Stein v Stein

[1986] FamCA 27

In the marriage of STEIN, H.M. and STEIN, B.A.

(1986) FLC ¶91-779

Other publishers' citations: (1986) 11 FamLR 353

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 5 December 1986.

Before: Evatt C.J., Wood and Nygh JJ.

Evatt C.J. and Nygh J.: This is an appeal from a decision of Ellis J. delivered on 20 December 1985. The parties were married on 20 April 1963. The husband was born on 5 March 1943 and is now 43 years of age and the wife was born on 25 March 1946 and is now 40.

Four children were born of the marriage. The oldest, L, was born in 1963 and is now married, the second child, R, was born in 1965 and is self-supporting, although still living at home. The two younger children J, born on 11 December 1969 and D, born on 29 November 1971 are attending school and residing with the wife. The husband has voluntarily paid maintenance at the rate of $30 per week per child in respect of them.

The parties separated in October 1980. A decree nisi dissolving the marriage was pronounced on 23 April 1982. The wife and the children still living with her have, since the date of separation, continued to reside in the former matrimonial home at South Camden.

At the time of the marriage the parties were of very modest circumstances. The husband was employed as a service station attendant at the rate of $52 per week. The wife ceased her training as a nurse and worked as a sales assistant. They pooled their earnings towards household expenses. There were no substantial savings on either side.

The wife ceased employment when she was pregnant with the first child. The husband continued in employment in the motor car industry, steadily advancing in managerial responsibility until in 1971 he became the general manager of a firm of car dealers. In 1967 the parties bought their first house in Guildford in their joint names for $7,600. The parties raised $300 from their own savings: $300 was borrowed from the wife's mother and later repaid with interest. The balance of $7,000 was borrowed from the Commercial Banking Company.

As his Honour found, following the purchase of that house, the wife commenced working at weekends at a private hospital, working 12-hour shifts. The whole of the income so earned by her was utilised for family purposes. The wife worked at the hospital for approximately three months, ceasing at the husband's request. The husband cared for the children when the wife was working and he was not and utilised the whole of his income for family purposes.

In 1968 the wife recommenced work assisting a caterer. Her hours were flexible and she usually worked in the evenings or on weekends. She continued in that employment for about four months utilising her income for family purposes.

Between 1970 and 1980 the parties bought and sold a number of properties, until in 1980 the last matrimonial home was purchased in joint names for approximately $89,000, of which $60,000 was borrowed. In 1976 the husband went into business on his own account with a Mr Tomlin under the name of Camden Datsun Centre. The purchase price of the property and the business conducted thereon was $140,000, all of which was borrowed from the IAC Corporation. In addition, the husband put in $4,000 by way of capital Mr Tomlin put in $25,000. Subsequently, the husband put in a further $29,000 from the proceeds of sale of one of the jointly-owned properties of the parties.

That business, so far as the husband was concerned, was conducted in the name of Bayarin Pty. Ltd. as trustee for the Stein and Tomlin Family Trusts. The Tomlin interest was subsequently bought out for $65,000 and the business has since been conducted with Bayarin Pty. Ltd. continuing as the trustee under the directorship of the husband and his accountant.

His Honour found that the husband worked very hard to establish the business on both weekdays and at weekends. His Honour also found that the wife also worked part-time in the business for approximately three to four hours each day for two or three days each week. In addition she attended to her household duties. As regards the role of homemaker and parent, his Honour found that the major obligation in respect of that function was carried on by the wife.

In 1978 Bayarin Pty. Ltd. purchased, for $68,000, a block of land opposite the Camden Datsun Centre, the purchase price being provided in cash from the profits of the business. In 1980 a service station was bought by the same company for approximately $100,000. His Honour found that the wife worked at the service station for approximately four months on a full-time basis whilst the husband's involvement was minimal. The salary she received was applied for household expenses. She continued to care for the family at the same time. She ceased that work shortly after the husband left the former matrimonial home in October 1980. That business was subsequently sold for $170,000, after improvements at a cost of $40,000 had been made.

After separation the husband paid the wife initially $125 per week. That sum was reduced in October 1981 to $75 per week and in March 1982 further reduced to $60 per week which she has received since then. In addition the husband has paid all outgoings on the former matrimonial home except telephone and electricity accounts. In 1982 the husband discharged the balance of the mortgage on the former matrimonial home which, as a result, is now unencumbered.

