STEELE & STEELE

[2013] FamCA 407

FAMILY COURT OF AUSTRALIA

STEELE & STEELE [2013] FamCA 407

FAMILY LAW – PROPERTY – Interim hearing – Where the wife sought orders to continue an injunction over the husband’s property be continued – Where the husband and wife had entered into consent orders on 17 August 2000 – Where the wife relies upon s 79A(1)(a) & (b) for the final orders she seeks which are that the orders of 17 August 2000 be set aside and new orders be made pursuant to s 79 – Whether the wife is able to establish a prima facie case of a miscarriage of justice arising from matters which enliven 79A(1)(a) & (b) – Where the wife has established a prima facie case for relief under s 79A(1)(a) with respect to non-disclosure of the husband.

Family Law Act 1975 (Cth) s 79A

Australian Broadcasting Corporation v O’ Neill (2006) 227 CLR 57
Barker and Barker [2007] FamCA 13
Cawthorn v Cawthorn [1998] FamCA 37
G v T [2003] FamCA 1076
In the marriage of Rhode (1984) 10 Fam LR 56
La Rocca and La Rocca (1991) FLC 92-222

Sanger & Sanger [2011] FamCAFC 210

APPLICANT: Ms Steele

RESPONDENT: Mr Steele

FILE NUMBER: SYC 5370 of 2010

DATE DELIVERED: 3 June 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 5 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Kenney
SOLICITOR FOR THE APPLICANT:	Somerville Legal

COUNSEL FOR THE RESPONDENT:	Mr Battley
SOLICITOR FOR THE RESPONDENT:	Kim Monnox & Associates

Orders

(1)That the husband is hereby restrained, without the prior written consent of the wife, from selling, transferring or otherwise dealing with the property situated at … F Street, Town G in the state of New South Wales or doing any act or thing so as to cause the existing mortgage facility, or any other facility secured on that property to be varied, refinanced or for the amount borrowed under those facilities to be increased beyond a maximum indebtedness of $350,000.00.

(2)That Order 1 is conditional upon the wife filing a written undertaking as to damages within forty-eight (48) hours of the making of these orders.

(3)That this matter shall be stood over, before myself for directions, at 9:30 am on Wednesday 12 June 2013.

(4)That leave is granted to the parties to make an Application for Costs, if they so wish, within twenty-eight (28) days of the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC5370 of 2010

Ms Steele

Applicant

and

Mr Steele

Respondent

REASONS FOR JUDGMENT

INTRODUCTION           

1.By a Further Amended Initiating Application filed on 2 June 2011 Ms Steele (“the wife”) seeks orders pursuant to s 79A of The Family Law Act setting aside consent orders made by this Court on 17 August 2000 (“the consent orders”) in property proceedings between her and Mr Steele (“the husband”).

The consent orders in so far as they relate to property and superannuation are reproduced as follows:

…

15.THAT within fourteen days from the date of making of these Orders, the Husband do all acts and things and sign all necessary documents including transfers in order to transfer to the Wife his right title and interest in the matrimonial home absolutely.

16.THAT within 14 days from the date of making of these Orders, the Husband do all acts and things and sign all necessary documents including all motor vehicle registration transfers in order to transfer to the Wife his right title and interest in the Wifes motor vehicle.

17.THAT within 14 days from the date of making of these Orders, the Husband pay to the Wife by way of Bank Cheque or Telegraphic Transfer an amount of $80,000.00.

18.THAT the Wife make available for collection by the Husband or his agents at a time agreed between the parties but within fourteen days of the date of making of these Orders all those items of furniture and furnishings itemised on the attached Schedule “A” hereto.

19.THAT the Husband is declared to be the sole and beneficial owner of the legal and beneficial interests held by him in [B Pty Ltd] and [C Pty Ltd].

20.THAT the Wife provide to the Husband or his accountants within 14 days from the making of these orders, all documentation, records and correspondence in relation to [B Pty Ltd] and [C Pty LTd].

21.THAT the Husband do all acts and things and sign all necessary documents in order to transfer to the Wife the on or after … September 2010 when he turns 55 years of age at which time the [Super Fund D] benefits received by the Husband under the [relevant Act] will be converted to a lump sum and divided equally between the parties under the Commutation provisions.

