Jess and Jess

[2008] FamCA 30

FAMILY COURT OF AUSTRALIA

JESS & JESS [2008] FamCA 30

FAMILY LAW – PROPERTY – Anti-suit injunction – mandatory injunction – Supreme Court proceedings – accrued jurisdiction – transfer – expert evidence – partial property settlement

Family Law Act 1975 (Cth) s 106, s 114(3), s 34(1)
Family Law Rules 2004 Part 1.2, Division 15.5.3, Rule 15.52(2), Part 15.5, Rule 15.42(e), 15.52(3)
Corporations Act 2001 (Cth)
The Supreme Court (General Civil Procedure) Rules 2005 (Vic) 23.01, 13.02, 13.07, 13.10(3)
Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic) s 5(1) s 5(1)(b)(ii)(C)

J.C. Williamson Ltd  v Lukey (1931) 45 CLR 282 at 298
H. Jones & Co Pty Ltd  v Talbot (1948) 180 CLR 63 at 66
Patrick Stevedores  v  MUA (1998) 195 CLR 1
Co-operative Insurance Society Ltd  v  Argyll Stores (Holdings) Ltd. [1998] AC 1 at 13-14
Valceski  v  Valceski (2007) 36 Fam LR 620 at para.69
BHP Billiton Ltd  v  Schultz (2004) 21 CLR 400
Spiliarda Maritime Corporation  v  Cansulex Ltd [1987] AC 460 at 478
Lederer  &  Hunt (2007) 36 Fam LR 587
Beecham (Aust) Pty Ltd  v  Roque Pty Ltd (1987) 11 NSW LR 1, at 3 and 6
Baba and Jarvinen (1980) FLC 90-882
CSR Ltd  v  Cigna Insurance Australia Ltd (1997) 189 CLR 345
Waugh &  Waugh (2000) FLC 93-052
Mullen  &  De Bry (2006) FLC 93-293
Harris  and  Harris (1993) FLC 92-378

HUSBAND: Mr Jess

WIFE: Mrs Jess

2ND and 3RD RESPONDENTS	Y Pty. Ltd. Y Corporation Pty. Ltd
4th RESPONDENT	Mr Jess (jnr)

FILE NUMBER: MLF 3444 of 2006

DATE DELIVERED: 30 January, 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 19 October, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Mr. Geddes, QC with Mr. Crofts

SOLICITOR FOR THE HUSBAND: Carew Counsel

COUNSEL FOR THE WIFE: Mr. Ackman QC, with Ms. Macmillan

SOLICITOR FOR THE WIFE: Kenna Teasdale Lawyers

COUNSEL FOR THE 2^ND , 3^RD AND 4^TH RESPONDENTS: Mr. Collins, SC with Mr. Squirrell

SOLICITOR FOR THE 2ND AND 3RD RESPONDENTS:	Kahns Lawyers
SOLICITOR FOR THE 4TH RESPONDENT	DLA Phillips Fox

Orders

1. That the wife’s application for the orders contained in paragraphs (1), (2), (3), (5), (6) and (7) of the Further Further Amended Application filed on 15 October, 2007 be dismissed. 

1. That if the husband or wife has in his or her possession or control any item of jewellery not included in a list made by him or her, respectively, pursuant to paragraph (9) of the orders of 28 April, 2007 he or she disclose such items of jewellery within fourteen days. 

1. That if the husband or wife has in his or her possession or control any item of jewellery which has not been valued by Mr. J, pursuant to the orders made herein on 28 April, 2007, he or she deliver such item to Mr. J within 28 days, and at the conclusion of the valuation Mr. J forthwith deliver all such jewellery to the solicitors for the husband to be held in safe keeping at G Secure Storage or such other place as agreed by the solicitors for the parties  PROVIDED THAT  nothing in these orders or earlier orders of the Court requires the wife to give up possession of the five items of jewellery which are presently in her possession and available for her use, pursuant to an agreement made between the parties. 

1. That the husband and the wife each be permitted, pursuant to Rule 15.51 of the Family Law Rules 2004, to tender a report and adduce evidence at trial from the following experts as to the value of the sporting interests and business interests as described in the husband’s affidavit filed 17 June, 2007, and such report be served on each party and filed with the Court not later than 25 April, 2008 :

   (a)on behalf of the husband, Mr. I;  and

   (b)on behalf of the wife, Mr. O or such other appropriately qualified expert as the solicitors for the wife advise the husband, in writing, within 21 days hereof.

1. That for the purpose of valuations pursuant to paragraph (4) hereof, the valuation of Y Unit Trust shall be undertaken on the basis that the husband is the owner of units in that trust which are recorded in his name, without prejudice to the claim of Mr Jess (jnr), made in proceedings No. ...1 of 2007 in the Supreme Court of Victoria and of Mrs X (as executrix of the estate of Mr X, deceased), made in proceedings No….2 of 2007 in the Supreme Court of Victoria. 

1. That the parties arrange for Mr. I and Mr. O (or such other expert on whom the wife relies) to confer by 9 May, 2008 for the purpose of identifying those parts of their evidence that are at issue in these proceedings and at the completion of that conference, the experts shall prepare a joint statement specifying the following matters :

   (a)identify the issues that are agreed and not agreed;

   (b)if practicable, reach agreement on any outstanding issue;

   (c)identify the reasons for disagreement on any issue;  and

   (d)identify what action (if any) may be taken to resolve any outstanding issues;

   and deliver a copy of the statement to each party, and the joint statement may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called.

IT IS FURTHER ORDERED BY CONSENT

1. That pursuant to Rule 15.45 and 15.46 :

   (a)FD of K Chartered Accountants (“[FD]”) is appointed as a single expert valuer for the purposes of valuing the Y franchise businesses at S and K and the wife’s interest in the companies L Pty. Ltd. and T Pty. Ltd. which operate those businesses, such appointment to be in the terms of the letter attached to the husband’s form 2A filed 24 August, 2007 and marked A.

(b)KC of Strategic Property Consulting (“[KC]”) as a single expert valuer for the purposes of valuing the residential real estate owned by the parties at R and A and that owned by the H Investment Unit Trust in G and such appointment to be in the terms of the letter attached to the husband’s form 2A filed 24 August, 2007 and marked B.

(c)FD is appointed as a single expert valuer for the purposes of valuing the wife’s interest in the H Investment Unit Trust and such appointment to be in the terms of the letter attached to the husband’s form 2A filed 24 August, 2007 and marked C.

(d)CK are appointed as a single expert valuer for the purposes of valuing the commercial real estate owned by entities associated with or alleged to be associated with the husband as set out in and upon the terms set forth in the letter attached to the husband’s form 2A filed 24 August, 2007 and marked D.

1. That the husband pay the fees of the single experts appointed pursuant to the preceding order and that 50% of the costs of such experts be paid on behalf of the wife by way of interim property settlement. 

1. That the question of the responsibility for the costs of any necessary borrowing (if any) by the husband in order to comply with the preceding order be reserved for the determination of the trial judge. 

1. That the husband and wife within seven days of a request by any single expert to do so, provide such documents or answers to any questions as may be required by the single expert for the purposes of their report. 

1. That the wife within 14 days hereof produce and serve upon the husband a list of documents in her power, possession or control detailing :

   (a)Expenditure on each and every credit card to which she has the ability to charge expenditure in the period from separation to date and on an ongoing basis;

   (b)Bank account transactions including but not limited to bank statements, cheque book stubs and any other record supporting a payment or withdrawal, on each and every bank account to which she is an authorised signatory in the period from separation to date and on an ongoing basis;

   (c)The purchase of each item of jewellery purchased after 31 October, 2005 as identified in annexure LJ 3 to her affidavit filed herein on 20 July, 2007 including where the item is identified as a gift or purchased on behalf of a party other than the wife the basis of the acquisition, funds or benefits received in exchange for the gift/acquisition and if funds where those funds were expended. 

1. That the wife give the husband inspection of the documents set forth in the list required to be produced by her pursuant to the preceding paragraph within seven days of serving such list upon the husband. 

