Kelly and Lomax (No 2)

[2013] FamCA 827

FAMILY COURT OF AUSTRALIA

KELLY & LOMAX (NO. 2) [2013] FamCA 827

FAMILY LAW – PROPERTY – Interim order for sale of former matrimonial home – Where husband has failed to show inability to service mortgage

FAMILY LAW – PROPERTY – Interim spouse maintenance – Where parties separated in 2004 – Where wife employed until 2012

FAMILY LAW – PROPERTY – Costs order – Where no ability of husband to fund lump sum order – Dollar-for-dollar order made

FAMILY LAW – PROPERTY – Valuations – Where wife seeks husband pay cost of valuing 16 entities – Where no evidence of husband’s capacity to fund valuations

Family Law Act 1975 (Cth)

APPLICANT: Ms Kelly

RESPONDENT: Mr Lomax

FILE NUMBER: BRC 6009 of 2010

DATE DELIVERED: 25 October 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 11, 12, 13 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baston

COUNSEL FOR THE RESPONDENT: Mr Kirk SC

SOLICITORS FOR THE RESPONDENT: Cooper Grace Ward

Orders

1. That the First Respondent cause to be paid into the trust account of the solicitor nominated by the Applicant to be applied as and towards her legal costs on or before 1 November 2013 and the first day of each month thereafter such amount as represents those legal professional costs and outlays incurred by him with solicitors and counsel in these proceedings in the preceding month together with a written statement identifying the basis upon which such amount was calculated. 

2. That any such amount paid to the wife for litigation funding be used by her for the payment of her legal and expert fees and expenses in respect of these proceedings only and further be taken into account and characterised by the trial judge at the final determination of these proceedings.

3. That within 28 days the First Respondent nominate a registered residential real property valuer for the purposes of valuing the real property situate at B Street, Suburb C and M Street, Suburb N in the State of Queensland and that such valuer be appointed as a single court expert for the purposes of undertaking a valuation of the said property and further that such valuer provide a report as to the value of such properties on or before 31 November 2013.

4. That otherwise:

   (a)paragraphs 2, 7, and 9 of the wife’s Third Amended Application in a Case filed 4 March 2013; and

   (b)paragraphs 2, 3, 4, 5, 6, 7 and 8 of the interim orders sought by the First Respondent in his Amended Response to Initiating Application filed 13 November 2012;

   be dismissed.

5. That all extant interim applications be listed before a Registrar for directions.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kelly & Lomax (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER:

Ms Kelly

Applicant

And

Mr Lomax

Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

Background

1. On 11 December 2012, Kent J ordered that the hearing of a number of interim applications be set down before me for three days commencing 11 March 2013.  On 13 March I reserved my decision in relation to those matters.  By further Application in a Case filed 18 April 2013, the wife sought leave to re-open the evidence in that hearing to tender documents produced under subpoena by the National Australia Bank Ltd (“NAB”) which leave was granted by me in a decision, the reasons for which were published on 27 June 2013.  However prior to delivering that decision, the wife had filed a further Application in a Case seeking further leave to re-open the evidence to rely upon material obtained during the course of conversations with the respondent husband on 1 and 2 May 2013.  On 16 July 2013 I heard that application, and for reasons delivered on 26 July, acceded to it.

2. On 26 July consequent upon the wife’s second application succeeding, a timetable was ordered for the delivery of further written submissions as follows:

   1.The Applicant have leave to re-open her case in support of her Third Amended Application in a Case filed 4 March 2013, and in opposing the Respondent’s interim orders sought in his Amended Response to Initiating Application filed 13 November 2012, (“the reserved applications”) by leading evidence of that part of a conversation on 2 May 2013 between herself and the Respondent as related to [D Pty Ltd], [L Pty Ltd] and their respective abilities to obtain professional indemnity insurance.

   2. On or before 10:00am on 5 August 2013, the Applicant make file and serve any additional written submissions in relation to the reserved applications arising out of the materials within the scope of the leave to re-open given by Order made 27 June 2013 and given by Order 1 hereof.

   3. On or before 10:00am on 12 August 2013, the Respondent make file and serve any submissions in response to any submissions made by the Applicant pursuant to Order 2 hereof.

   4. On or before 10:00am on 19 August 2013, the Applicant make file and serve any submissions in reply to any submissions made by the Respondent pursuant to Order 3 hereof.

   5. Otherwise the decision of the Court in relation to the reserved applications remains reserved.

3. It will be appreciated that the orders restricted the applicant’s additional written submissions to those “arising out of the materials within the scope of the leave to re-open” given both on 27 June and 26 July.  Moreover, those submissions were required to be filed before 10:00am on 5 August.  Not only were they not filed by that date, but when they were eventually filed on 27 August, they included many matters which did not arise out of the additional material within the scope of the leave to re-open.  As but one instance, they included new submissions that the husband’s application for an order for sale of the former matrimonial home was an abuse of process.  That argument had not been pressed in the March hearing, and it could not possibly be argued that it arose out of either the NAB materials, or the conversation of 2 May.  Worse, the submissions proceeded to seek to introduce and make reference to material that had not previously been mentioned in submissions, and was not properly before me (for instance detailed aspects of the reasons for decision of Federal Magistrate Demack in 2011, and Mr Lomax’s submissions made in the course of that hearing, both of which being expressly not read into evidence by the wife).  As an indication of the extent of the further submissions, I should say that the wife’s written submissions filed 25 March ran to 33 pages; those filed on 27 August ran to 68 pages.

4. By his submissions filed on 28 August 2013, Mr Lomax took strong exception to the ambit to the additional submissions.  He correctly submitted that much of them in no way related to matters arising out of the additional material which the wife was given leave to lead.  He submitted that the submissions should be rejected in their entirety, or alternatively, that I should constrain my perusal of the submissions to only those aspects that related to the material the subject of leave.  I think that the latter course is the correct approach.  There was not a general liberty to make further submissions, and no application to make submissions beyond those within the scope of the 26 July orders has been made.  Mr Lomax has constrained his response to the matters which were properly within the scope of leave, and therefore has not responded to the matters outside the scope of the new material.

