Jeeves v Jeeves - [2011] FamCAFC 94

FAMILY COURT OF AUSTRALIA

JEEVES & JEEVES

[2011] FamCAFC 94

FAMILY LAW - APPEAL – Appeal against orders of the trial Judge dismissing applications by the wife to discharge orders for settlement of property made by consent pursuant to s 79A and to set aside a binding financial agreement entered into by the parties pursuant to s 90K – Not established that the trial Judge applied erroneous legal principles with respect to s 79A.

FAMILY LAW - APPEAL – Disclosure – Where the wife’s applications before the trial Judge asserted material non-disclosures with respect to the business – Whether the trial Judge had erroneously found that the husband had not failed to disclose relevant evidence in relation to the likelihood of the activities of the business continuing beyond 2011 – In circumstances where the source documentation determinative of the parties’ rights in relation to the continuation of the business activities beyond 2011 was available to both parties’ valuers, not established that the husband failed to disclose relevant material or misled the wife in relation to that issue – Whether the husband’s asserted failure to disclose the improved trading results for the business vitiated the wife’s consent – In circumstances where the evidence before the trial Judge did not conclusively establish whether or not the husband had disclosed the improved trading results, established that the trial Judge erred in finding that the husband had made such disclosure – Not established that the non-disclosure was, or could reasonably have been, material to the wife’s consent – Appeal dismissed.

FAMILY LAW - APPEAL – Application for leave to appeal against interlocutory orders made by the trial Judge rejecting the tender of a bank file produced on subpoena – In circumstances where the trial Judge was entitled, on his findings of fact in relation to the documentation, to exercise his discretion to reject the documentation, and where it was not demonstrated that receiving these documents into evidence would have rendered erroneous the trial Judge’s conclusion in the substantive proceedings – Leave to appeal refused.

Abalos v Australian Postal Commission (1990) 171 CLR 167
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Barker & Barker [2007] FamCA 13
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705
Rutherford and Rutherford (1991) FLC 92-255
SS Hontestroom v SS Sagaporack [1927] AC 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588

Family Law Act 1975 (Cth) ss 79A, 90K
Evidence Act 1995 (Cth) ss 133, 135

APPELLANT:

Mrs Jeeves

RESPONDENT:

Mr Jeeves

FILE NUMBER:

MLF

10167

2000

APPEAL NUMBER(S):	SA	47	of	2010 &
SA	25	of	2010

DATE DELIVERED:

28 April 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Melbourne

JUDGMENT OF:

Coleman, Ainslie-Wallace & Murphy JJ

HEARING DATE:

1 March 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE(S):	18 June 2010 &
8 April 2010

LOWER COURT MNC(S):	[2010] FamCA 488 &
[2010] FamCA 258

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Maggee QC,
Counsel A &
Mr Combes

SOLICITOR FOR THE APPELLANT:

JA Middlemis

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Taussig Cherrie & Associates

Orders

That the Notice of Appeal filed by the wife on 16 July 2010 against the Orders of Justice Cronin made on 18 June 2010 be dismissed.
That the wife’s application for leave to appeal against the interlocutory Orders of Justice Cronin made on the 8 April 2010 be refused.
That the wife pay the husband’s costs of the application for leave to appeal (SA 25 of 2010) and of the appeal (SA 47 of 2010) as agreed or assessed on a party and party basis.

IT IS NOTED that publication of this judgment under the pseudonym Jeeves & Jeeves is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 47 of 2010 & SA 25 of 2010
File Number: MLF 10167 of 2000

Mrs Jeeves

Appellant

And

Mr Jeeves

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 16 April 2010 Mrs Jeeves (“the wife”) appealed against interlocutory Orders made by Cronin J on 8 April 2010 in financial proceedings between herself and Mr Jeeves (“the husband”) (“the Business Records Appeal”). By his Orders, the trial Judge rejected the tender of documents produced to the Court by the Commonwealth Bank in response to a subpoena directed to it.
The trial Judge’s Order being interlocutory, leave to appeal was required, but not sought. Whilst resisting the wife’s “appeal”, the husband raised no issue as to the absence of an application for leave to appeal. We approach the “appeal” on the basis that if it is found to have merit, to the extent that a grant of leave to appeal is necessary, we will do so. If it is not, leave will not be granted. Such approach is consistent with the principles discussed by the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 and adopted by this Court (see Rutherford and Rutherford (1991) FLC 92-255).
By Notice of Appeal filed 16 July 2010 the wife appealed against Cronin J’s Orders of 18 June 2010 dismissing applications by the wife pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”) to discharge orders for settlement of property made by consent on 11 December 2003, and to set aside a binding financial agreement entered into by the parties on that date, pursuant to s 90K of the Act (“the appeal against the final orders”).
Although, in her Notice of Appeal, the wife sought orders from this Court re-exercising the discretion of the trial Judge to set aside the 2003 Orders and financial agreement, if the wife’s appeal is successful, this Court could only reinstate the wife’s applications under s 79A and s 90K of the Act, and remit them for rehearing before a judge other than Cronin J.
The husband resisted the wife’s appeal and sought to maintain the trial Judge’s Orders.

Background

A number of matters which are not controversial for present purposes provide the context for the proceedings before us.
At the date of the trial Judge’s final Judgment, the wife was aged 62 years and the husband 68 years.
The parties married in 1969. Their cohabitation commenced in about 1966.
The marriage produced three children, all of whom were aged over 18 years at the date of the trial Judge’s judgment.
The parties separated in 2000.
In 1986 the husband commenced a quarry business through a corporation, G Pty Ltd, on land (the “C land”) owned by a Mr CE or corporate entities controlled by him and/or members of his family (the CE interests). The husband continued to operate that business after the parties separated. G Pty Ltd’s quarrying activities were pursuant to an agreement between G Pty Ltd and the CE interests (the “compensation agreement”). The ability to quarry the CE land resulted from an authorisation issued by a Victorian government instrumentality (the “work authority”).
In 2003 the parties were engaged in proceedings with respect to property settlement in this Court. The parties were both represented throughout the 2003 property settlement proceedings.
Each party obtained valuations of G Pty Ltd’s business for the purpose of the proceedings. The wife’s valuer, Mr L, valued G Pty Ltd at $3.49 million on the basis that G Pty Ltd’s use of the CE land would end in May 2011, or $6.3 million if the ability to quarry the CE land extended beyond that date. The husband’s valuer, Mr I, valued G Pty Ltd at $1.02 million if the ability to quarry the CE land ended in May 2011, or $1.726 million if that ability extended beyond that date.
On 11 December 2003 Carter J made Orders for settlement of property by consent finalising all financial matters between the parties. On the same day, the parties executed a financial agreement pursuant to the provisions of the Act. The formalities required by the Act at that time in relation to the agreement were complied with.
On 28 December 2006 the wife filed an application to set aside the 11 December 2003 Orders and to discharge the financial agreement of that date. In order to obtain further financial relief from the husband, the wife needed to successfully prosecute both those applications.
The essential basis of the wife’s applications before the trial Judge was that her consent to the Orders for settlement of property and her execution of the financial agreement were in reliance upon inadequate or inaccurate financial disclosures by, or on behalf of, the husband. The wife’s contention was that, had she known on 11 December 2003 what she subsequently learned of the husband’s financial position at that time, she would not have entered into the consent orders, or executed the financial agreement.
The husband disputed that he had failed to adequately and accurately disclose his financial position as at the date of the consent orders and the financial agreement.
The wife’s applications before the trial Judge asserted material non-disclosures with respect to a number of assets. The trial Judge did not accept that the husband had failed to make adequate or accurate disclosures in any of the respects asserted by the wife.
For present purposes, it is necessary and instructive to refer only to the claims made by the wife, and rejected by the trial Judge, which gives rise to the challenge in this Court. Although the emphasis in the wife’s case appears to have changed somewhat during the course of the 17 days of the trial before Cronin J, and to have again changed to some extent during the appeal to this Court, the wife’s case was essentially in reliance upon asserted inadequate or inaccurate disclosures with respect to G Pty Ltd. The wife alleged that, whereas the husband represented that G Pty Ltd would be unlikely to continue to quarry the CE land after 2011, he knew, and it was the fact, that it was likely that G Pty Ltd would be able to continue its activities on the land well beyond 2011. The value of G Pty Ltd was accordingly potentially far greater than the values both parties had relied upon.
It was also the wife’s contention that regard to G Pty Ltd’s trading results for the first quarter of the 2003-2004 financial years, had they been known to her, would have resulted in her valuer determining the value of G Pty Ltd to be materially greater than the valuer had determined, irrespective of when G Pty Ltd might cease to quarry the CE land. We have not been referred by Senior Counsel for the wife to any figure which was, or is asserted, to have been the value of G Pty Ltd in light of its 2003/2004 trading results. It can safely be inferred that the figure asserted would have been in excess of $6.3 million if G Pty Ltd could continue to quarry the CE land after 2011.
For reasons which he articulated in very considerable detail, the trial Judge concluded that:
(a)prior to the making of the consent orders, and on the execution of the consent orders on 11 December 2003, there was no miscarriage of justice;
(b)the husband had made a full and frank disclosure of relevant financial matters to the Court and to the wife;
(c)the husband had not suppressed evidence of such matters;
(d)the wife’s agreement with the consent orders and execution of the financial agreement on 11 December 2003 were not based on misleading or inadequate information;
(e)“there was no intervening factor known to the husband, but not to the wife, that may be said to have created or led to a result which was unfair and unjust”;
(f)“nothing in the circumstances which occurred after the orders could be said to have impugned the process by which the orders were made”;
(g)the wife’s consent to the orders “was an informed consent”; and
(h)the Court had on 11 December 2003 “placed reliance on the wife’s consent and the submissions presented to it by both legal representatives”.
As Senior Counsel for the wife frankly informed the Court at the commencement of the hearing of her appeal against the final order, the “nub” of the appeal was that the trial Judge had erroneously found that quarrying of the CE land by G Pty Ltd was likely to terminate in 2011, and had erroneously found that the husband had not failed to make full and frank disclosures of his finances in December 2003. As a result of those errors, it was submitted that the trial Judge erroneously found there to have been no miscarriage of justice, and thus erroneously dismissed the wife’s applications.
The second challenge identified by Senior Counsel for the wife was that the trial Judge had applied erroneous legal principles with respect to s 79A. Senior Counsel for the wife submitted:
… the judge applied the wrong law entirely to 79A. Errors of law which mean that the judgment cannot stand. It infected the whole of his decision, and he applied completely the wrong test.
The wife’s Notice of Appeal contained some 25 Grounds. The Outline of Submissions on behalf of the wife agitated each of those Grounds. Save to suggest that the two broad challenges to which we have referred fell within the scope of various of them, before us, leading Senior Counsel for the wife did not engage with those 25 grounds in oral submissions. Nor did Senior Counsel for the wife abandon any of those grounds. To the extent necessary, we shall deal with those challenges.
If the wife were successful with her appeal against the trial Judge’s Orders of 16 June 2010, nothing would turn upon the fate of her appeal against the interlocutory Orders of 8 April 2010. If however, the wife’s appeal against the final Orders is unsuccessful, it will be necessary to consider the appeal against the interlocutory Orders.

