Martin and Harris

FAMILY COURT OF AUSTRALIA

MARTIN & HARRIS

[2009] FamCA 595

FAMILY LAW – PROPERTY – final orders made by consent in 2004 – wife’s attempts to comply with and enforce original consent orders – husband’s failure to cooperate in carrying out the orders – s79A application of the husband to set aside the 2004 consent orders – husband says it is no longer practical to carry out the original orders and alleges repudiation and says that there was no agreement – payment of creditors and issues of priority in distribution of sale proceeds of former matrimonial home and chattels – whether certain debts were a debt of the husband, the parties jointly or of the husband’s now insolvent company – scope of the original orders – amounts outstanding to the wife under the original orders – whether interest should be payable on the outstanding balance owing to the wife

Family Law Act 1975 (Cth)

Gitane and Velacruz (2007) FLC 93-309

APPLICANT:

Ms Martin

RESPONDENT:

Mr Harris

INTERVENOR:

Mr R

FILE NUMBER:

SYC

1251

2007

DATE DELIVERED:

18 June 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

1-5 December 2008 followed by written submissions

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Broun QC

SOLICITOR FOR THE RESPONDENT:

Mr Gallego

SOLICITOR FOR THE INTERVENOR:

Mr Orlizki

Orders

Orders 2, 3 and 4 of the Application of Mr R filed 14 May 2008 and the Application for Final Orders filed 2 December 2008 in these proceedings be and is hereby dismissed.
The application of the husband to set aside the consent orders made on

25 February 2004
(“the consent orders”) be and is hereby dismissed.
By way of enforcement of the consent orders made on 25 February 2004 it is ordered that:
(a)Both parties forthwith do all such acts and things to cause to be paid to the wife $65,000 from the monies held on trust for the parties with the National Australia Bank, … branch, Account No. …14 in the names of Ms Martin (“the wife”) and Mr Harris (“the husband”), to abide the further order of the Court.
(b)Both parties forthwith do all such acts and things to cause to be paid to the husband $4,127, that being the sum paid by the husband for the cost of a surveyor, from the monies held to abide the further order of the Court on trust for the parties with the National Australia Bank, … branch, Account No. …14 in the names of the wife and the husband.
(c)The husband forthwith pay to the wife interest on the sum due to the wife by virtue of Order 1 of the consent orders of 25 February 2004 calculated from 25 May 2004 to the date of receipt by the wife of that sum at the rates prescribed by Family Law Rules 2004.
(d)The husband is to forthwith pay to the wife an amount equivalent to fifty percent of the amount by which the mortgage on the home increased by reason of his default in payment thereof, fifty percent of which amount is the sum of $124,458.33.
(e)Any amount of money or property to which the husband might be entitled under the provisions of these orders or the consent orders be charged (“the charge”) in favour of the wife, with the due payment to the wife of the amounts referred to in orders (a) (b), (c) and (d) above and order (g) below and that both parties do all such acts and things as may be necessary to cause such amounts as are due and outstanding to the wife to the extent possible to be paid to her from the said entitlements of the husband.
(f)To the extent that the amounts due to the wife under the Orders are not paid the amount not paid shall be a debt due by the husband to the wife.
(g)The wife may set off any amount due by her to the husband, against any amount due to her by the husband.
(h)Such of the assets held by the husband and referred to in Annexure “B” of the consent orders of 25 February 2004 and pursuant to Orders 10 and 11 of those orders are also charged with the due performance of the obligations of the husband to make payments to the wife hereunder.
(i)The husband and wife forthwith deal with the furniture, artworks and items of value listed in Annexure “B” to the original orders. The wife is appointed trustee for the sale of the assets referred to in Order (h) and the husband is ordered to forthwith deliver up to the wife for the purpose of sale, those assets in his possession power or control, and set forth in Annexure “B” to the orders of 25 February 2004.
(i)Within 30 days of the date of these Orders the husband and wife shall do all acts and things and give all necessary authorisations required to offer for sale by auction with an auction house as nominated by the wife the items set out in Annexure “B” to the consent orders.
(ii)Any item/s listed in Annexure “B” to the original orders which are in the possession, power or control of the husband be delivered to the wife or such person as she may nominate.
(iii)The husband is to give full co-operation to the collection of the items from the husband for the purposes of the sale in (ii) above.
(iv)Each of the husband and the wife shall have the right at the sale to purchase such item/s.
(v)The proceeds of sale of any or each item following payment of reasonable auction expenses and after payment of amounts referred to in the next order and due to the husband are to be charged with the payment of any outstanding amount due by the husband to the wife in these proceedings.
(j)Any surplus then arising is to be applied in payment of those liabilities to which the provisions of order 9.5 and 9.6 of the consent orders made on 25 February 2004 which the husband, within 7 days from the date hereof, properly vouches in accordance with the terms of the consent order and which meet the criteria set forth in the consent orders of 25 February 2004 for repayment. Any amount so payable to the husband is subject to the charge for amounts due to the wife hereunder.
(k)The husband and the wife are each to pay one half of any of the liabilities referred to in (j) which remain unpaid.
(l)The husband is ordered to pay to the wife the sum of $7,435.50 (that being one half of the amount which the husband received for the goods contained in the boatshed at the former matrimonial home sold by him without the wife’s authority).
(m)The husband indemnify the wife in respect of any remaining liabilities referred to in Annexure “A” to the consent orders of 25 February 2004 and which complies with the orders as to proof of existence and currency to the extent that the wife has a liability under the orders for payments of such sums by way of offset against sums due by the husband to the wife hereunder.
In the event the husband or the wife refuses or neglects to comply with any of the Orders herein, the Registrar or Deputy Registrar of this Court at its Sydney Registry be appointed pursuant to Section 106A of the Family Law Act 1975 to execute, in the name of the husband or the wife as the case may be, all deeds and instruments necessary to give effect to the orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.
Otherwise the terms of the consent orders are confirmed.
Each party have liberty to apply on 7 days’ notice in regard to the interpretation or implementation of these Orders.
Any application for costs is to be filed an served within 28 days of the Orders herein made, and subject to the following:
(a)Any costs application is to be accompanied by affidavits setting out the evidence in chief on which the applicant wishes to rely together with any written submission in support of that application.
(b)Any respondent to a costs application must file within a further 14 days a response, together with a written submission in support of that response, and any affidavit material, setting out the evidence in chief upon which they wish to rely.
(c)The applicant will have a further 7 days in which to file any submission in reply.
In the event that no application is filed within the time limit specified, then each party is to pay their own costs of an incidental to these proceedings.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1251 of 2007

MS MARTIN

Applicant

And

MR HARRIS

Respondent

And

MR R

Intervenor

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court arise from orders said to be made by the consent of the parties on 25 February 2004 (hereinafter referred to as “the consent orders”) and which are sought to be set aside. There are two applicants for such orders: one, the husband, and another, Mr R, said to be a creditor of the husband and wife and whose interests were said to have been ignored by the order.
The grounds upon which the order is sought to be set aside relied upon by the husband are:
a)that a miscarriage of justice occurred by reason of the fact that the orders, although said to be made with the consent of the husband, were not so made;
b)that the orders are impracticable of performance;
c)that a person has defaulted in carrying out an obligation imposed by the order and that circumstances have arisen as a result of the default that it is just and equitable to vary or set aside the order and make another order in substitution for the order. Under this heading the husband’s assertion is that the parties had by their conduct repudiated the order;
d)that there has been a miscarriage of justice by reason of payments made in reduction of what is said to be joint matrimonial debt since the order was entered into. It is further suggested that the wife has not contributed to the payment of such debt and that thereby the husband has incurred interest and finally that the parties have a judgment against them at the suit of the Commonwealth Bank in respect of which the husband negotiated an accord in satisfaction of the judgment; and
e)that as a matter of both law and justice and equity the creditors of the parties should rank ahead of the husband and wife.
The intervenor, Mr R, seeks in summary that an order be made pursuant to s79A(1)(a) of the Act that the consent orders be varied. Mr R seeks that Annexure “A” be varied to add a loan to him of $115,000, and that a number of other paragraphs be deleted or altered, as set out in his Application for Final Orders filed 2 December 2008.
Issues raised by the other Intervenor, Ms P, have been settled between the parties.
There are other claims arising out of the orders and the consequences which might flow if they are set aside as sought.
There are also claims as to what orders should now be made to give effect to the orders in the present circumstances of the case if they are not set aside.
It seems however that logic dictates that the first consideration which should be given to the matter is whether or not the grounds to set the orders aside are made out and whether in that event I should, in the exercise of my discretion, do that or whether the terms of the orders should be varied.

Background Facts

Where in this judgment I make statements of fact they are findings of fact.
The husband was born in New Zealand in March 1949.
The wife was born in New Zealand in September 1952.
The parties commenced cohabitation in 1972.
The parties married in March 1973.
The parties’ first child was born in September 1975.
The parties’ second child was born in May 1978.
The parties’ third child was born in August 1986.
On 5 April 1989 the incorporation of G Pty Limited was procured (hereinafter referred to as “G Company”).
In 1995 the wife had some slight contact with a Mr R.
On 7 September 1992 the wife was appointed a secretary of G Company. The wife was never appointed a director of the company.
In 1996 and again in 2001 the husband and the wife provided guarantees to the Commonwealth Bank of Australia, inter alia, for certain advances made and facilities provided to the company.
In early 2002 the wife ceased to use the NBNZ credit card which she had available to her.
In April 2002 Mr R deposited the sum of $45,000 into the bank account of G Company.
On 7 October 2002 Mr R transferred $50,000 into G Company’s bank account.
In November 2002 an administrator was appointed to G Company.
In November 2002 there was a conversation between the husband and wife as to their assets and liabilities.
In December 2002 the wife took pictures of paintings and items of value in the home.
In December 2002 a liquidator was appointed to wind up G Company. The husband asserts that G Company went into liquidation on 8 December.
In 2003 the parties sold a property in Sydney and certain other property and the wife refused to sign further mortgage documents.
In January 2003 the company changed its name from G Company to “[AC] Pty Limited”.
On 20 March 2003 the parties separated.
At or about the time of separation the parties’ boat, (hereinafter referred to as “the boat”) was valued at $250,000.
The wife also says that at this time she was advised by the husband that

