Pauwels & Radu (No 2) [2025] FedCFamC1F 523 (21 July 2025)

(a) Selling, transferring, further encumbering or in any way dealing with the real properties registered in the name of the Husband individually and/or jointly or in the name of any company of which the Husband is a director or any trust in which the Husband or any of the entities is trustee, settler, appointer or beneficiary without providing 21 days' written notice to the Wife and setting out particulars of the intended transaction.

(b) entering into a contract for the purchase and or sale of any real property in the name of the Husband individually and/or jointly or in the name of any company of which the Husband is a director or any trust in which the Husband or any of the entities is trustee, settlor, appointer or beneficiary without providing 21 days' written notice to the Wife and setting out particulars of the intended transaction;

(c) amending or varying any trust deed for any trust in which the Husband has an interest;

(d) exercising the power as trustee personally or through any of the entities in which the Husband has an interest to distribute any funds from any trust to the Wife or dispose of, transfer or further encumber any assets of any trust in which the husband has an interest other than in the ordinary course of business without 21 days written notice to the wife of the intended distribution or transaction;

(e) selling or otherwise disposing of, encumbering or dealing with shares in:

(i) ACN...G PTY LTD

(ii) ACN...H PTY LTD

(iii) ACN...J PTY LTD

(iv) ACN...K PTY LTD

(v) ACN...L PTY LTD

(vi) ACN...M PTY LTD

(vii) ACN...N PTY LIMITED

(viii) ACN...O PTY LTD

(ix) ACN...P PTY LTD

(x) ACN...Q PTY LTD

(xi) ACN...R PTY LIMITED

(xii) ACN...S PTY LTD

(xiii) ACN...T PTY LTD

(xiv) ACN...U PTY LTD

(xv) ACN...V PTY LTD

(xvi) ACN...W PTY LTD

(xvii) ACN...Z PTY LTD

1. The Wife personally, and by her servants or agents is restrained from, and an injunction be granted restraining the Wife from personally, and in her capacity as appointer of the AA Trust from doing any act or thing to:

(a) Remove V Pty Ltd as trustee of the AA Trust or to appoint an additional or replacement trustee to the AA Trust; and

(b) Resign as appointor of the AA Trust and/or appoint a replacement appointor of the AA Trust before resignation.

1. Within 21 days of the date of these orders, the Husband provide the documents listed in paragraph 2 of the Application in a Proceeding filed 10 July 2025 to the extent that the documents are in the Husband's custody, control or possession and such documents have not already been provided to the Wife.
2. Pursuant to s 114UB of the Family Law Act 1975 (Cth) the Husband shall pay to the Wife by way of deposit into the trust account of KWL Lawyers:

(a) Within three months of today's date, $200,000; and

(b) Within a further period of one month thereafter, $100,000.

And such funds will be used exclusively by the Wife's solicitors in payment of costs and disbursements incurred by the Applicant in the conduct of these proceedings.

1. The Application in a Proceeding filed 10 July 2025, the Amended Application in a Proceeding filed 17 July 2025, the Response to Application in a Proceeding filed 17 July 2025, and the Amended Response to Application in a Proceeding filed 17 July 2025 are otherwise dismissed.
2. The Application in a Proceeding filed 21 July 2025 is dismissed.
3. The Wife shall file an undertaking as to damages by no later than 12 pm today, noting that on one view the undertaking already given by her may have expired on 18 July 2025.
4. The matter is referred to Justice Campton for further management.

