Rory and Rory

FAMILY COURT OF AUSTRALIA

RORY & RORY

[2008] FamCA 246

FAMILY LAW – PROPERTY SETTLEMENT – Large pool of assets – add back of premature distribution of property.

C and C [1998] FamCA 143
Chorn and Hopkins (2004) FLC 93-204
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Omacini and Omacini (2005) FLC 93-218
Steele & Stanley [2008] FamCA 83
Townsend and Townsend (1995) FLC 92-569.

APPLICANT:

Mr Rory

RESPONDENT:

Mrs Rory

FILE NUMBER:

HBF

533

2005

DATE DELIVERED:

20 March 2008

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

28, 29 February & 3, 4 & 5 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Dixon S.C.

SOLICITOR FOR THE APPLICANT:

Murdoch Clarke

COUNSEL FOR THE RESPONDENT:

Mr Trezise

SOLICITOR FOR THE RESPONDENT:

Dobson Mitchell & Allport

Orders

Within thirty (30) days of these orders the husband sign all documents and do all acts to transfer to the wife the legal and equitable title in one (1) fishing unit (with fish).
Within thirty (30) days of the date of these orders the husband transfers to the wife his shareholding in S Pty Ltd.
Within thirty (30) days of the date of these orders the husband resign any public office he holds with S Pty Ltd;
The wife shall indemnify and keep indemnified the husband in respect of all and any liabilities or encumbrances of S Pty Ltd (including any tax liabilities) and the wife shall make all necessary arrangements for the husband to be released from the loans, personal guarantees or personal undertakings he has given or to which he is liable in relation to S Pty Ltd.
Within thirty (30) days of the date of these orders the husband shall do all acts and sign all documents to transfer to the wife his interest in … (“[M1 Property]”) (Volume: … Folio: …). The wife shall within that time make all necessary arrangements for the husband to be released from any personal guarantee/s with respect of any mortgage or loans secured over M1 Property and shall indemnify the husband in relation to any such loans, taxes, rates or other liabilities in respect of that property.
The husband permit the wife, or her nominee to enter on property … (“[M2 property]”) on Monday’s or Friday’s of each week between 11.00am and 2.00pm for the purpose of pumping water from M2 property to M1 property. This order is to operate for a period of eighteen (18) months from the date of this order or upon the husband wholly disposing of his legal and equitable interest in M2 property, whichever event shall first occur.
The husband shall do all acts to transfer to the wife any right, title and interest in any chattels, furnishings or effects in the possession of the wife, save and except for 1 Myrtle dresser, situated at M1 property and one Huon Pine office desk situated at … (“[G property]”), which desk and dresser the wife shall have delivered to the husband, in good order and condition to M2 property, within thirty (30) days of this order.
The wife shall retain all of the Telstra shares registered in her name and listed on the Australian Stock Exchange.
The husband shall retain all of the Telstra shares registered in his name and listed on the Australian Stock Exchange.
A declaration in favour of the wife as against the husband that the wife be entitled to an equitable interest (if any) in B3 property.
The husband shall do all acts and sign all documents and be responsible for;
a)causing N Pty Ltd as trustee for the Rory Family Trust (“the Family Trust”) to pay $75,000.00 to S Pty Ltd in full and final settlement of any monies owed by N Pty Ltd as trustee for the Family Trust to S Pty Ltd.
a)indemnifying the wife in relation to the sum of $75,000.00 owing or owed by N Pty Ltd as Trustee for the Family Trust to S Pty Ltd.
The husband shall pay to the wife, within ninety (90) days of the making of these orders, the sum of $73,635.50
A declaration that the wife shall be entitled to her K superannuation interest, as against any claim or entitlement by or of the husband.
That:
(a)In accordance with Section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment within the meaning of Section 90ME of the Act becomes payable to or on behalf of the husband from his interest in the N Super Fund (“the Fund”), the wife is entitled to be paid by the trustee of the Fund 100% of the splittable payment and there will be a corresponding reduction in the amount the Husband would be entitled to receive but for this Order.
(b)The operative time for sub-paragraph (a) above is seven (7) business days after the service of this order on the trustee of the Fund.
Both the husband and wife must, within thirty (30) days of these orders (or such longer period as is agreed between the parties in writing) cause N Pty Ltd to:
(a)transfer to the wife or her nominee the Rory Property Trust units held by N Pty Ltd (in its capacity as trustee of the Rory Family Trust) with such transferee to hold the assets of the trust as trustee for the Rory Property Trust.
(b)resign and relinquish its position as trustee of the Rory Property Trust.
Within thirty (30) days of this order the wife will discharge or refinance all liabilities of N Pty Ltd and/or the husband in relation to G property in Tasmania to the intent and effect that N Pty Ltd and the husband are released from those liabilities entirely.
Both the husband and wife must, within thirty (30) days of these orders (or such longer period as is agreed between the parties in writing):-
(a)do all acts and sign all documents as reasonably required by the wife to cause N Pty Ltd to resign as trustee of the N Superannuation Fund and appoint a company or individual as Trustee of that trust as is lawfully nominated by the wife;
(b)do all acts and sign all documents to cause N Pty Ltd to transfer the six thousand units owned by it, in its own right, in the Rory Property Trust (not being the property of the N Superannuation Fund) to the wife;
(c)do all acts and sign all documents to cause the wife or such other person or corporation as the wife reasonably nominates, to have the power of appointment of trustee in respect of the Rory Property Trust;
(d)do all acts and sign all documents to cause N Pty Ltd as trustee for the Rory Property Trust, to forgive the amount of $6,500.00 owed to it by N Pty Ltd in its own right or as trustee for the family trust.
(e)Save and except for the $75,000.00 referred to earlier in these orders, the wife shall sign all documents and do all acts to cause any monies due from the husband to S Pty Ltd to be transferred to her loan account and the wife shall indemnify the husband in that respect
The wife shall indemnify the husband, N Pty Ltd and the Family Trust in respect of any taxes, stamp duties or other charges arising out of the transfer of trustees of the N Superannuation Fund and the Rory Property Trust and the consequence of refinance of mortgage over G property and transfer of G property and to include any legal costs in respect of re-drafting or drafting amendments to Trust Deeds or other documents necessary to give effect to the orders in that regard. This is save and except the husband, N Pty Ltd and the Family Trusts shall be responsible for his and its own legal costs in respect of such transfers.
A declaration that there is no money owed by S Pty Ltd to the husband.
The husband shall be declared sole owner, as against any claim by or on behalf of the wife, to the remaining nine fishing units and the Tasmanian Diving entitlement in the name of the husband.
The husband and wife must, within thirty days (30) of these orders (or such longer period as is agreed between the parties in writing), execute all documents necessary to transfer to the husband any interest that the wife may have in N Pty Ltd:-
(a)the wife shall within that thirty (30) day period resign any public office she has with N Pty Ltd;
(b)the wife and husband shall sign any document reasonably required by the husband to amend the trust deed in respect of the Family Trust so that the husband or a person or entity reasonably nominated by him to have the power of appointment of trustee/s in respect of the Family Trust;
(c)the husband shall be responsible for and indemnify the wife of all liabilities owned by N Pty Ltd and the family trust and will arrange for the wife to be released from all personal guarantees of covenants in respect of such liabilities;
(d)cause any loan accounts in the name of the wife and the parties children in N Pty Ltd in its own right or as trustee for the Family Trust to be assigned to the husband and shall indemnify the wife and the children in respect of such loan accounts.
The husband shall indemnify the wife in respect of any taxes, stamp duties or other charges arising out of the transfer of trustees of the Family Trust and to include any legal costs in respect of re-drafting or drafting amendments to the Trust Deed or other documents necessary to give effect to the order in that regard. This is save and except the wife shall be responsible for her own legal costs in respect of such.
A declaration that the wife is not entitled to any further funds from N Pty Ltd or the Family Trust.
The wife shall within thirty (30) days of these orders (or such longer period as is agreed between the parties in writing) sign all documents and do all acts to transfer to the husband any she may have in:-
(a)M2 property (Volume: … Folio:…);
(b)V1 property (property ID: …);
(c)V2 property (Volume: … Folio: …);
(d)D property (Volume: … Folio: …);
(e)B1 property (Volume: … Folio: …);
(f)B2 property (Volume: … Folio: …);
(g)T property (Volume: … Folio: …);
(h)H property (Volume: … Folio: …)
and the husband’s consequential interest in such properties shall remain as against any claim by the wife and the husband shall be responsible for any money due and owing in respect of such properties including monies owed under mortgage.
A declaration that the husband shall be entitled, as against the wife to the whole of the husband’s superannuation entitlement in AXA Super Fund and Colonial Retirement Super Fund No. ….
The husband shall retain entitlement, as against the wife, to all chattels, furniture and effects currently in the possession of the husband.
Each party shall be responsible for their own credit card liabilities as disclosed in these proceedings.
All outstanding applications be dismissed.
This matter be removed from the list of cases requiring determination.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBF 533 of 2005

