G & T - [2003] FamCA 1076

[2003] FamCA 1076

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT BRISBANE No. BRF 1335 of 2000

IN THE MATTER OF:	G	Applicant
AND	T	Respondent

REASONS FOR JUDGMENT

EX TEMPORE

CORAM:	O'REILLY J
DATE OF HEARING:	3 October 2003
DATE OF JUDGMENT:	7 October 2003

APPEARANCES:

Mr P Mylne, solicitor	Appears for Applicant
Ms J Hogan of Counsel	Appears for First Respondent
Mr Galloway of Counsel	Appears for Second and Third Respondents

Name of Case: G and T

File Number: BRF 1335 of 2000

Date of Hearing: 3 October 2003

Date of Judgment: 7 October 2003

Coram O’Reilly J

Catchwords: FAMILY LAW – INTERLOCUTORY INJUNCTIONS – whether prima facie case for s 79A relief by reason of one of the grounds specified in s 79A made out –Bigg v Suzi (1998) FLC 92-799 applied

FAMILY LAW – INTERLOCUTORY INJUNCTIONS – prima facie case for s 79A relief – a prima facie case in respect of only one ground of relief need be identified
FAMILY LAW – INTERLOCUTORY INJUNCTIONS – prima facie case for s 79A relief – duress – evidence sufficient to show a prima facie case – principles discussed
FAMILY LAW – INTERLOCUTORY INJUNCTIONS – prima facie case for s 79A relief – court may identify fraud as a potential ground where applicant has not relied on it
FAMILY LAW – INTERLOCUTORY INJUNCTIONS – prima facie case for s 79A relief – whether evidence of a miscarriage of justice – no need precisely to formulate the property orders sought in circumstances where it is necessary to inspect documents so as to know the true extent of the property pool
FAMILY LAW – INTERLOCUTORY INJUNCTIONS – TRUSTS – prima facie case for s 79A relief – necessity to show a case in law or in equity concerning trusts – necessity also to allege facts which if ultimately proved should enable the applicant to have judgment – where property held in trust – evidence sufficient to show prima facie that trust is a sham
FAMILY LAW – INTERLOCUTORY INJUNCTIONS – NECESSITY – court may assess risk of dissipation of assets by means of indirect evidence
FAMILY LAW – PRACTICE AND PROCEDURE – INTERLOCUTORY PROCEEDINGS – DISCOVERY – party entitled to early discovery where prima facie case made out – application of Order 20 rule 15 considered – jurisdiction to make early discovery pursuant to s 114(3) – ancillary order in aid of injunction – early discovery in relation to assets the subject of the injunctions
FAMILY LAW – PRACTICE AND PROCEDURE – JOINDER – Order 15 rule 3 – party joined to proceedings may apply to have joinder disallowed – procedural requirements waived where all relevant arguments put to the court – joinder not disallowed – trustee a necessary party – joinder of sole director of corporate trustee desirable for personal restraint to ensure she be personally liable for sanction if she should cause the trustee to breach the injunctions
FAMILY LAW – COSTS – Hogan order – dollar for dollar order as an alternative – principles in Zschokkev Zschokke (1996) FLC 92-693 discussed – tests for Hogan and dollar for dollar orders are not the same although some elements overlap – desirability of “level playing field”

Legislation: Family Law Act 1975 ss 79A, 114(3)
Family Law Rules O 15 rr 2, 3; O 20 rr 2, 4, 15

Cases considered: Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856
Yunghanns v Yunghanns (1999) FLC 92-836

Waugh v Waugh (2000) FLC 93-052
Bigg v Suzi (1998) FLC 92-799
Crescendo Management v Westpac (1988) 19 NSWLR 40
Cockerill v Westpac Banking Corporation (1996) 142 ALR 227
Pelerman v Pelerman (2000) FLC 93-037
ACCC v Berbatis (2003) 197 ALR 153
Gould v Gould (1993) FLC 92-434
Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Sticklen v Sticklen (unreported) No BRF12740 of 1998, 15 November 2002, Warnick J
Sticklen v Sticklen (unreported) No BRF12740 of 1998, 4 July 2003, O’Reilly J.
McDonald v McDonald (unreported) No SY2065 of 2000, 8 October 2001, O'Ryan J
McLean v McLean (unreported) No B2908 of 2001, 30 January 2003, O’Reilly J
Zschokke v Zschokke (1996) FLC 92-693

Proposed headnote:

The wife filed an application for final orders seeking that consent orders dealing with the division of the parties’ assets be set aside. This was an interlocutory application by the wife for injunctions restraining the husband and the second and third respondents from dealing with the assets of a discretionary trust, pending the resolution of her application for relief pursuant to s 79A of the Family Law Act.

The wife in her application for interlocutory orders also sought an order for the joinder of the second and third respondents. Counsel for the second and third respondents submitted that under Order 15 Rule 2 of the Family Law Rules an applicant could join a party to proceedings without the leave of the Court. The party or parties joined may then seek to have the joinder disallowed under Order 15 Rule 3. The second and third respondents did not file an application to have the joinder disallowed, however it was submitted that their resistance to the wife’s joinder application should be treated as an application for the joinder to be disallowed. It was further submitted that it would be appropriate to dispense with the need for the respondents to provide affidavits in support of the notional application for the joinder to be disallowed. Her Honour accepted the submissions in relation to the joinder of the second and third respondents, noting it would be a waste of time to dismiss the joinder application as not competent which would require the second and third respondents to apply for disallowance on a later day. The Court acted on the material set out in the wife’s application for interlocutory orders in support of the application for joinder, and the submissions from Counsel for the second and third respondents in determining whether the joinder should be disallowed.

The parties had previously separated in January 1997. They reconciled for a time, but separated on a final basis on 10 January 2000. The wife asserted that a few days after separation the husband had brought consent property orders to her house and required her to sign them. On 18 January 2000 the parties obtained consent orders from the Southport Magistrates Court, by which the wife received the sum of $15,000 inclusive of $5,000 for spousal maintenance. The wife asserted that she believed, at the time, that that was all she was entitled to.

On 11 September 1998 the V Discretionary Trust had been established. At the hearing date it owned some six properties, with the wife asserting that at least three were held by the trust during the marriage, including the former matrimonial home purchased in September 1999, and later sold in 2003. Her evidence was that the husband agreed she could remain living in the former matrimonial home following the consent orders as long as she paid the mortgage payments in the name of the trustee.

