Millhouse and Mullens

[2017] FamCA 37

FAMILY COURT OF AUSTRALIA

MILLHOUSE & MULLENS [2017] FamCA 37

FAMILY LAW – PROPERTY – INJUNCTION – where the Applicant seeks orders restraining the Respondent from dealing with the proceeds of sale of real property
FAMILY LAW – PROPERTY – INTERIM – where the Applicant seeks orders for litigation funding
FAMILY LAW – SPOUSAL MAINTENANCE – whether Applicant is unable to adequately support herself

Family Law Act 1975 (Cth)

Brown & Brown (2007) FLC 93-316;
Blueseas Investments Pty Ltd v Mitchell (1999) FLC 92-856
Mitchell and Mitchell (1995) FLC 92-601
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Strahan v Strahan (2011) FLC 93-466
Zschokke and Zschokke (1996) FLC 92-693

APPLICANT: Ms Millhouse

RESPONDENT: Mr Mullens

FILE NUMBER: BRC 10196 of 2013

DATE DELIVERED: 27 January 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 26 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hackett

SOLICITOR FOR THE APPLICANT: Hirst & Co

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Barry.Nilsson Lawyers

Orders

IT IS ORDERED BY WAY OF INTERIM ORDER THAT

1. The Amended Application in a Case filed 4 August 2015 is dismissed.

2. In the event that either party seeks an order that the other pay the costs of and incidental to the Amended Application in a Case filed 4 August 2015:

   (a)any such party shall file and serve brief written submissions in support of such application for costs within twenty-eight (28) days of today; and

   (b)the party against whom an order for costs is sought shall file and serve within a further twenty-eight (28) days thereafter any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

   (c)the party seeking an order for costs shall file and serve any brief further written submissions within fourteen (14) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

   and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10196 of 2013

Ms Millhouse

Applicant

And

Mr Mullens

Respondent

REASONS FOR JUDGMENT[1]

[1]I commence these Reasons with a sincere apology to the parties for the significant delays in finalising this matter. I assure them that I have had particular regard to the contemporaneous notes I took during the hearing - which I have revisited, together with the affidavit material and any written submissions or outlines (however described) provided on behalf of a party.

1. By Amended Application in a Case filed 4 August 2015, the Applicant seeks:

   a)injunctive relief, as particularised, including that the Respondent be restrained from disposing of, or further encumbering, property and his interests in various corporate entities other than in the manner provided for in the Amended Application; and

   b)an order for specific disclosure[2]; and

   c)an order requiring the Respondent to pay her spousal maintenance in the sum of $1,300.00 per week; and

   d)that, by way of partial property settlement order[3] pursuant to s 79 of the Family Law Act1975 (Cth) or by way of interim litigation funding order[4], the Respondent pay $150,000.00 to her solicitors’ trust account or, alternatively, be ordered to pay to her solicitors the same amount he pays to his own solicitors or to an accountant, valuer or other expert engaged in respect of the proceedings.[5]

   [2]Limited at the hearing to that particularised at Clause 3e of the orders outlined in Annexure “A” to the Amended Application in a Case filed 4 August 2015.

   [3] pursuant to s 79 of the Family Law Act1975 (Cth).

   [4] pursuant to s 117 of the Family Law Act1975 (Cth).

   [5]           A ‘dollar for dollar’ order.

2. The Respondent opposes any order being made.

Brief summary of relevant factual circumstances

1. The Applicant was born in 1967 and is 49 years of age. She previously operated a business.  The evidence is that she now works on a part-time basis as a consultant. She has three children, none of whom are from her relationship with the Respondent.  Her eldest child is about 26 years of age. Her children C (born in 2000 and now 16 years of age) and D (born in 2001 and now 15 years of age) lived with the parties during the entirety of their cohabitation.[6] 

   [6]           Her oldest child, now an adult, also lived with the parties for some time.

2. The Respondent was born in 1961 and is now 55 years of age. He is the Chief Executive Officer of E Pty Ltd and a managing director of F Pty Ltd. He has a daughter from a previous relationship: G, born in 2003. She lived with the parties each weekend[7] and for half of her school holidays.

   [7]           From Friday afternoon until Monday morning.

