Manichaeus and Manichaeus
[2010] FamCA 247
•16 March 2010
FAMILY COURT OF AUSTRALIA
| MANICHAEUS & MANICHAEUS | [2010] FamCA 247 |
| FAMILY LAW – PROPERTY – Interlocutory Judgment – Judgment reserved following extensive final hearing – Application to sell properties to reduce liabilities on the grounds of hardship |
| Gallo v Dawson [1990] HCA 30 Jones v Dunkel (1959) 101 CLR 298 |
| APPLICANT: | Mr Manichaeus |
| RESPONDENT: | Ms Manichaeus |
| FILE NUMBER: | CAC | 857 | of | 2007 |
| DATE DELIVERED: | 16 March 2010 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks ACJ |
| HEARING DATE: | 9 March 2010 16 March 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms J. Haughton |
| SOLICITOR FOR THE APPLICANT: | Elrington Boardman Allport Lawyers Self represented litigant |
| COUNSEL FOR THE RESPONDENT: | Ms A. Tonkin Mr K. Robinson |
| SOLICITOR FOR THE RESPONDENT: | Strong Law Pty. Ltd. |
Orders
IT IS ORDERED THAT:
The application filed by the husband on 4 March 2010 is dismissed.
The husband will pay the respondent wife’s costs in the sum of $9,000 on or before 30 June 2010.
Interim matters are otherwise removed from the pending cases list.
IT IS NOTED THAT:
Final judgment about property matters will be delivered not after 2:15pm on 21 May 2010.
IT IS NOTED that publication of this judgment under the pseudonym Manichaeus & Manichaeus is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 857 of 2007
| MR MANICHAEUS |
Applicant
And
| MS MANICHAEUS |
Respondent
REASONS FOR JUDGMENT
In this matter, the husband, pursuant to an order made by me on 9 March 2010, in paragraph 16 of his affidavit material sought the following orders:
(a) that I be permitted to sell Unit 2, [P], in the Australian Capital Territory, here and after referred to as unit 2, and also to apply the proceeds of sale of Unit 5, [P], in the Australian Capital Territory hereafter referred to as unit 5, to debts; the net proceeds that will become available from the sale of unit 5 will not be sufficient to meet all urgent liabilities, and I seek leave to also sell unit 2 to apply the proceeds to the liabilities; and
…
(c) that I be permitted to sell one and six of [P], within six months in order that I am able to refinance all the loans of [Manichaeus] Group by the due date of October 2010; and
(d)that I keep my former wife informed as to the progress of the sale.
These proceedings arose, in essence, as a consequence of an order made by me at the completion of the property proceedings between the parties. The order that was made in those circumstances was the subject of an oral application at the end of the proceedings on behalf of the wife, and I note from the audio transcript of the proceedings that I indicated to the husband that I did not require any further submissions from him in relation to that matter.
The orders were made formally from Chambers on 5 February 2010 and included the following:
(2)The respondent, [Mr Manichaeus], be and is hereby restrained from selling or further encumbering any of the properties in the [Manichaeus] group as disclosed in the proceedings before the Family Court without the prior written consent of the lawyers for the applicant wife, [Ms Manichaeus].
(3)I authorise and direct that the lawyers for [the wife] may give a copy of this order to the ANZ Banking Group Limited.
(4)It is further noted that the proceedings before the Court have now been completed and that I will deliver my judgment in this matter as soon as possible. The injunction imposed in these proceedings is an interim injunction only.
(5)Either the respondent ([husband]) or the ANZ Bank (if the Bank should choose to intervene again) has liberty to apply in relation to the sale or disposal or further encumbering of any of the properties the subject of the proceedings before the Court on giving 48 hours notice in writing through the lawyers for [the wife].
The matter came back before the Court, then, on the application of the husband on 4 March 2010 seeking the orders made by this Court on 5 February 2010 be set aside or, in the alternative, orders of the sort that I have read out previously as contained in the affidavit filed by the husband.