In 1985 the wife qualified as a state registered nurse and commenced employment at Campbelltown Hospital. His Honour found that this employment was secure and that she clearly had the capacity to continue therein. His Honour also found that the wife had for several years enjoyed a close association with another man. However, he found that that person did not provide any financial support for her and there were no marriage plans. The wife had no assets worth speaking of apart from her half share in the former matrimonial home and had debts of approximately $25,000.

The husband is living in a property at Camden which was purchased in early 1985 in the name of a Miss H, with whom he had a relationship. The property was purchased for $117,000. Of this sum, Miss H contributed $10,000, Mr Stein put in $47,000 borrowed from the Stein Family Trust and debited to his loan account and the balance was borrowed. The relationship ceased in October 1985 and the husband is now living by himself in the property paying the instalments on the mortgage. There are proceedings pending between him and Miss H concerning the equitable title to the property which is as yet unresolved.

The wife, in her application, sought orders for the transfer to her absolutely and unencumbered of the property at South Camden and in addition the payment of the sum of $150,000 by way of property settlement. His Honour was informed at the beginning of the hearing that the wife no longer sought an order for periodic or lump sum spousal maintenance.

The husband, in the orders which he sought, did not contest the wife's application for the transfer of his interest in the former matrimonial home and proposed further that she be granted the sole ownership of the furniture and contents of the former matrimonial home as well as the ownership of a Datsun 200B motor vehicle presently in her possession. He opposed any orders for the payment of a lump sum.

His Honour found that the former matrimonial home had a value of $105,500 and was unencumbered. He was unable to determine the value of its contents. There were no other assets standing directly in the husband's name and he had an indebtedness for legal costs of some $24,000.

He was a member of the Bayarin Staff Superannuation Fund No. 2, a fund which it was not disputed was under the control of the husband and his accountant.

After considering the contributions made by the parties and in particular the greater financial resources of the husband on the one hand and the fact that the wife had the care and control of the two younger children of the marriage, his Honour concluded that he should in addition to the orders for the transfer of the former matrimonial home, its contents and the motor car to which the husband raised no objection, order the husband to pay to the wife by way of property settlement the sum of $25,000.

From this decision the wife has appealed and the husband has cross-appealed. The wife in her appeal argued:

(a) that his Honour was in error in giving an approximate value of the assets of the Family Trust after he stated that he was unable to determine the value thereof; and
(b) that in any event, on the evidence before me a substantially higher value was appropriate and that the wife in the light of her contribution and needs was entitled to a larger share.

The husband in his cross-appeal argued that his Honour lacked jurisdiction to make any order for the adjustment of property which did not belong to the husband. It was pointed out that by the orders for the transfer of the matrimonial home and its contents from which the husband did not appeal, all the assets of the parties had been transferred to the wife. Following the decision of the Full Court in Monte and Monte (1986) FLC ¶91-757 so it was argued, it was not open to his Honour to order, at least by way of property settlement, an adjustment of property which could only be met out of the assets of the trust which might be the financial resources, but were not the property of, the husband.

If the husband's argument is correct, the question of the findings, or lack thereof, as to the value of the Stein Family Trust becomes irrelevant. It is therefore desirable to deal with the husband's cross-appeal first.

For the husband in this case strong reliance was placed on the following passages which appear in the joint judgment of Simpson, Murray and Frederico JJ. at p. 75,540 of Monte and Monte:

``It was conceded that instead of altering the interests of the parties in their property the Court was entitled to award a lump sum by way of settlement of property. It was also conceded on behalf of the husband that the financial resources of a party — in contrast to the property of that party — may justify the awarding of the whole of the property of the parties to the other party. However it was argued that the upper limit of what can be ordered by reason of the financial resources of one party is an award to the other party of the whole of the ascertained property of the parties.

It must be emphasised that in this matter there was no claim for maintenance by the wife nor did she assert any entitlement thereto. It was conceded on behalf of the husband that if there had been such a claim or entitlement on the part of the wife then the Court's powers would not be restricted to altering property interests to the limited extent asserted on behalf of the husband.

We agree that the power of the Court under sec. 79 is limited in the manner submitted by counsel for the husband.''

In this case, as in Monte, there was no claim for maintenance before the Court and no application had been made in pursuance of sec. 85A in respect of the Trust.

The proposition which appears from the passage cited is self-evident. Section 79 speaks of an alteration in the property of the parties and this Court has no jurisdiction to alter interests which do not belong to either party.