Mr Rory

Applicant

And

Mrs Rory

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

These are property proceedings commenced by Mr Rory (“the husband”) against Mrs Rory (“the wife”). Each seeks different property orders.
There are various issues between the parties including the extent of the pool of assets (including add backs) and the extent of liabilities of the parties.
The husband asserts that having regard to all of the facts and circumstances there ought to be an equal division of the property between the parties, such property being that as set out in the husband’s case outline. This division is notwithstanding his alleged superior initial contributions and the inclusion of properties at T and H left to him through his father’s estate.
The wife has concerns about the pool of assets and says of the pool, determined in accordance with her submissions, should be divided as to 60 per cent to her and 40 per cent to the husband.
The wife contends that the contributions by the parties towards the acquisition, conservation and improvement of the property during the marriage was at least equal but that her role in parenting far outweighed that of the husband and that the wife’s parenting contribution particularly since separation in 2002 have been overwhelming.
The wife seeks a modest adjustment in her favour in relation to the other factors (including the factors under s75(2)) of the Family Law Act.
The issues are;
a)Whether there should be a division of the fishing units equally as sought by the wife or nine fishing units to the husband and one to the wife as sought by the husband.
b)Whether S Pty Ltd should be valued at $625,000.00 as sought by the wife (being the average between the effectively unchallenged value of $600,000.00 and $650,000.00 determined by a single expert, Mr O or $650,000.00 being the top of that value as sought by the husband.
c)In relation to the transfer of B3 property by the wife to the parties’ eldest son, whether that transfer ought to be treated as a premature distribution of property and if so, what value should be attributed to that distribution. In that respect the husband seeks an add back of the value of that property, he does not seek to disturb the son’s ownership of the property.
d)The extent of the liabilities of the Family Trust including credit card liabilities.
e)Contribution by the husband since separation including the wife’s contributions in running S Pty Ltd from separation, her general role in being the principal homemaker and carer of the children during the marriage and in particular her role in that regard since separation in 2002.
f)The wife’s assertion that there ought to be an adjustment in respect of future needs as she has the future care of the children. Two of whom are over the age of 18 years and earning income and one of whom is in his final year of secondary school and who will attain the age of 18 years in July 2008 and who is also in receipt of a modest income.
g)There is an issue as to whether the wife’s American Express and ANZ MasterCard liabilities amounting to $19,000.00 and $18,000.00 respectively ought to be allowed or not allowed. Similarly there was an issue about an ANZ loan of $11,000.00.
h)There is also an issue about car loans in respect of cars provided to the children, K and E.
i)Finally there is an issue about add backs in respect of costs.
In these reasons any statement of fact should be regarded as a finding of fact unless the contrary is clear from the context of the statement.

BACKGROUND

The husband and wife are both aged 49. The husband contends that the parties commenced cohabitation in 1980, the wife contends they commenced cohabitation when they married in February 1981. There is no need to make a determination in relation to this date as it is not significant in terms of the parties’ contributions.
The parties separated in February 2002 (this was a finding made at the time of the order for divorce) and their marriage was subsequently dissolved.
There are three children of the marriage, M aged 22, K aged 19 and E aged 17 (E turns 18 in July 2008) and he is currently in Year 12 in secondary school.
These proceedings were commenced in December 2004.

CREDIT OF WITNESSES

The husband gave evidence in accordance with his affidavit sworn the 30 May 2007 and filed 7 June 2007 (“the husband’s affidavit”) and in accordance with his financial statement sworn and filed the 28 February 2008.
The husband relies upon accountants and book-keepers to provide information to him although he makes his own business decisions in relation to what properties to buy and how to operate his business in a general sense. His evidence was coloured by his own views and there is some lack of objectivity in that regard. Generally, however, I accept the evidence of the husband.
The husband had no clear recollection of some financial transactions over the period of his marriage, which is understandable. He gave credit to the wife in terms of her contributions. I have some concerns about the extent of his asserted involvement in the role as homemaker and parent. I do not accept it was as extensive as the husband asserts nor that it was as limited as the wife asserts. I accept the husband’s evidence that he looked after the children when the wife was away on business and that the wife looked after the children when the husband was away on business. I find that the wife undertook far greater levels of the homemaking and parenting roles to that of the husband.
In 1993 the husband was involved in an incident whilst at work[1] and as a consequence the parties set up a business manufacturing workplace safety equipment. The company S Pty Ltd was set up and has been and remains successful. Each of the parties contributed in their own way to the growth and development of that company. The wife was the general manager of the company and won a number of awards in respect of the products and the company. I do not accept her evidence that she was the principal driver of the company. I accept the evidence of the husband that he assisted (albeit not to the extent that he asserted and particularly in little or no way since separation) and that the wife has been assisted by good staff.
[1] Paragraph 31 of husband’s affidavit.
That company was also successful because capital was able to be used from the husband’s business to fund its development. The wife undertook significant work towards the accreditation of the safety equipment as did the husband.
There was argument about the financial support provided by the husband to the children. I am satisfied that both parties had available to them significant income from separation. The husband provided support to the children by way of school fees, medical insurance, cash payments and assistance in other ways such as support of bike riding, motor cars (either through S Pty Ltd in respect of M and directly in respect of E). The husband made significant direct and indirect contribution to K’s equestrian activities.
The wife asserted the husband was in a de facto relationship with JW with whom the husband conceded he had a romantic relationship since November 2002. I accept the evidence of the husband that he spends on average one night a week with JW. This is sometimes three nights or four nights in one week, sometimes they travel together and other times there would be weeks when they do not spend time together. I find that the husband is not living with JW but shares a romantic association with her.
The wife gave evidence in accordance with her affidavit sworn the 13 June 2007 and filed the 14 June 2007 (“the wife’s affidavit”). She was not an impressive witness, she avoided answers and questions and often answered questions with questions. Her evidence was with regard to the use of the truck and horse float was not believable and I do not accept it. The truck and float were purchased with the primary reason of facilitating the equestrian opportunities for K. The wife’s description of the family swimming pool as a test tank for fishing equipment was just unbelievable.
When confronted with difficult questions the wife claimed poor memory. An example of this was in relation to questioning about the transfer of the property at B3.
In her affidavit[2] the wife said:-
“27. The development of the business, [S Pty Ltd], was self-funded by the income and profit that it generated. If it needed extra capital from [N Pty Ltd] it was recorded in the fishing income accounts of the trust”.
[2] paragraph 27.
She was cross-examined as to the assistance provided by the fishing business to S Pty Ltd and conceded that the following loans were made to assist the business to get up and running:-
1995        $30,000.00
1996        $18,000.00
1997        $7,000.00
1998        $9,000.00
2000        $116,000.00
2001        $48,000.00
2002        $100,000.00

The wife confirmed the material set out in paragraph 17 of the affidavit of Mr W sworn the 26 September 2006 and filed the 7 June 2007.
The wife often avoided answering questions. She was anxious to put her own case and to answer questions which were not responsive. On one occasion during the course of her cross-examination it was necessary for me to warn her about her prevarication. This seemed to make little difference in her approach in giving evidence.
In the wife’s financial statement sworn the 20 February 2008 and filed the 21 February 2008 the wife did not disclose her interest in GP Pty Ltd nor did she disclose her interest in the companies she had set up in New Zealand and in the United Kingdom. I find that the wife had failed to make full and frank disclosure of these companies. Further, I find that the wife did not make discovery of all of the records of GP Pty Ltd.
As such I generally prefer the evidence of the husband to that of the wife, unless her evidence is supported by objective material.
The principles to apply
The Full Court in Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) [(2003) FLC 93-143] at 78,386, reiterated the preferred approach to the exercise of discretion in property matters, pursuant to s 79:
“39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79 (4) (a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79 (4) (d), (e), (f) and (g), (“the other factors”) including, because of s.79 (4) (e), the matters referred to in s.75 (2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
40. Section 79, unlike s.78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. As a consequence of the first step in the preferred approach to the determination of the s.79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Tate v Tate (2000) FLC 93-047.”
Thus the approach in this case involves a number of steps:-
a)The identification of the property and its value;
b)An evaluation of the parties’ contributions having regards to
ss 79(4)(a)(b) & (c);
c)Consideration of any adjustment to that assessment having regard to the relevant matters in ss. 79(d),(e),(f) & (g) (“the other factors”) including the matters referred to in s.75(2); and
d)Consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case

IDENTIFICATION OF PROPERTY

At the commencement of trial I raised with counsel whether there ought to be two lists, one for the superannuation property and the other for the non-superannuation property. It was the submission of both parties that the property should be contained in one list, I have adopted that course.
The property of the parties is;-

