Winn and Winn and Anor
[2008] FMCAfam 112
•5 March 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WINN & WINN & ANOR | [2008] FMCAfam 112 |
| FAMILY LAW – Property – husband the subject of a sequestration order since the filing of the application – husband did not appear at the proceedings – sizeable financial contribution by each of the applicant and respondent at the commencement of the relationship. |
| J & J [2006] FamCA 951 Townsend & Townsend [1995] FLC 92-569 In the Marriage of Weir (1992) 110 FLR 403 |
| Applicant: | MS WINN |
| First Respondent: | MR WINN |
| Second Respondent: | TRUSTEE IN BANKRUPTCY |
| File number: | BRM 9181 of 2005 |
| Judgment of: | Burnett FM |
| Hearing date: | 31 May 2007 |
| Date of last submission: | 31 May 2007 |
| Delivered at: | Brisbane |
| Delivered on: | 5 March 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamwood |
| Solicitors for the Applicant: | Oric Legal |
| The First Respondent appeared on his own behalf |
| Counsel for the Second Respondent: | Mr Coulsen |
| Solicitors for the Second Respondent: | Rick Jones & Associates |
ORDERS
That the Applicant submit a minute of order giving effect to the rulings in this judgment and that such draft be submitted to the Court and the trustee within fourteen (14) days of today’s date.
That the trustee either consent to draft terms of order submitted by the wife or arrange for the matter to be re-listed within seven (7) days for mention.
IT IS NOTED that publication of this judgment under the pseudonym Winn & Winn is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRM 9181 of 2005
| MS WINN |
Applicant
And
| MR WINN |
First Respondent
And
| TRUSTEE IN BANKRUPTCY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this proceeding the Applicant Ms Winn, the wife, makes application for property settlement in respect of her marriage to Mr Winn. Since filing the application the husband has been the subject of a sequestration order and accordingly his trustee is also a party to the proceeding.
At the trial of the proceeding the husband did not appear. I am satisfied that he has been served and that despite service he chose not to appear. In any event the Trustee of the husband’s estate in bankruptcy did appear although he called no evidence and relied only on the affidavit material filed in the husband’s response at a time when the husband was solvent.
Background
The wife is 50 years of age. The husband is 52. The parties commenced cohabitation in about December 1996 and married in April 1997. During the course of their marriage there was a brief period of separation for nine months from January 2004 until September 2004 but they briefly reconciled before the parties finally separated on 23 March 2005.
There were no children to the marriage although each of the husband and wife had children to their previous marriages. None of those children resided with the parties during the marriage.
At the time the parties commenced cohabitating the wife was employed as an administration clerk at the P Services on a full time permanent basis. At that time she owned a property situated at Property K, New South Wales which property she had owned for about 10 years. She had purchased it for about $53,000 made up of borrowings from a friend ($3,000) and the balance from St George Building Society ($50,000). Although she had used that home as her principal place of residence by the time she commenced cohabitation with the husband the house was no longer occupied by her but rather used by her as a rental property. At about that time the house was worth approximately $120,000 and about $43,000 remained payable under the mortgage.
When the husband met the wife he was then working as a contractor truck driver. A short time before they met he had had a heart attack and was recovering from triple bypass surgery. He was not working at that time but was in receipt of a disability pension. In his affidavit he stated that at the time of commencing cohabitation he was a part owner of a property located at Property G, New South Wales. He maintained that his equity in that property was approximately $90,000 and that after its sale he received $79,000. That sum he says was paid into his National Australia account at G and the balance into his Commonwealth Bank account at E. He also said he had approximately $150,000 in cash and owned a sports sedan worth about $20,000. He also maintains that he had approximately $350,000 in other savings accounts which sums had been attained by him through the sale of various trucks which he owned and operated in his trucking business until February 1996. All up he says he contributed $520,000 to assets at the commencement of the relationship.
The husband maintains that the wife had a negative net worth at the commencement of the relationship. I have no reason to disbelieve the wife’s evidence concerning her financial position at the commencement of the relationship. Indeed so much appears to be objectively supportable in the context of the wife having sold the Property K house in 1998 for a sum of $120,000.
The wife acknowledges that shortly after they commenced cohabitation the husband transferred to her a sum of $40,000 in cash to pay out her mortgage. The fact that the husband had that sum of money at the outset of the relationship lends some support to the husband’s evidence that the other sums he deposed to have owned were also in existence.