1. That the parties otherwise promptly comply with any request for disclosure.

1. That the parties have leave to issue such further subpoenas as they may require by not later than 14 February, 2008. 

1. That the husband have leave to disclose material obtained on subpoena or from the wife pursuant to orders of this Honourable Court for the purposes of Supreme Court of Victoria proceedings No…..1 of 2006.

IT IS FURTHER ORDERED

1. That if a party or a person or company which the wife sought to have joined as a party seeks to make further submissions in relation to the costs of the applications determined this day:

   (a)he or she file such written submissions by 15 February, 2008;

   (b)the party against whom costs are sought, file and serve written submissions in response by 7 march, 2008;  and

   (c)the party seeking costs file any written submissions in reply by 21 March, 2008. 

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel, including senior counsel.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Brown delivered this day will for all publication and reporting purposes be referred to as JESS & JESS.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3444  of 2006

Mr Jess

Husband

And

Mrs Jess

Wife

And

Y Pty. Ltd.

Second respondent

And

Y Corporation Pty. Ltd.

Third respondent

And

Mr Jess (jnr)
Fourth respondent

REASONS FOR JUDGMENT

1. The parties began living together in 1986 and were married in January 1988.  They have three children (C 19, N 17 and E 14).  They separated in November 2006 and on 18 December, 2006 the wife filed an initiating application in this court, seeking final property and parenting orders. 

1. The applications before me relate only to financial matters.  Since December 2006, a number of interim applications have been determined, and orders made for the provision of funds to the wife (by way of Barro order and part-property order) and for payments to creditors.  Various injunctions and procedural directions have been made. 

1. On 27 July, 2007 the wife filed an amended application for interim orders seeking, among other orders, that the husband’s son from an earlier relationship, Mr Jess (jnr), Y Pty. Ltd. and Y Corporation Pty. Ltd. be joined as respondents to the proceedings.  Each was named as a respondent on the cover sheet of the application.  On 24 July Mr Jess (jnr) had filed a writ in the Supreme Court of Victoria, being proceedings No. …1 of 2007, to which I will refer later.

1. On 7 August, 2007, the court, having made orders in respect of aspects of interim applications filed by the parties, adjourned the amended form 2 application filed by the wife on 27 July, 2007 to 19 October and made a number of orders for the filing of documents prior to that date.  In the amended application the wife sought an order that jewellery presently held by the husband be returned to her and she be “permitted to use and enjoy the jewellery as she see fit”, and the joinder of the three additional respondents.  She then sought a number of orders referrable to existing proceedings in the Supreme Court of Victoria, as follows :

   4.That paragraphs 124-126 inclusive of the proposed amended Defence and Counterclaim of [Y Corporation] Pty. Ltd. against the wife in Supreme Court action number …1 of 2006 be removed from the Supreme Court and transferred to this Honourable court for determination.

   5.That Supreme Court action number …1 of 2007 where [Mr Jess (jnr)] is Plaintiff, the wife is First Defendant, the husband is Second Defendant and [Y Corporation] Pty. Ltd. is Third Defendant, be removed from the Supreme Court and transferred to this Honourable court for determination.

   6.That [Mr Jess (jnr)] be restrained from taking any further steps in Supreme Court action number …1 of 2007.

The wife also sought that the husband pay her costs.

1. On 14 September, 2007 the wife filed a further amended application.  The orders sought in relation to jewellery and the joinder of the additional respondents remained, as did the application the husband pay her costs.  Paragraphs 4, 5 and 6 of the amended application of 27 July, 2007 were deleted and the following paragraphs inserted in lieu :

   5.That until further order the fourth named respondent [Mr Jess (jnr)] personally, by his servants and/or agents and in his capacity as trustee appointor or director of any entity in the [Y] Group be restrained from :

   a.Selling, assigning, disposing, alienating, further encumbering or dealing with any assets standing in the name of the [Y] Group;

   b.Dealing with the profits or income of the [Y] Group save in the ordinary course of business;  divesting himself of any interest or control, save and except for the benefit of the husband and/or wife, or reducing the value of any entity;

   c.Selling, transferring alienating any shares or unit holdings in the [Y] Group;

   d.Issuing or permitting to be issued any additional shares in the [Y] Group;

   e.Attending any meeting without proper written notice to the wife setting out the business of the meeting;

   f.Appointing any other director or office holder;

   g.Extending any borrowings or other liabilities;

   h.Doing any act or thing or permitting any act or thing reasonably calculated to have the effect of diminishing the assets and/or income of the [Y] Group.

6.That until further order [Mr Jess (jnr)] be restrained from continuing in Supreme Court action No. …1 of 2007.

1. On the same day, the wife filed an amended application for final orders.  In her original application for property orders she had sought to be excused from particularising orders until the husband filed and served a financial statement and provided full disclosure of his assets, liabilities and financial resources.  She maintained that position in the amended application.  In it, the wife sought five additional orders, as follows :

   8.That the second named respondent [Y] Pty. Ltd. and/or the third named respondent [Y Corporation] Pty. Ltd. pay such sum and/or do all acts and things and sign all documents as may be required by way of adjustment of property between the husband and the wife as this Honourable Court deems appropriate. 

9.That the Deed of Trust made by [the husband] and dated the 28^th February, 2002 be set aside. 

10.In the alternative the fourth named respondent [Mr Jess (jnr)] do all such acts and things and sign all documents as may be required to pay to the wife such sum as the Court deems appropriate by way of adjustment of property between the husband and the wife. 

11.That the wife be excused from particularising further orders sought by her as against the second, third and fourth named respondents until such time as there has been full and frank disclosure by the said respondents. 

12.Such further or other consequential Orders as this Honourable Court deems appropriate in the circumstances.

1. It was the husband’s submission that the amended application for final orders could not be filed without leave.  I cannot say when objection to its filing on these grounds was made but it was certainly not made in the letter the husband’s solicitors sent to the wife’s solicitors on 5 October, 2007, a letter in which (having been served with the amended application for final orders) they suggested that a further amended application for final orders be made, properly particularising the relief sought.  

1. Rule 11.10 of the Family Law Rules 2004 provides that a party who has filed an application for final orders may amend it within 28 days after the final resolution event or at any later time, with the consent of the other parties or by order. The final resolution event is defined in the Dictionary to the Rules as being, for a property application, a conciliation conference.

1. There were some references to conciliation conferences in the course of submissions about the husband’s application for a judicial settlement conference, but no evidence was adduced.  Having perused the previous orders made in the case I can find no order requiring the parties to attend a conciliation conference, and there is no record, on the court file, of the listing of a conciliation conference.  In those circumstances, and in the absence of evidence to the contrary, I can find that the case is still in the resolution phase, as defined by the Rules, and no leave is necessary. 

1. In response to the amended application for interim orders filed on 27 July, the husband filed a response on 24 August, 2007 in which he sought orders for the appointment of a number of single expert valuers to value two Y franchise businesses and the wife’s interest in the companies which operate those businesses, residential real estate owned by the parties at R and A and that owned by the H Investment Unit Trust in G, the wife’s interest in the H Investment Unit Trust and commercial real estate owned by entities associated with or alleged to be associated with the husband.  The husband sought that both parties be permitted to adduce evidence from adversarial experts as to the value of the husband’s and the parties’ sporting interests and business interests.  The husband sought a number of orders relating to valuation of jewellery and discovery, that the parties attend a judicial settlement conference to be fixed on a date in March 2008 and that the husband have leave to disclose material obtained on subpoena or from the wife pursuant to orders of this Court for the purposes of proceedings No. …1 of 2006 and No. …1 of 2007 in the Supreme Court of Victoria.  Other orders he sought were that the wife’s amended application filed 27 July be otherwise dismissed and that the wife pay his costs. 

1. Four days before the hearing, on 15 October, 2007, the wife filed a further further amended application in the case.  In addition to the orders sought in the further amended application filed 14 September, she sought that Mr Jess (jnr) do all things necessary to transfer Supreme Court proceedings No. …1 of 2007 to this Court.

1. Pursuant to orders made on 7 August, 2007 Mr Jess (jnr) filed a response, on 3 September, in which he sought that the wife’s applications relating to him be dismissed and she pay his costs.  Y Pty. Ltd. and Y Corporation Pty Ltd filed a joint response on 24 August, in which they sought that the wife’s application to join the companies be dismissed and she pay the companies’ costs.

