GORGA and GORGA

[2020] FCWA 51

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: GORGA and GORGA [2020] FCWA 51

CORAM: O'BRIEN J

HEARD: 4 FEBRUARY 2020

DELIVERED : 2 APRIL 2020

FILE NO/S: PTW 9993 of 2018

BETWEEN: MS GORGA

Applicant

AND

MR GORGA

Respondent

Catchwords:

SPOUSAL MAINTENANCE – Where the husband concedes that payment of interim spousal maintenance is appropriate – where the dispute centres around the reasonableness of the wife's claimed expenditure, and the husband's capacity to pay – where the parties enjoyed a high standard of living prior to separation – where the husband contends that the wife should be making greater efforts to exercise her earning capacity – turns on its own facts.

INTERIM PROPERTY MAINTENANCE – Provision of funds for litigation – where the parties have incurred litigation related expenses in excess of $1 million since proceedings were commenced in December 2018 – where the financial affairs of the parties are complex and the wife has little understanding of them – where the husband concedes that the power to make interim orders pursuant to s 79 should be exercised and the dispute is primarily as to quantum – where wife seeks additional lump sum payments – turns on its own facts.

DISCLOSURE – Where the wife contends that the husband has failed to meet his duty of disclosure in a timely fashion – where the husband contends that the disclosure sought by the wife is disproportionate to the matters in issue – where there is merit in the wife's complaints – turns on its own facts.

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Wilson SC and Ms Wilkinson
Respondent	:	Mr Mort

Solicitors:

Applicant	:	Kim Wilson & Co
Respondent	:	Shilton Family Law

Case(s) referred to in decision(s):

Black & Kellner (1992) FLC 92-287

Brown & Brown (2007) FLC 93-316

Chester & Chester (1995) FLC 92-612

Hall & Hall (2016) FLC 93-709

In the Marriage of Briese (1986) FLC 91-713

In the Marriage of Morrison (1995) FLC 92-573

JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184

Kelly & Kelly (No 2) (1981) FLC 91-108

Livesey v Jenkins [1985] 1 All ER 106

Paris King investments Pty Ltd v Rayhill [2006] NSWSC 578

Redman & Redman (1987) FLC 91-805

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Vautin & Vautin (1998) FLC 92-827

Weir & Weir (1993) FLC 92-338

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gorga & Gorga has been approved by the Chief Judge pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1The proceedings between [Ms Gorga] (“the wife”) and [Mr Gorga] (“the husband”) were commenced on 14 December 2018. The difficulties associated with the proceedings are most simply reflected in the observation that by 7 February 2020 the parties had incurred legal costs, litigation related accounting costs, and other expenses associated with the litigation in an amount exceeding $1 million.

2The parties are, by any sensible measure, wealthy. Their wealth is generated by property development and entrepreneurial efforts. Their inability to reach any agreement as to the just and equitable alteration of their property interests reflects the fluid nature of those interests, the complexity of their financial affairs, and the acrimonious nature of their personal relationship. Those matters, coupled with the wife’s lack of detailed personal knowledge of the intricacies of those financial affairs, contribute to a high level of distrust between the parties, reflected not least by ongoing disputes as to the compliance or otherwise by the husband with his duty of disclosure.

3Having been assigned to the complex track for individual judge management by an order made by a magistrate on 16 September 2019, the proceedings are listed for a Readiness Hearing before me [mid] 2020. The necessary orders have been made for the filing of affidavits for the purposes of trial prior to that hearing. Provided the parties comply with those orders, the matter will be allocated to a Callover if possible from that hearing; senior counsel for the wife estimates that the trial will occupy 20 hearing days.

4It is against that background that various interim and interlocutory disputes require determination.

Brief background

5The wife was born in 1977. She is primarily occupied in home duties, although she generates some modest income from [working as an administrative assistant]. The husband was born in 1975 and is a [businessman].

6The parties began living together in 2006, and were married in [early] 2007. They separated on 4 September 2017.

7There are four children of the marriage, [Child A], born [in] 2008, [Child B], [in] 2009, [Child C], [in] 2011, and [Child D] born [in] 2013. The children live with the wife in the former matrimonial home [in Suburb A]. Detailed interim parenting orders were made, largely by consent, on 19 November 2019. Those orders provide for equal shared parental responsibility, and for the children to spend four nights per fortnight during school term with the husband until the commencement of Term 3 of the current school year, and five nights per fortnight thereafter. Orders were also made for the children to spend time with the husband during school holidays and on special occasions. Other detailed specific issues orders, including for therapeutic family counselling, were made; they need not be recited for present purposes.

8As already noted, the substantive proceedings were commenced by the filing of the wife’s application on 14 December 2018. In that application, she sought orders for alteration of property interests and spousal maintenance, with both to be particularised “within 60 days of the [husband] providing full and frank disclosure of his financial circumstances”.

9In his response filed on 14 February 2019 the husband sought detailed parenting orders. He sought an order for alteration of property interests requiring him to “pay or cause to be paid to the wife such sum as shall be further particularised following the receipt of valuation reports and tax and accounting advice as to equate to an equal division of the parties’ net property and financial resources.” By implication, he sought the dismissal of the wife’s application for spousal maintenance.

10Neither party has yet further particularised the final relief sought. While both parties have engaged accountants to provide them with advice as to the value of the property interests available for division, and there have been preliminary discussions as to the provision of independent expert evidence in that regard, no single expert witness in the financial case has yet been appointed. In addition, the wife’s position is that she is unable to particularise the final relief she seeks while she remains unconvinced that the husband has complied with his duty of disclosure.

11The interim disputes between the parties were heard by me on 4 February 2020, and I reserved my decision. I invited counsel to confer as to appropriate procedural orders in relation to the appointment of a single expert witness, with a view to a Minute of Consent Orders in relation to that matter being provided to my chambers within seven days if agreement could be reached. Nothing further was heard from the parties, from which I infer that no agreement in relation even to that process was reached.

12Accordingly, as foreshadowed to counsel at the hearing, and as agreed by them, I reviewed that aspect of the matter in chambers and pronounced orders on 26 February 2020. Those orders defined the process to be adopted by the parties to move the appointment of the required single expert witness forward, in the hope that matters can properly proceed towards trial on the currently contemplated timetable.

Summary of interim and interlocutory relief sought

13Each party had multiple applications for interim and interlocutory relief before the court.

14The relevant applications of the wife were:

(a)her initiating application filed on 14 December 2018 insofar as it sought interim orders;

(b)her Form 2 application in a case filed on 7 June 2019;

(c)the informal application reflected in an amended minute of interim orders sought filed on 26 August 2019;

(d)her amended Form 2 application in a case filed on 6 January 2020; and

(e)her Form 2 application a case filed on 22 January 2020.

15The relevant applications and responses of the husband were:

(a)his response filed on 14 February 2019 to the wife’s initiating application in so far as it sought interim orders;

(b)his Form 2A response to an application in a case filed on 30 August 2019;

(c)the informal response reflected in an amended minute of interim orders sought filed on 2 September 2019;

(d)his Form 2 application a case filed on 4 December 2019;

(e)his Form 2 application filed on 29 January 2020 (pending leave); and

(f)his amended Form 2A response filed on 23 January 2020.

Applications of a purely procedural nature

16A small number of the multiple applications and responses related to procedural matters only, and may be dealt with briefly.

17The husband’s Form 2 application filed on 29 January 2020 sought orders permitting him to file, and rely on at the hearing, an affidavit of [Mr E] filed on the same day.

18Mr E is the accountant engaged by the husband for the purpose of the proceedings. He had previously sworn an affidavit setting out his opinion as to the value of various business entities; that affidavit responded to an affidavit of [Ms F] filed on 6 January 2020. Ms F is the accountant engaged by the wife for the purpose of the proceedings. Ms F in turn swore a further affidavit, which was filed on 22 January 2020, responding to Mr E’s first affidavit. The affidavit of Mr E sworn on 29 January 2020 responded to that response.

19While the sequence of events outlined above is obviously unsatisfactory, particularly in circumstances where the parties have made no real headway towards the appointment of a single expert witness to value their interests in the relevant entities, nothing turns on that for present purposes. Senior counsel for the wife was able to respond appropriately in both written and oral submissions to matters raised in Mr E’s second affidavit. I perceive no prejudice to the wife in admitting that affidavit into evidence.

20There will be orders permitting the filing of Mr E’s affidavit sworn on 29 January 2020, and the Form 2 application of the husband filed the same day will otherwise be dismissed.

21In relation to the same broad issue, the wife’s application in a case filed on 22 January 2020 sought leave to file and rely upon the affidavit of Ms F affirmed on 22 January 2020. For obvious reasons, that application must also be granted. There will be orders permitting the filing of that affidavit, and the Form 2 application of the wife filed that day will otherwise be dismissed.

22The husband’s Form 2 application filed on 4 December 2019 sought leave to file and rely upon his written submissions in relation to disclosure issues filed with that application.

23On 8 November 2019, I made orders setting the timetable for the parties to file written submissions addressing the relevance to matters in issue of documents sought by the wife at specified paragraphs of a Minute of proposed procedural orders, which had been filed pursuant to earlier directions made by me prior to the first hearing of the matter in the complex track. The purpose of those orders, which required the husband to file his submissions by 22 November 2019, was transparently to enable that relevance issue to be determined by me in chambers, with orders and reasons in short form only to be published, prior to my departure on annual leave on 6 December 2019. In that way, matters relating to disclosure could be advanced in my absence, and prior to the hearing listed on 4 February 2020.

