Martin & Martin

[2012] FamCA 869

FAMILY COURT OF AUSTRALIA

MARTIN & MARTIN [2012] FamCA 869

FAMILY LAW ─ PROPERTY SETTLEMENT ─ Application of the wife and the husband for the making of consent final orders for settlement of property ─ Where the making of those orders was opposed by the wife’s former solicitors, and a corporation, who both sought to intervene in the proceedings, and both asserted that they were creditors of the wife ─ Where orders were made on 12 September 2011 which conferred an entitlement upon the wife’s former solicitors to receive all or any part of the sum of money owed ─ Where the Court found that the making of the orders for settlement of property in the terms sought by the husband and the wife would effect the ability of the wife’s former solicitors and the corporation to recover their indebtedness from the wife ─ Where the Court was ultimately unable to make the necessary findings of fact, particularly in relation to the competing priorities as between the wife, the wife’s former solicitors and the corporation, that it would be just and equitable to make the orders for settlement of property in the terms sought by the wife and the husband ─ Leave granted to the wife’s former solicitors and the corporation to intervene in the proceedings ─ Application of the husband and the wife that orders for settlement of property be made by consent was refused.

Family Law Act 1975 (Cth) Part VIII; ss 75(2), 75(2)(ha), 79, 79(2), 79(6), 79(10)

Chorn & Hopkins (2004) FLC 93-204
Gabel & Yardley (2008) FLC 93-386
Gadens Ridgeway (a firm) v Paroulakis (1992) FLC 92-311
Manolis & Manolis (No 2) [2011] FamCAFC 105
Parker & Parker (2012) 47 Fam LR 122
Trustee of the property of GLemnos, a bankrupt & Lemnos and Anor (2009) FLC 93-394

APPLICANT: Ms Martin

RESPONDENT: Mr Martin

FIRST INTERVENOR: X Firm

SECOND INTERVENOR: QF Pty Ltd

FILE NUMBER: MLC 9829 of 2007

DATE DELIVERED:  17 October 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney via video link with Melbourne

JUDGMENT OF: Coleman J

HEARING DATE: 14 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ambrose

SOLICITOR FOR THE APPLICANT: Cahill & Rowe Family Law

COUNSEL FOR THE RESPONDENT: Mr Puckey

SOLICITOR FOR THE RESPONDENT: Taussig Cherrie Fildes

COUNSEL FOR THE FIRST INTERVENOR: Mr Brown SC with Mr McKillop

SOLICITOR FOR THE FIRST INTERVENOR: Nedovic & Co Lawyers

COUNSEL FOR THE SECOND INTERVENOR: Mr Davis

SOLICITOR FOR THE SECOND INTERVENOR: Hopkins Lawyers

Orders

1. That pursuant to s 92 of the Family Law Act 1975 (Cth) X Firm and QF Pty Ltd are granted leave to intervene as the first and second intervenors in the proceedings.

2. That the application of the husband and the wife that orders for settlement of property be made by consent be refused.

3. That such application be adjourned to a date to be fixed for hearing on the merits.

4. That written submissions in support of any application for costs be filed and served within 21 days hereof.

5. That written submissions in opposition to any such application be filed and served within 14 days thereafter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Martin & Martin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY VIA VIDEO LINK WITH MELBOURNE

FILE NUMBER: MLC 9829 of 2007

Ms Martin

Applicant

And

Mr Martin

Respondent

And

X Firm

First Intervenor

And

QF Pty Ltd

Second Intervenor

REASONS FOR JUDGMENT

introduction  

1. Before the Court for determination is an application by Ms Martin (“the wife”), and Mr Martin (“the husband”) for the making of consent final orders for settlement of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).

2. The making of the orders sought by the wife and the husband is opposed by the wife’s former solicitors, X Firm, who seek to intervene in the proceedings to protect interests asserted by them as a creditor of the wife. The making of the orders is also opposed by a corporation, QF Pty Ltd (“QFPL”), who also seeks to intervene in the proceedings, and asserts that it too is a creditor of the wife.