Ms P, an employee of the company, was owed the sum of $13,000.
On 7 July 2003 the husband informed the wife by email that “the House [referring to the parties’ matrimonial home] valuation came in at $1,350,000 and the mortgage is $1,015,000”.
On 19 August 2003 the wife filed a Form 3 Application seeking orders for the alteration of interests in property and spouse maintenance.
On 29 September 2003 the husband procured a real estate appraisal (but not a valuation) of the matrimonial home, of between $900,000 and $950,000.
On 30 September 2003 the wife’s application was listed for interim hearing and the husband deposed in relation to that application and in reference to the house, “I eventually obtained a written valuation for $1,350,000.00.”
On that same date the husband filed a statement of his financial circumstances setting forth the value of the former matrimonial home at $1,350,000 and a statement that the balance owing under the mortgage registered against that property was $1,050,000.
On 30 September 2003 interim orders were made by the Court.
In summary, the Orders included that the husband pay to the wife $3,500 within 14 days, and provisions in the event the wife exhausted that payment and the receipt of any tax refunds. Within 7 days the husband was to provide to the parties’ accountants all documents required to facilitate the preparation and lodgement of the wife’s 2003 Income Tax Return, at the husband’s expense and also to provide to the wife’s solicitors a list and details of all items of property disposed of by the husband since separation. In addition, orders were made for the husband to pay expenses in relation to the Holden Station Wagon. The wife at her discretion was to sell the items as listed – namely artworks, paintings and mirrors, in relation to which the husband’s consent was not to be unreasonably withheld and orders were made in relation to the net proceeds of sale. The husband was also ordered to continue to pay expenses for the parties’ youngest child.
On 19 November 2003 a letter was received from a valuer, Mr O valuing the former matrimonial home at $1,380,000.
On 25 February 2004 the following orders were made by consent, and are set out hereunder:
“BY CONSENT IT IS ORDERED:
1.That the husband pay to the wife’s solicitors, Broun Abrahams the sum of $65,000 (“the said sum”) in the following manner:
1.1.     $1,000 within one week of the date of the orders;
1.2.     $500 within two weeks of the date of the orders
1.3.     $500 within three weeks of the date of the orders;
1.4.     $500 within four weeks of the date of the orders;
1.5.a further payment of $2,500 on or before one month from the date of the orders;
1.6.$60,000 by way of bank cheque on or before three months of the date of the orders.
2.That in the event that the husband fails or neglects to make any instalment payment of the said sum the husband and the wife shall forthwith do all acts and things and sign all documents necessary to sell for the best price reasonably obtainable in accordance with the terms set out in Annexure C to these orders the property known as and situate at […] [the matrimonial home] in the State of New South Wales (“the property”) and the proceeds of sale of the property shall be disbursed as set out in Order 9 below.
3.That the husband and the wife shall forthwith do all acts and things and sign all documents necessary to sever their joint tenancy interest in the property and to hold their respective interest in the property as tenants in common in equal shares.
4.In the event that the husband has complied with Order 1 above:
4.1.That on or before 28 February 2009 the husband and the wife shall do all acts and things and sign all documents necessary to have the property valued by a registered valuer as agreed between the parties and failing agreement by a valuer as appointed by the President of the Australian Property Institute (“the valuation”);
4.2.The husband shall pay to the wife within three months of the date of the valuation one half of the net equity of the property (“the payment to the wife”);
4.3.The net equity of the property for the purposes of calculating the payment to the wife shall be calculated by:
4.3.1. Taking the amount of the valuation;
4.3.2.less the National Australia Bank Limited mortgage no. […]01 currently registered against the property to a maximum amount of $1,015,000 (“the original mortgage”) or any other mortgage taken out in substitution for the original mortgage, such other mortgage not to exceed the sum of $1,015,000; and
4.3.3.less the liabilities set out in Annexure A to these Orders provided the liabilities comply with the provisions of Order 18 below.
5.Contemporaneously with the payment to the wife pursuant to Order 4 above:
5.1.The wife shall do all acts and things and sign all necessary documents to transfer to the husband all her right title and interest in the [matrimonial home] in the State of New South Wales being the whole of the property in Folio Identifier […];
5.2.The husband shall secure a discharge of the original mortgage or any other mortgage taken out in substitution for the original mortgage and shall indemnify and keep indemnified the wife in respect of any mortgage liabilities pending such discharge.
6.That pending the payment to the wife as provided in Order 4.2 above:
6.1.The husband shall be restrained from further encumbering the property other than to procure the payment to the wife of the said sum referred to in Order 1 above;
6.2.The husband shall pay as and when they fall due all outgoings in respect of the property and all mortgage payments and shall be entitled to retain all income howsoever received from the property as well as the boat referred to in Order 12 below.
6.3.The husband shall keep the property insured at all times and pay as and when they fall due all insurance premiums on the property until the property is transferred to the husband in accordance with Order 5 above or is sold as provided in Order 2 above or Order 7 below.
6.4.The husband shall keep the property in good order and repair until the transfer in accordance with Order 5 above or sale of the property as set out in Order 2 above or Order 7 below.
7.That in the event the husband does not make the payment to the wife on or before three months from the valuation date as provided in Order 4 above the husband and the wife shall forthwith do all acts and things and sign all documents necessary to sell the property in accordance with the terms set out in Annexure C to these orders.
8.That within seven days of entering into a Contract for Sale of the property the husband shall provide to an accountant nominated by the wife all documents in his possession, custody or control that are requested by the said accountant and necessary to calculate the tax payable by the wife, if any, on any capital gain in respect of the anticipated sale of the property.
9.That upon the sale of the property as provided in Orders 2 or 7 above the proceeds of sale shall be disbursed in the following priority:
9.1.In payment of agents commission, auction expenses (if any) and other reasonable selling costs;
9.2.In payment of legal fees incurred on the sale;
9.3.In discharge of the original mortgage or such other mortgage as may have been substituted to a maximum of $1,015,000;
9.4.In payment to the wife of any part of the said sum outstanding pursuant to Order 1 above together with interest thereon;
9.5.In payment of the liabilities or such balance of those liabilities that remain outstanding as detailed in Annexure A to these orders together with any interest incurred thereon and provided the liabilities comply with the provisions of Order 18 below;
9.6.In payment to the husband in reimbursement of those amounts the husband has paid from the date of the Orders to the date of sale pursuant to Orders 2 or 7 above in reduction of the liabilities as set out in Annexure A to these Orders provided the liabilities comply with the provisions of Order 18 below but excluding any amounts paid in reduction of those liabilities from the sale of the items set out in Annexure B to these Orders and from the sale of the boat referred to in Order 12 below.
9.7.50% of the balance remaining to the wife;
9.8.To the wife’s solicitors Broun Abrahams to be held in trust such amount as is determined by the accountant referred to in Order 8 above as likely to be payable by the wife to the Australian Taxation Office referable to any capital gain in respect of the property in the event that the husband ceases to reside in the property (“the cessation date”) from the cessation date to the settlement of the sale of the property.
9.9.The balance to the husband.
10.That within 30 days of the date of these Orders the husband and the wife shall do all acts and things and give all necessary authorisations required to offer for sale by auction with an auction house as agreed between the parties or failing agreement with an auction house dealing with fine arts as nominated by the President of the Auctioneers and Valuers Association of Australia the items set out in Annexure “B” to these Orders and the proceeds of sale of any or each item following payment of reasonable auction expenses to be paid to a cash management account to be established in the joint names of the parties and upon which no drawing may be made without the signature of both parties (“the parties’ joint account”) the funds in the parties’ joint account to be applied in discharge of/reduction of the liabilities set out in Annexure A to these Orders provided the liabilities comply with the provisions of Order 18 below and any amount remaining shall be divided equally between the parties.
11.That each of the husband and the wife shall have the right at any time prior to the sale provided in Order 10 above to obtain a valuation from a valuer as agreed between the parties or failing agreement a valuer as nominated by the President of the Auctioneers and Valuers Association of Australia in respect of any item to be offered at auction (“the valuation price”) and to purchase such item or items at its/their valuation price. The proceeds of any such sale are to be paid to the parties’ joint account and to be applied to the discharge of/reduction of the liabilities set out in Annexure A to these Orders provided the liabilities comply with the provisions of Order 18 below.
12.That the husband and the wife shall forthwith do all acts and things and sign all documents necessary and give all necessary authorisations to offer for sale the motor vessel […] (“the boat”) with a ship broker as agreed between the parties or failing agreement by a ship broker as nominated by the President of the Auctioneers and Valuers Association of Australia at a sale price of $250,000 or such other sum as may be agreed between the parties and in the first instance the wife or her agents have responsibility for effecting such sale, and in the event that the boat is not subject to a contract of sale at the expiration of 5 months from the date of these Orders then the wife is to offer the boat for sale by auction, such auction to take place within 6 months from the date of these Orders at a reserve price of $200,000.
13.In the event that the boat is not subject to a contract of sale with a purchaser within 6 months of the date of these Orders in accordance with Order 12 above then the husband and the wife shall do all acts and things and sign all necessary documents and give all necessary authorisations to offer the boat for sale with a ship broker as agreed between the parties and failing agreement with a ship broker as nominated by the President of the Auctioneers and Valuers Association of Australia at a sale price of $200,000 or such other sum as may be agreed between the parties and the husband or his agents shall have responsibility for effecting such sale and in the event that the boat is not subject to a contract for sale at the expiration of 11 months from the date of these Orders then the husband is to offer the boat for sale by auction at a reserve price of $100,000 such auction to take place within 12 months of the date of these orders (“the second auction”).
14.That in the event the boat remains unsold following the second auction referred to in Order 13 above then the wife shall do all acts and things and sign all documents necessary to transfer to the husband the whole of her right title and interest in the boat and the husband shall indemnify and keep indemnified the wife with respect to any liabilities owing in respect of the boat.
15.That in the event the boat is sold pursuant to Orders 12 or 13 above then the proceeds of sale are to be disbursed in the following priority:
15.1.In payment of broker’s commission, auction expenses (if any) and all other reasonable costs of sale;
15.2.In discharge of any debt, charge or encumbrance in respect of the boat to a maximum liability of $72,000;
15.3.In reimbursement to the husband of all fees, charges and interest payments secured on the Boat for a period which the wife has control of the sale or auction of the boat pursuant to Order 12 above and subject to the husband providing to the wife documentation evidencing any fees charges and interest payments made by him the subject of such reimbursement.
15.4.In discharge of/reduction of the liabilities set out in Annexure A to these Orders provided the liabilities comply with the provisions of Order 18 below.
15.5.the remaining balance (if any) to be divided equally between the parties.
16.(a)       That within 7 days of the date of these Orders the wife shall do all acts and things and sign all necessary documents to cause to be transferred to the husband all of her right title and interest in Land Rover motor vehicle registration no. […] (“the Land Rover”).
(b)That upon the transfer of the Land Rover to the husband pursuant to sub-paragraph (a) above the husband shall indemnify and keep indemnified the wife in respect of any lease, charge or encumbrance secured over the Land Rover as at the date of transfer.
17.That within 7 days of the payment to the wife of the sum referred to in Order 1.1. above the wife shall cause to be returned to the husband Holden Commodore motor vehicle registration no. […] (“the Commodore”) and until the return of the Commodore shall indemnify and keep indemnified the husband in respect of any traffic and parking infringements up to and as at the date of return and the wife represents:
17.1.That there are no traffic or parking infringements as at the date of these orders; and
17.2.That the Commodore is in the same order and repair as it was when it came into her possession.
18.The parties acknowledge that the liabilities set out in Annexure A to these Orders shall only be relevant to these orders if the husband provides to the wife proof of:
18.1.The quantum and terms of the liability;
18.2.That the liability was incurred prior to the date of separation;
18.3.That the liability remains owing and is a personal liability of the husband;
18.4.That where the husband has discharged or reduced any liability listed in Annexure A and seeks reimbursement for the payment by him, that the debt was a personal liability of the husband as at the date of payment by him of such debt;
18.5.The parties acknowledge that notwithstanding that the amount of $21,500 asserted by the husband to be owing to [Ms P] does not comply with sub-paragraphs 18.1 to 18.3 above, provided that [Ms P] provides to the parties proof of the existence and quantum of the debt and that the debt was incurred prior to the parties’ separation, then such sum is to be included as an agreed liability to be paid in accordance with these orders.
19.That the husband shall forthwith indemnify the wife and keep her indemnified in respect of any current or future liability for tax relating to income earned by the husband referable to the property.
20.Other than as provided in these Orders, and excluding those amounts defined in Order 18 above the husband hereby indemnifies and shall keep the wife indemnified from and against:
20.1.all claims, actions, suits or demands arising out of or in connection with her having been at any time an office holder or shareholder of [G Company] Pty Limited (“the company”);
20.2.in respect of any amounts owing by the wife to the company as may be reflected in the loan accounts of that entity;
20.3.in respect of any income tax payable by the wife referable to any income or distribution from the company.
21.That other than as provided by these Orders the husband shall indemnify the wife and keep her indemnified in respect of those amounts to be paid by him pursuant to these orders and shall retain all records, receipts and documents evidencing any payment made by him in reduction of the liabilities set out in Annexure A to these Orders and for which he will seek reimbursement as provided for in Orders 9.6 and 18.4 provided that such liabilities comply with the provisions of Order 18 above.
22.Other than as specifically provided for above each party is solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession, ownership or control of each party as at the date of these orders.
23.That there be no order as to costs.”