The wife’s application for relief pursuant to s 79A was based on a number of grounds including that her consent to the orders made in the Southport Magistrates Court was given under duress and that the respondent husband had failed to make full and proper disclosure of his income and assets and the existence of the V Discretionary Trust controlled by him.

The wife’s evidence showed that the husband had asserted on one occasion that the former matrimonial home was “his house”, and on another occasion “It’s my house too”. Also, there was evidence that the husband had said to the wife at about the time the trust was established that he was “putting things in place” so that “when and if we separated again” the family assets would not go to either of them. Yet, the husband was a beneficiary of the trust. Her Honour held that this evidence showed a prima facie case that the trust was a sham.

During the marriage the husband had conducted a series of businesses. The wife deposed to the husband writing off personal expenses, such as costs for the parties’ engagement party and wedding reception, as business expenses. Her Honour considered that, if accepted at trial, the husband would be shown to be a dishonest person, and that if he had this propensity he was capable, unless restrained, of defeating the wife’s claim to set aside the trust as a sham and have its assets included in the pool.

The Court also considered an application by the wife for early discovery by all of the parties. Her Honour considered the power to order discovery under Order 20 rule 4(2), and the preconditions to ordering discovery set out in rule 2. Her Honour considered an alternative source of the power to order early discovery was contained in s 114(3). Because the wife’s case depended on knowing whether the assets of the trust were potentially the property of the parties or one of them, all of the parties would be assisted by early discovery in relation to the trust assets.

Held:

1. The wife must show, on the prima facie basis, that one of the grounds for s 79A relief is made out and that “by reason of” that ground there has been a miscarriage of justice arising out of the judicial process. In order to do so, in this particular case, she was obliged to adduce evidence to show a prima facie case that there was property belonging to the parties which, by reason of one of the s 79A grounds, was not divided justly and equitably.
2.   There was sufficient evidence in the wife’s material to make out a prima facie case of duress, namely that she “chose to submit to the demand or pressure” being “illegitimate pressure” amounting to unconscionable conduct or improper motive or that her will was deflected: see Crescendo Management v Westpac (1988) 19 NSWLR 40; Pelerman v Pelerman (2000) FLC 93-037; ACCC v Berbatis (2003) 197 ALR 153.
3.   The wife must demonstrate a prima facie case that by reason of the duress, or other grounds, property was available for division which had not been divided.
4.   In order to claim that the property of the trust, or any of it, was property belonging to the parties, or either of them, the wife must find her remedy in respect of the trust at law or in equity.
5.   The wife had demonstrated on the prima facie basis that the trust was a sham. Her Honour considered the difference between the meaning of a sham and puppet trust: Gould v Gould (1993) FLC 92-434 applied.
6.   The fact that the wife’s application did not precisely set out the property orders sought did not prevent her from obtaining relief. Her claim that the “assets of the marriage be distributed on a just and equitable basis” was sufficient pending discovery in relation to the assets of the trust.
7.   There was sufficient evidence that the injunctions sought were necessary, based on the history of the matter.
8.   The tests for a Hogan order and a dollar for dollar costs order are not the same. The wife, in this case, has made out a sufficient case for the making of a dollar for dollar costs order, to ensure there was a “level playing field” in the litigation.
9. The Court has power under s 114(3) to make ancillary orders in aid of injunctions. Mandatory orders for early discovery in relation to the assets the subject of the injunctions, namely the trust assets, were able to be made as the Court considered it just and convenient to do so in the circumstances.

Applications

By application in form 3 filed on 14 August 2003 the wife G seeks interim and final orders against the husband T concerning children and property. The matter was listed last Friday for urgent injunctive relief sought by the wife concerning the final property orders she seeks and also for variation of child orders.
The wife seeks by way of final property orders that pursuant to s 79A(1) of the Family Law Act consent orders for property settlement made between the parties on 18 January 2000 be set aside on various grounds, including that the husband procured the consent orders by duress.
The wife's final orders seek that the consent orders be set aside on the following grounds:
(a)The respondent failed to make full and proper disclosure of his income and assets.
(b)The respondent failed to make full and proper disclosure of the existence of the V Discretionary Trust controlled by him.
(c)The respondent failed to make full and proper disclosure of his business interests or the value thereof.
(d)The respondent procured the consent orders by duress.
(e)The applicant was not properly represented in the entry of the consent orders.
(f)In the alternative if the applicant was so represented, she was not competently and/or properly represented.
(g)In all of the circumstances the consent orders were improperly procured.
The wife seeks by way of interim property orders the joinder to the proceedings of V Pty Ltd as the second respondent and of M, the husband’s mother, as the third respondent; injunctions against the husband, the second respondent and the third respondent in respect of the V Discretionary Trust; a Hogan order against the husband in the amount of $25,000; and that discovery by all parties be made within 14 days.
The wife seeks by way of interim child orders that the children of the marriage, B born in August 1996, now 7 years, and J born in April 1998, now 5 years, reside with her, and that in effect consent orders for contact made in the Southport Magistrates Court on 15 August 2003 be varied so that instead of the children having contact with the husband in each week from Fridays at 5.30 pm to Saturdays at 6 pm, the children have contact with the husband on alternate weekends from Saturdays at 9 am to Sundays at 4 pm.
By his response in form 3A filed on 2 October 2003 the husband seeks interim and final orders that the wife's application for property orders be dismissed, and that in respect of the children the consent orders made in the Southport Magistrates Court on 15 August 2003 be maintained.
The interim child orders sought by each party are wider than I have stated. However, in the time permitted last Friday the parties argued only the aspect of the frequency and duration of the weekend contact. I therefore propose to deal only with that aspect of the competing interim child orders.
Further, in respect of the interim property orders, Ms Hogan of Counsel who appeared for the husband made clear, as I recall her submissions, that the husband did not seek now a summary order dismissing the wife's application for property orders, but in the time available for argument only that the injunctions sought by the wife not be granted. Thus, as I understand the matter, Ms Hogan has reserved the right of the husband to seek the summary dismissal of the wife's application for s 79A relief.
Be that as it may, Ms Hogan made threshold submissions that the wife has failed to mount any arguable claim for s 79A relief so that the injunctions sought cannot be made. Thus, plainly it is necessary for me to decide whether the wife has shown a prima facie case for relief under s 79A.

Appearances

Mr Mylne solicitor appeared for the wife. Ms Hogan of Counsel appeared for the husband. Mr Galloway of Counsel appeared for the second respondent and the third respondent.

