Salmon and Salmon and Ors

[2019] FamCA 448

FAMILY COURT OF AUSTRALIA

SALMON & SALMON AND ORS [2019] FamCA 448

FAMILY LAW – PROPERTY – INTERIM – Where the estate of the wife is seeking an interim litigation costs funding Order – Where the estate asserts that the family company owes the estate money – Where the husband asserts that he does not have the available cash resources to make a payment to the estate for litigation funding – Where the estate is not in a financial position to fund these proceedings from its own assets and would be placed at a significant disadvantage – Where the circumstances of this case justify the making of an interim litigation costs funding Order.

Family Law Act 1975 (Cth)

Barro & Barro (1983) FLC 91-300; [1982] FamCA 77
Breen v Breen (1990) 65 ALJR 195
Hogan & Hogan (1986) FLC 91-704; [1986] FamCA 34
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Pember & Bryson [2013] FamCA 968
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166

APPLICANT: Ms Salmon by way of her personal legal representatives Mr Simpson and Ms Simpson

FIRST RESPONDENT: Mr Salmon

SECOND RESPONDENT: B Pty Ltd ACN …

THIRD RESPONDENT: Mr C Salmon and Ms D Salmon and Mr E Salmon as Trustees of the B Pty Ltd Superannuation Fund

FILE NUMBER: BRC 10433 of 2015

DATE DELIVERED: 10 July 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 28 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE APPLICANT: Hartley Healy

COUNSEL FOR THE RESPONDENTS: Mr Page QC

SOLICITOR FOR THE RESPONDENTS: Williamson & Associates

Orders

1. That pursuant to s 117(2) of the Family Law Act 1975 (Cth), within fourteen (14) days of this order, the Husband shall pay or cause to be paid to the trust account of Hartley Healy the sum of $86,680 on account of the Applicants’ legal costs of and incidental to the trial in these proceedings.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Salmon & Salmon and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10433 of 2015

Ms Salmon by way of her personal legal representatives Mr Simpson and Ms Simpson

Applicant

And

Mr Salmon

First Respondent

And

B Pty Ltd ACN …

Second Respondent

And

Mr C Salmon and Ms D Salmon and Mr E Salmon as Trustees of the B Pty Ltd Superannuation Fund

Third Respondent

REASONS FOR JUDGMENT

1. This is an application for interim litigation costs funding.

2. The proceedings are between the executors of the estate of the late wife (her surviving parents) and the husband. A family company of the husband’s extended family, in which the husband has an interest, is also a Respondent. So, too, are the husband’s parents and brother in their roles as trustees of the self-managed superannuation fund in which the husband is a member.

3. The matter is in Justice Carew’s docket and is currently listed for trial over three days before her Honour commencing on Monday, 19 August 2019. This application came before me on 28 June, as her Honour is away on leave for a few weeks.

4. The executors of the estate of the late wife have made application for the following Orders:

   1.That within fourteen (14) days of this order, B Pty Ltd pay the amount of $48,914 to the applicants in payment of the late Ms Salmon’s unpaid superannuation and leave entitlement.

   2.That pursuant to section 117(2) of the Family Law Act 1975 and/or in the alternative section 80(1)(h) of the Family Law Act 1975, within fourteen (14) days of this order, the Husband or an entity he controls, pay to the trust account of Hartley Healy the following sums on account of being the applicant’s legal fees of and incidental to the trial:

   2.1In the event that the amount pursuant to clause 1 is ordered, then an amount of $37,766; or

   2.2In the event the amount sought in clause 1 is not ordered to be paid, then the amount of $86,680. …

5. The application is opposed by the Respondents.

The principles applicable to the determination of an interim litigation costs funding application

1. The legitimacy of a party to proceedings under the Family Law Act 1975 (Cth) (“the FLA”) seeking an interim provision of funds by another party to the proceedings to enable payment of his or her legal costs of participating in the proceedings has been recognised by this Court for many years.[1]

   [1] See for example Barro & Barro (1983) FLC 91-300; [1982] FamCA 77 and Hogan & Hogan (1986) FLC 91-704; [1986] FamCA 34 (per the Full Court) and also Breen v Breen (1990) 65 ALJR 195 (per the High Court) which I referred to in Pember & Bryson [2013] FamCA 968.

