SL & EHL - [2005] FamCA 132

[2005] FamCA 132

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. BR 10015 of 2000

BETWEEN:
SL
Applicant Wife

AND:
EHL
Respondent Husband

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 11-15 October and 3 November 2004

Date of Judgment: 8 March 2005

Appearances: Mr Kirk of Senior Counsel, instructed by Hopgood & Ganim, Solicitors, appeared on behalf of the Applicant Wife
Mr North of Senior Counsel with Mr Kent of Counsel, instructed by Tobin King Lateef, Solicitors, appeared on behalf of the Respondent Husband

SL and EHL BR10015 of 2000

Heard: 11-15 October and 3 November 2004

Delivered: 7 March 2005

PROPERTY SETTLEMENT – CONTRIBUTIONS – SPECIAL CONTRIBUTION – Two aspects to the evaluation of contributions under s79 – 1. The “value” given to a role including “the reach” of that role, particularly where a variety of assets have been acquired – 2. The quality of contributions within a role - Pronouncement from Figgins & Figgins (2002) FLC 93-122 that “Marriage is and should be regarded as a genuine partnership to which each brings different gifts. The fact that one is productive of money in large quantities is no reason to disadvantage the other” is a statement of a value – A consequence of the application of this “value” may mean less emphasis on the quality of contributions within a role, and certainly less upon the result of those contributions – It may even amount to a reconsideration of the concept of “special” contribution - CONTRIBUTIONS – Submission that no finding of special contribution necessary - Husband sought greater recognition for his financial contributions due to his accounting and property investment skills – Determination that the husband’s earnings history did not go beyond demonstrating above average earnings – Earning such an income does not evidence some extraordinary professional qualities or capacities – Wife’s roles of home-maker/parent accumulatively amounted to a fulsome contribution over the bulk of the period of cohabitation – Her primary parenting role alone was demanding – The husband had an active but limited involvement in the role of home-maker and parent – Here, the respective contributions of the parties are overall of equal value – VALUATION OF ASSET POOL – VALUATION OF MINORITY INTERESTS IN PROPERTY SYNDICATES – Valuation evidence unsatisfactory but if assets divided in specie, fairness could be achieved – VALUATION OF ASSET POOL – Valuation of accountancy practice – Appropriate to value the practice “as is” – ADD BACKS – Property in the name of the new wife – Potential injustices in writing back to the asset pool the values of the property in her name – Such property may not be recoverable by the husband – Consideration must be given to the position of the new wife and the property she may have acquired by virtue of the role that she plays in the marriage to the husband – Consideration given to the length of time since the separation of the parties and the absence of evidence that payments to the new wife from any source other than post-separation income – VALUE OF LOAN TO CHARITABLE INSTITUTION – Discretionary trust set up by the parties for financial and tax advantages – Unfair to add in to the asset pool a loan arrangement with the Baptist Union without giving credit for the financial and tax advantages of such an arrangement, which had not been calculated – Loan valued at a discount - SECTION 75(2) FACTORS – Husband has superior earning capacity and is in good health – “Cash” adjustment now to the wife, for a disparity in future earnings, can be used by the wife to produce income – Wife is in poor health – Adjustment of 2% to the wife is appropriate – JUST AND EQUITABLE - Wife to receive 52% of the asset pool producing a just and equitable result

EHL and SL married in December 1964, when the husband was 20 and the wife 21 years of age. After 35 years of marriage during which 4 children were raised, but tragically, another child died, the parties separated in late 1999. All the surviving children are now well into adulthood.
The parties have acquired wealth of, on the lower tally, some $8,000,000.00. However, they are unable to agree on how their assets ought be divided following the breakdown of their marriage and it is with that issue that the trial before me was concerned and to which this judgment relates.
The application of the wife actually sought orders “…by way of property settlement and lump sum spousal maintenance for the wife” and the draft orders presented on behalf of the wife at trial were on the basis that a maintenance component was included, but the submissions about what the wife ought receive were all based on property entitlements and the case was not conducted as if, after division of property, the wife would have a need for maintenance.
Ultimately, the wife sought that contributions by each party be treated as equal but that she receive adjustment in her favour on account of section 75(2) factors, of not less than 5%. The husband contended for a 70% weighting in his favour on account of contributions and argued that no adjustment was necessary under section 75(2).
In accordance with the terms of section 79 of the Family Law Act 1975, as amended and authoritative pronouncements about the application of that section, the alteration of property interests is to be determined by orders that ultimately are just and equitable and which are based upon a consideration of the contributions of the parties and the matters set out in section 75(2) of the Act, that are relevant to the case. Identification and valuation of the property of the parties is a necessary part of the process.
The significant issue pursued in relation to contributions was the proposition of the husband that, because he was primarily, if not solely, directly responsible for the acquisition of the parties’ wealth, and in doing so he exhibited skill, acumen and/or determination (whether deemed “special” or not), the husband’s contributions outweighed those of the wife. It was further argued that that was so, even if the wife’s contributions were accepted as made at the level contended for by the wife, but the more so, if it were accepted that the wife’s contributions were limited in the ways asserted by the husband.
Though the issues with regard to contribution are fairly simply stated, the facts relating to them are spread throughout the long period of cohabitation and, indeed, in some important respects, the period after cohabitation until trial. Thus discussion of them is somewhat detailed.
There were also a series of significant disputes about what should constitute the pool of assets for division and what liabilities present and contingent, ought be recognised.

Contributions

Outline

On the material as presented by the parties in this case, there were issues about certain conduct of each party which might arguably have affected contributions. Some of these issues substantially disappeared as a result of rulings I made about the admissibility of evidence. Others were abandoned by a concession by each party that, in the assessment of contributions, neither party was entitled to a weighting on account of the propositions about conduct contained in cases such as Kennon v Kennon (1997) FLC 92-757.
It was not argued that the circumstances of either party at the commencement of cohabitation (upon marriage – December 1964) advantaged that party. Each of the parties had some savings towards a block of land.
At the time, the husband was studying accountancy and working at the Department of Works. The wife worked as a typist with the Commonwealth Government. By legislation it was necessary for the wife to retire from her employment upon marriage, but she then commenced employment as a typist and clerk for a pharmaceutical company.
The first child of the parties, AR, was born in February 1967. She suffered from spina bifida and remained in hospital care. Some weeks after AR’s birth, the parties took a child into their foster care, he being DE, born in January 1967.
AR never left hospital and she died at about 7 months.
PA was born in February 1968 and SA in January 1970. In early 1972, the parties fostered another child, TM, who had been born in February 1972.
The parties adopted both DE and TM when each was about 18 months/2 years of age.
The husband qualified as an accountant in 1965 but continued with studies to enable him to qualify as a chartered accountant. After marriage, he moved to work at the Auditor General’s Department.
In 1970, the husband went into private practice, joining the firm of WH, Accountants. He became a partner there and remained in that position for 15 years before establishing his own practice about 15 years ago. He continues in that practice.
The parties have given considerable financial assistance to their adult children and have taken on some liabilities, the children having had the benefit of the borrowings. The husband maintains a car for each child and “upgrades” those vehicles every 4 years or so.
The material of each party about contributions is detailed and extensive. I do not intend to record the detail in most instances, but I have taken account of it.

