Jacobsen & Jacobsen
[2023] FedCFamC1F 669
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jacobsen & Jacobsen [2023] FedCFamC1F 669
File number: SYC 3701 of 2018 Judgment of: BRASCH J Date of judgment: 11 August 2023 Catchwords: FAMILY LAW – INTERIM PROPERTY – Where both parties ought interim distributions of funds – Where trial listed in eight weeks – Orders made for sale of shares and equal distribution of the proceeds.
FAMILY LAW – PRACTICE AND PROCEDURE – Where the parties are equal shareholders in the family business –Where wife seeks a range of orders for access to documents dating back to 2015 – Where some of the wife’s orders are far too wide – Where some orders jeopardise the trial – Where some orders are beyond power – Where some orders are trial issues – Orders made for source documents to be provided to the wife from here on – Orders made dispensing with r 7.25(1) and r 7.26(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Legislation: Corporations Act2001 (Cth)
Family Law Act 1975 (Cth) ss 79, 114, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.25, 7.25(1), 7.26, 7.26(1), 7.28
Cases cited: Black and Kellner (1992) FLC 92-287; (1992) FLC 92-287
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Weir and Weir (1993) FLC 92-338
Division: Division 1 First Instance Number of paragraphs: 133 Date of hearing: 7 August 2023 Place: Sydney Counsel for the Applicant: Ms Gillies SC Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr B Jones SC Solicitor for the Respondent: Barkus Doolan Winning ORDERS
SYC 3701 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JACOBSEN
Applicant
AND: MR JACOBSEN
Respondent
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
11 AUGUST 2023
THE COURT ORDERS:
1.The husband and wife forthwith do all acts and things necessary to sell the shares held in their joint names in Company M ("the Company M Shares").
2.That upon the sale of the Company M Shares, the husband and wife shall do all acts and things necessary and sign all documents necessary to disperse the net proceeds of sale equally between them and shall each be responsible for any capital gains tax arising with respect to the sale of those shares incurred in their individual names.
3.By close of business on the first business day of each week, the husband, in his capacity as director of H Pty Ltd, shall cause an email to be sent to the wife with a list of transactions and journal entries ready for the wife’s review, along with the source documents supporting each transaction.
4.The need for compliance with the timeframe as required in r 7.25(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is dispensed with.
5.The need for compliance with the timeframes as required in r 7.26(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is dispensed with.
THE COURT NOTES THAT:
A.The parties were able to reach agreement at the hearing that the letter sent to Ms P would include a notation in the following terms “the wife does not necessarily agree with the accuracy of the financial statements, and it is anticipated she will want to put further documents if they become available and upon their receipt”.
B.The provision of further documents by the wife to the expert has been determined by the reasons accompanying this order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J:
These are my ex tempore reasons. I will correct the transcript for grammatical errors and to make my oral reasons more amenable to the written word.
Before me on Monday was an Application in a Proceeding filed on 5 June 2023 by Ms Jacobsen, the wife. In that application, and as updated in her Outline of Case Document filed 4 August 2023, the wife sought a range of orders, including an interim release of funds to her, orders about the Australian Tax Office (“ATO”), and various, expansive orders and restraints allowing her to invigilate the data of, or, veto the running of the business enterprise H Pty Ltd.
The husband, Mr Jacobsen, filed a response to the Application in a Proceeding dated 21 July 2023, but as I did for the wife, I concentrated on the husband’s more recent Minute of Orders as set out in his Outline of Case Document filed 4 August 2023. He proposed joint releases of funds and that the Financial Years 2021, 2022, 2023 financial statements and returns for H Pty Ltd and the wife’s business be sent to the Single Expert for an updated report.
It transpired during the course of the hearing on Monday that the Single Expert, Ms P had written to the parties, to the effect that if she did not get the documents by 9 August 2023 (being two days after the Monday hearing) she would probably not have her updated report ready for trial. Thus, I deliver these Reasons and Orders as quickly as possible, albeit in a week of many call overs and other interim hearings.
The parties’ property and parenting dispute is set down for a 10 day trial commencing 9 October 2023. I express my very great concern that the matter will either not be ready by that time, or, that it will not be concluded in those 10 days.
On 22 November 2022, I made an order requiring the parties to contact chambers (copying the other and ICL) if either party forms the view that the trial dates are in jeopardy. That order remains in force.
Background
The applicant wife was born in 1976, and the husband was born in 1975. The parties commenced cohabitation in 1999 or 2000 and were married in 2001. The parties dispute the date of separation: 7 September 2016 for the husband; or, 28 August 2017 for the wife.
There are two children of the marriage, X born 2006 and Y born 2009.
In late 2007, the family business, H Pty Ltd was registered. The husband is the sole director of H Pty Ltd. The husband and wife are equal shareholders, each holding one ordinary share. Disclosure, at least with respect to H Pty Ltd, is a much disputed topic in this matter.
The husband commenced proceedings on 13 June 2018. On 6 September 2019, Justice Rees made the following relevant orders:
3. That the Husband do all things necessary to provide the Wife with, and maintain at all times online and hard copy viewing access to the following accounts held by [H Pty Ltd]:
3.1 the [H Pty Ltd] Westpac Account;
3.2 the [H Pty Ltd] [J Bank] Account; and
3.3Any other bank account in the name of [H Pty Ltd] and/ or through which [H Pty Ltd] transacts.
AND the wife is restrained from operating on any account of [H Pty Ltd] or conducting any transaction on any account of [H Pty Ltd].
4.That no later than fourteen (14) days after the conclusion of each calendar month, the Husband shall provide the following material to the Wife in relation to [H Pty Ltd]:
4.1MYOB (or any other software used by [H Pty Ltd]) accounts for the past month;
4.2 Directors and shareholders loan account statements/ledgers;
AND the Wife shall thereafter be at liberty to request that the Husband provide her with source documents relevant to the transactions identified in the accounts and ledgers provided and the Husband shall provide such material within seven (7) days of receiving any such request from the Wife.
5.That no later than twenty-one (21) days after the conclusion of each financial year, the Husband shall provide the following material to the Wife in relation to [H Pty Ltd]:
5.1 management accounts for [H Pty Ltd] for the past financial year; and
5.2commission statements for [H Pty Ltd] clearly delineating recurring revenue and one-off revenue for the past financial year.