22.THAT the Husband do all acts and things and execute all documents and writings and pay all monies necessary to indemnify and keep indemnified the Wife against all and any manner of proceedings, claims, actions, suits, arbitration, debts, costs, interests and demands of whatsoever nature both at law and at equity which may be made against the Wife:

22.1In relation to or arising out of the Wife having been an employee and/or director and/or officer and/or shareholder and/or agent of [B Pty Ltd] and [C Pty Ltd] or any company in which the Husband is now or was a director or shareholder or the Wife is or was a shareholder.

22.2In relation to or arising out of the Wife having had any loan account in her name or her name jointly with the Husband and/or any other person in [B Pty Ltd] and [C Pty Ltd] or any company in which the Husband is or was a director or shareholder.

22.3In relation to or arising out of any claim or proceedings brought by [B Pty Ltd] and [C Pty Ltd] or any company in which the Wife or Husband was a director or shareholder or the Husband in relation to or arising out of the Wife having been an employee and/or director and/or officer and/or shareholder of [B Pty Ltd] and [C Pty Ltd] or having been otherwise associated with [B Pty Ltd] and [C Pty Ltd] or any company in which the Husband was a director or shareholder.

22.4In relation to any personal guarantee given by the Wife in respect of any borrowings by [B Pty Ltd] and [C Pty Ltd] or any company in which the Husband or Wife is or was a director or shareholder.

22.5In relation to any personal guarantee given by the Wife in respect of any borrowings by the Husband and Wife jointly and severally.

22.6In relation to any loan account or accounts in the Wife’s name in [B Pty Ltd] and [C Pty Ltd] or any company in which the Husband was a director or shareholder.

and further the Husband indemnify and keep indemnified the Wife in respect of any damages or costs incurred by the Wife in any other proceedings which may or in the future be commenced against the Wife arising out of the failure by the Husband to comply with this order.  Save that this indemnity does not extend to the period from 1 May 1988 to 1 December 1999.

23.THAT the Husband do all acts and things and sign all documents and writings and pay all money necessary to indemnify and keep indemnified the Wife against any income tax liability including additional tax, penalties and interest to the Australian Tax Office which the Wife may have or in the future have arising from or in consequence of:

23.1The Wife having received any payment benefit or anything liable to taxation and/or arising from her having been a director and/or officer and/or shareholder of [B Pty Ltd] and [C Pty Ltd] or any company in which the Husband is or was a director or shareholder.

23.2The Wife having received any payment benefit or anything liable to taxation and/or arising from her having been an employee of [B Pty Ltd] and [C Pty Ltd] or any company in which the Husband is or was a director of shareholder.

23.3The Wife having had in her name or in her name jointly with any other person a loan account with [B Pty Ltd] and [C Pty Ltd] or any company in which the Husband is or was a director of shareholder.

and further the Husband indemnify and keep indemnified the Wife in respect of any damages or costs incurred by the Wife in any other proceedings which may or in the future be commenced against the Wife arising out of or relating to the failure by the Husband to comply with this order save that this indemnity does not extend to he period from 1 May 1988 to 1 December 1999.

24.THAT the husband forthwith instruct [Mr A] to prepare the Wife’s Income Tax Return for the financial year ending June 1999 at the expense of the Husband and that the Husband provide to the said [Mr A] and to the Wife all such cooperation and information as are reasonably necessary for that purpose.

25.THAT except as these orders provide to the contrary as against the Husband the Wife is sole owner and the Husband has no interest whatsoever in:

(a)the matrimonial home.

(b)The Wife’s furniture, furnishings and paintings.

(c)The Wife’s jewellery.

(d)The Wife’s motor vehicle.

(e)The Wife’s superannuation.

(f)All other assets of whatsoever nature and kind presently in the possession and control of the wife.

26.THAT except as these orders provide to the contrary as against the Wife the Husband is the sole owner and the Wife has no interest whatsoever in:

(a)[B Pty Ltd].

(b)[C Pty Ltd].

(errors as per original)

2.By an Amended Application in a Case filed 26 March 2013 the wife sought the following orders:

1.Pending further order that the Respondent Husband be restrained from selling, transferring or doing any act or thing so as to cause the existing mortgage facility secured over the property situated at [F Street, Town G] in the State of New South Wales be varied, refinanced and/or increased without the prior written consent of the Applicant or pursuant to an order of the Court.

2.That the Respondent husband pay the Applicant’s costs of and incidental to this application on an indemnity basis.

