Zhuo & Ji
[2023] FedCFamC1F 357
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Zhuo & Ji [2023] FedCFamC1F 357
File number: SYC 3409 of 2022 Judgment of: HARPER J Date of judgment: 10 May 2023 Catchwords: FAMILY LAW – PROPERTY – Where wife seeks the continuation of interlocutory injunctions to prevent husband from dissipating or transferring assets without her written consent – Where husband holds majority control over assets as director or majority shareholder of various corporate entities – Where husband has not complied with previous injunctions and caused the sale of real property under restraint – Where other properties have been placed on the market – Claim that injunction necessary to preserve the status quo pending final hearing – Where wife seeks an order that the proceeds of the sale of real property be placed in a controlled monies account to be applied to the construction costs of two developments – Order for injunctions made – Proceeds of sale ordered to be placed in a controlled monies’ account – Order for wife’s consent to payment of invoices related to the developments from the controlled monies’ account.
FAMILY LAW – PRACTICE AND PROCEDURE –Where wife has made allegations of serial non-disclosure and non-compliance with Court orders – Where husband has demonstrated an unwillingness to adequately co-operate with the function of the Court’s processes – Orders made for husband to provide further and complete disclosure –
Where orders made to dismiss the husband’s Response in the event there is any further non-compliance with any order of the Court – Leave given to wife to apply for the proceedings to be listed for final hearing as if undefended in the event there is further non-compliance by husband.Legislation: Family Law Act 1975 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 1.04, 1.05, 1.06, 1.33, 10.18
Cases cited: First Netcom Pty Ltd v TelstraCorporation Ltd (2000) 101 FCR 77; [2000] FCA 1269 Division: Division 1 First Instance Number of paragraphs: 34 Date of hearing: 12 April 2023 Place: Sydney Counsel for the Applicant: Ms Kennedy Solicitor for the Applicant: Lander & Rogers Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Jeffrey Choy Legal ORDERS
SYC 3409 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ZHUO
Applicant
AND: MR JI
Respondent
order made by:
HARPER J
DATE OF ORDER:
10 May 2023
THE COURT NOTES THAT:
A.These proceedings were initiated on 20 May 2022.
B.Interim orders were made requiring the Respondent Husband (“husband”) to provide full and frank disclosure on 1 June 2022, 17 June 2022, 4 August 2022, 11 October 2022, and 17 February 2023. The Applicant Wife (“wife”) asserts that to-date, the husband has failed to comply in full with these orders.
C.All previous orders of the Court remain in full force and effect unless otherwise discharged by further order of the Court.
D.The husband presently receives progress claims and other invoices for payment from the builders or subcontractors carrying out construction for developments taking place at the following properties:
(a)B Street, Suburb C; and
(b)D Street and E Street, F Town.
THE COURT ORDERS THAT:
1.The wife file and serve an Undertaking as to Damages in writing in the usual terms within seven days of the date of these orders.
2.Pursuant to s 114 of the Family Law Act 1975 (Cth) (“the Act”), the husband be restrained, until further order, in his capacity as sole director and shareholder of G Pty Ltd, being an equal 50 per cent shareholder of H Pty Ltd, from dissipating, transferring, withdrawing or applying the proceeds of sale of the property located at J Street, Suburb K (folio …) (“J Street”) in any manner whatsoever, save and except in compliance with these orders.
3.Forthwith and within 72 hours of the date of these orders, the wife and the husband do all things and sign all documents necessary to transfer the entire net proceeds of sale of J Street to a controlled monies account operated by the wife's legal representatives, with such funds to thereafter be applied towards the construction costs for developments taking place at the following properties:
(a)B Street, Suburb C; and
(b)D Street and E Street, F Town.
4.To give effect to Order 3 above, the following applies:
(a)Within two days of the husband receiving an invoice for the payment of building or construction costs associated with the properties and/or developments at Orders 3(a) and 3(b), the husband is to provide to the wife with copies of the invoice/s via her solicitors;
(b)Within two days of the wife's receipt of any invoice pursuant to Order 4(a), the wife must confirm whether:
(i)The invoice is accepted and thereafter instruct that payment of the invoice be made from the controlled monies' account and provide the husband with a copy of the receipt of payment; or
(ii)If the terms of the invoice are disputed, the wife is to forthwith consult with the husband and the builders to reach agreement as to the terms of the invoice; and
(iii)In the event of agreement, the wife is to thereafter instruct her legal representatives that payment of the invoice be made of the agreed sum pursuant to any amended invoice issued and provide the husband with a copy of the receipt of payment.
5.Pursuant to s 114 of the Act, until further order, the husband be restrained in his capacity as sole director and shareholder of L Pty Ltd, from causing L Pty Ltd, as trustee for L Trust, to sign or exchange contracts for the sale of the properties located at Lot 1, M Street, Suburb O (folio …) (“M Street property”) and N Street, Suburb P (folio …) (“Suburb P property”), without the wife’s expressed written consent and for the purpose of this order, the husband shall provide all particulars and documents to the wife via her solicitors in relation to any proposed sale.
6.In the event the wife fails to comply with Order 1, Orders 2 and 5 be stayed, until further order.
Disclosure
7.By no later than 4.00 pm on 24 May, the husband provide the following documents to the wife's solicitors by way of full and frank financial disclosure in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”):
(a)All documents and particulars in accordance with the orders made on 17 February 2023;
(b)In relation to Q Pty Ltd:
(i)Quantity Surveyor report dated February 2023 for the properties located at E Street and D Street, F Town (“the F Town development”);
(ii)Signed Building Contract for the F Town development, including schedule of works and milestone payments, and any supporting documents evidencing construction costs to completion;
(iii)Project Valuation Report associated with the finance approval for the F Town development and updated valuation report associated with the loan extension;
(iv)Documents and particulars evidencing Ms R's purported loan of $3,032,526, including but not limited to the loan agreement and bank statements; and
(v)Mortgage statements with S Financial Services for the F Town development for the previous two years to date.