3. The parties, who have no children together, commenced cohabitation in October 2008. At that time, it seems the Applicant owned property said to have a value of $2,096,000.00 and the Respondent owned property said to have a value of $3,815,000.00.

4. The Applicant asserts that, in October 2008, the Respondent moved to live with her and her children in a property she owned at H Resort. According to her, this remained the arrangement until about November 2009 when all moved to live in an apartment at Suburb I owned by the Respondent. In contrast, the Respondent contends that, whilst their relationship commenced in 2008, the parties maintained separate residences until about February 2010, when the Applicant and her children moved to live with him at his Suburb I apartment so that she could rent out her home at H Resort.

5. Whatever the position, it seems relatively clear that, from no later than about February 2010, the parties, C, D and G (when she was spending time with her father) lived in the Respondent’s Suburb I apartment until the parties separated on 27 August 2013.

6. The Applicant also says that, because the Respondent had no furniture of substance, she moved her furniture and belongings into his apartment (leaving her H Resort property vacant). In contrast, he says he moved his furniture and contents from the apartment into storage and/or sold it to accommodate the Applicant’s wish to bring her furniture and chattels with her.

7. It is impossible, given the interim nature of this hearing and the limitations which necessarily attend it, to make the factual determinations necessary to dispose of this disputed issue. In any event, resolution of such contested matters in unnecessary to the determination of the current Application.

8. During their relationship, the parties also spent time at a property owned (then in part) by the Respondent at A Town. Nothing in the Applicant’s evidence suggests that, during the relationship, she made any direct financial contribution to the acquisition, maintenance or conservation of this property.

9. The parties signed a Financial Agreement on 7 May 2010 – the day before they married. The Respondent asserts that this Agreement accurately records that, as at that date, he owned specified property valued at $3,815,000.00 (of which $285,000.00 was held by way of superannuation interest). The Agreement also records that, as at that date, the Applicant owned specified property valued at $2,123,000.00.[8]

   [8]           None of which is held by way on superannuation interest.

10. That is, according to the Agreement, the parties’ property had a combined value of $5,938,000.00 (inclusive of superannuation entitlements). Of this, the value of property owned by the Applicant represented about 35.75 per cent of the combined value, whilst the value of property (including superannuation entitlement) owned by the Respondent represented about 64.25 per cent of the combined value.

11. Whilst the Respondent now takes issue with some of the valuations then accorded to the Applicant’s artwork, furniture and jewellery, this dispute cannot be resolved at this stage.

12. During 2012, the Applicant received an inheritance in the amount of about $500,000.00. There seems to be dispute between the parties about the manner in which these funds were applied. This is a further dispute which is incapable of resolution at this time.

13. The parties separated on 27 August 2013. They did so because they learned of allegations that C had sexually assaulted G, then 12 years of age. Proceedings arising from these allegations have been initiated.

14. The Respondent initially left the Suburb I apartment. However, the parties subsequently agreed he would pay $30,000.00 (representing $1,000.00/week rent for a twenty-six week period and $4,000.00 to cover certain costs) to the Applicant. Consequently, the Applicant and her sons moved out from that apartment on 16 October 2013.

15. The Applicant commenced proceedings in the Federal Circuit Court on 22 November 2013. The proceedings were transferred to this Court on 30 January 2014.  

16. In about mid-July 2014, the Applicant sold her H Resort property. She seems to have received about $862,966.00 after a secured loan was repaid. From these funds, about $316,000.00 was paid to Westpac to repay borrowings and the balance – in the amount of about $546,000.00 – was paid to her.

17. On the Applicant’s evidence, she spent about $537,200.00 in the 12 month period from July 2014 until July 2015. From the chronology of events, it is obvious she did so during the currency of these proceedings.

18. The Respondent initially maintained that the May 2010 Financial Agreement was binding. However, from about October 2014, his position has been that this is not the case.

Broad overview of the property settlement proceedings

1. As noted, it is uncontroversial that both parties owned property with significant value at the commencement of their cohabitation.

