TRUSTEE FOR THE BANKRUPT ESTATE OF N LASIC & LASIC
[2010] FamCA 682
•1 July 2010
FAMILY COURT OF AUSTRALIA
| TRUSTEE FOR THE BANKRUPT ESTATE OF N LASIC & LASIC | [2010] FamCA 682 |
| FAMILY LAW – PROPERTY SETTLEMENT – Consent orders – original orders sought to divest husband of property in attempt to defeat a damages claim awarded against him FAMILY LAW – PROPERTY SETTLEMENT – Death of a party – standing of trustee for the bankrupt estate of the husband – trustee’s application for share of property FAMILY LAW – PROPERTY SETTLEMENT – Contributions FAMILY LAW – COSTS – Application by intervener |
| APPLICANT: | Trustee for the bankrupt estate of N Lasic |
| RESPONDENT: | Ms Lasic |
| INTERVENER: | Mr F |
| FILE NUMBER: | PAF | 7534 | of | 1997 |
| DATE DELIVERED: | 1 July 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Stevenson J |
| HEARING DATES: | 26,27,28,29 October 2009 18 December 2009, 6 April 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Durston |
| SOLICITOR FOR THE APPLICANT: | HWL Ebsworth Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Gillies on 26,27,28,29 October 2009 and 18 December 2009 Mrs Lasic in person on 6 April 2010 |
| SOLICITOR FOR THE RESPONDENT: | Stojanovic Solicitors on 26,27,28,29 October 2009 and 18 December 2009 Mrs Lasic in person on 6 April 2010 |
| COUNSEL FOR THE INTERVENER: | Mr Goodridge |
| INTERVENER: | Mr F |
Orders
That the wife pay to the trustee, within three calendar months of the date of these orders, the sum of $1,193,000.
That the wife pay to the intervener, within three months of the date of these orders, the sum of $170,412.
That, pending payment in full of the amounts prescribed by orders 1 and 2, the wife is restrained from:
3.1withdrawing any funds from Asgard E-Wrap Investment account no….940 and
3.2selling, mortgaging or otherwise encumbering or dealing with the following real properties:
M property
W Road
Z Property
BB property
otherwise than for the purpose of compliance with these orders
3.3that the wife give 14 days written notice of her intention to deal with any of the above properties to the trustee and the intervener and keep them informed in writing of the progress of any such dealings.
That order 3 stands discharged upon the wife’s compliance in full with orders 1 and 2.
IT IS NOTED that publication of this judgment under the pseudonym Trustee for the bankrupt estate of N Lasic & Lasic is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAF 7534 of 1997
| TRUSTEE FOR THE BANKRUPT ESTATE OF N LASIC |
Applicant
And
| MS LASIC |
Respondent
And
MR F
Intervener
REASONS FOR JUDGMENT
The Proceedings
Mr N Lasic and Ms Lasic married in 1968. On 2 April 1998 they consented to orders for property settlement. They were around 77 and 60 years old respectively.
The effect of these orders was that the wife became sole owner of virtually all of the matrimonial property. She received six parcels of real estate, worth approximately $975,000, a motor vehicle and certain chattels. The husband was left with practically no assets in Australia but the orders noted that he owned land in the former Yugoslavia. It is now an agreed fact that there was no such land.
On 30 June 2000 the Federal Court made a sequestration order in respect of the husband’s estate, appointing Mr W as trustee. On 20 January 2005 Mr W (‘the trustee’) commenced proceedings pursuant to section 79A, to set aside the orders of 2 April 1998. This application was amended on 31 March 2005 and again on 31 July 2009. The husband died August 2007, at the age of about 86.
Mr and Mrs Lasic entered into the consent orders after an incident in March 1994, when their son M Lasic (“the son”) shot and seriously injured Mr M. The husband owned the firearm and the shooting occurred at a property which belonged to Mr and Mrs Lasic jointly.
Mr M commenced proceedings for damages in negligence against Mr and Mrs Lasic and their son in the District Court of New South Wales in about 1995. In 1998 the District Court found in favour of Mr M against the son but dismissed his claims against Mr and Mrs Lasic. Damages were assessed at over $200,000, but Mr M has received no payment whatsoever from the son.
Mr M appealed to the Supreme Court of New South Wales. In 2000 the Court of Appeal upheld the verdict against the son and allowed the appeal in relation to the husband. The husband was ordered to pay damages of $235,594 and costs of $84,596. Mr M was ordered to pay $27,699 on account of the wife’s costs.
Having received no payment at all from the husband, Mr M successfully petitioned for his bankruptcy. As noted, a sequestration order was made on 30 June 2000 and Mr W was appointed trustee of the bankrupt estate.
The trustee’s application pursuant to s.79A was heard on 16, 17 & 18 July 2007 by Coleman J, who delivered judgment on 17 August 2007. In these proceedings the parties agreed that, at the commencement of the 2007 trial, counsel for the wife submitted a written concession in the following terms:
“1.that the inference arising from the circumstances of the making of the Consent Orders on the 2nd April 1998 is that the intent of the Husband and Wife was to avoid possible recovery of any liability that the husband may have had after the said Consent Orders to [Mr M] arising from then current proceedings in the District Court of New South Wales in which the husband and wife were the Second and Third Defendants respectively and;
2.that as a consequence of the failure of the husband and wife to notify [Mr M] of the proposed Consent Orders and their failure to refer to the then pending District Court of New South Wales proceedings in the Application for Consent Orders there was a failure to disclose relevant information and
3.that such circumstances are sufficient to enliven the exercise of the courts [sic] discretion pursuant to s.79A of the Act.
Coleman J ordered, inter alia, that the wife pay the sum of $319,081.38 directly to Mr M and that she meet the costs of the trustee. Then wife appealed successfully and, on 28 April 2009, the Full Court remitted the application for rehearing. I commenced the remitted hearing on 26 October 2009 but, for reasons which appear below, the trial could not be completed until 6 April 2010.
On a date of which I am unaware Mr F, a solicitor who acted for Mr M in the negligence litigation, was granted leave to intervene in these proceedings. Mr F sought an order that the wife pay his professional costs in respect of that litigation, amounting to $84,596. He also sought payment from the wife of an amount of $8,925 on account of “attempted party/party costs recovery”. Both of these sums carry interest and Mr F asserted that he was owed $170,412 as at 1 June 2010. Mr F claimed payment of these sums pursuant to a “fruits of the action lien”.
Difficulties Which Arose During the Retrial
As noted, the retrial commenced on 26 October 2009. Mr Goodridge, counsel for the intervener, began his cross-examination of the wife on 28 October 2009. By agreement Mr Goodridge cross-examined the wife first, followed by counsel for the trustee. At all times, the wife had the assistance of a Serbian interpreter.
On the morning of 29 October 2009 Ms Gillies, counsel for the wife, informed me: “there is a difficulty that has arisen in the matter overnight” and elaborated:
“Thank you, your Honour. Last night after court finished I was approached by the interpreter in the presence of my solicitor and he raised some concerns that he had, having spoken to [the wife], and interpreted for her over the last three days, about her understanding of what’s going on, and her capacity to do certain things. Now, I don’t speak Serbian, I put that on the record, your Honour, and I’ve been reliant upon what the interpreter has been able to translate for me, and obviously what my instructing solicitor has been able to translate too, but that doesn’t mean that I’ve understood absolutely everything going on in the conference rooms either.”
“When I asked the interpreter for some examples of things that had led him to this conclusion, and I must say, your Honour, that I did some reality testing in relation to certain things that were said. There were a couple of things that he raised that were said also by the wife in the presence of my instructing solicitor, that if they had have been said in my presence in English, I would have had those concerns before the interpreter approached me, and, your Honour, they are the subject of privilege, so I won’t and I can’t outline them fully before the court, but as I’ve said, your Honour, I’ve reality tested, for various reasons that those involved in the matter may not think that answers have been given or something of that nature, this particular one, and this particular incident, in particular, although there are a couple that then fall into place from what I’ve been told.
Not so much affecting answers that were given in cross-examination yesterday, at all, but behaviours that then seem to take on a greater life because of this particular incident in the conference room, which, as I said, if it had have taken place in front of me in English, I would have had some real concerns about it. So I’m in the difficult position, your Honour, where my instructing solicitor, having been there when the interpreter spoke to me, and having been there for a couple of these particular occasions, but not all of them, that the interpreter spoke about, also has some concerns, in retrospect, about [the wife’s] capacity which may or may not be grounded.
As I said, I don’t know because I’m getting it second-hand and I concede that, but I trust implicitly what my instructing solicitor tells me and I must say that it was before I spoke to the interpreter yesterday afternoon – I’d only just commented upon what a fantastic job he’d been doing, not only in the matter, but in terms of his propriety in court and so on. He is, at least in my view, and I understand my solicitor’s used him for some years, a platinum interpreter, if I could put it that way, and somebody who I took very seriously when he came and said those things to me after court.”
Obviously I was concerned about whether the trial should continue, once these issues as to the wife’s capacity had been raised. Counsel agreed that the proceedings must be adjourned, to allow a psychiatrist to assess the wife’s capacity. By consent, I ordered that Dr JR provide a report to address whether the wife:
·was competent to give evidence in the proceedings
·was competent to give instructions in the proceedings
·should be declared a protected person and the Protective Commissioner be appointed.