(c)In relation to the property located at B Street, Suburb C:
(i)Updated valuation and/or market appraisal;
(ii)Mortgage statements for the previous two years to date;
(iii)Documents and particulars evidencing the husband's parents purported loan of $1,000,000, including but not limited to the loan agreement and bank statements; and
(iv)Schedule of works, progress payments and other supporting documents for the construction of B Street, Suburb C evidencing:
A.The total sum applied towards the building costs to date; and
B.The further sum required to finish the building works.
(d)In relation to L Pty Ltd as trustee for the L Trust:
(i)Valuations and/or market appraisals for Lots 2, 3 and 4 M Street, Suburb O;
(ii)Valuation and/or market appraisal of $1,750,000 for Suburb P Property;
(iii)Mortgage statements for the Suburb P Property for the previous two years to date;
(iv)Rental income statements and bank statements evidencing all rent received for the Suburb K property and the Suburb P property from the date of purchase to date;
(v)Documents and particulars evidencing Ms R's purported loan of $450,000 for the Suburb P property, including but not limited to the loan agreement and bank statements;
(vi)Documents and particulars evidencing Ms U's purported loan of $200,000 for the Suburb P property, including but not limited to the loan agreement and bank statements;
(vii)Documents and particulars evidencing Ms R’s purported loan of $150,000 for the properties located at M Street, Suburb O, including but not limited to the loan agreement and bank statements; and
(viii)Documents and particulars evidencing Ms U's purported loan of $250,000 for the properties located at M Street, Suburb O, including but not limited to the loan agreement and bank statements.
(e)In relation to V Pty Ltd as trustee for the V Trust:
(i)Mortgage statements with W Financial Services from the date of settlement of the purchase of the properties to date, for the following:
A.1 Z Street, Suburb BB, QQ Region;
B.2 Z Street, Suburb BB, QQ Region; and
C.3 Z Street, Suburb BB, QQ Region;
(“the QQ Region properties”).
(ii)Rental income statements and bank statements evidencing all rent received for the QQ Region properties from the date of purchase to date;
(iii)Documents and particulars evidencing Ms R's purported loan of $60,000, including but not limited to the loan agreement and bank statements;
(iv)Documents and particulars evidencing Ms U's purported loan of $60,000, including but not limited to the loan agreement and bank statements; and
(v)Documents and particulars evidencing Ms CC's purported loan of $60,000, including but not limited to the loan agreement and bank statements.
(f)In relation to DD Pty Ltd as trustee for the DD Trust:
A.Mortgage statements for the following properties, for the past two years (if applicable) to date;
B.1 EE Street, Suburb FF;
C.2 EE Street, Suburb FF; and
D.GG Street, Suburb FF;
(“the Suburb FF properties”).
(ii)Valuation and/or market appraisals for the Suburb FF properties;
(iii)Documents and particulars evidencing Ms R's purported loan of $500,000, including but not limited to the loan agreement and bank statements; and
(iv)Rental income statements and bank statements evidencing all rent received for the Suburb FF properties from the date of purchase to date.
(g)In relation to G Pty Ltd as trustee for HH Trust:
(i)Valuation and/or market appraisal of $1,050,000 for the property located at JJ Street, Suburb O NSW ; and
(ii)Mortgage statements for the property located at JJ Street, Suburb O NSW for the previous two years to date.
(h)In relation to H Pty Ltd:
(i)Rental income statements and bank statements evidencing all rent received for J Street from the date of purchase to date; and
(ii)Mortgage statements for J Street from the date of purchase to date.
(i)All documents relating to the sale of J Street, including but not limited to the following:
(i)Contract for Sale;
(ii)Settlement Sheet;
(iii)The conveyancing file relating to the sale of J Street;
(iv)Cheque directions provided to the agent for the transfer of the net proceeds of sale;
(v)Bank statements confirming receipt of the net sale of proceeds; and
(vi)Particulars and all source documents in relation to how the net proceeds of sale have been applied and disbursed.
(j)The husband forthwith provide the wife's legal representatives with all documents and particulars in relation to the proposed sale of the M Street property and the Suburb P property, that are currently on the market for sale, including but not limited to:
(i)Signed Real Estate Contract for the sale of the M Street property and Suburb P property;
(ii)Documents regarding market and advertising campaigns, including duration and costs;
(iii)Signed Costs Agreements and/or Engagement of solicitors/ conveyancers acting on the sale;
(iv)Contracts for Sale of Land;
(v)Any offers submitted for the purchase of the M Street property and Suburb P property; and
(vi)The conveyancing file relating to the sale of the M Street property and Suburb P property.
Valuations
8.In the event the parties remain in dispute as to the value of any asset or financial resource owned by either of them within 14 days of the date of these orders, the parties shall jointly engage single expert valuer(s) pursuant to Div 7.1.2 of the Rules to undertake formal valuation(s) of such asset/s or financial resource/s, and for the purpose of this order:
(a)The wife shall provide to the husband, the names of three expert valuers (“list of valuers”) for each asset and/or financial resource to be valued (if multiple valuers are so required); and
(b)Within seven days of receipt of the list of valuers, the husband shall elect and provide written confirmation to the wife's legal representatives of the valuer/s he nominates from the list of valuers provided;
(c)In the event that the husband fails to nominate single expert valuer/s within seven days of the wife's compliance with Order 8(a) herein, the wife is at liberty to elect the single expert valuer/s for each asset and/or financial resource to be valued;
(d)Within seven days of receipt of the husband's nomination in compliance with Order 8(b) herein or the wife nominating the single expert valuer/s pursuant to Order 8(c) herein, the wife's legal representatives shall prepare a proposed joint letter/s of instruction to the single expert valuer/s and forward the same to the husband's legal representatives for the husband's input;
(e)Within seven days of receipt by the husband's legal representatives of the proposed joint letter/s of instructions to the single expert valuer/s as provided for in Order 8(d) herein, the husband shall confirm his agreement to the release of the letter/s in their original form or propose amendments that he seeks to be made and:
(i)In the event of agreement being received from the husband, the wife shall forthwith cause her legal representatives to release the joint letter/s of instructions to the single expert valuer/s; or
(ii)In the event the husband fails to respond to the wife's draft joint letter/s of instructions in compliance with Order 8(e) herein, the wife shall be at liberty to forthwith cause her legal representatives to release the joint letter/s of instructions to the single expert valuer/s as drafted by the wife's legal representatives, ensuring that the husband's legal representatives are copied into the correspondence with the single expert valuer/s; or
(iii)In the event the husband's proposed amendments to the joint letter/s of instructions are not agreed by the wife, and the parties are unable to resolve the issues in dispute, then the wife has liberty to re-list the matter on seven days’ notice; and
(iv)The husband shall pay the costs of the single expert valuer/s in the first instance in accordance with orders made on 17 June 2022.
