Kite and Kite

[2010] FamCA 911

FAMILY COURT OF AUSTRALIA

KITE & KITE [2010] FamCA 911

FAMILY LAW – PROPERTY PROCEEDINGS – Husband’s application pursuant to s79 (2) of the Family Law Act 1975 (cth) – Court required to make orders that are “just and equitable” – Pursuant to Part 10.4 of the Family Law Rule, orders declarations and notations are made in terms of the minutes submitted by Counsel for the parties in the light of the Court’s findings – Gabel & Yardley (2008) FLC 93-386 –Lippmann & Lippman [2010] FamCAFC 127– Weir v Weir (1993) FLC 92-338

Gabel & Yardley (2008) FLC 93-386
Lippmann & Lippman [2010] FamCAFC 127
Weir v Weir (1993) FLC 92-338

Family Law Act 1975 (Cth)

APPLICANT:  MR KITE

RESPONDENT: MS KITE

FILE NUMBER: BRF 3200 of 2004

DATE DELIVERED: 6 AUGUST 2010

PLACE DELIVERED: PARRAMATTA

PLACE HEARD: SYDNEY

JUDGMENT OF: COLEMAN J

HEARING DATE: 6 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR T. KIRK, SC

SOLICITOR FOR THE APPLICANT: BEATA LESZCZUK
HARTLEY HEALY

COUNSEL FOR THE RESPONDENT: MS J. HOGAN

SOLICITOR FOR THE RESPONDENT: BARRY & NILSSON LAWYERS

Orders

1. That pursuant to Part 10.4 of the Family Law Rule, orders declarations and notations are made in terms of the minutes submitted by Counsel for the parties in the light of the Court’s findings.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: BRF 3200 of 2004

MR KITE

Applicant

And

MS KITE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These reasons for judgment are supplementary to the judgment of the Court delivered in November 2006.

2. As is not in doubt, the intention of the Court that the orders made at the time of the delivery of that judgment would be implemented shortly thereafter in the terms of minutes agreed in the light of the Court’s published conclusions has not been fulfilled.  Why that is so is not entirely clear, and probably not relevant anyway.

3. The parties acknowledge that the Court’s powers under section 79 have not been exhausted or “spent”, as those terms have been used in a number of recent authorities (See Gabel & Yardley (2008) FLC 93-386 and Lippmann & Lippman [2010] FamCAFC 127). The Court having not exhausted its powers under section 79, the overarching requirements of section 79(2) of the Act remain. Section 79(2) requires the Court to make orders that are just and equitable. That obligation influences what the Court ultimately can or should order in the circumstances of this case.

4. It is common ground that it was open to either party to reagitate their contribution-based entitlements.  Sensibly, neither party has.  Similarly, it has been open to the parties to agitate such matters as they consider relevant within the context of section 75(2).  Again, sensibly, that has not occurred.

5. The approach to the proceedings is essentially that subject to what follows the Court will endeavour to make orders now which are just and equitable and preserve the entitlements of the parties as the Court in its discretion determined those in November 2006. That is what the Court understands that the parties ask it to do.

6. Whilst the contribution entitlements and overall entitlements per se will not be revisited in their own right given the Court’s rulings with respect to matters in issue, it could be suggested that implementing a formula for dividing the property of the parties in accordance with the percentages determined in 2006 does incidentally have the effect of altering the overall percentage entitlements of the parties, albeit the Court perceives in a very minor way. The parties are conscious of that. The case has been conducted at all material times on the basis that whilst in essence determining the pool of property of the parties and applying the 2006 percentages would be the exercise the Court would undertake, the various adjustments sought for and against each party by the other would, to the extent that they were successfully sought, have that effect.

7. The Court approaches the question of justice and equity on the basis that the parties do not dispute that the percentage division determined in 2006 should prevail, subject to determining by reference to what pool of property that should occur, and as will be seen, what ancillary orders should be made in the light of the evidence which has emerged over the last several days.

8. To a limited extent credit impacts upon the determination of the proceedings.  The parties do not like each other. They do not trust each other. Not surprisingly, many of the matters that have been controversial, probably since 2006, are in no small measure the result of the parties’ mutual mistrust.  As the course of the trial this week would confirm, in terms of evidence to which credit or credibility is relevant or could be seen as relevant, the focus was overwhelmingly on the wife.