Applications for determination

1. Before me there remain a number of competing applications for determination.  The first is the wife’s application for spouse maintenance in the sum of $3,000.00 per month.[1]  The second is the wife’s application that the respondent pay into a solicitor’s trust account $200,000.00 towards her legal costs, or alternatively an amount equivalent to those expended by the respondent husband and/or Ms Lomax from 18 December 2012.[2]  The third application made by the wife is for the appointment of valuers in respect of certain properties and corporations, with the respondent husband being responsible for all costs and expenses associated with the preparation of the valuations.

   [1] This application was made by para.2 of the wife’s Third Amended Application in a Case filed 4 March 2013, as amended in the course of submissions by counsel for the wife.

   [2] This application was made by para.7 of the wife’s Third Amended Application in a Case filed 4 march 2013.

2. There are also two applications (in the alternative) made by the husband.  The primary order he sought was that the former matrimonial home at B Street, Suburb C (“B Street”) be sold, and from the proceeds of sale the National Australia Bank (“NAB”) mortgage secured against the property be discharged, with the remaining funds being placed in a trust account pending final orders.  In the alternative the husband sought an order that the wife vacate the property and that it be rented out, with the rental income being used to pay expenses associated with the property, and any surplus being held in trust until trial.[3]

   [3] These were in paras.2 to 8 of the interim orders sought by way of Amended Response to Initiating Application filed 13 November 2012.

3. I propose to deal with the husband’s application for the sale or vacation of the former matrimonial home before I deal with the wife’s spouse maintenance application, as the outcome of the former might potentially impact upon that latter application.

THE SALE OF B STREET

1. On 28 March 2011 Demack FM made orders in this matter, relevantly as follows:-

   BY CONSENT THE COURT ORDERS UNTIL FURTHER ORDER AND UNTIL COMPLETION OF MEDIATION WITHOUT ADMISSION BY THE HUSBAND OF HIS CAPACITY TO PAY ANY AMOUNT:

   1.That the husband continue to pay the mortgage payment he is currently paying, rates and building insurance in respect of the former matrimonial home situated at [B Street, Suburb C].

2. It will be appreciated that it is not clear precisely when that order was anticipated to conclude.  At all events, the husband has since that order, either himself paid the mortgage, or procured Ms Lomax or companies she controls to do so.

3. In his affidavit of 13 November 2012 the husband said as follows:-

   15. The applicant wife has been living in the former matrimonial home since separation in 2004.

   16. During this time she has made no contribution to the mortgage payments, rates and utilities.

   17. Since the time of separation the mortgage of the former matrimonial home has sat at around $810,000.00 with an interest rate of around 7.75% - interest payments being over $60,000.00 per annum.

   18. I have made all payments in relation to this mortgage from funds sources from a home equity loan secured by my principal place of residence ([M] Street) and my elderly parents’ home.

   19. This equity account is now fully drawn and there are no funds to pay the mortgage on the former matrimonial home.

   20. The rates and utilities are over eighteen months in arrears and Brisbane City Council and urban utilities are threatening legal action.

   21. It is my understanding the applicant wife has not paid the house insurance since I ceased paying it in 2011, therefore the house is not insured in the event of fire or damage.

   22. The applicant wife took out a second mortgage on the property without my knowledge or consent to fund her legal costs.

   23. It is my understanding that both item 21 and item 22 are breach of the terms of the first mortgage.

4. B Street is owned by the husband and wife as tenants in common, with the husband owning ninety nine shares and the applicant owning one share.[4]

   [4] See para.37 husband’s affidavit filed 13 November 2012.

5. On 13 March 2012 the NAB advised the husband that is was not willing to capitalise interest on the loans secured against B Street, nor approve increased finance against the property as security to capitalise future interest.  It appears as though there were then arrears outstanding on the loans which the bank required to be cleared, and ongoing interest obligations met.  Apparently this was not done and on Tuesday 20 March 2012 senior legal counsel for the NAB advised the husband that enforcement action was to be immediately commenced to recover the amounts owed.

6. It appears as though these defaults also triggered enforcement against the husband’s current wife, Ms Lomax, and other related corporate entities in relation to borrowings which they had with the NAB as well.  The bank asserted that default under the B Street home loan accounts triggered a default under the complete portfolio facility pursuant to cross-default provisions contained in the Portfolio Package General Terms and Conditions.

7. By letter dated 3 October 2012, solicitors for the relevant borrowers requested confirmation that if the portfolio facility was paid in full, then the parties to the portfolio facility (save the husband) would be discharged from, and have no exposure to, any liability in respect to the loans secured against B Street.

8. As at 13 November 2012, in his affidavit of that date, at para.178 the husband said:-

   At this point in time the only reason the bank has not started the process of foreclosing on the loan is because the companies associated with my current wife have chosen to continue payment of the interest on the [B] Street loans whilst issues relating to claims by the NAB of cross guarantees are resolved.

9. At paras.180 to 182 of that affidavit the husband deposed to the fact that the NAB confirmed that there are no other facilities upon which cross-defaults would accrue, and “on the basis of this advice companies controlled by my wife cannot continue to pay the [B] Street mortgages as there is no commercial benefit attributable to those entities by doing so.”  On that basis the husband, as at December, predicted that the foreclosure of the loan on B Street was then imminent.

10. It also appears from exhibit 28 to that affidavit that proceedings have been commenced against the husband and the wife for arrears of rates on B Street, and there is a water and sewage account outstanding which exceeds $1,800.00.

11. The husband relies upon observations made by Demack FM during proceedings before her Honour on 15 August 2011 during which she said:

    Well, the wife has heard me say, and I hope she has heard me clearly, that in the event that the house needs to be sold you may as well put it on the market now.  I am not at all convinced, madam, that you’ve got the capacity to keep this house so you will need to turn your mind to that seriously because if it gets to a point where at final hearing I have to make an order that the house is sold, then the adjustments which will be made may well be adjustments which then move in favour of the husband because he asked for the sale of the house now.  So if you delay something which is inevitable you can expect to have that extra money coming out of your portion of the adjustment at the end of the day.  So think about it seriously.  If you can’t afford it face reality now.

12. It appears that as at December 2012, the annual costs of servicing all the loans secured against B Street are in the order of $60,000.00, or approximately $5,000.00 per month.  Utilities appear to be about $3,400.00 per year.

13. None of this appears to be in contest by the wife; rather she says at para.144 of her affidavit filed 10 March 2013:

    If I am ordered to vacate the [B] Street property my three children and myself would have nowhere else to live.  I am not currently working and have no way to pay for the living expenses of my family.