Owned by Value

Ten fishing units (“the fishing units”) at $180,000.00 per unit – agreed value Husband on behalf of N Pty Ltd as trustee to the Rory Family Trust (“the Family Trust”)                    $1,800,000.00

One Tasmanian Diving entitlement
(“the diving entitlement”) – agreed value. N Pty Ltd as trustee for the Family Trust   $180,000.00

Boats, motor vehicle & equipment N P/L as trustee for the family trust   $22,000.00

S Pty Ltd The shares are owned jointly   $625,000.00

V1 property (agreed equity) Husband   $33,000.00

V2 property – agreed value   $10,000.00

M2 property – agreed value Husband   $420,000.00

M1 property – agreed value Jointly by husband and wife   $830,000.00

N Superannuation Fund – agreed value Jointly   $373,939.00

D property – agreed value Husband   $50,000.00

Properties at B – agreed value Wife has 1/6 share in part of this property   $281,192.00

Husband’s shares in Telstra   $1,800.00

Wife’ shares in Telstra   $1,800.00

6000 units in the Rory Property Trust – agreed value N P/L as trustee for the Family Trust   $5,227.00

Husband’s Colonial and AXA Superannuation entitlements – agreed value. Husband   $18,270.00

Wife’s superannuation – agreed value Wife   $16,200.00

Claim by husband for add-back of B3 property Wife   $150,000.00

Husband’s equity in property at T – agreed value Husband   $70,000.00

Husband’s interest in property at H – agreed value Husband   $24,000.00

TOTAL   $4,912,428.00
Liabilities:

Debt of N Pty Ltd on behalf of the family trust:-
  $386,825.00

Amount owed to N Pty Ltd to S Pty Ltd – agreed value   $75,000.00

Wife’s ANZ loan   $11,000.00

Wife’s American Express   $19,000.00

Wife’s ANZ Mastercard   $18,000.00

Loan for car for E   $13,000.00

TOTAL   $522,825.00

The net assets of the parties are $4,389,603.00.
The parties operated a fishing business with licenses and this was conducted through N Pty Ltd as trustee for the Rory Family Trust (“the Family Trust”).
This structure was used to run the fishing business and to acquire and dispose of property throughout the marriage and still continues to hold property.
The parties commenced fishing in about 1988 and have acquired licences and entitlements to fish since that time. Fishing licences and fishing entitlements may only be owned by an individual. The husband owns ten (10) fishing licences and one (1) Tasmanian diving entitlement. It is not in issue that he holds those licences on trust for the Family Trust. The agreed value of the fishing units is $180,000.00 each making a total value of $1,880,000.00. The diving unit has an agreed value of $180,000.00.
The issue with these fishing units is that the husband wishes to retain nine (9) of them and transfer one (1) unit (with the 2008 fish quota intact) to the wife. The wife seeks an order that five (5) of these units are transferred to her to make up her claim for 60 per cent of the net property of the parties.
Having regard to my determination to divide the property equally and the other findings in these proceedings, I intend to adopt the approach submitted on behalf of the husband, that is, to transfer one (1) fishing unit (with fish) to the wife and leave the balance of the nine (9) fishing units and diving entitlement with the husband. This will mean that the wife will have the assets and business of S Pty Ltd and the asset and income from one fishing unit. Both parties will have a good income source from their respective assets.
The wife initially sought an allowance for the liability for $46,000.00 for a loan on her VW vehicle. During the course of the proceedings the wife gave some evidence as to value, although what weight to be attached to it was problematic. Through their respective counsel both parties agreed that the VW and the Capital Loan should be set off against each other giving rise to a “nil” value. I will adopt that course.
The trust owns boats, motor vehicles and equipment and there is an issue as to whether the value of that material is $15,829.00 (as contended by the husband) or $28,343.00 (as contended by the wife). Through their respective counsel both parties agreed that the value should be $22,000.00. I will adopt that course
Once the issue of the division of the fishing units is determined, and in that regard I have determined, on the evidence, that the husband should retain nine (9) of those units and transfer one (1) unit (with fish) to the wife. There is no issue that the remaining assets of the trust should be owned by the husband or controlled by him through the Family Trust.
There was an issue in relation to an intercompany loan. It is not in dispute that N Pty Ltd, as trustee for the Family Trust owes $75,000.00 to S Pty Ltd. S Pty Ltd will be retained by the wife. The wife asserted that the debt ought to be ignored as it was a debt in S Pty Ltd and a liability in N Pty Ltd. Consequence of this however may have been that the wife would have needed to have written off that debt and it may have been deemed to be income in her hands.
Mr Dixon, counsel for the husband, submitted that the liability should be left as a liability of N Pty Ltd (and consequentially a liability for the husband) and that the assets should remain an asset of the wife and further that an order ought to be made that the husband cause N Pty Ltd, as trustee to the Family Trust, to pay to S Pty Ltd the sum of $75,000.00, therefore extinguishing the debt. That seems a sound way to deal with that issue. I will leave $75,000.00 as a liability of N Pty Ltd and consequently the husband in the final balance and I will treat the $75,000.00 as an asset of S Pty Ltd, and consequently an asset of the wife in the final balance between the parties. The evidence of the single expert Mr O was that the $75,000.00 was included in his valuation of S Pty Ltd.
Mr W gave evidence in his affidavit (which evidence was not seriously challenged). Included in that evidence was the background of the company T Pty Ltd (“the company”) as set out in paragraph 4 of his affidavit.
On the evidence before me the company is controlled by the wife and the shareholding in the company remains equal. I am informed by both counsel that this is not an issue to which I need to deal and the parties have resolved all issues with regard to that company. Accordingly I infer that the company has no assets or liabilities which would impact on the determinations I am required to make in these proceedings.
In the early 1990’s the parties commenced a business manufacturing and selling workplace safety equipment. Initially this business was operated jointly by the parties through T Pty Ltd in its various names and forms. The business was transferred to S Pty Ltd. The wife is the Managing Director of S Pty Ltd and its primary business related to safety clothing and other related products.
Details of the business are set out in the 2005 and 2006 valuations of S Pty Ltd by Mr O annexed to his affidavit filed the 21 August 2007. Mr O was appointed the joint valuer of S Pty Ltd. Having regard to the updated valuation dated November / December 2007[3]. There is no issue that the value of S Pty Ltd is between $600,000.00 and $650,000.00 (if the loan to N Pty Ltd is treated as an asset).
[3]Exhibit H6.
Having regard to the evidence of Mr O and of Mr W I am satisfied, as I indicated earlier, that the $75,000.00 ought to be treated as an asset of S Pty Ltd and a liability of N Pty Ltd. The evidence of Mr O is that the business has the capacity to grow but that its structure is hampered by the intermingling of family needs and concerns with the corporate approach.
Some of those issues included the construction of a home swimming pool and defining it as a test tank and the use of S Pty Ltd to fund a truck and horse float to be used by K in her equestrian activities. There is also an issue with regard to the business of S Pty Ltd in the production of equestrian wear. Mr O observes that the safety clothing and related products account for 99% of the sales and equestrian wear average .08% of sales over a three year period. He went on to observe:-
“Our limited examination of the 2005 equestrian operation showed that estimated gross profit in 2005 was $2,000.00 and related equestrian and family interest total of $91,000.00.
In 2004 estimated gross profit for equestrian operation was $6,000.00 and related expenses $48,000.00.
In addition, some of the expenses were not commercially related but rather reflect the interests of family members.
For the purpose of our valuation, we have excluded equestrian wear income, related expenses and family interest expenses”.[4]
[4] Annexure “B” of the affidavit of Mr O sworn on the 17 August 2008.
I accept that as an appropriate approach and I note and accept that the evidence of
Mr O that the equestrian side of the business is primarily of a family nature
Like any business there are entrepreneurial risks. There is a risk that it could lose business, equally there is a risk that there could be an increase in business. Having regard to all of the evidence of the single expert I determine the net value of S Pty Ltd of $625,000.00 being the average of the range between two ends of the valuations provided by Mr O.
It is agreed between the parties that the husband’s interest in S Pty Ltd should be transferred to the wife and I will do so, crediting the value of the company to her.
The husband owns V1 property which is a shack. It has an agreed value of $33,000.00 and both counsel submit that the property, which is owned by the husband, should remain his property and the value should be attributed to him at that agreed sum. I will adopt that course.
The husband presently lives at a property, M2 property, which is in the joint names of the parties. The value of that property is agreed at $420,000.00 and both parties contend it should be transferred to the husband. I will adopt that course.
The wife lives in the former matrimonial home at M1 property which has an agreed valuation of $830,000.00. That property is jointly owned by the parties and both parties contend it should be transferred to the wife. I will adopt that course.
The parties each have accumulation entitlements in the N Superannuation Fund. The principal assets of that fund are units in the Rory Property Trust. The Rory Property Trust is a unit trust of which N Pty Ltd is the trustee. As trustee for the Property Trust, N Pty Ltd owns property at G which has an agreed value of $528,231.00 and a liability of $149,065.00. The net value of the assets of the Rory Property Trust is therefore $379,166.00. Of that sum units to the value of $5,277.00 are owned by N Pty Ltd as trustee for the Family Trust (and by agreement those units are to be transferred to the wife, which approach I will adopt) and the balance of $373,939.00 is held by N Pty Ltd as trustee for the N Superannuation Fund.
At the request of both parties I will be making a splitting order splitting the whole of the husband’s share in the N Superannuation Fund to the wife. Also by consent I will be making an order that the wife indemnify the husband in relation to the liabilities in respect of the G property.
It is intended by both parties and I should make orders that N Pty Ltd retire as trustee of the Property Trust and that a trustee will be appointed as nominated by the wife. Any power of appointment in respect of the Property Trust will be amended to provide that such power is to be determined by the wife.
I am satisfied there has been procedural fairness shown to the trustees as the trustee N Pty Ltd and both parties are aware of the orders sought and I infer that N Pty Ltd is aware of the orders sought.
N Pty Ltd (which will under the orders proposed by the parties be transferred to the husband) is trustee of the N Superannuation Fund. At the request of both parties I will make orders enabling the retirement of N Pty Ltd as trustee of the N Superannuation Fund and enabling another trustee put in place, as determined by the wife. Counsel for the parties agreed that the property should be contained in one list. That is an appropriate way to deal with the superannuation bearing in mind the size of this pool of assets.
The husband has an interest in property at D which has an agreed value of $50,000.00. Both parties submit that the property is in the husband’s name and ought to be transferred to the husband. I will adopt that course.
The parties have an interest at properties at B, which have an agreed net value of $281,192.00. The wife has a one sixth share in part of those properties. It is agreed that the wife will transfer her share in those properties to the husband and the husband will take those properties subject to the mortgage and liability in respect of them, giving him a net asset of $281,192.00.
The wife seeks an allowance in respect of a sum of $11,000.00 described as the ANZ loan. The evidence of the wife was that she borrowed money for personal expenses including carpet, equestrian needs for K and motor bikes for E. She has paid this loan over the years and reduced it by $13,000.00 from the insurance she received in respect of a motor car which was written off by an insurance company, which car was at the time driven by E.
The wife has also incurred credit card debts of a personal nature of $19,000.00 with American Express and $18,000.00 with MasterCard.
Having regard to the living expenses of the parties and the approach adopted with the husband I intend to accept all three of these loans as liabilities of the wife incurred during the course of the separation.
The evidence with regard to E’s car was that the parties each contributed $7,500.00 to the acquisition of a motor car for E in 2007. This car was sourced by the husband and was used by E. Unfortunately the car was written off by E in a car accident shortly after its acquisition.
The evidence of the wife was that after the car was written off, a claim was made on the insurance and she received about $13,000.00 which was then paid against the ANZ loan, referred to earlier, reducing it to about $11,000.00. The wife then acquired a new car for E for a cost of about $22,000.00 and borrowed $20,000.00 for this car.
I have determined that the wife’s spending from that ANZ loan account was in the ordinary course of that expenditure for her and for the children, the impact of the $13,000.00 was to reduce that liability which would have otherwise been $24,000.00.
The decision to buy this second car at a rate above the amount received from the insurance was a determination by the wife and then to give the additional $9,000.00 car away to E was, in my view, a premature distribution of part of the parties’ property. The wife in essence seeks $7,000.00 of that sum.
I say this because in fairness to the wife she used the residue of the ‘gift’ of $13,000.00 made by the parties to reduce her liabilities by $13,000.00 and as I have said earlier I regard the ANZ loan of $11,000.00 as a liability to be allowed and I would have allowed $24,000.00 on the evidence before me. Thus the wife has in effect transferred $13,000.00 from one liability to another. As such I will allow the car loan in respect of E’s car to the extent of $13,000.00.
The provision of cars as gifts for E and K, post separation and for the wife to exclude the car but seek the liability (being the part liability in respect of E’s car of $7,000.00) seems to me to fall into the premature distribution of assets by the wife. As such I will not allow $7,000.00 of E’s car loan and the whole of the loan in respect to K.

