Watkins and Needham and Anor

[2007] FamCA 412

FAMILY COURT OF AUSTRALIA

WATKINS & NEEDHAM AND ANOR [2007] FamCA 412

FAMILY LAW - INTERVENTION - Leave to intervene by third party
FAMILY LAW - PRACTICE AND PROCEDURE - Stay - Stay of substantive proceedings pending finalisation of Supreme Court proceedings

Family Law Act 1975 (Cth) – s 90, s 90(1), s 90(2), s 90(3), s 92, s 92(1), s 92(2), s 92(3), s 79, s 117, s 117(2), s 117(2A), Part VIIIAA

In the Marriage of Bailey (1989)13 Fam LR 652
In the Marriage of Biltoft (1995) 19 Fam LR 82
In the Marriage of Prince: General Credits Australia Limited (Intervenor); Attorney-General for the State of Queensland (Intervening); Attorney-General for the Commonwealth (Intervening) (1984) 9 Fam LR 481
In the Marriage of Black and Kelner (1992) 15 Fam LR 343
ASIC and Rich & Anor (2003) FLC 93-171
In the Marriage of Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143
In the Marriage of Coghlan (2005) 33 Fam LR 414
Luadaka v Luadaka (1998) FLC 92-830

APPLICANT: Mr Watkins & Partners Limited

1^ST RESPONDENT: Mrs Needham

2^ND RESPONDENT: Mr Needham

FILE NUMBER: SYF 4097 of 2006

DATE DELIVERED: 4 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Johnston JR

HEARING DATE: 2 March 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marskell

SOLICITOR FOR THE APPLICANT: Clayton Utz

COUNSEL FOR THE 1^ST RESPONDENT: Mr Johnston

SOLICTOR FOR THE 1^ST RESPONDENT: Larcombe Legal

COUNSEL FOR THE 2^ND RESPONDENT: Ms Satala, solicitor

SOLICITOR FOR THE 2^ND RESPONDENT: Page Partners

Orders

1. That Watkins & Partners Limited (WPL) have leave to intervene in proceedings SYF 4097 of 2006 between the wife and husband.

2. That the said proceedings SYF 4097 of 2006 be stayed pending further order.

3. That WPL provide to the solicitors for the wife a bankers guarantee in the amount of $37 000.00 by way of security for the wife’s costs within 28 days of the date of this order.

4. That in default of order 1 that the wife’s Application for property settlement proceed on an undefended basis and that WPL be removed as a party to these proceedings.

5. That in the event that the wife obtains a certificate of costs or an order for costs assessed in a particular amount the wife shall be at liberty to call upon such bank guarantee for payment of such costs.

6. That the bankers guarantee shall be valid for a period to expire after the conclusion of the proceedings including any appeal.

7. That both parties have leave to re-list these proceedings for further directions on 21 days notice.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4097  of 2006

Mr Watkins and Partners Limited

Applicant

And

Mrs Needham and Mr Needham

1^st and 2^nd Respondents

REASONS FOR JUDGMENT

Introduction

1. These are interlocutory proceedings.  A corporation, Mr Watkins and Partners Limited (“[WPL]”) is seeking certain orders in relation to current property proceedings.

2. The property proceedings were filed by Mrs Needham, to whom for convenience I shall refer as “the wife”, on 19 October 2006.  The respondent in those proceedings is Mr Needham, to whom for convenience I shall refer as “the husband”. 

3. The husband and the wife were married in January 1985.  They separated in May 1999.  At that time the husband left Australia to work overseas.  There are two children of the marriage namely a son born in December 1985 and a daughter born in December 1989.  The younger child is in her final year at secondary school.  The children live with the wife.

4. WPL is a law firm conducting business in Kazakhstan and other places overseas.  For a period from approximately April 2004 to March 2006 WPL employed the husband as a legal practitioner.

5. At a time prior to commencement of the property proceedings between the husband and the wife in this Court, WPL had commenced proceedings in the Supreme Court of New South Wales (“the Supreme Court proceedings”) against the husband.  Those proceedings involve alleged breaches of the contractual arrangement between WPL and the husband.  WPL is seeking damages for an amount up to $2 000 000. 

6. On 9 October 2006 Palmer J. in the Supreme Court of New South Wales made a freezing order in effect restraining the husband from dealing with any of his assets in Australia including the former matrimonial home of the husband and the wife at R which is owned jointly by the husband and the wife.  The wife subsequently applied to the Supreme Court of New South Wales for an order, in effect, removing the former matrimonial home from the freezing order but that was unsuccessful.  The husband has defended the Supreme Court proceedings and has been successful in an application that WPL pay an amount by way of security for costs in the sum of $450 000.  The husband has not filed a response in the property proceedings in this Court.  His solicitor has informed the Court that he does not oppose the making of the orders sought by the wife in those proceedings.

Applications

1. On 5 December 2006 WPL filed an Application in a Case seeking orders the effect of which would be to give WPL leave to intervene in the husband’s and wife’s property proceedings in this Court, and to attend the Case Assessment Conference appointed for 6 December 2006.  WPL also sought an order for a stay of the property proceedings in this Court until determination of the proceedings in the Supreme Court or until further order of the Court and certain other orders. 

2. The wife opposes such orders.  In turn, she seeks that WPL pay into Court the sum of $55 000 by way of security for costs and that the Application for a stay of the property proceedings be dismissed as well as certain other orders.  As it turned out, WPL attended the Case Assessment Conference.

Leave to intervene

1. In my view, the first matter for determination is whether it is appropriate for this Court to grant leave to WPL to intervene in the property proceedings in this Court between the husband and the wife.  The application for such leave was vigorously opposed by the wife.

2. It was submitted on behalf of WPL that it is unnecessary for a formal order granting such leave to be made.  This, it was submitted, is on the basis that at the Case Conference the wife conceded that WPL had a right to participate in the proceedings as a party.  On the other hand, it was submitted on behalf of the wife that she had been under the misapprehension that WPL was a creditor of the husband whereas in fact WPL is not a creditor at this point.

3. In my view, it would not assist these parties simply to proceed on the basis that at an earlier point in the proceedings it appeared that the wife had conceded that WPL could be involved as a party in the proceedings in the circumstances referred to above.  No formal leave has been given to WPL to permit it such a status.  In my view, given that the matter is one clearly in issue between WPL and the wife, this matter should be determined on its merits.

4. The relevant provisions are contained in s 92 of the Family Law Act 1975. Sub-section 92(1) provides in effect that any person may apply for leave to intervene in proceedings and the Court may make an order entitling that person to intervene in the proceedings. Sub-section 92(2) provides that such an order may be made upon such conditions as the Court considers appropriate. Sub-section 92(3) provides in effect that where a person intervenes in proceedings by leave of the Court the person shall be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

5. In my view, WPL clearly has an interest in the property proceedings in this Court.  If WPL is successful in the proceedings in the Supreme Court against the husband and some order for damages is made in its favour, it would become a creditor of the husband.  As indicated above, it has the benefit of the freezing order against the former matrimonial home of the husband and the wife.  It is not clear that there is any other Australian property against which such an order could be enforced.  In these circumstances, in my view, WPL has an interest in the property proceedings.

6. There was a submission on behalf of the wife to the effect that it is incumbent on WPL as an interested entity seeking leave to intervene, to set out in the application the substantive orders which it would seek in the property proceedings.  As I informed learned counsel for the wife in response to this submission, WPL has made it clear that it seeks a stay of the property proceedings.  In my view, at this early stage, in the absence of knowing the result of the proceedings in the Supreme Court, it would be impossible for WPL to draft an order sought by it in the property proceedings with any precision.  In these circumstances, in my view, it is not fatal to the application by WPL in this regard that it has not included in the application a detailed order sought in the substantive proceedings.

7. Accordingly, in my view, on the basis that WPL has a proper interest in the property proceedings the application by it for leave to intervene in those proceedings should be granted.

The application for a stay

1. In my view, the more substantial application in the immediate proceedings is whether it is appropriate for an order to be made in effect staying the property proceedings between the husband and the wife pending determination of the proceedings in the New South Wales Supreme Court.