Procedural matter

Mr Galloway of Counsel correctly pointed out that under O 15 r 2 unlike in some other jurisdictions an applicant may join a party to existing proceedings without seeking leave to do so; and that under O 15 r 3 the parties so joined may apply for the joinder to be disallowed.
However, he submitted that as the wife's application for interim orders seeks an order for the joinder of the second respondent and the third respondent it would be appropriate to regard the second respondent and the third respondent's resistance to the joinder application as an application by the second respondent and the third respondent for their joinder (which is in fact made by their being named as respondents) to be disallowed.
Order 15 contains provisions requiring an applicant who has joined a party to provide an affidavit as to the basis of the joinder; and requires a party joined who seeks the disallowance of the joinder to file an affidavit in support of that application.
Mr Galloway submitted that the wife's affidavits in support of her joinder application should be regarded as her affidavits as to the basis of the joinder; and that the Court should dispense with the requirement that the second respondent and the third respondent provide affidavits upon their (notional) application that the joinder be disallowed.
I accept Mr Galloway's submissions. It would be a waste of time and resources to dismiss the wife's application for joinder as not being competent within the procedural regime contemplated by O 15; and then to require the second respondent and the third respondent to apply on another day for the disallowance of the joinder. All of the relevant arguments concerning joinder have been put to me. Although the second respondent and the third respondent have not filed any material to resist the joinder, Mr Galloway was content to argue against the joinder on the basis of the wife's and the husband's material, and indeed as I have said sought to dispense with the requirement that the second respondent and the third respondent should provide any affidavits to resist the joinder. The second respondent and the third respondent are thus bound procedurally by that stand, and in my view are now procedurally estopped from filing any application under O 15 r 3 to disallow the joinder.
Relevantly, Mr Galloway made all of his submissions against the joinder in this hearing.

Relevant background facts and observations as to the evidence relevant to the interim applications

The husband was born on in 1964 and is now 39 years. The wife was born in 1974 and is now 29 years.
The parties met in about January 1993 and were married in early 1995.
At the date of the marriage the husband was 30 years and the wife 20 years.
There are two children of the marriage, B born in October 1996 and J born in April 1998.
The wife had a child by a previous relationship, S, born in 1993.
The parties separated in January 1997 before J was born.
On 18 March 1997 the parties consented to final property orders in the Southport Magistrates Court.
The parties reconciled with the result that J was born in April 1998.
They finally separated on 10 January 2000.
On 18 January 2000, eight days later, the parties agreed to final property orders in the Southport Magistrates Court concerning their chattels and providing to the wife the sum of $15,000 inclusive of $5000 for her spousal maintenance.
The parties obtained a decree nisi apparently in May 2001 which became absolute in June 2001.
V Pty Ltd is the trustee of the V Discretionary Trust established on 11 September 1998. The trust deed is exhibit RLG2 to the wife's longer affidavit filed on 14 August 2003.
The settlor was John Michael Ellis.
The appointor (clause 1 and schedule 2) was and is the husband. The beneficiaries (clause 1 and schedule 4) include the husband as a second beneficiary as a lineal descendent of his mother who is one of the first beneficiaries. The other first beneficiaries are the three children.
The trustee is a sole director company. The third respondent M is the director. M is the husband's mother.
Clause 25 provides that the appointor may at any time without the consent of any person remove the trustee and appoint another trustee.
Clause 29 provides that any powers conferred upon the appointor may be exercised at will and that the appointor may direct the trustee to exercise any of its powers in a particular manner as directed by the appointor.
By clause 1 the appointor is the person or company who is from time to time entitled to exercise the powers conferred by the trust deed upon the appointor and provides that the appointor may nominate any other person or company in succession or in substitution for himself or itself.

As at 6 March 2003 it appears that the trust had some six properties. See exhibit RLG4 to the wife's longer affidavit filed on 14 August 2003.
The wife asserts that one of these properties is the former matrimonial home.
The wife asserts (wife's longer affidavit filed on 14 August 2003 pars 12 and 15, and exhibits RLG5 and RLG7) that the trust purchased the former matrimonial home on 29 September 1999 for $174,500 and sold it on 13 March 2003 for $239,000.
Ms Hogan of Counsel and Mr Galloway of Counsel dispute that the wife has sufficient evidence to show that the transfers, exhibits RLG5 and RLG7, relate to the former matrimonial home.
However, the wife asserts at par 13 of her longer affidavit filed on 14 August 2003 that on 10 March 2003 she lodged a caveat in respect of the former matrimonial home. The title reference in respect of the caveat, exhibit RLG6, and in respect of the two transfers referred to, exhibits RLG5 and RLG7, is the same. Further, the husband confirms in his evidence that the caveat lodged by the wife was in respect of the former matrimonial home. See the husband's affidavit filed on 2 October 2003, par 29.
There is thus sufficient evidence for the purpose of these interim proceedings that the transfers, exhibits RLG5 and RLG7, indeed relate to the former matrimonial home purchased during the marriage for $174,500 and sold on 13 March 2003 for $239,000.
During the marriage the husband conducted certain businesses. It appears that some of the businesses may have been franchised at several locations on the Gold Coast. The wife says that the businesses grew "phenomenally". She refers to a company S Pty Ltd from which she and the husband drew wages, half each in the amount of a "family budget" which she had drawn up.
The role of S Pty Ltd is not further explained in the parties' evidence.
The wife says that she was aware of the establishment of the trust. Her evidence infers that during the marriage at least three properties were held by it, namely the husband's mother's house property at Nerang; the former matrimonial home at Nerang; and an investment property at Nerang.
The wife says that at about the time of her signing of the consent orders on 18 January 2000 the husband had told her she could remain in the matrimonial home as long as she paid the mortgage of $867 per month to an ANZ account in the name of the trustee as trustee for the trust.
The wife says that despite the consent orders and the arrangement that she pay the mortgage on the matrimonial home the husband would continue to visit her in the former matrimonial home, asserting in respect of the matrimonial home "It's my house too"; and that in October 2000 the husband said to the wife that he wanted her to leave "his house". See the wife's shorter affidavit filed on 14 August 2003, pars 23 and 26.

[italics added]

The wife says that when the divorce from the husband became effective in June 2001 she believed that the "so-called property settlement" made by the consent orders on 18 January 2000 was all she was entitled to.