During the course of the relationship the husband continued to be incapable of working and was cared for by the wife while she continued to work fulltime. It appears that the husband had liabilities from his previous business undertakings and that shortly after their marriage tax debts payable by him to the Commissioner for Taxation crystallised. She swears that these tax debts were paid off initially by the husband on credit card and that she contributed to paying off his credit card debts over a period of time. She believes that the tax debt was in the order of $20,000 to $30,000.
In 1997 the wife purchased a new Hyundai vehicle. She traded in her Ford vehicle as part payment for this vehicle. The new vehicle cost $16,400 in respect of which she received a trade in price of $7,785. The purchase price was paid off by monies that she had kept aside in anticipation of that need. Later that year the parties also travelled to Vanuatu where they took a holiday. The wife says each party paid their own costs for that excursion.
In 1998 the parties moved to Bundaberg and purchased a block of land at Property M for approximately $23,000. The wife says she then sold Property K for $120,000 and the sale proceeds were applied to the costs of building a house on the Bundaberg land. The construction costs were $115,000. In addition a further $50,000 was borrowed from the Commonwealth Bank for application to other incidentals related to construction costs. In addition part of that sum was applied to the purchase of a Holden utility for the husband. Throughout this period both the husband and the wife were in receipt of unemployment benefits and disability pension benefits respectively. The wife says that for a two year period from about 1998 to 1990 the husband had permanent work for only approximately six months. She says he found it difficult to obtain employment as he was unable to get a health certificate due to his heart condition. This certificate was necessary to operate heavy machinery. She said that he presently engaged himself preparing trucks for a Brisbane company and that on occasions he would travel to Sydney and undertake some cash paying work for a friend driving and repairing trucks. The wife says that during this time the husband would keep the income that he had earned and give the wife about $100 a week by way of contribution to housekeeping and living expenses. In the meantime the wife worked two nights a week earning money as a waitress to supplement her Centerlink benefits.
In about 2000 the husband and wife decided to relocate to the Sunshine Coast. There the wife commenced her own contract cleaning business trading under her own name. She worked in the Noosa area for
12 months and the income varied from between $1,500 to $2,000 per month. She says that she deposited all her wages directly into the husband’s bank account and that all living expenses were then paid from the husband’s credit card. She says that through this period she did not operate her own account. This employment continued until early 2004. The wife says she had to cease work at this time due to the physical and psychological injuries suffered at the hands of the Respondent.
Whilst on the Sunshine Coast the parties initially lived in rented accommodation. Subsequently they decided to purchase a property being a unit situate at Property W. The unit cost them $125,000 and was purchased in joint names.
In about early 2002 the husband and wife borrowed approximately $25,000 from the Commonwealth Bank to buy a truck and bobcat from E Pty Ltd so that the husband could obtain more consistent paying work. The unit at Property W was used as security for that loan.
In July 2003 the parties sold Property M for $220,000. The excess of sale price over debt was applied to the discharge of the husband’s National Australia Bank credit card debt. The wife says the husband ultimately provided $20,000 to her which she then applied to refurbishing and renovating the unit at Property W with the balance going on a trip to Bali and other general household expenses.
Throughout the relationship the husband involved himself variously with bobcat and earthmoving ventures. In particular in late 2001 early 2002 he purchased a bobcat from E Pty Ltd together with a truck. The borrowings for that acquisition were funded by jointly borrowed monies. Eventually his repertoire of clients extended beyond E Pty Ltd and he sourced other businesses. The wife says that at this time he was earning in excess of $1,000 per day and that many weeks he worked seven days a week.
In addition the husband frequently bought and sold trucks, motor vehicles and earthmoving vehicles for cash. He would frequently repair vehicles and place them at car yards on consignment. It appears from the wife’s material that this proved to be a very profitable sideline for the husband.
Throughout his time with the wife the husband was in receipt of significant sums of cash. The wife noted that from time to time the husband had thousands of dollars in cash in his work case. She stated that the sum of $10,000 in cash in his work bag was not unusual. The wife says that the husband was quite meticulous in the manner in which he documented and recorded all material matters. Even though the material annexed to the wife’s affidavit can only support half her assertions the level of particularity contained in those materials including bank statements and bank card statements lends support to the wife’s assertions concerning the husband’s particularity in recording these transactions. It also lends support to her assertions that the husband was engaged in other activities. See for instance the number of transactions involving S Autos evident in exhibit BJW21 over a period of less than a week which would suggest that on no less than five occasions he visited that store to acquire merchandise related to motor vehicles. That would not be inconsistent with activity related to renovation of motor vehicles for sale.
Asset Pool
At the time of separation the wife believed the following were the assets held by the parties.
Property W unit
$285,000
1996 Hyundai motor vehicle
$5,000
Wife’s furnishings and household items
$3,000
Wife’s savings cash
$7,000
Wife’s superannuation
$3,440
Husband’s Ford Falcon Fairmont 2000 model sedan
$8,000
Ford Red Laser 1987
$5,000
Ford Sedan White Fairmont
$5,000
Ford Fairlane Gia 1993
$20,000
Late model red Ford Fairmont
$15,000
Red Toyota Camry 1988
$5,000
Viscount Newport 4 berth caravan 2003
$20,000
White Jeep Cherokee Sedan
$18,000
2 AOKCCO International single axle tip trucks
$40,000
1 x ½ tonne Komatsu excavator
$15,000
1 baby Toyota bobcat SDK4
$12,500
1Twin cab flatbed truck
$6,000
1 car trailer
$3,000
2 bobcats 573
$40,000
1 Isuzu tip truck
Unknown
1 twin cab work utility
$8,000
1 water carting truck and tank
Unknown
Various Cleanaway trucks
Unknown
Workshop tools
$20,000
1.3m LG rear projection television screen
$2,154
1 DVD and video combination
$600
Cash
$150,000
Household fittings and furnishings
$15,000
Savings in Commonwealth Bank account 0xxx
$45,544
Superannuation
Unknown
Bobcat Hire business (goodwill)
$10,000
Share in racehorse
Unknown
Outstanding business debtors
Unknown
Total
$664,398
Concerning the list of property I accept the wife’s estimate of her assets. The list of assets provided in respect of the husband require closer scrutiny.
In his affidavit the husband denies having any assets that extend beyond the pool of the wife’s assets. Curiously however he does note that his liabilities include various credit card debts including debt to the ANZ and National Banks.
In her affidavit material the wife exhibits registration information relevant to the Ford Laser Hatchback, Ford Fairlane Ghia, late model Ford sedan, Toyota Camry, Jeep Cherokee, Isuzu tip truck and the Viscount Newport caravan. None of these matters were disclosed by the husband in his affidavit material.
The evidence clearly demonstrates that the husband engaged in the activity of buying and selling motor vehicles on a regular basis. That included not only motor vehicles but earthmoving equipment and other machinery. For instance some of that equipment was obtained by payment in kind for services provided.
Mr R, the wife’s son-in-law says that the husband told him that for instance someone had paid him for a job by giving him a half tonne Komatsu baby excavator worth about $20,000. He said that when the husband was not working on earthmoving jobs he noticed that he was working repairing trucks and other vehicles and that for that purpose he had a workshop under his house at Property B. He said that he worked on those vehicles a lot and that in his view he was a very good mechanic. He said the husband had told him he had a business on the side where he repaired trucks and other vehicles and did them up and resold them privately for a profit. It was in that context that Mr R says that he was asked by the husband to assist in undertaking various jobs which the husband was unable to handle. As Mr R was an earthmover this was a perfectly good arrangement for Mr R. He said that when he worked for him on jobs he noted that the husband worked “full on, non-stop”. He says that by reason of his employment with the husband he knew the husband to have at least the following equipment which included:
·one ½ tonne Komatsu baby excavator;
·one baby Toyota bobcat;
·two AOKCCO international single axle trucks;
·one twin cab small flatbed truck;
·one car trailer;
·two 573 or 571 bobcats.
He said they were all in good working order and that much of the equipment was parked under the house at Property B
Additionally he said that the husband repaired motor vehicles. In particular he recalls the husband having a white Fairmont, a Ford Ghia, a small red car and a late model red Fairmont. Records held at the Department of Main Roads and exhibited by the wife verify the husband as having owned at least 3 of the 4 vehicles which were referred to by Mr R. Given they were held at various times the registration details support the evidence that the husband bought and sold vehicles.
Given the number of vehicles which were registered in the name of the husband I accept that he was indeed engaged in the business of buying, restoring and on-selling vehicles for profit. Likewise I accept he undertook the same sort of activities in respect of equipment. In any event he required basic equipment to perform his duties as an earthmoving contractor. The equipment detailed by Mr R would have been required for that purpose. I accept the husband had that equipment.
Many of these assets have not been the subject of formal valuation. However valuations based upon the internet entity carsales.com.au were provided. Given the valuations of this kind were the only valuations provided and they were unchallenged I consider it appropriate to act upon them: J & J.[1]
[1] [2006] FamCA 951.
