The Estate of the Late A Parke & Anor and Parke

[2017] FamCA 454

FAMILY COURT OF AUSTRALIA

THE ESTATE OF THE LATE A PARKE AND ANOR & PARKE [2017] FamCA 454

FAMILY LAW – PROPERTY – Interim injunctions.
FAMILY LAW – PRACTICE AND PROCEDURE – Objection to Subpoena.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Probate and Administration Act (1898) (NSW)

Mullen and  De Bry (2006) FLC 93-293
Waugh and Waugh (2000) FLC 93-052

1st APPLICANT: Ms B as Legal Personal Representative for the Estate of the Late A Parke

2nd APPLICANT: Ms B

RESPONDENT: Ms Parke

FILE NUMBER: BRC 6354 of 2014

DATE DELIVERED: Orders made 2 June 2017 and amended 2 June 2017; Reasons provided 29 June 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 9 May 2017

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT: Mr Page QC

SOLICITOR FOR THE 1ST APPLICANT: Global Legal Solutions

COUNSEL FOR THE 2ND APPLICANT: Mr Page QC

SOLICTOR FOR THE 2ND APPLICANT: Global Legal Solutions

COUNSEL FOR THE RESPONDENT: Mr Kirk QC

SOLICITOR FOR THE RESPONDENT: Keating Lehn Solicitors

Orders

Amended on 2 June 2017 pursuant to rule 17.02 of the Family Law Rules 2004

IT IS ORDERED BY CONSENT BY WAY OF INTERIM ORDER THAT

1. The First Applicant is hereby authorised to make payment of the following liabilities of the First Applicant as and when they fall due:

   (a)all invoices issued by the D Town Shire Council and/or the Y Council in relation to the following properties:

   (i)C Street, D Town, New South Wales;

   (ii)E Street, D Town, New South Wales;

   (iii)F Street, D Town, New South Wales;

   (iv)G Street, West D Town, New South Wales;  and

   (v)H Street, I Town, New South Wales (“the properties”);

   (b)Land Tax assessed in relation to the ownership by the First Applicant of the properties;

   (c)reasonable maintenance costs (save for in respect of the real property situated at H Street, I Town) and insurance in relation to the First Applicant’s ownership of the properties provided, however, that the First Applicant provides to the Respondent (Ms Parke) copies of invoices, details of the account/s from which monies are paid and receipts for monies paid within seven (7) days of payment being made;

   (d)monies in satisfaction of the three (3) Costs Orders of the Full Court of the Family Court of Australia dated 24 November 2016 in favour of the Respondent (Ms Parke);

   (e)legal costs incurred by the First Applicant in relation to these proceedings, and in relation to the proceedings currently pending in the Supreme Court of New South Wales.

   Sale of Boat and Motor home

2. Within 14 days from the date of this Order, the First Applicant shall do all acts and sign all documents as are necessary to transfer the First Applicant’s right, title and interest in the boat to Mr J for the sum of $530,000.00.

3. In order to complete the transfer of the Boat to Mr J, the Broker shall be K Brokers.

4. Should Mr J no longer be available or prepared to sign the Contract to purchase the Boat for the sum of $530,000.00, then the First Applicant and the Respondent (Ms Parke) shall jointly list the Boat for public sale at a price of not less than $530,000.00, unless otherwise agreed in writing between the First Applicant and the Respondent (Ms Parke) or as ordered by this Court.

5. Upon completion of the sale of the Boat, the sale proceeds are to be disbursed in payment of agent’s commission and all costs of sale.

6. Within 14 days after the date of this Order, the First Applicant shall do all acts and sign all documents as are necessary to transfer the First Applicant’s right, title and interest in the motor home registration number … (“the Motor home”) to Mr L, Dealer Principal, M Carsales for the sum of $150,000.00.

7. Should Mr L no longer be available or prepared to sign the Contract to purchase the Motor home for the sum of $150,000.00, then the First Applicant and the Respondent (Ms Parke) shall jointly list the Motor home for public sale for a price of not less than $150,000.00, unless otherwise agreed in writing between the First Applicant and the Respondent (Ms Parke), or as ordered by this Court.

   The Former Matrimonial Home

8. The First Applicant and the Respondent (Ms Parke) shall each pay one- half of rates and water rates for the former matrimonial home as and when they fall due.

AND IT IS ORDERED BY WAY OF INTERIM ORDER THAT

1. Subject to Order 1 of this Order, the First Applicant and the Second Applicant are hereby restrained from selling, transferring, assigning, encumbering or otherwise dealing with any of the following assets without the written consent of the Respondent (Ms Parke) or Order of the Court:

   (a)the assets listed in the Joint Valuation prepared by N Valuers on 26 April 2016 which are currently in the possession or under the control of the First Applicant and the Second Applicant;

   (b)any shares currently held in the name of the late Mr A Parke and/or the First Applicant and/or Parke Pty Ltd and/or Parke Pty Ltd as trustee of the Parke Super Fund;

   (c)any funds in bank accounts in any financial institution in the name of the late Mr A Parke, the First Applicant and/or in any Solicitors’ Trust Account on behalf of the First Applicant;

   (d)the real properties at C Street, D Town, E Street, D Town and H Street, I Town.

2. Upon completion of the sale of the Boat, the balance of sale proceeds remaining after the payment referred to in Order (5) shall be paid to the Trust Account of Keating Lehn Solicitors, Solicitors for the Respondent (Ms Parke), to be invested in the name of the First Applicant, pending written agreement between the parties or an Order of this Court.

3. Upon completion of the sale of the Motor home, the sale proceeds are to be paid to the Trust Account of Keating Lehn Solicitors, Solicitors for the Respondent (Ms Parke), to be held in the name of the First Applicant pending written agreement between the parties or an Order of this Court.

IT IS FURTHER ORDERED THAT

1. The application seeking orders in relation to the winding up of Parke Pty Ltd, as particularised at (1) under the heading “Interim or procedural orders sought” in the Amended Initiating Application filed 24 February 2017, is dismissed.

2. Save as is otherwise provided for in these Orders, the application for interim orders as particularised under the heading “Interim or procedural orders sought” in the Amended Response to Amended Initiating Application filed 27 February 2017, is dismissed.

3. The Notice of Objection filed on 17 June 2016 in respect of the subpoena directed to The Proper Officer, National Australia Bank is dismissed and the legal representatives for all parties shall be entitled to inspect and copy those documents produced by National Australia Bank in compliance with the subpoena.

4. The Notice of Objection filed on 17 June 2016 in respect of the subpoena directed to The Proper Officer, St George Bank is dismissed and the legal representatives for all parties shall be entitled to inspect and copy those documents produced by St George Bank in compliance with the subpoena.

5. Each party’s costs of and incidental to the appearance on 9 May 2017 are reserved to the Trial Judge.

6. Each party has liberty to apply on the giving of 48 hours’ notice in writing.

NOTATION

(A)It is noted that Ms Parke’s position is that she will not unreasonably withhold her consent to the release of funds from the trust account of her Solicitors in the event that such funds are required to discharge debts or other liabilities of the Estate of the late Mr A Parke or to pay appropriate and reasonable maintenance to Ms B.