9. The reason for that is simply that for the bulk of the period since November 2006, and indeed until orders made in April of this year, the wife has had the controlling hand as it were in terms of the fate of funds generated by the parties’ jointly-owned realty.  Her stewardship over that period, the quality of it and its nature and extent, give rise to a significant number of the controversial issues in the case. 

10. To the extent that the evidence of the husband was controversial or capable of being controversial, sensibly, having regard to the careful identification and crystallisation of real issues for trial, the evidence of the husband in cross-examination did not and does not assume pivotal significance. Although it might seem improbable that it could be so, accepting the thrust of the husband’s evidence with respect to things done by him is not necessarily inconsistent with accepting the wife’s evidence in relation to matters done by her.

11. The wife’s evidence falls conveniently into two areas.  The first involves credit or credibility in the traditional sense.  The wife presented as a somewhat excitable witness.  Excitability does not automatically or necessarily translate as mendacity, and in this case the Court does not accept that such is the case.  The wife was an essentially honest witness.  Her evidence suffers, as does that of many intelligent people who give evidence, from her tendency to anticipate what a question is seeking to establish, or where it might be leading, and combining the roles of witness and advocate in her endeavours to deal with it.

12. With respect to the wife, in relation to the time spent by her performing the duties which she alleges she did for three and a half years since November 2006, the Court is persuaded that there was a measure, albeit not great, of exaggeration in some of the evidence the wife gave.  The Court discounts the wife’s evidence of her stewardship of the rental properties post-November 2006 in the light of the whole of the evidence. To the extent that it was implicit in senior counsel for the husband’s submissions that the Court would view the wife through the prism of cases such as Weir v Weir(1993) FLC 92-338, or at least be inclined to, the Court does not accept that the evidence justifies such an approach.

13. Conversely, on the other hand, in some instances where the wife bore the onus of proof, her evidence falls short of discharging that onus.  So concluding does not involve drawing adverse inferences as to credibility, but simply arises in part from admissions in response to notices to admit, and in other parts from the circumstantial evidence, particularly arising from the reality that the wife better than anybody revealed by the evidence, had the capacity to explain some matters which she did not explain adequately, or in a way which on the balance of probabilities entitles her allegations to be accepted.

14. Against that broad overview of the evidence, it is necessary then to proceed to make findings of fact with respect to the asset pool of the parties.  The Court will do that and then proceed to deal with the orders sought by the husband in the light of the opposition to those orders mounted on behalf of the wife.

15. Working from a document, which will remain with the Court papers, headed Annexure A, by reference to which the submissions of both counsel have proceeded, the Court notes the following:  firstly, that the figure of $431,269.00 for item 3(d) has been corrected by senior counsel for the husband to reflect the figure of $428,269.00.  That has a consequential impact upon the figures which follow, both in terms of the net notional pool asserted by senior counsel for the husband, and the 49/51 division of it.

16. The figure of $8,113,757.00 becomes $8,110,757.00. The husband’s 49 per cent overall entitlement becomes $3,974,271.00, that of the wife $4,136,486.00.  The cash adjustments necessary to achieve that on the document (Annexure A) are respectively $2,468,517.00 (husband), $1,331,486.00 (wife). 

17. These figures will change to the extent to which the figure of $428,269.00 is reduced as a result of the Court’s rulings with respect to the constituent parts of that sum.  That topic is conveniently taken up at note 2 to the annexure.  It should be noted that the commencing figure of $294,405.00 consistent with the reduction referred to earlier becomes $291,405.00.  Some of the figures in Annexure A are not controversial.  Some are agreed, albeit for different reasons perhaps, but possibly naively the Court does not propose going behind matters which appear to be agreed. 

18. The first controversial item in Annexure A appears to be RTA bonds, item 2(b)(1). The husband seeks to have included in that regard a sum of $20,891.00.  That figure is particularised in Annexure A at pages 11 and 12.  It comprises rental bonds, or details of rental bonds, provided by the RTA, which in Queensland seems to mean something different to what it means in this state. The figures appearing in that document totalling $20,891.00 were admitted by the wife pursuant to a notice to admit to have been moneys deposited into her sole bank account (see page 17 of Annexure A).