The trucks and vehicles have a value of $122,150 as detailed below:
FF Hino Tipper
$10,000
GD Hino Tipper
$10,000
Ford Falcon (2000)
$2,700
Toyota Camry (2004)
$2,100
Jeep Cheroke (2003)
$11,000
Jeep Cheroke
$9,400
Ford Fairlane (2004)
$4,100
Ford Sedan (2005)
$9,400
Ford Laser (2005)
$2,200
Ford Fairlane (2004)
$4,100
International Acco Truck (3005)
$23,700
Isuzu Tray Truck (2005)
$7,900
Isuzu Tip Trick (30050
$13,050
Isuzu Truck (1999
$12,500
$122,150
Property W unit
$285,000
1996 Hyundai Motor Vehicle (wife)
$5,000
Wife’s furnishings
$3,000
Wife’s superannuation
$3,440
Husband’s motor vehicles (as per table above)
$122,150
Viscount caravan
$20,000
½ tonne Komatsu Excavator
$15,000
1 baby Toyota bobcat SDK4
$12,500
2 bob cats 573
$40,000
Workshop tools
$20,000
1.3m LG rear projection television
$2,154
1 DVD/video combination
$600
Cash
$150,000
Household fittings and furnishings
$15,000
Savings in CBA account 0xxx
$45,544
Bobcat hire business (goodwill)
$10,000
$756,388
The wife has not produced any documentary evidence in relation to all the other assets. However having raised the spectre of these assets being in existence the husband now carries the onus of rebutting that evidence. This is particularly so in the context of financial material which is relevant to a case in which ordinarily would be solely in the hands of the husband and which he has failed to disclose. Upon that basis I should not be unduly cautious about making findings in favour of the [wife].[2]
[2] In the Marriage of Weir (1992) 110 FLR 403
In the premises I am prepared to find the assets as asserted by the wife existed.
Although many of the vehicles have been disposed of I consider the circumstances surrounding their disposition and the general failure to account constitute a premature disposition of matrimonial property in the nature of an add back that should be allowed for in any event.[3]
[3] Townsend & Townsend [1995] FLC 92-569 p 81,654.
Likewise a Commonwealth Bank savings account number 0xxx in the name of the husband had a balance prior to separation of about $45,544. There have been significant draw downs on that account since separation. Some of the withdrawals upon the account have been for significant sums. For instance $6,500 was withdrawn on 6 May 2005; $18,000 on 27 May and $4,500 on 16 June 2005. There has been no explanation for these draw downs and they do not appear to be reasonable. In my view they constitute a premature disposition of the matrimonial pool and should be added back.
The other matter outstanding concerns the sum of money estimated by the wife. She estimates that the husband had $150,000 in cash at the time of separation. In her evidence she gave evidence concerning the significant cash income received by the husband in the operation of his earthmoving business. In particular she deposed to bags of cash being evident in the household prior to separation and which were removed upon his departure from the household.
The use of cash was something often publicised by the husband. For instance he informed the wife’s son-in-law, Mr J of these matters, including paying him by cash for certain jobs that he had him do.
In addition the wife in her affidavit filed 23 May 2007 details cash withdrawals which were made on both the ANZ Gold Visa account and the Commonwealth Bank account from January 2005. Cash withdrawals from those accounts totalled $91,915.
The wife acknowledged that at the time of separation credit card debt should have totalled approximately $52,500. It follows that there has been a significant further draw down on those cards since separation.
Having regard to the matters above I accept that the property pool at the time of separation approximated at $736,388 and continues to be of that order.
Contributions
Financial contribution
Each of the Applicant and Respondent made sizeable financial contributions at the commencement of the relationship. The sizeable financial contribution by the husband in particular although not explained by him appears in all probability to have provided him with the necessary capital to make the equipment acquisitions which were subsequently made by him during the course of the marriage. Although efforts to locate that equipment since the husband’s sequestration have been unsuccessful I do not accept that that failure was occasioned by the non-existence of that equipment.
In his statement of affairs to his trustees the husband stated that he did not own any vehicles. The trustee’s searches revealed that the husband was the last registered owner of the International AOKCCO truck and the Isuzu truck. The trustee appears to have accepted the husband’s advice that in respect of the AOKCCO truck it was subject to finance and that the Isuzu truck had no economic value. Those assertions are contrary to the evidence of Mr R who says that those trucks were employed by the husband at a time when Mr R worked for him. In respect of the International truck in particular I find the trustee’s investigations reveal a curious fact, namely that someone advanced monies to the husband to purchase a truck but yet no security was recorded in respect of that advance. At least none appears in any public register. With respect to the trustee a more likely situation is that the husband has secreted those vehicles to avoid both claims by his creditors and by the wife.
