SCARDINO AND ANDERSON

[2014] FamCA 680

FAMILY COURT OF AUSTRALIA

SCARDINO AND ANDERSON [2014] FamCA 680

FAMILY LAW – INTERIM PROPERTY – where the Applicant seeks an order for funds to be used for litigation funding – where the Respondent is in a much stronger relative financial position than the Applicant – where interim order made.

Family Law Act 1975 (Cth) s79, 80, 117

Strahan & Strahan (2011) FLC 93-466

Marchant & Marchant [2012] FamCAFC 181

APPLICANT: Ms Scardino

RESPONDENT: Mr Anderson

FILE NUMBER: BRC 11328 of 2013

DATE DELIVERED: 22 August 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J.

HEARING DATE: 8 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bunning

SOLICITOR FOR THE APPLICANT: McLaughlins Lawyers

COUNSEL FOR THE RESPONDENT: Mr Amerena

SOLICITOR FOR THE RESPONDENT: Hirst & Co Family Lawyers

Orders

UPON THE UNDERTAKING of the Respondent that, until judgment in the property adjustment proceedings without admission of liability or wrongdoing he will allow the Applicant to have the exclusive use and occupation of the property situated at B Street Suburb C (the Suburb C property) and not to attend at the Suburb C property

AND

UPON THE UNDERTAKING of the Respondent that, until judgment in the property adjustment proceedings without admission of liability or wrongdoing, he will not:

(a)dispose of any of the properties listed in McLaughlins Lawyers’ letter dated 27 March 2013; and

(b)will not dispose of any assets of the companies listed in the same letter,

except in the ordinary course of business and providing twenty-one (21) days’ notice of any intention and that he will provide full particulars of how he intends to proceed with the property/asset or sale proceeds

AND

UPON THE UNDERTAKING of the Respondent that, until judgment in the property adjustment proceedings without admission of liability or wrongdoing, he will not resign from any position he currently holds in relation to any corporate entity or trust

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Within twenty-eight (28) days of the date of these Orders, the Respondent shall cause to be paid to the solicitors for the Applicant, on behalf of the Applicant, the sum of $50,000.00.

2. No later than three (3) days prior to the commencement of the final trial of these proceedings the Applicant shall file and serve an affidavit detailing the use and expenditure of the funds paid to her solicitors’ trust account pursuant to this Order.

3. The amount paid to the trust account of the solicitors for the Applicant pursuant to this Order shall be taken into account in the final trial of these proceedings.

4. In the event that, having exchanged schedules which identify the assets, liabilities and financial resources each party asserts constitutes the property, superannuation interests and financial resources of the parties for the purpose of the property settlement proceedings, the parties identify differences in the values ascribed for the same, then the parties agree to appoint a single expert witness to prepare a valuation for any such item.

5. For the purposes of nominating the single expert witness/es for the purposes of Clause (4), the Applicant will provide a panel of three (3) suggested experts for each valuation to the Respondent within seven (7) days of receiving the Respondent’s schedule of assets, liabilities and financial resources.

6. The Respondent will nominate his chosen expert from the panel provided by the Applicant, pursuant to Clause (5), within two (2) days of receiving the same.

7. In the event the Respondent fails to nominate the chosen expert within the requisite time frame, the Applicant may nominate the expert and shall notify the Respondent in writing of the identity of the same.

8. Within two (2) days of the Respondent or the Applicant (depending on whether Clause (7) is operative), nominating the single expert witness, the parties shall confer and settle a joint letter of instruction directed to the single expert witness/es appointed pursuant to Clause (4).

9. Any single expert witness appointed pursuant to the operation of Clause (4) shall be provided with a copy of this Order and a copy of the joint letter of instruction referred to in Clause (8).

10. The parties will provide any document requested by a single expert witness to that single expert witness within 30 days of any request for the same.

11. The costs of any single expert witness/es appointed pursuant to the operation of Clause (4) will be borne equally by the parties, but met by the Respondent at first instance with the Applicant’s half share of the same to be taken into account at trial or in the making of final orders.