However, the issue may well arise what is meant by ``property'' of the husband in this context. In Monte the learned trial Judge had found it ``impossible to determine what the husband's assets and financial resources really are and where they are''. This is not the situation in the present case. His Honour had difficulty in determining the value of the assets of the Trust but their identity and location are clearly established.

It is argued that the assets of the Trust are not the property of the husband. Certainly the title is vested in Bayarin Pty. Ltd. and Mr Stein is, under the terms of the Deed, only a beneficiary at the discretion of the Trustee. However, that ignores the realities of the situation. As Mr Stein himself explained in his affidavit of 29 July 1982:

``Bayarin Pty. Ltd. was a trustee under a unit trust for the Tomlin Family Trust and the Stein Family Trust and I bought the units of the Tomlin Family Trust in that unit Trust.''

This is a reference to the Stein-Tomlin settlement created in 1976 by the deed whereby originally Bayarin Pty. Ltd. held the trust fund in trust in two portions, a portion named the X portion of two-thirds which was identified with the Stein family, and a Y portion of one-third identified with the Tomlin family. The transaction described by Mr Stein in the passage cited above indicates quite clearly that thereafter he considered himself to be the effective owner of the business operated by the Trust. Indeed, the transactions to which his Honour referred to in his judgment, most notably the advance of $47,000 from the funds of the business for the purpose of buying a property in the name of Miss H, indicates the degree of control the husband exercises through the trustee company of which he and his accountant are the sole directors.

It is not open to a party to assert on the one hand that the assets acquired in a family trust are not his and at the same time deal with them as if they are. There is no doubt that for general purposes Mr Barry Stein considers the business known as Barry Stein Nissan to be his, whatever arrangement he may have made for taxation purposes. It is a regrettable fact that frequently spouses, usually husbands, come to this Court asserting on the one hand that assets placed in the wife's name do not really belong to her but to the husband, having been placed there for taxation purposes, and asserting at the same time that assets standing in the name of a third party, such as a trustee, do not really belong to the husband.

Fortunately the law does not compel us to adopt such an artificial view. I refer to the views of Gibbs J., as he then was, in Ascot Investments Pty. Ltd. v. Harper and Harper (1981) FLC ¶91-000 at p. 76,061; (1981) 6 Fam. L.R. 591 at p. 602.

``The position is, I think, different if the alleged rights, powers or privileges of the third party are only a sham and have been brought into being, in appearance rather than reality, as device to assist one party to evade his or her obligations under the Act. Sham transactions may always be disregarded. Similarly, if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.

Except in the case of shams, and companies that are mere puppets of a party to the marriage, the Family Court must take the property of a party to the marriage as it finds it.''

In our view, the company Bayarin Pty. Ltd. is a mere puppet of the husband. So far as the Trust is concerned, the husband has, since the interests of the Tomlin family were bought out the power to apply the income and property of the trust for his own benefit. As Strauss J. said in Ashton and Ashton (1986) FLC ¶91-777 Ellis and Emery JJ. concurring, at p. 75,653:

``The powers which the husband has in the Ashton Family Settlement give him control of the trust either as trustee or through a trustee which is his creature, and at the same time he is able to apply all the income and property of the trust for his own benefit. In my opinion, in a family situation such as the one here, this Court is not bound by formalities designed to obtain advantages and protection for the husband who stands in reality in the position of the owner. He has de facto legal and beneficial ownership.''

In those circumstances the learned trial Judge had jurisdiction to make an order which required the husband to pay an additional sum out of the assets of the Trust through the exercise of his control over the trustee company. The cross-appeal cannot succeed.

It now becomes necessary to consider the wife's appeal. This relates primarily to the value of the assets of the Trust. For the wife a report was prepared by accountants who valued the assets under Mr Stein's control as follows:

$                  
    Net assets of Stein Family Trust      311,304               
    Less unsecured loan (R. Lee)  
     subject to recovery proceedings      10,000               
  -------               
  301,304               
    Net assets of Bayarin Staff  
     Super-annuation Fund No. 2          195,691               
    Net assets of Bayarin Pty. Ltd.        38,943               
  -------               
  535,938               
    Value of unrecouped income tax  
    losses  
          -  $131,042 @ 60%               78,625               
  --------               
  $614,563               
  --------               