The Appeal Against the Final Orders

As noted earlier, the two major limbs of the challenge to the trial Judge’s Orders dismissing the wife’s applications articulated by her Senior Counsel in this Court related to the valuation of G Pty Ltd’s business at the time the Orders were made and the financial agreement was executed. That challenge involved two aspects, one relating to the husband’s intentions with respect to the business, the other relating to its profitability as at December 2003.
The challenges articulated before us by Senior Counsel for the wife are not immediately, or clearly, referrable to any Ground, or Grounds, in the wife’s Notice of Appeal filed 16 July 2010. We commend Senior Counsel who appeared for the wife before us for focussing on what he correctly identified as the “nub” of the wife’s challenges. It was, sensibly in our view, not suggested by Counsel for the husband that he was taken by surprise by the challenges agitated before us on behalf of the wife. Grounds 8, 9, 10, 11, 12, 14, 15, 16, 17, 18 and 22 of the wife’s Notice of Appeal, without ever clearly stating what emerged at the hearing as the “nub” of the wife’s challenges, raise aspects of the essential challenges agitated by Senior Counsel who represented her before us.
The crux of the wife’s complaint with respect to the valuation of G Pty Ltd was that, because the husband did not reveal his true intentions with respect to the continuation of G Pty Ltd’s business beyond 2011, both parties’ valuers seriously undervalued the business, as they both did so on the basis that G Pty Ltd would cease to quarry the CE land in 2011. This was asserted to have been exacerbated by the fact that the business was asserted to have been, to the husband’s knowledge, more profitable subsequent to 30 June 2003 than the financial accounts as at 30 June 2003 suggested. The husband was asserted to have not disclosed that increase in profitability.

The ability of G Pty Ltd to quarry the CE land

By reference to “objective and undisputed facts”, which were asserted to be known by the husband, but which he failed to disclose, Senior Counsel asserted that the wife was materially misled into entry into consent orders and signing a financial agreement in 2003.
One of the “objective and undisputed facts” asserted by Senior Counsel for the wife was that the husband had at all times been “aware that the life of the business was longer and that the valuers and the Court proceeded on a wrong premise that the life of the business was 7.5 years”.
That contention was sought to be advanced by reference to the following evidence of the husband in cross examination:
·He thought he had an operation there till 2021 if he wanted it anyway… he can probably stay there as long as he likes [Appeal Book Vol 13 p 2543 L 31-34];
·The business could go on for 400 years [Appeal Book Vol 13 p2544 L 31];
·It is a possibility that the business could be retained by the family for 400 years [Appeal Book Vol 13 p 2544 L 35 -2545 L4];
·Upon his death, the business would be an asset of his estate [Appeal Book Vol 13 p 2547 L 27-39];
·Agreed with the proposition that [Mr L] was right when he put forward a valuation based on the existence of a possibility that the business would go beyond 2011 and could not explain why then he retained a valuer ([Mr I]) who said that was not a possibility [Appeal Book Vol 13 p 2537 L 24-39].
It was submitted that the wife’s valuer, Mr L, had relied upon the husband’s representation that the “life” of G Pty Ltd’s asset was 7.5 years. That submission was sought to be supported by the following:
·Appeal Book Vol. p2106 L14 [Mr L]’s evidence was that he adopted as the fact that there was no possibility of the husband operating the business beyond May 2011];
·Appeal Book Vol 11 p 2110 L 11, “I took the view that it wasn’t going to go beyond 2011”.
·Appeal Book Vol 11 p 2110 L 25 “… after the representations were made to me, that I proceeded on the basis that it wasn’t going to go beyond 2011;
·Appeal Book Vol. P 2114 L7 “In 2003, I took the view that he wasn’t going to go beyond 2011 because that’s what he told me. So I was entitled to accept that representation”; and
·Appeal Book Vol 3 p 523 in his affidavit 18 June 2009, [Mr L] swore “The husband represented to me that at the expiration of the lease in May 2011, the he would not have a business to sell because he had no lease and all he would be left with to sell would be his plant and equipment”.
The husband’s valuer, Mr I, was also asserted to have relied upon the husband’s representation that G Pty Ltd would cease to quarry the CE land in 2011. That contention was sought to be supported by the following extracts of Mr I’s report as set out in Senior Counsel for the wife’s Outline:
·    [Appeal Book Vol 2 p 237] The costs to complete the reclamation work required by the Department of Natural Resources and Environment on expiry of the agreement will be very substantial. Based on our physical inspection of the property and the sheer scale of the reclamation works required, we estimate reclamation costs to be well in excess of $1 million. We note in the valuation report completed by [Mr L] that the reclamation cost was estimated to be $1.5 million, and we accept this figure as a reasonable minimum cost for the purposes of this report.
·    [Appeal Book Vol.2 p 250 – 252] In determining the free cashflow forecast set out below we have made the following assumptions:
·    …
·    We have assumed the Agreement between the owners and [Mr Jeeves] this [sic] is due to expire on 30 May 2011 is not renewed.
·    On the basis of information available we consider that the existing agreement expires on 30 May 2011 and, that no other agreement exists to enter into or renew the existing agreement. There exists no compulsion or obligation on the part of the owners to agree to issue a new agreement to [G Pty Ltd]. It is possible that the owners may decide to take over the operations themselves, or tender the property to third parties on expiry of the agreement.
·    …
·    After considering the age of the plant and equipment by 2011 and, anticipated deterioration over time due to wear and tear, we consider $800,000 including mobile equipment to be a fair estimate of residual salvageable value on expiry of the agreement in 2011. This estimate is based on the assumption that the existing level of repairs and maintenance of the plant and equipment is maintained throughout the period until 2011.
·    The forecasts for the 2011 year have been prepared on the assumptions that the business would trade for six months of the year with the remaining 5 months up until the agreement expires being available to complete rehabilitation activities. It has been assumed that all rehabilitation expenditure would occur in 2011.
·    …
·    And, [Appeal Book Vol 2 p 253 In assessing the equity value of [G Pty Ltd] we have not determined a terminal value for the business due to the significant uncertainty that exists over the renewal or extension of the existing agreement the [sic] expires on 31 May 2011].