2. At present, it appears that:

   a)there is no suggestion that either party made any direct financial contribution to any property each owned or continues to own; and

   b)the parties did not acquire any jointly owned property during their relationship; and

   c)the parties did not intermingle funds during their relationship; and

   d)the parties did not operate any joint bank accounts (other than the Applicant being a secondary card holder in respect of a credit card facility operated by the Respondent) during their relationship; and

   e)each party retained control over the manner in which they dealt with property they owned, both during their relationship and after their separation; and

   f)the Applicant received the entirety of the proceeds from the sale of her H Resort property and has expended them as she determined.

   The competing proposals for final orders

3. The Applicant asserts the Court will conclude it is just and equitable that orders are made to ensure she receive property valued at 40 per cent of the total value of the property of the parties. She contends the Court will be persuaded to reach this conclusion because (by way of general and non-exhaustive summary):

   a)she contributed financially to G’s support when the child stayed with the parties on weekends and during holiday periods; and

   b)she undertook significant homemaker contributions during the parties’ relationship including cooking and cleaning (which activities were supplemented by the assistance of a cleaner and a housekeeper); and

   c)she met household living expenses such as groceries; and

   d)she applied some of the $500,000.00 inheritance she received to meeting family expenses; and

   e)as she closed her art gallery at the asserted request of the Respondent, their relationship[9] has detrimentally impacted her earning capacity.

   [9]Being the entirety of the period during which they lived together, whether in a de facto relationship or following their marriage.

4. In stark contrast to the position advanced by the Applicant, the Respondent asserts the Court will not be satisfied that, in all the circumstances, it is just and equitable to make any order altering the interests of the parties in the property. As I apprehend it, he contends the Court will be persuaded to reach this conclusion because (by way of general and non-exhaustive summary):

   a)the Applicant closed her art gallery business because it failed and had accrued significant liabilities; and

   b)neither party contributed financially to the acquisition, maintenance or conservation of any property owned by the other; and

   c)money received by the Applicant as a consequence of renting out the H Resort property after she and her children moved to live with him in about February 2010 was applied by the Applicant for her own purposes and not toward any joint expenses; and

   d)he paid the mortgage repayments, rates, water charges, utility fees and body corporate charges during the time the Applicant and her children lived with him at his apartment; and

   e)he made the overwhelming majority of financial contributions to the support of the Applicant (including, for example, paying about $72,000.00 in lease payments for her car) and her children (including, for example, paying about $75,000.00 in school fees for their attendance at private school) – in total, he asserts he paid about $375,000.00 in meeting expenses for the Applicant’s benefit; and

   f)the Applicant did not pay for G’s expenses because she had a secondary credit card, linked to his primary card, which she used to pay the same; and

   g)he made contributions falling within the purview of homemaker/parent contributions; and

   h)the Applicant retained all funds received by her after the sale of her H Resort property for her sole use; and

   i)whatever the value ultimately attributed to the artworks, furniture and jewellery owned by the Applicant at the commencement of cohabitation, she has retained the same; and

   j)he paid the Applicant $30,000.00 in October 2013.

5. That is, his case is, in essence, that, given the manner in which the parties approached their ownership of property during their relationship and after their separation, it is not just and equitable for any order requiring him to pay anything to the Applicant to be made and it is just and equitable that each party retain the property and entitlement to superannuation which each currently has: for the Applicant, this would also involve recognition of the fact of her receipt of substantial funds following her post-separation sale of her H Resort property.

   The property of the parties

6. The Applicant contended, as at August 2015, that she owned property and had superannuation entitlements having a combined value of about $285,092.00 whilst the Respondent owned property and had superannuation entitlements which together had a combined value of $7,735,500.00.[10] On this basis, the total nett value of the property of the parties (inclusive of entitlements to superannuation) is $8,020,592.00.

   [10] Applicant’s Outline filed 20 August 2015 at [33].

7. The Respondent contended, as at October 2015, that his property and entitlement to superannuation had a combined estimated nett value of $5,729,500.00, whilst the Applicant’s property and entitlement to superannuation had a combined estimated nett value of $259,650.00.[11] On this basis, the total nett value of the property of the parties (inclusive of entitlements to superannuation) is $5,989,150.00.

   [11]Respondent’s affidavit filed 15 October 2015 at [7.1] and [7.3]; the Respondent also highlighted that, on the Applicant’s evidence, the value she attributed to her property (exclusive of superannuation entitlement) in her affidavit filed 22 November 2013 was $1,120,000.

