Porte and Rahma and Ors

[2009] FamCA 795

FAMILY COURT OF AUSTRALIA

PORTE & RAHMA AND ORS [2009] FamCA 795

FAMILY LAW  -  PROPERTY  -  application by liquidator to set aside final orders
FAMILY LAW  -  PROPERTY  -  third-party creditor claim

Family Law Act 1975 (Cth) s 79A

Custodio  v  Pinto & Ors (2006) FLC 93-279

APPLICANT: Mr Porte as Liquidator of S Corporation Pty Ltd (In liquidation)

FIRST RESPONDENT: Mr Rahma

SECOND RESPONDENT: Ms Rahma

INTERVENOR: ASK Funding Ltd

FILE NUMBER: MLC 8719 of 2007

DATE DELIVERED: 3 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 3 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Rozner

SOLICITOR FOR THE APPLICANT: Heydon & O’Loghlen

THE FIRST RESPONDENT: In person

THE SECOND RESPONDENT: In person

COUNSEL FOR THE INTERVENOR:	Ms A. Umbers
SOLICITOR FOR THE INTERVENOR	Westminster Lawyers

Orders

1. That the first respondent have leave to file a response to the application filed by the applicant on 3 July, 2009 and an affidavit sworn by him on 31 July, 2009. 

2. That the second respondent have leave to file a response to the application filed by the applicant on 3 July, 2009 and an affidavit sworn by her on 3 August, 2009.

3. That ASK Funding Limited have leave to intervene in the proceedings. 

4. That the second respondent’s application for sole use and occupation of the property at C (“C property”) and applications for parenting orders in respect of the children of the marriage H born … January, 1992, X born … March, 1993, E born … August, 1995, U born … January, 2002 and Y born … December, 2003, be adjourned to 10:00 am. on 10 August, 2009.

5. That on or before 7 August, 2009 the first and second respondents file and serve any additional evidence on which he/she seeks to rely at the hearing on 10 August, 2009. 

6. That the applicant have leave to adduce evidence and make submissions in the hearing on 10 August, 2009 (having regard to the order sought in paragraph (6) of the application filed by him on 3 July, 2009) and file and serve any additional evidence on which he intends to rely on or before 7 August, 2009. 

7. That the application filed by the applicant on 3 July, 2009, the application filed by the intervenor on 28 July, 2009 and the responses filed by the first and second respondents this day with leave, be otherwise adjourned to 10:00 am. on 17 August, 2009. 

8. That the first respondent have leave to file and serve a subpoena addressed to AAMI for the production of documents relating to insurance payments made to the second respondent and such subpoena be returnable at 10:00 am. on 10 August, 2009. 

9. That the applicant file and serve any additional affidavits on which he intends to rely at the hearing on 17 August, 2009 by 10 August, 2009. 

10. That the first and second respondents file and serve any additional affidavits on which he/she intends to rely at the hearing on 17 August, 2009 by 14 August, 2009. 

11. That as soon as practicable the applicant serve a sealed copy of these orders on Bendigo and Adelaide Bank and in the event the bank seeks to intervene, it file and serve an application and affidavit or affidavits in support as soon as practicable, and such application be listed for hearing at 10:00 am. on 17 August, 2009. 

12. That the reasons for judgment this day be transcribed and copies made available to the parties.

13. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel and solicitors appearing as counsel.

AND THE COURT NOTES

1. That the first respondent was advised of the difficulties he may encounter in seeking to short-serve a subpoena on AAMI.

2. That the intervenor have leave to appear on any occasion on which an application herein is listed for hearing, but is otherwise excused from attendance on 10 August, 2009 and 17 August, 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8719 of 2007

MR PORTE as Liquidator of S CORPORATION PTY LTD (IN LIQUIDATION)

Applicant

And

MR RAHMA

First Respondent

And

MS RAHMA

Second Respondent

And

ASK FUNDING LTD

Intervenor

REASONS FOR JUDGMENT

1. The husband and wife were involved in litigation over a lengthy period in this court, after applications were filed in 2007.  On 15 May, 2008, final parenting and property orders were made, by consent.  The property orders were made between the husband and wife and S Corporation Pty. Ltd., which was joined as a party at that time. 

2. The orders of 15 May, 2008 dealt with real properties in R, C, B and M.  At the time the orders were made the wife and the parties’ six children were living in the R property and the husband was living in the C property.  The B property was rented for just over $7,000 a month.  The husband had conducted a business from the M property and there was some disagreement about the ongoing nature of that business. 

