)That within forty eight (48) hours after payment by or on behalf of the husband of any money referred to in order 9 herein the husband cause to be given to the wife’s solicitors a memorandum stating the amounts so paid to his solicitors.
It is not relevant for present purposes but although the focus is apparently on the sale of plant and equipment of businesses, the injunctions are drawn so as to restrain the sale of any assets, whether associated with a company or not. Again, it is not relevant for present purposes, but the requirement in order 6 of 30 November 2015 and order 6 of 10 June 2016 to give seven days’ prior notice of forming an intention to sell, is not possible to comply with.
Credit
The only witness who gave oral evidence was the husband. The wife’s evidence was not challenged.
The husband was a very poor witness. Much of his evidence was vague. On his own evidence, he has difficulty concentrating. In the course of his written and oral evidence the husband made several inconsistent statements. For example, it was his evidence that sales of specific assets were variously undertaken by him, by his father and by staff of the family business. The husband did not call evidence from any other witnesses to corroborate his case. In respect of the husband’s father, that could have nothing to do with a lack of capacity as he had made an affidavit earlier in the substantive proceedings and it was the husband’s case that his father has effectively been running the family business, in his stead, for the last 5 years.
The law
Part XIIIA of the Family Law Act1975 (Cth) (“the Act”) deals with sanctions for failure to comply with, relevantly, orders not affecting children.
The categories of orders covered by the Part include injunctions granted under s 114 of the Act[1].
[1] See s 112AA.
Section 112AD is the operative provision of the contravention Division of that Part and it provides as follows:
FAMILY LAW ACT 1975 - SECT 112AD
Sanctions for failure to comply with orders
(1)If a court having jurisdiction under this Act is satisfied that a person has, without reasonable excuse, contravened an order under this Act, the court may make an order for the imposing, in respect of the person, of one or more of the sanctions available to be imposed under subsection (2), being a sanction or sanctions that the court considers to be the most appropriate in the circumstances.
(1A)The power given to the court under subsection (1) in respect of a contravention of a maintenance order applies even if the order has been complied with before the matter of the contravention comes before the court.
(2)The sanctions that are available to be imposed by the court are:
(a)to require the person to enter into a bond in accordance with section 112AF; or
(b)to impose a sentence by order on the person, or make an order directed to the person, in accordance with section 112AG; or
(c)to fine the person not more than 60 penalty units; or
(d)subject to subsection (2A), to impose a sentence of imprisonment on the person in accordance with section 112AE.
(2A)The court must not impose a sentence of imprisonment on the person under paragraph (2)(d) in respect of a contravention of a maintenance order unless the court is satisfied that the contravention was intentional or fraudulent.
(3)An order under subsection (1) may be expressed to take effect immediately, or at the end of a specified period or on the occurrence of a specified event.
(4)Where a court makes an order under subsection (1), the court may make such other orders as the court considers necessary to ensure compliance with the order that was contravened.
Section 112AB defines what it means to contravene an order as follows:
FAMILY LAW ACT 1975 - SECT 112AB
Meaning of contravene an order
(1) A person shall be taken for the purposes of this Part to have contravened an order under this Act if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) in any other case--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
“Reasonable excuse” is not exclusively defined but s 112AC provides an example of what might be found to be a reasonable excuse for contravening an order:
FAMILY LAW ACT 1975 - SECT 112AC
Meaning of reasonable excuse for contravening an order
(1)The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).
(2) A person (in this subsection called the respondent ) shall be taken to have had a reasonable excuse for contravening an order under this Act if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
The allegations
The Family Law Rules set out the procedure followed in contravention proceedings[2].
[2] See r 21.08 of the Family Law Rules 2004 (Cth).
The wording of the allegations was based on the wife’s Application and was settled with the wife’s counsel. In some instances the wording was changed from that used in the application to remove redundant words. In other instances leave was sought to amend the allegation. The husband agreed to the amendment in some instances, in other instances he did not agree but in my view, the change caused him no prejudice and was allowed. In one instance leave to amend was refused.
The wife’s counsel sought that the allegations be grouped so that like allegations were together and that was done. The allegations are addressed in these reasons in the sequence they were put to the husband. Save for the allegations that were withdrawn, the remaining allegations were put to the husband in turn by me.
After each allegation was put to the husband, I asked whether he admitted or did not admit the allegation. In respect of all allegations the husband responded to the effect of “Not admitted”.
I then sought concessions from the husband in relation to the case the wife had to make. As to the general aspects of the applicant’s case, the husband conceded that he had been personally served with the Contravention Application and the wife’s affidavit which were both filed on 5 April 2017. The husband also conceded that he had knowledge of the orders made on 30 November 2015, 23 February 2016 and 10 June 2016.
In relation to each allegation the husband was invited to concede that the order or orders required or prevented as the case may be, the conduct referred to in each allegation. He was then asked to concede that he undertook the conduct or failed to undertake the conduct, as the case may be, as referred to in each allegation.
