Merlo & Merlo
[2021] FedCFamC1F 63
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Merlo & Merlo [2021] FedCFamC1F 63
File number(s): BRC 2012 of 2019 Judgment of: BAUMANN J Date of judgment: 21 September 2021 Catchwords: FAMILY LAW – PROPERTY – INTERIM – Where the Applicant seeks injunctions against both the First Respondent husband and Second Respondent, restraining them from selling or otherwise dealing with assets or interests overseas – Order made for the First Respondent to provide notice to the Applicant of any intention to sell a personal asset or interest and any significant asset of the corporation or its subsidiaries – Order made for Second Respondent provide notice to the Applicant of an intention to sell or otherwise deal with property interests Legislation: Family Law Act 1975 (Cth) Cases cited: Patton & Patton [2015] FamCA 1083
Tsiang & Wu & Ors (2019) FLC 93-911
Division: Division 1 First Instance Number of paragraphs: 35 Date of hearing: 14 October 2020 Place: Brisbane Counsel for the Applicant: Ms C Dart Solicitor for the Applicant: HopgoodGanim Lawyers Counsel for the First Respondent: Mr T Kirk QC Solicitor for the First Respondent: Barry.Nilsson Lawyers Solicitor for the Second Respondent: Genuine Legal ORDERS
BRC 2012 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DENNETT AS LEGAL PERSONAL REPRESENTATIVE SUBSTITUTED FOR MS MERLO (DECEASED)
Applicant
AND: MR MERLO
First Respondent
MS ILYN
Second Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
21 SEPTEMBER 2021
THE COURT ORDERS:
1.That these proceedings be adjourned for Case Management Hearing at 2.00pm (Queensland time) on 8 October 2021 in the Federal Circuit and Family Court of Australia Division 1 at Brisbane.
2.That the Applicant’s solicitor provide to the First Respondent and Second Respondent a draft minute of order consistent with the Reasons for Judgment delivered 21 September 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Merlo & Merlo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
A somewhat complex relationship history has emerged following the commencement of property settlement proceedings by an application filed 21 February 2019, in which Ms Merlo sought 60% of the combined interests that she said accumulated during a marriage with Mr Merlo (“the husband”) currently 78 years of age, solemnised in Country B in 1968.
It emerges that the parties to this marriage dispute when separation occurred, the wife says it was in June 2014, whilst the husband says it was almost 20 years earlier in 1995.
Sadly, shortly after commencement of proceedings, Ms Merlo died in 2019, at the age of 75 years, and for the purpose of these Reasons, she will be described as “the deceased”. A Grant of Probate issued by the Supreme Court of Queensland in mid-2019 and confirmed that the deceased’s daughter, Ms Dennett (“the Applicant”) (one of the married couple’s children) was the executor under the last will of the deceased dated 25 May 2014, and with that authority, was substituted in these proceedings as the Applicant by Order made 24 September 2019.
On 27 July 2020, the Applicant filed an (Amended) Initiating Application naming Ms Ilyn as a Second Respondent, against whom declarations are sought that certain properties owned by the Second Respondent in D City are held by her in Trust for the husband.
Without, at this stage of the proceedings, making any specific findings about the relationship of the husband and the Second Respondent, the husband says he met the Second Respondent in or around 2001 when he was mostly living in Country F, and that they have three children, Mr G (aged 18 years); Y (aged 15 years) and X (aged 13 years). The husband and the Second Respondent married in 2019.
This succinct chronology merely sets a background for what now represents a somewhat bitter dispute maintained by the Applicant daughter (as Executor) against her father, and with the joinder of the husband’s new wife, the Second Respondent. However, apart from these family tensions, the issues that also emerge include:
(a)What are the nature, characteristics and legal interests held by the husband and the deceased, in particular, in a number of overseas corporations referred to in the material;
(b)The corporate entities seemed to have business interests in Country B, Country H and Country F, whilst real estate interests exist in Australia;
The primary corporation is a Country B company named J Company which the husband says was founded in 1979. The husband says in around 1986, a third party, Ms L commenced involvement in J Company, in particular, providing finance for business ventures and expansion, and, at paragraph 80 of his affidavit filed 4 September 2020 (“his affidavit”), the husband says that in 2005 the shareholdings in J Company, changed to:
Ms L: 56.31% The husband 11.5% The deceased (as Trustee for the husband) 32.19%
(c)Whether the husband’s assertion (at paragraph 10 of his affidavit) that:
…I have business interests in Country B and Country F, however, these businesses have been financially struggling since around 2014 and since that time have not produced consistent and regular income or distributions to support my family. Currently, my only regular source of income is my pension from Country B in the amount of €2,700 per month (equivalent to approximately AUD$4,363.11),
is correct, is also disputed by the Applicant.
(d)Despite the evidence from the husband of his overseas entities at paragraph 42 of his affidavit, and noting that the Applicant’s brother, Mr K Merlo, is also said to hold interests in some entities in Country F, the Applicant disputes those interests and certainly, a significant dispute exists as to the value of any such interests. The husband (at paragraph 92 of his affidavit) assets that he is concerned that a “valuation of these entitles at significant cost (possibly around AUD$290,000) will identify that the liabilities associated with the overseas assets is greater than their value”;
(e)Disputes exist, and allegations of a failure to disclose by the husband are maintained by the Applicant, around the Warehouse in Country F; the showroom in Country F; the sale of the office space in Country F in October/November 2018, and the use of the nett sale of proceeds;
(f)The informal property division that the husband says was agreed between the husband and his daughter, the Applicant for and on behalf of the Deceased, in 2017/18 the husband asserts caused the sale of a wine collection (for $475,502); the sale of the Suburb M property (for a nett return of approximately $1,049,316); cashing in of the life insurance policy on the husband’s life (of approximately $1,111,420); and disposal of other assets in Australia. The husband says the proceeds of these assets totalled $2,827,938 which were distributed as follows:
The husband $1,289,676 The deceased $1,391,705 Mr K Merlo $125,746 Balance on sundry expenses approximately $19,810
It is not clear at this stage whether the Applicant agrees with this evidence or how, at the very least, these distributions should be taken into account in these proceedings.
(g)Leaving aside for a moment the overseas interests, the husband, at paragraph 152 of his affidavit, estimated that property he has an interest in (and proceeds of sale of cars in Australia) totals $546,282, whilst the deceased’s estate totals $1,055,422 – an aggregate of $1,781,704. Additionally, the husband believes that the Applicant may still retain gold previously held by the husband and the deceased; and
(h)The Applicant’s draft balance sheet (“DD-4”) acknowledges the value of all overseas interests are currently “not known” and this includes the real property interests of the Second Respondent in Country F. The Applicant includes the Second Respondent’s ANZ bank account ($58,687) and motor vehicles in Europe, said to be owned by the Second Respondent, however, as between the Applicant and the husband, the assets in Australia and their value are not significantly at variance (subject to a valuation of the N Street, P Town property, where the Applicant says it is worth $470,000 and the husband says it is worth $390,000).
It is immediately apparent that there are many disputed issues. To what extent the inability to reach any agreements on the disputed issues is shaped by the fact that the husband’s two adult children, the Applicant and Mr K Merlo, who both worked in the overseas entities at times, have a negative view of their father’s business and personal decisions (including, of course, the relationship with the Second Respondent), is uncertain.
It needs to be stated that if the overseas interests are struggling financially (as the husband asserts) and little value therefore exists in those interests, then any costs which are incurred now by these separate parties, separately legally represented, should be proportional to the available and accessible pool of assets. In that regard, costs notifications have been tendered which in total reveal:
Costs to date (including this interlocutory hearing)
$266,440
Estimated further costs to trial (excluding the Second Respondent)
$438,000
Estimated total
$704,440
These estimates speak for themselves.
THE APPPLICATION IN A CASE
At Appendix One to these Reasons, the relief sought by the Applicant in her Application in a Case filed 27 July 2020 is set out.
By the interlocutory hearing, the Applicant, with assistance of her Counsel, Ms Dart, had refined both the orders sought (see Appendix Two), and the list of “outstanding disclosure”, which I have marked Exhibit 2.
The husband, represented before me by Mr Kirk of Queen’s Counsel, and the Second Respondent, represented by solicitor advocate, Ms Eastwood, broadly seek that the Applicant’s Application in a Case be dismissed.
I will now deal with the issues in dispute raised for determination in the interlocutory proceedings.
For completeness, I record that in addition to oral submissions received on 14 October 2020, written submissions from all parties were received and have been considered.
APPLICABLE LEGAL PRINCIPLES TO BE APPLIED
The Applicant invites the Court to use the power under s 114 to make injunctions against both the First Respondent husband and Second Respondent, restraining them from selling or otherwise dealing with assets or interests overseas.
