Woley and Humboldt (Discovery)

[2008] FamCA 1094

FAMILY COURT OF AUSTRALIA

WOLEY & HUMBOLDT (DISCOVERY) [2008] FamCA 1094

FAMILY LAW – PRACTICE AND PROCEDURE – Discovery – oral application by wife for production by the husband of various financial documents – application allowed in part

APPLICANT: MS WOLEY

RESPONDENT: MR HUMBOLDT

FILE NUMBER: MLF 1685 of 2005

DATE DELIVERED: 11 DECEMBER 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: BRYANT CJ

HEARING DATE: 9 DECEMBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MR ST JOHN SC with
MR STRUM

SOLICITOR FOR THE APPLICANT: MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT: MR GEDDES QC

SOLICITOR FOR THE RESPONDENT: KENNEDY WISEWOULDS

Orders

It is ordered:

1. That by 4.00pm on 18 December 2008 or as soon thereafter as is practicable the husband provide to the wife copies of the following documents:

   a)statements for the UBS account held in the husband’s personal name for the period from the opening of the account in July 1989 to 30 June 2003;

   b)the general ledger of SN Management Pty Ltd (being contained in a general ledger for a consolidated account) in its capacity as manager of the NTrusts Partnership from 1 July 1989 or the earliest point at which the ledger is in existence, whichever is later, to 30 June 2006;

   c)copies of the “Notice of Test Individual” lodged with the ATO for entities within the non-admitted entities that were requested by Mr F from Mr V, an employee of Mr P, during a meeting on 29 September 2008.

IT IS NOTED that publication of this judgment under the pseudonym Woley & Humboldt (Discovery) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF1685/2005

MS WOLEY

Applicant

And

MR HUMBOLDT

Respondent

REASONS FOR JUDGMENT

(DISCOVERY)

1. This matter is being managed for case management purposes in my docket and is listed for final hearing on 2 March 2009.  The particular issues for decision relate to discovery and arise from various orders made in the course of interlocutory proceedings.  The particular issues and their determination indicate the difficulty that arises in a jurisdiction where there are no formal pleadings and where the issues to be determined at trial have not yet been clearly identified, although there is an order requiring both parties to do so before the hearing.

2. In broad terms the dispute arises because the wife seeks the production and inspection of certain documents and the husband asserts, again in broad terms, that the documents that have been produced meet the requirements in relation to relevant issues and that other documents sought do not relate to relevant issues and are in essence a “fishing expedition” by the wife.

3. The action itself is comprised of competing claims for property settlement and spousal maintenance.  The wife’s Application was couched in broad terms, seeking orders that:

   That the husband pay to the wife such lump sum by way of adjustment of property interests and spousal maintenance as this Honourable Court deems appropriate.

4. The husband’s Response sought a similarly general order:

   That there be such orders as to adjustment of property as the court deems appropriate.

5. Particularisation has not yet occurred but orders have been made which require particularisation.

6. The parties have progressed a significant way towards trial, in particular, having each engaged a forensic accountant to prepare an expert report on the assets and financial resources of the parties or either of them and their value.  It is common ground that the assets of the husband include legal control and / or beneficial interest in a significant number of trusts and companies.  The husband’s background is in the information technology industry but during the marriage he also became an established property developer. 

7. The accountant for the wife was instructed to prepare a report of the value of the husband’s interest in the various entities including a report as to:

   ·    his assessment of the entities that in his opinion, and based on the documentation provided, should be included in the asset pool;

   ·    his assessment of the income generated by the husband and entities where the parties are an equity holder, a beneficial owner, or appointed controller during the years ended 30 June 2004, 2005 and 2006; and

   ·    his assessment of the income generated from entities where the husband’s mother (Mrs Humboldt) is an equity holder or appointed controller.[1]

   [1] Paragraph 1.2 of Annexure “DF2” to the Affidavit of Mr F sworn 29 March 2007

8. An interim report was prepared.[2]  On 22 May 2008 Bennett J ordered that the husband’s accountant publish a report to the practitioners for the wife by 16 June 2008 detailing the issues and points of disagreement between herself and Mr F and that thereafter the parties instruct their respective accountants to confer for the purpose of identifying the issues and points of disagreement between themselves and what difference there is in their respective positions in terms of valuation and assets divisible between the parties or said to be divisible between the parties.