2. The Court has identified that the power to make an interim litigation costs funding Order lies within the property adjustment Order provisions of ss 79 and 80 or within the spousal maintenance provisions of ss 72 and 74 or within the costs Order provision of s 117(2). Such an Order is able to be made, provided that, whichever is the source of the power, the necessary preconditions for the making of the Order are identified and considered.[2]

   [2] See Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166 citing with approval Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578.

3. In Strahan & Strahan (Interim Property Orders) (“Strahan”),[3] Boland and O’Ryan JJ said at [86]:

   … If the source of jurisdiction is 117(2) of the Act then the court may make such order as it considers just provided there are justifying circumstances. If the order is sought under s 79 of the Act then the court may make such an order as it considers appropriate provided it is satisfied that it is just and equitable to make the order. If the order is sought under s 74 of the Act then the court may make such order as is proper.

   [3](2011) FLC 93-466; [2009] FamCAFC 166.

4. In respect of these matters, as I also observed in Pember & Bryson (“Pember”),[4] in Paris King Investments Pty Ltd v Rayhill (“Paris King Investments”),[5] Brereton J at [30] said:

   … Thus, where an interim order for litigation expenses is to be made as an interim costs order s 117(2), and probably also if it is to be made as a maintenance order s 74, there are at least three requirements: first, a position of relative financial strength by the respondent; secondly, a capacity on the part of the respondent to meet his or her own litigation expenses; and thirdly, an inability by the applicant to meet her or his litigation expenses from her or his own income assets or financial resources. …

   [4][2013] FamCA 968.

   [5][2006] NSWSC 578.

1. I also observed in Pember that Boland and O’Ryan JJ in Strahan refer to Brereton J’s reasons in Paris King Investments in a manner that I consider displays clear acceptance of the correctness of those reasons. Relevantly, their Honours included in that discussion at [96] the following:

   In Paris King Investments Brereton J at [30] and [31] said that in addition to the three matters described in Zschokke, where the order was made pursuant to either s 74 or s 117 of the Act:

   ·     an applicant should have “at least an arguable case for substantive relief which deserves to be heard”: Chester v Chester (1995) FLC 92-612 (“Chester”) at 82,107 per Moss J;

   ·     there should be evidence of the applicant’s “likely costs of the litigation”: see Wilson and Chester;

   ·     “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis: Columb and Columb (unreported, Family Court of Australia, Fogarty J, 27 November 1987); see however Coomes and Coomes (1995) FLC 92-558 per Cohen J;

   ·     an order may “make a provision for litigation expenses at a rate that appears reasonable in all the circumstances”;

   ·     an order can be made “in respect of costs already incurred as well as of future costs”;

   ·     “whether the order is to be in respect of costs already incurred or costs to be incurred, and whether the applicant’s lawyers will continue to act in the absence of provision for costs to be incurred, may be relevant to the discretion to make an order, and it’s quantum”;

   ·     “any such order should be framed to protect the parties from any risk of injustice arising from the manner in which the funds are expended” and this may be done “by requiring that the funds be administered solely by the applicant's solicitors and applied only to meet the expenses referred to in the order, with detailed records being maintained to permit review by the Court at the time of the exercise of its discretion in the substantive property proceedings or on the final determination of the issue of costs”: Breen.

This case

1. The husband and the late wife commenced living together in or around 1994. They married in 1998 and had their first child in 2000. The husband was employed in his family’s business. In 2001, the wife commenced employment of some form with that business also. In 2002, their second child was born.

2. In or around 2006, the late wife suffered a recurrence of cancer that she had first suffered prior to their marriage but after their cohabitation had commenced. She went through extensive treatment and it went into remission. In February 2015, the late wife suffered a recurrence of the cancer and learned that it was incurably terminal. A month later, the husband and the late wife separated and she moved to live with her parents. The children remained living with their father in the family home.

3. In October 2015, the late wife commenced these property adjustment proceedings in the Federal Circuit Court. Sadly, the late wife passed away in late 2015 and soon thereafter her executors, her parents, were, by Order, substituted as her representatives in these proceedings. In August 2016, by Order, the proceedings were transferred to this Court. As is obvious, they have taken almost three years to move up this Court’s pending cases list, reach a judge’s docket and be listed for trial. In the meantime, mediation conducted by an experienced, former judge of this Court has taken place without apparent success. Clearly, and sadly, there is a high level of dispute between the parties.

