Stopford Malloy & Malloy (No 3)

[2016] FamCA 931

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY (NO 3) [2016] FamCA 931

FAMILY LAW – DISCLOSURE – Where the husband consented to orders for discovery – Where the husband then provided discovery within a List of Documents – Where the wife alleged the discovery within that List of Documents was incomplete – Discussion of r 13.04 and r 13.07 of the Family Law rules 2004 (Cth) – Where orders made for further discovery – Order that wife be granted leave to issue subpoena

FAMILY LAW – COSTS – Where the wife’s application was necessary due to the husband’s non-compliance with prior discovery order – Where the application could have been dealt with, at least in part, by consent orders but for the husband’s prolonged opposition – Where husband asserts he is without funds – Where the husband has funded the costs of counsel and multiple affidavits – Where counsel conceded the husband could not resist a costs order –  Ordered the husband pay the wife’s costs on a party/party basis

Family Law Act 1975 (Cth), s 117

Telecommunications Act 1977 (Cth)
Trustee Act 1936 (SA)

Family Law Rules 2004 (Cth) rr 13.04, 13.07

Trustee Regulations 2011 (SA)

Mandie v Memart Nominees Pty Ltd (2014) 42 VR 325
Masoud v Masoud (2016) FLC 93-689
Rouse & Ors v IOOF Trustees (1999) 73 SASR 484

APPLICANT: Ms Stopford Malloy

RESPONDENT: Mr Malloy

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 2595 of 2015

DATE DELIVERED: 21 October 2016

PLACE DELIVERED: Adelaide/Newcastle

PLACE HEARD: Adelaide/Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 21 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wells QC

SOLICITOR FOR THE APPLICANT: Piper Alderman

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Howe Jenkin

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tinning

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

BY CONSENT, IT IS ORDERED THAT

1.The parties’ applications for final parenting orders pursuant to Part VII of the Family Law Act, are adjourned to 9:00 am Adelaide time (9:30 EST)  on Monday, 19 June 2017, for further procedural directions in the Adelaide Registry of the Family Court of Australia (via video link with Justice Austin in the Newcastle Registry of the Family Court of Australia).

2.The parties and Independent Children’s Lawyer shall instruct the single expert witness Ms F, to prepare and furnish to the court by Friday, 9 June 2017, at latest, a comprehensive report concerning the child C, born … 2014, touching upon those matters of relevance to the care, welfare, and development of the child.

3.In order to facilitate preparation of the report referred to in the preceding order:

a.Each party must attend upon the single expert witness for such interviews and observation sessions at such times and places nominated by the single expert;

b.Each party must ensure the attendance of the child at such interviews and observation sessions at such times and places nominated by the single expert; and

c.The single expert is granted leave to inspect the Court file and all documents produced on subpoena.

PENDING FURTHER ORDER, IT IS FURTHER ORDERED THAT

4.The following applications for interim relief are listed for hearing at 9:00 am Adelaide time (9:30 am EST) on Friday, 9 December 2016, in the Adelaide Registry of the Family Court of Australia (via video link with Justice Austin in the Newcastle Registry of the Family Court of Australia).

a.The Application in a Case filed by the wife on 10 June 2016; and

b.The Response to an Application in a Case filed by the husband on 14 October 2016.

5.The husband shall within 28 days hereof:

a.Produce for inspection and copying such of the documents specified in paragraphs 1.3, 1.6, 1.11, 1.12 and 1.17 of Schedule 1 to these Orders as are in his possession or under his control; and

b.Otherwise file and serve an affidavit swearing or affirming as to each document or class of documents appearing in paragraphs 1.3, 1.6, 1.11, 1.12 and 1.17  of Schedule 1 to these Orders:

i.That it does not exist or it never existed, or it ceased to exist or which of these, and when that occurred, and in what circumstances; or

ii.That it passed out of the possession or control of the husband and, in that respect:

A.When he last had that document in his possession or under his control and the circumstances in which the document ceased to be in his possession or under his control;

B.That he has taken all available steps to ascertain its whereabouts, giving full details of the steps taken; and

C.Stating the present whereabouts of the document.

