Schroeder & Leblanc
[2023] FedCFamC1F 951
•8 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Schroeder & Leblanc [2023] FedCFamC1F 951
File number: MLC 2800 of 2023 Judgment of: CARTER J Date of judgment: 8 November 2023 Catchwords: FAMILY LAW – JOINDER APPLICATION – Where the husband seeks to join third parties to the proceedings – Where the third parties have been joined as the second, third, and fourth respondents.
FAMILY LAW – ANTI-SUIT INJUNCTION – Where there are concurrent proceedings in the Supreme Court of Victoria – Where these proceedings were commenced by the second, third, and fourth respondents – Where the husband seeks an injunction from the second, third, and fourth respondents from continuing proceedings in the Supreme Court of Victoria.
FAMILY LAW – PROPERTY – Where the husband seeks the appointment of a single expert – Where there is a significant intermingling of finances between the parties and third parties – Where the husband seeks an injunction against the fourth respondent from dealing with assets of the D Pty Ltd Self-Managed Superannuation Fund.
FAMILY LAW – SECURITY FOR COSTS – Where the wife and third parties seek security for costs in the event the joinder is allowed by the Court.Legislation: Family Law Act 1975 (Cth) ss 79, 90AE, 106B, 114, 114AB
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 43
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.01
Family Law Regulations 1984 (Cth) reg 19
Cases cited: Janda & Janda (No 2) [2022] FedCFamC1F 610 Division: Division 1 First Instance Number of paragraphs: 153 Date of hearing: 25 October 2023 Place: Melbourne Counsel for the Applicant: Ms Renwick Solicitor for the Applicant: Coulter Legal Counsel for the First Respondent: Ms Tiernan Solicitor for the First Respondent: Lander & Rogers Counsel for the Second, Third and Fourth Respondents: Ms Tulloch Counsel for the Second, Third and Fourth Respondents: Mr Puyol Solicitor for the Second, Third and Fourth Respondents: Mann Lawyers ORDERS
MLC 2800 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SCHROEDER
Applicant
AND: MS B LEBLANC
First Respondent
MR LEBLANC
Second Respondent
MS C LEBLANC (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
CARTER J
DATE OF ORDER:
8 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The matter be listed for further interim hearing on 7 December 2023.
2.The husband file and serve a Statement of Claim in relation to the second, third and fourth respondents on or before 17 November 2023.
3.The parties file any further material, and an outline of case on which they seek to rely at the interim hearing as follows:
(a)the husband on or before 17 November 2023;
(b)the wife on or before 24 November 2023; and
(c)the second, third and fourth respondents on or before 1 December 2023.
4.The husband’s application that the single expert be appointed to undertake a forensic analysis in relation to the income and earnings of E Pty Ltd for the last four years is dismissed.
5.Within 28 days of these orders, the husband disclose all documents in his possession or power which evidence any alleged direct or indirect financial contribution by him solely or with any other person to the acquisition, conservation or improvement of any property owned by the husband, the wife and/or the second, third and fourth respondents, the F Family Trust, the D Pty Ltd Self-Managed Superannuation Fund and/or any further or other entity in which he asserts the parties and the respondents or any of them have or held any interest from 1990 to date.
6.The applications by the wife and by the second, third and fourth respondents for security for costs be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
The application currently before the Court is the husband’s Applications in a Proceeding filed 18 August 2023 and 10 October 2023, in which he sought orders including;
(a)leave to join the wife’s parents and the entity the D Pty Ltd as the second, third and fourth respondents;
(b)an anti–suit injunction against the wife’s parents and D Pty Ltd restraining them from continuing or commencing any proceedings against the husband including in the Supreme Court, other than to discontinue those proceedings, or seek they be transferred to this Court;
(c)that G Accountants be appointed as the single expert to undertake a forensic analysis and prepare a report in relation to the income and earnings of the wife’s company, E Pty Ltd, and the funds transferred by the wife to that entity;
(d)orders regarding how rental income from various properties is to be applied and preserved on an interim basis;
(e)disclosure from D Pty Ltd; and
(f)urgent interim injunctions against D Pty Ltd in its capacity as the trustee for the self‑managed superannuation fund of the husband and wife from dealing with, selling, dissipating or disbursing any assets of that fund or paying director’s fees.
As I have already made the orders for joinder, I will refer to the wife’s parents as the second and third respondents and D Pty Ltd as the fourth respondent.
Also before the Court are the responses to the husband’s applications filed by;
(a)the wife on 18 October 2023;
(b)the second and third respondents on 15 September 2023; and
(c)the fourth respondent filed 24 October 2023.
Those responses seek orders dismissing the husband’s Applications in a Proceeding.
In the alternative, the wife and the second, third and fourth respondents sought orders for security for costs against the husband. The second and third respondents sought additional orders for the sale of the property at 2 H Street (being a property held by the fourth respondent as trustee for the D Pty Ltd Self-Managed Superannuation Fund (“D Pty Ltd SMSF”)) and for the director of the fourth respondent to continue paying all the expenses and outgoings for D Pty Ltd, in its own capacity and in its capacity as trustee for the D Pty Ltd SMSF and the F Family Trust.
At the conclusion of the hearing before me on 25 October 2023, I made the orders for joinder, discovery, and the injunctive relief in relation to the fourth respondent as sought by the husband. There was some urgency for those orders to be made, and I now set out my reasons for making those orders.
I reserved my decision in relation to the other orders sought, namely:
(a)the husband’s application for orders regarding the rental income of the various properties;
(b)the husband’s application for an expansion of the single expert’s report;
(c)the wife’s application for security for costs; and
(d)the applications by the second, third and fourth respondents for security for costs.
There were other orders sought by the parties in their applications/responses. However, where counsel did not address those matters in their oral submissions, I have assumed those orders were not pressed at this stage.
I have otherwise listed the matter for a further interim hearing before me as I anticipate there will be outstanding interim applications that need to be pressed.
The focus at the hearing before me on 25 October 2023 was, understandably, on issues relating to joinder, the anti–suit injunction and restraints on D Pty Ltd as trustee of the self-managed superannuation fund. On consideration, I am not satisfied the parties sufficiently ventilated the issues regarding the rental of the properties and what should happen to the income from those properties on an interim basis. Accordingly, the question of the rental income will require further Court time if the parties have not otherwise resolved that issue.