4. Whilst the late wife was still alive in late 2015, she and the husband consented to certain interim Orders being made in the Federal Circuit Court. Those Orders included an Order for the preparation of a valuation report in respect of “the relevant entities” (being the husband’s family company, the superannuation fund and some other related, closely held family entities). Those Orders also included an Order that the costs of that valuation report “be paid for by the Husband in the first instance and the Wife’s half share is to be paid from her final property settlement”. Similar Orders were made in respect to obtaining valuations of chattels.

5. Additional Orders were made (not by consent) for the husband to pay the wife $3,450 per week spousal maintenance and pay health insurance premiums for a policy that covered the wife, as well as the costs of registration, insurance, maintenance and servicing of a motor car in the wife’s possession.

6. Additional Orders were also made (not by consent) for the husband to “do all acts and things” as to pay the wife the sum of $65,000 (net of tax) to her solicitors and “be at liberty to pay or withdraw further funds on account of his own legal fees in the sum of $65,000”. This was described as “by way of partial property settlement.”

7. Some Orders were also made for the parties to attend mediation and for the costs of the mediation to be paid for by the husband “in the first instance” with the wife’s share to be paid from her final property settlement.

8. In July of 2017, Justice Hogan of this Court made Orders (not by consent) joining the family company and the trustees of the superannuation fund to the proceedings. Her Honour also ordered (not by consent) that the family company pay the sum of $87,691.50 to the estate of the late wife “in part payment of the late [wife’s] unpaid superannuation entitlement”.

9. On 9 April 2019, Justice Carew conducted a trial management event and listed the matter for trial before her in August 2019. Her Honour noted at the end of the Orders she made that the Respondents have retained Queen’s Counsel and junior counsel to appear for them at the trial and that the Applicants, the executors of the estate of the late wife, had indicated their intent to make an application for litigation funding to allow them also to brief counsel for trial.

10. That application was filed on 24 June 2019. Given the proximity of the pending trial, it was given an urgent listing for hearing.

The Applicants’ case

1. Counsel appeared for the Applicants before me. The evidence relied upon included evidence of their solicitors that the expected costs of preparing the matter for trial and conducting the trial, with junior counsel briefed and instructed, would be a further $86,680.

2. The evidence relied upon also included assertions by the solicitor for the Applicants that his firm would not continue to act for the Applicants without provision of the litigation costs funding sought.

3. The evidence relied upon included valuation reports prepared by the single expert who valued the entities, including the superannuation fund, and who also provided opinion evidence as to certain unpaid entitlements said to be owed to the late wife’s estate by the family company, the Second Respondent. That evidence identified two alternative scenarios by which the family company was said to owe the estate of the late wife money. The first scenario was one in which the late wife had no insurance coverage, and was said to be owed $136,606 in unpaid entitlements. The second scenario was one in which the late wife had an entitlement to Total and Permanent Disability cover, as well as death and income protection insurance, in which case she would be owed $602,452.

4. As I have already observed, Justice Hogan made an Order in 2017, apparently based on an acceptance that the late wife was owed at least $87,691.50 in unpaid superannuation entitlements by the company, that the company pay the estate that sum. That was paid and therefore reduces the amount said to be owed in each of those scenarios by that amount.

5. It is on the basis of an adoption of the first of those two scenarios for the purposes of this litigation funding application that the Applicants seek an order that the difference between $136,606 and the payment of $87,691.50, namely $48,914, be paid to them by the company as part of the litigation funding, with the balance of $37,766 (the difference between the estimated legal costs and the sum of $48,914) to be paid by the husband.

6. They submit that first part of the payment sought, the sum of $48,914, is already owed to the estate of the late wife and, therefore, can readily be made the subject of an order for its payment. As to the balance of the amount they seek, or, in the event that the Court is not minded to order that payment by the company, they seek the benefit of the exercise of the power of the Court to make interim litigation costs funding Orders.

