FEDERAL COURT OF AUSTRALIA

BCI Finances Pty Limited (in liq) v Binetter (No 7) [2018] FCA 1083

ORDERS

THE COURT ORDERS THAT:

1.    The Amended Interlocutory Application filed by the sixth defendant (Michael Binetter) and Suzanne Vivienne Binetter on 27 March 2018 be dismissed.

2.    The sixth defendant and Suzanne Vivienne Binetter pay the plaintiffs’ costs of and incidental to the said application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FOSTER J:

1    On 29 June 2016, I made the following orders:

UPON the undertaking of the plaintiffs given to the Court:

(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 it may direct, to any person, whether or not a party, adversely affected by the operation of the Orders made in pars 1 to 3 below or any continuation thereof (with or without variation);

(b)    To keep confidential all information which the lawyers for Suzanne Binetter may provide to the plaintiffs in relation to the sale or intended sale of the property known as 36 Chamberlain Avenue, Rose Bay, New South Wales, being Lots 10 and 11, Section A in Deposited Plan 6048 Folio Auto-Consol 2523-62 (the Property);

(c)    Not to approach or contact, directly or indirectly, any purchaser or prospective purchaser, purchaser’s solicitor, financier or any agent (vendor or buyer) associated with the intended sale of the Property,

AND UPON the undertaking of the Commissioner of Taxation (Cth) given to the Court at the hearing on 23 March 2016 to satisfy all undertakings as to damages given by the plaintiffs in this proceeding (which, for present purposes, shall include the undertakings noted at (a), (b) and (c) above) up to the amount of $500,000,

BY CONSENT AS BETWEEN THE PLAINTIFFS AND SUZANNE BINETTER, THE COURT ORDERS THAT:

1.     Suzanne Binetter pay (at the time of or shortly after settlement) an amount equal to one half of the net sale proceeds of any sale of the Property, being 50% of the balance of the proceeds of any sale of the Property (excluding any interest earned on the deposit between the time of exchange and settlement) after payment of:

(a)    All money due and payable to AMP Bank Limited properly secured by its mortgage registered over the Property;

(b)    All money due and payable to the vendor’s agents, including commission, advertising costs and incidentals;

(c)    All professional fees and disbursements due and payable to the vendor’s solicitor associated with the conveyance of the Property; and

(d)    The usual adjustments at settlement, including, but not limited to, council rates, water rates, water usage and registration fees,

into an interest bearing Controlled Money Account [as defined by the Legal Profession Uniform Law (NSW)], established and maintained by the solicitors acting for Suzanne Binetter, ClarkeKann Lawyers, to be held in that account up to and including 5.00 pm on the date which is 14 days after judgment in this proceeding is delivered by Gleeson J (the Relevant Date). For the avoidance of doubt, this Order does not prevent Suzanne Binetter from retaining or otherwise dealing with the remainder of the proceeds of the sale of the Property, provided that this Order is otherwise complied with.

2.    Up to the Relevant Date, and whilst Suzanne Binetter is still the registered proprietor of the Property, Suzanne Binetter must give written notice to the plaintiffs of any intention to further encumber the Property at least four (4) business days prior to such proposed encumbrance taking effect. For the avoidance of doubt, this Order does not prevent Suzanne Binetter from selling the Property.

3.     Suzanne Binetter and the plaintiffs may agree in writing any exceptions to the preceding paragraph. In that case, Suzanne Binetter and the plaintiffs must as soon as practicable file with the Court and serve on the other parties a minute of a proposed Consent Order recording the variation signed by or on behalf of Suzanne Binetter and the plaintiffs and the Court may make an order giving effect to the said agreed variation.

4.     Liberty be granted to all parties to apply on three (3) days’ notice or on such shorter notice as a Judge might allow.

THE COURT NOTES THAT:

5.     These Orders are made without any admission by Suzanne Binetter.

(the 29 June orders).

2    The 29 June orders were made by consent. At the time when the orders were made, settlement of the sale of the property known as 36 Chamberlain Avenue, Rose Bay, NSW (the property) was imminent.

3    Suzanne Vivienne Binetter is the wife of Michael Thomas Robert Binetter who is the sixth defendant in this proceeding. Suzanne Binetter is not a party to this proceeding.