3.On 11 December 2012 Ryan J made an order pending the interim hearing, in the following terms:

2.1Pending further order, that the respondent husband is restrained from selling, transferring or doing any act or thing so as to cause the existing mortgage facility secured over the property situated at [F Street, Town G] in the State of New South Wales be varied, refinanced and/or increased without the prior written consent of the applicant or pursuant to an order of the Court.

4.It is the wife’s case that if the injunction is not continued the husband is likely to dispose of his property in Australia, or encumber it in favour of third persons, so that if her claim under s 79A is successful there will be no available property in Australia sufficient to meet property orders.

Background

5.The wife is 51 years old and the husband 56 years old.  They met in 1991 when both were public servants.  They were married in April 1993.  There are three children of the marriage born in January 1989, November 1992 and February 1994. 

6.In 1994 the wife resigned from the public service and received $28,000 from Super Fund E which funds were used to renovate the family home. 

7.In 1996 the husband resigned from the public service and subsequently the husband and the wife formed two companies, C Pty Ltd and B Pty Ltd.  From that time the business was conducted primarily by the husband and primarily in Indonesia. 

8.In 1999 the wife and the children moved to Spain to live.  The wife said this was because the husband had insisted that the family was no longer safe in either Indonesia or Australia because of his business activities in Indonesia. 

9.After one month in Spain the wife returned to Australia and the parties separated. 

10.As previously observed on 17 August 2000 consent orders were made in the Family Court of Australia pursuant to s 79 of the Act. The wife said in her affidavit sworn and filed  28 October 2011 that she consented to those orders because:

77.I was desperate for money and certainly wanted the children to see their father.  I therefore agreed to accept $460,000 in full and final settlement which consisted of the former matrimonial home, a car and $80,000 in cash.  I also agreed to the settlement significantly on the basis that I was receiving a further lump sum payment when the respondent turned 55 years old. 

78.The respondent maintained that the Indonesian Government was after him and that the entire $2,000,000 in the account was for unpaid taxes due to the Indonesian Government.

11.Shortly after the orders were made the wife noticed the husband driving a new Porsche motor vehicle which, according to the RTA records, appeared to have been purchased in his name in April or May 2000. 

12.In early October 2000 the husband purchased a property situate at F Street, Town G in NSW (“the Town G property”).  The purchase price was $440,000.  No mortgage was registered on the title of that property until 18 March 2003. 

13.In December 2004 the Respondent attempted to sell the Town G property at a listing price of $1,195,000. 

14.On 26 August 2010, prior to the husband turning fifty five years of age on 16 September 2010, the wife filed an Initiating Application in the Federal Magistrates Court of Australia seeking enforcement of Order 21 made on 17 August 2000.  That order had provided:

21. THAT the Husband do all acts and things and sign all necessary documents in order to transfer to the Wife the on or after … September 2010 when he turns 55 years of age at which time the [Super Fund D] benefits received by the Husband under the [relevant Act] will be converted to a lump sum and divided equally between the parties under the Commutation provisions. (errors as per original).

15.The husband opposed the wife’s application arguing that Order 21, of the consent orders made 17 August 2000, was unenforceable.  On 10 February 2011 FM Monahan agreed with the husband.  In paragraph 35 of his Honour’s Reasons he said:

35.Having considered paragraph 21 of the final orders in light of the evidence and submissions, the Court finds that the paragraph is not capable of sensible interpretation and, consequently, it is not capable of enforcement on its face.  That said, the Court is satisfied that the parties intended that, upon the husband’s retirement, the husband would cause his [Super Fund D] to be converted to a lump sum and that a lump sum would be divided equally between the parties.

16.The wife did not appeal the decision of Monahan FM.

17.In 2004 an entity associated with the husband acquired land in Indonesia.  The exact nature of the acquisition and entity that acquired the land is not clear from the evidence before me.  It seems that the present position is that there was a long term lease of land in Indonesia, the lessees being the husband and his present wife.  The husband says that it was their intention to transfer their interests into the Steele Super Fund but his accountant subsequently advised against that course.  The husband said, in his affidavit filed 3 April 2013, “I genuinely believe that I have at all times disclosed to the Wife the land which I formerly owned in Indonesia and is now owned by my wife [Ms H].  I have also fully disclosed the construction upon the property in Indonesia and the possibility of running a business from that property in the name of [Business I].”

18.On 14 July 2010 the husband withdrew $400,000 from his Colonial First State Superannuation interest and these funds were transferred initially into a Commonwealth Bank of Australia Indonesia account and then into the Commonwealth Bank of Australia Indonesia account of the Steele Super Fund.  The husband’s intention is to use those funds to develop a business on the land owned by his present wife.