   [2] Affidavit of Mr F sworn 29 March 2007

9. For relevant purposes the husband’s accountant Ms B said as follows:[3]

   [3] Annexure “A” to Affidavit of Ms B filed 13 October 2008.

   3.1  [SN] Management Pty Ltd

   3.2  I agree with the conclusion reached by [Mr F] (paragraphs 4.46 and 4.47) that the Husband owns a 25% interest in this company.

   3.3  This company acts as the administration entity of the [Humboldt] Group and the Husband is an employee of the company.

   3.4  [SN] Nominees Pty Ltd

   3.5  This company is excluded from Table 4.94 of [Mr F’s] Income Report.

   3.6  As detailed at Schedule 5/A, the company acts as corporate trustee of the [N] Family Trusts.  The husband owns a 50% interest in the company and is one of three directors.

   3.7  [N] Trusts Partnership

   3.8  I disagree with the conclusion reached by [Mr F] (paragraphs 4.70 and 4.71) in relation to the inclusion of this partnership in the asset pool.  As detailed at paragraphs 3.13 to 3.22 below, I disagree with the conclusion reached by [Mr F] regarding the [N] First and Second Family Trusts, and this disagreement therefore extends to the conclusion regarding the partnership of trusts.

   3.9  The partnership of trusts is assumed to have been established in 1974 by the Husband’s father [Mr Humboldt Snr] (“the Father”) following the formation of each of the [N] Trusts.

   3.10  The Husband asserts that the Father established the [N] Trusts and other entities to ensure that future generations of the [Humboldt] family, excluding the Husband and his brother, were provided for.  I understand that the Father and Mother survived the Holocaust and immigrated to Australia in 1948, arriving with no assets.  The Father and Mother were successful proprietors of a business trading in the Melbourne garment industry and later became successful property developers and investors.  The Father and Mother applied the savings derived from their personal exertion in the garment industry to property acquisition and development in the Melbourne CBD and surrounding suburbs.  The garment business was sold in the early 1980s and the proceeds from sale were applied to further property investments.  The Husband asserts that the activities of the Father and Mother over many years enabled the acquisition of the various real properties and other investments by this partnership, other entities in the [Mrs Humboldt] Group, and provided assistance with the startup of the [Humboldt] Group.

   3.11  As detailed at Schedule 5/A neither the Husband nor an entity controlled by him has received a distribution from this partnership in the five years to 30 June 2007. 

   3.12  In my opinion, the partnership should be excluded from the asset pool as the Husband has neither an ownership interest nor position of control over the partnership.

   3.13  [N] First Family Trust

   3.14  I disagree with the conclusion reached by [Mr F] (paragraphs 4.72 and 4.73) in relation to the inclusion of this trust in the asset pool. 

   3.15  The trust was established at the direction of the Father who was the first appointor, with the Mother being the successor Appointor following the death of the Father in January 1992.  Pursuant to the Schedule to the Deed dated 31 May 1974, the Husband will succeed the Mother as Guardian and Appointor, subject to Clauses 26 and 27 of the deed.  Clauses 26 and 27 of the deed provide that the Mother may substitute the Brother ([D Humboldt]) as successor Guardian and Appointor.

   3.16  As detailed at Schedule 5/B, the Mother controls the trust by virtue of her position as Appointor and neither the Husband nor an entity controlled by him has received a distribution from the trust in the five years to 30 June 2007. 

   3.17  I disagree with the conclusion reached by [Mr F] at paragraph 4.73 that because the children of the parties are Specified Beneficiaries of the [N] First Trust, the parties have a beneficial interest in the assets owned by the trustee in its capacity as trustee of the trust.  This conclusion ignores that the control of the trust is held by the Mother, that distributions have not been made to the Husband nor an entity controlled by him, and the potential distribution of the trust fund to the broader group of general beneficiaries as specified in the Schedule to the deed.

   3.18  [N] Second Family Trust

   3.19  I disagree with the conclusion reached by [Mr F] (paragraphs 4.74 and 4.75) in relation to the inclusion of this trust in the asset pool. 

   3.20  The trust was established at the direction of the Father who was the First Appointor, with the Mother being the successor Appointor following the death of the Father in 1992.  Pursuant to the Schedule to the Deed dated 31 May 1974, the Husband will succeed the mother as Guardian and Appointor, subject to Clauses 26 and 27 of the deed.  Clauses 26 and 27 of the deed provide that the Mother may substitute the Brother ([D Humboldt]) as successor Guardian and Appointor.

   3.21  As detailed at Schedule 5/B, the Mother controls the trust by virtue of her position as Appointor and neither the Husband nor an entity controlled by him has received a distribution from the trust in the five years to 30 June 2007.

   3.22  I disagree with the conclusion reached by [Mr F] at paragraph 4.75 that because the children of the parties are Specified Beneficiaries of the [N] Second Trust, the parties have a beneficial interest in the assets owned by the trustee in its capacity as trustee of the trust.  This conclusion ignores that the control of the trust is held by the Mother, that distributions have not been made to the Husband nor an entity controlled by him, and the potential distribution of the trust fund to the broader group of general beneficiaries is specified in the Schedule to the deed.

10. It is necessary to note that in Mr F’s interim report he acknowledges that in relation to the N First Trust and the N Second Trust the husband’s mother is currently the appointor of the trust and that SN Nominees Pty Ltd is trustee.  He opines that, on the basis the children of the parties are the specified beneficiaries, the parties have a beneficial interest in the trust. 

11. The relevant trust deeds have been produced and inspected.  The wife’s case, insofar as it is apparent at this stage, does not appear to take issue with the fact that the husband’s mother is the appointor and legal controller of the trusts.  Rather, she asserts that as a result of the deteriorating health of the mother, potentially culminating in loss of legal capacity, the husband has made all business decisions and been solely responsible for decision making in relation to the trusts for many years.  It is not entirely clear, but it appears to be asserted that this would give him legal control. 

12. This point has already arisen for an interlocutory decision given by me on 19 August 2008 when the wife’s solicitors had various subpoenae issued to medical practitioners for the purposes of establishing the question of the husband’s mother’s capacity and there was objection to the production of documents which the wife sought to have produced.  In the course of that judgment at paragraphs 15 to 17 I said:

    The wife contends that from the mid-1990s the husband took full control of his mother’s financial and personal affairs.  She deposes to the fact that the mother’s health significantly deteriorated, to the extent that she was not able to make independent decisions about financial matters.  The wife deposes to the fact that the husband made the majority of decisions in relation to the interests.  She contends that the husband has a powerful and controlling nature and during the marriage would often demand that she sign documents and would usually refuse to answer questions she asked about the nature of them.  She contends that the husband similarly bullied his mother in relation to decisions.

    None of these matters in my view take the matter any further.  Whether or not the husband’s mother has legal capacity in so far as the day to day decision making is concerned, it is quite open to her to divest herself of that control and to allow the husband to exercise it consistent with the obligations that she would have as a trustee or as a director of a corporate trustee. 

    The husband himself admits that he had operational responsibilities for the trust but denies that he had what could be regarded as legal control. 