The husband’s contributions

In his affidavit of evidence in chief, under the heading “My contributions to the family” the husband particularises what he did with regard to the upbringing of each of the children.
The husband deposes in paragraph 81:
“81. Because of the wife’s state of being and her inability to cope with the vicissitudes of life, I believe I was called upon to play a much greater role than would normally be the case required of a husband with small children. From memory, the wife did all of the cooking but it was fairly basic.”
The husband also says he helped with household chores such as ironing, making of beds and cleaning. He looked after the children during the wife’s stays in hospital.
He says that during the wife’s stays in hospitals he constantly visited her, consulted with her psychiatrists and at the same time looked after the house and children without assistance, as well as attending to his professional work.
The wife says that the only occasions she was hospitalised while the children were living at home were when she attended at a Brisbane hospital when PA and SA were very young, when she had a tubal ligation and again when that procedure was reversed, when she had an operation for a hiatus hernia and when she had an emergency hysterectomy. She further says that on those occasions, before she went to the hospital, she had all of the husband’s clothes ironed and meals prepared for the family which she had frozen for reheating. I accept her evidence.
The wife’s case is that the husband was so busy with his activities, sport (squash, cricket, golf), church and church related maters, the Salvation Army band, and work, that he had no time to spend with the children. The husband acknowledges playing sport “fairly regularly” on a Saturday afternoon when the children were young. The wife also says that when the parties were discussing fostering DE, the husband indicated he wished to have nothing to do with the children’s (future) care.
If the husband did make such a statement I regard it as of no significance, because I accept that the husband was involved with the care of the children, in particular in relation to their involvement in music, but also in a variety of other ways. However, I accept the thrust of the wife’s evidence that the husband was extensively involved in his work and the other activities to which she refers, though it is not suggested that he played a variety of sports all at the same time or even consistently played sport without interruption throughout the long period of cohabitation. It follows that I do not accept the thrust of the husband’s evidence that he was consistently involved with the children at an extensive level. Again, I do accept that, over the long period of the children’s growth to adulthood and independence, the husband had a regular involvement with them, but quite limited by work and other pursuits.
Under a heading “My Special Contributions to the Family” the husband says:
“…The wife did not complement me very well in my professional life and to a large degree I have succeeded financially in spite of her rather than with her support.…”
On one view, the assertions of the husband under this heading are more about allegedly negative behaviour of the wife than they are about the husband’s “…special contributions to the family.” However, they are discussed here as, on another view, it could be said that the husband’s assertions are as to the context in which his financial contributions were made.
The husband says that during his career he has attended business functions alone and he believes that the absence of the wife’s support at those functions reflected negatively on him. There is no evidence to support this belief.
The husband also says that when he was building up his practice, he gained a lot of new clients through his contacts at the church which he attended. The wife did not share his religious beliefs and the husband’s attending church caused problems in the marriage. The husband says he therefore had to distance himself from the church and thus, from those contacts, which he believes negatively impacted on the expansion of his business.
Even if I accepted that in the husband’s judgment he chose a particular course of action, I would not accept that the evidence establishes he had, in the sense that there was no alternative, “to distance himself from the church” whether, as he says, because of “problems in our marriage” or more specifically, some conduct of the wife. In any event, it is impossible to assess the validity of the husband’s belief that distancing himself from the church negatively impacted on the expansion of his business.
Further, the husband says that he was not able to entertain clients at home. He says that the wife resisted his many attempts over the years to have her become socially integrated with people who he would embrace as part of his business life. He says that during the last 15-20 years of marriage, there were only a few occasions when non-family members were entertained at the home. I do not accept his evidence.
The husband also says that the wife has “…constantly endeavoured to hold me back in these areas…” that is, decisions, particularly of a financial nature. However, the husband does not assert that he was often actually held back in making financial decisions, (and when he does it is mainly in respect of family homes). Moreover, the husband says that in the last 10-15 years of the marriage, financial decisions were made by him without the wife’s knowledge or concurrence.
Indeed, the husband deposes later in his affidavit:
“The wife has had no part in any decisions associated with my practice or our property interests, and as alluded to earlier, where there have been jointly held properties, she simply signed whatever documentation was required without being a decision maker in the process.”
I do not accept, on the husband’s case alone, that the wife’s conduct negatively impacted on the acquisition or maintenance of wealth by the parties or in any measurable way, made the husband’s contributions of greater value.
In any event I accept, as later discussed, the thrust of the wife’s evidence about her contributions touching upon financial matters.
The husband says that, from the age of 40 years or so, he enjoyed relatively high earnings. In effect, he deposes that he was an excellent practitioner and earned superior income to many other chartered accountants.
In oral evidence, the husband said that his earnings at the time he left the partnership of WH were $30,000.00-$40,000.00 per annum ahead of the next partner and further ahead of the earnings of the other partners. In a practice of 5 partners, he earned ⅓ of the fees and he had already distributed clients to junior partners.
As to his current earnings, under cross-examination, the husband agreed that forensic accountants would charge $300.00-$400.00 per hour. His hourly rate was $250.00-$300.00 per hour. He agreed that partners in “level 1” firms would earn $600,000.00-$700,000.00 and in the better “level 2” firms, $350,000.00-$450,000.00 per annum. The husband earned between about $600,000.00 and $830,000.00 per annum, from accountancy and property management fees.
On the evidence, I do not accept that the earnings history of the husband goes beyond demonstrating superior, that is above average earnings, and I find they were not earnings of an extraordinary, or exceptional, level.
The husband claims that over the years he has developed a skill for investing, particularly in real estate.
The first matrimonial home was built on land at Bracken Ridge acquired in about 1966. The parties lived there for 5 years and made no profit on its sale.
In about 1971 the parties moved to Wavell Heights. The husband says the wife wanted to move away from Brisbane and that house was sold within an 18 month time frame and a small profit was realised.
The parties then relocated to Townsville but they were only there for 11 months because, the husband says, the wife could not take the Townsville heat and a small amount was lost on the purchase and sale of the property in which the parties lived there.
The parties then moved to Rochedale and purchased a new house in about 1973. The parties lived there for 11 years, during which the home was renovated on a number of occasions. The parties then moved to Capalaba in around 1984 and the husband suggests that the sale of the Rochedale property would have made a small profit.
The Capalaba acreage property was purchased for around $240,000.00 and sold 5 years later for around $300,000.00 but says the husband, quite a lot of money had been spent on improvements.
Land was then purchased at Springwood in around 1989, and a house was built, at a total cost of around $600,000.00. Again the parties resided there for around 5 years, but had great trouble selling the home and accepted a price, of (from the husband’s memory), around $550,000.00.
In 1994, the parties built a home on acreage at Rochedale. The total cost was around $800,000.00. The husband says:
“It will be apparent from this summary of the marital homes purchased and sold during the 35 year relationship that there was no wealth creation by reason of the purchase and sale of these properties. Most of these properties were acquired or sold at the insistence of the wife, with the exception of the property at Capalaba, which was basically my decision to give the children an acreage lifestyle during their pre-teen and teen years.”
If the purpose of the detail provided by the husband in relation to the purchase and sales of matrimonial homes is no more than to demonstrate that no wealth was generated thereby, then on the evidence that is a valid point. If there is any other purpose, such as demonstrating that, because of the wife, opportunities to make greater profits were foregone and somehow this is relevant to contributions to the acquisition of property or its conservation, then I do not think the evidence supports any point in that regard.
All that the evidence shows is what happened, not what might have happened. Moreover, there is no indication in the many transactions described of some particular acumen on the many part of the husband, let alone that his judgment was frustrated by actions of the wife.
The first investment made by the parties outside matrimonial homes arose in around 1978 when the husband and another partner in the accountancy firm suggested the partnership acquire its own premises. As a result, the members of the partnership did acquire interests in premises, UH, from which the practice operated.
At about the same time, the parties purchased a unit at the Gold Coast “off the plan”. The property was held for about 7 years. It was purchased for about $43,000.00 and sold for around $70,000.00-$80,000.00. The husband describes it as a good investment, and indeed if one took account of costs of purchase and holding (which I infer existed at least in respect of such outgoings as stamp duty and rates) - even if the unit was rented and there were some tax deductions, the investment over 7 years would not appear to be anything outstanding.

The same comments could apply to residential properties that the parties acquired in the early 1980’s and held for similar lengths of time and, on the husband’s own account, another property acquired at Carindale in the early 1980’s, which was described by the husband as “…a moderate investment producing a reasonable profit”.
The next investment as described by the husband, was “…an opportunity…presented to me by another client,…to put together a group including the group owners of UH to be part of a joint property syndicate involving ownership of [certain property]” …PD owned a small property close to the river just past Customs House and it was decided to merge these three properties into a group ownership.
The group’s property was held for about 7 years. The husband’s interest was 4%.
The husband says that he was responsible for financing and refinancing the group, which was at times extremely difficult because of a low income stream. When the property was sold in about 1985, the investors multiplied their capital by about 7 times. The husband says the timing of the sale was critical. However, in my view, the husband does not point to any personal role of any particular percipience or skill.
At around the same time that the properties just referred to were sold, an offer was received in relation to UH, and some of the partners, but not the husband, wished to sell. The husband put together a group to purchase the property, this being the commencement of property syndication by the husband. The new group held UH for a further 3 years and were then approached by the State Government to sell it. This seems to have been a fortuitous approach; at least the husband does not claim that the approach arose from any action on his part. Many months of manoeuvring followed and the property was eventually sold for a considerable profit. The husband says:
“I engineered the whole process since capital gains tax had been introduced by that time and by forcing the government to resume I was able to obtain roll-over relief and thereby defer the payment of capital gains tax.”
This episode certainly indicates (at least) the actions of a knowledgeable, perhaps hard-nosed vendor.
Since then, the husband has put together property groups to purchase beachfront units at the Gold Coast and at Noosa (one of which was a negatively geared structure, the only one the husband has put together involving such an arrangement).
Also, the parties purchased 2 units at about that time, one of which, unit F, has appreciated considerably in value in the 15 years or so since its purchase (for $385,000.00) to a value of $1,500,000.00. The other, unit TRR, was purchased for around $280,000.00 and is now valued at $725,000.00.
On the other hand, another unit MB reduced in value for a time following purchase for $530,000.00, although it is now valued at $725,000.00.
Two properties were acquired at Rochedale in 1991. One was sold in 2000 for a figure which seems likely to have produced only an extremely modest profit, if any, after expenses, and the other has not increased greatly in value.
A property at Rathdowney was purchased in 1992 for $250,000.00 and is now worth $375,000.00.
On the other hand, the BPPB, established in 1992, has made profitable investments, its P building acquired for $10,400,000.00 and now worth $20,000,000.00.
In 1993, a new group acquired the CAJV and again its acquisition has proved profitable (acquisition $8.6 million approximately, current value $14.5 million approximately).
A unit was purchased in BT in the early 1990’s (for $235,000.00) and is now valued at $435,000.00.
CVPJV was established in 1994. One of its properties has appreciated to some extent. The other was sold at a price marginally higher than its cost.
In 1996, the parties acquired a property in the Noosa area (the NP property), for $480,000.00. It has appreciated well to a value of $950,000.00.
CPJV was established in 1996. Its properties seem to have improved moderately in value.
In 1997 the parties purchased property at Victoria Point for $245,000.00 which has been sold subsequent to separation for $584,867.00 net.
In 1999, the MPJV was set up. Its property has not appreciated much in value, if any.
The husband has received a brokerage in respect of the establishment of each property group. Usually that brokerage has been put back into the group as part of the husband’s interest.
As earlier indicated, save for one of the properties, the husband’s accounting firm manages the properties held by the groups. The husband generates between $50,000.00-$60,000.00 as director’s fees from the groups and fees received by the accountancy firm for managing the properties exceed $300,000.00 per annum.
The question of evaluation of the husband’s direct contributions to the acquisition and conservation of wealth is discussed later.