(Emphasis added)
Justice Loughnan made the following orders on 15 July 2020 (the "July 2020 orders"):
(9)By way of enforcement of Order 4 of the Orders made on 6 September 2019 and in addition to that order, within seven days of the date of these Orders:
(a)the husband shall set up online view access for the wife to the [H Pty Ltd] MYOB accounts including, but not limited to, all transactions and reports, banking, cards, inventory, payroll, purchases, sales and the Journal Security Audit Report;
(b)the husband is to provide to the wife’s solicitors instructions and a password to allow the wife to access the MYOB accounts; and
(c)the husband shall be restrained from changing the access privileges or password for the wife’s access to the MYOB accounts until the resolution of this matter on a final basis.
(10)Within seven days of the date of these Orders, the husband shall provide to the wife by email a current loan account ledger which covers the period from the date of commencement of the shareholder loans until the current date and includes the following:
(a) all transactions for the above period;
(b) a date for each transaction;
(c) the amount allocated to each shareholder;
(d) the relevant credit card or bank account; and
(e) a description of the transaction.
(11)Within 14 days after the conclusion of each calendar month, the husband shall provide to the wife by email an updated loan account ledger as described above.
(Emphasis added)
Ms P’s first valuation was conducted as at 30 June 2020. That report was released on 14 December 2020. As said, Ms P is tasked to update her report for the forthcoming trial.
Material
The wife relied upon:
·Application in a Proceeding filed 5 June 2023;
·Affidavit of Ms O filed 24 July 2023;
·Affidavit of Ms Jacobsen filed 3 August 2023; and
·Financial Statement filed 5 June 2023.
The husband relied upon:
·Response to Application in a Proceeding filed 21 July 2023;
·Affidavit of Mr Jacobsen filed 21 July 2023;
·Financial Statement filed 21 July 2023;
·Affidavit of Mr LL filed 19 July 2019;
·Affidavit of Ms OO filed 3 August 2023; and
·Affidavit of Ms OO filed 4 August 2023.
Both parties filed Outline of Case documents and the respondent’s Senior Counsel handed up written submissions.
The parties had also produced tender bundles, but I indicated to counsel at the start of the hearing that I would not receive those bundles into evidence. Rather, counsel could tender documents in the usual way.
In total, three Exhibits came into evidence.
Issues in dispute
When the matter was before me on Monday I indicated to the parties that if they were content for me to give short form reasons, then I would be able to address the matter quicker than if either party required long, more traditional reasons. Neither counsel took issue with that approach.
Many of the orders sought by the wife are informed by what the wife said the husband told her at separation – he would run the company down, strip the assets, and she will get nothing. The husband does not deny this in his response affidavit, but says “I do not recall” (Husband’s affidavit filed 21 July 2023, paragraph 103). Senior Counsel for the wife quite rightly accepted I cannot determine that dispute of fact today, but informs me of it to give some context to the orders sought by the wife.
In short, it is the wife’s case that she does not trust very much, if anything, that the husband has done with respect to the H Pty Ltd business. As such the wife seeks orders that are considerably detailed and expansive in breadth, all of which I set out below.
The husband on the other hand says he has disclosed as required and said a number of times in submissions that there was no point giving the wife more material because she is “asking questions from a place of ignorance” and “because the wife is not qualified” to understand it. I do not understand that the duty of disclosure (especially about an entity in which the wife has an interest) only applies if the recipient is qualified to understand the disclosure. Be that as it may, it was the husband’s case that the wife failed to have an evidential basis for any of the orders sought. He also submitted various orders were oppressive and impeded or touched upon the rights of third parties.
I will deal with the orders that are in dispute one by one and adopt the headings used by the wife.
Interim release of funds to the wife
The wife sought an order in the following terms:
1.That within 14 days of these Orders, the Husband in his personal capacity or in his capacity as Director of [H Pty Ltd], shall pay or cause to be paid to the Wife the sum of $710,000 into an account nominated by her in writing, with such amount to be characterised at final hearing, or in the alternative, with such amount to be characterised as partial property settlement pursuant to section 79 or as interim costs pursuant to section 117 of the Act.
(Wife’s Outline of Case Document filed 4 August 2023, p.3)
The husband proposed orders in the following terms:
1.That the husband and wife forthwith do all acts and things necessary to sell the shares held in their joint names in [Company M] ("the [Company M] Shares").
2.That upon the sale of the [Company M] Shares, the husband and wife shall do all acts and things necessary and sign all documents necessary to disperse the net proceeds of sale equally between them and shall each be responsible for any capital gains tax arising with respect to the sale of those shares incurred in their individual names.
3.That pending further Order, the Wife be at liberty to borrow and/or further encumber up to an amount of $200,000 against any of the following properties held in the sole name of the Wife: [specific properties were then named]
4.That pending further Order, the Husband be at liberty to borrow and/or further encumber up to an amount of $200,000 against any of the following properties held in the sole name of the Husband: [specific properties were then named]
(Husband’s Outline of Case Document filed 4 August 2023, p.3)
The husband then proposed orders to restrain both the husband and wife from encumbering the properties to a value greater than $200,000 each.
The wife deposed that if I was against her on the $710,000, then she sought the Company M shares be sold and that she take all of the proceeds. It was also said that the City UU property could be sold. I understand it is agreed the property be sold. However, neither party put on a form of words in their outlines with respect to a sale, nor did they actually seek any orders about same.
If the parties are agreed that this property be sold there is nothing stopping them (other than their inability to reach an agreement) from coming to terms on a sale process and preservation of all or some of the proceeds. They are welcomed to send proposed consent orders to chambers.
Back to the interim distributions actually the subject of proposed orders. No submissions were made, nor could they sensibly be made, that the interim distributions proposed by each party endangered their ultimate entitlement in any way. Both counsel accepted it was therefore not necessary for me to make a preliminary assessment if I use s 79 of the Family Law Act 1975 (Cth) (“the Act”) as the head of power for an interim release of funds, or, alternatively s 117 of the Act.