9.At all times, all instructions to the expert valuer/s shall be in writing and jointly provided by the legal representatives for both parties.
10.By no later than close of registry filing on 31 May 2023, the husband shall file:
(a)A further Undertaking as to Disclosure in accordance with the Rules;
(b)An affidavit detailing his disclosure in these proceedings in accordance with orders of the Court and the Rules.
11.In the event there is any non-compliance by the husband with any undischarged or other order of this Court which is not yet exhausted in these proceedings, including Order 10 above, after the date of these orders:
(a)His Response shall stand dismissed; and
(b)The wife may apply to the chambers of the Docket Judge to list the proceedings for final hearing as if undefended.
12.For the purposes of Order 11, the wife may file and serve an affidavit detailing the evidence said to demonstrate non-compliance by the husband.
13.The parties are granted leave to issue up to eight further subpoenas each.
14.Costs of the wife’s application filed on 29 March 2023 are reserved.
15.In the event any party seeks further interlocutory or procedural orders:
(a)The moving party for such orders shall file and serve the appropriate Application in a Proceeding supported by affidavit, and in accordance with the Rules;
(b)If the moving party seeks a listing on an urgent basis:
(i)Their application shall include a specific order seeking an urgent listing; and
(ii)In addition to taking any steps required by the Rules, and the processes of the Court Registry, that party may contact the chambers of Justice Harper by email, copying all other parties, to advise of the application for urgent listing.
16.No email communication is to be made with the chambers of Justice Harper except in circumstances specifically permitted by these or earlier orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhuo & Ji has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
These are property proceedings under Part VIII of the Family Law Act, 1975 (“the Act”) between the Applicant Wife, Ms Zhuo (“wife”) and the Respondent Husband, Mr Ji (“husband”).
The proceedings were commenced by the wife by way of Initiating Application filed on 20 May 2022 in Division 2 of the Federal Circuit and Family Court of Australia (formerly the Federal Circuit Court). The proceedings were transferred to this Court on 1 June 2022. The husband filed a Response on 29 September 2022.
There was no dispute that the Court has made previous orders of an injunctive nature or for disclosure on 1 and 17 June 2022, 4 August 2022, 11 October 2022, and 17 February 2023. These will be referred to as necessary in these reasons. This judgment deals with the wife’s interlocutory application for the continuation and enlargement of injunctive relief filed on 29 March 2023.
The husband filed an Undertaking as to Disclosure pursuant to Pts 6.01 and 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”) on 29 September 2022.
On 1 June 2022 (“1 June orders”), orders were made, inter alia, restraining the husband in his capacity as director or shareholder of numerous entities, including H Pty Ltd V Pty Ltd, G Pty Ltd and L Pty Ltd, “from doing any act of thing that may cause [a number of real properties] to be sold, transferred, assigned, encumbered, alienated in any manner whatsoever, except with the written consent of the other party or by Order of this Court”. Those real properties included J Street, Suburb K (“J Street”), Lot 1, M Street, Suburb O (“M Street”) and N Street, Suburb P (“Suburb P property”).
The 1 June orders also restrained the husband as director and shareholder of the same companies from dissipating, transferring, withdrawing funds from financial institutions other than in the ordinary course of business, and from calling or holding meetings to consider or vote upon resolutions for, inter alia, the issuing of any further shares, altering share rights, appointing further directors or dealing with assets other than, again, in the ordinary course of business, borrowing or repaying loans (Orders 3, 6, 7).
On 11 October 2022, the Court made further injunctive Orders 1 – 8 in the following terms:
1.Pursuant to section 114 of the Family Law Act 1975 (Cth), the Husband be restrained by injunction from selling, mortgaging, assigning, disposing, alienating or further encumbering any and all real properties within and outside of Australia held in his sole name or jointly with any other person or entity, including but not limited to the following properties situate at and known as [B Street], [Suburb C] in the State of New South Wales (folio identifier […]), save and accept that the Husband asserts that he is borrowing funds from his parents for the purpose of financing the completion of the knock down rebuild on this property. (may need to refinance)
2.Pursuant to section 114 of the Family Law Act 1975 (Cth), the Husband be restrained by injunction in his capacities as directors and/or shareholder of the following companies (the companies):
2.1 [V Pty Ltd];
…
2.4 [H Pty Ltd];
…
2.8 [L Pty Ltd];
…
2.11 [G Pty Ltd];
…
from doing any act or thing that may cause the following real properties to be sold, transferred, assigned, encumbered, alienated in any manner whatsoever, except with the written consent of the other party or by Order of this Court or with at least 28 days written notice to the Wife's legal representatives providing all relevant particulars:
2.13 [D Street], [F Town] and [E Street], [F Town] (folio […]);
…
3. Pursuant to section 114 of the Family Law Act 1975 (Cth), the Husband be restrained by injunction in his capacities as directors and/or shareholder of the companies referred to in order 2 above, from doing any act or thing that may cause the following real properties to be sold, transferred, assigned, encumbered, alienated in any manner whatsoever, except with at least 28 days written notice to the Wife's legal representatives providing all relevant particulars:-
3.1 [Lots 1, 2, 3, and 4] of [M Street], [Suburb O] with folio references: […], […], […], […];
3.2 [N Street], [Suburb P] (folio […]); and
3.3 [J Street], [Suburb K] (folio […]).
4. The Husband is restrained in his capacity as director and shareholder of [KK Pty Ltd] from applying the net proceeds of sale of the property situated at [LL Street], [Suburb NN] (folio identifier […]) other than towards the parties' knock down and rebuild with respect to [B Street], [D Street] and [E Street], [MM Street], [Suburb C], save for capital gains tax on the sale of [B Street], and company taxes.
