Grant and Grant

[2007] FamCA 128

FAMILY COURT OF AUSTRALIA

GRANT & GRANT [2007] FamCA 128

FAMILY LAW - Application for summary dismissal of section 79A application - refusal based on at least one justiciable issue – reliance upon the material of the respondent notwithstanding applicant seeks other orders as well – alternative application for security of costs - applicant for section 79A orders only has assets outside of Australia – “stifling” of litigation if security of costs orders made – quantum of costs orders discretionary.

Family Law Act 1975: Pt: VIIIB, ss. 75(2), 79, 79A, 79A(1)(a), 79A(1)(b), 79A(1)(c), 106B, 117(1), 117(2)
Corporations Act 2001

Prior & Prior (2002) FLC 93-105
Pelerman & Pelerman (2000) FLC 93-037
Jones & Dunkel (1959) 101 CLR 298
Beck & Beck (2004) FLC 93-181
Bigg & Suzi (1998) FLC 92-799
Webster & Lampard (1993) 177 CLR 598
Commercial Bank of Australia Ltd & Amadio (1983) 151 CLR 447
Bridgewater & Leahy (1998) 158 ALR 66
Jones & Jones (2001) FLC 93-080
Luadaka v Luadaka (1998) FLC 92-830

APPLICANT: Mr Grant

RESPONDENT: Mrs Grant

FILE NUMBER: BRF 11026 of 2006

DATE DELIVERED: 23 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Burridge

SOLICITOR FOR THE APPLICANT: Hosie & Partners

COUNSEL FOR THE RESPONDENT: Ms Brasch

SOLICITOR FOR THE RESPONDENT: Hartley Healy

Orders

1. That the application of the wife for summary dismissal of the husband’s substantive application under Section 79A of the Family Law Act filed 17 October 2005 is refused.

2. That until further order, the husband pay into the trust account of solicitors Hartley Healy, the sum of $40,000.00 (noting that this is an additional $10,000.00 to that which is currently held pursuant to the order of Judicial Registrar Smith made on 5 January 2007) to be held by the said solicitors in an interest – bearing trust account as security for costs of these proceedings.

3. That the copies of the sealed orders made 5 January 2007 be removed from the court file and be replaced with re-engrossed orders to accurately reflect the orders made that day and such orders be prepared by the court.

4. That the further hearing of the amended Form 1 application filed 29 December 2006 and the response Form 1A filed 22 November 2005 be adjourned for further mention in the Registrars Directions List at 2.00 p.m. on 28 February 2007.

5. That the wife’s Form 2 application in a case filed 29 November 2006 and the husband’s Form 2A response filed 29 December 2006 be otherwise dismissed.

6. That the Exhibits marked H1 and H2 of these interim proceedings remain on the court file until the determination of all substantive proceedings.

7. That the costs of each party of this day are reserved to the Trial Judge.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 11026 of 2006

Mr Grant

Applicant

And

Mrs Grant

Respondent

REASONS FOR JUDGMENT

Introduction

1. In this interim proceeding, the wife (the respondent in the substantive proceedings) seeks to have the husband’s substantive application summarily dismissed or in the alternative that he provide security for costs.  The husband seeks that the wife be prevented from proceeding with her application until she makes proper disclosure.

Background

1. The husband and the wife are both 60 years of age.  They commenced living together in 1981 and came to Australia in 1986.  They married in July 1990.  They separated in May 2002. 

2. In July 2003, the parties reached agreement about a property settlement with the husband to retain generally the assets in Indonesia and the wife to retain the assets in Australia. They filed an application for consent orders (Form 12A) in the Lismore Sub-Registry on 11 July 2003. Neither party was represented by lawyers but each swore an affidavit on the same day in front of the same Justice of the Peace indicating that they had reached agreement, were aware of their right to obtain independent legal advice and had had that independent legal advice. They each further swore that they had not other property other than that which was set out in the document and that they had each read and considered s.75(2), s.79 and Pt VIIIB of the Family Law Act 1975.  It appears that a Registrar rejected the application and refused to make the orders as a consequence of which, the wife went to obtain advice from a solicitor in B, New South Wales.  As a consequence, a further application for consent orders but this time prepared by a solicitor was submitted to the Lismore Sub-Registry on 12 November 2003. 