6.Leave is granted to the wife to issue a subpoena to DD Pty Ltd to produce to the Court documents of the description set out in paragraphs 1.9 and 1.10 of Schedule 1 hereto.

7.Otherwise, save as to costs:

a.The Application in a Case filed by the wife on 20 July 2016 is dismissed; and

b.The Response to an Application in a Case filed by the husband on 25 August 2016 is dismissed.

8.The husband shall pay the wife’s costs of and incidental to the determination of the wife’s Application in a Case filed on 20 July 2016 and the husband’s Response to an Application in a Case filed on 25 August 2016, on a party/party basis in the sum agreed or assessed, for which purpose Senior Counsel and Counsel are certified pursuant to Rule 19.50 of the Family Law Rules.

9.Save in respect of the interlocutory applications set out hereunder (Judgment in respect of which is reserved to the Chief Justice since 14 October 2016), any and all other outstanding applications for interim relief are dismissed:

a.The Application in a Case filed by the husband on 4 October 2016;

b.The Application in a Case filed by the Third Respondent on 11 October 2016; and

c.The Response to an Application in a Case filed by the wife on 14 October 2016.

NOTATIONS

A.Pending an application otherwise, Rule 15.47 of the Family Law Rules applies in respect of the costs of the single expert witness.

B.The parties’ respective applications for final orders pursuant to Part VIII of the Family Law Act remain listed before Registrar Paxton in the Adelaide Registry of the Family Court of Australia on 8 November 2016, for further procedural directions.

SCHEDULE 1

1.3 Any guarantee provided by the Husband to any financial institution as referred in paragraph [17] of the Husband’s affidavit filed 4 August 2015;

1.6 All documents relating to the takeover of AA Group by the Malloy Group referred to at paragraphs [12] and [21] of the Husband’s affidavit filed 4 August 2015, including:

1.6.1         All accounting records;

1.6.2 Records of advice provided from or received by accountants with whom the Husband then dealt;

1.6.3 All correspondence provided to or received from any banker or financial institution;

1.9      Trust deed of The Malloy Family Trust and

1.9.1 Financial statements for The Malloy Family Trust from 30 June 2010 to present;

1.9.2 Records of when those statements were prepared;

1.10    DD Pty Ltd:

1.10.1 Financial statements for DD Pty Ltd 30 June 2010 to present

1.10.2 Records of when those statements were prepared;

1.11 All documents relating to the financial settlement between the Husband and Ms L including documents disclosed to the solicitors acting for Ms L and any documents received by or on behalf of the Husband from the solicitors for Ms L;

1.12 All documents relating to the acquisition of Property LL and BB Development referred to at paragraphs [6] and [7] of the Husband’s affidavit filed 4 August 2015 including:

1.12.1 Accounting records relating to each of the said Property LL and BB Development from 30 June 2010 to present;

1.12.2 Documentation of the advice received by accountants from 2010 to present;

1.13 Records of any donation made to any political party by the Husband or with the Husband’s knowledge since 30 June 2010 to present;

1.14 All documents relating to the disposal of the Husband’s Italian motor vehicle referred to at paragraph [23.36] of the affidavit of the Husband filed and sworn 4 August 2015 and

1.17 Telephone accounts for mobile telephone number … utilised by the Husband.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stopford Malloy & Malloy 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 ADELAIDE/NEWCASTLE

FILE NUMBER: ADC 2595 of 2015

Ms Stopford Malloy

Applicant

And

Mr Malloy

Respondent

And

Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1.These reasons deal with yet another chapter in the vitriolic dispute between the parties over the resolution of their matrimonial affairs under Part VIII of the Family Law Act 1975 (Cth) (“the Act”).