5. The Husband is restrained in his capacity as director and shareholder of [L Pty Ltd] from applying the net proceeds of sale of the properties situated at [5, 6 and 7 M Street], [Suburb O] (folio identifiers […], […] and […]) other than towards the parties' knock down and rebuild with respect to [B Street], [Suburb C].
6. The Husband is restrained by injunction in his capacities as directors and/or shareholder of the following companies from dissipating, transferring, withdrawing funds of any accounts held by the companies with financial institutions, cheque books, internet banking or international wire transfers UNLESS in the usual course of business or otherwise provide at least 28 days written notice to the wife's legal representatives providing all relevant particulars:
6.1 [V Pty Ltd];
…
6.7 [H Pty Ltd];
…
6.12 [L Pty Ltd];
…
6.16 [G Pty Ltd];
…
7. The Husband is restrained by injunction from calling for, holding, attending and voting at any meeting in the companies referred to in Order 6 where it is proposed that all or any one of the following things be done, and that the Husband be restrained by injunction from voting in favour of any resolution whereby it is proposed that any of the following be done unless the Husband has provided at least 28 days written notice to the Wife's legal representatives providing all relevant particulars:
7.1 to issue any or further shares in the said companies;
7.2 to alter the rights attaching to any shares or any issued in the said companies;
7.3 to register any shares already issued but not registered in the said companies;
7.4 to appoint any further directors of the companies;
7.5 to dismiss all or any directors presently appointed by the companies;
7.6 to sell, mortgage, charge, encumber or otherwise deal with the assets of the companies, other than in the usual course of business;
7.7 to make any loan or advance to the companies;
7.8 to make any repayment of monies owing, other than in the usual course of business;
7.9 to guarantee any loan or contractual liabilities of the companies, other than in the usual course of business;
7.10 to alter or vary the signatories to the bank accounts of any of the companies; and
7.11 to register a transfer of any shares of the Husband to any person or entity.
8.The Husband is restrained by injunction in his capacity as director and/or shareholder of the following entities:
8.1 [L Pty Ltd];
…
8.3 [G Pty Ltd];
8.4 [H Pty Ltd];
…
including in his capacity as trustees for the following trusts, respectively:
8.7 [L Trust];
…
from transferring any funds, income and/or real properties, distributing any capital from the above named trusts and repaying any monies arising from a credit loan account to any person or entity, except with the written consent of both parties or by Order of this Court other than in the usual course of business or with at least 28 days written notice to the Wife's legal representatives providing all relevant particulars.
The wife filed an Application in a Proceeding and affidavit in support on 29 March 2023, which was listed for an urgent interim hearing on 12 April 2023.
On 31 March 2023, the Court made further interlocutory orders restraining the husband from dealing with certain properties without the prior written consent of the wife. These orders were supported by the wife giving an undertaking as to damages in the usual terms. For the protection of the respondent’s interests, orthodox principle usually requires such an undertaking as essential to the grant of interlocutory injunctive relief, although the Court retains a discretion: see for example, First Netcom Pty Ltd v TelstraCorporation Ltd (2000) 101 FCR 77 at [22]. Rule 1.05 defines “undertaking as to damages” to mean an undertaking referred to in r 10.18(5), which itself is in the following terms:
(5) An undertaking as to damages is an undertaking:
(a)to submit to such order (if any) as the court may consider to be just for the payment of compensation (to be assessed by the court or as the court may direct) to any person (whether or not that person is a party) affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and
(b)to pay compensation referred to in paragraph (a) to the person affected by the order or undertaking.
No submissions by either party were directed to the question of any further or renewed undertaking as to damages in connection with the orders the subject of this judgment. The husband took no point that the wife’s existing undertaking was insufficient, nor did he expressly raise the need for a further undertaking. In the circumstances I am satisfied the parties proceeded on the basis that the wife’s earlier undertaking continues. But to avoid doubt, as a condition of making the orders, I will require her to file an undertaking as to damages in writing within seven days. Rather than express this as a condition of the operation of the orders, I will impose a stay of the restraining orders as a self-executing order in the event the wife fails to provide the undertaking.
The wife filed a Case Outline on 12 April 2023 which included a proposed Minute of Order, which substantially repeated the orders sought in her Application. In response, the husband relied upon an affidavit sworn 27 March 2023, Response and further affidavit both filed on 11 April 2023.
The orders sought by the wife are set out in Schedule 1 to these reasons. In summary, the material orders can be described as follows.
The wife pressed notations A and B, which were not opposed by the husband. Paragraph 3 seeks to restrain the husband from dealing with the proceeds of sale of J Street, while paragraphs 4 and 5 require the transfer of the proceeds into a controlled moneys account to be applied towards the payment of progress claims for development projects at B Street, Suburb C (“Suburb C project”) and D Street and E Street, F Town (“F Town project”).
Both the Suburb C and F Town projects have commenced construction. There is no superintendent or project manager for either project as far as the evidence shows.
The wife did not press paragraphs 7 and 8 concerning the lodgements of caveats.
Paragraph 6 seeks a restraint upon the husband in his capacity as sole director and shareholder of L Pty Ltd as trustee for L Trust, from signing or exchanging contracts for the sale of M Street and Suburb P property, without the wife’s written consent.
Paragraphs 9 to 13 and 14 to 17 inclusive seek the appointment of the wife as trustee for sale of both M Street and Suburb P property, with the proceeds of sale to be applied ultimately, again, to the Suburb C and F Town projects.
Paragraph 22 seeks specific disclosure and paragraph 23 relates to valuations, both can be made without opposition.
The wife argued that the evidence showed the husband has not met his obligations of disclosure, has not been candid with the Court about his dealings with numerous property interests and has in fact breached earlier injunctive orders of the Court.
According to the evidence of the wife, the husband is the sole director and shareholder of G Pty Ltd. H Pty Ltd owned J Street, and G Pty Ltd owns 50 per cent of the shares in H Pty Ltd. The other 50 per cent is owned by a Mr OO whom the wife knows as the former boyfriend of Ms U, with whom she contends the husband has had a relationship. Mr OO is the sole director of H Pty Ltd. The husband did not dispute this.
The husband and Ms U are also beneficiaries of the L Trust.