Similarly, I have also not made the orders as sought for the husband and wife to ensure the properties at J Street and 2 H Street be rented out, as I did not have the benefit of the wife’s submissions on that point. It seems sensible that the properties are rented out, however, I can hear further about that at the interim hearing.
Additionally, I have not extended the injunctions made on 10 May 2023 to all parties, nor have I made orders to reinstate the husband’s access to the joint account held with the wife with K Bank. I have also not made orders as sought by the second and third respondents that Mr L continue making payments for D Pty Ltd, and in its capacity as trustee for the F Family Trust and the D Pty Ltd SMSF. I do not consider that I heard sufficient submissions from all parties in relation to these matters.
The matter has also been provided with a final hearing date to commence on 1 July 2024.
BACKGROUND
The husband and wife married in 1990. There are two children of the marriage, being 32 year old Mr M and 25 year old Mr N. The husband and the wife are both health professionals.
The husband and wife separated in May 2020.
The second respondent is 88 years old and the third respondent is 91 years old. They both live in Country P, in a property registered in the names of Mr M and Mr N. The second and third respondents do not pay rent.
The second respondent was a tradesperson.
The husband, the wife and the second and third respondents were engaged in property development, and their finances were significantly intertwined over many years. There is considerable dispute as to how the purchase and development of properties was funded, whether certain assets form part of the matrimonial pool available for division between the husband and wife, and whether the husband and wife owe the second and third respondents substantial funds as is asserted by the wife and her parents.
It is the husband’s evidence that save for the former matrimonial home at Q Street, Suburb R, all the funds for the acquisition and development of property were provided by the husband and wife. The property developments were conducted through the fourth respondent (D Pty Ltd), which the husband says is an entity that has always been operated by and belongs to the husband and the wife. He denies that any monies are owed to the second and third respondents.
It is the evidence of the wife, and the second and third respondent that the second and third respondents provided considerable sums of money to the husband and wife and that those monies, plus interest, must be repaid. The wife says she and the husband together owe the second and third respondents about $8,678,000. She and the second respondent deny that the second respondent holds the shares in D Pty Ltd on trust for the husband and wife.
The husband issued these proceedings on 20 March 2023. He did not nominate the second or third respondents as parties to the proceedings. He did not nominate the fourth respondent either in its own capacity, nor as trustee of the F Family Trust, nor as trustee for the D Pty Ltd SMSF as a party to the proceedings either. He did not particularise the orders sought on a final basis, and sought to be excused from doing so pending disclosure and valuations being completed.
The second and third respondents issued proceedings in the Supreme Court of Victoria in mid‑2023 seeking that the husband repay them the sum of approximately $3,911,000. They say these liabilities arise out of loan agreements made in 1995 and 2019.
In addition, the husband faces a claim in the Supreme Court from the fourth respondent seeking rental recovery and damages from the husband arising from his involvement with the property at 1 H Street owned by D Pty Ltd and the use of its other assets and income. A permanent injunction has been sought in the Supreme Court proceedings against the husband to restrain him from dealing with the property. The fourth respondent also sought orders for the transfer of control of the share portfolio (of around $1,800,000) held by it in its capacity as trustee of the D Pty Ltd SMSF from the husband and back to the director.
The husband filed a Defence in the Supreme Court proceedings in which inter alia he denied owing any funds to the second and third respondents. He also denied having dealt with the property at 1 H Street inappropriately, save to admit that the fourth respondent was entitled to the rent from the H Street property following its demand for same in early 2023. I understand the husband has paid all, or most of the rental income for that period into trust.
The husband filed an Amended Initiating Application on 4 August 2023 in these proceedings naming the second to fourth respondents as parties. It is clear from the orders sought that the husband’s case is that:
(a)the property held in the name of the fourth respondent, including the property held on trust should be treated as property of the husband and the wife;
(b)the husband and wife owe no monies to the second or third respondents;
(c)the second respondent holds his shares in the fourth respondent on trust for the husband and wife; and
(d)the deeds entered into by the wife with the second and third respondents on 23 April 2023 and 3 May 2023 be set aside pursuant to s 106B of the Family Law Act 1975 (Cth).
JOINDER
Section 79(10)(b) of the Family Law Act sets out that any person whose interests would be affected by the making of an order is entitled to be joined to the proceedings. The FederalCircuit and Family Court of Australia (Family Law) Rules 2021 (Cth) also provide, at r 3.01:
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding
As set out, at the conclusion of the hearing before me on 25 October 2023 I made orders for joinder as sought by the husband. I did so as, for the reasons that follow, I am satisfied that:
·the rights of the second, third and fourth respondents would be affected by an issue in these proceedings; and
·the participation of the second, third and fourth respondents is necessary for this Court to determine all issues in dispute in the proceeding.
The second and third respondents – the wife’s parents
The husband, the wife and the second and third respondents undertook a number of property developments following the marriage of the husband and wife. There is a factual dispute as to the source of the funds for the various developments. The husband says he and the wife funded developments from their income as health professionals. As best I can tell the wife and the second and third respondents assert the second and third respondents provided capital.
Until 1995, the second and third respondents owned the property at Q Street, Suburb R. This was transferred to the husband and wife in 1995, who obtained a mortgage against that property in their own names, and thereafter paid the mortgage. No funds were exchanged between the husband and wife and the second and third respondents. Rather, the transfer of land from the second and third respondents was marked as “the entitlement in equity”.
It is common ground that at the time of the transfer the husband and wife signed a written document with the second and third respondents which recorded that the husband and wife were to pay her parents $200,000 within 30 days of a demand to do so, at five per cent interest.
The wife and her parents say this is a genuine loan and must be repaid. The husband denies there is any liability on the part of the husband and wife to pay the principal or interest.
At first blush it appears that the purported loan may be statute barred. It was repayable on demand, and as I understand it, it is common ground that no demands were made for its repayment prior to the separation of the husband and wife. Indeed in the Statement of Claim filed in the Supreme Court it is recorded that the first demand for repayment was made in early 2023.
