Tritton and Poyzer

[2017] FamCA 342

FAMILY COURT OF AUSTRALIA

TRITTON & POYZER [2017] FamCA 342

FAMILY LAW – PROPERTY – section 79A of the Family Law Act 1975 (Cth) – whether there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false testimony or any other circumstances as such would, in its discretion, set aside an order made by this Court on 3 August 2010 - where it is alleged that an asset valued at $446,760 was not taken into account - that a true valuation of property was not realised - the husband having allegedly failed to provide full and frank disclosure and whether the husband was the beneficial owner of property at the date of hearing – justice has not miscarried and the application should be dismissed.

Family Law Act 1975 (Cth) s 79A(1)(a)

Morrison & Morrison (1995) FLC 92-573

APPLICANT: Ms TRITTON

RESPONDENT: Mr POYZER

FILE NUMBER: ADC 1873 of 2016

DATE DELIVERED: 24 May 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Adelaide

JUDGMENT OF: Justice Benjamin

HEARING DATE: 27 and 28 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Ms Pyke QC

SOLICITOR FOR THE RESPONDENT: Mellor Olsson

Orders

1. The Application of Ms Tritton seeking to set aside or vary property orders made on 3 August 2010 is dismissed.

2. All other extant applications, except applications as to costs, are dismissed.

3. Any application as to costs to be made in accordance with the Family Law Rules 2004 (Cth).

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel and counsel to attend.

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 Tritton & Poyzer 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 ADELAIDE

FILE NUMBER: ADC 1873 of 2016

MS TRITTON

Applicant

And

MR POYZER

Respondent

REASONS FOR JUDGMENT

Introduction

1. Ms Tritton (‘the wife’) commenced proceedings against her former husband Mr Poyzer (‘the husband’) in 2001.  This first instance litigation continued to and through a 56 day (or thereabouts) property trial and final property orders were made on 3 August 2010 (‘the substantive orders’).  This trial was followed by an appeal by the husband which in turn was withdrawn and dismissed on 6 August 2012.  The wife has chosen not to appeal the substantive orders. 

2. The wife now seeks to set aside the substantive orders pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (‘the Act’).

3. The foundation upon which the wife seeks the set aside the orders and eventual rehearing is as follows:-

   (a)an alleged asset, namely of $446,760 of Poyzer Investments Pty Ltd (‘PI’), had not been taken into account in terms of the reasons set out upon which the substantive orders were based;

   (b)that the true value of the property located at the M Centre was not realised because of the husband’s failure to provide full and frank disclosure to a single expert real estate valuer; and

   the husband allegedly admitted that he is the owner of a property at GG, despite his denials that such was the case during the property hearing.

4. The wife asserts that the husband made comments about ‘something being missed in the judgment’ upon which the substantive orders were based.  He allegedly ridiculed and boasted relating to the outcome of the proceedings, the low valuation of property and the respective [financial] circumstances of the parties.

5. These are serious allegations and the onus is on the wife to establish the factual basis upon which they are made.

6. Once this has been established any determination to set aside the orders is discretionary.  However, this discretion must be exercised according to law in that the Court must be satisfied that the facts are such that there would be a miscarriage of justice sufficient to warrant the Court exercising its discretion to set aside the order and make an order in substitution.

7. The wife provided and relied upon substituted particulars of claim in respect of her application by document dated 29 July 2016 and filed on the same date.[1]  In that she set out the following:-

   [1] Exhibit R2 - Document 8 – Substituted Particulars of Claim filed by the wife on 29 July 2016.

   1.The [wife] made application to this Court on 29 November 2001 for the settlement of property, spousal maintenance and other orders.

   2.On 21 May 2001 the [husband] joined issue.

   3.During the course of the proceedings an order was made for the joint instruction of Mr [J] to value the interests of the parties in a group of companies and trusts under the control of the [husband] [“the P Group”].

   4.The Court directed a letter of instruction be forwarded to Mr [J] in the form presented to the Court by the [husband].

   5.The instructions given to Mr [J] were materially different to those approved by the Court and served on the [wife] and more particularly (but not exhaustively) omitted [PI] from the P Group.

   6.Consequently the assets of [PI] were not valued by Mr [J].

   7.The judgment of the Court (with final Orders) was delivered on 3 August 2010 wherein the Court adopted the valuation of Mr [J] and consequently the value of the assets of [PI] ($446,760) was not brought into account.

   8.In the said judgment the [wife] was awarded 60% of the asset pool and accordingly the [wife] suffered a material loss (now quantified at $268,056 together with interest).

   9.During the course of the proceedings orders were made for the joint valuation of the [M] Centre and [DS] Centre by Mr [S].  He relied upon all of the information provided to him by the [husband] in the preparation of his valuation.  The [husband] provided false or misleading information to Mr [S] which material [sic] affected the valuations, more particularly the [husband] falsely asserted:

   (a)     that no extension to the [DS] Centre was possible.

   (b)     the land allocated for compliant car parking was not and could not be available for re-development.

   (c)     that the vacant land could not be sold diminution of the value of the [M] Centre.  [sic]

   10.The Court relied upon the valuation of Mr [S] in the judgment.

   11.The [wife] assets [sic] that the value of the [M] Centre and [DS] Centre was materially undervalued.

   12.Throughout the proceedings the [husband] asserted that he had no financial or proprietary interest in the property (and the development of the property) at [GG].

   13.The [GG] property was accordingly not recorded as an asset of the parties in the said judgment.

   14.The [husband] has since admitted to the respondent that he was at all material times the beneficial owner of the [GG] property.

   15.At all times the [husband] had a heavy duty to make full and frank disclosure of all assets and liabilities and financial resources.

   16.Section 79A of the Act permits the Court to vary or set aside an order made under Section 79 if it is satisfied that there has been a miscarriage of justice by reason of:

   (a)     fraud;

   (b)     duress;

   (c)     suppression of evidence (including failure to disclose relevant information);

   (d)     the giving of false evidence;  or

   (e)     any other circumstance.

   17.The conduct of the [husband] has resulted in a miscarriage of justice sufficient to warrant the exercise the discretion of the Court to set aside the order and make an order in substitution therefore.

BACKGROUND

1. The husband was born in England and is aged 65.  He is a developer by occupation.  The wife is 60 years of age and resides in Adelaide.  The parties commenced a relationship in about 1979 by the wife’s account.  They married in 1988.  According to the wife they separated in about December 2000.  There are two adult children of the parties’ relationship. 

2. The parties commenced litigation in about 2001 and continued throughout the first decade of that millennium.  The property proceedings were listed for hearing before a judge of the Family Court of Australia in November 2007 with an initial estimate of 10 days.  The trial eventually occupied about 56 days of hearing from 5 November 2007 until 18 June 2010.