L Pty Ltd owns both M Street and the Suburb P property, and the wife’s evidence is that L Pty Ltd is seeking to sell both properties, under the control of the husband. Contrary to existing Court orders, the wife received no notice or information from the husband about these proposed sales and discovered the listing for sale by reason of her own searches.
The wife argued:
The husband has, to date, demonstrated a flagrant disregard for Court Orders, and to his obligations to provide full and frank financial disclosure. It is the husband's own evidence at paragraph 13 of his Affidavit filed 11 April 2023 that, "no property of the said trust [being the [L Trust]] has been sold or money transferred that would give rise to an obligation to disclose pursuant to the Orders dated 11 October 2022". This is despite the fact that the Husband has breached Order 3 of the Orders made on 11 October 2022 by selling [J Street], and by placing the [Suburb P] and [M Street] properties on the market to be sold, the latter two of which are owned by [L Pty Ltd] as trustee for [L Trust].
Wife’s Case Outline filed 12 April 2023, paragraph 19.
It is plain, by reason of the existing injunctive orders, that the Court has been satisfied that the wife has demonstrated a prima facie case for, and that the balance of convenience favours, interlocutory relief. The husband did not contend otherwise. Candidly and appropriately, counsel for the husband also conceded that the husband has likely acted in breach of the existing injunctions in the manner argued by the wife, despite giving evidence that he only acted in the ordinary course of business. There was no argument made to the effect that the husband’s disclosure has been sufficient.
I am satisfied the previous regime of orders has not been sufficient to deliver adequate disclosure to the wife or to prevent dealings with assets as the existing orders intended. In light of the history of this matter, and the serial failures of the husband to adhere to Court orders, so as to apprise the wife of material dealings with properties, the proceeds of sale of J Street, should be placed into a controlled monies account under the control of the wife’s solicitors.
It is also in the interests of both parties for the F Town and Suburb C projects to be completed. It is also the clear purpose of the proposed controlled monies account to help enable this to happen.
Paragraph 5 of the wife’s proposed orders provides for payment of progress claims for the Suburb C and F Town projects out of the controlled monies account but under the joint control of the husband and the wife. This would require the wife to form a view as to whether she should dispute a builder’s invoice provided to her by the husband, then liaise with both the builder and husband if there is a dispute. There was no evidence that the wife has any construction or building expertise or particular knowledge of the projects which would allow her to assess in any meaningful way progress claims. For those reasons, it may be thought the proposed order seems both impractical and likely to lead to further disputes, or risk the need for further supervision by the Court. However, on reflection, paragraph 5 stands in aid of implementation of other orders, and its evident purpose is to give the wife a degree of control over expenditure for the Suburb C and F Town projects. She can seek expert advice about any claims for payment relating to either project, if she chooses. It may be that the order will result in further dispute, but presently and on balance, I am persuaded such an order should be made on an interlocutory basis, in the circumstances of this case.
I also accept that there is reason to conclude it would be desirable for the wife to be placed in control of the sale of M Street and Suburb P property. However, the proposed orders appointing her as trustee for sale cannot be made, in my view, at least this stage. Neither spouse party is the owner of either M Street or Suburb P property. The owner of both is L Pty Ltd as trustee for L Trust. The wife’s proposed orders would thus result in property of a third party to the marriage being vested in her as trustee for the purpose of sale at an interlocutory stage of the proceedings. On the wife’s own evidence, the husband is not the sole beneficiary in the L Trust. The wife did not invite me, and I am unable, to conclude at an interlocutory stage that M Street and Suburb P property are property of a party to the marriage, even if there is evidence to suggest the husband exercises a high degree of control over the affairs of L Pty Ltd. L Pty Ltd as trustee for L Trust is not a party to the proceedings, nor is its joinder proposed, even though the appointment of the wife as trustee for sale would materially affect its interests.
Having said that, it is sufficiently clear that the Court has endeavoured to move the proceedings forward with procedural orders, and to bring about disclosure and to preserve assets on an interlocutory basis, but the husband has not complied and has demonstrated an unwillingness to co-operate adequately with the functioning of the Court’s processes. I conclude that he has failed in his obligation, set forth in s 68 of the Act to act consistently with the overarching purpose of the family law practice and procedure provisions for a quick, inexpensive and efficient resolution of the proceedings (s 67 (1)). In particular, by impeding the satisfaction of the objectives for the just determination of all proceedings, the efficient use of the judicial and administrative resources available for the purposes of the Court, and the efficient disposal of the Court’s overall caseload (s 67(2)(a), (b), (c) and (d)).
The family law practice and procedure provisions include the Rules (s 67(4)(b)). Rule 1.04 sets out a further statement of the overarching purpose and r 1.06 gives the Court extensive powers to achieve the overarching purpose, including the making of a self-executing order. By r 1.33(2), where a party does not comply with the Rules or a procedural order the Court may dismiss all or part of the proceeding, determine the proceeding as if undefended, or make any other order the Court considers necessary, having regard to the overarching purpose of the Rules.
In addition to the orders sought by the wife which I am prepared to make, in light of the overarching purpose and the provisions in the Rules mentioned above, I will also order the husband to file a further Undertaking as to Disclosure and file an affidavit setting out the disclosure he has made in accordance with the orders at the start of these reasons. I will also make a self-executing order dismissing the husband’s Response in the event of any further non‑compliance and permitting the wife to apply to list the proceedings for final hearing as if undefended.
Several other matters require short comment. The wife sought expedition of the proceedings. She pointed to past non-compliance by the husband and a risk of the dissipation of assets. I am not prepared to accept this is a basis for expedition in these proceedings. The extensive orders already made, together with the orders made pursuant to these reasons are, presently at least, sufficient to preserve the asset pool, and any further non-compliance may result in a hearing undefended by the husband. I decline expedition. I will grant leave for the parties to issue eight further subpoenas.
The wife has been substantially successful, but the question of costs of her application should be reserved at this stage of the proceedings.
I am satisfied for the foregoing reasons that the orders set out at the commencement of these reasons should be made. They are substantially, if not entirely, in the form proposed by the wife.