3. The application in November 2003 was accompanied by an affidavit sworn by the solicitor on 29 November 2003 setting out the details in respect of the superannuation fund.  That becomes interesting for the purposes of this judgment because it transpires that there were no funds in the superannuation fund but the solicitor who prepared the orders swore to the fact that the wife was transferring all of her interest in that fund to the husband as part of the settlement. 

4. On 19 November 2003, a Deputy Registrar signed and sealed the order attached to which was a document that was unsigned but which purports to have been a true and correct copy of the terms of settlement signed by the parties.  There does not appear to be any dispute about the fact that the document was signed but a very large dispute about what was not only intended but also the circumstances under which the agreement was reached.

5. On 17 October 2005, the husband filed a Form 1 Application seeking:

   1.That pursuant to s.79A(1)(a) the Orders made by Consent in the Family Court of Australia at Brisbane and sealed by the Court on 19 November 2003 discharged.

6. He also sought property orders consequent upon being successful in respect of the initial application.

7. On 22 November 2005, the wife filed a Response seeking to have the husband’s application dismissed and that he pay her costs in an indemnity basis. 

8. On 29 December 2006, the husband filed an Amended Application for Final Orders seeking the following:

   1. That pursuant to s.79A(1)(a), s.79A(1)(b) & / or s.79(A) (sic) (1)(c) of the Family Law Act, the orders made by Consent in the Family Court of Australia at Brisbane and sealed by the Court on 19 November 2003 be discharged.

   2.That there be an accounting of the assets and liabilities of the Husband and Wife, and that the property be divided so as to affect (sic) a division of 50% of the net assets to the Husband and 50% of the net assets to the Wife.

   3.That the Wife pay the Husband’s costs of and incidental to this Application.

   4.Such further Order as this Court may deem fit.

   In the alternative to 1 and 2 above:

   5.That pursuant to s.106B Family Law Act (sic) the following instruments be set aside:

   (a)any instrument signed for or on behalf of the Wife, in her capacity as Director and / or controlling shareholder of [F] Pty Ltd or otherwise which changed or purported to change the share structure of the company [F] Pty Ltd (CAN […]) so as to convert the 20 ordinary shares owned by the husband to 20 “C” class shares; and

   (b) the ASIC Form 211 entitled “Notification of a division or conversion of classes of shares” dated 20 January 2005.

   6.That the Husband particularise any further consequential Orders once the Wife discloses all relevant documents in relation to paragraph 5 hereof.

9. On 29 November 2006, the wife filed a Form 2 Application in a Case seeking the dismissal of the husband’s Form 1 Application or in the alternative that the husband deposit an amount of $60,000 into the trust account of his solicitors as security for the payment of any order that he pay the wife’s costs of and incidental to these proceedings.  Consequential orders were also sought. 

10. The husband filed a Form 2A Response on 29 December 2006 simply seeking to stay the wife’s Application in a Case until she disclosed considerable documents of a financial nature.

11. I had the benefit of reading voluminous affidavits by the parties and hearing and reading succinct submissions of their respective counsel.

12. The wife relied upon three affidavits that she swore however objection was taken to an affidavit filed on 21 July 2006 and I did not read it.  In addition, the wife filed an affidavit of her solicitor and an Outline of Case document.

13. The husband relied upon two affidavits that he filed during 2006 sworn by him in 2006, an affidavit by his son and two affidavits by his solicitor.  In addition I received a comprehensive outline of argument.

14. The submission of Mr Burridge on behalf of the wife approached the matter on the basis of each of the relevant issues raised by the husband’s amended Form 1 Application.