7. Self-evidently, as the late wife is deceased, the Applicants do not seek the payment be ordered by reference to the spousal maintenance powers of the Court. Firstly, they assert that it can be made using the Court’s powers to make property adjustment Orders pursuant to ss 79 and 80 of the FLA, but they fall back on the Court’s costs powers in the event that they are unsuccessful in persuading the Court that the property settlement powers should be used.

8. In support of the application, they point to evidence of a late 2017 valuation of the former family home of the husband and the late wife owned by them as tenants in common in equal shares. They also refer to debt secured by a mortgage over that property. The equity in that property, they say, on that evidence, is at least $350,000 of which the estate of the late wife is, at law, entitled to $175,000. That is $110,000 more than the $65,000 partial property settlement already paid to the wife by the husband before she passed away. They say the $87,691 paid by the company to the estate was money actually owed to the late wife as well, in addition to her half interest in the equity in the former family home.

9. Further, the Applicants say that the net value of all of the “property of the parties to the marriage or either of them” in any event after deducting liabilities that they accept are to be deducted is $3,085,514 and that on any case, the estate is likely to be the beneficiary of a final Order pursuant to s 79 for payment of a cash amount of well in excess of the approximate sum of $152,000 already received in the form of the $65,000 partial property settlement payment and the $87,000 unpaid superannuation payment.

10. Prima facie, on that case, and having regard to the length of the marriage, it would seem “just and equitable” to make Orders against the husband such as those sought by the Applicants. But all is not as simple as that seems.

The Respondents’ case

1. Queen’s Counsel appeared for all of the Respondents. Reliance was placed on two affidavits that were filed by leave. One of them was an affidavit of the husband. One of them was an affidavit of the husband’s father, who is the Managing Director of the Second Respondent, the family company.

2. The husband simply asserts he does not have the available cash resources to make a payment of either $37,766 or $86,680. He also says that he does not have “any entity under [his] control” such that he could cause any such entity to make the payment. He also asserts that the former family home that he and the children live in “will continue to decline in value”. The implication in that is that the equity in the home could be less than the $350,000 referred to already.  

3. He also deposes to holding 30 per cent of the shares in the family company that he asserts his father controls, though he is the manager of the retail outlet the company operates that generates the bulk of its income. He says, and the balance of the evidence (the valuation report) supports his assertion, that he is entitled to receive 30 per cent of the dividends paid by the company. He also says that is used to repay indebtedness of him and the late wife’s estate to the company. 

4. The husband also deposes to having a superannuation entitlement of his own in his family’s self-managed superannuation fund that is valued at $767,521, but he points out that the assets of that self-managed superannuation fund are essentially held in a small retail shopping centre that is only 75 per cent owned by the fund, making it very difficult for his interest to be realised.

5. The husband goes on to set out what he asserts is the “property of the parties to the marriage or either of them” though he describes it as “the current matrimonial property pool”. That table begins with apparent acceptance of the value of the former family home and the debt secured by it as asserted by the Applicants. That amounts, effectively, to a concession that the interest of the estate of the late wife in the equity in that property is around $175,000 in value.

6. He goes on, though, in stark contrast to the Applicants, to assert that the value of his shareholding in the family company is around half of the value the existing, though dated, valuation ascribes to it. Significantly, he then goes on to assert that he and the estate of his late wife owe the family company $965,766, whereas the Applicants, relying on the 2016 valuation, assert the liability to the family company is as low as $139,943.

1. The husband goes on to assert that he owes his parents another $732,461 in connection with the construction of the family home on the jointly owned property – a loan he clearly asserts is separate and distinct from the sum of $1,599,000 said to be owing to a bank and secured by mortgage over that property. He also goes on to assert that there is another debt that he owes to a bank in the sum of $1,300,000 that represents a loan he took out (apparently secured by property owned by a third party member of his family or a family trust) to fund the purchase of his 30 per cent shareholding in the family company.

2. Ultimately, the husband asserts that he and the estate of the late wife have an excess of debts over assets in the sum of approximately $881,000 and that this supports a finding that no interim litigation costs funding order would be “just and equitable”.