The matter came on before me on 9 March 2010, and on that day the husband was represented by Ms Haughton of counsel, and Ms Tonkin of counsel represented the wife. There were proceedings begun on that day in relation to contempt of Court against the husband – although he categorised them as criminal, they were not, in fact, criminal proceedings – but those proceedings were withdrawn and accordingly dismissed on that day.
The matter yet to be determined was the husband’s application. It became clear on a consideration of that application before me that there was a deficit in the information that might have been reasonably required by me if I were to be able to determine whether the application should be granted.
Order 3 of my orders of 5 February 2010 was made by me on the basis that by way of an interim order the applicant may proceed to complete the sale of the property known as Unit 5, P, ACT in accordance with the contract of sale dated 11 February 2010 (being an annexure to the affidavit of the applicant) pending further order of this Court.
I had indicated during the course of the proceedings, and amended the order by way of the Slip Rule afterwards, that the following should be part of that order 3(b) which was:
The proceeds there from after deduction of sale expenses including the balance of deposit will be applied to reduction of the permanent loan debt to ANZ Bank Limited or to a suspense account if the bank should so determine.
I then made order (4) which was as follows:
The proceedings for a variation to the injunction imposed by me on 5 February 2010 are otherwise adjourned to 9am on 16 March 2010 subject to [the husband’s] filing and serving on or before 4pm on Friday 12 March 2010 any further affidavit upon which he seeks to rely in support of his application for the orders set out in his application. If he should fail to file and serve the affidavit within the nominated time then the hearing is aborted pending further application to the Court and the application will otherwise be dismissed.
I also reserved the costs of that day.
The husband filed on 12 March 2010 the substantive document contained in a lever arch folder, which incorporated an affidavit in formal terms of some four pages with a number of annexures, which were effectively to stand behind the document referred to, so that it would justify the affidavit. He then attempted to file, and in fact delivered to the Court for filing, on 15 March 2010 a further document supplementary to the other affidavit, and while the Court accepted the document at the Registry, (as is proper) on this day, I rejected the document and returned it to the husband on the basis that it failed to comply with the directions I had previously given.
The husband on this occasion represented himself, and Mr Robinson represented the wife. I should indicate that the husband had suggested that it was appropriate that the wife should be in attendance and be available for cross‑examination. I refused that application on the basis that there had been no affidavit filed by her in relation to this part of the proceedings and in any event I add – although I did not mention this to the husband earlier on – in interim proceedings of this sort it is common that the matter is dealt with on the papers rather than by cross-examination.
I note in this matter as well that the substantive affidavit filed by the husband was not the subject of an application for cross-examination by Mr Robinson. I do not take it from that failure on the part of Mr Robinson to seek to cross‑examine the husband that he accepts all the material contained in the affidavit. It is clear that he does not and that he was acting in accordance with the normal practices of this Court.
At the completion of the proceedings before me, which have occupied the best part of five hours (some two and a half times the normal time allocated for such applications), the husband made an application for costs in relation to the two days on which this hearing has occurred and a similar application, I interpret, is being made by Mr Robinson, assuming that he is successful on behalf of the wife in these proceedings.
The essence of the proceedings can be shortly expressed. The husband says this: as a consequence of the injunction imposed upon him on the previous occasion, he is unable to meet his liabilities as they fall due. He claims he has suffered a diminution in income in net terms in recent times. Further, the husband submits that if he is unable to sell the relevant properties he will be unable to discharge his existing indebtedness or to keep on paying his liabilities as they fall due, because in effect – although it is not proved on the papers before me – his income has diminished to a point where the outgoings cannot effectively be met from his day-to-day income from rental properties.
The other part of his application which was, in essence, seeking my previous orders that I made imposing the injunction be overturned, is quite clearly in the nature of an appeal. If the husband wanted to appeal it was open to him to apply for leave to do so to the Full Court of the Family Court of Australia and to have pursued that matter. He did not do so.