NOTATION:

This Order has been amended pursuant to Rule 17.02 of the Family Law Rules 2004 by amending Clause 15 to record the correct name of the Banking Institution.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  The estate of Mr Park and Anor & Park has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6354 of 2014

Ms B as Legal Personal Representative for the Estate of the Late A Parke

1^st Applicant

And

Ms B

2^nd Applicant

And

Ms Parke

Respondent

REASONS FOR JUDGMENT

1. The interim relief sought by Ms Parke is as outlined in the Amended Response to Amended Initiating Application filed on 27 February 2017. As indicated by the form of the orders outlined at the commencement of these Reasons, some of the relief sought was not opposed, some was opposed in part and some was resisted entirely.

2. By way of broad overview, Ms B (in her capacity as the legal personal representative for the Estate of the late Mr A Parke and in her own capacity) opposes the making of any orders which would restrain her from dealing with[1]:

   a)those assets listed in a joint valuation prepared by N Valuers on 26 April 2016 which are in her possession and/or under her control (in whatever capacity); and

   b)any shares held in Mr A Parke’s name, her name in her capacity as his legal personal representative, or by Parke Pty Ltd or by Parke Pty Ltd as trustee of the Parke Super Fund; and

   c)any bank accounts with any financial institution in the name of Mr A Parke or in her name in her capacity as his legal personal representative; and

   d)the funds held in any solicitors’ trust account on her behalf in her capacity as Mr A Parke’s legal personal representative; and

   e)real properties situated at: C Street, D Town, E Street, D Town and H Street, I Town.

   [1]In the sense of selling, transferring, signing, encumbering or otherwise dealing with, without Ms Parke’s written consent or order of the Court.

3. Mr Page QC, who appeared for Ms B in each of the capacities in which she is involved in this litigation, outlined that she does not agree with any restraints on her ability to administer the Estate of the late Mr A Parke according to law and the terms of his Will.

4. Of course, one of the primary issues in this litigation between Ms Parke and the Estate is the constitution and/or quantification of his Estate.

5. Ms B also opposes an order which would require her to place the sale proceeds received following the sale of a Boat and a Motor home into the trust account of the solicitors who act for her in her capacity as legal personal representative for the Estate of the late Mr A Parke and in her own capacity.

6. In addition to these matters, Ms B also seeks to be able to pay certain liabilities in addition to those particularised at Clause 2 of the orders sought by Ms Parke. Save for asserting that she would consider the making of any such payments once provided with the appropriate information supporting the necessity for the same, such payments are opposed by Ms Parke.

7. Consideration of all of these matters about which the parties are in dispute occurs in the context of the matter summarised briefly below and taking into account the fact that, on 9 May 2017, I listed the matter for final hearing before myself, commencing on 18 December 2017.

8. I took this step because it is important that the resolution of these proceedings – between Ms Parke and the Estate of her former husband, the late Mr A Parke (now conducted by his widow – who, for the purposes of clarity, I intend to refer to as Ms B, as this is the name by which she was known when she was appointed Mr Parke’s Litigation Guardian in December 2015) –  occur as soon as practicable so that, amongst other things, the proceedings commenced by Mr O Parke (Mr and Ms Parke’s adult son) in the Supreme Court of New South Wales in about August 2016 for further provision from his late father’s Estate can also be finalised.

9. Importantly and, perhaps, more significantly, such expedition also recognises that the current dispute in this Court is but a further manifestation of the proceedings between Ms Parke and her former husband (the late Mr A Parke) which have already entailed her (ultimately successful) application to set aside a Financial Agreement into which they had previously entered. Whilst Mr A Parke appealed the order setting aside the Financial Agreement, his appeal was ultimately discontinued by Ms B after his death in 2016.

10. The expedited trial of the proceedings in this Court will ensure that the proceedings for further provision are not unavoidably ‘bogged down’ in the Supreme Court of New South Wales: any concern that these proceedings will linger without resolution should be extinguished by the fact of its listing for final hearing.

11. Unless the Estate and Mr O Parke resolve the proceedings to which they are parties in the New South Wales Supreme Court on the basis that Mr O Parke receive a specified percentage of the Estate, those proceedings will have to await the resolution of these proceedings, because it is only by such resolution that the quantum of the Estate of the late Mr A Parke can be determined.

12. This is the case because Ms Parke asserts, in the proceedings in this Court, that, in the circumstances which occurred during her nearly 37 year marriage with Mr A Parke and since their separation, by virtue of proper consideration of the relevant matters prescribed by s 79(4)(d) (and, therefore, s 75(2)) of the Family Law Act1975 (Cth), just and equitable orders are those which will result in her receiving property valued at 65 per cent of the total value of the property of the parties to their marriage: that is, the total value of a combination of her property and, now, that of the Estate.

13. Until Ms Parke’s proceedings in this Court are determined, all that can confidently be assumed is that the Estate will eventually comprise no less than property having a value of 35 per cent of the total value of all of the property of both Ms Parke and the late Mr A Parke.

Broad chronology and overview

1. The late Mr A Parke was born in 1942. Ms Parke was born in 1948. Ms B was born in 1964.

2. The relationship between Ms Parke and the late Mr A Parke involved approximately 37 years of cohabitation in total: they commenced cohabitation in 1974, separated for approximately two years between 1999 and 2001, reconciled and subsequently married in 2001. They separated finally in August/September 2013. As I understand it, Ms Parke alleges that Mr A Parke and Ms B had been in an intimate relationship from at least about Australia Day 2013.

3. Mr Parke and Ms Parke had one child together: Mr O, who was born in 1976.

4. Immediately before they married in 2001, Mr and Ms Parke entered into a Financial Agreement.

5. Mr A Parke was diagnosed with a terminal illness in 2012.

6. In about January 2013, Mr A Parke was paid about $862,777.00 by the compensation tribunal. I infer that this payment was made as a consequence of his terminal illness diagnosis.

7. Ms B asserts that she and Mr A Parke started a relationship in about May 2013, (that is, before his separation from Ms Parke) and started living together as a de facto couple on his boat in November 2013.[2] She says that, consequently, she lived with him in a de facto relationship for more than two years before they married in 2015.

   [2]          Affidavit of Ms B filed 8 May 2017, [23].

8. By Application filed on 18 July 2014 in the Federal Circuit Court, Mr A Parke sought a declaration that the Financial Agreement into which he and Ms Parke had entered into in 2001 was valid. In response, Ms Parke sought to have the Financial Agreement set aside; she also sought an order for the payment of spousal maintenance.

9. On 23 June 2015, Judge Howard set the Financial Agreement aside. The Reasons for Judgment his Honour delivered in support of the Order made that day include his findings that Ms Parke had been subjected to verbal and physical abuse by Mr A Parke and that he had cunningly exploited her financial vulnerability and insecurity to procure her signature to a disadvantageous bargain.

10. As noted earlier, whilst the June 2015 Order was the subject of an appeal filed by Mr A Parke, Ms B discontinued this appeal after his death and before it was heard.

11. Ms B says she ceased working for remuneration in early 2014 because the late Mr A Parke asked her to do so in order to look after him. She says she looked after him after his illness returned in August 2014.

12. On 22 September 2014, Judge Howard made an order that required Ms Parke to vacate the former matrimonial home at E Street, a property she and the late Mr A Parke own as tenants in common in equal shares/interests.

13. Ms B asserts that Ms Parke moved out of the former matrimonial home in November 2014.  She says she moved into that property in the same month (November 2014).

14. On 24 August 2015, Ms Parke filed an Application in a Case by which she sought the payment of $70,000.00 by way of interim lump sum spousal maintenance, the provision of litigation funding in the amount of $160,000.00 and that injunctions be made in relation to any dealings with the Boat and the Motor home.