The Applicant contends that the injunctions sought are sought against the other parties personally, both parties being within the Australian jurisdiction. The clear intention of the restraints sought is to seek to preserve interests in property held by those parties pending resolution of the s 79 proceedings. The Applicant relies on the principles set out in Tsiang & Wu & Ors (2019) FLC 93-911 and accepts she must demonstrate:
(a)a sufficient likelihood of success to justify in the circumstances the preservation of the status quo;
(b)the balance of convenience favours the making of the orders sought; and
(c)it is unnecessary to demonstrate a positive intention to sell interests but must show there is a “danger” or risk of dissipation of or dealings with assets which will frustrate any judgment in favour of the Applicant.
The husband referred the Court to the principles enunciated by Kent J in Patton & Patton [2015] FamCA 1083 which identifies the same principles set out by the Full Court above.
INJUNCTIONS SOUGHT AGAINST THE HUSBAND
In my assessment, some fundamental hurdles are presented by the facts of this case at this time in granting the relief sought by the Applicant, namely:
(a)the Applicant does not assert that the husband has unfettered control of the major corporate entity J Company, nor could she. The husband is the CEO and, applying Australian corporation principles (which may not apply in Country B), has a duty to manage the corporation effectively and is answerable to the board of directors. J Company is a Country B company and the shareholders, set out earlier, reveal the combination of the husband’s shareholding (11.5%) and the Estate (32.19%) still together constitute a minority interest;
(b)the majority shareholder Mr L is said to suffer dementia. She has not been properly served with any applications so as to enable her (or if she has an incapacity as alleged, those who represent or protect her interests and rights) to be heard on the Application;
(c)there is insufficient evidence for the Court to determine whether, as the husband asserts and the Applicant contests, the deceased held her shareholding in J Company on trust for the husband. Until that issue is determined, the Applicant as Executor controls the rights that flow from the 32.19% shareholding;
(d)although the company J Company and its subsidiaries do own valuable property interests in Country F in particular, the husband asserts that the businesses associated with those property interests are struggling financially and have significant debts which need to be met and managed and the real property is security for significant debts. The Applicant does not dispute this, but raises concerns about previous transactions in an attempt to demonstrate, at least on a prima facie basis, that the husband cannot be trusted to ensure the interests of the company are being met rather than his own personal interests;
(e)the inability, to date, for these parties to fund a forensic accountant assessment of the various overseas entities, presents as a significant impediment. If the costs are anything like AUD$270,000, then on the current evidence, the husband has no capacity from funds accessible and known in Australia, to contribute equally (as the Rules dictate) to the costs of the forensic accountant. It is likely as well, if the entities are to be valued on a net tangible assets basis, that real estate valuations will be required. Estimates for such valuations may be included in the total estimate of fees above, but that is far from clear; and
(f)the limited value of the Australian assets, coupled with the uncertainties of the value of the husband’s interests in the overseas entities, makes it virtually impossible to assess whether the balance of convenience supports the injunctions sought against the husband in the minute of orders.
I seems to me that the intent of the part of the relief sought against the husband limits his capacity as CEO to manage the business, in the normal course of business, and in the best interests of the company and shareholders.
There may be remedies which are available for the Applicant to pursue, as a minority shareholder in J Company, in Country B or Country F, however I cannot anticipate the costs and complexities in doing so and UNLESS it is established that the nett value of the combined minority shareholding of the parties is significant, little utility might arise.
The husband, as CEO, would have a duty to report to the board of directors as to his management of the company. In these difficult and challenging times (and without any real evidence to contest the husband’s assertions as to the financial instability of the entities), some business agility is desirable.
In the circumstances as set out in these Reasons, I am not persuaded that restraining the husband in the manner sought by the Applicant is just and will not make orders as sought.
However, the Court would order that the husband provide a monthly report to the Applicant of any business decisions relating to the sale or encumbering of any significant asset situated outside of Australia, including by the company J Company and its subsidiaries, which the husband appears to control. To do so is consistent with the general fiduciary duty a CEO owes to the board, and through it, the shareholders.
As a result, I will order as sought at order 2(a), (b) and (c) with necessary amendments to provide for the husband to give 28 days’ notice to the Applicant of any intention to sell a personal asset or interest and any significant asset of the corporation J Company or its subsidiaries. With such notice, if the Applicant believes further injunctive orders are then necessary, she can apply to the Court – no doubt aware of the jurisdictional challenges in seeking to enforce an Australian order against overseas entities or parties. Certainly, the Applicant is, in my view, entitled to be given prior notice of any significant dealing with the Warehouse and the showroom.