The wife’s contributions

The wife describes difficult periods of child care, involving the births of the children PA and SA and subsequently, because of health difficulties they had. The husband deposes that the children of the marriage “arrived” before the wife was 30 years old, so she became a full-time mother. He deposes:
“She coped reasonably with that role but was adversely affected by the death of our first child, AR.…”
The husband said in respect of the oldest child, DE, that the wife was a “carer” and devoted more of her time and effort towards DE, but that was not to say she ignored the others.
Later, in his affidavit of evidence in chief, the husband deposed that, from 1973 to 1984, while the family resided at Rochedale:
“…the Wife was focussed on the children’s schooling…she coped reasonably as a mother.”
Against this background of guarded concession by the husband, and what I later say about reliability of the evidence of each party, I accept the wife’s evidence of the detail of her contributions as parent.
The evaluation of these contributions is discussed later.
I do not suggest that the husband gave deliberately false evidence about matters such as the wife’s contributions as parent, his own parenting contributions, or the wife’s support of him in business activities, but I thought, both in his affidavit and oral evidence, he demonstrated a greater level of subjectivity and generality in the words he chose to describe performance, both his and the wife’s, and was more affected than the wife by the “competition” for a favourable outcome in this case.
The wife describes assistance that she gave in home-making and conservation and improvement of the matrimonial homes. Again, I accept the evidence of the wife in this regard.
The wife did some part-time work during the marriage. She sets out details at paragraph 145 of her affidavit of evidence in chief, which I accept as accurate.
In his affidavit of evidence in chief, the husband said that the wife used her income for her own purposes. Even if I accepted that evidence, that would not lessen her contribution to the meeting of “family” expenses. However, in his affidavit in reply the husband acknowledged that the wife’s earnings “…were helpful in improving our lifestyle…”.
It is partly because of instances such as this, of the husband’s uncompromising, but as I find, inaccurate, approach to the question of contribution by the wife, that I have preferred the evidence of the wife in the instances specified.
In her affidavit, the wife detailed the conferences at which she had attended with the husband and the entertaining both at the former matrimonial homes and at other locations in which she had been involved for business or church purposes. In her affidavit in reply, the wife herself corrected some matters in her affidavit of evidence in chief in these regards.
In contrast to the position of the husband which, by and large is one of a general denial of contribution by the wife in these regards, the wife provides a degree of particularity, especially via annexure B to her affidavit in reply.
It is acknowledged by the wife that from the early 1990’s and in particular from 1995, her health adversely affected her capacity to make contributions in a number of respects. Considering the husband’s material about contributions made by the wife set against the material of the wife, I draw the inference that the husband has allowed the diminution in contribution of the wife over the last 4-5 years of the period of cohabitation in particular, to distort his view of the wife’s contributions over the totality of the relationship.
By the time the wife’s contributions diminished, the youngest child, TM, was into her late twenties.
In addressing issues between the parties about contributions I have taken into account the depositions of supporting witnesses. In relation to the evidence of MR, a former secretary of the husband’s when he was a partner at WH, it seems to me from her affidavit that her opportunities for making the observations to which she deposes were restricted. Where those observations are in conflict with the evidence of the wife who was cross examined in the proceedings, I prefer the evidence of the wife.
Most of an affidavit of ES filed in the husband’s case was conceded as inadmissible comment. The admissible material in the affidavit of BG and DG relates to a number of specific incidents which, given the length of the cohabitation of the parties, I do not take as indicative.
In the case of the wife, the affidavit of MO is consistent with the wife’s evidence of her work at WH and somewhat at odds with some of the content of the affidavit of MR. The deposition of SS provides some support for the wife’s claims about her contributions to the rearing of the children and what she says of the husband’s involvement. However, I do not regard her evidence and observations as being expansive.
The affidavit of JM is supportive of the wife’s evidence about her involvement in the husband’s activities with a religious group (BU).
It was submitted for the husband that through cross-examination of the wife, it was established that her contribution to corporate entertaining within the home was much less than any of her affidavits might have suggested.
However, while some general descriptions used by the wife were shown to have been too sweeping, where she was able to give particulars her evidence was unaffected.
I also accept the evidence of the wife about the properties that she visited with the husband when he was considering purchase and the advices that she gave on such occasions.

Events between separation and trial

There was an issue between the parties over the date of separation, the husband contending for September 1999, the wife for December that year. Neither party argued that the issue needed to be resolved for the purposes of decisions about substance, but senior counsel for the wife pursued the issue as going to credit. In the end, I think nothing relevant to credit emerged.
Initially, after separation the wife continued to occupy the former matrimonial home.
From September 1999 until July 2000, the husband permitted the wife use of a credit card and cheque account, while still paying her the amount of $1,000.00 per week. The wife used some $70,000.00-$80,000.00 during that period on credit cards and withdrew $31,000.00 from the personal cheque account. The wife says that a significant part of her expenditure during this period was in respect of the upkeep of the home. I accept her evidence.
Since July 2000 and until July 2001, the wife received a monthly payment of $5,000.00.
In September 2000 the wife moved into a unit in a retirement village, FP, with a view to purchasing the unit. That did not transpire and the wife moved back to the former matrimonial home in October 2001.
The husband says that pursuant to an agreement for partial property settlement, he sold property at Redland Bay preparatory to purchasing the retirement village unit at FP.
From July 2001, the husband paid to the wife $50,000.00 per annum, by monthly instalments of just over $4,000.00, less the wife’s half share of the electricity expenses at the former matrimonial home.
From 1 March 2003, the payments to the wife increased in accordance with CPI to $52,500.00 annually, paid by monthly instalments.
On 7 April 2001, the husband remarried to YMO.
Earlier, in February 2001 the husband had set up a trust with a corporate trustee of which he and his present wife are directors and shareholders. The trustee of the LFT No.3 has paid a deposit on a new motor vehicle for the husband’s present wife. The trust has a 4% interest in a joint venture established since the separation.
The husband has made other investments, including in the development of a retirement village at Hope Island.
In 2000, the husband made a contribution of $95,000.00 to his own superannuation and $75,000.00 to the wife’s; in 2001, $65,800.00 to his own and $50,000.00 to the wife’s and in 2002, $95,000.00 to his own superannuation.
The husband’s new wife has been paid a salary from the husband’s firm. Her wage in 2003/2004 was $27,000.00. She has also received superannuation benefits of $50,000.00 in 2001, $75,000.00 in 2002, $75,000.00 in 2003 and a comparable amount in 2004.
The former matrimonial home was sold in January 2003 for net proceeds of $769,643.00. Those proceeds were divided between a credit to the G Unit Trust, a deposit to a bank account of the parties and deposits to the trust account of each of the solicitors for the parties.
The VP property was sold on 31 March 2003 for net proceeds of $584,867.00, from which deposits were made to the trust account of each of the solicitors for the parties.
The PCPG has continued to sell properties, including one unit to CVPJV, the husband’s present wife and himself, in one-third shares.
The husband and his present wife have acquired an interest of one-half in a unit at Noosa, the other half being owned by the BPPG.
The husband acknowledged that essentially the interests that his present wife achieved in properties derived through him.
LFT No.2 disposed of a vehicle that had been used by the husband and acquired another pursuant to a hire purchase agreement, for $355,000.00.
On 19 December 2002, an order was made by consent that the husband pay the wife $100,000.00 by way of partial property settlement. This was paid from joint funds invested with the husband’s solicitors. On 10 October 2003, by consent it was ordered that the wife receive $330,000.00 by way of partial property settlement from the joint funds invested with the wife’s solicitors in order to purchase a unit at the WM Retirement Village and on 23 December 2003 an order was made by consent that the wife receive $29,962.00 by way of partial property settlement from the joint funds invested with her solicitors, in order to fund the acquisition of a motor vehicle.
The wife purchased a unit at WM Retirement Village for about $307,000.00 in July 2003. The balance of funds received by way of the partial property settlement of $330,000.00 was spent in improving the unit and in relocation costs.

Husband’s present circumstances and future prospects

The husband is 61 years of age. He continues to support his wife, YMO who is now 53 years of age.
In his affidavit of evidence in chief (October 2002) the husband said that though he had been tempted to retire, his health was good and having reduced his working week to 4 days, he intended to continue working for the immediate future, but would review his position yearly. In his affidavit of 11 February 2004, the husband said that it was his intention to cut back his working week further over the next year or two and that he was giving serious thought to retiring, particularly from the accounting practice in the next couple of years.
The husband’s assets and income are discussed elsewhere in these reasons.

Wife’s present circumstances and future prospects

The wife is 61 years old. The wife at trial was doing some voluntary work 3 days a week, 9.00 am-12.00 noon. However, the medical evidence establishes that the wife has no earning capacity of any moment.
The wife relied on numerous medical reports. In a report dated in mid-2002 Dr MM said that the wife suffered from fibromyalgia which was severe and disabling, stopping her from living a “normal life”. She fatigued easily. She also suffered osteoarthritis, panic disorder, anxiety and depression. She required multiple medications, to attend a specialist weekly, hydrotherapy twice weekly and various other medical and health professionals from time to time. Dr M said all the medical interventions were costly and essential.
Dr PV also provided a report, primarily in relation to fibromyalgia, which he describes as a self reported subjective condition.
Dr JR provided a report. He has treated the wife extensively in relation to her condition. He said he believed that the wife would struggle with her health for a prolonged period, but may make a slow recovery only when stress of the divorce issues had finally resolved.

Assets/Liabilities

The table of assets and liabilities which I consider appropriate for the determination of this matter is as follows:
1.REALTY
(a)Unit at MB (J)  725,000.00
(b)Unit TRR (J)  725,000.00
(c)Unit F (J)   1,500,000.00
(d)NP, Noosaville (J)  950,000.00
-     mortgage Westpac ($325,0000 via Family Trust No.2)
(e)Farm at Rathdowney (J)  375,000.00
- mortgage CBA  (200,000.00)
(f)House – Rochedale (J)  250,000.00
- mortgage Westpac  (125,000.00)
(g)Unit in WM Retirement Village (W)
- leasehold  330,000.00
(h)Unit at NOTB (H ¼ interest)  250,000.00
-     mortgage BNP  (225,000.00)
(i)Unit at RR (H ⅓ interest)  158,333.00
-     Mortgage  (100,000.00)
2.MONEY IN TRUST (Property Sales)
(a)     Husband’s solicitors (balance @ 19/06/04)  541,279.00
3.L GROUP
(a)E H L & Co:
(i)     Goodwill  909,159.00
(ii)     Interest in net assets  (3,378,278.00)
(iii)    Tax on work in progress  (103,031.00)
(b)LFT:
(i)     Interest in Trust Fund  3,124,412.00
(c)LFT No.2:
(i)     Interest in Trust Fund  1,002,998.00
(ii)     Loan to Husband and Wife  (325,000.00)
(iii)    Beneficiaries Current Account  204,784.00
(iv)    Sundry Beneficiary Account  220,618.00
(v)     Creditor Account of Husband  40,000.00
(d)LFT No.3:
(i)     Interest in Trust Fund  5,047.00
(ii)     Loan from Husband  200,000.00
(e)G Unit Trust:
(i)     Unitholders interest (J)  652,152.00
(ii)     Loan from Husband and Wife  133,650.00
(iii)    Loan from Unitholders (J)  283,919.00
(iv)Bank account with Husband’s solicitor  (514,929.00)
Indicated in item 2(a) above
(f)KM Trust:
(i)     Interest  1,136,917.00
(ii)     Loan from Husband and Wife  100.00
(g)B Pty Ltd:
(i)     Shareholders’ interest (J)  733,424.00
(h)PCPG:
(i)     Capital  47,653.00
(ii)     Loan from Husband  29,408.00
(i)UH Joint Venture:
(i)     Husband’s interest  614,706.00
(ii)     Loan to Husband  (42,948.00)
(j)E H L Superannuation Fund:
(i)     Husband’s interest  2,330,013.00
(ii)     Wife’s interest  629,398.00
(iii)    New Wife’s interest ($169,912)  -
4.OTHER ASSSETS
(a)Furniture:
-    AT  23,425.00
-    Unit TRR (H)  3,165.00
-    Storage (?)  1,710.00
-    Unit at WM Retirement Village (W)  9,771.00
(b)Jewellery:
-    Wife  23,475.00

