Quill & Quill
[2021] FamCA 456
•14 July 2021
FAMILY COURT OF AUSTRALIA
Quill & Quill [2021] FamCA 456
File number(s): MLC6573 of 2010 Judgment of: HARTNETT J Date of judgment: 14 July 2021 Catchwords: FAMILY LAW – PROPERTY – whether Applicant permitted to adduce expert evidence – substantive application in bifurcated hearing a s 79A application – retrospective valuation evidence sought to be obtained as at final property orders date of July 2010 and current - whether the Respondent’s disclosure is adequate for the hearing of this discrete application – matters referrable to an ongoing partnership between the parties contemplated by the final property orders not relevant to the determination of discrete issue - adjourn hearing date of s 79A(1)(a) and (1A) application to set aside final orders Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Cases cited: Barker & Barker [2007] FamCA 13
Makita (Australia) Pty Ltd & Sprowles [2001] NSWLR 305; 52 NSWLR 705; 25 NSWCCR 218Number of paragraphs: 46 Date of hearing: 10 May 2021 Place: Melbourne Counsel for the Applicant: Mr Frenkel Solicitors for the Applicant: Consult Solicitors Counsel for the Respondent: Mr Dickson Q.C. Solicitors for the Respondent: Coote Family Lawyers ORDERS
MLC6573 of 2010 BETWEEN: MR QUILL
Applicant
AND: MS QUILL
Respondent
ORDER MADE BY:
HARTNETT J
DATE OF ORDER:
14 JULY 2021
THE COURT ORDERS THAT:
1.The Applicant husband be at liberty to rely upon the expert evidence of Mr B, certified practising valuer of C Valuers in respect of Mr B’s retrospective valuation (as at the 21 July 2010) of the properties situate at:-
(a)D Street, Suburb E, Victoria;
(b)“Property F” at 3 G Street, H Town, Tasmania;
(c)“Property J” situate at K Street, M Town, Tasmania;
(d)“Property L”, situate at 5 G Street, H Town, Tasmania;
(e)P Street, R Town;
(f)T Street, Suburb S Victoria;
(g)U Street, Location V, Tasmania;
(h)W Street, Y Town, Victoria;
(i)X Street, Suburb AA, Victoria;
(j)Z Street, Suburb BB, Victoria; and
(k)Property CC, Location O, Victoria
Mr B shall not be a single expert witness.
2.The Respondent wife is at liberty to obtain and rely upon her own expert witness evidence as to the value of any or all of the real properties described in order 1 herein. That valuation evidence be as to retrospective value as at the 21st July 2010.
3.Otherwise, the application in a case filed by the Applicant husband on 22 April 2021 be dismissed.
4.The proceeding be listed for hearing in respect of the Applicant husband’s application under s 79A of the Family Law Act 1975 (Cth) on a date to be fixed at 10.00am before Justice McGuire.
5.The proceeding be listed for a case management hearing before Justice McGuire on the a date and at a time to be fixed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Quill & Quill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J:
Preliminary
The matter before the Court involved an application in a case filed by the Applicant husband (“the husband”) on 22 April 2021. In support of that application in a case seeking interim orders, the husband relied upon his affidavit of evidence filed 22 April 2021.
The Respondent wife (“the wife”), by way of response, sought dismissal of all interim orders as sought by the husband. The wife relied upon her response to an application in a case and affidavit of evidence in support, both filed on 4 May 2021.
The substantive proceeding is a property orders proceeding as contained in the further amended initiating application filed by the husband on 24 February 2021. In her response to the initiating application filed 11 February 2021, the wife sought a bifurcation of the proceeding and a dismissal of the husband’s application under s 79A of the Family Law Act 1975 (“the Act”). The wife sought her costs of and incidental to the proceeding on an indemnity basis.
Directions were made in the proceeding by Macmillan J on 16 February 2021 which were as follows:
a.The matter be bifurcated so that the husband’s application under s79A (‘the s79A application’) of the Family Law Act is set down for a separate defended hearing on 1, 2 and 3 June (‘s79A hearing’);
b.The husband file his consolidated affidavit for the s 79A hearing on 30 March 2021, the wife file her consolidated affidavit for the s 79A hearing on 30 April 2021and the husband file any affidavit in reply by 14 May 2021.
The listing of the matter on 1 June 2021 was as a non-priority matter. It was apparent on the hearing of the application in a case that this matter would not be reached on 1 June 2021. It was also apparent by virtue of the application in a case that the matter was not ready to proceed. Accordingly, the s 79A of the Act application shall be re-listed for a defended hearing.