Counsel for the husband referred the Court to paragraphs 77, 422 and 427 of the trial Judge’s Reasons for Judgment. It is unnecessary for us to refer to those paragraphs in addressing this challenge.
As was suggested during the course of debate, in circumstances where, as will be seen, the trial Judge’s credit finding has not been successfully challenged, and, whilst the conclusions reached by his Honour have been contested, as will also be seen, no finding of fact made by his Honour has been successfully challenged, the success or otherwise of the complaint with respect to the valuation of G Pty Ltd’s business is to be determined by reference to what the husband is asserted to have known and failed to disclose. No part of this challenge involves any reliance upon evidence of the wife which was not accepted by the trial Judge.
Counsel for the husband submitted that the “basis on which the quarry business was conducted” was disclosed during the course of the earlier proceedings during 2002 and 2003. The original agreement with the CE interests (the “compensation agreement”) and the “original extractive industry licence” (the “work authority”) were asserted to have been discovered. Ultimately, Senior Counsel for the wife acknowledged that these documents had been “available” to the wife’s expert Mr L in 2003.
On behalf of the husband it was submitted that, in circumstances where the two documents relevant to determining the “life”, or the likely “life”, of G Pty Ltd’s business were at all times available to Mr L, it was by reference to those documents that Mr L, as an expert, should have had regard when forming his opinion. To the extent that Mr L, or Mr I for that matter, had relied on representations of the husband as to the likely “life” of G Pty Ltd’s business, such reliance was asserted to have been misconceived. Such misconception was asserted to arise from the inability of the husband to force the CE interests to extend G Pty Ltd’s entitlement to quarry the CE lands beyond the expiration of that legal entitlement in 2011.
Counsel for the husband submitted that a memorandum from Senior Counsel who represented the wife on 11 December 2003, dated 17 December 2003, confirmed that the true position in relation to the “life” of G Pty Ltd’s business was both known to the wife’s legal representatives as at 11 December 2003, and communicated to the wife at that time. Relevantly for present purposes, Senior Counsel’s memorandum of 17 December 2003 recorded:
6.In those circumstances we explained to the wife that given the terms of the new lease (if any) were unknown, it was impossible to calculate the value if any of an extended lease. It had previously been determined by our instructing solicitors that no extra value could be placed upon the husband receiving the benefit of the extended land that had been marked out as being required by the husband, because in the absence of details of the terms and cost of such a lease no value could apparently be fixed to it.
7.We therefore informed the wife that in all the circumstances not only would [Mr CE]’s evidence not assist the wife but that it could be detrimental to her cause by permitting the husband to continue to argue that even the lease to 2011 could not be guaranteed.
8.In all the circumstances the Court was informed that an agreement had been reached between Counsel for both parties wherein the husband would conceded [sic] that the present lease could and would extend to 2011, but the wife would not submit that any value could be affixed to the lease beyond that time.
That advice was in our view accurate having regard to the material before this Court. Senior Counsel then representing the wife clearly identified the reality that it was ultimately up to the CE interests to grant, or not grant, G Pty Ltd an extension of the compensation agreement beyond 2011. As is not in doubt, the references to “the lease” in Senior Counsel’s memorandum related to the “compensation agreement”.
It was thus ultimately submitted on his behalf that, whatever the husband had intended, the question of the extension of G Pty Ltd’s ability to quarry the CE land beyond May 2011 was not something which he could control. The husband thus, it was asserted, could not have misled, and did not mislead, anyone in any way that could have advanced the wife’s case. As is not in doubt, the wife had the benefit of Mr L’s valuation of G Pty Ltd’s business in the sum of $6.3 million in the event of the CE lands being able to be quarried for a further decade beyond 2011.
In our view, where the source documentation which determined the probable “life” of G Pty Ltd’s business was “available” to both experts, as it undoubtedly was, prior to the consent orders on 11 December 2003 and the execution of the financial agreement of that date, expert opinions with respect to that topic should have been informed by reference to those documents, if necessary with the benefit of legal advice as to their meaning and effect (see Makita (Australia) Pty Ltd v Sprowles [2001] 52 NSWLR 705). Those documents were determinative of the parties’ rights in relation to an extension of the compensation agreement beyond May 2011. As is not in doubt, whatever the husband intended, he could only carry out that intention in the event of reaching an agreement with the CE interests which entitled G Pty Ltd to quarry the CE land beyond May 2011. His intentions were accordingly not capable of being decisive of the longevity of G Pty Ltd’s activities on the CE land.
The trial Judge considered this issue in some length. Under the heading “Did the husband misrepresent to the wife that the business had a limited life? What were his working intentions for the future?” the trial Judge said:
285.The husband’s evidence was that he had an agreement with the landowners about royalties and that it ended in 2011. He said he did not know what would happen if the agreement was not renewed. According to the husband, there was no additional agreement.
Nothing to which we have been referred establishes that his Honour there misstated or misconceived the evidence before him. Nor has any finding of fact there recorded been shown to have been without an evidentiary foundation.
The trial Judge then engaged with the assertion of Senior Counsel then appearing for the wife that, prior to the December 2003 Orders, in order to reduce his wealth for the purposes of negotiating a property settlement with her, the husband had “walked away” from negotiations which had been “ongoing” up to that time in an endeavour to secure an extension of G Pty Ltd’s ability to access the CE land beyond 2011. The wife’s case was that, once the proceedings between herself and the husband had concluded, the husband would secure the extension of G Pty Ltd’s compensation agreement beyond 2011.
His Honour then said:
287.A variety of matters in a June 2000 draft agreement were examined which clearly set out the husband’s position. His position included the option to extend his right of access to the land until 2021. The difficulty with all of that was that I have the husband’s evidence, not challenged by any evidence from the landowners, that he was attempting to extend the life of the agreement. For whatever reason, it did not happen because the landowners refused to sign. The landowners did not agree to the period that the husband wanted.
The trial Judge further said:
288.The only inference that could be drawn from the questions put to the husband was that it was being suggested that the husband was endeavouring to mislead the court and the wife in 2003 by saying that he could not conclude an agreement with the landowners and as such, it diminished the value of the business. Senior counsel for the wife specifically put to the husband that he concealed the fact that he had stopped negotiating with the landowners. She went further and asked the husband whether he told the landowners that he didn’t want to conclude negotiations until he had finished negotiations with the wife. There was no evidence to put that question and no evidence subsequently put to rebut the husband’s denial. Senior counsel for the wife was clearly fishing for a response.
289.The husband was emphatic that he did not walk away from negotiations with the landowners. Moreover, he said the landowners’ solicitors “sat on” the landowners’ position by which I understood that it was something of a stand-off. That was evident from the fact that the husband said that the first he knew of the landowners’ proposed agreement was when it was produced at the court in 2002. I accept the husband’s version of what occurred there.
Nothing to which we have been referred establishes that the trial Judge misunderstood or misconceived the evidence before him to which he referred in the foregoing passages. Nor has it been established that any finding of fact there recorded was not reasonably open on the evidence.
Importantly for present purposes, the trial Judge then recorded:
290.In an affidavit filed 20 December 2002, for the purposes of the final hearing, the wife referred (at paragraphs 35 and 36) to the fact that there were two proposed “new leases” and upon the new “lease” coming into operation, the business would be operating a land size which was three to four times the size of the area in which the quarry had then been working. The wife then said that because of the likely work extension:
The current valuation reports were of limited use as they did not deal with the asset that appears to in all probability exist particularly, as the only fair and proper interpretation that could be given (to the husband’s affidavit) is that it is the clear and unequivocal intention of the husband to continue to run the business beyond 2011 and, the only suggested impediment (as suggested by the husband in his affidavit) to his expressed intention was the landowners not agreeing to an extended lease.
His Honour then referred to the husband’s affidavit evidence (para 291). In our view, that evidence differed to some extent from the evidence the husband gave at trial, which we have earlier set out. Given, however, that the husband clearly had no capacity to force the CE interests to agree to a compensation agreement beyond 2011, we do not regard such inconsistency as capable of advancing the current challenge.
Ultimately, the trial Judge concluded in relation to this issue:
293.Having regard to all of the evidence I have heard, I could not conclude that the husband dealt with the landowners in some tactical way such as to stall any completion of rights he might have had in relation to the land to the detriment of the wife. …
Nothing to which we have been referred establishes that so finding was not reasonably open to his Honour.
This topic was further explored under the heading “The husband’s intention as at December 2003”. Nothing emerging from anything there recorded assists the present challenge.
We are not persuaded that anything represented, or misrepresented by the husband, with respect to the continuation of G Pty Ltd’s business on the CE land beyond 2011, can assist the present challenge.
As is not in doubt, only by reaching an agreement with the CE interests, presumably on terms commercially acceptable to both parties, could G Pty Ltd procure an entitlement to quarry the CE land beyond 2011. The wife’s case was clearly that the husband intended to seek to do that. The husband’s evidence in cross examination is supportive of his having that intention.
The trial Judge was clearly alive to, and dealt with, the assertion on behalf of the wife that the husband was “running dead” in relation to an extension of G Pty Ltd’s entitlement to quarry the CE lands beyond 2011. We have referred to his Honour’s findings in that regard. Those findings have not been successfully challenged.
The trial Judge’s conclusion in relation to this issue was not solely reliant upon the evidence of the husband. The evidence of a legal practitioner, Mr Y was also extensively referred to by the trial Judge (pars 120-129). His Honour recorded Mr Y as having been “clear that there was no consensus between the husband and the [CE interests] about an extension of their compensation agreement” (para 126) and that:
127.[Mr Y]’s view was that the [CE interests] tried to obtain more control and they wanted more than just a compensation agreement; they wanted more money and also security. He said that once the sons of [Mr CE] became involved, it became “impossible” to deal with them. He pointed to the fact that the husband had an option and because he could not reach agreement with the [CE interests], he exercised the option in 2000.
His Honour further recorded:
129.The evidence of [Mr Y] was uncontroversial. I accept his evidence as supportive of the husband’s submission that prior to the 2003 orders, no position with the [CE interests] had been finalised. On the evidence otherwise, I could not conclude anything about the application for an extension of the use of the [CE land].
No finding of fact made by the trial Judge with respect to Mr Y’s evidence has been challenged before us. That is perhaps unsurprising as Mr Y was a witness in the wife’s case. His Honour was entitled to rely upon that evidence, and to do so in the way in which he did.
Although not directly in point, the evidence of Ms O, a “tenements officer” of the Department of Primary Industry, whose evidence referred more directly to the “work authority”, provided further support for the trial Judge’s conclusion. At para 167-69 his Honour recorded:
167.In relation to any inference that the husband may have manipulated the extension until after December 2003, [Ms O] agreed that there had been a “fair bit of activity” between 1996 and 2004 in the application. She pointed out that her witness statement was not intended to create an impression of inaction between 2000 and 2004. She said Mr [ME] had been active. She said that the process was lengthy albeit that the proponent drove the process. She said this application had not fallen into a “black hole”.
168.The matters to which I have just referred do not assist the wife’s argument about the husband deliberately delaying things because despite her confidence and optimism, [Ms O] was unable to explain much because as she said, she was in charge of the file but not what went into it.
169.[Ms O] was therefore unable to tell me whether anyone had been lacking in diligence. This evidence did nothing to advance the wife’s case under s 79A.
The Mr ME to whom Ms O referred was acting on behalf of the husband.
His Honour also had regard to the evidence of Mr CE. Mr CE owned, or controlled, the land upon which G Pty Ltd conducted its quarrying activities. His Honour recorded in that regard:
232.The wife relied upon the affidavit of [Mr CE] sworn 19 November, 2002. It was notable that Mr [CE] was not called to give any evidence outside of that document. Mr [CE]’s evidence was not challenged. It did not need to be.
233.[Mr CE] confirmed there was an agreement with the husband, the purpose of which was to enable the husband to have access to deposits of gravel. He said the agreement expired on May 2011. He said that up until approximately early 2001, he and the husband negotiated the terms of a new “lease”. He said that the husband drew up a lease which was almost a carbon copy of the 1991 agreement and that he then took the document to his solicitor who in turn drew one as well. He then said :
After my solicitor had drawn up the new lease [Mr Jeeves] abandoned negotiations with me.
I am prepared to resume negotiations with [Mr Jeeves] in relation to the new lease.
I also say that I am prepared to negotiate with [Mr Jeeves] in relation to an extension of the current lease dated 17 July, 1991.
234.Senior Counsel for the wife spent considerable time cross-examining the husband about the fact that he had “abandoned” negotiations.
235.Having regard to the evidence of [Mr Y] and that of the husband, nothing turns on the evidence of [Mr CE]. It is quite clear that the parties were not ad idem.
236.Importantly, I have the evidence that the husband said he was presented with a third version of documents at the court and that the solicitors had “sat on” the agreement. [Mr CE]’s evidence did not assist the wife.
Whilst, as Senior Counsel for the wife submitted, the “life” of the “work authority” was “unlimited”, without the ability to access the CE lands, G Pty Ltd could not derive income pursuant to it. The trial Judge’s Reasons leave no room for doubting that he was well aware of those realities. Even if, as is possible, Mr CE’s evidence permitted other findings or conclusions, that does not demonstrate that the trial Judge’s findings or conclusions with respect to it were not reasonably open to him. In the absence of evidence from Mr CE that G Pty Ltd would be granted an extension of the compensation agreement beyond 2011, or that he and the husband had reached an agreement that it would be granted such extension, Mr CE’s evidence could not have assisted the wife’s case.
Nothing to which we have been referred suggests that, in the circumstances as we have outlined them, anything said, or not said, by the husband as to his intentions and relied upon by her could have vitiated the wife’s consent on 11 December 2003. The position was clearly that, in the absence of G Pty Ltd and the CE interests reaching an agreement to extend the compensation agreement beyond 2011, G Pty Ltd could not continue to quarry the CE lands after that time.
To the extent that the wife sought to meet that situation by establishing that the husband had avoided concluding such an agreement with the CE interests prior to December 2003, the trial Judge addressed that issue and made findings adverse to that contention. Nothing to which we have been referred establishes that any such finding of fact was erroneous.
There was no evidence before the trial Judge that, in the period of three years between the making of the consent orders and the filing of the wife’s s 79A application on 28 December 2006, G Pty Ltd and the CE interests had concluded any agreement in relation to the period subsequent to 2011. The absence of any agreement between G Pty Ltd and the CE interests with respect to the period subsequent to 2011 prior to the end of 2003 is unsurprising for a number of obvious commercial reasons. Not until well after 2003, and as 2011 approached would either party have been in a position to negotiate from an informed position with respect to a mutually agreeable compensation agreement. In the absence of any reasons for not doing so, and we have not been referred to any, the obvious commercial impediments to the husband and Mr CE successfully negotiating, in 2003, a mutually agreeable compensation agreement to commence operation 8 years later provides further support in logic for the trial Judge’s conclusion.
Moreover, as Senior Counsel then appearing for the wife’s memorandum establishes beyond doubt, all of these matters were made known to the wife prior to the making of the consent orders and the execution of the financial agreement. She could not have been misled by anything the husband said as to his intentions. Nor could her valuer. We thus find this challenge fails.

The disclosure of G Pty Ltd’s first quarter 2003/2004 trading results

It is then necessary to consider whether the husband’s asserted failure to disclose the improved trading results for G Pty Ltd subsequent to the accounts for the year ended 30 June 2003 vitiated the wife’s consent.
There are two dimensions to this topic. The first is whether the husband in fact failed to disclose trading results for G Pty Ltd subsequent to 30 June 2003. The second is the materiality or otherwise of post 30 June 2003 results, whether or not they were disclosed.