14. The proposal of the husband is that from the proceeds of sale of the property, after the discharge of the mortgages to NAB and payment of 1per cent of the proceeds to Company V (a litigation funder which loaned in excess of $300,000.00 to the wife secured by second mortgage against her 1per cent interest) the wife ought receive $20,000.00, being a sum which it is said by the husband to be sufficient to provide her and those of the parties’ children who reside with her with accommodation, and give her sufficient funds to pay for representation to get her back to court to sort out the balance of the issues remaining in dispute.

15. It is for the husband to persuade me that the order which he seeks ought be made.  The reason which he advances to support his application is that neither he can, nor companies associated with Ms Lomax will, continue to service the mortgage over B Street, in consequence of which it inevitably will be sold by the NAB.  It appears as though he seeks to forestall NAB exercising its power of sale, by effecting a sale pursuant to Court Order.  Although it is not expressly stated in the evidence, it appears from his counsel’s submissions that it is likely thought by Mr Lomax that a sale by the owners is likely to achieve a better outcome financially for the parties than a mortgagee sale.

16. Central to the husband’s case is that he has neither assets, income or financial resources from which the mortgage could continue to be serviced.  It is therefore necessary to review the material filed by him upon which he asks that conclusion to be made.

17. In his financial statement filed 1 March 2013, Mr Lomax disclosed that the total value of property owned by him was $1,761,900.00, principally comprising a 50 per cent interest in his present residence at M Street, which 50 per cent interest was said to be worth $1.1million, and his 50 per cent interest in B Street, which interest is said to be worth $650,000.00.  However against this he was said to have total liabilities of $2,532,000.00 wholly comprising his liabilities under several mortgages.  Particularly he claimed that he was 50 per cent liable for a mortgage of $1,500,000.00 secured against M Street (ie $750,000.00) and 100 per cent liable for a mortgage over that property to the extent of $1,377,000.00.  He further asserted that he was liable to the extent of 50 per cent of the $810,000.00 mortgage secured against B Street, hence having a liability in respect of it in the sum of $405,000.00.

18. As to income, his financial statement disclosed that his before tax weekly salary was $650.00 per week or $33,800.00 per annum.  In the notations to that document, under the heading “concise explanation of why my income is so low” he said “being self-employed, my salary is limited by free cash available within [I Pty Ltd].  With a number of equipment leases still being serviced, and the impact of the GFC reducing the income from these assets, there are limited sums to pay a salary.”

19. Although in that financial statement Mr Lomax indicated that the value of his financial resources was zero dollars, that document also disclosed that Ms Lomax received an average weekly gross income of $3,000.00 (or $156,000.00 per annum) and further, that $2,500.00 of that income was paid by her for his benefit for “household expenses / school fees / other expenses.”  Further, it was said that there was a further $4,000.00 per week expended for his benefit by “[AA Lomax] / [CC Allen] / [BB Lomax]” for “mortgages.”  Some clarification of this was contained in the entries relating to Mr Lomax’s average weekly expenses, which were said to total $2,045.00 per week.  There is a notation in relation to that item as follows:

    The expenses listed on the table in part N are the approximate weekly expenses incurred by my family.  Currently 100% of the expenses are covered by my wife, [Ms Lomax] as my entire salary goes towards the [B] Street mortgage.

    I do not have the financial means to continue to pay the mortgage on [B] Street nor meet any other debts or costs requested by my former wife, [Ms Kelly].

20. As to that, item 23 disclosed that he expended in relation to the B Street mortgage $561.00 per week, or about $2,431.00 per month.  How the mortgage repayments were being otherwise then met was not explored by counsel for the wife.  That they were then being met appears likely from an entry in the NAB documents apparently made by an officer, Mr E, on 1 March 2013 as follows:

    …

    ·As already stated, account conduct is satisfactory with the exception of the two flexiplus mortgages and home loan which relate to the [B] Street property;

    ·These facilities are irregular every month due to interest and repayment, but customer corrects the excess when required.

    …

1. Some further relevant information is contained in the affidavits filed by the husband.  In para.103 of his affidavit filed 25 May 2012, he there deposed that:

   My new wife [Ms Lomax] earns a salary of $80,000.00 per year and is supporting our family’s costs.  [Ms Lomax] works part time as she also cares for our young family…

2. Later in that affidavit under heading “ current activities of the husband” he deposed as follows:

   165. I am presently CEO of [K] Pty Ltd, CEO of [D] Pty Ltd, Managing Director of [I] Pty Ltd and consultant to [Z] Pty Ltd.

   166. My role as CEO of [K] Pty Ltd took up most of my effort from August 2010 through to the first quarter 2011 as a result of the legal case against the company and the associated defence of the company against a $6m claim.

   167. At present my role with [K Pty Ltd] only takes up approximately 10% of my work effort – this time is solely aimed at trying to recover costs from either the [Country J] company or from the insurers of [K Pty Ltd].

   168. My role as Managing Director of [I] Pty Ltd takes up around 25% of my effort at present.

   169. My rose as Consultant to [D] Pty ltd and [Z] Pty Ltd takes up around 50% of my effort at present.

   170. My role as CEO of [D] Pty Ltd takes up approximately 15% of my effort at present.  The focus of this work effort is to execute the strategy developed by the shareholders of [D] Pty Ltd and attempt to build the company.

3. In his affidavit of 13 November 2012 at para.178, Mr Lomax said at paras.180 to 182 as follows:

   180. This current advice has taken over 4 months to get from the NAB, however in essence it confirms that the bank does not have any cross defaults against companies controlled by my wife and that the various equipment loans held by companies associated with me will not default in the event the [B] Street loans default.

   181. On the basis of this advice companies controlled by my wife cannot continue to pay the [B] Street mortgage as there is no commercial benefit attributable to those entities by doing so.

   182. In the absence of me having any funds to continue to pay the mortgage, the applicant wife having no apparent means to pay the mortgage on the house and the NAB having previously advised of their intention to commence default proceedings, the foreclosure of the loan on the house is now imminent.