2.The two interlocutory applications under consideration are the wife's Application in a Case filed on 20 July 2016 and the husband's Response to the Application in a Case filed on 25 August 2016. They relate to a dispute over the husband's provision of discovery. 

3.On 19 October 2015, the parties agreed to an order in the following terms, which was then made by Dawe J: 

Within twenty-one [21] days the husband do give discovery on oath including but not limited to those documents referred to in the Application in a Case filed 28 September 2015. 

4.Pursuant to that obligation, the husband filed and served a verified List of Documents on 18 April 2016. Self-evidently, that document was filed and served quite late, but I am informed by counsel that between the time of the making of the Order in October 2015 and the filing of the List of Documents in April 2016, the parties unsuccessfully attempted to reconcile their relationship. 

5.In any event, the wife alleged the husband's discovery within his List of Documents was incomplete. Consequently, more correspondence transpired between the parties' solicitors, with which the wife remained dissatisfied. 

6.The wife filed her application on 20 July 2016, which was the application listed for hearing before me today (being 21 October 2016). In the meantime, the husband filed and served affidavits on 25 August and 14 October 2016, incrementally expanding the ambit of his discovery, but the wife was still dissatisfied with the completeness of his disclosure. The husband filed his Response to the Application in a Case on 25 August 2016 seeking dismissal of the wife's application. Clearly, he thinks he has now done enough.

7.I agree with the wife he has not and must do more, though not quite as much as the wife contended. 

APPLICATIONS AND EVIDENCE

8.In lieu of the orders set out within her Application in a Case filed on 20 July 2016, the wife pressed for the orders set out in the minute of orders she emailed to my chambers earlier this morning (a copy of which was also given to the husband), the format of which was amended during oral argument. 

9.The husband, by his Response to the Application in a Case filed on 25 August 2016, simply sought dismissal of the wife's application with costs. 

10.The wife relied on her affidavit filed on 20 July 2016 to prosecute her application. In rebuttal, the husband relied upon his affidavits filed on 25 August 2016 and 14 October 2016. 

11.References were made by both parties to the husband's verified List of Documents filed on 18 April 2016, but that document was not formally in evidence before me. 

12.The wife's complaint about the insufficient discovery devolved to documents related to certain specific facts and circumstances, which I intend to address individually and sequentially. Before doing so, it is necessary to advert briefly to the obligations of financial disclosure imported by the Family Law Rules 2004 (Cth) (“the Rules”).

DISCOVERY

13.Rule 13.07 provides that the duty of disclosure applies to each document that is or has been in the possession, or under the control, of the party disclosing the document, provided the document is relevant to an issue in the case.

14.By consenting to the discovery order made in October 2015, the husband acknowledged and agreed that the documents and classes of documents specified in that order (which incorporated, by its terms, the contents of the Application in a Case filed on 28 September 2015) were then in his possession or under his control and were relevant to an issue in this case. 

15.Rule 13.04 imports the duty of full and frank disclosure by parties in respect of any vested or contingent interest in property, including any trust of which a party or a spouse of the party is an eligible beneficiary as to capital or income, including a trust of which a corporation is an eligible beneficiary as to capital or income, if the party or spouse is a shareholder or director of the corporation. 

16.I accept the following propositions, as submitted by the wife:

(a)a party may be at disadvantage through lack of access to financial and like information in the hands of the other party and, consequently, may need to investigate the financial circumstances of that party;

(b)she is entitled to seek information from the husband to enable her to investigate his financial circumstances and to develop views and hypotheses as to how his financial position might be understood; and

(c)she is not bound by assertions or contentions made by others on behalf of the husband or by third parties (such as the husband's father) about the questions of control, ownership or purposes of the nebulous network of corporations known as the “Malloy Group”.

17.I therefore turn, in that context, to consider the specific proposals made by the wife. 