The admissibility of certain evidence

Ms Hogan of Counsel objected to the admissibility of exhibit RLG1, which is the wife's solicitor's file concerning the property settlement between the parties on 18 March 1997 (the earlier property settlement) on the grounds of relevance, namely that anything which occurred in 1997 could not be relevant to the question whether the wife has made out a prima facie case for the setting aside of the consent orders made on 18 January 2000.
Mr Mylne, solicitor for the wife, submitted that the solicitor's file is relevant because it demonstrates a course of conduct by the husband in respect of the wife concerning their property dealings.
I have looked briefly at exhibit RLG1, the solicitor's file. It seems to me to have little, if any, relevance to the issues in these interlocutory proceedings.
I therefore allow the objection and have disregarded exhibit RLG1 for the purpose of these interlocutory proceedings. That is not to say, however, that it may not assume relevance at a later date when the wife has the opportunity to present her full case.

The property injunctions sought

The wife seeks certain restraints against the husband and the second and third respondents by way of interim orders. I will not set them out. They are fully set out in the wife's application.
Although framed as interim restraints, in essence the wife is seeking interlocutory injunctions, that is until the trial of the matter or earlier order.

Principles relevant to the injunctions sought

The purpose of interlocutory restraining orders in a case such as this is to preserve the status quo until the trial. In order to exercise its discretion the Court is required to find that there is a serious issue to be tried and that the balance of convenience supports the making of an order: Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92-856 (FC) at par 56, citing Yunghanns v Yunghanns (1999) FLC 92-836 (FC) at par 109.
Plainly, it is also a requirement that the restraints sought be reasonably necessary in the sense that if the restraining orders sought are not made there would be a real risk of the defeat of the applicant's claimed interest: Waugh v Waugh (2000) FLC 93-052 at pars 32-44.
Further, because the wife ultimately is seeking to invoke the favourable exercise of the Court's discretion under s 79A she must not only show a serious question to be tried to support the injunction, but also meet the higher test of a prima facie case under s 79A. Bigg v Suzi (1998) FLC 92-799 at pars 4.7 and 4.9. At those paragraphs the Full Court referred with apparent approval to words similar to those which describe a prima facie case, namely that the wife's case must derive from her own material and that she must allege facts which, if ultimately proved, should entitle her to judgment.

Prima facie case

The wife must show a prima facie case of a miscarriage of justice "by reason of" one of the grounds specified in s 79A.
The jurisdiction under s 79A to set aside the consent orders is very limited and the wife is required, even at this stage, to show with particularity and by way of cogent evidence a prima facie case that one of the grounds under s 79A exists and further a prima facie case that by reason of it there has been a miscarriage of justice arising out of the judicial process; that is to say, in this case, that she has been denied the right to a just and equitable property settlement by conduct of the husband which induced her to sign the consent orders; or that he procured her to sign them at a time when her belief as to a relevant fact or circumstance was erroneous and he had caused her to hold the erroneous belief, knowing at the time she signed that she so held it. Bigg v Suzi at pars 4.5, 6.38, 6.39, 6.41 - 6.43.
It is not necessary for the wife to show a prima facie case in respect of each ground invoked under s 79A. A prima facie case in respect of one ground only is sufficient.
The wife says (shorter affidavit filed on 14 August 2003, par 22):
"22. We separated, yet again, in January 2000. Within a few days after we agreed to separate [T] came to the home with legal documents that he insisted on me signing. He said that I had better sign them. He said that if I did, he would be out of my life. He went on to say that he had legal advice that I had no rights as his wife, or as the mother to his children, nor did I have any rights to any of the assets in the Trust. He said that on paper I would be receiving $15,000. But, $10,000 of this had to be paid back to [S] Pty Ltd for me to purchase and take our family car and that the remaining $5,000 was worked out as a total value of furniture he took with him. All I wanted was for him to be out of my life, so I signed."
[italics added]
The law relating to duress is comprehensively discussed by McHugh J, then sitting in the New South Wales Court of Appeal, in Crescendo Management v Westpac (1988) 19 NSWLR 40 at 45:
"… The rationale of the doctrine of economic duress is that the law will not give effect to an apparent consent which was induced by pressure exercised upon one party by another party when the law regards that pressure as illegitimate...
The reference in Universe Tankships Inc of Monrovia v International Transport Workers Federation and other cases to compulsion “of the will” of the victim is unfortunate. They appear to have overlooked that in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653, a case concerned with duress as a defence to a criminal proceeding, the House of Lords rejected the notion that duress is concerned with overbearing the will of the accused. The Law Lords were unanimous in coming to the conclusion perhaps best expressed (at 695) in the speech of Lord Simon of Glaisdale “that duress is not inconsistent with act and will, the will being deflected, not destroyed.” Indeed, if the true basis of duress is that the will is overborne, a contract entered into under duress should be void. Yet the accepted doctrine is that the contract is merely voidable.
In my opinion, the overbearing of the will theory of duress should be rejected. A person who is the subject of duress usually knows only too well what he is doing. But he chooses to submit to the demand or pressure rather than take an alternative course of action. The proper approach in my opinion is to ask whether any applied pressure induced the victim to enter into the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate. Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed. Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.
…
It is unnecessary, however, for the victim to prove that the illegitimate pressure was the sole reason for him entering into the contract. It is sufficient that the illegitimate pressure was one of the reasons for the person entering into the agreement. Once the evidence establishes that the pressure exerted on the victim was illegitimate, the onus lies on the person applying the pressure to show that it made no contribution to the victim entering into the agreement: Barton v Armstrong (at 633; and 120) per Lord Cross."
See also Cockerill v Westpac Banking Corporation (1996) 142 ALR 227 per Cooper J; Pelerman v Pelerman (2000) FLC 93-037 (FC) at pars 81, 86, 87; and ACCC v Berbatis (2003) 197 ALR 153 at [79] per Kirby J and [36] to [38] per Gummow and Hayne JJ as to recent observation on the topic.
The wife's evidence referred to above is sufficient to make out a prima facie case that she "chose to submit to the demand or pressure" being "illegitimate pressure" amounting to unconscionable conduct, or improper motive (Crescendo; Pelerman); or that her will was overborne (ACCC v Berbatis).
The consent orders were signed eight days after the final separation, and in the context of the wife's evidence of the husband’s domination of her throughout the marriage. See for example her shorter affidavit filed on 14 August 2003, pars 5 - 21.
Next, the wife must show a prima facie case that "by reason of" this ground she has been denied the right to a just and equitable property settlement, that is, in the context already explained, “arising out of the judicial process”. In order to do this she must satisfy the Court on the prima facie basis that when the consent orders were made there was property belonging to the parties or either of them which, by reason of the duress, was not divided jointly and equitably.
Ms Hogan submitted that in order to show a prima facie case the wife must show that when the consent orders were made she did not know of the existence of such property or that with proper inquiry its existence could not be revealed. I do not accept this submission in the context of the wife’s duress case. The wife's case is that she knew of the existence of the trust, however, by reason of the duress she did not make the claim in respect of any property owned by the trust, including the former matrimonial home, which she now seeks to establish.
Further, the wife says as to the trust, in her shorter affidavit filed on 14 August 2003, par 16:
"16.By now the [business] had grown very rapidly and we had several retail outlets in several locations on the Gold Coast. Some were franchised out. I now believe that this is when the Trust was set up. At the time he mentioned to me that he was putting things in place so that when and if we separated again the family assets would not go or be benefited to either of us but to the children's future. [T] told me that he had made himself the sole Trustee and Executor of the Trust."
[italics added]
If the husband said this to the wife, it was a lie, because the husband is a second beneficiary under the trust. Thus, it may be that the wife also has a prima facie case of fraud although this is not yet presently claimed by her as an available s 79A ground.
I turn now to yet a further prima facie case the wife has shown. If her evidence is accepted that when the trust was established the husband lied to the wife that he was not a beneficiary, then it appears that at the time the wife executed the consent orders she did so in the erroneous belief that neither the husband nor the wife could benefit from the trust, which was a material mistake on her part but known to the husband at the time the consent orders were made.
Mr Galloway submitted that in order to claim that the property of the trust, or any of it, was property belonging to the parties, or either of them, the wife must find her remedy in respect of the trust at law or in equity. I accept this submission.
Mr Galloway submitted, which I also accept, that in order to show a prima facie case in respect of the trust the wife must assert facts which, if proven at the trial, should result in her success under s 79A. Thus, he submitted, she must assert facts which, if accepted, will prove that the trust was a sham, which case the wife does not begin to meet. At best, he said, the wife shows a puppet case, that is, that the trust was the puppet of the husband by reason of his control of it as the appointor and by clauses 25 and 29 of the trust deed.
In my view, the wife has demonstrated a prima facie case that the trust may be a sham by her evidence that, on two occasions, the husband described the former matrimonial home, which was held in the trust, as his own property. This evidence is important. The wife said that the husband had asserted in respect of the former matrimonial “It's my house too”, on one occasion, and that he wanted the wife to leave “his house”, on another occasion. See the wife’s shorter affidavit filed on 14 August 2003, pars 23 and 26.