12. Save as is otherwise provided, the applications contained in:

    (a)paragraphs 1-14 and 17-24 of the Interim Orders sought by the Applicant in the Initiating Application filed 23 December 2013; and

    (b)paragraphs 1 and 6 of the Interim Orders sought by the Respondent in the Response filed 7 May 2014

    are dismissed.

13. Each party’s costs of and incidental to the Interim Application heard on 8 July 2014 are reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 11328 of 2013

Ms Scardino

Applicant

And

Mr Anderson

Respondent

REASONS FOR JUDGMENT

1. Proceedings between the parties commenced on 23 December 2013 when the Applicant filed an Initiating Application seeking the payment of $1,500.00 per week spousal maintenance. The Initiating Application also sought an order that the Applicant be excused from better particularising the Orders she seeks – presumably in respect of the property of the parties – until the Respondent provides disclosure and valuations of the property have been obtained.

2. The Response filed on behalf of the Respondent on 7 May 2014 seeks that he be required to file an Amended Response within 14 days of the Applicant filing an Amended Initiating Application which outlines, with particularity, the orders sought by way of property adjustment order and/or spousal maintenance.

3. Despite the contents of the Initiating Application, the Applicant did not ultimately seek interim orders for:

   a)the payment of interim spousal maintenance; or

   b)the payment of $200,000.00 by way of partial property settlement; or

   c)the transfer of the Respondent’s interest in real property to her.

4. I am not persuaded by any asserted failure by the Applicant to comply with previous Orders relating to disclosure to decline to hear and determine those remaining parts of the interim application listed for disposal.

Brief summary of relevant matters

1. The parties lived together in a de facto relationship. The Applicant asserts they commenced cohabitation on 1 February 2000 and separated on 27 February 2013. The Respondent asserts they commenced cohabitation in June 2000 and separated in early January 2013.

2. Consequently, the Applicant asserts the duration of their de facto relationship was 13 years whilst the Respondent asserts it persisted for about 12½ years. Such disparity is, for the purpose of this interim hearing, incapable of resolution and of little moment.

3. There is one child of the relationship: D, born in 2001. D lives with the Applicant and spends time with the Respondent about every second weekend (from Friday to Sunday) and during holiday periods.

4. The Applicant, who is 50 years of age, is employed on a casual basis. She earns approximately $25.00 per hour gross and the number of hours she works each week varies. The form of her employment means she is not remunerated during school holiday periods. Her taxable income, from monies received by her from employment at the school, for the Financial Year ended 30 June 2013 was $7,038.00. Until 27 February 2014, she received the sum of $684.00 per fortnight from a corporate entity within the Respondent’s control but this has now ceased.

5. The Respondent is nearly 70 years of age. He is a company director and conducts his business interests through a group of companies and trusts (the Anderson Group). He has caused E Pty Ltd – one of the companies within the Anderson Group – to pay the Applicant $400.00 per week child support for D.

6. The Anderson Group has three main components:

   a)property interests – which include a childcare centre, land (including the premises from which business operations conducted by F Pty Ltd occur) and a property at G Region from which a backpackers business is conducted; and

   b)F Pty Ltd – a business engaged in manufacturing and which has operations in Queensland, New South Wales, Victoria, South Australia and Western Australia; and

   c)a half interest in a resort at H Town.

7. Either the Respondent or legal entities in which he has an interest own a significant amount of real property.[1] He acknowledges that the Anderson Group is a complex group of companies and trusts[2] and that his financial circumstances are complex.[3]  The complexity is such that his solicitors specifically refer to it as a basis for their advice[4] that the likely duration of a final hearing may be five (5) days and his estimated legal costs, inclusive of the costs of valuing corporate entities and real estate, may be in the vicinity of $200,000.00.

   [1]          Paragraphs 44 and 45, Respondent's affidavit filed 20 June 2014.

   [2]           Paragraph 44, Respondent's affidavit filed 20 June 2014.

   [3]          Paragraph 47, Respondent's affidavit filed 20 June 2014.

   [4]           Exhibit 2: correspondence dated 7 July 2014.