In those circumstances, whether or not he feels aggrieved by the way in which the decision was made, or indeed if the decision was made improperly – and I do not acknowledge that that was the case – the question is irrelevant because the order stands until it is the subject of being overturned on appeal. It is not open to me to overturn my own order, even if I considered such a course of action to be justified. I do not.
The balance then remaining was the issue raised by the husband which was should he be permitted to sell two of the units, in effect, although it appears that he seeks a broader brief than that, but to sell two units, and subsequently two further units, for the purposes of discharging his debt and to facilitate his refinancing in due course.
The difficulties associated with the husband’s task in this regard are exactly the same as they were when he was represented by Ms Haughton on 9 March 2010. I understand from Mr Haugton’s responses to me on that day that she understood what was required and what was necessary to be put into a formal affidavit. The affidavit filed by the husband contained a number of paragraphs which were not admissible, because they related either to his mistaken view about the way in which the Court might overturn the previous order, or alternatively were otherwise inadmissible in accordance with the normal rules of evidence.
I appreciate completely how difficult it is for someone who is self‑represented to present matters to the Court in a form that complies with what are sometimes difficult and arcane rules of evidence. Nevertheless, a person who is representing him or herself cannot seek that they should receive any particular benefit from doing so. It is only that to the extent that it is feasible to do so in conformity with ordinary principles of equity and justice, that they be relieved from most of the disadvantages of representing themselves. As Justice McHugh remarked in Gallo v Dawson “[l]ack of legal knowledge is a misfortune, not a privilege.”[1]
[1] Gallo v Dawson [1990] HCA 30, [3].
In this case, the husband has tried, and his staff have obviously worked very hard, to produce material which he thought would satisfy the requirements of the Court, and it is not that effort that is the subject of any adverse comment. Rather, it is the result which is deserving of criticism. In the end, it is not how much effort goes into it that constitutes whether or not things should be accepted by the Court, but rather whether or not it is appropriately admissible into evidence.
In essence, the situation comes down to this: the ANZ Bank has a substantial stake in the Manichaeus “Empire” on the basis that it has advanced a considerable amount of money over the years. The husband has described his relationship with the bank as being a close and convivial one, to the extent that he described himself as the “bank's sweetheart.” The husband indicated that he had in the past been advanced significant sums of money, up to $16,000,000, and there is still an outstanding liability to the bank, as appears from recent correspondence from the bank in Exhibit ‘H12’, of $11,361,944.54.
That substantial debt is secured by mortgages or equivalent documents over all of the properties, as either collateral or primary security for commercial bills or other appropriate borrowing mechanisms that have been employed from time to time.
On the face of it, one would assume that any sale of property, which is what the husband’s application is directed exclusively to, would result in the proceeds of sale being appropriated by the bank in reduction of the outstanding debt from the husband and the Manichaeus Group. I make no distinction between the husband and any of the companies that might logically be included in that description.
The prima facie position in relation to the bank, (that is that they would take all of the proceeds), is substantially supported by a number of documents before the Court. These include Exhibit ‘H11’, which was a document tendered by the husband, being a letter addressed to him from the solicitors representing the bank (Blake Dawson), dated 14 January 2010. In that letter, the solicitors say as follows:
We confirm that the bank remains of the view that pursuant to the terms of the facility –
Which, I interpret, and I think correctly, as being the loan documents in relation to the various properties –
[the bank] is entitled to apply the full net proceeds of the sale of any and all security properties to the reduction of the debt under the facility.
The solicitors go on to say in the following paragraph as follows:
As detailed in our letter dated 23 December 2009, and without prejudice to its rights in relation to any future sales of security properties, the bank is prepared to extend to you the sum of $32,000 from the net proceeds of sale of the property at [F], provided that: (a) you obtain the consent of [the wife], or (b) it is otherwise ordered by the Family Court.