15. In about mid-October 2015, an order was made expediting Mr A Parke’s appeal against the June 2015 Order. The application for expedition was made by Ms Parke.

16. On 22 October 2015, Mr A Parke received a medical report in relation to his health status. It appears he provided this to O Parke and, consequently, Ms Parke learned of his deteriorating health. As a result, her solicitors enquired why Mr A Parke had not informed the Court about his health status during the 16 November 2015 hearing of the application for expedition of the hearing of the appeal.

17. On 16 November 2015, Ms Parke’s solicitors put Mr A Parke’s solicitors on notice that they intended to ask Judge Howard to make final orders for spousal maintenance on 14 December 2015, if the Court had sufficient time to entertain such application.

18. On 20 November 2015, Mr A Parke transferred $1,000,000.00 into Ms B’s bank account. She says he did so because, knowing that his Estate would be ‘frozen’ for a period after his death, he wanted to ensure that she had sufficient funds for her maintenance, to meet testamentary expenses and to pay the Estate’s liabilities (including legal fees associated with these ongoing proceedings) after his death. She also asserts he first obtained legal advice about his proposed course of action and that he was advised he was not dissipating matrimonial assets in transferring ‘his own money’ to her because sufficient property remained, after the transfer of this amount, to satisfy Ms Parke’s claim or likely entitlement in the pending property settlement proceedings. It seems that, at Mr A Parke’s request, Ms B went to the bank on the day of the transfer to obtain a receipt for the same, which she delivered to his then solicitors. Ms B refutes any suggestion that she acted in any way that was improper or inappropriate.

19. On 1 December 2015, Mr A Parke was hospitalised to receive palliative care.

20. On 2 December 2015, Mr A Parke applied to seek an order that Ms B be appointed his Litigation Guardian due to his ill-health. Ms Parke did not oppose this application.

21. In 2015, Mr A Parke and Ms B married in a ceremony at P Hospital. That day, Mr Parke made his last Will and Testament, by which he appointed Ms B his sole executor and his sole beneficiary. In a statement which accompanied his Will, Mr A Parke outlined that he had made no provision for Ms Parke because the property settlement proceedings between them would determine her entitlements to property and maintenance.  He also stated he had made no provision for Mr O Parke for reasons outlined therein.

22. On 14 December 2015, Judge Howard heard Mr A Parke’s application that Ms B be made his Litigation Guardian. His Honour was not told that Mr A Parke and Ms B had married earlier, nor was he told about the contents of Mr Parke’s Will.

1. On 15 December 2015, Judge Howard ordered that Ms Parke receive $1,000,000.00 by way of lump sum spousal maintenance. His Honour also ordered that, by 17 December 2015, Ms B, in her capacity as Mr A Parke’s Litigation Guardian, file and serve an affidavit in which she was to:

   a)set out an explanation about what happened to a term deposit in the sum of $1,600,000.00 (a deposit which was said to have matured in about August 2015); and

   b)provide details of Mr A Parke’s assets and liabilities.

2. His Honour adjourned Ms Parke’s application for injunctive relief to 17 December 2015.

3. It appears that Ms B had not complied with the requirement to file and serve  an affidavit when the proceedings were next before Judge Howard on 17 December 2015.

4. As I understand it, Ms Parke asserts that she first learned about the marriage between Mr A Parke and Ms B on 17 December 2015. It was on this day that she also learned of Mr A Parke’s transfer of $1,000,000.00 to Ms B.

5. In the Reasons he delivered on 17 December 2015, Judge Howard noted that it was of “extreme concern to this Court” that Mr A Parke had not disclosed his marriage to Ms B, nor the fact that he had gifted her $1,000,000.00 when he sought her appointment as his Litigation Guardian. His Honour expressed  that:

   a)he had no confidence whatsoever that there would not be further attempts to diminish the property pool; and

   b)the concerns related to lack of disclosure and lack of candidness with the Court by either Mr A Parke or his Litigation Guardian, Ms B; and

   c)he had no confidence that proper and candid instructions were being provided by Mr A Parke or Ms B to their lawyers; and

   d)he was not confident there would not be further attempts to diminish the pool or that Mr A Parke would not continue to attempt to gift away his assets and try and defeat Ms Parke’s claims.

6. On 17 December 2015, Judge Howard joined Ms B to the proceedings and made an order setting aside Mr A Parke’s transfer of $1,000,000.00 to her. Whilst she did not appear before Judge Howard (who noted that his order was made without notice to her and that she could apply to have it set aside) on that occasion, given that she transferred $1,000,000.00 into Ms Parke’s solicitors’ trust account in compliance with his Honour’s order, it is clear she was made aware of its existence.

7. Judge Howard also restrained both Mr A Parke and Ms B (who was, by then, his Litigation Guardian) from dealing with the Boat, the Motor home, the real property at F Street, D Town and at G Street, D Town (both of which were owned solely by Mr Parke).

8. On 23 December 2015, Ms B, in her capacity as Litigation Guardian for Mr A Parke, retained Global Legal Solutions to act on his behalf. The sum of $100,000.00 was provided, to be used in meeting the legal fees associated with these proceedings.

9. Mr A Parke died in 2016 from a terminal illness.

10. By correspondence dated 24 March 2016,[3] the Estate’s solicitors confirmed that the $100,000.00 provided on 23 December 2015 had been transferred for use in meeting legal costs and expenses; they confirmed the money had been used for that purpose and that the balance of funds was held in trust, to be used in meeting the costs associated with the continuing proceedings.

    [3]Affidavit of Ms B filed 7 April 2017, Annexure ‘A’.

11. On 2 August 2016, probate was granted to Ms B. The fact that this occurred does not, of course, mean that she is free to administer the Estate without regard to the fact that it is engaged in litigation, the object of which (in part at least) is to quantify it.

The respective contentions for final orders

1. As already noted, Ms Parke seeks orders that would see her receive property having a total value of 65 per cent of the total property of the parties to her marriage with Mr A Parke. As I understand it, part of her case involves the contention that there should be notionally added-back into the ‘pool’ of property the subject of these proceedings an amount of no less than about $1,306,000.00. Mr Kirk QC, who appeared on behalf of Ms Parke, submitted that, if this proposition is accepted, the total value of the property is about $5,990,750.00.   

2. If the contentions outlined above are ultimately accepted, it is submitted Ms Parke would receive property valued at no less than about $3,893,000.00 in total: given that, at present, her nett assets (exclusive of the approximately $719,347.00 which remains of her maintenance payment) are said to be valued at about $884,750.00, she would have to receive property valued at about $3,000,000.00 from the nett assets of Mr A Parke’s Estate, which are currently said to be valued at about $3,800,000.00.

3. In contrast, it seems that Ms B contends that, whilst there should not be the add-back of notional property as contended for by Ms Parke, the payments already made to Ms Parke (which, in total, amount to $1,300,000.00) should be taken into account in their entirety in the determination of those orders which are just and equitable in the circumstances of the case.

4. Whilst it is, in my view, somewhat unclear, it seems that the Estate advances that orders which are just and equitable in these property settlement proceedings are those which would see Ms Parke receive property valued at 55 per cent of the total nett value of the property (where this includes a notional add-back of the $1,300,000.00 already received by Ms Parke).