24The husband filed his written submissions with the Form 2 application on 4 December 2019. No affidavit providing an explanation for his non-compliance with my order was filed. The issue in question could not be determined prior to my departure, and the parties were advised accordingly by letter from the Principal Registrar dated 6 December 2019.

25Sensibly, the wife did not actively oppose the Form 2 application, but sought to rely upon the husband’s failure to comply with my orders (amongst other matters) in support of an application for costs.[1]

[1] Written Submissions filed by the wife on 4 February 2020, p. 59-60, [230]-[231].

26There will be an order in terms of the husband’s Form 2 application filed on 4 December 2019.

Substantive applications

27The issues in dispute as defined by the parties were:

(a)the quantum of periodic spousal maintenance to be paid to the wife;

(b)whether orders should be made as sought by the wife requiring the payment of further expenses, and lump sum amounts, for her benefit by way of spousal maintenance or otherwise;

(c)whether lump sum payments should be made to the wife to fund her litigation related expenses; and

(d)the husband’s compliance with his duty of disclosure.

28For reasons which follow, a consideration of the matters raised regarding the husband’s disclosure informs the consideration of the other matters in issue; it is appropriate, therefore, to address the disclosure issues first.

The disclosure dispute

The legal principles

29Disclosure by the parties of documents in their possession or control relevant to matters in issue is fundamental to the conduct of all civil litigation. A failure to disclose relevant documents will ordinarily give rise to a miscarriage of justice.[2]

[2] In the Marriage of Morrison (1995) FLC 92-573.

30The duty of disclosure is owed not only to the other party, but to the court. It includes not only a duty to disclose relevant documents, but a duty to disclose all material information.[3] That duty in turn is “fundamental to the whole operation of the Family Law Act in financial cases”.[4]

[3] Livesey v Jenkins [1985] 1 All ER 106, 114; cited with approval in various decisions of the Full Court of the Family Court of Australia.

[4] In the Marriage of Briese (1986) FLC 91-713; cited with approval in Black & Kellner (1992) FLC 92-287 and subsequently.

31The duty is proactive, and will not be satisfied by merely responding to specific requests by the other party. That must logically be so, given that the requesting party will generally have incomplete knowledge as to the documents in the possession or control of the other party prior to disclosure being given.

32Consistently with its proactive nature, the duty is continual. Timeliness is central to it. The imposition by the court or by rules of specific timeframes for disclosure of particular documents, or for that matter dates by which formal undertakings as to disclosure must be given, are not intended as the “outer limits” of the obligation to provide disclosure, nor are they to be used as a vehicle for obfuscation.[5]

[5] In the Marriage of Briese (1986) FLC 91-713.

33Over and above the general duty of disclosure which applies to all proceedings under the Family Law Act 1975 (Cth) (“the Act”), the Family Law Rules 2004 (Cth) (“the Rules”) impose specific duties on parties to a financial case. While self-evidently the general duty of disclosure applies only to documents and information relevant to matters in issue, the rules specific to the conduct of financial cases illuminate the determination of relevance, by reference to various broad definitions.

34Rule 13.04 is in the following terms:

13.04 Full and frank disclosure

(1)A party to a financial case must make full and frank disclosure of the party’s financial circumstances, including:

(a)the party’s earnings, including income that is paid or assigned to another party, person or legal entity;

(b)any vested or contingent interest in property;

(c)any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;

(d)any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;

(e)the party’s other financial resources;

(f)any trust:

(i)of which the party is the appointor or trustee;

(ii)of which the party, the party’s child, spouse or de facto spouse is an eligible beneficiary as to capital or income;

(iii)of which a corporation is an eligible beneficiary as to capital or income if the party, or the party’s child, spouse or de facto spouse is a shareholder or director of the corporation;

(iv)over which the party has any direct or indirect power or control;

(v)of which the party has the direct or indirect power to remove or appoint a trustee;

(vi)of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;

(vii)of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a trustee; or

(viii)over which a corporation has a power mentioned in any of subparagraphs (iv) to (vii), if the party, the party’s child, spouse or de facto spouse is a director or shareholder of the corporation;

(g)any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:

(i)in the 12 months immediately before the separation of the parties; or

(ii)since the final separation of the parties; and

(h)liabilities and contingent liabilities.

(2)Paragraph (1)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.

(3)In this rule:

legal entity means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.

35Rules 13.04(1)(a) and (d) define in wide terms relevant income to which the duty applies. It includes income earned by a party, but paid or assigned to another person or entity. It includes income earned by a legal entity “fully or partially owned or controlled” by a party; that definition captures, for example, income of a company (other than a public company) in which a party is a minority shareholder.

36Rule 13.04(1)(f) defines in wide terms trusts to which the duty applies. Rules 13.04(1)(b) and (c) define in wide terms property to which the duty applies.

37Rule 13.04(1)(g) defines in wide terms disposals of property to which the duty applies, subject to rule 13.04(2).

38Rule 13.05(2) requires parties who are aware that the completion of a Form 13 Financial Statement will not fully discharge their duty to make full and frank disclosure to file an affidavit adequate to discharge that duty. At the outset of financial proceedings, therefore, the parties are required to give sworn evidence discharging their duty to make full and frank disclosure of their financial circumstances.

39Again, that duty is ongoing and continual; so much is made clear by the express terms of rule 13.06.

40Rule 13.07 provides that the duty of disclosure applies to each relevant document that is or has been in the possession, or under the control, of the relevant party.

41Given the breadth and continual nature of the duty of disclosure in a financial case, and the potential for perceived tension between that duty and the intent that each case be resolved in a timely and cost-effective manner,[6] questions of proportionality are not infrequently raised. Those questions, properly understood, are answered by reference to the linchpin of the duty – relevance to matters in issue.

[6] Family Law Rules 2004 (Cth), r 1.04.

42In proceedings involving parties whose sources of income are not complex, who have no interest in or control of any legal entity, and whose existing interests in property and superannuation are readily identified, both parties may be fully informed to the extent required to do justice without overly extensive disclosure, particularly when the facts relevant to a consideration of the matters required to be taken into account pursuant to s 79(4) are largely non-contentious and the dispute centres on the exercise of discretion.

43In proceedings involving parties with complex financial affairs, more extensive disclosure will inevitably be required to ensure that both parties are fully informed to the extent required to do justice. That requirement becomes more acute where at the time of separation and thereafter one party has a greater understanding than the other of their financial affairs, or has superior direct access to relevant information and documents.

44Regardless of the complexity of the financial affairs of parties, the level of disclosure required to properly discharge the duty necessarily reflects the range and extent of the factual matters in issue.

Disclosure – the parameters of the dispute

45Two separate, but potentially related, issues as to disclosure are raised in the applications presently requiring determination. First, there is a dispute between the parties as to the extent to which the husband has complied with his duty of disclosure in the proceedings to date. Second, there is a dispute as to the extent of the further disclosure sought by the wife.

The husband’s disclosure to date

46An understanding of the dispute between the parties in relation to disclosure issues is informed by a necessarily brief summary of their financial affairs, the nature and form of the husband’s business interests, and the wife’s lack of knowledge of, and participation in, those business interests.

47As already noted, the husband is a businessman. He conducts his business activities through [Business A (“the Business”)]. In his affidavit filed on 14 February 2019 in support of his Form 1A response, he identified the Business as comprising some 38 separate entities. On the wife’s evidence, the composition of the Business has changed since then, with some entities being deregistered and other new entities being established.

48The husband has a close business relationship with [Mr G]. Mr G in turn controls a number of entities, some of which are referred to below.

49It appears that the husband at least generally adopts an approach whereby separate entities are established for each major project undertaken. The nature of his business is such that new projects commence from time to time, with new relevant structures being established.

50By way of example only, in his affidavit filed on 14 January 2020, the husband said that between mediation in August 2019 and a settlement date on 19 September 2019 he established [Entity A] (of which he is the sole director) as Trustee for the [Trust A] to [Property A]. There were other investors in the property acquisition, and on the husband’s evidence those investors required him to “make an investment to ensure an alignment of interests”. He established a new entity for that investment, being [Entity B] as trustee for [Trust B].

51Trust B borrowed $525,625 from each of [Trust C] and [Trust D]. The husband’s affidavit does not provide full details regarding either of those entities. The borrowings were guaranteed by the husband personally and by [Entity E]; the husband is the sole director and shareholder of that company, which is trustee for the [Trust E].

52Similarly, the husband set out details of a proposed development in [Suburb B], saying that [Entity F] as Trustee for [Trust F] entered into “Put and Call Options” for the relevant land in December 2017. The husband is the sole director and shareholder of Entity F. Again, a new entity was established more recently, in December 2019, to acquire three of the four relevant allotments of land. There are nine investors in that entity; one of them is a still further new entity established by the husband, [Entity G] as trustee for [Trust G]. On the husband’s evidence the project “will total circa $34,250,000, requiring $16,500,000 of equity and $17,750,000 of debt approximately”.

53Those limited examples demonstrate the inherently changing nature of the husband’s business interests, described by his counsel in submissions as a “moving feast”.[7] That inherently changing nature in turn brings into even sharper than usual focus the continual nature of the duty of disclosure, and the importance that the duty is discharged on an ongoing basis and in a timely manner. As will be seen below, the examples also demonstrate a basis for at least some of the wife’s complaints in that regard.

[7] Transcript of 4 February 2020, p 81 lines 21-22.