The husband’s primary position is that the Court should exercise its discretion to set aside consent orders entered into between the parties and made by the Court on 21 July 2010. The husband relies upon section 79A (1)(a) and section 79(1A) of the Act. Those sections are as follows:
Section 79A
(1)Where, on application by a person affected by an order made by a court under section 79 in property proceedings, the court is satisfied that–
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;…
…
(1A)A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The husband argues that there has been a miscarriage of justice as a result of
(a)“any other circumstance”; and
(b)because the parties conduct after the consent orders were made demonstrated an explicit and/or implied consent to set such orders aside.
The wife disputes the claims made by the husband and argues that the application of the husband should be dismissed.
Only if the husband succeeds on one or both of the above grounds, as raised by him, and the orders of 21 July 2010 are, as a consequence, set aside, will the Court consider in the context of a subsequent second trial whether to, in the exercise of its discretion and having considered whether it is just and equitable to make any order which would adjust the parties legal and equitable interests in property, make another order under section 79 in substitution for the orders so set aside.
Background
The husband was born in 1943 and is now aged 77 years. The wife was born in 1958 and is now aged 62 years.
In 1979, the parties married. In 2000, they separated, after a 21-year period of cohabitation. On 5 November 2020, the wife filed an application for divorce. On 25 February 2021, a divorce order was made.
On 21 July 2010, the final property orders the subject of the s 79A of the Act application were made by consent of the parties. Since the making of those orders, the parties have continued to operate a partnership known as DD Company to the present time. The husband has continued to have sole use and occupation of D Street, Suburb E in the State of Victoria (the “Suburb E property”), which had, in September 2009 been transferred from the joint proprietorship of the husband and wife to the sole proprietorship of the wife. The husband claims that since the making of the final orders, in July 2010, he has continued to make financial contributions toward the capital upgrade and maintenance of the Suburb E property; together with the Property F land, situate at G Street, H Town, Tasmania (the “Property F”) and P Street, R Town, Victoria (the “R Town property”). The R Town property was also, in September 2009, transferred from the joint proprietorship of the husband and wife to the sole proprietorship of the wife.
It is the husband’s assertion that the parties entered into final property consent orders in July 2010 in order to divest the husband of assets in circumstances where there was anticipated commercial litigation by the National Australia Bank (the “NAB”) against the husband. The husband’s further evidence is that there was a verbal agreement between the parties, made outside of the consent orders, that the wife would hold the husband’s share of the matrimonial assets on trust for him as to 50% thereof until a later date. That is, he makes a declaration of trust. The husband asserts that this arrangement, not sufficiently particularised by him, was initiated by his and the wife’s accountant, Ms Q, and agreed to by the parties. The wife denies there was any agreement entered into by the parties as claimed by the husband or at all, and her position is that the husband has no interest in property in her name and/ or in the name of any entities controlled by her following the making of the final consent orders.
It is further the husband’s case that the property adjustments provided for in the consent orders were not an alteration of the parties’ property interests in a manner that was just and equitable. It is the husband’s position that the non-superannuation assets which were transferred from the joint proprietorship of the parties and/or from the husband’s name solely and/or entities which he or they controlled to the wife’s name solely, or to entities which she controlled solely, were grossly undervalued at the time of the parties signing the application for the consent orders, which orders were subsequently made without any evidence before the Court as to value.
Notwithstanding section 81 of the Act, the husband’s further evidence is that the consent orders did not finalise the parties’ financial relationship in that they have continued to together operate the DD Company (the “Partnership”), and intermingle their finances. The husband claims to have also made significant financial contributions to capital costs and maintenance expenses for a number of real properties held in the wife’s name and held in the Quill Family Trust, which are not used in the operations of the DD Company. The wife disputes this. The husband claims he has also continued to have sole use and occupation of the Suburb E property despite it being in the wife’s name, and therefore being retained by the wife pursuant to the “catch all” provision of the consent orders.
In order to prosecute his s 79A of the Act application the husband seeks to adduce evidence and have the wife provide documents considered below.
