Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonym of Antoun & Antoun has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The proceedings between the Applicant Wife and the Respondent Husband were astonishingly commenced on 12 May 2017. This litigation has been on foot for over eight years. The parties remain in dispute about the division of their property interests pursuant to Part VIII of the Family Law Act 1975 (Cth) ("the Act").
2. Since May 2017, sixteen respondents have been joined to the proceedings. The competing applications have been the subject of 345 filed documents, 71 orders and five published judgments.
3. The proceedings were listed before me on 9 and 11 July 2025 in respect of various applications, which the wife asserted were necessary to prepare for the final defended hearing, which is listed for over three weeks before the Honourable Justice Riethmuller commencing on 15 September 2025. On 9 July 2025, and with the consent of the parties, I made various orders as to the payment of professional fees of single experts, the provision of documents to them, the execution of letters of instruction and other procedural directions. On 11 July 2025, I made further procedural directions to prepare the parties for trial and on that occasion, I also made an order for the parties to participate in a Judicial Settlement Conference with such conference to be conducted by the Chief Justice on 11 August 2025.
4. This judgment relates only to the wife's application for litigation funding. Particularly, and by her Application in a Proceeding filed on 17 June 2025, the wife seeks an order that from the funds held from the sale of a property at Suburb T in the State of New South Wales, her solicitors receive a sum of $450,000 with such sum to be characterised by the judicial officer presiding at the final hearing.[1] The respondents oppose the wife's application.
5. These reasons explain the dismissal of the wife's application.

(a) An Application in a Proceeding filed on 17 June 2025;

(b) An affidavit in the name of the wife's solicitor filed on 17 June 2025;

(c) An Affidavit in the name of the wife filed on 8 July 2025;

(d) A Financial Statement filed on 8 July 2025;

(e) Some tendered documents;[2] and

(f) An Outline of Case Document filed 8 July 2025.

1. On 9 July 2025, the husband's counsel took objection to the wife's reliance on the affidavit in her name filed the previous day. She did so in circumstances where:

(a) The wife's counsel advised me that the wife sought to rely upon paragraphs 92 to 98 of that document. Those paragraphs referred to a transaction entered into by AN Pty Ltd to purchase a property at Suburb AO for $11,205,000 in early 2024. The husband is a director and shareholder of that entity and the wife's counsel relied on the transaction to support the wife's application for litigation funding; and

(b) The affidavit was filed in breach of r 5.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

1. In order to remedy any procedural unfairness to the husband, and for the reasons described above, I adjourned the interim defended hearing to 11 July 2025. At the same time, I made an order requiring the husband to file an affidavit in response to paragraphs 92 to 98 of the affidavit in the name of the wife filed on 8 July 2025.
2. In these circumstances, the husband relied on:

(a) A Response to an Application in a Proceeding filed on 4 July 2025;

(b) Affidavits in the name of the husband filed on 4 July 2025 and 10 July 2025;

(c) Two tendered documents;[3] and

(d) An Outline of Case Document filed 8 July 2025.

1. The second, third, ninth, tenth, eleventh, thirteenth fifteenth and seventeenth respondents relied on:

(a) A Response to an Application in a Proceeding filed on 4 July 2025;

(b) An affidavit in the name of ninth respondent filed on 4 July 2025;

(c) One tendered document only;[4] and

(d) An Outline of Case Document filed 8 July 2025.

1. The fourth, fifth, sixth and twelfth respondents did not rely on any documents. Similarly, the eighth respondent did not rely on any documents instead expressing confusion about the relief (if any) sought by the wife against her.
2. During submissions, the parties' counsel referred me to three judgments previously published in these proceedings, namely:

(a) Antoun & Antoun [2023] FedCFamC1F 129;

(b) Antoun & Antoun (No 2) [2024] FedCFamC1F 354; and

(c) Antoun & Antoun (No 3) [2025] FedCFamC1F 38.

1. I advised counsel for the parties that I would exclude all annexures to the affidavit material relied on by each party having regard to r 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). I further advised counsel for the parties that annexures to affidavits and documents referred to in tender bundles would not be considered by me until the relevance and probative value of each document was established.

1. In 2017, the wife commenced proceedings against the husband only seeking orders pursuant to s 79 of the Act following the breakdown of their marriage on 1 December 2015.[5]
2. The wife asserts that the husband, his relatives, business associates and advisors, have embarked upon a course of conduct to defeat the wife's claim, by entering transactions and creating and executing documents, which divested the husband of control of various companies and trusts.[6] The extensive background of the dispute between the parties is set out in paragraphs [5] to [7] of the reasons delivered by Justice Williams in Antoun & Antoun (No 2) [2024] FedCFamC1F 354 and by Justice Riethmuller in Antoun & Antoun [2023] FedCFamC1F 129 at [13] to [68]. I incorporate and rely on these reasons.
3. For the purposes of the application, which I am obliged to determine, I note the following history:

(a) On 7 October 2022, the wife filed an Amended Application in a Proceeding seeking the joinder of the proposed thirteenth and seventeenth respondents, the sale of properties at Suburb EE and Suburb T in the State of New South Wales and the distribution of the proceeds of sale as a partial property settlement;

(b) On 9 March 2023, the competing applications were referred to the Major Complex Financial Proceedings List;

(c) On 27 May 2024, Justice Williams made orders, which among other things disposed of the Amended Application in a Proceeding filed by the wife on 7 October 2022. Particularly, Her Honour made orders for the joinder of the eighth respondent, thirteenth respondent and seventeenth respondent. On the same day, and in addition to orders regulating the sale of a property at Suburb T, Her Honour made orders as to the manner in which the sale proceeds of the Suburb T property would be disbursed; and

(d) On 31 January 2025, Williams J made orders for the joinder of the ninth, tenth, eleventh, fourteenth and fifteenth respondents as well as a raft of procedural orders with respect to the filing of amended points of claim.

1. For reasons, which will become obvious to a reader of this judgment, the orders made by Justice Williams on 27 May 2024 are important to a determination of the application before me. Relevantly, paragraphs 10 and 11 of those orders are in the following terms:

[10] At settlement of the sale of the [Suburb T] property the Husband do all things and sign all documents necessary to divide the proceeds of sale of the [Suburb T] property as follows:

(a) to meet all costs associated with the sale of the [Suburb T] property including agent fees/commission, marketing and auction expenses and legal costs of the solicitor appointed under these Orders;

(b) in discharge of all monies owing to Australia and New Zealand Banking Group Limited ("ANZ Bank") as may be required by ANZ Bank to give clear title to the incoming purchaser at settlement;

(c) in discharge of all municipal and water rates outstanding on the [Suburb T] property;

(d) to pay the sum of $250,00 to the wife as part property settlement;

(e) the remaining proceeds of sale, if any, be paid into a controlled monies account on behalf of the husband and wife

[11] In relation to any CGT payable on the sale of the [Suburb T] Property:

(a) within 3 months of the end of the financial year in which the [Suburb T] property is sold, the Husband do all things and sign all documents necessary to lodge the tax return for [QQ2 Pty Ltd] so that an Assessment can issue;

(b) simultaneously with lodging the company tax return, the Husband will direct his accountant to prepare a capital gains tax calculation arising from the sale of the [Suburb T] property and will provide a copy of the calculation to the Wife;

(c) within 7 days of receiving the Assessment from the ATO, the Husband provide to the Wife a copy of the Assessment;

(d) within 14 days of the Husband providing the Assessment to the Wife, the Husband and wife do all acts and things and sign all documents necessary to pay to the ATO from the controlled monies account, the sum necessary to pay in full the CGT Liability only as calculated by the Husband's accountant pursuant to order 11 (b) above.

1. In order to determine the wife's application and the merit of the respondents' opposition to it, I must consider:

(a) The principles applicable to the determination of an application for litigation funding; and

(b) The merit of the respondents' submission that the wife is impermissibly seeking to appeal or vary an order already made by this Court on 27 May 2024.