It was submitted on behalf of the wife that, having regard to G Pty Ltd’s trading results for the period 1 July 2003 to 30 September 2003, the earnings to which both valuers should have had regard when undertaking a discounted cash flow valuation of it were significantly greater than the figures to which both valuers undoubtedly had regard, and that reference to what were submitted to have been the more up-to-date trading results for G Pty Ltd would have resulted in a higher valuation of G Pty Ltd’s business. Both valuers valued G Pty Ltd by reference to its likely future earnings. Neither had regard in 2003 to any trading results after 30 June 2003.
Early in his Reasons for Judgment, the trial Judge identified this issue in the following terms:
49.Finally, the wife asserted that contrary to the husband’s duty to make a full and frank disclosure of all relevant financial material which she said extended to include expected future earnings, the husband withheld or suppressed relevant material as a result of which she did not know the true value of the business.
For reasons which he detailed (pars 279 to 282), the trial Judge ultimately found as follows:
283.Senior counsel for the wife put to the husband that he had been aware of the increased profit but had said nothing about it. The husband denied that. I accept the husband’s evidence that the profit was reflected in the quarterly figures and in 2003, on the evidence before me, all of the experts had those figures.
284.No other evidence was presented by the wife to show that the “tweaking” was possible before December 2003 or that the husband had slept on this possibility. Again, I accept the husband’s evidence.
The trial Judge again referred to the issue of whether or not the husband had disclosed, or caused to be disclosed, the first quarter 2003/2004 trading results for G Pty Ltd to the wife or those representing her, in the following terms:
451.In respect of the issue of the financial statements of the husband, his counsel submitted that the husband asserted his belief that the figures for the first quarter of 2003-2004 were supplied to the experts. Senior counsel for the wife protested that the husband’s assertion or belief was hearsay. Whilst that may be so, it arose out of a question put by Senior Counsel for the wife seeking an explanation from the husband. The submission does not assist the wife.
452.Importantly however, as counsel for the husband submitted, no evidence was led from [Mr L] about whether he had access to the statements before the orders were made and at a time when he was preparing his final report. I am not satisfied that a simple statement that he prepared his report on figures assists.
453.In discussing the issue of the husband giving false evidence upon which the valuers relied, counsel for the husband pointed to the evidence of the wife where she said that she knew of no request by [Mr L] for more documents or that he was not provided with what he wanted. It was submitted that this was an indication of full and frank disclosure by the husband. I refer to my findings that there was nothing in the evidence to suggest that requests were made by experts or for that matter, legal practitioners. The suppression of evidence in this case has been canvassed in detail in the evidence and in particular in the way in which the husband was cross-examined by the wife’s counsel. That related to the increased production, increased profits and so forth. Those findings are set out earlier.
His Honour’s later findings that “there was full and frank disclosure of financial matters by the husband to the Court and to the wife” and that “there was no intervening factor known to the husband, but not to the wife, that may be said to have created or led to a result which was unfair and unjust” suggest that his Honour accepted that the husband had disclosed the first quarter 2003/2004 trading results for G Pty Ltd prior to the making of the consent orders and the execution of the financial agreement.
It was submitted on behalf of the wife that the “revenue streams on which the Court made its orders were based on draft financial statements to 30 June 2003”. By reference to their evidence it was submitted that neither valuer had regard to any financial results for G Pty Ltd beyond that date. We have not been referred to any evidence contrary to that proposition. It is not controversial, and the trial Judge found, that the records up to 30 June 2003 were not shown to have been other than accurate.
It was submitted on behalf of the wife that:
37.In fact at the date of the orders, December 2003, [Mr Jeeves] would have known that the 2003 figures were out of date and towards the end of the second quarter of the 2004 year the figures had shown substantial increases in profits which would have increased the revenue streams for that year and into the future. Plainly, the disclosure of those figures would have greatly increased the value of the asset.
It was further submitted:
39.It was [Mr Jeeves]’ obligation to bring the most up to date material before the Court so the Court could be best informed as to when making its decision as to whether or not to approve the agreement.
40.It was [Mr L]’s evidence that “My valuation would have been higher if at the time of preparation the husband had disclosed his expectation of a sustained increase in profit of $800,000+” [Appeal Book Vol 3 p 520 para 29].
Not insignificantly, we have not been referred to any evidence given by Mr L before the trial Judge as to the extent to which his valuation “would have been higher”, notwithstanding that, at the time he gave that evidence, Mr L undoubtedly had the evidence which Senior Counsel for the wife submitted that the husband had failed to disclose prior to 11 December 2003. That is perhaps more relevant to the second aspect of this challenge.
In cross-examination, it was put to the husband that “you knew when it came to 11 December 2003 that by the end of the first half of the ’04 financial year your net operating profit was going to be as high as the whole of the ’03 financial year”, to which the husband replied, “No”.
The following exchange ensued:
And you simply said nothing to anyone about this increase in the net operating profit, did you?---The only figures available was the quarter ending '03 September which was made available to everybody. There was no other figures available so therefore we couldn't make them available. So they also made available all financial prior to '03 year and they also made available the figures from June '03 til September '03 quarter. The quarter - the December quarter wasn't available because it wasn't til the
end of December, so that wasn't available. But they were made available, the '03 September figures.
And when do you say the September '03 figures were made available?---They were made available to the value as to my understanding.
When?---I've no idea of that, but they - it was my understanding that that's what the figures was available and they were made available to them.
Yes, you see I suggest you're just making that up now today?---Well, that's your prerogative, but that - - -
Well, you see, you would have had days of you not recalling what was said by you to [Mr ME], what was said by you to [Mrs Jeeves], what the case was about. You didn't know anything. But suddenly you've got this recollection that the figures for the first quarter of the '04 year were made available?---Well, that was reported to me about three or four months ago, that's how I - - -
Right, and when was - - -?---That's I know of it.
- - that reported to you three or four months ago?---When?
Yes?---About three or four months ago, yes.
Right, and by whom?---My solicitors and my team.
They told you these had been provided?---We had the understanding that they were provided.
What does that mean, you had the understanding that you provided it?---I had the understanding and my team had the understanding that the valuation was made available on the '03 September quarter figures, that they were made available to the valuers. That is my understanding of what was given to them.
Right, and - - -?---Mind you, I didn't give them to them; it would have been my office people and my accountants which gave them that. So it probably could be verified by the accountants of what valuations were given to the valuers.
But certainly - - -?---And that'd be the way to check on that.
As at 11 December 2003, you had no such understanding?---No, I didn't.
No. And as far as you were concerned, as at 11 December 2003, to your knowledge the only figures provided to both [Mr I] and [Mr L] and to [Mrs Jeeves] were draft financials for the year '03. That's correct?---And the first quarter of '04.
Well. you had - you didn't know that at that time. You've just told us the first time you had that understanding was - - -?---I didn't supply anything - - -
- - - three of four months ago?--- - - -to either of the - - -
No, no, no. Listen, [Mr Jeeves]. Just listen. It's not a question of what you supplied. You are and have been for days deliberately answering questions that have not been asked. So listen to the question. You had no understanding on 11 December 2003 that [Mrs Jeeves] and your expert and her expert had the financials for the first quarter of the '04 year, did you?---Both values - - -
Yes or no?---Both values were given - - -
Did you or did you not?--- - - -all the documentation that was available at the time. That was my understanding.
We have not been referred to any evidence establishing either that the husband’s solicitors, or anyone else on his behalf, provided the trading results of G Pty Ltd for the first quarter of the 2003/2004 financial year to the wife’s advisors, or to the wife directly. Nor have we been referred to any evidence establishing that, prior to 11 December 2003, Mr I or Mr L had been appraised of those results. Nothing to which we have been referred establishes that, as at 11 December 2003, the husband had knowledge of any trading results for G Pty Ltd subsequent to the end of September 2003.
The state of the evidence before the trial Judge can be summarised as being that, prior to 11 December 2003, the husband knew that G Pty Ltd’s trading results for the first quarter of the 2003/2004 financial year were better than they had been for the year ended 30 June 2003. There is no evidence that those results were ever communicated to the wife or anyone acting on her behalf. The husband’s belief that the information had been made available to the valuers prior to 11 December 2003 was not formed until some years after the event, as the extract of the husband’s cross examination set out above confirms.
Counsel for the husband submitted that the wife’s ability to instruct Mr L with respect to other aspects of G Pty Ltd’s business could only have been referable to the wife’s “self help” acquisition of documentation to that effect. It could thus be inferred that she would also have acquired knowledge of the first quarter 2003/2004 trading results by that process. The circumstances relied upon by Counsel for the husband do not, in our view, provide a defence to this challenge. It is improbable that, if the wife had obtained documentation, which could only have “come from the respondent or from documents stolen” by her, and have thereby gained knowledge of the first quarter 2003/2004 trading results for G Pty Ltd, this would not have been communicated to Mr L, and used in his valuation.
As our review of the evidence before the trial Judge confirms, the evidence in relation to this topic was less than entirely clear, and was, significantly, given years after the event, at a time when those giving the evidence would have been in no doubt as to its potential significance. The evidence before the trial Judge did not conclusively establish whether or not Mr I or Mr L knew, or ought to have known, of the first quarter 2003/2004 trading results for G Pty Ltd. Nor did it conclusively establish whether or not the husband had disclosed it.
In our view, the issue of disclosure is ultimately resolved by reference to the onus of proof. His Honour was entitled to accept the husband’s evidence which we have earlier recorded, but so doing did not, in the absence of other evidence, establish on the balance of probabilities that the information had been provided as the husband believed that it had. In the circumstances, if, as clearly it was, the husband’s case was that the information had been provided to the valuers, and particularly to Mr L, he bore the onus of establishing on the balance of probabilities that it had. It is not difficult to identify by whom the information may have been communicated to the wife or those advising her. None of those possible providers of the information gave evidence before the trial Judge of having done so. By the time of the trial, the husband had had years in which to obtain this evidence.
In the circumstances we have detailed, we conclude that the trial Judge erred in finding that the husband had disclosed the first quarter 2003/2004 trading results for G Pty Ltd to the wife or those advising her. The critical issue however is whether the non-disclosure was, or could reasonably have been, material to the wife’s consent to orders for settlement of property and a financial agreement in December 2003.