It is not conceded by the wife or her parents that the loan is statute barred. They say the loan must be repaid.
In 1999, the husband and wife purchased a property in S Street, Suburb T registered in the name of the wife. The husband said the purchase and development of that property was paid for by the husband and wife from their income as health professionals.
That is denied by the wife, who asserts that her parents paid for the property and the costs of developing it.
In around 2000, the S Street property was subdivided into 1 and 2 S Street. The husband says the properties are now leased, and he and the wife meet all expenses for the properties. The husband further says the second respondent receives the rental income from the properties which the husband seeks to cease. He proposes the rental incomes be paid into an account and the parties restrained from using those monies.
In around 2018 the husband and wife purchased a property in Country P. The husband said this purchase was funded by the wife and husband from their personal savings. According to the husband, the property was then renovated, with the $1,000,000 to do so coming from the accounts of the husband and wife. That property has been registered in the names of Mr M and Mr N. It is occupied by the second and third respondents, who do not pay rent.
On 10 December 2019 the husband and the wife each signed separate documents with the second and third respondents to the effect that;
(a)the husband and wife owed the second and third respondents $2,000,000; and
(b)that interest accrue on that amount at eight per cent per annum commencing 1 December 2017.
The husband denies the second and third respondents provided any money to the husband or the wife in accordance with that document. Rather, it is his evidence that this document was drafted so that the second and third respondents could receive the net rental income from the S Street properties – characterised as a loan repayment, rather than income being paid to them. He says this was done so that their pension payments were not impacted. It is his case that although the document was expressed to be a loan agreement, it was not a loan, no funds were advanced, and no monies were ever to be paid from the husband and wife to her parents. It is his evidence that he signed the 2019 document in reliance on representations made by the wife to that effect.
According to the affidavit of Dr U filed on 15 September 2023 on behalf of the second and third, respondents, the 2019 deeds were entered into “to resolve the issue of a series of advances made by [the second and third respondents] to [the husband and wife], and which they had used to invest in various ways.” He says he was instructed the husband and wife proposed the deeds “to crystallize the debts owed” to the second and third respondents.
Dr U further deposed that demands were first made for the repayment of the 2019 alleged loan “[f]rom early 2020 onwards”. The date is not specified. The husband and wife separated in May 2020.
According to the Statement of Claim, the amounts claimed by the second and third respondents as being owed to them by the husband are:
(a)the principal sum of $200,000 and interest calculated to be $675,077 as at May 2023 arising from the purported 1995 loan; and
(b)a further $2,000,000 plus interest of $1,036,515 arising from the 2019 agreement.
In total, they say they are owed $3,911,000 from the husband, together with further interest.
The husband also asserts that $883,000 worth of a commodity was stored at V Company in the wife’s name, until 29 March 2023. He says that the commodity formed part of the matrimonial pool of assets. That is denied by the wife who asserts the commodity belongs to her father, and she was holding it on trust for him.
Just four days after the husband issued these proceedings, the wife contacted V Company and requested that the account name be changed from her name, and instead she be recorded as trustee for her father. On 29 March 2023 – just nine days after the husband issued these proceedings – the commodity was removed, and its whereabouts unknown to the husband. The husband had no knowledge of this until he issued a subpoena to V Company.
The fourth respondent – D Pty Ltd
D Pty Ltd operates in its own right. It also operates as the trustee for the F Family Trust (of which the wife is the sole appointor) and as the trustee for the D Pty Ltd SMSF. The husband, the wife and their adult son Mr M are the only members of the D Pty Ltd SMSF. That was established in 1999, at a time the husband was a director of D Pty Ltd.
The directors of D Pty Ltd at various times during the marriage have been the husband, the wife and the second respondent. A Mr L is now the sole director, having been appointed three days after the husband issued these proceedings. The husband said he only recently learned of Mr L’s appointment, and had until then believed he remained a director and shareholder. It is unclear when the husband and wife ceased being shareholders in D Pty Ltd.
The orders the husband seeks in these proceedings includes a final order that the second respondent holds his shares in the fourth respondent on trust for the husband and wife. The wife and the second respondents say the husband has known that the second respondent was the sole shareholder since 2003, that those shares are not held on trust for the husband and the wife, and the husband is well aware that the assets of D Pty Ltd do not form part of the pool of matrimonial assets.
The husband says D Pty Ltd was originally registered by the wife in 1989 as B Leblanc Pty Ltd. He said the wife and her father were directors until 1994. At that time the husband was appointed as a director and the second respondent was removed. In 1996 the name of the entity was changed to Schroeder and Leblanc Pty Ltd. From 1994 to 1998 the husband said he and the wife operated their businesses through that entity.
The entity was renamed D Pty Ltd in 1998. The husband said after that time they used D Pty Ltd to purchase, develop and sell properties, investing profits into the next project, in its own capacity or in its capacity as trustee for the F Family Trust. It is the husband’s evidence that the funding for the property developments came from the income the husband and wife generated as health professionals. As already observed, that is disputed by the wife and the second and third respondents, who say the funding came from the second and third respondents.
In 2000 the husband said he and the wife purchased a property at H Street, Suburb W, which was registered in the name of D Pty Ltd. That property was subdivided and developed into several dwellings, which were sold, save for two units, being:
(a)2 H Street which was transferred to the D Pty Ltd SMSF in 2001; and
(b)1 H Street, which was transferred to D Pty Ltd in 2001.
As I understand it, the husband said he and the wife had the benefit of the rental income from Unit 1 since around 2001, and that he managed the property, met the expenses and received the rental income. In the Supreme Court proceedings, D Pty Ltd seeks damages against the husband in relation to his involvement with that property and recovery of the rental. In these proceedings, the husband seeks interim orders for injunctions to prevent the rental income from 1 H Street being used other than to meet the expenses for the property.
D Pty Ltd Self-Managed Superannuation Fund
The husband said 2 H Street has been leased since 2018 and the husband seeks interim orders for injunctions to prevent the rental income being used other than to meet the expenses for the property.
In addition to the property at 2 H Street, Suburb W, D Pty Ltd as trustee for the D Pty Ltd SMSF has a share portfolio worth about $1,800,000 and $3,000 in a bank account.