3. In the affidavit of the husband’s father, the husband’s father deposes to an assertion that not even the further sum of $48,914 is owed by the company to the estate of the wife as is asserted through scenario 1 referred to in the valuation, let alone an additional $514,000 as is asserted through scenario 2. He clearly puts the factual bases for each of those scenarios in dispute and asserts that an updated valuation currently being prepared might be of relevance to the determination of this factual dispute. I cannot decide that dispute at this point.

4. Quite significantly, the husband’s father also asserts that the estate of the late wife actually owes the Second Respondent company the sum of $436,368.50 rather than the company owing the estate any more money. Relevantly, in paragraph 8 of his affidavit, he asserts the following:

   The company ledgers of [the company] show the debt of $436,368.50 accrued to the applicant since 30.06.15 is comprised of the following payments:

   Court Ordered Payment to fund applicant’s legal costs $65,000.00

   The applicants share of court ordered payments to property valuers and expert accountants of $20,764.00

   Direct payments to the deceased Ms Salmon in 2015 prior to her passing of $160,900.00 above and beyond her salary. (This amount appears in Mr F’s report of 02.09.16 at page 41 table 21)

   The applicants share of mortgage payments paid by the second respondent to V Bank on the former matrimonial home at O Street Suburb J of $154,039.00. (The applicants acknowledge this liability as a joint liability in their schedule of assets and liabilities)

   The applicants share of rates and insurance costs paid by the second respondent on the former matrimonial home at O Street of $16,763.50

   Payments for the deceased Ms Salmon’s rental accommodation in 2015 to T Real Estate Agents of $18,902.00

   [As per the original]

5. If that amount is added to the $139,943 that the Applicants accept was the level of debt owed by the husband to the company as determined by the 2016 valuation of the husband’s interest in the company, it equals $576,311.50. That total still remains around $389,455 less than the total the husband asserts in his affidavit is owing to the Second Respondent company by him and the estate of his late wife. So, according to the husband, the total amount owing by him and the estate of his late wife to the family company since the valuation attributed an amount of $139,943 to that loan account balance has increased by a net amount of $825,823. That it is a net growth in the loan account balance is also to be observed, when one has regard to the evidence that the dividends the husband has received from the company in that same time have been applied to reducing his loan account and also the evidence that the wages he was being paid on a monthly basis were being credited to his loan account.

6. The 2016 valuation report reveals that the loan account was the husband’s liability to the company and not the late wife’s. It also reveals that the debits to the loan account included large amounts paid to a bank in respect of the two large loans (both the loans in excess of $1,000,000), as well as payments to an account in the late wife’s name, credit card payments on cards in the husband’s name and the late wife’s name, payments to lawyers, including the $65,000 paid to the late wife’s lawyers pursuant to the Order of the Federal Circuit Court Judge as well as payments to the husband’s lawyers, payments for school fees for the children of the husband and the late wife, payments to a real estate agent and payment of the husband’s life insurance premiums.

7. Considering all of the evidence, it appears as if the husband and the late wife went about their daily lives, drawing and paying for their everyday expenses from the company account, with those drawings being recorded as debits in the husband’s loan account and with his salary from the company and his dividends being credited to that loan account balance. It appears more probable than not that this practice has occurred since their separation and also in respect of the husband’s life since the late wife passed away.

8. Indeed, if one disregarded the debt the husband’s father asserts the estate of the late wife owes in the amount of $436,368.50 (some of which was already included in the loan account balance of $139,943 in the 2016 valuation report) then the gross amount of the husband’s drawings against the company, listed as debits in the loan account since that 2016 report, are likely to have exceeded the $436,368.50 the husband’s father says is a debt “accrued to the applicant” since 30 June 2015.

9. The husband’s father does not adduce into evidence any documentary evidence of a loan from the company to the late wife or to the late wife’s estate and his assertion that the money is owed by the estate of the wife is contrary to the evidence in the valuation report that the loan account is the husband’s liability to the company. Indeed, the husband’s father’s assertions in paragraph 8 of his affidavit filed by leave on 28 June 2019 are, I am satisfied, factually incorrect.

10. The Court ordered payment by the husband of $65,000 to fund the late wife’s legal costs and, as I have already observed, this was included in the calculation of the $139,943 loan account liability of the husband. The Court ordered payments to property valuers and accountants were to be paid by the husband in the first instance and, therefore, are his liability to the company if he drew the money from company funds. Direct payments to the late wife before her passing were, in reality, maintenance payments being made by the husband. If he drew them from company funds, it is his debt to the company. The rental payments referred to and mortgage payments, rates payments and insurance payments in respect of the former family home are, again, in reality the husband’s payments and borrowed by him from the company.