4    By the 29 June orders, Suzanne Binetter was restrained from dealing with 50% of the net proceeds of sale of the property, upon the basis that, notwithstanding that she held the entire legal interest in the property, Michael Binetter had a good claim in equity for half of the beneficial interest in the property and that it was likely that, at some time in the near future, he will be made bankrupt on the judgments likely to be ordered against him in this proceeding and his trustee in bankruptcy will then be able to claim the value of that half interest for the creditors of Michael Binetter, including the plaintiffs in this proceeding.

5    As at 29 June 2016, this proceeding had had a long history in this Court. There had been many interlocutory applications and a substantial final hearing before Gleeson J which ultimately led to her Honour’s judgments in BCI Finances Pty Limited (in liq) v Binetter (No 4) (2016) 117 ACSR 18 and BCI Finances Pty Limited (in liq) v Binetter (No 5) [2017] FCA 1524.

6    The background facts and matters relevant to the present application before me are found in the first of her Honour’s judgments referred to in [5] above.

7    When I made the 29 June orders, the plaintiffs’ claims against the defendants had not yet been determined by the Court, although there was evidence before the Court which supported those claims. The first judgment delivered by Gleeson J upheld much of what had been alleged by the plaintiffs.

8     On 22 December 2017, subsequent to delivering the second judgment referred to at [5] above on 15 December 2017, her Honour ordered judgment against Michael Binetter totalling approximately $65 million.

9    All of her Honour’s judgments are under appeal. The hearing of the appeals is fixed to commence on 6 August 2018 with a hearing estimate of five days.

10    By Interlocutory Application filed on 26 February 2018, Michael Binetter and Suzanne Binetter (the Binetters) claimed orders varying the 29 June orders. Their claims were subsequently modified. On 27 March 2018, Michael Binetter and Suzanne Binetter filed an Amended Interlocutory Application (Amended IA). In the Amended IA, the Binetters claimed orders that, notwithstanding the 29 June orders, both Michael Binetter and Suzanne Binetter be permitted to withdraw from the sum of approximately $3,030,000 presently held in a controlled money account in the name of ClarkeKann lawyers with St George Bank Limited (Account number 554523073) (the Fund) being 50% of the net proceeds of sale of the property and being the funds the subject of the 29 June orders, upon first giving the plaintiffs’ solicitors two days’ prior notice in writing:

(a)    the sum of $93,364.69 on account of legal costs and disbursements outstanding to Braddon Marx Lawyers for work done in respect of a proceeding in the Family Court of Australia (SYC4839/2011);

(b)    the amount of legal costs due in respect of Appeal Proceedings in the Family Court of Australia filed by Suzanne Binetter in the Appeals Division of the Family Court of Australia (EA5 of 2018); and

(c)    the sum of $200,000 to be paid into Court as security for the costs of the respondents in appeal proceedings in this Court No 189 of 2018.

11    At the hearing before me on 11 May 2018, the above claims were again updated. The total legal fees and disbursements now claimed are in excess of $410,000.

The Relevant Facts

12    On 25 November 2016, at a case management hearing and interlocutory hearing in this matter, Counsel for the Binetters appeared and made an oral application to have the 29 June orders varied so as to permit the payment of certain legal costs. That application to vary the 29 June orders was not ready to be heard on 25 November 2016. A timetable designed to ready that application was put in place on 25 November 2016. It was my intention to decide the application on the papers after the last date provided for in that timetable.

13    The current application made in the Amended IA subsumes the earlier application in the sense that the amounts for legal costs sought in the 25 November 2016 oral application are now sought to be released as part of the amounts referred to in the Amended IA.

14    In support of the relief claimed by them in the Amended IA, Michael Binetter and Suzanne Binetter read and relied upon five affidavits sworn by their solicitor, Mark Secivanovic, on 2 December 2016, 26 February 2018, 2 March 2018, 19 March 2018 and 20 March 2018.

15    The plaintiffs relied upon extracts from two affidavits sworn by John Sheehan, the first on 11 February 2016 and the second on 17 May 2016.

16    The contract whereby Suzanne Binetter purchased the property was entered into on 14 September 1999. Suzanne Binetter was named as the only purchaser. Michael Binetter was recorded in the contract as being Suzanne Binetter’s solicitor in respect of the transaction of purchase. The purchase price was $4.39 million.