The impact of G Pty Ltd’s first quarter 2003/2004 trading results

The trial Judge considered the impact of the first quarter 2003/2004 trading results for G Pty Ltd under the heading, “The Husband Increases Profitability”. His Honour recorded the submission of the wife that in 2003/2004 the husband knew that the profitability and productivity of the business was increasing yet did not tell the valuer. His Honour recorded, correctly, that the valuers for both parties had valued G Pty Ltd’s business “on the discounted cash flow basis”. He rejected the wife’s assertion that the valuations of both Mr L and Mr I were compromised by reliance upon the financial records of G Pty Ltd for the financial year ended 30 June 2003. That rejection has not been challenged in this appeal.
His Honour continued:
107.In hindsight, the profit and loss statements show that profitability increased but just exactly when in the financial cycle is a matter of conjecture.
108.The husband’s evidence was that profit increased after he altered some production activities and there was a change in the market. Accepting that statement to be correct, it must have occurred after the orders because that was when he made production alterations.
109.Senior counsel for the wife tendered the various financial statements of the entities in that relevant period. In between 2003 and 2004, sales rose by 17 per cent. In the first half of the financial year, the sales figure appears to be $3.44 million. In the second half, it appears to be $3.24 million. Thus, I could not conclude that prior to the December orders, any specific increasing pattern was evident.
110.Discounted cash flow valuations are based on the future net cash flow discounted back to a present value. How that would have been evidently different in the first half of the 2003/2004 financial year from earlier years is not apparent.
It is not suggested that the trial Judge misstated the evidence before him in any of these passages. No error of fact has been demonstrated. Nor is it suggested that his Honour erred in any conclusion he drew from the findings he made with respect to the evidence before him, or that his understanding of the basis of discounted cash flow valuations was erroneous.
As is not in doubt, both experts valued G Pty Ltd’s business on a discounted cash flow basis by reference to the trading results over a period of years. Mr I determined the financial maintainable earnings of G Pty Ltd by reference to the trading results over a five year period (from 1 July 1998 to 30 June 2003). For reasons which he gave, Mr I relied upon an adjusted profit of $866,000 which he derived from the adjusted trading results of G Pty Ltd for the financial years ended 2002 and 2003. For the purpose of his discounted cash flow valuation, Mr I worked on adjusted earnings before interest and income tax (or EBIT) of $796,810.
Mr L concluded an adjusted EBIT of $1,320,199 to be the appropriate basis of his discounted cash flow model. Having regard to the revenue and profit growth rates for the years ended 30 June 1999 to 30 June 2002, Mr L worked on a discounted cash flow for the year ended 30 June 2004 of $873,329. His projections forward to and including 2010 were predicated on a growth rate of 18 per cent.
Mr L proceeded with the “adjusted earnings before interest and tax for the year 30 June 2003” as “the basis for the discounted cash flow model”. “That produced a figure of EBIT $1,320,199 and adjusted earnings after tax of $924,139”.
Mr I was not cross-examined before the trial Judge. His report was tendered by Senior Counsel then appearing for the wife. Mr L was extensively cross-examined before the trial Judge, but we have not been referred to any particular passage in Mr L’s cross-examination relating to this topic.
In cross-examination, Mr L was asked a series of questions about the husband’s “increased earnings in 2004”. In the course of cross-examination Mr L suggested:
The increase in the revenue in 2004 certainly comes from an increase in output of material extracted from the property. …
… It’s always been stated to me that the plant and equipment on [G Pty Ltd] was operating at maximum capacity of about 300,000 tonne a year. In order to generate the additional revenue, it seemed to me that it had to increase its capacity and I’ve made the statement that is consistent with additional plant and equipment operating on the additional land.
… In previous years that was around 300,000 tonne and in 2004 it went up to over 400,000. I’ve made the assumption that if the price is fixed of a royalty of a dollar per tonne, then it’s reasonable to conclude that the output increased rather than the price increasing by 16 or 17 per cent.
The trial Judge referred extensively to Mr L’s evidence. His Honour recorded, accurately there is no doubt:
194.Mr [L] said that his valuation would have been higher if at the time of preparation of his report, the husband had disclosed his expectation of a sustained increase in profit of $800,000.
195.Mr [L] then said that by the husband’s silence in not indicating that half way through the 2004 financial year, the financial accounts would show an increase in profit of $800,000, he had been misled because he had proceeded on the erroneous basis that the 2004 financial year and years thereafter would be the same as 2003. I reject that opinion.
196.It is clear on the evidence that time had passed and the expert was entitled to call for further documents. I fail to see how the husband’s position caused the problem. If the increased profit was apparent in the 2004 figures, it must mean that the husband was recording details properly. On that basis, the records could have provided Mr [L] with the information that he needed if he had asked.
197.I also have the husband’s evidence to indicate that anything that he was asked to produce, he did. It is puzzling therefore that a report was prepared in December 2003 without reference to the possibility that something might have happened in the previous five or so months. I have earlier commented on the extent of the increased profit which was apparent from the exhibits tendered by the wife.
Later, his Honour said of Mr L:
221.… He did say that he had looked at the increase in revenue in 2004 and the fact that that came from the output increase in the business. He said he had concluded that to increase capacity, the husband needed additional plant and equipment as well as additional land.
222.When the various issues about how the husband had increased his output which he subsequently gave evidence about were put to Mr [L], he conceded that he had not considered those things possible. The best he could say was that the husband was a very skilled operator. He said that it was always possible that the husband had an idea to go back and increase the output. He thought however that if the husband was so skilled, he would have shown that to him earlier as for example in 2003. He said that the husband had represented to him that he was operating at full capacity and as a consequence, Mr [L] did not think that a 15 to 16 per cent increase was possible. He conceded that if the husband was able to “tweak” the plant and equipment, he had to accept that that was possible.
223.Mr [L] was asked to accept to postulate that if all of the things that the husband had done were correct, would he concede that he “got things wrong?” His response was that if that was accepted, he would have to “look at matters again”. That did not happen.

Nothing to which we have been referred in the cross-examination of Mr L establishes that the trial Judge inaccurately recorded the evidence Mr L gave about those matters in the passages of his judgment set out above. Nor have we been referred to any evidence of Mr L, or any other witness, establishing the trial Judge’s findings were not reasonably open to him.
Beyond asserting, as Senior Counsel for the wife repeatedly did, that, had Mr L known G Pty Ltd’s trading results for the September 2003 quarter, he would have valued G Pty Ltd’s business at higher figures than he did in his valuation, to what extent he would have done so has not been suggested. Nor was it before the trial Judge. In the absence of any quantification of the asserted increase in the value of G Pty Ltd in reliance upon them, the trial Judge could not have found that any possible, or probable, undervaluation of G Pty Ltd was material to the wife’s consent in December 2003. That is particularly so when it is recalled that the wife’s valuer was of the opinion that G Pty Ltd could then have been worth $6.3 million.
Nothing to which we have been referred establishes that the trial Judge erred in concluding as he did with respect to the likely impact of the first quarter 2003/2004 financial returns on G Pty Ltd’s value. Other conclusions may have been open to his Honour on the evidence which was before him, but that is not the test, as the authorities make clear.

The challenges to the trial Judge’s application of the law

Having rejected the challenges to the trial Judge’s decision in reliance upon the disclosure and impact of the first quarter 2003/2004 trading results for G Pty Ltd, it is necessary to consider the contention of Senior Counsel for the wife that the trial Judge
… applied the wrong law entirely to 79A. Errors of law which mean that the judgment cannot stand. It infected the whole of his decision, and he applied completely the wrong test.
By reference to Barker & Barker [2007] FamCA 13, his Honour identified a number of bases upon which the wife’s applications may have been successful.
Importantly for the purposes of this challenge, the trial Judge recorded that: “all parties are under a duty to disclose to each other before consent orders are made about things that would alter their financial circumstances and what those prospective benefits would be. (Suiker (1993) FLC ¶92-436)”.
His Honour there accepted, in almost precisely the same terms as Senior Counsel for the wife asserted, that, if established, the husband’s failure to disclose financial or other matters relevant to the wife’s consent to the orders of 11 December 2003 and her execution of the financial agreement of that date would have been vitiated.
The trial Judge further said:
· the consent to an order must be informed consent. It is part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be a miscarriage of justice either by reason of the “suppression of evidence” or by reason of “any other circumstance”.(Suiker supra)
Importantly, in the context of this appeal, his Honour thus recognised by his reference to a consent based on “inadequate information”, that a non-disclosure, however innocent, could vitiate the consent of a party to orders made in reliance on the disclosure by the other party.
His Honour further recorded:
· The obligation to make a full and frank disclosure is regarded as so crucial to the functioning of this jurisdiction that the deliberate failure by one party to meet that obligation may result in the Court drawing adverse inferences against the non-disclosing party where there is material upon which such inferences can be based; (Morrison v Morrison (1995) FLC ¶92-573);
· If a party is in breach of the duty of candour, whether by actively presenting a false case or passively failing to reveal relevant facts and circumstances, then the court has the power to set aside the order and do justice, whether or not the order was made by consent; (Thorpe LJ in Burns v Burns [2004] EWCA Civ 1258);
Although Senior Counsel for the wife would not accept it, the trial Judge’s reiteration of these bases for possible intervention pursuant to Section 79A and/or Section 90K leave no room for doubt that, having rejected the wife’s claims by reference to alleged deceit or wilful suppression of evidence, or misrepresentation, he clearly considered whether, irrespective of any intention of his, the husband’s failure to disclose vitiated the wife’s consent to the Orders of 11 December 2003 and her execution of the financial agreement of that date.
We cannot accept that the trial Judge misdirected himself in relation to the legal principles governing the determination of the wife’s applications. With respect to his Honour, notwithstanding the way in which the wife’s case was formulated by Senior Counsel then representing her, the trial Judge was at pains to explore any possible basis for intervention pursuant to section 79A and/or section 90K. In our view, there was no possible basis for intervention pursuant to those sections that was not identified and considered by the trial Judge.
Having recorded the matters which we have set out above, his Honour proceeded to apply those principles to the findings of fact earlier recorded by him. His Honour found that, prior to 11 December 2003 there had been a full and frank disclosure of financial matters by the husband to the wife and to the Court.
Unsurprisingly, having accepted that the husband had made a full and frank disclosure of financial matters, the trial Judge found that there had been no suppression of evidence by the husband and concluded, again not surprisingly in the circumstances, that “it could not be said that the wife’s consent was based on misleading or inadequate information”.
We have earlier acknowledged that, although the evidence before the trial Judge in that regard was less than entirely clear, we are satisfied that the finding that the husband had disclosed the first quarter 2003/2004 trading results for G Pty Ltd to be made available to the wife’s advisors was not reasonably open to him. In no other respect than the first quarter 2003/2004 trading results for G Pty Ltd has it been successfully asserted to this Court that there could have been any absence of full and frank disclosure of financial matters by the husband to the Court and to the wife. For reasons which we have provided earlier, we have rejected the contention on behalf of the wife that the husband’s non-disclosure of the first quarter 2003/2004 trading results for G Pty Ltd constituted a material non-disclosure.
Importantly, notwithstanding his finding that the husband had disclosed the first quarter 2003/2004 trading results for G Pty Ltd to the Court and to the wife’s advisors, the trial Judge proceeded to consider the impact of those results. We have earlier set out the passages of his Honour’s judgment in relation to that issue, and our reasons for rejecting the wife’s challenge to his conclusion with respect to the impact of those results.
In the circumstances, the conclusion of the trial Judge that “there was no intervening factor known to the husband, but not to the wife, that may be said to have created or led to a result which was unfair and unjust” survives appellate challenge.
Sensibly, in our view, it has not been seriously suggested by Senior Counsel for the wife before us that any challenge to the trial Judge’s conclusion with respect to the wife’s s 90K application could succeed if no challenge to his Honour’s dismissal of her s 79A application proves successful. Having not failed to consider any possible basis for success pursuant to s 79A or s 90K in his Reasons for Judgment, we cannot accept the contention of Senior Counsel for the wife that the trial Judge erred in his application of legal principles to the proceedings before him.
For the reasons we have indicated, we do not accept that either of the broad challenges agitated before us by Senior Counsel for the wife has merit.
As they were not formally abandoned, it remains to consider the other Grounds of Appeal raised on behalf of the wife.