15. In respect of s.79A(1)(a), Mr Burridge pointed out that although there is a difference between the two documents to which I have referred above which were filed in the Lismore Sub-Registry (the first being rejected by the Registrar and the second being the basis of the court orders), in reality, there was no material difference. He pointed to the fact that insofar as the husband relied on the fact that he had no legal representation, that in itself is not sufficient to justify the court saying there was a miscarriage of justice.[1] 

    
    

    Mr Burridge pointed to paragraph 41 of the husband’s affidavit filed 6 March 2006 in which he said:

    “My focus was not so much on the actual value of my shares, as they would not entirely provide for an ongoing income if sold, but on the ongoing dividend payment.  When before I held 51% shares, a dividend based on that percentage was allocated to me every year.  I assumed that a reduced 20% share would consequently result in a reduced dividend payment of 20% per year.”

    [1] Prior & Prior (2002) FLC 93-105

16. As Mr Burridge pointed out, the husband on his own case acknowledged that he had no guarantee about what he would receive.

17. In relation to the question of any representation made by the wife,

    
    

    Mr Burridge looked at the husband’s material and pointed out that that argument came from this statement in paragraph 10 of the husband’s affidavit:

    “My consent in entering into the consent orders was based on representations from [B] that I would continue to receive dividend income from the company in the sum of at least $1000 per month, as well as back pay for dividend income and director remuneration from 1 July 2002 to the date the orders were made.”

18. Mr Burridge argued that if one looked at paragraphs 19 through to 24 of the husband’s affidavit, the husband quoted what the wife purported to say but nowhere did he make any specific statement about any representations. 

19. Far away from that part of the affidavit in paragraph 108, the husband asserted that it had “become almost impossible to enforce the wife’s promise that I would continue to receive dividends after the orders were made”.

20. As Mr Burridge pointed out, there was no evidence that the wife made any representation and certainly no indication of any “promise”.

21. In relation to the question of misrepresentation, Mr Burridge pointed out that there was nowhere in the affidavit where the husband said what information it was that the wife should supply to him.  At its highest, the only discussion about information was as to the value of the company F Pty Ltd.  That issue becomes difficult for the husband because in paragraph 7 in the affidavit of his son who was the “mediator” between the parties when the purported orders were being negotiated, he said that the parties had agreed on the value of the company and that there was an anticipated profit figure.

22. As Mr Burridge put it, there was no suggestion that any false or misleading information led the husband to enter into the arrangements and give his consent to the orders.

23. The husband also asserts in his application that he made the decision under duress.  At paragraph 47 of his affidavit, the following appears:

    “I telephoned [B] on receipt of the re-drafted documents.  At this time the Hotel was, as often, in need for a money transfer to support the running cost and salaries.  On my request, [B] said words similar to: ‘when I have received the agreement with your signatures I will send more money’.”

24. Mr Burridge pointed out that it was open to argument that there were not only inconsistencies but contradictions in the husband’s evidence but in his submission, that evidence could not amount to duress.  The Full Court in Pelerman & Pelerman[2] made it clear that pressure of itself cannot amount to a miscarriage of justice. The Full Court took a very wide view of duress in Pelerman but noted that the duress had to be at the point of the consent to have any importance in an application under s.79A.

    [2] (2000) FLC 93-037

25. Mr Burridge submitted that there was no suggestion of pressure in the first document that was filed by the parties in July 2003 and effectively, the second document was just a “re-write” of the first.  He therefore submitted that the husband could not rely on the evidence of duress.

26. Mr Burridge then turned to s.79A(1)(b) on the husband’s claim as to the impracticability of carrying out the order that had been made. Mr Burridge argued that there was no evidence as to what steps the husband took in his capacity as a minority shareholder under the Corporations Act 2001 to pursue his entitlements. He pointed out that what the husband was endeavouring to do was to take an enforcement action and in reality, he could not do that under s.79A.