(c)Motor Vehicles:
-    Corolla (W)  28,000.00
(d)Shares in Public Companies:
-    Joint (Telstra – 800)  4,000.00
-    Husband (Telstra – 1,400)  7,000.00
(e)Bank Accounts:
-    Wife – varies from day to day (treat as current)  3,900.00
-    Husband (CBA) – balance @ 12/10/04  223,270.00
-    SA’s house  8,000.00
-    B Pty Ltd (2 accounts) – balance @02/10/03  69,858.00
-    Joint (CBA) Sale of GC – balance @ 12/10/04  217,746.00
(f)Add-backs:
Legal Fees:
-       paid by Husband  136,602.00
-       paid by Wife  224,960.00
5.LIABILITIES
(a)CBA:
(i)     Overdraft (Joint) – balance @ 24/10/03  (80,000.00)

(ii)     Bill Facility (secured on properties) – fixed  (1,287,000.00)
(b)Joint Bank Loans for Children’s Homes:
(i)     CBA – Daisy Hill  (90,899.00)
(ii)     CBA – Ashgrove  (92,540.00)
(iii)    Westpac – Calamvale  (89,750.00)
(c)Income tax – B  (11,250.00)
(d)Group tax  (41,049.00)

ACTUAL POOL: $12,381,178.00

Discussion about those items included in the table above or excluded from it, and about which there was issue, follows. Save as referred to in that discussion, other items were agreed.

Discount for minority interests

The issue here was succinctly described by senior counsel for the husband in his written submissions as follows:
“The issue is whether the Court should accept that the parties’ interest in each syndicate is equal to the sum that is arrived at by applying the percentage interest held by the parties to the value of the underlying asset to which that syndicate relates or whether by reason of the parties’ interest in each syndicate being a minority interest the value can be ascertained only after applying an appropriate discount to that sum.
There is also an issue as to the appropriate discount.”
Mr RF, accountancy expert called for the wife, argued in his written reports and in the Order 30A statements that no discount ought be applied, because the husband had de-facto control of the syndicates.
However, during his oral evidence, Mr F acknowledged that such a conclusion could not provide a basis for rejecting the arguments for a discount of minority interests. In my view, his approach to the question of valuation was tainted by that undue reliance.
Mr F then said that, though the relevant interests in the syndicates are minority interests, they are interests in real estate which can be realised, particularly by the application of section 38 of the Property Law Act, at any time. Accordingly, he argued, no discount was appropriate.
To the suggestion that any other interest holder can force the realisation of the interests of all other parties, perhaps at a time unwanted by those other parties and that this might found a discount, Mr F responded that each investor will still receive the proportionate share of market value of the real estate, so again no discount should be applied.
Mr F acknowledged that the realisation of any minority interest achieved through an application pursuant to the Property Law Act would involve cost and some contention, not present in relation to sole ownership of real estate. However, he would not countenance any discount whatsoever to reflect such a matter. Senior counsel for the wife submitted that, in any event, in applications under the Property Law Act, costs are normally met from the sale proceeds.
With reference to Mr F’s contentions, senior counsel for the husband pointed out that the evidence (in particular exhibit 11) discloses that in each syndicate, the members are not themselves the registered proprietors of the land. Some syndicates are governed by joint venture agreements. Other syndicates have no such agreement. In some instances, the interests of the husband and wife are held through trusts, in which persons unrelated to either the husband or wife have beneficial interests.
As an example of the position of the husband and wife as members of the syndicates, in his written submissions for the husband, senior counsel referred to CPJV agreement, pointing out that there are clauses that indicate that investors, (who may not be signatories to the agreement), had agreed to be bound to its terms and had an interest in the land held by the venture. On the other hand, clause 22 provided that, upon the happening of certain events, the investor’s interest under the joint venture is converted to an entitlement to a money claim against a particular fund. As counsel submitted:
“Upon a proper construction of each joint venture agreement it may be seen that the investor has an interest in the joint venture, that is to share in the profits of the common undertaking or contribute to its losses. The land is held by a nominee said to be an agent but having regard to the fact that the “agent” has the legal title to the property the agent has the very characteristic that commonly distinguishes a trustee from an agent. (see Jacobs’ Law of Trusts 6^th Ed, at [210] and Ford & Lee, Principles of the Law of Trust at [1240]. Of course the nominee, and in this case CPJV can be both agent and trustee.
It is clear that both the nominee and the manager owe fiduciary obligations to the investors and that the manager is empowered only to act in the interests of the joint venture.
It is unquestionable that the registered proprietor of the land, in each case the nominee, holds the land on behalf of the investors. That each investors interest can on the happening of certain events be converted from the interests entitling that investor to share in profits or to contribute to losses to an interest to make a money claim on the fund is a strong indication that no one investor has a interest in the land that can readily be identified as that of a tenancy-in-common or joint tenancy even with respect to the equitable interest in the land.
Such interest as any one investor may have is one held subject to the terms of the agreement between the parties (including a binding obligation to arbitrate any dispute – see clause 23) and includes no entitlement to possession whether as to a whole or part with the agreement conferring rights by entitlements to share in profits earned from the land by the joint venture or obligations to contribute to losses incurred by the joint venture with respect or in relation to the property the subject of the joint venture.
It is not our contention that this matter need necessarily be resolved as between the husband and wife. It is enough that it be pointed to as a real issue because it demonstrates that the assumption by Mr F that one of the investors may simply make application under s.38 of the Property Law Act is an assumption that cannot readily or necessarily be accepted.…
…
Each of the joint venture agreements contains a clause which purports to compel an investor wishing to make application under S 38 of the Property Law Act to first comply with mechanisms for sale provided in subparagraphs of that clause. In the CPJV Agreement the clause is clause 17. Each contains a clause any ‘dispute, difference or question’ to be submitted to arbitration before any legal proceedings may be commenced or prosecuted.”
In relation to those joint ventures without written agreement, the submissions on behalf of the husband were that it is likely that the power of sale in respect of the property held by the venture was the trustee’s, subject to each investor’s right to bring an application to have that decision reviewed.
In relation to interests in syndicates held through express trusts, counsel submitted:
“…insofar as any interest under that trust is capable of being transferred, by way of sale of a unit for instance, the property capable of being transferred is again property that does not entitle the owner to control the assets owned by the trust and again for a like reason ought appropriately be discounted.”
Counsel further argued that, to the foregoing situation, may be added issues of waiver or estoppel, in those case where the term of the joint venture has notionally expired but the joint venture has plainly continued nevertheless, and the role that might be played by a secured creditor, in enforcing the security, as referred to by Mr M.
The issues raised by senior counsel are real, rather than illusory. In my view, it is clear that in the position Mr F adopted after abandoning reliance for his contentions on the husband’s de facto control of the syndicates, he did not address those issues.
Mr M, expert accountant for the husband, says that in the market place a purchaser of the relevant interest will want a discount because the interest is a minority interest, but he gave no evidence of such a transaction actually occurring in the market place.
Originally, Mr M discounted the interests in the syndicates by a flat 20%, but the position for which he ultimately contended was that a discount at that rate should be applied at each link in the chain through which the husband and wife ultimately held interests in the assets owned by the syndicates. I accept that in some instances this resulted in a discount of approximately 59% on the “gross” value.
In the order 30A report, Mr M said in paragraph 58 that the minority interest holders:
“…cannot control or have any opportunity to –
(i) sell any of the assets of the joint venture;
(ii) change any direction of the joint venture”
Yet I am not satisfied that Mr M considered the terms and conditions relating to any of the particular syndicates or the legal arrangements at any step in the chain of structures through which the interests of the husband and wife were held. He had not seen the agreements until after he had prepared his report of 11 February 2004.
Nor did Mr M compare the various manners in which L interests are held in the various syndicates. For example, in the BPPG the interests are virtually held by each investor as a tenant in common.
Further, I was not persuaded that Mr M had cogently addressed differences between, for example, a minority shareholding interest in a private corporation, as against a minority interest in land. In particular, I am not satisfied that in the decision to apply a discount, he initially considered the rights of the part owner of land under the Property Law Act 1974 (Queensland).
The shortcomings of Mr M’s approach particularly weaken the support for his choice of an “indiscriminate” discount rate, applied at each step of the structures through which L interests are held. But there was no attempt to provide alternate discount figures.
I accept the submission of counsel for the wife that unless I accept Mr F’s evidence in its entirety, I will have great difficulty determining an appropriate rate of discount.
In the end, I do not believe that either valuer has acted upon a set of assumptions which have been established as correct in these proceedings.
Nonetheless, I think the evidence overall enables conclusions abut this issue.
(i)There is no evidence that such discounts as suggested are applied by the market.
(ii)The gross discount ultimately resulting from Mr M’s approach in some instances (59%) is highly unlikely to be a correct valuation, having regard to the nature of assets held.
(iii)Provided the husband is not forced by the terms of orders to sell his interests, the probabilities based on the history of the syndicates, are that investors will act co-operatively in the realisation of syndicate assets. In other words, the theoretical possibilities underlying the discount argument will never come to pass.
Based on these considerations, I conclude it is a fair assessment of value not to take any discount into account or order a sale of all syndicate interests because the valuation evidence falls short.
Moreover, I have left a final decision about a fair treatment of this issue until after reaching conclusions on the division of property, both in amount and in specie.
The wife is to receive the interest in the BPPG, at its undiscounted value. If such interests attract a discount, then she is sharing to that extent in the diminution in the pool that would occur if a discount was applied to syndicate interests.

