13 On 14 May 2007, the plaintiff swore a second affidavit in which he deposed:
" As to paragraph 21 of my previous Affidavit I say that, since swearing that affidavit, I have located 3 share certificates for shares and options owned by me as follows:-
(i) 384 ordinary shares in Working Systems Solutions Ltd @ $0.07 cents per share - $26.88.
(ii) 10,000 fully paid ordinary shares in Eagle Eye Metals Limited @ 22 cents per share - $2,200.00
(iii) 10,000.00 options in Eagle Eye Metals Limited @ 7 cents per option - $700.00
(iv) 1 share in Mann Securities Pty Limited, a company formed in February 2007 on the advice of my accountant for income tax reasons - nil value. "
14 Company searches show that the plaintiff was a director of a company called Acquist Listed Investments Ltd. However, an application for the voluntary deregistration of that company had been lodged and it has subsequently been deregistered. He was also the sole director and secretary of Australasian Development Equities Pty Ltd. A later company search reveals that the plaintiff owns half of the issued shares in that company and is one of two directors. According to the company search, the other director is Sayah Rafick, although the plaintiff in evidence said that a Richard Beaumont had become a director. He said that this company had never traded.
15 The notice to produce was re-served on 13 August 2007. In their covering letter, the defendant's solicitors complained that there were outstanding documents which had not been produced and that there was no satisfactory explanation for the non-production. The defendant's solicitors said that no bank statements had been produced in relation to the partial distribution from the estate. They requested that if the money had been paid into any "relevant account" that the plaintiff produce the statement for the account. They noted that no income tax returns had been produced. They said that if the money from the partial distribution from the estate had been invested in the plaintiff's name, the plaintiff should produce the records of the investment. They also asked for the production of documents in relation to fees and commissions received by the plaintiff from a number of entities referred to in the ANZ Bank statements.
16 On 15 January 2008, the defendant's solicitors further complained that the plaintiff had not given true and full disclosure of his "financial and material circumstances". In response to the notices to produce, the plaintiff had produced bank statements of Mann Securities Pty Ltd ("Mann Securities") with the ANZ Bank for an account called the V2 Plus account. Statements for the period from 30 April to 31 May 2007 were missing. No statements were produced for the period after 30 June 2007. That company had another account with the ANZ Bank for which no bank statements were produced. The notice to produce did not call for the production of bank statements for accounts of Mann Securities, or any other company, unless the plaintiff had a loan account with that company. Nonetheless, such documents were material to a proper understanding of the plaintiff's financial circumstances given that he was the sole shareholder and director of the company, and it carried on the business he had formerly carried on.
17 Although the plaintiff deposed that in the 2006 financial year he had a taxable income of $17,516, no tax returns were produced. He said that his accountant had not yet prepared tax returns sought by the notice to produce. The notice to produce had sought tax returns for the 2005 and 2006 financial years. The plaintiff said that the figure for his income in the 2006 financial year was a calculation he made from his records. He gave no evidence as to his income in earlier or later years.
18 Prior to the incorporation of Mann Securities, the plaintiff carried on business as a stockbroker in his own name. Mann Securities was incorporated on 13 December 2006. The business which the plaintiff formerly carried on in his own name has, since January 2007, been carried on by Mann Securities. On 16 January 2007, the plaintiff signed an application for Mann Securities for it to register for GST. He then estimated that the company's annual turnover would be between $50,000 and $99,999. That estimate was based on projects on which the plaintiff was working at the time, and was the anticipated fees it would receive if those projects were successful.
19 On 22 January 2007, the plaintiff deposited $50,000 into the V2 Plus account of Mann Securities with the ANZ Bank.
20 The plaintiff received $75,130.84 from the interim distribution of the estate. The balance was retained by his solicitors. The plaintiff did not disclose where the funds were deposited. He said that the $50,000 deposited to the account of Mann Securities on 22 January 2007 was part of the distribution. He said that he thought he probably paid the distribution into his cheque account. He said that part of the funds he received were used to pay debts to creditors in Queensland and New South Wales. Although he did not produce all of his bank statements for his cheque account, it is clear that the $75,130.84 received on or about 25 October 2006 was not kept in his cheque account. He did not produce bank statements for the period from 22 June 2006 until 21 November 2006, but the opening balance as at 22 November 2006 was $1,965.55. There were no subsequent deposits into his cheque account up to 22 January 2007, when he deposited $50,000 to the account of Mann Securities. The plaintiff must have had another account or accounts, or the moneys must have been held by someone else on his behalf. The plaintiff said he was uncertain where the money from the estate went to, and from where the $50,000 deposited on 22 January 2007 came.
21 This evidence was not satisfactory. When added to the meagre details as to the plaintiff's income, it raises a concern that the plaintiff has not been wholly frank in disclosing his financial position.