3. In her Honour’s reasons, Dawe J said of the trial:-

   The Trial

   3.In October 2007 counsel confirmed that the estimate of the length of the trial was 10 days.  As the trial progressed the estimates of Court time required increased from time to time.  The first part of the trial lasted 51 days.  The wife was represented by Ms Nelson, QC for the trial until judgment was first reserved.  The husband was initially represented by Ms Pyke, QC.  From October 2008 the husband was unrepresented.  .

   4.The husband relied on the evidence of himself and the evidence of ten witnesses.The wife relied on her evidence and the evidence of three witnesses.

   5.During the first part of the trial 413 exhibits were received. 

   6.Further witnesses were called after permission was given to reopen the evidence and another 8 exhibits were received.

   7.During the trial numerous procedural directions were given and interim orders made.

   8.At the end of the trial the parties both provided lengthy written submissions and oral submissions.

   9.From 29 January 2010 the wife was unrepresented.

   10.After judgment was reserved the husband filed an Application in a Case on 9 March 2010 seeking to re-open the trial for new evidence to be given.  This application was listed for 27 April 2010.  The husband was not present on this day due to alleged health problems and the application in a case was adjourned to 18 May 2010. 

   11.The orders made on 27 April 2010 are as follows:

   1.     Within 14 days of service of the order upon the husband being served by pre-paid post to his current address for service the husband provide the wife with copies of the documents referred to in the letter to the husband from the wife dated 26 February 2010.

   2       I adjourn the question of the husband’s application in a case filed on 9 March 2010 in relation to further evidence to 18 May 2010 at 9.15 am before me.

   3       I adjourn further consideration of the wife’s application in a case filed on 18 March 2010 to the adjourned date of 18 May 2010 at 9.15 am before me.

   4       During the period of adjournment I make the order in paragraph 3 of the wife’s application in a case filed on 18 March 2010 and adjourn further consideration of that application to 18 May 2010 at 9.15 am before me.

   5       I direct that if the husband or wife have any further affidavit or evidence upon which they wish to rely for the purposes of the applications in a case that the same be filed and served by 4.00 pm on 11 May 2010.

   12.On 18 May 2010 the husband was given leave to reopen the evidence in relation to the compliance status of his superannuation fund, the alleged proposed mortgagee sale of real estate by the Commonwealth Bank and possible capital gains tax implications in relation to the sale of another property.  Directions were made for the filing of material and the issue of subpoena and other directions to prepare the matter for further hearing which was listed for 15 and 16 June 2010.

   13.The hearing of oral evidence resumed on 15 June 2010, continued on 16 June, 17 June and 18 June 2010 when judgment was reserved.

   14.Further affidavits of evidence-in-chief were received. 

   15.The husband gave further oral evidence.

   16.Mr [C], a Bank Officer from the Commonwealth Bank gave evidence.  Mr [I], Chartered Accountant who earlier had given evidence was recalled and gave further evidence.

   17.The husband called the witness Mr [V], who had been recently appointed as auditor of the superannuation fund.

   18.The wife relied on her affidavit and was further cross-examined by the husband. 

   19.A further eight exhibits were received.

   20.Final submissions were heard and judgment was again reserved on 18 June 2010.

   21.On 18 June 2010, following receipt of evidence and submissions from the parties the following orders were made for reasons given on that date:

   1.     Within ten [10] days from today the husband pay to the [Poyzer] Family Trust sufficient funds and thereafter do all things necessary to ensure that the Family Trust pays all interest due and owing and which thereafter becomes due and owing to the [Poyzer] Investments Pty Ltd Superannuation Fund in relation to the loan between the  [Poyzer] Family Trust and the  [Poyzer] Investments Pty Ltd Superannuation Fund.

   2.     The husband to provide within fourteen [14] days written confirmation of the compliance with this order to the wife by forwarding to the wife at her address for service full particulars of the account and date of the payment to the [Poyzer] Investments Pty Ltd Superannuation Fund.

   3.     The husband and wife do jointly have the conduct of the sale of the properties being the properties at [Lot 22, M] and Lots 51 and 52 [M] in the State of South Australia for and on behalf of the registered owners and that:

   (a)failing agreement as to the appointment of a real estate agent within ten [10] days then such agent be appointed as determined by the President of the Real Estate Institute of South Australia;

   (b)failing agreement as to the method of sale and sale price then the same shall be determined by the appointed agent.

   4.     The agent so appointed shall ensure that all instructions are joint instructions in the first instance and that all offers and other information are provided to both parties at the same time.

   5.     Upon settlement of the sale of the properties that the net proceeds of the sale after payment of the costs of sale and discharge of the Commonwealth Bank secured loans being Bills Matured Accounts formerly Bills Discount Facilities Account No …03 and …13 principal amounts THREE HUNDRED AND FIFTY FIVE THOUSAND AND FIVE HUNDRED AND SIXTYY FIVE DOLLARS [$355,565.00] and FOUR HUNDRED AND THIRTY SIX THOUSAND AND FOUR HUNDRED AND TWENTY EIGHT DOLLARS [$436,428.00] are to be placed into a joint interest earning account in the names of the parties and such account shall only be operated with the joint signatures of the parties or further order.

4. The husband gave evidence that the property had to be sold because there was going to be foreclosure.  There may have been some expansiveness in the evidence, however, it was clear that the loans were in default and that the husband was paying, and in fact did pay, penalty interest when the sales were settled.

5. It is apposite to reiterate that the wife was represented by a solicitor, junior counsel and senior counsel for all of the substantive part of the property hearing for the first 51 days.  It appears that there was an application made for orders selling properties in about June 2010 and those orders were made.  The wife was not represented in that three to four day hearing.

6. On 31 August 2010 the husband lodged an appeal.  On 6 August 2012 the appeal was withdrawn and dismissed.  The wife asserts that at time she was offered a retrial by the Full Court but that she declined that offer.

7. Any statement of fact in these reasons is to be treated as a finding of fact unless the contrary is clear from the context of the statement.

THE LAW

1. This is an application pursuant to Section 79A(1)(a) of the Act to set aside the substantive order which altered property interests. The legislation relevantly provides:-

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

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

   …

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

2. The Full Court said in Morrison & Morrison (1995) FLC 92-573, at 81,670:-

   The constant emphasis of the cases is that in order for there to be a just and equitable and an appropriate order altering the interests of parties in their property there must be a full and frank disclosure between them of all circumstances which may be relevant to the determination of their true financial position both presently and in the foreseeable future.

3. My task is to consider the evidence adduced by the wife in the context of her particular allegations of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance and ascertain, in the light of that evidence, whether it is such as would constitute a miscarriage of justice.  If I so conclude then consider whether, in the Court’s discretion, I should vary or set aside the substantive order.  

EVIDENCE

The Wife

1. The wife relied upon her affidavit sworn 6 March 2017 and filed 7 March 2017 (‘the wife’s trial affidavit’).  This affidavit contained about 48 pages of typed of material and had attached to it some 330 pages of annexures.  The wife also relied upon her Initiating Application filed 25 May 2016 and tendered in evidence was her ‘substituted particulars of claim by the applicant’[2] filed 29 July 2016. 