3. Although variously, and with greater sophistication expressed in the comprehensive written submissions on behalf of each of X Firm and QFPL, as Senior Counsel for X Firm submitted, and Counsel for QFPL agreed, the essential basis of opposition to the making of the orders sought by the wife and the husband is that, if made, such orders would adversely impact upon the ability of each of X Firm and/or QFPL to recover from the wife monies which are owed to one or both of those entities by the wife.

4. For reasons which will become apparent, albeit perhaps unusual not to do so, it is unnecessary and unhelpful to refer to the substance of the minutes of consent order which the wife and the husband have urged the Court to make.

background

1. It is convenient to record some matters of agreement which are pivotal to the application of the wife and the husband at this stage.

2. It is not disputed by the husband or the wife that, if the final property settlement orders sought by them are made in the terms advanced on their behalf, there are unlikely to be any funds available to the wife out of which to satisfy her indebtedness to X Firm and/or QFPL.

3. It is not controversial that X Firm and QFPL are “creditors” of the wife for the purposes of the provisions of Part VIII of the Act. It is not controversial that X Firm is an unsecured creditor of the wife. QFPL asserts that it is a secured creditor of the wife. For reasons which will become apparent, no part of the determination of the current application requires the latter issue to be determined. Recognising that reality, the comprehensive and cogent submissions of Counsel for the parties do not engage in detail with that issue.

4. Whilst conceding, that at least for the purpose of the present application, and the operation of the provisions of Part VIII of the Act, X Firm is a creditor of the wife, the quantum of the wife’s indebtedness to X Firm is controversial, and likely to be determined by an appropriate Victorian state judicial or quasi-judicial body in accordance with the provisions of the laws of the state of Victoria.

5. Whatever the true measure of the wife’s indebtedness to X Firm is, should be, or is determined to be, it is not controversial that the wife will be unable to satisfy such indebtedness to X Firm if the final orders for settlement of property sought by her and the husband are made.

6. As noted earlier, and as the transcript would confirm, whilst the status of X Firm and QFPL as “creditors” within Part VIII of the Act was not controversial at the commencement of the proceedings, it was ultimately less than clear whether that remained the wife’s stance in relation to both of those entities. Documentation to which learned Counsel for the wife referred the Court provides some cause for uncertainty in that regard. Notwithstanding other documentation which suggests that the wife contracted with QFPL, rather than, as may be suggested, that X Firm contracted with QFPL, albeit on the wife’s behalf, nothing turns on that issue for present purposes. At least one of those two entities is a “creditor” of the wife for the purposes of the present application.

the submissions of counsel

1. As learned Counsel for the wife submitted, the payment of legal practitioners’ fees in circumstances such as those which have thus far been outlined, is not greatly in doubt (see Gadens Ridgeway (a firm) v Paroulakis (1992) FLC 92-311). Nor is it in doubt that the liability for legal fees may be regarded somewhat differently to liabilities to other entities (see Chorn & Hopkins (2004) FLC 93-204).

2. Significantly, there is a further factual matter of significance for present purposes. On 12 September 2011, when the husband, the wife, X Firm and QFPL were all represented, consent orders were made by Dessau J which provided:

   3.That the Husband and the Wife each forthwith do all things necessary and sign all such documents as may be required to sell the properties at:

   (a)[Property E] in the state of Victoria more particularly described as the whole of the land comprised in Certificate of Title Volume …  Folio …(“[E property]”);

   (b)[Property N] in the state of Victoria more particularly described as the whole of the land comprised in Certificate of Title Volume … Folio … (“[N property]”); and

   (c)[Property A] in the State of Victoria more particularly described as the whole of the land comprised in Certificate of Title Volume … Folio … (“[A property]”),

   (hereinafter collectively “Properties”) in accordance with the terms of these orders so that the total net proceeds of sale of all of the Properties after payment of the amounts prescribed by the terms of these orders in relation to each of the Properties respectively be disbursed such that the Wife receive the first one million dollars as and by way of partial property settlement (“Wife’s Million Dollar Entitlement”) such amount to be paid to [X Firm] and the parties share any remaining balance equally as and by way of partial property settlement respectively and the parties be equally responsible for the sale of the Properties.