The parties both own shares in Telstra which are identical in number. The parties each propose to retain their respective shares. I will adopt that course.
The husband has cumulative entitlements to the Colonial and AXA superannuation funds totalling $18,270.00 which both parties agree ought to be retained by him, and I will make a declaration in that respect.
The wife has entitlements under the S Pty Ltd Super Fund of $16,194.00. It is intended by both parties that this remains with the wife.
In September 2003 D property was purchased by the husband for $150,000.00. He borrowed $125,000.00 to purchase that property. The agreed value of that property is $170,000.00 and the amount outstanding under the mortgage is $120,000.00 (being the balance of the loan of $125,000.00 less repayments since that time). The equity in that property is $50,000.00.
The husband was cross-examined as to that loan and that purchase. Tendered in evidence was the loan approval[5]. I accept his evidence in relation to the funding of that property. The net value is agreed and I will adopt the submissions of both parties counsel that this property be transferred to the husband.
[5] Exhibit W5.
The husband gave evidence in relation to a property development at B3 property. The property was purchased in about 2001 by the husband, the wife and a number of other partners. This was a development site and the property was developed and sub-divided. Each of the partners was to receive a block of land from the subdivision.
In relation to this sub-division the husband sets out his version of the events at paragraphs 63, 64, 65, 66, 67, 68, 69, 80, 82, 83 and 84 of his affidavit. The wife sets out her version of events with regard to this development in paragraph 43 of her affidavit where she says:-
“[M] [a child of the parties] is in the process of beginning to build his own home on the block of land I gifted him on his eighteenth birthday, the cost of the land to me was $20,000.00. Each of the six shareholders received a block of the sub-division of the [B3] property and it was this block I gave to [M]. It was very clear to all partners that my wish was for [M] to have my block, however, [the husband] has had the land valued and re-valued and insists that it included in my side of the settlement the value of $150,000.00. He does not recognise the gift to [M]. This is consistent with his attitude to parenting over the years. I do not see the point in making a profit on the sale of land to our own son”.
The sub-division of B3 property led to each of the parties receiving a block of land. I accept the evidence of the husband that he and the wife each received $24,688.00 from the development and each apparently used that money to pay tax. The husband’s further evidence was that he sold his block of land at B3 and received $92,327.84 which he paid out a loan to the ANZ Bank which I accept was a liability incurred by the parties during the course of the marriage. The husband also acquired a property at D the net value of which is included in the pool of assets.
The wife on the other hand transferred her block of land at B3 to the parties’ son M. There was an issue as to whether the husband knew of this transfer before it occurred or whether he was informed after it occurred. It is clear that the husband objected to this premature distribution of the family’s property and I prefer his evidence that he found out after the transfer took place. The husband is not seeking the return of the land from M, he seeks to have its value included in the pool of assets as an asset of the wife.
There was evidence provided as to the value of B3 property. The history from the correspondence[6] shows that in about October 2004 the wife sought the transfer of B3 property to her. There was no indication in that correspondence that the wife wished to transfer the property to M. The wife said in correspondence between solicitors that the transfer to her had been the subject of discussions between herself and the husband and the other partners prior to this time.
[6] Exhibits H7, H8, H9, H10, H11, H12 and H13.
The other partners were not called to give evidence in respect of that issue and I infer that their evidence would not have assisted the wife. There was an agreement that upon the property being transferred to the wife it would be taken into account at an agreed or otherwise determined valuation. The wife now seeks to resile from that agreement.
By letter dated 4 October 2004 the solicitors for the husband confirmed that they held a signed transfer in relation to the blocks of land to which the wife claimed she was entitled[7]. In that letter the solicitors for the husband said the husband was prepared to forward the transfer to the wife subject to the following:-
[7] Exhibit H8.
“1.That the block of land was taken into account in any property settlement; and
2.That the block of land is agreed at $120,000.00 or in the event their value is not agreed then such value as is nominated by an independent valuer to be appointed immediately”
A letter was sent by the wife’s solicitors to the husband’s solicitors dated the 7 October 2004[8]. I find that letter was sent on instructions from the wife and in that letter the following statement was made:-
“As the transfer relating to the land at [B3], [the wife] informs me it was it was decided long ago at a meeting of the six (6) shareholders that those lots of land would be transferred into the sole name of [the wife] and your client. ….
With respect, it goes without saying that each of the blocks transferred into our client’s names will be taken into account in the final property adjustment”.
[8] Exhibit H7.
The solicitors for the husband replied to that letter on the 7 October 2004[9]:
“I acknowledge receipt of your correspondence dated 7 October.
The proposition is simple and as soon as we have your reply the Transfer will be handed to your client:-
1.Confirmation that your client acknowledges the transfer of land at [B3] as being part of the property settlement.
2.That if your client does not accept the value of $120,000.00 that it be agreed immediately that the property be independently valued by a valuer agreed upon by the parties with the cost to be shared equally and that that valuation be obtained forthwith.
[9] Exhibit H9.
Upon confirmation of the above, the Transfer will be made available to your client”.
An email was sent by the wife’s solicitors to the husband’s solicitors on the 8 October 2004[10], I find that email was sent on instructions.
[10] Exhibit H10.
That email set out:-
“I refer to your letter dated 7 October 2004.
I still think that we are in heated agreement but, for your purposes, confirm that:-
1.The block at [B3] will form part of [the wife’s] settlement;
2.The block can be valued forthwith on a shared costs basis. ….”