   [2] Exhibit R2.

2. I have had regard to all of the relevant parts of such material. Some of the evidence provided by the wife in her affidavit went outside the scope of the s 79A(1)(a) application, such as children’s proceedings and the like. At times the wife sought in her affidavit to infer behaviour or views of the husband in the absence of any substantive evidence upon which to base that assertion.

3. The wife was self-represented and I have had regard to that circumstance in assessing her evidence, particularly as the husband had briefed senior counsel to represent him during the course of the hearing.

4. It is clear that the wife was unhappy with the outcome of these proceedings and the time it took for the matter to be determined. 

5. Often, during cross examination, when asked a question she would provide long non-responsive answers.

6. Sometimes her answers were in the form that whilst she had legal advice one needed to be a lawyer to understand what was going on and “if she knew then what she knew now she would be in a better position to instruct her lawyers”.  I do not find that this is or is not the case, however, it was a driving factor in terms of her evidence.

7. In relation to the issue of the $446,760, the wife conceded that she had the letters from the husband in 2004 and 2005 and the letter from Ms Riordan as to difficulties with this entry.  Further, the wife acknowledged that the first letter instructing the single expert was substantially in accordance with the orders made by the Judicial Registrar. The wife acknowledged the veracity of much of the correspondence and documents put to her by senior counsel for the husband.

8. With regard to the GG property, the wife gave evidence of a meeting with the husband at a café apparently during the time of the appeal. She was asked whether he said “I got away with it”.  She eventually asserted that he said words similar to that or implicitly to that, although her evidence in that regard was not convincing and had a sense of recent invention or reconstruction.  Her concern about the “kitchen” in respect of the GG property arose out of what she regarded as a “Perry Mason” performance of the husband to which I have referred to later in these reason. In essence she says that the husband gave false evidence and that she could recognise that circumstance by his demeanour in the court.

1. I have discussed the wife’s evidence elsewhere in these reasons.  The wife was clearly anxious to succeed in this action.  Her evidence at times reflects that anxiety in that it was vague, verbose and seemingly reconstructed; see the evidence of the ‘admission in the café’.  

2. As such I have treated her evidence with care and I have concerns about its reliability.

The husband

1. The husband gave evidence in accordance with his affidavit and was cross-examined by the wife.  The husband sought orders in accordance with his Amended Response filed 28 October 2016, this was essentially that the wife’s application be dismissed.

2. There are a number of areas where his evidence was slightly shaken.  The first was in relation to whether the bank was foreclosing on the M properties which drove the four days of hearing during June 2010.  It seemed not to be an issue that the loans were in default and that penalty interest was being accrued, but that no foreclosure order had been made, although he was paying penalty interest.   

3. The wife endeavoured to open up broader areas such as other monies transferred by the husband outside the scope of the subject application.  The husband may have fallen into some overstatement in those circumstances, but they were not such as that they would impeach the whole of his evidence.

4. Similarly, the husband was criticised in terms of his memory and the different evidence given by Mr D in relation to the kitchen at the GG property.  However, the husband’s evidence is with regard to the carcasses of the kitchen cabinets being provided in Adelaide and the doors of the cabinets sourced from Sydney, was supported by the invoice attached to the wife’s affidavit.[3]

   [3] Annexure LAT39 pages 539-549.

5. The husband tendered in evidence a transcript of his evidence before Dawe J on 5 November 2008.  In that transcript the husband said that:- [4]

   [there was] always a possibility, as is always a part of a person in the property game to try and maximise the highest and best use of all the assets of any parcel of land.

   [4] Exhibit R10.

6. The husband was questioned about Lot 22 M (‘Lot 22’), and about a further building between the M Centre and the DS Centre.  He was asked:-

   You need to keep [Lot 22] so you can do a further building between the [M] Centre and the [DS] Centre.  That’s the case, isn’t it?

   He replied: -

   … if that was ever to come off that would be the case – you would need more car parking space for that as well.

   The next question was Ms Nelson, QC:-

   What are your plans for future development of [Lot 22]?

   The husband responded:-

   It currently has a temporary carpark on it, and there are no further plans other than that.  I borrowed some money long time ago to do the carpark, [but the wife] and I took the money out and purchased our houses in 2005, and the money therefore disappeared.  All I had down was the base.  The money was allocated to build the carpark, but it never went ahead.[5]

   [5] Exhibit R10.

7. The husband was also cross-examined about Lot 22 on 4 November 2008.[6]

   [6] Exhibit R9.

8. At the time of delivery of Dawe J’s reasons the husband had effective control of the M Centre.  In addition he had had control or ownership of Lot 22, however, on his motion the Court ordered a public sale of that property.  There was an open tender for sale of that the property.  Five tenders were presented within the time and one outside the time.  The one outside the time was the wife of an associate of the husband, Mrs F.  The solicitor for the selling agent that wrote to the wife about her view as to the later tender (which was apparently the highest).  The wife declined to be involved in that process given the determination made by the Court earlier in August 2010.

9. In addition the husband had an option to buy back units in the DS Centre, which option was valued and which vested in the husband pursuant to the orders.  Following the first instance decision, the husband on 5 November 2010 exercised the option.[7] 

   [7] Exhibit R6.

10. On 7 March 2011 the husband and Dr F entered into an agreement whereby the husband agreed to purchase the shares in the trustee company, QG Pty Ltd and that he or a nominee take 51 units in the QG Trust.  A series of transactions were entered into whereby arrangements were made to extinguish the right of way over Lot 14[8] (which enabled an addition to the DS Centre owned by QG Pty Ltd and to provide parking on Lot 22, and also at the same time to enable Dr F to develop townhouses on part of Lot 22.  Part of that arrangement involved the husband acquiring four and a half townhouses from that development at cost.  The husband subsequently offered the wife half of one of the townhouses, which offer the wife declined.[9]

    [8] Lot 14 is the land between DS Centre and the EE Building.

    [9] Wife’s affidavit paragraph 307 to 308 – which evidence was confirmed by the husband.

11. On 11 March 2011 Dr F’s alter ego gave to the husband’s alter ego an option to purchase units in the unit trust in the development at Lot 22.

12. The agreement regarding the DS Centre was terminated by further agreement dated 14 November 2012.[10]  All of these transactions and all of the development with respect of Lot 14 and Lot 22 occurred at least weeks, more likely months after the determination made by Dawe J.

    [10] Exhibit R5.

13. The husband gave evidence as to the potential for development, but said it was subject to the release of the right of way by QG Pty Ltd.  This fell into place after the end of the substantial proceedings and after Dr F had acquired Lot 22.