3. Perhaps not surprising, those orders have not been subject to appellate challenge. Although described as “partial” settlement of property, the Court does not understand it to be controversial that the orders were intended to be, and were made pursuant to the provisions of s 79(6) of the Act. As the Full Court has previously described in Gabel & Yardley (2008) FLC 93-386, any supposed distinction between “partial” and “interim” orders for settlement of property is more apparent than real. As was held in Gabel & Yardley (supra), and in the recent decision of the Full Court in Manolis & Manolis (No 2) [2011] FamCAFC 105, orders made pursuant to s 79(6) are capable of variation unless, and until the power to make orders for settlement of property in s 79 is “exhausted” or “spent”.

4. As is readily apparent, having regard to the relevant provisions of the minutes of consent order advanced on behalf of the husband and the wife, if made, expressly or by necessary implication, those orders would discharge or vary the terms of order 3 of the orders of 12 September 2011. The Court perceives no legislative impediment to that occurring.

5. As noted earlier, the case articulated on behalf of X Firm and QFPL is ultimately quite simple. If the orders for settlement of property are made in the terms sought by the husband and the wife the ability of X Firm and QFPL to recover their indebtedness will be affected. That being so, it is submitted by X Firm and QFPL, that the Court, being mandated to take that into account pursuant to s 75(2)(ha) in the context of its deliberations with respect to s 79(2), could not be satisfied that making the orders would be just and equitable.

6. Implicit in the submissions on behalf of X Firm and QFPL, is the proposition that, having entered into the orders of 12 September 2011 whilst represented, and at arms length, it would be unjust and inequitable for the Court to now allow the husband and/or the wife to resile from the provisions of those orders.

7. Learned Counsel for the wife, whose submissions were sensibly embraced by learned Counsel for the husband, sought to resist the challenges advanced on behalf of X Firm and QFPL on a number of bases. The reasons for the Court’s decision do not engage with those submissions in the detail commensurate with the submissions themselves. That is no reflection on the quality of the submissions, but rather that, the Court having concluded as it does with respect to the basis of many of those submissions, it is unnecessary to do so.

8. Pivotal to a number of the submissions of learned Counsel for the wife, was acceptance of the assertions of the husband and the wife with respect to a number of matters, which were not conceded on behalf of X Firm or QFPL.

9. As will be seen, the Court’s refusal to grant the relief sought by the husband and the wife on the evidence before it in the present application does not mean, as the Court sought to suggest on a number of occasions during the course of debate, that relief in those terms could never be granted.

10. As is not in doubt, if the evidentiary foundation were found to be present, the Court could exercise its discretion to make the consent final orders for settlement of property in the terms sought by the husband and the wife, albeit so doing could mean, that, save to the extent that X Firm and or QFPL have already been paid, they would not be likely to receive any more from the wife in payment of her obligations to either or both of them. Conversely, as the Court also suggested, if the findings of fact ultimately made were that the minutes of order advanced on behalf of the husband and the wife were intended to defeat the entitlement of X Firm and/or QFPL, the discretion to make the orders would be unlikely to be exercised in the way the husband and the wife seek.

11. Whilst it is not said critically of any party, the reality is that, to the extent that determining the present application requires findings to be made with respect to facts which are not conceded, the Court is in no position to make such findings of fact in a manner consistent with the exercise of judicial power in ways expected by the law.

12. Learned Counsel for the wife disputed that order 3 of the orders of 12 September 2011 conferred an entitlement upon X Firm to receive all or any part of the sum of up to $1 million which was payable to the wife pursuant to those orders. Notwithstanding the ingenuity of the submissions of learned Counsel for the wife in support of that contention, the Court cannot accept that, on a balanced reading of it, the order did other than provide that, albeit by way of interim property settlement in the wife’s favour, the wife was obliged to pay up to $1 million in relation to legal fees payable to X Firm, or incurred by it on behalf of the wife, there being no other apparent basis upon which X Firm could be entitled to receive property to which the wife was entitled pursuant to the orders.

13. The Court having thus concluded as it has as a matter of construction of order 3 of the orders of 12 September 2011, it is readily apparent that, if orders are made in the terms now sought by the wife and the husband, X Firm will go from having had an order protecting it for up to $1 million of legal fees incurred by the wife to having no such protection in circumstances where it is not in doubt that the wife will not likely have funds sufficient to meet her indebtedness to X Firm, whatever the quantum of that indebtedness is ultimately held to be.