[italics added]

The test as to the difference between a sham and a puppet is well understood. See Gould v Gould (1993) FLC 92-434 (FC) at 80,432-3:
"The meaning of the term “sham” was discussed by Lockhart J in a decision of the Full Court of the Federal Court in Sharrment Pty Ltd v The Official Trustee in Bankruptcy (1988) 82 ALR 530, esp. at 536 - 40. At p.537 his Honour concluded:-
“A ‘sham’ is therefore, for the purposes of Australian Law, something that is intended to be mistaken for something else or that is not really what it purports to be. It is a spurious imitation, a counterfeit, a disguise or a false front. It is not genuine or true but something made in imitation of something else or made to appear to be something which it is not. It is something which is false or deceptive.”

In the course of that judgment his Honour referred to a number of cases which had considered that issue and in particular to the observations of Windeyer J in Scott v Commissioner of Taxation (No 2) (1966) 40 ALJR 265 at 279:
“On the other hand, if the scheme, including the deed, was intended to be a mere facade behind which activities might be carried on which were not to be really directed to the stated purposes but to other ends, then the words of the deed should be disregarded. …A disguise is a real thing: it may be an elaborate and carefully prepared thing; but it is nevertheless a disguise. The difficult and debatable philosophic questions of the meaning and relationship of reality, substance and form are for the purposes of our law generally resolved by asking did the parties who entered into the ostensible transaction mean it to be in truth their transaction, or did they mean it to be, and in fact use it as, merely a disguise, a facade, a sham, a false front - all of these words have been metaphorically used - concealing their real transaction.”

Reference should also be made to the description of a sham by Gibbs J in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 at 354; (1981) FLC 91-000 at 76,061 as something which has
"been brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act. Sham transactions may always be disregarded.”

On the other hand, the description of an entity as the “alter ego” or “puppet” of a person really denotes something different. Correctly described, it is not an assertion that it is a “counterfeit, a facade or a false front”. Rather, it describes an actual situation although as a matter of law or practicality the actions of the other entity may be capable of and may in fact be controlled by the party in question. For example, a party may establish a trust over which he or she exercises control. That trust may in turn own or control property. It may be correct to describe that trust as the alter ego or even perhaps the puppet of that party, but it would not be correct to describe its existence or its ownership or control of property as a sham. Transactions entered into by it under which it deals with its property by, for example, a transfer of property to a third party would not be a sham transaction. It is likely to be a genuine transaction although the evidence may demonstrate that the transaction was carried out “by direction of or in the interest of” the party."

It is axiomatic that if the Court should identify a sham structure, it may always ignore it and identify the true owners of property.
If the wife's evidence referred to above ultimately is accepted at trial then she has the very real prospect of the Court ignoring the trust structure on the basis that it was a sham, and finding that indeed some or all of the trust property at the date the consent orders were made (or at least the former matrimonial home) was indeed property belonging to the parties or one of them.
It will be recalled, in this context, that the former matrimonial home was purchased by the trust on 29 September 1999 during the marriage and was sold on 13 March 2003 after the consent orders were made. It is irrelevant that the former matrimonial home has now been sold. Presumably, the trust holds the proceeds of sale. If not, the husband may still be liable to pay to the wife a cash amount in respect of the proceeds of sale.
Further, there are six properties in the trust. On the basis of her demonstrated prima facie case that the trust may be a sham, the wife is entitled to discovery as to the dates of purchase of each of the other five properties as to whether they too were held by the trust as at the date the consent orders were made.
The timing of the establishment of the trust is suspicious. In her shorter affidavit filed on 14 August 2003, par 16, already set out above, the wife says that the husband told her that he was “putting things in place” so that “when and if we separated again the family assets would not go or be benefited to either of us.”

