Hawthorn & Hawthorn & Anor

[2012] FamCA 785

FAMILY COURT OF AUSTRALIA

HAWTHORN & HAWTHORN AND ANOR [2012] FamCA 785

FAMILY LAW – PROPERTY – Practice and Procedure – wife seeks to set aside orders pursuant to section 106B of the Family Law Act 1975 (Cth) – financial disclosure

Family Law Act 1975 (Cth)

M & DB [2006] FLC 93-293
Waugh & Waugh [2000] FLC 93-052

APPLICANT: Ms Hawthorn

FIRST RESPONDENT: Mr Hawthorn

SECOND RESPONDENT: S Pty Ltd

FILE NUMBER: MLC 2447 of 2011

DATE DELIVERED: 22 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 22 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stoikovska

SOLICITOR FOR THE APPLICANT: Leanne Cain & Associates

COUNSEL FOR THE FIRST RESPONDENT: Mr G. Holmes

SOLICITOR FOR THE FIRST RESPONDENT Campbell & Shaw

COUNSEL FOR THE SECOND RESPONDENT Dr R. Ingleby

SOLICITOR FOR THE SECOND RESPONDENT McPherson & Kelley Lawyers

Orders

IT IS ORDERED THAT:

1.The further hearing of the proceedings be adjourned to 11 July 2012 at 9.00 am (“the mention date”) estimated to take one hour for a consideration of injunctive relief and directions.

2.In anticipation of the mention date:-

a)     the husband and the second named respondent file and serve any applications or responses and all evidence upon which they seek to rely by not later than 12.00 noon on Friday 15 June 2012;

b)     by not later than 12.00 noon on Friday 29 June 2012 the wife file and serve any further applications or evidence upon which she relies.

BY CONSENT IT IS ORDERED:

3.Within 14 days the respondent husband and second named respondent deliver to the solicitor for the wife (in hard copy format) the following documents:-

a)     all minutes and resolutions pertaining to any distributions to the husband from the Hawthorn Family Trust during the marriage to date;

b)     all minutes and resolutions pertaining to the T Unit Trust, S Pty Ltd and any asset holdings of S Pty Ltd and/or related entities or subsidiaries thereof (‘the valuation”) including all correspondence for and from any and all consultants, valuers, accountants and advisers engaged in respect of the valuation or who prepared any valuation.

c)     All minutes of meetings and resolutions, to date and ongoing, with respect to the restructuring of the T Unit Trust, including all correspondence and advice to and from all consultants, accountants and advisers engaged in respect to the proposed restructure NOTING THAT this includes the minutes of the meeting in December 2011 referred to in the first paragraph of the letter dated 11 April 2012 from S Pty Ltd to the husband.

IT IS FURTHER ORDERED BY THE COURT THAT:

4.Pending the mention date the husband be and is hereby restrained from dealing in any manner whatsoever with the balance of consideration for the transfer of his units in the T Unit Trust, whether in the sum of $2,576,288 (or any other sum) save for withdrawing the sum of $30,000 of the balance for his own support.  For the avoidance of doubt, the husband’s obligations under any child support assessment, for school fees, for spousal maintenance or under other orders of the Court continue in full force and effect.

5.Pending the mention date, the respondent husband be and is hereby restrained from dealing in any manner whatsoever with any income tax refund due to him or received, estimated in the sum of $436,970, and, upon receipt of the refund, the husband do all acts and things necessary to ensure that those monies are invested in an interest bearing controlled account subject any agreement in writing between the parties to the contrary.

6.The reasons for judgment this day be transcribed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2447 of 2011

Ms Hawthorn

Applicant

And

Mr Hawthorn

First Respondent

And

S Pty Ltd

Second Respondent

REASONS FOR JUDGMENT

EX-TEMPORE

1. These reasons record some of the relevant history apparent on this first day court event and explain why I will make some injunctive relief to preserve the assets in the name of the husband until the matter comes back before me in July 2012.

2. This matter was taken out of the pool of cases that are said to be ready for hearing and allocated to me, and in due course, the parties were, by correspondence dated on or about 1 May 2012, notified of today’s hearing date.

3. Today, Ms Stoikovska appears on behalf of the wife, who attends Court, and Ms Stoikovska is instructed by Ms Cain, solicitor. 