22 There were other unsatisfactory aspects of the plaintiff's evidence as to his means. The notice to produce required the production of documents and records relating to the earning of commissions as a business consultant for the preceding two years. He produced a number of invoices dated at various dates in 2006 and 2007. They related to his activities in raising capital either by placement of shares, or by raising loan capital, or in organising stockbroker presentations. Invoices rendered from February 2007 were rendered in the name of Mann Securities. Other invoices were rendered in his personal name. He did not produce all of the invoices rendered. Some invoices were obtained by the defendant on subpoena to Allegiance Mining NL. These were invoices rendered in April, May and June 2006 for a total in excess of $42,000.
23 Bank statements produced by the plaintiff for his personal cheque account showed receipts of three payments in 2005 and 2006 from a company called "Eagle Eye" for which no corresponding tax invoices had been produced by him. Presumably this was because he had not kept a copy of the invoices.
24 No attempt was made by the plaintiff in his affidavit to describe his sources of income or how his calculation of his 2006 taxable income was made up. He left it to the defendant to give notices to produce documents relating to his financial position, but the documents he produced were not complete. The plaintiff ought not to have sought to put the defendant in the position of having to attempt to verify his bare assertions as to his assets and income. The defendant was in no position to know what were the plaintiff's means. It was clear from correspondence between the parties' solicitors before proceedings were instituted that the defendant expected the plaintiff to provide full and frank information as to his financial position and earnings. Instead, the plaintiff contented himself with a bare statement of his assets and a bare statement of his taxable income in the 2006 financial year with no corroborative material.
25 It has often been said that an applicant for provision must make a full and frank disclosure of his or her "financial and material circumstances" (e.g. Fraser v Venables (Supreme Court of New South Wales, McLaughlin M, 30 September 1998, unreported); BC9805011; Draper v Nixon [1999] NSWSC 629 at [35]; Bennett v Bennett [2001] NSWSC 987 at [23]; Ernst v Ryf [2001] NSWSC 1167 at [37]; Van Ooyen v O'Driscoll [2002] NSWSC 445 at [55], [56]; Zaleski v Patterson [2005] NSWSC 54 at [42]; Troy v Slede [2005] NSWSC 1080 at [20]; Wheatley v Wheatley [2006] NSWCA 262 at [26]). The defendant's solicitors in correspondence stressed to the plaintiff's solicitors that the plaintiff had such an obligation, even going to the length of citing the abovementioned and other authorities for that proposition. They complained of the plaintiff's failure to produce bank statements, tax invoices and to explain how he had dealt with the distribution from the estate. They also complained that whilst it appeared that there had been substantial withdrawals from both his personal cheque account and from the V2 Plus account of Mann Securities, the plaintiff had given no explanation and produced no documents to show how the withdrawals had been applied. The plaintiff's personal cheque account with the ANZ Bank showed that there had been withdrawals totalling at least $57,463 during the period from 22 February 2006 to July 2007. The V2 Plus account of Mann Securities showed withdrawals of about $44,000 between 22 January 2007 and 1 July 2007.
26 In oral evidence, the plaintiff gave evidence in general terms of moneys having been spent on expenses, repayment of debts, payment of rent in advance, and (as to about $16,000), on the costs of an overseas trip. In the way the evidence came out, there was no opportunity for the defendant to test this explanation.
27 The plaintiff did produce cheque butts for his personal account. They were not fully completed. One cheque dated 31 May 2006 was for $7,438 made out to "Eleanora CC". In an affidavit sworn on 24 January 2008, the plaintiff's solicitor expressed the opinion that this apparently related to golf club fees. That is a reasonable inference. The plaintiff did not give any evidence to the contrary. He gave no evidence about it at all. There is something incongruous in a person on an aged pension with the minimal assets and income deposed to by the plaintiff in his affidavits incurring such an expense.
28 The plaintiff gave no explanation as to how he came to be in the financial position which he described of having assets valued at less than $10,000 apart from the legacy he had received from his father's estate, notwithstanding that he had worked as a stockbroker from the 1960s to the 1990s. He was cross-examined about the sale of his family home in 2002. He and his wife owned a house at Killara which was sold for $1,950,000. He said in cross-examination that $980,000 of the proceeds of sale were used to discharge a mortgage over the property and that the balance of the moneys was distributed 80 percent to his wife and 20 percent to himself as part of a property settlement with his wife. He did not volunteer in his affidavits any information about that transaction or about any such settlement.
29 Counsel for the plaintiff submitted that as the plaintiff had given sworn evidence as to his assets and income and as none of his evidence about those matters were shown to be untrue, it ought to be accepted. However, the plaintiff needs to bring me to a state of persuasion or reasonable satisfaction, on the balance of probabilities, that his financial position is as he describes it and hence that he has financial needs (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J). I do not consider that the Court has been given the full picture. The particular matters of concern are: