Winters and Winters

[2013] FamCA 459

FAMILY COURT OF AUSTRALIA

WINTERS & WINTERS [2013] FamCA 459

FAMILY LAW – PROPERTY – Interim Property Orders – Transfer of motor vehicles and other miscellaneous matters.

FAMILY LAW – SPOUSE MAINTENANCE – Interim spouse maintenance

Family Law Act 1975 (Cth) Section 75(2)

Stanton & Brook [2012] FamCA 230; Redman & Redman (1987) FLC 91-805; Williamson & Williamson (1978) FLC 90-505; Bevan & Bevan (1995) FLC 92-600; Oates & Crest (2008) FLC 93-365; 216 FLR 469

APPLICANT: Ms Winters

RESPONDENT: Mr Winters

FILE NUMBER: BRC 9831 of 2012

DATE DELIVERED: 17 June 2013

PLACE DELIVERED: Townsville

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 30 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dunning SC and Mr Williams

SOLICITORS FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Kearney SC

SOLICITOR FOR THE RESPONDENT: Hopgood Ganim

Orders

1. I direct that within seven (7) days the parties bring in minutes of orders incorporating both the consent orders handed up to the court on 30 April 2013 and the orders identified in these reasons.   

IT IS NOTED that publication of this judgment by this Court under the pseudonym Winters & Winters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC9831/2012

Ms Winters

Applicant

And

Mr Winters

Respondent

REASONS FOR JUDGMENT

introduction

1. By application in a case filed 3 April 2013 (“the wife’s application”) the applicant wife sought a variety of interim orders relating to the extant proceedings between the parties seeking division of the parties’ property.  By his Response to an Application in a case filed 28 April 2013 (“the husband’s response”) the respondent husband sought an alternate array of interim orders.  Ultimately, when the matter came on for hearing before me, many of the matters in dispute were resolved by consent. The matters which remained in contention were the orders sought by:-

   ·Paragraph 5 of the husband’s response, which dealt with the transfer of motor vehicles and allied matters;

   ·paragraph 3 of the wife’s application and paragraphs 2-4 of the husband’s response, which dealt with spouse maintenance and allied matters;

   ·paragraph 6 of the wife’s application, which dealt with the wife being given electronic access to bank statements and the like for accounts held by six entities, referred to as “the [Winters] Group”;

   ·paragraph 8 of the wife’s application, and paragraph 12 of the husband’s response which sought to impose restrictions upon the use of assets by the husband;

   ·paragraph 10 of the wife’s application, and paragraph 14 of the husband’s response, which dealt with costs.

2. After setting out relevant factual background, I will deal with each of those disputed applications in that order.

FACTUAL BACKGROUND

1. The wife was born in 1952, and is presently 60 years of age. The husband was born in 1947, and is currently 66 years of age. They commenced cohabitation in May 1991, married in October 1994, and finally separated on 3 September 2012. There was therefore a total period of cohabitation of 21 years and five months. There were no children of the marriage, however both the husband and the wife had children from their previous marriages.

2. As at the date of separation, the parties held substantial assets and conducted two main businesses at adjoining sites in northern New South Wales. The first was a business known as “[Business A]” operated by B Pty Ltd, the second was known as “[Business C]” conducted by D Pty Ltd. These businesses generated most of the income of the parties.

TRANSFER OF MOTOR VEHICLES

1. In the husband’s response, he sought orders as follows: –

   5.That within 7 days of the date of these orders, the parties shall do all acts and sign all documents necessary to transfer the Porsche [Model 1] motor vehicle in the wife’s possession and registered in the name of [D] Pty Ltd into the wife’s sole name.

   6.That within 7 days of the date of these orders, the wife shall return to the husband the Porsche [Model 2] motor vehicle in her possession and registered in the name of [B] Pty Ltd, in good condition and repair.

   7.That within 7 days of the date of these orders, the wife shall provide to the husband the completed and up-to-date logbooks that she has kept for the Porsche [Model 1] motor vehicle and the Porsche [Model 2] motor vehicles in her possession.

2. These orders were opposed by the wife. In her submissions to me, she sought that, in the event that an order was made for the return of the Porsche Model 2, that it be exchanged for a BMW motor vehicle owned by the husband.

3. The husband addressed these orders in paragraphs 62 to 75 of his affidavit filed 30 April 2013 (“the husband’s first affidavit”). It is difficult to therein discern any real reason for him seeking an interim order that the Porsche Model 1 be transferred from D Pty Ltd to the wife. It has been owned by D Pty Ltd since approximately November 2009, and has predominantly been driven by the wife. The fact that it is in the wife’s possession does not incline me, absent her consent, to order that it be transferred to her name by way of interim property division. I decline to make the order sought in relation to the Porsche Model 1.

4. The husband sought the return of the Porsche Model 2 for the reasons set out in paragraph 69 of the husband’s first affidavit. That provided: –

   The Porsche [Model 2] motor vehicle has a factory fitted towbar which I used within the businesses. The only other vehicle with a similar towbar is an old utility without air-conditioning which is located at the [business sites] and generally used by the workers on a daily basis. If I need the towbar, I have to drive down to the [business sites] (over 40 km) and collect the utility and then run errands without air-conditioning, leaving the workers without the utility for that time. The Porsche [Model 2] is a safe and reliable vehicle for travelling on the highway and I’m comfortable driving this in comparison to the older utility. I previously had a major accident in the utility vehicle and am not comfortable driving this to run errands.

5. From paragraph 65 of that affidavit, it appears as though the wife’s solicitors in the past had sought to justify the wife retaining the Porsche Model 2 on the basis that she was suffering from a back complaint and it was an easier vehicle for her to get into and out of than the Porsche Model 1. Other than this reference in the husband’s affidavit, there was no evidence from the wife as to this point. The husband also deposed in paragraph 68 that “on most occasions that I’ve seen [the wife] driving since separation, I have seen her driving the Porsche [Model 1]. This included me seeing her driving this motor-vehicle immediately after the correspondence dated 3 December 2000... asserting that [the wife] needed that Porsche [Model 2] motor-vehicle because of a back ailment.”

6. The wife’s affidavits did not descend to any traverse of this material. Rather she argued before me that it was appropriate, given that she had three cars in her possession and the husband had four cars in his possession, that things should simply stay as they are. It appears from the husband’s financial statement filed 28 April 2013 that in fact the husband has five cars in his possession, being a Jaguar Model 1, a BMW Model 1, a Jaguar Model 2, a Porsche Model 2, and a BMW Model 2. However on the evidence before me, the husband has a legitimate need, on occasion, for the Porsche Model 2, and the material does not set forth any defensible basis for the wife needing it, other than that alluded to by the husband in his first affidavit. If there were in fact some legitimate medical basis which would justify the wife retaining the Porsche Model 2, then I would have expected to be told of it in her affidavits. In the circumstances therefore, I am persuaded that I should make an Order for the return of the Porsche Model 2 to the husband.  There is no basis for requiring, as a condition of that return, that the husband transfer to the wife either of his BMW motor vehicles.

7. That then leaves for determination whether or not the court should compel the wife to provide the husband with logbooks “that she has kept for the Porsche [Model 1] motor vehicle and the Porsche [Model 2] motor vehicle”. In paragraph 70 of the husband’s first affidavit, he deposed to having provided the wife with two pocket sized logbooks for recording all personal and business use of both the Porsche Model 1 and Porsche Model 2 motor vehicles for taxation and accounting purposes. Although in her solicitor’s letter dated 3 December 2012 the wife acknowledged that it was a requirement for accounting and taxation purposes that she keep a log book for the use of the vehicles in her possession, there is no evidence that she did so. In his submissions to me, Mr Dunning SC who together with Mr. Williams appeared for the wife, asserted that since the use of the cars by the wife was not for business purposes, she was not obliged to maintain logbooks, and had never done so. He asserted that the husband maintained the log books.

8. The husband says that he needs the logbooks in order to calculate the Fringe Benefit Tax contributions for the relevant year ended 31 March 2013. Given that it seems clear that indeed he did provide those logbooks to the wife, I am persuaded that I should order them be returned to him. However in so ordering, I should make it clear that I am not persuaded that it is likely that there will be any, or if there are any, all necessary, entries in those logbooks, and I am not persuaded that I should order her to return them to the husband “completed and up to date” as the husband seeks, as if they are indeed neither completed nor up-to-date, then the consequences of that from a Fringe Benefits Tax perspective will presumably automatically follow.

SPOUSE MAINTENANCE

1. Paragraph 3 of the wife’s application sought spouse maintenance in the following terms: –

   3. That the husband pay or cause to be paid to the wife for her maintenance the following:

   (a)a weekly sum of $3300, payable within seven days of the date of these orders and that such payments be made weekly thereafter;

   (b)private health insurance at the current level; and

   (c)Motor vehicle expenses for the Porsche [Model 1] bearing registration number …, including petrol, registration, insurance, leasing and maintenance costs.