8. Whatever the value ultimately attributed to the property of the parties for the purposes of this litigation, if the Applicant’s final position is ultimately accepted by the Court then, by way of broad overview, on the basis that she has available to her property valued at $285,092.00[12], she might anticipate receiving property valued at more than $2,000,000.[13]

   [12]         on her case.

   [13]on her value – a payment of about $2,923,144; on the Respondent’s value – a payment of about $2,110,568.

9. Of course, if the Respondent’s position is successful, the Applicant might anticipate simply retaining that property currently owned by her and receiving nothing more.

Litigation funding

1. It seems the Applicant has already spent $125,978.53 on legal fees relating to the previously contested issue that the Financial Agreement between the parties should be set aside. Her current solicitors have informed her that her likely future legal costs will be at least $150,000.00 (being the estimated costs of a three day trial, inclusive of Counsel’s fees in the order of $50,000.00), that they require her to pay her fees as rendered and will not act for her on a deferred fee or speculative fee basis.

2. In reliance on sections 79 and 80(1)(h) or 74 or 117(2) of the Act, the Applicant seeks an order that the Respondent pay (or cause to be paid) the sum of $150,000.00 to her solicitor for use in meeting her litigation expenses or, alternatively, that he meet such expenses by way of a ‘dollar for dollar’ order.

3. The Respondent opposes any order requiring him to pay any sum for the Applicant’s use in meeting the costs associated with this litigation. In addition to his primary contention that the Court will not ultimately consider that it is just and equitable to make any property adjustment order in the circumstances of this case, he emphasises that the Applicant’s expenditure is such that it is highly unlikely any adjustment could be made at trial to remedy the situation if his primary position is ultimately accepted.

4. He contends that, in addition to expending her $500,000.00 inheritance during the period from about no later than late May 2012 until about August 2015, the Applicant has also spent the $30,000.00 he provided to her in October 2013 and about $537,000.00 (being the funds actually available to her after the sale of her H Resort property in mid-July 2014).

5. He also advances that she has funds at bank, can call on the funds previously loaned to a friend on a short term basis and has shares she can sell in order to meet her legal expenses as they arise.

Summary of applicable principles

1. Whilst preliminary identification of the source of power is necessary because this determines the necessary preconditions and relevant considerations for making the order sought,[14] it is clear that many of these are common to the respective sources of power.

   [14]Strahan & Strahan where, at par [84] and [86] Boland and O’Ryan JJ agreed with what Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 stated that Zschokke and Zschokke (1996) FLC 92-693 had established.

2. For the purposes of this Application, I accept that it appears that the Respondent is in a position of relative financial strength vis-à-vis the Applicant. I accept that he has the capacity to meet his own litigation costs. I also accept that, if it is otherwise considered to be either just and equitable and appropriate, or proper, or just (following the Court’s satisfaction that the circumstances justify the making of an order), he has the capacity to pay funds toward meeting the Applicant’s legal expenses.

1. I accept that, whilst the Applicant may have some capacity to meet some of her ongoing litigation costs, she does not have the capacity to meet them in their estimated entirety of a further $150,000.00 – especially by payment of a lump sum.

2. I accept that there appears to be some level of complexity in the parties’ financial affairs. I also accept that expert valuations will be necessary.

3. In addressing the issue of whether it can be concluded, on an interim basis, that the Applicant has at least an arguable case for substantive relief which deserves to be heard, her Counsel submitted that a prima facie entitlement to a property adjustment order is established by consideration of the combination of the parties’ initial contributions at the time of the commencement of cohabitation (namely, approximately $2,096,000.00 from the Applicant and $3,815,000.00 from the Respondent), the contributions said to have been made by each of them during the relationship and the Applicant’s current financial circumstances.[15]

   [15] Applicant’s written submissions at [39].

4. In response, Counsel for the Respondent contended that, given the manner in which the parties determined not to intermingle their funds or property, the absence of children of the marriage, the Applicant’s post-separation decision to sell her real property and her sole utilisation of the sale proceeds of the same, her final position[16] that she receive property valued at 40 per cent of the property of the parties is simply not open to her. He submitted her contention that her earning capacity and resources were lost during the parties’ relationship would not be established at trial but it would be established that the business she owned at the commencement of the relationship was not profitable and the Respondent was required to pay various expenses associated with it.