14. It was submitted by reference to the decision of the Full Court in Chorn & Hopkins (supra) that the indebtedness of the wife to X Firm and/or QFPL falls within a different category to other debts. Whilst that may be so, the facts of Chorn & Hopkins (supra) differed materially from those in the present case. Similar observations apply to the facts in cases such as Gadens Ridgeway (a firm) v Paroulakis (supra).

15. The plain and unavoidable reality, in the present case, is that the wife chose on 12 September 2011, when competently represented, to consent to orders in circumstances which are not suggested to have been obtained, or subsequently vitiated in any way that would preclude X Firm and/or QFPL from relying upon those orders. If the Court is wrong in this regard, as will be seen, declining to make the final orders for settlement of property now sought by the husband and the wife, does not preclude successful agitation of that issue by or on behalf of the wife in subsequent proceedings. It may be, when disputed issues of fact are agitated, and findings made, that the Court would be more influenced by considerations of the wife’s entitlement to a settlement of property than the entitlement of her former lawyers to be paid for work previously done by them on her behalf.

16. Submissions were also made by learned Counsel for the wife in relation to the competing “priorities” which are inevitably involved in a case such as this where, to put it bluntly, there is not enough to go around. The issue then becomes prioritising the interests of the parties in circumstances where some interests will be less than fully satisfied, and potentially fail to be satisfied at all. It is in this area particularly, that the Court is hamstrung by the inability, in the proceedings as currently constituted, to make findings of fact.

17. If it transpired that the Court found, after the evidence in relation to the issue having been agitated, that the minutes of order advanced on behalf of the wife and the husband were no more than an attempt to defeat the interests of X Firm and QFPL, which had been expressly protected by the orders on 12 September 2011, the priority which the Court would be likely to give to securing a settlement of property for the wife to the detriment of her former lawyers would clearly be problematic for the wife. Conversely, if other findings of fact were made, it would also be potentially relevant to the priorities to know what the financial impact of the proposed orders on the wife, and X Firm, and/or QFPL would be. These are all matters about which the Court cannot make the findings of fact which would be the necessary precursor to determining the relative priorities.

18. As cases such as Trustee of the property of GLemnos, a bankrupt & Lemnos and Anor (2009) FLC 93-394 reveal, detailed findings of fact are almost invariably necessary before the Court can properly determine where the priorities should lie in a case in which someone must miss out on having an entitlement satisfied in whole, or in part, or at all.

discussion

1. In 2006 sections 75(2)(ha) and 79(10) were introduced into Part VIII of the Act. Those provisions were “remedial” or “beneficial”. That is apparent both from the terms of those sections, and the explanatory memorandum to the Bankruptcy and Family Law Legislation Amendment Bill (2004) (“Bankruptcy and Family Law Bill”) which accompanied the introduction of those provisions, which recorded:

   49.Item 24 would insert a new paragraph (ha) after paragraph 75(2)(h). This provides that a court making an order under section 74 must consider the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debts. This is intended to require the court specifically to consider any monies owed by a party to a creditor that the party has disclosed to the court in the proceedings, and the impact of any proposed order on the ability of the creditor to recover any such debt.

   ...

   63.Item 38 would insert a new paragraph (ea) after paragraph 79(4)(e) to provide that a court shall take into account in making an order under section 79 the effect of any proposed order on the ability of a creditor of a party to the marriage to recover the creditor’s debt. It is intended to require the court specifically to consider, when making an order in property settlement proceedings, any monies owed by a party to a creditor that the party has disclosed to the court in the proceedings, and the impact of any proposed order on the ability of the creditor to recover any such debt. This provision mirrors the proposed new paragraph 75(2)(ha) (see item 24) that applies in spousal maintenance proceedings.

   ...