2. By the husband’s response he sought a competing suite of orders as follows:

   2.That the parties shall do all acts and sign all documents to enable the wife to receive her transition to retirement pension from that the [E] Superannuation Fund, at a rate of 10%, on a monthly basis on the first business day of each month, such funds to be paid to the bank account nominated by the wife within 24 hours of the making of these Orders.

   3.That the husband shall pay or cause to be paid spouse maintenance to the wife in the amount of $2500 on a monthly basis (net of tax) on the first business day of each month, such funds to be paid by the husband to a bank account nominated by the wife.

   4.That the husband shall pay or cause to be paid spouse maintenance on behalf of the wife by paying the following expenses directly to the providers:

   (a)registration for the Porsche [Model 1] motor vehicle on the wife’s possession;

   (b)insurance for the Porsche [Model 1] motor vehicle on the wife’s possession; and

   (c)reasonable maintenance expenses for the Porsche [Model 1] motor vehicle in the wife’s possession.

3. At the hearing before me, the husband conceded, in addition to his pleaded position, that he ought to pay private health insurance at the current level for the wife.

4. It can therefore be seen that the need for spouse maintenance of the wife was not in issue; rather the ambit of the dispute between the parties in relation to spouse maintenance related to quantum and, in a sense, form: firstly, whether the husband should be obliged to pay petrol and leasing costs for the Porsche Model 1; secondly, the amount of direct monetary spouse maintenance which the husband should pay the wife; and thirdly, whether the wife should be obliged to receive as a component of her income (albeit not strictly by way of maintenance) a transition to retirement pension.

5. In the recent decision of Stanton & Brook [2012] FamCA 230, Watts J said as follows:-

   Interim spousal maintenance

   18.Section 90SF(1) FLA requires a party to a de facto relationship to maintain the other party, to the extent that they are reasonably able to do so, and only if, that other party is unable to support herself or himself adequately because of certain reasons and having regard to factors set out in s 90SF(3) FLA. If the applicant establishes a need and it is shown that the respondent has a capacity to pay, then the court may make such order as it considers proper for the provision of maintenance (s 90SE(1) FLA).

   19.In interim proceedings, the Full Court in Redman and Redman (1987) FLC 91-805 endorsed a statement made by Fogarty J in Williamson and Williamson (1978) FLC 90-505 as follows:

   “Another consequence is that on an application for interim maintenance, the court conducts ‘not as final or exhaustive a hearing as would be the case if one were hearing the matter finally’ ... the evidence need not be so extensive and the findings not so precise.”

   20.So, upon an application for interim maintenance, an approach can be taken with a broader brush.

   21.Any proposed interim property order must be taken into account when interim spousal maintenance is considered (see Bevan and Bevan (1995) FLC 92-600 and Oates and Crest (2008) FLC 93-365; 216 FLR 469).

6. That useful distillation of principle is equally applicable to proceedings arising out of a marriage, and I propose to follow it.

7. Perhaps unsurprisingly, little argument was directed towards the first matter in dispute, being whether or not the husband should pay the petrol and leasing costs for the Porsche Model 1. The vehicle is owned by D Pty Ltd, in the sense that it is leased by that company.  I have already in these reasons declined to order that it be transferred into the wife’s name.  I infer that up until separation and thereafter, D Pty Ltd was responsible for the payment of the motor vehicle lease over the Porshce Model 1, and paid the running costs of it as well. I do not think that there is any material difference between the expenses which the husband concedes he should pay or cause to be paid in association with the Porsche Model 1 (namely registration, insurance, and reasonable maintenance expenses) on the one hand, and petrol and leasing costs on the other. Given that up until now, it appears as though those latter costs have been met by D Pty Ltd, it seems appropriate that that regime should continue, and I will so order.

8. Turning then to the quantum of spouse maintenance which the husband should pay the wife, I observe that the difference between the parties is not really as stark as a mere comparison between the figure of $3300 per week contended for by the wife, and the $2500 per month contended for by the husband, as in addition to that latter sum, the husband seeks to have the wife receive a transition to retirement pension at an annual rate of 10% of the account balance, payable monthly. At paragraph 54 of the husband’s first affidavit he calculated that, taking into account $1122 of superannuation funds already received by the wife in this financial year, a 10% pension would see her receive $1161 per week. If one adds that to the conceded figure of $2500 per month, the total amount which the husband concedes ought be received by the wife on a weekly basis is $1737.