[italics added]

In Ascot Investments at 345 Gibbs J spoke of a sham as something which has:
"been brought into being in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act. Sham transactions may always been disregarded."
[italics added]

It appears to me that the wife has a strongly arguable case that the husband “put the trust in place” as a device to evade his obligations to the wife under the Act "if we separated again".
On this analysis, the wife has, with particularity and by cogent evidence, demonstrated a prima facie case as to one of the s 79A grounds, namely duress; and a prima facie case that, by reason of that duress, there may have been a miscarriage of justice in the judicial process, namely that because of the duress she signed the consent orders and thus has been denied a just and equitable property settlement in respect of property belonging to the parties or one of them as at the date the consent orders were made, at least in respect of the matrimonial home, being property held in a sham trust; and by reason of her belief, falsely induced by the husband’s words and/or by his duress, that she was not entitled to share it.
As I have said, there may also be a prima facie case of fraud by the husband telling the wife a lie, namely that he had no interest as a beneficiary under the trust; and/or the further prima facie case of a material mistake on her part known to the husband. However, as I have said earlier, the wife need only make out a prima facie case in respect of one of the s 79A grounds for the purpose of these interlocutory proceedings.
Mr Galloway referred in argument to McLean v McLean (unreported) B2908 of 2001, 30 January 2003, O'Reilly J; Sticklen v Sticklen (unreported) BRF12740 of 1998, 15 November 2002, Warnick J; and Sticklen v Sticklen (unreported) BRF12740 of 1998, 4 July 2003, O'Reilly J. However, these were cases in which the applicants sought either to become or to control the trustee of certain trusts. The wife here does not seek to control the trust but merely to preserve it pending the hearing of her claim. These cases are thus not of assistance.
Ms Hogan of Counsel submitted that the wife's application for s 79A relief is flawed in that she has not descended to particularity as to the precise property orders she seeks so that even if her ground of duress (or one of her other grounds) is made out, it is impossible for the Court to consider the discretion required to be exercised in considering the grant of s 79A relief. I do not accept this submission. Whilst it is true that the application does not expressly assert that by the grounds she sets out there has been a miscarriage of justice, it is implicit by her invoking s 79A that she has assumed the burden of proving to the satisfaction of the Court that there has been a miscarriage of justice by one or some of the grounds which she relies on, that miscarriage of justice being that she was denied a just and equitable property settlement.
Further, the wife seeks by way of her application for final property orders, par 2:
"That the assets of the marriage be distributed on a just and equitable basis."
This is a sufficient claim, at least until the wife has had the benefit of discovery. In this respect, I accept Mr Mylne’s submission that the wife is limited in her ability to formulate the precise property orders she seeks until she is able to proceed to the steps of discovery and interrogatories to know that which the husband has kept from her, namely the assets of the trust as at the date the consent orders were made and the source of contribution to those assets.
In all of the circumstances, I am satisfied that the wife has made out a strong prima facie case for s 79A relief and further a strong prima facie case for the trust to be ignored as a sham.

Balance of convenience

None of the husband, nor the second respondent, nor the third respondent, has adduced any evidence that the grant of the injunctions sought by the wife may be likely to interfere with any commerce or business of the trust or be likely to prejudice its commercial or other activities (if any) in any way.
The balance of convenience plainly favours the wife in those circumstances.

Necessity

Whilst the wife has not adduced any evidence that the husband or the second respondent or the third respondent may be likely presently to distribute or to transfer the assets of the trust so as to defeat or to prejudice the wife's claim, often it is impossible for an applicant to adduce positive evidence of such an intent; and by the time a party is able to adduce such positive evidence, it is often too late for any injunction to be efficacious.
Thus, the Court must assess the aspect of “real danger or risk", by other more indirect evidence, for example, as to the honesty of a party generally or, as in this case, the husband's demonstrated inclination or propensity to defeat the wife's just claim.
I have no hesitation, on the evidence to which I have already referred, in drawing the inference against the husband that, unless restrained, he may take steps, in his capacity as the appointor of the trust, and by clause 29 the effective controller of it, to put the trust assets beyond the wife's reach.
I am troubled also by the following evidence adduced by the wife which, if ultimately accepted by the trial Judge, would show the husband to be a thoroughly dishonest person capable, perhaps, of going to any lengths to further his own financial benefit even if illegally.
The wife has sworn (shorter affidavit filed on 14 August 2003, pars 2 - 5):
"2. At that time [January 1993] [T] was in [business] trading in the name of two companies…
3. We soon became engaged to be married and celebrated our engagement at the S Yacht Club, Queensland, December 1994, where I had been an employee at that time for almost 5 years.
4. [T] asked me to request a business receipt for our engagement party from my employer, as he wanted to claim it off his tax on [one of the businesses]. I found it humiliating to make this request of my employer, but my employer complied.
5. We were married at [A], Queensland [in] March 1995. I was then 20 years of age and my son [S] (from a previous relationship) was then 2 years of age. Again all expenses for the wedding were to be paid by him, but only if I organised a receipt in relation to [one of the businesses]. For example the ‘Wedding Cake’ was receipted as a ‘… display cake’. The ‘Wedding Flowers’ were receipted as being for a ‘display’ for one of the [businesses]. The ‘Men's Suits’ for the groom and groomsmen were receipted as being for a ‘Business Function’. The receipt for the Wedding Reception was written out for a work related ‘Promotional Function’."
If this evidence is ultimately accepted, then the husband will be shown to be a dishonest person capable of blatantly defrauding the revenue. If he has this propensity, then I infer that he is capable of defrauding the wife, and unless restrained, of defeating her claim to a just and equitable property settlement. There is, therefore, sufficient evidence of necessity to restrain the husband by the injunctions sought.
As to the necessity to restrain the second respondent and the third respondent, namely the trustee and its director, there is sufficient necessity disclosed by the husband's control of the trustee (the second respondent) by clause 29 of the trust deed and thus the trustee's director (the third respondent).

Other observations

In addition to the injunctions the wife seeks, the husband should also be restrained from taking any steps to remove himself as the appointor under the trust deed. Unless so restrained, there is danger that he may divest himself of the control as the appointor, at least until after the final determination of these proceedings. Further, this order is necessary for the maintenance of the status quo until trial.

Undertaking as to damages

The wife's financial statement filed on 14 August 2003 plainly shows that any undertaking as to damages by her would be virtually worthless. In Blueseas Investments (referred to above), at par 57, the Full Court said that in family law cases the inability to give a worthwhile undertaking as to damages ought not prevent an order being made in cases where otherwise all of the requirements for its making are made out.
This is such a case.
Nonetheless, the wife's undertaking as to damages should be offered in respect of the injunctive relief sought.