27. The third basis of the husband’s application lies in s.79A(1)(c) which is the provision relating to the default in carrying out an order. Mr Burridge said that there was no express obligation nor any implied obligation for the husband to have entitlements that he was really pursuing because he himself acknowledged that there were no guarantees as to what he would receive. Again, Mr Burridge pointed out that the relevant issue here was to look at the circumstances that applied at the time the orders were made and he said that that was still the situation now. Insofar as s.79A(1)(c) applies to events that have occurred subsequent to the making of the orders, it was clear that the same circumstances applied and that therefore nothing was new subsequent to the making of the orders.

28. Mr Burridge then addressed briefly the other aspect of the husband’s application under s.106B but that really does not need to be addressed as a result of the orders I propose to make.

29. Mr Burridge then turned to the argument about security for costs and pointed to inconsistencies in the husband’s affidavit with what he was submitting in his outline of argument in relation to the obligation to repay to his aunt money that she had lent him for the purposes of the litigation.  This issue also has little effect upon my determination.

30. What the husband and the wife have both done is to provide new material by their respective lawyers about the costs that they have incurred and will incur.  The husband’s material is a little hard to follow because it apparently does not cover all of the costs of the lawyers he has seen.  Suffice to say, there appears to be little difference between the parties as to what it will cost them to conduct this litigation to its end.

31. Mr Burridge pointed to the fact that in the affidavit filed 29 December 2006 at paragraph 38, the husband referred to the fact that he had received a “one-off” sum of approximately $127,000 which came from a substantial commission payment in November 2006.  The solicitor for the husband who filed an affidavit in the proceedings indicated that on 16 January 2007, the husband paid into the trust account of their firm $59,739.50.

32. I am uncertain about what happened to the balance of the funds up to the $127,000. In respect of his aunt’s debt, the husband said in paragraph 41:

    “I understand that my aunt will allow me further time to pay should the court order that I deposit $60,000 into the trust account of my solicitors by way of security of costs.”

33. As Ms Brasch argued, even though he may not have the immediate responsibility of repaying the aunt, the husband also has to live, conduct his business and pay his own legal fees.

34. Ms Brasch pointed out that the husband was putting his case in the alternative.  He sought to stay the wife’s application because she had failed to disclose certain material.  As Ms Brasch put it, the husband could not present his best evidence because he did not have access to the documents which were in the possession of the wife.  She complained that the husband’s practitioners had been requesting documents for years.

35. I was handed two letters from the appointed single expert who requested documents in January 2007 and February 2007.  Those documents appear to be in the possession of the wife.

36. Ms Brasch made much of the statement in the affidavit of the wife sworn on

    
    

    5 February 2007 as follows:

    “I have several large boxes which I believe contain all the information in my possession regarding the loans from [F] Pty Ltd to the husband & myself.  I shall provide access to this information to the husband’s solicitors and to the valuer, at their convenience.  Following this access I shall arrange photocopying of any documents they wish to have a copy of.  The documents are too voluminous for me to copy the whole lot.

    “I say this will therefore effectively be full compliance on my part with order 2(c) of the Annexure A to the orders of Registrar Bint made

    
    

    6 September 2006, meaning that I will have fully complied with all of those orders to the best of my ability.”

37. Ms Brasch pointed out that whilst cooperation was suddenly happening, one was entitled to wonder why had it taken so long.  It did not get any better when the solicitor for the husband wrote a letter by facsimile transmission on 5 February 2007 requesting that the documents be brought to the court.  The following day also by facsimile transmission, the solicitor for the wife responded:

    “We refer to your facsimile of 6 February 2007 and regrettably advise that it is not possible for our client to bring the documents to Brisbane, as they are too voluminous.”

38. Ms Brasch said that I should draw an inference based on the decision of Jones & Dunkel[3]. I indicated to Ms Brasch that I was more concerned about the summary dismissal issue and particularly the point that Mr Burridge made to show that the husband’s material could not substantiate a s.79A argument.
    