54Apart from issues of structural complexity, there are other difficulties associated with the fundamental task of establishing the existing interests of the parties in property. Mr E, engaged by the husband for the purposes of the proceedings, estimates the value of his business interests at $10,094,333. Ms F, engaged by the wife for the purposes of the proceedings, estimates the value of those business interests at $26,152,824. At a directions hearing on 7 February 2019, the husband’s solicitor told the presiding magistrate that the “[asset] pool may be $10 million”; at a hearing on 16 September 2019, the husband’s counsel told the same magistrate that the value of the property available for division between the parties was likely “somewhere around the $17 million, $18 million gross” mark, with a net outcome if all the assets were sold in 18 to 24 months of approximately $9 million.

55On the husband’s own evidence, the wife “has not been involved in the business, nor understood much of what was going on.”

56It is against that background that the wife complains that the husband has not complied with his duty of disclosure, and that when he has given disclosure it has not been timely. It is against the same background that the husband protests at what he regards as the incessant and disproportionate requests for disclosure from the wife and her lawyers, and asserts that he has given fulsome disclosure and will continue to do so.

57It is appropriate to consider first the wife’s complaints as to the timeliness of the husband’s disclosure.

58Firstly, I note that the last Financial Statement sworn by the husband was filed on 14 February 2019. While I acknowledge that in affidavits sworn since that date in relation to interim disputes he has provided some updating financial information, that does not of itself mean that he has necessarily complied with the requirements of rule 13.06.

59The wife identifies omissions in that financial statement. The husband declared his interest in the Business, but stated that current values were “unknown – subject to valuation, tax and accounting advice”. He attached to the financial statement a summary of position, including details of external debt and equity positions as at April 2018, and details of valuation and market value estimates as at the same date.

60One component of that evidence related to the development of the [Project A].

61The relevant land is owned by [Entity H] as the Trustee of [Trust H]. [Trust I] owns 50.01 per cent of the units in Trust H.

62The husband is the sole director and shareholder of Entity E. Entity E as Trustee for Trust E owns 4,740,102 units in Trust I.

63By that structure, the Entity E holds an indirect interest in Trust H of 6.67 per cent.

64The husband’s Financial Statement filed on 14 February 2019 made specific reference to that indirect interest, referring to a “valuation on file” showing a value for that interest of $4,740,000.[8]

[8] Financial Statement filed by the husband on 14 February 2019, annexure A.

65While the husband’s Financial Statement referred to valuation and market estimates as at April 2018, it is apparent from his subsequently provided disclosure that at the time of swearing that Financial Statement he had in his possession more current valuations of Project A (showing a market value at 17 January 2019 of $90 million, and an anticipated market value once completed of over $150 million) and [Project B] (showing a market value of $31,500,000).

66Those valuations in turn show that the figure adopted by the husband in his Financial Statement significantly understated the value of the Business’s indirect interest in Trust H at the date the financial statement was sworn.

67The valuations were not disclosed until 28 November 2019 and 18 December 2019 respectively. The parties had attended mediation over two days in August 2019, and the wife’s various applications for interim financial relief had been listed for hearing in September 2019.

68In submissions, the wife referred to other specific instances in which she says relevant disclosure has been given later than might properly be expected. She would suggest that at least some of the delay she identifies has been intentional and strategic.

69Again by way of example, she points to the development arrangements for Project A.

70[Entity J] is the development manager for Project A. The husband and Mr G are the joint directors of Entity J, which has issued one “A” class share, one “B” class share, and two ordinary shares. Entity E owns the “B” class share and one of the two ordinary shares.

71On 24 May 2017, Entity J entered into a Development Management Agreement with Entity H. That agreement provides for Entity J to be paid a monthly retainer of $30,000, plus various development fees based on a percentage of building works costs, civil project costs, and the sale price achieved for any lot sold. It provides further for a performance fee of a further percentage of the aggregate of the building works costs, civil works costs, and total sale price achieved for any lot sold. The agreement does not provide an end date, and is ongoing.

72The Development Management Agreement was first disclosed by the husband on 28 November 2019.

73The wife’s suspicions are further aroused by the election of Entity J to defer the issue of invoices to Entity H, and the absence of reference in the husband’s financial statement to the income receivable by Entity J under the Development Management Agreement.

74The wife points further to arrangements between the husband and Mr G in relation to a separate development in [Suburb C, (“Project C”)].

75Mr G is the sole director and shareholder of [Entity K], which is Trustee for [Trust K]. The husband is the sole director and shareholder of [Entity L], which is Trustee for [Trust L].

76Entity K holds two million units in [Entity M] as Trustee for [Trust M] on behalf of Entity L, pursuant to a bare trust agreement executed on 20 February 2017. The bare trust agreement was not disclosed by the husband until 27 June 2019, and was not referred to in his financial statement or affidavits filed prior to the mediation and the scheduled hearing of interim financial matters in September 2019.

77The wife raises other matters in relation to the husband’s disclosure regarding his involvement in [Project D]. Those matters do not require recital for present purposes, but are referred to further later in these reasons.

78On 13 November 2019 the husband entered into a contract to borrow money to fund the litigation. He apparently offered the [Suburb A] home, which is registered in the sole name of the wife and in which she and the children live, as security for the loan. A caveat was lodged against the home on 8 January 2020, and the husband did not disclose the contract until 21 January 2020. At the hearing before me, the husband’s counsel was unable to offer any plausible explanation for that course of conduct on the part of the husband.

79On 28 January 2020, the husband entered into a contract to purchase a two thirds interest in a home [in Suburb D] ([“the Suburb D home”]), with the other one third being purchased by [Entity N]. The total purchase cost was $2.7 million. According to the husband’s counsel, Entity N contributed $800,000 towards the purchase price; the obvious mathematical discrepancy was not explored or explained. Counsel said that on his instructions the entity was effectively lending $800,000 to the husband, who would repay that amount with interest at the conclusion of the proceedings. He said that the husband had borrowed the rest of the purchase price, but provided no details.

80I enquired of the husband’s counsel as to when the entity in question was incorporated, anticipating that it would have been at the very latest at the time the relevant offer to purchase the property was made, but he was unable to clarify that point beyond saying “this has all just happened in the last week”.

81That transaction and the associated documents were apparently disclosed to the wife’s solicitors late on the afternoon of 3 February 2020, the day before the hearing at which it was argued on behalf of the husband that he did not have the capacity to fund various lump sum payments sought by the wife without the sale of assets. There was no mention of any intention on the part of the husband to purchase a home in either his affidavit sworn on 14 January 2020 or the submissions filed on his behalf on 31 January 2020, apparently after he had executed the relevant contract.

82The approach to disclosure on the part of the husband as outlined by way of the examples above is not, it seems, limited to matters relating to his own personal financial circumstances and the value and income stream of the business entities. It extends to matters directly relevant to the wife’s financial circumstances.

83In her affidavit filed contemporaneously with her initiating application, the wife said that in or about July 2018 the husband agreed to pay $2,000 per week as and by way of “spousal maintenance”. She acknowledged having received that sum since July 2018. In his affidavit sworn on 13 February 2019 in response, the husband confirmed that evidence, saying:

“In addition I have been paying [the wife] $2000 per week since 5 July 2018 as referred to at paragraph 200 of [the wife’s] Affidavit.”

84In his affidavit sworn on 29 August 2019, and filed in anticipation of the interim hearing scheduled for 16 September 2019, the husband said:

“Since 5 July 2018, I have been paying [the wife] $2000 per week as and by way of maintenance. I agree to continue making these payments until the final determination of our matter by agreement or court order.”

85In his affidavit sworn on 14 January 2020 for the purposes of the hearing before me, having referred to and adopted his previous affidavits, the husband said:

“In short, [the wife] receives a tax-free amount from me in the sum of $104,000 per annum.”

86By an email from the accountant for various entities and the parties sent on 23 January 2020, the wife’s solicitors were informed, they say for the first time, that the payments of $2,000 per week to the wife were not in fact made by the husband but were paid to her by [Trust O], by way of advances recorded in her loan account, thereby increasing her indebtedness to that entity.

87Those matters were raised by counsel for the wife in his submissions. Initially, counsel for the husband did not respond to them. The following exchange then occurred:

[HIS HONOUR]: The other matter which you haven’t touched on in your submissions, which [counsel for the wife] did, and I will give you the opportunity to do so, is the proposition that the $2000 a week has not actually been paid by your client in the form of maintenance but has been drawn down by the wife from capital, given that it has come from the loan account.

[MORT, MR]: Yes. And what ‑ ‑ ‑

[HIS HONOUR]: That was a proposition put. So you, unless I missed it, haven’t responded to it.

[MORT, MR]: Yes. Well, in relation, if I haven’t responded, your Honour, what my client says in relation to that is that he’s in a constant state of robbing Peter to pay Paul. And if that results in an increased loan account to the wife, at the end of the day in the wash up of those matters, clearly, there will be some accounting that addresses that situation. Because at this stage, your Honour, he just hasn’t got the funds to be paying out that $2000, aside from that account. And that’s what he’s using.

So – and he will continue to pay that, your Honour. And there’s no expectation that the wife should bear the brunt of that on the basis it’s spousal maintenance. But at the end of the day, that will be accounted for properly, sir. That’s all I can say in relation to that.

88I do not suggest that the approach taken by the husband as to the provision of funds for the maintenance of the wife was necessarily inappropriate; on the presently limited and untested evidence as to the interrelationship of the various entities, and their cash flows, that is not a conclusion that could safely be reached at this time. Nevertheless, at the very least the fact that the payments were being arranged in that way should have been disclosed; to the contrary, whether intentionally or otherwise the husband’s evidence in relation to those payments was misleading.

89The husband’s evidence dealt with some of the wife’s complaints specifically. His explanations were limited and unconvincing.