4. The husband does not attend Court.  He has been linked into the proceedings, or some of them, by telephone.  He went on a prepaid holiday on 20 May 2012.  Mr Holmes of counsel appears on behalf of the husband, and Mr Holmes is instructed by Mr Leighton, solicitor.

5. Dr Ingleby appears on behalf of S Pty Ltd with instructions from Mr Hawthorn Senior who is in Court. Mr Hawthorn Senior is the husband’s father. S Pty Ltd, which is the trustee of the T Unit Trust, is a party to the proceedings, having been joined by an amended application initiating proceedings filed on behalf of the wife on 18 May 2012. By paragraph 10 of that amended application, the wife seeks to set aside pursuant to section 106B of the Family Law Act 1975 (Cth) “the purported transfer of 10 of the husband’s units in the [T] Unit Trust made on or about 19 April 2012.”

6. It is agreed between the parties that there needs to be discovery and an exchange of information.  It is thought that that can be achieved reasonably within a month or so.  I have indicated that I will take the matter on 11 July 2012 at 9.00 am. 

7. The matter in issue between the parties is the extent of any injunctive relief to preserve assets, which I should impose between now and the adjourned date. 

Historical matters

1. The husband and the wife commenced to live together in 2001, married in 2002, and separated on 12 May 2009.  There is one child of their marriage, L, in respect of whom there currently appears to be no dispute.   Everyone is on notice that, in the event that a parenting dispute arises, they should factor into the proceedings as soon as possible the preparation of some reportable assessment and raise for consideration the applicability of the rules of evidence to a parenting case noting, in particular, whether application needs to be made pursuant to Section 69ZT(3).

2. The major assets of Ms Hawthorn (“the wife”) and Mr Hawthorn (“the husband”) are, first,  the former matrimonial home, which is the property at Property R, which is a property encumbered by a mortgage.  Second, at least at the beginning of these proceedings, the husband had a valuable interest in the T Unit Trust, being 10 per cent of the units.  I will record some information which has been forthcoming today about the husband’s 10 per cent share.

3. I have been informed from the Bar table that the business run by S Pty Ltd was started by Mr Hawthorn Senior in about 1968.  He and his two brothers, Mr D Hawthorn and Mr R Hawthorn, each took units.  Mr Hawthorn Senior took 50 per cent of the units, Mr D Hawthorn had 25 per cent of the units, and Mr Hawthorn had 25 per cent of the units.

4. About five years ago, Mr R Hawthorn sought to curtail his involvement in the business, and disposed of an amount equivalent to 20 per cent of the whole of the units in the unit trust.  10 per cent went to the husband and 10 per cent went to his sister, Ms B (who isn’t in Court and who isn’t a party to these proceedings).  The purchase price paid by husband for his 10 per cent interest was apparently $5 million. 

5. A commercial bill was taken by the husband to finance his acquisition of the 10 per cent package. Thereafter, it appears that the husband’s income has been comprised in three ways: 

   a)first, his income from personal exertion;  he is currently on a wage from S Pty Ltd of $130,000 per annum, but both his counsel and counsel for S Pty Ltd say that he is underperforming; 

   b)second, by way of income or drawings from the units, the husband was receiving some $20,000 per week;  and,

   c)third, by way of distributions from a discretionary trust, the Hawthorn Family Trust, he was receiving some $11,000 per week. 

   It’s said that a large part of payments in b) and c) were applied in repayment of the commercial bill facility.

6. On 24 April 2012, correspondence was received by the wife’s solicitors from the husband’s solicitors.  I gather that there was no precursor to this correspondence.  The correspondence appears as “LRC10” in the affidavit of Leanne Cain, solicitor, sworn 17 May 2012.  The correspondence enclosed documents from S Pty Ltd directed to the husband and dated 11 April 2012. There is no suggestion that the letter of 11 April 2012 was not received by the husband on that date.  The letter to the husband informs him that

   the unit holders of the [T] Unit Trust in the month of December 2011 had a meeting in which it was decided that [S] Pty Ltd as trustee for the [T] Unit Trust will invoke clause 23 of the trust deed, which allows it to redeem your units.