1. An undertaking has been given by the Husband that he has not received any funds from the proposed refinance and raising of $5,000,000 through the NAB.
2. An undertaking as to damages was provided by the Husband.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are my ex tempore reasons taken from the transcript and corrected for any grammatical errors, and to make my oral reasons more amendable to the written word.
2. I have before me the wife's application in a case filed 10 July 2025, supported by an affidavit and financial statement. The wife filed on 17 July 2025, at about 8.30pm, an amended application in a case which raised serious issues with respect to contempt. The husband had no notice of that amended application. The wife did not proceed on that application at the interim hearing.
3. The husband relies on an amended response filed 17 July 2025, after the date for compliance. He filed an affidavit on the same date. The response is not supported by a financial statement. The last financial statement, which is the only financial statement filed by the husband, was on 22 December 2023.
4. A variety of documents have been tendered, and I have had regard to that material, as well as the material otherwise relied on by the parties in this matter.
5. The wife seeks an order for $300,000 by way of an interim costs order. That was amended during the course of the hearing from her original position of $400,000. The wife seeks injunctions restraining the husband from dealing with, selling, encumbering and the like various of the entities. Orders made by Campton J which secured the position of the parties were due to expire on the afternoon of the hearing. Those have been extended to 2 pm today and will, therefore, expire.
6. The husband consents to various injunctions with respect to notice sought by the wife. He reframes the injunctions somewhat, but there is essential agreement. What he does not consent to is a restraint sought by the wife that would restrain any dealings with the entities. The husband argued that what the wife seeks is a doubling up, and the orders as framed by her have the potential to remove or inhibit the parties' ability to come to rational decisions about the running of the business.
7. The husband seeks to restrain the wife as appointor of the AA Trust from altering the trustees. I understand that is an agreed order.
8. The husband, during the course of the proceedings, proposed that $200,000 should be paid to the wife for interim costs. He made that as an open offer.
9. The husband seeks orders permitting him to refinance, and apply $5 million in borrowings to make an investment in a company called BB Company. His evidence is that there is a deadline of 21 July, that is today, for a particular share offer in BB Company that he would like to take up.
10. The wife additionally sought orders with respect to spouse maintenance. She conceded there is no jurisdiction to proceed with that. The wife can file that in Division 2, as was discussed.
11. The consent orders of 30 January 2024, at order 8, provided by way of an interim order that the husband shall not do any act or thing to cause or permit R Proprietary Limited, as trustees for CC Trust, to enter into any sale or purchase of real estate or further encumbrance of any property of said trust, other than the refinance of an existing loan facility at the same debt level, without first providing to the wife 21 days notice in writing inclusive of the particulars of the intended transaction. I set that out at the beginning of these reasons because that order overshadows much of the argument that has been made in this matter.
12. The parties filed a joint balance sheet on 2 June 2025. Valuations of various properties are not completed. Ms B is awaiting those valuations to complete valuations of the various entities. The financial position of the parties is not clear on the material that I have. The husband's view on the balance sheet indicated a net asset position of $14,778,000, the wife of some $41,888,844. On the husband's figures $5 million would be about a third of the available assets. Both parties accept that the balance sheet is incomplete and does not contain a variety of the assets of the parties.
13. I make that point at the outset to indicate that the difficulty of parties' failure to disclose is that their financial positions are not transparent. The wife has properties in her name in Country E. She says she holds those as trustee for her mother. That is something that will no doubt need to be demonstrated as part of a final hearing. There are five properties to which that applies. There are also four bank accounts in the wife's name that have been recently disclosed by her in Country E.
14. The husband has entered into various transactions not disclosed to the wife until very recently. At paragraph 25 of the affidavit filed 17 July 2025, he sets out a list of properties: an unencumbered apartment at DD Street purchased in 2022 for $1.963 million, EE Street, purchased for $850,000. The parties own various units at FF Street, Suburb GG, more than 30 in number. A further four were purchased by the husband: one in early 2024, two in mid-2024, and one in mid-2025. None of these properties are reflected on the joint balance sheet.
15. R Proprietary Limited, as trustee for CC Trust, was the purchaser of the FF Street properties. The units are now owned, the husband advises through his affidavit, by another corporate entity within the HH Group.
16. The husband has set out a proposal for raising funds with respect to the interim orders that he seeks. He has approached JJ Company. Correspondence to the husband's solicitors, 16 July 2025, refers to the various loans that he seeks to refinance, and to raise $5 million. Those include a home loan where the husband is the proposed borrower against the apartment at DD Street, Suburb KK, which is otherwise unencumbered. The second is a home loan where the proposed borrower is P Pty Ltd, as trustee for LL Trust, to be secured against MM Street, Suburb NN. There is proposed refinance of the loan facility on an ANZ commercial bill with a face value of $717,000. There are corporate markets loans, where the proposed borrower would be R Proprietary Limited, as trustee for CC Trust. Two loans to the value of $1 million, secured against 33 of the serviced apartments at the FF Street, Suburb GG. Then a refinance of two existing ANZ loans through the NAB. That would provide for a refinance of some $4 million of the existing debt of various entities, with $5 million available to acquire shares in BB Company.