Dr JR consulted with the wife on 18 November 2009. On 29 November 2009 he reported:
“In terms of my speciality I am unable to identify on the basis of the material provided and my interview – assessment of [the wife] any psychiatric condition that would impede upon her ability to give evidence in proceedings, give instructions in proceedings and do not consider that there is any evidence available that would suggest that the appointment of [the wife] as a protected person would have any justification and I have no evidence to suggest that an Application for Guardianship before the Protective Commission would succeed.
I see no evidence that any psychiatric reason exists that would prevent [the wife] being able to answer questions put to her, but having regard to her limited education and the fact that English is her second language, I am of the view that the question should be posed in a straightforward manner.
Having regard to her level of education and sophistication in the English language I would consider that there is a potential on reasonable psychiatric grounds for vigorous cross-examination to produce in an elderly lady of limited education, an apparent picture of agitation – confusion.
I would respectfully suggest on psychiatric grounds, that the cross examination consider [the wife’s] limited education and the fact that English is her second language. It is also important to ensure that [the wife] is not consuming both Tramadol and Zoloft together, I understand from her that she does not do so.”
On this basis, I was satisfied that the wife was competent to give instructions and evidence and otherwise participate effectively in the proceedings. Counsel agreed that there was no longer an issue as to her capacity. The trial thus resumed on 6 April 2010, when the cross-examination of the wife was concluded. There remained only the re-examination of the wife and submissions to complete the trial.
Before re-examination commenced, however, I was informed by counsel for the wife that she had withdrawn instructions from her solicitor, Mr Stojanevic. Obviously, neither Mr Stojanevic nor Ms Gillies could continue to act in the proceedings. They then withdrew and the wife was unrepresented.
I informed the wife that she could apply for an adjournment to obtain fresh legal representation and then allowed her time to consider her position. Ultimately, the wife said that she may seek an adjournment to call additional witnesses, including her other son R Lasic. I made it clear that I would not grant an adjournment for that purpose, as there had already been ample opportunity to obtain affidavits from all proposed witnesses. In fact, two additional witnesses swore affidavits during the adjournment caused by the issue as to her competence.
Ultimately, the wife elected to complete the proceedings without legal representation. She continued to have the assistance of the Serbian interpreter who had attended on all previous days of the trial. The wife made her final submissions largely without his assistance and appeared to me to have an adequate command of the English language.
Statement of Agreed Facts
For the purposes of the retrial, the legal representatives prepared a Statement of Agreed Facts. This Statement read:
“1. [N Lasic] (the Husband) was born in 1921 and was 85 years old at the date of the hearing before His Honour Justice Coleman (His Honour) in July 2007 (the Hearing).
2.[Mrs Lasic] (the Wife) was born in 1938 and was 69 years old at the date of the Hearing.
3.The Husband and Wife (the Parties) met in 1966.
4.In about 1967 (prior to marriage), the Parties purchased the property located at [L] (The [L] Land) in joint names for a purchase price of $3,000.00.
5.The Parties were married in October 1968.
6.As at October 1968, the Husband owned the property [in an inner city suburb] (the [Sydney] Property).
7.There were two children of the marriage: [M] (born in 1969) ([M]) and [R] (born in 1970).
8.In about 1969, the Wife purchased in her name three (3) units [in a country town] (the [country town] Properties) for a purchase price of $2,000.
9.In about 1972, the Parties obtained a business loan for the purchase of equipment and stock to start a poultry business. This business was conducted from a leased property in [A].
10.In about 1973, the Husband was severely injured in a glass explosion.
11.In about 1974, the [L] Land was resumed and compensation of $30,000.00 was paid to the Parties.
12.In about July 1977, the Parties purchased [HP] (the [HP] Property) in joint names for a purchase price of $36,000.00.
13.The purchase price for the [HP] Property was funded with the consideration received for the resumption of the [L] Land.
14.In about 1977, the Parties purchased Lot 3C [H] (Lot 3C [H]) in joint names for a purchase price of $42,000.00.
15.The whole of the purchase price was funded out of the profits of the poultry business.
16.In about 1980, the Parties purchased [Z] (the [Z] Property) in joint names for a purchase price of $65,000.00.
17.In about 1981, the Parties built a new house on a block within Lot 3C [H] ([W Road property]). The construction contracts were jointly signed by the Parties.
18.The funds for the construction of the new house at [W] Road were provided out of the profits of the poultry business.
19.in about 1981, the [country town] Properties were destroyed in a fire. The Wife received approximately $90,000 from an insurance claim in relation to the fire. The Wife then sold the land for $75,000.00.
20.In about 1982, the [Sydney] Property was sold for $206,000.00.
21.In about 1983, the Wife received $82,000.00 in damages for injuries sustained in a motor vehicle accident.
22.In about 1983, the Parties purchased [a second country property] (the [second country] Property) in joint names for a purchase price of $175,000.00.
23.In about 1985, the Wife received $50,000 in damages for injuries sustained in another motor vehicle accident.
24.In about 1994, the Parties sold Lot 3C [H] (apart from [W] Road) for $390,000.00
25.[In] 1994, the Parties’ [older son] shot and injured [Mr M] in the [W] Road property.
26.In about April 1995, the Parties purchased a property at [M] (the [M] Property) in joint names for a purchase price of $175,000.00.
27.The purchase price for the [M] Property was funded out of the proceeds of sale of Lot 3C [H].
28.In about December 1995, the Parties purchased [BB] (the [BB] Property) in joint names for a purchase price of $150,000.00.
29.In about 1996, [Mr M] commenced proceedings for damages in the District Court asserting negligence against the Parties and against [their son].
30.On 22 December 1997, the Parties applied for a dissolution of marriage.
31.On 2 April 1998, Consent Orders were made in the Family Court of Australia, which provided that the interests of the Husband in the following properties (the Six Properties) were to be transferred to the Wife:
a.[W] Road
b.The [BB] Property
c.The [M] Property
d.The [Z] Property
e.The [second country] Property
f.The [HP] Property
32.The Consent Orders provided that the real estate comprising the Six Properties was worth $975,000.00 and that the Wife had a motor vehicle and furniture with a combined value of $15,000.00.
33.The Husband alleged to have elected to proceed with the Application for Consent Orders despite advice that he was entitled to a “significantly larger share of the matrimonial property” (as per his affidavit in support).
34.There is no property comprising of “20 acres located about 50km from Belgrade, Yugoslavia” that the Husband allegedly owned.
35.[In] 1998, Patten DCJ entered judgment in favour of [Mr M] against [the parties’ older son], and dismissed the claim against the Parties.
36.[In] 1998, Patten DCJ assessed damages payable pursuant to the judgment in the sum of $201,589.07.
37.[Mr M] appealed to the New South Wales Court of Appeal, and [in] 2000, the Court of Appeal upheld the verdict against [the son] and allowed [Mr M’s] appeal against the Husband with costs (the [M] Appeal).
38.On 30 June 2000, a sequestration order was made in the Federal Court of Australia in respect of the Husband’s estate. [Mr W] was appointed the Trustee (the Trustee) of the bankrupt estate of the Husband.
39.On 16 October 2000, [Mr M] obtained Judgment in respect of the costs in the [M] Appeal in the sum of $84,596.15. The Judgment for costs (plus interest accruing from 16 October 2000) remains unsatisfied. [Mr M] further incurred costs in respect of the attempted party/party costs recovery in the sum of $6,925 (plus interest accruing from 16 October 2000).
40.In about 2002, the [HP] Property was resumed by the Roads and Traffic Authority. The Wife received a total compensation payment of $2,331,932.47 plus costs.
41.The [HP] Property, having been purchased in 1977 for $36,000.00 had, by 2002, become worth $2,331,932.47 without any improvements being made to that property.
42.The Wife invested $1,000,000.00 of the compensation payment for the [HP] Property into a Superannuation Fund.
43.On 25 February 2002, and again on 12 April 2002, the Wife was examined in the Federal Court of Australia pursuant to section 81 of the Bankruptcy Act 1966.
44.On 20 March 2003, the [second country] Property was sold by the wife.
45.On 20 January 2005, the Trustee commenced proceedings against the Wife in the Family Court of Australia under section 79A of the Family Law Act 1975 (the Act).
46.The Trustee is a “person affected” and has standing in these proceedings.
47.The Trustee’s application was listed for hearing on 27 March 2006, but was adjourned on the application of the Trustee.
48.On 27 March 2006, Counsel appearing for the Wife advised that the Wife had given unequivocal instructions that the Consent Orders should be set aside pursuant to section 79A(1)(a) of the Act, there having been a miscarriage of justice.
49.The proceedings were heard before His Honour on 16-18 July 2007.
50.As at the date of the Hearing before His Honour, the Wife was the registered proprietor of four properties, namely:
a.[W] Road
b.The [BB] Property
c.The [M] Property
d.The [Z] Property
51.The Wife’s net assets at the commencement of the Hearing before His Honour were:
a.The agreed sum of $2,548,862.00; and
b.Superannuation of approximately $1,000,000.00
52.The agreed value of the following properties as at 2 May 2007 was:
a. [W] Road $510,000.00
b. The [BB] Property $365,000.00
c. The [M] Property $850,000.00
d. The [Z] Property $375,000.00
53.At the commencement of the Hearing before His Honour, [Mr M’s] entitlement pursuant to the judgment debt was $470,914.44. [Mr M’s] liability to the Wife for costs was $29,000.00.