19. The evidence of the wife in cross-examination falls short of establishing on the balance of probabilities that the wife did not retain the beneficial ownership of those funds.  With respect to her, the wife better than anyone was in a position to prove her repeated assertion that she did not retain all of the funds, or to demonstrate that moneys had been paid to third parties. The Court invited the wife to suggest a ballpark figure as to what the division between funds retained by her and funds paid to third parties might have been.  The record would show that the wife was unable to do this. 

20. With respect to her client, learned counsel for the wife sensibly sought refuge in relation to this topic in potentially safer waters, and referred to the expert opinion evidence of Mr S. Counsel submitted, by reference to Mr S’s report, it could be said on something of a sliding scale, that Mr S has taken up the great bulk, if not all, of these rental bonds in his calculations. To add them as sought by the husband was thus asserted to constitute double counting.

21. Mr S’s evidence in relation to that topic is less than entirely clear, both in his primary report and in the document, being a report provided by him and attached to his second March 2010 affidavit.  The difficulty the Court has is that to the extent that Mr S relied upon information supplied by the wife, her own evidence before this Court, or the effect of the wife’s evidence before this Court is that the wife could herself give no indication of what became of those moneys.  The wife bore the onus, having made the admission she did in the notice to admit, to demonstrate, the funds having come into her sole account,  either that she did not retain them, or that those particular funds were identified and included in the calculations of Mr S.

22. Essentially on the basis that the wife bore the onus in relation to this topic, particularly having regard to the admissions made by her in the notice to admit, and has not discharged that onus, the figure of $20,891.00 should remain as it does in note 2(b)(1).

23. The sum of $7,219.00 or $7,210.00, whatever it is, item 2(b)(2), it is common ground,  should be taken out. 

24. Item 2(b)(4) is controversial.  The crux of the dispute relating to item 2(b)(4) the Court understands to be that by having had (as the wife has since November 2006) substantial rental income generated by joint properties from which income the husband has not necessarily benefited, the wife has had in effect a double benefit by reason of her use of the funds. That was because the wife had the use of the income, and could utilise it, whilst the husband lost the opportunity to share in the income, or any interest it may have generated.

25. The Court is not aware of any evidence that the wife actually received any interest on any part of the sum calculated or claimed, $16,918.00, as interest, but that is not the test.  The wife had the benefit of the moneys. However ultimately viewed, that reality must be taken into account.  Mr S’s methodology in relation to calculating the interest component was, with respect to Mr S, and appreciating the difficulty of the task he was obliged to undertake, predicated on a number of assumptions which counsel for the wife was able to demonstrate gave rise to a measure of artificiality in his calculations.

26. The Court prefers not to include the sum suggested by Mr S or any other particular sum, but rather to deal with the benefit of the moneys the wife has had globally in the context of an evaluation of the impact of that sum and perhaps others. Relevant in that context is the work done by the wife for approximately three and a half years between November 2006 and April this year. So is the work done by the husband during that same period.  The Court prefers that approach as necessarily any importing of a notional interest sum is on the evidence somewhat artificial, which is not said critically of Mr S.

27. The remaining controversial item in the $428,269.00 addback advanced by senior counsel for the husband relates to the item of significance, which is, 2(d), relates to income from coin-operated machines.  The evidence in relation to that topic is almost entirely the evidence of the wife, although the husband has given evidence as to the use which he has observed to be made of the coin-operated machines in the accommodation facility since he took over its management in April of this year.

28. At its highest, and this is the figure asserted by senior counsel for the husband, the wife may have received as much as $23,000.00 approximately from the machines during the time she controlled their use.  Counsel for the wife, it can probably be said, effectively conceded a benefit of $5,000.00 to $6,000.00 from that source to have been received by the wife.

29. The wife’s evidence in relation to this topic was, with respect to her, very unsatisfactory.  The income generated by these machines is cash, and that may have contributed to some coyness on the part of the wife in relation to the topic.  Were the Court forced to quantify the benefit the wife received - which it would not do with confidence - it would conclude that something in excess of five to $6,000.00 was probably received, but that the evidence falls short of establishing that as much as $23,400.00 was received.

30. The Court prefers to approach this topic not on the basis of an addback, because the evidence is too imprecise to enable it to do so on the balance of probabilities, but rather to pick up this topic in conjunction with that referred to a moment ago, the interest question, and the work done, and indeed, the other expenses claimed by the wife with respect to her management of the accommodation.