At the time of the consent orders it was asserted to the wife that the debt to Ms P had increased from the previously stated amount of $13,000 to an amount of $21,500.
Thereafter, there was a continuing exchange of correspondence between the parties’ solicitors relating to the implementation and enforcement of orders. This exchange has continued between the parties and or their representatives, up to the commencement of the hearing.
This correspondence has I might say, particularly where it emanated from the husband’s solicitors, failed in meeting that standard of politeness, neutrality and professionalism that the Court and the parties are entitled to expect from those who represent them. A similar comment could be made in relation to the affidavits filed in the proceedings. In addition, some of the statements generally made in affidavit material in this case were scandalous and offensive and marked a low point in the husband’s conduct and the conduct of those who more recently represented him in permitting the husband to make them.
In essence, the wife in that correspondence sought the implementation of the consent orders, namely in relation to the sale of the boat, furniture, artworks and the former matrimonial home. In relation to those issues, the husband sought either agreement of the wife to delays in the implementation of those orders, or the adoption of a different method of implementation.
Without setting out each item of relevant correspondence, as detailed by the wife in her affidavit filed 12 November 2007, by way of example on 30 April 2004 the wife’s solicitors wrote to the husband’s legal representatives proposing that the boat be offered for sale through a specified business and for arrangements to be made for the boat to be made available to the nominee of the President of the Auctioneers and Valuers Association of Australia, Mr Y, pursuant to the consent orders.
After a series of further letters from the wife’s solicitors, including on 30 April 2004, 25 May 2004, 10 June 2004, 1 July 2004 and 9 July 2004, the wife said she was informed and verily believed that the husband never contacted Mr Y, despite repeated requests in the correspondence to do so.
Since 25 May 2004 the wife asserted that outstanding payments of $60,500 have remained owing to her, from the husband. It is said by the wife that payments of only $4,500 were received of the total sum of $65,000 due under Order 1 of the consent orders. As is discussed later in this judgment, the husband said in oral evidence at the hearing that he did not intend this payment to form part of the sum payable under Order 1 and so it will not be treated as a credit against his obligation.
On 26 July 2004 the parties were divorced.
In February 2005 the husband proposed that a strip of land at the former matrimonial home be sold to a neighbour for the sum of $100,000 as a part performance of the obligation for sale of the home. Following correspondence, including in relation to details of the administrative costs and how the net proceeds of sale were to be distributed, such a proposal was agreed.
I do not consider the agreement to be an abrogation or repudiation of the orders which had been made but an accord and satisfaction in relation to the sale as a part performance of the obligation under the order. Thus the process is not an agreed repudiation of the order, but an accepted part performance of the obligations which it created.
In July 2005 letters were addressed to the wife by Esanda which are later referred to and posted to her at the former matrimonial home. The wife, who was not a resident, did not receive them. A letter addressed to the wife at the former matrimonial home and dated 19 July 2005 was a Default Notice with respect to obligations to Esanda arising out of an agreement to finance the parties’ boat.
In February 2005 the wife, having accepted the proposal for the sale of the strip of land previously referred to, signed documents to enable the subdivision to proceed. Discussions then ensued as to how the subdivision was to proceed.
In August 2005 the wife became aware for the first time that, notwithstanding the orders agreed to, the husband had not paid the interest payments to the mortgagee under the terms of the mortgage charged on the matrimonial home. The wife ascertained that arrears had accrued. Until that time arrears on the mortgage were accruing to an account in the sole name of the husband. The interest was then re-debited to the mortgage and arrears became payable.
In September 2005 Esanda wrote to the husband asking him to pay out the loan balance.
The solicitors for the wife sought clarification of how much of the amount of about $100,000 proposed to be paid for the subdivided strip the bank would require.
On 27 September 2005 Mr N paid to Esanda the sum of $35,189.82. In his affidavit filed 5 June 2008, Mr N says that this sum was part consideration for the purchase of the boat.
On 18 October 2005 Mr N paid to the husband the sum of $5,000 as further consideration for the sale of the boat referred to above.
On 26 October 2005 Mr N paid to the husband a further amount of $10,000 in relation to the sale of the boat.
On 3 November 2005 Mr N paid an amount to the husband of $15,627 with respect to the boat sale.
On 3 November 2005 Mr N paid to Mr V the sum of $6,042.70. In his affidavit filed 5 June 2008, Mr N says the husband told him that Mr V had paid some instalments on behalf of the parties. On the husband’s evidence he had borrowed $6,042.70 from Mr V to cover the debt of the husband and wife, and that this sum was subsequently paid by Mr N as part of the consideration for the ultimate sale of the boat.
Thereafter there was correspondence between the solicitor acting on the sale of the property (being an independent solicitor appointed for that purpose), Mr Silberberg, and the solicitors for the wife in relation to the sale. On 15 March 2006 the wife signed the contract for the sale of the strip of land and the contracts were exchanged. The sale price was $120,000. A deposit of $16,000 was paid to the agents and was released to the husband, to meet the expenses of the subdivision of the property.
In July 2006 the husband listed the matrimonial home for sale with a Mr C. This was done without the wife’s knowledge.
Between 14 July 2006 and 14 August 2006, documents produced show a deposit of $19,990 from Mr R being received by the husband in the joint ANZ account of the parties. No evidence was subsequently produced by the husband showing how the monies were expended in support of his claims that the funds were used for the purpose of preparation of the matrimonial home for sale.
Of the amount paid by Mr R a portion of that loan, the sum of $6,719 was used to discharge the overdraft on that account. Consequently, the wife asserted that the most that Mr R could have advanced for the renovation or sale of the property was some $13,000.
The only evidence at this time of expenditure by the husband appears to be for personal expenditure. It is asserted by the husband that on 24 July 2006 Mr R paid the sum of $20,000 to a joint ANZ account operated by the husband, and which was received into that account on 26 July 2006. The husband filed an affidavit on 14 May 2008. Annexure “E” to that affidavit is a copy of an ANZ bank account operated in the joint names of the husband and the wife but solely it seems by the husband in fact.
That statement shows a payment of $19,990 being received into the account on 26 July 2006, with the detail “Transfer Reference 725020484”. Mr R filed an affidavit on 14 May 2008, and in paragraph 14 says:
“In or about late July 2006, nearly four years later, [the husband] telephoned me requesting a further loan to enable the sale of the [matrimonial home] to proceed.”
Mr R says that on 25 July 2006 the sum of $20,000 was debited from his HSBC Hong Kong account and transferred to the parties’ joint ANZ account. Annexure “C” to that affidavit is an “Outward Remittances Advice” showing a remittance amount of $20,000 on 25 July 2006 to the ANZ Bank, and to the bank account number operated in the name of the husband and wife, but in fact solely operated by the husband.
The husband’s affidavit annexed a bank statement of the ANZ account for the period 14 July 2006 to 14 August 2006. The statement shows that after the $20,000 from Mr R was deposited, three amounts, totalling $2,692 were paid on David Jones, Citibank and NAB credit cards. The wife further sets out in her affidavit payments which were made from that account, following the deposit of $20,000 by Mr R.
The wife referred to the husband’s affidavit filed on 14 May 2008. Paragraph 32 of that affidavit sets out the husband’s evidence as to how he asserts the money loaned by Mr R was used – including towards marketing expenses and repairs to the house, boatshed and jetty walkway, among other expenses.
In her affidavit the wife asserted that with the possible exception of a $4,127 payment made to a surveyor, the bank statements do not identify payments which could be referred to as being used to prepare the house for sale. In addition, the wife says that the marketing expenses referred in that affidavit at paragraph 32 are not evident in the statements.
The wife’s evidence in her affidavit is that she did not receive any statements for the ANZ account following separation, and was unaware of whether or not the husband was continuing to use the account. At paragraph 52 the wife says she was unaware of the $20,000 deposit until viewing the statement as annexed to the husband’s affidavit material in these proceedings. Such documents as have been produced providing some dissection are summaries of the husband, without much in the way of supporting documents (save for some bank statements), complying with the requirements of the consent orders in that regard.
In July 2006 the wife’s solicitors were notified by the husband’s solicitors that he wished to sell the home without proceeding with the prior agreed sale of the strip to the neighbours, Mr and Mrs B.
In November 2006 additional buyers were located for the property.
In December 2006 Mr Silberberg, the husband’s solicitor and on instruction from the husband, prepared a contract for the sale of the former matrimonial home to Mr N for $1,400,000, disregarding the contract with Mr and Mrs B.
In late January 2007, the husband’s solicitor advised the wife that the offer was now $1,300,000 and the wife says she was concerned that the contract for sale was to purchase the entire property, thus disregarding the sale of the strip to Mr and Mrs B.
In February 2007 Mr and Mrs S agreed to buy the home and agreed to complete the contract for the sale of the strip of land to Mr and Mrs B. The sale price was $1,320,000. The husband refused the offer.
The wife’s solicitors informed Mr Silberberg that the wife would not accept the offer of Mr N and expose the parties to possible litigation with Mr and Mrs B.
In February 2007 the National Australia Bank threatened to sell the property using its power if the parties did not agree to a sale.
On 28 February 2007 the wife’s solicitors provided a copy of a contract for sale to Mr and Mrs S as negotiated. The contract was signed by the wife however the husband refused to sign it.
It was asserted by the husband that between March and June 2007 he was unable to locate the linen plan of subdivision. He ultimately located it.
On 8 March 2007 the matter was listed before a Federal Magistrate seeking enforcement orders and that application did not succeed.
On 8 May 2007 contracts for the sale of the former matrimonial home to Mr T as purchaser, for the sum of $1,400,000, were exchanged.
From May 2007 correspondence passed between the parties’ respective solicitors, relating to the sale of the boat and the furniture and artwork and liabilities said by the husband to exist.
Correspondence also ensued in relation to remedial work required to be done to the matrimonial home. Upon inspection the home was said by the wife to have been unclean with dogs living in the master bedroom and the garden overgrown.
Certain rectification works to the matrimonial home were required to be undertaken prior to sale and there was correspondence in relation to those works.
In June 2007 information was supplied by a Managing Agent in relation to income derived by the husband from the lease of a boatshed (used as residential rental accommodation) and which was part of the matrimonial home.The wife says she has no record or information as to what contributions to the mortgage were made from that rental income.
On 8 June 2007 Justice Boland delivered judgment dismissing the wife’s appeal against orders made by Federal Magistrate Sexton on 8 March 2007 (declining to make orders for enforcement).
In July 2007 settlement of the sale of the home was due to occur. However, as the husband was unable to locate the original Survey Report the sub-division plan could not be registered, and in addition the necessary rectification works had not been completed on time.
In July 2007 the husband agreed that the wife should receive in lieu of her entitlement under the consent orders, the sum of $60,500 but not agreeing to full compliance with the orders. This was set out in a letter from the husband’s solicitor to the wife’s solicitor, dated 5 July 2007 and which was in response to correspondence from the wife’s solicitor.
On 12 July 2007 the wife filed an Application for Final Orders supported by an affidavit showing the efforts made to procure compliance with the orders. The wife later filed an Amended Application on 7 April 2008.
On 16 July 2007 Judicial Registrar Johnson made the following orders by consent, namely:
“1.That by consent orders are made in accordance with the hand-written Minute of Orders filed in Court today and signed by counsel for the wife, solicitor for the husband and by Judicial Registrar Johnston and placed with the Court papers.
“1.Pending further order, on the completion of the sale of the [matrimonial home], the amount payable secured by the mortgage to the NAB is to be paid from the proceeds and all other sums are to be held by the solicitor Mr Silberberg in a Controlled Monies account in trust for the parties at interest pending resolution of all remaining issues.
2.The Form 2 Application of the wife is to be adjourned to Tuesday 7 August 2007 at 9.30am in the Registrar’s Callover List.
3.Any further application on behalf of the husband by way of a Form 2 Application or a Form 2A Response shall be filed on or before the 7 August 2007.”
On 23 July 2007 the documents relating to the subdivision were finally registered with the Land and Property Information Service after a new deposited plan had been prepared.
On 25 July 2007 it is alleged that the debt due to Ms P had risen to an amount of $26,236.25 with interest of $11,976.
On 26 July 2007 a letter was received from the purchaser’s solicitors claiming that certain rectification work had not been done.
On 6 August 2007 the sum of $3,500 was released to the husband for building works on the former matrimonial home.
On 7 August 2007 the proceedings were listed before Judicial Registrar Johnston and the following orders were made by consent, namely:
“1.That by consent an order is made pending further order in accordance with paragraph 1 of Annexure A in the Application in a Case filed on 12 July 2007 as set out hereunder:-
1.That the Respondent Husband and the solicitor acting on the sale of the property situate at and known as [the matrimonial home] hold the proceeds of sale on trust until further order of the Court to distribute as follows:
(a)The amount required to discharge the mortgage to National Australia Bank (“NAB”) secured over the [matrimonial home] property;
(b)The amount of $60,500 to the Applicant Wife (pursuant to Original Order No. 1)
(c)That the remaining proceeds be held pending further order of the Court as to the following matters:
(i)The resolution as to whether agent’s commission is payable by only [A Real Estate] or [A Real Estate] and [C Real Estate];
(ii)As to the costs payable to Mr Robert Silberberg, whether they are payable by the parties equally or by the Respondent in respect of the additional legal expenses for which the Respondent is responsible as explained in the Applicant’s Affidavit filed with the Application;
(iii)The resolution of the amount of interest payable to the wife in respect of the sum of $60,5000 (sic);
(iv)Resolution as to the payment of any liabilities still payable after being established in accordance with Order 18 of the Original Orders;
(v)Repayment to the husband of any amounts he has paid for which he claims reimbursement established pursuant to Original Order 18;
(vi)The adjustment if any in respect of the proceeds of sale of the boat;
(vii)Adjustment if any in respect of the husband’s receipt of rental income in respect of the [matrimonial home] property and boatshed;
(viii)Resolution of what amount (sic) are payable to the parties in respect of the sale of the items still held referred to in Schedule “A” to the Original Orders including directions as to the sale of the remaining available items;
(ix)Any further issues remaining pursuant to the Respondent Husband’s claims to distribution from the proceeds of sale to himself.”
2.That by consent these proceedings are otherwise adjourned to the call-over of the Judicial Registrar’s Duty List at 9:30am on 4 September 2007.
3.That the husband file and serve a response and all affidavits in response to the Application in a Case not later than 3 September 2007.
…”
On 8 August 2007 settlement was to take place with Mr and Mrs B in relation to the sale of the strip of land. In a letter dated 9 August 2007, the husband’s solicitor advised that he would not settle unless adjustments he required were agreed, namely the husband would not settle if Mr and Mrs B insisted on a $550 allowance in settlement calculations for the survey plan. The settlement of the sale of the strip of land was cancelled by the husband. The wife did not consent to the settlement being delayed. The settlement did not occur.
On 13 August 2007 settlement for the main property did not occur and was cancelled by the husband. In addition, the main property was inspected by the purchaser and was not in an appropriate condition as required under the Contract, including the removal of items of rubbish.
On 17 August 2007 the sale of the strip of land to Mr and Mrs B was completed, and the National Australia Bank received the sum of $80,161.80 from those proceeds.
In August 2007 the husband said, through the solicitor acting on the sale, that he would not agree to the wife receiving the amount payable pursuant to Order 1 of the consent orders, and pay to her of the sum of $60,500.
On 22 August 2007 the settlement of the sale of the matrimonial home was finalised and the husband’s child support arrears were paid from the proceeds.
On settlement of the sale of the property, the balance of the sale proceeds were paid out to a total of $1,398,193.50 of which $1,183,754.86 was paid to the National Australia Bank.
The husband sold various items in the boatshed to the purchasers of the property, without the consent of the wife, and after making a Statutory Declaration that, subject to one exception, that no other party has an interest in the chattels concerned.
The husband received an amount of $14,691 for those items and the husband made a statutory declaration that the wife had no interest in these items. In her affidavit filed 12 November 2007 the wife says that this is incorrect, as some of the items sold were joint assets as set out in Annexure “B” to the consent orders.
On 4 September 2007 the proceedings were listed before Judicial Registrar Johnson and inter alia the following orders were made:
“1.That by consent the husband and the wife forthwith do all things and sign all documents necessary to cause [A Real Estate] to be paid all outstanding monies in respect of the commission for the sale of the [matrimonial home], the remaining part being $7,700.
2.That Mr [R] file and serve any Application together with all affidavits in support not later than 19 September 2007.
3.That the husband to file and serve any s.79A application together with a financial statement and all affidavits in support not later than 19 September 2007.
…
8.That all costs are reserved.
9.That the Court notes that the wife undertakes through her counsel to abide by any order the Court might make in relation to damages in the event the Court should hereafter be of the opinion that the husband shall have sustained any such damage by reason of these orders which the wife ought to pay.”