As I deal with next, and for the reasons given, I will not make an order that the husband be restrained from “taking any steps to cause the sale of any assets situated outside Australia in which Ms Ilyn holds an interest”.
In circumstances where the husband has used, or intends to use, the proceeds of sale of the motor vehicle 1 for his living expenses, I can understand the Applicant seeking to restrain the flow of income to the husband. This is sought to be achieved by:
(a)order 2(d) – placing funds into his Australian solicitor’s trust account in respect of a sale of a personally owned overseas asset; and
(b)orders 3 and 4 – transferring or causing the transfer of funds “from any bank account held by the overseas bank account held by the overseas entities into his personally held bank accounts or those of the Second Respondent” at all, and to a “third party” only in the course of business and on 28 days’ notice to the Applicant.
I regard such restrictions as inappropriate. The husband has a legal duty to his wife (the Second Respondent) and their children. He, as CEO, is entitled to be remunerated for his efforts at a level set by the board of directors. He, of course, has a continuous duty to inform the Applicant of matters pertaining to his financial situation and any changes. Whilst I do not underestimate the difficulties and challenges (as well as costs) of navigating a number of overseas banking and financial institutions, that is not a justification in this case to unreasonably “tie up” the husband’s capacity to earn a living and to manage the corporations.
For these reasons, apart from orders being made for ongoing reporting to the Applicant as I have envisaged, and further specific orders for discovery (which were not the subject of any submissions before me on 14 October 2020 but will be dealt with at the next Case Management Hearing), I will not make the orders sought at 2(d)(2); 3 or 4 of Appendix Two.
INJUNCTIONS AGAINST THE SECOND RESPONDENT
It is appropriate that the Second Respondent be joined as a party, however for the reasons which follow, I do not propose to restrain her from selling the properties specific at orders 6(a) and 6(b) but will require her to give 28 days’ notice to the Applicant of an intention to sell those properties with details of the terms of the proposed sale and likely nett proceeds.
I assess, at this time, the evidence of the Applicant, who bears the onus of establishing that the legal owner of the Country F based real property interests owned by the Second Respondent, are held on any Trust by her in part or whole for the husband, demonstrates a weak case, however I accept with further discovery some support for the Applicant’s case against the Second Respondent might emerge.
The Applicant needs much more than suspicions and concerns, in part generated by the fact that the husband and the Second Respondent commenced a relationship from around 2001, to support her assertions.
The Second Respondent has given evidence as to the source of funds used to acquire the property, and whilst I accept that such evidence is to be tested and further discovery is likely to be required, on balance, at this stage, I am not persuaded that the Second Respondent should be restrained by injunction. There is furthermore no evidence to suggest that the Second Respondent has intentions to sell the Country F interest.
However, I will make an order that the Second Respondent give 28 days’ written notice to the Applicant and, formally, to the husband, of any intention to sell, encumber or otherwise deal with those interests, being:
(a)the two apartments in central D City at Q Building, one being Unit No. 1; and
(b)the two houses and land at R Town, in D City Region.
WHAT HAPPENS NOW?
This matter needs to be progressed to a final hearing and will be Judge managed to any necessary trial.
At the next Case Management Hearing, which I will set for 2.00pm on 8 October 2021, I would expect to deal with:
(a)pronouncing orders consistent with these Reasons, and in that regard, I will direct the solicitors for the Applicant to provide to the Respondents a draft minute of order, with a view to seeking to reach an agreement as to the form of order;
(b)the appointment and the funding of any necessary single experts required in this matter;
(c)any substantial dispute as to discovery not yet completed; and
(d)a timetable for when the matter could properly be ready for a privately funded mediation, and any further steps that are necessary before a mediation that would facilitate the conducting of an orderly mediation.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 21 September 2021
APPENDIX ONE
1.That the First Respondent Husband be restrained forthwith from:
(a)Selling or causing the sale of any asset situated outside Australia, in which he holds an interest;
(b)Taking any steps to cause the sale of any asset situated outside Australia in which Ms Ilyn holds an interest;
(c)Selling or causing the sale of any real property asset held by an overseas entity in respect of which he is a shareholder or director including J Company and its subsidiaries (the overseas entities), including but not limited to the Warehouse and the showroom,
without first providing 28 days prior written notice to the Applicant as to the specific contract or dealing proposed by him, with supporting documents.