What is clear is that it was intended that this block of land form part of the pool of assets. It was a sensible approach at that time and remains so.
The wife had a choice as to whether she wanted the land valued by a jointly appointed valuer or accept the husbands’ value of $120,000.00. This all occurred in about October 2004. In a letter forwarded to the husband’s solicitors by the wife’s solicitors dated 5 July 2006[11], the husband was informed:-
“6.[the wife] no longer owns the property at [B3]. It is also noted that your client has liquidated his interest in the [AS Business]”.
[11] Exhibit H12.
As a result of that letter enquiries were made of the wife’s solicitors and by letter dated the 19 August 2005[12] from the wife’s solicitors to the husband’s solicitors the husband was informed that the B3 property was transferred to the parties’ son M for $20,000.00. On the 22 September 2005 a copy of the contract of sale[13] of the property to M was provided. That contract was dated the 16 February 2005 and the transfer was completed on the same day.
[12] Exhibit H13.
[13] Exhibit H11.
The wife had obtained a valuation of this property (presumably for financing and/or stamp duty purposes) in March 2005. At that time the property was valued at $130,000.00.
The wife did not provide a copy of this valuation to the husband and she was aware that the husband had suggested an agreed valuation of $120,000.00. The wife neither provided the valuation to the husband, nor did she, on the evidence before me, endeavour to accept his offer of $120,000.00. As a consequence parties went ahead and appointed an independent valuer to value the property for the purpose of determining its worth in these proceedings.
The property was valued at $150,000.00. The wife agreed to the course, determined the course and I see no reason why the property should not be added back in accordance with the parties agreement and that the amount added back ought to be $150,000.00
There is no issue that the land was valued in October 2005 for $150,000.00 and then again as vacant land in October 2006 for $150,000.00.
As I considered in Steele & Stanley [2008] FamCA 83 the law with regard to premature distribution of assets is set out in Omacini and Omacini[14] the Full Court reviewed authorities in respect of wastage and add-backs, the Full Court said;
[14] (2005) FLC 93-218 and (2005) 33 Fam LR 134.
“30. To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC ¶ 92-816 the Full Court said at 85,262:
``11.6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought to be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought to normally be spelt out.''
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC ¶ 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
``In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which [79618] would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.''
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC ¶ 91-092 at 76,644:
``As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(o) to applications for settlement of property instituted under the provisions of sec 79.''
31. As the Full Court said in Browne v Green (1999) FLC ¶92-873 at 86,360:
``44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction — a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction.''

In Chorn and Hopkins (2004) FLC 93-204 the husband bought his new partner an engagement ring eight months after separation. It was not purchased with funds the husband had at separation, it was purchased on credit and there was vague evidence that his partner may have contributed to the purchase. The Full Court quoted favourably from para 2.11 of Marker and Marker [1998] FamCA 42, 1 May 1998, per Baker, Kay and Chisholm JJ:
"There seems to be no appropriate basis for notionally adding back monies that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support."
It also quoted favourably from para 346 of C and C [1998] FamCA 143, 8 October 1998 per Nicholson CJ, Chris and Kay JJ:
"Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with property getting on with their lives."
In Omacini and Omacini (2005) FLC ¶93-218 the Full Court found that the trial judge had incorporated a number of add-backs without making any specific finding that the expenditure of the husband was wanton or reckless. To justify an add-back, it was necessary to make some assessment of the reasonableness of the husband's expenditures. This had not occurred.
In Townsend and Townsend (1995) FLC ¶92-569 the husband after separation sold a taxi licence. He spent much of the proceeds for his own benefit. Nicholson CJ said at p 81,654:
"In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly."
The question is whether this was in fact a premature distribution of a proportion of the matrimonial assets. It is clear that the gift of this property to M was at least opposed by the husband or more likely not known to him.
It was argued on behalf of the wife that the gift was consistent with the approach adopted by the parties with regard to the generosity with regard to their children. I accept that the parties have in the past been generous to their children but a gift of an asset this size ought to have been the subject of some discussion and agreement between the parties.
It would be unjust in this case to simply treat the gift of this property by the wife to M as a matter to which I should have regard under s75(2) bearing in mind the husband seeks no such adjustment and in any event in the context of the facts of this case there would be unlikely to be any significant adjustment. The husband applied his share of the proceeds of sale of the B3 land in reduction of loans and the acquisition of another property (which I note has increased in value). I see no reason why this property ought not be treated as a premature distribution of property and added back as property of the wife.
The husband has an interest in the property at V1 which is owned by the husband and it is intended by both parties that he retains that property. The agreed equity in that property is $10,000.00. I will adopt that course.
Two of the properties included in the pool of assets are an interest in T which is used by the husband’s mother, who has a life tenancy in that property and the husband also has an interest in the property arising out of the death of his late father.
The evidence of the husband’s brother was that all of the outgoings on that property have been paid by the husband’s mother. That evidence was not challenged.
The husband has an interest in property at H which was purchased by his father in July 1986. That property was registered in the name of the husband and his siblings and since 1987 each of the siblings has paid about $250.00 a year towards the maintenance of that property. The property is holiday accommodation. Both these properties included in the pool of assets and are contributions made by the husband to the pool of assets.
The agreed value of those properties is $70,000.00 and $24,000.00 respectively. There is no issue that the properties should remain in the ownership of the husband, and I will make orders to that effect.
There are liabilities claimed by the husband in respect of the N Trust totalling $394,447.00. This is made up by:-

ANZ Qantas Telstra visa card

  $8,290.00

ANZ Qantas Telstra visa business card

  $17,126.00

Citibank credit card

  $21,148.00

Creditors

  $5,655.00

PAYG payable

  $2,775.00

GST credit

  -$177.00

Loan by Mr KY

  $846.00

Business loan

  $299,423.00

Loan from Mr BL

  $8,356.00

Loan F Company

  $23,112.00

ANZ cheque account

  $473.00

Debtors (credit)

  -$202.00

Net liabilities

  $386,825.00

In relation to the ANZ Telstra visa card, part of the documentation in respect of that was tendered in evidence[15]. The husband conceded that the vast amount of that debt arose by way of personal expenditure. He conceded that all but $500.00 ought to be treated as personal expenditure. I accept his evidence in that regard.
[15] Exhibit W1.
However, the husband was spending money in accordance with the arrangements that were in place and, as I understand the evidence, those amounts were credited to him as his use of his loan account in the Family Trust. Having regard to the approach adopted by me in respect of the wife I intend to allow the whole of this amount. Having regard to this approach I also find that it was reasonable for the husband to expend that money it makes no difference whether it is left as a N Pty Ltd liability or a husband’s liability as they are one in the same.