The valuation of E H L & Co

Inclusion or exclusion of PA’s fees
It seems to me that consideration of this issue also involves the question of PA’s commercial salary, for the essential argument is about whether a purchaser would pay for the fees generated by PA, on the expectation that the fees would continue for the practice, or would not pay for those fees, believing that PA would leave employment by the practice and take the fees with him.
PA receives $72,500.00 per annum salary, together with a motor vehicle provided by the practice, as his remuneration package.
The husband said that, additionally, PA’s wife receives $45,000.00 a year as a distribution from a trust, which the husband regards as partly a profit share. The husband causes tax on that distribution to be met, but not as a practice expense.
The evidence is that PA generates fees for the practice or about $220,000.00. For some years, he has operated from his home in Rochedale. The argument for the husband was that PA received more than a commercially justified salary, taking account of the monies received by PA’s wife and that a prudent purchaser would not pay for the fees generated by PA because to do so would require payment of an uncommercial salary. If PA’s overall “package” was reduced, it was likely he would leave.
The husband did not call PA as a witness.
Mr F had a discussion with PA, but much of the reported conversation was excluded upon objection.
The evidence does not disclose how PA regards, or what he regards as, his remuneration package. The payment to PA’s wife is not included as an expense of the practice. Mr F assessed the amount of salary paid to PA to represent commercial remuneration. I accept his opinion.
In the circumstances, I see no reason to prefer the assumptions made by Mr M to any assumptions made by Mr F about what PA might do in the event of sale of the practice. PA has been for a long time, and is, an employee of the practice and the fees generated by him are included in the practice income. It is appropriate in my view to value the practice as is, in the absence of cogent evidence for adjustments and in my view Mr F’s approach on this point is to be preferred.
Husband’s salary
The accountants agreed that for the husband a commercial salary was of the range $200,000.00 to $225,000.00.
Mr F determined a commercial salary for the husband at $200,000.00 on the basis that he worked a five day week and then made an adjustment for the fact that he only worked a four day week. He argued that salary was simply a function of time.
On the other hand Mr M said that salary had reference to the management by the husband of the high level of fees produced by the practice as well as the fees directly generated by the husband. Mr M further considered the notional salary ($225,000.00) to be commensurate with the market salary required to employ a chartered accountant with the level of experience of the husband.
In my view, there is more logic in the position of Mr M, namely that time worked is only one part of the assessment of what is a commercial salary. I accept Mr M’s evidence.
Tax on work in progress
In relation to this issue the following appears in the Order 30A Rule 9 Statement filed 18 March 2004:
“80. Mr M has calculated tax on work in progress of the accounting practice at 48.5%, being $103,031.
81.     Mr F has not calculated tax on work in progress.
82.     Mr F does consider a taxation rate of 48.5% to be appropriate. Mr F notes that because of the nature of the L Family Group Structure, the Husband has the capability to minimise and defer payment of taxation over an extended period of time.
83.     Mr M notes that Mr F does not specifically address income tax on work in progress in his report. Any comments he makes are in relation to the realisation of the L Group. Tax on work in progress is payable regardless of realisation and should therefore be taken into account. Further Mr F does not provide any details on how the Husband can minimise or defer taxation on personal income derived from his accounting practice.
84.     Mr M adopts 48.5% as it represents the personal marginal rate of the Husband.”
Mr F does not suggest that no tax will be payable upon work in progress. In those circumstances it is a clear unfairness to the husband for no account to be taken of taxation.
While historically the husband has been very successful in minimising the rate of personal taxation, his affairs are about to be radically restructured and he will not have available to him the same sources of income that he has had over many years past. Moreover, given his age and evidence about his intentions, the realisation of the practice is foreseeable. In those circumstances, in my view, tax on work in progress as calculated by Mr M ought to be brought into account.

Adjusted valuation of E H L & Co.

As I understand Mr F’s valuation of goodwill, he capitalised future maintainable earnings of $621,558.00 at a rate of 33% and then deducted net assets of $777,380.00. As I apprehend it, my findings in relation to the husband’s salary will reduce Mr F’s calculation of future maintainable earnings by $65,000.00 to $556,558.00. Capitalised at 33%, this produces a value of $1,686,539.00.
On 18 February 2005, I made my draft reasons available to the parties to enable my calculations about various assets to be checked and for comment on the proposed orders.
Senior counsel for each party made further submissions on 4 March 2005. There was issue about the calculations to put into effect my findings about tax on work in progress. Each accountant subsequently forwarded written comment, which I have marked as exhibits, (letter from GT 4 March 2005, Exhibit 16, letter from PP 4 March 2005, Exhibit 17). The approach of Mr M gives effect to my intention, about calculations arising from my findings, so far as I was capable of formulating an intention about that on the evidence as it stood when I made the draft reasons available. In so far as the evidence has now specifically addressed the matter of approach to take account of taxation on work in progress, I accept the evidence of Mr M as the more cogent, particularly his reasons set out in paragraphs (a) to (f) inclusive of Exhibit 17.

Add-backs

Property in the name of YL

Profits from 1 July 2003

Senior counsel for the wife posed the question in respect of payments and other benefits given by the husband to his present wife:
“…should that benevolence reduce the divisible pool created by the joint contributions of he and his former wife within the 40 years since 1964?”
It was argued for the wife that interests in 2 units in beach locations in respect of which the husband and his present wife hold equal interests should be brought into the asset pool. It was also argued that the husband’s present wife’s superannuation and distributions received by her from the Family Trusts No.2 and 3 should be brought to account.
It was said that the presence of other benefits received by the husband’s present wife, a valuable motor vehicle and defrayment of mortgages in relation to the beach units, reinforced the arguments in respect of “add-backs”.
Further, it was argued for the wife that an interest in property at Springwood should be brought to account. This property had been included in income tax returns of the husband’s. However, I accept the husband’s evidence that this property was acquired with money of his present wife.
As well, it was argued that after tax profits from 1 July 2003, assessed at $500,000.00 should be included. This was basically because the financial data had only been completed until 30 June 2003 and the husband had had the “use” of profits since that time.
The evidence indicates that on the face of it, the properties in the name of the present wife and the benefits received by her, are hers at law. There are potential injustices to the husband in simply writing back notionally the amounts paid to the husband’s present wife and the values of property in her name. Such “advances” to the husband’s present wife may well not be recoverable by the husband. Furthermore, what is to be done, for example, in respect of taxation saved by the payment of superannuation and distributions to the present wife if notionally, those payments are brought back as an asset of the husband’s. True it is that counsel for the wife suggested a rounding down of gross figures to make some allowance for tax, but there is a certain arbitrariness about that approach.
Secondly, consideration must be given to the position of the present wife and any entitlements that she might have to, for example, distributions, by virtue of the role that she plays in the marriage to the husband.

In my view, in deciding about this argument, it is also appropriate to recognise the length of time since the separation of the parties and that, in the absence of evidence otherwise, I infer that the payments to the present wife have been from income generated by the husband post-separation, albeit in considerable degree from an asset base established during the cohabitation of the parties.
In relation to profits after July 2003, there is considerable strength in the submission on behalf of the husband that the propositions upon which such a case was to be advanced were not put to the husband.
Senior counsel for the husband prepared further written submissions, amending “suggested” figures put forward by senior counsel for the wife. The figures put on behalf of the husband, allowing him a salary of $300,000.00 for 16 months, demonstrate a scenario no less likely, in my view, than that suggested on behalf of the wife.
When account is also taken, as senior counsel for the husband pointed out, of loan servicing and superannuation contributions included in the pool (provided, in my view, that figures are post-June 2003) there is no case for any “add-back”.
I accept the force of these submissions for the husband.
The use of funds by the husband post-separation is something to which regard ought be had in assessing contributions. However, that is not to say that this usage of funds is best treated by adding back in the amount “spent” beyond that which funded a reasonable standard of living and necessary outgoings. Indeed, as indicated with regard to property in the name of his present wife, unless the expenditure is recoverable as property in the hands of the husband, to “add back” is an extreme way of giving weight to such expenditure.
I reject the arguments put on behalf of the wife in these regards.

Loan from KM TRUST to BU

The KM Trust, created in 1995, is a discretionary trust in a common form. The husband and wife are primary beneficiaries; the husband is principal. The BU is a beneficiary.
From time to time the husband caused money to be distributed to the BU (a tax free distribution), but the money was lent back to the Trust, interest free. At 1 July 1998, the year before separation, the loan was $468,101.00. At trial (June 2003 figures), it was $1,119,354.00.
There had been no drawings of any significance whatsoever on the loan account.
The husband has provided by his will that in the event the loan from the BU has not been repaid before his death it is to be paid from his estate.
The husband said if there was a demand he would pay it but no payments had been made from the loan account and the BU was not provided with copies of the accounts. However, the husband denied having an intention not to pay during his lifetime.
The husband said he had informed past secretaries of the BU of the loan account and that he is making allocations on an annual basis.
The wife seeks that the property of the trust be brought to account (this is not in issue) but the wife further seeks that the loan liability to the BU be disregarded, as it is submitted that it will “clearly not be called up before the husband’s death”.
The wife also puts an alternative approach, that the liability be brought to account at its “present value”, assuming the liability is not payable until the husband’s death.
In his written submissions, senior counsel for the wife referred to a third approach, namely adding back the loan monies to the asset pool, on the basis that they represented use by the husband of monies for his own purposes. This seems an unfair approach having regard to what I say below, but especially in regard to distributions prior to separation.
On Mr F’s evidence the present value of the loan payable on the death of the husband is $307,823.00. At page 79 of his report, Mr F set out the information provided to him by the husband upon which Mr F formed the view that the loan would not be repaid during the course of the husband’s life.
On all the evidence before me, I find it probable the loan will not be repaid during the husband’s life.
Submissions on behalf of the husband included:
“The middle course of bringing the loan into account at a present value as calculated by Mr F is more palatable to the husband than simply ignoring the loan.”
In my view, the first alternative (“the middle course”) is the preferred approach with an estate of this size under the management of the husband, it would be unfair not to permit the husband some leeway to make charitable payments. There was no exploration of what might be a legitimate level (in terms of “Townsend” principles).
The loan arrangement is one which has presented the husband (and indirectly the wife) with considerable financial advantages because of the tax deductibility of the distributions to the BU, but the retention of the monies interest free for use by the trust. It would certainly be unfair in my view to add in the loan monies without giving credit for that advantage, which has not been calculated.