I recorded the following concessions in the sequence in which the allegations were put to the husband:
Alleg’n Number Admitted/Not Admitted Orders Required Conduct Conceded 1(a)
Not admitted Conceded Not conceded 1(b)
Not admitted Conceded Not conceded 13(a)
Not admitted Not conceded Conceded but later withdrew the concession 13(b) Not admitted Not conceded Not conceded 16(a)
Not admitted Not conceded Conceded but later withdrew the concession 16(b) Not admitted Not conceded Not conceded 2(a) Not admitted Not conceded Conceded 2(b) Not admitted Not conceded Conceded 3(a) Not admitted Not conceded Conceded 3(b) Not admitted Not conceded Conceded 4(a) Not admitted Not conceded Conceded 4(b) Not admitted Not conceded Conceded 5(a) Not admitted Not conceded Conceded 5(b) Not admitted Not conceded Conceded 6(a) Not admitted Not conceded Conceded 6(b) Not admitted Not conceded Conceded 7(a) Not admitted Not conceded Conceded 7(b) Not admitted Not conceded Conceded 8(a) Not admitted Not conceded Conceded 8(b) Not admitted Not conceded Conceded 9(a) Not admitted Not conceded Conceded 9(b) Not admitted Not conceded Conceded 10(a) Not admitted Not conceded Conceded 10(b) Not admitted Not conceded Conceded 11(a) Not admitted Not conceded Conceded 11(b) Not admitted Not conceded Conceded 12(a) Not admitted Not conceded Conceded 12(b) Not admitted Not conceded Conceded 14(a) Not admitted Not conceded Conceded 14(b) Not admitted Not conceded Conceded 15(a) Not admitted Not conceded Conceded 15(b) Not admitted Not conceded Conceded 17(a) Not admitted Not conceded Conceded 17(b) Not admitted Not conceded Conceded 18(a) Not admitted Not conceded Conceded 18(b) Not admitted Not conceded Conceded 19(a) Not admitted Not conceded Conceded 19(b) Not admitted Not conceded Conceded 20(a) Not admitted Not conceded Conceded 20(b) Not admitted Not conceded Conceded 21(a) Not admitted Not conceded Conceded 21(b) Not admitted Not conceded Conceded 22(a) Not admitted Not conceded Conceded 22(b) Not admitted Not conceded Conceded 23(a) Not admitted Not conceded Conceded 23(b) Not admitted Not conceded Conceded 25(a) Not admitted Not conceded Conceded 25(b) Not admitted Not conceded Conceded 26(a) Not admitted Not conceded Conceded 26(b) Not admitted Not conceded Conceded 27(a) Not admitted Not conceded Conceded 27(b) Not admitted Not conceded Conceded 28(a) Not admitted Not conceded Conceded 28(b) Not admitted Not conceded Conceded 29(a) Not admitted Not conceded Conceded 29(b) Not admitted Not conceded Conceded 32 Not admitted Not conceded Not conceded 33 Not admitted Not conceded Not conceded 30(a) Not admitted Not conceded Not conceded 30(b) Not admitted Not conceded Not conceded
Notwithstanding the recorded concessions, the effect of the husband’s statements and evidence at various times during the hearing suggested that he resiled from some, if not all of those concessions. For example at first he conceded in relation to many counts that he committed the act alleged. At several points during the trial he later made assertions to the effect that he had mistakenly agreed that he did something when in fact someone else did that thing. In some instances he contended that he had delegated responsibility to another or to others. In some instances he suggested that someone else acted independently of his instructions or knowledge. It is possible that the husband was confused by the invitation to make concessions but that is not likely. He was aware that he is the respondent to the Contravention Application and not some other person. Whatever the situation, apart from the general concessions in relation to service and knowledge of the orders and I do not rely on the specific concessions made.
There is no specific provision in the Rules in respect of the conduct of contravention proceedings, for a finding to be made about a prima facie case. However, after the close of the wife’s case and before inviting the husband to give his evidence, I asked the wife’s counsel to satisfy me about the evidence in relation to each allegation.
Allegations 13 and 16 relate to the sale of motor vehicles and the second element of those allegations (13(b) and 16 (b)) deal with the husband’s obligation to confirm to the wife’s solicitors the receipt of sale proceeds. As with much of the wife’s case, her evidence on these allegations relies entirely on the husband’s statements in affidavits filed in the substantive proceedings. In relation to the motor vehicles, the relevant evidence is found in the husband’s affidavit affirmed 2 December 2016[3]. There the husband deposed that the vehicle with registration number … was sold by T Auctions for a net $24,989.60. The amount owing to a finance company on the vehicle was said to be $34,724.63. The husband deposed that the shortfall of $9,785.03 was paid by F Pty Ltd. Annexure MF6 to the affidavit is an invoice from T Auctions which confirms that $34,724.63 was paid to a finance company. Similarly the husband deposed that the vehicle with registration number … was sold for a net $25,500 and that the purchaser, U Motors, paid $25,000 to the finance company. Again F Pty Ltd Pty Ltd paid the shortfall, which in that case was $9,799.47.
[3] Exhibit 7 – paragraphs 57 - 71
The relevant obligation created by order 6 of the orders of 10 June 2016 was that following any sale the husband was to confirm receipt of payment of such sale proceeds within seven days of it having been received. The only evidence in relation to the relevant sales was that the husband did not receive any sale proceeds and indeed, that there were no net sale proceeds. In those circumstances neither allegation could succeed. I did not require the husband to present a case in relation to those allegations. I told the parties that the Application would be dismissed in relation to allegations 13(b) and 16(b).
In respect of the remaining allegations the husband was invited to give evidence. The husband was not formally asked to state a response to the Application but he did in relation to the allegations at various stages during the hearing.
I will deal with the allegations in the sequence in which they were put to the husband and dealt with during the trial.
Allegation 1(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 as continued by order 9 made on 23 February 2016 in that he sold equipment to the value of $243,973.60 to Q Pty Ltd on 11 March 2016 without having provided the wife with a copy of the contract of sale for that equipment seven days prior to the contract being signed.
Order 1 made on 30 November 2015 provided that the proceedings be adjourned to 29 January 2016. Relevantly, order 6 provided that during the period of the adjournment a mandatory injunction was granted requiring the husband to provide to the wife through her solicitor, a copy of any contract for sale of any item not less than seven days prior to a contract being signed.