1. As ordered on 7 August, the parties, Mr Jess (jnr) and the companies the wife sought to join as respondents, filed short summaries of argument. 

1. Thus, the matters to be determined are applications relating to the following:

   ·Joinder of Mr Jess (jnr), Y Corporation and Y Pty. Ltd.;

   ·Mandatory injunction directed to Mr Jess (jnr), to achieve transfer of Supreme Court proceedings in which he is the plaintiff to this Court;

   ·Anti-suit injunction restraining Mr Jess (jnr) from prosecuting Supreme Court proceedings in which he is the plaintiff;

   ·Injunction restraining Mr Jess (jnr) from dealing with assets of Y Corporation and the Y Group;

   ·Jewellery;

   ·Appointment of expert witnesses;

   ·Reliance by the husband on documents produced in these proceedings in Supreme Court proceedings on which he and Y Corporation are defendants;

   ·Judicial Settlement Conference;

   ·Costs

EVIDENCE

1. The wife relied upon the following documents :

   ·    further further amended form 2 application in a case filed 15 October, 2007;

   ·    affidavit of the wife sworn 20 July, 2007;

   ·    affidavit of the wife sworn 27 July, 2007;

   ·    affidavit of the wife sworn 3 August, 2007;

   ·    affidavit of the wife sworn 13 September, 2007;

   ·    affidavit of the wife’s sister sworn 13 September, 2007;

   ·    affidavit of Stephen Gregory sworn 13 September, 2007;  and

   ·    affidavit of Mr O sworn 3 August, 2007.

1. The husband relied upon the following material :

   ·orders of Young J. of 20 April, 2007;

   ·orders of Brown J. of 6 August, 2007, incorporating by reference an earlier affidavit of the husband filed on 19 June, 2007;

   ·form 2A response filed by the husband on 24 August, 2007;

   ·affidavit of the husband filed on 24 August, 2007;

   ·affidavit of the husband filed on 5 October, 2007;

   ·affidavit of Peter Carew filed on 24 August, 2007;  and

   ·affidavit of Peter Carew filed on 5 October, 2007.

2. In addition, the husband relied upon three affidavits sworn by the wife and filed, respectively, on 20 July 2007, 27 July 2007 and 14 September 2007, the affidavits sworn by Mr. O, the wife’s sister and Mr. Gregory, on which the wife relied, the wife’s amended application for final orders filed 14 September, 2007 (subject to objection by the husband) and the wife’s further further amended form 2 filed on 15 October, 2007.  He also relied on the responses filed by Y Pty. Ltd. and Y Corporation, and the affidavit of Mr B filed on behalf of those two companies on 24 August, 2007. 

3. Mr Jess (jnr) relied on the following documents :

   ·form 2 response filed 3 September, 2007;

   ·affidavit sworn by him on 16 October, 2007;

   ·affidavit sworn by the wife on 27 July, 2007;

   ·affidavits sworn by Mr G on 31 August, 2007 and 4 September, 2007.

4. Y Pty. Ltd. and Y Corporation relied on their response filed on 24 August, 2007. 

RELEVANT ENTITIES

1. By a Deed of Settlement dated 29 September, 1983, the Y Unit Trust was established.  In very broad terms, Y Unit Trust conducts what has been referred to in these proceedings as the business operations, through Y Corporation.  The husband was listed in the first schedule to the Deed of Settlement as holding one class D unit and 72 ordinary units in the Y Unit Trust.  He was further issued with 31 ordinary units in February 1998. 

1. In his affidavit sworn on 24 August, 2007, the husband sought leave to refer to an earlier affidavit, sworn by him on 18 June, 2007, in which he deposed to the business structure.  In that affidavit, he deposed that Y Corporation is the main trading entity and franchisor.  All shares in it are owned by the Y Unit Trust.  The current trustee of the Y Unit Trust is Y Pty. Ltd., in which the husband and Mr Jess (jnr) each hold one share.  The husband and Mr Jess (jnr) are the directors of Y Corporation and each holds one share in that company.

1. There are numerous references in affidavits, orders and submissions to the Y Group.  In the order of 21 December, 2006 the term “the [Y] Group” refers to 20 named companies.  In his affidavit sworn on 18 June, 2007, the husband initially used the expression “The [Y] Group” to refer to “a group of businesses” which conducted the sporting and business operations, but also to refer to only those connected with the business operations.  Later in the affidavit (Section Two-Part A) he referred to “a corporate diagram of the [Y] Group”, prepared from ASIC searches of the relevant entities.  Mr. O made his assessment, in part, on the basis of this diagram, which includes some 37 companies and entities involved with real property, sporting and business operations, categorised, variously, as trading, non-trading, trustees, under administration or in which a minority shareholding is held. 

PROCEEDINGS IN THE SUPREME COURT OF VICTORIA

1. There are presently three sets of proceedings in the Supreme Court of Victoria which involve parties to these proceedings, or those that the wife seeks to join as parties to them. 

1. The first set of proceedings (No. …1 of 2006) was commenced on 14 December, 2006;  the plaintiffs are L Pty. Ltd. and T Pty. Ltd. and the defendant is Y Corporation.  Reference was made by me to these proceedings in an earlier judgment, delivered on 7 August, 2007.  In essence, the wife and her sister bought a Y franchise in K in 2001, through L Pty Ltd.  In December 2005 they bought a second franchise in S, through T Pty Ltd.  In December 2006, Y Corporation sought to re-enter and take control of the franchises, alleging a failure to pay for stock bought from it, on credit.  T Pty Ltd and L Pty Ltd took action in the Supreme Court; in the writ they allege misrepresentation, unconscionable conduct and misleading and deceptive conduct.  By order of Gillard J. in January, 2007, the wife, her sister and her brother-in-law were added as plaintiffs to those proceedings, and the husband was added as a defendant.  Y Corporation was ordered to deliver up possession of the two franchises that day and orders were made for the payment of the alleged debt and the conduct of the franchise operations.  A timetable for pleadings and discovery was fixed and the proceedings referred to the Listing Master for directions. 

1. None of the allegations brought against Y Corporation in those proceedings depends upon a determination of the beneficial ownership of Y Unit Trust;  the issue of ownership of the units in Y Unit Trust is not pleaded.

1. The wife had sought (in her amended application filed 27 July, 2007) that certain paragraphs of Y Corporation’s defence and counterclaim in these proceedings be removed from the Supreme Court and transferred to this Court for determination.  That paragraph was deleted in the further amended application filed on 14 September, 2007.  She no longer seeks any orders in respect of these proceedings.

1. A second set of proceedings (No. …1 of 2007) names Mr Jess (jnr) as the plaintiff and the wife, husband and Y Corporation as the defendants.  In those proceedings Mr Jess (jnr) seeks a declaration in relation to a deed of declaration of trust, made on 28 February, 2002, by the husband (“the 2002 Declaration”) in which he (the husband) acknowledged and confirmed that as of that date his entire holding in the Y Unit Trust (existing units and all future units) was to be held in trust for Mr Jess (jnr).  The 2002 Declaration provides that it will vest, and the entire holding be fully transferred to Mr Jess (jnr), when:

   . . . [The Y Unit Trust] with [Mr Jess (jnr)] as CEO of [the Y Unit Trust] makes as determined in its Management Accounts Earnings Before Interest and Tax (EBIT) of or in excess of $10,000,000 (Ten Million Dollars) in any one financial year, within seven years of this Declaration of Trust.

1. The evidence is that Y Corporation achieved a profit before tax in excess of $10.8 million in the year ending 30 June, 2006. 

1. The wife filed a defence in these proceedings on 10 September, 2007.

1. In respect of these proceedings the wife seeks both an interlocutory anti-suit injunction (as commonly described) and a mandatory injunction, the former to restrain Mr Jess (jnr) from continuing the action and the latter to act to achieve its transfer to this Court. 