    [3] (1959) 101 CLR 298

    I was conscious of the fact that in a summary dismissal application, it is the respondent’s material upon which I have to rely.  The probative value of the affidavit material of the wife really does not assist in my determination save for the statement that the husband would corroborate his version of events if he had the documentation that the wife is alleged to be holding and refusing to disgorge.

39. Ms Brasch pointed to the fact that there were a number of arguments about s.79A(1)(a) including the fact that the court had been misled by false evidence about the superannuation entitlements of the parties and the failure to disclose the real position in relation to the company. It seems to be common ground that notwithstanding the forms were signed by the parties that ultimately formed the basis of the consent orders, there were no superannuation funds nor could there therefore be any splitting order. Insofar as the evidence misled the court, it appears to me that both parties contributed to that dilemma because each swore that the document that they were presenting to the court was true. It must be remembered that this occurred on two occasions. More importantly, the position becomes very confusing by virtue of the fact that the documents on the second occasion were drawn by a legal practitioner. It is interesting that the particular solicitor swore an affidavit in respect of the existence of the superannuation fund. No doubt all of the matters will become relevant at the trial.

1. In respect to each of the matters raised by the husband, the strongest one upon which Ms Brasch relied was the fact that the husband now accuses the wife of indulging in unconscionable conduct.  Ms Brasch referred to paragraph 47 of the husband’s affidavit to which I have referred above.  It was argued that it was unconscionable for the wife to put the husband in a position where, if he was desperate for money, she offered that he could have it only upon the basis of signing the court settlement documents. 

The law

1. In Beck & Beck[4] the Full Court made the observation that the previous principles in relation to summary dismissal of an application as set out in Bigg & Suzi[5] and Pelerman & Pelerman[6] were the appropriate principles to guide courts.  The Full Court reiterated passages from Webster & Lampard[7] where the High Court said that the power to order summary judgment must be exercised with “exceptional caution” and should never be exercised unless it was clear that there was no real question to be tried.

   [4] (2004) FLC 93-181

   [5] (1998) FLC 92-799

   [6] (2000) FLC 93-037

   [7] (1993) 177 CLR 598

2. Accordingly, as I discussed with counsel, what I was looking for was whether there was a justiciable issue. 

3. Section 79A applications are difficult to determine but there is a significant onus on the applicant to establish not only that there was a miscarriage of justice but also that the court ought to exercise its discretion to make another order. It must be remembered that the s.79 power to make an order dividing the property between parties is a once-only exercise. That is for good reason to enable parties to organise their lives and move on.

4. Accordingly, I have material from the husband asserting that he signed the orders in circumstances where the wife was saying to him that he would not otherwise get the money that he desperately wanted.  I do not know the truth of that allegation but it is a matter which in my view that will need to be tested at trial.  The question is whether or not that amounts to unconscionable conduct or could be such.

5. In Commercial Bank of Australia Ltd & Amadio[8] Gibbs CJ said:

   “A transaction will be unconscientious within the meaning of the relevant equitable principles only if the party seeking to enforce the transaction has taken unfair advantage of his own superior bargaining power, or of the position of disadvantage in which the other party was placed.  The principle of equity applies ‘whenever one party to a transaction is at a special disadvantage in dealing with the other party because of illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affecting his ability to conserve his own interests, and the other party unconscientiously takes advantage of the opportunity thus placed in his hands’ (see Blomley v Ryan[9])”

   [8] (1983) 151 CLR 447

   [9] (1956) 99 CLR 362 at 415 per Kitto J

6. More recently in Bridgewater & Leahy[10] Gaudron, Gummow and Kirby JJ quoted Sir Anthony Mason as saying:

   “My understanding of undue influence…is that it denotes an ascendency by the stronger party over the weaker party such that the relevant transaction is not the free, voluntary and independent act of the weaker party.  In other words, it is the actual or presumed impairment judgment of the weaker party that is the critical element in the grant of relief from the ground of undue influence…

   “Unconscionable conduct, as the terms suggests, focuses more on the unconscientious conduct of the defendant…In Australia, it has been recognised that unconscionable conduct is a ground of relief which will be available ‘whenever one party by reason of some condition or circumstance is placed at a special disadvantage vis a vis another and unfair and unconscientious advantage is taken of the opportunity thereby created’.”