1. The wife's application is not specific as to the head of power within the Act relied upon to justify the order. The wife's counsel submitted that the wife would be satisfied if I characterise any order as part of a property settlement order or in the guise of a costs order. Despite the imprecision of the wife's application, it is necessary for me to identify the source of power relied upon to make an order of the type sought by the wife.[7] This is because, as Brereton J succinctly explained in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578, it is "the source of power that determines the necessary preconditions and relevant considerations for making the order."[8]
2. The juridical bases for an order for provision for litigation costs are diverse. Such an order may be made under s 114UB of the Act or as an interim or partial property order under s 79 and s 80(1)(h) of the Act. There is also authority for the proposition that provision for litigation costs may be made as a maintenance order under s 74 of the Act.[9]
3. Insofar as the wife's application might be framed pursuant to s 79 or s 80(1)(h) of the Act, I turn to consider whether an order can or should be made by way of an interim property order under s 79.
4. The legal principles to be applied in making an order for interim property settlement are well settled.[10] In summary, those principles include:

(a) The discretion to make an interim property order must be exercised within the parameters of s 79, although not as thorough a consideration is required as would be if the Court were determining the matter on a final basis;

(b) It is preferable to make only one order (a final order) in the exercise of the s 79 discretion;

(c) The fact that it is an interim order requires a degree of caution;

(d) An applicant for an interim property order need not establish compelling circumstances;

(e) It is insufficient to establish merely that a property order of the type sought will be made at trial;

(f) A significant factor is whether or not any interim order is capable of reversal; and

(g) If made, an order need not limit the use to which the sum ordered may be put.

1. The wife's solicitor does not by her affidavit filed on 17 June 2025, make any attempt to identify the assets available for distribution or address me about the parameters of the dispute between the parties. That deficiency was not remedied by way of the affidavit in the name of the wife filed on 8 July 2025.
2. When asked where I might find information in relation to the parameters of the s 79 dispute between the parties, the wife's counsel:

(a) Firstly, submitted that he was in a difficult position in circumstances where valuations in relation to the parties' interests had not been obtained. This is despite the fact that orders were made on 14 August 2024, which required the parties to confer and agree upon a joint letter of instruction being forwarded to the single expert, Ms AP, by 15 November 2024;

(b) Referred me to the decision of Justice Williams in Antoun & Antoun (No 2) [2024] FedCFamC1F 354 wherein Her Honour made an effort to identify the assets available for distribution; and

(c) Referred to the transaction entered into by AN Pty Ltd in early 2024.

1. With respect to the first submission, I do not accept that absent valuations, it is impossible to identify the parameters of the s 79 dispute between the parties. This is particularly so given that the proceedings have been on foot for in excess of eight years. The wife's counsel made effort during the hearing to tender a balance sheet, but those efforts were furtive and, in any event, objected to by the husband's counsel in circumstances where she had not seen nor been consulted in relation to the balance sheet. This being so, it was agreed by all counsel that the only reference I had in relation to the specie and value of the assets available for distribution was the decision of Justice Williams. By that decision, Her Honour recorded the following:

(a) The wife submitted that an interim property division of $500,000 to the wife "would be within what the court would find the wife should be entitled to receive on the completion of the discretionary exercise pursuant to s 79(4) of the Act". Further, the wife submitted that the "remaining property would be sufficient to meet the legitimate expectations of both parties at the final hearing and would be capable of being reversed or adjusted if subsequently necessary to do so";[11]

(b) According to the wife, the property occupied by her at Suburb SS, New South Wales had a value of $1,000,000 and subject to a mortgage of around $400,000. According to the husband, the property was worth about $850,00 and the mortgage was around $264,000. It follows that on the best information I have, there is equity in the property of between $586,000 and $600,000;[12]

(c) The husband's counsel submitted that "there may well be insufficient funds to satisfy the wife's potential claim at the end of the day, and she should not get anything from the sale of properties [at Suburb EE or Suburb T, New South Wales] other than retaining her interest in the RR Street property of around $600,000";[13]

(d) Counsel for the second and third respondents submitted that the Court ought not make an order in the wife's favour in circumstances where:

...the court was unable to be satisfied as to what was the property of the husband and wife and associated entities at this stage, and particularly take [sic] into account the claim for approximately $1,400,000 million which the third respondent claims he has advanced to the parties, excluding the advances to the husband for legal fees[14]

(e) If the wife is unsuccessful at trial, then there will "likely be costs applications in the vicinity of $1,700,000 to $1,800,000". When making that comment, Her Honour identified that she was unable to identify the pool of assets;[15] and

(f) All respondents submitted that "the wife would be entitled to receive between $600,000 and $700,000, although the pool has yet to be determined and valued".[16]

1. The wife's Financial Statement filed on 8 July 2025 presents me with another difficulty. On the wife's own case and excluding amounts, which the wife says that she owes on account of legal fees and disbursements, the wife is in possession of non-superannuation assets with a net value of $331,678 calculated as follows:

Plus monies in the wife's name at the National Australia Bank

Less 50 percent share of the mortgage secured over the Suburb SS property

1. If I then include the partial property settlement afforded to the wife pursuant to the Orders made by Justice Williams on 27 May 2024, the assets in the wife's name increase to $581,000. This sum, of course, is close in quantum to the sum which all respondents have submitted the wife would be entitled to receive (supra).
2. The wife's application is for the payment to her of a sum of $450,000. For reasons, which will be obvious from the preceding paragraphs of this judgment, I am concerned that if I accede to the wife's application:

(a) I will be making an order, which is incapable of reversal; and

(b) In any event, I will be making an order, which may cause the wife to receive a sum in excess of her entitlement under s 79 of the Act.

1. Insofar as the wife's application might be framed under s 114UB of the Act, the Full Court observed as follows in Charisteas & Charisteas [2022] FedCFamC1A 160; (2022) FLC 94-109:
   1. In addition, this Court has confirmed that s 117 is a source of power to make litigation funding orders including dollar-for-dollar orders. For example, see Shelbourne & Shelbourne [2019] FamCAFC 196; (2019) 60 Fam LR 183; Atkins & Hunt [2018] FamCA 14; (2018) 57 Fam LR 128; Iphostrou & Iphostrou [2011] FamCA 20; Judd & Treasure [2018] FamCA 50. Thus, even judges who have doubt as to whether s 117 does empower such orders, on it must be said, some reasonable grounds, accept the weight of this authority (see for example, Quayle & Perceval [2018] FamCA 664 ("Quayle")).
   2. Thus, although some of us hold the doubts expressed in Quayle, we accept the force of those decisions. We are not of the view that they are manifestly wrong (Nguyen v Nguyen (1990) 169 CLR 245).
   3. Accordingly, we are of the opinion that until the High Court holds otherwise, the Court should proceed on the basis that s 117 empowers the Court to make litigation funding orders, including dollar-for-dollar orders.
2. On the basis of such Full Court authority by which I am bound, I am satisfied there is power to make an order in the terms sought by the wife.
3. An application for costs is governed by the provisions of s 114UB of the Act, which provides a general rule that each party to proceedings should bear his/her own costs.
4. Section 114UB(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 114UB(3). In this case, the subparagraphs of s114UB(3), which appear to have some relevance are (a), (c), (d) and (g).
5. It is well settled law that no one factor under s 114UB(3) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL [2005] FamCA 158; (2005) 33 FamLR 123, the Full Court observed:
   1. ... Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
6. It is also said that it may involve a consideration of the strength of the applicant's case and the effect of the order on the respondent.[17] Justice Watts in Salvage & Fosse observed as follows:
   1. When considering whether it is just to make an interim order for the provision of litigation expenses pursuant to s 117(2), the court shall have regard to the matters set out in s 117(2A) of the Act. In Zschokke (at 83,217) the Full Court said:

If the order is to be made under s 117(2) then, in our view, the matters contained in s 117(2A) must be addressed, and this would seem to have been recognised, if not expressly at least by implication, by the Full Court in Poletti. In saying this we acknowledge that a number of the paragraphs in the sub-section (notably paragraphs (d) failure by one party to comply with court orders; (e) total lack of success by one party in the proceedings; and (f) existence and terms of an offer for settlement) may not have relevance in an application for an order of the type in question. We also acknowledge that it may well be necessary in such an application for the Court to have regard to a range of relevant matters other than those specified in the sub-section, as is permitted by paragraph (g)...

1. In relation to s 117(2A)(a), apart from the general financial circumstances of each of the parties to the proceedings, the Full Court in Zschokke identified the following particular considerations:

a) a position of relative financial strength on the part of the respondent;

b) a capacity on the part of the respondent to meet his or her own litigation costs; and

c) an ability on the part of the applicant to meet his or her litigation costs.

1. As to such other relevant matters, under s 117(2A)(g), the plurality in Strahan at [96] and [141] specifically adopted the following considerations referred to in Paris King Investments at [30]:

   a) the applicant should have "at least an arguable case for substantive relief which deserves to be heard";

   b) there should be evidence of the applicant's "likely costs of litigation" (see also Wilson and Wilson [1989] FamCA 34; (1989) FLC 92-033 at 77,453); and

   c) it is not "an essential pre-condition" that the applicant's legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis.