Appointment of CBRE as single expert witness
The husband seeks orders appointing Mr B, certified practising valuer, of C Valuers as a single expert witness in the proceeding for the purpose of valuations of the real properties owned by the parties and the entities which they control in both 2010 and now. That application is itself made retrospectively, as highlighted by Queen’s Counsel for the wife, as the husband has already obtained valuations of all the real property of the parties and/or their entities including the four most significant pieces of real estate in issue as set out in paragraph 6 of his affidavit sworn on 22 April 2021. This application cannot succeed for the reasons below.
The wife opposes the husband’s application to appoint Mr B of C Valuers as a single expert witness. Somewhat surprisingly, there was no attempt by the husband to agree with the wife as to the appointment of a single expert, nor was there any compliance with Division 15.53 of the Family Law Rules 2004 (Cth) (“the Rules”) by the husband before he commenced to instruct C Valuers to conduct the valuations on which he now seeks to rely. No application to instruct an expert was made by the husband at the procedural hearing on 16 February 2021 before Macmillan J.
The wife’s Queen’s Counsel submitted the property valuations as at the present date can be of no possible relevance to the section 79A of the Act application, as such valuations cannot inform the Court as to whether there was a miscarriage of justice at the time of the 2010 orders, nor whether there was subsequent consent to setting aside of those orders. Current valuations will be relevant only when, and if, the orders are set aside and the Court’s discretion under s. 79 of the Act is enlivened. The Court agrees with those submissions.
The wife’s Queens Counsel further submitted that retrospective valuations as at July 2010 will not assist the Court in determining the section 79A of the Act application in circumstances where the husband was represented by experienced solicitors for the purposes of the 2010 orders; where he did not seek a formal valuation for the purposes of those orders; and where the authorities indicate the improbability of differential valuation opinions justifying a finding that there has been a miscarriage of justice.[1] The Court does not agree that the Court will not be assisted by a retrospective valuation. In any event, the husband should be permitted to argue his case in this regard and to have the opportunity to provide necessary evidence to support his argument.
[1] Barker & Barker [2007] FamCA 13 at [121] to [122].
The husband’s Counsel submitted, the valuation of the main asset, being the Property F, reveals a startling disparity between the value ascribed to that asset in the Consent Orders and Mr B’s opinion of the true value in 2010 (a claimed difference of more than $13.6 million as at 2010).
It is agreed between the parties that there was no valuation evidence of any assets of the parties prior to the consent orders being made on 21 July 2010. The wife asserts that such valuation evidence as was presented to the Court was in fact provided by the husband.
In my view, expert retrospective valuation evidence as to the value of the parties and/or their entities real property in 2010, in particular, the Property F, is relevant evidence that will assist the Court on the hearing of the husband’s s 79A of the Act application.
Mr GG (Building Expert)
The husband sought to adduce evidence from Mr GG, as claimed by the husband, building expert, of HH Company, about the monetary and non-monetary contributions said by the husband to have been made by him toward the capital upgrade and maintenance of properties in the name, of the wife and/or her entities and in the Quill Family Trust, after the consent orders were made.
The husband’s Counsel submitted that Mr GG’s proposed evidence was relevant to the s 79A of the Act implied consent ground.[2]
[2] The Applicant husband’s case outline filed 7 May 2021 at paragraph 23.
The husband claims that he has made capital contributions in the sum of $509,035.35 to the Suburb E property; the Property F; and the R Town Property during the period 2010 to 2020.
The evidence as contained in the husband’s affidavit, being his spreadsheet document, is inadmissible under the Evidence Act 1995 (Cth)[3] (the “Evidence Act”) without the supporting documents being provided in the evidence which go to the compilation of the spreadsheet on which the husband seeks to rely.
[3] Section 134 – Inadmissibility of evidence that must not be adduced or given.
The wife denies the husband made such contributions. Even if the husband made such contributions as claimed, they may not have been inconsistent with order 12 of the final orders made on the 21st July 2010 which provided relevantly as follows:-
The Husband and Wife retain each of their respective right, title and interest in the trading Partnership known as N Pty Ltd.
There is, as submitted by Queen’s Counsel for the wife, no factual foundation as to the evidence of the husband as to his capital contributions, on which an expert could comment as to the husband’s “capital contributions”.[4]
[4] Makita (Australia) Pty Ltd & Sprowles [2001] NSWLR 305 at [64] and [69].
The final orders of July 2010 made clear provision for the parties to continue to operate their partnership business together. This is not prohibited by the provisions of s 81 of the Act.