17. The husband did not bring this application to be released from the injunctive orders made 30 January 2024 until the day before the interim hearing was listed. 21 days notice, as provided for within the order, has not been provided to the wife. The order made 30 January 2024 set out a pathway for information to be given, and decisions made by the parties.
18. The husband seeks to invest in BB Company Proprietary Limited to the value of a $5 million purchase in shares. As I understand it, there is a $1 share capital being raised by BB Company with a deadline of today. The husband proposed, through his counsel, accepting all responsibility for the investment and payment as a partial property settlement. The difficulty with that is, the various securities being proffered go across the entities of the parties. The mud map that was provided by the accountants for the husband, which sets out the various entities and their interconnections, give a sense of the difficulty in corralling or quarantining the impact of what the husband seeks on the parties' assets.
19. The orders that are drafted by the husband do not seek a partial property order. That was proffered during submissions. The orders do not make clear how it is proposed to corral the impact of the investment upon the assets of the parties.
20. The lack of notice by the husband is another issue. Paragraphs 44 to 50 of his affidavit set out his investigation of BB Company, which would seem to have taken place over some period. On 4 July 2025 the solicitors for the husband wrote to the solicitors for the wife, providing notice of a proposed borrowing. A letter from JJ Company was enclosed, as the finance brokers for the husband and the associated entities. That did not provide the detail provided in the later correspondence from JJ Company, to which I have referred. That was only available late in the day.
21. I appreciate the submissions made by senior counsel that injunctive relief is often sought on an urgent basis, however, in this matter there was a pathway indicated in the injunction for the husband to follow, which he chose not to do. Instead, he sought orders the day before the matter was listed for hearing, with a deadline falling on the first business day after the interim hearing. The urgent aspect of this matter is entirely within the control of the husband.
22. The parties both accept the balance sheet is incomplete. That gives rise to a concern of how to make an assessment of the value of the various entities, and what the $5 million entails set against those values.
23. In his affidavit of 17 July 2025, the husband gives evidence of purchasing shares in BB Company through P Pty Ltd in mid-2022, mid-2023, late 2023, and early 2024. I note the shares purchased in early 2024 were purchased without notice being given to the wife in accordance with the injunction, on the evidence available. None of the shares in BB Company appear on the joint balance sheet. No doubt there will be explanations for that at some stage.
24. The husband's financial statement has not been updated since filed in December 2023. In the financial statement he sets out a total value of property of $3,437,143 and total liabilities of $3,971,848. One would imagine that will need updating for people to be able to understand actually the husband's financial position.
25. The husband conceded through the course of submissions that the investment he is proposing is risky. The Notice of Extraordinary General Meeting dated mid-2025 demonstrates significant recent changes to BB Company in terms of the makeup of the board, and other matters. The husband says those changes address the 'parlous situation', as counsel for the wife put it, for BB Company and put BB Company on a solid footing.
26. The husband's order as drafted would see the lifting of the restraint, enabling him to refinance $9,105,000, and apply $5 million in borrowings to shares in BB Company. Nothing in the orders quarantines the other assets of the parties from the impact of any potential failure of that investment. The wife does not agree to the investment. In her view, it will have an impact on the assets held by, for example, LL Trust, and CC Trust. The wife, the husband and the children are discretionary beneficiaries of the LL Trust.
27. It is not for the Court to determine what investments parties may have an appetite for in terms of risk. But where there is no agreement between the parties on application of funds, then it is an obligation of the Court to act conservatively to preserve the asset pool of the parties. The lack of clarity in the evidence provided by the husband, including no current financial statement, leaves the Court unable to determine the impact of the investment on the assets overall, and whether any amount provided to the husband could be clawed back. This highlights the Court's obligations to act conservatively in these circumstances.
28. For these reasons I do not propose making the orders sought by the husband. I will make the orders otherwise drafted by the husband in terms of the injunctive relief, leaving out that portion of 1.1, which would allow for the share purchase. The reason for doing that is that the husband's draft orders cover the same matters as those proposed by the wife, but in my view, do so in wording that is clearer. The orders sought by the wife for a further restraint on the husband doubles up both the notice to be provided, and then restrains the capacity of the husband to act. The parties need the ability to reach agreements in order for the business to operate. I am concerned that the manner in which the restraints are drafted by the wife may cause difficulties in that regard.
29. The wife does not oppose orders sought by the husband at order 2 of the amended response, and I will make that order with respect to restraining her actions as appointor of the AA Trust.
30. In terms of litigation funding, the wife seeks $300,000, as amended during the hearing. The husband made an open offer of $200,000 to be paid within three months. For any greater amount ordered he seeks an additional period of three months.
31. The wife's estimate of a 10 day hearing underpinned the orders she sought. At the present time, it is difficult to estimate hearing days because the valuations are not yet complete. The valuations may resolve a number of issues.
32. Section 114B sets out the applicable principles that I must have regard to. The usual rule is that each party meets their own costs.
33. Section 114UB(2), sets out the matters that the Court must have regard to having regard to subsection (3) and sections 114UC and 114UD. Cases such as Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126; (2011) FLC 93-466; and Zschokke & Zschokke [1996] FamCA 79; (1996) FLC 92-693 have emphasised the need to identify for the source of power for any proposed order.

