Pratley & Pratley (No. 2)

[2020] FamCA 940

FAMILY COURT OF AUSTRALIA

PRATLEY & PRATLEY (No. 2) [2020] FamCA 940

FAMILY LAW – COSTS – whether a party is wholly unsuccessful – costs in a fixed sum

Family Law Act 1975 (Cth) s 117

I & I (1995) FLC 92-625
Idoport Pty Ltd v National Australia Bank Ltd & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23
Kohan & Kohan (1993) FLC 92-340
Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 (Strickland J)
Penfold v Penfold (1980) 144 CLR 311

APPLICANT: Ms Pratley

RESPONDENT: Mr Pratley

FILE NUMBER: CAC 298 of 2019

DATE DELIVERED: 12 November 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: Considered in chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: Hijazi Curran Cameron Lawyers

COUNSEL FOR THE RESPONDENT: Mr M Kearney, SC

SOLICiTOR FOR THE RESPONDENT: Farrar Gesini Dunn

Orders

1. The Wife is to pay the Husband’s costs of the Application in a Case filed 8 July 2020, and of the associated costs order, fixed in the sum of $11,258.35 within 56 days of the making of this order.

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 Pratley & Pratley 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 Canberra

FILE NUMBER: CAC 298 of 2019

Ms Pratley

Applicant

And

Mr Pratley

Respondent

REASONS FOR JUDGMENT

1. On 26 August 2020 judgment was delivered in relation to an interlocutory dispute between the parties relating primarily to the disposal of various items of their property pool.

2. Central to the dispute between the parties was whether the Husband should be compelled to continue to operate a business that the parties previously operated together but which, although the Husband had initially sought to retain the business, neither now seeks to retain as part of any property adjustment.

3. Similarly, the dispute concerned the sale of properties which, again, neither party seeks to retain as part of a property adjustment.

4. The Wife also sought the provision of funds in relation to upgrading her motor vehicle.

5. Finally, the Wife sought particular orders in relation to disclosure.

The proceedings

1. The Husband filed an Application in a Case on 8 July 2020 seeking orders as set out in the annexure to this judgment.  In general terms he sought the sale of the business, with ancillary orders related to such, along with the sale of two other properties at 1 Q Street and R Street.  He further sought his costs.

2. The only point at which the Husband was unsuccessful was in the pursuit of orders to appoint Mr T to value two properties at 5 Q Street and Z Street.

3. The Wife’s Response filed 4 August 2020 sought the dismissal of the Husband’s Application in a Case, the valuation of the business, particular disclosure, the provision and financing of a new motor vehicle, expedition of the final hearing and costs.

4. None of these orders were made, other than to the extent that the Husband’s application for the valuation of the 5 Q Street and Z Street properties was dismissed.

5. Like the Husband, the Wife also sought the valuation of the 5 Q Street and Z Street properties, unsuccessfully.

The costs applications

1. The Husband seeks the costs of the interim proceedings, along with the costs of the Costs Application, seeking each as a fixed sum or, alternatively as agreed or as assessed.

2. The Wife opposes the Costs Applications, and also the quantum of the proposed fixed amounts.

The general principles

1. Costs are governed by the operation of s 117 of the Family Law Act 1975 (Cth) which provide a starting point that each party should bear his or her own costs, unless circumstances are established, pursuant to ss 117(2) and (2A) that justify the making of a costs order.

2. In Kohan & Kohan[1] the Full Court observed that:

   The intent of s 117(1) and 117(2) is that in this jurisdiction costs should not follow the event as a matter of course. However, where the justice of the matter so requires, the court may make such order as the court considers just.

   [1]Kohan & Kohan (1993) FLC 92-340

3. The provisions were dealt with by the High Court in Penfold v Penfold[2] where the plurality said:

   It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

   Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”.

   Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.

   [2]Penfold v Penfold (1980) 144 CLR 311

4. In I & I (No 2), the Full Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.[3] 

   [3]I & I (1995) FLC 92-625 p. 82,277

5. As indicated in Medlon & Medlon (No 6) (Indemnity Costs), no single factor takes precedence over any other factor. The trial judge is to exercise their discretion with regard to the weight that is afforded each factor under s 117(2A).[4]

   [4]Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 (Strickland J)

The application in respect of the Application in a Case

1. Prior to filing his interim application the Husband, in accordance with his obligation under Rule 5.03, wrote to the Wife on 1 May 2020 seeking agreement to the sale of the interests as sought by the Husband in his application.  No response was received.