14. Whilst the wife may have submissions as to what she believed was in the husband’s mind, there is no evidence of fraud, there is no evidence or duress, there was no evidence of suppression of evidence, including failure to disclose relevant information, and there is no evidence of giving false evidence by the husband. 

15. It is possible that the husband had some developments in mind for these properties; however, he denied any such factors in evidence, and he had left open the possibility of development in the hearing before her Honour Dawe J.  His evidence, which was not shaken, was that redevelopment of lot 14 it was dependent upon the right of way problem being resolved.

16. Otherwise the husband was clear and direct in his evidence. The wife asserted that the husband could not be believed, she said he was not a witness of credit.  That was clearly her view of him and had been her view throughout the proceedings.

17. I can only determine the evidence on the assessment of this witness given the material before me.  There was some indication of exaggeration however, his evidence was generally not shaken during cross-examination.

18. The husband’s evidence was not perfect, but it was not seriously or relevantly impeached.

The husband’s Solicitor

1. The solicitor for the husband gave evidence set out in his affidavit sworn 22 March 2017.  That affidavit provided legible copies of documents which were otherwise in material before the Court.

The allegation that the husband had a beneficial interest in the property at GG

1. The wife asserts that the husband had a beneficial interest in the GG property.  The evidence relied upon by her fell into a number of areas upon which to base this allegation.

2. Firstly, she asserted that the husband told her that he was the beneficial owner of the said GG property.[11] 

   [11] Wife’s trial affidavit paragraph 355.

3. Secondly, she asserts that this claim is supported in terms of the evidence of Mr D, who was at the relevant time a director of ET Pty Limited.  The registered proprietor of the GG property was ET Pty Ltd.  The wife said that the company was named after a street where the husband was born. 

4. She said that the property was originally contracted by the husband and later assigned to ET Pty Ltd. 

5. There is much suspicion on the part of the wife but no objective evidence that the husband or any of the entities controlled by him, at the relevant time, had any legal or equitable interest in the GG property. 

6. The wife asserts that the husband was interested in the development and assisted in that process.[12]  The wife says what alerted her to the property was the husband’s “Perry Mason” performance during the trial.  The wife says that Mr D was cross-examined about the installation of kitchens in the property and that following the hearing the wife reinvestigated the documents and noted invoices relating to the kitchen in the materials subpoenaed from Mr D and/or ET Pty Ltd which shows that the kitchens were purchased by ET Pty Ltd, which apparently have attached to them some handwriting of the husband.[13]

   [12] Paragraph 362 to 367 of the wife’s trial affidavit.

   [13] Annexure LAT39 to wife’s trial affidavit pages 540 to 549.

7. This material was available to the wife at the time of the hearing of these proceedings and during that period the wife was represented by a solicitor, barrister and senior counsel.

8. The husband in his affidavit asserted that he did not ever own the property at GG.  He was cross-examined by senior counsel for the wife during the hearing; the wife acknowledges this.  She also acknowledges that Mr D was cross-examined during the hearing and that his documents were present, including that material annexed to the wife’s affidavit.

9. In her reasons, Dawe J dealt with this topic at paragraphs 364 to 377 where she said:-

   364.The husband maintains that initially he was introduced to the property by [Mr W] and then offered to manage the project for an investment by [Mr D].  He says that initially he had an opportunity to buy into the property but became disenchanted.  He then indicated that he would not take up the option to become directly involved with the property.  His evidence was that Mr [D] offered him the use of the new house for a year which he accepted.  The husband denied that at any time he had been anything other than Mr [D’s] agent.

   365.Mr [D’s] evidence confirms that the husband carried out the arrangements for the incorporation of [ET] Pty Ltd and the setting up of the Unit Trust.  Mr [D’s] evidence was that the husband was an equal partner in the project from the outset until 2004 when he decided not to be involved.  Mr [D] agreed that there was nothing in writing but an agreement that he had a 50 per cent share in the overall project.  Mr [D’s] evidence was that in exchange for the work that Mr [Poyzer] had done in relation to the project, Mr [D] allowed him to spend a week in his time-share [in] Queensland (rather than giving him the use of the new residence at [GG]).

   366.Mr [I’s] evidence in relation to the [GG property] confirmed the creation of the company and unit trust as directed by the husband.  He had no file notes in relation to any dealings with Mr [D]. 

   367.The husband had considerable involvement in the renovation of the existing three units and the planned construction for the new residence.  He gave instructions to the lawyers, made arrangement for the rental of the units and the arrangements for the loan.

   368.Mr [D’s] evidence established that the husband was involved in the venture and had an equitable interest in the property at the outset.  The husband expended considerable time, expertise, money and effort on this project.  He now claims not to have benefited in any significant way (other than a minor time share option).

   369.The husband relies on the evidence of Mr [G] of Bank SA to offset any possible inference that could be drawn from the Bank SA documents to support him having any interest in the [GG property]. 

   370.The husband says at page 55 of his submissions:

   “I say that I never had any interest legally, equitably or beneficially in [GG]. 

   Without doubt I had an interest initially in the project and indeed undertook some preliminary works and made enquiries particularly with respect to the building plans.”

   371.He concedes contemplating an involvement by way of an option which was prepared by Ms Riordan.  He says however he did not proceed with the option.  He also admits that at one stage he and Mr [D] were considering an arrangement whereby he would have a 50 per cent entitlement in the project, but says that he decided he did not wish to have an interest in the project at all. 

   372.The husband asserts that the assistance he gave to Mr [D] originally was because had an interest in the project (meaning he was interested in the project, but did not have any legal or beneficial rights to the property) and then continued to assist him as a friend.

   373.The husband conceded that until late 2004 he had a verbal agreement with [Mr D] that he would “buy in at cost, plus holding costs including interests.” (See page 61 of the husband’s final submissions).  He said that he never exercised any option.  The husband maintained that the work carried out by Ms [O] in drawing cheques signed by [Mr D], was work she carried out on [Mr D’s] instructions.  He conceded that occasionally he did work as requested by [Mr D], but did so as a friend.

   374.All the evidence in relation to the husband’s dealings with [the GG property] support a conclusion that the husband initially proposed to have an arrangement whereby he would be rewarded for his efforts, but determined to avoid any written or legally binding record of his claim due to his involvement in the Family Court proceedings.  The evidence established that he put considerable time and effort into the [GG] property.

   375.The evidence establishes that the husband had an agreement with Mr [D] that the husband could acquire a 50 per cent interest in the [GG] development upon payment of 50 per cent of the cost, being the acquisition, renovation costs and interest.  This agreement existed in 2004.  The evidence about when he ceased to have this arrangement with Mr [D] is not clear however, the evidence of Mr [D] at the trial in November 2008 was that such an arrangement had ceased to exist some time in 2004.

   376.The Court is satisfied that the evidence and the involvement of the husband in the [GG] property was sufficient to form a basis for the considerable concerns held by the wife about a possible interest of the husband in this property. 