54.At the Hearing before His Honour, the following written concession was tendered by the Wife:
a.The inference arising from the circumstances of making the Consent Orders on 2 April 1998 is that the intent of the Husband and Wife was to avoid possible recovery of any liability that the Husband may have had to [Mr M] arising from the then pending District Court Proceedings in which the Husband and Wife were the Second and Third Defendants respectively; and
b.The failure of the Husband and Wife to notify [Mr M] of the proposed Consent Orders and failure to refer to the then pending District Court Proceedings in the Application for Consent Orders amounted to a failure to disclose relevant information, which is sufficient to enliven the exercise of the Court’s discretion pursuant to s9A of the Act.
55.[In] August 2007, the Husband passed away.
56.On 17 August 2007, His Honour published His Honour’s reasons for judgment.
57.On 14 February 2008, His Honour published His Honour’s reasons in relation to costs.
58.On 28 April 2009, the Full Court of the Family Court of Australia published its reasons for judgment.”
The Threshold Issue Pursuant to Section 79A
In an Outline of Case document dated 23 October 2009 counsel for the wife wrote: “The wife consents to the s.79A application…..”. On 28 October 2009 counsel for the wife said: “There has been a concession made that the threshold issue of s.79A has been met…..We have consented to the consent orders being set aside…., it’s a contribution case only….”
Independently of this concession, I find that there has been a miscarriage of justice such that the consent orders of 2 April 1998 should be set aside. I reach this conclusion primarily on the basis of the following facts, which are extracted either from the agreed Statement or the uncontested affidavit evidence of the trustee and the wife:
·Mr M commenced proceedings in the District Court against Mr and Mrs Lasic and their son in 1996, claiming damages for negligence arising from the shooting incident in 1994
·the consent orders contained an incorrect notation “that the husband is the sole owner of property comprising 20 acres located about 50 kilometres from Belgrade Yugoslavia”, when the true position was that: “there is no property comprising of 20 acres located about 50 kilometres from Belgrade Yugoslavia that the husband allegedly owned” (agreed fact 34)
·it was agreed that: “the husband alleged to have elected to proceed with the application for consent orders despite advice that he would be entitled to ‘a significantly larger share of matrimonial property’ as per his affidavit in support” (agreed fact 33)
·the effect of the consent orders was to vest solely in the wife six parcels of real estate with a total value of $975,000
·the consent orders left the husband with no property which could satisfy any verdict in favour of Mr M
·the court was not put on notice of Mr M’s claim for damages against the husband
·Mr M was not put on notice of the application for consent orders
·between 1 April 1998 and 21 June 1998 the husband saw a psychiatrist, Dr [SC], who concluded: “the husband] suffers from inveterate reactive anxiety and depression with progressive dementia, which together compromise his general psychosocial functioning and no doubt render him unfit for any involvement in court activities. He is undergoing treatment with massive doses of medication for his numerous somatic ailments which reduce his alertness and further burden his cognitive functioning” (report annexed to the affidavit of the wife)
For these reasons, I find on the balance of probabilities that Mr and Mrs Lasic joined in a dishonest enterprise designed to divest him of all substantial property, with the intention of defeating any verdict in favour of Mr M. Further, the report of Dr SC suggests that the husband’s capacity to consent to the orders on 2 April 1998 was questionable at best. As well, the application contained a false notation that the husband owned property in the former Yugoslavia, upon which the court was entitled to rely when exercising its discretion to make the consent orders. Finally, the wife was substantially enriched by the operation of the orders, to the great detriment of the husband. In my opinion, these circumstances constitute a miscarriage of justice such that the orders made on 2 April 1998 should be set aside pursuant to section 79A of the Act.
The Jurisdictional Issue Raised On Behalf Of the wife
Despite the concession as to the threshold issue for the purposes of s.79A, counsel for the wife submitted that the court lacked jurisdiction to entertain the trustee’s application. Essentially, the proposition was that only the legal personal representative of the late husband could continue the proceedings after his death in August 2007. It was submitted that the trustee has no standing to seek orders against the wife, as he is not the legal personal representative of the husband. It was conceded that this argument was not raised before either Coleman J or the Full Court.
It seems to me that this submission can be disposed of simply by reference to the terms of s.79A. Section 79A(1C)(a) provides as follows:
Where, before proceedings under this section in relation to an order made under section 79 are completed, a party to the marriage dies:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party and the applicable Rules of Court may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;
The words “continued by or against….the legal personal representative of the deceased party…..” suggest to me that this provision applies when the deceased spouse was a party to proceedings prior to his or her death. The proceedings between Mr and Mrs Lasic were finalised by the consent orders of 2 April 1998. The husband was never a party to the trustee’s application pursuant to section 79A, to which the sole respondent was the wife. It thus seems to me that this submission lacks substance and the court has jurisdiction to entertain the trustee’s application.
Although agreed fact 46 was that “the trustee is a ‘person affected’ and has standing in these proceedings” I will set out the findings of the Full Court on this issue. Their Honours said:
“Conclusions – the trustee had standing
164.The Full Court of this Court and the Full Court of the Federal Court had, prior to the amending Act, determined that a third party may be a “person affected” by orders made pursuant to s79 for the purposes of s 79A. We can see no reason to depart from the position (noting, of course, that in future s 79A(5) will obviate the necessity for the trustee to satisfy the Court in each case that he is “a person affected”.
165.In the absence of any challenge before the trial Judge as to whether or not the trustee was a “person affected”, and in the absence therefore of any finding by his Honour that the trustee in the circumstances of this case was indeed “a person affected”, we do not consider it strictly necessary for us to determine whether there was a sufficient factual basis for a conclusion that the trustee was “a person affected”.
166.For the sake of completeness, however, we would observe that the evidence before the trial Judge provided an ample basis for such a finding. The evidence established that at the time the consent orders were made:
· the District Court proceedings had been instituted against the spouses and their elder son asserting negligence;
· the spouses had received legal advice about the likely prospects of success of the proceedings against the husband;
· facts asserted in the application in support of the consent orders were false;
· no disclosure was made to the Court of the pending litigation;
· no notification was given to Mr [M] of the proposed orders;
· the effect of the making of the orders was to eliminate the husband’s capacity to satisfy any judgment debt obtained by Mr [M], and unjustly enrich the wife.
167.These facts supported an action by the trustee on behalf of the creditor/s of the husband’s bankrupt estate as a “person affected” by the consent orders. The trustee therefore had standing to bring the proceedings under s 79A. There is accordingly no merit in ground 2 of the cross-appeal.
168.It is appropriate to record that there was no challenge to his Honour’s determination to continue the proceedings after the death of the husband without the executor or administrator of the husband’s estate being substituted for the husband in the proceedings (see s 79(1C) of the Act and s 63 of the Bankruptcy Act).
At this point I should note that I was asked by counsel for the trustee and the intervener to read the reasons of the Full Court. Counsel for the wife objected to my reading the judgment.
On behalf of the wife it was submitted that I should not read the judgment of the Full Court because it recited, inter alia, findings of fact and credit and assessments of contribution made by Coleman J. It was suggested that I might properly read some passages from the judgment but that objection would be taken to my reading certain other parts of the reasons.
I was puzzled as to how I could properly embark on the retrial in a state of ignorance as to the relevant law, as set out by the Full Court. I had difficulty with the notion that I could properly understand the judgment, without knowledge of the factual basis upon which the reasons were formulated. Further, it seemed to me that the position adopted on behalf of the wife placed me in an illogical situation. I would need to read the paragraphs to which objection was taken, in order to rule on whether I should see this material. Obviously, I would then have read all of the judgment.
For these reasons, I decided to read the whole of the judgment of the Full Court. Counsel for the wife then foreshadowed an application that I disqualify myself on the basis of apprehended bias. This proposed application, however, was specifically abandoned.
The Assets, Liabilities and Financial Resources
It was agreed that the wife owns real estate with the following values:
1.
W Road
$520,000
2.
BB property
$395,000
3.
Z property
$380,000
4.
M property
$880,000
Agreed fact 42 was that: “the Wife invested $1,000,000 of the compensation payment for the [HP] property into a Superannuation Fund”. Agreed fact 51 was that: “the Wife’s net assets at the commencement of the Hearing before His Honour were:
a.The agreed sum of $2,548,682; and
b.Superannuation of approximately $1,000,000”
The best evidence of the current value of the wife’s Asgard eWrap Investment Account was a statement contained in exhibit A7, which showed a balance of $646,243 on 15 March 2010. The only evidence of the value of her Asgard Pension Account was a document annexed to her affidavit, which showed a balance of $173,188 on 30 June 2009. On the only available evidence, therefore, I find that the wife has total superannuation of $819,431. Given her age, all of these funds are immediately accessible and will be included in the list of assets.
The wife said that the value of her superannuation has decreased because of the impact on the share market of the global financial crisis. I regard this evidence as inherently credible and likely to be accurate. I thus draw no inference adverse to the wife due to the reduction in value of her superannuation.
In her oral evidence the wife said that she has a St George Bank account with a balance of approximately $30,000. She disclosed in her Financial Statement of 23 October 2009 that she has an Impreza car with an estimated value of $12,000. On the basis of these admissions against interest, the wife’s motor vehicle and savings will be included in the list of assets at those values.
The intervener sought to add back to the list of assets the following:
· loan from the wife to her son in Brisbane $215,000
· loan from the wife to her son in Sydney $234,000
· loan from the wife to her sister $85,000
· ‘5 years free rent’ for the M property…..’say $200,000’ $200,000
The wife has two sons whose European given names translate to the same name. The son of her first marriage lives in Brisbane. The son who was involved in the litigation with Mr M lives in Sydney. He has occupied the M property on a rent-free basis for at least five years.