No submissions were advanced with any particularity, or at all, about using s 117 of the Act as the source of power for the distributions. I will proceed on the basis that the head of power I am exercising is s 79 of the Act and with the concession of both parties that the sums sought were well entirely within each party’s range of ultimate entitlements. I was told that the pool at one point was thought to be around $16 million.
The $710,000
The wife deposed, “[t]he inequity of access to funds between [Mr Jacobsen] and me has been oppressive and has damaged my relationships with the children. I have not had funds to sufficiently run my household and have lived frugally” (Wife’s affidavit filed 3 August 2023, paragraph 71). That “oppression” to which the wife speaks is in circumstances where the wife says that in, “FY2017 to FY2023 (being a period of 7 years), I calculate I received $872,074 in rent from properties in my sole and our joint names, and have earned $656,617 by way of income from my consulting, a total of over $1,528,000” (Wife’s affidavit filed 3 August 2023, paragraph 67). That “oppressive” living is an average of almost $220,000 per year. In addition, both parties have each received “almost $800,000 (before capital gains tax) from the sale of a property, and $200,000 in withdrawals from our home loan” (Wife’s affidavit filed 3 August 2023, paragraph 70).
Conversely, the wife says the husband has received “$2,906,286 in salary and $285,966 in fringe benefits from H Pty Ltd, $1,098,730 in rent from properties in his sole and our joint names, and removed at least $188,900 in cash from our safe, a total of over $4,479,000” (Wife’s affidavit filed 3 August 2023, paragraph 68). Accepting those figures for argument’s sake, that is about $640,000 per year. Plus, the $800,000 and $200,000 referred to above.
The husband deposes that neither he nor H Pty Ltd have the means to pay the $710,000 without disposing of assets or borrowing. However, no one moved the Court with any application for any sales.
In resisting the wife’s Application for $710,000, the husband, respectfully, took a nickel and dime approach to the wife’s Financial Statement saying if one subtracted the mortgage of $1,116 from her expenses (as she did not pay it), and also took her actual Part N expenses of $1,972 as opposed to her predicted expense of $3,170, her claimed expenses of $5,581 per week would reduce to $3,267. On an income of $3,946, the husband then said she had no need for funds. However, the wife’s Financial Statement does not include provision for legal fees going forward.
On the figures above, the wife has a surplus of $679 per week – that will not get the wife very far in terms of legal fees. The husband had slightly higher calculation for the wife’s revised expenses, revealing, on his calculations, a surplus of $409 – on either figure, the $679 or 409, there is little left for legal fees.
The husband also submitted I should conclude the wife’s income is greater than in her Financial Statement, saying he calculated her income to be $4,733. That is a dispute of fact I cannot resolve today, but no doubt will hear about at trial. But even if I accepted what the husband said, that would leave the wife with a surplus of $1,196 per week (Husband’s affidavit filed 21 July 2023, paragraph 59). Again, that does not get the wife very far in terms of the legal fees that her solicitor has deposed to for trial.
The husband’s attack on the wife’s expenses is in circumstances where the husband did not depose to the particulars of his expenses in his Financial Statement of more than $6,000 per week. Indeed, when the wife asked about his lack of completion of Part N of his Financial Statement, the husband’s solicitors said that was not required (Exhibit 3). That is strictly correct, but does not help the husband with critiquing the wife’s expenses, when he does not hold himself up to the same blow torch.
The wife’s Financial Statement filed 5 June 2023 indicates she had about $60,000 in the bank as at 11 May 2023 and had no car in her name.
Like the wife, the husband said his expenses exceeded his income and he is reliant upon a credit cards to meet the shortfall. His expenses included the unparticularised $6,000 to which I have already referred. The husband deposes to having $140,000 in the bank (Husband’s affidavit filed 21 July 2023, paragraph 64), but adds he has “debts owing to my solicitor”. In his Financial Statement, the husband values his motor vehicles worth $223,000 – Motor Vehicle 2 and two other motor vehicles, one of which he says remains registered in his name but he apparently holds it on trust for a friend. He gives Motor Vehicle 3 a zero value. The husband also owns a plate, which he said was valued at $750,000 as at late 2020. He says he has loaned his brother $100,000. The wife says he could call that in, but I have little, if any, evidence to satisfy me that is a practical reality. An issue at trial may be whether or not the loan is one the Court would take into account in the pool.
To the issue of legal fees, the wife deposes:
72. …
(g) The sale of [Property A] settled in [early] 2021, over 18 months after my first application. Until then, my legal fees incurred with Lander & Rogers had not been paid. I was required to pay my legal fees from my share of the net proceeds of sale of [Property A].
(h) Those funds have now been applied to pay my legal costs and disbursements in these proceedings and for living expenses. As a result, I find myself in a position where I do not have adequate funds to prepare and present my case at final hearing, including undertaking the research and investigation needed to verify the veracity of [H Pty Ltd 's] financial accounts given the issues I have identified as deposed to above.
…
76.My income has now reduced substantially, as a result of a restructure of the [XX] business organisation which significantly decreased the volume of work available to me since January 2023. My earnings for the half year from 1 January 2023 to 30 June 2023 were $30,471 before tax. For the second half of this calendar year, my earnings will be less than half that because I have only two definite jobs booked in for which I will earn approximately $8,800.
77.As a result of [Mr Jacobsen's] conduct, I do not have adequate funds available to me to meet my legal fees and enable me to properly prepare my case for the 10-day final hearing.
…
91.I understand that if I cannot cover my legal costs, Lander & Rogers Lawyers are entitled to file a Notice of Ceasing to Act under the terms of my signed costs agreement. I understand that based on my financial circumstances, I am ineligible for a grant of legal aid. I do not have access to sufficient funds from which to meet the ongoing legal fees and disbursements that I understand I am likely to incur.
(Wife’s affidavit filed 3 August 2023, paragraphs 72(g)–(h), 76–77 and 91)
These paragraphs locate the wife’s application within the well-known principles arising from Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”) and I have already referred to s 79 of the Act, and both parties’ concessions that the sums sought fit well within the parties’ ultimate entitlements.