2. In her Amended Application for Final Orders filed on 2 January 2007 the wife seeks the following orders:

   1.That the husband do all things necessary to transfer to the wife at the husband’s expense the real property located at [R] being all of the property described in Folio Identifier […].

   2.That the husband indemnify the wife as to all liabilities which may arise as a result of any business activity he has participated in or is connected with since May 1999.

   3.That pursuant to Section 90AE an order or declaration that any debt found to be owing by the husband to the second respondent namely [WPL]  is a debt owed by the husband alone.

   4.That the second respondent namely [WPL] remove its claim against the family home that is the property referred to in order 1.

   5.That the husband pay the cost of these proceedings.

3. The husband has not filed any Response in the property proceedings and his legal representative has informed the Court that the husband neither consents to nor opposes the wife’s Amended Application for Final Orders.  Accordingly, in my view, in these circumstances were it not for the application for the stay the wife would be in a position to ask this Court to list her Amended Application for Final Orders for an undefended hearing.

Submissions on behalf of WPL

1. It is submitted on behalf of WPL that in the event that it succeeds in the proceedings in the Supreme Court then it would seek to enforce any judgment against the former matrimonial home subject to the wife’s Amended Application.  It is further submitted that in the event that the wife obtains the final orders she seeks she would become the sole registered proprietor of the former matrimonial home.  It is submitted that this would have the effect of precluding WPL from being able to enforce any judgment against the former matrimonial home.

2. It is submitted that the first step for this Court in determining the property proceedings between the husband and the wife pursuant to s.79 of the Act is for the Court to identify what property they own and its value.  Learned counsel for WPL submitted that in such an exercise, the Court has always taken liabilities into account, not only liabilities which are certain or reasonably established but also liabilities which are contingent and which have to be established.

3. In this regard, learned counsel referred to the decisions of the Full Court of this Court in the cases of In the Marriage of Bailey (1989)13 Fam LR 652, In the Marriage of Biltoft (1995) 19 Fam LR 82 and In the Marriage of Prince: General Credits Australia Limited (Intervenor); Attorney-General for the State of Queensland (Intervening); Attorney-General for the Commonwealth (Intervening) (1984) 9 Fam LR 481.

4. Amongst other matters, learned counsel for WPL referred to the following passage from the judgment of Evatt CJ in Prince at page 486:

   The assessment of debts and liabilities is not necessarily arrived at by a strictly mathematical or accountancy approach in all cases.  While some liabilities are charges upon the property which can be accurately assessed at a certain date, others are at large, or have not been precisely determined, eg tax liabilities:  Kelly (1981) 7 Fam LR 762 at 767; [1981] FLC 91-108 at 76,801. In some cases the amount of the liability can only be estimated generally: Albany (1980) 6 Fam LR 461 at 466; [1980] FLC 90-905 at 75,717. The court can make an allowance for a particular liability if appropriate to do so. In some cases there are sufficient uncertainties as to the alleged liability to lead the court to disregard it entirely or partly eg a loan from a parent of the party not likely to be enforced: Af Petersens (1981) 7 Fam LR 402; [1981] FLC 91-095; Quirk (1983) (unreported).  In other cases the court may take the view that because of the circumstances surrounding the incurring of the liability it ought in justice and equity to be wholly or partly disregarded in determining the appropriate order to make under s 79 as between the parties to the marriage.  Such a result could be reached where a spouse had incurred a liability in deliberate or reckless disregard of the other party’s potential entitlement: under s 79 Kimber (1981) 7 Fam LR 483; [1981] FLC 91-085; Kowaliw [1981] FLC 91-092; Antmann (1980) 6 Fam LR 560; [1980] FLC 90-908; Af Petersens (1981) 7 Fam LR 402; [1981] FLC 91-095. Complex issues can arise in regard to liabilities to third parties: see eg Pockran & Crewes (1983) 8 Fam LR 893; [1983] FLC 91-311.

5. It was further submitted that if the wife’s property application was to proceed to an undefended hearing before resolution of WPL’s claim against the husband in the Supreme Court, this Court would have to embark on an assessment of the contingent liability of the husband in relation to such claim.  It was submitted that this would be most unsatisfactory for two reasons.  Firstly, there would be a risk that this Court could make a factual finding in respect of the dispute which is in reality being determined by the Supreme Court.  Secondly, such a course would add to the expense and length of the property proceedings.