17    On 26 November 1999, Suzanne Binetter:

(a)    executed a guarantee in favour of Australia and New Zealand Banking Group Limited (ANZ) in an unlimited amount for obligations incurred by Michael Binetter as ANZ’s customer;

(b)    signed a letter addressed to ANZ acknowledging that she had deposited a registered mortgage over the property in support of the unlimited guarantee which she had given to the ANZ.

18    On 30 November 1999, the purchase of the property was settled. The relevant transfer is dated that day and is signed by Michael Binetter as the solicitor for the transferee.

19    On 30 November 1999, $2.4 million was drawn down from an ANZ loan account in the name of Michael Binetter and Suzanne Binetter in order to fund the purchase price of the property. Two mortgages were registered over the property in favour of ANZ. The first mortgage was for the sum of $2.4 million and is noted on its face as being “o/a” (mostly likely meaning “on account of”) Michael Binetter and Suzanne Binetter. The second mortgage was for an amount of $100,000 and is noted as being “o/a” Michael Binetter.

20    The loan repayments during the life of the $2.4 million loan facility were between $14,000 and $17,000 per month. Those repayments were all debited from an account in the name of both applicants into which Michael Binetter directed that his drawings as a partner of Andersen Legal and his stipend as a lecturer at UNSW be paid. On 1 October 1999, Michael Binetter and Suzanne Binetter executed an authority to operate this account.

21    In April 2005, Suzanne Binetter mortgaged the property to National Australia Bank Limited (the NAB). That mortgage was given in order to secure a loan facility of $2.6 million.

22    Over time, the amount of that loan facility increased to $3.125 million.

23    In February 2008, Michael Binetter and Suzanne Binetter applied to AMP Bank Limited for a loan facility to refinance the NAB loan.

24    On 1 July 2008, AMP Bank Limited advanced to Michael Binetter and Suzanne Binetter the sum of approximately $6,200,000 by means of an offset account and two home loan accounts. The accounts stood in the name of both Michael Binetter and Suzanne Binetter and both were signatories to all accounts.

25    As contemplated by the 29 June orders, the sale of the property was settled on 14 July 2016.

26    The adjusted purchase price at settlement was $12,503,809.27. Out of that sum, various amounts had to be paid, including agents’ commission and the balance due to the mortgagee (AMP Bank Limited).

27    Half of the net proceeds of sale was $3,007,871.42. That sum was paid into the ClarkeKann Lawyers controlled money account as contemplated by the 29 June orders.

28    By the time of the hearing of the Amended IA before me on 11 May 2018, the total quantum of the legal fees which Michael Binetter and Suzanne Binetter sought to have paid from the Fund was a little over $400,000. Of that amount, approximately $305,000 relates to legal fees in respect of this proceeding and appeal proceedings in this Court NSD189/2018. Approximately $110,000 relates to the Family Court proceedings to which I have referred at [10] above.

29    The Family Court proceedings in respect of which the claimed legal costs have been incurred are related to disputes in the Family Court of Australia between Andrew Binetter and his former wife, Yvette. Yvette Binetter brought an application in the Family Court to set aside property settlement orders between her and Andrew Binetter on the basis that Andrew Binetter had failed to disclose relevant information at the time when the settlement orders were made. In bringing this application, Yvette relies upon findings made in the first judgment given by Gleeson J on 18 November 2016.

30    In the Family Court, Yvette Binetter made an application for an order from the Family Court requesting this Court to provide certain documents and information in order to assist her in her application to set aside the property settlement which she had agreed with her former husband Andrew Binetter. On 4 July 2016, Watts J at the Family Court acceded to Yvette Binetter’s application.

31    Subsequently, Michael Binetter and Suzanne Binetter made an application in the Family Court challenging the decision of Watts J. Justice Watts refused the application of Michael Binetter and Suzanne Binetter. It is from that decision that they have now appealed.

