Kelly and Lomax (No 2)

The case of *Kelly and Lomax (No 2)* concerned a dispute between a husband and wife regarding financial settlement. The wife sought to have a company, D Pty Ltd, and the income derived by Ms Lomax from her association with it, treated as property or income of the husband. The husband contended that D Pty Ltd was a separate entity, established after the parties' separation and not controlled by him or the wife, with its primary intention being logistics and people management for a specific industry, not consulting.

The primary legal issues before the court were whether Ms Lomax's interest in D Pty Ltd constituted legal or equitable property of the husband, and whether the income Ms Lomax derived from the company was, at law or in equity, income of the husband. The court was required to determine if the wife had successfully persuaded it of these assertions based on the uncontradicted material presented.

The court found that the wife had not discharged her onus of proof. While the husband conceded that D Pty Ltd had undertaken consultancy work similar to that previously performed by the husband's company, he maintained this was not the original intention of D Pty Ltd. The court noted that it was not in a position, in an interim application, to resolve disputed questions of fact, such as the true intention behind D Pty Ltd's operations or the extent of the husband's potential benefits from the company. Consequently, the wife failed to persuade the court that Ms Lomax's interest in D Pty Ltd was the husband's property or that her income from the company was the husband's income.