GUARANTEES

18.At paragraph 2.4 of the List of Documents filed by the husband in April 2016, he referred to only one guarantee, it being one associated with the Malloy Group. In oral submissions today, the husband's counsel conceded the disclosure of that single guarantee was deficient. That fact was self-evident in any event, given that at paragraph 6 of the husband’s affidavit filed on 25 August 2016 he referred to another guarantee given to the NAB. 

19.The husband deposed he no longer has in his possession a copy of the NAB guarantee and he has requested a copy of it from the bank. The husband's counsel asserted the same guarantee was the subject of reference at paragraph 17 of an affidavit the husband filed over a year ago on 4 August 2015. 

20.Senior counsel for the wife confirmed that the husband’s evidence (in his List of Documents in April 2016 and his affidavit of August 2016) still omitted any reference to another guarantee referred to by the husband in paragraph 12 of his affidavit filed on 4 August 2015 and also various guarantees referred to in documents compiled in 2012/2013 in connection with the settlement of matrimonial proceedings between the husband and his former partner, Ms L. 

21.I am satisfied, on the basis of the evidence to which I have been taken and the submissions which have been made, that the husband’s disclosure thus far in respect of guarantees to which he has been or is a party has been insufficient and I therefore intend to make an order as proposed by the wife insofar as it pertains to guarantees. 

AA GROUP 

22.The husband was formerly involved in a group of companies known colloquially as the "AA Group".  He was apparently in a position of control of the companies within that group. 

23.The AA Group acquired property interests in 2002 and, more recently, divested those property interests to the group of companies known colloquially as the "Malloy Group". 

24.The wife seeks discovery of documents related to the earlier acquisition of those property interests by the AA Group; not just its later divestiture of those property interests to the Malloy Group. 

25.First, as to the divestiture of interests, the husband deposed at paragraph 7 of his affidavit filed on 25 August 2016 as follows: 

All documents that are or have been in my possession, custody or control in relation to the change in control of [various properties] are set out in the letter from my solicitors to [the wife's then lawyer] dated 9 October 2015, a copy of which is annexed hereto and marked C and my affidavit of documents. 

26.However, the discovery order made between the parties in October 2015 obliged the husband to give discovery of "all documents relating to the takeover of AA Group by the Malloy Group, referred to at paragraphs 12 and 21 of the husband's affidavit filed on 4 August 2015, including [accounting records and other records and correspondence]”. The wife's assertion was not challenged, but in the schedule to the husband's List of Documents filed on 18 April 2016 there was no reference to any such accounting records or other correspondence related to those transactions which took place in or about 2012. 

27.The husband's solicitors wrote a letter dated 10 June 2016 to the wife's solicitors which, in part, said:

We enclose a copy of our letter to [the wife's former solicitor] dated 9 October 2015 which provides the documents and information in relation to the change in control of [AA] Trust. The documents referred to therein are in our client's affidavit of documents. 

28.Unfortunately, that assertion missed the point. The documents referred to in that correspondence do not include accounting records, records of advice or correspondence within the meaning of the discovery order previously made in October 2015. 

29.As the wife submitted, it was impossible for the husband to maintain that there were no such records, since the "change of control" between the AA Group and Malloy Group was "at the initiation of the banks". 

30.Secondly, as to the earlier acquisition of property interests by the AA Group in 2002, the husband's solicitor asserted in their letter of 10 June 2016 to the wife's former solicitor:

We refer to our letter to [the wife's former solicitor] dated 9 October 2015.  The documents requested are neither relevant to matters in dispute nor in his possession, custody or control. 

31.That, too, missed the point. When he consented to the discovery order in October 2015, the husband acknowledged and agreed that all of the documents incorporated within that order were then in his possession or under his control and all were relevant to an issue in the case. As I understood it, the husband's counsel conceded that to be so in oral submissions and, as a consequence, he abandoned his reliance on an assertion that the documents were now irrelevant.

32.For those reasons, I am satisfied that the husband's disclosure of documents pertaining to the AA Group is presently unsatisfactory. 

MS L DOCUMENTS

33.Ms L was a former domestic partner of the husband. They separated and reached an agreement about the alteration of their property interests in or about 2012 or 2013. 

34.When he filed his verified List of Documents in these proceedings in April 2016, the husband made no mention of any of the documents pertaining to his former family law dispute with Ms L.

35.The husband formally claimed that the documents relating to his financial settlement with Ms L were "not relevant to any matters in question in these proceedings", though more recently he resiled from that position. In his affidavit filed only a week ago, on 14 October 2016, the husband accepted that he could no longer object to discovery of those documents "on the grounds of relevance" and so some documents related to that former settlement were produced to the wife. However, there remains a dispute between the parties about the completeness of the disclosure. 

36.I accept the submissions made orally and in writing on behalf of the wife that there must, of necessity, be further documents in the present or former control of the husband relating to his past settlement with Ms L which have not yet been the subject of his disclosure on oath or affirmation. 

TELEPHONE RECORDS

37.The husband formally claimed in these proceedings that his telephone accounts were "not relevant to any matter in the proceedings". As was the case in respect of the Ms L documents, the husband has now resiled from that position and in his affidavit filed a week ago, on 14 October 2016, he deposed that he "no longer object[s] to the production of [his] telephone account records on grounds of relevance". He deposed further as follows: 

I have had, but have not now, in my possession, custody or control of the telephone accounts for my mobile number [number deleted] utilised by me as the same are deleted from my email inbox upon payment of each account and are not retained by me or any person on my behalf. 

38.I accept the wife's submissions that the husband's telephone accounts are nonetheless "under his control", in that he has "an enforceable right to obtain possession" of copies of those telephone accounts. That entitlement arises from the provisions of the Telecommunications Consumer Protections Code, which is published under the auspices of the Telecommunications Act 1977 (Cth). The assertion by the wife’s senior counsel about the husband's entitlement under the terms of that Code was expressly accepted as correct by the husband's counsel.

39.However, the husband's counsel asserted that an order made recently by the Chief Justice in the disposition of another interim dispute between the parties was an impediment to me making an order for the husband to procure and produce to the wife past copies of his telephone accounts. The order to which the husband's counsel referred was Order 10 made by the Chief Justice on 5 September 2016 in the following terms: 

That the husband do, and an injunction is granted directing the husband to do, all things, provide all documents and authorities and execute all documents necessary to cause any credit provider or any person providing financial accommodation to the husband to pay any monies or the money equivalent of any accommodation to the Receivers [of the husband]. 

40.That order, in my view, does not constitute an obstacle to a further order now being made obliging the husband to procure his past telephone records from his telecommunication provider, either at his cost or at no cost at all. 

41.It was common ground between the parties that the Telecommunications Consumer Protections Code would only enable the husband to procure his telephone records for the last six years. Accordingly, the order I intend to make in that regard will be confined by that entitlement. 

MALLOY FAMILY TRUST

42.Mr Q Malloy is the husband's father and the wife's father-in-law. It is common ground he controls the “Malloy Group”. One of the corporations within that Group is DD Pty Ltd, which is the corporate trustee of the “Malloy Family Trust”. The trust is a discretionary trust. 

43.Although the husband recently deposed he "may be a potential beneficiary" of that Trust, his counsel conceded on his behalf today in submissions that he is "likely" a beneficiary under the Trust.

44.The husband asserted that, to date, he has not received any disposition of funds from that Trust. It is not in dispute that he is neither the appointor nor a trustee of the Trust. Similarly, he is not a shareholder in or an officer of DD Pty Ltd. 

45.The husband claimed he does not have, and has never had, in his "possession, custody or control" a copy of the trust deed pertaining to the Trust or any financial statements of the Trust. He furthermore deposed that, on or about 10 June 2016, on his instructions, his solicitors wrote to the solicitors acting for Mr Q Malloy and the Malloy Group seeking copies of the trust deed, the Trust's financial statements, and the financial and other prudential records of DD Pty Ltd. He asserted that request for the production of those documents has so far not yielded any response. He asserted he can do no more than he already has in the face of the belligerent ignorance of his request for such documents from Mr Q Malloy and the Malloy Group. 