1. I am unable to make any assessment of the financial circumstances of each of the parties in circumstances where the wife's counsel did not address me in relation to the same. Putting to one side the specie and value of the assets available for distribution, there does not appear to be a vast disparity in the parties' financial circumstances. The wife on her case has income of $2,314 per week and expenditure of $1,890 per week leaving her with a net income of $424. She says that she is indebted to her former and current legal representatives in a sum of $705,946.[18] For his part, and by his Financial Statement filed on 8 July 2025, the husband represents that he has an estimated income of $3,378 per week and expenditure of $6,868 per week leaving him with a deficit of -$3,490 per week.[19] The husband says that he has borrowed $1,867,018 for legal fees.[20] It follows that on the face of the documents, each party's financial position is at the current time dire.
2. Notwithstanding these circumstances, the wife's counsel submitted by reference to a transaction entered into by AN Pty Ltd in early 2024 that the husband can raise funds to satisfy the wife's application for litigation funding. With respect to this assertion, I note the following:

(a) The husband is a director and equal share holder of AN Pty Ltd;[21]

(b) In early 2024, AN Pty Ltd purchased a factory at Suburb AO, New South Wales;

(c) The AN Unit Trust has 200 units on issue held equally between:

(i) NN Pty Ltd; and

(ii) AA Pty Ltd as trustee for AA Trust;[22] and

(d) AA Pty Ltd acquired its units using funds borrowed from L Pty Ltd.[23]

1. It is apparent from documents tendered by the wife that AN Pty Ltd borrowed monies from the Westpac Banking Corporation to fund the purchase of the factory at Suburb AO.[24] The documents submitted by AN Pty Ltd to the Westpac Banking Corporation were executed by the other director of the entity. There is nothing in the material produced, which supports the wife's proposition that the husband himself has been able to raise monies for his own purposes.[25] I make the same comment with respect to the raising of monies by AN Pty Ltd to pay for an internal office fit out and other improvements at the Suburb AO property.[26]
2. With respect to the conduct of the parties in relation to the proceedings, the wife's counsel asserted that the husband had not complied with his obligation to disclose documents relating to the purchase of the Suburb AO property by AN Pty Ltd and that this is a factor, which I ought to bring to account when determining her application for litigation funding. In support of that proposition, the wife refers to a letter sent by her previous solicitors dated 30 October 2024, which reads in part as follows:

We also confirm that your client has a continuing obligation of providing financial disclosure which we say your client has failed to do.

In particular we wish to advise that your client is a Director and 50% Shareholder of a company [AN Pty Ltd] that was established with ASIC [in early] 2024. It is not clear to the writer whether your client, [the husband], in his individual capacity is holding his shares in that entity in his own right or on behalf of a trust.

The company [AN Pty Ltd] entered into a Contract to purchase the property at...[Suburb AO] which is now completed. The purchase price was $11,205,00.[27]

...

1. The letter went on to request disclosure with respect to the purchase of the Suburb AO property as well as other documents with respect to the financial position of AN Pty Ltd.
2. There is a dispute about whether the husband had previously made disclosure with respect to the purchase of the Suburb AO property. Particularly, and by letter dated 12 November 2024, the husband's solicitors said as follows:

We are instructed that our client had instructed his previous solicitors to disclose the establishment of the [sic] [AN Pty Ltd] and the [AN Unit Trust].[28]

1. The letter was sent in circumstances where the husband engaged alternate legal representation in about June 2024.[29] The husband's counsel submits that the information was disclosed by the husband's previous solicitors and in any event, I expect that this topic will be the subject of robust cross-examination at the final hearing. It is, however, largely immaterial to my determination of the applications at bar.
2. Without further litigation funding, the wife's counsel submits that the wife is unlikely to be able to retain her current lawyers. Indeed, her solicitor says that she is "unable to continue acting in this matter unless there is an Order for Litigation Funding".[30] Whilst this wife's solicitor says so, I note that:

(a) The wife's solicitor did not produce a copy of the Terms of Engagement between the wife and the wife's solicitor. It is possible as submitted by the husband's counsel that the terms of engagement might contemplate a deferred fee arrangement, but I do not know; and

(b) The wife's Costs Notice filed on 8 July 2025 identifies that to date, her solicitors have continued acting even though the wife owes them $599,973 in addition to counsel fees.[31] The assertion by the wife's solicitor that she will not be able to continue to act for the wife must been considered against this background.