8. The Applicant is not a director, or shareholder of any of the corporate entities within the Anderson Group. She is not a trustee, beneficiary or appointor of any of the trusts within the Anderson Group. Thus, unlike the Respondent, she has no control over the source from which the parties were provided funds during their relationship and which continues to provide funds to the Respondent.

9. Whilst there is, at this stage, no evidence as to the value of the Anderson Group, the Respondent’s evidence is that the real properties owned by him, or legal entities in which he has an interest, are subject to liabilities totalling some $14,000,000.00.  In addition, he has recently entered into a contract for the sale of his interest in F Pty Ltd for the amount of $14,000,000.00.

10. The Applicant owns a property at I Town said to be valued at $350,000.00. It is encumbered by a mortgage in an amount of about $36,775.00. This property is rented and the net income from it forms part of the Applicant’s total weekly income.

11. The Applicant and Respondent jointly own real property at Suburb C and Suburb J. The Applicant and D live in the Suburb C property and the Respondent (and D when he is spending time with him) live in the Suburb J property. It has not been suggested by either party that either of these properties should be sold.

12. The Applicant also owns an unspecified number of shares in Suncorp and National Australia Bank and has an entitlement to superannuation –unavailable to her given her age – said to be valued at $127,848.84.

13. The Applicant currently has cash at bank in an amount of about $243,000.00. Whilst the table prepared on the Respondent’s behalf from the Applicant’s bank statements (which are Exhibit 5 in the proceedings) reveals she had $290,121.00 held in various bank accounts at various times, the balances used to arrive at this figure were obtained on dates ranging from 7 March 2014 to 5 June 2014. For this reason, and on an interim basis, I am not persuaded that I would be comparing “apples with apples” if I simply compared the two figures. In any event, an interim hearing is not the forum at which issues such as the total funds available to a party after separation and the use made of them can be fully and properly resolved.

14. The Applicant also says she has had cash of about $20,000.00 (found in envelopes rediscovered by her in the past month or so) and a further $9,500.00 (recently rediscovered in a travel bag stored in a filing cabinet) available to her since separation - some of these funds have been used, on her account, to supplement her income and to pay for general living expenses and for D.

15. Since separation, the Applicant has:

    a)spent $49,655.00 on the purchase of a motor vehicle to replace one previously made available for her use by the Respondent;

    b)bought hearing aids at a cost of $12,000.00;

    c)paid $3,710.00 to the Australian Taxation Office to meet a liability which accrued because – on her account – monies paid to her by a corporate entity, under the Respondent’s control, during the relationship were not properly taxed;

    d)spent about $27,000.00 on legal costs.

16. I accept that the Applicant has been provided with an estimate of her ongoing legal costs: this ranges from a minimum of about $48,000.00 (plus GST sundries and outlays) for the litigation process inclusive of a one-day trial to about $152,000.00 (plus GST, sundries and outlays) if the matter proceeds to a five-day hearing. Such advice is not inconsistent with that provided to the Respondent.[5] I also accept that the terms of the Costs Agreement between the Applicant and her solicitors obliges her to place monies into their trust account from time to time in anticipation of legal fees to be incurred. I accept that the Applicant’s solicitors have told her they will not act for her on a deferred or speculative basis. I accept the Applicant’s evidence that she has confidence in her solicitors and wishes to retain them.

    [5]           See paragraph 11.

17. A comparison of the parties’ respective Financial Statements reveals that, whilst the Applicant has an excess of net income over expenditure of about $40.00/per week, the Respondent has an excess of net income over expenditure of about $1,000.00 per week. The Applicant’s ‘excess’ would evaporate if she did not receive interest on cash held at bank.

18. The Respondent has about $195,000.00 in cash at bank. As I understand it, about $108,000.00 of this – and of the cash held by the Applicant at bank - was obtained when the parties closed a joint bank account and distributed its proceeds equally between them.

19. Even taking into account the Respondent’s criticism of the Applicant’s level of weekly expenditure on certain items, I conclude, at this stage, that his ongoing financial situation is significantly superior to hers: so much is accepted, quite properly, in the Outline of Argument filed on his behalf on 7 July 2014.