On 9 October 2007 the proceedings were again listed before Judicial Registrar Johnson inter alia and the following orders were made:
“IT IS ORDERED:-
1.The Registrar of this Court sign on behalf of the Husband and Wife all documents necessary to cause monies not exceeding the sum of $6,000 to be released from the joint account in the names of the Husband and Wife to be paid to such account or accounts to be nominated by the Husband’s solicitor only for the purposes of payment of medical expenses on behalf of the Husband on presentation to the solicitor of a proper invoice from a medical practitioner or hospital in respect of the matters broadly described in the letter of Dr [H] dated 3 October 2007.
2.The Husband provide the Wife with a copy of all invoices and payments made in accordance with these Orders within 72 hours of payment.
…
4.All costs be reserved.
…”
In January and February 2008 various orders for the preparation of the matter for hearing were made.
In April 2008 the wife contacted the ANZ Bank and asked them to close the account held jointly with the husband and which had been operated by the husband solely. The Bank declined the request.
On 7 April 2008 the wife filed an Amended Application for Final Orders.
On 24 April 2008 Mr R served but did not then file an Application in a Case, dated 23 April 2008. An Application in a Case was later filed by Mr R on 14 May 2008, in addition to an Application for Final Orders provided on the second day of the hearing, 2 December 2008.
On 7 May 2008 the husband filed an Amended Response to an Application for Final Orders, seeking orders under s79A of the Family Law Act 1975 (“the Act”). Further Responses were filed by the husband on 25 August 2008 and

4 December 2008
.
On 14 May 2008 Mr R and Ms P each filed an Application in a Case and a supporting affidavit. Mr R later provided an Application for Final Orders during the hearing, in relation to orders sought under s79A(1)(a) of the Act. In summary, Mr R and Ms P each sought orders in their respective Applications in a Case that they be granted leave to intervene in the proceedings. Orders were also sought that the husband and wife be restrained from disposing of the moneys in the National Australia Bank account and from disposing of all remaining chattels until the debt said to be owing to Mr R and Ms P respectively had been paid. In addition, it was sought that the February 2004 orders be set aside under s79A(1)(a) of the Act on the grounds that they created a miscarriage of justice to the creditors of the husband and wife.
On 5 June 2008 I made the following orders to assist the preparation of the matter for hearing which in part read:
‘IT IS ORDERED THAT
1.Orders are made in terms of paragraphs 1, 2, 3, 4, 5, 6, 7, 8 and 9 of a document titled “Minutes of Orders sought by the applicant wife” dated 5 June 2008, filed herein and attached hereto
AND THE COURT NOTED that the husband undertakes to produce the documents referred to in paragraphs 1, 2, 3, 5, 6, 7 and 8 of the document titled “Schedule of Documents that husband says he should produce if available” filed herein and attached hereto.
2.Liberty is granted to the wife to seek to renew her application for a direction in relation to paragraph 10 of the “Minutes of Orders sought by the applicant wife”.
3.Leave is granted to the husband and wife to file further affidavits with the Registry today.
4.By consent an Order is made in terms of paragraph 1 of a document titled “Short Minutes of Consent Orders” filed in court today as set out hereunder:
“1.An order pursuant to Rule 6.03, Family Law Rules 2004 that [Ms P] and [Mr R] be added as parties to intervene in the within proceedings.”’
Following those directions the wife filed an affidavit on 6 June 2008, in reply to the intervention applications of Mr R and Ms P, and an Application in a Case on 14 August 2008, seeking rulings on parts of the husband’s affidavit of 3 June 2008, prior to trial. The husband also filed a further amended Response to an Application for Final Orders on 25 August 2008.
It noted that rulings prior to the hearing were given as to the admissibility of certain affidavit material filed by the husband and those rulings were published to the parties. A substantial amount of it was struck out.
The husband was directed to file submissions following the hearing, by

15 January 2009
. In the event he did not file them until March 2009.
The wife’s submissions were supplied nevertheless on 17 February 2009, notwithstanding the husband’s default.
I have had regard to the husband’s submissions, notwithstanding that they were filed out of the original time set and the extension of time granted by the Court, in addition to not complying with the further extension of time which the husband sought.
I have had regard to the submissions made by Mr R’s solicitor at the hearing and the submissions in reply made by him to those of the husband and the wife. I afforded the wife the opportunity of a reply to the husband’s submissions made late by reason of his default and I have had regard to them.