90The submissions made by his counsel primarily pointed to the volume and number of documents disclosed by the husband. With respect, those submissions missed the point; timely disclosure of the haystack is neither here nor there when the needle has not merely been hidden within it, but has not been disclosed at all.

91I recognise that the nature and complexity of the husband’s business interests are such that compliance with his duty of disclosure is an onerous task. The onerous nature of the task, however, does not excuse him from it. The limited but significant examples outlined above support the conclusion that the husband has not properly discharged his duty of disclosure in a timely manner to date.

92I make no finding as to whether that failure is properly characterised as inadvertent, or strategic and intentional. While the delay in disclosure of clearly relevant documents referred to above until after particular events in the litigation, and for that matter until after the issue of a subpoena directed to the accountants for the Business, gives rise to suspicion in the minds of the wife and those advising her, that is a matter for trial rather than any finding on the papers.

93The finding I have made, however, potentially informs not only a consideration of the orders for specific disclosure sought by the wife but also her submissions to the effect that I should take a robust view in considering the husband’s capacity to meet the various interim financial orders sought, and should not be unduly cautious about making findings in her favour.[9]

The further disclosure sought by the wife

[9] Weir & Weir (1993) FLC 92-338.

94As noted earlier in these reasons, at paragraph 8 of a consolidated Minute of procedural orders filed on 6 November 2019 pursuant to earlier directions made by me, the wife listed documents meeting 42 separate descriptions and sought that the husband provide disclosure of those documents forthwith. For ease of reference, a copy of paragraph 8 of the consolidated minute is annexed to these reasons.

95As directed, the wife filed her submissions in relation to that issue on 15 November 2019. In those submissions, she sought disclosure of certain further documents.

96By the time the husband filed his responding submissions, a number of matters in dispute had fallen away, as he had given disclosure of the documents listed in 11 of the 42 descriptors in the consolidated Minute, and six of the descriptors in the wife’s submissions.[10] The timeliness of that disclosure is another matter, but need not be addressed further in these reasons.

[10] Documents described in paragraphs 8(a)(ii), 8(b)(iii), (iv), (vi), (vii) and (ix), 8(d)(v) and (vi), 8(e)(v), 8(g) and 8(k) of the consolidated minute, and paragraphs 25, 48(a) – (c), 78(d) and 80 of the submissions.

97In his submissions, the husband asserted that documents meeting 14 of the 42 separate descriptors in the consolidated Minute, and two of the descriptors in the wife’s submissions, cannot be disclosed, as they do not exist. In relation to one category in particular, he said the documents do not exist “at this point in time”.[11] He did not contend that the documents described, if they do come into existence, would not be relevant to matters in issue and subject to his duty of disclosure. The dispute in that regard is therefore readily addressed by an order requiring him to give prompt disclosure of those documents if and when they come into existence. Similarly, the husband volunteered that documents meeting three of the descriptors in the consolidated minute would be disclosed once available.

[11] Husband’s Submissions filed 4 December 2019, page 16 point 8(l).

98Orders in those terms will be made in relation to the documents described in the following sub paragraphs of the consolidated minute: paragraphs 8(a)(i), (iii) and (iv), 8(b)(i), 8(c)(i), (iv) and (v), 8(d)(i), (iv) and (viii), 8(e)(i), (iv) and (viii), and 8(l).

99Orders in the same terms will be made in relation to the documents described at paragraphs 48(d) and 78(e) of the wife’s submissions.

100Accordingly, at this point it is only necessary to deal with the wife’s application for disclosure of specific documents to the extent that application was actively opposed in relation to certain categories of documents, or where the husband’s response in submissions was equivocal.

101Even in relation to that subset of categories of documents sought, the issue can be narrowed still further. Certain of the documents sought are feasibility studies, planning approvals and applications, projections and forecasts. The husband says that multiple feasibility models are created for individual transactions, and that the models may go through multiple iterations while a transaction is being negotiated. He says further that projections and forecasts rely heavily on “future hypothetical scenarios and assumptions”, and that planning applications are “long detailed documents with various specialist consultant reports annexed”. In each case, he queries the relevance of the documents to matters in issue, and the proportionality of the request.

102It is to be expected that the single expert witness to be appointed in relation to the issue of the value of the interests of the parties in the business entities will, on progressing what will on any view be a significant task, reach a view as to whether the provision of those documents will inform the opinion to be reached. As I am not presently persuaded that the documents sought are relevant to matters in issue, I decline to order their immediate production; rather, I propose to order that they be produced if requested by the single expert witness.

103Similarly, the husband disputes the relevance to matters in issue of the wife’s request for the production of BAS statements, and the proportionality of that request. Again, I am not presently persuaded that those documents are relevant to matters in issue, but acknowledge the possibility that the single expert witness may seek them. I propose to make an order in the terms described in the immediately preceding paragraph.

104The documents to be the subject of an order in those terms are those described in sub paragraphs 8(b)(ii), 8(b)(viii), 8(c)(ii), 8(c)(iii), 8(d)(ii), 8(d)(iii), 8(e)(ii), 8(e)(iii) and 8(m) of the consolidated minute, and those described at paragraphs 78(a) and (b) of the wife’s submissions.

105The husband points out further that the documents described at sub paragraphs 8(h), (i), and (j) of the consolidated Minute are properly characterised as being the wife’s documents. He therefore resists the proposition that he should be required to disclose them, given that they are in the wife’s possession or control. I accept his submission in that regard.

106That leaves a relatively small number of documents in respect of which there remains a dispute, or where the husband’s response to the relevant request in his submissions was equivocal. For the sake of clarity, the relevant subparagraph of the consolidated Minute or the wife’s submissions is reproduced in each case.

107The wife sought disclosure of documents meeting the following descriptions:

The Respondent do forthwith provide disclosure of the following documents:

…

(b)In relation to [Entity H] as trustee for the [Trust H]:

…

(v)Any management agreements, consulting agreements, performance fee agreements, acquisition agreements and/or developer’s agreements involving the Respondent, the Respondent’s entities or any other entity in which the Respondent or his entities have an interest (including by way of bare trust agreements);

…

(e)In relation to [Entity J] as trustee for the [Trust J]:

…

(vi)Detailed listing of the transactions allocated to the “Consulting Fees” (or similar) account detailed in the 2018 Financial Statements for the period 1 July 2018 to date;

108Consulting fees and the like received by the husband or by entities under his control are clearly relevant to his financial circumstances. Documents relating to those fees are accordingly clearly the subject of his duty of disclosure.

109To the extent it might be suggested that the detailed listing of transactions sought by the wife at paragraph 8(e)(vi) of the consolidated Minute in relation to Entity J is disproportionate given the husband’s assertion that the revenue generated by that entity is “non-consequential in an overall sense”, that might have more resonance were it not for the findings already made regarding the husband’s approach to disclosure more generally.

110I propose to make the orders sought by the wife. Self-evidently, if there are no documents in existence meeting the relevant description nothing will be required of the husband other than to confirm that to be the case.

111At subparagraph 8(f) of the consolidated Minute, the wife sought disclosure of documents meeting the following description:

(f)Any bare trust agreements, management agreements, consulting agreements, performance fee agreements, acquisition agreements, and/or developer’s agreements between [Entity K] as trustee for the [Trust P] and the Respondent, the Respondent’s entities, or any other entities in which the Respondent or his entities have an interest;

112In his submissions, the husband did not suggest that the documents sought were not relevant to matters in issue. Rather, he stated that no development agreement currently exists between Entity K and any Business entity, while acknowledging that [Entity Q] has “recovered some costs” from Entity K, that [Entity R] has been charging the project development management fees on a monthly basis, and expressing the intention that a development agreement will be entered into “for completeness”.

113The husband’s submissions are silent in relation to the other forms of agreement referred to in the wife’s request. Given the matters already canvassed earlier in these reasons, that silence may or may not be significant.

114I propose to make an order as sought by the wife.

115At paragraph 48(e) of the wife’s submissions, she sought disclosure of “documents evidencing payments made to the husband or his entities in respect of any management or services agreements since 1 July 2018” in relation to Project A. The husband’s responding submission referred to “the disclosure items submitted under 8(b)(v)” of the consolidated minute, discussed above. Again, there is no suggestion by the husband that the documents sought are not relevant to matters in issue and I propose to order that they be disclosed to the extent that has not already happened.

116The final dispute in relation to specific disclosure relates to the wife’s request at paragraph 78(c) of her submissions for disclosure of “correspondence between [the husband] and [Mr G] with respect to [Entity M] as Trustee for [Trust M]”. In response to that request the husband asserts that he is a minority investor only in that project, queries the relevance of email correspondence “in light of the documents already provided”, asserts that many hours would be required to review all emails between he and Mr G to identify documents meeting that description, and queries the proportionality of the request. A similar request is made at paragraphs 8(d)(vii) and 8(e)(vii) for correspondence with Mr G in relation to consulting fees involving Entity J.

117I am not satisfied at this stage that the documents requested are relevant to matters in issue, and accept that the volume of correspondence between the husband and Mr G in relation to their business affairs is likely such as to render the task of reviewing all of that correspondence to isolate emails and the like specific to the entity in question unduly burdensome at this stage. I decline to make the orders sought, but make it clear that the request or similar may be renewed if, after the publication of the parties of the single expert witness report, it is considered appropriate.

118I turn now to consider the dispute between the parties in relation to the interim payment of funds to the wife to meet her litigation expenses. I consider it appropriate to consider that dispute at this point, given the requirement of s 75(2)(n) that I take into account the terms of any order made or proposed to be made under s 79 when determining the spousal maintenance dispute.