Mr L deposed that since his appointment as director of D Pty Ltd by the second respondent in early 2023, pursuant to his duties as director, he has sought to take control of D Pty Ltd’s assets and accounts, and determine what steps are required to make the self-managed superannuation fund compliant. He has recently sold shares held on trust for the self-managed superannuation fund and applied the proceeds of the sale of those shares to pay approximately $160,503 to the second respondent asserting that was a repayment for outgoings the second respondent has met on behalf of D Pty Ltd, and paying over $193,000 in legal fees on behalf of the second to fourth respondents.
I will return to this matter when considering the injunctive relief sought against D Pty Ltd.
F Family Trust
D Pty Ltd is also the trustee of the F Family Trust (of which the wife is the sole appointor; and the husband, the wife and their children are the specified beneficiaries).
D Pty Ltd owns a property at J Street, Suburb R in its capacity as trustee of the F Family Trust. It is the husband’s evidence that this property was purchased from funds generated by the husband and wife. The husband seeks interim orders for injunctions to prevent the rental income from this property being used other than to meet the expenses for the property.
Discussion as to joinder
Counsel for the second, third and fourth respondents asserts that the husband has failed to properly articulate a claim against her clients.
It is correct that the husband has not yet filed a Statement of Claim in these proceedings setting out the relief he seeks against the second, third and fourth respondents and pleading the basis for that relief. However, as observed by Christie J in Janda & Janda (No 2) [2022] FedCFamC1F 610:
59. … It should be remembered that there are two bases upon which the Court may join a third party – the first is where there is specific relief sought against that third party and the second is where their interest are directly affected.
It is clear the husband does not agree any monies are owed by the husband and wife to the second and third respondents, and that the husband regards the assets of the fourth respondent as being matrimonial assets. Additionally, the Amended Initiating Application seeks final and interim orders that impact on the interests and rights of the second, third and fourth respondents.
I am also of the view that the husband’s claim against the respondents could not be described as having no real prospects of success. He has deposed to a history which, if correct, could support his assertions. I understand the second, third and fourth respondents may assert the husband’s evidence in this Court is markedly different from the position he adopted in the Supreme Court proceedings. No doubt these matters will be explored at a final hearing.
Counsel for the second, third and fourth respondents assert that the husband delayed in bringing his joinder application – and has now brought it in circumstances where the applications before the Supreme Court are advanced. As a result, she says the prejudice to her elderly clients is significant and that the joinder application is an abuse of process by which the husband seeks to avoid paying loans. The respondents say the husband’s delay in making the joinder application, and his participation in the Supreme Court proceedings means considerable funds have been expended by them and renders his application for joinder at this stage unfairly prejudicial and unreasonable. They assert he should be estopped from seeking to litigate in this Court matters he has allowed to significantly progress in the state court.
The husband issued these proceedings on 20 March 2023. The husband says at that time he did not know the second and third respondents would assert they were owed funds. Nor did he know there would be any dispute as to the husband and wife being entitled to 1 H Street. In those circumstances he said there was no need for the additional parties to be named as respondents in his application.
In early 2023 – the day the wife was served with the husband’s Initiating Application – she resigned as a director of D Pty Ltd and Mr L was appointed. The husband said he had no knowledge of the change of directors. On that same day, as observed, the wife wrote to V Company and requested the account be changed from her name alone to her name on trust for her father. All of the commodity was then removed from V Company five days later.
On 27 March 2023, seven days after the husband issued these proceedings, the wife’s parent’s solicitors wrote to each of the husband and the wife demanding the repayments of the loans from 1995 and 2019.
On 23 April 2023, the wife signed a deed of settlement and loan agreement with her parents, pursuant to which she agreed to pay them $2,100,000. The wife entered this deed without the knowledge or agreement of the husband. On 3 May 2023, she entered into a further deed with her parents, committing to pay them $2,750,000. Again, the husband had no knowledge of that deed. The wife says these deeds do not create a new liability, but settle the terms of repayment as a result of obligations arising from the 1995 and 2019 agreements.
On 1 May 2023 the husband’s newly appointed lawyers wrote to the lawyers for the second, third and fourth respondents seeking disclosure with respect to the purported loans (not knowing about the deed of settlement), informing them of the first return date in this Court and providing them with the pre–action procedure brochures for this Court. In that letter the husband’s lawyers invited the additional respondents to immediately file and serve any documents on which they sought to rely in the proceedings in this Court.
In mid-2023, shortly before the first return date in this Court, the second, third and further respondents commenced proceedings against the husband in the Supreme Court of Victoria. The second and third respondents sought repayment of approximately $3,911,000 from the husband arising from the 1995 and 2019 loan agreements, together with additional interest. Injunctive relief was also sought regarding the husband’s management of the property at 1 H Street.
Whilst the second, third and fourth respondents were entitled to bring the proceedings they did in the Supreme Court, they knew at least as at 30 March 2023 of the claims the husband made regarding the alleged loans and ownership of property. They had been provided with the husband’s Initiating Application and affidavit in support. In a letter dated 30 March 2023 to the solicitors then acting for the wife and then acting for the husband, Mann Lawyers – who continue to act for the second and third respondents – expressed a view that in light of the husband’s material filed in these proceedings, their clients would be necessary parties in this Court, and that D Pty Ltd may also need to be joined.
The wife filed her material for these proceedings on 9 May 2023, the day before the first return date. That was when the husband first became aware that the wife had resigned as director of D Pty Ltd and that Mr L had been appointed. It was also the first time the husband became aware that the wife had signed deeds of settlement with her parents in April and May 2023.
When the matter was listed on 10 May 2023, the husband and wife agreed to attend a mediation and to undertake disclosure in the meantime. The notations to the orders indicated that the second and third respondents would be invited to participate in the mediation, and that the husband may subsequently seek to join them in the event the matter did not settle at mediation. The notations also indicated that the wife had enabled her parents to lodge caveats against the properties at S Street and the Q Street property to secure the alleged liability arising from the deeds signed by her in April and May 2023.
The husband was served with the Supreme Court proceedings in mid-2023.
Shortly after, the husband filed a notice of conditional appearance in the Supreme Court proceedings. That became unconditional after 14 days.