Credit

As between the husband and wife I find that where there is a conflict of evidence, the evidence of the wife is to be preferred. As indicated above, the husband swore a statutory declaration which I find was deliberately false and which was intended to procure the sale of items to which he did not have the sole entitlement.
The whole of the proceedings have been redolent with attempts by the husband to avoid timely response to reasonable inquiry and delay by him in meeting reasonable requests for the production of documents. In my view there have been deliberate attempts which are many and varied, not only to avoid the obligations which I find he assumed under the orders made by consent, but also the voluntary obligations he assumed to others in relation to the sale of the matrimonial home.
His desire to frustrate the wife’s reasonable claims to the benefit of the order which had been made were expressed in a myriad of examples of delay and obfuscation and, apart from reflecting no credit upon him, lead one inevitably to the conclusion that he was simply focussed on procuring his own way.
In giving evidence, the husband was not responsive to questions on more occasions than readily countable, notwithstanding my warning him of the dangers of such behaviour and the effect it might have on his credibility.
The husband’s memory even of evidence recently deposed to by him was unreliable and selective.
The husband’s approach to giving evidence whether by affidavit or orally was both churlish, belligerent and at times abusive, not only in relation to the wife but of those representing her; an abuse not justified at all or even rendered perhaps understandable by the facts or the circumstances of this case.
a)When asked to look at a document he said:
“I have no interest in looking at it, [the document] but if you insist I will have to I guess.”
b)Speaking of a well known valuer employed by the wife’s solicitor to value the matrimonial home, with whose valuation he disagreed he said:
“I thought well…he does work for your law firm regularly and therefore he was at the very upper end of whatever range he could apply to it.”
c)During cross examination relating to the parties’ financial circumstances, and liabilities the husband said:
“… I’m going to scream. It’s all listed in my affidavit, you can see it all there.
…
From the very first day that this came up around about July 2003, or April 2003, there’s been an absolute reluctance of Broun Abrahams to examine financial records and try to understand them. When you came into this affair I thought thank Christ we’re going to get a bit of simple commonsense and a bit of analysis going on. I didn’t realise it was the adversarial system that you’re running where you build your fees up, but I pretty soon discovered it. And you’ve never - - -”
The husband had found himself the subject of consent orders he did not like and in the circumstances his every effort after they were made was to frustrate them and the claims of the wife arising out of them and his evidence was reflective of that attitude.
He cannot, in my view, be accepted as a witness of reliability since he was so possessed of outrage and self-righteousness and incapable of readily making concessions against his interest, no matter how obvious the evidence.
The wife for her part was forthright on those subjects of which she had knowledge but ready to admit her ignorance of a number of matters. Notwithstanding that she is, in my view, to be preferred in those cases where her evidence and that of the husband conflicts.

The Issues in relation to the Consent Orders raised by the Husband

(a) That a miscarriage of justice occurred by reason of the fact that the orders, although said to be made with his consent, were not so made

The husband’s assertion is that although he signed a Heads of Agreement document prepared by his solicitor which preceded the making of the order, that he did not intend to be bound by it and had no intention of it becoming the basis of orders of the Court to finalise the proceedings.
The husband said that his counsel did not have instructions to sign the Terms of Settlement and denied that he gave his counsel instructions to agree to the orders. The only significant difference between the Heads of Agreement and the Orders appears to be that the orders provide as to who was to receive the Land Rover motor vehicle. In the Heads of Agreement dated 6 February 2004, the husband was to transfer the Land Rover (Registration …) to the wife, whilst under the consent orders, the wife was to transfer her right title and interest in that Land Rover to the husband.
On the balance of probabilities I do not accept the husband’s evidence. It is noted that both his solicitor and counsel at the time of the making of the orders are experienced family law practitioners. I do not accept, particularly having heard from Mr Batey (his counsel at that time) that there was an absence of instructions permitting Mr Batey to sign the orders on the husband’s behalf.
Mr Batey gave evidence and I accept the evidence that the execution of the consent orders by him was directly on his client’s instructions. Indeed, the Consent Orders are signed by the husband’s counsel with the notation “counsel for the husband and upon specific instructions from Husband”. During cross examination, the husband said he was not able to accept that Mr Batey signed the document and wrote that notation. I do not accept that there was an absence of instructions permitting the husband’s then counsel to sign the consent orders on the husband’s behalf.
The husband gave evidence of alleged conversations with his advisors after the orders were made to the effect that he was advised that he could do nothing about the orders. This is clear advice that inferentially he was bound by them.
Nevertheless, the husband who had suffered a change of mind in relation to the Heads of Agreement and the orders thereafter did not with diligence pursue their implementation.
Indeed his approach to the wife and communications with those advising her did not suggest that there was no agreement or consent to an order which would have provided some sounder footing for his continuing failure to implement the orders.
The husband in support of his approach to this question, proposed that he could not have consented to orders which were incapable of being carried out.
At the time of the making of the orders the evidence was that the home had a value in excess of $1,300,000 and the husband adopted in his Financial Statement the value ascribed to the property by an independent valuer, namely Mr O.
It is clear on the evidence that the position at that time was therefore that the assets exceeded the liabilities or at least all those liabilities that the husband asserted which were the responsibility of both parties.
In endeavouring to assert the contrary the husband produced a list of liabilities which included liabilities which were statute barred and one where the creditor had died. The balance of the liabilities which the husband contended should be included the following:

($)
(a) NAB Mastercard	$7,951
(b) Citibank Visa	$32,687
(c) David Jones card	$6,658
(d) NBNZ visa	$9,776
(e) NBNZ joint visa	$6,537
Other relevant items:
(a) ANZ joint overdraft	$7,000
(b) Mr YT	$2,500
(c) Mr R	$20,000
(property selling expenses)
(d) Commonwealth Bank Judgment	$12,000
(e) Mr R	$24,180

The husband asserted that these liabilities should be met from the funds held to the credit of the parties, namely $136,640, after the payment of a compromised amount to Ms P and before division of any of the remaining assets held by the parties.
The husband did not assert that his savings and assets should be a source of any funds for the payment of any of these liabilities and the extent of his savings and assets were it seems clouded in some mystery. His view was that anything that he had earned since the consent orders or that he had now was of no concern to anyone.
Certainly there did not appear to be a free flow of information concerning his current financial position. In response to a question concerning his financial position, no full or frank disclosure was given. The husband offered the following answer in response to a request for answers to specific questions filed 23 October 2008 asked by the wife’s solicitor concerning funds in a personal account of the husband’s:
“Those deposits related to private earnings of the husband unrelated to anything to do with the marriage.”
That this answer was given in the circumstance of an application to set aside orders and for new property settlement orders to be made is surprising to say the least and is more accurately an exemplar of the selective revelation by the husband only of those matters which he thinks are of assistance to him.
At the end of the day the husband conceded that there was sufficient money to pay the creditors referred to in the consent order at the time it was made.

(b) That the orders are impracticable of being carried out

Allied to the husband’s position that he would not have consented to the orders since they were incapable of being carried out is his claim under s79A(1)(b) of the Act that the orders or part of them were impracticable of performance.
In respect of this claim the husband provided the following particulars, set out in his Amended Response to an Application for Final Orders filed 7 May 2008, as summarised below:
a)At the time at which the parties entered into the consent orders, it was the anticipation of the parties that the sale of the former matrimonial home would realise sufficient funds to enable the carrying out of the said orders (including the amount due to the wife under paragraph 1 of the consent orders) and the payment of joint matrimonial debts listed in Schedule “A” to the consent orders; and
b)Since that time, by reason of the failure to achieve a sale at a sufficient realisation of value and by reason of the failure to achieve completion of the sale of the property until 22 August 2007 interest on the joint matrimonial debts and in particular the mortgage over the property has accumulated to the point where the net proceeds are now less than $163,000 (with interest continuing to accrue) and external joint matrimonial debts are now of the order of $480,000).
In his Further Amended Response to an Application for Final Orders filed

25 August 2008
the husband sought the following in addition to the matters referred to in paragraph 1:
“2.1That the amount of $12,000 owing to the Commonwealth Bank of Australia, as referred to in paragraph 3.2 of the Amended Application for Final Orders of 7 May 2008 be included within the meaning of paragraph 3.5 and held in the joint account in the names of the husband and the wife with the National Australia Bank pending further negotiation with the Commonwealth Bank of Australia.”
The husband later filed an Amended Response to an Application for Final Orders on 4 December 2008, in which the figures particularised had changed. It read:
“At the time at which the parties entered into the Consent Orders filed 25 February 2004, it was the anticipation of the Parties that the sale of the former matrimonial home (“the property”) would realise sufficient funds to enable the carrying out of the said Orders (including the amount due to the ex-wife under paragraph 1 of the Consent Orders and payment of the joint matrimonial debts listed in Schedule A to the Consent Orders).
Since that time, by reason of the failure to achieve sale at a sufficient realisation of value and by reason of the failure to achieve completion of the sale of the property until 22 August 2007, interest on the joint matrimonial debts and, in particular, the mortgage over the property, accumulated to the point where the net proceeds remaining from the sale after payment of [Ms P] total $129,290.02. External joint matrimonial debt is now of the order of $200,000 plus potential joint tax liability to $230,000 plus potential joint tax liability (see “3.5” below).”
As to the first part of the particulars supplied it seems that the evidence at the completion of the trial was that there was a valuation confirmed four weeks prior to the making of the consent orders of the property in the sum of $1,380,000. At or about January 2003 the husband had asserted that the value of the property was $1,800,000 in an application for finance.
In September 2003 the husband in his Financial Statement set out a value of $1,350,000 and that statement is covered by the usual affidavit which in part says: “Where I have given an estimate in this Financial Statement, it is based on my knowledge and is given in good faith.”
In an email to the wife the husband states “the House valuation came in at $1,350,000.00…” and, as Counsel for the wife submits, the tone of the email could lead to the conclusion that there was another valuation other than