The wife’s application for lump-sum payments for litigation funding

The legal principles

119An order for the provision of a lump sum payment for litigation expenses may be grounded in one or more of the powers to award spousal maintenance, make orders for the interim alteration of property interests, or make orders as to costs.[12]

[12] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.

120It is essential that the relevant head of power be clearly identified, as it is “the source of power that determines the necessary preconditions and relevant considerations for making the order”.[13]

[13] Paris King investments Pty Ltd v Rayhill [2006] NSWSC 578, [30].

121Where the application is grounded in the power to make interim orders for the alteration of property interests, there are two stages to the hearing. The first requires the court to resolve whether to exercise the relevant power before a final hearing, bearing in mind that although the power under s 79 should ordinarily be exercised once only, circumstances (which need not be compelling) may arise where the power is exercised before there can be a final hearing. The second requires the court, having determined to exercise the relevant power, to undertake consideration of the matters in s 79(4). That consideration may, however, be brief particularly in circumstances where it is likely that the eventual entitlement of the applicant will be sufficient to cover the advance.[14]

[14] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466, [137].

122Self-evidently, the applicant should have “at least an arguable case for substantive relief which deserves to be heard”.[15] That said, the mere fact that upon a final hearing the applicant would receive the property being sought, or a greater amount, is of itself not sufficient to establish an appropriate case for an interim order.[16]

[15] Paris King investments Pty Ltd v Rayhill [2006] NSWSC 578, [30]; Chester & Chester (1995) FLC 92-612.

[16] Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466, [139].

123A position of relative financial strength on the part of the respondent, and the involvement in the case of complex financial issues requiring expert reports, will add weight to the case for an interim order. A comparison of the capacity of each of the parties to meet their own litigation expenses, and a consideration of their financial circumstances generally, will also be relevant. Evidence as to the applicant’s incurred and likely future costs of the litigation will generally be required, as may be a consideration of the bone fides of the interim application.[17]

[17] Ibid, [138] & [141].

124Where the application is grounded in the power to make orders as to costs, the court must refer to s 117, including the starting point established by s 117(1). The matters just referred to may inform the court’s opinion as to whether there are circumstances that justify the making of an order as to costs, and may also inform the consideration of what order, if any, should be made.[18] The factors set out in s 117(2A) must be taken into account and balanced. The power conferred by s 117(2) to make an order “as to costs” is not simply a power to make an order for costs, which would only authorise orders in respect of costs already incurred.[19]

The parameters of the dispute

[18] Family Law Act 1975 (Cth), s 117(2A)(g).

[19] JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184.

125The wife seeks:

(a)the payment of the sum of $400,000 for her legal expenses and $50,000 for forensic and accountancy fees, to be paid if necessary in instalments on terms set out in her amended application, with payment to be made to the trust account of her solicitors and applied to “her ongoing legal fees forensic and accountancy fees [sic]”;

(b)the payment of a further sum of $400,000 towards those fees, within 60 days.

126In his amended response filed on 23 January 2020, the husband proposed:

(a)the sale of three units [Suburb D], and the payment to the wife of 55 per cent of any balance remaining after costs of sale and “discharge or reduction of cross collateral security facilities of all loan accounts” registered against the title as required by the relevant bank, with the payment to the wife to be “categorised [sic] as a partial property settlement, to be distributed in the most tax effective means possible”;

(b)that the wife retain exclusive occupation of the Suburb A home until further order, on certain conditions, but that otherwise the parties “place all real property held individually or jointly or in the name of any corporate entity over which they have control, on the market for sale”, by jointly appointing a liquidator to conduct and control the sales, with the sale proceeds to be applied towards sale costs, discharge of all “loan accounts secured registered against the title of real properties” (sic), discharge of all “unsecured loans in relation to the real properties”, discharge of taxation liabilities incurred as a result of the sales, and with the balance of the sale proceeds to be held in a high interest account under the name of the relevant entity pending agreement or court order;

(c)similarly, that the parties do all things necessary to advertise and sell all units held in the unit trusts, with loans and taxation liabilities to be paid as was sought in relation to the sale of real property, and with the balance of proceeds again being held in a high interest account under the name of the relevant entity pending agreement or court order;

(d)by way of interim property settlement, the wife to receive $400,000 from whichever sale proceeds were first available, with the husband to receive $300,000.

127In his Form 1A response filed on 14th February 2019, amongst other things, the husband had proposed the prompt sale of the Suburb A home, with the proceeds of sale (after expenses and discharge of the home loan) to be distributed by providing $150,000 towards the wife’s past and future legal expenses, payment of the children’s school fees and various amounts in relation to the wife’s ATO liability, payment of any bond and one year’s rent for the wife and children, plus reasonable moving expenses, with the balance to be divided equally between the parties by way of “partial property settlement”.

128Prior to the hearing scheduled for 16 September 2019, the husband changed his position. He no longer sought the sale of the Suburb A home, but now proposed that “[the Business] assets (including all real properties and unit trusts) be placed on the market and marketed for sale with the assistance of an independent administrator”. Annexed to his affidavit filed on 30 August 2019 was a proposal from [Liquidator A], commissioned by the husband via his accountant, to “act as independent liquidators” to various nominated entities, at an estimated cost of $25,000-$35,000 plus GST for each of the property holding entities, and $30,000-$40,000 plus GST for each of the entities owning units in unit trusts.

129At the hearing before a magistrate on 16 September 2019, the husband’s counsel confirmed that the husband was pursuing that relief, saying he was “seeking to sell up all the assets of the various entities to crystallise those properties and any debt attached to those properties and tax liabilities”, describing the process as “easy – we just appoint a liquidator or an administrator – someone who can deal with those matters at arm’s length.”

130At the commencement of the hearing on 4 February 2020, I sought to confirm the husband’s position with his counsel, putting the proposition that it appeared to me that the relief primarily sought by the husband was the liquidation described above, with his proposition for the appointment of a single expert witness to value the entities being his alternative position in the event that a liquidation was not ordered.

131The following exchange then ensued:

[HIS HONOUR]: And plan A is liquidation and plan B is [Single Expert evaluation], as I’ve perceived it. But please tell me if I’m wrong.

[MORT, MR]: Yes. Well, you wouldn’t be aware of it, your Honour, because of a - latent instructions. But my client would prefer, based on forecasts and the like – which I will take you through in due course – for a single expert to be appointed. He believes that the parties might enjoy a better property settlement if that route is taken. But as an alternative, certainly, it can be liquidated if the – if funds are required urgently.

[HIS HONOUR]: Well, having hoped to clarify, I’m now more confused. I had understood that his primary position was that all real estate, in respect of which the parties have an interest, should be liquidated. And that orders on an interim basis should be made for that. It did occur to me that perhaps - without knowing - that it might at least be raised, the possibility that that wouldn’t produce the best overall outcome for the parties. Which is what you’re alluding to now.

[MORT, MR]: Yes.

[HIS HONOUR]: So what is he actually seeking?

[MORT, MR]: Yes. So, primary, your Honour, a single expert be appointed.

[HIS HONOUR]: Yes.

[MORT, MR]: And his – the fall-back position would be to effectively liquidate the assets.

[HIS HONOUR]: All right. Thank you. So effectively, it’s plan A and B have flipped. Rather than anything else.

[MORT, MR]: Yes. The other thing I’m concerned about is this, your Honour - just on that point, and I won’t take up too much time – is that, if it were a situation of liquidating assets, it might ultimately delay the trial, which I will take you through, in due course, the procedural elements of this case.

[HIS HONOUR]: All right. Thank you.

132It having been established that the husband no longer pursued the proposition that all the real estate in which the parties have a direct or indirect interest should be liquidated, later in the hearing it emerged that the husband’s position in relation to the distribution of proceeds of sale of the Suburb D units had also changed.

133At the hearing on 16 September 2019 and by subsequent correspondence, the wife’s lawyers had confirmed that she had no objection to the sale of those units at $785,000 (unit [A]), $765,000 (unit [B]) and $650,000 – $820,000 (unit [C]), being prices nominated by the husband’s accountant as being achievable in the short term, on the condition that she was kept informed of any offers or counteroffers, and approved the sale.

134As noted above, in his amended response the husband had proposed that the wife receive 55 per cent of the net proceeds of sale of those three units.

135In the course of submissions at the hearing on 4 February 2020, the husband’s counsel estimated that the net proceeds of sale from those properties, after tax, would amount to approximately $224,499. He said that his client was “content for those monies to go to the wife by way of a partial property settlement”.[20]

[20] Transcript 4 February 2020, p. 72 lines 47-49.

136By that somewhat tortuous process, the following emerged as the husband’s position:

(a)he had no difficulty with the proposition that $400,000 should be made available to the wife by way of interim property settlement, albeit on the basis that $300,000 should be made available to him, if sufficient properties were sold to release the funds required to achieve that;

(b)while he no longer pursued the sale of properties he would say would be required to release those funds, he still sought the sale of the three units at Suburb D;

(c)he proposed that the wife receive the whole of the net proceeds of those sales after discharge of relevant liabilities and payment of tax, estimating that by that process she would receive $224,499; and

(d)he maintained that no lump sum payment to the wife was achievable until property had been sold to release the required funds.

137It follows that it is common ground that the court should exercise the relevant power to make orders for the alteration of property interests prior to a final hearing, and that the wife has a proper case for substantive relief.

138It is also common ground that the amounts sought by the wife are comfortably less than what will be her eventual substantive entitlement even on the husband’s case, given:

(a)the evidence of Mr E, relied upon by the husband, as to the value of his business interests; and

(b)the substantive relief sought by the husband that he “pay or cause to be paid to the wife such sum as shall be further particularised following the receipt of valuation reports and tax and accounting advice as to equate to an equal division of the parties’ net property and financial resources.”