The relevant law

19.For the wife to obtain an interim injunction she must establish a prima facie case for the final relief that she seeks and that the balance of convenience favours the grant of the injunction. 

20.In Australian Broadcasting Corporation v O’ Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] Gummow and Haine JJ said:

The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.

21.At [71] their Honours rejected the proposition that it would be a submission for the Plaintiff merely to establish a claim that was not frivolous or vexatious.  Referring to statements from members of the House of Lords to that effect their Honours said:

They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought.

22.The wife relies upon ss 79A(1)(a) and (b) for the final orders she seeks which are that the orders made on 17 August 2000 be set aside and new orders be made pursuant to section 79. These sections are reproduced below:

(1)  Where, on application by a person affected by an order made by a   court under section 79 in property settlement proceedings, the court is                  satisfied that:

(a)  there has been a miscarriage of justice by reason of fraud,   duress, suppression of evidence (including failure to disclose   relevant information), the giving of false evidence or any other   circumstance; or

 (b)  in the circumstances that have arisen since the order was   made it is impracticable for the order to be carried out or   impracticable for a part of the order to be carried out; or

…

the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under sub-section 79 in substitution for the order so set aside.

The wife must therefore establish a prima facie case of a miscarriage of justice arising from matters which enliven s 79A(1)(a) or (b).

Prima Facie Case

23.The wife relies upon three matters which, she asserts, demonstrate that the husband had greater net assets than he disclosed in his Financial Statement sworn on 2 August 2000 and on which she relied in consenting to the orders of 17 August 2000. She further argues that the Federal Magistrate’s finding that Order 21 was unenforceable is a circumstance enlivening s 79A(1)(d).

Failure to disclose

24.In his Financial Statement dated 2 August 2000 the husband described his total assets as being $2,400,000.  In paragraph 40 he listed assets of $2,000,000 which were described as “funds subject of a dispute”. 

25.The wife said she understood this to be a reference to the funds in Spain.

26.On 16 August 1999 the husband transferred US$1,525,374.91 from the B Pty Ltd account into an account in his name in a bank in Spain.   In October 1999 the wife returned from Spain.  She said in paragraph 68 of her affidavit sworn and filed 28 October 2011:

When I returned to Australia, the bank manager of the Commonwealth Bank advised me that the respondent unilaterally transferred all of the company funds being approximately $2,000,000 to an unknown Spanish bank account.  I did know that he had a Spanish bank account of such account.  Annexed hereto and marked “M” is a copy of the transaction.  The money were transferred prior to my departure from Spain.  (As per original).

27.It was agreed between counsel that the second sentence of that paragraph of the affidavit should be read as:

I did not know that he had a Spanish bank account of such amount

28.The wife says that the husband must have used previously undisclosed funds to purchase the Town G property.

29.The purchase of the Town G property could be explained by the use of funds transferred from this account.  It could have been purchased with unsecured borrowings or with a gift.  These are plausible possible explanations of the purchase of this property which are inconsistent with non-disclosure. There is no evidence that suggests that the husband had acquired an interest in that property as at 2 August 2000 or 17 August 2000.  Taking the evidence of the wife before me on the application at its highest I am not satisfied that the purchase of Town G demonstrates non-disclosure.

30.The second matter relied upon by the wife is that the husband over-stated his taxation liabilities. She asserts that he claimed them to be $2,000,000 whereas they were no more than US$800,000.

31.In that Financial Statement, under the heading “Other Liabilities” the husband inserted “Funds subject of a dispute” in the sum of $2,000,000.00.  That sum had been included as an asset but also described as disputed.

32.In the Application for Consent Orders he inserted as a liability “legal costs, Indonesian Government” with an amount owing of $2,000,000. 

33.At paragraph five of his affidavit sworn on 10 December 2012 the husband states:

I refer to the wife’s affidavit sworn 8 May 2012 and say that at no time did I ever allege that I owed $2,000,000.00 to the Indonesian Government in unpaid tax.  I admit that in July 1999 [AAAA] falsely alleged that [B Pty Ltd] owed US$800,000 to the Indonesian Government.  I further say that at that time [B Pty Ltd] claimed that [AAAA] owed to [B Pty Ltd] US$2,700,000.00.  In these proceedings I intend to allege that the wife was aware of all of the financial dealings between [B Pty Ltd] and [AAAA].  The wife was a shareholder and director of [B Pty Ltd].  The wife was the book keeper for [B Pty Ltd].