Mr O’s valuation, which was for $30,000 more.
However, such suggested valuation has not been produced and is not, if it exists, in evidence.
In an application to a finance company in January 2003 the value of the property is stated by the husband to be $1,800,000 or $1,950,000 in the event that a planned subdivision occurred (which did not occur).
Given this evidence I do not accept that it was the anticipation of the husband that the sale of the property would not realise sufficient funds to enable the carrying out of the orders.
As to the delay in the completion of the sale and the failure to procure its completion until 22 August 2007, the following appears to be the case.
The orders required sale from 25 May 2004, and for the wife’s part she has sought its sale. Indeed the wife’s evidence which I accept is of her constantly seeking that the husband comply with the orders.
In an endeavour to get things moving eventually she accepted, in satisfaction of the order for sale, a process which would allow the property to be sold in two parcels, namely a subdivided strip and that the balance of the property be sold separately.
Proceedings were commenced in the Federal Magistrates Court to overcome difficulties in relation to the sale in which that Court declined to exercise jurisdiction to enforce a sale of that type.
Although an appeal from that decision was unsuccessful, by then another offer had been received on the basis that a sale of the strip could exist contemporaneously with a sale of the balance of the property to two different purchasers.
The process of these sales appears on the evidence to have been a tortuous one with pitfalls arising from lack of co-operation from the husband. Indeed, some of his conduct has the appearance of deliberate attempt at frustration of the sales, although they were nevertheless completed on 22 August 2007.

Certainly the argument that the ultimate completion was attended with additional expense occasioned by the husband’s lack of co-operation or his neglect, and the costs incurred by the mortgagee bank in endeavouring to enforce their entitlements and particularly putting pressure on the parties to complete, has weight and force.
On the sale of the property the discharge figure with respect to the mortgage to the National Australia Bank was $1,263,916. This is high when compared with the amount provided for in the consent orders to be paid to the Bank of $1,015,000. The difference between those amounts appears to be, apart from default costs, interest remaining unpaid.
The husband assumed under the consent orders the obligation to pay the interest up to the sale, and which obligation he did not fulfil.
Had the property been sold at the time that the orders had stipulated it is the wife’s contention that the debt would only have been $1,015,500 and on

Mr O’s valuation the parties would have had a surplus to deal with the other obligations created by the orders.
As to the quantum of those liabilities which the parties were obliged to meet, various figures have been quoted from $480,000 to $200,000 plus some taxation to $230,000 in addition to possible taxation liability.
The quantum of liabilities set out in Schedule “A” to the consent orders, in relation to credit cards and loans totalled $491,207. At the hearing however it was said by the solicitor for the husband that there existed a typographical error in relation to the debt to David Jones, which would alter this amount.
In the husband’s earlier Amended Response to an Application for Final Orders filed 7 May 2008 the husband asserted at that time that the joint matrimonial debt was at some $480,000. In the husband’s Response to an Application for Final Orders filed on 4 December 2008, the husband asserted that the “External joint matrimonial debt is now in the order of $200,000 plus potential joint tax liability to $230,000 …”, to which the husband references paragraph “3.5” – under which the asserted debt of to Mr R of $24,180.42 is set out. These amounts would total $454,180.42.
In written submissions filed on behalf of the husband the total liabilities are listed by him as $200,109.60 and in his Financial Questionnaire filed

25 February 2008
, the husband lists the liabilities as totalling $195,296.
For these reasons, and reasons stated hereafter, I reject the suggestion that the orders were impracticable of performance at the time that they were made or that in the changed circumstances they are rendered impracticable. If I am wrong in that second suggestion then, so far as the husband’s application is concerned, I would not in the exercise of my discretion set aside the orders since the husband is so much the author of any difficulty which has arisen.

(c) That a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary or set aside the order and make another order in substitution for the order

The husband relies on the provisions of section 79A(1)(c) and particularises his claim as follows:
“(i)by their conduct both parties have repudiated the agreement contained in the Consent Orders. See the Judgment of (sic) Magistrate Sexton in the Federal Magistrates Court proceedings.
(ii)On the ex-wife’s appeal this decision was upheld by the Family Law (sic) Court of Appeal. See the Judgment of Bryant CJ…”.
The evidence in these proceedings indicates that the default in compliance with the orders is that of the husband.
I do not find that the wife defaulted in her obligations under the orders and indeed the history of this matter is of the wife constantly seeking their implementation against a background of intransigence of the husband born of a dislike of the consent orders.
No repudiation of the orders occurred by both parties.
The application to the learned Federal Magistrate was not a repudiation of the orders but rather an attempt to enforce them.
True the obligation which was sought to be enforced was the sale of the property in two parcels, a sale which the parties agreed would take place in that fashion, and in satisfaction of the obligation for sale.
This, in my view, does not constitute a repudiation of the orders but rather an accord and satisfaction in relation to them, a process not uncommonly undertaken to achieve proper implementation of obligations arising under orders or under contracts.
It seems clear from the evidence that the wife was driven to this form of sale largely by reason of the refusal of the husband to give effect to the orders in a timely fashion.
The findings of the learned Federal Magistrate and Her Honour Justice Boland relate to proceedings for enforcement of an order and are not, in my view, determinative of the application before me in any respect. There was not and has not been ever any application by the wife under s79A of the Act. Her resolve has been to attempt to enforce the orders made.
The default in this case was that of the husband and it seems to me that the section does not allow a party to rely upon their own default in seeking to set aside orders. To do so would provide a means of benefiting a defaulting party and provide a simple means of making a mockery of the policy of finality adumbrated in the Act and the decisions on the nature of property orders.
I accordingly find that the ground is not made out.

(d) That there has been a miscarriage of justice

It is asserted by the husband that a ground exists under section 79A(1)(a) in that there has been a miscarriage of justice by reason of “any other circumstance”.
The husband supplied the following particulars of his claim under this ground, in his Amended Application for Final Orders filed 4 December 2008:
(i)“The ex-husband has made payments in reduction of joint matrimonial debt in the order of approximately $190,000.00 (of which approximately $134,000 was made up of net contributions earned since the departure of the ex-wife from outside sources) since the Consent Orders of 25 February 2004 were entered into. To the best of the ex-husband’s knowledge and belief the ex-wife has made absolutely no payments.”
(ii)“The ex-husband has been forced to continue to make payments on interest accruing from joint debt in an amount of approximately $1,800 per month throughout the period following the sale of the ex-matrimonial property because of the failure of the ex-wife to agree to release moneys from that settlement to pay down the capital amounts that continue to accrue that interest.”
(iii)“The ex-wife has a judgment against her by the Commonwealth Bank of Australia in a sum exceeding $140,000 against which, to the best of the ex-husband’s knowledge and belief, she has paid nothing. The ex-husband has negotiated, following his successful Applications, to have a similar default judgment against him by the Commonwealth Bank of Australia set aside, with costs: a compromise pursuant to which, subject only to the Commonwealth Bank of Australia receiving the sum of $12,000, the ex-husband will receive a complete release from the Commonwealth Bank of Australia.”
On a consideration of the evidence admitted before me these claims appear to be in disarray.
As previously set out in these reasons, there have been many changes to the husband’s claims due in part to the effluxion of time.
The consent orders did not provide for the wife to pay any amounts from her income in relation to debts.
The husband’s claims are not properly evidenced or documented. Some of the claims appear clearly to be on an unsound footing. For example, claiming that the proceeds of sale of jointly owned property were solely his contribution to debt.
This is compounded by the fact that the husband has a history of non-production and non-compliance. Furthermore, his disclosure is not full and frank and supported by evidence which is acceptable and in accordance with the requirements of the consent orders.
The husband produces some documents but it is the obligation of those who seek to establish a fact to adduce evidence which proves the fact.
In the melange of allegations half truths and obscurantism of the husband, the Court finds that he has not discharged the onus of proving what he asserts under this head. The husband’s assertion that he has paid interest on the home mortgage by reason of a sale where he always had the obligation to pay interest does not constitute a ground for setting aside the consent orders.
His failure to proceed to a sale of the property at the time specified in the consent orders, namely by May 2004, and his obstruction of its sale until August 2007 resulted in the incurring of the increase in liabilities as did his default in making payments under the orders.
In the event none of the source documentary evidence specifically provided for in the consent orders has been provided.
The husband’s documents do not come up to proof on the calculation of the sum suggested as being met by him. Interest claimed on credit cards is interest on debts incurred by the husband post separation, the original debts having been met by payment.
In relation to the claim so far as the Commonwealth Bank is concerned, the wife’s evidence is that she negotiated with the Commonwealth Bank for satisfaction in the sum of $12,000 but having done so she has been unable to pay it. In those circumstances the Bank has taken no action against her. The wife says that the Bank’s claims against each of the parties were, in any event, separate claims and each of them should meet the obligations they have under the judgments with respect to their separate claims.
In all the circumstances I find that the ground has not been established.
The husband asserted that as a matter of both law and justice and equity, the creditors of the parties should rank ahead of the husband and wife.
The orders made in the proceedings provide a priority and ranking of payment of the funds derived from the processes specified in the order. This includes the payment of certain creditors who fulfil certain definitional requirements under the orders. The Court does not recognise this statement as a basis for setting aside the order under s79A.
Orders 3 and 4 as sought by the husband in his Amended Response to an Application for Final Orders filed 4 December 2008, are:
“3.Either, that the ex-Wife be ordered to do all things and sign all documents necessary to effect the following payments to Joint Creditors and Joint Third Party Creditors of the marriage:
3.1Joint interest bearing credit card and overdraft accounts:
Citibank Visa   $32,687.00
NAB MasterCard  $7,951.00
ANZ overdraft  $7,000.00
David Jones Card  $6,658.60
3.2[Mr YT]  $2,500.00
3.3.[Mr R]   $20,000.00 (Property selling expenses)
3.4.A sum be retained for a period of up to two years, pending negotiation of final sums for the following joint debts:
Joint Tax payable           $TBA (to be determined by accountant)
NBNZ TH Visa                  $9,776.00 (debt assigned to collection agency)
NBNZ TH and V Visa        $6,537.00 (debt assigned to collection agency)
Commonwealth Bank of Australia $12,000.00 (Judgment entered)
Where any particularised compromise is reached with a creditor, the balance of that particularised amount is to be distributed in the following order of priority. Where any particularised amount remains at the end of two years from the date of Judgment it is to be distributed in the following order of priority:
[Mr R]Any balance remaining owing and unpaid from the Judgment amount Ordered by the Court.
[The husband]                 Any balance remaining owing and unpaid from “3.7”
[The wife] Balance remaining.
3.5.[Mr R]   $24,180.42 (Part payment of personal loans)
3.6.[Mr R]   All remaining goods and chattels wheresoever situate including but not limited to those listed in “2” above (Part payment of personal loans).
(nb. At this point all cash has been disbursed or held subject to “3.4” above).
3.7.[The husband]                   $28,800.00 (exact sum to be advised, but approximately $1,800 per month by 16 months less any payments made from sale of joint assets) or all remaining goods and chattels including but not limited to those listed in “2” above as repayment for interest repayments of joint debt to institutions made since the settlement of the sale of the [matrimonial home] on 15 August 2007.
4.Or, that the ex-wife be ordered to do all things and sign all documents necessary to effect the following payments to Joint Creditors and Joint Third party Creditors of the marriage:
4.1.[Mr R]   Such amount as the Court may determine.
4.2.Joint Interest bearing credit card and overdraft accounts:
Citibank Visa  $32,687.00
NAB MasterCard  $7,951.00
ANZ overdraft  $7,000.00
David Jones Card  $6,658.60
4.3[Mr YT], accountant                   $2,500.00
4.4.A sum be retained pending negotiation of final sums for the following joint debts:
Joint Tax payable           $TBA (to be determined by accountant)
NBNZ TH Visa                  $9,776.00 (debt assigned to collection agency)
NBNZ TH and V Visa        $6,537.00 (debt assigned to collection agency)
Commonwealth Bank of Australia $12,000 (Judgment entered)
Where any particularised compromise is reached with a creditor, the balance of that particularised amount is to be distributed in the following order of priority. Where any particularised amount remains at the end of two years from the date of Judgment it is to be distributed in the following order of priority:
[Mr R]Any balance remaining owing and unpaid from the Judgment amount Ordered by the Court.
[The husband]                 Any balance remaining owing and unpaid from “4.5”.
[The wife] Balance remaining.
4.5.[The husband]                  $28,800.00 (exact sum to be advised, but approximately $1,800 per month by 16 months less any payments made from sale of joint assets) or all remaining goods and chattels including but not limited to those listed in “2”, above as repayment for interest repayments of joint debt to institutions made since the settlement of the sale of the [matrimonial home] on 15 August 2007.