3. The R property was registered in the husband’s name.  The three other properties were registered in the name of S Corporation.  Each was an asset of a separate trust;  S Corporation was the trustee of each trust.  Debts of S Corporation were secured over the R property, as well as over properties registered in its name. 

4. The orders of 15 May, 2008 provided for the sale of the R property, together with plans for its development prepared by CH Company.  It was then estimated that the Bendigo Bank was owed some $2.2 million, plus on-going interest.  Other matrimonial debts included outstanding charges, legal fees and arrears to the water authority, school fees to H School and legal costs.  When those orders were made, R property was valued at about $3 million. 

5. Bendigo Bank was to be paid the whole of its debt from the proceeds of sale of the R property and the other matrimonial debts were also to be paid. Any balance was to be divided equally between the husband and wife;  the orders provide that they would “share equally any shortfall”, although it was not then envisaged that there would be such a shortfall.

6. The B property was to be transferred to the wife but she was to hold seven-eighths of it as trustee of a child maintenance trust to be established pursuant to paragraph (11) of the orders.  A note to the order provided that this sum was to be in lieu of child support.  She was to hold one-eighth of that property beneficially.  Pending transfer of the property to her, the wife was to receive the rent.  The wife was also to receive the M property.  Both B property and M property were to be free of encumbrance.

7. S Corporation was to transfer the C property to the husband;  again, it was assumed this would be free of encumbrance.  It was anticipated he would continue to live in that property;  pending settlement of the sale of the R property, the wife and children would occupy it.

8. A number of provisions in the orders relate to the establishment of the child maintenance trust, of which the wife was to be the sole appointer and trustee, the husband the guardian, the six children the specified beneficiaries and the wife an additional income beneficiary.  The vesting date was to be 3 December, 2024.  The wife was to disclaim all interest in the three trusts which owned the real property, and to resign as a director of V Pty. Ltd.

9. It is common ground that the R property was not sold in the timeframe envisaged and common ground it was not sold for the price envisaged.  As between the husband and wife there is much disputation as to who is responsible for this.  The husband’s case is that he made every proper effort to sell the property and was thwarted by various factors including the global financial crisis and the obduracy of the bank.  It is the wife’s submission that this is just another example of the husband’s misuse of power and his desire to manipulate her and their children.

10. In due course the bank entered into possession of the R property which was sold on 30 May, 2009 for $2.025 million, rather than the $3 million for which it had been valued in mid 2008.  That sale is to settle towards the end of this month.  The nett proceeds of sale will not be sufficient to expunge the secured liabilities of the husband and S Corporation.  The shortfall is likely to be around $600,000. 

11. In November, 2008, by an order made in the Supreme Court of Queensland, S Corporation was put into liquidation.  The first application before the court is an application brought by Mr Porte as liquidator of S Corporation, which names the wife and husband as the respondents. 

12. In his application the liquidator seeks that the bulk of the property orders made by consent on 15 May, 2008 be set aside and a number of other orders made in lieu. It is the submission of the liquidator that the orders must be set aside pursuant to s.79A of the Family Law Act 1975 because circumstances make it impracticable for them to be carried out. Those who drew the orders of 15 May, 2008 may have considered the potential for this, as paragraph (23) of those orders refers to a s.79A application and to a liquidator as a potential applicant.

13. The liquidator has referred to the delay in the sale of R property, the dramatic fall in the real estate market which has impacted on all four properties, and the increasing level of indebtedness.  It is his submission that he needs to be put in a position to implement his statutory obligation to take possession of, and realise, assets and distribute the proceeds of those asset realisations and recoveries amongst creditors.  After all indebtedness of S Corporation is discharged, the court should reconsider its disposition of the then matrimonial pool, which will be substantially smaller than that envisaged when the orders were made in May 2008. 

14. The liquidator also referred to the difficulty he has faced in attending to other statutory obligations, such as an investigation of the company’s books and records and the circumstances of its failure. 

15. The liquidator has considered the predicament (as the liquidator sees it) of the wife and for that reason sought orders aimed at the provision of some security for her and the children, pending completion of the liquidation.  In particular, he sought an order that the wife and children be entitled to live in the C property until its sale.  That property is currently the residence of the husband.  Counsel for the liquidator submitted that the liquidator would like to “arrange some refinancing, if possible” so that some part of the original orders could be implemented. 

16. The liquidator’s application for these orders ignores the real dilemma. One cannot pick and choose which orders will remain, in the interim or the long term, by reference to the benefit that will confer on only one party to the marriage. In essence, the liquidator’s application is to set aside the orders pursuant to s.79A so that he can do his job and, in the meantime, tinker with the orders to provide some security for the wife and children.