   377.In considering all of the evidence however, it is not established that the husband has now an interest in the property.  It has been established however that the husband made a significant contribution to the acquisition and development of the property for the benefit of Mr [D].  The husband’s efforts did not realise any benefit to himself, the [Poyzer] Group or the wife.

10. Her Honour found that the evidence of the involvement of the husband in the GG property was sufficient to form a basis for concern, but then went on to say that it was not established that the husband has now an interest in the property.

11. In relation to the alleged admission made by the husband to the wife, it was asserted that this occurred at a café and when asked to set out what was said the wife’s evidence was:-[14]

    [14] Transcript of Proceedings dated 27 March 2017, pages 2,4,5, and 6.

    Ms Pyke:Yes. [the wife], that’s all – there’s another – another issue which I think is something to do with some kitchen – this is the issue to do with [GG].  Perhaps I will put it to you rather than have a conversation with you.  Do you agree with me that the – the two issues in relation to [GG] are, firstly, the topic of what you say [the husband] said to you after the proceedings;  and, secondly, what you say is the relevance of something that your searches have turned up about a kitchen – provision of a kitchen?‑‑‑

The wife: Yes, yes.  Well, I’m here with my application because after the judgment had finished, he started boasting about these three issues which I’ve come into court about.  And the [GG property] and the – the kitchens

…

Ms Pyke:Yes.  So after Dawe Js judgment, what do you say the husband said to you about the – and that includes after the appeal.  So it’s any time after the date of delivery of judgment.  What did – do you say that the husband said to you about the ownership of [GG]?‑‑‑

The wife:Well, we were in a cafe called [JJ].  I don’t know the new name of it.  And he admitted to me – he simply admitted to me that it was his.

Ms Pyke:Well, but what did he say?  You say he simply admitted to you.  What I want you to tell me are the exact words he used?‑

‑‑

The wife:Okay.  He said – and this was after the appeal.  He said he found it comical the way I had explained to the court about the way they played with each other with the evidence in court.  And this was particularly about the kitchens;  although, they also did it with lot 50.  And – and he just found it comical the way I explained it and I wrote it and it was true but he was smug because he got away with it.

Ms Pyke:Well, no.  You see, you see, he never said that, did he?  You’re saying that he said to you it was comical the way you presented it to the – to the court about the kitchen and whatever.  And it’s your – you’re inferring from that that he got away that – that he really had an interest in the property.  Is that what you’re saying?‑‑‑

The wife:That’s what he said.

Ms Pyke:Well, sorry.  He said, as I understand what you’re saying, that it was comical – something to do with it was comical about the way you presented it to the court about how they played with the evidence about the kitchen – something along those lines?‑‑‑

The wife:Yes.

Ms Pyke:And that’s what he said to you?‑‑‑Or how they got away with the whole thing. 

The wife:Yes.

Ms Pyke:Well, sorry.  Now, that’s a separate thing?‑‑‑

The wife:Yes.

Ms Pyke:You see, because when I said to you what did he actually say ‑ ‑ ‑?‑‑‑

The wife:Yes.

Ms Pyke:‑ ‑ ‑ you only told me he said that – you know, that he – you know, he found it comical the way you presented your case to the – to the court about the way ‑ ‑ ‑?‑‑‑About the kitchens.

The wife:That’s right.

Ms Pyke:About how they – he and Mr [D] played with the evidence, did you say – played with the evidence.  Now, that’s what you said he said?‑‑‑

The wife:Yes, that’s right.

Ms Pyke:And then you went on to say, you know, he was smug because he got away with it?‑‑‑

The wife:That’s right.

Ms Pyke:Well, he didn’t say, “I’m smug because I got away with it”?‑‑‑

The wife:No.

Ms Pyke:No.  What you’re saying is from him saying he found it comical the way you presented your evidence in the Full Court about the kitchen and – and other topics and you say he said how he played with the – he and Mr [D] played with the evidence.  You’ve just inferred from that that he got away with it.  He never said that to you.  He never said words of, “I got away with it.”  You thought that because you perceived him to be smug about the way he was talking about ‑ ‑ ‑?‑‑‑

The wife:No.  He didn’t – he didn’t say he got away with it, but he made the – he didn’t say, “I got away with it,” but he made the admission that it was his.  He didn’t say, “I got” ‑ ‑ ‑

Ms Pyke: No ..... what words did he say that made the admission that it was his?  When did he – you’ve not yet once used in the questions I’ve asked you him using any words that in any way could be interpreted as him admitting that it was his?‑‑‑

The wife:Well, he said it was his.

Ms Pyke:So you now say he said those words?  So when I asked you what did he say, I don’t want you to infer from either the fact that he’s smug or thinks that he and Mr [D] were playing with the evidence about the kitchen.  I want you to tell me exactly the words that he said?‑‑‑

The wife:Okay.  He ‑ ‑ ‑

Ms Pyke:Do you understand what I’m asking?‑‑‑

The wife:I do.  I do, Ms Pyke, but also in life it’s not only the words people say to you.  It’s the way they say them.  It’s the look on his face.

Ms Pyke:All right.  For the moment, I want you to use the words.  I’m not interested for the purposes of this question in the way that Mr [Poyzer] said them.  I want – I’m interested in the actual words.  So we’ve got him saying that, you know, he found the way you presented yourself in the Full Court comical about the kitchens and how he and Mr [D] played with the evidence.  We’ve got you thinking that he’s – you thought that he was – I think you said smug.  Now, what other words did he use?  Not what did you think, not whether you thought he got away with it.  Not whether you thought that by using those words he was admitting it.  But what did he actually say to you?‑‑‑

The wife:He told me it was his.

Ms Pyke:Yes.  Is that – are those the exact words?‑‑‑

The wife:I can’t give you the exact words.

Ms Pyke:No?‑‑‑

The wife:Okay.

Ms Pyke:No?‑‑‑

The wife:These years later.  But he told me – I can’t give you exact words ..... but they were – he told me it was his.

Ms Pyke:All right.  So something to the – even though you can’t remember the exact words, you can remember him being smug and you can remember him commenting about the – you know, about the kitchens, but you can’t remember his exact words ‑ ‑ ‑?‑‑‑

The wife:No.

Ms Pyke:‑ ‑ ‑ about it’s his?‑‑‑

The wife:No, because I was really upset.

Ms Pyke:I see?‑‑‑

The wife:And I became emotional.

1. When pressed further by senior counsel for the husband, the wife asserted that he somehow acknowledged that it was a trick.  There was no particularity in relation to that acknowledgement and from my assessment of the wife’s evidence it was either a reconstruction or a conclusion based on the inferences to which Dawe J referred earlier.

2. The husband denied ever asserting after the conclusion of the trial, that the property was his.[15]

   [15] Paragraph 109 of the husband’s trial affidavit.

3. The evidence of the wife in terms of the supposed admission was tenuous.  In many ways what the wife was complaining about with regard to this issue was in fact the findings of Dawe J.

4. The wife was aware that the husband said that the carcasses of the kitchens were provided by a company in Adelaide and that the doors were made by a company in Sydney.  The husband conceded that was different to the evidence of Mr D.  He was taken to a part of the transcript which seemed somewhat inconsistent that Mr D said the kitchen was made in NSW.  The husband’s answer was that evidence must have been wrong.  It seems to me they were more matters for the hearing, particularly given the extensive time available for that or on an appeal.  The material from the kitchen was available for the cross-examination and it was only in the years that followed that the wife apparently went through the material to find that minor inconsistency.

5. I am not convinced that the material provided by the wife goes beyond that which Dawe J observed in her reasons, including her finding that ‘the husband made a significant contribution to the acquisition and development of the property for the benefit of Mr [D]’.  I am not convinced as to the veracity of the alleged admission asserted by the wife.

6. As such the ground sought to be established, that is the husband or an entity controlled by him, had some beneficial interest in the GG property, on balance, is not established.  As such this part of the wife’s claim must fail.

The allegation that an asset to the value of $446,760 contained in Poyzer Investments Pty Ltd (‘PI’), had not been taken into account in terms of the reasons upon which the substantive orders were based

1. The wife asserts that the Court in adjusting property for the substantive order omitted to the sum of $446,760 from its calculations.  PI was part of a group of companies owned or controlled by the parties which was to be valued by a forensic accountant, Mr J.  PI was also the trustee of Poyzer Investments Pty Ltd Superannuation Fund.  PI had an asset on its balance sheet of $446,760 which was set out as a loan with Poyzer Nominees Pty Ltd.[16]

   [16] Annexures to husband’s trial affidavit – letter Carmel Riordan dated 18 November 2014 (including annexures pages 243-255).

2. After the hearing of the proceedings, and after the determination of the appeal, the wife contacted the single expert, Mr J, in March 2016 and obtained a letter from him in relation to that $446,760.  Mr J said that he included the $446,760 as a liability in relation to the family trust.  He says that he did not have available to him the correspondence from the husband dated 19 January 2005[17] and 25 November 2004,[18] nor the letter from Carmel Riordan dated 18 November 2004.  He said he was not provided with these documents when preparing the reports.  He assumed that PI was ignored by the Court in arriving at the value of the assets of the marriage.[19] 

   [17] Ibid page 199 – letter to wife care of her then lawyers.

   [18] Ibid page 237 – letter husband to wife.

   [19] Wife’s trial affidavit annexure LAT2 pages 158 to 159.

3. In his second letter,[20] Mr J made further comments in relation to the sum.

   [20] Ibid annexure LAT3 pages 161to 163.

4. It was conceded by the wife that the Court appointed the single expert to prepare a report by order made 7 September 2004.[21]  The wife asserts that the instructions given to that single expert was materially different from those approved by the Court in that it omitted PI from the Poyzer Group.  Consequently, PI was not valued by the single expert, Mr J. 

   [21] Ibid annexure LAT4 pages 166 to 167.

5. In cross-examination the wife conceded that the instructions given to the single expert, Mr J, were not materially different to those approved by the Court.  Further, a letter was forwarded to the single expert, Mr J, on 20 June 2005[22] and it clearly provided instructions to value PI.  In his first report[23] the single expert, Mr J, included PI and the superannuation fund in the documents to which he referred and they are included in his first report.[24]

   [22] Husband’s trial affidavit annexure AP3 from page 181.

   [23] Ibid annexure AP2 from page 23.

   [24] Ibid annexure AP3 pages 180 to 184/185.

6. Accordingly, I am not satisfied, in relation to that issue, that there was a failure to disclose information.

7. The $446,760 being a liability in one company and an asset in another was clearly a matter of contention between the parties.  By letter dated 18 November 2004 Carmel Riordan, a lawyer, provided advice to the husband in relation to that sum of money.  She set out taxation consequences of winding the company up and set out the importance of determining exactly when the loan was made.[25]  On 25 November 2004 the husband wrote to the wife in relation to the loan account and asked that she participate in dealing with that loan account.  The husband invited her to meet with him and his lawyer, to send her lawyer or accountant along, or he would meet with her lawyer and accountant.  He expressed:-[26]

   While the situation is not as urgent as your income tax position it will however need to be dealt with as soon as possible.  You will see that the position is date critical; I’m trying to find out when the loan was made. 

   When we do find out exactly what our liability is we can proceed to discuss the ideas of what to do with the funds that will have to be put aside from the family assets to cover whatever the amount of the liability is.

   [25] Ibid annexure AP3 pages 196 to 198.

   [26] Ibid page 237.

8. The husband treated this supposed asset as a possible liability.

9. On 19 January 2005 the husband wrote to the wife care of Armour & Allen (the wife’s then solicitors) and enclosed copies of the balance sheet, copy of the letter from Carmel Riordan (referred to earlier) and a copy of the letter sent to the wife on 25 November 2004.  There was no issue that the wife had received these communications.

10. It cannot be said by the wife that she was not aware of this issue.  The wife complained about the allegedly poor representation that she had at that time.  Whether that was or was not the case, it is certainly not an issue for the husband.  Subsequently, however, the wife was represented by a different firm of solicitors, and had senior and junior counsel assisting her throughout the majority of the hearing.

11. The question of this asset was alive before the trial judge.  The husband asserted that he filed an affidavit dated 21 April 2006 to which a copy of the letter from Ms Riordan dated August 2005 was annexed.[27]  I accept that evidence.  That letter was tendered during the trial.  Both the husband and the wife assert that the question about the balance sheet of PI was raised by the judge during the course of the trial where her Honour said:-[28]

    Have I got any documents in the husband’s affidavit, for instance, which show me the balance sheet of profit and loss of [PI] because according to Mr [J’s] report the value of the trust is reduced by almost half a million dollars because the money it owes to this investment company, and so the investment company, presumably holds the shares and the debt of half a million, and so I will need to know what the shares are worth as well as the debt.

    [27] Ibid annexure AP8 pages 201 to 203.

    [28] Ibid annexure AP9 page 205 (page 167 of the Transcript of Proceedings dated 7 November 2007.

12. The husband gave evidence, and I accept, that Mr I gave evidence in relation to and was cross-examined in the substantive proceedings and that he had carried out accounting work for the entities within the Poyzer Group.  Mr I’s evidence included the tax consequences of the asset held by PI.[29]  See pages 30 and 39 of the transcript and also see copy of transcript pages 60-65.[30]  I accept that the single expert, Mr J, was asked to value PI and there were references to it before and during the hearing.  I find that the issue of the loan from PI to the family trust was known to the wife and her advisers and that it was addressed by the Judge, the single expert, Mr J, and the husband’s accountants.

    [29] Ibid annexure AP10 page 206 to 208.

    [30] Ibid annexure AP12 pages210 to 212.