Grounds 1 to 5

Grounds 1 to 5 provide:
1.The Learned Trial Judge erred in the exercise of his discretion when he found the evidence of the respondent and his witness [Mr ME] to be truthful but found the respondent and his witness had repeatedly made false representations to relevant State and regional government departments for thirteen years, during the course of the respondent's application to extend [the Work Authority].
2.The Learned Trial Judge erred by finding that it was open to the Court to support an application made to relevant State and regional government departments for a collateral purpose (i.e. the respondent's application to extend [the Work Authority]).
3.The Learned Trial Judge erred in finding that it did not matter if the respondent (by his application to extend [the Work Authority]) misled the relevant Minister of the Crown as well as the responsible statutory bodies.
4.The Learned Trial Judge erred in finding that the Court can assist the respondent in an unlawful act (i.e. it being unlawful for the respondent to make an application to extend his [the Work Authority] and to obtain an extension to [the Work Authority] by making detailed and specific submissions and representations to the State and local government departments of his intention (should his application succeed) to extract between 200,000 and 400,000 tonnes of gravel and sand per annum when his true intention is not to extract any gravel and sand from the extended area governed by [the Work Authority].
5.The Learned Trial Judge erred in the exercise of his discretion in that, having found the respondent and his witness to have made false representations to the relevant State and local government departments and that he had interfered with a witness for the appellant ([Mr Z]), that he found the respondent to be a credible witness.
Grounds 1 to 5 inclusive appear, albeit articulated somewhat differently in each instance, to be a challenge to the trial Judge’s finding with respect to the credibility of the husband. The obstacles to success with challenges of this kind and the significance of “the trial Judge’s advantage” in an appellate context are well known and need not be restated (see eg Abalos v Australian Postal Commission (1990) 171 CLR 167; SSHontestroom v SS Sagaporack [1927] A.C. 37; Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472; and State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588).
As is readily apparent, the fact that a party or witness has been untruthful on prior occasions is not conclusive of the credibility or otherwise of that party or witness in proceedings before the Court. Although that will usually be a matter to be taken into account by a Court assessing the credibility of a party or witness when the credibility of that party or witness is contested, it remains for the Court to reach its own conclusion as to credibility by reference to the evidence before it.
The trial Judge clearly recognised that the credibility of the husband was in issue. His Honour recorded early in his Reasons for Judgment:
52.Despite the fact that this case took much time, I had the opportunity to carefully observe the husband and the wife. There were few occasions where the evidence of the husband and the wife conflicted over a factual issue. That was because of the way the wife conducted her case. The wife endeavoured to prove her case through the cross-examination of the husband and his witnesses.
His Honour further recorded:
54.The husband spent a number of days in the witness box in cross-examination. Most of the topics about which he was cross-examined were repetitive. He maintained his composure and rarely showed frustration. He is a man who appears to have health problems but they did not seem to have affected his recall in relation to fundamental issues. In respect of finer detail, there were issues about which he could not recall, but having regard to the time that has elapsed and the fact that he may not have been aware he was to be asked questions about those issues, it is not surprising. Notwithstanding all of the probing by Senior Counsel for the wife and the constant assertion that he was not being truthful, I found the husband an honest witness.
55.Where the evidence of the husband and the wife conflicted, the husband was the more reliable historian and I have accepted his evidence.
The trial Judge dealt with the subject matter of these complaints under the heading “The application for the extension of the work authority”. In the course of so doing his Honour recorded:
342. Importantly, the submitted application prepared by [Mr ME] made no reference to the husband’s stated intentions of protecting the resource and keeping the mining companies out but that is not surprising. If it had, presumably the application would have been seen as a farce and quickly refused. Both the husband and [Mr ME] were challenged about the inconsistency between the application put into the relevant government authorities and what both were now saying to the Court but that is as far as it goes.
The trial Judge recorded in some detail the circumstances which led him to conclude as he did with respect to this issue. In what way either his Honour’s reasoning was erroneous, or the conclusion he reached was not open to him, has not been suggested by Senior Counsel for the wife.
The trial Judge then referred in some detail to the evidence of Mr ME, a witness in the husband’s case. His Honour noted at the outset that Mr ME’s approach to giving evidence was “cavalier”. Not surprisingly, in those circumstances his Honour then proceeded to very carefully examine Mr ME’s evidence.
His Honour considered Mr ME’s evidence in relation to the course of applications to extend the work authority. The evidence of Mr ME recorded by the trial Judge (at paragraph 354) was consistent with the evidence of the husband.
The trial Judge was clearly alive to the complaint of Senior Counsel then appearing for the wife in relation to this evidence and recorded:
355. This evidence was consistent with that of the husband but certainly not consistent with the stated application that Mr [ME] lodged with the relevant authorities. There was significant cross-examination by senior counsel for the wife about this being an improper purpose to such an extent as to be misleading of the relevant Minister of the Crown as well as the responsible statutory bodies. Whether this application was a ruse to protect the integrity of the quarrying activities of the husband and as such, an inappropriate application with supporting material that was never going to be carried out, does not matter.
356.At the point in time when the application was lodged, it was the husband’s evidence that he did not expect that it would have been granted. The purpose was to forestall the miners, other quarryers and persons who might want to build residences and later complain about the quarrying activities. It was a matter of legislative and/or government policy to allow that stalling process to occur. Had the government of the day so wished, they could have instituted a process under which other miners and quarryers could have continued to pursue the land regardless of the sort of application made by the husband.
357.In so far as any information attached to the application was misleading or untrue even to the extent that it was speculative, I am sure that the relevant bodies including the state government can take whatever action they think is appropriate.
358.In respect of the matter before me, the issue is whether or not the husband withheld information from the wife. Although the real reasons behind the application may have been news to the wife, the application itself was not. The real reasons behind the application have not affected the valuation issue.
Nothing to which we have been referred demonstrates that the findings of fact there recorded by his Honour, or the conclusions he drew in reliance upon them, were not reasonably open to him.
The trial Judge proceeded to examine further evidence given by Mr ME. Nothing to which we have been referred establishes that his Honour failed to have regard to any relevant evidence given by Mr ME, or that his findings with respect to those matters, or Mr ME’s credibility generally, were other than reasonably open to him. Nothing to which we have been referred establishes that the trial Judge’s ultimate finding with respect to Mr ME’s evidence (paragraph 372) was not reasonably open to him. No rational basis for the trial Judge rejecting the evidence of Mr ME has been advanced before us.
The thrust of these submissions seems to be that because, for reasons which were clearly and consistently explained and which have the ring of commercial common sense, the husband and/or Mr ME may have misrepresented their true intentions to the statutory authorities, their sworn evidence at trial could not be accepted. We cannot accept the proposition that, in the circumstances of this case, his Honour was obliged to conclude that the credibility of the husband and/or Mr ME was impaired by virtue of this factor. Had his Honour failed to consider the evidence of their representations to the statutory authorities with respect to the work authority, we may have concluded otherwise.
Quite apart from the absence of merit in this challenge, it conveniently overlooks the reality that, however ethical or unethical the representations of the husband and/or Mr ME to the statutory authorities with respect to the work authority may have been, they had the effect of creating and/or preserving the ability, subject to also having the ability to access the CE land, to continue to quarry, without which G Pty Ltd would not have had a business. In other words, the actions of the husband and/or Mr ME created and/or preserved a very valuable right, which the wife shared in through the consent Orders of 11 December 2003. We thus find no merit in this group of challenges.

Ground 6

Ground 6 of the Notice of Appeal provided:
6.The Learned Trial Judge erred in that he made, and proceeded on, inconsistent findings, contrary to the evidence and against the weight of the evidence.
The submissions in support of this Ground fall within a number of categories, the first relating to the challenge agitated before us by Senior Counsel for the wife in relation to the asserted non-disclosure of the “rising in profitability of G Pty Ltd’s business prior to the Orders of 11 December 2003”. We have previously dealt with the substance of those complaints.
A number of the remaining complaints set out in support of this Ground relate to the acquisition of the R property. Senior Counsel for the wife, when identifying the “nub” of the wife’s challenges in this Court, asserted that the trial Judge’s conclusion with respect to the acquisition of the R property had been erroneous, but made no submissions in addition to the written submissions previously filed on behalf of the wife in support of that contention. Rather than paraphrase them, we reproduce the submissions with respect to the R property and matters associated with it. Those submissions asserted:
6.11The Trial Judge found that the respondent had adequately and plausibly explained how he was able to borrow funds for the purchase of [the R property] including the attendant expenses and costs by having his bank readjust his finance, borrowing to purchase cattle to restock the property and then selling them;
6.12The Trial Judge continued as part of her case, the wife tendered (W-12) the respondent’s 2004 income tax returns. Attached to that document is a cattle trading account. It shows that as at 1 July 2003 the husband had stock in hand of 212 head and then during the ensuing 12 months, made purchases of 427 head together with a further 179 head of natural increases. At the end of the financial year, the sales were shown as 474 head, the value of which was $216,733. Thus, the respondent’s own evidence seems to suggest that what the respondent was saying about how he financed the acquisition of [the R property] was correct. He stocked the land and then sold the cattle.
6.13The document relied on by the Trial Judge to support his finding that the respondent adequately and plausibly explained how he was able to borrow funds for the purchase of [the R property] in fact does not support that finding.
6.14The cattle trading account attached to the respondent’s 2004 income tax return was in relation to the respondent’s property known as “[the S property]”;
6.15Moreover, the trading account relied on by the Trial Judge recorded that after the sale of the cattle, there were insufficient funds to meet the operating cost of the farming property known as “[the S property]” and that it operated at a loss;
6.16Further, the respondent’s financial circumstances filed 1 December 2003 disclosed that the respondent was funding the operating loss of “[the S property]” in the average weekly sum on $3,006;
6.17The Trial Judge gave little or no weight to extrinsic material from sources which had no interest in the subject matter of the litigation that being the CBA and [Mr L];
6.18Had the trial Judge given proper weight to the evidence of the CBA and [Mr L], he would have concluded that the respondent had failed to give a plausible or adequate reason to explain how he was able to borrow and service additional borrowings of $4.2m.;
6.19That had the trial Judge given proper weight to the evidence of the CBA and [Mr L], he would have found that the only plausible and adequate evidence before him which supported the respondent’s ability to borrow and service additional borrowings of $4.2m. was the increase in profitability of the business after 30 June 2003.

Counsel for the husband relevantly submitted:
94.As to the statement in ground 6.12 to 6.14 the sale of cattle, irrespective of whether it is the cattle account for “[the S property]” or “[the R property]” shows that the respondent was not, as was asserted by the appellant solely reliant on business income to service borrowings. Further, there did not have to be a profit from those sales for the respondent’s explanation to be accepted. It is the fact that it is putting into train the principle that he had stated he would- to buy and sell cattle in increase the earnings to service the additional borrowings. He expected the property to be self supporting. It wasn’t initially and he sold water rights and paid compensation moneys to reduce the borrowings but this does nothing to undermine his stated intention.
95.As to the statement at ground 6.17 to 6.19 the trial Judge had evidence from [Mr B] from the CBA and [Mr L] “had no interest in the subject matter of the litigation”. He was a witness for the appellant throughout the Family Court proceedings. What is relevant is though that the appellant is relying on what was stated in [Mr L]’s affidavit without proper regard to his ultimate position. The submission only has any merit, for instance, if [Mr L] maintained his position that the respondent could not finance the purchase of “[the R property]” from income from the business. It is important that [Mr L] resiled from his earlier evidence in many respects. He, for instance accepted that he was only instructed to look at the respondent’s ability to service borrowings for the purchase of “[the R property]” using the 2003 “financials for the business”. In order to give probative evidence in respect to the respondents ability to service borrowings he really needed to know the income and expenses of the farming property and consider any business plan. He never had these and never asked for these. Effectively [Mr L] was either not considering alternative scenarios to financing or was having documents withheld from him. He blamed the appellant for his.
The trial Judge carefully considered the husband’s acquisition of the R property and the livestock which he grazed upon it. He also clearly understood Mr L’s contention and referred to his evidence in relation to it. His Honour recorded:
221.When counsel for the husband turned then to the starting point of [Mr L]’s opinion that [the R property] could not have been purchased on the basis of the 2003 understanding of the husband’s financial position, [Mr L] confirmed that he had not asked questions about [the R property] but simply worked upon the basis of the information he had available to him in 2003. He did say that he had looked at the increase in revenue in 2004 and the fact that that came from the output increase in the business. He said he had concluded that to increase capacity, the husband needed additional plant and equipment as well as additional land.
The trial Judge also recorded:
223.[Mr L] was asked to accept to postulate that if all of the things that the husband had done were correct, would he concede that he “got things wrong?” His response was that if that was accepted, he would have to “look at matters again”. That did not happen.
His Honour had regard to the evidence of Mr Z, the stock and station agent through whom the R property was apparently purchased. As his Reasons for Judgment reveal, the trial Judge was critical of Mr Z’s evidence (see particularly paragraphs 250 to 252). Importantly, the trial Judge gave little weight to the evidence of Mr Z. Mr Z’s evidence was not helpful to the wife. Rejecting it was not to the wife’s detriment, for reasons which his Honour explained by saying:
254.In respect of the issue of [the R property], I am satisfied that there is sufficient independent evidence for me to ignore the evidence of Mr [Z] and still find that the first serious involvement by the husband in acquiring [the R property] was January 2004.
The trial Judge then proceeded to consider the evidence of the husband in relation to the R property acquisition. Under the heading, “The husband acquires the real property called [the R property]”, his Honour provided an extensive examination of the evidence with respect to the acquisition which he concluded by recording:
331.Accordingly, I find there is nothing untoward in the question of the acquisition of [the R property].
No finding of fact recorded by the trial Judge in the course of that consideration has been shown to have been other than reasonably open to him, notwithstanding that other findings may also have been. His Honour explained clearly why he rejected the wife’s contention. His Honour clearly had regard to all of the evidence which the submissions in support of this Ground identify.
The trial Judge had earlier referred to the evidence of Mr B (para 137 to 156) after which he recorded his finding that:
157.If in so far as the evidence was adduced to prove that the husband was involved in the acquisition of [the R property] prior to the December 2003 orders, it did not do so.
We have not been referred to anything relevant to the evidence of Mr B to which the trial Judge did not refer. No finding of fact made by his Honour with respect to Mr B’s evidence has been shown to have been other than reasonably open to his Honour. We find no merit in this challenge. For reasons which we have earlier articulated, we have rejected the first part of the challenge. Nothing to which we have been referred establishes that the trial Judge’s findings of fact and conclusions based upon them with respect to the R property acquisition and/or livestock trading were other than reasonably open to him.