The solicitors go on to say that that money would be held in what they describe as a “suspense account”, pending satisfaction of those conditions, and if the condition is not satisfied by 23 January 2010, the bank would apply that amount in reduction of the debt existing under the facility. In the document tendered by the husband, the solicitors go on to say as follows in the next paragraph:
Additionally, and without prejudice to its rights in relation to any future sale of security properties, the bank is prepared to extend to you 10 per cent of the net proceeds of the proposed sale of the property at Unit 6 [P], provided that –
and again the consent of the wife is obtained or there is otherwise an order of the court, and again that that 10 per cent referred to will be held in the suspense account pending satisfaction with those conditions. If it were necessary, which I do not believe it is, the letter concludes with the following statement:
The above proposals are not and should not be taken to be a waiver or variation of the bank's rights under the facility. The bank will assess on a case by case basis any future request you may make in relation to the distribution of the net proceeds of sale on any other security property.
Mr Robinson referred me to an annexure to an affidavit by Ms Lessli Anna Strong (principal at Strong Law Pty. Ltd.) which was filed in response to the original application in these proceedings. The letter (being annexure ‘F20’) directed to Mr Alan Nelson, who appears to be a solicitor acting for the husband in relation to some property matters, and in particular it would appear from the terms of this letter to Unit 5, P, ACT, which is one of the units the subject of the husband’s application. The letter, omitting formal parts reads as follows:
We act for the ANZ Bank. We refer to your facsimile to the bank dated 12 February 2010 in relation to the proposed sale of the property. We enclose a copy of the orders of the Family Court of Australia dated 5 February 2010; specifically we draw your attention to orders 2 and 5. These orders apply to the above property and accordingly the bank will only discharge the mortgage provided the bank is given [the wife’s] written consent to the sale of the property or an appropriate order of the court.
The letter concludes:
Should the sale proceed, the bank will apply the full net proceeds of the sale to the reduction of the debt existing under the loan facility provided to the [Manichaeus] Group of Companies.
That is a letter dated 18 February 2010 which clearly follows after the earlier letter that I have read out before. In addition, Mr Robinson drew my attention to a letter addressed to him at Strong Law Pty. Ltd., dated 5 March 2010, also from Blake Dawson, which reads, omitting formal parts as follows:
In accordance with the orders of the Family Court of Australia (court) entered on 5 February 2010 the Australian and New Zealand Banking Group Limited (bank) will only discharge the mortgage in respect of a property securing the loan facility for the [Manichaeus] Group of Companies provided the bank is given: (a) [the wife’s] written consent to the sale of the property, or (b) an appropriate order of the court. Should any sale proceed the bank will apply the full net proceeds of that sale to the reduction of permanent debt existing under the loan facility.
The effect of the three letters to which I have referred is to note that the ANZ Bank – who were invited to participate in the primary proceedings, not these proceedings – ultimately have expressed clearly and unequivocally the fact that they would only proceed with discharging mortgages in relation to the various properties involved if there were an order of the Court that permitted them to do so, or the consent of the wife, and that, in any event, the full proceeds would apply in discharge of the debt; the primary debt due by the Manichaeus Group to the bank.
The husband, contrary to that assertion from the bank (which I note was made within the last fortnight) has expressed the view that this Court should proceed and deal with the matters in front of it and leave the bank “to be dealt with by him”, and that in part of that process he would be capable of persuading the bank to permit him to apply funds to meet some of his indebtedness.
I should interpolate that the husband had asserted to me on at least two occasions during the course of the proceedings, in answer to a question by me, that the purpose for his bringing this application was to discharge his debts and liabilities, and it was in that context that the application is made – and only on that basis that his application is made.
The husband’s apparent ability to influence the bank to provide him with what he wants is interesting, perhaps not necessarily proved in any way, but I was concerned that in these circumstances in fairness to the husband who is self‑represented, that he should have an opportunity to provide to the Court by direct evidence the bank's ability and willingness to permit the attribution of funds received from the sale of properties towards the discharge of debt.