20. The Applicant has paid her legal expenses to date from monies within her control at separation. Of the $84,635.44 (inclusive of the likely costs associated with the interim hearing) paid by the Respondent to date, about $11,000.00 has been paid by F Pty Ltd on his behalf and about $44,600.00 has been paid on his behalf by E Pty Ltd.

21. As yet, there is no expert evidence as to the value of any of the property of the parties. Each party has provided estimates of the same in their respective Financial Statements. Appreciating that they are only estimates, and adopting the Respondent’s figures for the purpose of this hearing, the value of the property of the parties – exclusive of any value for the Anderson Group – and their superannuation entitlements is about $4,545,059.

22. The $50,000.00 sought by the Applicant is about 1.1 per cent of this.

23. There is no suggestion in the Outline of Argument filed on the Respondent’s behalf that:

    a)he is struggling to meet or cannot meet his own legal expenses; or

    b)he could not, if ordered, pay the funds - in the sum of $50,000.00 and by meeting the costs of valuation at first instance - sought by the Applicant; or

    c)any asset would have to be sold to meet an order in terms sought by the Applicant; or

    d)if an order for the payment of the monies sought by the Applicant was made, the remaining property would be insufficient to meet the legitimate claims of both parties when an order which exhausts the Court’s jurisdiction is made; or

    e)it is likely the Applicant will receive less than the sum sought when an order which exhausts the Court’s jurisdiction is made; or

    f)the amount sought by the Applicant could not be taken into account when an order which exhausts the Court’s jurisdiction is made; or

    g)the Applicant does not have an arguable case for substantive relief.

24. I accept that, in one sense, the Applicant has the funds to meet her own legal expenses – it could not be suggested otherwise given that she has about $243,000.00 cash at bank. However, I also accept that, unlike the position of the Respondent, she does not have the capacity to replenish such funds once spent. Unlike the Respondent, she has no other source from which her legal expenses can be paid:  she does not have the ability – as he does – to cause a corporate entity within the Anderson Group to meet her legal expenses on her behalf. Unlike the Respondent, the Applicant now receives no financial support from the Anderson Group.

Provision of funds

1. In Strahan v Strahan (2011) FLC 93-466, Boland and O’Ryan JJ said at [79]:

   The need for a party to proceedings under the Act to seek an order for the provision of funds to enable the payment of his or her legal costs of participating in the proceedings has been recognised for many years.  It is a reflection of an important matter that distinguishes litigation under the Act from civil litigation between parties who are not parties to a marriage, namely that “very often the wealth of the parties is controlled by one rather than both of them”: Blueseas Investments Pty Ltd v Mitchell (1999) FLC 92-856 at 86,128 per Full Court (Nicholson CJ, Lindenmayer and O’Ryan JJ). 

2. This statement clearly resonates in the present case.

3. The Respondent’s opposition to both forms of the order sought by the Applicant rests primarily, although not solely, on the fact that the Applicant has available to her the funds referred to above. He also relies on those matters set out at paragraph 4.7(b) – (k) of the Outline of Argument and submits that, in combination, these matters  “militate persuasively” against the making of any interim orders for the funding of the Applicant’s litigation expenses.

4. The Applicant relied on ss. 79 and 80(1)(h) of the Family Law Act (1975)(Cth) as providing the source of power for the making of the order sought. The principles to be applied in considering an application for an interim provision of litigation costs based on the power contained in these provisions were discussed by the Full Court in Strahan[6] where the joint judgment of Boland and O’Ryan JJ makes clear that the hearing of such application involves two stages.

The first (adjectival or procedural) stage: should the Court exercise its discretion to entertain the application?

[6]           See also: Marchant & Marchant [2012] FamCAFC 181.

1. In order to persuade the Court to exercise the discretion to entertain the application, an Applicant must establish that it is appropriate for the Court to exercise power. Whilst the “overarching consideration” for ‘appropriateness’ is the interests of justice, it cannot be forgotten that, where s 79 is relied upon, the interests of justice are ‘normally’ served by a single and final determination of orders.