2. The basis put forward to sustain the Husband’s Application for Costs is the Wife’s failure to engage with, then unsuccessful resistance to the Husband’s claim. The Husband calls in aid the considerations at s 117(2A)(c), (e) and (g) which are in the following terms:

   (2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   …

   (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   …

   (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   …

   (g)  such other matters as the court considers relevant.

3. As to the issue of the Wife being wholly unsuccessful, the Husband argued this on the basis that the Wife unsuccessfully sought to resist the various sales and unsuccessfully sought the provision of a vehicle.

4. As unsuccessful as she was in these aspects, she successfully resisted the Husband’s application for the appointment of Mr T.  Without the benefit of authority to suggest otherwise, it appears that the issue of “wholly unsuccessful” is binary, and relates to the whole of the particular application or response. The term “proceedings” appears sufficiently wide to incorporate proceedings in the sense of either a final application (or response) or an application within a case (or response to such). The implication of “wholly unsuccessful” is a lack of success in relation to each aspect of the proceedings.  “Wholly” is not a concept that naturally applies to each different aspect of an application or response.  Rather, it is directed to the proceedings rather than to an individual relief pursued within those proceedings. 

5. “Wholly unsuccessful” relates to the special case where the lack of merit in the application or response infects the whole of the relief sought, such as to result in the complete lack of success.

6. While it might be thought that “wholly unsuccessful” presents a strong case for a costs award, it is only one of the matters that is to be considered.  It does not, on its own necessitate an award for costs, although, on its own, it may lead to one.

7. Although the Wife also pointed to her pursuit of disclosure orders as being a marker of some success in the proceedings, the orders made in relation to disclosure did not reflect those pursued by her.

8. In this case, given the Wife’s success in resisting the application in relation to Mr T, she cannot be described as “wholly unsuccessful” and so s 117(2A)(e) is not a relevant consideration.

9. That does not mean that the same factual matters raised in support of “wholly unsuccessful” are thereby irrelevant, as they also bear on the “conduct of the parties to the proceedings” as raised by s 117(2A)(c) and potentially (g).

10. While it might be thought that, generally, a party’s complete lack of success speaks more loudly in favour of a costs award than a partial lack of success, that does not exclude a partial lack of success as speaking to a costs award. Rather than speaking to the costs award by virtue of s 117(2A)(e), it is a matter that speaks through s 117(2A)(c) insofar as it speaks to the conduct of the parties in relation to the proceedings.

11. Subsection 117(2A)(c) contains a series of examples which are expressed so as not to curtail the generality of the concept of the conduct of the proceedings.  Conduct of the proceedings necessarily includes a party’s choices as to the relief pursued and the bases upon which such relief is pursued.  Where a party is not wholly unsuccessful, but is in large part unsuccessful, and that speaks to the conduct of that party in the choice of relief pursued, then it is a matter that may justify a costs award.

12. In this case, the limited success of the Wife and its corollary of being predominantly unsuccessful, points strongly toward a costs award, particularly when seen in the context of the Wife’s failure to engage with the Husband’s attempt to resolve the issue.  It might also be observed that, where the Wife was successful she did not oppose the Husband as to the substance of a valuation taking place, merely as to the form.

13. In opposing the Costs Application, in addition to relying upon the starting point at s 117(1), the Wife relied upon her financial circumstances, and says that her opposition to the orders sought by the Husband, while unsuccessful, were not without merit. She asserted an entitlement to oppose the orders sought by the Husband.

14. It is not suggested that the Wife lacks an entitlement to oppose and contest the relief sought by the Husband.  That entitlement does not free her choice to do so from criticism flowing from its lack of success.  Her choice to oppose was in circumstances where neither party sought to retain the property that the Husband sought to dispose of.  Her pursuit of orders that she be provided with a new car was without any adequate evidential foundation to support it.

15. While the Wife relied on her financial circumstances to oppose an order, there was little clarity about the Wife’s financial position, with some reference being made to financial statements filed in early 2019.  The height of her evidence was that she is not currently working, and is drawing down on a partial property settlement of $90,000 previously received by order of 5 December 2019.  The Wife did not depose to her current income earning capacity.