   73.Item 48 proposes to insert new subsections (10A) to (17) after section 79. The proposed new subsection (10A) qualifies the operation of subsection (10) (which is contained in item 143 in Part 19 of Schedule 1 to the Family Law Amendment Bill 2004 – the FLA Bill 2004). Proposed subsection (10) of the FLA Bill 2004 provides that a creditor of a party to property proceedings under section 79, or any other person whose interests would be affected by the making of the order, may apply to become a party to those proceedings. Proposed subsection (10A) provides that subsection (10) will not apply to allow a creditor to become a party to the proceedings if his or her debt is a provable debt against a party who is bankrupt, or if the debt is covered by a personal insolvency agreement. In those circumstances, the creditor has remedies for recovery of his or her debt as a bankruptcy matter under the Bankruptcy Act. These amendments provide a process for the bankruptcy trustee to be a party to financial proceedings under the Family Law Act to represent the interests of all creditors in those proceedings.

1. The revised explanatory memorandum to Bankruptcy and Family Law Bill with respects to the introduction of s 75(2)(ha) further recorded:

   51.Item 24 would insert a new paragraph (ha) after paragraph 75(2)(h). This provides that a court making an order under section 74 (relating to spousal maintenance) must consider the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debts. This is intended to require the court specifically to consider any monies owed by a party to a creditor that the party has disclosed to the court in the proceedings, and the impact of any proposed spousal maintenance order on the ability of the creditor to recover any such debt.

   52.By virtue of paragraph 79(4)(e), the matters referred to in subsection 75(2) are also matters that the court is required to take into account, so far as they are relevant, in considering what property adjustment order should be made under section 79. The matters mentioned in paragraph 75(2)(ha) will therefore become matters to be taken into account in family property proceedings, so far as those matters are relevant to the property proceedings.

2. The supplementary explanatory memorandum to the Bankruptcy and Family Law Bill with respects to the introduction of s 79(10) further recorded:

   3.Item 1 inserts a new subsection 79(10) in the Act, allowing a creditor of a party to family law property proceedings, or any other person whose interests would be affected by an order in such proceedings, to apply to become a party to those proceedings.

3. In Parker & Parker (2012) 47 Fam LR 122 the Full Court considered the authorities regarding the interpretation of remedial or beneficial legislation, and recorded:

   9.In Bull v Attorney General (NSW) (1913) 17 CLR 370 Isaacs J (at page 384) said:

   In the first place, this is a remedial Act, and therefore, if any ambiguity existed, like all such Acts should be construed beneficially (per Lord Loreburn L.C. in Bist v. London and South Western Railway Co.). This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow.

   (Footnotes omitted)

   10.In I W v The City of Perth and Others (1997) 191 CLR 1 Brennan CJ and McHugh J (at page 12) said:

   …beneficial and remedial legislation, like the [Equal Opportunity] Act, is to be given a liberal construction. It is to be given “a fair, large and liberal” interpretation rather than one which is “literal or technical”. Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. (Footnotes omitted)

   11.Section 15AA of the Acts Interpretation Act 1901 (Cth) provides:

   In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object [see D C Pearce & R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7th ed, 2011 at page 32]. ...

   12.In Mills v Meeking (1990) 169 CLR 214 (at page 235) Dawson J said:

   …the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. … However, if the literal meaning of a provision is to be modified by reference to the purposes of the Act, the modification must be precisely identifiable as that which is necessary to effectuate those purposes and it must be consistent with the wording otherwise adopted by the draftsman. ...

   13.In R v L (1994) 49 FCR 534 Burchett, Miles and Ryan JJ (at page 538) said:

   The requirement of s 15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s 15AA (1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature: Trevisan v Commissioner of Taxation (1991) 29 FCR 157 at 162 per Burchett J. ...

   14.In Carr v Western Australia (2007) 232 CLR 138 Gleeson CJ (at page 143) said:

   That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose. ...

4. Whilst the Court does not, for reasons which will shortly be stated, consider that it is necessary to do so in order to justify its conclusion in this matter, the authorities to which reference has been made, and the explanatory memoranda which have been recorded earlier, provide support for concluding that, to the extent that it might be necessary to justify such conclusion, a beneficial or generous interpretation of the provisions introduced to the legislation in 2006 could be invoked for that purpose.