2. It is clear that it is not appropriate for a Court to exercise the power to make an interim order simply because an Applicant would receive the interim property sought, or more than that, when an order which exhausts the Court’s jurisdiction is made – establishing this matter alone is insufficient to persuade that the application should be entertained.

3. In Strahan the majority provided, as an example of circumstances in which it may be appropriate to exercise the power, the situation in which one party required funds to “assist” in defraying the costs of litigation where, absent such funds, an injustice may be caused. The deliberate inclusion of this word clearly indicates that there is no requirement that a party be completely unable to meet the costs of litigation without the exercise of power.

1. I consider where, as here, there is no suggestion that there is any impediment to the Respondent’s ability to access funds for legal expenses, it may cause an injustice if the Applicant is required to expend the funds currently available to her to meet the same. The possibility of injustice is amplified where, as here, the Applicant is unable to replenish funds spent on legal expenses from funds earned by her from personal exertion and her ability to meet her weekly expenses is likely to diminish as funds which are currently productive of interest are spent on legal expenses.

2. There is no requirement that a party in the Respondent’s position must control all of the property of the parties before the Court may be persuaded to exercise its discretion to entertain an application for the provision of funds using the power in s 79 or s 80 (1) (h).[7]

   [7]           See Zschokke at 83,215

3. In the present case, the Respondent has unfettered access to the funds generated by the Anderson Group. Whilst he held the majority of the property now within his control at the time the parties commenced their relationship, it cannot be forgotten that such relationship persisted for no less than 12½ years and was productive of a child who was, and remains, primarily cared for by the Applicant.

4. In contrast to the Respondent’s position, the Applicant now has no access at all to funds generated by the Anderson Group. This absence of access to the support previously provided and the significant imbalance in the property available to the parties are further matters which persuade me that the interests of justice require the exercise of discretion in favour of entertaining the application.

5. For the reasons expressed above, I consider it appropriate to exercise the power.

The second (substantive) stage: is it just and equitable and appropriate to make the order sought?

1. It is clear the Respondent owned significant property at the time the parties commenced their relationship. The parties differ significantly in terms of their evidence about the Applicant’s contribution to the Respondent’s business operations and interests and, potentially, the extent of support she provided to him in such activities. Such differences cannot be resolved at an interim hearing.

2. However, I consider that there is sufficient uncontested evidence for me to find that, during the no less than 12½ year de facto relationship, the Applicant made at least a very significant contribution in terms of the role of homemaker and parent to the parties’ only child – both during the relationship and after separation. She continues to be primarily responsible for caring for D. Such contributions must be assessed not in a “merely token way” but in terms of its ‘true worth’.[8]

   [8]           Mallet and Mallet (1984) 156 CLR 605.

3. There is a significant and substantial difference in the parties’ financial positions. The Respondent is in a position of financial strength vis-a-vis the Applicant. That this is significantly as a consequence of his pre-relationship ownership of property does not detract from or diminish his financial superiority. As noted above, he has $1,000.00 per week available to him after expenses whereas the Applicant has about $40.00 per week.

4. As outlined above, the sum sought by the Applicant represents about 1.1 per cent of the Respondent’s estimation of the value of the property of the parties exclusive of the value of the Anderson Group.

5. In the circumstances, I am persuaded that it is just and equitable pursuant to s 79(2) of the Act and appropriate to make an order that the Respondent pay the Applicant the sum of $50,000.00.

6. It is also appropriate that the Order contain a provision to the effect that the characterisation of this payment received by the Applicant occur at the final hearing of the proceedings.[9]

The costs of valuation

[9]           Marchant & Marchant [2012] FamCAFC 181

1. The parties agree that the real property and business structures must be valued. However, they disagree about how the payment of such costs should initially be met. The Applicant accepts that it is appropriate the parties share equally in the costs of valuing the corporate entities and real property but seeks that the Respondent meet such costs initially and she reimburse him her share of the same after the conclusion of the proceedings.