   [16]         Amended Initiating Application filed 17 September 2014.

5. Whatever the ultimate factual conclusions about issues such as these - which are in contest between the parties – I have concluded that, even taking into account the matters outlined in paragraphs 36-39 (inclusive), I am not persuaded that it is just and equitable and appropriate, or proper, or that the circumstances justify the making of an order either requiring the Respondent to pay funds to meet the Respondent’s legal fees – whether by way of lump sum in the amount of $150,000.00 or by way of ‘dollar-for-dollar’ order.

6. I have arrived at this conclusion because:

   a)I hold significant doubts that this case involves a situation in which ‘the wealth of the parties’[17] is controlled by one of them; rather, it seems uncontroversial that it involved each party contributing their own ‘wealth’, controlling the same and making their own sole decision/s about its management and disposition; and

   b)the Applicant’s financial circumstances following her expenditure of the sums referred to in paragraph 33 above, are such that I am not persuaded  it will be possible to take into account, or make appropriate adjustment, at trial in respect of any sum paid to the Applicant by the Respondent; and

   c)the diminution in the Applicant’s financial circumstances appears, on a prima facie basis, to have arisen as a consequence of a combination of the post-separation decision to sell her H Resort property (in circumstances where it seems its value had approximately halved) and her expenditure of the nett sale proceeds of the same knowing of the  existence of this litigation; and

   d)the Applicant appears to retain some financial resources, such as the $27,000.00 owed to her by a friend to whom she lent funds, from which she may be able to meet at least some of her likely legal fees.

   [17]Strahan v Strahan (2011) FLC 93-466 per Boland and O’Ryan JJ at [79] where reference is made to Blueseas Investments Pty Ltd v Mitchell (1999) FLC 92-856 at 86,128.

Spousal maintenance

1. The Applicant seeks an order that the Respondent pay her $1,300.00 per week by way of spousal maintenance. She does so in circumstances where, since August 2014, she has been employed for two days per week by Mr J, a person with whom she formed a relationship after separating from the Respondent. She says their relationship ended on 9 September 2015. Despite this, she continued in her part-time employment, as a consultant, for J Company. Whilst she worked for four days per week for three weeks in September 2015, this increased engagement later reverted to two days per week.

2. The Respondent clearly has doubts about whether, in fact, the relationship between the Applicant and Mr J has ended. However, the limitations inherent in the process by which proceedings for interim relief such as this are determined means that such issue is incapable of resolution.

3. Whatever the nature of the Applicant’s relationship with Mr J, the evidence is that she is engaged in paid employment for two days each week, for which she receives $500.00 gross (or about $400.00 nett) per week. Her other current source of financial support is the receipt of Family Tax Benefits, totalling about $254.00 per week. The commitment necessary for her support is asserted to be $1,817.00/week.

4. The Respondent has about $493,000.00 at bank in a combination of at-call and term deposit accounts. Consequently, he clearly has resources from which he can pay spousal maintenance to the Applicant. That, however, is not the issue because his obligation to do so arises if, and only if, she is unable to support herself adequately[18] by reason of age, or physical or mental incapacity for appropriate gainful employment or for any other adequate reason.[19]

   [18]which imports a standard of living which is “reasonable in the circumstances” -  this being the guiding principle. 

   [19] s 72(1) Family Law Act 1975 (Cth).

5. Authority[20] establishes that “adequately” is not to be determined according to any fixed or absolute standard and does not mean a subsistence level of support.[21] Further, it is unnecessary for an applicant to up all capital in order to satisfy the requirement of inability to support oneself adequately and, whilst spouses should continue to live after separation at a level previously enjoyed if this is reasonable, an applicant is not entitled to live at a level of considerable luxury or comfort merely because a respondent is (comparatively) very wealthy.

   [20]         See, for example, Brown & Brown (2007) FLC 93-316.

   [21]         See also Mitchell and Mitchell (1995) FLC 92-601.