5. In terms of particular assets, the Estate proposes that Ms Parke receive the real properties situated at E Street and G Street, D Town and at H Street, I Town and that it receive the real properties situated at C Street, D Town and F Street, D Town.

6. As already remarked upon, it is from whatever property that is ultimately determined as constituting the Estate that it will be required to satisfy any judgment obtained by Mr O Parke as a consequence of his claim in the Supreme Court of New South Wales for further provision.  It is then and only then that Ms B, as sole beneficiary of the Estate, will be able to receive her proper entitlement.[4]

   [4]          Other than by way of payments for her maintenance.

The provisional property of the parties, its value and associated matters

1. As noted, Ms B emphasises that a calculation of the property of the parties for the purpose of these proceedings should not fail to take into account the $1,000,000.00 Judge Howard ordered be paid to Ms Parke by way of lump sum spousal maintenance and the $300,000.00 already paid to her by Mr A Parke (as a consequence of the previous orders which reserved the assessment of the nature – or characterisation – of these amounts to the trial Judge).

   The Estate’s property and liabilities[5]

   [5]          Expressed in rounded terms.

2. As I understand it, as at about 23 February 2017, the Estate’s assets and liabilities were asserted to comprise the following:[6]

   [6]          Affidavit of Ms B filed 23 February 2017.

Item	Description	Estate Value
ASSETS
1.	Cash at bank	$87,874.00
2.	Cash at bank	$199.00
3.	Cash at bank	$7,500.00
4.	Chattels (including the Motor home but exclusive of those chattels in Ms Parke’s possession and those which it is agreed she will retain and/or receive)	E$405,846.00
5.	Boat	E$500,000.00
6.	Stamp collection (asserted by Ms B to be held on trust by Mr O Parke for the Estate but asserted by Ms Parke to have been gifted to Mr O Parke by his father a number of years before his death)	E$1,000,000.00
7.	199 shares in Parke Pty Ltd	E$1,076,964.00
8.	F Street, D Town	$420,000.00
9.	G Street, D Town	$470,000.00
10.	H Street, I Town (50 per cent, tenant in common with Ms Parke)	$310,000.00
11.	C Street, D Town (50 per cent, tenant in common with Ms Parke)	$207,500.00
12.	E Street, D Town (50 per cent, tenant in common with Ms Parke)	$305,000.00
13.	Monies held in trust by solicitors for Ms B as executor of the Estate, being to meet anticipated  expenditure for legal fees including for New South Wales Supreme Court and Family Court proceedings	$228,575.00
14.	Interest in Parke Superannuation Fund	E$169,744.00
TOTAL ASSETS	E$5,189,202.00
ACTUAL LIABILITIES
1.	Amount payable to meet order for costs made by Full Court of the Family Court	Unknown
2.	Land tax	$2,662.00
3.	Rates	$415.00
4.	Insurance premiums for properties and chattels	$17,000.00
5.	Boat insurance	$5,385.00
6.	Rental bonds not lodged by Mr A Parke	$3,600.00
7.	Loan payable by Estate to Parke Pty Ltd	$1,271,484.00
TOTAL ACTUAL LIABILITIES	$1,300,546.00
ANTICIPATED LIABILITIES[7]
1.	Accountants’ fees	$10,000.00
2.	Unbilled solicitors’ fees	$35,000.00 - $45,000.00
3.	Unbilled barristers fees	Unknown
4.	Potential debt of Estate or P/L and to be determined
5.	Rates	Unknown
6.	Travel and accommodation expenses for Ms B in her capacity as executor of the Estate for attending to and at these proceedings and the proceedings in the Supreme Court of New South Wales	Unknown

[7]          As at 23 February 2017.

1. On Ms B’s evidence, as at about 7 April 2017, the balance of the Estate trust account with NAB was $540,205.98.

2. On Ms B’s evidence, as at about 8 May 2017:

   a)the balance of the Estate’s account with NAB was $65,288.42; and

   b)Mr A Parke’s superannuation interest in the Parke Superannuation Fund was said to be about $169,744.00 (and ‘largely’ comprises cash and shares in publicly listed companies);  and

   c)the Estate was receiving rental income of about $1,120.00 per week,[8] from which it is required to meet payments such as those associated with property insurance ($300.00/week), boat insurance ($100.00/week), rates and charges ($150.00/week) and ancillary costs, including those associated with the upkeep of the late Mr A Parke’s dog.

   [8]All rentals now being paid into a bank account with NAB established in the name of Ms B as trustee for the Estate of the late Mr A Parke.

3. As outlined in the table above, one of the Estate’s assets is 199 shares in Parke Pty Ltd. On the evidence before me, a major asset (if not the major asset) of that entity is the loan/s it made to Mr Parke: according to Mr Q’s 3 April 2017 report to Ms B, these stood at $1,271,484.00 as at 31 March 2016 and were consequent on Mr Parke’s actions in drawing money from the company, which was noted in its accounts as a loan by it to him.

4. Therefore, as I understand the evidence before me, the Estate’s liabilities (other than those related to anticipated legal fees associated with these proceedings and the further provision proceedings in the New South Wales Supreme Court) are now mainly constituted by the liability to Parke Pty Ltd for about $1,271,484.00[9] and, potentially, to the Australian Taxation Office (in a yet to be quantified amount).

   [9]          As at 31 March 2016.

5. Whether the Estate will be required to repay Parke Pty Ltd the amount of $1,271,484.00 remains uncertain because there is the potential for the company to declare fully franked dividends and apply the resultant franking credits against Mr A Parke’s loan account. According to Mr Q’s estimate, if all available franking credits are applied in this manner, the amount the Estate may be required to repay to the company may be in the vicinity of $200,000.00 to $400,000.00.

6. Given Mr Q’s evidence about those matters which need to be done and/or investigated to determine the quantum of the loan payable to the company, it seems unlikely that the Estate will be called on to repay whatever amount with any particular urgency.

7. In addition to the liabilities already mentioned, the Estate has ongoing liabilities such as those arising by virtue of the necessity to pay rates and insurance premiums and, perhaps, utilities, as and when those payments fall due. Of course, as already stated, it is also in receipt of rental payments (totalling about $1,100.00 - $1,200.00 per week) and can use these funds to meet such expenses as they arise.

8. Whilst Ms B is entitled to be maintained by the Estate, she has not made any claim for such maintenance, other than in respect of a relatively small amount of money received by her in the aftermath of Mr A Parke’s death.  At present, she receives widow’s compensation payments from the Dust Disease Authority in the amount of $566.20 (gross) per fortnight[10]; she has also received a lump sum payment of $335,650.00 from the same source. At present, she has no need for maintenance from the Estate.

   [10]         As at December 2016.

   Payments made from the Estate since probate granted on 2 August 2016

9. Doing the best that I can on an interim basis, it appears to me that Ms B has caused the following payments out to be made by the Estate since probate was granted on 2 August 2016:

   a)$391,483.00 – in meeting costs orders made against Mr A Parke, in Ms Parke’s favour, by Courts involved in dealing with the property settlement proceedings between Mr A Parke and Ms Parke over the years; and

   b)$161,663.00 – to the Australian Taxation Office to discharge Mr A Parke’s liabilities; and

   c)$8,330.00 – to accountants; and

   d)$308,955.00 – to the Estate’s solicitors in respect of legal fees (actual and anticipated) and disbursements associated with family law proceedings; and

   e)$43,338.00 – to the Estate’s solicitors in respect of legal fees (actual and anticipated) and disbursements associated with obtaining the grant of probate and the current proceedings for further provision in the Supreme Court of New South Wales.