13. The husband asserted that he prepared a balance sheet in November 2007, which was mistakenly referred to as a ‘joint balance sheet’.  This was annexed to his affidavit.[31]  In her evidence the wife said that it was in fact a joint balance sheet.  In that document the husband asserted that the value of the asset was $383,200 and the wife asserted that it was ‘not known’.

    [31] Ibid annexure AP13 page 220 to 222.

14. The wife asserted in her evidence that the husband’s failure to make full and frank disclosure and his misrepresentation by omission and silence concerning the asset of $446,760 is one which would enable the Court to exercise its discretion under s 79A(1)(a) of the Act. On the evidence, I disagree.

15. It is not a matter for me to comment on whether the issue of this asset was other than properly dealt with by her Honour in her reasons.  It was open for the wife, should she choose to do so, to lodge an appeal in relation to the orders following the reasons of the substantive hearing, or alternatively it may have been open for the wife to seek a variation of the orders under the slip rule.

16. It is not available for her to do so alleging a miscarriage of justice as she has done. As such this part of her application must fail.

The allegation that the true value of the property located at the M Centre was not realised because of the husband’s failure to provide full and frank disclosure to a single expert real estate valuer;

1. The wife gave evidence in terms of the value of the property located at the M Centre and Lot 22.  Lot 22 was valued by a single expert real estate valuer, Mr S (‘the single expert’), and the wife conceded that his valuation was as residential land which was the best basis for its valuation.  The single expert was cross-examined by senior counsel for the wife during the course of the substantive proceedings.[32] 

   [32] Annexure AP19 to husband’s trial affidavit pages 273 to 340.

2. The other relevant land was that land between DS Centre and the EE Building, I will refer to this as ‘Lot 14’.  Attached to the husband’s affidavit[33] was a draft letter of January 2009 in relation to the valuation of Lot 22 and Lot 14.  It provides a good description as to Lot 14 namely:-[34]

   Lot 14 Deposited Plan … in the Hundred of Adelaide (…) comprises land and buildings of which [PZ] Corporation Pty Ltd is the registered proprietor.  The building is part of the complex known as the [M] Centre. 

   The adjoining allotment is the southern boundary is Lot 15 Deposited Plan … (…) comprises land and buildings of which [QG] Pty Ltd is the registered proprietor.  The building is commonly known as the [DS] Centre. 

   The distance between the buildings of Lots 14 and 15 is approximately 15 metres and the land that occupies that space is currently disposed as a driveway off [H Street, M] with bitumised car parks on either side.

   The wife asserts that there is potential to redevelop the land by effecting a subdivision to create a separate title and to build on the new title.  The husband has conceded in evidence the possibility of such redevelopment.  In November 2000 the husband (via Poyzer Properties Pty Ltd) lodged a plan for redevelopment with the City of MM.  In December, 2000 the husband suspended or withdrew his application.  Notwithstanding the suspension or withdrawal of the application, the husband has caused further work to be done in relation to the potential subdivision more particularly by Mr NN and has admitted this in evidence to date.

   The issue for determination therefore is:

   (a)is there a reasonable likelihood that a subdivision of portion of Lots 14 and 15 would be approved to create a new allotment suitable for further development;  and if so

   (b)what valuation impact does this have on the valuation of the M Centre and the DS Centre or any nearby property owned or controlled by Poyzer interests.

   [33] Annexure AP18 to husband’s trial affidavit pages 258 and 259.

   [34] Ibid page 259.

3. It was conceded that there was a right of way used by the DS Centre, however, this right of way was not registered on the title.  It was also conceded that the parking was at a premium and that parking was available on Lot 22.  As to the right of way the instructions to the single expert valuer were:-[35]

   On the southern side of the [M] complex there is an existing bitumen driveway extending from [H Street] to [PA] Street which driveway abuts the northern boundary of Lot 50 [M].  The wife asserts that the previous owner of the land ([Tritton] Properties Pty Ltd) or another [Poyzer] entity is entitled to a formal right of way over the land and that Conveyancing Matters have been instructed to register the same.

   The issue for determination is what valuation impact does the registration of a right of way have upon the valuation of the [M] Centre of any nearby property owned or controlled by [Poyzer] interests.

   [35] Ibid pages 259-260.

4. Shortly before judgment was delivered there was an application for sale of property including Lot 20.  An order was made in the Family Court of Australia for the sale of that property by way of tender.  There were five tenders made within time and one tender made outside time.  The solicitor for the real estate agent, OO Lawyers, sent a letter to the wife on or about 23 August 2010 inviting her submission as to whether the late tender should be accepted.  The wife wrote back on 31 August 2010 saying:-[36]

   I refer to your recent correspondence and the letter was received from [OO Lawyers] Pty Ltd dated 27/8/2010.  The Order dated 18/6/2010 has been to some extent overtaken by the Order for final settlement made on 3/8/2010.  Accordingly, I have no interest in the sale of [Lot] 22, [M].  As such my instructions must accord with those given to you by the husband.  [signed the wife]

   [36] Exhibit R1 page 2.

5. On 19 April an application for development was lodged by PP Pty Ltd to extend the M Centre over the right of way and a development occurred.  This was about eight and a half months after the final orders were made.

6. It is not an issue that the husband in his affidavit sworn 16 January 2009[37] asserted that there was a theoretical option in relation to the development of the land, but it was not a practical potential for him.  He set out his reasons in that affidavit.

   [37] Husband’s trial affidavit LAT19 pages 286 to 295.

7. It is also not disputed that the husband had an option to acquire a controlling interest in the QG Trust which was owned by QG Pty Ltd.  That option was valued for the purpose of the hearing[38] (‘the ‘QG Option valuation $155,550’).  There was some issue whether that was valued at $165,000, but for the purpose of this exercise it makes little difference.

   [38] Husband’s trial affidavit annexure AP12 page 220.

8. The PZ Corporation was owned by the M Centre, and Lot 14 and was owned as to 75 per cent by the husband or entities in his control and 20 per cent by the Z family.  However, for a development to take place it needed parking and the wife contends that Lot 22 was a necessary component of that development.  The wife contended that the husband had this proposal in place but concealed it from the valuer.

9. One of the problems with this contention is that the Lot 22 was ordered to be sold in a public way and the wife was asked to comment or participate in that process, including the late tender by a business associate of the husband, Mrs F.  Mrs F is apparently related to Dr F, and her corporation subsequently acquired the property in that tender process.

10. I accept that DS Centre was not owned by the husband, but that he had the ability to obtain a company which did own the DS Centre building, and so he certainly had the power to acquire the benefit in that property.

11. The question of the development of Lot 14 in concert with Lot 22 was something which was raised with the valuer.  The wife was critical of the valuer in relation to his recollection in evidence.  I make no finding one way or another as to the appropriateness of the work undertaken by the real estate valuer.  However, during the substantive hearing the valuer was cross-examined by senior counsel and/or junior counsel for the wife and there was a significant period of time to reflect on the evidence of that valuer.

