Kent and Kent (No 3)

[2017] FamCA 809

FAMILY COURT OF AUSTRALIA

KENT & KENT (NO. 3) [2017] FamCA 809

FAMILY LAW – PROPERTY – Where the majority of the property of the parties is in Papua New Guinea – Where the Wife seeks to preserve remaining funds – Where the Husband is restrained from making further withdrawals from a superannuation fund in Papua New Guinea

FAMILY LAW – PROPERTY – Interim –Where the Husband seeks an order that the Wife pay to the Husband half of the funds in her bank account – Application dismissed.  

Family Law Act 1975 (Cth)

Mullen & De Bry (2006) FLC 93-293
Waugh & Waugh (2000) FLC 93-052

APPLICANT: Ms Kent

RESPONDENT: Mr Kent

FILE NUMBER: BRC 11392 of 2016

DATE DELIVERED: 29 September 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele of Counsel

SOLICITOR FOR THE APPLICANT: Hopgood Ganim Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hackett of Counsel

SOLICITOR FOR THE RESPONDENT: Hirst & Co

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. The Respondent husband be restrained and an injunction issue restraining him from making any further withdrawal from the E Trust.

2. Each party by their respective solicitors is at liberty to provide a copy of this Order to the General Manager at E Trust.

3. Save as is provided for above, the Application in a Case filed 18 July 2017 is dismissed.

4. Paragraphs 2, 3, 4 & 5 of the Response to an Application in a Case filed 4 September 2017 are dismissed.

5. In the event that a party seeks an order that the other party pay the costs of and incidental to the Application in a Case filed 18 July 2017 and the Response to the Application in a Case filed 4 September 2017:

   (a)the party seeking an order for costs shall file and serve brief written submissions in support of such application for costs within fourteen (14) days of today;  and

   (b)the party from whom costs are sought shall file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs within a further fourteen (14) days thereafter;  and

   (c)the party seeking costs shall file and serve any brief further written submissions, strictly in reply to the submissions served by the party from whom costs are sought, within seven (7) days of its service,

   and any such application for costs shall be determined in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Kent (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11392 of 2016

Ms Kent

Applicant

And

Mr Kent

Respondent

REASONS FOR JUDGMENT

1. By Application in a Case filed 18 July 2017, the Applicant, Ms Kent, sought a raft of interim orders directed to maintaining the integrity of the Respondent husband’s entitlement in the E Trust in the manner particularised in that Application.  However, the relief ultimately sought by Counsel who appeared for her at the hearing was limited to the orders which sought to restrain the Respondent, Mr Kent, from making any further withdrawals from the trust and requiring that he provide a copy of the order restraining him from seeking further withdrawals to the fund.

2. This circumstance arose after Ms Kent learned that Mr Kent had already withdrawn $515,968.00 from the E Trust, which is based in Papua New Guinea, and that the sum of $38,341.00 remains accessible to him.  Thus, at the hearing, Ms Kent’s Application was to restrain Mr Kent from accessing the remaining $38,341.00 in circumstances where it is accepted, for the purpose of this Application at least, that the total value of the property of the parties is likely to be no less than about $27,475,920.27.

3. It is immediately apparent from that assertion that, in usual circumstances, it may well be thought that Ms Kent’s Application would be unlikely to succeed.  However, the complication in the present case arises because the vast majority of the property of the parties is situated in Papua New Guinea and Mr Kent has given evidence that it is most difficult to transfer money from Papua New Guinea to Australia.  It is within that context, then, that Ms Kent seeks to preserve that which remains from the E Trust funds, accessible now to Mr Kent.

4. By Response to an Application in a Case filed 4 September 2017, Mr Kent opposes the making of any order restraining him from accessing the available funds within E Trust.  His position is that the Application in a Case filed 18 July 2017 should be dismissed. 

5. Mr Kent also sought, via the relief particularised in the Response to an Application in a Case filed 4 September 2017, (in essence, by way of cross-application) that the following interim orders are made: 

   a)an order directing that, within seven days from today, Ms Kent cause her solicitors to write to the General Manager at the Fund to withdraw correspondence previously sent by them and dated 18 July 2017 and, further, cause her solicitors to provide to Mr Kent’s solicitors a copy of such correspondence;  and

   b)an order requiring Ms Kent to do all things necessary to pay to Mr Kent the amount of $570,628.20 and retain the balance of funds she has withdrawn from an ANZ bank account ending in 3683 or, alternatively, that she be restrained from drawing or receiving, either directly or indirectly, any amount from the funds formerly held in the ANZ bank  account ending in 3683 which has now been  disturbed into Bank of Queensland account ending in 4300, Bank of Queensland account ending in 3176, and an order restraining Ms Kent from removing from Australia or in any way disposing of, dealing with or diminishing the value of any of the previously mentioned bank accounts until further order.

6. Mr Kent also seeks, in essence, that the funds previously held in the ANZ bank account which he had thought was a joint account and from which Ms Kent has transferred funds into accounts in her name alone be divided equally between the parties.  In order to give effect to this proposition, it would require Ms Kent to be ordered to pay to him $507,628.20 - which is half of the balance in the ANZ bank account which currently stands at $1,141,256.37.

7. Ms Kent opposes the making of such orders.  Her position, summarised broadly, is that she will account for her use of these funds at trial and that, given the likely value of the property of the parties;  the value of the property which is located in Australia when compared to that which is located in Papua New Guinea;  that Mr Kent remains in control of and has available to him funds and resources as a consequence of his ownership of property in Papua New Guinea and his evidence that there may be difficulty in transferring property, funds or cash from Papua New Guinea to Australia, she should retain stewardship of the entirety of the funds currently under her control so as to eliminate any risk that she will not receive her just and equitable entitlement – something it is suggested may occur if such funds or a proportion of them are now provided to Mr Kent and dissipated by him.

8. The injunctive relief sought by each party requires application of the well‑known principles governing the making of injunctions in this jurisdiction.  See, for example, Waugh & Waugh[1] and Mullen & De Bry[2].  The Court may grant an injunction where it appears to be appropriate or just and convenient to do so:  see s 34(1) and s 114(3) of the Family Law Act 1975 (Cth). The injunctive power is often employed to preserve property in the sense of preventing it from being destroyed or alienated. It is well‑accepted that the Court should consider whether the injunctions sought are necessary and go no further than necessary to prevent the abuse or frustrations of the Court’s process in relation to the matter within its jurisdiction and that, if it is considered appropriate to issue injunctions, they should be to the minimum extent required. It is uncontentious that an applicant for injunctive relief must persuade of the basis on which such orders should be made.

   [1] (2000) FLC 93-052.

   [2] (2006) FLC 93-293.

9. In this case, of course, each of the parties are applicants for injunctive relief in the manner I have already outlined.

10. While submissions were made for Counsel for Mr Kent in relation to the issue of whether there is a serious question to be tried, I am persuaded in this case that, as between the parties there are, in fact, a number of serious questions to be tried.  So much can be seen from reference to Ms Kent’s Application for final orders by way of final relief and her concerns, in the context of Mr Kent’s evidence about what he considers to be difficulties in repatriating funds or property from Papua New Guinea to Australia, about how and from what property each of the party’s just and equitable entitlements should be met.

11. By Initiating Application filed 11 November 2016, Ms Kent seeks that the property interests of the parties be adjusted by way of final property order such that she receive property having a value of 55 per cent of the net value of the property of the parties and Mr Kent receive property having the value of 45 per cent of the net value of the property of the parties. 

12. At the time the Application was before me, Mr Kent was as yet to outline the orders he asserted were just and equitable in the circumstances of the case.  I note, however, that an Order made by Registrar Brooks on 22 August 2017 required that he file and serve an Amended Response containing the orders he seeks in the property settlement proceedings by 19 September 2017.  That is, assuming compliance with this Order, Mr Kent should, by now, have particularised the final relief he seeks.

13. As I understand at least an aspect of his case, however, it is to the effect that, whatever the ultimate adjustment made by the Court to reflect its conclusions about what is just and equitable as between these parties in these circumstances, his position is that the parties should share in the property which is located in Australia and in Papua New Guinea.  That is, as I understand it, he is likely to seek orders in relation to the property located in Australia and does not accept that Ms Kent’s entitlement to property (whatever that might be found to be) should be met entirely by, or with, property situated in this country.

Brief overview of facts relevant to the determination of the interim Applications

1. Ms Kent was born in 1946.  She is currently 70 years of age.  

2. Mr Kent was born in 1946 and is currently 71 years of age. 

3. On Ms Kent’s case, the parties commenced cohabitation in 1963, married in 1968 and separated finally on 25 October 2016.  Accordingly, on her case, their relationship was of some 53 years in duration. 

4. On Mr Kent’s case, the parties did not live together until after they married in 1968.  Consequently, on his case, their relationship was of some 48 years in duration. 

5. For the purpose of the current Application, the difference between the parties in relation to the duration of their relationship is irrelevant.

6. The parties have two now-adult children:  39-year-old Mr F who was born in 1977, and 36-year-old Mr G who was born in 1979. 

7. It is, I think, uncontentious that the parties travelled to live in Papua New Guinea toward the end of 1968 and remained living there until 1997 when Ms Kent left that country to return to live in Australia where the children were attending boarding school.  It seems she travelled from Australia to Papua New Guinea and Mr Kent travelled from that country to Australia as often as possible until about 2013.  On Mr Kent’s evidence, as I understand it, Ms Kent travelled to Papua New Guinea on 11 occasions between 2006 and December 2013. 

The estimated value of the property of the parties

1. As at 20 December 2016, Ms Kent estimated that the net value of the property of the parties was about $9,075,920.27.  This figure is exclusive of the following: 

   c)the value of Mr Kent’s 80 per cent shareholding in Kent Limited;  and

   d)the consequences of legal proceedings involving H Insurance, in which judgment is said to be reserved;  and

   e)the amounts, if any, held in international bank accounts by Mr Kent;  and

   f)the amount of cash on hand, if any, held by Mr Kent;  and

   g)the value of fishing equipment stored by Mr Kent in Papua New Guinea;  and

   h)the value of furniture and contents owned by Mr Kent and located in Papua New Guinea, including what Ms Kent describes as a collection of antique maps. 

2. Fifty-five per cent of this amount is $4,991,756.15. 

3. According to Ms Kent’s evidence, as at 20 December 2016:

   a)property, inclusive of entitlements to superannuation, having a value of about $7,605,420.27 is physically within Australia;  and

   b)included within this are the follow superannuation and pension funds: 

   i)Ms Kent’s D Pension fund in the amount of $325,000;  and

   ii)Mr Kent’s D Pension fund in the amount of $1,260,000.00 (noting that, as I understand Ms Kent’s evidence, it is to the effect that she had always believed that the total sum held with D Pension was $1,260,000.00 and that this sum was in her name). 

4. Whilst Ms Kent had originally thought that the E Trust superannuation in an amount of $1,211,822.48 was also physically within Australia and included within the amount to which I have already referred, it is now clear that such funds are held in Papua New Guinea.  In addition, the total needs be reduced given that, as I have already said, Mr Kent has withdrawn about $515,968.00 from the E Trust as at 5 July 2017. 

Matters relating to the E Trust (the Fund)

1. Ms Kent’s evidence, as contained in her affidavit, filed 18 July 2017, is to the effect that she realised on 5 July 2017 (when Mr Kent’s solicitors provided her solicitors with his Financial Statement which had been filed that day) that he had, in fact, drawn $515,968.00 from the E Trust between about 21 December 2016 and 21 February 2017.  She says that, by the time she swore her affidavit on 18 July 2017, he had not provided her with a “full and proper” accounting of his use of the funds other than by way of statement made at paragraph 57 of his Financial Statement. 