10. That is, an amount of $913,769.00 has already been spent or put aside for anticipated future expenses.

    Amounts spent on legal fees and provisioning for future legal fees and litigation expenses

11. In an affidavit filed on about 8 May 2017, Ms B disputes Ms Parke’s contention that the Estate has spent about $745,000.00 to date on legal fees. She says that, in fact, it has spent about $662,338.00 in legal fees arising from this proceeding, the Family Provision Application started by Mr Parke’s son (Mr O Parke) and in obtaining probate. She says this figure includes the amount of about $160,000.00 currently held in the trust account of the Estate’s solicitors in anticipation of future legal fees and associated litigation expenses.

12. Whatever the actual amount, it is immediately obvious that it is significant.  Further, it is clear that what I hope to be more than adequate provision has already been made for anticipated future legal costs.

13. Ms B also notes that, of the total spent to date, about $391,000.00 has been paid to Ms Parke as a consequence of various costs orders previously made against Mr A Parke. In so far as this issue is concerned, I note that the material before me contains an assertion that about $380,000.00 has been paid by the Estate to Ms Parke in discharge of these costs orders – I suspect that any disparity in the asserted amounts arises by virtue of the dates on which the various affidavits by Ms B were sworn or affirmed.

14. As I understand the parties’ material, the quantification of the Estate’s liability to Ms Parke by virtue of another adverse costs order remains outstanding. Once this process has been completed, the payment of the appropriate amount by the Estate to Ms Parke in discharge of all costs obligations will be required.

    The Estate’s ability to fund the litigation in this Court and in the Supreme Court of New South Wales

15. Any concern that an order restraining Ms B (in her capacity as executor of the Estate of the late Mr A Parke) from dealing with the Estate’s real property or selling or disposing of those of its chattels which remain in existence would, in some way, hinder the Estate’s ability to fund the litigation in which it is engaged in this Court and the Supreme Court of New South Wales should immediately evaporate when regard is had to the fact that there has already been vast expenditure on legal fees by both the Estate and Ms Parke in these proceedings.

16. In addition, by relevantly recently transferring about $140,000.00 into the trust account of Global Legal Solutions, the Estate has already made provision for its anticipated future legal costs of both these proceedings and the further provision proceedings.

    Disposition of chattels

17. The chattels of both the late Mr A Parke and Ms Parke have both been the subject of valuation by N Valuers. A report was prepared in April 2016.

18. Ms B’s evidence (as at 23 February 2017) is that, since probate was granted in August 2016, she has sold Estate chattels for $191,270.00 in total and that these funds have been deposited into the Estate NAB bank account.[11]

    [11]That is, into the account, which became operational on about 30 August 2016, known by the name ‘Ms B Parke as trustee for the Estate of the late Mr A Parke.

19. Ms B also says that she provided full disclosure to Ms Parke in relation to these sales, on both 23 November 2016 and 13 January 2017. It appears that chattel sales occurred from about mid-October 2016, and that Ms B provided disclosure about at least some of these to Ms Parke by about the end of November 2016. As I understand it, it is uncontentious that she did not provide prior notice of impending sales of chattels to Ms Parke.

20. Ms Parke appears to take issue with Ms B’s disposition of certain chattels. Her contentions include that some sales have been at undervalue and/or have occurred in circumstances where she has not been provided prior information about the prospects of sale.

21. In responding to these assertions, Ms B contends that, whilst Ms Parke now takes issue with such dispositions, property was sold for amounts either at, or very close to, the valuations accorded to such items by N Valuers:  values with which Ms Parke had not voiced any contention until recently. That is, Ms B asserts that, in the face of silence (or an absence of particular challenge) from Ms Parke about the values arrived at by the valuer, she has acted entirely reasonably in selling assets for, or close to, the values attributed to them and, as such, her actions do not provide a proper basis for a conclusion that there is a risk of sufficient magnitude that she will inappropriately dispose of assets as to warrant the imposition of restrictions upon the manner in which she has managed the Estate to date.

22. Ms B has disclosed receipts relating to the sale of these chattels: some show cash sales and are devoid of any details about the asserted purchasers; some, however, show the name of the purchaser and other details.

23. It seems Ms Parke is particularly suspicious about Ms B’s sale of Mr A Parke’s watch to a ‘stranger’ for $900.00.  Ms B sold this item despite knowing that Ms Parke sought to receive it in these proceedings and where she (in her capacity as Mr A Parke’s sole beneficiary) had also expressed a desire to receive it.

24. There is no clear evidence that the sale of the watch was immediately necessary to obtain funds to meet Estate liabilities.

25. It is, however, reasonably clear that its sale occurred in the following circumstances:

    a)Ms Parke informed Ms B, via correspondence, on 25 May 2016 that she wanted to receive the watch as part of the resolution of these property settlement proceedings; and

    b)Ms B responded, via correspondence sent in June 2016, to assert her desire to receive the watch as part of her inheritance; and

    c)on 23 November 2016, Ms Parke learned that Ms B had sold the watch to a ‘stranger’.

26. Ms B’s sale of the watch without notice to Ms Parke in such circumstances was said, by Mr Kirk QC for Ms Parke, to demonstrate that there was a real risk that, absent the injunctions sought, Ms B will again dispose of other Estate chattels and/or property.

1. The receipt disclosed by Ms B reveals nothing more than the watch was sold for $900.00 on a specified date; it provides no detail at all about the purchaser. The absence of such detail obviously prevents Ms Parke from undertaking her own independent inquiries about the sale.

2. As I appreciate it, such circumstances have led Ms Parke to suspect that Ms B has not in fact sold the watch but has retained it.

3. In responding to the criticisms made of her, Ms B makes the point that Ms Parke took no issue with the value accorded to the watch by the valuer when she (Ms Parke) sought to receive it as part of her property settlement, but only when she (Ms B) disposed of it.

4. However, it is not the point that the watch was sold for the value attributed to it by N Valuers: the more relevant point in the context of the consideration of the current interim application for injunctive relief is that, despite knowing both she and Ms Parke sought to receive the item, Ms B purportedly disposed of it without notice to Ms Parke.

   Sale of Securities

5. At the time he died, Mr A Parke owned shares in a number of listed companies. These were held within, or dealt with via, a NAB trade account. Ms B’s evidence is to the effect that, as at 1 January 2016, the securities had a total value of $194,453.00. She sold the securities on 27 January 2017, at which time they had a total value of $223,658.00. The sum of $218,042.00 was paid into the Estate’s NAB account and, from there, funds in the amount of about $160,000.00 have been transferred to the Estate’s solicitors’ trust account to be held on trust to meet anticipated legal expenses associated with the proceedings in this Court and in the Supreme Court of New South Wales.

6. Ms B says that she sold the securities because, at that time, the Estate’s cash reserves were low and Estate liabilities, like those associated with usual outgoings and expenses, incurred and anticipated legal costs and a number of outstanding costs orders, needed to be met.

7. Whilst that may well be the case, Ms Parke’s assertion that Ms B disposed of these securities without notice to her seems unchallenged.