1. There is a third set of Supreme Court proceedings, to which only peripheral reference has been made (No. …2 of 2007), which names Mrs X (as executrix of the estate of Mr X, deceased) as plaintiff.  The defendants are the husband and Y Corporation, as trustee of the Y Unit Trust.  It is alleged in those proceedings that the husband held part of his interest in the Y Unit Trust or in the ordinary units in the Y Unit Trust for the deceased, and another 5% for AR.  The third amended statement of claim in those proceedings, dated 23 July, 2007, pleads a declaration of trust under seal made by the husband on 5 December, 1998, to that effect.  The deceased and AR were directors of Y Corporation;  the evidence of Mr Jess (jnr) is that there was a change of management in 1999 and the deceased and AR effectively ceased working at Y Corporation at that time.

1. In its defence to the third amended statement of claim, dated 13 August, 2007, the defendants admitted (subject to production of the declaration of trust) the paragraph in which the initial interests of the deceased and AR were pleaded.  It is not put (in those proceedings or these proceedings) that AR now retains any interest in Y Corporation.  The husband deposed to the resolution of the disagreement with AR and AR’s subsequent death. 

1. The plaintiff in those proceedings seeks numerous remedies, including a declaration that the Y Unit Trust holds 5% of the Y Unit Trust (or 5% of the ordinary class units in the Y Unit Trust) in trust for the plaintiff, or the transfer of those units to the plaintiff.

APPLICATIONS RELEVANT TO SUPREME COURT PROCEEDING No….1 of 2007

1. It is impossible to consider the competing submissions of the parties without reference to their competing positions in relation to the 2002 Declaration and the relief the wife seeks against those she wishes to join as parties to these proceedings. 

1. As between the husband and wife, it is not denied that no reference to the 2002 Declaration was made in documents filed in these proceedings until 19 June, 2007.  The 2002 Declaration was discovered by the husband, and inspected by the wife’s solicitors in late March 2007.  No mention was made of it at hearings in this Court on 21 December, 2006, 7 February, 2007 or (after its discovery) on 17 April, 2007, or in affidavits relied on in those hearings.  On 21 December, 2006, by consent, both parties were enjoined from dealing with assets or income of 20 companies, called “the [Y] Group”;  the interim injunction is very broad and, in relation to selling and dealing with assets, contains no proviso for sales in the ordinary course of business.  The Group includes Y Corporation, of which the husband is a director.  The wife’s submission that he could not or should not have consented to that injunction if he were not the beneficial owner of Y Corporation (or 95% of Y Corporation) does not take account of a director’s obligations pursuant to the Corporations Act 2001.

1. On 19 June, 2007 the husband filed an affidavit, sworn by him on 18 June, 2007, in which he deposed, for the first time, to the 2002 Declaration.  On the day the husband swore that affidavit (18 June) solicitors acting for Mr Jess (jnr) wrote to the solicitor acting for the wife in Supreme Court proceedings No. …1 of 2006, advising of instructions from Mr Jess (jnr) to commence Supreme Court proceedings seeking a declaration as to their client’s ownership of units in the Y Unit Trust, and enquiring whether they would accept service. 

1. At the time the wife filed the amended application for interim orders seeking joinder of three additional respondents, there was on foot no application for final orders seeking any relief against any of those proposed respondents.  It was not until 14 September, 2007, when the wife filed the further amended application for interim orders, that she filed an amended application for final orders.  In that application she sought that the 2002 Declaration be set aside or, in the alternative, that Mr Jess (jnr) pay to the wife such sum as the court deemed appropriate by way of adjustment of property between the husband and the wife.  In respect of Y Pty. Ltd. and Y Corporation she sought an order that they pay such sum as may be required by way of adjustment of property between the husband and the wife as deemed appropriate by the court.  Neither in the amended application for final orders, nor in any of the amended applications for interim orders, nor in any of the affidavits relied on by her, did the wife identify the basis for her challenge to the 2002 Declaration. 

1. In the course of submissions of senior counsel for the wife I sought clarification of this issue.  Was it the wife’s case that the 2002 Declaration was a recent invention?  Was she alleging fraud?  Was it her case that the 2002 Declaration was a sham, whenever drawn or executed?  The response of senior counsel was that the wife did not want to “commit” herself;  she was “highly suspicious” but did not want to be committed to specifying the basis of the challenge to the 2002 Declaration, beyond saying that she believed it “is driven by [the husband]”.  Pressed, senior counsel for the wife eventually submitted that “our primary position is going to be, your Honour, that the trust is a sham”, a position reiterated more clearly in his reply.  I sought to clarify whether by this senior counsel conceded that the 2002 Declaration had been made at the time alleged (28 February, 2002) but that the wife would allege it to have been a sham from the outset, to which he replied “we don’t know, your Honour”.

1. This is not a court of pleadings but that does not mean a party is entitled to conduct litigation without identifying his or her case and the grounds for allegations made in it.  The principles of natural justice require clear identification of issues and allegations, the grounds on which allegations are made and the relief or remedy sought. 

1. The documents filed by the wife in this Court failing to identify any grounds for her asserted challenge to the validity and efficacy of the 2002 Declaration, reference was made to documents filed by the wife in the Supreme Court proceedings brought by Mr Jess (jnr), as it is those proceedings the wife seeks to transfer to this Court.  The statement of claim in those proceedings forms part of annexure LJ-1 to the affidavit sworn by the wife on 27 July, 2007 and her defence is annexure LJ-2 to the affidavit sworn by her on 13 September, 2007. 

1. The statement of claim is straight-forward.  It pleads the original deed which created the Y Unit Trust, a number of its terms, the husband’s recorded holding of 104 units in the Y Unit Trust, the deed of declaration of trust dated 28 February, 2002, earnings in excess of $10 million in the year ending 30 June, 2006, and the vesting of Mr Jess (jnr’s) entitlement.  As relief, the plaintiff claims a declaration that he is beneficial owner of the units in the Y Unit Trust which the husband is recorded as holding, a declaration that the trust created by the deed of declaration of trust of 28 February, 2002 has vested, and an order that Y Corporation amend the register of unit holders in the Y Unit Trust to record the plaintiff as the holder of the relevant units. 

1. In her defence the wife did not challenge the pleadings relating to the establishment of the Y Unit Trust, the terms of the establishing deed, or the record of the husband’s unit holding, save to call for the production of the original stamped deed, the certificate of incorporation and the register of unit holders.  In response to paragraphs 5 and 6 of the statement of claim (in which the plaintiff pleaded the 2002 Declaration and that, by reason of it, he is and has been the beneficial owner of the units in the Y Unit Trust since 28 February, 2002) the wife simply pleads a denial of each and every allegation, and calls for the production of the stamped original deed of declaration of trust.  In that paragraph of the defence (paragraph 4) she makes no challenge to the validity of the 2002 Declaration.  In paragraph 6 of the defence the wife pleads bare denials of the balance of the allegations in the statement of claim.  The only pleadings which could be said to challenge the validity or efficacy of the 2002 Declaration are contained in paragraphs 7 and 8 of the defence.

1. Paragraph 7 of the defence is in these terms :

   Further and in the alternative, the Secondnamed Defendant’s Declaration referred to in the Deed of Declaration of Trust was made so as to defeat an existing or anticipated Order or likely to defeat such an Order by the Family Court of Australia in anticipation of the Firstnamed Defendant’s entitlements as against the Secondnamed Defendant pursuant to the Family Law Act 1975.

No particulars are provided. While not expressed as such, this appears to foreshadow an application under s.106B of the Family Law Act 1975.

1. Paragraph 8 of the defence is as follows :

   Further and in addition to the contents of paragraph 7 hereof, the Firstnamed Defendant states that the Secondnamed Defendant had no right or entitlement to purport to dispose of or transfer units held by him in the [Y Unit Trust] by virtue of his marriage to the Firstnamed Defendant and/or without her knowledge and/or consent. 

45.     Senior counsel for Mr Jess (jnr) referred to this as a “very unorthodox plea”, which might be said to be an understatement.  A similar argument was adumbrated by senior counsel for the wife in the course of discussion of the basis of his challenge to the declaration of trust in this Court, he submitting that the wife was entitled to say that assets which were “commercially” those of the husband were not “entirely his”, as the wife “had an equitable interest in them”. 