4. It can therefore be seen that on the one hand, in November 2012, Mr Lomax appeared to be asserting that companies controlled by his wife had been paying the B Street mortgage, and were no longer prepared to do so, but on the other hand in his financial statement of 1 March 2013, deposed that in fact he was, at least in part, meeting the B Street mortgage, and further, that Ms Lomax was then devoting $2,500.00 per week to the payment of expenses associated with him, and that a further $4,000.00 per week was being spent by others for payment of mortgages. The conflict between the 13 November 2012 affidavit evidence and the assertions contained in the husband’s financial statement of 1 March 2013 are unexplained.  Moreover the disparity between the wife’s income of $80,000.00 per annum for part-time work in 2012, compared with $156,000.00 in March 2013, was not explained either.  Of course one explanation might be that Ms Lomax continues in receipt of a part-time salary, but also receives dividends or other distributions from companies which makes up the difference, however the evidence does not permit anything more than speculation.

5. The onus is upon the husband to satisfy me that there is sufficient reason to order the sale of the former matrimonial home.  To the extent that he has sought to persuade me to make a finding of fact that he cannot either himself pay the mortgage, or cannot procure either Ms Lomax or companies associated with her to continue to service the mortgage to trial, he has failed.  Particularly:

   ·Far from suggesting that he is unable to service the B Street mortgage, his financial statement of 1 March 2013 appears to suggest that he is at least partly doing so, and the NAB entry for 1 March 2013 suggests that the B Street mortgage was then substantially in order;

   ·Although he has asserted that in the past companies associated with Ms Lomax have been servicing the mortgage, and thereafter refused to do so, in fact his position as at 1 March 2013 would suggest that he was at least partly servicing the mortgage, or alternatively persons other than Ms Lomax were doing so;

   ·In any event it appears as though Ms Lomax is prepared to make available to the husband the sum of $2,500.00 per week or approximately $10,833.00 per month, to meet his expenses.  The first point to note is that the financial statement discloses expenditure by the husband only of $2,045.00 per week.  The second point to note is that that expenditure appears to include Ms Lomax.  The third point to note is that amongst the expenditures claimed are $150.00 per week for clothing and shoes, $250.00 per week for child minding,[5] entertainment and hobbies expenses of $40.00 per week, holidays of $100.00 per week, and hairdressing and toiletries of $100.00 per week.  It is not suggested that Ms Lomax will not continue to make those funds available, or that the funds that she makes available will be less than $2,500.00 per week in the future.  Against that background, I am unpersuaded that either the unaccounted $455.00 per week derived from Ms Lomax, or some further component of the funds she makes available, could not be used to service the B Street mortgage.

   ·In fact, despite his assertions of imminent foreclosure by the NAB since 2012, as at 1 March 2013 the bank seemed quite happy with the situation as regards the loans secured by the mortgage over B Street.

   [5]In this respect it will be remembered that in his affidavit of 25 May 2012, the husband said that Ms Lomax only works part time because she “cares for our young family”.

6. Even if I had been persuaded that there was an inability on the part of the husband to meet, or cause to be met, the continuing obligations on the B Street mortgage, there are three other reasons why I would nonetheless decline to make the orders sought by him.  Firstly, central to the husband’s case for sale is that Company V can be restricted to 1 per cent of the gross proceeds of sale, and can be compelled to discharge its mortgage upon tender of that sum.  In his written submissions of 8 March 2013 then counsel for the husband, Mr. Kirk SC said “It is probably inevitable that [Company V] would want to be heard in relation to this issue”.  I agree, and raised that with Ms Lomax during June and July hearings.

7. In submissions filed 17 July 2013, Mr Lomax sought to address these concerns by annexing a letter which he emailed to Company V on 19 June 2012.  Although that document did not form part of the evidence formally before me, I am prepared to proceed as if it did.  In that letter the husband foreshadowed that at a trial then scheduled before Federal Magistrate Myers for 22 June 2012 he intended to apply for an order as follows:

   3. An Order that [Company V] produce a signed release at settlement for the sale of the Former Matrimonial Home as follows:

   a.The 2^nd mortgage taken out by the wife over the her 1% share in the Former Matrimonial Home is discharged;

   b.Any shortfall in the funds allocated to wife from the sale of the Former Matrimonial Home are the sole responsibility of the wife to negotiate payment to [Company V];

   c.The wife’s negotiations with regard to this 2^nd mortgage will have no impact on the sale of the Former Matrimonial Home and that settlement is able to proceed by virtue of this clause.

8. The letter requested a response from Company V, and particularly any indication whether it intended to appear on 22 June.

9. Plainly the trial before Federal Magistrate Myers did not then proceed.  Moreover, there is no evidence of any response from Company V.  Further, the orders which are now sought by the husband are a little different to those foreshadowed, in that, as I understand it, he now seeks an order specifically restricting Company V’s entitlement to the proceeds of any sale to 1 per cent.

10. It is unclear from the evidence what the purpose of the letter to Company V was.  Perhaps it was intended to afford it procedural fairness under Family Law Act s 90 AE(3)(c), but there is no clear fit between the complete destruction of the Company V security with any permitted order under s 90AE(1) or (2). It is dubious whether that letter, without more, followed by an order in the terms advised to Company V, would thereby and without more bind Company V to the result of the litigation, and hence see it bound by the order. On one view, given the nature of the relief sought, it may have been essential that Company V in fact be made a party to these proceedings in order to be bound by any such order. At the very least, there ought to have been service upon Company V of a sealed copy of the Originating Process and any supporting material, although in saying that I do not wish it to be thought that I am determining that that of itself would be sufficient to bind Company V to the terms of the orders sought, if made.

11. Having Company V bound by the orders sought by the husband is an important matter because the husband asserts that the balance funds from the sale of B Street can be used, in part, to re-house the wife and children, and to fund the resolution of these proceedings.  If that were to be impossible, then the desirability of an order for sale would need to be revisited.  Particularly, if the effect of the order for sale could be to render the wife and the children who reside with her homeless, that would be highly important consideration.  Absent being so satisfied, I would not be prepared to make the order sought.

12. My second further reason for declining to make the order sought is allied to the first, in that I do not accept the husband’s suggestion that the payment of $20,000.00 to the wife would likely be sufficient to enable her and three of the parties’ children who reside with her, to obtain alternative accommodation.  One assumes that, at least in the short term, she would be obliged to rent.  There would be removal costs for the furniture from the B Street home to that rental property.  There will be costs of bond and no doubt rent will be payable in advance, after which there will then be the recurrent expenditure of rental. 

13. There is simply no evidence upon which I could be satisfied that the sum of $20,000.00 represents anything approaching a satisfactory sum to meet those costs until trial.  Because it is he who seeks the order, it is incumbent upon the husband to discharge that evidentiary onus.  He has not done so.