31. Passing then to the matter referred to in note 4, the husband sought to be reimbursed a sum of money, or two sums of money.  One of those is relatively straightforward and may not even be controversial.  That item relates to expenses met by the husband and not reimbursed for the months of April, May, June, and albeit not yet quantified, July of this year.  A figure of $10,097.00 emerges.  There is no reason not to accept the husband’s evidence with respect to the incurring of those expenses, or that they were reasonably referable to the jointly owned properties which he was then managing.

32. To the extent that the figure claimed includes 100 per cent of the husband’s motor vehicle claims, the Court proposes allowing that sum because that, the Court understands, is the percentage which Mr S allowed for the wife’s motor vehicle expenses. As the wife was at pains to point out in cross-examination, she was not claiming that amount in its entirety from the Tax Office.  They are of course quite separate things, at least for present purposes. The Court accordingly proposes allowing as a reimbursement the second sum. 

33. The first of the two sums claimed by the husband totalling $10,434.00 is rather more problematic.  As senior counsel for the husband submitted, there was limited cross-examination of the husband in relation to the G claim, which related to the winding-up of G Pty Limited, and none in relation to the matter with respect to which the Court just recorded its conclusion. .

34. In submissions, counsel for the wife submitted that Mr S had “picked up” the G winding-up in his report, that there were, such as in the case of item 4(a)(4), corresponding payments by the wife, whilst in other instances the antiquity of some of the sums claimed was relied upon.  The Court is not persuaded on the balance of probabilities that this claim has been proved.  That is, however, not the end of the matter because, consistent with the approach taken to the wife, the Court proposes taking into account the efforts made by the husband in relation to the winding-up of G Pty Ltd.  As his learned senior counsel submitted, someone had to do it.  He did it, and the Court does not recall any suggestion that his stewardship of that task was derelict. 

35. It is then appropriate to deal with the question of recognition of what each of the parties has done on their joint behalf since 2006.  The husband has managed the rental properties since early April this year.  The husband asserts that this only takes him four to six hours per week.  He has particularised some of the duties which he says he regularly performs.  There is no reason not to accept his evidence that the husband is able to discharge the duties which he undertakes in the timeframe in which he says he does so.

36. It was squarely raised with the wife in her cross-examination by learned senior counsel for the husband that her claims in relation to this topic constituted a gross exaggeration.  The Court is satisfied, having regard to the less than entirely satisfactory evidence of the wife in relation to this topic and her evidence generally, that her version of the time required to do the work which she typically undertook did suffer from a measure of exaggeration.  The Court does not accept however that the wife’s evidence involved “gross exaggeration”.

37. As her learned counsel reminded the Court, the wife had in an affidavit of 29 July this year set out with very considerable particularity the duties which she said she performed.  Whilst the Court understands the clear thrust of the cross-examination of the wife to have been that her allegations involved gross exaggeration, the Court does not recall cross-examination of the wife with respect to the discharge of her duties, save perhaps insofar as they involved her dealing with the husband, to have involved any suggestion of negligent, reckless or wanton conduct such as would have jeopardised the continuing satisfactory operation of the rental accommodation properties.

38. The wife gave evidence, which the Court accepts, as to the times when there were agents involved in managing the properties, and as to the times when there were not.  On balance, the Court is satisfied that the wife probably, on average over the three and a half years during which she was primarily responsible for the conduct of the properties, committed about 25 hours a week to the various tasks associated with running those businesses.

1. Even allowing for some exaggeration in the particulars the wife set out in her July 2010 affidavit, it would be quite unfair and demeaning to trivialise the nature and extent of those contributions.  The more difficult issue is quantifying such contributions and, perhaps even more difficult, determining to what extent the discretion, with respect to addbacks, should be moderated by reference to the wife’s contributions and to those of the husband. 

2. As noted earlier, the wife has had the interest benefit about which there has been controversy. The coin-operated machines have been, to use the colloquial, a handy little earner for her.  The only evidence before the Court, and this is not said critically, suggests that an hourly rate of in the range of $16.00 to $18.00 per hour would give some indication of the likely cost of having had someone else do what the wife did in relation to the operation of the accommodation business.  Twenty-five hours a week at $16.00 an hour translates as something in excess of $400.00 a week, $18.00 an hour $50.00 more.  Over a period of a calendar year that would be about $20,000.00, or about $70,000.00  over a period of three and a half years.

