Winter & Winter & Ors

In *Winter & Winter & Ors*, the wife sought to set aside or vary a consent property order made in 2005, alleging fraud, suppression of evidence, failure to disclose, and the giving of false evidence by the husband, which she contended resulted in a miscarriage of justice. The wife also claimed that certain companies were alter egos of the husband and sought to include assets held by them in the property pool. The seventh respondent claimed ownership and possession of four chattel items, with the wife arguing that the seventh respondent's claim to three of these was based on illegal agreements designed to conceal assets. The husband sought to dismiss the wife's application as an abuse of process due to champerty and complicity in a scheme to destroy a rival business. The proceedings were heard by O'Reilly J.

The court was required to determine whether the wife had established a miscarriage of justice sufficient to warrant varying the 2005 consent property order, and if so, how the property should be divided, particularly in light of the husband's insolvency. It also needed to consider the wife's claims regarding the companies being alter egos, the validity of the seventh respondent's claims to the chattel items, and whether the wife's application constituted an abuse of process. The court also had to address the effect of the *Cross-Border Insolvency Act 2008* (Cth) on a New Zealand company in liquidation.

O'Reilly J found that the wife had established a miscarriage of justice due to the husband's fraudulent concealment and deception regarding his wealth at the time of the 2005 consent order. Consequently, the court exercised its discretion under s 79A of the *Family Law Act 1975* (Cth) to vary the consent order, awarding the wife the husband's identifiable assets, including his shares in the fifth respondent, subject to US law. The claims against the third and fourth respondents as alter egos were established until a legitimate transaction on 11 March 2008, after which the corporate veil was not lifted. The wife's claim to set aside a 1993 Deed of Family Arrangement was dismissed. The seventh respondent's claims to the chattel items were upheld, with the court finding no intention to defraud the wife and that the principle of *ex turpi causa non oritur actio* did not apply, noting the seventh respondent's special disadvantage. The husband's claims of abuse of process were dismissed.

The wife's proceedings resulted in the variation of the 2005 consent property order to include the husband's shares in the fifth respondent and any other identifiable assets, subject to further listing. The seventh respondent was declared entitled to ownership and possession of three chattel items and possession of a fourth under a valid security interest. All injunctions were discharged, and other interlocutory applications were dismissed.