46.Conversely, the wife’s senior counsel submitted that, if the husband's requests for such documents continue to be rebuffed, it is arguable that both Mr Q Malloy and/or the Malloy Group would be in breach of law for the following reasons. 

47.The husband made an admission, through his counsel, that he is probably a beneficiary of the trust. Facts in civil proceedings need only be proven on the balance of probabilities (s 140 Evidence Act 1995 (Cth)). It is therefore an agreed fact the husband is a beneficiary of the Trust and he cannot resile from that agreed fact without leave (s 191(2) Evidence Act), which leave he does not have. 

48.As a beneficiary of the Trust, the husband arguably has an enforceable right to obtain from the trustee both the trust deed and financial statements of the Trust.  Such right may exist both at common law and under statute, at least insofar as the law applies in South Australia. 

49.The wife contended that, according to the law in South Australia, beneficiaries of a discretionary trust have a right of access to the trust deed, any amendments to the trust deed, and the financial statements of the Trust (other than management records) (see Mandie v Memart Nominees Pty Ltd (2014) 42 VR 325 at [94]; Rouse & Ors v IOOF Trustees (1999) 73 SASR 484 at 499-500).

50.In addition, the wife submitted that, pursuant to the provisions of s 84B of the Trustee Act 1936 (SA) and the Trustee Regulations 2011 (SA), a trustee, at the request of a beneficiary of the trust, must produce for inspection and copying the records kept by the trustee pursuant to that section, including all trust instruments and trust statements. For that purpose, the expression "beneficiary" includes the objects of a discretionary trust, just as it includes the nominated beneficiary of an unadministered deceased estate who has merely a "right to due administration".

51.Given those decisions and those provisions of State legislation, senior counsel for the wife contended that, for the purposes of Rule 13.07 of the Rules, a document is in the possession of a party not only when the party has actual physical possession of it, but also when, even if not in the party's physical possession, it is subject to that party's physical control or dominion to the exclusion of others. It was further contended that when a document is not in the party's physical possession, but is in the possession of another person or entity, that document will nevertheless be "under the control of a party" for the purpose of Rule 13.07 where that party has "an enforceable right to obtain possession of that document from that third party". In support of that submission, the wife's senior counsel called in aid the definition of the word "control" as set out within the Explanatory Guide found at the conclusion of the dictionary to the Rules.

52.Such submissions made on behalf of the wife followed a logical progression, but they face the impediment of the pronouncement of the Full Court in Masoud v Masoud (2016) FLC 93-689 at [19]-[21]. In that case, the Full Court discussed the meaning of "possession" and "control" for the purposes of the obligation of financial disclosure under the Rules. The Full Court’s view did not support the wife’s asserted broad construction of “control”. However, advertence to the text of that judgment inferentially reveals the Full Court's attention was apparently not drawn to the definition of the word "control" as set out within the Explanatory Guide to the Rules, nor to the Victorian and South Australian authorities relied upon by the wife.

53.As a consequence, the law does not seem to be in a settled position about the obligation of a party to give discovery of a document not in his physical possession or dominion, but within the possession of a third party from whom he might be able to procure such documents. 

54.The husband submitted that if the trustee of the Trust refuses his request for the nominated documents his only remedy would be to sue the trustee in the South Australian Supreme Court. Perhaps that would be necessary, but I envisage other methods. Without wishing to be facile, he could ask his father again politely, but in the absence of willing assistance from Mr Q Malloy it is conceivable that the matter could be re-listed before me to make an order directly against either Mr Q Malloy or the Malloy Group, because they are joined to these proceedings as the second and third respondents respectively.  The only reason I am not prepared to make such an order at this point is that neither of those parties attended this hearing before me today and, as a consequence, neither of those parties has yet been given an opportunity to be heard in respect of such an order being made. Significantly, in Masoud, the relevant third party was a trustee of a discretionary trust but, unlike in this case, the trustee was not a party to the family law litigation. 