14. My third further reason for declining to make the orders sought relates to the husband’s vehement assertion that on no view is there any prospect that the wife, who seeks to retain B Street as part of her entitlement pursuant to division under s 79, will be able to do so.  The husband points to his alleged substantial net indebtedness, and particularly the extent of the loans secured by mortgage against B Street as justifying his position.

15. A necessary component of that argument is that I ought be satisfied that the wife has no prospects of successfully persuading the Court that Ms Lomax’s interests in D Pty Ltd were neither property of the husband or a financial resource of his, and that income derived by Ms Lomax’s interests ought not be regarded as income of the husband’s.  This is a matter which I consider in far greater detail when considering the wife’s application for spouse maintenance where, as will be seen, I ultimately conclude that the wife has not persuaded me that for the purposes of this interim hearing, either that Ms Lomax’s interests are property of the husband, or that the income she derives from it should be treated as income of the husband. 

16. On the other hand, as shall be seen, I do conclude, in part based upon concessions of the husband, that her interests in D Pty Ltd are a financial resource of the husband, but save to the extent that they appear to permit Ms Lomax to derive income of $3,000.00 per week, I am otherwise unable to gauge or assess the value of that financial resource to the husband.

17. However those findings on this interim application do not mean that the wife will ultimately not succeed either in establishing that Ms Lomax’s interests are property of the husband, or that the income derived from them ought be treated as income of the husband’s.  Further, no doubt great effort will be made between now and trial to ascertain the full extent of the value of the financial resource which Ms Lomax’s interests in that company represent from the perspective of the husband.  Certainly on the material before me, the husband has not persuaded me that the prospects of the wife succeeding in her endeavours in this respect are so forlorn that there is no prospect of her being able to retain B Street in the division of the property of the parties to the marriage pursuant to s 79.

18. Lest it be thought that such an outcome has never been contemplated by the husband, I should specifically advert to his solicitors’ correspondence of 27 February 2008 which was sent in the context of the wife’s foreshadowed intention to bring these proceedings.  The first paragraph of that correspondence said:

    Our client is somewhat surprised that your client is now intending to bring proceedings for property settlement as he thought that there was an understanding between them that your client would be receiving the former matrimonial home as her part of the settlement and that until he was able to release the mortgage, he would continue to pay the mortgage repayments, electricity, telephone, rates and insurance.

19. Whilst the evidentiary value of that, and any weight that it would receive in determining what is a just and equitable division of the property of the parties remains to be seen, it certainly appears to be the case that for at least four years, the husband was of the view that what the wife now proposes then represented a just and equitable outcome of these proceedings.   

20. The husband’s application for the sale of B Street will be dismissed.

ALTERNATIVE APPLICATION FOR ORDER REQUIRING THE WIFE TO VACATE B STREET AND THE PROPERTY BE RENTED OUT

1. This alternative was not pressed with any vigour by the husband.  Frankly I do not really understand the logic behind it.  It appears to be said that the rent obtained from leasing B Street would be able to either wholly or partly meet the mortgage expenses associated with it.  The evidence contains no estimate as to the likely rental that could be obtained from B Street.  Moreover, there is no suggestion by the husband as to how the future housing costs of the wife and the children of the parties that reside with her could be met, nor indeed any attempt to estimate what those likely costs would be, beyond the broad assertion that $20,000.00 would be a sufficient sum to meet them and her future legal costs (albeit that was made in the context of sale of B Street).

2. It is incumbent upon the husband to satisfy me that it is just, on an interim basis and before the trial of the proceedings, to make the order which he seeks.  I am not so persuaded particularly because, as I have previously said in these reasons, critical to my reasoning is the absence of any viable suggestion by the husband as to how the wife and the parties’ children who live with her, would thereafter be housed.  

SPOUSE MAINTENANCE

1. Although from separation the husband made payments of direct financial support to the wife, in March 2006 he ceased to do so.

2. It appears as though the wife has worked as a professional from August 2004 until she was retrenched on 27 April 2012, and then worked on a short-term contract in the construction industry until August 2012.  As at the date of the March hearing, she was looking for employment.  I do not have much detail of her earnings from that employment.  At para.248 of her affidavit filed 29 June 2010, she said that at that time she was earning “E$50,000.00 per annum”.   Given that she has been able to financially survive since March 2006 upon, apparently, her earnings from employment, I conclude that she has earning capacity sufficient, if deployed, to meet her financial needs.

3. It appears from the wife’s financial statement filed 9 March 2013 that her weekly income presently comprises New Start Allowance of $259.00 and a Child Allowance of $240.00.  Although the husband is obliged to pay child support in the sum of $15.79 per week for each of the parties’ two children who live with the wife, none is actually received by her.  In addition to those children, the parties’ adult daughter Y lives with the mother and earns $132.00 per week.

4. As at 9 March 2013, the total expenditure which she asserted she incurred in respect of herself per week was $183.00, and the total expenditure for herself and the three children was said to be $796.00, or $41,392.00 per annum. 

5. The matters which the court is obliged to take into account in considering spouse maintenance are prescribed in s 75(2) of the Act, and are well known.  By reference to those factors I find as follows:

   s 75(2)(a)

6. The wife is presently 49 years of age and the husband 48 years old.  I have no evidence as to the state of their health and assume it is good in both instances and equally so.

   s 75(2)(b)

7. The wife has a weekly income of $499.00, both components of which appear to be income tested pensions, allowances or benefits and hence must be disregarded pursuant to s 75(3).  The only property of any substance which she owns is her interest in B Street.  She has no financial resources.  She has physical and mental capacity for employment as a professional, and if employed, apparently would earn at least $50,000.00 per annum.  Presently she is seeking such employment without success.

8. The husband earns $650.00 per week before tax (as distinct from Ms Lomax who earns $3,000.00) has property comprising his interests in B Street and M Street, and has a financial resource in the support that is paid for his benefit by Ms Lomax in an amount of $2,500.00 per week for household expenses/school fees/other expenses[6] and a further financial resource being payment of mortgage expenses in the sum of $4,000.00 per week by persons described as “AA Lomax/CC Allen/ BB Lomax”.[7]  He has the physical and mental capacity for employment as a scientist, and in that capacity could earn $200,000.00 per annum but chooses to earn in the vicinity of $30,000.00 per year so that he can be self-employed.[8]

   [6] See the husband’s financial statement at item 18.

