Bing and Bing

[2007] FamCA 192

FAMILY COURT OF AUSTRALIA

BING & BING [2007] FamCA 192

FAMILY LAW - PROPERTY - Costs - Interim

APPLICANT: MRS BING

RESPONDENT: MR BING

FILE NUMBER: MLF 1745 of 2006

DATE DELIVERED: 9 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 9 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N.J. Ackman QC
with Ms K.M. MacMillan

SOLICITOR FOR THE APPLICANT: Trumble Szanto Lawyers

COUNSEL FOR THE RESPONDENT: Mr T. North SC
with Mr G.R. Atkinson

SOLICITOR FOR THE RESPONDENT: Rockman & Rockman

Orders

On the matter of Be, 1745 of 2006, I order as follows:

1. That within 14 days the husband pay to the wife's solicitor on behalf of the wife  the sum of $230,000 as follows:

   (a)       as to $200,000, by way of security for costs of these proceedings; and

   (b)       as to $30,000, by way of urgent spousal maintenance.

2. That liberty be reserved to both parties to argue the ultimate disposition of the moneys referred to in paragraph 1 hereof at the final trial of all applications for alteration of property interests.

3. That within seven days the wife deliver to the husband at a place to be agreed between the parties - and, failing agreement, to the husband's solicitors' office -  the following chattels:

   (a)       two pencil‑type Bang and Olufssen speakers;

   (b)       Bang and Olufssen television set;

   (c)       gold jewellery (presents to husband by his parents before and after       marriage);

   (d)       necklace (present to husband by his parents before and after marriage);

   (e)       bracelet  (present to husband by his parents before and after marriage);

   (f)       two pieces of jade (purchased by husband whilst overseas);

   (g)       binoculars;

   (h)       share of family and personal photographs;

   (i)        golf clubs and buggy.

4. That all interim applications be otherwise dismissed.

5. That the parties and their legal representatives attend upon regional Coordinating Registrar Field at 2.15 pm this day for the issue of a Trial Notice in these proceedings, the appointment of a Pre‑Trial Conference and setting down of the proceedings for final trial with an estimated duration of five days, commencing on 21 May 2007.

6. That all questions of costs be reserved.

7. All questions of costs be reserved.

8. General liberty be reserved to both parties to apply.

9. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of Counsel including Senior Counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1745  of 2006

MRS BING

Applicant

And

MR BING

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before me part‑heard today, having commenced in the Judicial Duty List late last year, having already had approximately one day of hearing.  The main issues which have been before me are, first, an application by the wife for interim spousal maintenance; and secondly, an application for moneys on account of the costs of litigation. 

2. Since the adjourned hearing the parties have filed further extensive material and at the commencement of the day I put to Senior Counsel that the matter could not possibly be finished in the day.  While Counsel for the husband agreed with that proposition, Counsel for the wife did not do so.  However, I am - with no criticism of Counsel for the wife at all - not persuaded by his assertion. and the further argument this morning has confirmed that view in my mind. 

3. These are competing applications for alteration of property interests in which the margin between the parties as to the quantum of assets available for distribution is enormous.  The husband is engaged in various businesses, principally in the area of motor vehicle service stations.  He has various properties, including, on the allegation of the wife, in China.  During the proceedings late last year senior counsel for the husband accepted my suggestion that on one view of the husband's case he might be, at least technically, insolvent. 

4. The claim by the wife is for $200,000 by way of the costs application and $30,000 by way of interim spousal maintenance.  A determination of the interim applications on the merits involves a consideration of the basic proposition as to whether the husband's financial position was very poor, on his contention, or very profitable, on the wife's contention. It is not possible to test the evidence on that most contentious issue which will almost certainly be the main issue at the trial. 

5. I have arranged for that trial to commence on 21 May, 2007.  As a result, I have decided to make a decision on the two main issues on an summary interim basis, dismiss interim applications and arrange for a trial of the final applications.   

6. Counsel for the wife referred me to paragraph 18 of an affidavit sworn by the husband yesterday and filed, by my leave, today.  The husband there “summarised the net value net value of myself and my wife according to my best estimates” in the sum of $8,424,400.  I put to Senior Counsel for the husband that it was somewhat incredulous that the husband was unable to release the sum of money sought by the wife, given the husband's own affidavit as to his net asset position. 