17. The liquidator’s application was served on the husband on 22 July, together with two affidavits in support.  When the court convened this morning the husband, who is the first respondent to that application, sought to file an affidavit, for which leave was granted.  When the document was handed to me it was accompanied by two other documents.  The first was a response to the liquidator’s application;  I add in passing that it also contains the husband’s response to another application I have not yet mentioned, being an application brought by ASK Funding Limited to intervene as a third party creditor. 

18. In that response the husband sought that the applications of the liquidator and the third party creditor be dismissed.  The application which the husband sought to file is a melange of submission, application, speculation, complaint and conclusion.  The husband asserts that the liquidator is irrelevant to the entire scenario.  He submits he will be entitled, to use his words, to step into the shoes of Bendigo Bank once it has been paid out in full (by selling a second property) and will then become a secured creditor of S Corporation in regard to the remaining properties.  This is a reference to his ability to subrogate the bank’s securities once it is paid in full, by operation of law.  I say nothing further about that at this time.

19. The husband asserts that S Corporation is no longer the trustee of the three trusts which own the three properties registered in its name.  His evidence is of having appointed a new trustee, V Pty. Ltd.;  the only adult daughter of the parties is now the sole director and shareholder of V Pty Ltd, which has not authorised the liquidator to act on its behalf.  He faces a number of legal and evidentiary hurdles to establish the argument he seeks to make in this respect. 

20. At some point the bank granted the wife a licence to occupy the R property until 14 August, 2009, a week or so prior to the date on which vacant possession of the property must be given to the third party purchaser.  In his response the husband sets out a number of options for accommodation for the wife and children after 14 August.  First, she could rent new accommodation using the rental he alleges she continues to receive from the B property.  Second, she can pay him $500 a week from that source so he can rent another property, and move with the children into the C property.  Third, she can leave the children with him at the C house and he will take the rental from the B property of some $7,000 a month and the Centrelink benefits presently paid to her.  As there is no evidence of him spending any regular time with the children in recent times, the third proposal may not be tenable.

21. In support of his response the husband filed an affidavit sworn on 31 July, 2009.  Copies of that affidavit were made available to the other parties soon after the case commenced this morning.  However, it appears he did not provide them with copies of either his response (to which I have referred) or the third document he sought to file, which is a contempt application. 

22. The document in which the husband seeks to have the liquidator dealt with for contempt for receiving rental from the B property is so defective on its face it would be a complete and utter waste of time to require a respondent to respond to it.  I do not grant leave to file it. 

23. That brings me to another application before the court, filed on 28 July, 2009, in which the applicant is ASK Funding Limited, a litigation funder.  The first respondent is Mr. Porte, as liquidator of S Corporation;  the second and third respondents are the husband and wife.  That application is supported by an affidavit sworn by Brendan Lyle on 27 July, 2009;  Mr. Lyle deposed to being general counsel for ASK Funding.

24. In very brief compass, ASK Funding seeks leave to intervene in the proceedings.  When final property orders are made (assuming the existing final orders are set aside) it seeks that provision be made for payment to ASK Funding of $331,687 plus interest which has accrued pursuant to credit contracts entered into by the husband and wife with it.  ASK Funding seeks that the payment be made prior to the distribution of any funds to the husband or the wife, or unsecured creditors of the husband, wife or S Corporation, and that the husband and wife pay its costs. 

25. In broad terms the evidence is of the husband owing ASK Funding some $110,000 and the wife owing some $220,000;  the figures are increasing as interest accrues.  That the husband was aware of its application when he swore his affidavit is clear, because he sets out at some length his current views about ASK Funding, its immorality and lack of ethics.  His position seems to be that ASK Funding should not be paid a cent by either of the parties.  That ignores their respective contractual obligations to it. 

26. The wife’s position about the claim by ASK Funding is a little more measured.  This morning she was granted leave to file a response to the application of the liquidator and an affidavit sworn by her on 3 August.  The wife told the court of an offer of potential assistance from a student at Monash University but said that that could not be taken any further this morning.  She seeks an urgent order which will allow her to accommodate herself and six children, pending resolution of the various financial applications.  I take that to be an application for an interim order for sole use and occupation of the C property. 

27. The wife also seeks a number of other orders relating to the parties’ children, including an order preventing the husband from removing them from Australia without her consent.  I note her evidence, and the evidence of the husband, is of overseas travel by her with some of the children earlier this year.  An order made on 2 May, 2005 restrained both of the parties from leaving the Commonwealth of Australia without giving seven days notice in writing but no watch list order has ever been made.