2.That upon the First Respondent Husband providing such 28 days prior written notice to the Applicant that he proposes to sell any asset identified in clause 1 hereof (the overseas asset), the First Respondent Husband shall:
(a)Inform the Applicant in writing of the expected gross sale proceeds of the overseas asset;
(b)Inform the Applicant in writing of the estimated liabilities and expenses to be paid from the sale of the overseas asset;
(c)Provide the Applicant with documents to substantiate each of the above estimates, including updated documents from time to time as the First Respondent becomes aware of variations to his estimates; and
(d)Cause the sale proceeds of the overseas asset, less necessary costs of sale and liabilities encumbering that asset:
(1)Where the asset is held by him in his personal name, to be deposited into the trust account of his Australian solicitor and not withdrawn pending agreement between the parties or Court order, or
(2)Where the asset is a real property asset held in the name of one of the overseas entities, deposited into a bank account in the name of that overseas entity and not paid or transferred out of the account of that overseas entity except in accordance with clause 3 below.
3.That the First Respondent Husband be restrained forthwith from:
(a)Transferring or causing the transfer of any funds from any bank account held by the overseas entities into his personally held bank accounts or those of the Second Respondent, and
(b)transferring or paying any funds, or causing the transfer or payment, from any bank account held by the overseas entities to a third party, unless it is:
(1)in payment of an invoice or employee entitlements and in the ordinary course of business of the overseas entity, or
(2)in payment of a dividend with 28 days written notice in advance to the Applicant as to the dividend that is proposed to be paid, or
(3)if it is not in accordance with subparagraphs 3(b)(1) or 3(b)(2), such payment must not be made without 28 days prior written notice to the Applicant informing her of the proposed payment, with documents substantiating the reason for payment including an English translation.
4.That the First Respondent Husband be restrained forthwith from transferring or withdrawing funds held in all overseas bank accounts held in his personal name, including but not limited to Bank Country B Account …68 and Bank Country B Account …00, unless:
(a)The funds are transferred to his Australian solicitor's trust account and held until written agreement or court order in these proceedings; or
(b)If the First Respondent Husband seeks to pay an invoice or expense from the overseas bank accounts, he first provides 28 days written notice to the Applicant enclosing a copy of the invoice that is proposed to be paid from that bank account and an English translation of the invoice, if it is in a language other than English.
5.That the Second Respondent be restrained forthwith from selling or causing the sale of any asset situated outside Australia held in her sole name, including but not limited to the following:
(a)The two apartments in central D City at Q Building, one being Unit No. 1; and
(b)The two houses and land at R Town, in D City Region;
without providing 28 days prior written notice to the Applicant.
6.That within fourteen (14) days from the date of these Orders, the First Respondent Husband pay into the Barry.Nilsson.Lawyers trust account the sum of $74,986.81 drawn by him from the S Solicitors Trust account on 18 February 2020, and such funds are to be held pending either written agreement or Court order.
7.That within fourteen (14) days from the date of these Orders, the First Respondent Husband, at his sole expense, shall do all acts and things and sign all documents necessary to deliver the unregistered motor vehicle 1 motor vehicle (the motor vehicle 1) to such address as nominated by the Applicant in writing.
8.That within 21 days of receiving the motor vehicle 1, the Applicant do all acts and things and sign all documents necessary to arrange the motor vehicle 1 to be listed for sale by private treaty with a car dealer of the Applicant's choosing, and for that purpose the following shall apply:
(a)the list price of the motor vehicle 1 shall be such amount as is agreed between the parties and failing agreement the list price will be $110,000;
(b)the sale price of the motor vehicle 1 shall be $110,000 and failing agreement any unconditional offer to buy the motor vehicle 1 that is at least 90% of that price shall be accepted by the parties as the sale price;
(c)the contract of sale shall provide for completion within thirty (30) days after the date of the contract or any other time period as agreed by the parties; and
(d)the parties will use their best endeavours to ensure that the sale of the motor vehicle 1 will be at arm's length and for market value.
9.That the parties shall do all acts and things and sign all documents necessary to direct that proceeds from the sale of the motor vehicle 1 shall be applied in the following order and priority:
(a)Payment of the costs of sale of the motor vehicle; then
(b)Payment of the remaining funds to the trust account of the Applicant's solicitor, with such funds to be held in the Applicant's solicitor's trust account pending Court order or agreement of the parties.
10.That the First Respondent Husband pay the Applicant's costs of and incidental to this application.