7. The trust then requested Mr U to do a valuation as per the trust deed clauses 21 and 23 as to the value of the business:

   This valuation has been completed, and we now enclose the notice to redeem your units, together with the unit transfer form.  Please sign the attached unit transfer form and contact me so that we can make arrangements for the delivery of the signed transfer to me and payment to you.  I do suggest that you read the documents that you were sent, and if you have any questions or queries, contact your solicitor for comments and advice.

8. There is a transfer enclosed with the correspondence to the wife’s lawyer which was apparently executed by the husband in the presence of one Mr M and dated 19 April 2012.  It indicates that the consideration for the transfer of the 10 per cent of the units was $6,066,464.30. 

9. There is a notice to repurchase units from S Pty Ltd to the husband dated 11 April 2012.  It purports to give notice pursuant to paragraph 2.1 that the repurchase is to be effected “with effect from 1 January 2012”.  That is, retrospectively. 

10. Insofar as both documents were executed by S Pty Ltd, they were witnessed by Mr Hawthorn Senior, the husband’s father, and by his sister, Ms H. 

11. There is a four page letter not on letter head, undated and directed to the directors of S Pty Ltd which is apparently the internal valuation of the entirety of the T Unit Trust.  It puts the value at $60,664,643 of which the husband’s 10 percent is easy to calculate and that is how the consideration for the redemption was set. 

12. I am informed that the husband wasn’t at the meeting on the unspecified date in December 2011 and wasn’t advised of the upshot of the meeting.  Nonetheless, he signed a transfer of his units on 19 April 2012 with effect from 1 January 2012.  Notably, it was not until 23 April 2012 that the husband’s solicitors in these proceedings communicated any of this to the solicitors for the wife. 

13. The transfer has apparently been effected.  The $6 million dollar purchase price is now a credit in favour of the husband in his loan account in the T Unit Trust.  The amount outstanding under the commercial bill facility has been paid and the balance remaining is some $2,576,000.  There is also considered to be a liability for capital gains tax which maybe another $260,000.

14. The husband, through Mr Holmes, says that the amount that the husband received into his loan account represented a fair market value for the shares.

15. Dr Ingleby for S Pty Ltd suggests that it may have been in excess of fair market value because there was apparently no discount for the fact that the husband’s interest was a minority shareholding.

16. Paragraph 21 of the trust deed is said to provide as follows:

    RE-PURCHASE OF UNITS

    21.

    (a)After the Commencement Date any Holder may at any time in writing request the Trustee to re-purchase all or any of the Units represented by his Certificate and shall at the same time hand the Trustee the relevant Certificate together with the form of request to re-purchase duly executed.

    (b)If the Trustee approves of the re-purchase (and it may it its absolute discretion decline to do so) then the following paragraphs hereof (i) to (vii) inclusive shall apply:

    (i)The Trustee shall cause a valuation to be made of the investments of the Fund and insofar as the investments of the Fund consist of land, the value may be ascertained by a Sworn Valuer.

    (ii)The value of the Fund as ascertained pursuant to paragraph (i) less all liabilities shall be divided by the number of Units issued to all Holders and the quotient shall be the re-purchase price for each Unit PROVIDED THAT if the investments of the Fund sold by the Trustee pursuant to paragraph (iv) of this sub-clause realise less than the value placed on such investments under the provision of paragraph (i) of this sub-clause, then the amount realised by the sale of such investments shall be substituted for the valuation of such investments for the purpose of ascertaining the value of the re-purchase price of each Unit under the provisions of this sub-clause.

    (iii)Upon the value of each Unit for the purposes of re-purchase being known the Trustee shall notify the Holders who lodged the re-purchase request.

    (iv)If in the opinion of the trustee it is expedient to do so and the Trustee can so arrange the Trustee may borrow moneys in order that cash shall be available in the Fund to make payments required under this Clause but otherwise the Trustee shall realise such investments as shall be necessary to re-purchase the Unit or Units.

    (v)Such moneys shall be used by the Trustee in satisfaction of the rte-purchase aforesaid and forthwith upon such payment being made the Units re-purchased shall be cancelled and shall not be re-issued and an appropriate entry to that effect shall be made in the Register.

    (vi)The costs of any valuation of the Investments of the Fund made pursuant to this Clause shall be paid out of the Fund but all other expenses of a re-purchase of Units including Stamp Duty shall be paid by the Holder making the request.

