Murillo & Murillo (No 5)
[2023] FedCFamC1F 1004
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Murillo & Murillo (No 5) [2023] FedCFamC1F 1004
File number: SYC 3325 of 2017 Judgment of: SCHONELL J Date of judgment: 23 November 2023 Catchwords: FAMILY LAW – FINANCIAL – Litigation funding – Where the wife sought for the husband to pay her legal costs on a dollar for dollar basis – Where the Court is not satisfied at this stage that the husband has the capacity to meet her legal fees – Where the Court is not satisfied that the wife will be without representation – Application for dollar for dollar order dismissed – Where the second respondent sought that the sum of $80,000 be released to her from a controlled monies account for payment of her legal fees – Where the Court does not know what the value of the net assets are – Where the Court is not satisfied that it is in the interests of justice for the order to be made – Application for release of funds dismissed. Legislation: Family Law Act 1975 (Cth) ss 79, 80, 90SM, 117 Cases cited: Bing & Bing (2007) FLC 93-318; [2007] FamCA 418
Medlow& Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Murillo & Murillo (No 2) [2022] FedCFamC1F 757
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Poletti & Poletti (1990) 15 Fam LR 794; [1990] FamCA 79
Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Wenz v Archer (2008) 40 Fam LR; [2008] FMCAfam 1119
Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 20 November 2023 Place: Sydney Counsel for the Applicant: Mr Todd Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the First Respondent: Mr Macarounas Solicitor for the First Respondent: Matthews Folbigg Pty Ltd Counsel for the Second Respondent: Mr Lo Schiavo Solicitor for the Second Respondent: Cruz & Partners Lawyers ORDERS
SYC 3325 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MURILLO
Applicant
AND: MR MURILLO
First Respondent
MS B
Second Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
23 NOVEMBER 2023
THE COURT ORDERS THAT:
1.Paragraph five of the applicant wife’s Amended Application in a Proceeding filed 14 November 2023 for a dollar for dollar order is dismissed.
2.Paragraph 1 of the second respondent’s Application in a Proceeding filed 15 November 2023 for litigation funding in the sum of $80,000 is dismissed.
3.All outstanding interlocutory applications are stood over to the final hearing commencing on 5 February 2024.
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 Murillo & Murillo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
Before the Court are competing applications by the applicant wife (“the wife”) and second respondent for orders for litigation funding. The proceedings are part of wider financial proceedings involving the wife, the first respondent husband (“the husband”) and the second respondent, which to date have had numerous Court appearances and are listed for a final hearing commencing on 5 February 2024.
The wife sought orders that the husband pay her legal costs on a dollar for dollar basis whilst the second respondent sought the sum of $80,000 be released from funds held in a controlled monies account to meet her legal fees. The husband opposed the dollar for dollar order but did not oppose the order sought by the second respondent. The wife opposed the release of any funds to the second respondent.
Each of the parties also sought other forms of relief which were in part compromised. Orders were made by consent for the sale of a property at Suburb K and a future listing date was sought in relation to the balance of the applications. In circumstances where satisfaction of the additional relief sought by the husband and wife was dependent upon settlement of the sale of property at Suburb K, which counsel conceded was unlikely to occur much earlier than the commencement of the hearing, and where the Court had no other dates available, the balance of the applications will be adjourned to the final hearing.
The wife relied upon the following documents:
(1)Amended Application in a Proceeding filed 14 November 2023;
(2)Affidavit of wife filed 18 October 2023;
(3)Financial Statement of wife filed 18 October 2023; and
(4)Case Outline document.
The husband relied upon the following documents:
(1)Response to an Application in a Proceeding filed 18 November 2023;
(2)Affidavit of husband filed 18 November 2023;
(3)Financial Statement of husband filed 17 November 2023; and
(4)Case Outline document.
The second respondent relied upon the following documents:
(1)Application in a Proceeding filed 15 November 2023;
(2)Affidavit of second respondent filed 15 November 2023;
(3)Financial Statement of second respondent filed 15 November 2023; and
(4)Case Outline document.