The wife said nothing in her affidavit about loans which she made to her sons and sister. The only evidence concerning advances to these people came in cross-examination and was, at best, confusing.
The wife said: “I have given [my son] in Brisbane $215,000” and “I borrowed $80,000 from my sister because I had a matter with the RTA for seven or eight years”. She also said: “$85,000 to my sister and $215,000 to my son in Queensland was for costs of the RTA litigation, the [M] trial and building the house”. She said further: “I don’t know if I have given my son here over $200,000”.
The implication which the wife seemed to try to convey was that her son and sister advanced $215,000 and $85,000 respectively to her and that she has repaid these advances. There was no evidence from these people, nor any documents to corroborate these assertions. I do not consider that this unsatisfactory evidence justifies any addback to the list of assets. Equally, there is no basis for a finding that the wife has any liability to her son or sister.
There was no evidence of the amount of rental which the M property would have generated over five years. I cannot include a figure as a notional asset on the basis of mere speculation. I can, however, take into account this largesse on the part of the wife pursuant to section 75(2)(o).
The wife gave most unsatisfactory evidence as to the fate of the money which she received from the RTA when the HP property was resumed. In her affidavit she said: “I consulted Kencalo and Ritchie Solicitors who negotiated an advance payment of $909,771.27 from the RTA. After the payment of costs I received the sum of $897,838.80”. She annexed to her affidavit a copy of a letter dated 22 January 2003 from the RTA to Kencalo and Ritchie, which referred to these precise amounts.
Nonetheless, the wife denied in cross-examination that she received an advance payment from the RTA. She said: “It is not true that the RTA paid an advance of $909,771 before any legal costs were incurred”. This blatant contradiction of documentary evidence annexed to her own affidavit reflects very poorly on the wife’s credit.
The wife did not attempt to account for her use of this money. She said only: “I spent $900,000”.
Agreed fact 41 was that the wife received a total of $2,331,932 from the RTA. As noted, she deposited $1,000,000 in superannuation funds which presently are worth about $819,400. I accept that the reduction of around $180,600 is a likely result of the impact of the global financial crisis on the share market.
The balance of the RTA compensation, for which the wife failed to account, thus amounted to approximately $1,332,000. I can see no reason why this sum should not be included in the list of assets. This money clearly came into the hands of the wife and she gave no evidence as to its fate. If she used any part of this money in a way which would mean that it should not be treated as an addback, it was open to her to place that evidence before the court. I thus infer that she was unable or unwilling to give a proper accounting for these funds.
Accordingly, I find the assets to be as follows, with the values set out below:
1.
W Road
$520,000
2.
BB property
$395,000
3.
Z property
$380,000
4.
M property
$880,000
5.
Asgard eWrap Investment Account
$646,243
6.
Asgard Pension Account
$173,188
7.
Impreza Motor Vehicle
$12,000
8.
Money Retained by Wife from RTA Compensation
$1,332,000
$4,338,431
No party asserted that there is any liability which is relevant to determine the value of the net pool of property.
No party asserted that there is a financial resource.
The Evidence and Witnesses
The trustee relied upon his affidavit sworn on 20 October 2009, which annexed a large volume of material. Mr W was cross-examined by counsel for the wife and the intervener.
The respondent wife, relied on the following affidavits:
1.the wife sworn on 15 October 2009
2.Steven Stojanovic sworn on 23 October 2009
3.Steven Stojanovic sworn on 21 January 2010
4.Mr OJ sworn on 29 January 2010
5.Mr LV sworn on 29 January 2010
She also relied on a Financial Statement verified by an affidavit sworn on 23 October 2009. Mr Stojanovic, who was the wife’s solicitor during most of the proceedings before me, was not required for cross-examination. The affidavit evidence of Mr OJ and Mr LV was unchallenged.
Essentially, I have only the wife’s evidence of the financial history of the marriage and the contributions of herself and the husband. In my view, she was a singularly unimpressive witness. It seemed to me that she did not hesitate to make statements which she apparently thought would assist her case, regardless of her obligation to tell the truth. At times she gave evidence which seemed to me to be inherently incredible and unreliable. She did not produce documents which may have corroborated some of her allegations. On numerous occasions, she tried to give evidence which contradicted the Statement of Agreed Facts. Examples of these unsatisfactory aspects of the wife’s evidence appear below.
The Contributions of the Parties up to the Time of the Consent Orders
In her affidavit the wife said that she had foreign cash worth approximately A$70,000 when she came to Australia in 1964. She claimed that she saved this money from her income as a hotel worker in France and Italy during the previous five or six years. She said that she brought this money to Australia in “three large dolls. I stuffed them with money. And I brought some cash with me”.
In cross-examination the wife said that she invested $100,000 of “[my] own money” when she and the husband started a poultry farm business in 1972. When asked the source of this money she said: “…..I worked in France and Italy”. At that point she seemed to suggest that she brought about A$100,000 to Australia.
There was nothing to corroborate the wife’s contention that she had the equivalent of $70,000 or $100,000 in cash in 1964. In cross-examination she gave this improbable evidence in relation to her alleged cash savings:
“Q: So in 1967 you had enough cash in your home to build a house and in 1969 you had enough cash in your home to buy three units. Is that what you say?
A: Yes, yes and
A: I had so much money when I came to Australia, I was able to afford to buy seven houses
It seems to me inherently unlikely that the wife could have saved such a large amount of money from income as an unskilled hotel worker in only five or six years. During this period, she had to support herself and the child of her first marriage, who was between six months and five years old. Her account of carrying three large dolls stuffed full of money on a long sea voyage seems unlikely and almost fanciful.
I appreciate that the wife gave evidence that she worked in a factory after she came to Australia in 1964. I am prepared to assume that she could have accrued some savings between 1964 and 1969. I have serious doubts, however, that she could have saved such large amounts from her earnings in hotel and factory work over a period of ten or eleven years. For these reasons I do not accept that the wife had cash savings of A$70,000 or $100,000 when she arrived in Australia in 1964. I accept that she had some savings, in an amount which I cannot quantify.
The wife persisted with her allegation that the husband owned land in the former Yugoslavia prior to the marriage, despite agreed fact 34: “there is no property comprising of ‘20 acres located about 50km from Belgrade, Yugoslavia’ that the husband allegedly owned”. This evidence was a clear example of her unreliability as a witness.
In her affidavit the wife said: “Prior to the commencement of our relationship [the husband] said to me that he owned a property in […] Croatia and a property at [Sydney]…..”. She annexed to her affidavit copies of documents purporting to be “a declaration of ownership for the property in Croatia” and “a certificate in the Croatian language and translation dated 24 May 2005 as to the value of the property”.
The purported “declaration of ownership” stated:
“I, [N LASIC], permanently residing in Australia, declare that in […], Croatia, I own 20 hectares of land valued at 450,000 German Marks and a family home valued at 200,000 German Marks, which was set on fire.
The authenticity of the aforementioned is confirmed by the Solicitor where the document was certified.
Declarant:
[N Lasic]”
This document was an unsigned and undated copy. There was no evidence as to the whereabouts of any original document.
The purported “certificate…..as to the value of the property” stated:
“This is to confirm that Mr [N LASIC], permanently residing in Australia, the owner of property – a house and land of total 20 hectares and is situated in […] Croatia of estimated market value between 1,5 – 2,00 million Euros.
This Certificate is issued at personal request of Mr [N LASIC] for the purposes of evaluation of the above described property.
29.04.2005
“DTPU” […]
Seal with wording: Public Organisation for services OLNO Export
Signature (illegible)
This document, too, was a copy and there was no explanation of the whereabouts of any original. There was no evidence as to when or how the husband made this alleged “personal request”. The document was dated 29 April 2005, by which time the husband had been in a nursing home for about five years. It seems reasonable to assume that his health did not improve after he was assessed by Dr SC in 1998 and found to have significantly impaired mental and physical capacity. I consider it unlikely that the husband in fact made any “personal request” for a document of this nature.
For these reasons I have real reservations about the authenticity of these two documents. I suspect that the wife engineered their creation, with the intention of bolstering her case. Obviously, it would be to her advantage if she could persuade the court that the husband owned property in the former Yugoslavia worth between one and two million euros.
The wife gave remarkable evidence in cross-examination about these documents; the alleged property in the former Yugoslavia; a prior concession on her behalf that there was no such asset and the agreed fact to that effect. This exchange took place:
“Q: For what purpose were you attaching a typed document purporting to be from [the husband] dated 2005 to your affidavit?
A: Because him and his son, they were looking for the property in his country.
Q: Are you trying to tell this court that there is property in Yugoslavia?
A: Yes. Yes.
Q: Can you explain, then, why twice you have instructed barristers to inform the court that no such property exists?
A: I didn’t say that ever.
I didn’t tell that ever. They said it themselves.
Q: Are you accusing your barristers, both in the hearing before Coleman J, and before the Full Family Court, of making a misstatement to the court contrary to your instructions?
A: That’s right. I told them that that exists, and they said it doesn’t exist, and they were for that not being in existence.”
The wife thus accused her previous counsel of deliberately disobeying her instructions and falsely stating her position both to Coleman J and the Full Court.
My impression was that she realised that her case could well suffer, if she were held to the concession and agreed fact that the husband owned no property in Europe. It seemed to me that she resorted to this tactic to secure an advantage for herself.