Order 9 made on 23 February 2016 provided that order 6 made on 30 November 2015 continue. Therefore the injunction ceased to be in force on 29 January 2016 but was restored on 23 February 2016.
Exhibit 1 is a letter from the husband’s solicitors to the wife’s solicitors dated 21 March 2016 which encloses a signed copy of a contract for sale of equipment and an invoice sent by F Pty Ltd to the purchaser. The copy of the contract is not dated but the schedule to it is dated 10 March 2016 and the invoice is dated 11 March 2016. The invoice refers to a “signed business agreement”.
There is no evidence to support the contention that the scaffold in question was valued at $243,973.60 but that was the ex GST price shown on the contract. In my view, the reference to that amount in the allegation does not detract from the wife’s case in relation to this allegation.
In my view the wife has made her case. I infer from the invoice that the undated contract was signed on or before 11 March 2016. The husband was obliged to provide to the wife, through her solicitors, a copy of the contract “not less than seven days prior to” it being signed. The document should have been provided on or before 3 March 2016 and it was provided under cover of a letter dated 18 days later.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
As to whether the husband might have a reasonable excuse, in relation to this allegation, the husband gave evidence to the effect that on an unidentified day, he told an unidentified person in the office of a business to send a copy of the contract to the wife’s solicitors and, to confirm to receipt of the proceeds of sale.
There is no evidence from the husband or from anyone else, about a specific conversation or conversations the husband had with someone about delegating his responsibility under the order. No explanation was given for not calling such a person. The most likely reason that no other witness was called is that the evidence is not available or would not have assisted the husband’s case. In any event, while the husband could delegate a task to someone, he could not delegate his obligations under the order. He remained responsible for providing a copy of the proposed contract at least seven days before it was signed or for ensuring that it was done.
There was no suggestion from the husband that he did not understand the obligations imposed on him by the order. The fact that the letter of 21 March 2016 was sent, suggests that the husband understood the obligation.
It is the husband’s case in the proceedings generally that he has a medical condition as a result of which he has not been able to attend to his work, becomes confused and is unable to concentrate. I will deal with this issue under this allegation but as I understood the husband’s case, he argued that it provided an excuse in relation to all or most allegations.
The husband tendered a medico legal report. Leave was not sought to introduce the report into evidence under r 15.51 of the Family Law Rules 2004 (Cth) and the report does not meet the requirements of Part 15.5 of those Rules in several respects. The report was dated 13 April 2017 and was apparently prepared by Mr V, a Consultant Otolaryngologist. The report refers to an assessment made on 28 February 2017. The report writer is not on affidavit and the report was neither that of a treating practitioner nor was it prepared by a person in the role of single or adversarial expert appointed for the purposes of these proceedings. The author of the report was not offered for cross-examination.
In the report, beyond the husband’s own statements and “the available file data” (which is not identified) Mr V says that he relied on audiology tests by a named audiologist. He also referred to investigations by a treating ENT surgeon and two neurologists. In the report Mr V acknowledges that he has read “the Expert Witness Code of Conduct” and agrees to be bound by it. The particular code is not identified. The report was prepared in South Australia and presumably the reference was to the code applicable in that State jurisdiction. The various Commonwealth and State expert codes are similar and it would be relevant if Mr V adhered to the State code notwithstanding that the report has been tendered in a Commonwealth court. The South Australian expert witness rules are contained in the Supreme Court Civil Rules 2006 (SA) and the Supreme Court Civil Supplementary Rules 2014 (SA). The report by Mr V does not meet the requirements of the South Australian code.
For example, r 160 of the Supreme Court Civil Rules contains the following requirement:
160—Pre-trial disclosure of expert reports
…
(3)An expert report should—
(a)set out the expert's qualifications to make the report;
Rule 157 of the Supreme Court Civil Supplementary Rules contains the following requirement for expert reports:
157—Form of expert report
...
(3)If tests or experiments are relied upon by the expert in compiling the report, the report is to contain details of the qualifications of the person who carried out the tests or experiments.
In the report tendered, not only are the author’s qualifications omitted but the qualifications of the audiologist, Ms W, are not included in the report.
Despite those problems, the report was admitted into evidence (exhibit 10) without objection on behalf of the wife but I was invited to place little weight on it. Rule 15.64 of the Family Law Rules deals with some of the options available to the court in circumstances where an expert’s evidence does not comply with the rules. Among other approaches, the Court may “(c) allow the report to be relied on but take the non-compliance into account when considering the weight to be given to the expert witness's evidence”.
The report was apparently prepared for the purposes of an insurance claim. The husband did not prepare an affidavit for the purposes of these contravention proceedings and gave scant oral evidence. Therefore the only information about the history of the husband’s condition comes from Mr V’s report. The husband apparently told Mr V that during a surfing holiday in 2012 he developed an ear infection. The husband suffered vertigo, nausea and vomiting and was admitted to hospital for two days. The nausea and vomiting resolved but the vertigo persisted to the date of Mr V’s assessment. The husband told Mr V that he had been unable to return to work. His sense of balance has remained poor but he is able to walk, attend the gym and drive. He reported that his ability to continue to work in the family firm has been severely limited not only because he has been unable to carry out site work but even work in the office has been difficult because of a tendency for the vertigo to return with sudden head movements and difficulties concentrating for more than an hour (at a time). Mr V concluded that the husband has a level of unfitness for practical and office work associated with his business but has some working capacity and could look forward to a level of return to work.