Accepting the above there appears to have been a broadly equal financial contribution made directly by each of the parties to the acquisition and conservation of matrimonial property. The parties engaged in the buying and selling of various properties throughout the course of their marriage and also I accept the wife’s evidence that in respect of at least the sale of Property M some funds remain unaccounted for. Otherwise it appears that profits on the acquisition and disposition of properties appear to have been accounted for to the matrimonial estate.
Throughout the marriage the wife was employed in various capacities. Ultimately she conducted a successful cleaning business until she was unable to continue working because of the effects of domestic violence perpetrated upon her. In particular the husband was violent to her and engaged in assaults upon her in February 1997, June 1997, between September 1997 and September 1998, January 1998, between September 1998 and 1999, November 1999, New Year’s Eve 1999, between 2000 and 2004 and between January 2005 and March 2005. The assaults effected by the husband upon the wife were cowardly and at times vicious. For instance after the events of June 1997 the wife had black eyes, split and swollen lips and a sore throat for a number of weeks following. The incident in January 1998 resulted in the wife suffering a broken nose and broken ribs. The events between 2000 and 2004 resulted in the wife being diagnosed with two dislocated discs and an exposed nerve. Those injuries resulted in her being forced to cease her employment from about January 2004 because she was unable to engage in heavy lifting tasks. The events in January 2004 resulted in the wife spending a week in hospital. Another incident in December 2003 resulted in the wife suffering a perforated ear drum. Many of these events are verified by the wife’s daughter Ms A. I have no reason to disbelieve either the wife or her daughter in respect of the manner in which they recite these events. These events no doubt imposed an additional burden upon the wife in making her contributions to the marriage more arduous particularly in her role as carer and homemaker for the husband who periodically suffered poor health.
The violence perpetrated by the husband upon the wife has significantly interfered with the wife’s enjoyment of the amenities of life; it has impacted upon her capacity to undertake future employment.
In terms of non-financial contribution made by each of the parties either directly or indirectly to the acquisition, conservation and improvement of the property I note in particular that the wife was engaged in various activities relevant to the maintenance of the house and properties which the parties owned. In particular she appears to have been principally responsible for financial transactions relevant to their general overall management.
In terms of contribution by the parties to the welfare of the family constituted by them including contributions made in the capacity of home maker the wife appears to have assumed the greater burden of those obligations. I accept the evidence of Ms A that the husband’s attitude and treatment of the wife was particularly chauvinistic and consistent with that attitude he made little or real effort to participate in home making activities.
In the circumstances I consider that premised upon the section 79(4) contribution factors there should be an allowance of 60% to the wife and 40% to the husband.
Section 75(2) factors
Section 75(2)(a)
The wife is presently 51 and the husband 50. Each suffer from health difficulties. In particular the wife suffers health difficulties associated with injuries suffered at the hands of the husband. The husband has a longstanding heart condition. It appears however that the husband’s heart condition has not inhibited his capacity to undertake gainful employment either as a machine operator or engaging in the activity of buying, repairing and on-selling machinery and motor vehicles for sale.
Section 75(2)(b)
The wife is now a disability pensioner. Aside from the assets which she takes from the marriage she has no other financial resource. Nor does she have any physical capacity to obtain appropriate gainful employment. On the other hand the husband has not been forthcoming in respect of his true financial position. He has not accounted property to his trustee in bankruptcy and has not informed the Court in a proper way of his true financial circumstances. I accept the evidence of others including his wife’s son-in-law that the husband is physically and mentally capable of obtaining appropriate gainful employment either in the acquisition, repair and on-sale of second-hand equipment and motor vehicles and also in the conduct of earthmoving operations. His potential in that regard is clearly evident although he may not presently choose to reveal those matters.
Section 75(2)(d)
In her financial statement the wife notes that her weekly financial expenditure totals $265 against an average weekly income of $235.
I note the $235 income is that income which she presently receives as rental on Property W. That source of income will cease once these proceedings are concluded. She should then be eligible for a pension which should roughly approximate with that sum. There is no material before the Court concerning the husband’s needs and commitments to support himself.
Section 79(4)(f)
The wife would be eligible for a disability pension. The husband in any event also claims on previous occasions to have been in receipt of such a pension although his present status is unknown.