On 7 June 2023, the husband’s solicitors wrote to the solicitors for the second, third and fourth respondents, requesting a stay of the Supreme Court proceedings pending determination of the proceedings in this Court. That was rejected.
The parties have all filed material in the Supreme Court and have expended considerable legal fees to date in those proceedings. The second respondent has also given his evidence on commission due to his poor health.
I understand the mediation occurred on 2 August 2023. The matter did not resolve.
As already set out, the husband’s Amended Initiating Application filed 4 August 2023 – just two days after the failed mediation – sets out a raft of interim and final orders sought that would affect the rights of the additional respondents. He named the second to fourth respondents as parties on that Amended Initiating Application.
The husband’s Application in a Proceeding seeking leave to join the additional respondents was filed on 18 August 2023.
That chronology does not suggest an inordinate or inexplicable delay in making the joinder application. I do not, as urged by counsel for the second, third and fourth respondents significantly criticise the husband in this regard, but I do accept that there has been considerable sums already expended in the Supreme Court proceedings.
I accept that the second and third respondents would prefer not to participate in the proceedings as between the husband and wife, as the scope of the dispute is wider, and this may result in additional expenses for them. They say the Supreme Court remains the most appropriate forum to deal with what they describe as straightforward and simple debt claims.
However, in my view, these are not necessarily straightforward and simple debt claims when I take into account the husband’s evidence. He sets out a complex and financially intertwined relationship between himself, the wife and her parents, including the creation of various documents describing alleged loans (not just the 1995 and 2019 documents) that were created for ulterior reasons, and did not create liabilities between the parties to the documents.
I accept the second and third respondents are in poor health, elderly, and reside overseas. To the extent it is asserted that they would face delays and an unnecessary lengthy trial process if joined to these proceedings, I am able to list the matter for final hearing in July 2024. I do not know when the proceedings in the Supreme Court can be finally determined, and there is dispute between the parties as to that issue. As set out later in these reasons, in my view it is a more efficient use of everyone’s time and resources for one court to deal with all matters, rather than have concurrent applications dealing with matters that have considerable overlap, and the risk of the state court and this Court making different findings on the same issue. In terms of the ability of the second and third respondents to participate in these proceedings given their age and health, every effort will be made to accommodate them.
It seems to me that in order for this Court to determine the legal and equitable interests of the husband and wife, the Court will need to made findings including:
(a)whether or not there is any money owed to the second and third respondents;
(b)whether the second respondent holds his interest in the fourth respondent on trust for the husband and wife;
(c)whether the deeds entered into between the wife and the second and third respondents on 23 April 2023 and 3 May 2023 should be set aside pursuant to s 106B of the Family Law Act; and
(d)if monies are to be repaid to the second and third respondents, who is responsible to make that repayment.
It is plain that my determination of those matters could significantly alter the rights of the second, third and fourth respondents. Moreover, it is also plain that to determine those issues it is necessary that the second, third and fourth respondents are parties to the proceedings. It is not, in my view, sufficient for the additional respondents to file affidavits in support of the wife’s case.
As already noted, the husband seeks urgent injunctive relief sought against the fourth respondent, who has indicated a desire to sell the property at 2 H Street, which it holds as trustee for the D Pty Ltd SMSF. The fourth respondent has also recently sold shares it held as a trustee for the D Pty Ltd SMSF and paid inter alia, the legal fees of the second and third respondents. Plainly, the injunctive relief would affect the rights of the fourth party. The husband also seeks interim orders regarding the application of the rental income from the parties owned by the fourth respondent in its own right and in relation to the properties it holds on trust for the F Family Trust and the D Pty Ltd SMSF. Again, that relief would affect the rights of the fourth party.
Given the intermingling of finances, and the assertions each makes as to the source of funds for the various projects and the assertions made as to the advance of funds, it seems significant discovery will need to occur. By joining the parties as sought by the husband, each additional party will be required to make full and frank disclosure.
The joinder of the additional parties goes beyond what is useful or expeditious, and in my view, there are no available satisfactory alternative means to joinder.
I am satisfied that in the event the monies are found to be owing to the second and third respondents there is sufficient equity in the pool for those funds to be recovered. I am also satisfied that even on the pool as contended by the wife, there will be sufficient funds to meet any costs order that could be for the benefit of the additional respondents in the event that the Court finds in their favour and costs awarded.
ANTI SUIT INJUNCTION
At the conclusion of the hearing before me on 25 October 2023, I also made the anti–suit injunction as sought by the husband. I now set out my reasons for making that order.
It is not in dispute this Court has the power to restrain a party to proceedings before it from commencing or continuing proceedings in another court. It is of course a serious step to injunct a party from continuing litigation, and the matters to be taken into account before doing so are well known.
What I must consider is whether both actions should continue simultaneously, or whether this Court should determine all the issues.
Clearly both Courts have the jurisdiction to hear and determine the dispute as between the husband and the additional respondents regarding whether monies are owed to the second and third respondents, and restraints on the husband, and the other relief sought, with respect to the property owned by the fourth party. However, the relief sought in these proceedings goes beyond those questions. It includes remedies sought pursuant to ss 90AE and 106B of the Family Law Act. Those remedies would not be available in the state court. Accordingly, if the Supreme Court proceedings continued, many of the same matters would need to be reconsidered in this Court.
Additionally, there are interrelated matters that are before this Court, but are not before the Supreme Court. They include that the husband in these proceedings has sought a declaration that the shares in the fourth respondent held by the second respondent are the assets of the husband and wife. Additionally, the husband asserts the commodity removed from V Company is a matrimonial asset, which the wife asserts she was only holding on trust for the second respondent.
As already noted, the second to fourth respondents would have to be parties to these proceedings given the husband’s applications pursuant to ss 90AE and 106B of the Family Law Act and the declaration he has sought as to ownership of D Pty Ltd.
Section 43 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides:
In every matter before the Federal Circuit and Family Court of Australia (Division 1), the Court must grant, either:
(a)absolutely; or
(b)on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c)all matters in controversy between the parties may be completely and finally determined; and
(d)all multiplicity of proceedings concerning any of those matters may be avoided.