This allegation is a very serious slur on the professional ethics of her previous counsel. I reject her evidence as to their conduct, which reflects very poorly on her credit. I would be entitled to find that the husband had no real estate in the former Yugoslavia, at the commencement of the relationship or at any other time, on the basis of the Statement of Agreed Facts alone. The wife’s extraordinary evidence in that issue reinforces this conclusion. I thus find that the husband did not own real estate in the former Yugoslavia prior to the marriage or at any subsequent time.
The wife claimed that she received a gift of approximately A$70,000 from her mother in about 1972. She produced no documents to support this claim, which is perhaps unsurprising given the lapse of time, but the notion of such a gift is inherently credible. I have reservations as to the amount, simply because $70,000 was then a very large sum of money. I accept that she received a gift of money from her mother, in an amount which I cannot quantify.
I had some reservations about the veracity of the wife’s evidence of her use of this gift. In about 1980 the parties purchased Z (“the Z property”) in joint names for $65,000. The wife claimed that she provided the whole of the purchase price from the money which her mother gave to her in 1972. If that evidence is correct, she had preserved intact for seven years almost the whole of the gift of $70,000. This proposition seems to me to be inherently unlikely.
The wife insisted that the husband made no contribution whatsoever to the purchase of the L property, the country units and the construction of a house on the H land. In her affidavit she conceded that he worked as a cleaner until about 1971. She gave no evidence as to how he used his earnings. I am inclined to the view that the husband made his income available to support the family unit during this period.
The wife deposed that the husband received $206,000 in 1982, when he sold the Sydney property, and a total of $260,000 when Lot 3C H was subdivided in 1994. She claimed that he retained all of these funds for his own use. If that is so, it is difficult to rationalise why she subsequently purchased several parcels of real estate jointly with him.
Mr and Mrs Lasic purchased seven properties in joint names between 1967 and 1995. She maintained that he purchased the L land in joint names, contrary to her express wishes and instructions. It seems to me inherently unlikely that he could have done so, given the usual formalities of conveyancing transactions. She sought to explain the additional six joint purchases by asserting that the husband said, on each of these occasions: “Just put me on the title, it’s better for tax reasons. Don’t worry I don’t want anything, what’s yours is yours and what’s mine is mine”.
The wife purchased the units in the country in her sole name in about 1969. She said that she instructed her son R to purchase a block of six flats in Sydney’s suburbs in her sole name in 1995. It is thus obvious that she was capable of arranging the purchase of real estate in her sole name. She must, therefore, have chosen to acquire these six parcels of property jointly with the husband.
It is particularly unusual that the wife opted for joint purchases of the BB and M properties in 1995, if she and the husband were in fact separated at the time. The wife said in her affidavit that they separated in 1986. In the applications for consent property orders and their divorce, they both represented that the separation date was 16 January 1987.
It seems clear that Mr and Mrs Lasic embarked on the establishment of the poultry farm in 1972 as a joint business venture. They leased the land and obtained a loan in joint names. It was an agreed fact that the husband suffered his burn injuries while working in this business.
The apparent pattern of joint enterprise continued with the purchase in 1977 of Lot 3C H, where Mr and Mrs Lasic constructed a new house on part of the property. They both lived in this home, known as W Road, at least until the date of the consent orders in April 1998. It may have been that the husband lived in a granny flat for some of this period.
Mr and Mrs Lasic jointly purchased the Z property in about 1980. In 1983 they jointly acquired the second country property. In about 1994 they sold Lot 3C H and jointly purchased the M property.
It seems likely to me that the husband in fact undertook some income-producing activities after he recovered from the initial effects of his burn injuries. It may well be that he continued to be involved in some kind of farm-based activities until the early 1990s. I draw this inference from a report dated 21 June 1998 by a psychiatrist, Dr SC.
This report was prepared at the request of a firm of solicitors, who instructed Dr SC to assess “[the husband’s] physical and mental health and his competence to give evidence in the District Court on 22 June 1998”. Dr SC first saw the husband on 1 April 1998 and thereafter consulted with him “on a regular basis”.
Dr SC reported:
“[the husband] was referred for psychiatric assessment and assistance by Dr […], GP. I first saw [the husband] on 1 April 1998 and since then on a regular basis; his wife, [Ms Lasic], is also a patient of mine by referral from the same GP who is their family doctor.”
Dr [SC] stated that one source of information for his report was:
“…..a verbal history given by [the husband], corroborated by his wife [Ms Lasic].”
Nonetheless, the wife denied ever having attended a consultation with Dr SC. This exchange took place during her cross-examination:
“Q: Do you know Dr [SC]?
A: Yes. I heard of him. I don’t know him personally.
Q: So you weren’t a patient of his?
A: No.
Q: You were a patient of his, weren’t you?
A: No, never. Never.
Q: You were referred from your general practitioner, weren’t you?
A: No, no.
Q: So you’ve never been to see Dr [SC]?
A: No.”
These outright denials are extraordinary because the wife annexed the report of Dr SC to her affidavit. She thus simultaneously sought to rely on the report to assist her case and to deny that Dr SC accurately recounted his dealings with her. These denials are another example of the general unsatisfactoriness of the wife’s evidence.
Dr SC reported, inter alia:
“His second marriage began well, however, since the 1980s when his physical health gradually deteriorated, he has experienced many problems with his wife and two sons; since the early 1990s [the husband] has been separated from his wife, [Ms Lasic], and has continued to have difficulties with his sons” and
“Recently, [the husband] has concentrated on his maintaining farm, avoiding as much as possible stress from involvement and his disturbing family. Lately, deterioration of [the husband’s] cardiovascular function has resulted in gradual development of a depressive condition.
With his attention to his farm, [the husband] was in possession of a .308 Winchester calibre Ruger repeating rifle. Unfortunately, as his both physical and mental functioning and activities were decreasing due to his poor health recently, he had to curb his activities on the farm and lost interest in such implements as his rifle…..”
Dr SC’s report thus clearly indicated that the husband continued with some kind of farming activities after the burns accident in 1972. As noted, the wife “corroborated” the history provided to Dr SC by the husband. I thus reject her evidence that the husband “never again worked” after the accident in 1972. In my view, this evidence was another attempt by the wife to bolster her case.
The evidence of Mr OJ and Mr LV suggested that the husband did little or no work after the accident in 1972. As noted, their evidence was unchallenged. Mr OJ said in his affidavit that he lived in a granny flat at the poultry farm for an unspecified period from November 1974. He said that he saw the wife working in the business on a daily basis. He said that he noticed that the husband’s hands “did not look normal”. When he asked the reason, the husband told him that he “got burned” but did not elaborate further. He said that he saw the husband at a Serbian club at HP, where he supervised the building of the premises and served as a committee member and president.
Mr LV, who is the husband’s cousin, said in his affidavit that he visited the poultry farm at least once per month for about ten years from 1975. He said that he saw bandages on the husband’s arms soon after the business commenced and that the husband told him “look at me, I am badly burnt and I can’t do any work”. He said that he saw the wife working in the business without any assistance from the husband. He also observed the husband at the Serbian club where he did paperwork, supervised construction of the premises and held official positions. Both Mr LV and Mr OJ said that they saw the husband doing office work at a Serbian church.
Of course, these two gentlemen had only limited opportunities to observe the husband’s activities on the poultry farm. I was not told how long Mr OJ lived at the poultry farm in any event. I have no reason whatsoever to doubt that Dr SC accurately recorded what he was told by Mr and Mrs :asoc about his work activities after the accident. I note that there was no incentive for the wife to minimise the husband’s work activities in 1998 but it is certainly in her interests to do so in these proceedings. In my view, the account of the husband’s work activities given to Dr SC is much more likely to be accurate than is the wife’s evidence in these proceedings. Accordingly, I find that the husband engaged in farm-based activities until the 1990’s. More precise findings as to the extent and duration of his work are not possible on the available evidence.
The husband had available to him approximately $206,000 in 1982 and $260,000 in 1994. I cannot find that he contributed all or any of these funds to the acquisition of the jointly owned properties. All which can be said is that the husband had these funds available and that the wife repeatedly elected to purchase real estate in their joint names, which may indicate that he did contribute some of these funds to the acquisition of these properties.
Another possibility is that the husband used some or all of this money to support himself. I appreciate that the wife alleged that she financially supported the husband “from at least 1972”. I have some difficulty with the notion that she did so between 1986/1987, when she claimed that they separated, and April 1998. It would be surprising if she provided all funds necessary for the support of the husband during an eleven-year period of separation.
I cannot exclude the prospect that the husband used the proceeds of sale of the Sydney and Lot 3C H properties for his own support; for the expenses of the household or as contributions to the purchase of the various jointly acquired properties. It is conceivable that he used this money for a combination of these purposes, which would be consistent with the long history of joint acquisition of real estate.
I am satisfied that the wife worked hard on the poultry farm. She said that the business was sold in the mid-1980s but there was no evidence to corroborate this claim.
The transfer in respect of the Z purchase described the husband as a “poultry farmer” (exhibit DL1 page 10). Similarly, the transfer in respect of the purchase of the second country property in 1983 described the husband as a “poultry farmer” (exhibit DL1 page 14 to the wife’s affidavit). The same description appeared on the transfer in respect of the purchase of the HP property in 1977 (exhibit DL1 page 9 to the affidavit of the wife). He was not described as a poultry farmer on the transfers in respect of the purchases of the M and BB properties in 1995. These descriptions, and the change in 1995, suggest to me that the husband continued with farming activities until the 1990s as reported by Dr SC.