The report can be given only limited weight in these proceedings. On his own case, the husband has known of his physical limitations for five years. He knew of any such limitations when the orders were made in November 2015, February 2016 and June 2016. Indeed, knowing of his condition, he suggested that obligations be imposed on him, in terms not dissimilar to those contained in the orders ultimately made. At any stage he could have told the Court that there was no purpose in restraining him because his condition prevented him from doing any of the things that were the subject of the orders or would in any event, prevent him from complying with such orders. If those problems only became apparent after a period, the husband was free to bring the matter back to Court so as to avoid further breaches. The husband has no reasonable excuse by reason of his health.
This allegation is made out.
Allegation 1(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 as continued by order 9 made on 23 February 2016 in that he failed to provide confirmation of receipt of the payment of the proceeds of sale of the equipment referred to in allegation 1(a), within seven days of that receipt.
Order 1 made on 30 November 2015 provided that the proceedings be adjourned to 29 January 2016. Relevantly, order 6 also provided that during the period of the adjournment a mandatory injunction was granted requiring the husband to confirm receipt of payment of the proceeds of a sale contemplated by that order within seven days of receipt.
Again, order 9 made on 23 February 2016 provided that order 6 made on 30 November 2015 be revived.
It is the unchallenged evidence of the wife that she first became aware that the proceeds of the sale of the equipment had been received when her solicitors received a letter dated 8 November 2016 (exhibit 6). Included in the bank statements attached to that letter were statements asserted to be for F1 Pty Ltd with the National Australia Bank for the period 1 June 2015 to 31 October 2016. The statement includes an entry for 3 June 2016 showing an interbank credit from Q Pty Ltd to F1 Pty Ltd for $96,880.48. During cross-examination the husband conceded that the credit shown in that entry represented part of the proceeds of the equipment.
It was the husband’s obligation to confirm the receipt of the funds within seven days after 3 June 2016. I note that further orders were made in these proceedings on 10 June 2016. That might have brought to the husband’s mind his ongoing obligations. The confirmation did not come until the receipt of the letter dated 8 November 2016.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 13(a)
Again, allegations 13 and 16 relate to the sale of motor vehicles.
Allegation 13(a) was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment comprising a utility vehicle registered number … to the value of $25,000 to T Auctions on 19 October 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Order 6 made on 10 June 2016 was to the following effect:
That the husband be restrained and an injunction granted requiring the husband to provide to the wife through her solicitor with a copy of any contract of sale of any item and if no written document then a confirmation of an intention to sale any item not less than seven [sic] prior to a contract being signed or an intention to dispose, sell or transfer any item…
As is referred to earlier in these reasons, the relevant evidence is found in the husband’s affidavit affirmed 2 December 2016[4]. There the husband deposed that the vehicle with registration number … was sold by T Auctions for a net $24,989.60.
[4] Exhibit 7 – paragraphs 57 - 71
As is also referred to above, the husband initially conceded that he sold the motor vehicles referred to in allegations 13 and 16. He later resiled from that concession saying that his father and/or others sold the vehicles.
The husband addressed the issue of the motor vehicles in his affidavit affirmed 2 December 2016 (exhibit 7). There he deposed as follows:
59.…During 2016 the volume of work carried out by [F] was progressively reducing mostly as a consequence of the liquidation of [E] Pty Ltd. Vehicle … had been unused for some time when I made the decision in October 2016 that it should be sold in order to relieve [F Pty Ltd] of a liability. I was making every effort to reduce other debt so that the National Australia Bank could see that funds received from trading could be applied towards regular payments of the amounts owed to the NAB in respect of the commercial bill.
60.I thought it best to sell … through an auction as that would establish the current market value.
61.It was sold by [T] Auctions on 19 October 2016.
(emphasis added)
There is no doubt that the husband did not provide the wife with a copy of the agreement he intended to enter into with T Auctions on 19 October 2016, seven days prior to entering into that agreement. The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse. It was the husband’s evidence in cross-examination that in the passage from paragraph 59 “when I made the decision in October 2016 that it should be sold” above, instead of “I”, he should have written “my staff”. I do not accept the husband’s evidence in that regard but even if it was true and the decision to sell was made by others, he apparently knew the decision had been made in October 2016. He was obliged to ensure that his obligations under the orders were complied with in relation to any such sale. In oral evidence the husband said words to the effect that he knew that “they” were going to sell the cars but he did not know when they sold them. The last proposition is meaningless given the timing of the decision to sell was made in October 2016 and the sale was affected on 19 October 2016.
At another point, the husband asserted that his father had sold the vehicles that are referred to in allegations 13 and 16. Again, there is no explanation for him not calling evidence from his father or from staff members.
This allegation is made out.
Allegation 16(a)
Allegation 16(a) was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment comprising a utility vehicle registered number ... to the value of $25,000 to U Motors on 3 November 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
I have referred to the relevant terms of order 6 made on 10 June 2016.
The husband deals with the vehicle registered number ... commencing at paragraph 66 of his affidavit affirmed 2 December 2016 (exhibit 7). There he deposed as follows:
70.Having sold the [utility] registration number … through T Auctions on 19 October 2016 I made arrangements for … to be purchased by [U] Motors for the same price but without the requirement to pay sales commission to ]T] Auctions.
71.…Annexed hereto and marked “MF7” are a copy of the disposal notice dated 3 November 2016 …
There is no doubt that the husband did not provide the wife with a copy of the agreement he intended to enter with U Motors on 3 November 2016, seven days prior to entering into that agreement. The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
The husband has no reasonable excuse for the contravention.
This allegation is made out.
Allegation 2(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $13,682.28 to X Pty Ltd on 14 July 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions and pursuant to an order made on 10 November 2016. The first entry on the table describes a sale on 14 July 2016 by F Pty Ltd of 11.087 tonne of equipment to X Pty Ltd for $13,682.28 before GST. It is the unchallenged evidence of the wife that no prior notice was given to her in respect of any of the sales of assets referred to in the table.