I will not make the order sought by the wife with respect to the provision of $710,000. First, I have no idea how the $710,000 is calculated, other than, I assume $400,000 for legal fees for trial. Second, the wife’s Senior Counsel quite rightly and very appropriately accepted she could not point to a specific source of funds from which this sum could be sourced. Third, in circumstances where the wife does not trust a thing the husband says or does, and thinks that he is stripping the company of assets, I am loath to make the order sought by the wife because, if she is right, then she runs the very real risk that the husband may source these funds in a way that reduces the value of the company. The wife is essentially hoping to trust that the husband will make good on the order, but trust is not something which the wife reposes in the husband. Fourth, the wife has placed caveats on the properties and there is no proposed order from her to lift a caveat so a real property could be sold and she receives such funds. Fifth, I have no evidence of the tax implications (if any) if the husband took funds from the business, and paid them to the wife.
Primarily though, with no indication of how the $710,000 is calculated, and no source of funds readily available to meet the sum sought, I will dismiss this part of the wife’s application.
Selling the Company M shares
I turn to the husband’s position and the fall back of the wife being that the Company M shares be sold. The husband says the proceeds ought be divided equally but the wife says she take all of the funds. The parties agree the shares should realise about $400,000.
Ms McFawn, solicitor for the wife, deposes that preparing for and attending at the final 10 day trial will incur legal fees in the vicinity of $400,000. Ms McFawn confirms her firm will not carry the wife’s fees and will cease to act if the wife cannot meet their fees.
The wife’s Financial Statement indicated the wife had $140,000 in trust with her solicitors and owes them $40,000. However, that document was sworn on 5 June 2023 and is better updated by Ms McFawn’s more recent affidavit; especially at paragraph 15 items 2-6, which sees the wife with about $24,000 in trust after the hearing on Monday just gone.
The husband deposes in his financial statement that he owes legal fees of $23,298. That statement was filed on 21 July 2023. In his affidavit of the same date, the husband says “I also require funds to be released to me to fund my costs associated with these proceedings”. He says his solicitors have estimated it will cost him about $405,000 to prepare for and attend the final hearing. He too deposes that if his solicitors are not placed in funds they will cease to act.
As outlined by the Full Court in Strahan the following matters are relevant:
(a)The question of the parties’ relative financial strength;
(b)The capacity of the husband to meet his litigation costs;
(c)Whether the wife has an inability to meet her costs;
(d)Whether the wife has at arguable case to be heard; and
(e)The likely costs of the litigation the wife will incur.
It is probably fair to say all of those five attributes (given both parties are seeking funds) apply to each equally.
Their Honours also said the party seeking funds does not need to establish compelling circumstances, and it is not an essential precondition to the making of an order for litigation funding that the lawyers will not continue to act without costs being paid.
In this matter, the bottom line is both parties assert an excess of expenses over income. Both parties assert legal fees at trial will be in the vicinity of $400,000. The parties agree to sell the Company M shares, which both indicate should return about $400,000. There is nothing stopping the parties agreeing on a form of orders to sell the City UU property (or other items), other than their inability to agree.
Turning to the Strahan considerations, at first blush it would seem the husband is in a position of relative financial strength to the wife. I say that because of his superior income and the assets in his name. However, the assets in his name are matrimonial assets and it would be erroneous for me to include those as assets indicating the husband’s financial strength. Certainly he earns more per week than the wife, but like the wife, he says he has an excess of expenses over income. On this interim basis I cannot make disputed findings of fact which would then allow me to prefer or reject either party’s evidence of expenses over income.
Both parties say they are unable to fund the litigation to trial, although the wife’s evidence in this regard is more compelling than the husband’s bald assertions. Yet, he will undoubtedly have legal fees for the trial. Both parties plainly have arguable cases to be heard and the parties deposed to similar costs of the litigation going forward.
Accordingly, I will order the Company M shares be sold and the parties to equally share the proceeds. I have already referred to the inability to prefer or reject one party’s assertions over the other’s on an interim basis. I am also conscious that there is a trial very soon and these matters will be the subject of detailed cross-examination and ultimately, my ability to make findings. There is also sufficient complexity in this matter that warrants both parties being legally represented.
I will not make the further orders proposed by the husband that both parties be at liberty to further encumber specific properties. I do not see that further encumbrances, which would generate further interest payments, to be beneficial to either party. I accept the wife’s submission in that regard. I also do not understand how such increased repayments could be serviced when both parties deposed to having an excess of expenses over income.
ATO enforcement action
The wife seeks an order in these terms:
2. That forthwith, the Husband in his capacity as Director of [H Pty Ltd], will cause [H Pty Ltd] to send correspondence to the Australian Taxation Office (“ATO”) notifying in writing that the dividend purportedly declared on 28 June 2019 by [H Pty Ltd], was never paid to the Wife, and a copy of the said correspondence to be provided to the Wife’s solicitors within 24 hours of its release.
(Wife’s Outline of Case Document filed 4 August 2023, p.3)
Amongst other things, the wife deposed at paragraphs 56 and 59:
56.To expand on paragraph 55(c) above, on 28 June 2019, [Mr Jacobsen] decided to declare a fully franked dividend of $2,977,600, that is, $1,488,800 to each shareholder, without advising, consulting or notifying me. I did not receive any payment of the dividend. Instead, [Mr Jacobsen] applied the dividend to his own loan account renamed as a “joint" account.
…
59.[Mr Jacobsen's] actions were financially damaging to me for a number of reasons, including creating a personal tax liability for me of $398,000 which I am unable to pay. This tax debt has now incurred over $84,000 in interest.
(Wife’s affidavit filed 3 August 2023, paragraphs 56 and 59)
The husband says the declaration of the dividend was no different from how the parties conducted their financial affairs during the relationship – the company advanced the parties monies to buy properties, with dividends being declared in those sums at the end of each financial year (see for example husband’s affidavit filed 21 July 2023, paragraphs 20, 22 and 24–25). The husband says the declaration of the dividend reduced the parties’ loan account with H Pty Ltd, which in turn reduced overall debt and caused savings (Husband’s affidavit filed 21 July 2023, paragraph 27). The husband contends that the wife has had ample funds to meet her share of the tax liability (Husband’s affidavit filed 21 July 2023, paragraph 46). He also noted the wife has not objected to the ATO assessment.