2. It seems likely that the costs of valuing the Anderson Group may be relatively significant: for example, the Applicant says she has been given estimates ranging from about $35,000.00 to about $50,000.00 (exclusive of GST).

3. Given the significant disparity in the parties’ respective financial positions – as discussed above – I am persuaded that it is just and equitable and appropriate that the Respondent pay the costs initially and that the Applicant’s equal contribution to the same be taken into account when orders which exhaust the Court’s power are made.

Orders in respect of Suburb J and Suburb C properties

1. Whilst the Applicant initially sought an order for the transfer to her of the Respondent’s interest in the property situated at B Street Suburb C (the Suburb C property), she did not press this part of her interim application. Instead, she sought only that the Court make an order that she have sole or exclusive use and occupation of the Suburb C property pending the finalisation of the matter and that the Respondent be restrained from attending at it.

2. Despite the Applicant’s (challenged) evidence about an asserted history of domestic violence perpetrated by the Respondent and her evidence about his alleged comments to D about wanting to attend at the Suburb C property and feeling aggrieved that he cannot do so, there is no evidence to suggest he has attempted to, or has attended, at the Suburb C property since separation.

3. Counsel for the Applicant relied upon the Respondent’s position that he does not propose to attend on the property as the basis on which the Court would be persuaded that the balance of convenience favours the making of an order in the terms sought by the Applicant. I do not accept the submission made by Counsel for the Applicant that, “where there is no reason why the order should not be made”, it should be made.

4. The Respondent has provided an undertaking about this issue in the terms of the First Undertaking signed on 8 July 2014. Given this, and the matters referred to in paragraph 51 above, I decline to make an Order in the terms sought by the Applicant.

5. The Applicant also seeks orders that the Respondent:

   a)have the exclusive use and occupation of real property located at K Street, Suburb J in the State of Queensland (Suburb J property) pending final resolution of the proceedings; and

   b)be responsible for the repayment of the mortgage and payment of rates, insurances, body corporate and other outgoings in relation to that property.

6. The Respondent opposes the making of such orders on the basis that they are unnecessary. He says that all payments relating to Suburb J property are up to date and that he has no intention of doing anything other than making those payments in the future as and when they fall due. There is no suggestion in the Applicant’s evidence that the Respondent has failed to pay those monies – whether by way of mortgage repayment, rates, insurances and body corporate fees – as and when they fall due.

7. In such circumstances, I accept the Respondent’s sworn assertion of future intention and decline to make an Order in the terms sought by the Applicant in this respect.

The other injunctive relief

1. In summary, the Applicant seeks an order that the Respondent be restrained from dealing with any property, owned by him personally or which is within his control (through a company or trust structure in respect of which he is a director, trustee or appointor), unless he first:

   a)gives her 21 days’ notice of any intention to sell any such property or asset; and

   b)gives her “full particulars” of the manner in which he intends to deal with the proceeds realised from the sale of any such property or asset.

2. The Applicant also seeks an order that the Respondent be restrained from dealing with his interest in any company or trust structure (in respect of which he is a shareholder, officeholder, beneficiary, trustee or appointor), unless he first provides her with 21 days’ notice of any such intention.

3. The Respondent opposes the making of orders in such terms on the basis that he will continue to comply with an Undertaking, dated 2 April 2013, previously provided to the Applicant. In furtherance of this stated intention, he signed the Second Undertaking, in the same terms as that provided on 2 April 2013, on 8 July 2014.

4. In addition, whilst not exhibited to the Respondent’s affidavit material, I note his evidence that he has provided the Applicant with an undertaking not to resign from any position he holds in relation to any corporate entity or trust. There is nothing in his evidence to suggest that he seeks to be released from this undertaking and I intend to proceed on the basis that he intends to continue to be bound by it.

5. Counsel for the Applicant submitted that, despite the terms of the Undertaking dated 2 April 213, the Applicant had not been provided with the Put and Call Agreement, nor with a copy of the contract for sale of the Respondent’s interest in F Pty Ltd, nor particulars of the same including settlement date. However, this seems to me to be more in the nature of a complaint about the timeliness of disclosure rather than an assertion that the Respondent has, in some way, failed to abide the terms of the April 2013 Undertaking. Any lack of information can, clearly, be remedied by the Respondent’s continued compliance with his on-going obligation to disclose relevant documents in these proceedings.