In the course of re-examination it was the husband’s evidence that all of the sales referred to in allegations 2 to 12, 14 and 15, 17 to 23 and 25 were effected by his father and the company sales representatives as part of the day to day running of the business. Again, the husband did not call his father or any of the sales representatives to give that evidence and I can infer that their evidence would not assist the husband. In any event, the husband knew that he was personally restrained and it was a matter for him to ensure that he was in a position to meet his obligations under the orders or to apply to the Court to be relieved of them. The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
The husband has no excuse.
This allegation is made out.
Allegation 2(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
It was the husband’s obligation to confirm the receipt of the proceeds of sale within seven days after receipt. There is no evidence that such a confirmation was ever made.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 3(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $450 to Y Pty Ltd on 13 July 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions and pursuant to an order made on 10 November 2016. There is an entry on the table describing a sale on 13 July 2016 by F Pty Ltd of equipment to Y Pty Ltd for $450 before GST.
It is the unchallenged evidence of the wife that no notice was given to her in respect of any of the sales of assets referred to in the table.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 3(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 4(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold “[equipment] to the value of $1,175 [sic]” to Z Pty Ltd on 27 July 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 27 July 2016 by F Pty Ltd of “[equip” to Z Pty Ltd for $1,715 before GST.
The husband did not object to this allegation on the basis of the transposed figures in the amount or the incorrect reference to the equipment. It is the unchallenged evidence of the wife that no notice was given to her in respect of any of the sales of assets referred to in the table.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 4(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 4(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 5(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $520 to Y Pty Ltd on 3 August 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 3 August 2016 by F Pty Ltd equipment to Y Pty Ltd for $520 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 5(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 5(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 6(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $750 to Y Pty Ltd on 8 August 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 8 August 2016 by F Pty Ltd of equipment to Y Pty Ltd for $750 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 6(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 6(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 7(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $700 to Y Pty Ltd on 19 August 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions and pursuant to an order made on 10 November 2016. There is an entry on the table describing a sale on 19 August 2016 by F Pty Ltd of equipment to Y Pty Ltd for $700 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 7(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 7(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 8(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $4,200 to AA Pty Ltd on 23 August 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 23 September 2016 by F Pty Ltd of equipment to AA Pty Limited for $4,200 before GST.
In relation to this and most of the allegations, the wife largely relies on the husband’s evidence. Albeit given late in the hearing, during re-examination the husband claimed that the equipment referred to in this allegation was not sold but that it was damaged at the client’s site by corrosive material and the payment received from AA Pty Limited was reimbursement for the loss and not for the purchase of the equipment.
Although the table annexed to the wife’s affidavit at SLF2 is headed “F GROUP SALE OF PLANT AND EQUIPMENT” the order under which it was apparently prepared, required a more general level of disclosure. As the wife sets out at paragraph 46 of her affidavit, on 10 November 2016 the Court made an order that included the following:
1.That the husband do provide in writing to the wife on or before 4:00 pm on 16 November 2016 a detailed plant and equipment register list of all plant and equipment within the power, possession or control of the [F] Group which includes the following details:
(a) specifics as to each item of plant and equipment currently held:
(b)the entity which currently owns the plant and equipment;
(c)if any items of plant and equipment have been sold or transferred to an entity outside of the [F] Group since 1 July 2016, the date of sale, the purchase details and the date and the entity which received the proceeds of sale.
(emphasis added)
The first table annexed at SLF2 seems to be aimed at meeting the requirements of Order 1(c). The order refers to dispositions made other than by way of sale but then only refers to sale documents. Notwithstanding the heading of the table, it could be argued that the table does provide information about dispositions made other than by way of sale.
There is a level of corroboration of the husband’s argument in the table annexed to the wife’s affidavit, in that the entry is “4.2 tonnes damaged [equipment]”. Of course there was no practical opportunity for the wife to test the belated evidence of the husband but that is the nature of proceedings where a respondent is not required to present a case until after the applicant’s case is closed. In these proceedings the onus falls on the applicant to establish a contravention. Here the husband was charged with a breach arising out of a sale. His evidence suggests that the transaction was something other than a sale. In my view, the wife has not established that the husband contravened the orders in the way alleged.
This allegation is not made out and will be dismissed.
Allegation 8(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 8(a) within seven days of that receipt.
Given that the wife has not established that there was a sale, the husband did not have the obligation with which he was charged.
The wife has not established that the husband contravened the order. Therefore, order 6 of 6 October 2016 did not require confirmation of the receipt of any proceeds of sale.
This allegation is not made out and will be dismissed.
Allegation 9(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $7,511 to BB Pty Ltd on 1 October 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 1 October 2016 by F Pty Ltd of equipment to BB Pty Ltd for $7,511 before GST.
I assume that the type of equipment is similar to equipment previously discussed. I refer to the findings made at paragraphs [42] to [53] above.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 9(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 9(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
It was the husband’s obligation to confirm the receipt of the funds within seven days after receipt. There is no evidence that such a confirmation was ever made.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 10(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $11,000 to BB Pty Ltd on 1 October 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 1 October 2016 by F Pty Ltd of equipment to BB Pty Ltd for $11,000 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 10(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 10(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
It was the husband’s obligation to confirm the receipt of the funds within seven days after receipt. There is no evidence that such a confirmation was ever made.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 11(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold a trailer to the value of $1,700 to Mr CC on 17 October 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 17 October 2016 by F Pty Ltd of a trailer to “[Mr C]” for $1,700 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 11(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 11(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
It was the husband’s obligation to confirm the receipt of the funds within seven days after receipt. There is no evidence that such a confirmation was ever made.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 12(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $350 to Y Pty Ltd on 18 October 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 18 October 2016 by F Pty Ltd of equipment to Y Pty Ltd for $350 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 12(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 12(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
It was the husband’s obligation to confirm the receipt of the funds within seven days after receipt. There is no evidence that such a confirmation was ever made.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 14(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold “various equipment” to the value of $10,460 to DD Pty Ltd on 24 October 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 24 October 2016 by F Pty Ltd of equipment to DD Pty Ltd for $10,460 before GST.