1. Senior counsel for the wife cited no authority for this proposition, which is unsurprising.  There is no principle of law or equity which would support the pleading contained in paragraph 8 of the defence, or the submission of senior counsel for the wife in this Court.  It is trite law that marriage, of itself, creates no interest in property.  Nor does the filing of an application under the Family Law Act 1975. The pleading in paragraph 8 would almost certainly be struck out pursuant to RSC r.23.01.

1. In paragraph 9 of the defence, the wife “states” that the matters raised by the plaintiff in his statement of claim are matters to be properly determined and are the subject matter of proceedings instituted by her against the secondnamed defendant (the husband) in this Court.  As noted earlier, at the time the defence was filed (it is dated 10 September, 2007) there was no proper challenge to the efficacy of the 2002 Declaration in this Court.  Had there been, it would not constitute a defence to the statement of claim but might be relevant to an application for transfer. 

1. Tendered as exhibit R-1 was a copy of the wife’s further and better particulars of defence, filed pursuant to an order made by Master Efthim.  In relation to paragraph 7 of her defence, the wife stated that the 2002 Declaration was not disclosed to her until after commencement of her proceedings against the husband in this Court, was deliberately concealed from her by the plaintiff and the husband prior to March 2007, and was not disclosed by the husband or by Mr. B (the general manager of corporate affairs of Y Corporation) in affidavits sworn and filed in Supreme Court proceedings No….1 of 2006.  Putting aside the fact that there is no general obligation to disclose a trust, these take the allegation in paragraph 7 (going to the alleged motive for making the 2002 Declaration) no further.  Nor does the particular provided in paragraph 1.1(e), which simply states the effect of the 2002 Declaration, if enforceable, which would be to divest the husband of all his beneficial interest in the Y Unit Trust.

1. Similarly, the particulars provided in paragraph 1.2 does not assist, it asserting that “the entitlements” (to which the request for particulars referred) are to an adjustment of property as between husband and wife and the payment of periodic and/or lump sum spousal maintenance in the following terms :

   The units were (but for the Declaration of Trust) held by [the husband] pursuant to a trust for the benefit and advancement of himself, his wife and their children.  By dealing with the units as he purported to do by the Declaration of Trust, [the husband] purported to create an equitable interest in the units in breach of that trust and so as to hold all beneficial interest in the units for the Plaintiff.

Save that this is not a request for particulars, the First Defendant says that [the husband] held his units in the [Y Unit trust] for the benefit of himself, his wife and their children by reason of the marriage and contributions made from time to time during the marriage by the First defendant toward the assets and businesses of the Trust.  Further by reason of express declarations made by [the husband] to the First Defendant throughout the course of their marriage that the First Defendant and their children would receive and continue to receive and share in the benefits derived from the assets and income of the businesses carried on by the Trust.

1. Although there is no such material allegation in the defence itself, these particulars seem to assert that, save for the 2002 Declaration, the husband holds the units in the Y Unit Trust pursuant to a trust for the benefit and advancement of the husband, his wife and their children.  On its face, it is inconsistent with the wife’s claim (if it is her claim) that the husband remains the legal and beneficial owner of the Y Unit Trust units;  it pleads an unspecified discretionary trust, for beneficiaries which, on one construction, would include Mr Jess (jnr) as a child of the husband, followed by a claim for breach of that trust.  Then, having pleaded an unparticularised trust not previously alleged and its breach, it appears to plead another trust, created by reason of express declarations of the husband, of which no particulars are provided. 

1. It is a matter for the parties to make applications to the Supreme Court in respect of those proceedings.  Nevertheless, it is legitimate to consider the present state of pleadings, as it is those proceedings which the wife seeks to have transferred to this Court, and to restrain Mr Jess (jnr) from prosecuting in the Supreme Court. 

1. On the pleadings presently before it, one cannot imagine the trial in the Supreme Court taking very long.  The relevant pleadings in the defence are bare denials and it contains no legitimate challenge to the validity of the 2002 Declaration.  The Supreme Court (General Civil Procedure) Rules 2005 (Vic.) require a party to plead all material facts on which the party relies (RSC r.13.02).  A defendant is required to plead specifically any fact or matter which is alleged to make any claim of the opposite party not maintainable, might take the other party by surprise or raises questions of fact not arising out of the preceding pleading (RSC r.13.07).  Every pleading must contain the necessary particulars of any fact or matter pleaded;  if fraud or fraudulent intention are alleged, particulars must be provided (RSC r.13.10(3)).

1. Pleadings define the issues, they determine relevance and, thus, the admissibility of evidence, the scope of cross-examination and the content of submissions.  If fraud or fraudulent intention are not pleaded (and particularised), they are not in issue.

Mandatory Injunction

1. Although not couched expressly in these terms, the wife seeks a mandatory injunction pursuant to which Mr Jess (jnr) would be required to make an application in the Supreme Court pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic.), seeking the transfer of proceedings No….1 of 2007 to this Court.  It is not within Mr Jess (jnr’s) power, as the order sought would have it, to “do all such acts and things and sign all such documents as is necessary to transfer” the Supreme Court proceedings to this Court;  the decision whether to transfer would be that of the judicial officer before whom the application was heard in the Supreme Court.  The issue then is not whether such an application should be granted (which is not a matter for this Court) but whether Mr Jess (jnr) should be forced to make an application in the Supreme Court for transfer. 

1. It is the submission of the wife that the question of ownership of the Y Unit Trust units is essential to the determination of the asset pool in these proceedings, between the husband and the wife, and that this Court can determine the issue, pursuant to its accrued jurisdiction.  It was conceded by senior counsel for Mr Jess (jnr) that the claim could be heard within the accrued jurisdiction of this Court.  However, it was his submission that it could and should be determined in the proceedings already commenced in the Supreme Court, which are well advanced.  In due course, when determining the asset pool as between husband and wife, this Court would take account of the outcome, as determined in the Supreme Court. 

1. It is often said that a court of equity will not, as a rule, make a mandatory injunction if it cannot effectively supervise the obligation imposed;  see, for example, J.C. Williamson Ltd.  v. Lukey (1931) 45 CLR 282 at 298; H. Jones & Co. Pty. Ltd.  v. Talbot (1948) 180 CLR 63 at 66. However, it is now clear that questions of degree, rather than absolute restrictions upon the scope of curial relief, are involved; see Patrick Stevedores  v.  MUA (1998) 195 CLR 1, per Brennan CJ., McHugh, Gummow, Kirby and Hayne JJ., at 46-47, and cases cited. A person who is subject to a mandatory order attended by contempt sanctions ought to know with precision what is required, and the possibility of repeated applications for rulings on compliance and the carrying on of an activity over a more or less extended period of time should be discouraged : Patrick Stevedores  v.  MUA at 47, referring with approval to Co-operative Insurance Society Ltd.  v.  Argyll Stores (Holdings) Ltd. [1998] AC 1 at 13-14. The wife did not clearly particularise the terms of the injunction sought.

1. If Mr Jess (jnr) were to institute the application which the wife seeks to have him compelled to do, he could not properly be compelled to advance argument in support of the application.  If requested or directed by the judicial officer before whom the application in the Supreme Court was listed, Mr Jess (jnr) might advance arguments, referrable to jurisdiction, facts and legal principle, to support the case that the proceedings should not be transferred, and it would be improper for this Court to enjoin Mr Jess (jnr) from responding to such a judicial request or direction.

1. Further, as a matter of discretion, this Court would not make the orders sought if only because the wife (the applicant for the order) could bring the application herself.  She has standing, as a defendant in the Supreme Court proceedings, to seek its transfer;  in such an application for transfer, she could put any argument she was advised to be appropriate, including the arguments she has advanced in this Court.  In these circumstances, no relevant hardship will be caused to her if a mandatory injunction is not made by this Court;  her rights in the Supreme Court will not be affected. 