6. The Applicant’s property includes cash at bank of $8,785.66, a car valued at $17,000.00, household contents (which she estimates to have a value of $150,000.00), jewellery and artwork (she estimates to be valued at $100,000.00) and shares valued at approximately $59,000.00. She is also owed $27,000.00 by a friend. She has approximately $2,344.00 in superannuation. However, she also owes $34,037.95 in credit card debts.

7. In broad summary, the Applicant asserts she is unable to support herself adequately because she has exhausted her financial resources in supporting herself and her children; she earns a meagre income and is in receipt of a pension payment; during the relationship, she was financially supported by the Respondent; she has the sole care of two minor children, for whom she receives no financial support as their father is deceased; she wishes to continue her role as a parent and carer for those children; she is unable to work more than two days per week due to her commitments to the children (particularly arising from the consequences of the allegations referred to earlier) and there is no further work available to her. She also asserts that mental health issues prevent her from working more than two days per week.

8. The Respondent’s evidence is that the Applicant travelled to the USA, Europe North Queensland and Melbourne during 2014 and 2015. The Applicant’s evidence is that her then partner made financial contributions to this travel - such as paying for her flights and those of her children and their accommodation for a trip to Europe in August 2014 and for accommodation in North Queensland in 2015; she also says he paid $500.00/week toward her rent – at least for a period of time.

9. The Respondent does not accept that the Applicant suffers from any physical or mental incapacity which prevents her from obtaining appropriate fulltime employment and there is no expert evidence to support the Applicant’s assertions in this respect. There is also no evidence to suggest she has previously applied unsuccessfully for employment to supplement that in which she is engaged, a matter I consider particularly relevant given that she has previously worked for more than the current two days per week. I also note that there is no evidence from the Applicant’s current employer (and former intimate partner) to suggest that there is no additional work available with him.

10. The circumstances in which both the Applicant and Respondent have found themselves as a consequence of the alleged behaviours of the Applicant’s son toward the Respondent’s daughter have no doubt been extremely distressing and stressful. However, in the absence of expert evidence about the impact of these events on the Applicant’s capacity to engage in paid employment so as to support herself adequately and given that she in fact engaged in paid employment for four days per week for a number of weeks after these allegations arose, I am not persuaded that she has established that she is unable to support herself adequately by virtue of these allegations and associated circumstances.

11. Overall, I accept the submissions made by Counsel for the Respondent in opposing an order for the payment of spousal maintenance. I am not, therefore, persuaded that the Applicant has discharged the onus of establishing that she is unable to support herself adequately in all the circumstances of this case.

Specific disclosure

1. Both parties have an ongoing duty of disclosure which continues until the case is finalised.[22]  The extent of the duty to disclose information in financial cases is prescribed by the relevant Rules.[23] Consequently, each document which is or has been in the possession or under the control of a party and is relevant to an issue in the case must be disclosed by a party. 

   [22]         Rules 13.01(1) and (2) of the Family Law Rules (2004). 

   [23]         Rule 13.04.

2. Given that the Respondent has deposed to his knowledge of his obligation to disclose and, in broad terms, the means by which he has previously complied with this obligation and his intention to continue to comply with it into the future, I am not persuaded it is necessary or appropriate to make an order in the terms advocated by Counsel for the Applicant.[24]

   [24]who only pressed a specific aspect of the disclosure initially sought by the terms of the Application in a Case.

Injunctive relief

1. Counsel for the Applicant submitted that the relief sought against the Respondent was in terms which would preserve the property of the parties pending trial whilst simultaneously permitting the Respondent to continue to operate his business.

2. I accept the submissions made by Counsel for the Respondent to the effect that there is no evidence to suggest that the Respondent has, at any time, acted so as to depreciate the value of the property the subject of the proceedings or that he previously consulted with the Applicant about his management of property owned by him during their relationship.

3. Given these matters and the manner in which it appears these parties conducted themselves during their relationship, I am not persuaded that the balance of convenience favours the making of orders in the terms sought by the Applicant or that it is just to make such orders and I decline to do so.

costs

1. In the event that there is any application for an order for costs arising from the disposal of the Amended Application in a Case, such application will be determined in Chambers following the receipt of any submissions made in support of and/or opposition to such order.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 January 2017.

Associate:                 

Date:    27 January 2017