9. At paragraph 60 of her financial statement filed 1 November 2012, the wife set out her average weekly expenses which total $2585. In addition, in part G of that statement, she disclosed further expenses of $742 per week, principally comprising rent of $700 per week. Her total personal expenditure per week therefore is $3327. This was traversed by the husband in the husband’s first affidavit, principally in paragraph 27. He identified a number of items which he said were excessive.  These included $30 per week for health insurance, which he said ought be deducted because he intended to pay the health insurance directly, which I accept. He also took issue with household repairs in the sum of $50 per week, on the basis that the wife was living in a rental property and would not be responsible for payment of repairs. However I think that overlooks that $50 was said to be in respect of household repairs/replacement, and it is inevitable that there will be costs of replacement of some items which will not be owned by the landlord. I therefore propose to allow that item. He also took issue with telephone expenses of $30 per week, on the basis that the businesses pay mobile phone costs, but again it is said that the expense is in respect of telephone/internet, not merely telephone. I therefore propose to allow this item. He next took issue with petrol of $100 per week and maintenance of $100 per week in respect of motor vehicles. He estimated that the motor vehicle petrol costs per week were about $25, and as has previously been seen, agreed to pay the Porsche Model 1 service costs. As I have earlier in these reasons ordered that the Porsche Model 1 petrol costs ought be borne by the husband, I agree that an amount to reflect that should come out, and likewise the maintenance figure should come out on the basis that there will be an Order that the Porsche Model 1 be maintained by the husband, or that he cause it to be maintained.

10. The husband next takes issue with the wife’s assertion of expenditure on entertainment/hobbies of $200 per week, and holidays of $800 per week, which he notes amount to annual figures of $10,400 and $41,600 respectively. His affidavit does not descend to any real argument with the reasonableness of either sum, but rather he says that holidays that he has taken post separation were funded by his children. It appears as though both the husband and wife during the course of the marriage enjoyed many lavish holidays at considerable expense. Given that background, I do not think that an annual cost of holidays for the wife of $41,600 is excessive, although I accept many members of the community may think such expenditure unjustifiable. Nonetheless that is the way of life which the parties enjoyed together and it is not suggested by the husband that such expenditure is unreasonable. I therefore propose to allow the holiday component in full, and likewise allow the entertainment and hobbies expenditure in full.

11. There were four items of expenditure which the husband specifically identified as unreasonable.  They were gifts of $150 per week ($7800 per year) hairdressing and toiletries of $110 per week ($5720 per year) acupuncture/Yoga of $150 per week ($7800 per year) and cosmetics of $150 per week ($7800 per year). Other than the bald statement that he considered that expenditure unreasonable, no basis for the asserted unreasonableness was put forward. It will be noted that the parties seemed to enjoy a luxurious lifestyle during the course of their marriage. Whilst I think that the figure for gifts of $7800 per year is somewhat excessive, and propose to allow $5200 per year, I do not think that either of the other three impugned expenses are unreasonable and proposed to allow them in full.

12. I therefore assess the wife’s reasonable weekly expenditure at $3047.

13. Before determining the amount of spouse maintenance which is to be paid per week by the husband to the wife, I need to first determine how much, if any, of the wife’s reasonable expenses should be met by way of a transition to retirement pension.

1. As to that issue, the wife’s position is that she was unaware that in the past she had received any payment of a transition to retirement pension, and more, she denied in fact receiving any such physical payment. In the husband’s first affidavit he dealt with the reasons behind the creation of the E Superannuation Fund, and the fact that for six years both he and the wife have been receiving transition to retirement pension payments from it. It appears as though the main reason for the creation of the superannuation fund and the commencement of the payment of transition to retirement pensions, was so as to obtain a tax-free income stream to service mortgage payments on a former matrimonial home at F Street, Town G, of approximately $10,000 per month.

2. In 2008, the wife received an annual transition to retirement pension income of $70,000; in 2009, $30,000; in 2010 $30,000; in 2011, $35,000; and in 2012, $40,000.

3. The sole basis upon which the wife seeks to alter that arrangement is because she wishes to preserve her superannuation entitlements as part of the overall property settlement between the parties, and not deplete them to meet her costs of living. Beyond the bald statement to that effect at paragraph 98 of the wife’s first affidavit, she did not set out any cogent basis to change the previous six years arrangements, other than to say that she was unaware of them, and therefore implicitly had not consented to them. The husband disputes that the wife was unaware of the situation, and indeed says that she did agree to it. That is not a dispute which I can resolve on an interim basis, but it does seem clear that for the last six years the parties have been in receipt of the pension, whether the subject of express, advertent agreement or not. On an interim basis, I think that arrangement should continue.