13. I determined in that application that the mother’s legal capacity was relevant because, whilst the evidence did not appear to suggest at this point that where the husband had no legal control, and absent an allegation that the trusts were his alter ego, nevertheless he may have a significant financial resource as a result of his position as the default appointor and guardian if the mother now lacks legal capacity to change that appointment.  I concluded that if the mother has no legal capacity, and if the husband has control of the various trusts as a consequence, and / or as a consequence of legal capacity will ultimately have that control, together with the right to have distributions made to him as a general beneficiary of the trust by the trustee, who can ultimately be controlled by him (and accepting that the trustee would be exercising powers appropriately under the trust deed), then the husband would have a financial resource, certainly at the time of the mother’s death and quite probably even now if the mother has no legal capacity. 

14. As a result, I allowed production and inspection of the subpoenaed material.  Notwithstanding the production and inspection of those documents, the question of the legal capacity of the husband’s mother has not yet been established.

15. At paragraph 42 of that judgment I said:

    Furthermore, the relevance of the trusts as a financial resource does not necessarily lead to the conclusion that the trusts should be added as assets to the asset pool.  That too will depend upon it being established by other evidence that the assets of the trust of whom there are many beneficiaries can truly be said to be the husband’s.  Thus the issue between the accountants as to the inclusion of those trusts in the asset pool is not determined by my decision today. 

16. On 3 December 2008 the High Court handed down its decision in Kennon v Spry; Spry v Kennon [2008] HCA 56 in which it considered the question of the interest of a beneficiary and trustee in a discretionary trust. At paragraphs 77 - 79 French CJ said:

    77.The beneficiary of a non-exhaustive discretionary trust who does not control the trustee directly or indirectly has a right to due consideration and to due administration of the trust but it is difficult to value those rights when the beneficiary has no present entitlement and may never have any entitlement to any part of the income or capital of the trust.

    78.Gummow and Hayne JJ, in their joint reasons, characterise Mrs Spry's right with respect to the due administration of the Trust as part of her property for the purposes of the Family Law Act. I respectfully agree with their Honours that prior to the 1998 Instrument the equitable right to due administration of the Trust fund could be taken into account as part of the property of Mrs Spry as a party to the marriage. So too could her equitable entitlement to due consideration in relation to the application of the income and capital. In so agreeing, however, I acknowledge, consistently with the observations of the Full Court in Hauff and Evans, that it is difficult to put a value on either of these rights though a valuation might not be beyond the actuarial arts in relation to the right to due consideration.

    79.Dr Spry's power as trustee to apply assets or income of the Trust to Mrs Spry prior to the 1998 Instrument was, as pointed out by Gummow and Hayne JJ, able to be treated for the purposes of the Family Law Act as a species of property held by him as a party to the marriage, albeit subject to the fiduciary duty to consider all beneficiaries.

17. Of course the facts of this case are significantly different from those in Spry.  In Spry it was the husband who was the appointor and the assets had been acquired during the marriage.  In this case it is the husband’s mother who is the legal controller of the trust and the genesis of the assets in the trust are assets acquired by the husband’s parents (not the husband and wife).

18. Nevertheless, observing what the High Court has said in Spry, even if the mother retains legal capacity, it is clear that the husband is one of a number of potential beneficiaries and as a result of his entitlement to due consideration as a beneficiary, has an interest which can be characterised as property.  The position would be even stronger if it is established that the mother has no legal capacity, because in those circumstances the husband will have legal control and also be a beneficiary.  The value of that “property” in either case is ultimately a matter for the trial judge. 

19. Within that legal framework I turn to determine the issues in question.

20. On 20 October 2008 each of the parties sought that I make orders providing for a final hearing date and the filing of material in preparation.  The husband argued that the wife ought be required to particularise the orders she seeks, in order to clarify the scope of the parties’ dispute, before the Court could determine further disputes regarding discovery of documents.

21. Shortly after that mention I made orders in chambers providing in summary that:

    ·the wife file an amended application, a statement of issues in dispute, a case outline and all affidavits of evidence by 8 December 2008;

    ·the husband file an amended response, a statement of issues in dispute, a case outline and all affidavits of evidence by 9 February 2009;

    ·the parties file a joint balance sheet by 16 February 2009;

    ·the parties attend a mention on 23 February 2009;

    ·the matter be listed for final hearing commencing 2 March 2009;

    ·the parties have liberty to apply on interlocutory matters.