Section 74(d)(g)
Although the husband and wife did not live an extravagant lifestyle it is apparent that they enjoyed a lifestyle consistent with people in middle age free of the incumbrance of children and debt. They were able to acquire a number of properties and on occasion travel overseas. The wife and husband should each be able to maintain that standard.
Section 79(4)(ha)
In this case the husband has been the subject of a sequestration order and owes approximately $70,000 in credit card debts. Much of the debt is debt which was incurred after separation of the parties and to that end the wife should not be significantly penalised on account of that liability to the husband’s banks.
Section 75(2)(j)
Throughout the marriage the wife contributed to the income earning capacity and property and financial resources of the husband by the provision of her income which was applied principally to meeting household expenses. The husband was very secretive in the manner in which he brought his income to account.
Section 75(2)(k)
The marriage lasted approximately 10 years. It has significantly affected the earning capacity of the wife.
In the circumstances I consider an appropriate allowance for Section 75(2) factors to be an additional 15%. This factor takes into account particularly the adverse impact upon the wife’s earning capacity occasioned by the assaults affected by the husband upon her.
Just and equitable
Overall it is necessary for the Court to have regard to what is just and equitable between the parties. In this case the parties each broadly introduced the assets to the marriage although the husband introduced more. Each party worked through the marriage in accordance with their needs and capacity. The wife contributed more directly from her earnings than the husband who was an invalid for a significant time. The husband was particularly secretive and earned considerably more than he disclosed to his wife or to the Court. At the time of separation the husband owned a considerable number of assets including machinery and motor vehicles which he did not bring to book. In addition the husband held a significant sum of cash which he has failed to account for. Whilst it is possible that part of that equipment has been acquired by the application of capital brought to the marriage by the husband, the nature of the business conducted by the husband was a cash business and it is apparent that none of the profits of that business have been brought to account. Following separation the husband incurred significant debts on his MasterCard and Visa card and has allowed himself to be the subject of a sequestration order. He has revealed in his statement of affairs no assets and only the debts to the credit card companies. The husband continues to have the capacity to continue trading in the manner in which he did during the course of the marriage and has done since subsequently subject to his sequestration order. On the other hand the wife has been significantly disabled by reason of assaults occasioned by the husband upon her. The total of the section 79(4) and 75(2) factors is 75% to the wife and 25% to the husband. In my view that represents a just and equitable outcome having regard to the circumstances of the case. Accordingly the wife should receive judgment to the value of $567,291 from the pool.
The value of assets presented held by the wife total $160,940. That sum is made up as:
½ share Property W
$142,500
1996 Hyundai motor vehicle
$5,000
Wife’s furnishings
$3,000
Wife’s cash savings
$7,000
Wife’s superannuation
$3,440
Total:
$160,940
There is also available to her a half share in the Property W unit ($142,500).
Those sums total $303,440. That still leaves a deficit of $263,851. The wife will have to compete with the unsecured creditors for recovery of this sum.
Orders will provide for the transfer to the wife of the husband’s ½ share in Property W; and the motor vehicle, goods and chattels of which she presently stands possessed. She will also be entitled to an order for judgment against the husband in the sum of $263,851.
Costs
Aside from filing an initial application the husband has not actively participated in these proceedings. Indeed his conduct has put the wife to additional expense as there has been a need to pursue him for service. Undoubtedly the husband’s participation in these proceedings has in part been driven by his sequestration. Full participation by the husband in these proceedings had the potential to embarrass the husband in terms of the statement of affairs delivered by him to his trustee. In my view the husband has been untruthful in his statements both to this Court in the affidavit filed 12 January 2006 and also to his trustee. That untruthfulness has put the Applicant wife to needless and additional expense.
Because of the husband’s failure to participate in the proceeding the husband’s trustee held no instructions. He was not able to effectively cross examine any of the Applicant’s witnesses and was put in the unfortunate position of having to put witnesses to proof. I am not critical of the trustee’s approach in these proceedings and recognise that the trustee in approaching the proceeding undertook his obligations in a proper and professional manner.
In my view the husband should be ordered to pay costs in the proceeding on an indemnity basis for both the wife and the Trustee. His conduct has put each of the other parties to unnecessary expense. These circumstances warrant a departure from the usual rule that costs be assessed on a standard basis.
Orders
That the Applicant submit a minute of order giving effect to the rulings in this judgment and that such draft be submitted to the Court and the trustee within fourteen (14) days of today’s date.
That the trustee either consent to draft terms of order submitted by the wife or arrange for the matter to be re-listed within seven (7) days for mention.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 5 March 2008
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