139There is no presently relevant dispute, either, as to the matters requiring consideration pursuant to s 79(4)(a) to (c) inclusive. It is common ground that the husband has been the primary breadwinner throughout the relationship, working hard and successfully in that role, and that the wife has been the primary homemaker and parent. It is also clear that the wife has made indirect financial contributions by virtue of the legitimate steps taken by the parties to reduce tax and protect assets.

140For present purposes it is not suggested that the proposed orders would have any relevant effect upon the earning capacity of either party. There are no other relevant orders made under the Act, other than the parenting orders already mentioned. As noted, there is a child support assessment in place, and the husband is paying or causing to be paid significant school fees.

141While there are disputes between the parties in relation to some of the matters referred to in ss 75(2), in the circumstances those disputes are of more potential relevance to the issue of interim spousal maintenance, rather than the matter presently under consideration.

142The dispute therefore centres primarily on the availability of funds to meet what is sought by the wife, and the husband’s assertions that the legal and associated costs being incurred by the wife are unreasonable and disproportionate, and that it is accordingly not just and equitable to make an order for the quantum sought.

143For the sake of completeness, I note that neither party made submissions to suggest that the payments sought should be ordered pursuant to s 117(2).

The wife’s litigation expenses

144The amounts sought by the wife are set out above, and need not be repeated.

145At the hearing on 4 February 2020, I required the solicitors for the parties to forward to the court comprehensive estimates of future costs, and statements of costs already incurred.

146The wife’s solicitors have billed her a total of $651,982.73 including GST. Her previous solicitors had billed her $25,445.58. In addition, she has been billed $65,711.63 by the accountants engaged to advise her in the litigation, and $2,090 by counsel.

147She has paid her present solicitors a total of $108,793.74. She has paid the accountants $37,692.33. Her previous solicitors, and counsel, have been paid in full.

148The payments the wife has made to date have been sourced primarily from monies from the sale of some matrimonial assets following an agreement in that regard with the husband ($85,577.07), monies received from [Entity S], an entity of which she is the sole director and shareholder ($148,012.22) and monies deposited by the wife from her bank account. Some monies were also returned to the wife at her request.

149The wife’s lawyers stated that at the time of the notification she had unbilled work in progress of $22,916.50.

150The wife’s lawyers estimate that further costs of between $90,000 and $150,000 will be incurred in preparing the matter for trial, while acknowledging that the amount “could be more”. Costs of $15,070 per day for trial are estimated, with the prospect of the trial lasting 20 hearing days. Counsel will also require significant preparation time for trial, estimated to be at a cost of between $105,000 and $150,000. Significant witness and valuation fees are also likely to be incurred.

151The husband’s solicitors advised that he had paid fees to his first solicitors totalling $83,433.32, and to his second solicitors totalling $203,640.15. He had incurred accounting fees totalling $67,210, plus additional fees to the accountant engaged by him to provide advice in the litigation in the sum of $40,669.20. In addition, he had incurred counsel fees and disbursements of $30,103.85.

152All of those fees have been paid. The husband borrowed $79,792.62 from a litigation funder as referred to earlier in these reasons. He also borrowed $20,000 from a Mr [H]. Otherwise, the fees were paid from the funds of various entities under his control and are said to have been “coded to [his] personal loan account”.

153The husband’s lawyers estimate that he has approximately $7,000 worth of unbilled work in progress with them, and between $30,000 – $35,000 worth of unbilled work in progress by counsel.

154They estimated his future costs through to a four-day trial at between $220,000 and $475,000.

155It will be seen from that summary that, while the wife has incurred significantly higher fees than those incurred by the husband, the difference is not as stark as initially suggested by counsel for the husband. Both parties have incurred very significant legal and accounting fees, and both have been advised that they are likely to incur still further very significant costs if the matter proceeds without resolution.

156Against that background, and bearing in mind the concessions made by the husband referred to above, it was sensibly not suggested that the wife’s application for litigation funding was other than bone fide. While at the hearing on 16 September 2019 the husband’s counsel sought to persuade the magistrate that the proceedings should not be assigned to the complex track, the husband now appears to accept that there are complex financial issues in the case, requiring not only the preparation of expert reports but in all likelihood close scrutiny of those reports. Little more need be said in relation to that matter than to point to the disparity in the opinions of Mr E and Ms F already referred to.

157It cannot seriously be suggested that the husband’s financial position is other than superior to that of the wife. To date, the husband has been able to meet his legal and accounting costs to an amount in excess of $400,000; while just under $80,000 of that amount was sourced from a litigation funder, and $20,000 was apparently borrowed from Mr H, the balance was sourced by recourse to the funds available in entities controlled by the husband.

158I do not ignore the assertion that those transactions have been “coded to [the husband’s] personal loan account” in the relevant entities; the fact remains that he has had access to the funds. I also note that the monies which the husband deposed to having himself paid to the wife by way of periodic spousal maintenance have been similarly “coded” to her loan account in the relevant entity.

159In contrast, the wife is in significant debt to her lawyers, and to a lesser degree in debt to her accountants. There is no prospect of her meeting her legal and accounting costs from income or resources under her exclusive control.

160I am comfortably satisfied that it is appropriate in all the circumstances to make an interim order for the alteration of property interests in favour of the wife. The only issue which I perceive as potentially limiting that order to an amount less than what she seeks is the availability of funds. I am not persuaded that it is appropriate to make any interim orders in favour of the husband, noting in any event that was not pressed by his counsel.

The availability of funds

161It is common ground that the Suburb D units may be sold, and the net proceeds of sale paid to the wife. The husband’s counsel estimated (on instructions) those likely net proceeds to be in the vicinity of $224,500.

162The more contentious issue is the availability to the husband of other funds from which to make the payments sought.

163In her affidavit sworn on 6 January 2020, at the request of the wife’s solicitors, Ms F directly addressed the issue of what she described as “sources of cash funding”.

164She noted that the cash flow forecast report for Entity F indicated an incoming cash receipt of $1,500,000 (ex GST) in relation to [Project E], with that payment being anticipated for receipt in February 2020.

165In his affidavit sworn on 14 January 2020, the husband confirmed that Entity F had achieved practical completion of Project E on 6 January 2020, had issued its final invoices, and anticipated payment “in the next few weeks”. The amounts payable totalled $2,995,722 plus GST. After payment required to the relevant builder, the net revenue to Entity F was said by him to be $2,360,567.

166The husband went on to say that the money received would be “used to run the business” and make what he described as “outstanding payments”. The payments so described included an amount of $95,000 which he proposed to apply to the prepayment of the whole of the children’s school fees the 2020. It also included an amount of $260,000 for employee bonuses, and a payment of $460,558 described as “[Business] Working Capital”.

167Ms F also noted that the relevant report showed an incoming cash receipt in relation to the “Developer Claim –of $365,000 (ex GST)” in March 2020. While the husband, as noted by his counsel in submissions, referred to the relevant project at paragraph 18 of his affidavit sworn on 14 January 2020, he did not dispute the evidence of Ms F in relation to the expected incoming cash receipt.

168Ms F noted further that at 30 June 2019 the parties were owed various unpaid present entitlements within the Business.

169At that point:

(a)[Trust T] owed the husband $348,586;

(b)Trust E owed the husband $742,909;

(c)[Trust U] owed the husband $55,000;

(d)Trust T owed the wife $352,370; and

(e)[Trust V] owed the wife $55,000.

170The husband did not dispute the accuracy of that evidence.

171Ms F further noted additional sources of cash funding as including the Business’s share of:

(a)development management fees payable by Entity J, which as at 30 June 2019 had cash funds available of $539,481;

(b)land management fees payable by the Trust H to Entity J, yet to be quantified; and

(c)Project D management and final development fees, which she estimated at between $1,400,000 and $1,800,000.

172The development management fees payable to Entity J have been referred to earlier in these reasons. The husband denies that the monthly retainer of $30,000 payable has been forgone or deferred; rather, he says that invoices have not been raised as they would only lead to a need for repayment in due course.

173The payments to which Entity J is entitled, however, are not limited to that monthly retainer. It is entitled to a Civil Development Management Fee of 4 per cent (exclusive of GST) of the civil project costs as defined in the Development Management Agreement. It is entitled also to a Building Development Management Fee of 4 per cent (exclusive of GST) of the building works costs as defined in the agreement. It is also entitled to a Land Development Management Fee, being a market-based fee expressed as a percentage of the total sale price achieved for any lot sold. The fee payable is to be determined by two named investors in their sole discretion, but with a dispute resolution process built into the agreement. Still further, Entity J is entitled to a performance fee of 1 per cent of the aggregate of the building works costs, civil works costs, and the total sale price exclusive of GST achieved for any lot.

174In his affidavit sworn on 14 January 2020, the husband said that Entity R had received $1,400,000 plus GST on 12 December 2019 from Entity K as its share of payments received by that entity from [Company A] for the Project D. He said that the monies received were used to make a payment owed by Entity L to [Entity W] which was required to be paid by 30 November 2019.

175The husband’s counsel tendered, without objection, a spreadsheet prepared by or at the direction of the husband as to the distribution of the revenue from Project E referred to above. That spreadsheet showed the opening bank balances of various entities under the control of the husband as at 16 January 2020, immediately prior to the receipt of the Project E revenue of $3,295,295 on 17 January 2020. Funds were applied to various expenses, and approximately $2,400,000 was transferred in two tranches to [Entity V].