22. Neither party has at this stage filed documents in accordance with those orders.  However, pursuant to the liberty accorded in those orders, the wife had the matter re-listed at a further mention before me on 3 December 2008. 

23. Senior Counsel for the wife again alleged that the husband had failed to comply with his ongoing duty to disclose relevant financial documents and cited this as the reason for the wife’s non-filing of material.  Senior Counsel for the husband indicated that he had not prior to the mention been given notice of any complaint by the wife about the husband’s written response to the wife’s request for documents and in any event that any alleged non-disclosure by the husband should not delay the wife in filing her material. 

1. The wife’s representatives were not able to provide to the Court a list of documents which had been requested of the husband but not provided by him.  I therefore made orders including:

   (1)That the wife provide to the husband by 4.00pm on 4 December 2008 a letter listing documents which have been sought from the husband and not provided and a short note as to their relevance.

   (2)That the husband by 10.00am on 8 December provide to the wife:-

   a)access to the wife and her advisers to documents sought which are not in dispute; and

   b)a response to the letter stating why other documents are not being produced.

2. The wife’s counsel provided to the Court a document indicating what was sought.  This had been previously communicated to the husband’s solicitors and I was also provided with a copy letter dated 8 December 2008 from the husband’s solicitors to the wife’s solicitors dealing with the documents sought.  In addition, oral submissions were made.  Some of the items on the list handed up have been either provided or it is agreed they do not exist and submissions were made in relation to those which remained in contention. I now address each of those items in turn.

Items 3 (a) and (b)

1. The first item sought to be investigated by the wife is:

   The USB [sic, semble “UBS”] Bank account that is held in the husband’s personal name (with an account balance as at 30 June, 2008 of $US 1,905,940. that the husband asserts he holds on trust as an asset of [SN] Nominees Pty Ltd in its capacity as trustee of the SSD and H Trust in accordance with a Deed of Trust dated 3 July, 1989.

2. In relation to this account the wife’s accountant Mr F had sought:

   a)copies of statements for the UBS account held in the husband’s personal name from the opening of the account in July 1989 to 30 June, 2003 (noting that we have been provided with statements for the account from 1 July, 2003); and

   b)the general ledger of [SN] Nominees Pty Ltd (should read “[SN] Management Pty Ltd”) in its capacity as manager of the [N] Trusts Partnership from July, 1989 to 30 June, 2007.

3. The document handed up by the wife indicates that the husband has provided copy statements for the UBS bank account for the period 31 December 2000 to 31 December 2003 but has not provided copy statements for the period July 1989 to December 2000.

4. In relation to the general ledger, the wife acknowledges receipt of a ledger for the year ended 30 June 2007, which the husband indicates is the first year that the relevant entity had a separate ledger.  The wife seeks the general ledger for previous years when the ledger was part of a consolidated account.

Item 3 (a)

1. As to the UBS bank account, the husband asserts that he holds the account on trust for the N Trust Partnership and thus it is “not relevant to consideration of our client’s position”.  The wife contends that the account is in the name of the husband (who is not the legal controller of the trusts) and thus prima facie should be treated as the husband’s asset until proven to the contrary.  In addition, the account is a Swiss account and the wife has no capacity to obtain copies other than by production by the husband. 

2. I accept the submissions of the wife.  Whilst other trust assets are held clearly by trust entities, this Swiss bank account is not.  It may be that there are technical banking rules which require the account to be in the name of a party rather than in the name of a company, but the husband’s mother as legal controller would have been the more obvious account holder.  The account is shown in the accounts of the Trust as a trust asset, but given that it is in his name and the difficulty in obtaining full details regarding the account other than by production by him, in my view it is relevant and appropriate for the husband to provide those documents.