6. The Applicant also asserts[10], as a basis for orders in the terms she seeks, that, whilst the Respondent provided her with the Undertaking in April 2013, he failed to provide her with any information regarding any sale of the properties or disposal of company assets after that date. Such assertion seems to me to be contradicted by the contents of paragraph 2 of her affidavit, filed 29 May 2014, in which she recounts she received an email from the Respondent on 22 January 2014, attached to which was a document entitled “F Pty Ltd – Heads of Agreement” which bears the same date.

   [10]         Applicant’s affidavit filed 23 December 2013.

7. In addition, a perusal of the documents which constitute Exhibit 3 establishes that:

   a)by correspondence dated 21 January 2014, the Respondent confirmed a matter already known to the Applicant, at least in the sense of it having previously occurred sometime earlier[11]: namely, that L Pty Ltd was interested in acquiring F Pty Ltd, and stated that he:

   [11]Applicant’s affidavit filed 23 December 2013 where, at par 100, she deposes that: “In September 2012, Ray was in negotiations with L Pty Ltd to sell his interest in F Pty Ltd. An offer of $12,000,000 was made, however it was not accepted…”

   i)had participated in discussions with representatives of that company in relation to its proposed acquisition; and

   ii)intended to continue such discussions with the intention of selling F Pty Ltd if acceptable terms could be reached; and

   iii)would keep the Applicant informed.

   b)by correspondence dated 17 April 2014, the Respondent:

   i)enclosed a Confidentiality Agreement between F Pty Ltd, M Pty Ltd and L Pty Ltd dated 24 January 2014 and advised that negotiations between F Pty Ltd and L Pty Ltd were ongoing;

   ii)advised he would keep the Applicant informed about the progress of the negotiations.

   c)by correspondence dated 2 May 2014, the Respondent:

   i)provided the Applicant with documents regarding L Pty Ltd’s interest in acquiring the assets and liabilities of F Pty Ltd and M Pty Ltd including a Heads of Agreement dated 4 March  2014;

   ii)informed the Applicant that negotiations continued with L Pty Ltd after the Heads of Agreement was signed and that an agreement as to the terms and conditions of the sale of F Pty Ltd had not then been reached;

   iii)reiterated the commercially sensitive nature and confidentiality of the documents provided;

   d)by correspondence dated 6 June 2014, the Respondent advised the Applicant he had been continuing his negotiations with L Pty Ltd for the acquisition of F Pty Ltd and that he was “now close to reaching agreement” with the prospective purchaser;

   e)by correspondence dated 4 July 2014, the Respondent told the Applicant he had signed a contract with L Pty Ltd to sell his interest in F Pty Ltd for $14,000,000.00 and advised she would be provided with a copy of the contract for sale when it was received by his solicitors.

8. I do not accept the submission made by Counsel for the Applicant that, in circumstances where the Respondent has said he would be bound by his Undertaking, there is “no reason” why orders should not be made in the terms sought by the Applicant.

9. I accept the Respondent’s Undertaking proffered by the Respondent to the Court on 8 July 2014. Given my acceptance of the Respondent’s sworn reference to the Undertaking previously provided to the Applicant that he will not resign from any position he currently holds in relation to any corporate entity or trust and the fact that he has not sought to be excused from such undertaking, I decline to make orders in the terms sought by the Applicant in this respect.

10. So that there can be no misunderstanding of the basis on which I have determined to decline to order the injunctive relief sought by the Applicant, the Orders made will specifically note not only the terms of the Undertakings provided by the Husband to the Court on 8 July 2014 but also the terms of the further undertaking referred to in his affidavit material.

Costs

1. The Respondent seeks that the Applicant pay his costs of and incidental to the application. I consider it appropriate that the costs of each of the parties of and incidental to the Applicant’s interim application be reserved and I so order.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 August 2014.

Associate:     

Date:              22 August 2014