16. The Wife accepted that even if she were impecunious it would be no bar to a costs order (although it would be a consideration against the making of an order).  Given the sparse evidence in relation to the Wife’s financial circumstances it is not a matter capable of bearing significant weight.

17. It is ultimately the Wife’s conduct of the litigation, as shown by her lack of success in the remedies that she pursued, that points to it being appropriate to order that she pay the Husband’s costs of the application.

18. The Husband sought that the order for costs be in a fixed amount. In doing so he prepared an itemised list in accordance with Schedule 3 of the Family Law Rules, in order to provide the basis for a logical, fair and reasonable identification of appropriate costs award.  This was what was identified as the “touchstone” of the exercise of the discretion in this manner by Einstein J in Idoport Pty Ltd v National Australia Bank Ltd & Ors, Idoport Pty Ltd v Donald Robert Argus [2007] NSWSC 23. Einstein J accumulated the relevant principles:

    For present purposes it seems convenient to commence with a recitation of the principles which inform the exercise of the discretion:

    i.the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation” (All ER page 265)];

    ii.the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];

    iii.the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at para [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788; [2005] FCA 228; BC200500963 at para [199];

    iv.a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at para [22];

    v.the gross sum "can only be fixed broadly having regard to the information before the Court": Beach Petroleum at 124;

    [In Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enabled fixing a gross sum "only if I apply a much broader brush than would be applied on taxation, but that ... is what the rule contemplates".]

    vi.nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No.2) (1995) 57 FCR 119 at 120”;

    vii.In terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No 2) (1995) 57 FCR 119, put the matter as follows, at paras [16]:

    "On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court: Leary v Leary at 265. …"

19. The Wife, if a costs order were to be made, did not oppose it being in a fixed sum, but disputed the asserted quantum insofar as it related to the claim for counsel in excess of three hours, noting that the appearance was for approximately 30 minutes.  It was conceded that the maximum allowance on the schedule for senior counsel was appropriate. 

20. Accordingly, after taking into account submissions from the Wife, the fixed sum amount should substitute item 203 for item 204 on the schedule, bringing a total of $9,931.65.

21. The Husband also sought the costs of this Costs Application.  In addition to the matters otherwise relied upon, the Husband relied upon an offer made on 1 September 2020 to resolve the costs in the sum identified above, or to confine the matter to a dispute as to quantum.  Neither course was accepted.

22. The success of the Husband on the Costs Application (although not complete), the Wife’s partial lack of success on the Costs Application, when supplemented by the offer made by the Husband, but not accepted by the Wife is sufficient justification to depart from the starting point of each party bearing his or her own costs.

23. In relation to the Costs Application the sum ought to be fixed as identified in the Husband’s written submissions in accordance with the Schedule, at $1,326.70.

24. The Wife sought that any amount be payable from the sale of the investment properties as ordered on 26 August 2020.  Absent identification of evidence to justify such a course, the orders should not specify the source of the payment, but merely give the Wife reasonable time to pay the amount.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 12 November 2020.

Associate: 

Date:  12 November 2020

Annexure A

Orders sought by the Applicant Wife at the interim hearing on 20 August 2020

1. That the Application in a Case filed by the Husband on 8 July 2020 be dismissed.

Valuation of the Suburb D Franchise

1. That within 14 days of Orders being made, the parties are to engage Chartered Accountant, Mr P of N Services as expert witness ("the expert") for the purpose of obtaining a valuation of the parties' interests in B Pty Ltd only ("the Suburb D Franchise") as at 30 June 2019 and 30 June 2020, thereby excluding the parties' interests in Suburb CC Franchise.

   IT IS NOTED: The parties jointly engaged this same expert on 13 June 2019 to undertake a valuation of their business interests in the Suburb D and CC Franchises.

2. For the purpose of Order 1:

   (a) The expert is to value the Suburb D Franchise including the NSW and ACT transactions as at 30 June 2019 and 30 June 2020 and;

   (b) For the purpose of the 30 June 2019 valuation, the expert is to value the Suburb D Franchise using the same information provided to him by way of joint letter of instruction from the parties solicitors dated 13 June 2019 and any subsequent information provided jointly to him by the parties solicitors after 13 June 2019 as agreed and in addition the parties are to cause their solicitors to send a joint letter to the expert enclosing the NSW transactions report as at 30 June 2019;

   (c) For the purpose of the 30 June 2020 valuation, each party shall do all acts and things and sign all documents necessary to comply with all reasonable requests made by the expert including to provide all necessary documents for the purpose of completion of the valuation.