6. It was submitted that the appropriate course would be to grant WPL’s application for a stay.  This would enable the amount of liability of the husband to WPL (if any) to be known with precision.  This in turn would enable this Court to determine properly the assets and liabilities of the husband and the wife.  It should also reduce the expense and length of the property hearing.

7. In further support of the case for the stay, learned counsel for WPL again referred to the case of Prince (above) and to the fact that in that case the Full Court granted a stay of the property proceedings to the intervenor pending the outcome of proceedings by it against the husband in the Supreme Court of Queensland about a guarantee allegedly breached by the husband.  Fogarty J said at page 498 as follows:

   It is also my view that it would not be practicable for the wife’s claim under s 79 to be properly heard and determined until the determination of that issue.  The figures referred to previously indicate the considerable impact that the judgment on that issue would have on the husband’s present assets.  I cannot myself envisage how the proceedings in this court under s 79 could usefully be heard and determined until that controversy were finalised.  No doubt this court is accustomed from time to time to take into account prospective liabilities of one party or another; it was not suggested in this case that proceedings under s 79 need to be delayed until all the rights and liabilities of each party in respect of outside claims or debts are determined, but that is a very much different matter from the situation in this case.  It was argued on behalf of the wife that there were other assets of the husband to which the proceedings in this court could be directed.  But, as it was not suggested that the ambit of the wife’s claim or the enforcement of any judgment be so confined, I do not think this alters the position.  Nor was the suggestion of an interim order raised on behalf of the wife, probably because s 79(5) had not come into existence at the time of the decision now under appeal.

   One is left with a strong feeling that the real purpose of the application and subsequent appeal by General Credits is to ensure that it gains some priority over the wife in execution against the husband’s assets.  There is no reason why General Credits, as an unsecured creditor, should gain any such priority, more especially as its cause of action arose after the wife had instituted her proceedings.  On the other hand equally there is no reason why the wife should gain any particular priority over the assets of the husband which may legitimately be the subject of a claim by a third party.  The purpose of the stay is not to give any preference but to provide for an orderly determination of the issues in controversy.  It seems to me that an orderly determination requires the proceedings in the Supreme Court to be heard and determined first.  There is a discretionary power in a court to stay or adjourn a proceeding in that court to await some future event, such as an adjudication in another court (see generally The Atlantic Star [1974] AC 438 at 468; Castantho v Brown & Root (UK) Ltd [1982] 1 All ER 143 at 150-1).

Submissions on behalf of the wife

1. On the other hand, learned counsel for the wife submitted that there was no basis for the granting of a stay.  Firstly it was submitted that the husband has not made a full and frank disclosure of his financial position as required.  It is submitted that on the basis of the decisions of the Full Court of this Court in the case of In the Marriage of Black and Kelner (1992) 15 Fam LR 343 and similar cases, because the husband has not disclosed his financial position the Court would be unlikely to order that the husband share in any part of the former matrimonial home or any part of the wife’s property. It is submitted that in such circumstances the Court should proceed to determine the wife’s property application. It is submitted that WPL could participate in the proceedings and inform the Court what its case against the husband is, apparently alleging some liability by the husband to it incurred after the husband and the wife separated.

2. It is submitted that it is doubtful whether the case of Biltoft and similar cases are still good law in the light of the recent introduction of Part VIIIAA of the Act to provide more power to the Court to hear applications involving third parties.  It is submitted that the clear intention of Parliament in providing these new provisions was to have these types of disputes between a wife and her husband’s creditors or contingent creditors heard by the Family Court of Australia.

3. I accept that the object of the introduction of Part VIIIAA is to enable this Court to make orders which bind third parties.  I am not persuaded however, that it would be appropriate for the proceedings between WPL and the husband to be determined by this Court.  Those proceedings are properly before the Supreme Court of New South Wales.  In any event, I understand those proceedings also to involve other parties.  In my view it would be inappropriate for this Court to endeavour to determine those proceedings.