The husband also highlights that the wife had previously informed the Court that she would apply the proceeds of the sale of Property A to pay the ATO debt, but did not. The husband says it is a consequence of the wife’s decision that the ATO debt is unpaid.
I will no doubt be invited to make findings about all of this at trial, but cannot do so now.
Turning to the actual order sought by the wife, I cannot make this order on an interim basis because it would require findings of fact on a hotly disputed issue.
There was discussion between the bench and bar table whether a form of words could be agreed for a joint communication to the ATO. The parties agreed (or seemed to agree) on the following:
No later than close of business Wednesday [but that is now two days ago] the husband and wife will jointly write to the ATO advising the ATO of the parties’ dispute about the payment of a dividend to the wife and that the proceedings are listed for trial in October 2023.
In those circumstances, the ATO is requested to hold off on any recovery actions until judgment is handed down.
The parties then disagreed about how they might indicate to the ATO that there would be funds available to meet the debt. The husband wanted words to the effect that the wife will receive an entitlement that will cover the tax debt. The wife wanted words that they both will receive entitlements to cover the tax debt. Brief submissions were made about both positions, and I said I will resolve the matter.
I resolve it this way: the parties are at liberty to send a letter to the ATO as agreed in the extract above (or with agreed amendments). They can send: (1) a letter that simple; or, (2) they can agree on an entitlements paragraph/s; or, (3) they can send the above two paragraphs (amended in any way they agree) and each concisely set out the contentions as to entitlements to the ATO. I will not make an order about this, the parties have my reasons.
Orders about H Pty Ltd
The wife seeks a raft of orders about H Pty Ltd. Before delving into the specific orders sought, it is useful to set out the parties’ contentions about the operation of this entity.
In her affidavit before me, the wife says she is “worried that the financial statements, based on those accounts, cannot be relied upon as a true and fair reflection of [H Pty Ltd 's] activities” (Wife’s affidavit filed 3 August 2023, paragraph 26). The wife is also “concerned that if the unreliability of the accounts is not resolved before Ms P is instructed to prepare an updated Valuation Report, the Court will not have reliable evidence before it at final hearing, upon which to make a finding as to the value of [Mr Jacobsen's] and my interest in [H Pty Ltd]” (Wife’s affidavit filed 3 August 2023, paragraph 27). The final hearing is eight weeks away.
I was taken to an email from Ms P’s firm that if she did not receive the financials by 9 August 2023 (that is Wednesday this week, the hearing was on Monday) she probably would not be able to have the report for trial. The wife has deposed to concerns about the financials for many years. Whilst orders were made in 2019 and 2020 for the provision of information to the wife, she seems to have left her run very late to now conduct her own audit or “deep dive” as her Senior Counsel said, going back to complaints in Financial Year 2015.
The wife goes on to depose to things she considers to be, for example, discrepancies between the figures in the financial statements that do not agree with the balances in the books of account. She complains that the husband unilaterally renamed his own personal shareholder loan account to a “joint” loan account. She says the husband allocated “over $550,000 of his own personal expenses to the “joint” loan account between separation and 30 June 2019 including almost $307,000 of luxury items” whatever that conclusion of luxury items means (Wife’s affidavit filed 3 August 2023, paragraph 37). The wife goes on to depose that the husband “declared a dividend to himself and to me in order to repay what he had renamed a “joint loan” without my consent” (Wife’s affidavit filed 3 August 2023, paragraph 38).
The wife also identifies some 2022 requests for source documents that, she says, have gone unanswered.
The wife also asserts that she has “serious concerns” about how the husband is running H Pty Ltd. She gives three particular examples in her affidavit at paragraph 55. However, the first example concerns the management of a property which is owned outside of the H Pty Ltd business. The other two specific examples concern things said to have happened in 2019 - four years ago.
I now turn to the specific orders sought by the wife.
Access to information pertaining to H Pty Ltd
The wife sought an order:
3. That within seven (7) days of these Orders, the Husband shall do all acts and things necessary to provide to the Wife, in respect of [H Pty Ltd], the following:
3.1 physical and electronic access, including but not limited to instructions, the username and password to view all business systems and devices including but not limited to email accounts, mobile telephones, computers, laptops, tablets or any other physical or electronic devices or electronic facilities whether on-site or off-site, that create or store information or are used in relation to the operations of [H Pty Ltd]that the Husband or his agents have access to;
3.2 the Husband shall be restrained from changing the access privileges and/ or passwords for the Wife’s access to the business systems and devices until further Order of the Court; and
3.3 the Wife shall be restrained from creating records or altering or deleting any records to which she is granted access.
(Wife’s Outline of Case Document filed 4 August 2023, p.3)
The wife submits that orders of this variety are the only way she can satisfy herself of the accuracy of the financial statements for the entity, which are to be put to Ms P. I have already set out some of the wife’s many suspicions, worries, concerns, and complaints about the husband and his running of the business.
The husband submits the wife already has viewing access to MYOB and the Westpac account/s. The husband opposes orders where he would “have to essentially handover not only my own personal laptop and phone, but my employees’ laptops and phone to [Ms Jacobsen] for her perusal at any time upon her request” (Husband’s affidavit filed 21 July 2023, paragraph 94).
The wife’s order is extraordinarily wide. It allows the wife to investigate whatever she wants, whenever she wants and on any device. For example, it would allow the wife to access emails, and I accept the submission of the husband, that would include emails between the husband and his lawyers. For further example, it would allow the wife to physically attend the business and immediately access a computer and interrogate the data in front of employees and customers. The mistrust between these parties is palpable. I can only imagine what conflict would eventuate from this order.
It was the wife’s position on Monday that H Pty Ltd’s financial statements and returns for Financial Years 2021, 2022, 2023 not be sent to Ms P until the wife was satisfied with them. I assume that satisfaction included engaging in the process described in this order. The wife has questions going back to Financial Year 2015, albeit it seems she raised no objections or questions to Ms O's December 2020 Report. It seems plain that if I delayed the provision of Financial Years 2021, 2022, 2023 financial reports and returns until the wife conducted this exercise before the wife giving the green light (or not) to the reports going to the Single Expert, then the trial would not be ready to commence in October 2023.