Hogan orders

The wife seeks interim orders that within 30 days the husband pay to the wife the sum of $25,000 such sum to be used by the wife in the payment of her legal and other costs of and incidental to these proceedings; and that the question of whether such payment be regarded as part property settlement and/or spousal maintenance or otherwise be reserved for the determination of the trial Judge.
Ms Hogan made extensive submissions against that proposal. See her written submissions at pars 30 - 42.
In her oral submissions Ms Hogan emphasised that the wife's solicitors have failed to provide a breakdown of the amount sought, which she said is fatal; and further that this is not a case where there is identified property of the parties likely to be the subject of a property order in the wife's favour, so that, as in other cases the "advance" for legal fees can be offset or regarded ultimately as an interim property settlement.
I accept Ms Hogan's submissions that some of these matters presently negate the prospect of a Hogan order, although this circumstance would not preclude the wife from applying again at a later date if she is able to adduce the requisite evidence in particular as to the breakdown of her anticipated costs and outlays.
However I raised with Ms Hogan why there should not be a "dollar for dollar" order. See McDonald v McDonald (unreported) No SY2065 of 2000, 8 October 2001, O'Ryan J; and McLean & McLean (unreported) B2908 of 2001, 30 January 2003, O’Reilly J, at pars 101 - 108; and the orders made in that case. Ms Hogan provided a brief written submission against the "dollar for dollar" order. It is not necessary to set out her submission. It is contained in two paragraphs, and has been placed with the Court papers.
Primarily, Ms Hogan sought to distinguish McLean on the factual basis that the husband in that case had a financial resource, namely a capital account, overdrawn $1.4 million, seemingly accessed at will; and that unlike in McLean, there is no evidence to satisfy the Court that the husband has the capacity to pay maintenance to the wife, and nor does the wife, unlike in McLean, have any asset from which moneys paid to her could be repaid.
I have had full regard to these submissions. However, in my view a dollar for dollar order is appropriate in this case on the basis of reasoning similar to that applied by O'Ryan J in McDonald, summarised in McLean at par 104. There is some evidence, at least, that the husband may not have been frank with the Court as to his financial affairs. His form 17 filed on 2 October 2003 describes his occupation as "real estate agent" and "self employed", and yet he discloses nil income from personal exertion but only "sale of personal assets" $442. He described his total assets as $17,476. The wife discloses assets of $15,000 and very modest income. It is desirable that there should be at least between the husband and the wife a "level playing field" in the litigation. The husband has engaged a specialist law firm who in turn has engaged Ms Hogan of Counsel who is very experienced in this jurisdiction. In order to level the playing field, if the husband is paying money to his solicitors and to engage Counsel on his behalf there is no reason why he ought not pay the same sums to the wife's solicitors on the dollar for dollar basis.
This course wholly obviates the requirement that the Court be satisfied as to all of the elements set out by the Full Court in Zschokke v Zschokke (1996) FLC 92-693 in respect of a Hogan order, in particular the requirement that the wife detail her expected costs and outlays.
As I said in McLean, the tests for a Hogan order and for a dollar for dollar order are not the same. If they were, the wife would qualify for a Hogan order, and would not need to apply for a dollar for dollar order.
This is not a case in which the Court at this stage is able to conclude necessarily that there is identified property of the parties likely to be the subject of a property order in the wife’s favour so that the “advance” for legal fees can be offset or regarded ultimately as an interim property settlement. However, prima facie, that circumstance has arisen by the husband’s deception of the wife. I have already determined that the wife has a strong prima facie case for s 79A relief, and further a strong prima facie case for the trust to be ignored as a sham. If that is the end result, then it appears that the Court at least will be able to divide the proceeds of sale of the matrimonial home sold by the trust, amounting it seems to about $64,500. Further, as soon as the trustee has made the discovery which I propose to order, the Court will be in a better position to identify which other assets of the trust may also ultimately be found to be the property of the parties or either of them.
For example, the wife also referred to an investment property held by the trust during the marriage, at Nerang, which was rented out for $180 per week. The wife may also be entitled to share in the division of some or all of other properties held in the trust depending on when they were purchased and with what funds. See her longer affidavit filed on 14 August 2003, exhibit RLG6. The Court will be in a better position to monitor or to vary the dollar for dollar order after the husband and the trustee have made full discovery.

Discovery

The wife seeks an order that there be mutual discovery within 14 days.
Order 20 r 4 sub rule 2 provides that before ordering a party to make discovery it must take into consideration the matters specified in sub rule 2. Order 20 r 2 provides preconditions relating to requests for discovery, namely that a request not be made until after the conciliation conference and before the pre trial conference.
Order 20 r 15 provides that an order for discovery shall not be made unless the Court is satisfied that the order is necessary either for disposing fairly of the proceedings or for saving costs.
I have taken into account that there probably has not as yet in this case been a conciliation conference. I am satisfied, nonetheless, that an order is necessary at this early stage both for the fair disposal of the proceedings and hopefully in the interests of saving costs by the parties knowing as early as possible in the proceedings the assets held in the trust, when they were purchased, and the moneys used to fund those assets.
The Court also has power under s 114(3) to make injunctions including mandatory injunctions, and ancillary orders in aid of injunctions, the words of the provision being "including an injunction in aid of the enforcement of a decree". Section 4 defines decree so as to include an order of the Court. The jurisdiction under s 114(3) is of course to be exercised if it is just and convenient to do so. In this case, relevantly, mandatory orders for early discovery in relation to the assets the subject of the injunctions I propose to make will be orders in the aid of a decree of the Court, in order to prevent the abuse or frustration of the Court process.
I therefore consider that despite O 20 r 4 there is sufficient power to make a mandatory order for discovery as an order in aid of an injunction under s 114(3). The cases of all of the parties will be advanced by early discovery relating to the trust assets, at least to establish when the various properties in it were purchased and the source of the funds used for each purchase. This is a just and convenient result in the interests of all parties.
I therefore propose to make an order for early discovery in relation to the trust.
The wider discovery which the Rules of Court contemplates should not be made until after the conciliation conference, or whatever is the appropriate stage in the usual course of the proceedings, subject of course to any further application made by the wife and any further order made by a Judge.