2. As I have already adverted to, much of Ms Kent’s position in relation to her application for an injunction restraining Mr Kent from withdrawing the balance available to him in the E Trust rests upon his evidence to the effect that, whilst the balance sheet of Kent Ltd as at 30 June 2016 showed or recorded its net assets as being valued at PGK57,000,000.00 (Kina) or A$23,000,000.00 or thereabouts (given that historical values have been used and not market valuations), he has also said that: “Of course, while it’s a simple matter to convert Kina to Australian dollars, it is most difficult to transfer money from Papua New Guinea to Australia.” 

3. Given this, Ms Kent’s concern is that, when the value of the property and the parties’ entitlement to superannuation held in Australia and in Papua New Guinea is taken into account and valued, there will be insufficient property in this country to meet her claim to property having value of 55 per cent of the net value of the property of the parties. 

4. For example, if the Australian dollar figure referred to by Mr Kent is used for the purpose of arriving at the value of his interest in Kent Ltd, then his 80 per cent interest in that entity may well be valued at around $18,400,000.00.  If that is the case, then the net value of the property of the parties, inclusive of Mr Kent’s 80 per cent interest in Kent Ltd (but exclusive of the other excluded property to which reference has already been made) may be in the vicinity of $27,475,920.27: of this, property having a value of about $6,393,597.79 is located in Australia.  That is, on these assumptions, the value of the property located in Australia represents, very roughly, around about 25 per cent or thereabouts of the total net value of the property of the parties. 

5. If Ms Kent is successful in her claim that is just and equitable that she receive property valued at 55 per cent of the total net value of the property of the parties, then, if this is found to be no less than about $26,000,000.00, she could expect to receive property valued at around about $15,000,000.00.    

6. On the basis of the assumptions outlined above then, if Ms Kent received all of the property located in Australia, it would be necessary for Mr Kent to cause her to receive a payment of no less than about, or somewhere in the vicinity of, $7,500,000.00. 

7. It is against this background, then, that Ms Kent seeks an order restraining him from calling upon the Fund for the payment of the remaining $38,341.00 available to him from that source. 

8. I pause to note that, whilst the E Trust is located or situated in Papua New Guinea, it is immediately apparent that Mr Kent has been able to access funds from it and to cause them to be expended. 

9. In that sense then, it is a proven source of funds capable of being repatriated from Papua New Guinea to Australia and, in one way, may be contrasted with the other items of property which constitute property owned by Kent Ltd (given that these properties include a number of commercial properties located in Papua New Guinea). 

10. Mr Kent’s evidence about the E Trust may be summarised in very broad terms to be that he commenced his involvement with it in 2007 when he rolled over an amount of $601,375.71 into it from a previously managed superannuation fund.  He says the E Trust comprises this initial contribution together with contributions by way of superannuation entitlements made on his behalf as a consequence of his employment, in Papua New Guinea, with Kent Ltd. 

11. Mr Kent says he was advised that, because he is 71 years of age, he could make a partial withdrawal from his entitlement in the E Trust up to an amount of $550,986.00. 

12. He says that, between about 21 December 2016 and 22 February 2017, he withdrew about $515,968 in total and has been advised that, consequently, the remaining amount which can be withdrawn by him is $38,340.79. 

13. As I understand his evidence to date, Mr Kent says he withdrew the $515,968.00 from the E Trust to assist with his day-to-day expenses and to pay legal fees. 

14. He says – and is corroborated in this assertion by correspondence from E Trust, dated 28 August 2017 – that once he withdraws the remaining $38,340.79, he will be unable to make any further drawings from the E Trust. 

15. Mr Kent’s evidence is that he wishes to withdraw this remaining amount so as to use it for his support and to meet day-to-day and, perhaps, legal expenses.  He was prevented from doing so as a consequence of correspondence written by Ms Kent’s solicitors to E Trust on 18 July 2017. 

16. Complaint is made that such correspondence was forwarded to the Trust without reference or notice to either Mr Kent or his solicitors.  However, I note that, despite the withdrawals from the Trust having occurred between 21 December 2016 and 22 February 2017, it is not disputed by Mr Kent that he made Ms Kent aware of such withdrawals only by way of Financial Statement, sworn, filed and served on 5 July 2017;  that is, about four months after the last withdrawal by him from the E Trust. 