4. There was a further submission on behalf of the wife as follows:

   In s 79A proceedings brought by creditors of a spouse after s 79 orders between spouses have been made and property has been transferred there is a line of authority in the Family Court which has been followed in the Federal Court of Bankruptcy applying a test that the Court must look at and determine the s 79(4) matters to determine the spouses interest in the transferred property (see Re Sabri; Ex parte Brien (1997) FLC 92-732 per Chisholm J and see Official Trustee in Bankruptcy v Higgins (2000) 28 Fam LR 132, Taberlain J. In a further decision by Tamberlain J in Mateo v Official Trustee in Bankruptcy (2002) 28 Fam LR 499 his Honour once again followed Re Sabri.).

1. Learned counsel for the wife also referred to ASIC and Rich & Anor (2003) FLC 93-171. It appears that these authorities were cited in an endeavour to cast doubt on the continuing correctness of the principle in the cases of Bailey, Biltoft and Prince.  I am not persuaded by the submission that the principle set out in these cases is no longer good law.  In my view, as set out in those decisions, the principle remains that the first step in determining proceedings pursuant to s 79 of the Act is to identify the property available for division.  In my view, one needs only to consider relatively recent authorities such as In the Marriage of Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143 and In the Marriage of Coghlan (2005) 33 Fam LR 414 to be confident about this principle.

2. In Hickey, the Full Court said as follows at page 370 (Fam LR):

   The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s 79.  That approach involves four inter-related steps.  First, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. …

3. In Coghlan, the Full Court said as follows at page 428 (Fam LR):

   Nothing we have said in this judgment would prevent a court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79 …

4. In my view, in order for the Court to identify the property of the husband and the wife in the s 79 proceedings it will be necessary also to identify any liabilities of the parties.  Whether the husband will have a liability to WPL is yet to be determined by the Supreme Court.

5. It was also submitted on behalf of the wife that if a stay of the s 79 proceedings is granted, this will prejudice the wife.  It is submitted that there are a couple of aspect to this.  Firstly, the wife is feeling anxious and somewhat insecure as a consequence of the litigation and she would like to have it completed as soon as possible.  Secondly, the wife has to provide support for herself and the children and she would like to be able to reduce the hours she works as a solicitor.  It is suggested that such could be achieved if she was able to sell the home because this would provide her with a capital sum from which she could support herself and the children.

6. On the other hand, it is submitted on behalf of WPL that if the stay is not granted it could suffer severe prejudice.  This is for the reason that it might turn out that the husband owns no, or insufficient, assets other than his interest in the property the subject of the s 79 proceedings from which a judgment against him in favour of WPL could be enforced.

7. I am not persuaded that the prejudice which it is alleged would flow to the wife from a stay would be such that it would outweigh that possible on the other side.  After all, the wife has not sought until recently, and at a time after WPL commenced its action against the husband in the Supreme Court, to engage the husband in any formal endeavour to resolve their property situation.  The wife said that this was because there has been an understanding between the husband and her that she would be permitted by the husband to occupy the home exclusively of him and that he would transfer his interest in the home to her.  The wife said that in these circumstances there was no need to attend to the obtaining of formal orders.

8. It appears to me that there is no particular reason for the wife to require an expeditious determination of her property proceedings other than to bring the litigation with the husband to an end and to ensure that there is little possibility of her equity in the home being reduced as a consequence of the claim by WPL.  The stay would not prevent the wife and children being able to continue in occupancy of their home.  In fact it is conceded on behalf of the wife that she does not wish to sell the home in the near future.

9. In all these circumstances, in my view, the order for a stay of the s 79 proceedings should be made.  As Fogarty J. said in Prince, there should be an orderly determination.  In my view such an orderly determination would require that the proceedings between WPL and the husband be determined by the Supreme Court before determination of the property proceedings by this Court so that this Court will be in a position to know what the husband’s assets and liabilities are and thereby be in a position to be able to arrive at a just and equitable order.

Security for costs

1. In her Response to an Application in a Case filed on 2 January 2007 the wife sought an order to the effect that WPL pay into Court the sum of $55 000 by way of security for her costs.  At the hearing the wife sought to amend this so as to seek the following orders in the event that the Court gave leave to WPL to intervene in the property proceedings and in the event that such proceedings were stayed:

   1.Order that [WPL] provide to the solicitors for the wife a bankers guarantee in the amount of $37 000.00 by way of security for the wife’s costs within 28 days of the date of this order.