3. The Court does not take these figures into account as some sort of deemed or notional income, but simply as some indication by reference to unchallenged third party documentation as to what it might have cost had somebody else done these things. 

4. The husband, as noted earlier, has made contributions in managing the properties since April, a not-insignificant period, albeit one which quite obviously is greatly exceeded or outweighed by the time the wife committed to that property.  He has also made the contributions with respect to G Pty Ltd, to which reference has earlier been made.

5. The wife also, and this is perhaps a little out of sequence, in the context of expenses the parties have met for which they have not been recompensed, claimed (see her primary affidavit of March, page 3, paragraph 6), three items, two of which related to the residential properties, totalling 6890, and a second sum which has five components and a BAS for December 2009 of $9,254.00. The total of these items was in the order of $30,000.00.

6. Senior counsel for the husband was very critical of what, I think I quote him accurately, and if I do not I apologise, described as “dodgy documents,” advanced by the wife in support of these claims.  The documents fall short of perfection, but on balance the Court is satisfied that those expenses were met by the wife, and have not been recompensed.  They ought be taken into account.  The total of the sums in the amounts in paragraph 6(a), 6(b), of the wife’s affidavit.

7. They fall, as does the $10,000.00 on the part of the husband, to be treated as reimbursements by the parties.  Had those expenses been paid out of income as and when they fell due, the practical effect would be that the parties would have borne them equally, in that the asset pool would have been reduced.  As a matter of arithmetic, adjusting for these would seem therefore a fairly straightforward matter.  On the one hand the wife would owe the husband half of $10,097.  For her part, the husband would owe the wife half of a sum of in the order of about $30,000.00.

8. The question then remains what the Court should conclude with respect to the countervailing factors to which reference has been made.  Before expressing its conclusion in relation to that, the Court records that proceeding the way it does invokes the law referable to addbacks.  The authorities leave little room for doubt that albeit a discretion which much be exercised judicially and not arbitrarily, the question of addbacks involves the exercise of discretion.  The nature of discretion was well expressed, perhaps never better expressed than in the well known passage to which Brennan J referred in Norbis.  Others may disagree without being wrong, or hopefully this Court being wrong in relation to this topic.  Others may adjust more in the wife’s favour, whilst others may adjust less.  On balance, in the exercise of what in the circumstance of this case the Court perceives to be a broad discretion, the Court proposes reducing further the fund resulting from the reductions to the figures in note 2 previously indicated by the figure of $40,000.00.  Broadly speaking, such an adjustment is considered to fairly reflect the countervailing factors to which reference has been made.

9. The Court perceives the foregoing to be dispositive of what could be described as the balance sheet items.  It ought not be thought that because the Court has not referred in greater detail to the submissions of senior counsel for the husband in relation to the wife’s work entitlement claim, both oral and as summarised succinctly on the concluding page of Annexure A, that the Court has not had regard to them. 

10. Perhaps it should be noted that the Court is mindful of the general inference emerging from the evidence that the wife for whatever reason was less than compliant with the preparation of Mr S’s material.  There is, however, with respect to senior counsel for the husband, in the Court’s view a material distinction between those matters which may or may not, time will tell, have significance in the context of a costs dispute, and the day-in day-out contributions of the wife to the effective operation of the rental accommodation over what was, on any objective view, a long period of time, some three and a half years.

11. The Court perceives that the foregoing findings would enable counsel fairly readily to recast the balance sheet and redo the calculations.  As indicated earlier, the Court proposes giving counsel the opportunity to do that.  The Court proposes to remain available to receive minutes, which would not be consent minutes but minutes of order reflecting the Court’s conclusions.

12. It is necessary though, having determined the pool disputes, to proceed to deal with disputes in relation to the orders sought by each of the parties.  That topic is most conveniently addressed by reference to the terms of orders sought by senior counsel for the husband. The Court has had the benefit of hearing submissions of counsel for both parties in support of and in opposition to the provisions contained in those orders.

13. Turning to the orders sought, the Court will not particularly, having regard to the time, delay matters by traversing what are described as the private auction orders.  There is a prospect that the parties can agree upon those.  Without wishing to be difficult, if the parties cannot then, particularly given the history of these parties, who dislike each other and do not pretend that they can communicate or cooperate, it would be a case of hope over experience to make a private auction order unless both parties seek it.