It seems to me that the wife caused the net pool of property as at April 1998 to be reduced by a sum of at least $365,000. She claimed that she instructed her son R to purchase a block of flats in a Sydney suburb in her name in 1992, while she was out of Sydney on a holiday. Instead he purchased the property in his sole name, using money withdrawn from the wife’s account. She maintained that this money came from the sale of the poultry business in 1985, but produced no corroborating evidence.
The son sold this property for $465,000 in October 1998 and apparently retained all of the proceeds. The wife said in her affidavit: “I did not take any proceedings against [R] in relation to the purchase of the [flats], because he is my son”.
There was no evidence of the value of the flats in April 1998 but the son sold the property for $465,000 only six months after the date of the consent orders. That amount is approximately 47% of the value of the net pool of property on 2 April 1998. The wife’s failure to secure the return of the money or the real estate from the son purchased in 1992 thus reduced by almost half the value of the net pool of property in April 1998.
In my view, these circumstances should have been taken into account in arriving at a just and equitable property settlement in April 1998. A sum of at least $365,000, but probably a greater amount, could have been added back to the list of assets and treated as a premature distribution to the wife. Alternatively, this reduction in the value of the net pool of property could have been taken into account in favour of the husband pursuant to section 75(2)(o).
The wife alleged that she made a substantial contribution as homemaker and parent. She suggested that the husband had a cultural expectation that he was not required to attend to domestic tasks and that he devoted considerable time to the Serbian club and church. I am prepared to accept that the wife was responsible for the majority of childcare and housework.
Conclusion As To Contribution in April 1998
I consider that, in 1998, the wife would have received credit for the following contributions:
· her savings from employment in hotels in Europe prior to the marriage
· the gift from her mother in 1972
· her work in the poultry business
· the two awards of compensation for personal injuries sustained in motor vehicle accidents
· her management of the jointly-owned properties
· her role as homemaker and parent
On the other hand, her actions in respect of the flats brought about a significant reduction in the value of the net pool of property.
It is difficult for me to identify the contributions made by the husband, in the absence of any evidence from him or any witness on his behalf. I have referred to examples of attempts by the wife to minimise his contributions, when she must have been fully aware that it would be difficult to contradict her version of events.
The husband owned the Sydney property prior to the marriage and, as noted, I am not satisfied that he appropriated the entire proceeds of its sale to the complete exclusion of the wife. I cannot be certain that the husband received a total of $260,000 when Lot 3C H was subdivided, as I have only the wife’s uncorroborated evidence that he did so. As indicated, I do not accept that he used all of any such money for his own purposes to the complete exclusion of the wife. I accept that he engaged in gainful employment or farm-based activities until the 1990’s.
Conclusion As To Contribution in 1998
On the evidence available to me, I could only conclude that there was a substantial imbalance of contribution in favour of the wife in 1998. I would assess contribution in the order of 70% to the wife and 30% to the husband.
Relevant Section 75(2) Factors in 1998
On the date of the consent orders the wife was 59 years old. There was no suggestion that she suffered any ill-health at this time. On the other hand, the husband was 77 years old and he suffered serious health problems as described by Dr SC in his report dated 21 June 1998.
It is clear that the husband had no capacity at all for gainful employment in April 1998. The same could not be said of the wife, who had a lengthy employment history. Of course, she was approaching an age when she would be entitled to contemplate retirement from the workforce.
According to her affidavit the wife received an unspecified amount of rent for the HP property in 1998. Her evidence was silent as to any rental income from the other properties owned jointly by the parties prior to the consent orders. It seems that Mr and Mrs Lasic both lived at W Road in April 1998, as that address appears in the consent orders. There was thus potential for rental income from the properties located at Z, the second country property and BB property.
Conclusion As To Section 75(2) Factors in 1998
It seems to me that the husband’s age and poor health alone would have entitled him to an adjustment pursuant to section 75(2). As well, there is the issue of the wife’s failure to secure the return of money or the block of flats from her son.
It is problematic that there was no evidence of the husband’s financial needs at the time of the consent orders. It is clear, however, that he had no capacity to generate income and would have been reliant on whatever he received from the property settlement to support himself from that point. The wife, on the other hand, had recourse to income from rental properties.
I see no argument against the addback of the sum of $365,000 to the list of assets, to take into account the wife’s failure to secure the return of at least that sum from her son in relation to the block of flats. It would be generous to her to adopt that figure, since the block of flats was purchased for that amount six years before the consent orders and sold for $465,000 in October 1998.
This approach simplifies the assessment of an appropriate adjustment pursuant to section 75(2). The major factors then are the husband’s poor health and complete lack of capacity to earn income. I consider that an adjustment of 7.5% in favour of the husband would have been warranted in 1998.
Conclusion as to a Just and Equitable Property Settlement in April 1998
It would therefore be my view that the net pool of property should have been found to be valued at $1,355,000 on 2 April 1998. That pool of property should have been divided in the proportions of 62.5% to the wife and 37.5% to the husband respectively. In dollars terms, the wife would have received $846,875 and the husband $508,125.
The Discretion to Make Orders in Substitution for the Consent Orders
It seems to me to be appropriate now to make orders in substitution for the consent orders, if only because the husband effectively received no portion of the net pool of property. I consider that there are two additional cogent reasons for taking that course.
I have found that Mr and Mrs Lasic joined in a dishonest enterprise designed to deprive Mr M of any prospect of securing damages from him. Unless orders are now made in substitution for the consent orders, the trustee will receive nothing and Mr M will continue to be deprived of his now quantified damages and costs.
In my view another consideration which weighs heavily in favour of the exercise of the discretion to make substituted orders is the very substantial increase in the value of the HP property between its purchase in 1977 and the compensation payment in 2002.
Agreed fact 41 was that: “the [HP] property, having been purchased in 1977 for $36,000 had, by 2002, become worth $2,331,932.47 without any improvements being made to that property”. Nonetheless, the wife purported to give evidence in her affidavit as to improvements which she claimed to have made to the vacant land.
Nonetheless, the wife claimed that she purchased an old house, which was transported to the property, at a total cost of $25,000. She claimed that she then spent $30,000 to $40,000 on improvements to the home and the construction of a garage. She produced no evidence to corroborate these allegations. Even if the wife spent this money as she claimed, there was no evidence that these supposed improvements had any significant impact on the increase in value of the property. It seems to me to be highly probable that the substantial increase in the value of the property was due to inflation and/or market forces.
Mr and Mrs Lasic purchased the HP property jointly about nine years after their marriage. It was agreed that the purchase money came from compensation which they received when their jointly owned land at L was resumed in 1974. In these circumstances, I consider that it would be inequitable to allow the wife to retain the full benefit of the increase in value of approximately $2,296,000.
Contributions Between 1998 and the Present Time
As just noted, my view is that the increase in value of the HP property was attributable to inflation and/or market forces rather than any particular action or effort on the part of the wife. Logic dictates that the husband made no contribution to this increase in value. After April 1998 he had no interest in the property and he lived in a nursing home between 2000 and his death in August 2007. The extent of his physical and mental incapacity is evident from the report of Dr SC.
It is clear that the wife was solely responsible for the conduct of the litigation with the RTA over the HP property. As noted, she had been the sole registered proprietor since the 1998 orders and the husband was incapacitated at all relevant times. In my view, she should receive credit for her success in this dispute.
The wife has been solely responsible for the maintenance of the real estate transferred to her pursuant to the consent orders. On the other hand she has had exclusive benefit of all rental income derived from these properties.
It is my view that certain actions of the wife after the consent orders caused a reduction in the value of the net pool of property as at the time of the rehearing. She and her son M were defendants to a claim in the Supreme Court of New South Wales, brought by his former partner Ms G. The way in which they chose to conduct this litigation diminished the value of the current net pool of property by approximately $122,500.
Ms G claimed repayment of a sum of $50,000, which she said that she deposited into the wife’s bank account. The wife disclaimed any knowledge of this alleged deposit but added: “she was hiding this money from child support”. The wife and her son completely resisted Ms G’s claim.
In 2006 the Supreme Court ordered the wife and/or her son to pay $63,866 to Ms G, together with her costs of $47,288. They incurred legal costs of $61,341. The wife said that she paid the whole of the verdict and all costs incurred by both sides in the proceedings. She thus spent $122,495 in excess of the originally disputed amount of $50,000, which she could have repaid to Ms G at an early stage.
Counsel for the intervener submitted that the wife also reduced the value of the net pool of property by her failure to disclose to the GIO her conviction in 1992 for obtaining money by deception. It was said that the consequence was that the GIO refused insurance cover for the injuries to Mr M.
The defence was in evidence (exhibit I2) but it identified a number of other reasons why the GIO resisted the claim. The wife said in cross-examination words to the effect: “The GIO denied insurance and we cross-claimed against the GIO – it was discontinued”. The evidence does not enable me to find that the wife’s non-disclosure was the reason that the GIO refused cover for the injuries to Mr M.
In summary, the wife alone has been responsible for the conservation of the real estate assets between 1998 and the present. Of course, she has had the sole benefit of all rental income generated by these properties as well. She cannot claim credit for the substantial increase in the value of the HP property, which is a significant component of the present net asset pool. There was no evidence that the wife has carried out repairs or improvements to the properties which she received pursuant to the consent orders.
In my view the wife should be given credit for her conservation of the real estate assets for the twelve years since 1998. On the other hand, she and her son brought about a reduction in the value of the net pool of property of about $122,000, due to their conduct of the litigation with Ms G.