Evidence was given in relation to the Telstra credit card[16]. The husband’s evidence was that significant cash advances and some school fees were paid from that credit card. The cash advances were to assist the husband in terms of running the business after the wife declined to distribute monies from the fishing business through the trust. I accept the husband’s evidence in that regard and I find that that credit card is a liability of the business and I accept that the personal expenditure would have been debited to drawings against the husband.
[16] Exhibit W2.
Similarly with Citibank credit card of $21,148.00 I make findings that it was acquired either for the business or in running it in difficult cash flow circumstances or for payment of part of the school fees for one of the children. I likewise leave that liability as a liability against the husband.
There was no issue about the liability of the creditors of $5,655.00 the evidence of the accountant was that this liability was primarily accounting fees.
The business loan of $299,423.00 was an agreed amount.
I did not accept the superannuation liability as if I had done so it would have then created an asset of the husband in the same amount.
The loans to Mr KY, Mr BL and F Company were the subject of evidence of the husband which I accept. I also accept they are appropriate liabilities of the trust as against the assets of the trust which is the equitable interest in the fishing units and diving unit.
Accordingly, I determine the net liabilities of N Pty Ltd at $386,825.00.
I raised with counsel for both parties a number of issues during the trial. The first was in relation to the husband’s claim about a Myrtle dresser and Huon pine desk. By agreement those items are to be transferred to the husband and made available to him. I also raised the question as to whether I ought to make an order transferring to the husband the loan accounts of the wife, M, K and E in N Pty Ltd as trustee for the Family Trust, In addition whether the husband should indemnify the wife and the children in relation to those loan accounts. Counsel for the husband agreed that was a course I should take.
There was an argument with regard to add-backs in respect of legal fees. The husband’s legal fees paid to Murdoch Clarke as at the commencement of trial totalled $55,000.00 and that the total costs after a four to five day trial would amount to about $115,000.00[17]. In addition Mr Clarke’s evidence was that he had been paid $10,000.00 in fees associated with providing evidence for the trial and incurred expenses of the wife of $10,000.00 meaning the total costs of the husband would be about $135,000.00.
[17] Exhibit H2.
The wife provided material to the Court showing that her paid and unpaid costs up to the trial were about $100,000.00 and that the cost of the trial to her would be about $12,500.00 making a total of $112,500.00. The husband’s case opened on the basis that there ought to be an add-back of legal costs. No submissions were made in this regard by the husband at the conclusion of trial and it was a submission on behalf of the wife that there ought not to be an add-back of legal costs. Exercising that wide discretion I have and having regard to the approach set out in Chorn & Hopkins (referred to above).
The husband did not argue for an add back at the end of the hearing and it was unclear whether he was pressing that aspect of his case. In any event I determine there ought not to be any add-back in relation to legal costs.
CONTRIBUTIONS
The parties lived together from 1980/1981 until February 2002. This was a marriage of about 21 years. Both parties worked hard in their own ways to the acquisition and conservation of property. At the commencement of the relationship the husband had an interest in a business which he operated until the late 1980’s. I accept his evidence that in 1988 he sold his interest in that company and received about $15,000.00 and retained a Holden motor vehicle, a Toyota Corona and some equipment.
After that time the parties arranged to purchase fishing licences and to work in that business from 1988 until December 2004 when, as a consequence of health difficulties, the husband ceased fishing. As a result of obtaining that fishing business the parties have earned significant income throughout the course of their marriage and to date. I accept the evidence of the husband set out in paragraph 19 of the husband’s affidavit filed 7 June 2007.
There was an issue between the parties as to the value of their contributions towards the creation of the S Pty Ltd business. The wife asserts that her contribution was greater than the husband and the husband asserts that his contribution was equal to that of the wife.
The genesis of the S Pty Ltd business arose out of a near tragedy in April 1993 when there was a workplace accident. Each of the husband and wife claim credit for the development of the business subsequent to that time.
It is clear that the wife was the “face” of S Pty Ltd and was involved in its day to day operations. I accept the wife’s evidence that she received a number of awards for the development of the business and its products.
The business needed financial support and I find that the fishing business provided support at the commencement of the S Pty Ltd business and in its earlier years until it became self-sufficient.
The wife provided much of the documentation including the safety certification for the safety equipment sold by the business. The husband provided assistance in his own way including discussions with suppliers, fitting out areas for work and cutting out clothing at night. He was an assiduous promoter of the S Pty Ltd product at boating shows. I accept his evidence that he was a very regular attendee at such shows, as was the wife. I find that the husband made a significant contribution to the development and running of the S Pty Ltd business until 2002.
I find that the wife has exaggerated her involvement, vis-à-vis the husband in terms of the development of that business and his tried to diminish the role of the husband.
There was an issue about the number of boat shows the husband attended. I prefer the husband’s evidence in that regard to that of the wife.
Evidence was given by a former employee, Mr MD, in relation to the wife’s involvement with the business between 1999 and 2003. Whilst some care needs to be taken with his evidence as he was critised in terms of his employment with S Pty Ltd, I accept that evidence in so far that it sets out the husband’s contributions. I accept his evidence that the wife was not always at the office of S Pty Ltd but I am satisfied that the wife worked outside the office from time to time.
The wife asserts that she has managed the business well since separation in 2002. I do not accept the full import of her evidence in that regard. The business has been managed but it appears to have been used as a funding source for very high expenditure on the equestrian activities of K and the lifestyles of the wife and the three children. I repeat the comments made earlier in these reasons in respect of the intermingling of the business and family matters in respect of S Pty Ltd. The purchase of a truck is an example of the careless use of language and assertions of fact by the wife.
In her affidavit she asserted the trust was purchased for deliveries. In paragraph 80 she says:-
“The Hino truck I purchased for $70,000.00 in the business is also repeatedly challenged. I purchased the truck to enable us to quickly move freight in and out of Melbourne overnight rather than waiting for periods of up to 21 days for raw materials, and to more efficiently deal with the interstate restrictions of hazardous freight. [The husband] has objected to the multi purpose design and use of the truck – it can be used to transport freight as well as horses and includes a living area. [S Pty Ltd] purchased the truck and I took out a personal loan of $80,000.00 for the float section that is permanently attached to the truck. I pay the company a percentage cost for the Hino truck use and personally pay for the float. I am able to maximise the use of the truck with return to [S Pty Ltd] from non-business use, and this has meant that it is an even greater asset. It also offers [S Pty Ltd] continuous advertising with signage giving marvellous promotional value to [S Pty Ltd’s] and [S] Equestrian brand”.
The truck was purchased to facilitate the equestrian activities of K. I do not accept the wife’s assertion that it was acquired for business purposes.
I am satisfied that the contributions to the business of S Pty Ltd were equal up to the time of separation and on balance the contribution of both parties to the various businesses, that is the fishing business, the development of land and the S Pty Ltd business, from separation to hearing, was equal.
Significant amounts were taken out of the expenses of S Pty Ltd to determine its value. The evidence of Mr O was that these expenses fell into two areas, the first being personal expenditure and the second reasonable expenditure of the company. This amounted to approximately $300,000.00 in the 2006 financial year. The single expert was concerned about huge spending on equestrian events, sponsorships, vehicles and salary. The second was where his view was that the expenditure was excessive.
In the 2007 report this expenditure, taken after the purpose of valuing the business, was rounded down to $190,000.00. Mr O said that if the $300,000.00 had not have been spent on family issues and high expenses the profit of S Pty Ltd in 2006 would have increased by the sum of $300,000.00.
Mr O says there could be savings of $100,000.00 in relation to wages paid by the business. He says these savings arise by excluding employees which a purchaser of the business may not require.
When asked why there was a sudden decrease in turnover in 2007 the evidence of
Mr O was that there was a reduction in the sales and that had the management of S Pty Ltd been closer in contact with their customers they would have seen this coming and managed that issue.
The single expert was not told about the wife’s business, GP Pty Ltd despite preparing the reports in early 2007.
Two of the properties included in the pool of assets are the T and H properties which came to the husband through the estate of his father and with little contribution by the parties.
The evidence of the parties accountant, Mr W was that up to the end of the 2002 financial year the distribution of the profits from the fishing licences was determined by agreement between the husband and the wife in the most tax effective way. After that time the wife declined to accept any income from the family trust unless she received money as well. The consequence of that decision (for which I am not critical) was that the husband was required to accept most of the income from the trust for the 2003 financial year onwards with a consequential higher rate of tax. It was necessary for the husband to find monies to fund that tax in the absence of support from the wife.
Mr C, the book-keeper for the Family Trust, gave evidence that the wife received distributions as follows:-
2003$26,824.00
2004$36,423.00
2005$36,190.00
The wife included the distributions for the 2004 and 2005 financial years in her income. The monies the wife received in 2003 were in addition to school fees.
After separation the husband instructed his book-keepers to keep a record of the monies paid by him for the benefit of the children. This has been kept since that time.
The husband and Mr C were cross-examined in relation to his first financial statement claiming that he was paying $1,579.00 per week to the children. Mr C gave evidence that he had provided that information to the husband showing that the husband had paid about $80,000.00 to the wife and children being about $45,000.00 on behalf of the children and about $36,000.00 on behalf of the wife. I accept that there was no failure to disclose by the husband and that his bookkeeper, Mr C has difficulties coming to terms with the Courts form of financial Statement.
The husband and Mr C provided details of the money paid to each of the three children. The husband gave evidence that he believed that a motor bike had been purchased for E. The cost of that motor bike was $3,400.00.
The consequence of these arrangements is that there are loan accounts for the children in the accounts of the Family Trust. The husband’s evidence, although somewhat vague, is that he does not intend to claim these amounts. This judgment is based upon that evidence and orders will be made indemnifying the children in relation to any claim by the husband for the loans allegedly due by them from the Family Trust.
I will be making an order that the husband indemnify the children in relation to those loans. The evidence of Mr W, which I accept, was that those loans can be transferred by the husband to himself without any adverse economic consequences. I will make an order that those loan accounts be transferred to the husband.
The wife claims that the husband has had, to all intents and purposes, all of the income of N Pty Ltd and has not provided support to the children. The evidence of the husband, which I accept, was that the husband has paid school fees for the children, particularly in recent years E and in past years K and M. The husband has maintained health insurance for the children and I accept his evidence that he pays pocket money to E.
The husband has provided for the other needs of the children, including the occupation of the former matrimonial home. The older children have been paid income out of S Pty Ltd over a number of years and in the last financial year E was paid an income out of S Pty Ltd.
The failure of the parties’ marriage in 2002 has had a profound effect on both businesses. In terms of the fishing business, conducted through the family trust, I accept the evidence of Mr C that there was a cash flow problem as a result of the fishing licences being fished out in the first half of 2002 with little income in the second half of 2002.
This combined with the change in the arrangements whereby the wife would not accept a distribution from the trust unless it was provided in direct funds to her, meant that the husband had significant income tax liabilities. In his affidavit Mr C notes that the parties had significant interest payable on debts and their lifestyle did not alter. That has placed the Family Trust business under significant cash flow constraints since separation. With the sale of assets over recent years that has been, in part, ameliorated. The husband applied resources to manage these cash flow problems.
The wife was left to run S Pty Ltd. This business generally had a turnover of about 1.8 million dollars in the 2003, 2004, 2005 and 2007 financial years. In the 2006 financial year it had a turnover of 2.4 million dollars. The wife applied significant resources of that business to family expenses. The consequence of this is that S Pty Ltd had significant cash flow problems. The wife did not take steps to significantly limit the spending for herself or for the children over the years since separation. She has provided motor cars to the children, she has spent significant amounts of money on equestrian events for K, in circumstances where the business needed the cash flow, and there is evidence that the wife travelled overseas with the children, the cost of which could not be reasonably justified in terms of the business of S Pty Ltd.
The wife asserts that she is the driving force of the company and her management skills have enabled the growth of the business and the development of the business. I have earlier in these reasons made comments in this regard.
Evidence was given by Mr O who as a court appointed single expert prepared three reports over the last three years, being a report in November 2005, November 2006 and a report prepared by him in December 2007[18]. Mr O expressed a view that the employed general manager of the business is of great value to the running of the business. Mr O said that the wife was more engaged in product development and marketing. I accept the evidence of Mr MD that the running of the business is primarily conducted through the expertise of the general manager whilst the wife is involved, it is not to the extent asserted by her.
[18] Exhibit H6.
In 2005 the wife had built for her and the use of K, a horse float. I am satisfied that that horse float cost $115,000.00 and that was initially paid out of the assets of S Pty Ltd and a trade in or sale of a smaller horse float. In addition in 2005 the wife bought a Hino truck (upon which to sit the horse float) for $67,000.00. This truck was sold about one year later for $50,603.00 and a new Hino truck was purchased at a cost of $78,300.00. Both purchases were funded by loans from CBFC. The wife asserted that the truck and float were for the use of the business, I have previously said and I repeat, I do not accept her evidence in that regard.
The wife’s accountant, Mr JN, gave evidence in accordance with his affidavit sworn filed 12 November 2007. There was no issue about Mr JN’s qualifications.
In cross-examination Mr JN said that he provided about ten hours service each year to the wife and S Pty Ltd in terms of their tax issues. He said that Mr C dealt with the detail of the finances, I accept his evidence in that regard.
Mr JN had given advice to the wife in relation to the various aspects of the business including the use of the Hino truck, float and the wages paid to the children. His advice was based upon what was acceptable to the Taxation Office rather than a detailed analysis of the truck and float provided to the business and the particular hours that the children worked in the business. I prefer the approach adopted by Mr O.
As a consequence of the wife entering into these transactions there was a loss of about $16,000.00 with regard to the purchase of a Hino truck in 2005 and the sale of the same truck about twelve months later.
The value of the Hino truck and the CBFC liability are included in the value of S Pty Ltd.
As a result of S Pty Ltd having liquidity problems arising out of the purchase of the truck and float, the wife arranged for the parties son M, to borrow $91,000.00 against the security of his property at B3. That loan is a liability of M but was clearly used to fund the float and I accept that it is a liability of the wife which is able to be set off against the value of the horse float.
In terms of N Pty Ltd the husband has applied income of the fishing business to the benefit of the children, payment of debts, payment of tax, ameliorating the cash flow problems and for his own living expenses. I accept his evidence that he paid $100.00 a week approximately to E and about $40.00 per week to K. He pays medical benefits which cover himself, the wife and the children. The wife asserted that the family rate did not change. That may be the case but it was open for the husband to simply take out his own single health insurance at a rate which would be significantly reduced. He did not do so.
The wife caused a company to be registered in February 2007 called GP Pty Ltd. Initially she said that the company was a device to raise funds that she said that she could not raise through S Pty Ltd. The wife did not ask the husband for permission to raise funds for S Pty Ltd which she said she needed, nor is there any evidence of her applying to a bank for such a loan. Mr O was instructed to prepare his final report in early October 2007. That was well after GP Pty Ltd had been incorporate and after GP Pty Ltd had traded. The wife did not provide any detail of GP Pty Ltd or its activities to Mr O.
I do not accept her evidence in that respect.
GP Pty Ltd has traded in the second half of the 2007 calendar year and the details of that trading were not disclosed to the husband until 2008, in breach of the wife’s obligations to make such discovery.