176On the husband’s submission, the expenses paid included:

(a)personal tax payments for the husband totalling $98,490;

(b)personal tax payments for the wife totalling $100,972;

(c)prepayment of school fees totalling $93,454;

(d)two separate weekly payments to the wife totalling $4,000;

(e)a payment to the husband of $18,000; and

(f)payment to Mr E, who is engaged by the husband for the purposes of the litigation only, of $40,669.

177After those payments had been made, and after various business related expenses across a number of entities, including significant loan repayments, had been made, the spreadsheet showed the “remaining funds” available in bank balances of the various entities as totalling $1,071,026 as at 31 January 2020.

178In answer to a question from me, counsel for the husband confirmed that to be the case.

179Understandably, counsel for the wife pointed to those monies as the immediately available source of funds for the payments sought by his client.

180Counsel for the wife also noted that on the day he swore his affidavit on 14 January 2020, the husband caused $96,241.98 to be paid off his various credit cards, and paid his former solicitors $30,000. Those payments were made before the receipt of the Project E income.

181I acknowledge that the husband’s business activities involve ongoing overheads including the servicing of debt. Nevertheless, the evidence as summarised in these reasons, as well as the concessions made by counsel for the husband as to both the cash remaining from the Project E revenue and the steps taken by the husband to acquire a two-thirds interest in a $2.7 million home in the days leading up to the hearing, and reinforced by the approach I have concluded I am entitled to take in light of my earlier findings as to his approach to disclosure, satisfy me that he is able to make the initial payment of $450,000 sought by the wife without awaiting the sale of the Suburb D units.

182Given that there are other overheads to be met, and that the wife has acknowledged the possibility that it may be necessary for that amount to be paid in tranches, I propose to order the payment of $250,000 within 14 days, a further $100,000 within 28 days, and a further $100,000 within 42 days. Those payments are to be paid to the trust account of the wife’s solicitors and applied to her legal, forensic and accountancy fees.

183The present evidence does not enable me to conclude that the husband will have available to him the further sum of $400,000 sought by the wife to be paid within 60 days. I do, however, propose to make orders as have been broadly agreed between the parties for the sale of the Suburb D units and the payment of the net proceeds of sale to the wife. Again, those proceeds are to be paid to the trust account of her solicitors and applied to her legal, forensic and accountancy fees.

The wife’s application for spousal maintenance

The legal principles

184Section 72(1) of the Family Law Act 1975 (Cth) (“the Act”) provides that a “party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support him herself or himself adequately… having regard to any relevant matter referred to in s 75(2).”

185Any such liability is then “crystallised by the making of an order under s 74(1)”,[21] which provides that the court may make such order as it considers proper.

[21] Hall & Hall (2016) FLC 93-709, 81,450 [4] (‘Hall’).

186The consideration of the capacity of a party to self-support “adequately” does not refer to support merely at a subsistence level. Adequacy is not to be determined according to any fixed or absolute standard, and where possible both spouses should continue to live after separation at the level which they previously enjoyed if that is reasonable, and the resources available to them are sufficient to maintain that standard.

225In my determination that the present periodic payment of $2,000 per week should continue, I had in mind that the husband should pay in addition to that amount council and water rates, taxes and consumption charges, the additional premium component for contents insurance, electricity, gas and water bills for the property, and the cost of home security monitoring. I also consider it appropriate for him to continue to pay for lawn mowing as needed, and the existing arrangements for swimming pool maintenance.

226I do not consider it reasonable to add to those expenses unspecified costs for a gardener, gardening maintenance and reticulation.

The dispute in relation to the motor car

227Again, this dispute is narrow. It can be dealt with shortly. Given that the husband agrees that it is appropriate for the wife to have a new car, being the same make and model as her present car, I consider it appropriate that the vehicle be to the same standard as her present car including any relevant options.

228Otherwise, the husband proposes to return to the wife Motor Vehicle A, [which is] registered in her name and presently in his possession, so that she may sell it and retain the proceeds if she chooses to do so. Neither party gave evidence as to the value of the vehicle, although I note that the wife says the husband has been driving it since at least 2013 so it is reasonable to infer that it is not of great value. Nevertheless, I see no sensible objection on the part of the wife to the proposition that she receive the vehicle, be at liberty to sell it, and apply the proceeds as she sees fit.

The dispute in relation the wife’s credit card debt and the debt to Mr I

229Again, in the broad scheme of the financial affairs of these parties, this is a minor dispute. The wife says that the liabilities in question were incurred by her because of insufficient financial support from the husband; the husband disputes that.

230In short, I conclude that in circumstances where there will now be clarity as to the level of periodic support to be provided by the husband, such that the wife can budget with some confidence, it is appropriate that she be placed in a position where those two liabilities have been cleared, and she can apply her own income and payments from the husband prospectively.

231I propose to order that those debts be repaid by the husband, but to characterise those payments as being by way of interim property settlement rather than maintenance. In my view that is a more appropriate characterisation for payments which are clearing liabilities; to do otherwise would effectively impose a retrospective maintenance order against the background of the findings already made as to the adequacy of the periodic payments which have been made for some time.

The additional lump sums sought by way of spousal maintenance

232The wife sought a further order that within 14 days the husband pay or cause to be paid her unpaid beneficiary entitlements from Trust T in the sum of $352,370.

233The matter was not pressed in submissions. It is unnecessary to repeat the findings earlier made as to the husband’s capacity to meet the lump‑sum interim payments being ordered by way of interim property settlement; it is sufficient to say that I am not presently persuaded that he has the capacity to facilitate the payment to the wife of her unpaid beneficiary entitlements from the Trust T over and above those amounts.

234The wife sought further lump-sum payments to facilitate work at the home covered by a quote obtained by her from [a tradesman]. I am not persuaded that the making of such an order is proper in all the circumstances, noting also that while the characterisation of the proposed payment is left open, it is in effect for improvements to the home and capital purchases. Similarly, I am not satisfied that other similar payments and reimbursements sought are appropriate.

235Finally, the wife sought an order that the husband pay her the further sum of $50,000 per quarter (backdated to 1 October 2019) by way of further maintenance. In her affidavit filed on 6 January 2020, she described those amounts as “buffer” payments, saying that she will be able to improve her standard of living and that of the children, including by carrying out “more substantial works to make the house a comfortable home” for all of them. She includes reference to a complete renovation of the laundry and bathrooms, upgrading the kitchen, replacing home furnishings, purchasing outdoor furniture, and the like.

236While it is open to the court to order the payment of lump sums to take into account the “vicissitudes of life”,[31] such payments will more commonly be made in the context of a final order. In any event, I am not satisfied that the payments sought are reasonably necessary to enable the wife to adequately support herself on an interim basis, nor that the orders sought would be proper. Again, the needs referred to by the wife may be properly explored if appropriate at trial, whether in the context of any application for final maintenance orders, or in the prospective consideration of her reasonable needs and those of the children in the context of the alteration of property interests.

Proposed orders

[31] Vautin & Vautin (1998) FLC 92-827.

237Subject to any submissions as to form, I propose to make the following orders:

1.The husband have leave to file the affidavit of [Mr E] sworn on 29 January 2020, and rely on the said affidavit in relation to the competing interim and interlocutory applications of the parties.

2.The wife have leave to file the affidavit of [Ms F] sworn on 22 January 2020, and rely on the said affidavit in relation to the competing interim and interlocutory applications of the parties.

3.The husband have leave to file and rely upon his written submissions filed on 4 December 2019.

4.Within seven days of any documents meeting the descriptions in paragraphs 8(a)(i), (iii) and (iv), 8(b)(i), 8(c)(i), (iv) and (v), 8(d)(i), (iv) and (viii), 8(e)(i), (iv) and (viii), and 8(l) of the consolidated Minute, a copy of which is annexed to these orders, and paragraphs 48(d) and 78(e) of the wife’s written submissions coming into existence, the husband must disclose the said documents and provide copies of them to the wife’s solicitors.

5.In the event that any single expert witness appointed to value the interests of the parties or either of them in various business entities requests their production for the purpose of that valuation, the husband must promptly provide to the said witness and to the wife copies of any documents meeting the descriptions in paragraphs 8(b)(ii), 8(b)(viii), 8(c)(ii), 8(c)(iii), 8(d)(ii), 8(d)(iii), 8(e)(ii), 8(e)(iii) and 8(m) of the consolidated minute, and paragraphs 78(a) and (b) of the wife’s submissions;

6.Within seven days, the husband must disclose and provide to the wife’s solicitors copies of all documents in his possession or control meeting the descriptions in paragraphs 8(b)(v), 8(e)(vi), and 8(f) of the consolidated minute, and paragraph 48(e) of the wife’s submissions and must on an ongoing basis disclose and provide to the wife’s solicitors copies of any such documents that may be created in the future, within seven days of their creation;

7.By way of interim property settlement, the husband must pay or cause to be paid the following amounts into the trust account of the wife’s solicitors:

(a)within 14 days, $250,000;

(b)within 28 days, $100,000; and

(c)within 42 days, $100,000.

8.Also by way of interim property settlement, the husband must pay within seven days:

(a)the wife’s credit card debt to a maximum of $14,591.74; and

(b)the wife’s debt to [Mr I] in the sum of $3,000.

9.The husband do all things necessary to cause the sale of the [Suburb D units] and thereafter pay or cause to be paid:

(a)the usual sale costs, including but not limited to agents fees and expenses, conveyancing fees and expenses, legal fees, bank fees, and payment of any outstanding rates and taxes;

(b)the minimum amount required to be paid in discharge or reduction of cross collateral security facilities registered against the titles of the said properties; and

(c)the balance then remaining to the wife, by way of interim property settlement.