CGT and realisation costs

There seems little argument between the parties that, theoretically, capital gains tax could be taken into account on the parties’ real estate interests.
The difficulty however is in deciding on an appropriate rate. Traditionally, the husband has not paid tax at anywhere near the highest level. By one means or another he has been able to obtain assessment at lower rates. While having regard to the results of this case, his financial position will change considerably and he may have less choices about how he arranges his affairs, it remains quite speculative as to what tax, if any, would be payable by him.
I accept the force of the submission on behalf of the wife that it is more likely she will pay tax at higher rates or at least not be able to take advantage of arrangements such as the husband has been able to manage in the past.
Mr F did no calculation for CGT or realisation costs. However, he was critical that, in his calculations, Mr M used the top marginal rate of taxation and for the interests in the property syndicates calculated the notional tax “top down rather than bottom up”.
Counsel for the wife submitted that it was clear from the cross-examination of Mr M that though he had calculated capital gains tax, he was not asserting that it ought be brought to account. He recognised that there were many legitimate devices available to substantially reduce the tax payable and that rarely in the past had the top marginal rate ever been paid. The husband also accepted this.
It was said that the wife was content sharing the risks in relation to these charges by the orders she sought.
Again, having regard to the uncertainties, I think the better way to deal with this area is to distribute property approximately equally.

Tax on retained earnings

Mr M deducted $193,833.00 tax on the retained earnings of B Pty Ltd. Mr F made no allowance.
The matter was not explored in evidence. Senior counsel for the wife simply submitted that the tax should not be deducted because there was no evidence B was to be wound-up.
In the circumstances I accept this submission.

Tax on superannuation

Mr M deducted taxation of a total of $355,559.00. Otherwise, nothing really was said for the husband in support of this deduction.
For the wife it was submitted that tax is calculated on the basis that all funds will be taken out in a lump sum when it is recognised that is unlikely to occur.
I accept this submission.

RP Contract

There is no reliable evidence of the present value of the husband’s rights as purchaser of this unit. There is merely an indication (a reported opinion of the developer) that the husband may, when it is completed, have a property markedly more valuable than what he will pay for it. That is insufficient for account to be taken of that prospect by inclusion of a figure in the asset table and even, in my view, for account to be taken under section 75(2).

Miscellaneous differences

For the wife, the property she acquired and the legal fees she met with interim property distributions was included in the asset pool. For the husband, the actual distributions (but not property acquired or fees paid) were “written back”. The monetary difference in approaches is only about $2,000.00. It was not suggested that the wife “inappropriately” spent the difference. It could have been spent on costs of acquisition, for example.
I prefer to include the property acquired and legal fees paid.
There were some differences in values for such items as Telstra shares, money in trust, bank accounts and mortgage liabilities, mainly because of different dates of calculation.
However, though there may have even been further changes, the “balance sheet”, including of contribution factors, must be struck somewhere, so where a later date was available at trial, in general I have taken the later date, but otherwise make no allowance for changes that might have since occurred.
Mr M took account of two items, not otherwise dealt with; 2003 income tax for B Pty Ltd. ($11,250.00) and 2003 group income tax ($41,049.00).
I see no reason why they should not be deducted.
I have not included the husband’s credit card debt. Inclusion was not ultimately contended for by the husband.

Assessment of contributions

As to the contributions by the husband in and about the acquisition and conservation of the wealth of the parties, I consider this is not a case in which, prior to the commencement of cohabitation, a party had laid down a base of qualifications and experience which in a direct and significant way produced wealth during the subsequent cohabitation. True it is that the husband had completed a substantial part of his accountancy studies before marriage, but he did not qualify until after marriage and he then pursued the further studies necessary to obtain admission as a chartered accountant.
It was many years later that the acquisition of real estate for investment commenced in any significant way.
The evidence about the husband’s income over the years, including currently, as against that of other chartered accountants is fairly abbreviated. As earlier indicated, I do not consider that the evidence establishes that the husband has earned in his professional life an income markedly better than other senior chartered accountants. Nor do I consider that earning such an income evidences some extraordinary professional qualities or capacities.
In assessing the character of the real estate investments, for which I find the husband has been primarily responsible, it is appropriate to recognise that the investments have generally been held for long periods of time. It seemed acknowledged by both senior counsel that during most, especially the latter parts of these periods, the property market in Australia has generally returned good growth. However, there is no evidence before me of how other fields of investment have preformed over the same periods. For example, had money been placed in the stockmarket, in a range of “conservative stock”, would equal acquisition of wealth been generated?
Moreover, by no means all of the investments made by the husband have produced the same level of profit. While a few might be described as having achieved spectacular growth, others have achieved solid growth at best. A few have resulted in loss.
The acquisition of wealth by the husband certainly demonstrates an alertness to the profit making potential of the acquisition of good property. He has pursued these investments, from the base of a secure professional income of a greater than average magnitude.
There is considerable force in the submission of counsel for the wife that:
“…the Husband did nothing to influence the market or interest rate movement, he did not alter the properties in terms of their use or presentation, the parties were passive investors with a high risk strategy who by good luck or good judgment (or perhaps a bit of both) got the timing right.…”
I would use terms such as “assiduous”, “astute” and “determined” to describe the husband as an investor, rather than describing his talents as “exceptional”, “special” or “extraordinary”.
As to the wife’s contributions, it was submitted for the husband:
“It is to be noted that regrettably throughout the marriage but particularly towards the later part of the marriage the wife suffered considerable ill health insofar as she might otherwise have been available to make further or other contributions beyond those in fact made by her particularly as the children have become more independent she was regrettably precluded from doing so by reason of her health.”
Of course, the major sphere of activity of the wife was as home-maker/parent and at the time she most suffered ill health, less was required of her in relation to that sphere.
Having regard to my previous findings about the wife’s contributions, I am satisfied that the wife’s roles accumulatively amounted to a fulsome contribution over the bulk of the period of cohabitation. Her primary role as parent and home-maker was fulfilled with the assistance of an active but limited involvement of the husband. With four children, some of whom had health difficulties and all of whom were involved in various activities outside schooling, the primary parenting role alone was a demanding one.
In addition, I accept broadly the wife’s evidence about her involvement in social life connected with the husband’s business, an issue upon which the husband himself placed considerable emphasis.
As to the contributions of the parties post-separation, in my view the respective positions of the parties cancel each other out. The wife was maintained by the husband by virtue of her occupation of the former matrimonial home and the monies paid to her and the provision made by the husband when she rented the unit. Senior counsel for the wife endeavoured to develop an argument that the disparity in the lifestyles of each of the parties post-separation was a factor that ought be brought to account. I accept that the husband has lived at a superior level to the wife but on the other hand he has provided the personal effort to generate income, albeit in circumstances built up during the cohabitation, but without any contribution by the wife towards his efforts, in contrast with the position during the cohabitation. Indeed since early 2001, the husband has been remarried.
As indicated at the outset, the essential contribution issue in this case was the argument that the husband’s contributions, whether “special” as his material suggested, or not, in particular to the acquisition of wealth, outweighed those of the wife. As to this, senior counsel for the wife, after submitting that, though the wife’s efforts as homemaker/parent had been criticised by the husband, the appropriate conclusion in respect of contributions was one of equality, further said:
“It will only be if the husband’s effort can be categorised as ‘special’ or ‘extraordinary’ in the Ferraro sense that your Honour would form a different conclusion.”
Senior counsel for the husband submitted that that did not correctly state the proper approach. He submitted:
“If as a matter of practical common sense on an ordinary fair assessment there are features of the contribution actually made by either party that indicate that his or her contribution is one fairly entitled to be recognised as being of more significant weight than the contribution in fact made by the other party then the Family Law Act requires that contribution be recognised in the assessment. This does not require the establishment of some superlative or extraordinary performance, for if it did then the erroneous presumption of equality, struck down by the High Court in Mallet, will have been reborn. Rather it requires a fair judicious assessment of the comparative worth of the contributions. This is not an invitation to a minute or pedantic examination of daily contribution over many years but an invitation to make a common sense fair assessment of the contributions made by each party in his or her own sphere.
We acknowledge and accept that a great risk in making this qualative assessment is the very real danger of undervaluing the contribution made, typically by the wife, as a homemaker and parent. The disadvantage arises by reason of the person adopting that role contributing in a sphere for which the worth of the contribution is not readily measurable by the conventional medium of exchange ie. money…
This risk is recognised by the Full Court in many cases and was recognised in the judgments of the High Court in Mallet. It must be guarded against. It is not obviated by continually raising the bar on a threshold of ‘special’ or by an assumption of a normal range. At all times the task is simply to fairly and appropriately find the facts and make an assessment of the qualative worth of each party’s contributions made in their respective spheres, always mindful of the circumstance that at least with respect to one of those spheres the process of assessment is often inherently more difficult than it is with respect to the other.”
In my view, these submissions by each counsel, in particular that of senior counsel for the husband, referring to the danger of undervaluing the contribution as home-maker/parent, point to the true nature of the assessment of contributions under section 79. There are two aspects to the process. Firstly, the “value” given to a role, of itself. Secondly, the assessment of the quality with which a particular role was performed. Within the concept of “value of a role” is the idea of “the reach” of that role, particularly where a variety of assets has been acquired.
The first aspect, the “value”, given to a role, of itself, will, I suggest, be derived, at least mostly, from considerations beyond the individual case. The second will focus on the facts of the particular case, but there may well remain elements of “value” even in the assessment of “quality” of contributions.
Senior counsel for the husband’s submission, that an assessment of disparate worth of contributions does not require the establishment of some superlative, extraordinary, or special performance may be correct, but he nonetheless argues that a qualitative assessment must be made. To explain a comparison of the quality of differing contributions, some use of adjectives seems unavoidable. I think the resolution to the controversy arising from counsel’s submissions does not rest with the choice of adjectives.
Moreover, within the concept of “fairness” referred to by senior counsel for the husband, is a choice of parameters, or principles. What is fair will depend on the criteria - the values - used for measurement. For example, is marriage a partnership, the fruits of which ought be equally shared, as long as each partner has performed “usual” or “assigned duties” during its course? Or, irrespective of the way that during cohabitation the parties viewed their separate contributions in agreed roles, the partnership agreement having foundered, does a “winding up” involve a retrospective re-allocation of the worth of contributions by an external arbiter.
Though the presence of “values” in the assessment of contributions has on occasion, been acknowledged in cases, the basis for, and the origins of, “values” in that assessment, has received little or no attention. Nor have a number of other important questions about the use of values been addressed.
There may be reasons for that. To discuss values is to plunge into a whirlpool. Doing so may even, as Kirby J said:
“…merely cast doubt on the certainty and objectivity of the law which Frank says is a deeply felt, but child-like human need.…” (“Judging: Reflections on the moment of decision” paper at Fifth National Conference on Reasoning and Decision-Making, Wagga Wagga 4.12.98)
However, as his Honour also said, modern judges are beset by many uncertainties and:
“…Those uncertainties will not disappear merely because we turn our backs on them.”