   [7] ibid.

   [8] Wife’s affidavit filed 10 March 2013 para.158, and conceded by the husband in cross-examination.

9. However a substantial aspect of the wife’s case was that in addition to his declared position, the husband also had income and/or property and/or financial resources derived from D Pty Ltd.  The wife’s case was, notwithstanding the fact that on paper it is Ms Lomax who has an interest in that company, and it was she who derived any income from it, that was simply a pretence designed to disguise the truth.  Particularly the wife asserted that the consultancy business conducted by that company was indistinguishable from, and the continuation of, the consultancy business which had been conducted up until 2010 by K Pty Ltd (albeit at that stage still known as L Pty Ltd).  I traversed the history of the business in paras.12 to 20 (both inclusive) of my earlier decision in this matter delivered 27 June 2013, and I adopt that discussion here.

10. It was in this context that both the NAB documents and the evidence relating to the conversation of 2 May, was relevant.  The wife has set out in detail the particular documents she relies upon, and her contentions in relation to them, at paras.38 to 64 of her written submissions filed 27 August 2013, and it is unnecessary to set them out in detail here.  Suffice it to say from those documents it appears that:

    ·In dealing with the review of debts associated with the husband, Ms Lomax, and companies associated with them, officers of the NAB appear to have regarded them as one group;

    ·Various bank officers from time to time have formed the view that the husband was reluctant to provide financial information to the bank because of the prospect of it being made available to the wife in these proceedings;

    ·Viewed collectively, the group of companies and businesses associated with the husband and Ms Lomax had, as at 1 March 2013, in the opinion of one or more bank officers, sufficient ability to service current debts, including non-NAB debts (and hence necessarily including the mortgage over B Street);

    ·That in 2011, one or more bank officers had the opinion that L Pty Ltd no longer traded due to a recent legal dispute, and that was why the business previously conducted by it was being thereafter conducted by D Pty Ltd;

    ·That as at 2011, in the opinion of a bank officer, D Pty Ltd had an operating profit of $1,184,299.00 after depreciation and interest were deducted;

    ·That as at 25 February 2010, in the opinion of a bank officer, the overall group of companies associated with the husband and Ms Lomax had a surplus after debt servicing of $1,473,417.00;

    ·That as at 1 June 2010, in the opinion of a bank officer, the business then conducted by L Pty Ltd was growing, and for the financial year ending 2011, had an expected net profit of $2,732,000.00.

1. The wife also relied on earlier documents produced by NAB, even as far back as 2004, but I could not presently place any weight upon those as they are likely too old to be a reliable indicator of either the financial structures associated with the husband and Ms Lomax, or their current financial position.

2. It was in this context also that the conversation of 2 May was relevant because, according to the wife, it showed that in truth the husband controls D Pty Ltd’s business operations, and further, that the reason why the consultancy business ceased to be conducted by L Pty Ltd, and was commenced to be conducted by D Pty Ltd, was due to the likely inability of L Pty Ltd or Mr Lomax himself to be able to obtain professional indemnity insurance going forward, because of litigation which that latter company had engaged in arising out of its business association with one or more Country J companies.  Particularly the wife relies upon this aspect of the 2 May conversation:

   “…You know, the only thing that could help you, is if you somehow got up to say [D Pty Ltd] is the same company as the other company and what I was going to say is (inaudible) that can’t possibly happen because as you are aware we got into that litigation thing with [the people from Country J] with [L Pty Ltd], with that there is Professional Indemnity Insurance companies involved, and they, once you have a claim against a Professional Indemnity Insurance company, which they, which company did, you cannot get Professional Indemnity Insurance for that company or for me or for (inaudible).  To be in the … consulting business you’ve got to have Professional Indemnity Insurance or you can’t, you can’t get a single job, so it was never an option of keeping [L Pty Ltd] or keeping me as part of that company because you can’t operate because it cannot get PI Insurance…

   It’s just not going to get you anywhere because it cannot operate as a company that is my ultra-ego, or [Mr A’s first name], because we can’t get PI Insurance and you know how easy it is to skip from one company to the other, because there’s no there is no value in a, in a professional services organisation…”

3. The husband did not accept that the wife’s contentions were correct.  Rather he said:

   ·There was no or insufficient evidence as to the similarity of any consultancy business previously operated by K Pty Ltd, compared with the business operated by D Pty Ltd;

   ·There was no evidence that the persons behind D Pty Ltd were the same as those behind K Pty Ltd, and to the extent that there was evidence, it was that the Board of Directors and shareholders were different;

   ·There was no evidence that the client base of the two companies was the same;

   ·There was no evidence that the effective control of the businesses remained the same;

   ·There was no evidence that showed any assets of K Pty Ltd had transferred to D Pty Ltd, and indeed his evidence was to the contrary;

   ·There was no evidence to show that D Pty Ltd serviced the debts which had been serviced previously by K Pty Ltd.

4. The substance of the husband’s position was that the 2010 decision by the directors of K Pty Ltd was bona fide to change its business from one that provided both transport services and consulting services, to a company that only provided transport services.

5. The husband’s version of how it is that D Pty Ltd came to offer consulting services is set out in his affidavit filed 25 May 2012 as follows:

   [Ms Lomax] Provided Background information on [D] Pty Ltd

   171.[Ms Kelly] on a number of occasions asked about a company of which my current wife controls 56% of the shareholding through a trust.

   172.[D] Pty Ltd is a private company that is neither owned nor controlled by me nor [Ms Kelly].  It was established some 6 years after separation and prior to [Ms Kelly] initiating an application for financial settlement.

   173.     [D] Pty Ltd is owned by four shareholders.

   174.Now shown and market exhibit “SCL-28” is a copy of the company documents.

   175.My role is as consultant to the company for technical work and also in the capacity of CEO.

   176.At the time of incorporation, the intention of the company was to grow as a logistics an people management company supporting the … industry and carrying out non consulting related business.

   177.The shareholders of [D Pty Ltd] anticipated that the income and profit from that company would be derived from [transport operations] and the provision of [employees] for [sites] around the world, with a goal of ultimately owning and operating [sites].

   178.These activities were not part of the core business of [L] Pty Ltd.

   179.[Ms Lomax] has been managing the logistics of various companies (including [D] Pty Ltd) for almost a decade.  This included managing [transport] operations and numerous staff members.  This experience places her in a good position to be the Director of [D] Pty Ltd.