14. One matter of controversy which the Court does not ultimately probably have to rule on, but if it did would probably rule in favour of what it understands the position of the husband to be, relates to whether the distribution of proceeds of sale, wether interparty, or to an external purchaser, should occur as and when each property is sold, or only occur when the second property is sold.  On reflection, there is much force and wisdom in the submission of senior counsel for the husband that, realistically, only when the dust has settled on the second sale can the calculation pursuant to the orders, which is not controversial, be completed.  Beyond that, and in the hope that the parties might be able to reach an accord with respect to a private auction, the Court does not say more about that these matters.

15. Proceeding then to matters that may be controversial, paragraphs 15 and 16 of the document before the Court, which may not be identical with the paragraph numbering in the document in the possession of all counsel,  and I suspect is not identical with the numbering in counsel for the wife’s document require consideration. The two paragraphs are headed, “That the husband be responsible for payment,” and “That the husband is to provide”. The reason these orders are sought is not hard to imagine. Seeking those orders is itself not unreasonable.  History suggests however that making orders in the terms of paragraphs 15 and 16 may in the circumstances of this case be more productive of mischief than anything else, such is the level of mistrust of the parties for each other. 

16. Regrettably, the Court is unwilling to make orders 15 and 16, thereby placing the parties in the position where one of two things happens.  The parties should be able to cooperate sensibly, which one ought not think is that difficult given that legitimate and reasonable expenses do not exist or arise in the absence of documentation which generally leaves little room for doubt as to whether they are legitimate and reasonable expenses or are not. The parties will either have to cooperate sensibly for what hopefully will not be a long time until their financial entanglement is no longer, or regrettably bring another application.   The Court is disinclined to make orders 15 and 16, if only because they facilitate immediate recourse to litigation, whereas to not make those orders forces the parties to try to be sensible in their own commercial interests without that easy access to a Court.

17. In relation to paragraph 18 of the orders, senior counsel for the husband fairly conceded that there was no evidence in support of those matters. 

18. The following order, which is numbered 25 in the copy in front of the Court, is controversial.  It falls into two areas having regard to the advice to the Court from counsel for the parties that tax returns up to and including 30 June 2009 have in fact been lodged.  The expression “let sleeping dogs lie” comes to mind in relation to that period.  Why either of these parties would wish, against the background of the last four years, to stir up those matters is hard to imagine, and indeed could only realistically be likely as an act of vengeance or spite.

19. The more difficult question relates to the tax years for which returns have not yet been lodged, and indeed there is only one year with respect to which there could be an obligation to lodge returns.  To make an order in the terms of paragraph 25 with respect to a year which has yet to be the subject of a return involves a factual finding or assumption which the Court is not able to make.  That finding is that the wife, or indeed the husband for that matter, although the order is only sought against the wife, would do the sorts of things which are referred to in the order. Such a finding is not reasonably open to the Court.  There is not evidence sufficient to make an order of that kind, but if both parties sought an order in those terms but expressed in terms applicable to both of them, such an order would be potentially innocuous, and may even create some positive incentives, and the Court would be prepared to make an order in such terms.

20. Learned counsel for the wife has, by reference to the most recent independent documentation, advised that in order 34 in the document the Court is looking at, which deals with the in specie transfer of shares, the David Jones shares in fact number 1020, not 1000, Telstra shares number 8742 rather than the figure appearing at 34.4, and the Collection House shares, 2550 rather than the figure of 2500 appearing at 34.5.  It is common ground, the Court understands, but if it is not the Court would be prepared to make an order that the costs and taxes incurred with respect to trading any shares received by the parties in specie be borne by the party receiving such shares, and that he or she indemnify the other party in respect of any taxation liability associated with such shares from the time of transfer to him or her.  Such an order probably does no more than the general law would do, in any event.

21. In paragraph 36, as counsel have pointed out, it is perhaps better, particularly if this matter were to go somewhere else, if instead of reading in Annexure A the word “agreed” the description read “pool of assets determined by the Court, as listed in schedule 1.”

22. The qualification to order 37, which relates to personalty offered by the wife, through her counsel has been, with respect, sensibly, one would think, accepted by the husband through his senior counsel, and order 37, dealing with 12 items of personalty, will be qualified to read, “to the extent that such items are in her possession, the wife make available for collection by the husband” etcetera.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 6 August 2010.

Associate: 

Date:  23 August 2010