28. Other orders sought by the wife reopen the property debate.  Some could be seen as enforcement of the existing final property orders;  some could be seen as variations of those orders.  The wife has referred to her need to be exempt from liabilities of the husband and S Corporation;  she seeks that the husband be solely responsible for all costs of the liquidation of S Corporation.  She also seeks that her liability be limited to 50% of the balance of the mortgage debt owed to the bank at 15 May, 2008, but not the increase, through interest and fees, resulting from the delayed sale of the R property.

29. Thus, in summary, the court has before it the liquidator’s application for the final orders made on 15 May, 2008 to be set aside and other orders to be made in lieu;  ASK Funding’s application to intervene and, if that is granted, to be given priority over other unsecured creditors of the parties and S Corporation;  and the responses of the husband and wife, each of whom seeks orders which, on the one hand, can be interpreted as setting aside the final property orders and, on the other hand, can be seen to be arguing vehemently for the retention of those final property orders. 

30. The matter was stood down earlier for the parties to have an opportunity to read the material filed by the husband.  At that stage counsel for the liquidator and ASK Funding did not have access to the wife’s material. 

31. When the case resumed counsel for the liquidator proposed that the court make the orders sought by him in paragraphs (1) and (2) of his application, being orders to set aside the final orders and allow the liquidator to deal with the assets of S Corporation to the extent necessary to expunge its debts.  She then sought that the husband vacate the C property and the wife and children take possession of it.  In terms of case management, counsel for the liquidator proposed a three month period in which the parties file and serve all proper material, including any formal claim the husband might make in relation to S Corporation, and that a final hearing of all outstanding issues be fixed in November or December.  She did not oppose the intervention of ASK Funding. 

32. The court heard detailed submissions from the husband and shorter submissions from the wife.  Each is very passionate about his or her position.  Each, to some extent, rehearses old arguments.  Each, to some extent, relies on the final orders and seeks to rely on them in the future.  Each, to some extent, asserts that he or she should be able to set parts of those final orders aside and make other arrangements which reflect the present circumstances.  It was submitted with some force by counsel for the liquidator that what is needed is action.  Counsel for the intervenor concurred. 

33. The difficulty the court faces arises from the need to assure procedural fairness and natural justice to the husband and to the wife.  What the liquidator seeks, in reality, is summary dismissal of the husband’s response, in which he opposes the setting aside of the final orders made in May 2008.  It seeks the immediate setting aside of those orders in circumstances where no genuine consideration could be given to the husband’s defence and he has had no opportunity to test the evidence on which the liquidator relies.  The same could be said of the wife’s opposition to a wholesale setting aside of the orders. 

1. It is no light thing for a court to set aside final property orders.  When a court has before it applications from the two people most affected by those orders, who would be most affected by their discharge, and they do not agree the orders should be set aside, the court must proceed with caution. 

2. Finn J. recently described the general test for summary dismissal in Custodio  v  Pinto & Ors (2006) FLC 93-279 at 80,759 to 80,761 as follows :

   6. It was common ground before me that the principles which govern an application for summary relief are as stated by Kirby J in Lindon v The Commonwealth (no 2) (1996) 70 ALJR 541 at 544-5:

   The approach to be taken by the Court to [an] application for summary relief is not in doubt:

   1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided; [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.]

   [80760]

   2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.]

   3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [Coe v The Commonwealth (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;

   4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. [Coe v The Commonwealth (1979) 53 ALJR 403 at 409.] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;

   5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [Church of Scientology v Woodward (1980) 154 CLR 25 at 79.] A question has arisen as to whether O 26, r 18 applies to part of a pleading. [Northern Land Council v The Commonwealth (1986) 161 CLR 1 at 8.]...; and

   6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

   7. See also the decisions of the Full Court of this Court in Bigg v Suzi (1998) FLC ¶92-799 paragraphs 5.1 to 5.10; Ferrall and McTaggart v Blyton (2000) FLC ¶93-054 paragraphs 95 - 98; Pelerman v Pelerman (2000) FLC ¶93-037; and Beck v Beck (2004) FLC ¶93-181 paragraphs 17 - 18.

   8. The authorities also establish that there are limitations on the material upon which an applicant for summary dismissal can rely in establishing the case for such relief. As Kirby J said in Lindon (supra) that in order to secure relief by way of summary dismissal, "the party seeking it must show that it is clear on the face of the opponent's documents that the opponent lacks a reasonable cause of action" (at 544-5).

   9. In Beck (supra) the Full Court cited a passage from the joint judgment of Mason CJ, Dean and Dawson JJ in Webster v Lampard (1993) 177 CLR 598 at 608 concerning the power to summarily dismiss which concluded with the following:

   As has been said, it was incumbent on the Master, in the absence of any opportunity of cross-examination, to dispose of the case on the basis that the [respondent's] version of the facts, which was not inherently incredible, would ultimately be accepted on the trial of the action.