3. The husband has produced statements from 1 July 2003 whereas the wife seeks statements back to July 1989 when the account was opened.  Given the legal ownership of the account, in my view it is appropriate for those documents to be produced.

Item 3 (b)

1. The husband contends that he has provided the general ledger for SN Management Pty Ltd from July 2006 to June 2008.  In addition, he contends that Mr F has already been provided with the financial statements and tax returns for the N Trust Partnership for the years ending 30 June 1998 to 30 June 2007, which confirm that the UBS account is held as an asset of the Trust Partnership (and shows the changing balance of that account year to year).

2. The tax returns show the income from that account and indicate that tax has been paid on that account by the Trust Partnership.  The husband asserts that the additional documents requested are simply not relevant to the determination of the issues between the parties.  He contends that the general ledger was only created as a separate general ledger item in the 2006-07 year and he has provided that.  Prior to 1 July 2006 the SN Management Pty Ltd account 1-1040 was accounted for as part of the consolidated ledger.

3. In having regard to the holding of the UBS account in the husband’s name I see no reason why the husband should only provide the ledger from 1 July 2006 but not earlier and I propose to make an order in the terms sought by the wife.

Items 5 (a) and (b)

1. The second issue sought to be investigated by the wife is:

   The proceeds received from the sale of shares in AXON instruments Inc which were held by [O] Developments Pty Ltd in its capacity as trustee of the [O] Developments Unit Trust, to verify the distribution of the proceeds to the [O] Developments Superannuation Fund; also [O] Capital Pty Ltd in its capacity as trustee of the [Humboldt] Family Trust and/or any other entity or person.

2. In this regard the wife’s accountant Mr F had sought:

   c)the MYOB general ledger maintained by the husband in respect of the admitted entities for the financial years ended 30 June, 2000 to 30 June, 2008; and

   d)the reconciliation spreadsheet prepared by Mr P accountant and used by the husband to reconcile the MYOB general ledger to the financial statements prepared by Mr P.

3. The wife acknowledges receipt of MYOB general ledgers for O Developments Pty Ltd and the O Developments Superannuation Fund but seeks production in relation to the other admitted entities of the husband.  The wife does not pursue production of the “reconciliation spreadsheet” as the husband asserts that none exists.

4. The wife contends that this information is necessary because the husband will assert a substantial contribution prior to cohabitation from these funds and the wife wishes to see how they were applied, in other words, to verify that the husband had contributed them in the way in which he has suggested.  The wife contends that the gross proceeds were about $8 million and thus significant.

5. The husband submitted that if he was asserting a financial contribution from pre-marriage assets then it was up to him to prove he had made it and in any event he asserts that only two entities are relevant: O Developments Pty Ltd and the O Developments Superannuation Fund.  The husband asserts that the general ledger for all of the admitted entities under the husband’s control is not relevant and only two of the entities were involved in the sale of the AXON shares.  However, he has provided a copy of the general ledger for the O Developments Superannuation Fund for the period 1 July 2003 to 30 June 2008 and copy general ledger details for O Developments Pty Ltd for the period 1 July 1999 to 30 June 2008.

6. I agree with the submission of the husband that if the husband is going to assert a financial contribution to a particular entity or towards the acquisition of a particular asset then the onus will be upon him to establish that contribution.  If the husband’s affidavit, when filed, makes such an assertion which is not corroborated by appropriate documentary evidence then the wife will be at liberty to seek this information at that time if it is necessary and if she wishes to do so.  At this stage, without an indication of how it might be relevant to a contribution claimed by the husband it is premature to make such an order. 

Items 7 (a) and (b)

1. The third issue sought to be investigated by the wife is:

   The role of [the husband’s mother] regarding her alleged control of the non-admitted entities. 