1. To turn briefly to the arguments relating to transfer (if an application were made) there is no doubt that the Supreme Court has jurisdiction to entertain the proceedings brought by Mr Jess (jnr).  An applicant for transfer of them to this Court would have to convince the Supreme Court that this is the appropriate forum in which the dispute should be determined, having regard to the provisions of s.5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic.).  As there were proceedings between the husband and wife in this Court when the Supreme Court proceedings were instituted, the proceedings could also have been instituted in this Court, but only in reliance on accrued jurisdiction.  That might be said to suggest that the Supreme Court is the more appropriate forum.  The matters for determination in the Supreme Court proceedings do not arise under, or involve questions as to the application or validity of, the Commonwealth law;  they are squarely within the jurisdiction of the Supreme Court.  That may also suggest that the Supreme Court is the appropriate forum. 

1. To succeed, the wife would need to rely on the interests of justice, as provided in s.5(1)(b)(ii)(C) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Vic.).  As noted by Brereton J. in the Supreme Court of New South Wales in Valceski  v.  Valceski (2007) 36 Fam LR 620 at para.69, in a statement conceded by all counsel as correctly stating the relevant principles, the question then would be, assuming the jurisdiction of the transferor court had been regularly invoked, whether it was in the interests of justice that the proceedings be heard and determined in the transferee court, for which purpose it is both necessary and sufficient that the transferee court be the more appropriate forum. After referring to BHP Billiton Ltd.  v.  Schultz (2004) 21 CLR 400, Brereton J. identified a number of considerations relevant to the identification of the more appropriate forum, including the cost and efficiency of proceedings in the respective jurisdictions and the “connecting factors” as described by Lord Goff in Spiliarda Maritime Corporation v Cansulex Ltd. [1987] AC 460 at 478, which include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction.

2. Brereton J. noted that Schultz made clear that :

   . . . the interests of justice concern those of both parties, and rather than the selection of the most advantageous, or least disadvantageous, forum for one of them, the “interests of justice” are to be judged by more objective factors, such as facilitate identification of the “natural forum”, in which objectively judged it might be expected that the dispute would fall to be resolved, with its concomitant juridical advantages and disadvantages for each party, whatever they may be. 

1. The Supreme Court proceedings relate to a discrete point, going only to the efficacy of the 2002 Declaration.  It is not put in these proceedings that Mr Jess (jnr) has contributed in any way to the acquisition, conservation or improvement of property of the parties (as was the case in Valceski).

1. Conversely, the extent of the husband’s interest in the Y Unit Trust (if any) is only one aspect of the proceedings in this Court, proceedings which are far from ready for trial.  The lack of particularity in respect of final relief does not extend only to the orders which the wife sought in relation to the 2002 Declaration.  In the amended application filed 14 September, 2007 she particularised neither final property nor final spousal maintenance orders, seeking to be excused from doing so until such time as the husband filed and served a form 13 financial statement and provided full and frank disclosure of all of his assets, liabilities and financial resources to the wife. 

1. In his response to the wife’s initiating application, which he filed on 2 February, 2007, the husband sought that the wife retain her interest in T Pty Ltd, L Pty Ltd and H Property Investments Pty. Ltd., as trustee for the H Property Trust.  Otherwise he sought to be excused from particularising his claim pending discovery and an investigative report of the parties’ assets and liabilities.  Given the lack of specificity in the wife’s initiating application, that is unsurprising.  The husband is yet to file an amended response to the wife’s amended application for final orders.

1. Among orders agreed to by counsel for the husband and the wife on 19 October, 2007 were orders requiring the wife to produce and serve a list of certain documents in her power, possession or control within fourteen days and give inspection of them to the husband within seven days of serving the list, an order providing for the parties to otherwise promptly comply with any request for disclosure and an order granting leave to issue further subpoenas by 14 February, 2008.  Expert valuations must be prepared.  The case in this Court is not close to being ready for trial. 

1. Balancing all factors, I do not find it appropriate to require Mr Jess (jnr) to make an application in the Supreme Court for the transfer of the proceedings in which he is the plaintiff.  The wife’s application will be dismissed.

Anti-suit Injunction

1. Having made that finding, the Court must consider the wife’s application for an anti-suit injunction.  There is no doubt that, in the appropriate circumstances, this Court has the power to make the anti-suit injunction which the wife sought.  As held by the Full Court of this Court in Lederer  &  Hunt (2007) 36 Fam LR 587 the principles which govern the grant by one Australian court of an anti-suit injunction in relation to proceedings pending in another Australian court, are the same, or substantially the same, as the principles which govern the grant of an anti-suit injunction by an Australian court directed to proceedings in a foreign court. The Full Court noted its agreement with a proposition advanced by counsel for the appellants, to the effect that, having regard to the observations of members of the New South Wales Court of Appeal in Beecham (Aust) Pty. Ltd.  v.  Roque Pty. Ltd. (1987) 11 NSW LR 1, at 3 and 6, it would be a very unusual step for one Australian court to restrain proceedings in another Australian court and that if it were done, considerations of comity are important.  In relation to that proposition, the Full Court drew attention to the decision of Nygh J. in Baba and Jarvinen (1980) FLC 90-882 where, having referred to an earlier decision of his own, and to decisions of the Full Court, his Honour said, at 75,574-5 :

   This does not, of course, dispose of the question of whether I should issue an injunction restraining the wife from proceeding with her summons in Equity.  In Esmore and Esmore (1979) 5 Fam LR 762; FLC 90-711 … I held that I had jurisdiction to do so, even though I did not doubt than that the jurisdiction in Equity had been validly invoked, if it was necessary to prevent the rights of a party under the Family Law Act from being defeated.

In Smith and Saywell (1980) 6 Fam LR 245; [1980] FLC 90-856, the jurisdiction of this Court to make an order restraining a party from proceeding in another court was sustained. This Court can only take such an extreme step when it is absolutely essential and I would respectfully agree with the statement of the Full Court in Tansell and Tansell at 11,483 that the Family Court ought to avoid making orders which in terms restrain a party from continuing with proceedings validly instituted in another court.  However, I read that statement not as implying that it shall never be done, but that it ought to be avoided, if possible. 

1. The principles which govern the grant of an anti-suit injunction, whether directed to proceedings in a foreign court or another Australian court, are set out in CSR Ltd.  v.  Cigna Insurance Australia Ltd. (1997) 189 CLR 345.

1. Having found that Mr Jess (jnr) should not be compelled to make an application seeking the transfer of the Supreme Court proceedings to this Court, it would be inappropriate to make any order enjoining him from prosecuting those proceedings in that Court.  The wife retains the right to bring proceedings herself under the Jurisdiction of Courts (Cross Vesting) Act 1987 seeking transfer and any consequential orders.  That is a matter for her.

INJUNCTION RESTRAINING MR JESS (JNR’S) DEALINGS WITH “THE [Y] GROUP”

1. The wife sought an interlocutory injunction against Mr Jess (jnr) personally, and in his capacity “as trustee, appointer or director or any entity in the [Y] Group” restraining him from dealing with any assets of the Y Group and from dealing with its profit or income, save in the ordinary course of business.  The form of the injunction sought was wide, including restraints on Mr Jess (jnr) attending any meeting without “proper written notice to the wife” setting out the business of the meeting, on extensions of borrowings and, in essence, dealing in any way with assets of the Group.  As I pointed out to senior counsel in the course of argument, an injunction made in the terms proposed would not allow the Y Unit Trust to sell a single one of its products.

1. The wife’s submissions in support of this injunctive relief were strong on suspicion (a word frankly used by senior counsel) and light on evidence.  Senior counsel referred to Mr Jess (jnr’s) position as CEO, to evidence (presumably relating to the 2002 Declaration) of Mr Jess (jnr) “owning” particular assets and to the wife’s belief that it is the husband who “calls the shots” in respect of the business operations. 

1. The court has wide powers to grant injunctions for the preservation of property, pursuant to s.114(3) and s.34(1).  It was not submitted by senior counsel for Mr Jess (jnr) that the court lacked power to make the injunction sought by the wife.  It was his submission that no evidence supported its making. 

1. In Waugh & Waugh (2000) FLC 93-052 the Full Court of this Court summarised the principles applicable to an application for interlocutory orders for the preservation of property pending final orders in property proceedings. The Full Court referred (at 87,810) to the trial judge’s failure to give consideration to :

   . . . the fundamental question whether there was any evidence of any intention by the husband to dispose of any assets pursuant to any scheme to defeat any judgment which the wife might obtain in the substantive proceedings. 