17. Mr Kent’s evidence is that he has used the funds drawn by him from the Trust to meet daily living expenses, to pay legal fees and to purchase a motor vehicle.  As I understand his evidence, in broad terms, it is to the effect that he bought this vehicle for $104,785.00, in circumstances where it is Ms Kent’s evidence that he already had a motor vehicle available to him for his use in Australia. 

1. Mr Kent’s opposition to the orders sought by Ms Kent restraining him from withdrawing the balance of the funds available to him from the E Trust is that there is little utility in preventing him from doing so, given the quantum of the amount which remains (namely, about $38,000.00) in comparison to the overall likely value of the property of the parties. 

2. In prosecuting her application for injunctive relief, Counsel for Ms Kent submitted that Ms Kent was particularly concerned that, of the funds drawn by Mr Kent to date from the E Trust, approximately $230,000.00 has been spent by him by way of legal fees.  Ms Kent’s evidence is to the effect that she does not understand how Mr Kent has spent the sum withdrawn (in the amount of $515,968.00) in the eight months over which it has been withdrawn - she is concerned that Mr Kent is continuing to pay out legal fees in proceedings other than those in this Court, in circumstances where it seems there is already a costs order adverse to him and quantified in the amount of $98,000.00. 

3. In essence, Ms Kent seeks to preserve everything that she can so that funds which are easily accessible can be accessed by her to comprise whatever just and equitable entitlement she is ultimately determined to have to the property of the parties.  Ms Kent relies as a basis for her concern about the dissipation of assets, upon Mr Kent’s actions in purchasing the motor vehicle in the name of the entity J Pty Ltd, an entity in respect of which he has previously removed her from the roles of director and secretary.  Her evidence is to the effect, as I have already said, that Mr Kent bought this motor vehicle, for the amount I have outlined, in circumstances where he already has access to a motor vehicle which has been in his possession and available to him for his use since their separation. 

4. The overall tenor of submissions by Counsel for Ms Kent is to the effect that, in drawing down funds from E Trust and applying them, including towards to the purchase of a motor vehicle in the circumstances where he had available to him another motor vehicle for his use, Mr Kent is acting deliberately to place Ms Kent under pressure and to cause the dissipation of assets in Australia so as to make Ms Kent’s ability to receive her just and equitable entitlement more difficult.

5. Counsel also submitted, in dealing with the submission made on behalf of Mr Kent that he is unable to meet his daily needs and requires, in essence, a partial property settlement to meet them, that there is a lack of evidence in relation to Kent Ltd’s current trading position and a lack of evidentiary support for the asserted company decision to curb Mr Kent’s salary. 

6. It is further submitted, in essence, that, if the circumstances are as straightened, in a financial sense, as is contended for on behalf of Mr Kent, it is unlikely that Mr Kent would have undertaken the elective expenditure he did in determining to spend more than $100,000.00 of the funds withdrawn from E Trust in purchasing a new motor vehicle, where he already had access to one. 

7. Further submissions also emphasised that the decision to purchase the motor vehicle for a little over $100,000.00 has resulted, according to Mr Kent’s Amended Financial Statement, in the ownership of property now having a value of only $80,000.00. 

8. In essence, then, Counsel for Ms Kent submitted the Court would be concerned about Mr Kent’s stewardship of the funds withdrawn from the E Trust and that Mr Kent is acting as he has so as to ensure that assets are “gobbled up” or put out of Ms Kent’s reach through the use of various company structures.

9. In opposing the orders sought, Counsel for Mr Kent submitted that, in essence, given the magnitude of the value of the property of the parties, Ms Kent has failed to establish that there is a serious question to be tried in relation to the $38,341.00. 

10. I do not accept that the assessment of whether there is a serious question to be tried is to be determined by referenced to each individual piece of property or expenditure on a piecemeal basis.  Rather, it seems to me that an assessment of whether there is a serious question to be tried has to occur in the context of the entirety of the issues in dispute as between the parties: in this case, it has to take into account the likelihood, or otherwise, of each party being able to receive their just and equitable entitlement.