The husband’s application and affidavit fails to address, fundamentally, the criteria in Rules 15.52(2) or 15.52(3) of the Rules. These Rules are as follows:-
RULE 15.52 -Application for permission for expert witness
(2) The affidavit filed with the application must state:
(a)whether the party has attempted to agree on the appointment of a single expert witness with the other party and, if not, why not;
(b) the name of the expert witness;
(c) the issue about which the expert witness's evidence is to be given;
(d) the reason the expert evidence is necessary in relation to that issue;
(e) the field in which the expert witness is expert;
(f)the expert witness's training, study or experience that qualifies the expert witness as having specialised knowledge on the issue; and
(g)whether there is any previous connection between the expert witness and the party.
(3)When considering whether to permit a party to tender a report or adduce evidence from an expert witness, the court may take into account:
(a) the purpose of this Part (see rule 15.42);
(b)the impact of the appointment of an expert witness on the costs of the case;
(c) the likelihood of the appointment expediting or delaying the case;
(d) the complexity of the issues in the case;
(e)whether the evidence should be given by a single expert witness rather than an expert witness appointed by one party only; and
(f)whether the expert witness has specialised knowledge, based on the person's training, study or experience:
(i) relevant to the issue on which evidence is to be given; and
(ii) appropriate to the value, complexity and importance of the case.
In particular, and as submitted by Queen’s Counsel for the wife, the husband provides no information about the grounds on which he asserts that Mr GG has specialised knowledge as required by s 79 of the Evidence Act, nor as to the basis on which his knowledge is derived from an established field of expertise. There is no proper disclosure to the wife in respect of this proposed evidence.
Queen’s Counsel for the wife further submitted, that Mr GG’s evidence would be irrelevant to the determination of the section 79A of the Act application of the husband.
This thus also becomes a question of whether Mr GG evidence is necessary and/or relevant. I am of the view that it is neither, and that the factual evidence of the husband as to his contributions made following the consent orders in 2010 will be sufficient for the bifurcated hearing, and be the most relevant evidence available to the Court in its consideration of the implied consent ground. Otherwise, Mr GG is not relevant to the circumstances surrounding the parties’ preparation of the application for consent orders in 2010 and their seeking of same.
The husband’s application to rely on evidence from Mr GG for the purpose of the s 79A of the Act application is dismissed.
Evidence of Mr KK – forensic accountant from LL Accountants
A proposed expert report to be prepared by Mr KK, forensic accountant, of LL Accountants, falls into a similar category. The husband’s Counsel submitted that Mr KK’s proposed evidence was relevant to the miscarriage of justice ground and to the implied consent ground both of which are relied upon by the husband. The husband’s Counsel submitted the Court would be assisted by expert evidence from Mr KK to enable it to determine whether the value of the Property F given by the parties in the application for consent orders of ($691,686) (negative value in the N Trust, which the husband refers to as the “N Property Trust”) was its “real value”[5] or whether it was an accounting artifice. The wife’s evidence is to the contrary, namely that the Property F was given a value of $6 million as agreed by the parties at the time of the making of the consent orders. That is evidence readily available to the Court by an examination of the evidence placed before the Court at the relevant time. There is no necessity or relevance for any evidence from Mr KK as to this matter at this juncture. Counsel for the husband also submitted that Mr KK would be able to assist the Court in providing expert evidence to determine whether the only material non-superannuation asset that the application for consent orders gave to the husband, the right to a purported $4.7 million dollar loan to MM Proprietary Limited was a “real asset or not.” There is no relevant opinion evidence based on his specialised knowledge that he could provide. The Court would not be assisted at this point as claimed. Mr KK ability to value the husband’s right to pursue a third party for the recovery of loan money as at July 2010 is a matter that can be explored by the husband and Mr KK by considering those documents available to the husband around the time of the making of the final orders including those documents which related to the husband’s dealings with Mr NN. All of the relevant documents are documents which will be held by the husband given the husband’s dealings with Mr NN which were not matters engaged in by the wife.
[5] Barker & Barker [2007] FamCA 13 at [45].
Any alleged (by the husband) discrepancies in the Partnership accounts are also not relevant to the determination of the Applicant’s s 79A of the Act application, in particular where the final orders contemplated the ongoing existence and operation of the Partnership. The wife disputes the existence of any discrepancy in the accounts of the Partnership either in 2010, or now. Even if such discrepancies existed, it was submitted, they could have no possible relevance to the question of the section 79A of the Act application. Further, the wife submitted, the application of income generated by the wife’s entities after the 2010 orders could have no possible relevance to whether there had been a miscarriage of justice or consent within the meaning of section 79A(1A). The Court accepts those submissions.