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 10 May 2023
SCHEDULE 1 – WIFE’S MINUTE OF ORDERS SOUGHT
IT IS NOTED THAT:
A. These proceedings were initiated on 20 May 2022.
B. Interim orders were made requiring the Respondent Husband to provide full and frank disclosure on 1 June 2022, 17 June 2022, 4 August 2022, 11 October 2022, and 17 February 2023. The Applicant Wife asserts that to-date, the Respondent Husband has failed to comply in full with these Orders.
IT IS ORDERED:-
1. That this Application be listed on an urgent basis.
2. That all times be abridged to enable the urgent hearing of this interim Application.
Injunctions
3. That pursuant to s 114 of the Family Law Act 1975 (Cth) (“the Act”), the Respondent Husband be restrained in his capacity as sole director and shareholder of [G Pty Ltd], being an equal 50% shareholder of [H Pty Ltd], from dissipating, transferring, withdrawing or applying the proceeds of sale of the property located at [J Street], [Suburb K] (folio […]) in any manner whatsoever, save and except in compliance with Order 4 herein.
4. That forthwith and within 24 hours of the date of these Orders, the Husband do all things and sign all documents necessary to transfer the entire net proceeds of sale of the property located at [J Street], [Suburb K] (folio […]) to a controlled monies account operated by the Wife's legal representatives, with such funds to thereafter be applied towards the constructions costs for the following properties and/or developments:
4.1 [B Street], [Suburb C]; and
4.2 [D Street] and [E Street], [F Town].
5. To give effect to Order 4 above, the following applies:
5.1 Within two (2) days of the Husband receiving an invoice for the payment of construction costs associated with the properties and/or developments at Orders 4.1 and 4.2 the Husband is to provide to the Wife with copies of the invoice/s via her solicitors;
5.2 Within two (2) days of the Wife's receipt of any invoice pursuant to Order 5(i), the Wife must confirm whether:
5.2.1 the invoice is accepted and thereafter instruct that payment of the invoice be made from the controlled monies' account and provide the Husband with a copy of the receipt of payment, or
5.2.2 if the terms of the invoice are disputed, the Wife is to forthwith liaise with the Husband and the builders to reach agreement as to the terms of the invoice and the wife is to thereafter instruct that payment of the invoice be made of the agreed sum pursuant to any amended invoice issued and provide the Husband with a copy of the receipt of payment.
6. That pursuant to s 114 of the Act, the Husband be restrained in his capacity as sole director and shareholder of [L Pty Ltd] as trustee for [L Trust], from signing or exchanging contracts for the sale of the properties located at [Lot 1, M Street], [Suburb O] (folio […]) ([M Street] property) and [N Street], [Suburb P] (folio […]) ([Suburb P] property), without the wife expressed written consent and for the purpose of this Order, the Husband shall provide all particulars and documents to the Wife via her solicitors in relation to any proposed sale.
Caveats
7. That that Wife be entitled by this Order to lodge caveats over the following properties:
7.1 [Lot 1, M Street], [Suburb O] (folio […]);
7.2 [N Street], [Suburb P] (folio […]);
7.3 [JJ Street], [Suburb O] (folio […]);
7.4 [B Street], [Suburb C] (folio […]);
7.5 [D Street], [F Town] and [E Street], [F Town] (folio […]);
7.6 [1 EE Street], [Suburb FF] (folio […]);
7.7 [2 EE Street], [Suburb FF] (folio […]);
7.8 [GG Street], [Suburb FF] (folio […]);
7.9 [1 Z Street], [Suburb BB], [QQ Region] (folio […]);
7.10 [2 Z Street], [Suburb BB]. [QQ Region] (folio […]); and
7.11 [3 Z Street], [Suburb BB], [QQ Region] (folio […]).
8. That the Husband be restrained from lodging or filing a lapsing notice of any caveat lodged by the Wife over the properties referred to at Orders 7(i) to 7(xi) inclusive or from bringing any proceedings to cause the lapsing of said caveats.
OR, in the alternative to Orders 7(i) and 7(ii) and 8 as applicable, the Wife seeks the following Orders 9 to 17 inclusive:
Trustee for sale of [M Street] property
9. That the Wife ("the trustee") be appointed as trustee for the sale of the property located at [Lot 1, M Street], [Suburb O] (folio […]) ([M Street] property) and that property shall vest in the trustee for the purpose of sale.
10. The trustee is empowered to take possession of the [M Street] property and require vacant possession in order to effect sale of the [M Street] property, and that for the purposes of this order, the husband be restrained from attending the [M Street] property or coming within 100 metres of the property or causing his agent to do so.
11. That without limiting the trustee's power under the terms of these orders, the trustee is empowered to do all things, act and sign all documents necessary to effect a sale of the [M Street] property, including but not limited to:
11.1 Determining whether the sale be by private treaty or auction;
11.2 Determining the real estate agent with whom to list the [M Street] property;
11.3 Determining the conveyancer or solicitor who is to carry out the settlement including completing client authorisation;
11.4 Determining the listing price from time to time, or the reserve price in the event of sale by auction;
11.5 Determining all terms of sale;
11.6 Completing the vendor statement and contract of sale;
11.7 Completing discharge of mortgage documents;
11.8 Completing all PEXA including transfer of land and withdrawal of caveat;
11.9 Completing State Revenue Office documents; and
11.10 Any other documents required to enforce the sale of the [M Street] property.
12. On settlement of the sale of the [M Street] property, the trustee shall do all acts and sign all documents necessary to direct the net sale proceeds to be paid in the following manner and priority:
12.1 Payment of trustee's expenses, agent's commission and advertising and legal expenses of the sale;
12.2 Any outstanding auctioneer's expenses or valuation fees relating to the sale of the [M Street] property;
12.3 The usual council and water rate adjustment;
12.4 The sum required to discharge the mortgage secured over the [M Street] property to [PP Trust Limited];
12.5 The sum required to pay to the Wife any unpaid interim spouse maintenance pursuant to the Orders made on 18 October 2022; and
12.6 The balance be paid into a controlled monies' account operated by the Wife's legal representatives, with the funds to be applied towards the construction costs for the following properties and/or developments:
12.6.1 [B Street], [Suburb C]; and
12.6.2 [D Street] and [E Street], [F Town];
12.7 To give effect to Order 12.6 above, the process set out at Order 5 applies.
13. That the parties be granted liberty to relist the matter on short notice, and within seven (7) days of notifying the Court of any difficulties in the implementation of these Orders.