5. With all due respect to the submissions of learned Counsel for the wife and the husband, and accepting that the quantum of the wife’s indebtedness to X Firm may be substantially reduced, to make the present orders, thereby depriving X Firm of the benefit the wife agreed to confer upon it by order 3 of the orders of 12 September 2011, would in the Court’s view effect the ability of X Firm to recover its indebtedness. The letter from the wife’s present attorneys to the attorneys of X Firm of 23 August 2012, from which the wife’s learned Counsel did not seek to resile, leaves no room for uncertainty in that regard. Whether that effect should ultimately preclude the Court from concluding that the minutes of order are just and equitable within s 79(2) of the Act would depend upon findings of fact which the Court is presently unable to make. It may be that, if and when findings of fact are available in relation to the matters to which reference has been earlier made, particularly in relation to the competing priorities, the Court could be satisfied that it would be just and equitable to make the orders that the wife and the husband seek.

6. The terms of s 79(2) are clear, and mandatory in their operation. The Court must be affirmatively satisfied that in all the circumstances it is just and equitable to make the proposed orders. Having regard to the position of X Firm, the Court is not able to be satisfied that the proposed orders are just and equitable.

7. As the submissions of learned Counsel for the wife suggest, the position with respect to QFPL is less clear given the possibility, as was asserted by learned Counsel for the wife, that QFPL is entitled to recover from X Firm monies which are payable to it by the wife, and that, as learned Counsel for the wife also submitted, to make the order would not defeat the interest of QFPL.

8. Although superficially attractive, the submissions of learned Counsel for the wife in relation to this issue overlook the reality that the Court is unable to make the findings of fact upon which the argument is necessarily based. Moreover, the issue is not whether to make the orders would defeat the ability to recover the indebtedness, but whether it would have an effect upon that ability. Having regard to the terms of the orders of 12 September 2011, and the contractual obligations which the evidence suggests exist between X Firm and QFPL, the Court cannot be satisfied that making the consent orders advanced on behalf of the husband and the wife would not necessarily effect QFPL’s ability to recover any indebtedness, it may ultimately be held to have against the wife, and is able to be affirmatively satisfied that so doing would effect the ability to recover any such indebtedness.

9. As learned Counsel for the wife properly conceded, even if his submissions in relation to the position of QFPL were accepted in their entirety, that would change nothing if, as the Court has earlier concluded, making the orders sought by the husband and the wife would effect the ability of X Firm to recover its indebtedness. Indeed, it could be argued that if learned Counsel for the wife’s submissions in relation to QFPL are correct, the effect on X Firm’s ability to recover its indebtedness, if the orders are made, would be even greater than might otherwise be the case, but that is not matter about which the Court can, or need speculate.

10. In the absence of being able to make findings of fact that it would be just and equitable to do so, the Court’s finding that making the consent orders would effect the ability of at least X Firm to recover its indebtedness from the wife, whatever it is ultimately held to be, provides a sufficient basis for declining to make the proposed orders. Whether that effect should ultimately preclude the Court from concluding that the minutes of order are just and equitable within s 79(2) of the Act would depend upon findings of fact which the Court is presently unable to make. It may be, if and when findings of fact are available in relation to the matters to which reference has been earlier made, and particularly in relation to the competing priorities as between the wife, X Firm and QFPL, that the Court could be satisfied that it would be just and equitable to make the orders that the wife and the husband seek.

11. In the light of the Court’s conclusions with respect to it, the Court proposes to simply decline to make the orders rather than dismiss the application, which has not been shown to be doomed to fail. There would appear to be two options remaining in the light of so doing, assuming that the husband and the wife continue to wish to have orders made in accordance with the minutes of order advanced on their behalf. One is for further dates to be obtained so that the Court, as currently constituted, can hear and determine disputed issues of fact, and consider further submissions in relation to the issues identified correctly, in the Court’s view, by learned Counsel for the wife.

12. The second, is that although the Court does not consider that anything emerging during the course of debate on 14 September 2012, or articulated in these reasons for judgment would give rise to a reasonable apprehension of any absence of impartiality such as to render recusal appropriate, the Court’s view in that regard does not bind the parties, and all or some may prefer to have the matter agitated on the merits before another judge.

costs

1. Although there is a high probability, that having decided the matter in the way it has, and for the reasons it has, the Court would reserve the costs of this application until the final determination of the proceedings, as requested by Counsel for the parties, and agreed by the Court on 14 September 2012, these orders will provide for submissions with respect to the costs of the proceedings on that day.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 17 October 2012.

Associate:

Date: 17.10.2012