32    Michael Binetter has not sworn an affidavit in support of the relief claimed by Suzanne Binetter and by him in the Amended IA. Instead, Mr Secivanovic annexed to his affidavit of 19 March 2018 an affidavit of Michael Binetter affirmed on 27 April 2015 in which Michael Binetter set out some information as to his assets and liabilities as at that date. He also annexed to the same affidavit an affidavit affirmed by Michael Binetter on 2 March 2018 for use in an application in an appeal proceeding in this Court NSD189/2018. Both affidavits affirmed by Michael Binetter suggested he had no assets of any substance as at 27 April 2015 and also as at 2 March 2018. The Binetters also relied upon Michael Binetter’s response to an examination notice served upon him.

33    On 9 March 2018, Jagot J made an order in appeal proceedings NSD189/2018 which relevantly included:

1.    On condition that:

(a)    Michael Binetter provide $200,000 as security for the respondents’ costs of this appeal by payment into Court or by the provision of an unconditional bank guarantee in the form approved by the Registrar of the Court;

the following orders of the Court are stayed unto the determination of the appeal in proceeding no 189/2018 …

…

2.    The stay referred to in Order 1 is effective immediately, but is to lapse if the condition contained in Order 1(a) has not been fulfilled by 5pm on 6 April 2018.

34    I have subsequently extended the time by which Michael Binetter is to comply with the order made by Jagot J for the posting of $200,000 as security for the appeal in proceeding NSD189/2018 three times (on 26 March 2018, 20 April 2018 and 11 May 2018). The current extended time for payment of that sum is seven days after I deliver judgment in respect of the Amended IA.

Consideration

The Submissions of the Binetters

35    The Binetters commenced their submissions by making the following submissions:

(a)    Suzanne Binetter is the wife of Michael Binetter. She is not a party to this proceeding and no claim has ever been made against her by the plaintiffs.

(b)    The property was acquired in 1999. Suzanne Binetter was the sole registered proprietor of the property until its sale in 2016 and the sole legal owner of 100% of the net proceeds of sale.

(c)    Any future claim to half the net proceeds of sale of the property by Michael Binetter’s trustee in bankruptcy is problematic, especially given the passage of time. Of course, any moneys will only be available to the general body of creditors and not be available exclusively for the plaintiffs.

(d)    Expenditure of legal fees is a legitimate expense and carve out from the scope of a Mareva order.

36    The Binetters then developed the three primary reasons relied upon by them in support of the relief which they now seek.

37    First, they submitted that the 29 June orders should never have been made because there was never a good arguable case that Michael Binetter had a 50% beneficial interest in the property.

38    The Binetters submitted that the evidence before the Court rebuts any presumption (as to which, see the judgment of the High Court in The Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 (Cummins) at 297-303 per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) that the property was held beneficially for both Michael Binetter and Suzanne Binetter in equal shares. The relevant enquiry, so it was submitted, is to ascertain the intention of the purchaser (Calverley v Green (1984) 155 CLR 242 (Calverley) at 252 per Gibbs CJ). Payment of the mortgage cannot be determinative. According to the Binetters, the evidence demonstrated that the property was intended to be and was (until sold) legally and beneficially owned by Suzanne Binetter. They also relied upon the presumption of advancement (as to which see [46] below).

39    The Binetters argued that, when appropriate regard is had to the circumstances of the present case, the position outlined at [38] above is strengthened. They submitted that the Court should accept that Michael Binetter is an astute solicitor and that it is unrealistic to suggest that he did not understand the implications, or did not intend, the consequences, of putting the title to the property solely in the name of Suzanne Binetter thereby indicating to the world at large that she had full legal ownership of the property.

40    Second, the Binetters submitted that the evidence was that Michael Binetter had no other assets and massive liabilities. Without access to the proceeds of sale of the property, he will be unable to post the required security and, as a consequence, will be unable to prosecute the appeal.

41    This submission depends upon my according weight to the assertions of Michael Binetter contained in his affidavit of 2 March 2018 annexed to Mr Secivanovic’s affidavit of 20 March 2018. No weight could be given to the earlier affidavit of 27 April 2015, given that it was sworn more than three years ago.

42    At the hearing, counsel for the plaintiffs objected to the tender of Michael Binetter’s affidavit of 2 March 2018, principally upon the basis that it was hearsay when introduced into evidence through Mr Secivanovic and that no explanation was proffered by the Binetters as to why Michael Binetter had not himself sworn an affidavit as to his assets and liabilities and come to Court as a witness to be cross-examined on that affidavit. A similar objection was taken to the financial statement prepared in answer to an examination notice. I allowed the material into evidence and left the question of weight to be judged when all the evidence was in.