   10. Having cited this passage, the Full Court in Beck continued (at paragraphs 20-21):

   20.Further support for the proposition that an application for summary dismissal must be determined on the basis only of the material put forward by the respondent (to

   [80761]

   that application) is to be found in the passage from the judgment of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5 (which was quoted by the Full Court in its judgment in Bigg v Suzi) where his Honour said:

   "...2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.)"

   21.Regard should also be had to paragraph 6.31 of the judgment in Bigg v Suzi where the Full Court referred to the fact that the wife, who was the applicant for the summary dismissal of a s 79A application by the husband, "had no right to adduce any evidence at that summary hearing to contradict the evidence of the husband or to seek to contradict any inference which it might be submitted should be drawn from that evidence."

   11. In the recent decision in Bain Pacific Associations LLC, BCIP Associates II-B and Pacific Equity Partners (NZ) Limited, and others and Kelly [2006] FamCA 518, having referred to what was said in paragraphs 21 of the judgment in Beck (supra), the Full Court of this Court accepted the proposition:

   21.... that apart from material in the case of the respondent to an application for summary dismissal, the court may have regard to relevant non-contentious facts, even if raised by the applicant for summary dismissal.

   12. In the present case I did not understand any attempt to be made by the applicants for summary dismissal to rely on any of their own material.

   13. It was the position of Counsel for the respondent wife that in opposing the application for summary dismissal he could rely on all material before the Court. I did not understand that proposition to the challenged.

   14. Reliance was, however, placed on behalf of both the applicant third parties and to a greater extent by the respondent wife (with no objection being taken by either party) on the affidavit material of the husband (who is not a party to the summary dismissal proceedings). Certainly it is necessary to have regard to some of the affidavit material filed by the husband in order to understand certain of the orders and declarations which are sought by the wife and which are the subject of the summary dismissal application. It is also necessary to have regard to parts of the husband's affidavit material to understand the wife's affidavit material.

   15. It was of course accepted that in this jurisdiction in which there are no pleadings, it is necessary to have resort to the affidavit material in order to understand the substance of the claim which is sought to be summarily dismissed.

3. I am not satisfied the evidence now before the court would allow it to take the course proposed by the liquidator. I add that it can be a dangerous course to hear submissions referable to an application to set aside final orders pursuant to s.79A as a separate and threshold question to the question of the final orders which should be made in lieu if the application is successful.

4. It is true that the husband had notice that the liquidator sought an order that would allow the wife and children to go into the C property.  That application was served on him on 22 July.  The wife’s own application seeking sole use and application of that property was only made in a document filed by her today.  I am satisfied that application needs to be heard swiftly and I will list it for an interim hearing on the papers on Monday 10 August, 2009.  Orders will provide for the filing of any additional evidence on which the husband and wife seeks to rely. 

5. I am satisfied ASK Funding should be granted leave to intervene in the proceedings.  It need not be present at the hearing of those applications relating to the use and possession of C property.

6. In the course of this hearing mention has been made of the appointment by the bank of a receiver and manager.  If the bank has made such an appointment, the liquidator’s position may alter.  The court needs further evidence about this.  It is possible the receiver and manager may seek to intervene in the proceedings, and the bank itself may seek to do so. 

7. I propose to list all outstanding applications which relate to the setting aside of the final orders, the liquidation, the role of the receiver and manager and the third party creditor’s claims on the following Monday (17 August, 2009) and give directions for the filing of material referable to those applications. 

8. The parties should not take the view that the question of the setting aside of the orders of 15 May, 2008 and orders to be made in lieu, if those orders are set aside, will be determined at the hearing on 17 August.  The court will then be in a better position to assess the various applications before it and determine if any parts of them are severable, and the way forward.  The adjournment will also give all parties a chance to discuss outstanding issues. 

9. For the benefit of the husband and wife I will summarise what is to occur. 

10. The court has not determined whether it will set the final orders aside.  On Monday, 10 August, the court will hear the wife’s application for sole use and occupation of the property in C and, if necessary, those parts of her application (contained in paragraphs (4) and (5)) relating to what she referred to as custody of the children.  All aspects of the other applications and responses, save the application by ASK Funding to intervene, will otherwise be adjourned to Monday 17 August at 10:00 am.  ASK Funding is granted leave to intervene. 

11. Orders will provide for notice to be given to the bank of these proceedings;  it is possible it, or receivers and managers appointed by it, may seek to intervene. 

I certify that the preceding
44  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.