7. Exhibit CHB1 to that affidavit is a summary of the group of companies in which there is a relevant interest, for the purpose of the property proceedings.  Item  4 refers to a service station at F.  The husband swore that the gross value of that property is, in his view, $2.4 million with a finance liability of $1.08 million and that the ownership of the corporate group involves his having a 100 per cent interest.  By virtue of those figures, the husband shows the net equity that the group has in that property at $1,320,000.  Counsel for the husband submitted that he could demonstrate that there were collateral loans attaching to that and all the other properties, and it is clear that that is going to be part of the ultimate issue in the property proceedings.

8. Accordingly, the difficulty arises in pointing to an actual fund immediately available for distribution.  It is asserted on behalf of the husband that there is no such fund, other than some jewellery owned by the wife, which, it is submitted, is able to be sold immediately, subject only to inspection, for $80,000; as well as an asserted $300,000 net equity in the former matrimonial home occupied by the wife, in respect of which the husband is paying substantial outgoings.  However, Counsel for the husband asserts that he could demonstrate where those moneys could be raised. 

9. Again that is an issue for the ultimate trial and it concerns me that I should be required to decide that issue on the documents alone, given the factual assertions on both sides and the inability to decide those matters on an interim basis, obviously without the advantage of cross‑examination and submissions arising out of that cross‑examination.  To my mind, the fact that the husband has sworn to a net asset position of $8.4 million is sufficient in the difficult circumstances of this case for me to make appropriate orders, pending the trial of the proceedings.

10. The husband is able to raise moneys, he says, from borrowings from family members for his legal costs.  At paragraph 16.6 of the same affidavit he refers to that fact but does not particularise what he has spent or the specific sources of those borrowings.  He asserts in paragraph 17 of the same affidavit that the wife has substantial borrowing capacity within her family and asserts that she would be able to borrow from her sister and brother‑in‑law, who own a property in Shanghai in China valued, on his assertion, at more than A$1 million.  I do not see that that is a matter which relieves the husband from liability, particularly in circumstances of his swearing to a net asset position of $8.4 million. Further, given the relative asset positions of the parties, in my view it is unreasonable to expect the wife to encumber the home for these purposes.

11. I realise the forensic difficulties involved in this matter, but, in all of the circumstances, I propose exercising my jurisdiction both as to the costs application and the spousal maintenance. As far as the spousal maintenance is concerned, it is appropriate to make an order in the sum of $30,000 in favour of the wife, and I make that pursuant to the provisions of section 77 of the Family Law Act ("the act").

12. With regard to the costs application, there are three heads of power:  they are the maintenance power; the alteration of property interests power, under section 79 and pursuant to the ratio of Harris's case; and thirdly, the power granted by section 117 of the act.  As Senior Counsel for the husband correctly noted, the practice has developed of making an order without specifying the relevant power but relying on all three powers together. 

13. In my view, if it is necessary to make such a specification, it would be appropriate for the money to be provided as security for costs, pursuant to section 117 of the act, but in any event it is appropriate that I provide liberty to the parties to argue the ultimate disposition of those moneys at the final trial and for the judge to make that decision then.  I will accordingly be making a costs order to enable the wife to prepare her case in the sum of $200,000, and in that respect I rely on the affidavits of the wife's solicitor and find that the quantum is sufficiently established. 

14. I have organised for a Trial Notice to be issued at 2.15 this afternoon by Coordinating Registrar Field - upon attendance by the parties, and either counsel or solicitors, as the parties see fit - and a Pre‑Trial Conference will then be arranged as well, leading up to a trial on 21 May.  I have discussed this matter with the Coordinating Registrar and have informed her of the dispute with regard to valuations.  She will make relevant orders and directions with regard to it.  But I state my view that it is appropriate there be a joint letter of referral from the parties in the normal way, pursuant to the Rules, and then that each of the parties be at liberty to advance their own specific submissions as to mode of valuation to the valuer by further letters of instructions, as provided in the rules. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin 

Associate:     

Date:  15/03/2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as BING & BING