1. In Rakete & Rakete[32], Justice Kent, when considering an application for litigation funding said as follows:

...the question of justifying circumstances necessarily involves consideration of the potential outcomes of the claims advanced, and comparison of the competing considerations so far as the effect of that upon the parties".[33]

1. In circumstances where I do not have any clear understanding as to the extent of the specie and value of the parties' assets I am concerned that if an Order is now made for costs in favour of the wife, and the husband's case in the substantive proceedings ultimately succeeds, it would seem likely by reason of the analysis, which I gave in relation to s 79 that the husband will be unable to recover those costs. Thus, the justice of the case, in respect of an Order for costs being "just", devolves into a balance between those two centrally competing considerations.[34]
2. For the reasons discussed above, I am not satisfied that there are circumstances that justify the making of a costs order in favour of the wife.
3. However, and even if my analysis is erroneous, there is another reason why the wife's application ought to be dismissed. That is, there is merit to the argument advanced by the husband and the respondents that what the wife seeks to do by her application is to appeal or vary the orders made by Justice Williams on 27 May 2024.
4. Absent parties reaching agreement about interlocutory disputes, the Court should retain control of interlocutory orders, including orders pertaining to management of disputed issues pending a final hearing.[35]
5. As to the test to be applied to determine whether an interlocutory order should be revisited, in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 178, the High Court per Gibbs CJ, Aickin, Wilson, and Brennan JJ said:

...Just as an interlocutory injunction continues "until further order", so must an interlocutory order based on an undertaking. A court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust: cf. Woods v. Sheriff of Queensland [(1895) Q.L.J. 163, at p. 165]; Hutchinson v. Nominal Defendant [[1972] 1 N.S.W.L.R. 443, at p. 447]; Chanel Ltd. v. F. W. Woolworth & Co. Ltd. [[1981] 1 W.L.R. 485, at p. 492; [1981] 1 All E.R. 745, at p. 751]. Of course, the changed circumstances must be established by evidence: Cutler v. Wandsworth Stadium Ltd. [[1945] 1 All E.R. 103].

1. In Pivotel Satellite Limited v Optus Mobile Pty Ltd [2010] FCA 121 at [26], Jagot J set out the principles relevant to whether interlocutory orders should be varied, namely:

...

There is a debate in the authorities between approaches that are more and less permissive. Nevertheless the approach generally adopted at first instance accords with that of Goldberg J in P Dawson Nominees Pty Ltd v Australian Securities and Investments Commission (No 2) (2009) 255 ALR 466; [2009] FCA 413 at [49], namely, namely, that an applicant seeking to vary a substantive interlocutory order made after a contested hearing must persuade the Court that:

...one or more of the following factors has occurred or is satisfied:

(a) there is new material or new evidence which was not available, or reasonably available, to them at the time the orders were made...;

(b) there has been a material change in the circumstances since those orders were made;

(c) there are exceptional circumstances which warrant re-consideration of the matter...; and

(d) as a matter of discretion, the justice of the matter requires that the applicants be allowed to revisit the matter....

1. Further, and in Vang & Chung (No 6) [2024] FedCFamC1F 604 at [26], Justice Harper quoted with approval the statement of Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 at [14]:

In my opinion, as outlined in Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225, [16]-[17], acknowledging that it is impossible to state a principle capable of universal application, nonetheless the general rule is that interlocutory relief is not to be reconsidered if all that is involved is a review on the same facts as prevailed when it was originally granted or declined or on facts which ought then reasonably have been in contemplation, but that if new facts have emerged which may affect the arguability of the case for final relief or the balance of convenience, then the grant of interlocutory relief may be reconsidered. If it were not so, it would be open to a defendant to make repeated applications for variation of an interlocutory injunction, requiring consideration of the matter de novo, for no stronger reason than dissatisfaction with the previous decision [Harrison Partners Construction Pty Ltd v Jevena Pty Ltd, [13]].