In relation to this item, in re-examination the husband volunteered that the transaction referred to in the allegation and the table was not a sale. It was his evidence that the equipment in question had been damaged at the client’s site and that F Pty Ltd was reimbursed for the loss.
On the same basis as the findings in respect of allegation 8(a) above, in my view, the wife has not established that the husband contravened the orders.
This allegation is not made out and will be dismissed.
Allegation 14(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 14(a) within seven days of that receipt.
Given that the wife has not established that there was a sale, the husband did not have the obligation with which he was charged.
This allegation is not made out and will be dismissed.
Allegation 15(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $890 to EE Pty Ltd on 25 October 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 25 October 2016 by F Pty Ltd of equipment to EE Pty Ltd for $890 before GST.
In relation to this item, in re-examination the husband volunteered that the transaction referred to in the allegation and the table was not a sale. It was his evidence that the equipment in question had been destroyed on a spillway at the client’s site and that F Pty Ltd was reimbursed for the loss. Unlike the findings made in respect of allegations 8(a) and 14(a), for example, there is no reference in the table annexed to the wife’s affidavit to the handrails being damaged. However, on the same basis as the findings in respect of allegation 8(a) above, in my view, the wife has not established that the husband contravened the orders.
This allegation is not made out.
Allegation 15(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 15(a) within seven days of that receipt.
On the same basis as the findings in respect of allegation 14(b), this allegation is not made out and will be dismissed.
Allegation 17(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $180 to FF Pty Ltd on 7 July 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 7 July 2016 by F Hire Pty Ltd of equipment to FF Pty Ltd for $180 before GST.
In relation to this item, in re-examination the husband volunteered that the transaction referred to in the allegation and the table was not a sale. It was his evidence that FF Pty Ltd does not buy equipment and that the equipment in question was likely a part of a large hire arrangement, that those components went missing and F Pty Ltd was reimbursed for the loss.
Unlike the findings made in respect of allegations 8(a) and 14(a) there is no reference to the couplers being damaged or lost in the table annexed to the wife’s affidavit. Nevertheless, on the same basis as the findings in respect of allegation 15(a) above, in my view, the wife has not established the proposition set out in the allegation put to the husband.
This allegation is not made out.
Allegation 17(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 17(a) within seven days of that receipt.
On the same basis as the findings in respect of allegation 15(b), this allegation is not made out and will be dismissed.
Allegation 18(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $120 to FF Pty Ltd on 12 August 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 12 August 2016 by F Hire Pty Ltd of equipment to FF Pty Ltd for $120 before GST.
Again, in relation to this item, in re-examination the husband volunteered that the transaction referred to in the allegation and the table was not a sale. It was his evidence that FF Pty Ltd does not buy equipment and that the equipment in question was likely a part of a large hire arrangement, that those components went missing and F Pty Ltd was reimbursed for the loss.
Unlike the findings made in respect of allegations 8(a) and 14(a) there is no reference to the equipment being damaged or lost in the table annexed to the wife’s affidavit.
Unlike the findings made in respect of allegations 8(a) and 14(a) there is no reference to the transoms being damaged or lost in the table annexed to the wife’s affidavit. Nevertheless, on the same basis as the findings in respect of allegation 15(a) above, in my view, the wife has not established that the husband contravened the orders.
This allegation is not made out.
Allegation 18(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 18(a) within seven days of that receipt.
This allegation is not made out and will be dismissed.
Allegation 19(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold couplers and joiners to the value of $300 to GG Pty Ltd on 19 August 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 19 August 2016 by F2 Pty Ltd of equipment to GG Pty Ltd for $300 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 19(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 19(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 20(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $1,273 to FF Pty Ltd on 24 August 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 24 August 2016 by F Hire Pty Ltd of equipment to FF Pty Ltd for $1,273 before GST.
In respect of this transaction the husband did not repeat his contention that there was no sale by reference to the assertion that FF Pty Ltd did not buy equipment.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 20(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 20(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 21(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $200 to HH Pty Ltd on 15 September 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 15 September 2016 by F Hire Pty Ltd of equipment to HH Pty Ltd for $200 before GST.
Although there is reference to the mini container being damaged in the table, the husband did not assert that this transaction was other than a sale. The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 21(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 21(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 22(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $420 to II Pty Ltd on 21 October 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 21 October 2016 by F Hire Pty Ltd of equipment to II Pty Ltd for $420 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 22(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 22(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 23(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $96 to II Pty Ltd on 27 September 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 27 September 2016 by F Pty Ltd of equipment to II Pty Ltd for $96.00 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 23(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 23(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 25(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he sold equipment to the value of $188,464.57 to JJ Pty Ltd on 28 July 2016 without having provided to the wife a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF2 to the wife’s affidavit affirmed on 5 April 2017 is a table prepared at the husband’s instructions in compliance with an order made on 10 November 2016. There is an entry on the table describing a sale on 28 July 2016 by F1 Pty Ltd of equipment to JJ Pty Ltd for $188,464.57 before GST.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above.
The husband has no excuse.
This allegation is made out.