2. The documents sought by the wife’s accountant Mr F in this regard were:

   a)the remainder of the Minutes of Director and Shareholder meetings for entities within the Mrs Humboldt group from 1 July, 2000 to date which have not as yet been provided and were not available during the meetings between Mr F and Ms B on 29 and 30 September, 2008; and

   b)copies of the “Notice of Test Individual” lodged with the ATO for entities within the non-admitted entities that were requested by Mr F from Mr V an employee of Mr P, during the meeting on 29 September, 2008 and which he was advised would be provided but to date have not been made available.

3. The husband’s response requests that the wife specify the dates of meetings for which Minutes were required.  The wife indicates that she is not able to do so, as she does not know the dates of the relevant meetings.  The wife instead seeks Minutes of all meetings since 1 July 2000.

4. The wife further acknowledges receipt of a printout from the ATO portal indicating the test individual nominated for a number of entities.  The husband asserts the wife should be satisfied with this printout, but the wife disagrees.

Item 7 (a)

1. This was described as being an enquiry into the role of the husband’s mother regarding her alleged control of the non-admitted entities, but in oral submissions Senior Counsel for the wife submitted that the requirement for the Minutes was because the wife would not accept that the husband had been frank in relation to borrowings from the trusts, and as he already has recorded loans in the books of account, and therefore has a “track record”, the wife wishes to examine the Minutes to see if there is any relevance to the movement of loans which they acknowledge are recorded at the end of each financial year, or to see if there are other borrowings which may have occurred within a financial year. 

2. The husband through his counsel responded by indicating that Mr F has seen the general ledger and the loan accounts and bank statements and that a perusal of all of the Minutes as sought is simply not relevant to any issue.

3. I agree with the submissions of the husband.  For the reasons I have already set out, the husband’s interest in the Trust as a beneficiary can be characterised as property of a value to be determined.  The extent of that value may well change depending upon the legal capacity of the husband’s mother.  This inquiry seems to be reliant upon an underlying assertion (not articulated) that the trust is really the alter ego of the husband.  In the absence of that assertion, and anything to support it, the Minutes of director and shareholder meetings for entities within the Mrs Humboldt Group are not demonstrably relevant to the value of the husband’s interest in the Trust.  There is documentary evidence of the existence of the trust and of the husband’s mother’s legal control.  The question of her legal capacity has arisen in more recent times and will be the subject of a determination at some point.  The husband’s borrowings are a matter of record and it will be open to the wife to argue that in addition to what property the husband may have constituted by his interest as a beneficiary, he has a financial resource as he has had the benefit of borrowings from the trust.  Those borrowings are documented and the documents relating to them have been provided.  In my view, the documents now sought are not relevant to any existing controversy between the parties.  If there are particular periods in which there is any concern about the husband’s borrowings, then the Minutes for those periods could have been sought.  The husband also makes this point.  The request for all of the Minutes for entities within the Mrs Humboldt Group from July 2000 to date suggests a broader enquiry not warranted. 

Item 7 (b)

1. Item 7(b) seeks copies of the “Notice of Test Individual” lodged with the ATO.  The husband responded to this by indicating that rather than producing individual notices, he had produced a printout from the ATO portal indicating for each entity the test individual nominated and the date of nomination.  The wife submitted that this document was not exhaustive of the information that could be available because this was only a notification by the ATO.  It was contended that the ATO may have imputed a beneficiary where none was nominated, or imputed a beneficiary in lieu of one nominated.  Given the obligation for the primary beneficiary of the trust to be nominated, the wife contended that it was the trust’s nomination that was relevant, not the ATO’s nomination.  The husband’s counsel in oral submissions indicated that he would provide the documents sought and in my view that would be appropriate and I propose to make an order accordingly.

Other matters

1. The parties were each anxious that the matter remain listed for final hearing on 2 March 2009.  However, the wife sought an extension of time in which to file her material given that the deadline in my previous orders has passed.  I therefore propose to make orders extending the time in which the wife has to file and serve the documents set out in paragraphs 2 and 3 of the orders made 31 October 2008 and will seek submissions from counsel as to what that date should be.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice Bryant

Associate:     Micheil Paton           

Date:              11 December 2008