4. That then brings me to the amount which the wife should continue to receive by way of a transition to retirement pension. The husband, perhaps understandably, advocates for the maximum entitlement of 10% of the pension account balance. It appears as though the minimum pension is 4% of the balance. The husband asserts in paragraph 50 of the husband’s first affidavit that a 4% entitlement would equate to a payment of $24,600 per annum. Leaving aside the 2008 financial year, and accepting that there is an inevitably declining balance, it appears as though the payments which the wife has received in previous years are closer to 4% than 10%. Given that the wife is 60 years of age, and potentially has a lengthy retirement ahead of her, a pension at the lower end of her entitlement would seem prudent. I therefore propose to order that she continue to receive a transition to retirement pension of 4% per annum until further order, and for the purposes of calculating spouse maintenance, will regard that as having the value identified by the husband of $24,600. Notwithstanding that the wife has already in this financial year withdrawn superannuation funds, I do not propose to reduce the sum of $24,600 by that amount. It equates to a weekly payment of $473.

5. Given that I have assessed the wife’s reasonable needs to be $3047, the fact that $473 will be available to her by way of transition to retirement pension necessitates that the balance of those needs ought be met by way of a payment of spouse maintenance by the husband. On my calculation that is of sum of $2574 per week, and I will so order.

WIFE’S ELECTRONIC ACCESS TO BANK STATEMENTS

1. As previously indicated in these reasons, many of the orders sought in the wife’s application were agreed to by the husband. These included substantial obligations in relation to disclosure, including that the parties make available for inspection documents relating to their personal financial affairs and the financial affairs of the Winters Group Structure within 28 days of any request being made by the other party.

2. In addition to such general obligations, there were specific orders agreed in relation to the provision within 10 business days of the end of each month, of bank statements and Business Activity Statements for the relevant entities, as well as daily rent receipts, daily balance summary sheets, and end of day balance reports for both businesses.

3. Additionally Order 3 of the Consent Memorandum handed up provided:

   That upon the giving of 14 days notice in writing by the wife to the husband by his legal representative the husband shall do all acts and shall facilitate the wife attending with an accountant of her choosing to inspect the books of account, financial records and related documents for the [Winters] Group Structure at the property located at [H Street, Town I] at the time agreed between the parties in writing.

4. Notwithstanding these provisions, the wife pressed the additional orders sought by paragraph 6 of the wife’s application, namely:

   Within twenty-four (24) hours the husband take all such steps as shall be required to enable the wife to have access to all bank accounts via the Internet for the [Winters] Group (as particularised in annexure “A” hereto and hereinafter referred to as “the [Winters] Group”).

5. The wife’s affidavit material did not descend to any particular reason as to why such an order was justified or necessary. By paragraph 29 of her written submissions of 30 April 2013, she sought to justify, inter alia, such an order on the grounds that it would “merely reflect the statutory right of the wife to inspect the financial records of the company, and orders are appropriate in that regard.” I think, in so far as it is asserted by the wife that a director has a right to access via the Internet all bank accounts of companies of which they are a director, that is an unlikely proposition. Moreover it was not seriously suggested that the purpose of that order in the context of these proceedings was to facilitate her being able to properly discharge those duties. Rather it appears to me as though her intention or desire was to monitor the minutiae of the day-to-day operations of the accounts of the several companies within the group for the purposes of this litigation.

6. One of the substantial matters in dispute between the husband and the wife is the extent to which the wife contributed to the operation of the two businesses. The wife asserts that from 30 June 1996 she had a substantial involvement in them until late 2006, since which time she asserts that the husband has not wanted her to be actively involved in the businesses. At paragraph 57 of the wife’s first affidavit she said:

   I am no longer consulted or informed about the financial position or management of the businesses. The husband and his daughter have purposefully excluded me from the financial affairs of the [Winters] Group, despite my repeated requests to view financial statements relating to the businesses. I have not been allowed to take an active role in strategic planning for the businesses. The husband and his daughter conducted secretive meetings at our home and/or at work, where they spoke in whispers so I could not hear their conversations. This behaviour was also witnessed by my family and staff.

7. At paragraph 58 she continued: –

   Prior to a separation, my concerns about the management and financial affairs of the businesses heightened, as the husband repeatedly refused to show me any of the accounts relating to the businesses, despite that I am a director and shareholder of the various entities that operate the businesses.