43    Michael Binetter’s current financial position is a matter of some importance in the present application. His failure to explain that position on affidavit tells significantly against accepting Mr Secivanovic’s hearsay evidence as to that position. Also, no explanation was proffered by Michael Binetter for his decision not to give direct evidence himself at the hearing before me. For these reasons, I propose to give no weight to the evidence relied upon by the Binetters as to Michael Binetter’s financial position.

44    Third, it was submitted that a freezing order over assets of a third party should only rarely be granted (Cardile v LED Builders Pty Limited (1999) 198 CLR 380 at 405 per Gaudron, McHugh, Gummow and Callinan JJ). This submission is misconceived. The freezing orders are not over the asset of a third party: Rather, they relate to an asset to half of which Michael Binetter, the judgment debtor, is said to be entitled.

45    The Binetters argued that the plaintiffs’ case which underpinned the 29 June orders was not arguable and that, for that reason, the 29 June orders should never have been made. Nonetheless, the Binetters did not move to set aside those orders. Rather, they submitted that the weakness in the plaintiffs’ case is a powerful factor to be considered in support of their application to vary those orders.

46    Senior Counsel took me to Calverley and to Cummins in order to make good the following submissions:

(a)    the presumption of advancement is still part of the law of Australia (see Calverley at 246-247 per Gibbs CJ; per Mason and Brennan JJ at 253-255 and at 258-259; and per Deane J at 266-267). Cummins confirms this;

(b)    the presumption of advancement, if applicable, trumps any alleged resulting trust (Calverley at 246 per Gibbs CJ); and

(c)    here, the presumption of advancement was engaged, Michael and Suzanne Binetter being husband and wife, and the purchase being made in the name of the wife. There was no evidence to rebut that presumption. Indeed such evidence as there was suggested that Michael Binetter intended that Suzanne Binetter have full legal and beneficial ownership of the property.

The Plaintiffs’ Submissions

47    The plaintiffs submitted that because the 29 June orders had been made by consent and because no application to set aside those orders has ever been made, the Court should not give any weight to the arguments now being advanced by the Binetters to the effect that the underlying case being advanced by the plaintiffs is so weak as to deny the very basis of the claim underpinning those orders.

48    The proposition summarised at [47] above was said to be supported by the decision of Barker J in MG Corrosion Consultants Pty Limited v Gilmour [2012] FCA 568.

49    The plaintiffs then submitted that although expenditure on legal fees is often permitted as a carve out from a freezing order, where that freezing order is an order over a specific asset rather than a person’s assets generally, in order for an exception to be made from that freezing order, it must be shown that the frozen assets are the only assets that could be used for the purpose in question.

50    The plaintiffs relied on the decision of Drummond J of this Court in Clout (Trustee) v Anscor Pty Ltd [2001] FCA 174 (Anscor). At [19]-[20] of his judgment, Drummond J held:

[19]    This first submission by the respondents can be accepted. The principle is sometimes put on the basis that a Mareva injunction cannot be used to give the applicant security in respect of an as yet unliquidated claim, that its sole legitimate object is to prevent a respondent, pending final adjudication, from disposing of assets where the respondent’s object in doing that is to abuse the process of the Court by ensuring that, if the applicant is successful in the litigation, its judgment will be an empty one. It is plain that even in a case in which a Mareva restraint is justified it can never extend to prevent a respondent from having access to its own assets to the extent necessary to meet legitimate expenses such as ordinary living and business and legal expenses.

[20]    But at least where, as here, a Mareva restraint is imposed only on part of the assets of a respondent in an action, the respondent who seeks a relaxation of the restraint has an evidentiary onus, if not a full persuasive onus to show that it has no other assets beyond those covered by the injunction to which it can resort to meet the expenses in question. In A v C (No 2) [1981] 2 All ER 126, Robert Goff J held that on an application to vary a Mareva injunction that had been granted over part only of a respondent’s assets to permit the payment of legal costs of the action out of the assets the subject of the restraint, that it was not enough for the respondent to merely state that it owed money to someone but had instead, to show that it did not have any other assets available out of which the expenses could be paid. Rogers J took the same approach in Australian Iron & Steel Pty Ltd v Buck [1982] 2 NSWLR 889 at 890. See also Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552 at 568 to 569.