1. The wife did not adduce evidence to demonstrate any factors which would justify revisiting the existing interlocutory orders in accordance with these authorities. There is merit to the submissions made by the husband's counsel and counsel for the second, third, ninth, tenth, eleventh, thirteenth, fifteenth and seventeenth respondents that when Justice Williams delivered her decision on 27 May 2024, it was contemplated that after a judicial settlement conference, the competing applications would proceed to a final defended hearing.[36] That remains the case.
2. The wife by her counsel asserted that the addition of respondents to the proceedings is a consideration, which is material to my determination. It is true that on 31 January 2025, Justice Williams made orders for the joinder of the ninth, tenth, eleventh, fourteenth and fifteenth respondents. However, the wife has not explained how the addition of the respondents will cause her to incur legal fees and disbursements over and above the costs, which she contemplated in any event. This much is plain from the fact that:

(a) On 14 October 2024, the wife filed a Costs Notice, which identified that the wife's "[t]otal anticipated future costs for conclusion of litigation at trial" was $518,200;[37]

(b) The wife's costs estimate remained unchanged when she filed a Costs Notice on 13 December 2024;[38] and

(c) Even after the joinder of the ninth, tenth, eleventh, fourteenth and fifteenth respondents, the wife's "[t]otal anticipated future costs for conclusion of litigation at Trial" was $516,500[39] (reducing by a sum of $1,700 for reasons which were not explained).

1. The wife also invited me to discharge paragraph 14 of the Orders made by Justice Williams on 27 May 2024. Paragraph 14 provided for the payment of Capital Gains Tax on the sale of the Suburb T property. The wife provided no reason whatsoever why this order made in contemplation of a trial ought to be revisited.
2. For these reasons, I dismiss the wife's application.
3. Counsel for the husband and the respondents have foreshadowed an application for costs. I did make effort during the course of the hearing to ensure that I had documentation relevant to any determination by me. However, and as might be expected from parties who have engaged in litigation for over eight years, there was a dispute between them as to the documents, which I might receive. This being so, I direct that the husband and the other respondents file and serve any application and affidavit in support with respect to the question of costs within twenty-eight (28) days.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Application in a Proceeding filed 23 June 2025, paragraph 9.

[5] Amended Initiating Application filed 27 August 2019, Part C.

[6] Antoun & Antoun (No 3) [2025] FedCFamC1F 38 at [2].

[7] Kryiakos & Kryiakos [2013] FamCAFC 22; (2013) FLC 93-528 at 86,937 at [37].

[8] Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 at [30].

[9] In the Marriage of Poletti [1990] FamCA 79.

[10] Harris & Harris [1993] FamCA 49; (1993) FLC 92-378; Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126; (2011) FLC 93-466; Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) [2003] FamCA 395; (2003) FLC 93-143; Stanford & Stanford (2012) 247 CLR 108.

[11] Antoun & Antoun (No 2) [2024] FedCFamC1F 354 at [202].

[12] Antoun & Antoun (No 2) [2024] FedCFamC1F 354 at [213].

[13] Antoun & Antoun (No 2) [2024] FedCFamC1F 354 at [216].

[14] Antoun & Antoun (No 2) [2024] FedCFamC1F 354 at [218].

[15] Antoun & Antoun (No 2) [2024] FedCFamC1F 354 at [221].

[16] Antoun & Antoun (No 2) [2024] FedCFamC1F 354 at [225].

[17] Salvage & Fosse [2020] FamCAFC 144; (2020) FLC 93-966.

[18] Wife's Financial Statement filed 8 July 2025.

[21] Wife's affidavit filed 8 July 2025, paragraph 92.

[22] Husband's affidavit filed 10 July 2025, paragraph 9.

[23] Husband's affidavit filed 10 July 2025, paragraph 13.

[25] Wife's affidavit filed 8 July 2025, paragraph 98.

[29] Notice of Address for Service filed 7 June 2024.

[30] Affidavit of the wife's solicitor filed 17 June 2025, paragraph 91.

[32] Rakete & Rakete [2012] FamCA 267; (2012) 48 Fam LR 325.

[33] Ibid at 335, [43]; See also Salvage v Fosse [2020] FamCAFC 144; (2020) 61 Fam LR 45 at 55, [24]-[25].

[34] Rakete & Rakete [2012] FamCA 267; (2012) 48 Fam LR 325 at [47].

[35] Woodgate (Trustee) v Northop Hall Pty Ltd [2016] FCA 370; (2016) 341 ALR 132 at [31]-[32].

[36] Orders made on 27 May 2024, paragraph 16.