SUBMISSIONS OF THE WIFE
The wife contended that the husband has in the past been able to meet his legal fees and points to previous payments made by the husband in excess of approximately $62,000 up until 18 August 2023 in payment of his legal fees. In addition, her counsel also pointed to two amounts of $10,000 recently deposited to the trust account of the husband’s solicitors on 15 September 2023 and 6 October 2023.
The wife’s counsel referred to the husband’s Financial Statement which identifies that in addition to his income, he will receive director’s fees in the period 1 July 2023 to 30 June 2024 of approximately $30,000. Her counsel submitted that over a year this indicates that the husband has available to him an additional $570 per week gross. The Financial Statement would appear, however, to have already recorded this additional income at Item 11 in Part D of the document. While counsel for the husband did not contend it was double dipping, in the absence of cross-examination, I am not confident I can conclude that there is an additional sum available to the husband. I also note that the Financial Statement recorded that some of those funds have already been paid towards legal fees and accordingly, it is possible that not all of that sum is still available to him.
The wife’s counsel submitted that the husband has failed in the past in his disclosure obligations and points to a concession in the husband’s case outline to the following effect:
18. That the Husband may be criticised for his lack of disclosure is accepted, but in reality, the Husband is a man who knows how to construct and quote commercial fit outs, he does not have extensive business or financial acumen and he has placed his trust in financial advisors who have turned out to be less than the professional standard. To put it simply; he has done the best he could.
I imagine this statement will be the subject of some cross-examination at the final hearing.
The wife’s counsel submitted that the husband has failed to comply with orders in the past and has prioritised meeting the payment of his own legal fees over his obligations under Court orders. He contended that there is no basis in principle to deny the relief sought by the wife, which would have the effect of ensuring that there is a level playing field as between the husband and the wife in relation to their capacity to partake in the litigation. He submitted that the Court would be satisfied that the wife is in a weaker financial position, that the husband has a capacity to meet the parties’ litigation expenses and that the wife does not have a capacity to meet her own litigation expenses.
In relation to the orders sought by the second respondent, the wife’s counsel relied upon a submission made by the husband’s counsel that the net assets may be only approximately $530,000. In those circumstances, it was submitted that any payment to the second respondent has the potential to defeat the wife’s final relief.
SUBMISSIONS OF THE HUSBAND
The husband’s counsel submitted that the husband does not have the financial capacity to meet the order sought by the wife. He contended that the husband’s company does not have the capacity to meet any further payments to him and that its net assets are approximately the equal of its creditors. The husband rejected the notion that there is an unequal playing field, pointing to the fact that the wife continues to engage lawyers and there is no evidence that her lawyers will cease to act.
SUBMISSIONS OF THE SECOND RESPONDENT
Counsel for the second respondent submitted that the second respondent was the owner of a property at Suburb N that was sold and that she is merely seeking access to her own monies which are held in a controlled monies account. He put in issue the value of the net assets and said that the wife’s claim is not defeated by making the orders sought by the second respondent.
DISCUSSION
These are interim proceedings and there has not been any cross-examination. I am unable to make factual findings on the numerous issues in the case. Those issues include:
(1)A determination as to the net assets of the parties; and
(2)The second respondent’s involvement and acquisition of a property at Suburb N.
The husband contended that the net assets could be something in the order of approximately $530,000 including his business, whereas the Balance Sheet attached to the wife’s case outline suggests that the net assets could be approximately $5.6 million (including addbacks) or approximately $3.1 million (excluding addbacks).
I was not asked to read the valuation of the single expert and the parties have varied the trial directions such that final affidavits are not required to be filed until 15 December 2023. In those circumstances, the Court is unable to determine, even at a prima facie level, the merits of each of the parties’ contentions as to the pool of assets.