Further Disclosure
The husband seeks further disclosure from the wife and, in particular, disclosure in accordance with paragraphs 34 to 37 of his case outline document filed 7 May 2021. Those paragraphs are as follows:
34.Firstly, the Wife has not agreed to provide the disclosure sought in sub-paragraph 3(a)(iii) of the Application in a Case. It is submitted that [that] those documents are relevant to the implied consent ground.
3.(a) iii.communication between the Wife and Ms Q in about 2017 concerning the proposed sale of the Property F;…
35. Secondly, the application for consent orders were submitted in early July 2010 and the Consent Orders were made on 21 July 2010. Accordingly, the Wife’s disclosure under all categories should include the 2011 financial year.
36.Thirdly, in relation to sub-paragraphs 3(a)(iv) and (v), 3(b) and 3(c) of the Application in a Case, the Husband presses for those documents after 2010. It is submitted that those documents are relevant to the implied consent ground.
3. (a) iv.communications between the Wife and Ms Q since 2010 concerning her refusal to give the Husband access to or copies of accounts;
v. communications between the Wife and Ms Q since 2010 concerning the accounts of each of the family entities and the preparation of accounts; and
(b) the full and unedited MYOB file and the DD Company; and
(c) end of year financial statements including profit and loss accounts, balance sheets, taxation returns and the electronic MYOB file for:
i. N Pty Ltd (as trustee for the N Trust) for each of the 2007 to 2020 financial years;
ii. FF Pty Ltd (as trustee for the Quill Family Trust) for each of the 2007 to 2020 financial years;
iii. PP Pty Ltd for each of the 2007 to 2020 financial years; and
iv. the Wife for each of the 2007 to 2020 financial years.
37.Fourthly, in relation to sub-paragraphs 3(b) and 3(c) of the Application in a Case, the Husband presses for the full and unedited MYOB file for those entities (it is unclear whether this is still disputed by the Wife). It is submitted that those documents are relevant to the miscarriage of justice ground and the implied consent ground.
3. (b) the full and unedited MYOB file and the DD Company; and
(c) end of year financial statements including profit and loss accounts, balance sheets, taxation returns and the electronic MYOB file for:
i. N Pty Ltd (as trustee for the N Trust) for each of the 2007 to 2020 financial years;
ii. FF Pty Ltd (as trustee for the Quill Family Trust) for each of the 2007 to 2020 financial years;
iii. PP Pty Ltd for each of the 2007 to 2020 financial years; and
iv. the Wife for each of the 2007 to 2020 financial years
As to the disclosure items sought:
(a)the documents requested by the husband, being communications between the wife and Ms Q in about 2017 concerning the proposed sale of the Property F as requested by the husband by his application in a case on 22 April 2021, is responded to by the wife in her assertion that no such communications exist;
(b)the husband’s request for communications between the wife and Ms Q since 2010 concerning her refusal to give the husband access to or copies of accounts, as requested by the husband on 22 April 2021 by his application in a case, is responded to by the wife as being communications not relevant to the section 79A hearing;
(c)The communications between the wife and Ms Q since 2010 concerning the accounts of each of the family entities and the preparation of accounts, as requested by the husband on 22 April 2021 by his application in a case, is responded to by the wife as also not relevant to the section 79A hearing;
(d)the request for the full and unedited MYOB file of the DD Company, as requested by the husband on 22 March 2021 and not provided by the wife, is not so provided as the wife asserts that the MYOB file is consolidated with her personal financial documents; and
(e)otherwise the husband’s request for disclosure of the wife’s personal, and her entities, information, including financial and taxation documents since the making of the final orders in July 2010 is responded to by the wife as not relevant to the s 79A hearing.
What has been provided to the husband, is the general ledger for the Partnership in Excel format as provided to the husband on 24 February 2021 after its extraction from the MYOB file by the wife.