Disclosure

1. The Husband provide to the Wife's solicitors within 7 days of these Orders being made all documents requested by the Wife in the letter from Hijazi Curran Cameron Lawyers to Farrar Gesini Dunn dated 28 July 2020.

2. The Husband provide the Wife's solicitors with full and frank financial disclosure in relation to the Suburb DD and CC Franchises and for this purpose, the Husband shall provide the Wife’s solicitors with all financial disclosure documents as is requested by her within 7 days of such request having been made.

Real Property Valuations

1. That the parties do all acts and things necessary to obtain a property valuation of the following 5 Q Street, Suburb S and Z Street, Suburb E within 60 days of the date of commencement of the final hearing of this matter, and for that purpose the Wife agrees to the appointment of Mr T of Y Real Estate.

Motor Vehicles

1. That the parties do all acts and things necessary for the business to enter into a new lease agreement to enable the Wife to upgrade her motor vehicle (vehicle to be leased through the business), with the business to continue to pay for the Wife's motor vehicle outgoings including but not limited to the lease instalments.

Other

1. That the hearing of the substantive applications be expedited.

2. That the Husband pay the Wife's costs of and incidental to this Application.

Annexure B

Orders sought by the Respondent Husband at the interim hearing on 20 August 2020

Discharge Current Order

1. That Order 4 of the Orders made on 26 February 2019 be varied insofar as is necessary to permit compliance with the following Orders.

Sale of Business

1. That the parties forthwith do and sign all things necessary to effect the sale of the business known and trading as C Business (ABN … (the Business and that sale referred to as the Business Sale).

2. For the sake of clarity the Business Sale is to effect the sale of:

   3.1 Any plant and equipment of the Business;

   3.2    The rent roll of the Business;

   3.3 Any goodwill of the Business.

3. That for the purposes of the Business Sale :

   4.1 The parties engage Mr G of K Valuers as the selling agent to conduct the Business Sale (the Agent);

   4.2 The parties engage M Lawyers to act on the Business Sale (the Solicitors)

   4.3 The listing price of the Business be as agreed between the husband and wife or failing agreement within a reasonable timeframe, as recommended by the Agent;

   4.4 The terms and conditions of the sale shall be as agreed between the parties in writing, and failing agreement within a reasonable timeframe, as recommended by the Agent;

   4. 5 The husband and wife shall cooperate in every way with the Agent and the Solicitors in relation to the Business Sale including making the books available for an inspection at times requested by the Agent and providing access and information to the Agent and/or the Solicitors in a timely and helpful manner;

   4.6 Each party shall sign any document reasonably required to give effect to these Orders within 3 business days of being requested to do so by the other party, the Agent, or the Solicitors.

4. The parties are to cause the proceeds of sale of the Business to be paid as follows:

   5.1    To pay all of the costs of the Business Sale;

   5.2 To pay the balance into a controlled monies account in the joint names of the parties, such account to be managed by the Solicitors (the Sale Balance).

Winding Up of B Pty Ltd

1. That as soon as possible after the settlement of the sale of the Business and within 7 days of same, the parties are to do and sign all things necessary to appoint Mr L of N Firm (the Liquidator) to wind up the company B Pty Ltd (ACN …) (B Pty Ltd and that process referred to as the Wind Up).

2. That the parties shall , in the course of complying with Order 6 , instruct the Liquidator to :

   7.1 Calculate the taxation liability of either party personally arising from the Wind Up; and

   7.2 By virtue of this Order, the parties authorise the Liquidator to contact B Pty Ltd's accountant (or another accountant as nominated by the Liquidator) and seek information required by the Liquidator or the purpose of calculating the taxation liability.

3. That for the purposes of the Wind Up:

   8.1 The parties are to comply with any reasonable requests of the Liquidator, including providing any necessary available information or documentation requested by the Liquidator.