Grounds 7 to 18

Grounds 7 to 18 provided:
7.The Learned Trial Judge erred in that he proceeded on the basis that the respondent was not bound by representations he made which were material to the valuation of the business asset [G Pty Ltd] and which formed the basis upon which the appellant entered into orders under s. 79 of the Family Law Act 1975 ("the Act") and upon which the Court made orders on 11 December 2003 ("the orders").
8.The Learned Trial Judge erred in that having found that it was known to the respondent that at the time the orders were made the net profitability of [G Pty Ltd] had increased, the respondent was not obliged to disclose this material matter to the value of [G Pty Ltd] and could remain silent.
9.The Learned Trial Judge erred in that he failed to consider at all or adequately the respondent's representation in the proceeding between the appellant and the respondent pursuant to s. 79 of the Act that he owned and operated his business pursuant to a lease which terminated on 30 May 2011 followed by his admission in the 2009 trial that he had never owned a lease and did not operate the business pursuant to a lease.
10.The Learned Trial Judge erred in that he failed to consider at all or adequately the respondent's admission in the 2009 trial that he had never operated [G Pty Ltd] pursuant to a leasehold but operated [G Pty Ltd] pursuant to [the Work Authority] which was very different to a leasehold and the respondent's failure to make this disclosure during the proceeding between the appellant and the respondent pursuant to s. 79 of the Act.
11.The Learned Trial Judge having correctly found that the valuation of [G Pty Ltd] by the appellant's expert in the proceeding pursunat to s. 79 of the Act should have been on the basis of [G Pty Ltd] having an unlimited life (and should not have been based on a limited life of 7.5 years alternatively 17.5 years) erred when he failed to find that the valuation of [G Pty Ltd] by the respondent's expert was also prepared on the wrong basis and failed to find that no proper valuation for [G Pty Ltd] existed on 11 December 2003 when the orders were made.
12.The Learned Trail Judge erred in that he failed to take into account that the respondent had failed to disclose al matters to his expert which were material to the valuation of [G Pty Ltd] in the proceeding pursuant to s. 79 of the Act.
13.The Learned Trial Judge erred in finding that the respondent was not obliged to provide to the appellant material dealing with the purchase of "[the R property]" when in fact an order had been made by the Court obliging the respondent to disclose all matters relevant to the acquisition of "[the R property]".
14.The Learned Trial Judge erred in that having identified the existence of material which was in the respondent's possession or control and which was material to the valuation of [G Pty Ltd] before the orders were made, the respondent had no duty to disclose these matters to the Court and to the appellant.
15.The Learned Trial Judge acted on a wrong principle, or did not follow the correct principle.
16.The Learned Trial Judge erred in law.
17.The Learned Trial Judge erred in that he proceeded on the basis that, after identifying matters relevant to the proceeding pursuant to s. 79 of the Family Law Act 1975 ("the Act") which were known to the respondent or ought to have been known by the respondent, that the respondent was not obliged to disclose these matters to the appellant and to the Court.
18.The Learned Trial Judge erred in that he proceeded on the basis that in the proceeding between the appellant and the respondent pursuant to s. 79 of the Act, the appellant was obliged to compel, alternatively to seek, discovery from the respondent of all matters material to the s. 79 proceeding.
Senior Counsel for the wife informed us during the course of the appeal that the “nub” of the appeal found articulation in Grounds 8, 9, 10, 11, 12, 14, 15, 16 and 17 of the wife’s Notice of Appeal. Having dealt with those Grounds, it is unnecessary to revisit them. Although Senior Counsel for the wife did not expressly say so, having regard to the terms of Ground 7, and the submissions in support of it, we perceive that it too has been caught up with the group of Grounds with which we have earlier dealt.
Similar observations apply to Ground 13 of the Notice of Appeal, particularly having regard to the fact that the substance of this complaint was agitated, and has been dealt with by us in the context of Ground 6. It is not insignificant that the written submissions in the outline of the appellant’s argument, prepared in January, grouped Grounds 7 to 14 together.
Grounds 15, 16, 17 and 18 articulate the challenge agitated by Senior Counsel for the wife before us that the trial Judge misdirected himself as to the law which governed the proceedings before him. We have earlier, for reasons which we have provided, rejected that challenge.

Ground 19

Ground 19 provided:
19.The Learned Trial Judge erred in that he failed to accord to the appellant procedural fairness and natural justice.
Having regard to the terms of this challenge, we cannot fail to note that Senior Counsel appearing for the wife before us did not consider it to form part of the “nub” of the case. With respect to Senior Counsel for the wife appearing before us, such distancing of himself from this complaint was entirely appropriate. The complaint is in our view, utterly unmeritorious, and should never have been made.
As is not in doubt, the trial proceeded for a period of 17 days before the trial Judge. That of itself is not fatal to a complaint that a party has been denied procedural fairness and natural justice. What is significant is that notwithstanding the duration of the trial, during which the wife was represented by Senior Counsel, we have not been referred to a single instance in which any complaint was made to the trial Judge with respect to any aspect of the procedural fairness of the trial. Having read the transcript, we find that unsurprising. The trial Judge conducted the proceedings before him with commendable restraint having regard to the way in which the wife’s case was conducted. Nothing to which we have been referred, or discovered for ourselves, establishes that either party was denied procedural fairness.
The complaint that the trial Judge had no recollection of documents “going into evidence on 19 August 2003” is a complaint which can lead nowhere. The pages identified as containing the trial Judge’s stated absence of recollection of the documents being received in evidence record no such thing. In any event, how that could be a denial of natural justice or procedural fairness escapes us. Significantly however, no complaint agitated by Senior Counsel appearing for the wife before us is in any way reliant upon the subject matter of this complaint. It is not insignificant that, after a 17 day trial, a complaint of this nature is raised in support of a natural justice challenge.
It is simply not correct to assert, as the written outline of argument does, that the trial Judge “interrupted to bring the cross-examination to an end” by stating as he did that exploration of the husband’s intention to “attempt to rule from the grave” was “a fairly sterile area”. The trial Judge having made that suggestion, Senior Counsel then appearing for the wife simply stated, “Yes, your Honour”, and sensibly so, then moved to another topic. Quite apart from the erroneous articulation of the basis of this complaint, it cannot possibly advance this challenge.
So far as the trial Judge’s assertedly impermissible intervention during the course of cross-examination of the husband is concerned, the passage identified in support of the complaint can in no way be construed in the manner asserted by the outline of submissions on behalf of the wife. His Honour made a simple comment in response to something said by Senior Counsel then appearing for the wife who thereafter immediately resumed her cross-examination of the husband.
The more one has regard to the matters relied upon in support of this complaint, the more apparent it becomes that the trial Judge did not, in any way fail to afford the parties procedural fairness. It can reasonably be inferred that, having presumably trawled through the transcript in search of statements by the trial Judge in support of this complaint, what finds articulation in the written outline in support of this challenge is the best Senior Counsel, or those responsible for the outline, could dredge up.
The assertion that the trial Judge attempted to “throw the respondent [husband] a lifeline” is patently unsustainable and, in our view, quite improper. The lines suggested to constitute such impermissible actions include only one statement, and that could in no way constitute any assistance to the husband. Senior Counsel then appearing for the wife made no complaint about his Honour’s inquiry, nor could she properly, but proceeded with her cross-examination.
It was finally complained in support of this Ground:
19.8.That the disjointed conduct of the trial meant that when the respondent gave evidence in March 2010, the Trial Judge had little recollection of relevant matters, the trial having commenced on 25 May 2009 and proceeding by instalments since then;
In what way the trial Judge’s recollection was deficient has not been suggested. In addition to being devoid of merit, having been advanced in the complete absence of any attempt to substantiate it, this complaint is quite improper, and offensive. This ground fails.

Grounds 20 to 22

Ground 20 provided:
20.The Learned Trial Judge failed to take into account relevant matters.
This Ground was effectively withdrawn by Senior Counsel appearing for the wife before us. We should not, however, let it pass entirely without comment.
In his written outline of argument Counsel for the husband disputed that the bank records referred to in the submissions in support of this Ground had ever been tendered in evidence before the trial Judge.
By agreement between Senior Counsel appearing for the wife before us and Counsel for the husband, that issue was raised at the commencement of the hearing of the appeal. Senior Counsel appearing for the wife before us deflected the issue to Counsel A, who he was leading …. Counsel A was asked three questions by the Court. They were:
(1)What was the exhibit number of the bank records to which Ground 20 refers?
(2)What is the transcript reference relating to there being the tender of the bank records into evidence?
(3)What is the transcript reference to the submissions made on behalf of the wife to the trial Judge in relation to the records?
As the transcript would confirm, Counsel A was unable to answer any of those questions. Ultimately, Senior Counsel appearing for the wife before us informed the Court that the documents had not been tendered in evidence before the trial Judge. Any possible basis for success with this Ground thereby dissolved. It would be remiss of us not to record in strong terms our criticism of Senior Counsel for adopting a submission in the terms of paragraph 20 without ascertaining that the document in question had in fact been an exhibit before the trial Judge, and failing to apologise to the Court, or her opponent in open Court, when she realised that it had not been.
Ground 21 provided, significantly:
21.The Learned Trial Judge gave weight to irrelevant matters and failed to give adequate weight to relevant matters.
No submission was made in support of this challenge. It must fail.
Ground 22 provided:
22.The Learned Trial Judge erred and proceeded on an incorrect principle in that he relieved the respondent from making full and frank disclosure of material matters in response to the appellants application pursuant to s. 79A of the Act and he proceeded on the basis that the repondent [sic] could remain silent in response to the said application.
Similar observations apply to those made with regard to Ground 21, although the Ground is probably encompassed by other Grounds which were agitated by Senior Counsel appearing for the wife before us which we have addressed.