   [10] (1998) 158 ALR 66

7. Having regard to the view that the High Court has taken of what is unconscionable conduct, based on the evidence solely of the husband, I find that there is a justiciable issue here.  On that basis I could not say that the husband’s application is hopeless or doomed to fail. 

8. Accordingly, the application for summary dismissal must be declined.

9. Turning then to the issue of the wife’s alternative position which is for security for costs.

10. I have already set out what the wife says in relation to not only her concerns about incurring costs with a potential impecunious applicant but also the fact that the evidence is vague about the husband’s true financial position. 

11. In any application for security of costs, the principles of s.117(1) of the Family Law Act apply, namely that subject to s.117(2) each party shall bear their own costs. The departure from that position only occurs if the court is satisfied that there are circumstances that will justify an order being made. The decision to order security of costs, like an order for costs generally, is a discretionary one, not only as to the order itself but to the quantum of the order.

12. In this case, the wife seeks $60,000 and the husband seeks that there be no order at all.  The parties were before Judicial Registrar Smith on 5 January 2007 and consented to an order that the husband pay into the trust account of his solicitors the sum of $30,000 as security for costs.  Unfortunately, the typed order does not reflect what the orders had actually signed and for that reason I am going to make an order that the sealed order be uplifted from the file, destroyed and a fresh order be issued to accord with what the parties signed.  In this case, what the parties actually agreed to on 5 January 2007 was that until the hearing before me, the sum of $30,000 was to be retained as a security for costs.  It is quite clear from what was agreed that the question of whether there was to be any order for security for costs let alone $30,000 was to be determined at this hearing.

13. In Jones & Jones[11] the Full Court referred to Luadaka v Luadaka[12] and quoted from the judgment as follows:

    “The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other.”

    [11] (2001) FLC 93-080

    [12] (1998) FLC 92-830

14. In this case, on the evidence that I have read, it is distinctly probable that if the husband was unsuccessful, the wife would have spent significant amounts of costs and would not be able to recover them.  It is to be remembered that the husband himself in his affidavit material refers to the fact that he has a fledgling business in Indonesia and that he is struggling in part because he has not been paid the dividends that he says he is owed pursuant to the shareholdings that he received under the original property orders.  However, he also refers to the fact that he owes money to his aunt and any property that he does have, is otherwise in Indonesia.  As I pointed out to the parties, the fact that the husband is an Australian citizen is little comfort.

15. In Jones & Jones[13] the Full Court set out a number of matters that may be relevant to an application for security for costs including:

    (a) the means of an applicant to satisfy an order for costs if unsuccessful;

    [13]  op cit

    (b)     the prospects of success in the substantive application;

    (c)   whether the relevant claim is made bona fide and not trivial;

    (d)whether the order if made would be oppressive or stifle the litigation;

    (e)the delay in bringing the application;

    (f)the difficulties of enforcing an order for costs and the amount of costs to be incurred.

16. The Full Court made it clear that these were not exhaustive but should be taken into account in the same way as an application for costs needs to be considered under s.117.

17. It is also clear that impecuniosity is not a basis to make an order for security for costs.

18. In my view, this is a case where it is appropriate to make an order for security of costs. 

19. In making the order, I have taken into account the means of each of the parties.  The evidence of what assets the husband does have is not at all clear and notwithstanding he refers to the fact that his business is still young, he did manage to receive a significant amount of commission in late 2006.  The statement he has also made in respect of the repayment of a debt to his aunt is equivocal and I am not at all sure that that cannot wait.  Ms Brasch conceded that that was so.  Ms Brasch however pointed out that her client not only had to live but he had to pay his own legal costs.  Having regard to the uncertainties that I have about just exactly his financial position is, I am not convinced that he could not find some way of not only supporting himself but also paying any legal costs.  That issue becomes relevant when I turn to the question of whether an order would stifle the litigation. 