The wife urges at the final hearing factual findings as to the circumstances in which the second respondent came to acquire the property at Suburb N and in particular, that she made a significant financial contribution to the acquisition and conservation of that property.
In that respect, I note what I recorded in Murillo & Murillo (No 2) [2022] FedCFamC1F 757 to the following effect:
4.The involvement of the second respondent arises as a consequence of the acquisition by her of a property at [Suburb N] (“the [Suburb N] property”) in her sole name for [over $2,400,000]. The funds to acquire that property were provided in part by way of a loan provided by the husband’s company as to approximately $700,000 and by way of mortgage advance. In relation to the acquisition of that property, the wife contends as follows in her affidavit filed 28 September 2022:
51.… I only became aware of this property being purchased and held in [the second respondent’s] name in or about 2018 after property searches were obtained. I had to issue various subpoenas in May 2018 to ascertain what funds were used in the purchase of the [Suburb N] property.
52. It was not until mid-2018 after documents were produced in accordance with subpoenas I issued that I became aware that [the husband’s] former solicitor in these proceedings, namely [Mr QQ], also acted on the conveyance for the purchase of the [Suburb N] property and failed to disclose this acquisition to the Court.
53. I contend in these proceedings that the legal title to the [Suburb N] property is held by [the second respondent] beneficially for [the husband], and I seek declaratory relief as such.
5.The wife contends that there have been various representations made by the husband in relation to the acquisition of the [Suburb N] property. In that respect, counsel for the wife took the Court to both the husband’s affidavit and representations made by the husband to the single expert [Ms RR]. In that respect, the husband’s trial affidavit sworn 22 December 2021 contends as follows:
144. The funds to purchase [M Street, Suburb N] were given to [the second respondent]. I considered this to be my share of the property pool and I needed to purchase an asset for me, [the second respondent], [X], [Z], and [Y] to live in. I did not want to put my name on the Title because I wanted to keep this transaction separate to any dealings I had to resolve with [the wife].
6. Likewise, the husband represented to the single expert, [Ms RR], as follows:
170. With respect to the recent charges related to the mortgage for his current residence, he said ‘I got charged for fraud. We (he and [the second respondent]) bought a house together. I’ve offered my ex-wife two properties’. He said ‘I didn’t want my name on it because [the wife] would have a claim. My lawyer said draw up a mortgage document to show you’re not stealing’. He reported that [the second respondent] was appealing her conviction.
(Family Report dated 7 February 2022)
7.The relationship between the husband and the second respondent ended in or about February 2022. The second respondent contends that upon separation she moved out of the [Suburb N] property and is now living in rented accommodation.
8.The second respondent through her counsel informed the Court that she accepts that she is bound by a loan instrument that was entered into between herself and the husband’s company. In that respect, the husband says the following in his affidavit filed 29 September 2022:
12. [The second respondent] and I purchased a property situated at [M Street, Suburb N] (“[Suburb N] Property”) in 2017 and this was placed in [the second respondent’s] sole name. We both lived in her property and raised our child [X] there. In order to purchase the property [V Pty Ltd] loaned the sum of $709,160 to [the second respondent] from the business. A caveat was placed against the property and [the second respondent] was made aware that it would only be removed once the business was repaid.
…
20. In the Mortgage document dated [late] 2017, the amount of the loan to [the second respondent] by the new [V Pty Ltd] is stated to be $709,160 with the date of the loan being [mid] 2017. The terms annexed to the Mortgage also state that both the date of repayment and first instalment of interest on the loan, is not due until [mid] 2021. [The second respondent] has not repaid this loan. [The second respondent] was employed by [V Pty Ltd] and earned an income through the business. At the time of the pandemic, I ceased paying [the second respondent] as deposed in my previous affidavit’s filed in this Court.
9.In her Case Outline, her counsel contends the following on her behalf in relation to the [Suburb N] property:
33. It is the Second Respondent’s contention that she will ultimately be entitled to some portion of the sale proceeds of the [Suburb N] property. It is therefore plainly in her interest to obtain the highest sale price possible.