The following documents, to the extent that they exist and are in the possession, power or control of the wife, will be, or have been,without the need for Court order and as already indicated to the husband’s solicitor’s by the wife’s solicitors, produced by way of financial disclosure:
(a)communications between the wife and Ms Q in relation to the transfer of asset made in 2009 and about 2010;
(b)records concerning the payment of Stamp Duty and transfer into the wife’s of the properties located D Street, Suburb E and P Street, R Town;
(c)communications, if any, between the wife and Mrs Q in 2010 concerning her refusal to give the husband access to or copies of accounts albeit the wife has instructed her solicitor there are no such communications in this regard;
(d)communications, if any, between the wife and Mrs Q up until the Final Orders in 2010 concerning the accounts of each of the Family Entities and the preparation of accounts;
(e)the legal file of the wife’s previous legal advisors QQ Lawyers to the extent that it relates to the Application for Consent Orders and Final Orders dated 21 July 2010;
(f)financial statements including profit and loss accounts, balance sheets, taxation returns and electronic MYOB file (if able to be produced) for:
(i)N Pty Ltd as trustee for the N Trust for the financial years ending 30 June 2007 to 2010;
(ii)FF Pty Ltd as trustee for the Quill Family Trust for the financial years ending 30 June 2007 to 2010; and
(iii)PP Pty Ltd for the financial years ending 30 June 2007 to 20120; and
(iv)the wife for the financial years ending 30 June 2007 to 2010.
The wife agreed to provide to the husband, financial documents as requested by him, up to the 30th June 2010. The husband sought inclusion of the FYE 2011 documents on the basis that the final consent orders were made on the 21st July 2010, being 3 weeks into that year. The wife objects to the production of the requested documents from the financial year ending 30 June 2011 to present. The husband’s case is not that something extraordinary in a financial sense happened in the first 3 weeks of the financial year from 1 July 2010 to 30 June 2011 to make disclosure in respect of these three weeks necessary. Otherwise, Queen’s Counsel for the wife submitted that the wife’s obligation to provide financial disclosure in relation to the husband, pursuant to the s 79A of the Act application did not extend to documents beyond the financial year ending 30 June 2010. The Court accepts those submissions.
The husband’s evidence is that his advisors have discovered significant discrepancies in the accounts after the consent orders were made, and he is concerned that there may be significant unexplained discrepancies in the accounts prior to the consent orders, which is relevant to his application to set aside the consent orders.[6] The husband believes that the wife has refused to provide the electronic MYOB file in respect of the DD Company (which owns and runs the business in Tasmania at the Property F) at least in part because they will show that the accounts of the Partnership have been and still are consolidated with the accounts of N Pty Ltd (as trustees for the Quill or N Trust) (which owns the land in Tasmania).[7]
[6] Applicant’s affidavit sworn 22 April 2021 at paragraph 24.
[7] Ibid at paragraph 26.
Discrepancies in the Partnership accounts, if any exist, are matters of fact. Matters going to the ongoing operations of the Partnership are Partnership matters that can be resolved in another forum. The application and use of income, and any other revenues over a 10- year period in respect of the “family entities”, as sought by the husband is, as Queen’s Counsel for the wife submitted, too broad an inquiry. The husband is not however precluded from engaging his own accountant to assist him deciphering various aspects of the Partnership or other financial issues that arise for him.
The Court finds the response of the wife not requiring any further order. The wife cannot make disclosure of that which is not in her possession or control or which does not exist, and nor is she required to make disclosure of matters which are not relevant to a section 79A of the Act hearing which the Court accepts are not so relevant. Matters pertaining to the ongoing operations of the Partnership were in the process of being dealt with. The wife’s evidence is that between October 2020 and February 2021 she determined that she could no longer work with the husband and that the Partnership was unable to continue. She also sought to sell the Property F. On the 3rd February 2021, RR Lawyers (her solicitor in respect of the Partnership matters) sent to the husband and his solicitors, a notice of dissolution of partnership and notice to terminate the lease of the Property F by the Partnership. It is the position of the wife that the Partnership should be wound up.
The husband has in full the general ledger for the Partnership to the present time. He has access to other relevant pre the 2010 orders documents, as supplied or offered to him by the wife. He did not need that assistance, having an ability to obtain those documents for himself give his involvement with those entities at that earlier time.
The orders of July 2010 have not been set aside to the present time. The wife’s disclosure obligation is limited by that fact. The husband seeking that the wife make discovery of her and her entities financial documents from the time of the making of the orders in July 2010 to present is premature. The husband first needs to establish a factual evidentiary basis for the Court to find an implied consent to set the final orders of July 2010 aside. Whilst the Partnership exists between the parties, the husband is clearly entitled to all documents in respect of its past and present operations and needs no order from the Court in that regard.
The nature of the claim presently is such that there is no non-disclosure by the wife as claimed by the husband.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett. Associate:
Dated: 14 July 2021
0