12. What is clear from the valuation, and from the cross-examination, of the single expert was that the potential for development of these sites was a clear issue before the trial judge.  The question of the development of that property was the subject of findings before the trial judge.  Her Honour set out:-

    379.The wife relies upon correspondence between the husband and various people, including [SS] Agents, [W Builders] and Mr [W]. 

    380.The husband was cross-examined in detail.

    381.The wife relies upon some of the evidence of Mr [W] who was called to give evidence by the husband and was cross-examined at length.

    382.The husband maintains that Lot 20, [M] was owned prior to separation but the then existing proposals for sub-division of the property did not go ahead.  He maintains that Lot 20 property was sold to [Mr W] for the appropriate figure at the time.

    383.The husband conceded that although the contract for the sale of the property to [Mr W] was signed by him in May 2002 (being a price of $75,000 with settlement to take place within 14 days of the plan of sub-division being filed) the actual settlement of the sale did not take place until 1 April 2003, a considerable time after the sub-division was approved.

    384.Shortly after the husband signed the contract for the sale of Lot 20 to [Mr W] he arranged (on 3 June 2002) for a [Poyzer] Investments Pty Ltd Superannuation Fund to purchase Lot 22, [M].  (Lot 22, [M] is one of the properties owned by the [Poyzer] Properties Unit Trust and 50 per cent by the husband personally).

    385.The husband continued to be involved in arrangements for the construction of units on the properties.

    386.The husband’s evidence was that he spent some time (he says less than an hour a week) in relation to the [M] development.  He says that his involvement was consistent with his role over the years in the way he practised as a developer.  His decision was that it was not a profitable venture and he decided not to proceed with it.  He maintained that the evidence of Mr [W] (his witness) was incorrect or confused so far as it related to the profit which Mr [W] made.

    387.Mr [W] gave evidence in a straight-forward fashion.  The evidence of the substantial profit was clear and uncomplicated. 

    388.Mr [W’s] evidence confirms that the husband spent considerable time and effort which assisted Mr [W] in making his profit.

    389.The evidence does not establish on the balance of probabilities that the husband now has an enforceable claim against Mr [W] or had an enforceable equitable interest in the properties, notwithstanding the amount of time, expertise, effort and financial commitment provided by the husband.

    390.The evidence uncovered by the wife justified her concern about the possible hidden asset.

    391. The failure of the husband to make appropriate arrangements to benefit from his contribution to the development by Mr [W] is a factor to be brought into account.

1. What the wife would ask the Court to accept was that the husband was concealing his plans for the development of those sites from the Court and from the wife and that this was intended to deceive, mislead and to make a mockery of the Court and the wife.[39]  The wife then sets out a detailed history, as she saw it, and an analysis of the husband’s intention from affidavits and other material.  She asserts that the husband led or controlled Dr F, who was the effective owner of Lot 22, and that the husband and Dr F acted covertly with the husband’s accountant to hide their proposals about the development.  The wife sets out the documents in which she asserts this arises. 

   [39] Wife’s trial affidavit paragraph 207.

2. She says, in summary, that there is documented evidence that between them the husband and Dr F had prepared to enable the construction of a car park, a new building, being an extension to the DS Centre land rather than a stand-alone development, and a town house development which would have significantly impacted on the value of the properties.

3. The wife adduces no expert evidence as to any change in valuation upon which to base her assertions.  Consequently, I am not satisfied that she has established the miscarriage of justice which she asserts.

4. The scenario asserted by the wife is that the husband and Dr F somehow conspired with others to delay the development of the properties, that the husband did not inform the wife of the possibility of development by way of addition to the DS Centre rather than a stand-alone building, and development plans were put on hold and only came to fruition following the delivery of the reasons by her Honour Dawe J.

5. One of the faults with that argument is that one of the keys to the development, Lot 22, was ordered to be sold, albeit on the motion of the husband.  Such sale was to be conducted in a public way.

6. There are alternative explanations in relation to the development.  These can include Dr F entering into negotiations after acquiring Lot 22 and thus facilitating development and the explanation provided by the husband.

7. The onus of proof to establish a miscarriage of justice as envisaged under s 79A(1)(a) of the Act rests with the wife on the civil standard. She did not prove the fraud which she alleges caused the miscarriage of justice alleged in relation to this aspect of her claim.

8. The wife concluded that these actions show an intent to deceive, mislead and make a mockery of the Court and herself.[40]  She asserts that part of this process was the action to sell the properties.  The wife goes on to say it was the husband’s intention to redevelop the land with Dr F was part of a premeditated plan and this enabled him to deal with the valuer from September 2005.

   [40] Ibid.

9. I understand those clear assertions, however, they were not established on the facts or could be reasonably inferred to the civil standard on the circumstances that followed.  As such this part of her application must likewise fail.

Summary

1. The wife made detailed submissions on the law, some of which misinterpreted the law. However, I have read those written submissions[41] and reflected on the transcript of this submission.  These proceedings have clearly been a burden on both parties for a long period of time.  The property proceedings were commenced in November 2001 and were initially set down for trial for five days in May 2006.  The wife says that the financial trial was aborted a second time in June 2007 and it then commenced before her Honour Dawe J in November 2007.  The wife asserted that there were a total of 56 days of hearing, although the judgment shows 53 days.  Either way it was an extensive hearing which ran from November 2007 until a final four days in June 2010, with judgment being delivered and orders made on 3 August 2010.  The husband filed an appeal, the wife did not.  That appeal was eventually withdrawn and dismissed in early August 2012.  The proceedings, including the appeal, covered a period of almost 11 years.  Each of the parties, at various times, was represented by senior counsel and solicitors and I can that it cost each of the parties a considerable amount in terms of money, focus and emotional impact.

   [41] Exhibit A1.

2. Sadly, much of what the wife asked me to do ought to have been addressed during the extensive period of the trial, if indeed that did not actually happen, or may have been dealt with on appeal if the wife had chosen to adopt that course.

3. The wife made a deeply felt submission as to the “unfairness of the process” that occurred over the years regarding the property and parenting proceedings.  She asserted that the system was “loaded against women”.  That was a clear indication of her upset at the whole of the proceedings.

4. However, it was my task to consider within the confines of s 79A(1)(a) of the Act whether the three issues raised by her could amount to a miscarriage of justice by reason of the factors set out in that section.

5. The onus applied in terms of the case was a civil onus and rests with the wife.  In coming to this decision I took into account that the wife was unrepresented and endeavoured to ensure that she was enabled to present her case and the evidence upon which it was based.

6. Notwithstanding all of those circumstances, the wife did not establish the miscarriage of justice in the three areas asserted by her and as such her application must fail and as such her application will be dismissed.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 May 2017.

Associate:     

Date:              24 May 2017