The wife eventually agreed to those financials being sent to Ms P, but on the proviso the cover letter note she does not necessarily agree with them. In those circumstances, there is still a dispute between the parties whether the wife can send any documents she wants to the expert which she, the wife, considers may impact on the business’ value. I will deal with that later.
All of that said, the wife’s real complaint in this area was her lack of access (she said) to source documents. For example, she deposed:
27.…The very reason I am bringing this application for access to business records is that if I do not have the opportunity to verify [H Pty Ltd 's] accounts from the source business records I will not be able to trust the financial statements produced by [Mr Jacobsen] from the accounts, and the updated valuation report will not be reliable evidence.
…
45.…I do not believe the matter can proceed to a final hearing without verifying the accounts and the financial information to be provided to the single expert against source business records underpinning that information, including the source documents from which the MYOB transactions were recorded, to ensure a reliable valuation of [H Pty Ltd].
(Emphasis added)
(Wife’s affidavit filed 3 August 2023, paragraphs 27 and 45)
The need for source documents was repeated in oral submissions and in reply.
The wife has read-only access to the business MYOB file, but I was told by the husband’s Senior Counsel that MYOB does not include the source documents. The wife says the same in her affidavit at paragraph 42(h). The wife can also access the business bank account/s and see the transactions, but I am not satisfied she would be able to understand what the transactions are for; for example, Senior Counsel for the wife took me to an entry (albeit in a ledger) that simply said “airtasker” or “[Ms Jacobsen L Bank]” – it would be impossible for the wife to discern from such bank statement entries, if similarly described, whether these were legitimate business expenses. Obviously, bank statements do not include the source documents for the entries, and as said, this was the wife’s real focus of submissions.
The wife also complains that in the Financial Years 2015, 2017, 2018 and 2020, about $500,000 of personal expenses were recorded as business expenses which resulted in approximately $495,000 of Fringe Benefits Tax. She adds “I do not understand how so many personal expenses could have been recorded as business expenses over a 4-year period” (Wife’s affidavit filed 3 August 2023, paragraphs 44(a)-(b)). It is understandable how this has fuelled the wife’s suspicions about the husband’s running of the business, but it was something the husband took up with Ms P and the ATO in November 2020. This issue was addressed by Ms P in her report some three and a half years ago.
The wife also gives lots of examples where she says the husband failed in his duty of disclosure; the husband disputes some of this. I am sure I will hear about this at trial – it is then I will be able to make findings about same. For example, if the wife persuades me that the husband has failed in many of the ways she raises in the affidavit, then she will no doubt make submissions of the Black & Kellner (1992) FLC 92-287 and Weir & Weir (1993) FLC 92-338 variety.
It seems the wife now wants to conduct a revision of the business accounts going back to, 2015 or 2016 - these are areas about which she made complaints in her affidavit. These proceedings have been on foot since 2018. There has been ample opportunity for the wife to make timely applications and to also issue questions to Ms P with respect to her first report. I am told, without dispute, that that did not occur. I do not know if the wife has issued subpoenas for documents that she seeks, or served Notices to Produce. I do not know if the wife has taken advantage of provisions under the Corporations Act2001 (Cth) to inspect documents, using her status as a shareholder. But it is getting too late in this litigation that began in 2018 for the wife to do the kind of audit or deep dive she now wants to do on the eve of trial.
More so, Ms P’s updated report is still to come and the wife will have the opportunity to ask questions per r 7.26 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The wife also has the opportunity to have the husband, his accountants, and Ms P cross-examined in the usual way.
The wife also takes issue with the husband not giving her access to the company’s online Ads account. I assume the terms of the wife’s order would cover this. The wife deposed that the reports provided by the husband “did not enable me to verify whether the charges on [Mr Jacobsen's] credit card relate to [H Pty Ltd] advertising activity on the [online] Ads account” (Wife’s affidavit filed 3 August 2023, paragraph 64(g)).
The wife also complains that she noticed a significant increase in advertising expenses paid to online ads (Wife’s affidavit filed 3 August 2023, paragraphs 63-64). In his written submissions the husband’s Senior Counsel said, “just how advertising expenses of a trading business paid to an unrelated supplier can evidence malfeasance by the husband in the conduct of the business to the wife’s detriment is unexplained. It defies logic”. There is much force in that submission.
It concerns me that if I ordered the husband to hand over his password to this online Ads account, then the level of mistrust between the parties is such that allegations and counter‑allegations will ensue about who did what to the account. The order I discuss below though is for the husband to provide all source documents for all company transactions from now on.
The wife also retains the benefit of the orders of Rees and Loughnan JJ.
I will not make the order sought by the wife above. It will be a recipe for disaster and even greater conflict between the parties if the wife is allowed to physically attend and conduct the investigations she wishes. I will however address source documents under the next order sought by the wife.
Review of new transactions and journal entries by the Wife
4. By close of business on the first business day of each week, the Husband, in his capacity as director of [H Pty Ltd]shall cause an email to be sent to the Wife with a list of transactions and journal entries ready for the Wife’s review and the Wife will provide the Husband will a list of the transactions she has reviewed within five (5) days of receipt of the Husband’s email.
(Wife’s Outline of Case Document filed 4 August 2023, p.3)
The wife submitted this order was about transparency, and, the wife not being reliant upon the husband for information.
It is common ground that the wife can see every transaction through her read only access to MYOB and to bank accounts. However, that misses the point that many of the wife’s complaints come back to her not being provided with source documents, which would bear out the MYOB entries and bank statement transactions, or not.
That said, I do not know what is the end point of this order – when the wife indicates that she has reviewed the list of transactions, what happens next?
I accept that the order of Rees J allows the wife to request source documents, but I will make an order to add another level of “transparency” (to adopt the theme used by the wife’s Senior Counsel) to the wife’s ability to review source documents by requiring the husband to send the source documents with the weekly list of transactions and Journal Entries (it will really be the list of transactions that will have accompanying source documents, not the Journal Entries). That moves the source documents issue from a request and answer approach, to a proactive one. This close to trial, I do not consider this proactive approach to be too onerous on the husband. It is certainly less onerous than the wife turning up at the H Pty Ltd premises and invigilating whatever she wants, whenever she wants. It is also less onerous to these parties (and other court users) if the trial cannot proceed.