The wife eventually conceded that the assets of GP Pty Ltd were equivalent to its liabilities. The wife had opened a website in respect of GP Pty Ltd and prevaricated in respect of her evidence in regard to this company.
The wife registered S Pty Ltd in New Zealand and the United Kingdom. She did not inform the husband. In relation to S Pty Ltd in the United Kingdom she appointed her eldest son as a director in 2007. She did not discuss the incorporation of these companies with the husband nor did she inform him that these companies existed. As a consequence the husband had no chance to enquire as to the operation of these companies.
The wife owned a motor vehicle at the time of separation and in November 2003 she sold that motor vehicle to S Pty Ltd. She was paid $47,000.00 for that motor vehicle. She did not account to the husband for any part of the proceeds of sale of that motor vehicle.
I find that the wife has received significant capital payments during the course of the marriage including the proceeds of sale of the vehicle of $47,000.00, the proceeds of sale of the horse float of $15,000.00, the benefit of the vacant land at B3, which at the time of transfer to the wife had a value of $150,000.00 plus an interest in equity in the other property sold, vis V, H and C properties which totalled $438,000.00 of which the wife took one half.
Tendered in evidence was a schedule of the monies going into the wife’s household for the 2003, 2004 and 2005 financial years[19]. I accept that evidence as to the income into the household during those years. Whilst the wife had responsibility for the care of the children, both the wife and the children brought in significant income.
[19] H5.
The wife was not particularly concerned about the finances of the parties and as recently as 2007 purchased a new car for herself for about $75,000.00 with a liability of $46,000.00. The parties submitted that I treat the debt on a new car as similar or the same value as the car; I will not disturb that end result.
In recent years the wife had a loan account with the company with S Pty Ltd for $15,000.00. To fund that loan account she gave a “bonus” to each of the three children of $5,000.00 which was paid direct to her loan account reducing the balance to nil. This was a distribution of profit of the business in her favour.
Both parties have worked hard over a long period of time to create a significant pool of assets. The husband brought in the initial contributions by virtue of his business, and I prefer his evidence in that regard. He has brought in two inheritances from his family, namely T (value $70,000.00) and H ($24,000.00) properties. There was no contribution by the parties in respect of these properties except perhaps on one occasion the wife may have mowed some lawns at H property.
From the time of their birth the mother was the primary carer of the children. The husband was involved and still remains involved even up to shortly before the hearing. The children stayed with their mother and the husband had inadequate accommodation. This did not mean he was not involved in their lives. He attended at many of their activities, involved himself in taking E to school and was part of their lives.
I accept that the husband has paid the majority of private school fees since separation and has made gifts to the children. In 2007 he contributed half the costs of the car to E and made income contributions to the wife in 2003, 2004 and 2005. The wife and the children have had the use of the house at M1 since separation and that is a significant contribution. He provided capital in terms of the sale of properties as set out in these reasons, he maintained their MBF.
The wife has been significantly more involved in S Pty Ltd since separation but has treated that company as her personal asset and treated the income of that company as solely hers for her and the children. She has applied hundreds of thousands of dollars for the benefit of herself and the children, not the least of which spending almost $200,000.00 on the provision of a horse float and truck.
I accept and adopt the husband’s submissions in regard to contribution. On the material before me I am satisfied that the post separation contributions of each of the parties were equal. When considering contribution over the whole of the relationship, in the light of the findings of fact, I determine that they were equal.