    (vii)Notwithstanding anything hereinbefore contained in this Clause the Trustee shall not re-purchase the Units if any one or more Holders agrees to purchase the Units at the value above fixed or at any price which may be negotiated between the parties.  Such Units shall be offered to the Holders as if the re-purchase notice were a transfer notice and the provisions of Clause 11 hereof shall apply in like manner as if the repurchase notice was a transfer notice.

17. Thereafter the trust deed provides:-

    VALUATION

    22.      At the expiration of every tenth year from the Commencement Date and at any other time if Holders holding between them not less than 50 % of the Units by writing signed by them so request or if at a duly convened meeting a majority of Holders present in person or by proxy and holding between them not less than seventy five percentum (75%) of the Units so resolve a valuation of the Investments of the Fund shall be made by the Trustee,  The cost of any valuation of the Fund made pursuant to this Clause shall be paid out of the Fund.

    COMPULSORY RE-PURCHASE

    23.(a)       Notwithstanding any rule of law or equity to the contrary or anything contained in this Deed the Trustee may at any time or times and from time to time without assigning or giving reason for his decision give notice to any Holder or if such Holder be deceased or bankrupt to the executors or administrators or such deceased Holder or other legal personal representative of such Holder to re-purchase the whole or any number of the Units in the Fund of such Holder and upon such notice being given as aforesaid the Trustee shall be at liberty (whether or not the Certificate for such Units is surrendered) to re-purchase the Units by paying to the Holder or executors administrators or other legal representatives a sum equal to the re-purchase price (as calculated in accordance with Clause 21 hereof) multiplied by the number of Units in respect of which notice has been given and the Trustee upon payment of the said sum to the Holder shall remove the name of any such Holder or deceased or bankrupt Holder from the Register accordingly and such Holder shall thereafter cease to be a Holder in the Fund.

    (b)Any notice to be given pursuant to this Clause shall be sufficiently given if posted by prepaid post to the last address of the Holder shown in the Register of Unit Holders and shall be deemed to be received upon the day next following the day of posting.

    (c)All persons upon becoming the Holders of Units in the Fund shall be fixed with and shall be deemed to have had notice of this Clause.

18. Ms Stoikovska for wife says that she hasn’t seen the trust deed but I note that it has been in court during the day.  I do not understand why counsel has not looked at it. The trust deed will be marked Exhibit “H-2” and will remain on the court file.

19. I inquired of Dr Ingleby, who appears for S Pty Ltd, whether there has been a compulsory acquisition of any other person’s units in the T Unit Trust and was told there had not been.  In particular there had been no compulsory acquisition or repurchase of Ms H’s interest.  The reason for this was said to be that she earns some $100,000 more per year than the husband and is apparently better at her job than he is at his.  The reason given for the husband’s units being compulsorily repurchased was “his performance and his own need for money” or words to that effect.

20. It is said that the husband’s “need for money” is tax related. As best I recall there was some reference to the fact that the wife would seek in due course to be paid a sum certain in this proceeding and the husband may require liquid assets with which to do that. 

21. In terms of the husband having “a need for money” to meet a tax liability, I note that the husband swore two financial statements, the most recent being sworn on 9 August 2011.  In neither of his financial statements does the husband disclose a liability for arrears of tax or outstanding tax expressed as a lump sum.  In the personal expenditure section of the financial statement the husband deposes to paying some $12,000 per week by way of income tax.  In his liabilities he does not show either the unit trust nor his father’s family trust as being a creditor. At items 48 and 49 where total income tax which has been unpaid is called for, for  the last financial year and which is unpaid for previous financial years, he has sworn “nil”. 

22. As to financial resources, the husband refers to the T Unit Trust beneficiary loan account in his favour of $510,000 and, in the family trust of his father, some $166,000 by way of a beneficiary loan account. 

23. There are two matters of which I understand the wife’s practitioners were advised on 17 May 2012. They are:-

    a)First, there is a taxation refund due to the husband of about $430,000 not yet paid but on its way from the ATO. 

    b)Second, the T Unit Trust, which in effect owns S Pty Ltd, will be restructuring so that S Pty Ltd will become the proprietor in its own right.  That is going to coincide with and take place within the next financial year.