Justice Rees’ order remains in force. If it turns out the husband has not responded to the wife’s requests for source documents, then the husband will be cross-examined at trial, and submissions by the wife will be appropriately made.
I will not make the end part of the order that the wife advises the husband that she has reviewed the documents. I do not see the point.
Actions required to restore H Pty Ltd
5. The Husband shall provide to the Wife [H Pty Ltd’s] detailed quarterly financial budgets:
5.1 under which the business is currently operating, within 7 days of these Orders; and
5.2 for subsequent quarters, at least 14 days before the start of the quarter.
(Wife’s Outline of Case Document filed 4 August 2023, p.3)
The wife submitted she ought have these documents again as part of the broad theme of transparency.
The husband submitted there was no basis for such an order and the wife could print whatever reports she wanted from MYOB.
With the trial looming so close there may be only one quarterly report, September 2023, that could be created. The wife is able to run whatever report she likes.
With the trial being so close I do not see any utility in this order. It will not be made.
The next order sought by the wife is:
6. That within twenty-eight (28) days of these orders, the Husband shall cause to be repaid to [H Pty Ltd], all monies he has taken for his benefit from [H Pty Ltd]since separation which were not authorised by the Wife at the time or subsequently approved by the Wife and which he allocated to his shareholder loan account, which account he subsequently renamed as a joint shareholder loan account.
(Wife’s Outline of Case Document filed 4 August 2023, p.3)
I cannot possibly make this order on an interim basis (if at all in its current form). To do so, I would be required to make findings of facts on disputed issues, which I cannot do on an interim basis. Unless either or both parties prevaricate, the trial ought not be far away. The parties will be cross-examined. I will be able to make findings. That is the proper forum to consider whether or not the husband has done what underlies this order sought by the wife.
The next orders of the wife are:
7. Within seven (7) days of these Orders, the Husband shall do all acts and things to cause his salary package to be limited to what it was at 30 June 2016 as evidenced by the Husband’s 2016 personal income tax return (plus CPI, ABS Australia all categories, annually applied to the following year) unless otherwise agreed in writing with the Wife.
8. That within seven (7) days of these Orders, the Husband shall do all acts and things necessary to establish a separate credit card in the name of [H Pty Ltd]for business expenses relating to [H Pty Ltd]and thereafter shall only incur business related expenses on the credit card in the name of [H Pty Ltd].
(Emphasis added)
(Wife’s Outline of Case Document filed 4 August 2023, p.4)
I am not satisfied I have the jurisdiction or power to require the husband to mandate what H Pty Ltd (a separate legal entity) pays the husband by way of salary package, or, to require the husband to mandate H Pty Ltd to obtain a credit facility in its name. Further the order I will make requiring the husband to send weekly source documents for the list of transactions should allow the wife to conduct whatever audit she wants to, to test the veracity of figures, at least from now to trial.
I am conscious that first, the trial is not too far away, so it is hard to see the utility of the proposed order. Second, the husband’s salary and use of a credit card is something that can be explored with the husband in cross-examination and with the Single Expert. Third, the parties have engaged a remuneration expert and Ms P will be able to take account of that.
For those reasons, I will not make these orders.
The next proposed order is:
9. Pursuant to section 114 of the Act and until further Order, the Husband, in his capacity as director of [H Pty Ltd]and/or by his agents shall be restrained from:
9.1 modifying or deleting accounts in [H Pty Ltd’s] MYOB books of account;
9.2 modifying or deleting transactions and journal entries in [H Pty Ltd’s] MYOB books of account after they have been reviewed by the Wife;
(Wife’s Outline of Case Document filed 4 August 2023, p.4)
The wife deposes she has observed “hundreds of changes to account balances by way of unsupported and unexplained adjustments which have purely changed to the balances of the accounts” and “changes to balances of accounts that are made without any reference to transactions which were wrongly recorded and without reference to the underlying source business records to justify those changes” (Wife’s affidavit filed 3 August 2023, paragraph 39).
The wife complains about numerous General Journal Entries ranging from Financial Year 30 June 2016 to 30 June 2021. In early 2022 the wife sought disclosure of source documents to substantiate Journal 33. Follow-up requests were made in that year. It is the wife’s case that no answer has been forthcoming other than the provision of a ledger. In November 2022, the wife also requested source documents for further General Journal Entries being Journals 27, 29, 31 and 32 covering Financial Years 2016 to 2019. A further request was made on 7 December 2022 for particulars of Journal Entry 34, dated 30 June 2021.
Whist the wife is at pains to say she has no source documents to check these General Journal Entries, she has not satisfied me that there is any evidence of source documents to support the General Journal Entries. Ms OO’s at paragraphs 13 to 14 of her 3 August 2023 affidavit deposed that General Journal Entries are usually creations of an accountant’s professional judgment “to ensure end of year accounts are fair and accurate”.
I do not know why the wife has waited so long to query General Journal Entries going back to 2016. I have no evidence before me that the wife asked any questions of Ms P pertaining to this or any other topic when Ms P released her 2020 report. I am not satisfied that the order proposed by the wife is proportionate to the complaints she makes.
Further, the order is draconian and, if the husband is correct, could jeopardise the business’ very operation.
The husband’s accountants have filed affidavits. If they are witnesses in the husband’s case at trial, questions can be asked of them about those General Journal Entries. In turn what they say can be put to Ms P in cross-examination. That said, if the accountants are not witnesses in the husband’s case then I have no doubt the wife’s counsel will ask me to draw inferences from their absence.
The next order sought by the wife is:
10. Pursuant to section 114 of the Act and until further Order, the Husband, in his capacity as director of [H Pty Ltd]and/or by persons acting for or on behalf of [H Pty Ltd]or the husband be restrained by injunction from:-
10.1 making any decision on behalf of [H Pty Ltd], transacting any business, proffering any undertakings and/ or making any representations on behalf of [H Pty Ltd] or in any other way committing to a course of action or obligation outside the ordinary course of business without first obtaining the Wife's written consent or an Order of the Court;
10.2 making any accounting, and/ or taxation related decision, and/ or instructing [H Pty Ltd 's] accountants regarding taxation and/ or accounting issues, without first obtaining the Wife's written consent or an Order of the Court;
10.3 hiring additional employees and/ or making any capital purchase, without first obtaining the Wife's written consent.