   Ms Parke’s property and liabilities

8. Ms Parke is retired. She receives income in an amount of $722.00 per week (being rent and interest) and asserts weekly expenses in the amount of $1,695.00/week. Her interests in real property (co-owned with the late Mr A Parke) are valued at about $822,500.00 in total[12]; she has cash at bank in a total amount of about $719,347.00, motor vehicles valued at about $45,000.00 in total, contents valued at about $2,550.00, jewellery valued at about $14,700.00 and one share in Parke Pty Ltd (the value of which is unknown at this stage). She also has a superannuation interest held in the Parke Superannuation Fund, although the value of this interest is also unknown it seems.

   [12]         On the basis of the single expert valuations obtained from R Agents in April 2016.

9. Thus, the value of Ms Parke’s property is about $1,604,097.00, exclusive of the value of her shareholding in Parke Pty Ltd and her superannuation interest but inclusive of the funds remaining from the $1,300,000.00 she has received to date as referred to earlier. As noted, the parties are in dispute about the manner in which the $1,000,000.00 paid pursuant to Judge Howard’s order and the other $300,000.00 are to be characterised for the purpose of these proceedings.

Overview of the submissions which addressed the injunctive relief sought by Ms Parke

1. Mr Kirk QC, for Ms Parke,  submitted that the Court would be persuaded there is a real risk Ms B will dispose of assets that form part of the matrimonial pool of property in the proceedings (and which represent the accumulation of contributions of whatever nature made during the 37 years of Ms Parke’s relationship with the late Mr A Parke) in a manner that does not properly account for the proceeds (or the assets themselves) if she is able to continue to sell chattels and other assets unilaterally. He submitted the Court would be persuaded to exercise its discretionary injunctive power in the manner sought because, absent such orders, there is a real risk Ms B will dissipate property and/or the proceeds received form the agreed sale of assets and, therefore, there is a real risk Ms Parke will not be able to receive her just and equitable entitlement in these proceedings.

2. Mr Kirk QC submitted the Court should consider Ms Parke’s evidence that she has a genuine concern that Ms B will continue to take whatever steps she can to dissipate the pool of assets available for consideration in these proceedings in the context of the historical matters summarised earlier in these Reasons. He submitted that, given Ms B’s asserted lack of candour and/or disclosure and her receipt of the significant amount of money, the Court would understand and accept Ms Parke’s genuine concern that Ms B may take positive steps to diminish the value of the pool of property available to her (Ms Parke) in these proceedings.

3. He submitted, in essence, that Ms B’s past actions establish that there is a real risk she will dispose of property in such a way that Ms Parke’s ability to obtain her likely entitlement in the property settlement proceedings will be defeated: he submitted that, when reference is had to Ms B’s actions in receiving into her bank account the $1,000,000.00 transferred to her by the late Mr A Parke before his death and in allegedly disposing of the watch without notice to Ms Parke and despite knowing that Ms Parke sought to receive it in these proceedings, the necessary requirement of ‘real risk’ is established.

4. He further submitted that the Court would be persuaded it is just and convenient to make the injunctive orders sought because to do so would ensure that the status quo is maintained pending future agreement or final hearing and would ensure that Ms Parke is able to litigate her claim without hindrance: that is, he submitted that the property should be preserved because it cannot be forgotten that it constitutes property of the parties (namely, Ms Parke and the late Mr A Parke) and is the object of these proceedings.

5. Particular reliance was placed on Ms B’s failure to inform Judge Howard on either 14 December 2015 or 15 December 2015 (when the Court was considering the late Mr Parke’s application to appoint her as his Litigation Guardian) that she and Mr A Parke had married in a bedside ceremony in 2015; on the failure to inform the Court she had received $1,000,000.00 from Mr A Parke on 20 November 2015 in the face of Ms Parke’s application for a lump sum spousal maintenance order (a matter about which, it is submitted, she knew because, in her affidavit of 30 November 2015 she said she had been with Mr A Parke since these proceedings started and he discussed every aspect of the proceedings with her from the outset); and on the fact that she did not disclose her receipt of this very significant gift in the affidavit of 30 November 2015 which was relied on in the course of seeking an order for her appointment as the late Mr A Parke’s Litigation Guardian.

6. In developing his case about the issue of risk, Mr Kirk QC also placed reliance on the fact that, in about March 2016, Ms B contacted the tenants of the properties at F Street and G Street, D Town and told them to pay their rent into her personal bank account. It seems to me implicit in Ms Parke’s position that she is sceptical about Ms B’s subsequent explanation that she did this to ensure she had access to funds from which to meet Estate liabilities and so as to deal with the bank’s actions in freezing access to the late Mr A Parke’s bank accounts following his death.

7. Mr Kirk QC also submitted that Ms Parke sought the injunctive relief particularised in the current interlocutory application:

   a)as a last resort; and

   b)only after asking Ms B on a number of previous occasions to undertake not to deal with or dispose of assets; and

   c)in circumstances where Ms B has not provided evidence that, in her capacity as executor of the Estate of the late Mr A Parke, she has  properly advertised chattels for sale; and

   d)where she (Ms Parke) questions whether or not Ms B has obtained an appropriate price for some the property already sold; and

   e)where she (Ms Parke) asserts that Ms B has only told her about the sale of various chattels after the sale has been effected so as to ensure that she (Ms Parke) has been unable to act to ensure that the maximum or, at least, an appropriate price was paid for the same; and

   f)where she (Ms Parke) asserts that Ms B has previously sold assets to friends and acquaintances without undertaking proper investigations with appropriately qualified dealers or auction houses about price; and

   g)where she (Ms Parke) does not accept that Ms B has only used funds from the Estate to meet Estate liabilities but, rather, alleges that about $6,300.00 has been spent in meeting Ms B’s liabilities.

8. Mr Kirk QC also submitted that the approximately $1,100.00 per week received by the Estate by way of rents provides sufficient funds to meet any ongoing liabilities of the Estate without the necessity for the sale of other assets at this point in time.

9. Mr Page QC, who appeared on behalf of Ms B, opposed any imposition over the manner in which Ms B deals with the real property and other assets and chattels of the Estate. In addition to those matters contained in the written submissions relied upon, he submitted that the existence of injunctions sought by Ms Parke would hamper Ms B’s ability to discharge her obligations as executor of the Estate. It was also submitted that any risk of inappropriate dissipation of property pending the final resolution of these proceedings could be sufficiently met if an order was made requiring Ms B to give Ms Parke 14 days’ notice of any anticipated payment of more than $10,000.00 made from Estate funds held in the NAB bank account, except where any such payment relates to Estate liabilities or to payments to her (Ms B) for her reasonable maintenance in accordance with s 92A of the Probate and Administration Act (1898) (NSW).

10. In particular, it was submitted that any nett sale proceeds following the agreed sale of the Boat and the Motor home should be placed into the Estate bank account so that they are available for Ms B to use to meet Estate liabilities.

Discussion[13]

[13]         See, for example: Waugh and Waugh (2000) FLC 93-052 and Mullen and  De Bry (2006) FLC 93-293.

1. The Court may grant an injunction where it appears to be appropriate or just and convenient to do so[14] and the injunctive power is often employed to preserve property, in the sense of preventing it from being destroyed or alienated.

   [14]Ss 34(1) and 114(3) Family Law Act1975 (Cth).

2. It is well accepted that the Court should consider whether the injunctions sought are necessary (and go no further than necessary) to prevent the abuse or frustration of the Court’s process in relation to the matter within its jurisdiction (here the resolution of the property settlement proceedings between Ms Parke and the Estate of the late Mr A Parke) and that, if it is considered appropriate to issue injunctions, they should be to the minimum extent required.