The figure of $311,304 was based on the 1984 balance sheet of the Stein Family Trust which was in evidence before his Honour. That figure was based on a director's valuation of the freehold land and buildings of $570,000 made in 1980. His Honour accepted the evidence of a Mr Hoskin that the land and improvements had in fact a value of $400,000. It was not argued that his Honour had erred in accepting this valuation. If the balance sheet figures are adjusted accordingly, the net assets of the trust are reduced to $141,304. It was argued for the husband that this figure should be further reduced by $79,402 representing the husband's loan account which ostensibly he had no means to repay. His Honour said of this argument:

``I accept also that the loan to the husband of $79,402 must be taken into account, but it does seem to me on the evidence he has the capacity to borrow that sum from a variety of sources. Such a borrowing would, however, affect his overall financial position and that borrowing would have to be taken into account to ensure that there is not double accounting.''

Although the statement is not altogether clear, it would appear that his Honour was of the view that this sum should not be deducted. In addition there was evidence of a further loan to the husband of $47,000 in the financial year 1984/85. As complete records for that year were not produced, it is better to ignore this additional debt especially since that amount is invested in the property standing in the name of Miss H which is the subject of litigation but would appear to be subject to a resulting trust to the husband at least for the amount of money which he put into it.

The Bayarin Staff Superannuation Fund No. 2 is by all accounts under the control of the husband since he and his accountant are the trustees. His own immediate retirement benefit under the terms of that scheme was conceded to be minimal, namely $500 less a tax liability of $150. According to the 1984 balance sheet the Fund consisted of some $196,000 of which $175,000 was re-invested in the family company and $20,000 invested elsewhere. The sum of $175,000 is shown as a current liability in the balance sheet of the Stein Family Trust. On the basis of that balance sheet, it is covered at least in part by the current assets of the company. His Honour came to the following conclusion:

``I accept that, with the co-operation of [his accountant] the husband could, after dismissing the other members of the Fund from their employment, acquire via the Fund $36,000 but I do not consider that such an action would be commercially responsible or viable; indeed I regard it as highly improbable on the evidence that he would take that step. However, that Fund clearly represents a financial resource of the husband as does the availability of credit to him from the structure of the business, and those are matters which I take into account in arriving at my decision. I do not accept the evidence of Mr Bolton that the husband could receive from the Fund $195,691.''

His Honour there referred to evidence given by the husband's accountant to the effect that should the husband procure the premature termination of the superannuation fund, taxation at the top marginal rates would be payable both on the amount in the fund and on any residue received by the husband. That was a conclusion his Honour was entitled to reach on the evidence before him.

His Honour also did not add the discounted value of the un-recouped income tax losses of $78,625. That was the value which the wife's accountant put on it. However, the accountant for the husband put it at more like $43,000. His Honour did not consider that the un-recouped value of the income tax losses should be included in the net assets, finding instead that ``a sum should be taken into account in relation to that resource of the trust''.

His Honour did not refer to the item of $38,943 described as ``assets represented by loans from members of the Stein family''. In so far as those moneys are likely to remain at the disposal of the husband, they may be a financial resource, but they cannot be regarded as his assets even upon the lifting of the corporate veil.

It appears therefore that the assets and financial resources of the husband and the Trust with which his Honour was dealing were as follows:

The matrimonial home       $105,500
     The Stein Family Trust      141,304
     Superannuation (resource)     36,000
     Tax losses (resource)        43,000
  --------
         Total:                 $325,804
  --------

The amount awarded to the wife had a total value of $130,000 which is equal to 40% of the assets and resources referred to above. If this is a correct summation of the husband's assets and resources, it could not be said in the circumstances of this case that such a division was so much out of the normal range as to invite the intervention of the Full Court: see the remarks of Stephen J. in Gronow v. Gronow (1979) FLC ¶90-716 at pp. 78,848-78,849; (1979) 144 C.L.R. 513 at pp. 519-520.

For the appellant wife it was argued that his Honour had not correctly assessed the value of the husband's business. His Honour said:

``After reviewing the whole of the evidence, I find that I am unable to determine the value of the assets of the trust. The value is certainly more than the $62,304 submitted by Mr Coleman, and less than the $500,000 submitted by Mr Hilbery. Doing the best I can, in my view, the value is not less than $200,000. I am satisfied that a reasonably prudent buyer would be prepared to offer at least that sum to induce the trust, assuming it were a bona fide seller to purchase the business. My difficulty has been compounded by what I regard as the husband's failure to properly assist the Court in determining his assets, resources, income and liabilities.''