4. That the Accountant's costs be met from residual funds in B Pty Ltd and any shortfall be met from the Sale Balance.

Sale of Real Estate Properties

1. That the parties do all things necessary to effect the sale of the following properties:

   10.1 1 Q Street, Suburb S;

   10.2 R Street, Suburb S; (collectively referred to as the Properties).

2. The parties are to list the Properties for sale forthwith.

3. That for the purposes of the sale of the Properties:

   12 .1 The parties appoint Mr V of X Business as the selling agent (the Real Estate Agent);

   12.2 The parties appoint M Lawyers as the conveyancing solicitors (the Real Estate Solicitors);

   12.3 Failing agreement between them, the parties accept the advice of the Real Estate Agent as to the method of sale;

   12.4 The parties cooperate in every way with the Real Estate Agent and the Real Estate Solicitors in relation to the sale of the Properties, in a timely and helpful manner.

   12.5 The listing price of the Properties be as agreed between the husband and wife or failing agreement within a reasonable timeframe, as recommended by the Real Estate Agent;

   12.6 The terms and conditions of the sale shall be as agreed between the parties in writing, and failing agreement within a reasonable timeframe, as recommended by the Real Estate Agent,

4. The parties cause the proceeds of sale of the Properties or either of them to be paid as follows:

   13.1 To pay the sale costs;

   13.2 To pay the usual rates adjustments;

   13.3 To pay the minimal amount required to discharge any mortgage secured on the title of the properties or either of them;

   13.4 To pay the balance into a controlled monies account in the joint names of the parties such account to be managed by the Real Estate Solicitors.

Single Expert

1. That Mr T of Y Real Estate be appointed as a Single Expert to report on the value of the following properties (the Real Estate Expert):

   14.1 5 Q Street, Suburb S;

   14.2 Z Street, Suburb E.

2. That for the purposes of the preceding Order:

   15.1 The parties will provide a joint letter of instruction to the Real Estate Expert within 14 days of the date of these Orders. If the parties are unable to agree on a joint letter of instruction then the joint instructions may be separately provided to the Single Expert by each party via his or her legal representative;

   15.2 The parties will advise the Real Estate Expert that a report is required 42 days from the date of these Orders, or 28 days prior to a final hearing, whichever is earlier;

   15.3 Each of the parties will comply with any reasonable request of the Real Estate Expert to provide access, information, documentation and authorities to enable the Real Estate Expert to complete the report;

   15.4 The parties shall pay the costs of the Real Estate Expert equally.

Procedural

1. That the time limits, procedural clauses and the terms and conditions imposed by these Orders may be varied by the parties by written agreement.

2. That liberty be reserved to either party to apply to the Court on short notice with respect to the Business Sale, the Wind Up, or the sale of the Properties.

3. That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to Section 106A of the Family Law Act 1975 to execute such document in the name of such party.

4. That the wife pay the husband's costs of an incidental to this application.

Annexure C

Orders made by Justice Gill on 26 August 2020

IT IS ORDERED THAT

Sale of business

1. That Order 4 of the Orders made on 26 February 2019 is discharged.

2. That the parties forthwith do and sign all things necessary to effect the sale of the business known and trading as C Business (ABN …) (the Business and that sale referred to as the Business Sale).

3. For the sake of clarity the Business Sale is to effect the sale of:

   (a)Any plant and equipment of the Business;

   (b)The rent roll of the Business;

   (c)Any goodwill of the Business.

4. That for the purposes of the Business Sale:

   (a)The parties engage Mr G of K Valuers as the selling agent to conduct the Business Sale (the Agent);

   (b)The parties engage M Lawyers to act on the Business Sale (the Solicitors);

   (c)The listing price of the Business be as agreed between the Husband and Wife or failing agreement within a reasonable timeframe, as recommended by the Agent;

   (d)The terms and conditions of the sale shall be as agreed between the parties in writing, and failing agreement within a reasonable timeframe, as recommended by the Agent;

   (e)The Husband and Wife shall cooperate in every way with the Agent and the Solicitors in relation to the Business Sale including making the books available for an inspection at times requested by the Agent and providing access and information to the Agent and/or the Solicitors in a timely and helpful manner;

   (f)Each party shall sign any document reasonably required to give effect to these Orders within three business days of being requested to do so by the other party, the Agent, or the Solicitors.

5. The parties are to cause the proceeds of sale of the Business to be paid as follows:

   (a)To pay all of the costs of the Business Sale;

   (b)To pay the balance into a controlled monies account in the joint names of the parties, such account to be managed by the Solicitors (the Sale Balance).