1. In Mullen  &  De Bry (2006) FLC 93-293 the Full Court held that the Full Court in Waugh did not intend to prescribe as a “fundamental” or “threshold” question whether a scheme to defeat judgment existed, to be answered in the affirmative on the balance of probabilities in every case before an order to preserve property could be made. The Full Court concluded, at 80,999 :

   46.Finally, we think it helpful to recognise that the essential power being exercised in this case is simply described in s 114(3).

   “A court . . . may grant an injunction . . . in any case in which it is just or convenient to do so . . .”

47.Ultimately, each case will involve an overall assessment of a number of factors to determine the just or convenient result.  Not all cases with the same identify of factors will necessarily produce the same result because of varying weight individually and comparatively. 

48.     We perceive that a real, though perhaps subtle, difference exists between, on the one hand, establishing on the balance of probabilities a risk or danger of a disposal of property intended to defeat an order and, on the other hand, proving to the civil standard and as an independent issue that a scheme to defeat an order exists. 

49.     In some cases, the possibility (based on some evidence) of an intention or scheme may, with other factors, be sufficient to establish the probability of an objective risk of disposal with intent to defeat an order.  (emphasis in original)

50.     It follows that we do not say that, in addressing the question of whether there is a risk of disposal of assets to defeat an order, it is unnecessary to enquire whether there is any evidence of an intention, plan or scheme to dispose of assets.  But in an enquiry into the risk of disposal, the question of intention or scheme is but one of a number of factors relevant to the objective risk of disposition to defeat an order. 

51.     Moreover, while ultimately a particular factor may overwhelm others, it is generally unwise to commence with a rigid focus on finding, to a particular standard of proof, one or more of a number of factors relevant only at a discretionary level and subsidiary to the ultimate question.

52.     In conclusion, we do not think that Waugh, properly understood, lays down any incorrect principles.

1. In this case there is no evidence the business of the Y Unit Trust is in financial trouble or that the directors of the Y Corporation propose any course other than to continue to trade.  There is no evidence to suggest Mr Jess (jnr) intends or is likely to embark (as a director or as CEO) on a course of action likely (whether intentionally or not) to divest Y Corporation, or any other company in the group, of its assets or reduce its value.  There is no evidence Y Corporation or any other company in the group has incurred liabilities or disposed of assets other than in the course of business.

1. The wife’s evidence is of fears and suspicions.  She fears the asset pool will be reduced or assets will be dissipated or disbursed and thus not be available to meet an order of this Court.  She suspects the husband’s bona fides and those of Mr Jess and suspects them of conspiring against her.

1. It may be the case (as suggested in Mullen  &  De Bry, at 80,997) that remarks of the Full Court in Waugh imply a more liberal approach in applications for preservation of property in the Family Court than at general law, rather than a more restrictive one.  However, it has never been the law that an injunction should be granted on the basis of suspicion alone.  There must be some evidence from which the court can, at least, infer a real risk that assets will be disposed of and I cannot find evidence of that in the material before me. 

1. In conclusion, it should be noted, that no undertaking as to damages was offered by the wife.  Without such undertaking (possibly, secured) it would be unthinkable that such an injunction would be granted.

JOINDER OF MR JESS (JNR)

1. Having dismissed the applications for injunction directed to Mr Jess (jnr), and in the absence of any evidence or particularised claim against him in these proceedings, I find it inappropriate to join him as a party to these proceedings at this time.

JOINDER OF Y PTY. LTD. AND Y CORPORATION AS RESPONDENTS

1. Few submissions went specifically to this aspect of the wife’s application. The wife’s case seemed to be that as facilitative orders might need to be sought against those companies in due course, they should be joined now; it is hard to see any other basis (on the material advanced) on which the order sought in paragraph 8 of the amended application for final orders filed 14 September, 2007 could be made. In these circumstances, and having regard to the Court’s obligation (spelt out in Part 1.2 of the Family Law Rules 2004) to ensure that cases are resolved in a just and timely manner, and at a cost to the parties and the court that is reasonable in the circumstances, I can see no reason to impose on those companies, at this time, the costs which would necessarily follow joinder. I cannot find that joining those companies would result in a more speedy disposition of the case. In those circumstances, the application to join them will be dismissed.

EVIDENCE OF EXPERTS

1. In his response filed on 24 August, 2007 (in response to the wife’s amended application for interim orders filed 27 July, 2007) the husband sought the appointment of a number of single expert valuers and that both parties be permitted, pursuant to Rule 15.51, to tender a report or adduce evidence at trial from named adversarial expert valuers as the value (if any) of the husband and the parties in the sporting interests and the Y Unit Trust, provided that such report be served on each party and filed with the court not later than 15 February, 2008. The application sought that the wife be permitted to rely on evidence of Mr. O (who affirmed an affidavit on 3 August, 2007, which was relied on in proceedings before me on 7 August, 2007) and that the husband be permitted to rely on evidence of Mr. I, of P Accountants.

1. In the course of submissions the court was advised that the husband and wife had reached agreement on the identity of a number of single expert valuers and, in due course, a minute, signed by the parties’ respective solicitors, was provided.  The minute includes details of the terms of the various appointments and payment of the single expert fees.  No agreement was reached on the question of evidence from adversarial expert valuers. 

1. Division 15.5.3 of the Family Law Rules 2004 relates to applications for permission to tender a report and adduce evidence from an expert witness, other than a single expert witness. In support of his application the husband relied upon the affidavit of Mr. Carew, sworn 24 August, 2007; Mr. Carew’s affidavit complies with the requirements of Rule 15.52(2). The wife relied on the affidavit of Mr. Gregory, sworn 13 September, 2007. Each referred to aspects of other evidence adduced in the proceedings.

1. At the hearing before me on 7 August, 2007 I granted the wife leave to rely on an affidavit affirmed by an adversarial expert, Mr. O, which had been filed on 3 August, 2007.  At that time, senior counsel for the wife argued that no leave was necessary, as Mr. O’s evidence went not to a valuation issue but to the availability of funds to meet orders then sought against the husband.  I did not accept that submission, the rules in relation to expert evidence not being limited to evidence of valuations.

1. In the summary of argument filed by the wife on 17 October, 2007 she listed the affidavit of Mr. O as a document relied on by her in these proceedings.  Senior counsel for the wife adverted, in the course of his submissions, to figures advanced by Mr. O, but later said he did not rely on the affidavit in these proceedings.  Whatever the wife’s intentions in that respect, the husband’s written submission made it clear that he relied on the affidavit of Mr. O.

1. Mr. O’s task was to make an assessment as to whether the sum of $700,000 would be available from the Y Group to meet an order of this Court (the wife seeking that sum at that time) and in the course of that assessment he undertook some analysis of 26 entities in the Group, various trust entitlements, loan accounts and available assets (including personal assets), and amounts owed by business entities to non-business entities.  No submission was made by the wife that, if the husband were successful in his application for the appointment of adversarial experts, anyone other than Mr. O should be appointed to prepare a report and adduce evidence on her behalf.  If this were an issue (for example, there was no evidence of Mr. O’s continuing availability) an order could provide for the appointment of Mr. O or such other expert as the solicitors for the wife advised within a short period. 

1. The purpose of Part 15.5 of the Rules (which relate to expert evidence) is set out in rule 15.42.  The rules are designed to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;  that evidence is restricted to that which is necessary to resolve or determine a case;  to ensure, if practicable and without compromising the interests of justice, that expert evidence is given on an issue by a single expert witness;  and to avoid unnecessary costs arising from the appointment of more than one expert witness.  The last purpose (contained in rule 15.42(e)) is to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.  When considering whether to permit a party to do so the court may take into account the matters set out in rule 15.52(3), the first of which is the purpose of Part 15.5 of the Rules.

1. On behalf of the wife it was submitted that a single expert witness should be appointed to value the sporting and business interests at this time and that applications for the appointment of adversarial experts could be made at a later time, if necessary.  Given the course of this litigation to date, it is very likely that would occur.  If it did, it would result in additional expense and additional delay. 