In JEL & DDF, their Honours Holden and Guest JJ, with whom Kay J agreed, reviewed the cases discussed here (and others) and came to the following conclusion:
“152. It seems to us that the following general principles can be said to arise from the cases referred to in these reasons, namely:
(a)There is no presumption of equality of contribution or “partnership”.
(b)There is a requirement to undertake an evaluation of the respective contributions of the husband and the wife.
(c)Although in many cases the direct financial contribution of one party will equal the indirect contribution of the other as homemaker and parent, that is not necessarily so in every case.
(d)In qualitatively evaluating the roles performed by marriage partners, there may arise special factors attaching to the performance of the particular role of one of them.
(e)The Court will recognise any such special factors as taking the contribution outside the “normal range” in the sense that that phrase was understood by the Full Court in McLay (supra).
(f)The determination of an issue of whether or not a “special” or “extra” contribution is made by a party to a marriage is not necessarily dependant upon the size of the asset pool or the “financial product”. When considering such an issue, care must be taken to recognise and distinguish a “windfall” gain.
(g)Whilst decisions in previous cases where special factors were found to exist may provide some guidance to judges at first instance, they are not prescriptive, except to the extent that they purport to lay down general principles.
(h)It is ultimately the exercise of the trial Judge’s own discretion on the particular facts of the case that will regulate the outcome.
(i)In the exercise of that discretion, the trial Judge must be satisfied that the actual orders are just and equitable, and not just the underlying percentage division.” (pages 88,334 and 88,335)
In relation to the content of paragraph (f) above, Holden and Guest JJ said:
“133. Faced with these apparently conflicting decisions of differently constituted Full Courts it becomes necessary for us to express a view. The issue of a ‘special’ or ‘extra’ contribution by the husband or wife is a question of fact. In our view, the determination of such a contribution is not necessarily dependent upon the size of the asset pool or the ‘financial product’ achieved by the parties.” (p 88,331)
With respect to their Honours who decided JEL and DDF, the decision is one of deduction from the principles ultimately pronounced in the cases there reviewed, but there is no consideration of the presence and influence of “values” in those prior decisions or, for that matter, in the conclusions reached in JEL and DDF, particularly such as that separating the assessment of “special” contribution from a particular magnitude of result.
Perhaps the case in which there has been the closest examination and frankest discussion of the role of values in property settlement cases is Figgins & Figgins (2002) FLC 93-122.
There, in a joint judgment, Nicholson CJ and Buckley J said:
“57. We are troubled that in the absence of specific legislative direction, courts consider they should make subjective assessments of whether the quality of a party’s contributions was “outstanding”. It is almost impossible to determine questions such as: Was he a good businessman/artist/surgeon or just lucky? Was she a good cook/housekeeper/entertainer or just an attractive personality? We think it invidious for a judge to in effect give “marks” to a wife or husband during a marriage. We think that this doctrine of “special contribution” should, in an appropriate case, be reconsidered. We think that the decision of the House of Lords in White v White [2001] 1 All ER 1 gives force to these concerns.”
Whether such a reconsideration of the doctrine of “special contribution” can be conducted and move towards a conclusion such as indicated by their Honour’s in this paragraph, yet remain consistent with the pronouncements in Mallet, is a difficult question. However, their Honours later said with further reference to the decision in White:
“107.       …We say this because some of the principles expressed appear to be of general application, particularly as to the role of women in marriage.
108.   We note that Thorpe LJ expressed the view in Cowan (supra) that the principles laid down in White (supra) may be confined to “big money” cases. However, we are sure that his references to gender equality were intended to apply to all cases, regardless of the amount of the property in dispute.
109.   White (supra) was a big money case, as this one is. However, it differs from this case in several respects. White involved:
·A long marriage;
·Greater direct and indirect contributions by the wife;
·Different legislation.
110.   Despite this, as Lord Cooke pointed out (at 16), the Australian statutory regime is similar to the English one. In particular, s 25(2) of the English legislation, which is set out in the speech of Lord Nicholls (at 7-8) bears considerable similarities to the Australian legislation.
111.   In White, Counsel for the wife argued for a presumption of equal division, which was the issue in Mallet (supra). In the event the House of Lords, like the High Court in Mallet, rejected such a presumption.
112.   However the speeches of their Lordships, and particularly those of Lord Nicholls and Lord Cooke, contain some pertinent observations.
113.   We particularly note Lord Nicholls’ emphasis (at 8-9) upon:
·Fairness, which we would equate with the Family Law Act’s requirement that the result be just and equitable; see also Mallet (supra) per Gibbs CJ (at 79,111);
·That the contribution in question in the legislation is to the welfare of the family;
·The absence of discrimination in favour of the money earner and against the home-maker and child carer;
·The testing of the result against the yardstick of equality of division;
·The need to provide reasons for departing from equality of division;
·Greater modern awareness of the extent to which one spouse’s business success may have been made possible or enhanced by the family contribution of the other spouse;
·Greater awareness of loss of work opportunities resulting from the need to stay home and look after young children;
·The need in the exercise of discretions such as those conferred by this type of legislation to take into account “the human outlook of the period in which they make their decisions” and the need to remember that “the law is a living thing moving with the times and not a creature of dead or moribund ways of thought” (Porter v Porter [1969] 3 All ER 640 at 643-644 per Sachs LJ).
114.   We note that Lord Cooke, who indicated that he thought that similar views were held throughout the Commonwealth as to equality of division being an appropriate starting point, endorsed the remarks of Lord Nicholls.”
Their Honours then acknowledged the differences between the position in England and that in Australia in particular with regard to equality of division as a starting point and the view in White that Mallet had been overruled.
Then, after discussing issues arising out of using equality as a starting point, their Honours further said:
132. … We think the important concept that can be said to emerge from White is that, in order to test whether a result is fair, or in Australian terms just and equitable, it is important to ask whether the husband and wife are being treated equally. It states in the clearest terms the modern recognition of equality of the sexes and the need to abandon all forms of discrimination.
…
134. …We reject the concept that there is something special about the role of the male breadwinner that means that he should achieve such a preferred position in relation to his female partner. To do so is to pay mere lip service to gender equality. Marriage is and should be regarded as a genuine partnership to which each brings different gifts. The fact that one is productive of money in large quantities is no reason to disadvantage the other. We think that cases such as JEL and DDF (supra) and the minority view of Guest J in Farmer and Bramley have missed this point and have led to an imbalance of gender considerations in arriving at results that unduly favour the male partner.” (emphasis added)
In my view, the pronouncement “Marriage is and should be regarded as a genuine partnership to which each brings different gifts. The fact that one is productive of money in large quantities is no reason to disadvantage the other” is the statement of a value.
I consider that their Honours implicitly recognise this when they describe, with apparent approval, what they regard Lord Nicholls as having said in White:
“The need in the exercise of discretions such as those conferred by this type of legislation to take into account ‘the human outlook of the period’.”
I perceive as (at least) a consequence of the application of this “value”, less emphasis on the quality of contributions within a role, and certainly less upon the result of those contributions.
In my view, this pronouncement, of itself, may even amount to a reconsideration of the concept of “special” contribution.
I come now to the ultimate purpose of the preceding discussion. What does it mean, for this court, in this case?
A number of questions immediately arise:
·   How are values divined; “the human outlook of the period”, ascertained?
·   Is a trial Judge bound by the values approved in cases decided by superior courts, including the Full Court of this court, in the same way that a trial Judge is bound by the doctrine of precedent in respect of legal principle?
·   Is a trial Judge free to introduce “new” values?
·   How would a guideline about a “value” compare with a “presumption” and if there is no difference, and there can be no presumptions (and so no predetermined “values”) what reins are there on arbitrariness?
There may be tensions between some pronouncements in Figgins and those in Mallet. However, as a trial judge, I do not consider I ought question the Full Court’s application of the law, including the principles enunciated in Mallet.
Moreover, if the aforegoing analysis is correct, then all that the Full Court has done in Figgins is to “update”: values underpinning pronouncements in Mallet.
As was said in McLay, it is important for the Full Court to lay out guidelines for trial judges, and for trial judges to follow them, for all the reasons there enunciated.
In the circumstances, I consider that I am currently relieved of any need to attempt answers to most of the questions posed above.
They are the sort of questions that have moved some in the past to recommend legislative provision, so that the values applied by the Court in section 79 applications are both prescribed and patent.
Having regard to what I have already said about the quality of the contributions made by each of the parties and to the propositions set out in Figgins, I am of the view that the proper conclusion in this case is that the respective contributions of the parties are overall of equal value.