34.On the evidence as it presently stands I cannot reconcile the disclosures made by the husband of the liabilities made in 2000 with those he now asserts in his affidavit. 

35.In this regard there is evidence, which if accepted at trial, establishes that there was not full and complete disclosure of the husband’s liability to the Indonesian Government.

36.The Porsche motor vehicle did not appear in the husband’s Financial Statement.  Accepting that the RTA records show the husband had acquired the car it seems the car was not disclosed.  The evidence does not disclose whether it was subject to a charge, purchased on hire purchase or whether, for any other reason the husband did not have a full and unencumbered title to the car.

37.The next step is to consider whether or not there is a prima facie case of a miscarriage of justice flowing from the failure to disclose the Porsche motor vehicle and the apparently inconsistent statements of the tax liability. 

38.Had the car been included as an asset by the husband, it may have increased the total asset pool.  That would depend on its value and the extent of any encumbrance (if there was such).  Given the total amount of the assets to be divided it is not obvious whether its inclusion as an asset would have been likely to lead to a significantly different property alteration.  It is far from obvious what orders would now be properly made to take account of its omission, if it was wrongly omitted.  The delay of 13 years has reduced its significance.  Taking the wife’s evidence at its highest as it now stands, I am not satisfied that that the wife has established a prima facie case of miscarriage of justice flowing from any non-disclosure of the car.

39.I am satisfied that there is a prima facie case of a miscarriage of justice in relation to the tax liability.  It seems that the husband’s disclosure of his liabilities in Indonesia in 2000 was different from that disclosed in 2012. Absent any other evidence there is some force in the wife’s argument that the effect of the overstatement was to reduce the asset pool by a considerable margin.  The wife argues that, had she known that the debt was US$800,000 she would not have agreed to the consent orders.  Of course, this is a matter for evidence properly explored both in relation to the Indonesian liability and the wife’s position in 2000.

40.The husband submits that there was a disclosure of a disputed sum and that because the wife was legally represented that was sufficient disclosure.  It was further submitted on behalf of the husband that the wife was properly put on notice and it was up to her to investigate it further or not.  It was further submitted that she could have made her own enquiries if so advised.

41.This may be the case but it is a matter for the final hearing and not an interlocutory hearing where it is not appropriate to make determinations of fact.  To determine whether the wife has established a prima facie case, I take her case at its highest.

42.Accordingly, I am satisfied that the wife has established a prima facie case for relief under s 79A (1)(a).

The setting aside of Order 21 of 17 August 2000

43.The wife says that receiving one half of the husband’s superannuation entitlements when he turned fifty five was a significant factor in agreeing to the consent orders. 

44.She submits that the finding by the Federal Magistrate that the order in relation to the superannuation was not capable of enforcement is sufficient to enliven the phrase “any other circumstance” in s 79(1)(a) and to enliven s 79(1)(b).  This is because it is said that in the circumstances that have arisen since the order, that is the refusal of the Federal Magistrate to enforce Order 21, it is impracticable for the order to be carried out. 

45.In La Rocca and La Rocca (1991) FLC 92-222 Kay J, considering an application to set aside orders pursuant to s 79A(1)(b) of the Family Law Act at 78,538 commented that:

My own view is that the concept of impracticability, as referred to in this section, is akin to the application of the doctrine of frustration in contractual matters.  What the Parliament is concerned with and what ought to be concerning the Court is the happening of events which cannot be reasonably foreseen, which will have the effect of causing an injustice to one of the parties if the happening of such events is not given effect to.

1. His Honour continued:

   Now, in my view, what the appropriate application of s 79A(1)(b) ought to be is that circumstances that have arisen in which it becomes impracticable to carry out the orders are circumstances that could not reasonably have been contemplated and that in such circumstances, whilst impossibility is not the test and impracticability is, it may then become just and equitable to change the orders.

   The potential insolvency of one of the parties in the future is not such a matter, in my view. In every case before the Court property values may change, go up or down, business may flourish or not flourish, the vicissitudes of life may affect one of the parties.

   La Rocca was quoted with approval by the Full Court in Cawthorn v Cawthorn [1998] FamCA 37; (1998) 23 FamLR 86 and by the Full Court in Sanger & Sanger [2011] FamCAFC 210.