51    The observations which I have extracted above at [50] were not the subject of any consideration in the appeal of Anscor (Anscor Pty Ltd v Clout (Trustee) (2004) 135 FCR 469).

52    The plaintiffs also relied upon the decision of Slattery J in Elford v Minty [2017] NSWSC 1455 at [32]-[33]. In that case his Honour followed the decision of Barrett J in Goumas v MacIntosh [2002] NSWSC 713 and said:

[32]    Mr Elford’s second main issue is much the same as the first issue. He opposes the release of any of the funds paid into Court on the grounds that Mr Minty’s evidence in support of the application does not discharge the required onus to prove that Mr Minty has no other assets or sources of funds from which legal fees may be paid: Goumas v MacIntosh [2002] NSWSC 713 at [22]–[23] (Goumas) was cited. In Goumas Barrett J was considering certain Mareva relief and first had to undertake an exercise of characterisation of the orders he was being asked to make, as he explained (at [22]–[23]).

22.    Turning now to the legal issues, there is a preliminary question as to the correct approach in this case — whether it should be treated as an application for new or further Mareva relief or an application to vary existing Mareva restraints. In the latter kind of case, it may well be that the party seeking release of assets from the orders so that those assets may be applied for particular purposes bear the burden of showing not only the legitimacy of those purposes but also that they have no other assets (that is, assets not caught by the orders) from which the legitimate expenditure may be met: A v C (No 2) [1981] 1 QB 961, Szentessy v Woo Ran (Australia) Pty Ltd (1985) 64 ACTR 105, Clout (Trustee) v Anscor Pty Ltd [2001] FCA 174. Where a Mareva order is being imposed in relation to the whole of a person’s property, the approach must be to impose it in terms that create an exception for necessities, particularly reasonable living expenses and reasonable expenses of the litigation itself: see, for example, the views expressed by Powell J (as his Honour then was) in Clark Equipment Credit of Australia Ltd v Como Factors Pty Ltd (1988) 14 NSWLR 552.

23.    As the High Court has emphasised, most recently in Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, Mareva relief is not intended to operate as some form of de facto security for the claims of the party seeking the imposition of the restraint. The sole concern is with reasonable measures to ensure that the processes of the court are not frustrated by removal from the jurisdiction, dissipation or misapplication of assets which will be available to meet any eventual judgment. The aim is not to stop people spending their money. It is to stop them spending it in ways which are not legitimate, having regard to the interest of the claimant in ensuring that there is no untoward removal of assets from the ownership of the person against whom a judgment may in due course be entered.

[33]    This passage states the applicable law. Here, in my view, the current motion, which seeks to vary the orders resolving Mr Elford’s motion on 2 April 2015, is in the nature of a variation to existing Mareva relief: the same kind of situation that Barrett J was dealing with in Goumas. Mr Marcus Minty is seeking the release of assets from those orders and bears the burden of showing not only the legitimacy of the proposed use of the funds but that he has “no other assets (that is assets not caught by the orders) from which the legitimate expenditure might be met”. There was no contest here that the payment of Mr Minty’s legal fees was a legitimate purpose. The matter in contest was whether he had established, as Goumas says he must, that he had no other assets to meet that expenditure.

53    The plaintiffs submitted that other cases in the Supreme Courts of New South Wales, Victoria and South Australia supported the general proposition considered to be good law by Slattery J. The plaintiffs directed the Court to the following cases: Legal Services Board v Forster [2015] VSC 136 at [55]-[56], [77]; D & H Investments Pty Ltd v Wagner (2008) 257 LSJS 274; [2008] SASC 233 at [10]-[11]; Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 at [15]; Cogent Nominees Pty Ltd v Anthony [2003] NSWSC 804 at [12]; and Commissioner of Taxation v Manners and Terrule Pty Ltd (1985) 81 FLR 131 at 134.

54    The plaintiffs went on to submit that neither Michael Binetter nor Suzanne Binetter has demonstrated that they do not have other assets available to them that could be used for the purposes of making the payments that they now seek to have made out of the Fund. Neither Michael Binetter nor Suzanne Binetter has provided any probative evidence of their assets and liabilities.