It is my view that two separate sets of proceedings, covering significantly overlapping issues would be seriously burdensome. Evidence adduced in both sets of proceedings would include some duplication. Moreover, the state court cannot provide the relief sought regarding substituting the wife as the creditor and/or setting aside the deeds. This Court, however, can deal with the whole dispute.
The proceedings in this Court – albeit only against the wife – were issued first in time. As observed, the husband said he did not know at the time he issued these proceedings that it would be necessary for the second to third respondents to be joined.
The second, third and fourth respondents brought their application in the state court in circumstances where they knew the asserted monies owed to them and the ownership of various assets would be a matter in dispute in these proceedings.
In terms of the ability for the parties to participate in either set of proceedings, I note the second and third respondents live in Country P. That makes their participation in either set of proceedings in Australia more difficult. It was asserted by counsel that the second respondent has been permitted to give his evidence in the Supreme Court by commission. It was further asserted that if the second and third respondents are required to give oral evidence in these proceedings that will be arduous for them, given the time delays, their ages, and their declining states of health. Moreover, if the state proceedings were stayed, the second, third and fourth respondents would be unlikely to recover any costs incurred in those proceedings in the event they were successful in this Court.
There have been several hearings in this Court, a number of documents filed, and the matter has been fixed for a final hearing to commence on 1 July 2024.
There is no agreement as to the stage of proceedings in the Supreme Court, or when they might be resolved. The second, third and fourth respondents asserted the proceedings in the state court are well advanced, that the parties have spent considerable sums pursuing their claims and counter claims there, and a final determination could be reached promptly. That was disputed by the husband who described the proceedings in the state court as in its preliminary stages only.
Certainly there have been a number of interim hearings, a number of documents filed and the provision of some oral evidence by the second respondent in the Supreme Court proceedings. Counsel for the second to fourth respondents estimated the proceedings in the state court were approximately three quarters complete – although a basis for that calculation was not provided. Importantly, there was no clear indication as to when a final hearing would be conducted in the Supreme Court, and no agreement as to the potential duration of that hearing. The respondents said they understood the matter could be accommodated in the near future with a one to two day hearing. The husband said there was no indication when a trial could be held, and he expected the proceedings to be listed for a five day hearing.
I note the exchange between counsel for the plaintiffs and Connock J in mid-2023 in the Supreme Court. In that exchange counsel indicated (inaccurately) that this Court would unlikely be able to list the matter until the end of 2024 or early 2025. Counsel continued:
[COUNSEL FOR THE PLAINTIFFS]: …if I get an indication from this court, if a two or three-day matter is required to be heard in this court, could it be heard before late 2024. And I'm pretty confident that it could.
HIS HONOUR: Well, as things stand, I'm not sure that that confidence is well-placed.
(Transcript p.12 lines 23-28)
That exchange does not support an inference that the proceedings in the Supreme Court can be heard any more promptly than the final hearing date I am able to allocate the parties in this Court.
I accept that there are practical difficulties faced by the second and third respondents in participating in proceedings in this Court, and that they have expended considerable amounts on legal fees in the Supreme Court proceedings. However, on balance, and considering all the matters I am satisfied that:
(a)this Court is able to determine all the issues between the husband, the wife and the second, third and fourth respondents. That includes the relief pursuant under ss 90AE and 106B of the Family Law Act;
(b)the final hearing can be accommodated before me as a primary fixture to commence 1 July 2024;
(c)the asserted liabilities of the husband and wife to the second and third respondents, the validity of the deeds entered into between the wife and her parents and whether those should be set aside, and the question of the ownership of the shares in the fourth respondent are all matters that this Court can determine, and which all arise from a common substratum of facts and all arise from the matrimonial relationship;
(d)if two sets of proceedings run concurrently, the parties will be required to expend fees in both Courts. There could be conflicting findings made on relevant issues; and
(e)given the difference in the asset pool contended by the husband and the wife the determination of the validity or otherwise of the asserted loan, the s 106B application, and the ownership of the shares of the fourth respondent are in my view, likely to be central to the resolution of the matrimonial dispute.
Accordingly, I grant the anti–suit injunction.
INJUNCTIONS
The husband sought an injunction against D Pty Ltd in its capacity as trustee of the D Pty Ltd SMSF from dealing with, selling, or dissipating any assets of the D Pty Ltd SMSF. As already observed, D Pty Ltd holds the property at 2 H Street and a significant share portfolio on trust for the D Pty Ltd SMSF.
Additionally, the husband sought an order restraining the director of D Pty Ltd (currently Mr L) from charging any fees to D Pty Ltd in its capacity as trustee of the D Pty Ltd SMSF.
The second and third respondents sought orders that Mr L, as the director of D Pty Ltd, be permitted to do the following;
(a)continue paying all necessary expenses, including agents’ fees, accounting fees, tax liabilities, registration fees, legal fees and other outgoings including in relation to the property at 1 H Street;
(b)as trustee of the D Pty Ltd SMSF continue paying all necessary expenses, including agents’ fees, accounting fees, tax liabilities, registration fees, legal fees and other outgoings including in relation to the property at 2 H Street; and
(c)as trustee of the F Family Trust, continue paying all necessary expenses, including agents’ fees, accounting fees, tax liabilities, registration fees, legal fees and other outgoings including in relation to the property at J Street.
The second and third respondents also sought an order that the director of D Pty Ltd be permitted to sell the property at 2 H Street (being the property held on trust for the SMSF).
In an affidavit filed in this Court on 24 October 2023, Mr L sets out the terms of the SMSF trust deed, pursuant to which the trustee has the power to pay out of the fund all costs, charges and taxes relating to the administration and management of the fund, and that the director of the company acting as trustee is entitled to charge for their professional services. He also sets out that the SMSF is non–compliant and there may be significant costs incurred as a result. He estimates that in addition to charges for his own time, it will cost about $75,000 in professional fees to address the non–compliance issues and file returns for the SMSF.
Mr L also says the husband improperly controlled the shares held by the D Pty Ltd SMSF and used the rental income from the property at 1 H Street owned by D Pty Ltd. He said the husband’s appropriation of these assets caused D Pty Ltd to become illiquid, and that the second respondent has had to pay the bills for D Pty Ltd in the circumstances to keep it operational.