   47.If Order 21 was unenforceable because it was meaningless, as the Federal Magistrate found, it was meaningless and unenforceable from the day it was made.  Its unenforceability is not a circumstance that arose after the orders were made.  Similarly, the declaration that Order 21 was not enforceable is not such a circumstance as it merely reflects the nature of the order from the time it was made.

   48.Secondly, it was found to be unenforceable. This is quite different to circumstances arising which make the order impracticable to enforce. Its nature, as found by the Federal Magistrate, was something that could always have been foreseen, even though at the time it was not.

   49.Thirdly, no appeal was taken from this decision.  His Honour’s finding stands.  It is difficult to see how an impracticability arose.

   50.The wife also relies upon s79A (1)(a) in this regard. In particular, reliance is placed upon the words “or any other circumstance” referred to in that subsection. Whilst those words are not to be read as limited by the words that appear in front of them (In the marriage of Rhode (1984) 10 Fam LR 56; (1984) FLC 91-592) the words are not to be given unlimited meaning.

   51.Section 79A (1)(a) clearly refers to the integrity of the judicial process and the words “or any other circumstances” are to be read in that context. It is not to be read as giving a power at large to set aside property orders where there has been a miscarriage of justice by any other circumstance of any kind. In La Rocca, supra, Kay J described the ground of s 79A as being extremely narrow. He said of 79A (1)(a):

   The first one of miscarriage of justice relates to events at or before the trial.

   52.In Barker and Barker [2007] FamCA 133 the Full Court said:

   A miscarriage of justice under s 79A(1)(a) will occur if circumstances exist which “for some significant reason, make the order contrary to law and justice according to law as it relates to the integrity of the judicial process [original emphasis]”  ….. the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” should not be taken only to refer to the hearing in the court, the circumstances creating the miscarriage must nevertheless have been such as to have had an influence on the outcome of the litigation….

   53.There is therefore a clear contrast between s 79A(1)(a) which talks of events up to and involving the making of the orders and s 79A(1)(b) which then refers to circumstances which have occurred since the making of the orders.

   54.Section 79A(1)(a) does not assist the wife on this application.

   55.Taking the wife’s case at its highest I am not satisfied that the finding by Monahan FM that Order 21 was unenforceable establishes a prima facie case as asserted by the wife.

   Balance of convenience 

   56.The only readily available asset to the husband is his interest in the Town G property.  He ascribes a value of $875,000 to that property.  There is a mortgage of $200,000.  On 3 April 2013 the Commonwealth Bank informed the husband that it would be prepared to lend, for the purpose of him purchasing a business, $710,000 secured over the Town G property together with a further $540,000 secured over other property. 

   57.      In his financial statement of 5 November 2010 the husband had valued the            Town G property at $1.1 million.

   58.It seems that the husband has an equity of at least $675,000 in that property.

   59.I am satisfied that if I do not make an order there is a not insubstantial risk that the equity presently available to the husband in that property may be dissipated. 

   60.The husband said that it is his intention to purchase a business so that he may generate an income for himself and his new family.  He gives evidence of having made enquiries of a number of franchises including a restaurant and at least two coffee outlet franchises.  I also take into account that he has recently (as of 2010) transferred significant funds drawn on the superannuation fund to bank accounts in Indonesia where he intends to use these funds to develop a business.

   61.The husband says that he needs to acquire a business so that he may derive an income. He says his expenses significantly exceed his outgoings and he is forced to borrow to support himself and his new family. Whilst there is force in that argument I am of the view that if an injunction sought by the wife is not made, and the husband was to encumber the Town G property for the purpose of purchasing a business, developing the business in Indonesia or simply to spend, there would be no assets available to be dealt with by the court in the event the wife is successful in her claim under s 79A. The wife’s claim would thus be rendered entirely nugatory.

   Conclusion

   62.Weighing these factors together I am satisfied that the appropriate order to make is an order restraining the husband from increasing the amount secured over the Town G property beyond a certain level.  Having regard to the need of the husband to support himself and to pay legal bills that will necessarily be incurred in the further hearing of this case the appropriate order is to restrain the husband from doing any act or thing that will increase the indebtedness secured over the Town G property to exceed $350,000.  This will preserve a significant part of the asset whilst at the same time provide sufficient funds for the husbands expenses in the short term.

   63.This order will be conditional upon the wife filing a written undertaking as to damages within forty eight hours. 

   64.Either party has liberty to apply to my associate for an order for costs within twenty eight days.

   I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 3 June 2013.

   Associate: 

   Date: 28 May 2013