20. I am also taking into account the risks that the husband faces for the reasons I have outlined above.  On what I have read, it would be hard to say that there is a high probability of success for the husband.  I make that observation obviously without having had any of the evidence tested. 

21. In taking into account whether or not the application is bona fide, I have a confusing position of whether the husband is saying that the whole of the orders are in fact a miscarriage of justice or whether his real complaint is that the orders relating to the shares were not properly set out enabling him to not only understand his rights but also to enforce them.  In saying that, I am not ignoring the fact that the superannuation order appears to have been a nonsense.  I am not prepared to say however that the husband’s claim is not bona fide.  I am just uncertain as to exactly what his claim is.

22. The husband urged me not to make an order because it would stifle the litigation.  That would depend on whether or not the husband has other resources and whether his own lawyers are prepared to make some arrangement with him in relation to the proceedings.  It must be remembered the sum to be held in trust will not be used unless the husband is unsuccessful and even at that stage, the discretion to make an order for costs still has to be considered.  If the husband is successful, it is obvious that the money would be returned to him.  Insofar as it is suggested that a security for costs order of the type I propose to make would stifle the litigation, I reject that and say that as a matter of justice, the risks for the wife notwithstanding her financial position seem to be higher than those of the husband.  Insofar as an order would preclude the husband from living, on the evidence, I am not so satisfied.  No doubt that will be all made much clearer when the investigations of the parties are now conducted in relation to not only the Indonesian assets but also the German entitlements as well.  If it becomes apparent that the husband is unable to live and there are no other assets available, there is no logical reason why the husband at that point in time cannot make another application to discharge the orders that I make on the basis that he needs the funds to live.  I find at this stage that his position is unclear and on that basis, I do not believe I am putting him in a position where he cannot support himself.

23. In relation to the question of delay, I am satisfied that this is not an issue that I should take into account in any great way unlike many cases where parties come back years after the orders were made. 

24. In relation to the justice issue, I am very concerned that enforcement of a costs order on the material that I have read would be very difficult if not impossible putting the wife in an invidious position.

25. I have affidavit material from each party as I have set out above in relation to what costs they have and will likely incur.  This is not a case in which a nominal or trivial sum would be appropriate because of the fact that the parties (if not just the wife) are about to embark upon a forensic exercise to value international assets.  I have little doubt that translations and trying to obtain international experts will create unusual and added costs for these parties and in particular the wife.  In the circumstance, whilst I understand the wife’s position in relation to what she expects she will incur, I propose to exercise my discretion and limit the amount to $40,000.  I am aware from the husband’s most recent affidavit that there is more than that sum sitting in his solicitor’s trust account, $30,000 of which was embargoed by the order of 5 January 2007 and accordingly, I propose to order that the husband add a further $10,000 to that $30,000 and that it remain in his solicitor’s trust account (rather than being paid into the court) and that until further order, that money be invested in an interest-bearing account in the names of the solicitors for the husband.

26. The parties have not yet had a conciliation conference and propose not to do so until such time as they have received the single expert’s report.  I have directed that the matter be relisted at a Registrar’s directions hearing so that questions about when the conciliation conference can occur can be determined depending upon the discovery issue.  The wife says that she will produce documents but it is not at all clear what those documents are and whether they will in fact assist in the resolution of the matter.  Accordingly at the directions hearing, I would expect both parties to have the issue about discovery sorted out and if not, then a Registrar make appropriate orders for the provision of whatever documents are needed to enable the valuation to be completed.  

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin.

Associate: 

Date:  23 February 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GRANT & GRANT