24. Returning to the assets still within the pool, the former matrimonial home is worth approximately $600,000. It is encumbered by a mortgage which related partially to its acquisition. I am informed there is about $180,000 owing on the house mortgage.

25. The interest of the husband in the Unit Trust was by far the major asset.  The matter has been in court now for about six hours today including a luncheon adjournment and including time sought by the parties and granted for them to have general discussions. 

1. I am still uncertain about the purpose of the recent alleged transactions and the effect of the alleged transactions as between now and the next hearing of this matter on 11 July. 

2. Counsel for the husband and Mr Hawthorn Senior have obligingly provided information to assist me to follow some of the history about the husband’s entitlement to 10 units. Quite frankly, however, the information gives rise to more questions than it answers. 

Wife’ application for injunctive relief

1. The wife now seeks to restrain:

   a)the respondent husband and the second respondent (S Pty Ltd) from dealing in any manner whatsoever with the balance of consideration for the transfer whether in the sum of $2,576,288 or in any other sum; and

   b)the respondent husband from dealing, in any manner whatsoever, with any of the tax refund due to him, estimated to be in the sum of $436,970, and that such sum be invested in an interest bearing controlled account pending further order of court or agreement in writing between the parties.

2. Through counsel, the wife submits that the injunctive relief is necessary because assets will be dissipated or alienated from the pool of assets divisible between herself and the husband by the husband or his father or by S Pty Ltd.  Counsel for the wife points to the fact that the wife, through her lawyers, only received notice after the fact of the disposition by the husband of the 10 percent of the units. Furthermore, that the disposition was one of retrospective effect – by some four months. 

3. In proceedings in this court the test in relation to injunctions is essentially a balance of convenience.  As applicant, the wife has the onus of proof.  There are authorities such as Waugh & Waugh [2000] FLC 93-052 and a subsequent discussion of that case by the Full Court in M & DB [2006] FLC 93-293 to the effect that what needs to be shown by an applicant for an injunction is a risk of dissipation that will defeat or prejudice a claim under section 79.

4. The husband has previously offered an undertaking that he would not deal with his beneficial loan account, being the $2.5 million worth of proceeds of sale, “save for payment of my living expenses, compliance with current orders and legal costs”.  It seems to me that that is rather too broad.  He has his own living expenses.  He supports the wife largely pursuant to current orders of the court and there is no evidence that he has pressing legal costs, but, more significantly, on top of capital resources, he also has his income of $130,000 per annum or $2500 per week, at least for the time being.

5. This was the position when the parties went before Senior Registrar FitzGibbon on 28 September last year, and their finances were the subject of submissions, arguments and findings. The parties had financial material before the Court for the purpose of those proceedings.  The husband’s most recent financial statement appears to be sworn on 8 August 2011 and filed on 9 August 2011, and his affidavit sworn on 27 May 2011 and filed on 15 June 2011. 

6. The Senior Registrar made certain orders on 7 November 2012, the upshot of which is that the husband is now responsible for payments toward the wife’s household on a weekly basis of the mortgage at some $697 per week, about $100 per week in school fees, $450 in child support and $700 per week by way of spousal maintenance.  Together with the income tax liability associated with his income from S Pty Ltd which appears to be $780 per week, that is an outlay of some $2727 per week.

7. The husband also has his own living expenses: he is residing in rental accommodation with his wife and their infant child.  That household runs two cars, although the husband gets an allowance for one of them.  The husband seeks access to capital to meet recurrent expenses.

8. Ms Stoikovska, for the wife, resists any inroads being made into the balance of the proceeds of the alleged sale or the alleged transfer.  When pressed with the reality that I would be allowing some access to moneys, she said approximately $10,000 to $15,000 would be sufficient for the husband between now and the hearing on 11 July 2012. 

9. It seems to me that the husband’s expenditure for the wife and for his own income tax amounts to the $2727 I indicated earlier.  From that he also has to pay his own rent and living expenses, which I calculated to be in the vicinity of about $2500 per month going from his last financial statement. 

10. Mr Holmes submits that the balance of convenience does not favour the wife at all and that his client is likely to need more and would seek that in the description of the moneys allowed to the husband I include living expenses, compliance with current court orders and legal costs.  I don’t agree.

11. It seems to me that a figure in the sum of some $28,000 is appropriate which I am prepared to round up to $30,000, which will include some small amount for legal costs. 