55.Out of abundant caution, I have decided not to order the husband to make further disclosure in relation to the documents pertaining to the Trust, but as a salve I intend to grant leave to the wife to issue a subpoena to the trustee, DD Pty Ltd. Self-evidently, if the issue of a subpoena to the trustee is insufficient to cause disclosure of the relevant documents, at some future time I may be invited to reconsider an order directly against Mr Q Malloy or the Malloy Group. 

POLITICAL DONATIONS

56.The husband deposed in his affidavit filed on 25 August 2016:

I have not made donations to any political party.

57.In my view there is no need for him to depose any further in relation to that issue and, as I understood it, senior counsel for the wife accepted that evidence was sufficient. There will be no further order for disclosure in that regard. 

ITALIAN MOTOR VEHICLE

58.The husband deposed in his affidavit filed on 25 August 2016:

I have provided disclosure of all documents relating to the disposal of the [Italian motor vehicle] in the Affidavit of Documents and by letter from my solicitor to [the wife's new solicitors] dated 10 June 2016. 

59.During oral submissions, the husband's counsel submitted that in the List of Documents filed by him in April 2016 he disclosed all documents related to the sale and purchase of the vehicle, all of the Bankwest documents pertaining to the finance related to the vehicle, and a series of emails involving him, which discussed the transactions pertaining to that vehicle. The husband therefore submitted his disclosure in relation to the Italian motor vehicle and its recent sale has been comprehensive.

60.I accept that submission. In my view, on the evidence available, there is no need for any further disclosure. 

COSTS

61.The wife's interim application was necessary due to the husband's non-compliance with the discovery order made in October 2015 with his consent. 

62.The affidavits filed by the husband in August 2016 and October 2016 made further concessions favourable to the wife. He made even more concessions in oral argument today. 

63.In my view, the wife's application was unnecessary, but for the husband's initial intransigence and, more recently, his reluctance to make the admissions that should have been made much earlier. As it transpired, notwithstanding this was an interlocutory application, it entailed a hearing which took the entire day.  

64.Section 117(1) of the Act provides that, ordinarily, parties should bear their own cost of proceedings under the Act. Of course, while that might be the ordinary rule, s 117(2) expressly envisages that costs orders may be made in certain circumstances and, in that eventuality, s 117(2A) sets out the factors which must be considered by the Court.

65.As I have just mentioned, the husband's conduct of this interim dispute is an important consideration. It was asserted during the course of submissions that the husband is without funds and is entirely reliant upon the generosity of his father and the Malloy Group. Nonetheless, he was able to find a source of funds to cover the cost of preparing and filing multiple affidavits in these proceedings since the wife's application was filed in July 2016 and he was represented by counsel at the hearing today. It would be absurd for me to ignore those facts. 

66.Ultimately, the husband's counsel conceded that he could not really resist a costs order in the wife's favour if the wife's application was "wholly successful". As was pointed out during discussions, that does not correlate with the terminology of s 117(2A)(e) of the Act, which refers to a party being wholly unsuccessful rather than wholly successful.

67.As would be apparent from the reasons I have so far given and from the orders I am about to pronounce, the wife's application was successful in most respects and, but for the husband's prolonged opposition, much of it could have been dealt with by consent orders at a much earlier time. 

68.I am satisfied in the circumstances that the husband should bear the wife's costs of the application on a party/party basis and, given the technicality and detail involved, I am prepared to certify the appropriateness of both senior counsel and counsel. 

ORDERS DELIVERED

69.I make the following notation: the parties' respective applications for final orders pursuant to Part VIII of the Act remain listed before Registrar Paxton in the Adelaide Registry of the Family Court of Australia on 8 November 2016 for further procedural directions.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 21 October 2016.

Associate: 

Date:  4 November 2016