10.For the purposes of compliance with the order contained in the immediately preceding paragraph, the husband be at liberty to accept or authorise the acceptance of any offer to purchase:

(a)Unit [A] at a price of $785,000 or higher;

(b)Unit [B] at a price of $765,000 or higher; and

(c)Unit [C] in the range of $650,000-$820,000.

11.The husband be at liberty, with the express written agreement of the wife, to accept or authorise the acceptance of any offer to purchase any of the said units at a lesser price.

12.The parties have liberty to apply in relation to the terms and conditions of sale of the said properties.

13.By way of interim spousal maintenance the husband must:

(a)pay or cause to be paid to the wife the sum of $2,000 per week;

(b)pay or cause to be paid the wife’s individual income taxation liability for the financial years ending 30 June 2017 and 2019 (inclusive) and in future years until further order;

(c)pay or cause to be paid the cost of the wife attending individual parenting therapy as required pursuant to paragraph 31 of the orders made on 19 November 2019;

(d)pay or cause to be paid as and when they fall due premiums for the wife’s trauma and life insurance;

(e)pay or cause to be paid as and when they fall due accounts to maintain the current Internet and phone bundle used by the wife and children;

(f)pay or cause to be paid as and when they fall due all accounts necessary to maintain the current level of private health cover for the family.

(g)pay or cause to be paid in relation to the [Suburb A] home:

(i)all loan repayments on the home loan secured against the property;

(ii)council and water rates, taxes and consumption charges;

(iii)home and contents insurance at the present level;

(iv)electricity and gas bills as and when they fall due;

(v)the cost of home security monitoring;

(vi)the costs associated with the existing arrangements for swimming pool maintenance; and

(vii)lawn mowing as needed.

14.Within four (4) weeks from the date of the publication of the Orders, the husband do sign all documents and do all acts necessary to cause to be purchased for the use of the wife from a Western Australian [Luxury Car Brand A] retailer a new [Luxury Car Type A] or such other equivalent car as the wife may select on the basis that the husband do:

(a)enter into a contract to purchase a new motor vehicle with the equivalent [Luxury Car Brand A] care package as corresponds to the car package for the wife’s car;

(b)purchase additional features which are the same as or equivalent to the features purchased for the wife’s current motor vehicle;

(c)enter into any financing package for the new motor vehicle on the basis that the husband do pay or cause to be paid all costs including any payments of whatever nature required to finance the purchase including all leasing payments and any balloon payments; and

(d)arrange and pay or cause to be paid all costs including comprehensive motor vehicle insurance, motor vehicle registration, and motor vehicle servicing and repair.

15.The wife do all acts necessary to make her present car available to the husband, for trading in on the purchase of the new car at his discretion.

16.The husband be at liberty to return to the wife [Motor Vehicle A] registered in her name and presently in his possession, and the wife be at liberty to then sell the vehicle and retain any proceeds of sale by way of interim property settlement.

17.All outstanding interim and interlocutory applications, other than any such applications relating to parenting matters, otherwise be and are hereby dismissed.

18.In the event that either party seeks an order for costs in relation to the interim and interlocutory disputes as to disclosure and financial matters;

(a)that party must file and serve written submissions within 28 days, such submissions to be no longer than 10 pages;

(b)the party responding to such application for costs must file and serve responsive written submissions within 28 days thereafter, such submissions to be no longer than 10 pages;

(c)the parties have liberty to seek a relisting for oral submissions;

(d)if no such request for a relisting is received by the court within 14 days after the date of filing of the responsive costs submissions, any application for costs be determined on the papers, and judgment and orders be published from chambers without the need for further appearance.

I certify that the preceding 237 paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

2 APRIL 2020

FAMILY LAW ACT 1975 (CTH)

IN THE FAMILY COURT OF WESTERN AUSTRALIA

(P) PTW 9993 of 2018

BETWEEN

MS GORGA

(Applicant)

AND

MR GORGA

(Respondent)

CONSOLIDATED MINUTE OF PROCEDURAL ORDERS

…

8.The Respondent do forthwith provide disclosure of the following documents:

(a)Income Tax Returns and Financial Statements for:

(i)[Entity H] as trustee for the [Trust H] for the financial years ending 30 June 2016 and 30 June 2019;

(ii)[Entity J] for the financial year ending 30 June 2019;

(iii)[Entity J] as trustee for [Trust J] for the financial year ending 30 June 2019;

(iv)[Entity I] as trustee for [Trust I] for the financial year ending 30 June 2019;

(b)In relation to [Entity H] as trustee for [Trust H]:

(i)Monthly management accounts for the period 30 June 2018 to date;

(ii)Feasibility reports for the period from 1 January 2019 onwards;

(iii)Projections and forecasts for the period from 1 January 2019 onwards;

(iv)Any valuations and/or appraisals for the period 1 January 2019 to date;

(v)Any management agreements, consulting agreements, performance fee agreements, acquisition agreements and/or developer’s agreements involving the Respondent, the Respondent’s entities or any other entity in which the Respondent or his entities have an interest (including by way of bare trust agreements);

(vi)Any contracts for sale of property since 1 July 2019 to date, together with any settlement statements;

(vii)Any lease agreements for property leased to tenants since 1 July 2018 to date, including copies of agreement of the type listed in paragraph 2(e) above entered into directly between the lessee and the Respondent, the Respondent’s entities, or any other entities in which the Respondent or his entities have an interest (including by way of bare trust agreements);

(viii)Any agreements in relation to planning applications for proposed developments involving the Respondent, the Respondent’s entities, or any other entities in which the Respondent or his entities have an interest (including by way of bare trust arrangements); and

(ix)Any prospectus or investment documentation provided to investors providing detail of the project, anticipated return on investment (including income stream, return on capital and timing of anticipated returns).

(c)In relation to [Entity I] as trustee for the [Trust I]:

(i)Monthly management accounts for the period 30 June 2018 to date;

(ii)Feasibility reports for the period from 1 January 2019 onwards;

(iii)Projections and forecasts for the period from 1 January 2019 onwards;

(iv)Any valuations and/or appraisals for the period 1 January 2019 to date; and

(v)Any management agreements, consulting agreements, performance fee agreements, acquisition agreements and/or developer’s agreements involving the Respondent, the Respondent’s entities or any other entity in which the Respondent or his entities have an interest (including by way of bare trust agreements).

(d)In relation to [Entity J]:

(i)Monthly management accounts for the period 30 June 2018 to date;

(ii)Feasibility reports for the period from 1 January 2019 onwards;

(iii)Projections and forecasts for the period from 1 January 2019 onwards;

(iv)Any valuations and/or appraisals for the period 1 January 2019 to date;

(v)Any management agreements, consulting agreements, performance fee agreements, acquisition agreements and/or developer’s agreements involving the Respondent, the Respondent’s entities or any other entity in which the Respondent or his entities have an interest (including by way of bare trust agreements);

(vi)Detailed listing of the transactions allocated to the “Consulting Fees” (or similar) account detailed in the 2018 Financial Statements for the period 1 July 2018 to date;

(vii)Any correspondence between [Mr G] or his entities and the Respondent or the Respondent’s entities in respect of any consulting fees detailed above;

(viii)Shareholder agreement (if any) between [Entity E] and [Entity X].

(e)In relation to [Entity J] as trustee for [Trust J]:

(i)Monthly management accounts for the period 30 June 2018 to date;

(ii)Feasibility reports for the period from 1 January 2019 onwards;

(iii)Projections and forecasts for the period from 1 January 2019 onwards;

(iv)Any valuations and/or appraisals for the period 1 January 2019 to date; and

(v)Any management agreements, consulting agreements, performance fee agreements, acquisition agreements and/or developer’s agreements involving the Respondent, the Respondent’s entities or any other entity in which the Respondent or his entities have an interest (including by way of bare trust agreements);

(vi)Detailed listing of the transactions allocated to the “Consulting Fees” (or similar) account detailed in the 2018 Financial Statements for the period 1 July 2018 to date;

(vii)Any correspondence between [Mr G] or his entities and the Respondent or the Respondent’s entities in respect of any consulting fees detailed above;

(viii)Unit holding agreement (if any) between [Entity S] and [Entity X].

(f)Any bare trust agreements, management agreements, consulting agreements, performance fee agreements, acquisition agreements, and/or developer’s agreements between [Entity K] as trustee for [Trust P] and the Respondent, the Respondent’s entities, or any other entities in which the Respondent or his entities have an interest;

(g)Deed of Settlement establishing [Trust P], together with any variations;

(h)Any lodgment deferral requests or applications for extension for time to lodge, lodged with the ATO by [Entity Y] in respect of the 2017 Income Tax Returns for the Applicant, or any of the entities controlled by her;

(i)Any correspondence between the ATO and [Entity Y], including but not limited to, ATO lodgment deferral applications, emails sent to the ATO via the ATO portal, file notes, ATO receipt numbers and emails, in respect of the application for a payment plan in respect of the Applicant’s outstanding tax liabilities;

(j)Any correspondence between [Entiy Y] and the Respondent in respect of instructions provided in relation to the Applicant’s personal income tax affairs, the tax affairs of entities controlled by the Applicant, including but not limited to trustee resolutions, outstanding lodgments, ATO correspondence, deferral requests and ATO payment plans;

(k)In relation to [Entity Q] any agency agreement between [Entiy Q] and the Respondent, the Respondent’s entities, or any other entities in which the Respondent or his entities have an interest;

(l)In relation to [Entity Z] any project manager agreements in relation to [Project E and Project F]; and

(m)All Business Activity Statements and Instalment Activity Statements lodged between the period 1 July 2017 to date for the Respondent’s entities, or any other entities in which the Respondent or his entities have an interest.