11. It is, I am satisfied, for the purposes of determining this application, not correct to assert that all of those payments represent liabilities of the estate of the late wife owed directly to the Second Respondent company. With respect to the husband’s father, that is plainly incorrect. Of course, whether the total of the loan account of the husband with the company is taken into account as a liability that reduces the “property of the parties to the marriage or either of them” that may be made subject to property adjustment Orders is another matter. For the Applicants, it was submitted that it is simply not accepted that all of the liabilities asserted by the husband will or should be taken into account before property adjustment Orders are made. In this respect, I acknowledge the discretion a trial judge has in determining whether or not certain liabilities are to be deducted in the process of determining just and equitable property adjustment Orders. For the Applicants, it was submitted that there will be net assets to be made subject to orders, not net debt.

12. For the Respondents, it was submitted that at the trial it will be submitted to Justice Carew that justice and equity will require no property adjustment Orders to be made and for the Applicants’ application to be dismissed. This submission was based on the fact that the husband is solely responsible for the two children of the former marriage and that the late wife bequeathed all of her estate to her executors and trustees on trust for those same two children until they reach 25 years of age. Whatever the outcome, it was submitted, it will ultimately be the two children of the marriage who benefit from the late wife’s estate and it is the husband who has responsibility for their care right now.

13. As I observed upon hearing that submission from Queen’s Counsel during the hearing, I fail to see how making no property adjustment Order could be seen to be just and equitable when the estate of the late wife owns half of the former family home. At the very least, an Order that somehow dealt with that half interest would need to be made in order to do justice and equity and to finalise matters between the husband and the estate of the late wife, even if it is that the estate transfer its half interest to the husband.

My determination

1. Given that there is a live factual dispute between the parties as to whether the parties or either of them owe more in liabilities than the total value of their property interests, it is difficult to consider that a just and equitable interim order could be made using the property adjustment powers of the FLA. That leaves the power to make an order as to costs pursuant to s 117(2) as a possible source of power to make the order sought.

2. If the Court is of the opinion that there are circumstances that justify it in doing so, it may make such order as to costs as it considers just.[6] I am satisfied that the circumstances of this case justify the making of an interim litigation costs funding Order. Clearly, the estate of the late wife is not in a financial position to fund the rest of these legal proceedings from its own assets. The evidence supports a finding that without the funding sought, the estate would be left to run a trial in which there will be some very complex issues to be determined without the legal representation of choice, and, probably, without legal representation at all. On the other hand, the husband has representation in the form of solicitors, Queen’s Counsel and junior counsel. That would result in a significant disadvantage to the Applicants in circumstances where, prima facie, the estate has an arguably meritorious case. The evidence establishes that the husband has had apparent unfettered access to funds as needed over the last several years, and not just to pay for his own legal costs, but to fund his lifestyle and the support of the two children, including the payment of expensive private school fees. Whilst that may now be described as debt owed by him, whether it is taken into account as a debt of the parties or either of them in the determination of the property adjustment Orders is a matter for the trial judge.

   [6]Family Law Act 1975 (Cth) s 175(2).

3. Given that the Second Respondent company seriously disputes the estate’s claim that it is actually owed substantially more money than has already been paid to it, I do not consider that it should now be ordered to pay any additional sum to the wife’s estate at this interim stage, by way of a costs Order or otherwise. However, given that the husband has clearly had access to net funds (after taking into account his salary and his dividends from the company) of over $825,000 since the date of the 2016 valuation of his interest in the company, I consider it just to make an Order that he pay or cause to be paid to the estate of the wife the sum of $86,680, such sum to be paid to the trust account of Hartley Healy within 14 days of the date of this judgment, on account of the Applicants’ legal fees of and incidental to the trial in these proceedings. It will be a matter for the trial judge how her Honour treats such payment in the property adjustment proceedings.

4. I make the Order set out at the commencement of these written reasons.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 10 July 2019.

Associate: 

Date:  10 July 2019