I made the injunctive relief as sought by the husband, and now set out my reasons for making those orders.
Operation of s 114AB of the Family Law Act
Counsel for the second, third and fourth respondents asserted that the operation of s 114AB of the Family Law Act meant that I did not have the power to make the injunction sought by the husband where he had, on foot, an application in a state court for effectively the same relief.
Section 114AB(2) provides:
Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a)where the person instituted a proceeding:
(i)the proceeding has lapsed, been discontinued, or been dismissed; or
(ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b)where the person took other action – neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
It was asserted that by filing a Defence and Counter Claim in the Supreme Court proceedings in which he made a counterclaim as against D Pty Ltd, the husband had ‘taken any other action’ as contemplated in that section. Accordingly, it was said that unless the Supreme Court proceedings had lapsed, been discontinued, or dismissed, the husband could not seek similar injunctive relief pursuant to s 114.
Section 114AB applies only to action taken “under a prescribed law of a State or Territory”. Regulation 19 of the Family Law Regulations 1984 (Cth) set out the prescribed laws for that section for Victoria to be the Family Violence Protection Act 2008 (Vic).
The Supreme Court proceedings are not in relation to any action pursuant to the Family Violence Protection Act. Accordingly, s 114AB has no application here.
The law in relation to injunctions
Section 114 of the Family Law Act empowers this Court to make injunctions in any matter in which is appears “just or convenient” to do so, and upon such terms and conditions as the court considers appropriate. It is a wide power, often used to prevent the defeat of a pending claim, or to maintain an existing situation until the court is able to determine what is to be done.
The discretion to grant injunctive relief is not to be exercised lightly and the party seeking the relief must show good cause. They must demonstrate a reasonable claim to an order for altering property interests. They must also satisfy the court there is a real danger their claim may be defeated or prejudiced if the injunction is not granted.
Is it just or convenient to grant the injunctions against D Pty Ltd sought by the husband?
As set out D Pty Ltd holds property and shares on trust for the self-managed superannuation fund. I understand the property is worth over $500,000 and the shares of around $1,800,000. The husband’s interest in the 2022 returns is around $1,100,000 and the wife’s is $1,085,000.
In my view, the husband at this interim stage has demonstrated a reasonable claim that he will be entitled to funds from the D Pty Ltd SMSF. As I will now set out, he has also demonstrated that there is a real danger that the assets held on trust for the D Pty Ltd SMSF will be dissipated, and that his claim to superannuation entitlements may be prejudiced if the injunctions sought were not granted.
Mr L was appointed as director of D Pty Ltd in early 2023. The husband does not consent to Mr L being his legal personal representative for the self-managed superannuation fund.
Mr L – appropriately – sought control of the self-managed superannuation fund and other funds in accordance with his duties as director of D Pty Ltd. He has also sought the sale of the property at 2 H Street so that the self-managed superannuation fund would have funds available to attend to the filing of returns, and other matters to make the self-managed superannuation fund compliant. The husband became aware of the desire to sell that property as at 28 September 2023.
On 2 October 2023, the husband filed the Application in a Proceeding seeking inter alia that D Pty Ltd be restrained from dealing with the self-managed superannuation fund assets. That was listed initially on 11 October 2023 before a Judicial Registrar, and then adjourned to 25 October 2023 before me.
Mr L was aware of that application, and accordingly declined to progress further with the sale of the property at 2 H Street despite having received an offer for $600,000 for it. However, on 19 October 2023 he said he processed orders for the sale of shares totalling $471,694.49. They were shares held by D Pty Ltd as trustee for the D Pty Ltd SMSF. He did not use the proceeds of the sale of the shares to attend to matters to make the fund compliant. Instead, Mr L then applied the proceeds of the sale of those shares:
(a)$160,503 to the second respondent, saying this was to reimburse the second respondent for a number of unspecified legal and professional fees he had paid “on behalf of the company”;
(b)approximately $170,000 to the lawyers acting for the second, third and fourth respondents; and
(c)$23,200 for counsel’s fees who have appeared on behalf of the second, third and fourth respondents.
Mr L said D Pty Ltd now has sufficient funds available to meet its immediate costs.
It is difficult to understand how the second respondent has instructed Mr L to sell shares held on trust for the self-managed superannuation fund in which the second respondent is not an account holder, and then instructed the proceeds of the sale of those shares to be paid to him, and to legal representatives acting for the second, third and fourth respondents. I expect this will be explained to this Court in due course.
In the circumstances, I am satisfied there is a real risk that the assets of the self-managed superannuation fund will be jeopardised and diminished if I do not grant the injunctive relief. I am also satisfied that it is just and convenient to make the two restraints sought by the husband in order to preserve the entitlements of the husband and the wife in the self-managed superannuation fund. He has an arguable case for up to half of the assets of the self-managed superannuation fund, and his entitlement in that fund is likely to be affected if the property and/or shares are sold.
That also means that I do not at this stage propose to make an order for the sale of the property at 2 H Street as sought by the second and third respondents.
Appropriately, the husband through his counsel gave an undertaking as to damages. The injunctions are expressed as having been made after the giving of that undertaking.
The breadth of the injunctions, and whether it is appropriate there should be additional orders regarding payments that need to be made, for example, to ensure the D Pty Ltd SMSF is compliant will need to be considered at a further interim hearing. For instance, it may be that Mr L’s estimate of $75,000 to make the fund compliant is not unreasonable and every effort should then be made to make the fund compliant.
As already indicated, whilst there was additional injunctive relief sought, I have not made any further orders at this stage. I will hear further argument at the interim hearing on 7 December 2023 in relation to any other injunction.
DISCLOSURE
On 25 October 2023, I made the orders as sought by the husband for the second to fourth respondents to provide various documents to the husband. It does not appear to me to be in dispute that as parties to the proceedings those documents ought be discovered.
The wife also sought orders in her Amended Response that the husband provide disclosure of all documents evidencing his contribution to the properties owned by the husband, the wife, their entities and the additional respondents. That appears appropriate and I will make the order as sought.
SINGLE EXPERT
The wife is the shareholder and director of E Pty Ltd. It is her case that this is a charitable organisation. It is the husband’s case that the wife has used the funds from that entity for her personal use.