3. It is uncontentious that an applicant for injunctive relief must persuade of the basis on which such orders should be made. It is also uncontroversial that here there is a serious question to be tried.

4. Ms Parke’s expressed concerns about the risk of dissipation of property pending resolution of the proceedings need to be assessed in light of the matters to which reference has already been made and the uncontroversial fact that, at some time prior to his death, Mr A Parke withdrew her superannuation entitlement in the Parke Superannuation Fund (in an amount of about $154,813.00) and, despite being engaged in proceedings, transferred $1,000,000.00 to Ms B without notice.

5. These actions – the latter being one in which Ms B joined (in the sense that she was aware Mr A Parke intended to make such transfer to her) – have obviously amplified Ms Parke’s concern that, for whatever reasons, Ms B will do all that she can to minimise the property available for consideration in these proceedings. That the superannuation entitlement and the $1,000,000.00 were both subsequently repaid does not alter the fact that they were initially dissipated.

6. It is clear that, in her capacity as executor of Mr A Parke’s Estate, Ms B has certain obligations. It is also clear, however, that nothing prevents the executor of an estate engaged in proceedings under the Family Law Act 1975 (Cth) from being required, by an injunctive order, to place the funds received from the disposition of any estate asset into the trust account of a legal practitioner so as to ensure that such funds are not dissipated pending the resolution of the proceedings.

7. I am not persuaded that there could be any sensible argument that, if this Court determined it appropriate to restrain the disposition of property or to require that sale proceeds received from the agreed sale of property be paid into trust and held there pending resolution of the competing claims between the Estate and Ms Parke vis-à-vis those orders which, in the circumstances, do justice and equity between them, Ms B would be seen to be in breach of her fiduciary duties as the duly appointed executor of the Estate of the late Mr A Parke.

8. In the present case there is no evidence to suggest the Estate has any pressing liabilities other than those associated with anticipated legal fees. These have already been accounted for by deposit of Estate funds into the Estate’s solicitors’ trust account for that purpose. There is no evidence that Parke Pty Ltd has demanded that the Estate repay the monies drawn by Mr A Parke and, as noted elsewhere in these Reasons, steps are being taken to determine how to resolve this issue most advantageously to the parties. Further, Ms B does not have a need for maintenance from the Estate at present.

9. In any event, the estate continues to receive rental income on a weekly (or fortnightly) basis in an amount which seems sufficient to enable the recurrent costs associated with the ownership of the rental properties to be met.

10. Having regard to the evidence before me and the submissions made on behalf of Ms Parke, I am satisfied, on the balance of probabilities, that there is a risk or danger that, absent the grant of relief as sought, Ms B may well dispose of, or deal with, property in such a manner that it will not be available to meet what is asserted will be found to be Ms Parke’s just and equitable entitlement to property in the property adjustment proceedings.

11. Whilst Ms B seeks an order for the sale of all remaining chattels (on the basis that to do this would preserve their value and enable estate liabilities to be met), the form of order proposed by Ms Parke would not prevent any such sale but, rather, would simply ensure that any further disposition of property only occur where the parties are agreed in relation to the price to be obtained for it. This course seems to me to be more appropriate given that it seems both parties now take issue with certain of the values afforded to certain chattels by N Valuers.

12. Ms Parke has already made it clear that she will not unreasonably refuse to agree to a well-informed request to dispose of property. In any event, the parties are able to seek relief from any adverse effects of the injunctive orders upon presentation of proper material.

13. In the event that, when presented with the potential of a disposition at appropriate value, any party unreasonably withheld consent to the same,  evidence could obviously be presented at the final hearing in support of any submission that the consequence of any unreasonable actions be borne solely by the unreasonable party.

14. For the reasons outlined above, I am persuaded that it is appropriate and just and convenient to make the injunctive orders sought.

How should the nett sale proceeds from the sale of the Boat and the Motor home be held?

1. The parties were agreed that the Boat and the Motor home motor home should be sold in the manner outlined in the terms of the orders sought to be made by consent.

2. What they disagreed about is what is to happen to the nett sale proceeds achieved from such sales.

3. Ms Parke contends that the nett sale proceeds should be placed into a solicitors’ trust account – either that of Global Legal Solutions or her solicitors – pending written agreement of the parties or further order of the Court. She does so on the basis of her contentions that there is a risk that, absent such order, such funds may be dissipated and, consequently, unavailable for proper consideration in the proceedings.

4. In contrast, Ms B contends that the funds should be deposited into the NAB bank account which has been opened to receive funds emanating from  Mr A Parke’s Estate (‘Ms B Parke ATF the Estate of the late A Mr Parke’) and left available for her to use to pay estate liabilities as and when they arise.

5. For the reasons already expressed, I consider it appropriate and just and convenient that the nett sale proceeds received following the sale of the Boat and the Motor home ought to be deposited into the trust account of a solicitor, to be held on trust and invested pending agreement in writing by the parties or further order. Given that the concerns expressed by Ms B’s solicitor were not shared by Ms Parke’s solicitor, the funds should be paid into and held in the trust account of Ms Parke’s solicitor.

Ms B’s application to be able to meet dog expenses from funds in the Estate bank account

1. Doing the best that I can, it appears that, in the period from 18 November 2016 until 12 January 2017, Ms B received a total of $2,563.11 by way of reimbursement of the costs of dog food in relation to the late Mr A Parke’s dog. Of this, $2,250.00 was said to represent reimbursement of 45 weeks’ worth of pet food (that is, $50.00/week).

2. In addition to these expenses, it appears that, on 28 July 2016, a pet crematorium was paid $231.00 for the cremation of a pet. I am unsure as to whether the payment made to Ms B included reimbursement of this amount.

3. Ms B seeks to be able to continue to reimburse herself for dog food expenses from those funds held in the Estate’s NAB bank account. Ms Parke opposes this course.

4. On the material before me it appears that Ms Parke does not seek to take the dog as part of her entitlement in these proceedings. Thus, it appears uncontentious that, whatever the balance of the Estate, it will include the dog:  consequently, as sole beneficiary, Ms B is entitled to ownership of the same. There is no suggestion that she is unable to pay the approximately $50.00/week which has historically been expended on the dog until trial, when I will be able to hear further from the parties (if they wish) about this issue. In addition, there are sufficient assets to ensure that, if it is ultimately determined to be appropriate, Ms B is recompensed for any reasonable dog expenses she incurs between now and the hearing in mid-December 2017.

5. For these reasons, I am not persuaded at this stage that it is appropriate to permit Ms B to be reimbursed in the manner that she seeks.

Application to appoint a Liquidator to Parke Pty Ltd

1. Mr A Parke owned 199 shares in Parke Pty Ltd. Ms Parke owns one share in it and is now the sole director of the company. As I understand it, the company was the vehicle through which the parties operated a business in D Town during their marriage and through which Mr A Parke continued to operate the same (after their separation) until about May/June 2016, when the lease for the premises from which the business operated was not renewed and, consequently, it ceased to trade.

2. The company is also the corporate trustee of the Parke Superannuation Fund, a self-managed superannuation fund in which both Ms Parke has an interest and Mr A Parke had an interest. Ms Parke does not seek to retain her interest in the superannuation fund as part of the outcome that she seeks in these property settlement proceedings.

1. As already noted, Mr A Parke owed the company $1,271,484.00 as a consequence of the manner in which drawings taken by him were dealt with in the company’s books of account. If the Estate was now called on to pay this amount, this would necessitate the sale of some real property.