Assessment of section 75(2) factors

Clearly, the husband has a capacity to earn in an entirely different dimension to that of the wife, at least insofar as the application of personal skill and effort is concerned. While in addressing his capacity and the probabilities with regard to its future use, it is appropriate to have regard to the length of time since separation, that period remains only a minor percentage of the length of the cohabitation during which the husband’s capacities were developed.
On the other hand, he must work and produce income, and pay tax upon it. In doing that, if he gains support, it is likely to be from his present wife, not his former wife.
A “cash” adjustment now to the wife, for a disparity in future earnings, can be used by the wife to produce income.
The fact that the wife will have, on the contributions assessment, equal capital with the husband, from which it can be expected considerable income will be generated, tends to “soften” the impact of the disparity of earning capacities.
It is difficult on the material to predict the length of time which the husband might work in the accountancy practice at anything equating his current level, but the choice would seem to be available to him for the medium term of two or three years. His health is good.
The wife’s poor health is of some significance.
I consider that, on account of all of these factors, an adjustment of 2% to the wife is appropriate.

Issue about particular property

The wife wished to receive the unit at Currumbin. She said that it had been where the parties’ children grew up and it was a good investment. The husband opposed this, on the basis that he and his present wife had renovated it and made it their home.
Having regard to the desirability of dividing property between the parties for the purpose of spreading between them the burden of possible realisation costs and capital gains tax, to the arguments in favour of the wife receiving the property and to the availability in the foreseeable future to the husband of the unit at RP as a residence, I consider that the wife should receive the unit at Currumbin.

Terms of the orders

The husband said that he would prefer to pay the wife cash in settlement, but would consider a settlement involving part of a group. In submissions on his behalf, it was said that he was willing to transfer to the wife the unit at Noosa, Rochedale and BT. If the court thought it appropriate other property be given to the wife, the husband proposed that be the parties’ interest in CPJV, in AJV and in the BPPG.
Counsel for the wife suggested that the husband be given an option to pay the wife out in cash, but that in assessing the wife’s cash entitlement, minority discounts and notional taxes be ignored. I consider this a proper approach producing a just and equitable result.
52% of $12,381,178.00 is $6,438,212.00.
The wife already has, and should, in my view, receive:
Unit in WM Retirement Village  $330,000.00
Superannuation  629,398.00
Furniture  9,771.00
Jewellery  23,475.00
Unit TRR  725,000.00
Unit NP  950,000.00
Rochedale  250,000.00
Unit F  1,500,000.00
BPPG interest  873,720.00
AAJV  374,121.00
Corolla motor vehicle  28,000.00
Legal fees paid  224,960.00
Portion of monies held in trust (solicitors)  515,867.00
Wife’s bank account        3,900.00
  6,438,212.00

Are the orders just and equitable?

I discern no factors beyond those already considered affecting the justice and equity of the proposed orders.

ORDERS

Preamble

The following definitions apply for the purpose of these orders.
1.1“L Group” means all of the companies trusts and entities referred to in Appendix 1 to the Report of GT dated 12 January 2004 annexed hereto marked “A.
That as and by way of property settlement the husband and the wife receive and/or retain the property and resources set forth in the following orders.

Property to be received and/or retained by the wife

That the husband, within 30 days of this order, transfer to the wife or at her direction, free of encumbrance, all of his right title and interest in the following:
3.1Unit TRR;
3.2Unit NP;
3.3Rochedale;
3.4Unit at F.
That the husband in whatever capacity he may hold and, in particular, as the sole director of E H L Services Pty Ltd, the trustee of the LFT No 2 forthwith, take such steps as shall be required to transfer to the wife or her nominee all of its right title and interest in and to:
4.1the BPPG and its ownership (directly or indirectly) in the properties known as KP and CA;
4.2AAJV.
That except as these orders provide to the contrary as against the husband, the wife is the owner and the husband has no interest in:
5.1any monies standing to the credit of the wife in any bank accounts in her sole name;
5.2All furniture, furnishings, jewellery and motor vehicles currently in her possession;
5.3Her interest in unit at WM Retirement Village;
5.4Her interest in the E H L Superannuation Fund.
The husband pay to the wife (by payment to the Trust Account of her solicitors, Hopgood Ganim) from the sum currently standing to the credit of the husband in his solicitors’ trust account, the sum of $515,867.00 within 7 days of the date of these orders, provide however, that, in addition, any interest accrued on the sum in the said trust account subsequent to 19 June 2004 shall be divided between the husband and wife in the proportions of 52% to the wife and 48% to the husband.
That at the husband’s election, in lieu of transference to the wife of the property interests referred to in order 4, he pay to the wife within 60 days of the date hereof, the sum of $1,247,841.00.

Property to be received/retained by the husband

Upon transfer of the property referred to in orders 3 and 4 (or payment pursuant to order 7) and payment of the sum referred to in order 6.
8.1The wife shall transfer to the husband all of her right title and interest in the following:
8.1.1 the units held by her in the G Unit Trust;
8.1.2 the shares held by her in B Pty Ltd and any other company within the L Group in which she holds shares;
8.1.3 any loan account or other monies due and/or payable to the wife by the L Group subject to order 6 herein;
8.1.4 the shares jointly held with the husband in Telstra;
8.1.5 the wife’s interest as a joint tenant in real properties as follows:
(a)the unit at Brisbane;
(b)Unit at MB;
(c)Unit at Runaway Bay;
(d)the Farm at Rathdowney;
(e)Unit at Runaway Bay.
8.1.6 Joint CBA account (relating to the sale proceeds of G C);
8.1.7 Marina Birth in the name of the husband and wife, as trustees for the G Unit Trust.
8.2The wife shall relinquish or resign as the case may be all offices held by her as director, secretary or otherwise, all positions, powers and/or capacities held by her as trustee, beneficiary, appointor or otherwise and shall upon the request in writing of the husband execute all such documents reasonably required by him for that purpose.
That except as these orders provide to the contrary, as against the wife, the husband is the sole owner of and the wife has no interest in:
9.1Any monies standing to the credit of the husband in any bank accounts in his sole name;
9.2The entitlement of the husband as a member of the E H L Superannuation Fund;
9.3The shares held by him in publicly listed companies;
9.4The boat in the husband’s possession;
9.5All furniture, furnishing and motor vehicles currently in the husband’s possession;
9.6The interest, loan accounts and other monies due or held by him in the L Group;
9.7The interest held by the husband in Unit at RR.
Superannuation
10.1The wife within 60 days shall cause her entitlement in the E H L Superannuation Fund to be rolled out of that fund or paid to her at her absolute election subject to the terms of the Trust Deed and the husband as trustee thereof shall take such steps as shall be necessary to give effect thereto.

Indemnities

That the husband indemnify the wife and keep her indemnified in respect of all claims, debts and liabilities of whatsoever nature including the following, namely:
11.1Any liability of the wife howsoever arising out of her directorship shareholding or other interest of whatsoever nature in the L Group including but not limited to income tax, capital gains tax, fringe benefits, sales tax, group tax, withholding tax, goods and services tax and/or any penalties, charges, assessments, re-assessments or interest thereon save for capital gains tax on the interest in the BPPG and AAJV transferred to the wife.
11.2Any income, capital gains or other taxes including interests and penalties, stamp duty including interest and penalties in respect of the purported transfer of Unit 56 BS in or about 1997 to the husband as trustee of the KM Trust.
11.3Any sums owing by the wife either alone or jointly with another to the L Group.
11.4The CBA joint overdraft in the name of the husband and the wife having a current balance in the vicinity of $74,000.00 and the three (3) joint bank loans in relation to the purchase of homes for the children of the marriage, each having an outstanding balance in the vicinity of $90,000.00 provided however that he husband shall within 3 months of the date of these orders re-finance each of the debts referred to herein, such as to remove the wife from any obligations in that regard.

Miscellaneous orders

That except as these orders provide to the contrary:
12.1All documents necessary to transfer any property or give effect to any transaction pursuant to the terms of these orders be prepared by the party receiving such property or the benefit of such transaction.
12.2That the party receiving such property or the benefit of such a transaction be responsible for the payment of taxation, stamp duty, registration fees, legal costs and outlays in relation to effecting the transfer of any property or the receipt of any benefit of such a transaction pursuant to the terms of these orders.
12.3That the husband and wife mutually release the other in respect of any actions, claims, suits, demands and debts as against the other.
That the parties comply with all requisitions issue by the Office of State Revenue in relation to any documents executed or transaction entered into pursuant to, or to put into effect, by these orders. In default of either of the parties complying with any requisition so issued within 14 days of the date upon which any requisition issues, the party not in default shall be entitled to comply with any of the outstanding requisitions and recover from the other party in default, the costs and outlays incurred in complying with the requisition, such costs to be calculated in accordance with the Family Law Rules.
That in the event that any party to these orders refuses or neglects to comply with any or all of the provisions of these orders, the Registrar or a Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed, pursuant to 106A of the Family law Act, to execute all deeds and documents in the name of the husband and/or the wife and to do all acts and things necessary to give validity and operation to these orders.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
15.1Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders.
15.2Insurance policies remain the sole property of the owner name therein.
15.3Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
15.4Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That all applications be otherwise dismissed and the proceedings removed from the pending cases list.
That the costs of each party be reserved, with liberty to each party to make application upon 7 days notice in writing to the other.

Notation:

The husband and the wife acknowledge that the property held by the G Unit Trust at Daisy Hill is held for the benefit of DE, the husband and the wife undertake that such property shall continue to be held for such purpose unless both consent in writing to any change and that notwithstanding the order that requires the wife to resign as one of the trustees of the G Unit Trust, the wife shall remain as one of the registered proprietors of the said property.