The orders made on 10 May 2023 include an order that the husband and wife engage G Accountants to provide a valuation of the parties’ interests in E Pty Ltd. The husband seeks to broaden the terms of engagement of G Accountants, and seeks they be engaged to undertake a forensic analysis and prepare a report in respect of the total earnings of E Pty Ltd for the last four years, the source of that income, and the total amount of money transferred by the wife from the accounts of her and the husband, from the D Pty Ltd SMSF accounts or any accounts in the name of the F Family Trust.
The orders made 10 May 2023 also included an order restraining the husband and wife from selling, disposing of, or otherwise reducing the value of matrimonial assets without the written consent of the other party.
The husband asserts that in breach of those orders, the wife withdrew $597,100 from a bank account held by the F Family Trust and transferred the funds to a bank account in the name of E Pty Ltd. He further asserts the wife uses E Pty Ltd funds to pay her personal credit cards, that she takes significant funds from the accounts of E Pty Ltd, and that her employer makes payments into the accounts for E Pty Ltd. He says he has sought the wife’s explanation for a number of transactions into and out of the E Pty Ltd accounts in correspondence dated 26 July 2023, which the wife has not provided. The husband says the wife’s use of the accounts of E Pty Ltd do not support her assertion that the entity operates as a charitable entity, but rather that it is a vehicle for income.
The wife says there is no benefit to the husband and wife spending funds on having the affairs of E Pty Ltd examined by a forensic accountant. I understand from the husband that the costs of such an examination will be not less than $10,000 per year that they are required to conduct the audit. The husband proposes that the forensic analysis cover “the last 4 years”.
There is obviously a difference between the value of the wife’s interest in E Pty Ltd and a forensic analysis of the income of that entity and how the funds it receives are applied. However, it seems to me unnecessary at this point to order a forensic examination of the funds into and out of the E Pty Ltd accounts. I expect the wife will need to provide an explanation to the husband and to the single expert preparing the report as to the wife’s interests in the entity about the funds in and out of E Pty Ltd, including the source of incoming funds, and the application of outgoing funds. It may be that questions can be put to the single expert about these transactions once their valuation has been completed. It may also be that the single expert may raise issues themselves in the course of preparing their valuation in relation to the wife’s use of the E Pty Ltd accounts.
If there remain serious questions as to the wife’s use of the funds of E Pty Ltd, a further application for a forensic analysis can be made at a later stage.
RENTAL INCOME
The husband sought a number of orders in relation to investment properties as follows:
(a)that the husband and wife lease the properties at J Street (owned by the F Family Trust) and at 2 H Street (owned by the self-managed superannuation fund);
(i)the rental income from the J Street property be paid into a bank account in the name of D Pty Ltd as trustee for the F Family Trust, and the wife be restrained from dealing with those funds save to pay the expense for that property;
(ii)The rental income from 2 H Street be paid into an account in the name of the self-managed superannuation fund and the parties be restrained from dealing with the funds save to pay the expenses for that property;
(b)the rental income from the S Street properties (registered in the wife’s name) be paid into a bank account in the names of the husband and wife and the parties be restrained from dealing with those funds other than paying the expenses of the properties; and
(c)the rental income from 1 H Street (owned by D Pty Ltd) be paid into a bank account in the name of D Pty Ltd and the parties be restrained from dealing with those funds save to pay the expenses for that property.
I will not determine these issues at this point. The argument on 25 October 2023 before me focussed on other more urgent issues, and I require further submissions on these matters before orders can be made.
SECURITY FOR COSTS
The wife sought orders that the joinder of the additional parties be conditional upon the husband providing security for the wife’s costs. She proposed this be affected by the husband transferring all his interest in the property at Q Street to the wife and she be at liberty to borrow such sums against the property as she reasonably required to meet her costs of these proceedings.
Similarly, in the event of joinder, the second, third and fourth respondents sought an order that the husband pay the sum of $250,000 into the Court as security for costs. I accept that in the state proceedings costs will usually follow the event. In the proceedings before this Court, the general rule is that each party will bear his or her own costs, unless there is justification to depart from that general rule. I note that if third parties are joined to proceedings, and are successful, that may provide a basis to depart from the general rule.
I have already set out the history and conduct of the litigation, and referred to the husband’s delay in joining the additional respondents. I accept that the second, third and fourth respondents have spent monies in the state court proceedings, and that their joinder to these proceedings will require them to be engaged in litigation broader than the issues they sought to agitate in the Supreme Court. I accept these matters, and their age and poor health, does cause them some prejudice. However, for the following reasons, I decline to make the orders for security for costs as sought by the wife and the additional respondents.
First, there are sufficient funds in the pool, even if the case of the second to fourth respondents is accepted, to meet a costs order against the husband if that were ultimately ordered. As best I understand it at this stage, the pool the wife contends for is around $5,000,000. The marriage endured for a number of years and it appears both parties made contributions to the family and to the acquisition and improvement of property. It seems likely that the husband would be entitled to receive sufficient funds by way of final property settlement from which he could satisfy a costs order in favour of the additional respondents if ordered to do so.
Secondly, it could not be said that the husband’s case (that there are no monies owing to the second and third respondents, and that the assets of D Pty Ltd are matrimonial assets) is on its face likely to fail. Submissions made by counsel for the husband, and the husband’s sworn material articulate a case that appears logical and plausible. Of course, no findings as to the veracity of any party’s case have yet been made. Rather, I am observing that the husband has been able to set out a case that appears, on its face, to have reasonable prospects of success.
I further note that the husband does not have access to funds or resources to pay security for costs.
In relation to the wife’s application to be at liberty to use the equity in the former matrimonial home to meet her legal fees, I do not regard that as appropriate. It would give the wife the ability to use a joint asset to meet her legal fees in circumstances where the husband does not have a similar benefit. It would, in my view, create an unequal playing field.
In my view there was nothing outlined by counsel for the respondents that would, in my view, justify the making of a security for costs order at this stage in their favour, and those applications are dismissed.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 8 November 2023
SCHEDULE OF PARTIES
MLC 2800 of 2023 Respondents
Fourth Respondent:
D PTY LTD
0