Although I issued this invitation to the husband, I think on my own counting at least three times, (it was possibly more), he failed to take advantage of the opportunity to do this. In the end, I was left with a situation where the only evidence that I could reasonably rely upon, in relation to the attitude of the bank, is that the bank would require the full proceeds of any sale of property to be applied in reduction of the debt. The husband, whose application in part needed to rely upon a different interpretation of the situation, had been afforded and failed to take advantage of opportunities to create a different situation.
In those circumstances, I am left with the following situation, which I had outlined to Ms Haughton when it was last before me: that is, that if the debts referred to by the husband, whatever they may be – and I will return to that issue in a moment – were to be paid then they would therefore have to be paid, not out of the sale of properties, but rather out of the income of the companies. The husband acknowledged that whatever the debts may be there was not sufficient money, from the difference between the expenditure of the companies and the income of the companies, to enable those debts to be paid.
In effect, this meant, as the husband proved at least to some extent, that in the past any shortfall between income and expenditure had been met out of the overdraft, and as he proved to some extent satisfactorily, that the overdraft is all but exhausted, the only source of income funds that he could reasonably rely upon for the purposes of producing money to pay the debts, both presently outstanding and as may accrue in the future, must be from his income.
In these circumstances, precisely what his income was, and what his income is, and perhaps more importantly what his income will be; and what his debts are presently, have been in the past or will be in the future as liabilities, are to some extent irrelevant. The husband’s concession, during the course of his lengthy address to the Court about the evidence, makes it clear that he is unable to meet those debts from his income. However, for the sake of caution it is probably appropriate for me to make some comment about questions relating to income, and in addition to questions of expenditure.
In this regard, the husband’s affidavit made assertions about the income that he had received during the course of this financial year to virtually the present date, although technically I suppose until the end of February 2010. He asserted in paragraph 10 of his affidavit that the total income of the group for that period was some $534,951.55, and he also asserted in the same paragraph that the total expenditure of the group during the same period was about $944,704.72.
The precision with which those figures have appeared in the document would suggest that their calculation must have been the subject of a very precise exercise. That is reflected, in part, in the documents that are annexed to the affidavit in the folder that was presented by the husband, in purported compliance with the order I made about his providing evidence in support of his application.
When the documents are examined they represent, in part, a statement or summary statement of a number of other documents which he presents. Those documents are not identified in the body of his affidavit, or indeed in any oral evidence given by him, as representing the ledgers of the company, or indeed part of the official record of the company, or in some way a document produced from the records which could be verified in some other way. That is possibly a measure of the husband’s inability to understand properly the need in relation to evidence to provide a chain of veracity so that it could be clearly identified.
What the documents supplied appear to be, although their precise provenance is not known to me, is a spreadsheet relating to various properties in respect of the income question, and the rent and other details relating to the leases. In this regard, it appears, although it is not clear, that not all of the properties have necessarily been included in that summary, and no explanation is offered – the husband would argue because I have prevented him from doing so – in relation to why others, which apparently have not been paying rent, have not been pursued.
This document, however, does reveal, if I were to accept it on its face value, what the income of the various members of the Manichaeus Group is, as is indicated in the summary that the husband’s staff have produced for him. The husband demonstrated during the course of his address to me an almost total lack of familiarity with the detail contained in the documents supplied, and was obliged constantly to refer to his associate for explanation as to the origin of many of the figures.
This he put to me, and I accept as being reasonable, is a reflection of the fact that his skill does not lie in maintaining the books of the company, but rather in developing the business and in managing the business itself. I do not draw any particular conclusion from the fact that the husband was unable, for example in relation to expenditure, to even indicate, on I think his third go at it, how some of the figures were derived, but rather to indicate that the nature of the figures involved could not be relied upon in any satisfactory way as being absolutely the figures that represented the financial circumstances of the companies involved.
If I were to assume for the sake of these purposes that the income is as the husband had suggested, then the question of the expenditure is of slightly more difficult complexion. In this regard, the husband had indicated in substantial spreadsheet documents that various items of expenditure had been incurred, and that the corroborating material for those expenditures was contained in the folder, to which I have referred.