   180.The business of [D Pty Ltd] morphed into a broader business largely as a result of the demise of [L] Pty Ltd by virtue of the [Country J] legal case.

   181.In the management accounts vetted by me for the financial year 2012-2011 [D] Pty Ltd made a small operating loss.

   182.While there are no plans for me to acquire a shareholding in [D] Pty Ltd – it is reasonable to expect that I will potentially receive direct benefits from [D] Pty Ltd by virtue of the services contract between [D Pty Ltd] and [I] Pty Ltd.

   183.In addition to the direct benefit to me, I am likely to receive indirect benefits from the company if it becomes profitable as a result of dividends my current spouse would receive from the company.

   184.With no trading history of the company and the fact that the core business focus is a new industry sector, the extent of these indirect benefits cannot be estimated at present.

6. It can therefore be seen that it appears as though the husband concedes that D Pty Ltd has since the “demise” of L Pty Ltd, undertaken consultancy work of the kind previously undertaken by I Pty Ltd, but he contends that was not the intention at the time that D Pty Ltd commenced to trade.

7. Notwithstanding the fact that a time and issue restricted brief cross-examination was permitted of the husband and Ms Lomax on the second day of the hearing before me in March 2013, I am nonetheless not in a position, in an interim application, to resolve disputed questions of fact such as these.  The task of the wife therefore is to persuade me, based upon the uncontradicted material or otherwise, of the facts which she seeks to rely upon in support of her application.  Insofar as she asserts that Ms Lomax’s interest in D Pty Ltd is in fact legal or equitable property of the husband’s she has not done so.  Likewise, she has failed to persuade me that such income as Ms Lomax’s derives from her association with that company is either, at law or in equity, income of the husband.

8. On the other hand, the husband concedes that he is likely to receive direct benefits from D Pty Ltd, because it holds a services contract with another company which he concedes is his property, or indirectly benefit by virtue of income earned in relation to D Pty Ltd by Ms Lomax.  I am therefore satisfied on an interim basis that Ms Lomax’s interest in the company is a financial resource of the husband.

9. However that does not get the wife very far, because it is not sufficient to say that it represents some amorphous and unfathomed financial resource: it can only be of benefit to the wife if the value of that resource to the husband is able to be in some way gauged or measured.  The primary material which may assist in that is:

   ·Para.181 of the husband’s affidavit filed 25 May 2012, which suggested that in the 2011 financial year, according to management accounts, D Pty Ltd made a small operating loss;

   ·The opinion of a NAB account manager, Mr E, on 25 October 2011 to the effect that D Pty Ltd had an operating profit before depreciation and interest of $1,230,250.00;

   ·Ms Lomax appears to derive a before tax income arising, in some form, from her association with D Pty Ltd, of $156,000.00 per annum.

10. I am mindful that the wife asserts that the failure of the husband to disclose the financial position of D Pty Ltd should, consistent with the Full Court decision of In the Marriage of Weir[9] embolden the Court to not be unduly cautious of making findings in favour of the innocent party.  However the wife’s argument in this respect is circular.  The husband can have no obligation of disclosure in relation to D Pty Ltd’s financial position unless it is, in substance, his company.  That is precisely what the wife has, on the material presently before me in this interim hearing, failed to persuade me of.

    [9](1992-3) 16 FamLR 154 per Nicholson CJ, Strauss and Nygh JJ.

11. Beyond the $3,000.00 weekly income of Ms Lomax, of which the husband concedes he obtains a benefit of $2,500.00 per week, I cannot at this stage ascertain the value of the financial resource of Ms Lomax’s interest in D Pty Ltd.

    s 75(2)(c)

12. The wife has care of two children of the marriage who have not attained the age of 18 years, and the husband has the care of one child of the marriage who has not obtained the age of 18 years.

    s 75(2)(d)

13. The wife asserts average weekly expenses in relation to herself of $183.00, and in relation to the children (including the child over 18 years) of $613.00 per week. 

14. The position in relation to the husband is less clear.  At item 60 of his financial statement filed 1 March 2013 he detailed weekly expenditure in relation to himself of $420.00, in relation to children of $1,220.00 and in relation to other adults in his home (presumably Ms Lomax) of $405.00 per week, totalling $2,045.00 per week.  On the other hand he details total salary of $650.00 per week (from which $100.00 is payable in tax) and payment of expenses as detailed elsewhere in this judgment by Ms Lomax of $2,500.00 per week, and payment of mortgages by others to the extent of $4,000.00 per week.

15. The payment by Ms Lomax is more than sufficient to wholly meet the $2,045.00 of expenses in item 60.  The total of the husband’s net salary of $550.00 per week and the expenses paid for his benefit by Ms Lomax of $2,500.00 per week sees a total expenditure for the husband’s benefit of $3,050.00 per week.  There is therefore a surplus of $1,005.00 over the amounts identified in item 60.  Some part of that goes to the National Australia Bank, because at item 23 the husband asserts a personal expenditure by him each month of $561.00, but on any view even if that be part of the explanation for the expenditure of the surplus, there is still money left over.

    s 75(2)(e)

16. There is no evidence of either the wife or the husband having responsibility to support any other person, although I accept that the parties eldest, and now adult, child lives with the mother.

    s 75(2)(f)

17. By virtue of s 75(3) I am obliged to disregard income tested pensions allowances or benefits received by the wife, and I infer that both benefits received by her are income tested.

    s 75(2)(g)

18. There is no evidence before me of the standard of living that is in all circumstances reasonable for the mother, and although her counsel indicated that he would, in due course, refer me to published data to assist me in determining what was a reasonable standard of living for her, he did not do so.

    s 75(2)(h)

19. The mother asserts that it would be desirable for her to enrol at a TAFE college in a course to upgrade her proficiency in her field.  The course costs $550.00 but she is unable to afford it.  Otherwise there is no evidence relevant to this consideration.

    s 75(2)(ha)

20. This is not relevant.

    s 75(2)(j)

21. There is no direct evidence of the extent to which the wife has contributed to the income, earning capacity, property and financial resources of the husband other than that inferentially, she supported him in diverse ways during the course of their long marriage.

    s 75(2)(k)

22. The parties commenced cohabitation in 1984, married in 1989 and finally separated sometime in 2004.  There was therefore approximately 20 years of cohabitation and 14 years of marriage.  There is no evidence of the extent to which the marriage has affected the earning capacity of the wife, save that in August 2004 she was able to obtain employment in her profession and apparently continued in that until 27 April 2012.