Creditors

Schedule “A” to the orders of 25 February 2004 sets out a number of liabilities, as set out below. However, most of these liabilities are either now statute barred or are no longer current.

Credit Cards

Item 48 at Annexure “A” set out a number of credit card liabilities. In the husband’s Amended Response to an Application for Final Orders filed

4 December 2008
the husband seeks that payments be made in respect of the Citibank Visa, NAB MasterCard and David Jones Card, as set out above, in addition to an ANZ Overdraft.
I find that these are not amounts which remain unpaid.

Loans

(a)Trade Creditors

An amount of $6,870 was listed in Annexure “A”. On the fifth day of the hearing the husband’s solicitor informed the Court that the trade creditors had been paid by the husband and that these figures were no longer current. This is repeated in the husband’s submissions filed 2 March 2009.
The wife’s submissions note that the husband is, however, claiming reimbursement for having allegedly paid the trade creditors. It is noted that the only trade creditors that have been indicated anywhere would be creditors of G Company or K Pty Ltd. It is the wife’s submission, and I accept it, that this claim does not fall within the description of Order 18.
Indeed, this amount is not listed in the Response to an Application for Final Orders filed by the husband on 4 December 2008 and at the final hearing the husband appeared to have abandoned the claim and did not seek reimbursement.

(b)Mr E Loan Account

In Annexure “A” is a loan account of $56,580 is said to be owing to

Mr E. This amount is listed by the husband under the heading, ‘loans’ in his financial statement filed 30 September 2003, and Exhibit “2” in these proceedings. At paragraph 9(a) of the husband’s affidavit filed 30 September 2003 it is said that the following is an outstanding loan of the husband’s:
“[Mr E] (monies borrowed since separation to cover American Express repayments, [youngest child’s] ballet fees, mortgage fees and payments to [the wife]) - $56,580.91.”
In the wife’s submission it is said that there is no supporting material or documents as to this alleged liability which could support the position that it meets the requirements of Order 18. I refer to the submission of the wife and refer to my findings on issues of credit as between the husband and the wife and agree that there has been no supporting material supplied in relation to this alleged liability.
In any case in the husband’s submissions filed 2 March 2009 it is said that the husband does not press for payment of this debt which is, in any event, statute barred.

(c)Ms L Loan Account

It was alleged that a debt of $500 was owing to Ms L. This amount is listed by the husband under the heading, ‘loans’ in his financial statement filed 30 September 2003, and Exhibit “2” in these proceedings. It was also referred to as being an outstanding loan of the husband, at paragraph 9(b) of the husband’s affidavit filed 30 September 2003.
In re-examination, the husband made reference to a Balinese wedding chest which was said by the husband to have been left by Ms L “…as a loan to help the property along.” In his written submissions, the husband says that Ms L had been paid by the husband.
The wife says that in both the husband’s financial disclosure letter of 31 August 2007 and most recent balance sheet, this liability is omitted. I note that it is also not a debt listed in the husband’s list of “other joint debt owed to individuals” in his Financial Questionnaire filed 25 February 2008.
The husband has not satisfactorily discharged the onus of establishing the debt exists and otherwise meets the criterion set out in the Consent Orders for repayment.

(d)CBA GPP Nov 30 Loan

An amount of $12,000 is set out in Annexure “A” in relation to this item. At the hearing the husband sought that this loan be paid.
It is the wife’s submission and which I accept, that GPP refers to G Company Pty Ltd and is therefore not a personal liability as necessitated by Order 18 of the consent orders. This amount represents a settlement with the Bank, and it is the wife’s evidence that the Bank is not proceeding against her and it is thus said by the wife, and I accept, that it is not a current liability. During the hearing it was said that the Commonwealth Bank had not been active in any proceedings against the parties for a number of years.

(e)Mr F Car Loan Account

A debt of $16,870 was listed in Annexure “A”, and I refer to the submission of the wife that her enquiries are that this amount was borrowed for the purposes of G Company, and that it appears the husband abandoned the claim at the final hearing. I further refer to my findings on issues of credit as between the husband and the wife and agree that there has been no supporting material supplied in relation to this alleged liability.
In any event, the husband in his written submissions says that Mr F does not wish to pursue any debt he might have. The husband alleges that this loan was in relation to a vehicle driven by the wife following separation, and I reject the submission by the husband in which he says that commonsense and equity suggest that he should be directly reimbursed by the wife.

(f)Mr I Loan Account

An amount of $6,600 was listed at Annexure “A”. In the husband’s affidavit filed 30 September 2003 at paragraph 9(f) the husband said this loan was for the sum of $5,500 and was borrowed to meet the mortgage repayments to the National Australia Bank. The wife’s submissions point out that since that time the debt has not appeared on the husband’s documents.

The husband’s written submissions note that Mr I has died, but seeks that if possible his widow should receive some of these monies. I find that there is no pursuit of the claim, and that it is statute barred.

(g)Mr YT Loan Account

The amount of $6,250 is listed as at Annexure “A”. The husband’s affidavit filed 30 September 2003 notes that this was a loan for professional services and that Mr YT agreed to delay repayment for a period of two years. The written submissions of the husband seek that the Court should find Mr YT a genuine third party creditor. I reject that submission, and in any event it appears that this loan is statute barred.

(h)Southpac Loan

The wife’s submissions say that they have no evidence as to what this loan amount of $2,500 was. In any event it is the wife’s submission that this loan seems to no longer be a matter of concern, as it no longer appears on any further balance sheets or lists. With that submission I agree. In any event, it appears that this loan is likely statute barred.

Mr GT GPP Loan

This loan is said to be for the amount of $90,000. In the husband’s affidavit filed 30 September 2008 the husband says that this sum represents loans owing to Mr GT for funds provided four years earlier to G Company. Consequently, I agree with the submission of the wife that this claim would have now expired and would otherwise be a claim for the liquidator of G Company.

(j)MH GPP Loan

This claim is said to be for $45,000 and in the husband’s affidavit filed

30 September 2008 the husband says this sum represents amounts for loans in order to continue running G Company. In any event, I am in agreement with the wife’s submissions which point out that the husband indicated that these loans were provided four years previous and so are statute barred.

(k)Mr R GPP Loan

An amount of $61,000 is listed and is otherwise discussed in this judgment. However in addition, on the fourth day of the hearing and during Mr Orlizki’s cross examination of the wife the following occurred:
“HIS HONOUR: I was going to ask you, Mr Orlizki, as I understand it there are consent orders that provide for the notation of a creditor as [Mr R] GPP Loan.
MR ORLIZKI: Yes.
HIS HONOUR: 61,000. Is that part of the advances that you are saying, or is that something additional?
MR ORLIZKI: We haven’t got a clue, your Honour. It’s not his document, and it’s not his number. Nobody seems to know exactly what it is. It’s a document that was obviously created by the husband and/or the wife, or both.
HIS HONOUR: But it’s not in any event claimed to be a separate liability?
MR ORLIZKI: No, your Honour. The suspicion is that that $61,000 related to the rent on the North Sydney property, and I think that’s what [the husband’s] evidence was. It might be a bit difficult to find it, your Honour, but I think it was there somewhere.
HIS HONOUR: The rent would clearly be a liability to the company.
MR ORLIZKI: Indeed, and I think that instead of saying GPP, which I take it is a notation of [G Company] Pty Ltd, but your Honour will hear an argument from me later on whereby that even if these loans were a liability of the company, as opposed to them personally, it remains nevertheless a claim which Mr [R] ought to be entitled to make.”

(l)Superannuation GPP Debt

An amount of $26,000 is listed and I agree with the wife’s submission that this is a debt plainly referrable to G Company, namely an allegation that the company did not pay superannuation to various employees, and that is thus not a liability attributable to the parties.