The evidence indicated that the husband made little or no contribution to the acquisition, conservation or improvement of the assets after 1998. The reality of his situation was that he suffered from serious physical and mental infirmities and was a nursing home resident from 2000.
Taking these considerations into account, I assess contribution at 75% in favour of the wife as at the date of the rehearing. It is then necessary to determine whether any adjustment pursuant to section 75(2) is warranted.
Section 75(2) Factors
The wife is now 71 years old and claimed that she has been out of the workforce for about twenty five years. She has since demonstrated a capacity to manage and derive income from rental properties. Her evidence was that she currently receives gross rent of $855 per week, from the BB and Z properties. It should be remembered that she voluntarily relinquishes rental income for the M property.
The wife has liquid funds of about $850,000 in her two Asgard accounts and the St George Bank account. As she is 71 years old, she could access the money in her superannuation or pension accounts any time.
The trustee began his attempts to administer the estate of the late Mr Lasic in 2000. He commenced proceedings to set aside the consent orders on 20 January 2005. At all times the wife has resisted making any payment to the trustee, who has incurred professional costs and expenses.
At all times since the consent orders it has been within the wife’s power to rectify the injustice created by the dishonest scheme between her and the husband to deny Mr M damages for his injuries. She chose to resist at every stage, including the retrial before me. Although she consented to the setting aside of the orders, she claimed to be entitled to the whole of the present assets. In the Outline of Case Document her counsel wrote:
“The wife consents to the 79A application but says that the result of any assessment of the parties’ entitlements would lead the court to the same result that was arrived at by the parties when orders were made on 2.4.98. That is to say that she would receive 100% of the assets outlined in Section E of this outline.”
The consequence is that the trustee has had no alternative but to pursue the litigation to the end, if Mr M is ever to receive compensation for his injuries. In the particular circumstances of this matter, I take into account these considerations pursuant to section 75(2)(o). These matters need to be balanced against the wife’s future needs. Effectively, she relies on rental income and savings for her support. I conclude that there should be an adjustment of 2.5% in favour of the trustee. That percentage equals approximately $108,460.
Result
The result is that I conclude that the net pool of property should be divided as to 72.5% to the wife and 27.5% to the trustee. In dollar terms, they will receive around $3,145,362 and $1,193,069 respectively. It is for the wife to decide which assets she liquidates to raise these funds. I propose simply to make an order for payment within three months and to restrain her from dealing with any of her assets, until the trustee receives his full entitlement.
The Case for the Intervener
Mr F is the solicitor who acted for Mr M in the negligence litigation. He asserted a “fruits of the action lien” in respect of his professional costs and sought an order for payment by the wife.
Counsel for Mr F explained the basis of his claim in these terms:
“Orders were made…..that [the husband] pay damages to Mr [M] and pay costs…..”
“Those costs are subject to the equities of a fruit of the action lien, and Mr [F] has property in those costs and that – it’ll be our case that we are a person affected by the consent orders, we are a person affected by such orders as the court will now make, that we have rights in rem, and we’ve argued our position, and been granted leave to intervene.”
“We say the property of [the husband] was impressed with a trust, a springing trust in the nature of a fruits of the action lien…..
With a fruits of the action lien, it gives rise to rights in rem in property as well as in persona. The rights in property trace – so, in other words, when – it will be my case, on behalf of my client, that when [the husband] dispossessed himself improperly of the property to [the wife], that trust carried across – we have rights in rem against that property and therefore we seek our orders. We seek our orders not through the estate; we haven’t proven in the bankruptcy.”
I was referred to a decision of Campbell J in Firth v Centrelink [2002] NSW SC 451. After an extensive review of the authorities, his Honour summarised the relevant law as follows:
“The authorities establish the following propositions concerning this right of the solicitor:
(a)The solicitor’s right exists over money recovered through obtaining judgment in litigation, and also over money recovered through the settlement of litigation: Carew Counsel Pty Ltd v French (2002) 166 FLR 460 at 476 [33]; Roam Australia Pty Ltd v Telstra Corporation Ltd (trading as Telecom Australia) (Federal Court of Australia, Lehane J, 22 September 1997, unreported) at 4.
(b)The solicitor’s right exists over both the amount of a judgment in favour of the client, and the amount of an order for costs in favour of the client: In The Estate of Fuld, Decd (No 4) [1968] P 727 at 736; Twigg v Keady (1996) 135 FLR 257 at 266-267, per Finn J; Re Blake; Clutterbuck v Bradford [1945] Ch 61 (a case concerning a statutory charging order than a lien arising in equity’s exclusive jurisdiction, but dependent on the same principle as the equitable right – see (at 467 [44] supra)).
(c)It exists over money which is in the possession of the solicitor, and also over money which is in court (Re Meter Cabs Ltd [1911] 2 Ch 557 at 562) and money which is owed to the client but not paid into court (In the Estate of Fuld, Decd (no 4); Re De Groot [2001] 2 Qd R 359 at 375).
(d)The solicitor need not be still acting for the client at the time that the money was recovered: In The Estate of Fuld, Decd (No 4); Kelso v McCulloch (Young J, 24 October 1994, unreported); Twigg v Keady (at 289) per Kay J; Roam Australia Pty Ltd v Telstra Corporation Ltd (at 4).
(e)For the right to arise it must be shown that there is a sufficient causal link between solicitor’s exertions and the recovery of a fund of money: Roam Australia Pty Ltd v Telstra
Corporation Ltd (at 4-5); Carew Counsel Pty Ltd v French (at 476 [33]).(f)The quantum of money for which the solicitor has the equitable right is the amount which is properly owing to the solicitor by the client, whether that amount be ascertained by taxation of a bill of costs, or assessment, or pursuant to a costs agreement: Roam Australia Pty Ltd v Telstra Corporation Ltd (at 4). In relation to those situations where taxation is necessary to ascertain the quantum owing to the solicitor, the solicitor’s right exists in the fund prior to the occurrence of the taxation (Johns v Cassel (1993) 6 BPR 13,134 at 13,136, per Hodgson J; Twigg v Keady (at 289) per Kay J; In The Estate of Fuld, Decd (no 4) (at 740); Roam Australia Pty Ltd v Telstra Corporation Ltd (at 6)).
(g)The solicitor’s equitable right exists before the court is asked to intervene to protect it; it ‘arises immediately upon the recovery of monies through the exertions of the solicitor’: Carew Counsel Pty Ltd v French (at 476 [33]); if the lien is over the proceeds of an order for costs, it comes into existence at the time of making of that order for cost: Philippa Power & Associates v Primrose Couper Cronin Rudkin [1997] 2 Qd R 266; Kison v Papasian (1994) 61 SASR 567. If the lien is over the proceeds of a settlement, it arises when the settlement agreement is entered into: Re De Groot (at 368). (These statements concern when the lien comes into existence as an item of present property – they are not concerned with the ability of the solicitor to deal with the rights under the lien as future property before the fund is in existence.)
(h)The right of the solicitor is one which the solicitor can enforce against the client, entitling the solicitor to an injunction to prevent the payment of the fund to the client without notice to the solicitor until such time as the quantum of the solicitor’s entitlement to be paid from the fund is ascertained: In the Estate of Fuld, Decd (no 4). If the quantum of the solicitor’s entitlement has been ascertained, the solicitor is entitled to an order that the amount of his entitlement be paid to him from the fund, notwithstanding opposition from the client: Leamey v Heath [2001] NSWSC 1095 (Campbell J, 22 November 2001, unreported).
(i)The right can also be enforced against people other than the client, in certain circumstances. When the money recovered takes the form of a debt owed to the client, which has been assigned, the right of the solicitor will prevail over the rights of an assignee of the debt, save where the assignee is a bona fide purchaser for value without notice: Re De Groot. (If the assignee is a bona fide purchaser for value without notice, it may be that priorities between the solicitor’s right and the right of the assignee are to be determined in accordance with the rule of Dearle v Hall (1828) 3 Russ 1; 38 ER 475 (see R P Meagher, WM C Gummow and J R F Lehane, Equity Doctrines and Remedies, 3rd ed (1992) Sydney, Butterworths, at 237 [819]ff) or it may be that the court considers who, of the solicitor and the assignee, has the superior equity – Re De Groot (at 368-376) – but it is not necessary for me to consider that matter further.)
(j)If the client is a company which goes into liquidation, the solicitor is entitled, in relation to costs arising from work done before the start of the liquidation, to claim the full amount of the costs from the fund, and is not required to prove in the liquidation: Re Born; Curnock v Born [1900] 2 Ch 433; Re Meter Cabs. This has the same practical effect as enforcing the right against the other creditors of the company. The solicitor’s lien attaches to property recovered through his exertions even if the actual recovery occurs after the client goes into liquidation: North West Construction Co Pty Ltd (In Liq) v Marian [1965] WAR 205 at 211.
(k)Likewise if the client is a natural person who becomes bankrupt, the solicitor is not required to prove in the bankruptcy for the amount of costs incurred, but can recover the costs from the debt which is the result of his efforts: Guy v Churchill (1887) 35 Ch D 489; Worrell v Power & Power (1993) 46 FCR 214. The trustee in bankruptcy takes that debt subject to the equitable right of the solicitor to be paid his costs, and if the amount of the solicitor’s costs exceeds the value of the debt, the debt does not vest in the trustee in bankruptcy at all; if the client is discharged from bankruptcy he can sue to enforce the debt as it never was property divisible among the creditors, and any amount that the client then receives is also subject to the solicitor’s lien: Kison v Papasian.