(Wife’s Outline of Case Document filed 4 August 2023, p.4)
The wife submitted this was all part of the transparency that she sought arising from her concerns and suspicions.
The husband submitted injunctions are not made on concerns and suspicions. To be complete, this submission was made by the husband’s Senior Counsel for most of the s 114 injunctions sought by the wife. It was also submitted, correctly in my view, that some of these orders seek to bind people who are not parties to these proceedings. I cannot do that. The husband’s Senior Counsel also submitted this order was extraordinarily oppressive and had no cogent evidential basis.
I am not satisfied I have jurisdiction to make an order, the net effect of which, is for the wife to dictate, for example, how the entity (a separate legal entity) would hire employees or not. I am also troubled by the breadth of this order that if the wife’s written consent was not forthcoming then the business could be stymied. That is in nobody’s interests. At risk of labouring the point, the trial is soon and Ms P will be available for cross-examination, in addition to the devices available in r 7.25 and r 7.26.
The next order is:
11. The Husband, in his capacity as director of [H Pty Ltd] and/or persons acting for or on behalf of [H Pty Ltd] or the husband be restrained from:-
11.1 submitting any taxation and/ or accounting documentation relating to [H Pty Ltd] without first obtaining the Wife’s approval in writing;
11.2 issuing any financial statements without first obtaining the Wife’s approval in writing;
11.3 creating accounts in [H Pty Ltd’s] MYOB books of account without first obtaining the Wife’s approval in writing;
11.4 creating journal entries in [H Pty Ltd’s] books of account without first obtaining the Wife’s approval in writing, with such requests for approval only to be sought on presentation to the Wife of the debit and credit entries of the GJE and all valid and complete information and documentation substantiating the alterations to the account balances; and
11.5 making payments to credit cards or credit accounts without first obtaining the Wife’s approval in writing, with such requests for approval only to be sought on presentation to the Wife of the credit card charges to be paid together with valid and complete source documentation substantiating each charge.
(Wife’s Outline of Case Document filed 4 August 2023, p.4)
This order has the same flavour as a previous order in giving the wife the power to veto the business’ conduct and its due administration. In short, the wife would control how the business operated. She could control its tax affairs. This proposed order has the very real potential of bringing the parties into even greater conflict.
It is hard to see what difference the order would make between now and trial in a few weeks time.
Husband’s orders
I have already considered the husband’s orders about the Company M shares and encumbering properties. I will now consider the balance of the orders sought by the husband:
7. In the event any party to these proceedings refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Registrar of this Court shall be appointed pursuant to section 106A of the Act to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
(Husband’s Outline of Case Document filed 4 August 2023, p.5)
I am not aware of any deed, document or instrument that may need to be signed between now and trial. If an actual issues arises I have no doubt the relevant party will make the appropriate application.
8. That within 48 hours from the date of these Orders, the parties provide to [Ms P] 2021, 2022 and 2023 financial statements and income tax returns for [H Pty Ltd] and [Ms Jacobsen’s Company].
(Husband’s Outline of Case Document filed 4 August 2023, p.5)
During the hearing, the parties came to terms on providing the statements to Ms P, where the wife will add a note to the letter to Ms P to the effect that “the wife does not necessarily agree with the accuracy of the financial statements and it is anticipated she will want to put further documents [to Ms P] if they become available and upon their receipt”.
What is left for me to decide is whether the wife is able to provide further documents to the expert as the wife sees fit. This was the wife’s proposal:
And the wife be granted liberty to provide the expert with additional documents as, when and if they become available to her that impacts or may impact the valuation of [H Pty Ltd].
This is opposed by the husband who points to the Rules relating to Single Experts.
I consider giving the wife an unfettered ability to send documents to the expert will likely lead to further dispute and delay; for example, disputes about what the documents mean, and who will pay for such a process (the wife does not propose she cover these costs in her orders before me); for example, delay in Ms P completing her report if the wife sends documents the wife contends will impact upon the valuation. Given the conflict in this matter, should the wife send such documents, then in all reality the husband will reply that they will not. Ms P is likely then to find herself in the middle of a factual dispute. Ms P is of course entitled to ask for documents and no doubt will if she considers she needs any.
It is also the case that if the wife has unfettered access to send documents to the Single Expert, Ms P’s status as Single Expert becomes questionable.
Rather than give the wife unfettered access to send documents to the expert, I will relax some of the Rules pertaining to questioning the expert prior to trial. I do so to try and ensure this trial will proceed on its allocated dates.
With respect to r 7.25, I will not require compliance with the timeframe in r 7.25(1) that would otherwise have required the parties to agree on conferring with the expert within 21 days. If the parties can agree, I will not limit them to that 21 days. I will also not require compliance with the timeframes in r 7.26 which refer to a 7 day and 21 day time limit for the asking of questions in r 7.26(1).
I observe that r 7.28 covers the costs of the conference if convened, and the costs of asking questions.
If questions are still being asked so close to the trial that the trial cannot occur, then I have no doubt the other party will seek their costs thrown away.
The parties ought not forget that each will be able to cross-examine Ms P at trial and put whatever documents they want to her, subject to evidential objection.
Costs
If the parties or either of them wish to bring a costs application from this hearing, that is matter for them. Or, I would be content to receive written submissions on costs within seven days of the date of this order from the party seeking costs, and then written submissions in reply in a further seven days.
Conversely, if the parties are agreed costs ought be reserved, then I would make such an order by consent in chambers if one was sent to me. I will leave it to the parties how they wish to proceed with costs, if at all.
Agreements
If the parties can agree on orders for the sale of the City UU property - or indeed, any other real or personal property - then, the parties’ solicitors are at liberty to provide the proposed consent order to chambers via my associates’ email, copying the other parties. I will not make an order about that. The parties’ lawyers have heard what I had to say.
I certify that the preceding one hundred and thirty-three (133) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 14 August 2023
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