APPENDIX TWO
1.That the First Respondent Husband be restrained forthwith from:
(a)Selling or causing the sale of any asset situated outside Australia, in which he holds an interest;
(b)Taking any steps to cause the sale of any asset situated outside Australia in which Ms Ilyn holds an interest;
(c)Selling or causing the sale of any real property asset held by an overseas entity in respect of which he is a shareholder or director including J Company and its subsidiaries (the overseas entities), including but not limited to the Warehouse and the showroom,
without first providing 28 days prior written notice to the Applicant as to the specific contract or dealing proposed by him, with supporting documents.
3.That upon the First Respondent Husband providing such 28 days prior written notice to the Applicant that he proposes to sell any asset identified in clause 1 hereof (the overseas asset), the First Respondent Husband shall:
(a)Inform the Applicant in writing of the expected gross sale proceeds of the overseas asset;
(b)Inform the Applicant in writing of the estimated liabilities and expenses to be paid from the sale of the overseas asset;
(c)Provide the Applicant with documents to substantiate each of the above estimates, including updated documents from time to time as the First Respondent becomes aware of variations to his estimates; and
(d)Cause the sale proceeds of the overseas asset, less necessary costs of sale and liabilities encumbering that asset:
(1)Where the asset is held by him in his personal name, to be deposited into the trust account of his Australian solicitor and not withdrawn pending agreement between the parties or Court order, or
(2)Where the asset is a real property asset held in the name of one of the overseas entities, deposited into a bank account in the name of that overseas entity and not paid or transferred out of the account of that overseas entity except in accordance with clause 3 below.
4.That the First Respondent Husband be restrained forthwith from:
(a)Transferring or causing the transfer of any funds from any bank account held by the overseas entities into his personally held bank accounts or those of the Second Respondent, and
(b)Transferring or paying any funds, or causing the transfer or payment, from any bank account held by the overseas entities to a third party, unless it is:
(1)in payment of an invoice or employee entitlements and in the ordinary course of business of the overseas entity, or
(2)in payment of a dividend with 28 days written notice in advance to the Applicant as to the dividend that is proposed to be paid, or
(3)if it is not in accordance with subparagraphs 3(b )(1) or 3(b )(2), such payment must not be made without 28 days prior written notice to the Applicant informing her of the proposed payment, with documents substantiating the reason for payment including an English translation.
5.That the First Respondent Husband be restrained forthwith from transferring or withdrawing funds held in all overseas bank accounts held in his personal name, including but not limited to Bank Country B Account …68 and Bank Country B Account …00, unless:
(a)The funds are transferred to his Australian solicitor's trust account and held until written agreement or court order in these proceedings; or
(b)If the First Respondent Husband seeks to pay an invoice or expense from the overseas bank accounts, he first provides 28 days written notice to the Applicant enclosing a copy of the invoice that is proposed to be paid from that bank account and an English translation of the invoice, if it is in a language other than English; and
(c)From the date of this Order, the First Respondent Husband may withdraw periodic amounts equivalent to his Country B pension from time to time for his everyday living expenses in Australia, presently being €2,782.70 per month paid into Bank Country B Account …00.
6.That leave be granted to the Applicant to amend her Initiating Application to add the Second Respondent as a party.
7.That the Second Respondent be restrained forthwith from selling or causing the sale of any asset situated outside Australia held in her sole name, including but not limited to the following:
(a)The two apartments in central D City at Q Building, one being Unit No. 1; and
(b)The two houses and land at R Town, in D City Region;
without providing 28 days prior written notice to the Applicant.
8.That within fourteen (14) days from the date of these Orders, the First Respondent Husband, at his sole expense, shall do all acts and things and sign all documents necessary to direct that the proceeds from the sale of the motor vehicle 1 shall be paid of the trust account of the Applicant's solicitor, with such funds to be held in the Applicant's solicitor's trust account pending Court order or agreement of the parties.
9.In the alternative to Order 6, that the First Respondent Husband do all acts and things necessary to arrange for the sum of $95,000 to be paid into this solicitor’s trust account, with such funds to be utilised by his solicitors towards his share of the single expert’s fees.
10.That the First Respondent Husband pay the Applicant's costs of and incidental to this application. In the alternative, that costs be reserved.
11.That the First Respondent Husband, provide to the Applicant within 14 days, those documents contained in Annexure “A” hereto.
12.That the Applicant has leave to provide to Ms T copies of any court documents filed in these proceedings.
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