Allegation 25(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 10 June 2016 in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 25(a) within seven days of that receipt.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 26(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) in that he sold equipment in Sydney to the value of $8,326.02 to KK Pty Ltd (proceeds of such sale banked on 2 May 2016) without having provided the wife with a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF3 to the wife’s affidavit affirmed on 5 April 2017 includes statements from the I Pty Ltd National Australia Bank accounts. Those accounts show a credit for $8,326.02 on 2 May 2016 from “KK Pty Ltd”. It is the wife’s evidence that those statements were provided to her with the letter between solicitors dated 8 November 2016 (exhibit 6). The wife was not challenged in respect of those matters.
It was the husband’s evidence that the sales in question occurred. He warned the wife’s solicitors that the equipment was going to be sold and that it would be sold on site in Sydney. However, instead of the equipment being sold in one lot, there being no security on site, the agency used by the husband in Sydney sold it in pieces. The husband said that the situation was very messy.
As was submitted on behalf of the wife, the husband’s obligation under the orders was clear. If he could not provide the required advance notice of the terms of a written agreement to sell, he was not free to enter into that agreement.
There is no doubt that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I gather that in this instance, the husband’s excuse is that the exigencies of the moment prevented compliance with the orders. It was the husband’s evidence that on one occasion he told his office manager, Ms LL, that “we” need to give the information on every sale to be passed through to my lawyers so it can be passed through to the wife’s lawyers. It is the husband’s case that the required contract was not provided to the wife’s lawyers at any time prior to November 2016 because his staff did not follow his express direction.
The husband has no reasonable excuse.
This allegation is made out.
Allegation 26(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 26(a) within seven days of that receipt.
The proceeds were banked on 2 May 2016.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt. It appears that the advice was provided with the letter of 8 November 2016.
It was the husband’s obligation to confirm the receipt of the funds within seven days after receipt. There is no evidence that such a confirmation was made at any time between May 2016 and November 2016 when the accounts were sent.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 27(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) in that he sold equipment in Sydney to the value of $48,152.35 to KK Pty Ltd (proceeds of such sale banked on 11 May 2016) without having provided the wife with a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF3 to the wife’s affidavit affirmed on 5 April 2017 includes statements from the I Pty Ltd National Australia Bank accounts. Those accounts show a credit for $48,152.35 on 11 May 2016 from KK Pty Ltd. It is the wife’s evidence that those statements were provided to her with the letter between solicitors dated 8 November 2016 (exhibit 6). The wife was not challenged in respect of those matters.
There is no doubt that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above. The husband has no reasonable excuse.
This allegation is made out.
Allegation 27(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 27(a) within seven days of that receipt.
The proceeds were banked on 11 May 2016.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt. It appears that the advice was provided with the letter of 8 November 2016.
It was the husband’s obligation to confirm the receipt of the funds within seven days after receipt. There is no evidence that such a confirmation was made at any time between May 2016 and November 2016 when the accounts were sent.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 28(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) in that he sold equipment in Sydney to the value of $36,810.00 to KK Pty Ltd (proceeds of such sale banked on 8 June 2016) without having provided the wife with a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF3 to the wife’s affidavit affirmed on 5 April 2017 includes statements from B Pty Ltd, National Australia Bank accounts. Those accounts show a credit for $36,810 on 8 June 2016. It is the wife’s evidence that those statements were provided to her with the letter between solicitors dated 8 November 2016 (exhibit 6). The wife was not challenged in respect of those matters. I note that the payer was recorded in SLF3 as “[Business 1]” rather than “[KK] Pty Ltd”. The credit is in the same amount as the sale to KK Pty Ltd and I infer that credit refers to that sale.
There is no doubt that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above. The husband has no reasonable excuse.
This allegation is made out.
Allegation 28(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 28(a) within seven days of that receipt.
The proceeds were banked on 8 June 2016.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt. It appears that the advice was provided with the letter of 8 November 2016.
It was the husband’s obligation to confirm the receipt of the funds within seven days after receipt. There is no evidence that such a confirmation was made at any time between May 2016 and November 2016 when the accounts were sent.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 29(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) in that he sold equipment in Sydney to the value of $20,000.00 to KK Pty Ltd (proceeds of such sale banked on 28 June 2016) without having provided the wife with a copy of the contract of sale or notice of his intention to sell that equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
Annexure SLF3 to the wife’s affidavit affirmed on 5 April 2017 includes statements from I Pty Ltd, National Australia Bank accounts. Those accounts show a credit for $20,000.00 on 28 June 2016. It is the wife’s evidence that those statements were provided to her with the letter between solicitors dated 8 November 2016 (exhibit 6). The wife was not challenged in respect of those matters. I note that the payer was recorded as “[Business 1]” rather than “[KK] Pty Ltd”. The credit is in the same amount as the sale price to KK Pty Ltd and I infer that credit refers to that sale.
There is no doubt that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
I refer to the findings made at paragraphs [42] to [53] above. The husband has no reasonable excuse.
This allegation is made out.
Allegation 29(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) in that he failed to provide confirmation of receipt of the proceeds of sale of the equipment identified in allegation 29(a) within seven days of that receipt.
The proceeds were banked on 28 June 2016.
It is the unchallenged evidence of the wife that the husband did not confirm receipt of the proceeds of sale of the items listed in the table within seven days of that receipt. It appears that the advice was provided with the letter of 8 November 2016.
It was the husband’s obligation to confirm the receipt of the funds within seven days after receipt.
The wife has established that the husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
Again, the husband has no reasonable excuse.
This allegation is made out.
Allegation 32
The allegation was to the effect that the husband contravened without reasonable excuse order 9 made on 10 June 2016 in that he failed to pay or cause to be paid to the solicitors for the wife the sum of $8,000 at any time but in particular, within seven days of 12 October 2016.