There were many items which would have taken particular time to go through one by one, and in the circumstances I suggested to the husband, and he accepted at that point, that we should look at one of the items and to see how the figures had been put together. The item I chose at random was the first item in the list of expenditure. It transpired that the figures that were contained in it, which related principally to the payment of interest and line fees for various loans for various companies, were the subject of a calculation based upon either the application of a multiple by months of a mean or average, or in some cases an actual figure for one month for each of the relevant entities.
There is nothing sinister or inappropriate about this, in a broad sense of the word, except that what it means unquestionably, particularly in relation to interest where there was a varying degree or a varying level of overdraft and borrowing, that the figures that are finally produced for expenditure could not possibly be the real figures. The husband submitted, and I think with some justification, that for his purposes it was unnecessary that there should be absolute accuracy as to the expenditure.
It was clear that whether the expenditure were, in his terms, “$100,000 here or there” – and I do not think the level of error is of that order – that there is still an impracticability on his part, or an impossibility possibly, to meet the expenditure that he outlined from the income that he also outlined. In those circumstances, it became a matter of saying that the income, as it is had been for the first 10 months of this year, would not be sufficient to enable him to meet the expenditure if it continued to apply at the same rate as it had for the first 8 months of this year.
That was not all, and in fact, the husband pointed out and spoke passionately at some length about a number of outstanding liabilities which he said required attention. These were set out in paragraph 13 of his affidavit. In paragraph 13 he commenced by saying he wished to apply the proceeds, that is from the sale of one of the properties, to meet a number of urgent liabilities, and these he then set out in some length with some supporting documents following on in the folder, to which I have previously referred.
My addition of these sums, as set out in his paragraph, came to a figure of $946,194, but it became clear during the course of his address to me that one of the figures that I had included in that total, being that under paragraph 13(c) relating to the repayment of the overdraft amount or account, was wrongly recorded in that paragraph as $28,600.57 when it should have been $218,600.57.
I have not redone the calculation, but it is clear that the extra $200,000 would have taken the overall indebtedness, if I were to accept all the debts that are referred to in that paragraph, to over $1,000,000. These are amounts, saving the repayment of the overdraft to which I have just referred, which were different from, and in addition to, the money that is owed to the ANZ Bank.
In circumstances, therefore, where the income was not sufficient to meet the outgoings on a regular basis, it seems difficult to conceive of circumstances in which the full amount of the accrued liabilities, to which I have referred in paragraph 13, even if they were correctly stated in that paragraph – and I do not accept that they are correctly stated in that paragraph for a variety of reasons – could be met from the difference between the income and the outgoings.
This means, in effect, that if there were to be any reduction in this indebtedness, which was said to be the basic grounding for this application in the first place, it would have to come either from additional borrowings, which would in turn distort the balance sheet that had existed between the parties at the time when the evidence completed in relation to the property division proceedings, or alternatively would have to be diverted from the reduction of the primary indebtedness of the companies to the ANZ Bank.
If one assumes for the sake of argument that it was important that these accumulated liabilities should now be discharged, and as quickly as possible, and the money from the sale of the properties that the husband referred to were to be applied for this purpose, then you could leave of course the existing debt to the ANZ Bank unreduced. Hence, there would be a distortion of the balance sheet upon which I am to base my determinations about the division of property between the parties. Nothing of course in this matter is as simple as that.
In this situation, the only evidence of any reliability I have before me – and I emphasise that this is on the basis that the husband failed to take advantage of an opportunity to produce evidence from his bank about a difference in their attitude – is that the bank will apply all of the money from the sale of properties towards the reduction of their primary liability.
I draw the inference to make it abundantly clear that the husband’s failure to call his bank or his bank manager as witness in these proceedings means that the bank would not have given evidence, or is unlikely to have given evidence, which would have been helpful to the husband’s case. It is an inference I believe I am entitled, in all of the circumstances, to draw.[2]
[2] See generally, Jones v Dunkel (1959) 101 CLR 298.