Ground 23

Ground 23 provided:
23.The Learned Trial Judge erred in that he failed to give adequate or proper reasons for findings he made.
In support of this it was submitted:
23.1 The rejection of evidence given by [Mr L] that his valuation would have been higher if he had been given the available profit and loss statements of the business for the first half of the financial year ended 2004;
23.2That the respondent was a credible witness;
23.3That the appellant was obliged to seek production of relevant documents in the possession and/or control of the respondent;
23.4The rejection of evidence given by [Mr L] that he had relied on a site visit and the respondent’s representations to him;
23.5That the respondent could afford to purchase [the R property] buy [sic] selling cattle;
23.6That little or no weight could be given the [sic] the evidence of [Mr Z];
23.7That [Mr Z] was a very unsatisfactory witness;
23.8That there was nothing in the [Mr I] report that gave a clear picture to the trial Judge of… just exactly what he used as accurate information and what weight he have it;
23.9That in the absence of [Mr I] giving evidence, the evidence of the respondent in the s. 79A application would be treated as the evidence of the representations he made to [Mr I]; (footnotes omitted)
It is unnecessary to engage in detail with these complaints. We have largely dealt with the substance of them earlier in these reasons. The trial Judge provided abundant reasons for concluding as he did with respect to Mr L’s assertion that his “valuation would have been higher if he had been given the available profit and loss statements of the business for the first half of the financial year ended 2004”. Why his Honour concluded as he did with respect to Mr L’s evidence is not in doubt.

As we have earlier recorded, beyond asserting that the valuation would have been higher, notwithstanding that he had years in which to do so, Mr L did not suggest before the trial Judge what his valuation would have been, by reference to the first quarter 2003/2004 trading results for G Pty Ltd. We have earlier, in the context of the materiality of any possible non-disclosure, explained why we have rejected that challenge to the trial Judge’s conclusions.
The trial Judge provided abundant reasons for concluding as he did with respect to the credibility of the husband. We do not understand the submission that the trial Judge failed to provide adequate or proper reasons for finding “that the appellant was obliged to seek production of relevant documents in the possession and/or control of the respondent”
The trial Judge gave ample reasons, as the passages identified by Senior Counsel who drew this submission for the wife demonstrate, in relation to the evidence of Mr L. Similarly, the trial Judge gave abundant reasons with respect to the husband’s ability to acquire the R property, his rejection of the evidence of Mr Z – which was not to the wife’s detriment in any event – and the evidence of Mr I, who it will be remembered was not required by Senior Counsel then appearing for the wife for cross-examination.
None of these challenges has substance.

Ground 24

Ground 24 provided:
24.The Learned Trial Judge erred in that his judgment failed to give adequate or proper reasons or reasons at all which explain the basis upon which he dismissed the appellant’s application.
Ground 24 has not been sought to be advanced by any submissions, nor in our view could it possibly have been. The “nub” of the wife’s appeal to this Court was clearly predicated on the trial Judge’s Reasons having been adequate. It is sufficient to record that this Ground fails.

Ground 24

Ground 25 provided:
25.That the Learned Trial Judge's discretion miscarried and the trial before the Learned Trial Judge miscarried and the Learned Trial Judge ought to have, but did not, disqualify himself on account of reasonable apprehension of bias.
The first six paragraphs in support of this Ground contain a series of sweeping assertions in the absence of any attempt to refer the Court to any references in the transcript of the trial to support them. Given the gravity of a complaint of the kind raised by this Ground, and the reality that the submissions were, if not drawn, adopted by Senior Counsel who had appeared for the wife at trial, we consider the absence of such references both indicative of the absence of merit in the submissions made, and of a lack of judgment on the part of those who articulated the complaints.
To the extent that in other submissions in support of this Ground, transcript references are provided, those references do not in any way demonstrate any “apprehension of bias” or reasonable apprehension of an absence of impartiality. It is not insignificant that we have not been referred to any complaint to the trial Judge by Senior Counsel then representing the wife with respect to any of the matters now relied upon. That is not insignificant having regard to the fact that an application for disqualification, on grounds totally unrelated to those now referred to, was made to, and rejected by, the trial Judge in circumstances which have not given rise to appellate challenge.
We find this Ground devoid of merit.

The Business Records Appeal

Having found no merit in the appeal against the trial Judge’s orders dismissing the wife’s applications, it is necessary to consider the appeal against his Honour’s rejection of the tender of a bank file produced on subpoena.
Eleven grounds were articulated in the Notice of Appeal with respect to the trial Judge’s Order of 8 April 2010. Extensive written submissions were made in support of those Grounds. Before us, Senior Counsel for the wife did not refer to those previous submissions, many of which did no more than restate the Ground without more.
During the course of oral submissions, Senior Counsel for the wife relied on ss 1305 and 1306 of the Corporations Act 2001 (Cth) (“the Corporations Act”) and submitted that:
Now, [the bank records] are prima facie evidence, of course, of what they contain. One of the things that seemed to be agitated before the court in debate about the admissibility of the documents was whether Mr [Jeeves] could say, “I didn’t say that.” It was a record of a conversation with Mr [Jeeves]; could the court be satisfied that Mr [Jeeves] said it? The effect of the Act is it’s prima facie evidence that it was said unless evidence to the contrary is called.
Senior Counsel for the wife submitted that the trial Judge’s finding that the bank records did not record a conversation:
… was not open, on this basis: the documents purport to record a conversation between Mr [Jeeves] and the bank. The effect is to give that prima facie evidence of that fact. It’s not – now, the question then is, do you go further and say, “Well, that’s only hearsay, that’s somebody else’s record of somebody else’s conversation”? Yes, but that’s what the effect of 1305 and the relevant legislation … is to give that evidentiary force.
It was further submitted:
… And your Honour says, well, it has got to be probative. Well, it is probative of a fact. What his Honour says is, “On reading the document, I don’t think the document records the fact that you say it records.” And that’s a matter of construction. His Honour could not find as a fact that that conversation did not occur, because it was not denied. All the witness said was, he couldn’t recall. Generally, when people don’t recall and don’t deny, it’s generally recognised to be a treated as – a non-denial is treated as an admission, in effect. It was not denied that that conversation occurred. So what, then, is to take it from giving it its prima facie status?
His Honour said, we say wrongly, that, “Oh well, it’s not probative because, on my construction, I don’t have evidence that he actually said this.” Well, that just defeats the whole purpose of 1305. Then you’re saying, call evidence to prove the conversation. It’s the reverse. The document goes in. It has the prima facie impact that is required, that is given to it by the legislation, and it remains prima facie evidence of that fact unless evidence is called to displace it. That’s the way the section works. No evidence was called to displace it.
In our view, this challenge cannot succeed, and leave to appeal against the trial Judge’s interim Order accordingly should be refused. In essence, having regard to the findings of fact which the trial Judge made with respect to the tender of the bank records, which have not been successfully challenged before us, admitting the documents into evidence would not have changed anything. No attempt has been made to demonstrate that receiving these documents into evidence would have rendered erroneous the trial Judge’s conclusion in the substantive proceedings, or have advanced any challenge made in that context.
The trial Judge’s Reasons for Judgment are instructive. Having identified the documents the tender of which was contentious, the trial Judge referred to relevant provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”). Before the trial Judge, no reliance was placed upon ss 1305 and 1306 of the Corporations Act. Nothing would, or should, have changed had there been.
Having referred to the relevant statutory provisions, the trial Judge turned his attention to the documents themselves. His Honour was entitled, in accordance with s 133 of the Evidence Act, to have regard to the documents for the purpose of determining their admissibility. He was also entitled to have regard to the evidence of any witness who gave evidence with respect to the documents, as his Honour did.
The trial Judge’s description of the documents, and their contents, is not suggested to have been inaccurate. His Honour focussed, correctly, on the “last four pages” of the bank record and recorded, again accurately, that Senior Counsel for the wife asserted that he could conclude that the material there appearing had been provided by the husband. His Honour did not accept that he could draw that conclusion. He recorded that “some of the information had to come from the husband but it is not at all clear whether that came from the husband in August 2003 or much earlier.”
His Honour provided examples of the document being “confusing” in some respects, including reference to changes in the description of the “business profit record” and to “handwritten annotations in what looks remarkably like the handwriting of the person who authorised the extension of the facility”. His Honour then referred to the absence of any entry with respect to the “inventory turnover”, and to the fact that it was “not at all clear whether that was a conclusion drawn from documents or whether the matter was ever put to the husband by the officers of the bank”.
The trial Judge recorded that:
29.I have concluded that the relevant “questions” are prompts that require the author of the review to respond. If the husband told the bank about sales, it is curious why the author wrote “currently the business is known to be working double shifts”. If it was “known”, did that information come from the husband?
30.One statement showed that leasehold sand resources were not accounted for within the company’s books but the resource was estimated at between $5-8 million by “director”. This was a subject specifically put to the husband in cross-examination by senior counsel for the wife. He was mystified as to where it came from. One would presume that the bank was not writing down things other than those given to it by its customer but I have no understanding of what it means.
By reference to further parts of the documentation, the trial Judge provided further examples of matters which could not, on balance, be found to have resulted “from a discussion with the customer”, who was of course the husband.
In subsequent paragraphs, the trial Judge provided other examples of representations in the documentation which he was unable to conclude on the balance of probabilities to have been “drawn from an interview with the husband”.
Ultimately his Honour concluded:
35.On the assertion that this is a business record drawn from statements by the husband, I do not find it admissible as evidence of something stated by the husband in August 2003. Because the relevant dates and the historical data are not new, this document looks more like a considered opinion of its author because the husband had applied for further plant and equipment. Thus, in so far as it is sought to be admitted on the basis that the document contains representations of asserted facts as of August 2003, I decline to admit it into evidence.
We cannot accept the contention of Senior Counsel for the wife that the trial Judge’s ruling with respect to these documents was made in the absence of findings of fact. His Honour clearly closely examined the documentation and considered the evidence of the husband in relation to it. The matters to which his Honour referred provided ample justification for concluding as he did in relation to it. No finding of fact made and relied upon by the trial Judge with respect to the tender of the documentation has been successfully challenged before us.
As Senior Counsel for the wife conceded, no attempt was made by Senior Counsel then appearing for the wife to call the author of the document to give evidence in relation to its contents. His Honour had earlier referred to Mr B who gave evidence “at the behest of the wife” before him. We have not been referred to any evidence from Mr B that the contents of the disputed bank documentation were prepared by him in reliance upon statements made to him by the husband.
We are not persuaded that, whether pursuant to the provisions of the Evidence Act or the Corporations Act, the trial Judge should have received the contentious bank documentation into evidence. Even if his Honour had received the documentation into evidence, having regard to the findings of fact he made with respect to the documentation, its receipt into evidence could not have advanced the wife’s case.
There is a fundamental difference between documentation prepared by a party, whether provided by a bank or anyone else, which would clearly be admissible as against that party, and documentation of the kind with which his Honour was concerned, which, as his Honour clearly recognised, potentially contained an indistinct mixture of things which must have “come from the customer” and impressions, inferences or conclusions reached by the bank officer preparing the documentation. In our view, particularly having regard to his Honour’s conclusion with respect to the credibility of the husband, challenges which we have rejected, was entitled to exercise his discretion to reject the documentation.
Having regard to his Honour’s findings of fact, even if he had been inclined to admit the documentation, it would have been proper for him to have exercised the general discretion to exclude evidence reposed in him by s 135 of the Evidence Act and reject the documentation. Even if his Honour had accepted the documentation into evidence and not exercised such discretion, on the findings of fact made by him, he could permissibly have made any findings of fact or drawn any inferences adverse to the husband in reliance upon it.
We are not persuaded that the appeal against the interlocutory Orders of 8 April 2010 either has merit or that to refuse it would cause a substantial injustice (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (supra) and Rutherford and Rutherford (supra). We accordingly dismiss the appeal.

Costs

Sensibly, in our view, Senior Counsel appearing for the wife before us acknowledged that, if unsuccessful, his client could not resist an order that she pay the husband’s costs of the appeal, and we will so order.

I certify that the preceding one hundred and ninety five (195) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Murphy JJ) delivered on 28 April 2011.

Associate:

Date: 28 April 2011