Factual findings will be dispositive of the pool of assets and will in part inform the actual entitlements of the parties. Any assessment of the divisible pool of assets or entitlement at this stage could only be speculative and therefore fraught. Accordingly, the Court must proceed cautiously so as not to comprise any party’s ultimate entitlement.
APPLICABLE LAW
The source of power to make the orders sought by the wife for litigation funding is said by her counsel to be s 117 of the Family Law Act 1975 (Cth) (“the Act”). That section provides as general rule that each party to proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are justifying circumstances having regard to the matters set out in s 117(2A).
It is well settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 FamLR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
It is also said that such an application may involve a consideration of the strength of the applicant’s case and the effect of the order on the respondent (Salvage & Fosse (2020) FLC 93-966 (“Salvage & Fosse”) at [14]). Justice Watts in Salvage & Fosse observed as follows:
62.When considering whether it is just to make an interim order for the provision of litigation expenses pursuant to s 117(2), the court shall have regard to the matters set out in s 117(2A) of the Act. In Zschokke (at 83,217) the Full Court said:
If the order is to be made under s 117(2) then, in our view, the matters contained in s 117(2A) must be addressed, and this would seem to have been recognised, if not expressly at least by implication, by the Full Court in Poletti. In saying this we acknowledge that a number of the paragraphs in the sub-section (notably paragraphs (d) failure by one party to comply with court orders; (e) total lack of success by one party in the proceedings; and (f) existence and terms of an offer for settlement) may not have relevance in an application for an order of the type in question. We also acknowledge that it may well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the sub-section, as is permitted by paragraph (g)…
63.In relation to s 117(2A)(a), apart from the general financial circumstances of each of the parties to the proceedings, the Full Court in Zschokke identified the following particular considerations:
a) a position of relative financial strength on the part of the respondent;
b)a capacity on the part of the respondent to meet his or her own litigation costs; and
c) an ability on the part of the applicant to meet his or her litigation costs.
64.As to such other relevant matters, under s 117(2A)(g), the plurality in Strahan at [96] and [141] specifically adopted the following considerations referred to in Paris King Investments at [30]:
a)the applicant should have “at least an arguable case for substantive relief which deserves to be heard”;
b)there should be evidence of the applicant’s “likely costs of litigation” (see also Wilson and Wilson (1989) FLC 92-033 at 77,453); and
c)it is not “an essential pre-condition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.
The source of power to make the orders sought by the second respondent is said by her counsel to be s 79 of the Act. The authority to make such an order is found through a combination of s 79 and s 80(1)(h) of the Act. Section 79 is the source of power, while s 80 enables the making of the order.
The Court must initially be satisfied that it is it in the interests of justice to make an order. An exhaustive assessment of the s 79 considerations is not required.
In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”), the Full Court observed:
132.In relation to the first stage, in our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the “overarching consideration” is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.
Their Honours dicta in Strahan included approval of observations by Riethmuller FM (as he then was) in Wenz v Archer (2008) 40 Fam LR:
128. …
[53]… It cannot be the case that a party who has an irresistible claim to a substantial share of the property of the parties should be held out of that property while the matter is litigated … particularly where the parties are asset rich but have relatively modest incomes … Nor could it be appropriate that a party should be denied the ability to liquidate assets when there are real needs for those resources, such as to meet debts which may result in the party being pursued by creditors, or the need for the party to make payments for the benefit of the children, or to take advantage of other financial opportunities?
In Poletti & Poletti (1990) 15 Fam LR 794, the Full Court observed at 796:
… the issue on such an application is not the question of whether one party should be responsible for the costs of the other, nor is it a question of determining in advance whether any expenditure was reasonably or properly incurred. It is rather, as it certainly was In the Marriage of Wilson, a situation where one party to the marriage controls almost exclusively what might be described as the patrimony of the parties and has control of the bulk of the assets and funds of the parties, where an order may be made to ensure that the other party, who does not have the fortune of controlling those funds, at least has an equal or near equal opportunity to present his or her case.