    s 75(2)(l)

23. Both the wife and the husband wish to continue in their roles as parent of the children living with them.

    s 75(2)(m)

24. The mother cohabits only with the three children.  The father cohabits with Ms Lomax who supports him to the extent of $2,500.00 per week, and with another adult child of the parties.

    s 75(2)(n)

25. There is no proposed order under s 79 other than the husband proposal that B Street be sold (assuming it be sought under that section rather than s 114).

    s 75(2)(naa)

26. There is no order or declaration made or proposed to be made under part VIIIAB.

    s 75(2)(na)

27. There is a child support assessment which obliges the husband to pay $15.79 per week for two of the children of the marriage to the wife, but apparently this is not being paid.

    s 75(2)(o)

28. In my view, the justice of this case requires an additional fact or circumstance to be taken into account, namely that the wife has earning capacity of at least $50,000.00 per annum, and she exercised that capacity between 2004 and 2012.

    s 75(2)(p)

29. There is no financial agreement that is binding on the parties to the marriage.

    s 75(2)(q)

30. There is no part VIIIAB financial agreement that is binding on either party to the marriage.

31. In weighing the s 75(2) factors, in my view the following are particularly relevant:

    ·The husband earns $650.00 per week before tax, however has significant financial resources available to him, both from his wife, Ms Lomax, and others;

    ·The wife has demonstrated needs of $613.00 per week to meet the necessary commitments in relation to herself and the children who reside with her,  however those commitments have between March 2006 until at least August 2012 apparently been wholly met by her deploying her earning capacity to receive a salary from employment as a professional of at least, in 2010, $50,000.00 per annum, which capacity remains intact;

    ·The parties in this matter have now been separated for 9 years, and the husband last made any payment of direct financial support to the wife in 2006;

    ·It could not seriously be contended that any present financial need of the wife has arisen as a direct consequence of the marriage, rather than general economic conditions.

32. The wife has failed to persuade me that this is an appropriate case to order spouse maintenance, and I decline to do so.

PAYMENT OF WIFE’S COSTS

1. The primary order sought by the wife is the payment by the husband of $200,000.00 into the trust account of solicitors nominated by her, to be applied as and towards her legal costs.  In the alternative she seeks payment into those solicitors trust account an amount equal to the legal professional costs and outlays incurred by the husband and Ms Lomax with Cooper Grace Ward since 18 December 2012 to the date of the orders, together with a monthly amount thereafter as represents the legal professional costs and outlays incurred by the husband and/or Ms Lomax for legal costs in the preceding month.

2. Whilst there would clearly be power to make any such order under s 117 of the Family Law Act,[10] on the evidence before me, the only source of funds available to the husband to meet the payment of $200,000.00, or indeed any substantial sum, would be from the proceeds of sale of B Street.  That is, of course, a property which the wife asserts an entitlement to, and resists its sale.

   [10] See in the marriage of Hogan (1986) FLC 91-704.

3. Absent any such fund, I do not propose to make an order for the payment of $200,000.00 as I am not satisfied the husband has any capacity to pay it.

4. As to the alternative order, it is in two parts.  The first would require a payment of a lump sum being the total legal costs that were incurred by the husband and/or Ms Lomax from 18 December 2012 until now.  They could be substantial.  There is no evidence of any sum being presently available to the husband to meet such a payment.

5. On the other hand, if from the date of my orders the husband is able to find funds sufficient to pay solicitors, or others are able to find sums sufficient to pay for legal representation for him, then in my view in order to achieve a level litigious playing field it is appropriate that a similar sum should be made available to the wife, and I propose to so order.  Further, I propose to defer the characterisation of any such payment as may be made by the husband or others to the wife to the trial judge at the final hearing of these proceedings.

VALUATIONS

1. By paras.9-11 of the wife’s Third Amended Application in a Case filed 4 March 2013, she seeks orders for valuation of B Street, M Street, sixteen legal or equitable entities, and the chattels of the parties.  She seeks that the husband and Ms Lomax engage those single experts and that the husband be responsible for their costs.

2. M Street is proposed to be retained by the husband and not sold.  It therefore will need to be valued.  In my view the husband should, in the first instance, be responsible for paying for procuring that valuation.  Likewise it is necessary that B Street be valued, and again in my view, it is appropriate that in the first instance, the husband should bear that expense.  There will therefore be an order in terms of para.9 of the wife’s Third Amended Application in a Case.

3. As to the valuation of the sixteen entities, some of whom are, or at least at the time of the March hearing were, respondents to this proceeding, the wife has failed to put before me any evidence as to the likely cost involved.  However annexure SCL 34 to the affidavit of Mr Lomax filed 13 November 2012 does show that the costs of obtaining seven years of records for the companies involved is likely to range between $7,000.00 and $13,000.00 per entity.  Assuming that those records were needed by any valuer, it can be seen that the minimum cost of procuring the information which he or she would need would be $112,000.00, to which then would need to be added the costs of 16 valuations themselves.  Clearly the costs involved are likely to be quite substantial.

4. As I have previously indicated, I cannot discern, other than from the proceeds of sale of B Street, any substantial capital sum presently available to the husband.  Moreover, I am conscious that at least some of the entities are likely to not be worth the costs of valuing them.  Put simply, the wife seeks to have the husband expend a considerable sum of money going down a large number of what, at least in some cases, appear likely to be empty burrows.  I decline to make an order for their valuation.

5. I should make specific reference to the order insofar as it seeks a valuation of D Pty Ltd.  The husband asserts that he has no direct control over that company, except insofar as he is its CEO, and even then, is inevitably subject to direction of the Board.   Absent an order directed towards that company, rather than Mr Lomax, it seems to me that an order directing the husband to, in a sense, organise the valuation is likely to prove futile.  Unless and until I could be persuaded that such an order has any prospect of achieving a reliable valuation, I would decline to exercise the discretion to make the order proposed by the wife directed towards that company.

CONCLUSION

1. For these reasons, save for the making of a prospective dollar-for-dollar costs order in favour of the wife, and ordering that the husband pay for a valuation of B Street and M Street, all of the other applications listed in paras.5 and 6 of these reasons will be dismissed.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 October 2013.

Associate: 

Date:  25 October 2013