Mr R’s Claim

The intervenor Mr R made an application to the Court for an order that the consent orders made in the proceedings on 25 February 2004 be varied to in effect require that the parties discharge a liability (which was disputed by the wife) to the Applicant intervenor prior to any distribution or division of their property or the proceeds of the sale of their assets.
It was asserted by Mr R that he lent the sum of $45,000 to the husband and the wife jointly on the 9 April 2002 or in the alternative, the husband, such loan being repayable on demand.
It was further asserted by Mr R that he loaned the amount of $50,000 to the husband and the wife jointly or alternatively to the husband, such loan being repayable on demand.
Further Mr R says that on 25 July 2006 after the orders were made he loaned the amount of $20,000 to the husband and the wife or alternatively the husband, such loan being repayable on demand.
Therefore, Mr R sought a repayment of the amount of $115,000 said to be due to him by either the husband or the husband and the wife.
It is asserted by Mr R that he was not provided with notice of the proceedings between the parties or of the intention of the parties to make the consent orders and that those orders gave to the wife a priority in claim against the amount likely to become available, ranking higher than the sum due to him.
He asserts that the like priority was given over the other creditors of the husband and the wife. Mr R seeks upon this basis orders under section 79A(1)(a) of the Act either as to variation of the orders as sought in his application or their being set aside.
Mr R was a long time friend of the husband. He was cross examined by telephone.
It seems clear that Mr R paid monies to the credit of the account of G Company at the request of the husband of a total of $95,000, as he alleges.
Mr R says that he deposited those monies to that account as a result of directions given by either the husband or Ms P.
He confirmed however that no request had been made of him by the wife for loans and no direction had been given to him by the wife in relation to those payments.
Mr R in his cross examination conceded that he advanced money to G Company from time to time when they were having cash flow problems and interest was paid in respect of those loans to G Company.
Two reports had been produced in relation to the Administration of the company - an interim and final report
Mr R in his evidence said that he had seen neither the interim nor any final report. He had, for the purpose of cross examination, been provided with a copy of the interim report which was before the Court.
He agreed that it showed him as a creditor.
He stated that he did not know if any proof of debt had been lodged or what the amount of any proof of debt was. He said that he had left all that to his accountant.
The loan of $45,000 was made whilst the company was in existence as was also the loan of $50,000 advanced on the 7 October 2002. Each of the records produced by Mr R in relation to the loans was marked by Mr R as “loan to [G Company]”.
Mr R’s recollection of events understandably perhaps were not ones about which he expressed great certainty. Particulars provided and evidence given and documents produced did give rise to some confusion as to amounts paid.
I find that, having regard to the history of making the loans to G Company, referred to in the past and his association with the company and the state of the evidence before me that, on the balance of probabilities, the loans made prior to the company’s failure were loans made by Mr R to the company.
On the basis of evidence given by the husband evidence might have been available from Ms P in relation to the making of those loans but her affidavit was not read or relied on and she was not called and there was no evidence that she was in any way unable to give evidence.
There remains however the matter of the loan of $20,000 said to have been lent after the orders were made on the 25 July 2006.
Mr R’s documents mark this amount as “Loan to [the husband]” whereas the prior entries had been marked as “loan [G Company]”.
It is asserted by the husband that that sum was for selling expenses for the matrimonial home. Mr R has no information as to how the money was spent.
It is clear that this final loan was not procured or agreed to by the wife and she was not involved in its procurement. It is, in my view, a liability of the husband but not of the wife.
As previously discussed in these reasons, the husband’s evidence does not demonstrate that the sum was used for the purpose for which he says it was borrowed. There is therefore no evidence that the wife received any benefit from the borrowing.
If the husband has as he said paid the sum as a reasonable selling cost it would need to be particularised and vouched, as are other expenses for which he can claim reimbursement. It is not.
In the circumstances I do not intend to grant the intervenor’s application.
I do not accept that the loans claimed by him were due by the parties jointly nor has there been a miscarriage of justice by reason of him not being notified of the proceedings since his claims were at that time against the company and not the parties personally.
In relation to the amount of $20,000 which he clearly lent to the husband after the orders were made and not at the request of the wife and the evidence fails to demonstrate its application to the benefit of the wife. Mr R in relation to this sum must rely on his rights against the debtor.

The Consent Orders

The scheme of the consent orders was as follows.
a)The husband was to pay the wife $65,000 by instalments with a lump sum of $60,000 payable within three months of the date of the orders. Of that sum the husband paid $4,500.
b)In the event of default (which default occurred) the former matrimonial home was to be sold at the best price reasonably obtainable and the proceeds were to follow a directed path of dispersal in a particular order and priority.
c)The husband pending sale was entitled to the rents and profits of the property but was obliged to pay nominated outgoings including mortgage payments. He was obliged to maintain the property.
Annexure “C” to the consent orders provided for a scheme of sale. In summary, the Terms of Sale were that the property be listed for public auction, and the orders set details of the manner of the conduct of the auction. The cost of and incidental to the appointment of the agent was to be shared equally by the husband and wife and the parties were to instruct a solicitor to have the conduct of the sale within 14 days, or failing agreement such solicitor as the President of the Law Society of New South Wales appointed. The costs of such a solicitor were to be met equally by the husband and wife. The Terms of Sale provided that the husband and wife each co-operate in every way with the agent.
The consent orders provided in Order 9 for the disbursement of the sale proceeds as follows:
“9.That upon the sale of the property as provided in Orders 2 or 7 above the proceeds of sale shall be disbursed in the following priority:
9.1.In payment of agents commission, auction expenses (if any) and other reasonable selling costs;
9.2.In payment of legal fees incurred on the sale;
9.3.In discharge of the original mortgage or such other mortgage as may have been substituted to a maximum of $1,015,000;
9.4.In payment to the wife of any part of the said sum outstanding pursuant to Order 1 above together with interest thereon;
9.5.In payment of the liabilities or such balance of those liabilities that remain outstanding as detailed in Annexure A to these orders together with any interest incurred thereon and provided the liabilities comply with the provisions of Order 18 below;
9.6.In payment to the husband in reimbursement of those amounts the husband has paid from the date of the Orders to the date of sale pursuant to Orders 2 or 7 above in reduction of the liabilities as set out in Annexure A to these Orders provided the liabilities comply with the provisions of Order 18 below but excluding any amounts paid in reduction of those liabilities from the sale of the items set out in Annexure B to these Orders and from the sale of the boat referred to in Order 12 below.
9.7.50% of the balance remaining to the wife;
9.8.To the wife’s solicitors Broun Abrahams to be held in trust such amount as is determined by the account referred to in Order 8 above as likely to be payable by the wife to the Australian Taxation Office referable to any capital gain in respect of the property in the event that the husband ceases to reside in the property (“the cessation date”) from the cessation date to the settlement of the sale of the property.
9.9.The balance to the husband.”
Order 18 provided that there were certain requirements to a reimbursement to the husband of amounts which he was obliged to pay namely:
“18.The parties acknowledge that the liabilities set out in Annexure A to these Orders shall only be relevant to these orders if the husband provides to the wife proof of:
18.1. The quantum and terms of the liability;
18.2.That the liability was incurred prior to the date of separation;
18.3.That the liability remains owing and is a personal liability of the husband;
18.4.That where the husband has discharged or reduced any liability listed in Annexure A and seeks reimbursement for the payment by him, that the debt was a personal liability of the husband as at the date of payment by him of such debt;
18.5.The parties acknowledge that notwithstanding that the amount of $21,500 asserted by the husband to be owing to [Ms P] does not comply with sub-paragraphs 18.1 to 18.3 above, provided that [ms P] provides to the parties proof of the existence and quantum of the debt and that the debt was incurred prior to the parties’ separation, then such sum is to be included as an agreed liability to be paid in accordance with these orders.”
The primary amount due to the wife under Order 1 of the orders of 25 February 2004 was $65,000. The husband was required to pay the principal sum by

25 May 2004
. The husband did not make these payments pursuant to the orders.
The wife’s evidence is that she only ever received payments totalling $4,500 from the husband. However, in cross-examination the husband said that he paid no part of the $65,000 and that the amount of $4,500 had not been intended to form part of the sum payable under Order 1. The relevant part of the transcript is set out below:
MR BROUN: Were those payments you made in respect of the original order for the payment of $65,000 to your wife? ---No.
What were they?---They were amounts that she said she required to keep her life and to keep at university and keep [the youngest child]…
At some stage it has been suggested, and maybe not by you, that in respect of that $65,000 you paid a total of $4500. Is that right, or is that not right?---You could see it that way if you want. I paid her $4500 and a lot of other money as well.
But in any event those $500 payments were not in respect of the $65,000 order?---No, they were not.
Therefore, the sum of $65,000 has remained outstanding since 25 May 2004 and I find that the husband should pay interest generated on the principal sum since the due date and up until the date of payment under these orders. The period of operation for the current rate of interest remains in operation until

20 June 2009
.
Senior Counsel for the wife at page 39 of their written submissions provided the following table setting out the interest which has accrued on the sum in accordance with the Rules during the time which has elapsed since the obligation was not met as follows:

Date	Days	Rate	Interest
25 May 2004 – 16 December 2004	205	$65,000 at 9.55%	$3,486.40
17 December 2004 – 30 June 2006	560	$65,000 at 10.25%	$10,221.92
1 July 2006 – 30 June 2008	730	$65,000 at 10.75%	$13,975.00
1 July 2008 – 1 December 2008	153	$65,000 at 12.25%	$3,337.71
$31,021.03

I find that the calculations did not take into account the Family Law Amendment Rules 2007 (No 3) which amend Rule 17.03 to effectively amend the previous rate of interest in the period to 11.75% from 10.75% effective from 20 December 2007. In addition, in calculating the interest rate payable the dates within that period should be inclusive. Therefore, I find interest is payable as set out below:

Date	Days	Rate	Interest
25 May 2004 – 16 December 2004	206	$65,000 at 9.55%	$3,493.84
17 December 2004 – 30 June 2006	561	$65,000 at 10.25%	$10,239.43
1 July 2006 – 19 December 2007	537	$65,000 at 10.75%	$10,280.24
20 December 2007 – 30 June 2008	193	$65,000 at 11.75%	$4,028.11
1 July 2008 – 1 December 2008	154	$65,000 at 12.25%	$3,350.34
$31,391.96
2 December 2008 – date of payment	Accruing up until the date of payment	Accruing up until the date of payment	plus interest from 2 December 2008 to date of payment

In the event that the husband failed or neglected to make any of the instalments set out in Order 1, then Order 2 required the husband and wife to sell the former matrimonial home.
I find that had the property been sold at the time set out under the consent orders and the husband complied with those orders then the mortgage liability to have been paid out to the Bank would have been $1,015,000. The amount ultimately claimed by the National Australia Bank was $1,263,916.66.
Following the settlement of the sale of that property, the amount to the Commonwealth Bank of Australia of $177,868.95 was the remaining sum available to the husband and wife.
Order 10 of the orders of 25 February 2004 provided for the sale of artworks and furniture by auction within 30 days of the date of the orders, namely by

25 March 2004
. The items were set out in Annexure “B” to the Orders.
The wife has made numerous attempts to comply with and enforce the consent orders, whilst the husband has failed to cooperate in carrying out the orders.
In these circumstances I propose to make the orders set forth above to give effect to those orders.

Costs

Any application for costs and any affidavits setting forth the evidence in support of that application should be filed within 28 days of the date hereof. Any response to that application should be filed within a further 14 days together with any setting forth any evidence in support of that response.

I certify that the preceding two-hundred and sixty-seven (267) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 18 June 2009

[2009] FamCA 595

18 June 2009

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Civil Procedure

Legal Concepts

Consent

Remedies

Costs

Injunction

Charge

Appeal