Such an order certainly will be made on account of costs but what ultimately will be the fate of the monies paid, whether it is to be treated as an advance on the ultimate property order, or whether it is to be treated as an advance on any ultimate costs order or a mixture of the two, is a matter which must be left to the trial judge.
Nor, is it a necessary precondition to the making of an order that a party need identify a particular fund. The Full Court in Bing & Bing (2007) FLC 93-318 observed:
23.… The mere assertion that there are no immediately available funds to provide to the applicant to enable him or her to continue on with the proceedings cannot simply be accepted at face value. If it is apparent that one of the parties controls a vast pool of assets (irrespective of whether those assets are readily capable of liquidation) then the Court has a broad enough discretion to enable an order to be made for the provision of funds by the holder of those assets to enable the other party to continue on with litigation…
…
27.Finally it has been asserted that the husband was and remains unable to raise the capital sum sought by the wife. This is a matter which may become relevant if and when the husband defaults in the order and an enforcement application is brought. However, the question of enforcement of the order remains a separate question from the propriety of granting the order in the first place.
Finally, as their Honours in Medlow& Medlow (2016) FLC 93-692 (“Medlow”) observed:
86.The onus was clearly upon the husband to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat the wife's property claims. The onus was not on the wife to adduce such evidence.
Therefore, the authorities establish that the Court should act conservatively and consider the following in making an interim property order:
(1)Is it in the interests of justice to make an order?
(2)Is a case established to make a s 79 order? A detailed assessment of the s 79 considerations is not required.
(3)Are there sufficient assets available for an interim distribution? It is not necessary to point to an immediate fund.
(4)The categories of cases in which an order will be made are not closed and are not limited solely to costs.
(5)Is the order capable of being reversed or taken into account at the final hearing?
(6)Albeit that the matter can be determined pursuant to a particular section of the Act, the ultimate categorisation of the amount to be paid can be left to the final trial judge.
DISCUSSION
The wife sought an order for litigation funding on a dollar for dollar basis pursuant to s 117.
Dealing with such of the matters under s 117(2) as are pertinent to this application, it seems clear from the wife’s Costs Notice filed 17 November 2023 that she has paid legal fees to date of approximately $550,000.
Those funds have in part been sourced from personal loans advanced to her by her parents and friends as well as a superannuation withdrawal of $7,000 and approximately $215,000 by way of various interim property orders. According to her Financial Statement, she owes her parents approximately $350,000 and her lawyers approximately $86,000.
The wife has no assets that she can realise to meet her legal fees, the husband owes her approximately $29,000 in child support arrears and she does not work. Her needs are met by a pension and net rental income from a property that is to be sold. There can be no issue that she is able to meet her litigation costs from her own assets or income. Her affidavit is silent as to whether her parents will continue to provide her with funds. However, in her affidavit she said:
142. On 5 July 2022, Orders were made between [the husband] and I by consent for me to receive from the [Company E] Mortgage Offset Accounts secured over the [Suburb K] property the sum of $90,000 by way of partial property settlement. I used these fees to pay my outstanding legal fees to my solicitors and my further fees and disbursements (including Counsel’s fees) in these proceedings. I do not have any of these funds left.
143. When the above funds were depleted, my solicitors agreed to defer their fees provided I consented to them lodging a caveat over my interest in the [Suburb K] property. I provided my solicitors with an Irrevocable Authority and Charge, and they registered a caveat over [Suburb K]. As I am seeking for the [Suburb K] property to be sold, I need to come up with funds to repay my outstanding debt with Mills Oakley of $86,215.25, so they can remove the caveat over [Suburb K]. I also need to come up with funds to meet my future fees and disbursements otherwise I will have no legal representation.