8. The wife went on to detail certain conduct by the husband since separation which she says, in effect, makes her suspicious that the husband is intending to conduct the businesses so as to minimise her likely entitlement by way of property division. For instance, she points to the establishment of a new corporation, J Pty Ltd, of which the husband’s daughter is the exclusive shareholder and director, and seems to infer that this is part of a scheme to put assets beyond the reach of this court, or at least to make accessing them more difficult.

9. The husband denies any such intention, and points to the fact that J Pty Ltd was incorporated prior to separation (albeit only just).

10. On an interim hearing such as this, I am simply not in a position to resolve that sort of conflict of fact. Absent being persuaded that there is some live prospect of the husband so manipulating the day-to-day transactions of accounts of the relevant companies in a way which either is undetectable by reference to the monthly bank statements, or which is likely to put assets beyond the reach of the court, I cannot see that the order contended for is presently required or justified.

11. Further, in paragraph 79 of the husband’s first affidavit, he said: –

    [The wife] also seeks an order that she have internet access to all bank accounts regarding the [Winters] Group. The [Winters] Group does not use an internet banking system. Rather, an agreement has been put in place with ANZ whereby payments for the business and [customer’s fees] for approximately 80% of the [customers] of the [businesses] are processed through a software program and secure access device. [The wife] has not had any exposure to this programme and as the system takes a large part of the income of the businesses, I am concerned that any disruption to the system caused by [the wife’s] inexperience may be disruptive for the businesses.

12. Whilst that paragraph does not enable me to form a clear understanding of the system that is being referred to, it appears from it that either an order in the terms sought in paragraph 6 of the wife’s application would be futile, or alternatively could lead to unintended consequences.

13. In all the circumstances, I decline to make an order in terms of paragraph 6 of the wife’s application.

RESTRICTIONS UPON HUSBAND’S USE OF ASSETS

1. Paragraph 8 of the wife’s application sought a number of injunctions restraining the husband from, amongst other things, transferring shares, issuing additional shares, appointing additional office bearers and relinquishing his powers in the Winters Group. Orders in those terms were conceded by paragraph 11 of the husband’s response. However by paragraph 8 (a) (v) the wife also sought an order that the husband be restrained from:

   transferring, selling, encumbering or further encumbering or otherwise dealing with the assets held within the [Winters] group, in particular:

   A. [B] Pty Ltd trading as “[Business A]” situated [Property 1, K Street, Town L] in the State of New South Wales; and

   B.[D] Pty Ltd trading as “[Business C]” situated [Property 2, K Street, Town L] in the State of New South Wales;

   without the wife’s written consent.

2. This order was opposed by the husband, who by paragraph 12 of the husband’s response proposed an order in the following terms:

   That without admission and without prejudice until further order, the husband by himself, his servants or agents:

   (a) be restrained from:

   (1)transferring, selling, encumbering or further encumbering or otherwise dealing with the assets held within the [Winters] group, in particular:

   (A) [B] Pty Ltd, trading as “[Business A]” situated [Property 1, K Street, Town L] in the State of New South Wales; and

   (B)[D] Pty Ltd, trading as “[Business C]” situated at [Property 2, K Street, Town L] in the State of New South Wales,

   without 28 days prior written notice to the wife or otherwise in accordance with the ordinary course of business.

3. Before me the argument was not directed to the difference between the phrasing of those competing orders in relation to the provision of notice, but rather the inclusion in the husband’s proposed orders of permitted disposal of assets in accordance with the ordinary course of business.

4. As I pointed out to counsel for the wife, the strict interpretation of the order sought by her would potentially catch a wide range of legitimate business activities by the Winters Group, for instance, selling items to customers within its business sites. There clearly needs to be a workable set of orders which will not impact upon the operation of the businesses, but at the same time protect the wife from the prospect of dissipation of assets by the husband. To my mind, the orders contended for by the husband achieve those outcomes. I therefore propose to make orders in terms of paragraph 12 of the husband’s response to an application in a case, and decline to make an order in terms of paragraph 8 (a) (v) of the wife’s application.

COSTS

1. I will hear the parties further as to costs.

CONCLUSION

1. I direct that within seven (7) days the parties bring in minutes of orders incorporating both the consent orders handed up to the court on 30 April 2013 and the orders identified in these reasons.

.I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 17 June 2013.

Associate:  

Date: 17 June 2013