It is this conclusion which drew the attack of the appellant. For the wife it was argued that the husband was under an obligation to make full and frank disclosure of all material facts relating to his financial situation. That such an obligation exists is undoubted and was most recently reasserted by the Full Court in Oriolo and Oriolo (1985) FLC ¶91-653; (1985) 10 Fam. L.R. 665 in relation to the power of this Court to award costs.

However, counsel for the appellant sought to take the principle a step further. Relying on the decision of the House of Lords in Livesey v. Jenkins (1985) 2 W.L.R. 47, he argued that in the absence of such disclosure his Honour should have refrained from making orders unless and until the husband had been compelled to make adequate disclosure.

In Livesey v. Jenkins Lord Brandon said, referring to the provisions of sec. 25(1) of the Matrimonial Causes Act 1973 (Eng.) at p. 57:

``... unless a court is provided with correct, complete and up-to-date information on the matters to which, under s. 25(1), it is required to have regard, it cannot lawfully or properly exercise its discretion in the manner ordained by that sub-section.''

Section 25(1) of the English Act states, in so far as it is relevant that

``it shall be the duty of the court... to have regard to all the circumstances of the case including the following matters, that is to say —

(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has...''

In our view this does not differ in any material respect from the provisions of sec. 79(4) and Livesey v. Jenkins was followed by Smithers J. in Briese and Briese (1986) FLC ¶91-713 at p. 75,182; (1985) 10 Fam. L.R. 642 at pp. 662, 663.

The decision of the House of Lords concerned an order made by consent whereby the wife was to have transferred to her the husband's interest in the former matrimonial home with the intention to provide a home for herself and the children. Before the consent orders were made by the Registrar, the wife became engaged to remarry. The husband, who had not been advised of the wife's engagement and subsequent remarriage until later, appealed from the consent orders. The House allowed the appeal, set aside the consent orders and remitted the matter to the High Court for rehearing.

When the remarks of his Lordship are read in that context they support the obvious proposition embodied in our legislation in sec. 79A(1)(a) that an order obtained upon the suppression of, or failure to disclose relevant financial evidence is liable to be set aside whether a consent order or otherwise. It was recognised by the Full Court in Green and Kwiatek (1982) FLC ¶91-259 at p. 77,457; (1982) 8 Fam. L.R. 419 at p. 422, that there is under the Act and the Rules a statutory obligation to disclose all assets and income. Failure to make such a disclosure may amount to either a misrepresentation or a suppression of evidence.

In view of the extensive provisions in the Australian legislation for the setting aside of orders under sec. 79A, it would not be appropriate to apply his Lordship's remarks, if that was indeed his intention, so as to transfer the task of establishing relevant financial factors from the parties to the trial Judge. This would be a serious change from the adversary system which applies to this Court as the High Court pointed out in Inre Watson:Ex parte Armstrong (1976) FLC ¶90-059; (1976) 136 C.L.R. 248.

Failure to disclose information may lead the Court to draw adverse inferences against the person who does not discharge the obligation to disclose the information, if there is material on which such an inference can be based. But we would be reluctant to find that a Judge who exercised discretion on the basis of material put to him by the parties had erred by not insisting on the production of additional financial information when neither party had sought such information.

The manner in which the parties proceeded before his Honour was on the basis of the 1984 balance sheet. It is true, as Mason J. pointed out in Mallet v. Mallet (1984) FLC ¶91-507 at p. 79,121; (1984) 9 Fam. L.R. 449 at p. 464.

``... a valuation based on earning capacity is generally most appropriate because the hypothetical purchaser of shares in a company which is a going concern is looking, not to a winding up, but to the profits which will ensue from the company continuing to trade.''

However, no such valuation was placed before his Honour by either the husband or the wife. His Honour had to do the best he could on the basis on which the case was presented to him: see Nolan and Ingram (1984) FLC ¶91-585; (1984) 9 Fam. L.R. 808. Having regard to the fact that the business assets and resources as listed above total $210,000, the determination by his Honour of the value of the husband's business assets as being not less than $200,000 cannot be described as so arbitrary that it cannot be allowed to stand.

For those reasons we are of the view that both the appeal and the cross-appeal should be dismissed.