The wife relied on the husband’s affidavit affirmed on 8 November 2016. There the husband sets out the circumstances of his payment of $8,000 towards his solicitors fees for these proceedings. He deposed as follows:
43.I paid to my solicitors a further payment of $8,000.00 on 12 October 2016 using my NAB account #...15.
..
Source of cash for payment of $8,000 to [MM Lawyers]
45.In respect of the $,8000 payment my father deposited $10,000 cash into my said National Australia Bank account and then I made the necessary payment to [MM Lawyers].
46.This payment to me by my father occurred on 6 October 2016.
47.Earlier that day, while we were at the [Suburb K] business premises, I asked my father for $10,000 for a part payment of my legal fees.
48.He responded by asking me what I thought he had in his bank account and I answered “15,000 to $20,000”.
49.He then said “OK” and I saw him go upstairs to the office used by [Ms LL], our book-keeper.
50.I did not hear what was said by them.
…
53.I am aware of the terms of the order made on 10 June 2016 as regards any benefit I might receive from [F] about payment of legal fees.
54.I subsequently saw the bank account transaction details and saw that on 6 October 2016 my father withdrew a lump sum of $10,000 from the [F Pty Ltd] NAB account.
55.He has been a majority shareholder of that company for decades and has, from time to time, during those decades, been paid lump sums as well as his wages of $800 per week.
56.He makes the decisions to pay these lump sums to himself. I have no objection to this.
57.These lump sums are treated as salary payments and taxation is paid on them as with any salary.
58.I have received no direct benefit from F Group for the use of myself in payment of my legal fees.
It is common ground that the source of the funds used to pay the husband’s legal fees was the F Group. The husband assumes that the drawing of funds by his father on 6 October 2016 was by way of wages. He provides no evidence to support that assumption. The husband could have called his father, the company bookkeeper or could have demonstrated from the relevant company accounts that the nature of the drawing was as he assumes. He did not do that and the reason for that is most likely that he cannot. The husband could have provided some support for his assumption by demonstrating an acknowledgment that since October 2016 he owes his father $10,000. There is no such acknowledgment.
The husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
The husband has no reasonable excuse.
This allegation is made out.
Allegation 33
The allegation was to the effect that the husband contravened without reasonable excuse order 10 made on 10 June 2016 in that he failed to cause to be given to the solicitors for the wife a memorandum stating the amount paid to his solicitors on 12 October 2016.
Order 10 made on 10 June 2016 provides that within 48 hours after payment by or on behalf of the husband of any money referred to in order 9 of those orders the husband cause to be given to the wife’s solicitors a memorandum stating the amounts so paid to his solicitors.
No memorandum was provided. The husband contravened the order. He either deliberately failed to comply or he made no reasonable attempt to comply.
The husband has no reasonable excuse.
This allegation is made out.
Allegation 30(a)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) and/or order 6 made on 10 June 2016, in that in June 2016 and in addition to the sales referred to in allegations 26(a). 27(a), 28(a), and 29(a), he sold all of the remaining plant and equipment owned by I Pty Ltd without having provided the wife with a copy of the contract of sale for such plant and equipment or notice of his intention to sell that plant and equipment seven days prior to the contract being signed or the intention to sell the equipment being formed.
The wife relies on the husband’s evidence. In his affidavit affirmed on 13 May 2016 (exhibit 5) the husband deposed at paragraph 25 to the effect that I Pty Ltd owned plant and equipment which could be regarded as having a value of at least $400,000. There were sales of equipment in June 2016, resulting in proceeds being banked on 8 and 28 June 2016 (allegations 28(a) and 29(a)). However, in his affidavit affirmed on 8 November 2016 (exhibit 4) the husband deposed at paragraph 36:
36.…[I] Pty Ltd owns no plant and equipment following sales carried out in June 2016.
As I understand the wife’s case:
·the husband contends that on 13 May 2016 I Pty Ltd had assets worth at least $400,000;
·the June sales realised only $36,810 and $20,000 from KK Pty Ltd;
·if the company had no assets of value after the June sales it follows that there must have been other sales that have not been disclosed and accounted for.
It was the husband’s evidence in these proceedings, both in chief and in cross-examination that he did not recall any such sales.
It falls to the wife to establish a contravention without reasonable excuse. There is logic in the contentions made in the wife’s case in relation to this allegation but she cannot establish that the husband contravened the order. For example, he may have been inaccurate in his estimate of value in paragraph 25 of his affidavit affirmed on 13 May 2016.
This allegation is not made out.
Allegation 30(b)
The allegation was to the effect that the husband contravened without reasonable excuse order 6 made on 30 November 2015 (as continued by order 9 made on 23 February 2016) and/or order 6 made on 10 June 2016 in that in June 2016 he failed to provide confirmation of receipt of the payment of the proceeds of the sale of the equipment identified in allegation 30(a) within seven days of that receipt.
The wife has not been able to establish that the husband contravened the orders.
This allegation is not made out.
Conclusion
The wife alleged that the husband contravened orders of this Court without reasonable excuse. The orders in question were in the nature of injunctions to preserve assets and to provide notice to the wife of certain transactions. The application was withdrawn in respect of 15 allegations. I have found that the husband contravened the orders without reasonable excuse as contended for in 46 allegations. The application will be dismissed in respect of the remaining 14 allegations.
The proceedings will be restored in relation to the question of sanctions for the allegations found proved.
I certify that the preceding three hundred and seventy five (375) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 31 August 2017.
Associate:
Date: 31 August 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Breach
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Remedies
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Procedural Fairness
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