Section 114UB

(2) If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (3) of this section, sections 114UC and 114UD and the applicable Rules of Court, make any order for costs and security for costs that the court considers just, whether by way of interlocutory order or otherwise.

(3) In considering what costs order (if any) should be made, the court must have regard to the following:

(a) the financial circumstances of each party to the proceedings;

(b) whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b), the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether a party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

(g) such other matters as the court considers relevant.

1. The wife seeks the order pursuant to section 114UB. Justice Tree in James & Collings [2014] FamCA 1083 at paragraphs 14 to 15 noted three relevant matters are common, regardless of the source of power to be employed: the position of relative financial strength of the parties, a capacity for the respondent to meet their own litigation costs and an inability on behalf of the applicant to meet their own litigation costs. The case law refers to the need for at least an arguable case for substantial relief, which deserves to be heard. Evidence of the likely costs of litigation is required.
2. It is not an essential precondition that the applicant's legal representatives will not continue to act unless costs are paid or secured on an ongoing basis. The order may make provision for litigation expenses at a rate that appears reasonable in all the circumstances. Whether the order is to be in respect of costs already incurred, or costs to be incurred and whether the applicants lawyers will continue to act in the absence of provision for costs to be incurred may be relevant to the exercise of the discretion to make an order, and the quantum.
3. Any order should be framed to protect the parties from any risk of injustice arising from the manner in which the funds are expended, and this may be done by requiring that funds be administered solely by the applicant's solicitors and applied only to meet the expenses referred to in the order. I accept I must act conservatively to ensure that the remaining property will be adequate to meet the legitimate expectations of both parties at the final hearing, or on a practical level be able to be reversed.

Section 114B considerations

1. The husband has not yet filed a financial statement. He concedes an ability to meet an order for costs of $200,000 within three months, and within a further three months, an additional $100,000. The wife's financial statements makes clear she has met costs to date of $200,000. She has exhausted her own resources in that regard without reverting to sale of property, being the Country E properties not yet valued.
2. The estimate of costs that the wife relies on is $19,800 for the interim hearing, and $390,500 for a final hearing on a 10 day estimate.
3. Both parties have not disclosed in accordance with their obligations. I accept on the evidence available the husband has control of the assets that generate the wealth of the parties. He is in a position of relative financial strength as compared to the wife. He has met his own costs, of some $389,739, and the estimate for the interim hearing of $104,340. He estimates a further $300,000 in costs to the final hearing.
4. In terms of the complexity of the litigation, there is no dispute that the hearing will involve considerations of various interconnecting entities within a complex corporate structure. Orders are already in place for valuations of the entities to be completed upon the property valuations being completed. I am satisfied that this is a complex matter.
5. In terms of a level playing field, this is a factor of significance with respect to the wife's position for funding. This is implicitly conceded by the husband in the offer of $200,000. The husband proffers that on the basis that it will be sufficient to move the matter forward, and once valuations are completed and there is a better understanding of the length required for a final hearing, a further order may be made.
6. Looking at the history of litigation in this matter, and Campton J's judgment of 6 May 2025, I am satisfied that it is appropriate to order $300,000 in costs to the wife. It provides a level playing field. I propose making orders that give the husband the time sought by him so that he is able to meet those orders without significant disadvantage. Looking at the position of the parties overall, I am satisfied that that is appropriate in all the circumstances.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Boyle.