Winding Up of B Pty Ltd

1. That as soon as possible after the settlement of the sale of the Business and within seven days of same, the parties are to do and sign all things necessary to appoint Mr L of N Firm (the Liquidator) to wind up the company B Pty Ltd (ACN …) (B Pty Ltd and that process referred to as the Wind Up).

2. That the parties shall, in the course of complying with Order 6, instruct the Liquidator to:

   (a)Calculate the taxation liability of either party personally arising from the Wind Up; and

   (b)By virtue of this Order, the parties authorise the Liquidator to contact B Pty Ltd's accountant (or another accountant as nominated by the Liquidator) and seek information required by the Liquidator or the purpose of calculating the taxation liability.

3. That for the purposes of the Wind Up:

   (a)The parties are to comply with any reasonable requests of the Liquidator, including providing any necessary available information or documentation requested by the Liquidator.

4. That the Accountant's costs be met from residual funds in B Pty Ltd and any shortfall be met from the Sale Balance.

Sale of Real Estate Properties

(10)That the parties do all things necessary to effect the sale of the following properties:

(a)1 Q Street, Suburb S;

(b)R Street, Suburb S; (collectively referred to as the Properties).

(11)The parties are to list the Properties for sale forthwith.

(12)That for the purposes of the sale of the Properties:

(a)The Wife is to provide the Husband a list of three agents for the sale within 14 days of the date of these Orders, providing with that list a letter from each that he or she is prepared to act on the sale, his or her estimated fees on the sale, and whether there is a pre-existing relationship that compromises his or her capacity to act independently;

(b)Within a further seven days the Husband is to nominate which of those three agents is to act on the sale (the Real Estate Agent);

(c)The parties appoint M Lawyers as the conveyancing solicitors (the Real Estate Solicitors);

(d)Failing agreement between them, the parties accept the advice of the Real Estate Agent as to the method of sale;

(e)The parties cooperate in every way with the Real Estate Agent and the Real Estate Solicitors in relation to the sale of the Properties, in a timely and helpful manner;

(f)The listing price of the Properties be as agreed between the Husband and Wife or failing agreement within a reasonable timeframe, as recommended by the Real Estate Agent;

(g)The terms and conditions of the sale shall be as agreed between the parties in writing, and failing agreement within a reasonable timeframe, as recommended by the Real Estate Agent.

(13)The parties cause the proceeds of sale of the Properties or either of them to be paid as follows:

(a)To pay the sale costs;

(b)To pay the usual rates adjustments;

(c)To pay the minimal amount required to discharge any mortgage secured on the title of the properties or either of them;

(d)To pay the balance into a controlled monies account in the joint names of the parties such account to be managed by the Real Estate Solicitors.

(14)That the time limits, procedural clauses and the terms and conditions imposed by these Orders may be varied by the parties by written agreement.

(15)That liberty be reserved to either party to apply to the Court on short notice with respect to the Business Sale, the Wind Up, or the sale of the Properties.

(16)That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 14 days after being requested to do so, and any such refusal, failure or neglect is proved by Affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to s 106A of the Family Law Act 1975 to execute such document in the name of such party.

Disclosure

(17)The parties are each to compile and maintain a current schedule of the documents that they have produced to the other party for disclosure, identifying the documents (or class of document produced where the documents are too voluminous to be described individually), along with the date of disclosure and mode of disclosure of the document.

(18)A party’s updated schedule is to be provided to the other party on each occasion of disclosure.

(19)If directed to do so, a party’s schedule is to be filed at Court.

Other matters

(20)The Application in a case filed by the Husband on 8 July 2020, and the Response to an Application in a Case filed by the Wife on 4 August 2020 are otherwise dismissed save as to costs.

Costs

(21)In the event that a party seeks costs in relation to this application, that party is to file written submissions in support of such within 14 days of the date of these Orders.

(22)Should a party not file such submissions, then that party shall be taken to have not pressed an application for costs and such application will be dismissed.

(23)In the event that a party files submissions as set out above, any party resisting costs shall file written submissions in response within a further 14 days of the date of these orders.

(24)The costs of these proceedings will then be determined on the basis of those written submissions, in chambers, unless a party or the Court notifies that further oral address is required.

(25)Pursuant to r 19.04 of the Family Law Rules 2004 (Cth), the next time the matter is listed before the Registrar or the Court will be designated a court event for the notification of costs.

(26)The matter is transferred to the Registrar’s list pending further application or the listing of the trial date.