12. The order will read to the effect that the husband cannot use the proceeds of sale, save for the sum of $30,000, which represents provision for himself between now and the adjourned date.  He should be in a position at the adjourned date to say how he has spent that money. 

13. The next issue is what happens to the tax refund owing to the husband.  It is not yet paid, but apparently it will come in, in the short term.  It was interesting that even when pressed, Mr Holmes, counsel for the husband, was unable to make any submissions about why his client needed the tax refund.  He sought to defer to Dr Ingleby for S Pty Ltd as to why the husband needed to use the tax refund between now and 11 July 2012. 

14. Dr Ingleby, on behalf of S Pty Ltd, says that the taxation return will come in the name of the husband, but represents a refund of overpayment of provisional tax which was made by, if not S Pty Ltd, then by Mr Hawthorn Senior, the husband’s father, and the husband proposes to apply that $436,000 to part repayment of the $3 million commercial bill for S Pty Ltd or himself, I don't know.  There was no evidence on this point.  Again, I note as above, that as of August last year there is no debt shown by the husband as owing to his father or to S Pty Ltd for payment of moneys on his behalf. 

15. Ms Stoikovska submits that the $2,500,000 proceeds of sale are merely a loan account entry. The wife’s lawyer has not received any proof that the balance of transfer price was ever transferred to the husband or put into account in his name.  That two and a half million dollars remains an entry in the loan account and Mr Holmes concedes that it is not accessible on demand.  Accordingly, I take into account that the $436,000 may well be the only cash the parties have access to for the time being. 

16. I will enjoin the husband’s use of the $436,000.  I do so because there is no proper evidence to suggest that anyone else needs it.  It may be that what Mr Hawthorn Senior says about S Pty Ltd being somehow entitled to the monies as an overpayment of provisional tax is correct, but it does not make sense to me today. Mr Hawthorn Senior can explain that proposition on oath on the next occasion, by which time everybody’s finances should be clearer.

17. I will make an injunction which covers all of the $436,000 subject to the husband being at liberty to withdraw $30,000.

18. For the avoidance of doubt, I am satisfied that the husband has sufficient funds from his income to meet the child support spousal maintenance and mortgage payments which he is otherwise required to meet, so they continue.

Future conduct of the proceedings

1. As I have said, the matter will come before me on 11 July 2012. It will be listed for one hour. There will be no time for negotiation on the day as I will have to take another matter at 10.00 a.m.

2. The wife seeks an order to perfect and implement a previous order about valuation of the 10 per cent share in the unit trust.  The parties had previously selected Mr P but were conversing (or arguing) over the terms of the expert’s retainer and instructions to him. It is not lost on the wife that, in the midst of those debates, the husband’s 10 per cent share which was to be valued was, at the very best, converted, and at the very worst, removed. 

3. It may be that the 10 per cent does have to be valued down the track, but I do not see it as an exercise that needs to happen or even be initiated before 11 July 2012. 

4. What needs to happen between now and 11 July 2012 is that the husband needs to make a completely clean breast of what has occurred up until now.  He needs to say how he has lived and how he will live in the future and what access to funds he will require in excess of his own income.  All of the documents requested by the wife should be provided to her and should be digested not by a solicitor alone but by an appropriately qualified accountant or the like who should be able to ask for more documents as and when it appears that they are necessary to explain the situation.

5. Then from the wife’s point of view she should carefully consider whether or not the relief sought, including to set aside the transfer of the units to S Pty Ltd, is something that she wants to pursue.  The relief she seeks will only be granted in the event that it is “necessary” and it may be that in this case it is not “necessary” in the sense that the authoritative decisions make clear it should be. That is not a decision for her today.  It is a decision for the future, but I would suggest it is a decision to be taken in the fairly close future.  It seems to me in this case that the parties could spend a great deal of money, probably the wife more so than anyone else, in the running of the proceedings.

6. I would not want the parties to mediate before they are ready to do so because it is a costly exercise.  However, the impression that I get is that they do need some sort of guiding hand, and an overview from a perspective they do not currently have. The parties should discuss a mediator agreeable to all prior to the adjourned date and ascertain that (s)he can be available. 

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 22 May 2012.

Associate: 

Date:  7 September 2012