THE OTHER FACTORS

Having regard to the other factors and in determining what is just and equitable I have had regard to the wife taking almost all of the equity in the Rory Property Trust by way of a superannuation entitlement to which the wife will not have any access until she retires. There was no evidence that she is likely to retire in the immediate or long term future.
I have also had regard to the husband’s interest in the T property being a remainder estate, his mother having life tenancy in that property. The husband does not have access to that asset comprised in that property.
There are no issues about the wife’s health. The husband’s health is such that he is unable to continue fishing although it is clear that he is able to continue to work in respect of developing property.
As a consequence of these orders each party will have property and financial resources such as to provide a significant income for each of them.
The wife has the care of E, the youngest child of the parties who will attain the age of 18 years in July 2008. It seems that he will continue through secondary education and of the 2008 calendar year.
It was argued that the Court should have regard to the wife’s needs to care for the children in terms of the divisions of s75(2)(o) as any other fact or circumstances which, in the opinion of the Court, the justice of the case is required to be taken into account. The eldest children are working and have the capacity to earn income. They are not at school and I do not regard their needs, in the circumstances of this case, as a fact or circumstance which I ought to take into account under that provision of s75(2) of the Act.
The wife complained that the husband did not provide specific child support for the children in the past and consequently she would not anticipate payment of support for E into the future. I am satisfied that the husband has paid most of the school fees for E and will continue to pay same for the remainder of this year. Apart from E neither party have a commitment to support any other party or other person.
This is not a case where either party are eligible for a pension or allowance or benefit as envisaged by s75(2)(f) of the Act.
Both parties have had a good standard of living which is likely to continue into the foreseeable future. The effect of the orders which I intend to put in place will mean that each has a business able to derive income.
There is no need for either of the parties to undertake a course of education or training to establish them in business or otherwise and they have both done that in previous years, not in a formal way but in their informal skills.
The parties have been in a long marriage but this has not affected their earning capacity. I have had regard to the orders proposed to be made under s79 in relation to the future needs of the parties.
Having regard to all of the facts and considering the relevant matters in ss. 79(d),(e),(f) & (g) including the matters referred to in s.75(2); I determine that there should be no adjustment in respect of the other factors.

JUST AND EQUITABLE

The property to be retained by the husband is:-

Nine Tasmanian fishing units

                 $1,620,000.00

The diving entitlement

  $180,000.00

Boats, motor vehicle and equipment

  $22,000.00

V1 property

  $33,000.00

M2 property

  $420,000.00

D property

  $50,000.00

Property at B

  $281,192.00

Telstra Shares

  $1,800.00

Husband’s Colonial & AXA Superannuation

  $18,270.00

Land at V2

  $10,000.00

Interest in T property

  $70,000.00

Interest in H property

  $24,000.00

Total

                $2,730,262.00

Liabilities

Debts of N Pty Ltd   $386,825.00

N Pty Ltd debt to S Pty Ltd   $75,000.00

Total   $461,825.00

The net assets to be held by the husband after these orders are $2,268,437.00.

The property to be retained by the wife is:-

One Tasmanian fishing unit

  $180,000.00

S Pty Ltd

  $625,000.00

M1 property

  $830,000.00

N Superannuation Fund entitlement

  $373,939.00

Telstra shares

  $1,800.00

Wife’s superannuation

  $16,200.00

Add-back in relation to sale of property – B3

  $150,000.00

6000 units in Rory property trust

  $5,227.00

Total

$2,182,166.00

Liabilities

Wife’s ANZ loan   $11,000.00

Wife’s American Express (Amex)   $19,000.00

Wife’s ANZ MasterCard   $18,000.00

Part of loan for car for E   $13,000.00

Total   $61,000.00

The net property to be retained by the wife is $2,121,166.00. Fifty per cent of the assets pool is $2,194,801.50 which means the husband will need to pay $73,635.50 to the wife to achieve equality. The husband has property with a net value of $2,268,437.00 which is reduced to $2,194,801.50 after payment to the wife of $73,635.50.
I regard this as being a just and equitable division of property.
There was a final issue raised during cross-examination of the wife in regard to the parties living on adjacent properties at M. Apparently, water is pumped to M2 property (which property the husband occupies) from a water supply nearby and then water is pumped to M1 property (which property the wife and children occupy. The husband seeks to have this arrangement brought to an end. The wife wants the entitlement to water continued into the future.
In her response filed the 14 June 2007 the wife sought an easement over M2 property to enable the continuation of the water supply to M1 property. It was agreed in submissions that an alternate supply of water was available to M1 property but it was the infrastructure and availability of infrastructure which impacted on the water supply to M1 property.
I do not know what effect, if any, an order such as that sought by the wife would have on the value of M2 property. The submission of both Counsel was that I had power to make a personal order in respect of the water supply.
The parties have been in litigation for a number of years and there is some need to bring the conflict. I will make an order that the husband provide the supply of the water to be pumped to M1 property from M2 property for a period of eighteen (18) months from these orders or until the husband disposes of M2 property, whichever is the earlier. That will then allow the wife to put in place orderly arrangements for water for her property during that time.

I certify that the preceding 199 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin

Legal Associate:

Date: 20 March 2008

[2008] FamCA 246

20 March 2008

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Property Law

Legal Concepts

Remedies

Constructive Trust

Fiduciary Duty

Owned by	Value
Ten fishing units (“the fishing units”) at $180,000.00 per unit – agreed value	Husband on behalf of N Pty Ltd as trustee to the Rory Family Trust (“the Family Trust”)	$1,800,000.00
One Tasmanian Diving entitlement (“the diving entitlement”) – agreed value.	N Pty Ltd as trustee for the Family Trust	$180,000.00
Boats, motor vehicle & equipment	N P/L as trustee for the family trust	$22,000.00
S Pty Ltd	The shares are owned jointly	$625,000.00
V1 property (agreed equity)	Husband	$33,000.00
V2 property – agreed value	$10,000.00
M2 property – agreed value	Husband	$420,000.00
M1 property – agreed value	Jointly by husband and wife	$830,000.00
N Superannuation Fund – agreed value	Jointly	$373,939.00
D property – agreed value	Husband	$50,000.00
Properties at B – agreed value	Wife has 1/6 share in part of this property	$281,192.00
Husband’s shares in Telstra	$1,800.00
Wife’ shares in Telstra	$1,800.00
6000 units in the Rory Property Trust – agreed value	N P/L as trustee for the Family Trust	$5,227.00
Husband’s Colonial and AXA Superannuation entitlements – agreed value.	Husband	$18,270.00
Wife’s superannuation – agreed value	Wife	$16,200.00
Claim by husband for add-back of B3 property	Wife	$150,000.00
Husband’s equity in property at T – agreed value	Husband	$70,000.00
Husband’s interest in property at H – agreed value	Husband	$24,000.00
TOTAL	$4,912,428.00

Debt of N Pty Ltd on behalf of the family trust:-	$386,825.00
Amount owed to N Pty Ltd to S Pty Ltd – agreed value	$75,000.00
Wife’s ANZ loan	$11,000.00
Wife’s American Express	$19,000.00
Wife’s ANZ Mastercard	$18,000.00
Loan for car for E	$13,000.00
TOTAL	$522,825.00

ANZ Qantas Telstra visa card	$8,290.00
ANZ Qantas Telstra visa business card	$17,126.00
Citibank credit card	$21,148.00
Creditors	$5,655.00
PAYG payable	$2,775.00
GST credit	-$177.00
Loan by Mr KY	$846.00
Business loan	$299,423.00
Loan from Mr BL	$8,356.00
Loan F Company	$23,112.00
ANZ cheque account	$473.00
Debtors (credit)	-$202.00
Net liabilities	$386,825.00

Nine Tasmanian fishing units	$1,620,000.00
The diving entitlement	$180,000.00
Boats, motor vehicle and equipment	$22,000.00
V1 property	$33,000.00
M2 property	$420,000.00
D property	$50,000.00
Property at B	$281,192.00
Telstra Shares	$1,800.00
Husband’s Colonial & AXA Superannuation	$18,270.00
Land at V2	$10,000.00
Interest in T property	$70,000.00
Interest in H property	$24,000.00
Total	$2,730,262.00

Debts of N Pty Ltd	$386,825.00
N Pty Ltd debt to S Pty Ltd	$75,000.00
Total	$461,825.00

One Tasmanian fishing unit	$180,000.00
S Pty Ltd	$625,000.00
M1 property	$830,000.00
N Superannuation Fund entitlement	$373,939.00
Telstra shares	$1,800.00
Wife’s superannuation	$16,200.00
Add-back in relation to sale of property – B3	$150,000.00
6000 units in Rory property trust	$5,227.00
Total	$2,182,166.00

Wife’s ANZ loan	$11,000.00
Wife’s American Express (Amex)	$19,000.00
Wife’s ANZ MasterCard	$18,000.00
Part of loan for car for E	$13,000.00
Total	$61,000.00