Wood J.: I had the advantage of reading the proposed reasons for judgment of Nygh J. and the Chief Judge in this matter after I had written what follows below. With respect, I agree with the reasons his Honour has given for dismissing the appeal and cross-appeal and I agree with his review of the evidence before the learned trial Judge. I respectfully agree with his Honour's comments on the applicability of the decision in Livesey v. Jenkins (1985) 2 W.L.R. 47 to this case.

If the principles in Livesey v. Jenkins (supra) are applicable here, it may well be that with hindsight, the order that the husband pay the wife the further sum of $25,000 by way of property settlement should not have been made in view of the fact that the learned trial Judge said that he was unable to determine the value of the assets of the Trust. But the wife did not so submit at the trial — it was left by her to his Honour to do the best he could with the evidence placed before him. The wife had had two accountants scrutinise the books of the Trust and make appraisals, and it was not contended that there had been any suppression of evidence by the husband in relation to the material available to the accountants. In my opinion, it is now too late for either party to complain of the learned trial Judge's findings in relation to the value of the Trust to the husband. I would, with respect, apply the principle briefly expressed by the Full Court in Nolan and Ingram (1984) FLC ¶91-585 at p. 79,725; (1984) 9 Fam. L.R. 808 at p. 824 to the effect that, having argued the case before the trial Judge on this issue in the particular way in which it was argued, his findings cannot now be challenged on the basis of the decision of the House of Lords in Livesey v. Jenkins. Not infrequently in property applications where valuations are in issue, parties place before the Court imperfect evidence or evidence of less strength and precision than a trial Judge would like, but if that is how the case is framed and argued, the Judge can only do the best he can with it. If a party raises the matter of the inadequacy of the evidence and submits that no order should be made until better evidence is produced so as to enable the Judge to make findings as to the value of any given aspect of the property in dispute, the principles expressed in Livesey v. Jenkins may well be invoked on appeal if the trial Judge does not accede to the submission. I would not, however, elevate the principle in Livesey v. Jenkins into a general rule, because to do so seems to me to transfer the onus of proof of facts from the parties to the Judge. It would almost surely lead to a proliferation of appeals, the purpose of which would be to secure a retrial on some or all of the issues previously litigated in the manner in which the parties chose to have them litigated, but later repented.

In this case, however, I do not think that the principle in Livesey v. Jenkins would have been applicable in any event. It does not seem to me on my reading of the learned trial Judge's reasons that he was expressing himself baldly as unable to determine the value of the assets of the Trust (although he used those words) but rather that, on the evidence before him, he was unable to make a positive finding supported in toto by the evidence, and consequently had to do the best he could. His Honour reviewed the evidence of the husband and his witnesses in relation to the assets of the Trust, and rejected the proposition that he should find that they were as little as $62,304. He also rejected the submission of counsel for the wife that he should find the value to be $500,000, his Honour stating that he was unable to determine how counsel arrived at that figure. In effect then, when his Honour said — ``After reviewing the whole of the evidence, I find that I am unable to determine the value of the assets of the Trust. The value is certainly more than $62,304 submitted by Mr Coleman and less than the $500,000 submitted by Mr Hilbery'', his Honour was, in my view, saying no more than that, faced with such a disparity of values and conflict of evidence, he was unable to make a positive finding totally supported by the evidence of either party.

In expressing the view that the value was not less than $200,000, his Honour said that he was satisfied that a reasonably prudent buyer would be prepared to offer at least that sum to induce the Trust, assuming it were a bona fide seller to purchase the business. That, with respect, is one test proper to invoke as the basis for the finding he had to make. The fact that his Honour had good reason to complain that his difficulty had been compounded by what he regarded as the husband's failure properly to assist the Court in determining his assets, resources, income and liabilities, does not, in my opinion, in the absence of an application by the wife that he refrain from making findings having regard to the state of the evidence before him, place upon the learned trial Judge the obilgation not to make such findings and to require further evidence to be adduced. It seems to me that his Honour was dealing with a common enough situation in cases of this kind, albeit that such situations are unsatisfactory both to the litigants and to the Judge, but if parties choose to present their cases in a particular way and lead a Judge to believe that they want a decision on the facts which they have placed before him, then the matter should rest there, and an appellate court should apply the appropriate principles when reviewing the exercise of a judicial discretion, or findings of fact or the application of the law. In applying those principles to this case, I see no sustainable cause for complaint against the findings and orders of the learned trial Judge.

In my opinion, the appeal and the cross-appeal should both be dismissed.