Accordingly, if I were to grant the husband’s application in the terms that he has set out in paragraph 16 of his most recent affidavit, the sale of the properties would do nothing to relieve the accumulated indebtedness of the group, and would do little, apart from reducing the overall indebtedness of the group to the bank, to reduce his outgoings on a regular basis. I do not for one moment diminish, or in any way reduce, the significance of the repayment of debt to the bank, because that in turn would allow a reduction in the interest that would be payable in respect of the loan, which in turn would reduce the outgoings, which would reduce the difference between the income and the outgoings.
In summary, the situation is plainly this: the “empire” upon which the husband has constructed his business is built on shifting sands at this point because of the accumulated debt. He assures me in the course of his address that if everything was sold all the relevant liabilities would be met. Without having at this stage the benefit of being able to devote time to the ultimate analysis of the material that was put before me in the primary hearing, I am not in a position to say whether I agree with his assessment or not.
However, the reality is that his application would not be capable of meeting the objective he seeks, even if I were to accept all of the material contained in his affidavit as relevantly having been proved. In this regard, I made comment that, in so far as the accumulated liabilities are concerned, there are a number of areas in which I have significant doubt as to the accuracy of the estimate, the proper proving of the estimate, or whatever else.
To indicate some things that do not matter, whether or not the item 13(d) relates to “DF” or not, the documents in support indicate a debt exists, it does not really matter much who the creditor was. It is a question of whether the debt exists. However, I am disconcerted by the inclusion (and the impassioned plea by the husband) that “people's lives will be endangered if certain tree surgery weren't carried out”, as appears in item 13(g), by the fact that the invoice is some three years old!
I am also far from satisfied, in all of the circumstances, that all of the debts referred to in paragraph 13(h) are presently due in the way that it is asserted, and I am far from satisfied altogether that there is a basis for saying that there must be a repayment, or a payment of a sum, to discharge a land rental or a rental requirement in relation to one of the properties, although I accept there is a present debt of some $18,000.
None of those things would, in the circumstances, affect the overall equation that I am being asked to consider and which I now do. That is, that the evidence before me from the husband, if taken on its face, would suggest that there is not sufficient surplus income to meet the liabilities as they fall due on a progressive basis, that is assuming that the income does not change in the forthcoming period and there is no evidence given about what changes if any there might be or what changes there might be to the liabilities in the future.
The ANZ Bank, on the evidence before me, will require the proceeds of the sale of any of the properties to be applied in reduction of the primary debt and, accordingly, that in itself will not assist in the reduction of the accumulated debts or to meet the progressive debts as they arise in the course of the next period.
Accordingly, the application by the husband fails to satisfy me that there is a basis for the continuation of his business in my granting that application and the application is refused.
Costs
In this matter each of the parties made an application for costs.
The husband expressed it possibly most succinctly in this way: if a party to these proceedings – (which he expected I imagine to be the wife) – would be unsuccessful, then she should be responsible – in his words – for the costs involved so that he would not have his time disrupted by being brought back to the Court on other occasions. The words are to some extent reversible in that if the husband was unsuccessful, which he was, (it was his application to the Court,) the wife should not be brought back to the Court unreasonably in relation to any such application and the husband should be responsible.
I note that the husband calculated, on the basis of material that he gave me including a letter from his solicitors who previously represented him in these proceedings, that his costs would be for them in excess of $12,000, and he also sought that time should be taken or account should be taken of the time he and his staff have spent in preparation of the material for the court at certain professional rates. I make no comment about whether or not he would be entitled to any reimbursement for his own time, although I do not believe that is the appropriate application of the authorities.
The estimate of costs on behalf of the respondent in this matter of $9,000 in those circumstances seems an entirely reasonable one, and I will make that order accordingly.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Acting Chief Justice Faulks.
Legal Associate:
Date: 25 March 2010
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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3
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