11. Counsel for Mr Kent also submitted, in relation to the question of where the balance of convenience lies, that Mr Kent has established a shortfall of about $4,700.00 per week since his salary was reduced by 60 per cent in January 2017 at the direction of the bank; that he has spent $515,968.00 on legal fees in Australia and Papua New Guinea;  has purchased the motor vehicle for $104,785.00; has retained $64,469.00 in his bank account and has spent the balance (in an amount of $118,000.00) on living expenses which, over the period from mid-January 2017 to August 2017, equate to expenditure of about $4,695.00 per week - an amount consistent with his asserted shortfall.

12. Consequently, Counsel for Mr Kent submitted that the balance of convenience does not favour the making of orders in the terms sought by Ms Kent in the circumstances because there is available to Mr Kent no other source from which he can support himself and pay his legal fees. 

13. It is also submitted on Mr Kent’s behalf that there is no prejudice to Ms Kent of him being permitted to access the remaining $38,341.00, given the magnitude of the value of the property of the parties.

14. As, perhaps, is apparent from the comments I made at the commencement of these reasons, I do not accept this submission.  I consider that, given Mr Kent’s evidence about the potential difficulties in transferring assets, property or wealth from Papua New Guinea to Australia, the balance of convenience favours reserving funds which it has been demonstrated can easily be paid out to a party and transmitted to Australia for that party’s use.  Whilst a small amount, the early stage of these proceedings and the risk adverted to by Mr Kent vis-à-vis the transfer or repatriation of funds or property from Papua New Guinea to Australia persuades me that the balance of convenience favours the preservation of that which remains undrawn but available to Mr Kent from E Trust.

15. If evidence is later provided which clarifies the position and which establishes that his withdrawal of the remaining relatively small amount of funds will not result in a risk to Ms Kent’s ability to receive property if she is successful in her claim, then, of course, the situation can be revisited. 

16. For the reasons I have delivered orally, I am, therefore, persuaded that it is appropriate and just and convenient to make the injunctive orders in the manner sought by Ms Kent to prevent Mr Kent from withdrawing the sum of approximately $38,341.00 from the E Trust. 

17. So that E Trust can be informed of the prohibition imposed on Mr Kent by the order I will make, I intend to also make an order that each party be at liberty to provide a copy of that order to E Trust.

18. I turn now to consider the injunctive relief sought by Mr Kent against Ms Kent, as contained within the Response to Application in a Case filed 4 September 2017. 

19. I have already detailed the particulars of the relief sought.  In particular, Mr Kent seeks an order that Ms Kent pay him $570,628.20 from any of her bank accounts and that she retain the balance of funds she has withdrawn from the ANZ account ending in 3683.

20. Counsel for Mr Kent submitted that Mr Kent’s evidence as to his shortfall of $4,700.00 per week and the fact that legal costs will continue to be incurred until trial means that the amount he currently has standing to him in bank accounts will last about 14 weeks.  It was argued, that in contrast, Ms Kent has a weekly surplus and has in excess of $1,000,000.00 in bank accounts.  In essence, Counsel for Mr Kent submitted that Mr Kent seeks to divide these funds so as to provide for his ongoing needs. 

21. It was further submitted that there is no other source from which Mr Kent can fund his ongoing shortfall and meet legal fees and that there are sufficient assets to adjust for such a payment to him if, in fact, Ms Kent is successful in obtaining the final relief she seeks.

22. It was also submitted that valuations need to be undertaken and paid for and these and other matters associated with the ongoing preparation of the proceedings could not occur if Mr Kent continues to be unable to meet his ongoing expenses. 

23. Counsel submitted that, in essence, there is ample property, given the value of the property of the parties, to adjust for any disparity as at the end of the day.

24. In responding to the submissions made by Counsel for Mr Kent in support for his Application for injunctive relief, Counsel for Ms Kent reiterated, and relied upon, in essence, the submissions made in support of her application for injunctive relief. 