Trustee for sale of [Suburb P] property
14.That the Wife be appointed as trustee (“trustee”) for the sale of the property located at [N Street], [Suburb P] (folio […]) (“[Suburb P] property) and that [Suburb P] property shall vest in the trustee for the purpose of sale.
15. The trustee is empowered to take possession of the [Suburb P] property and require vacant possession in order to effect sale of the property, and that for the purposes of this order, the husband be restrained by injunction from attending the [Suburb P] property or coming within 100 metres of the [Suburb P] property or causing his agent to do so.
16. That without limiting the trustee’s power under the terms of these orders, the trustee is empowered to do all things, act and sign all documents necessary to effect a sale of the [Suburb P] property, including but not limited to:
16.1 Determining whether the sale be by private treaty or auction;
16.2 Determining the real estate agent with whom to list the [Suburb P] property;
16.3 Determining the conveyancer or solicitor who is to carry out the settlement including completing client authorisation;
16.4 Determining the listing price from time to time, or the reserve price in the event of sale by auction;
16.5 Determining all terms of sale;
16.6 Completing the vendor statement and contract of sale;
16.7 Completing discharge of mortgage documents;
16.8 Completing all PEXA including transfer of land and withdrawal of caveat;
16.9 Completing State Revenue Office documents; and
16.10 Any other documents required to enforce the sale of the [Suburb P] property.
17. On settlement of the sale of the [Suburb P] property, the trustee shall do all acts and sign all documents necessary to direct the net sale proceeds to be paid in the following manner and priority:
17.1 Payment of trustee's expenses, agent's commission and advertising and legal expenses of the sale;
17.2 Any outstanding auctioneer's expenses or valuation fees relating to the sale of the [Suburb P] property;
17.3 The usual council and water rate adjustment;
17.4 The sum required to discharge the mortgage secured over the [Suburb P] property to [T Trust Limited];
17.5 The sum required to pay to the Wife any unpaid interim spouse maintenance pursuant to the Orders made on 18 October 2022, if such sum is not otherwise discharged in full upon sale of the [M Street] property; and
17.6 The balance to be paid into a controlled monies' account operated by the Wife's legal representatives, with the funds to be applied towards the construction costs for the following properties and/or developments:
17.6.1 [B Street], [Suburb C]; and
17.6.2 [D Street] and [E Street], [F Town];
17.7 To give effect to Order 17.6, the process set out at Order 5 applies.
18. That in the event any of the real properties listed at Order 7 have been sold and settled, then the Husband shall forthwith and within 24 hours of the date of these Orders, do all things and sign all documents necessary to transfer the entire net sale proceeds of sale of the said properties referred to at Order 7 (or any one of those properties) into a controlled monies' account operated by the Wife's legal representatives, with the funds to be applied towards the constructions costs for the following properties and/or developments:
18.1 [B Street], [Suburb C]; and
18.2 [D Street] and [E Street], [F Town];
19. To give effect to Order 18, the process set out at Order 5 applies.
20. That the Husband shall be restrained from taking any action or step which would have the effect of thwarting Orders 9 to 17 inclusive.
21. That the injunctions made in accordance with the Orders dated 11 October 2022 remain in full force and effect.
Disclosure
22. That within seven (7) days of the date of these Orders, the Husband provide the following documents to the Wife's solicitors by way of full and frank financial disclosure:
22.2.1 All documents and particulars in accordance with the Orders made on 17 February 2023;
22.2 In relation to [Q Pty Ltd]:
22.2.1 Quantity Surveyor report dated [early] 2023 for the properties located at [E Street] and [D Street], [F Town]) ('the [F Town] development');
22.2.2 Signed Building Contract for the [F Town] development, including schedule of works and milestone payments, and any supporting documents evidencing construction costs to completion;
22.2.3 Project Valuation Report associated with the finance approval for the [F Town] development and updated valuation report associated with the loan extension;
22.2.4 Documents and particulars evidencing [Ms R's] purported loan of $3,032,526, including but not limited to the loan agreement and bank statements.
22.2.5 Mortgage statements with [S Financial Services] for the [F Town] development for the previous two years to date;
22.3 In relation to the property located at [B Street], [Suburb C]:
22.3.1 Updated valuation and/or market appraisal;
22.3.2 Mortgage statements for the previous two years to date;
22.3.3 Documents and particulars evidencing the Husband's parents purported loan of $1,000,000, including but not limited to the loan agreement and bank statements;
22.3.4 Schedule of works, progress payments and other supporting documents for the construction of [B Street], [Suburb C] evidencing:
(a) The total sum applied towards the building costs to date; and
(b) The further sum required to finish the building works.
22.4 In relation to [L Pty Ltd] as trustee for the [L Trust]:
22.4.1 Valuations and/or market appraisals for Lots [2, 3 and 4] of [M Street], [Suburb O];
22.4.2 Valuation and/or market appraisal of $1,750,000 for [N Street], [Suburb P] NSW […];
22.4.3 Mortgage statements for the property located at [N Street], [Suburb P], NSW for the previous two years to date;
22.4.4 Rental income statements and bank statements evidencing all rent received for the [Suburb K] property and the [Suburb P] property from the date of purchase to date;
22.4.5 Documents and particulars evidencing [Ms R's] purported loan of $450,000 for the [Suburb P] property, including but not limited to the loan agreement and bank statements;
22.4.6 Documents and particulars evidencing [Ms U's] purported loan of $200,000 for the [Suburb P] property, including but not limited to the loan agreement and bank statements;
22.4.7 Documents and particulars evidencing [Ms R's] purported loan of $150,000 for the properties located at [M Street], [Suburb O], including but not limited to the loan agreement; and bank statements;
22.4.8 Documents and particulars evidencing [Ms U's] purported loan of $250,000 for the properties located at [M Street], [Suburb O], including but not limited to the loan agreement and bank statements.