Child orders

The wife's case put by Mr Mylne for alternate weekend contact is that the wife would be able to "do more" with the children over a full weekend rather than being restricted to the Sundays of each weekend. For example, the present orders have the effect that the wife can never take the children away for a whole weekend.
The husband's case put by Ms Hogan is that the orders made in the Southport Magistrates Court on 15 August 2003 reflect a regime that has been in place now for three and a half years since the final separation in January 2000. Although the children were then three and a half year and 18 months and are now seven years and five years, there is a significant status quo concerning contact which should not be interfered with on the interim basis in the absence of strong evidence that a change in the children's settled routine is in their best interests. Although there was a temporary break in this regime in June-August 2003, the consent orders made on 15 August 2003 quickly reinstated it.
The husband's work as a real estate agent has the effect that he has work commitments "every Sunday" according to his evidence. He says that the existing contact with the children has "worked well" except for the brief period in June - August 2003 which led to the consent orders made on 15 August 2003.
Ms Hogan submitted that the proposed change would represent a "very significant change to a longstanding arrangement" and that there is no evidentiary basis concerning the children's welfare to interfere with that arrangement on the interim basis.
I accept Ms Hogan's submission that there is a significant status quo. The children have stability in the current arrangement. Although the children are now considerably older than at separation the reasons advanced by the mother are insufficient for the Court to make new orders now on the interim basis.

Other matters

Before pronouncing the orders, I would observe that the effect of O 15 r 3 is that there is no need for any formal order for the joinder of the second respondent and the third respondent. They have been joined in accordance with the Rules of Court, by being named as respondents in the wife's proceedings.
The second respondent, the trustee, is plainly a necessary party.
Whilst it is arguable that the third respondent, the sole director of the trustee, may not be a necessary party, it is desirable that she be joined in the proceedings if only for the reason that she personally be restrained to ensure that she personally be liable for sanction if she should cause the trustee to breach the injunctions I propose.

Orders

Upon application made to the Court and the Court having reserved its decision, Mr Mylne appearing for the applicant, Ms Hogan of Counsel appearing for the first respondent husband and Mr Galloway of Counsel appearing for the second and third respondents

And upon the wife by her solicitor giving the usual undertaking as to damages

And upon the wife by her solicitor undertaking to file in form 41A the usual undertaking as to damages by 4 pm on 9 October 2003

It is ordered until further order that:

The second respondent V Pty Ltd by itself its officers and agents be restrained and an injunction issue so restraining it from:
(a)distributing to any beneficiary or transferring, assigning, encumbering by mortgage or charge or dealing in any way with any real property of the V Discretionary Trust; and
(b)distributing to any beneficiary or dealing in any way with any assets or interest (not being real property) of the V Discretionary Trust, other than in the ordinary course of business, without providing to the wife’s solicitors 30 days notice in writing of the proposed dealing; and
(c)resigning the trusteeship of the V Discretionary Trust.
The third respondent be restrained and an injunction issue so restraining her in her capacity as the director of V Pty Ltd from signing any documents or taking any steps to cause V Pty Ltd to breach the injunctions made by order 1 of these orders.

The husband be restrained and an injunction issue so restraining him in his capacity as the Appointor of the V Discretionary Trust from:
(a)signing any documents or taking any steps to nominate any person as Appointor either together with him or in succession or in substitution for himself or so as to divest himself of any of the powers of the Appointor under the V Discretionary Trust;
(b)exercising any of the powers under clause 25 of the V Discretionary Trust to remove or replace V Pty Ltd as the trustee;
(c)exercising any of the powers under clause 29 of the V Discretionary Trust to direct the Trustee to exercise any power inconsistent with the terms of the injunctions made by order 1 of these orders;
(d)exercising any other powers under the V Discretionary Trust;
(e)procuring the removal, resignation, replacement or appointment of any director or officer of V Pty Ltd;
(f)doing any act or thing which could result in the transfer, disposal, alienation or encumbrance of any of the assets of the V Discretionary Trust.
Within 7 days after the payment by or on behalf of the husband of any money in payment of accounts:
(a)rendered by the husband's solicitors in respect of these proceedings;
(b)rendered by any accountant, valuer or other expert engaged by the husband in respect of these proceedings;
the husband pay or cause to be paid the same amount of money to the wife's solicitors.
Within 1 day after the payment by or on behalf of the husband of any money referred to in order 4, the husband cause to be given to the wife's solicitors a memorandum stating the amount or amounts so paid.
All money paid to the husband's solicitors by or on behalf of the husband referred to in order 4 be held in trust by the husband's solicitors and not be applied in payment of his legal costs and outlays until such time as the same amount has been paid by or on behalf of the husband to the wife's solicitors, and in the event that such payment to the wife's solicitors not be made within 7 days after the payment by or on behalf of the husband of any money referred to in order 4, the husband direct his solicitors to pay 50% of the amount or amounts so held by them in trust to the wife's solicitors.
The amounts paid by or at the direction of the husband to the wife's solicitors pursuant to these orders be applied by them in the payment of the wife's legal costs and outlays incurred and to be incurred by the wife in the conduct of these proceedings, including but not limited to the reasonable costs and outlays:
(a)rendered by the wife's solicitors in respect of these proceedings;
(b)rendered by any accountant, valuer or other expert engaged by the wife in respect of these proceedings.
The determination as to whether the payments made by or on behalf of the husband to the wife's solicitors are to be treated as a debt due from the wife to the husband, or as part of the wife's entitlement to property settlement, or the provision of maintenance for the wife, or in payment by the husband of the wife's costs of and incidental to these proceedings, or otherwise, be adjourned to the trial judge.
By 4 pm on Friday 17 October 2003, the second respondent V Pty Ltd make discovery on oath by filing and serving on all parties an affidavit of documents listing all of the following documents in its possession, power or control:
(a)all annual or quarterly financial statements of or relating to the Trust;
(b)all purchase and sale contracts in respect of any purchase or sale transaction conducted by the Trust in respect of any real property or other asset;
(c)all bank statements of all bank accounts held or conducted by the Trustee;
(d)all minutes of meetings of the Trustee, including but not limited to meetings concerning any distributions to the beneficiaries;
(e)all solicitors files (name and description of file only but not separately listing each document on such files) relating to the establishment or conduct of the affairs of the Trust;
(f)all accountants files (name and description of file only but not separately listing each document on such files) relating to the establishment or conduct of the affairs of the Trust.

(10)By 4 pm on Friday 24 October 2003, the wife’s solicitors be permitted to inspect the documents so discovered (including all documents on any solicitors or accountants files so discovered) at places, dates and times to be agreed between the parties' solicitors, and at the wife's expense to take copies of any document or documents.
(11)The wife's application to vary the interim consent orders made in the Southport Magistrates Court on 15 August 2003 concerning the children is dismissed.
(12)The costs of all parties on all issues are reserved to the trial judge.
Notation

These orders have immediate effect notwithstanding that the wife's undertaking in form 41A is not due to be provided to the Court until 4 pm on 9 October 2003.