25. In addition, Counsel submitted that, given Mr Kent’s 80 per cent ownership of Kent, it is open to him to determine to pay himself more by way of salary and/or dividend, as I infer was the case prior to January 2017:  a contention met by submissions by Counsel for Mr Kent to the effect that Mr Kent’s salary has been reduced at the direction of the bank as part of an asset-realisation strategy imposed upon Kent Ltd by the bank.

26. Ms Kent, in opposing Mr Kent’s Application, gives evidence of her concern that, if she does not have continued access to the sum of a little over $1,000,000.00, she is likely to be unable to proceed with her property adjustment Application. 

27. Her evidence is to the effect that the resources currently available to her are limited to the funds in the bank account, her motor vehicle, her D Pension account (which is the source of her weekly pension payments) and the unit at Suburb K, being the unit from which Mr Kent forced her to vacate.

28. Ms Kent also deposes to her intention to transfer $100,000.00 to her solicitors in anticipation of legal fees in both Australian and Papua New Guinea:  she has not done so as yet, having regard to the orders sought by Mr Kent. 

29. It was submitted by Counsel on her behalf that Ms Kent’s only significant source of funds which would permit her to continue to litigate the matter is the $1,000,000.00 she holds in term deposit.  It was further submitted that there is no evidence that she has acted so as to dissipate these funds, or to seek to dissipate these funds and that an order removing from her the amounts sought by Mr Kent and providing the same to him would amount to permitting a dissipation of the assets held in Australia in circumstances where there may well be difficulties in ensuring that her just and equitable entitlement can be met.

30. It was submitted, in essence, that, given Mr Kent’s recent demonstration in expending more than $100,000.00 on a motor vehicle in circumstances where one existed, the Court would be concerned that, if he were provided access to the funds in the manner he seeks, they would likely be “frittered away” in the purchase of depreciable assets or be used to pay outstanding costs orders and would not be preserved, with what is said to be an attendant risk that Ms Kent’s ability to obtain the property ultimately sought by way of just and equitable entitlement would be at significant risk.

31. Insofar as Mr Kent sought orders in relation to permitting Ms Kent to draw on the funds left to her for her reasonable needs, it was submitted that an order in such terms was highly likely to give rise to further dispute, given what was submitted to be the absence of likely agreement about what is meant by the term “reasonable needs”.

32. Further, Counsel for Ms Kent submitted that, in the circumstances where Mr Kent has, in essence, effective control of Kent Ltd, he has done little to outline what, in reality, his financial resources are.  Counsel also submitted that, given Mr Kent’s evidence about the possibility that the operation of Kent Ltd is declining (in the sense of profitability) and action is being taken by commercial lenders in relation to this, it ought not be the case that funds are provided to Mr Kent in circumstances where they might be used by him, in essence, to prop up or support what are, in essence, company liabilities.

33. I consider, certainly, that there is a serious question to be tried, as I have already outlined.  I am not persuaded that it is appropriate, or just and convenient, to make orders in the terms sought by Mr Kent.

34. I consider that there is nothing in the evidence to suggest that Ms Kent has, in her stewardship of the funds currently held by her in various bank accounts, acted in a manner attendant with the risk that she is alienating, or destroying, the property of the parties.  I am not persuaded, therefore, that it is appropriate or just and convenient to make an order by way of mandatory injunction directing that she pay to Mr Kent half of the funds currently in her bank accounts.

35. The value of the property of the parties is such that Mr Kent’s entitlements will easily be able to be met. Also, he is the person, it seems it is uncontroversial, who is best placed, in relation to Papua New Guinea and the asserted difficulties associated with the repatriation of property, to be able to manage and deal with them. 

36. For these reasons delivered orally, I make orders in terms of the Minute signed by me and placed with the papers.  I direct that a copy of the order be provided to the parties by email forthwith.  I direct that a copy of the Reasons for Judgment, once settled, also be provided to the parties.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 September 2017.

Associate:     

Date:    29 September 2017