1. The evidence supports a finding that the parties have struggled to agree on the appointment of single expert witnesses and instructions for them.  As that issue resolved on the day of the hearing, there is little point in attributing responsibility for that. 

1. Given the complexity of the issues, the nature of the litigation to date, the probability that appointments of adversarial experts now will shorten rather than lengthen the litigation, and the difficulty the parties have experienced in instructing single experts on far less complicated issues, I am satisfied an order should be made at this time, granting each of the parties permission to tender a report and adduce evidence from an expert witness in relation to the valuation of the sporting interests and the business interests. 

1. The material relied on by the husband referred, several times, to valuations of the parties’ interests “(if any)” in the various entities and businesses contained within the sporting and business interests.  Senior counsel for the husband made it clear that the valuation he sought included a valuation of the Y Unit Trust.  The issue of the husband’s interest in the Y Unit Trust is a separate one.  He may, as Mr Jess (jnr) asserts, have no beneficial interests in it.  If Mr Jess (jnr) is unsuccessful in his claim, the husband has an interest in 95% of the Y Unit Trust and, depending on the outcome of the Supreme Court litigation brought by the executor of Mr. X, potentially 100%.

1. The delay in delivering this judgment has made it impracticable for these valuations to be filed by 15 February, 2008.  Orders will provide a timeframe to allow the valuations to be undertaken, and reports prepared. 

DISCLOSURE OF MATERIAL OBTAINED ON SUBPOENA IN THIS COURT, OR FROM THE WIFE PURSUANT TO ORDERS OF THIS COURT, FOR THE PURPOSES OF PROCEEDINGS No. …1 OF 2006 IN THE SUPREME COURT 

1. The parties also reached agreement on this issue, tendering a minute of an order which would allow the husband to disclose material obtained on subpoena or from the wife pursuant to orders of this court for the purposes of the proceedings brought by L Pty Ltd and T Pty Ltd in the Supreme Court.  I will make orders in those terms. 

JEWELLERY

1. The wife seeks an order that jewellery presently held by the husband be forthwith returned to her in specie and she be permitted to use and enjoy it as she sees fit.  In earlier proceedings, it was submitted that the return of the jewellery would allow its sale and the proceeds to be used to fund the litigation, obligations under the franchise agreements or other commitments.  In this hearing, it was submitted that the wife sought the return of the jewellery so she could wear it, and enjoy it. 

1. Before me (as set out in paragraph 26 of his written submissions) the husband sought an order in these terms :

   That until further order the wife forthwith make available to Mr. [J] the single expert jointly appointed by the parties, all jewellery in her possession, power or control for the purposes of such valuation and upon completion of valuation by Mr. [J] the wife secure the jewellery (save such items as may be agreed in writing between the husband and the wife) with [G Secure Storage] in the joint names of the parties’ solicitors. 

1. A good deal of evidence went to the jewellery, and much of it is confusing and inconsistent.  In the husband’s form 13 filed 2 February, 2007 he asserted it to be worth $15 million;  in the wife’s form 13 filed 18 December, 2006 she asserted a figure of $3 million.  Each has advanced other figures since that time.  It is alleged that in November 2004, prior to separation, the husband took certain items of jewellery;  the wife complains these are not all accounted for.  Significant additional items were bought by the wife after that date, some of which she deposes were gifted to family or friends;  the husband complains she has failed to discover documents relating to these alleged gifts and to provide all relevant jewellery to the valuer.  Each party accuses the other of being unco-operative and unreasonable.  Some items were seized by police on 20 April, 2007, in the course of a raid on the wife’s home while the parties were at court, which must have raised the temperature of the dispute. 

1. On 7 February, 2007, it was ordered, by consent, that a single expert be appointed to value jewellery.  Mr. J was appointed.  On 28 April, 2007 Young J. make a number of orders, one of which required the parties to forthwith provide a list of the jewellery in their respective possessions and make it available for inspection and valuation, as required by the single expert.  Paragraph 9 of the orders made that day provides :

   That upon completion of the valuation the husband and the wife forthwith deliver all the jewellery in their respective possession to their solicitors and thereafter the jewellery be held in safe-keeping as may be agreed by the said solicitors until further order save that the wife be entitled to the use of items of jewellery as may be requested by the wife from time to time, such jewellery to be returned by the wife for safe-keeping as soon as practicable after the occasion or event for which it has been used.

1. Some requests for use of the jewellery have been made by the wife and accommodated.  Further, five pieces of jewellery have been returned to the wife for her daily use and the husband does not oppose the wife retaining those items. 

1. It appears that Mr. J has been instructed to value the jewellery which is with police and one other piece of jewellery, which has been in contention. 

1. The husband provided a list of jewellery in his possession or control on 11 May, 2007;  the items total $310,188.

1. Exhibit LJ-4 to the wife’s affidavit filed 20 July, 2007 is the list of jewellery the wife provided pursuant to the orders of Young J.  It is divided into seven categories.  These are items declared in the husband’s possession as at 11 May, 2007, items seized by police on 20 April, 2007, items returned by the husband after November 2004 and allegedly left in the safe at the R property, items purchased after November 2004 and also allegedly left in the safe at the R property, items still in the wife’s possession, items gifted to family or purchased on behalf of good friends, and items missing from the collection.  The value attributed by the wife to the totality of identified items is $4,959,211.  Of this, $316,231 relates to items noted as gifted to family or purchased on behalf of good friends and $285,350 to items still in the wife’s possession.  On this account, items valued (by the wife) at $3,034,915 are missing.

1. First, nothing persuades me that an order should be made at this time for the return of any further jewellery to the wife.  There is no alleged financial imperative and no risk the jewellery which has been produced will be lost or disbursed.  What the wife seeks is, in effect, another partial property settlement. 

1. The exercise of the power to make a partial property order is an exercise of the s.79 power and must be done within the parameters of that section.  It should be confined to cases where the circumstances are compelling and exercised conservatively;  see Harris  and  Harris (1993) FLC 92-378. I do not find it appropriate to exercise the power to enable a party to litigation to wear jewellery.

1. Second, nothing persuades me that I should make an order as sought by the husband.  Orders of Young J. provide for the provision of a list of jewellery, the making of jewellery available for inspection and valuation and what is to be done with it thereafter.  The solicitors have placed jewellery at G Secure Storage, pursuant to that order. 

1. The court cannot conjure evidence from thin air and it is impossible at this stage to make findings about the existence or whereabouts of specific pieces of jewellery which are in dispute.  I will order that if either party has in his or her possession or control items of jewellery not included in lists provided pursuant to the order of Young J., he or she disclose the existence of that jewellery.  Similarly, if any item of jewellery in a party’s possession or control has not been valued, it is to be provided to the valuer.  The wife will be required to discover and make available for inspection all documents referrable to items of jewellery which she alleges were bought for family members and friends and to specify each recipient, if that has not been done. 

JUDICIAL SETTLEMENT CONFERENCE

1. A number of submissions made on behalf of the husband and Mr Jess (jnr) were based on the appropriateness of certain events happening before or after a judicial settlement conference.  The husband sought that a judicial settlement conference be fixed in March 2008. 

1. There is no formal statutory base for a judicial settlement conference which (in this Court) refers to a mediation conducted by a judge, usually in a case which is complex and likely to take significant court time if it does not resolve.  A judicial settlement conference will only be conducted if it is sought by all parties to the litigation, all parties are legally represented and the court determines it to be appropriate.  The husband’s application stumbles at the first hurdle, as the wife does not consent to a judicial settlement conference.  Thus, submissions referable to such an event are not useful.

COSTS

1. Each of the husband and/or wife, Mr Jess (jnr), Y Corporation and Y Pty. Ltd. sought costs.  Few submissions went to the issue.  While there is sufficient material before the Court for it to determine these outstanding applications, the parties, and those the wife sought to join as parties, should be given an opportunity to make any further submissions and I will fix a timetable for that.  If submissions are not received, the Court will determine issues of costs on the basis :

   (a)      the wife seeks costs against the husband;

   (b)      the husband seeks costs against the wife; 

   (c)Mr Jess (jnr), Y Corporation and Y Pty. Ltd. seek costs against the wife. 

I certify that the preceding
108 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2008.

…………………………………………
Associate.