2. Ms B seeks an order that a liquidator be appointed to wind up Parke Pty Ltd. She relies upon on an affidavit from Mr S, a registered liquidator, who is willing and able to act as liquidator. He quotes a cost of about $22,000.00, but only on the basis that those matters he particularises as prerequisites for the same are satisfied.

3. In opposing the making of an order in the terms sought by Ms B, Mr Kirk QC emphasised that Ms Parke did not oppose the winding up of the company but submitted that it was premature at this stage.

4. Given the evidence given by Mr Q (an accountant engaged by Ms B on behalf of the Estate) about those matters which require attention before a liquidator is appointed, I accept this submission.

5. Mr Q’s report, dated 3 April 2017, clearly outlines those matters which require attendance before a liquidator is appointed: in fact, he clearly says that a liquidator should not be appointed to wind up the company unless the tax returns and financials to which he refers in his report[15] have been prepared and lodged, because to do so would mean that the liquidator would not have enough information to decide the most effective winding up strategy with respect to the company’s debts, its loan to Mr Parke and other liabilities. In addition, before the company is wound up, steps need to be taken to replace it as the Trustee of the Parke Superannuation Fund.

   [15]         Being the 30 June 2016 Financial Statements and, perhaps, to 31 March 2017.

6. As it seems to me to be clear that Ms Parke does not oppose the winding up of the company – but, simply, seeks the opportunity to attend to those matters identified by Mr Q as being necessary before that occurs – and that the accountant she has engaged for the company and the accountant Ms B has engaged on behalf of the Estate have been in communication about winding up the company, I consider it is premature to make an order appointing a liquidator for Parke Pty Ltd (an action which would inevitably result in additional cost). Consequently, I decline to make an order in the terms sought by Ms B.

Objection to Subpoenas

1. Ms B objected[16] to Ms Parke’s inspection and copying of any documents produced by St George Bank and the National Australia Bank in answer to subpoenas issued and directed to those organisations at Ms Parke’s request.[17]

   [16]By Notice of Objection – Subpoena, both filed 17 June 2016.

   [17]         Subpoena each issued 3 June 2016.

2. The terms of each subpoena are identical: they direct the production of documents in respect of all accounts, credit and debit cards, investment monies, term deposits, personal loans and share trading accounts conducted by Ms B under that surname (and the surnames of Parke, T and U), either personally, jointly with another/s or as trustee for another person, for the period from 1 January 2013 until 3 June 2016.[18]

   [18]         The date on which the subpoena issued.

3. Ms B asserts that she has not used the surname ‘U’ and has no bank accounts in that name. She also asserts that Ms Parke should not be permitted to inspect her bank account statements and any other documents captured by the terms of the subpoenas insofar as they relate back to 1 January 2013 because she had not then commenced her relationship with Mr Parke and, consequently, the contents of the documents could not be relevant to the issues in these proceedings.

4. Insofar as the last contention is concerned, I understand Ms Parke’s evidence to include that she saw text messages (or some form of communication) on the Australia Day weekend in January 2013, the contents of which suggested to her that Mr A Parke and Ms B were then involved in a relationship of some sort.

5. The bases on which Ms B objects are that: the documents sought are not relevant to the issues between the parties; Ms Parke is ‘fishing’; and the subpoenas were served by post on her solicitors and not received in the post by her (in either of the capacities in which she is involved in these proceedings) on or before the date for service of the same specified in the subpoena (namely, 9 June 2016).

6. Whilst Ms B states that she opposes any suggestion that she should make disclosure of her personal financial affairs, such opposition ignores the fact that she is a party to these proceedings in her own right – and not only in her capacity as the Executor of the Estate of the late Mr A Parke – and, as such, subject to the exclusion provided for in the Rules,[19] has a duty to the Court and each other party to give full and frank disclosure, in a timely manner, of all information relevant to the case.[20]

   [19] Rule 13.02 (2), Family Law Rules (2004).

   [20] Rule 13.01, Family Law Rules (2004).

7. As I understand it, Ms B asserts that, as Ms Parke has already subpoenaed the late Mr A Parke’s bank account statements, she has already obtained documents within which there will be any evidence of any transfers she might allege are inappropriate or unjustified and, accordingly, it is unnecessary (and in that sense, perhaps, irrelevant – or certainly oppressive) for her personal bank statements to be inspected by Ms Parke’s legal representatives. However, it may be that unless names are included at the time of transfer, inspection of Mr Parke’s accounts will only reveal a transfer to an account number.

8. Ms B also asserts that, because she has already made full disclosure of all relevant information to Ms Parke, it is not necessary or appropriate that Ms Parke’s legal representatives be permitted to inspect her bank records which are the subject of the subpoenas. As is so often the case in litigation in this Court, the contention that full disclosure of relevant information has been made is one that is the subject of disagreement between the parties and is something that is incapable of complete resolution at this stage.

9. I am not persuaded that Ms Parke’s pursuit of the information sought via the production of Ms B’s bank statements in the circumstances of this case is something that is random or unguided: I think it clearly established that recourse to the documents is sought to provide details, as distinct from providing Ms Parke with a case against the Estate as such.

10. I consider that the documents sought are apparently relevant in that I accept that Ms B’s bank account statements constitute a class of documents which may well have material or legitimate forensic relevance. I consider that the bank account statements have sufficient apparent connection to justify their inspection and I am persuaded that the contents of the same could possibly shed light on the issue of the existence of those items of property properly the subject of the proceedings between Ms Parke and the Estate of the late Mr A Parke. That is, I am persuaded that the contents of the bank statements could possibly throw light on the issue of the ascertainment of the value of the property the subject of the proceedings or that it appears to be “on the cards” that they will do so. I accept that Ms Parke has established a legitimate forensic purpose in the documents she seeks via the subpoena process, particularly in the circumstances where the gift of $1,000,000.00 previously made by the late Mr A Parke to Ms B was the subject of an order made in the Federal Circuit Court for its remission.

11. In my view, there is nothing in the material to suggest that Ms Parke’s pursuit of the information that may be produced by the banks in answer to the subpoena is anything but genuinely designed to assist in determining the issue of the proper quantification of the value of the property of the parties for the purpose of these proceedings.

    The service issue

12. The Rules require that a copy of the subpoena must be served by ordinary service on a person such as Ms B within a reasonable time before the production of the documents required by the subpoena is required. In this case, the documents were required to be produced by 4.00 pm on 21 June 2016.

13. The purpose of the requirement to serve a person such as Ms B with a copy the relevant subpoena is obvious: namely, to enable such person to be made aware of what is being sought so that, if it is considered appropriate, objection can be taken (as has occurred).

14. The subpoena issued in June 2016. The Notice of Objection was filed in June 2016. The issue of the Objection is finally being determined in May 2017. In such circumstances, any deficiency in the manner of service is, in my view, immaterial given that the underlying purpose of the requirement to serve has clearly been achieved. It is also relevant to note that any deficiency can, of course, be the subject of a dispensatory order in any event.

15. For the reasons set out above, I dismiss the Objections to Subpoena in respect of the subpoenas issued to St George Bank and National Australia Bank on 3 June 2016 and order that all parties’ legal representatives have leave to inspect and copy any documents produced by those organisations in answer to the subpoena.

I certify that the preceding one hundred and forty-six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 June 2017.

Associate:

Date:              29 June 2017