…
146. I have paid approximately $555,409.39 in legal fees (including disbursements and Counsel’s fees). In addition to these fees, I currently owe my solicitors, Mills Oakley $86,215.25. My solicitors estimate their further fees up to and including appearance at the final hearing (being 4 days) to be $58,740, together with my Counsel’s fees of $48,400. My Costs Agreement with Mills Oakley provides for their bills to be paid within 14 days of the date of the account. …
148. I seek Orders for the urgent sale of the [Suburb K] property and for the proceeds of sale to be used to discharge the [E Company] mortgages encumbering the property, sale costs, the sum of $200,000 to my lawyers for my outstanding and future legal fees, with the balance to be held in my solicitors' trust account pending final hearing.
The affidavit makes clear that she anticipates that the source of funds to meet her past and future legal fees will be the proceeds of sale of the Suburb K property (which has been ordered by consent to be sold) and over which her lawyers have registered a caveat.
I am satisfied from a reading of the wife’s affidavit that she has an arguable case for substantive relief. It was not submitted that she did not.
It does not appear to be in issue that the wealth of the parties is represented primarily in funds held in a controlled monies account, equity in a property to be sold and in the husband’s business. The business is the vehicle that provides the income to generate wealth. It is controlled by the husband. The value of the business has been assessed by a single expert. According to the wife’s affidavit, the single expert “valued these entities and loans at $1,981,000” (at paragraph 121).
As noted above, the husband takes issue with the valuation. He receives a weekly income of $2,575 from his business, which according to his Financial Statement is totally consumed by his expenses. That, however, overstates the position because it records as expenses child support of $500 per week which is paid sporadically.
It is clear to me from the submissions of the wife’s counsel that that there is an ability on the part of the husband to meet his own legal fees. However, more must be established than simply that proposition. The wife must establish that the husband has the capacity to meet her legal fees as well. I am not satisfied that is so at this stage in the absence of cross-examination.
I am also not satisfied, given her affidavit made clear that she sought access to the proceeds of the Suburb K property to meet her legal fees, that she will be without representation. Her solicitors have lodged a caveat on the Suburb K property and have continued to act, including bringing an application for access to the proceeds of sale to meet her future legal fees. The dollar for dollar order was expressed only to cover the period between the application and settlement of the sale of Suburb K. I have not determined nor dismissed her application for access to those funds; it being stood over to the final hearing which will be in less than three months’ time.
I am not satisfied that a dollar for dollar order is necessary in light of the above to ensure a level playing field so that the wife can partake in the litigation. Nor am I satisfied that there are circumstances justifying, within the ambit of s 117, the making of a dollar for dollar order.
Accordingly, I will dismiss the wife’s application for a dollar for dollar order.
In relation to the orders sought by the second respondent, I am satisfied, consistent with the authorities referred to, that I need to be satisfied that it is in the interests of justice to make an order and that I should act conservatively. I am satisfied upon the assessment of the evidence that it is possible that a court might make an order pursuant to s 90SM in favour of the second respondent.
The pool of assets may be as little as $530,000 as contended for by the husband or as large as $5.6 million as contended for by the wife. I am simply not in a position to be able to decide at this stage. Given the disputed factual assertions and a challenge to the second respondent’s asserted financial contributions, I am unable at this time to determine the parties’ entitlements to the unascertained pool pursuant to s 79 and s 90SM. The onus rests upon the second respondent, consistent with their Honours’ observations in Medlow, to establish that the order she seeks is able to be reversed or would not defeat the other parties’ entitlements. It may be that a payment to her of $80,000 has the effect of defeating one or both of the other parties’ entitlements. In those circumstances the second respondent has not discharged the onus she carries. Accordingly, the relief sought by the second respondent will be refused.
CONCLUSION
For the above reasons, the orders sought by the wife and second respondent in their respective applications will be dismissed and I will stand over all outstanding applications to the final hearing.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 23 November 2023
0