22.5 In relation to [V Pty Ltd] as trustee for the [V Trust]
22.5.1 Mortgage statements with [W Financial Services] from the date of settlement of the purchase of the properties to date, for the following:
(a) [1 Z Street], [Suburb BB], [QQ Region];
(b) [2 Z Street], [Suburb BB], [QQ Region];
(c) [3 Z Street], [Suburb BB], [QQ Region];
(“the [QQ Region] properties”)
22.5.2 Rental income statements and bank statements evidencing all rent received for [the QQ Region] properties from the date of purchase to date;
22.5.3 Documents and particulars evidencing [Ms R's] purported loan of $60,000, including but not limited to the loan agreement and bank statements;
22.5.4 Documents and particulars evidencing [Ms U's] purported loan of $60,000, including but not limited to the loan agreement and bank statements; and
22.5.5 Documents and particulars evidencing [Ms CC's] purported loan of $60,000, including but not limited to the loan agreement and bank statements.
22.6 In relation to [DD Pty Ltd] as trustee for the [DD Trust]:
22.6.1 Mortgage statements for the following properties, for the past two years (if applicable) to date;
(a) [1 EE Street], [Suburb FF];
(b) [2 EE Street], [Suburb FF]; and
(c) [GG Street], [Suburb FF]
(“the [Suburb FF] properties”)
22.6.2 Valuation and/or market appraisals for the [Suburb FF] properties; and
22.6.3 Documents and particulars evidencing [Ms R's] purported loan of $500,000, including but not limited to the loan agreement and bank statements.
22.6.4 Rental income statements and bank statements evidencing all rent received for the [Suburb FF] properties from the date of purchase to date.
22.7 In relation to [G Pty Ltd] as trustee for [HH Trust]:
22.7.1 Valuation and/or market appraisal of $1,050,000 for the property located at [JJ Street], [Suburb O] NSW […]; and
22.7.2 Mortgage statements for the property located at [JJ Street], [Suburb O] NSW […] for the previous two years to date;
22.8 In relation to [H Pty Ltd]:
22.8.1 Rental income statements and bank statements evidencing all rent received for the property located at [J Street], [Suburb K] from the date of purchase to date.
22.8.2 Mortgage statements for the property located at [J Street], [Suburb K] date of purchase to date;
22.9 All documents relating to the sale of the property situated at and known as [J Street], [Suburb K], (folio […]) ("the [Suburb K] Property"), including but not limited to the following:
22.9.1 Contract for Sale;
22.9.2 Settlement Sheet;
22.9.3 The conveyancing file relating to the sale of the [Suburb K] Property;
22.9.4 Cheque directions provided to the agent for the transfer of the net proceeds of sale;
22.9.5 Bank statements confirming receipt of the net sale of proceeds; and
22.9.6 Particulars and all source documents in relation to how the net proceeds of sale have been applied and disbursed.
22.10 That the husband forthwith provide the wife's legal representatives with all documents and particulars in relation to the proposed sale of the properties situated at [Lot 1, M Street], [Suburb O], ([M Street] property) and [N Street], [Suburb P] ([Suburb P] property), that are currently on the market for sale, including but not limited to:
22.10.1 Signed Real Estate Contract for the sale of the [M Street] property and [Suburb P] property;
22.10.2 Documents regarding market and advertising campaigns, including duration and costs;
22.10.3 Signed Costs Agreements and/or Engagement of solicitors / conveyancers acting on the sale;
22.10.4 Contracts for Sale of Land;
22.10.5 Any offers submitted for the purchase of the [M Street] property and [Suburb P] property; and
22.10.6 The conveyancing file relating to the sale of the [M Street] property and [Suburb P] property.
Valuations
23. That in the event the parties remain in dispute as to the value of any asset or financial resource owned by either of them within fourteen (14) days of the date of these Orders, the parties shall jointly engage single expert valuer(s) pursuant to Div 7.1.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to undertake formal valuation(s) of such asset/s or financial resource/s, and for the purpose of this Order:
23.1 The Wife shall provide to the Husband, the names of three (3) expert valuers ('list of valuers') for each asset and/or financial resource to be valued (if multiple valuers are so required); and
23.2 Within seven (7) days of receipt of the list of valuers, the Husband shall elect and provide written confirmation to the Wife's legal representatives of the valuer/s he nominates from the list of valuers provided;
23.3 In the event that the Husband fails to nominate single expert valuer/s within seven (7) days of the wife's compliance with Order 23.1 herein, the Wife is at liberty to elect the single expert valuer/s for each asset and/or financial resource to be valued;
23.4 Within seven (7) days of receipt of the Husband's nomination in compliance with Order 23.2 herein or the Wife nominating the single expert valuer/s pursuant to Order 23.3 herein, the Wife's legal representatives shall prepare a proposed joint letter/s of instruction to the single expert valuer/s and forward the same to the Husband's legal representatives for the Husband's input;
23.5 Within seven (7) days of receipt by the Husband's legal representatives of the proposed joint letter/s of instructions to the single expert valuer/s as provided for in Order 23.4 herein, the Husband shall confirm his agreement to the release of the letter/s in their original form or propose amendments that he seeks to be made and:
23.5.1 In the event of agreement being received from the Husband, the Wife shall forthwith cause her legal representatives to release the joint letter/s of instructions to the single expert valuer/s; or
23.5.2 In the event the Husband fails to respond to the Wife's draft joint letter/s of instructions in compliance with Order 23(v) herein, the Wife shall be at liberty to forthwith cause her legal representatives to release the joint letter/s of instructions to the single expert valuer/s as drafted by the Wife's legal representatives, ensuring that the Husband's legal representatives are copied into the correspondence with the single expert valuer/s; or
23.5.3 In the event the Husband's proposed amendments to the joint letter/s of instructions are not agreed by the Wife, and the parties are unable to resolve the issues in dispute, then the Wife has liberty to re-list the matter on seven (7) days notice.
23.6 That the Husband shall pay the costs of the single expert valuer/s in the first instance in accordance with Orders made on 17 June 2022; and
23.7 At all times, all instructions to the expert valuer/s shall be in writing and jointly provided by the legal representatives for both parties.
24. That this matter be expedited with final hearing dates to be fixed with priority.
25. That the Applicant be granted liberty to issue more than five (5) subpoenas.
26. That the Respondent Husband pay the Wife's costs of and incident to this Application.
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