Decision

55    Mr Secivanovic was briefly cross-examined. In the course of that cross-examination, he revealed that he held $200,000 on trust for Suzanne Binetter on account of legal fees. Suzanne Binetter is one of the co-applicants in the Family Law matters and, for that reason, is responsible, one assumes, for the payment of the legal fees being incurred in respect of the applications in the Family Court. It is difficult to see why, if there is some arguable basis for the 29 June orders remaining in place, those orders should be varied so as to permit access to the Fund to pay the legal fees associated with the Family Court applications made by both Michael Binetter and Suzanne Binetter. If Michael Binetter and Suzanne Binetter wish to pursue those Family Court applications those applications should be funded by assets available to Suzanne Binetter, she being one of the applicants in those applications which, upon the premise I have just stated, would not include the money set aside in the Fund.

56    There is much force in the submission made on behalf of the Binetters that, when the facts available at the moment are analysed closely and the relevant law is applied, the case which the plaintiffs propound as the underlying basis for the 29 June orders is not truly arguable. However, the point concerning the lack of strength in the plaintiffs’ case has only been taken in very recent times – shortly before the application before me was heard. The plaintiffs have had very little opportunity to seek to improve their evidence on the critical point as to the intention of the parties, particularly the intention of Suzanne Binetter, as to the beneficial ownership of the property once acquired. The presumption of advancement as between husband and wife and the presumptions as to beneficial ownership that arise from the principles which lead to the application of a resulting trust in any particular case are heavily dependent upon findings of fact as to the intention of the parties and as to the financial contributions which each of them may have made. Although, at the moment, on the evidence presently before me, it is difficult to see how the plaintiffs and those who may ultimately seek to pursue Michael Binetter’s alleged half-interest in the proceeds of sale of the property will defeat the presumption of advancement that might arise in the present case, I am not prepared to proceed to deal with the present application upon the basis that the plaintiffs’ underlying case is not arguable. I am of this view for three reasons: First, as I have already said, the evidentiary matrix is far from completed at the present time. Second, there is some evidence to support the proposition that all of the mortgage payments were made from funds earned by Michael Binetter and deposited into the joint account. This material arguably might support the further proposition that the intention of the parties was to hold the beneficial interests in the property jointly. Third, and more importantly, the 29 June orders were made by consent and no application has been made to set aside those orders. Indeed, instead of making such an application, the Binetters have merely endeavoured to use the alleged weakness in the plaintiffs’ case as a reason for granting the relief which they seek in the present application.

57    I take the view that, for the Binetters to succeed in the present application in so far as the legal costs incurred in respect of the matters in this Court are concerned, and in respect of their claim to withdraw from the Fund $200,000 for the purposes of posting that amount as security for the respondents’ costs in appeal proceeding NSD189/2018, it is incumbent upon them to satisfy the Court that Michael Binetter does not have other assets to which recourse may be had to pay the total sum in question. For reasons which I have already explained, I consider that Michael Binetter has failed to discharge that onus.

58    I also think that the plaintiffs’ submissions are substantially correct. I accept them.

59    These brief reasons are sufficient to dispose of the present application. However, before leaving the matter, I should address a further submission made on behalf of the Binetters in respect of the claim to access the Fund for the purpose of paying the $200,000 security for costs ordered by Jagot J in appeal proceeding NSD189/2018. In respect of that matter, senior counsel for the Binetters submitted that were the funds released for that purpose, the disposition of those funds would still remain under the supervision of the Court. It was then submitted that it could even be to the advantage of the plaintiffs for that sum to be released for that purpose because if the respondents to the appeal against the plaintiffs are successful in the appeal, they would have preferential access to the $200,000 whereas if the moneys stay in the Fund they remain available to the general body of creditors with no preference being accorded to the plaintiffs. These submissions may provide a basis for the plaintiffs to take a different position in relation to the current application from the one which they have in fact adopted but they do not constitute a good reason for the Court to accede to the application.

60    For all of the above reasons, I propose to dismiss the Amended Interlocutory Application with costs. There will be orders accordingly.

Associate:

Dated:    20 July 2018

SCHEDULE OF PARTIES