(l)If the client is the liquidator of a company in liquidation, the solicitor’s lien over property recovered through his exertions is to be satisfied before the statutory order of priorities for distribution of the property of the corporation comes into effect: Jeffcott Holdings Ltd (in liq) v Paior (1995) 18 ACSR 213; 13 ACLC 1, 798.
(m)If the money recovered is held in the solicitor’s trust account, and the solicitor is served with a garnishee notice, issued to enforce a debt which the client owes to another person, the garnishee notice is not effective to attach the money in the trust account, to the extent that the solicitor has a lien over it; Philippa Power & Associates v Primrose Couper Cronic Rudkin. Likewise if the money recovered is held by a third party, and a garnishee notice is served on that third party, the solicitor’s lien prevails over the garnishee notice: Dallow v Garrold; Ex parte Adams (1884) 14 QBD 543.
The Full Federal Court has said that the decision in Ex parte Patience; Makinson v Minister:
‘…..indicates that the lien involves more than a personal right of the solicitor to approach the Court to obtain a charging order, and that the lien arises when the judgment for costs is obtained, and before there has been a taxation of the costs. The assistance of the Court is invoked not to create rights but to enforce them’ (Worrell v Power & Power (at 224)).
In Re Meter Cabs Ltd (at 561) Swinfen Eady J quoted Lord Romilly MR in Re Massey; Re Freehold Land and Brickmaking Co (1870) LR 9 Eq 367; 18 WR 444: ‘Where there is a suit such as that of Kent v Freehold Land and Brickmaking Company, by means of which a fund is recovered to the company, then the solicitor is entitled to claim a lien for his costs on that fund against everyone’ (emphasis added; footnote omitted)
In all these circumstances, it is apparent that the equitable right which a solicitor has to be paid costs and disbursements from the fund which his efforts have recovered, is a kind of proprietary interest in that fund. The fact that the right of the solicitor can survive an insolvency administration of the client, and is (as Sir Frederick Jordan CJ held in Ex parte Patience) assignable, are strong indicia of it being a right of proprietary nature. In Twigg v Keady (at 259) Fogarty J described it is ‘an equitable interest in the fund’. In Colour Point Pty Ltd v Markby’s Communication Group Pty Ltd (Federal Court of Australia, Weinberg J, 27 November 1998, unreported) at 23, Weinberg J said that the equitable right ‘confers upon the solicitor an equitable interest in the fruits of that litigation’.
There are some statements in recent Australian authority which might be thought to cast doubt on whether a solicitor’s lien amounts to a proprietary interest in the fund. In Re De Groot (at 374) Muir J said:
‘There is thus a formidable body of opinion in support of the proposition that where persons such as solicitors, receivers, liquidators and provisional liquidators have expended time and effort in bringing into existence a fund by means of the provision of legal services in litigation or by the realisation of assets, as the case may be, they have an equitable interest in the fund which takes priority over the equitable interests of other chargees and assignees. The authorities, however, are not entirely in favour of such a proposition.’
His Honour then went on to consider authorities which had held that the solicitor’s lien, in some particular circumstances, did not take priority over the equitable interest of certain other persons with an interest in the fund. No doubt was cast, however, on the proposition that the right of the solicitors in the fund amounted to an equitable interest.
In Twigg v Keady (at 290) Kay J said, of a solicitor’s lien:
‘In the words of Jordan CJ, I accept that in practice, the solicitor has always been treated as possessing equitable rights in the judgment independently of any declaration of those rights, and that the court’s assistance is invoked not to create the rights but to enforce them. However, I do not accept that the authorities referred to demonstrate that the equitable right acquired is in the nature of a proprietary right. In cases such as Worrell v Power, Kisan v Papasian and Re Born the right of the solicitor to payment of his costs from the judgment moneys was a right which conflicted with the right of the client’s receiver or trustee in bankruptcy. The conflict was thus one between the solicitor and a party standing in the shoes of the client. The circumstances of each case were such that the solicitor’s right was upheld. In my view the solicitor’s entitlement to payment in such cases differs markedly from an entitlement to trace funds into the hands of a third party.’
With respect, it seems to me that the solicitor’s right concerning the fruits of his effort includes a right closely analogous to the right to trace funds into the hands of a third party. It is the nature of the right which the solicitor has, that he does not have the full title to the asset which has been recovered (save in the circumstance where his claim exceeds the value of the asset), but rather a right to be paid out of the asset. If that is a right which can prevail against an assignee of the asset who is not a bona fide purchaser for value without notice, that is the equivalent, in the context where the solicitor does not have full title to the fund, of being able to trace the funds into the hands of a third party.
Jordan CJ’s chiding of those who call this equitable right of a solicitor a ‘lien’ has not met a sympathetic reception. In Hewett v Court (at 668) Dean J referred to the equitable right as ‘the solicitor’s lien over the proceeds of action’. In Worrell v Power & Power, the Full Federal Court (Wilcox J, Ryan J and Gummow J) referred to the right as a ‘lien’. In Philippa Power & Associates v Primrose Couper Cronin Rudkin, the Queensland Court of Appeal (Macrossan CJ, Derrington J and White J) referred to it as a ‘particular lien’, it being ‘particular’ because it applies only to the particular asset which had been recovered, not to all assets which might be in the solicitor’s possession. In the Supreme Court of South Australia in Banco in Kison v Papasian (at 568), King CJ (with whom Mullighan J agreed) described the right as being ‘an equitable right, often referred to as a lien’. Windeyer J has referred to it as a ‘lien’ in Akki Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470. F Riley in New South Wales Solicitors Manual (2000) Sydney, Butterworths, at [10,545], refers to it as a ‘lien’. So long as it is clearly appreciated that there is a significant difference between equitable liens and common-law liens, continuing to call it a ‘lien’ does no harm. Indeed, given that it is a property right which bears a family resemblance to numerous other equitable rights which are called liens, there is some virtue in continuing with the terminology.
In this discussion of the ‘fruits of the action’ lien, I have not tried to state fully the circumstances in which such a lien might exist. In particular, I have not considered the extent to which such a lien might exist over property other than money, or the extent to which a lien might attach to property which was preserved (rather than recovered) through the efforts of a solicitor.
I should also mention that there was, for many decades, in both England and New South Wales, a statutory right of a solicitor to approach the court in which he or she had prosecuted or defended an action for a charging order over the property recovered or preserved through is or her instrumentality, for his or her taxed costs. In New South Wales, this right arose under s39A of the Legal Practitioners Act 1898. However, in those cases where the solicitor had an equitable lien, that statutory right did not confer any new substantive rights on the solicitor, but was merely a cheap and speedy mode of enforcing the lien which existed under the general law: Re Meter Cabs Ltd (at 561-562); Ex parte Patience; Makinson v Minister (at 101-102). Though there has never been any provision in the Legal Profession Act 1987 which is analogous to s39A of the Legal Practitioners Act 1898, the repeal of s39A of the Legal Practitioners Act 1898 only has the effect that the statutory method of enforcement of the lien is no longer available.
There is no doubt that Mr F has a “fruits of the action” lien over the money owed to Mr M. There would be little or no doubt that his right could have been enforced against property in the hands of the husband during his life, as he had a liability to Mr M. I have some reservations as to whether Mr F’s right attaches to property in the hands of the wife.
The husband’s liability to Mr M came into existence three months after the consent orders of 2 April 1998. The husband thus had no debt to Mr M when the property passed to the wife pursuant to the consent orders.
The fact is, however, that is it common ground that Mr and Mrs Lasic entered into the consent orders for the dishonest purpose of preventing Mr M from obtaining damages and costs from the husband. Inevitably, their actions also deprived Mr F of any prospect of obtaining his costs from money paid or payable to Mr M by the husband.
The property of which the husband wrongfully divested himself is readily identifiable in the hands of the wife, the other party to the dishonest scheme. The rights of no innocent third party would be compromised by an order in favour of Mr F against the wife.
In my view, the wife has no legitimate basis for complaint if she is ordered to pay to Mr F his costs and proper interest. She is simply being prevented from relying on a dishonest enterprise, to which she was a willing party, to keep Mr F out of his entitlement to be paid for his work. I will make an order as sought by Mr F.
The amount claimed by Mr F is $170,412.36, which is calculated as follows:
Interest Calculation on $91,521.50 from 6 October 2000 to 17 July 2009:
16 October 2000 to 31 August 2001 @ 11%
$2,923.66
1 September 2001 to 28 February 2002 @ 10%
$4,538.45
1 March 2002 to 31 December 2006 @ 9%
$39,830.50
1 January 2007 to 5 March 2009 @ 10%
$19,908.98
6 March 2009 to 17 July 2009 @ 9%
$3,001.39
Total Interest Accrued:
$70,202.98
Daily Rate: $39.88
Additional interest accrued since 17 July 2009 @ 9% being $39.88 per day for 104 days to 29 October 2009 $2,346.96
Total Interest Accrued:
$72,549.94
Plus party/party costs of trial and appeal
$91,521.50
Total Due and Owing as at 29/10/2009
$164,071.44
Additional interest accrued since 29 October 2009 @ 9% being $39.88 per day for 159 days to 6 April 2010 $6,340.92
Total Due and Owing as at 1.6.2010:
$170,412.36
There was no submission that there is any error in these calculations. I will order that the wife pay this amount to Mr F within one month.
I certify that the preceding one hundred and forty one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson
Associate:
Date: 7 July 2010
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