   2.Order that in default of order 1 that the wife’s Application for property settlement proceed on an undefended basis and that [WPL] be removed as a party to these proceedings.

   3.Order that in the event that the wife obtains a certificate of costs or an order for costs assessed in a particular amount the wife shall be at liberty to call upon such bank guarantee for payment of such costs.

   4.Order that the bankers guarantee shall be valid for a period to expire after the conclusion of the proceedings including any appeal.

2. Learned counsel for WPL informed the Court that there had been some narrowing of the issue concerning security for costs.  It was agreed that if the Court considered the circumstances of this case to justify an order for security for costs then there was agreement that the amount should be $37 000.  But WPL did not agree that this should be by way of banker’s guarantee and WPL did not agree with order 2 proposed on behalf of the wife.

3. In the case of Luadaka v Luadaka (1998) FLC 92-830 the Full Court of this Court considered the circumstances in which it was appropriate for an order for security for costs to be made. The Full Court made it clear that the relevant provisions are contained in s 117 of the Family Law Act 1975, that such an order is discretionary and that the discretion is unfettered (see pages 85,501, 85,507).

4. Sub-section 117(2) of the Act provides as follows:

   If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

5. Sub-section 117(2A) of the Act provides as follows:

   In considering what order (if any) should be made under subsection (2), the court shall have regard to:

   (a)the financial circumstances of each of the parties to the proceedings;

   (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

   (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

   (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

   (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

   (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

   (g)     such other matters as the court considers relevant.

6. In broad terms, the wife’s financial circumstances are that she is a solicitor operating her own legal practice and earning weekly income of $800.  The wife estimates her weekly expenditure on her personal needs as being $700.  Apart from the former matrimonial home which is the subject of the freezing order, her assets consist of some modest savings, a 1993 Volvo motor vehicle, her business, the contents of her home, her jewellery and some superannuation the total value of which the wife estimates as being $73 000.  The wife estimates her liabilities as being a total of $25 000 for a personal loan and some outstanding credit card liabilities.  I accept these estimates for the purposes of these proceedings.

7. On the other hand I am not aware what the financial circumstances of WPL are.  It is a foreign corporation registered in the Republic of Kazakhstan.  It has been ordered by the Supreme Court to pay $450 000 by way of security for costs in these proceedings. 

8. The application by the wife is really on the basis that WPL being a foreign corporation with apparently no assets within Australia, there is no way obvious to the wife by which an order for costs in her favour might be able to be enforced.  Clearly this is a relevant matter.  I note that difficulty of enforcing an order for costs was specifically referred to as a relevant matter in Luadaka (at pages 85,503 and 85,508).

9. As the Full Court said in Luadaka at page 85,507:

   The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other.

10. In my view, the circumstances of this case, particularly the possibility that if an order for costs was made against WPL in favour of the wife it might be difficult, or even impossible, for her to enforce such order, are such that in my view, it is appropriate to exercise the Court’s discretion to make an order for security for costs.

11. There was some issue about the form of such an order.  Learned counsel for WPL indicated that he had no instructions about whether the funds should be provided by banker’s guarantee.  There was a suggestion that funds could be paid into Court.  But this Court does not have facilities for receipt of funds of this type.

12. WPL also opposed proposed paragraph 2 of the orders as sought by the wife above.  It was submitted that if WPL failed to provide the bankers guarantee, rather than be subject to such a self-executing order, it should be able to re-list the proceedings presumably with a view to seeking an alternate order.

13. In my view, in the circumstances of these proceedings, the order as sought by the wife at paragraph 2 is appropriate.

14. Accordingly, in my view, the wife has made out this part of her application.

Conclusion

1. The result is that WPL is to be given leave to intervene in the property proceedings, these proceedings are to be stayed and the order for security for costs sought by the wife will be made.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judicial Registrar W P Johnston.

Associate:     …………………………
  Annette Hatton

Date:              4 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WATKINS & NEEDHAM AND ANOR