Ascot Investments Pty Ltd v Harper

148 CLR 337
33 ALR 631

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(Judgment by: GIBBS J)

Between: ASCOT INVESTMENTS PTY LTD
And: HARPER

Court:

Judges: Barwick C.J.

Gibbs J.Stephen J.
Mason J.
Murphy J.
Aickin J.
Wilson J.

Subject References:
Family Law

Hearing date: 5 November 1980
Judgment date: 2 February 1981

CANBERRA

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Judgment by:
GIBBS J

This is an appeal from the Family Court of Australia. The appellant, Ascot Investments Pty. Ltd. ("Ascot Investments"), is a private company. The respondents were formerly husband and wife, and although their marriage has been dissolved it is convenient to continue to refer to them as such.

On 12 November 1976 a decree nisi for the dissolution of the marriage between the husband and the wife was pronounced by Barber J. in the Supreme Court of Victoria. That decree has since become absolute. On 16 December 1976 Barber J. made further orders which, so far as they are material, were as follows:

1.

That the husband pay to the solicitors for the wife the lump sum of $75,000 on or before 16 January 1977 and that he pay interest at the rate of ten per cent quarterly upon such part of that sum as might remain unpaid after 16 January 1977.

2.

That the husband pay the wife's taxed costs.

3.

That until payment of the lump sum and costs the husband be restrained from exercising any of his powers as shareholder or director in Ascot Investments.

4.

That in order to secure payment of the lump sum and costs, the husband forthwith transfer to the wife by way of security inter alia all his right, title and interest in the shares then registered in his name in Ascot Investments, such shares to be reassigned to the husband by the wife as soon as all the moneys had been paid.

5.

That if the husband should refuse or neglect to execute any necessary deed or instrument Master Jacobs, a Master of the Supreme Court, be appointed to execute the same in his name.

Before the decree nisi had been pronounced a number of orders for the payment of maintenance had been made against the husband. He had contumaciously failed to comply with them. He proved equally determined to flout the order made by Barber J. He has not paid the sum of $75,000 or interest or costs. Indeed it is said that an amount of about $200,000 is due and unpaid under various orders made against him. He did not sign a transfer to the wife of his shares in Ascot Investments, but transfers of those shares to the wife were subsequently executed by Master Jacobs in the name of the husband. However those shares remain registered in the husband's name.

On 30 March 1979 the wife made application to the Family Court for a variety of orders, whose purpose was to aid in the enforcement of the order made by Barber J. on 16 December 1976. It is not necessary to mention all the relief sought by the wife, some of which has since been obtained. Some of the orders sought against the husband and the husband's servants and agents (including his bank) related to his shares in Ascot Investments, and on 2 May 1979 Ascot Investments applied for leave to intervene in the proceedings and sought the refusal of those orders sought by the wife. On 4 May 1979 Ascot Investments was granted leave to intervene.

Subsequently, on 10 October 1979, the wife's application was amended to seek, amongst other relief, an order that Ascot Investments be wound up. In the alternative the wife sought an order that Ascot Investments, its servants or agents, register or do all such things as are necessary, and have signed or sign all such documents as may be required, to register the transfer from the husband to the wife of 7,000 "A" class shares in Ascot Investments. Similar orders were sought against the husband and against Douglas Adrian Graham Harper, William James Harper, and David Michael Harper, adult children of the marriage who were three of the four directors of Ascot Investments, the fourth being the husband.

The application came before Frederico J. who refused to make any of the orders of the kind just mentioned, and made no order as to costs. Ascot Investments appealed to the Full Court of the Family Court against the refusal of Frederico J. to order the wife to pay the costs of that company, and the wife cross appealed, seeking orders for the registration of the shares. The Full Court dismissed the appeal but allowed the cross appeal. That Court ordered that within twenty-eight days of the wife delivering or causing to be delivered to Ascot Investments a transfer from the husband to the wife of 7,000 "A" class shares in the company in registrable form together with the relevant share certificate: (a) Ascot Investments, its servants or agents register or do all such acts and things necessary and have signed or sign all such documents as may be required to register the said transfer from the husband to the wife of 7,000 "A" class shares in Ascot Investments; (b) the husband do all such acts and things necessary and sign all such documents as may be required to register the said transfer from the husband to the wife of 7,000 "A" class shares in Ascot Investments; and (c) Douglas Adrian Graham Harper, William James Harper and David Michael Harper do all such acts and things necessary and sign all such documents as may be required to register the said transfer of 7,000 "A" class shares from the husband to the wife.

The Court also ordered that the husband and Ascot Investments pay the wife's costs of the hearing before Frederico J. and of the appeal and cross appeal.

Ascot Investments is a company incorporated under the laws of Victoria. Its nominal capital is 60,000 shares of one dollar each, of which 7,000 are "A" class ordinary shares, 2,000 are "B" class ordinary shares, 2,000 are "C" class ordinary shares, 2,000 are "D" class ordinary shares, 2,000 are "E" class ordinary shares, 2,000 are "F" class ordinary shares, 2,000 are "G" class ordinary shares, 2,000 are "H" class ordinary shares, and 39,000 are "I" class shares. The "I" class shares do not entitle the holders thereof to vote, but there is no difference between the voting rights attached to the shares of the other classes. In fact no "I" class shares have been issued, but the remaining 21,000 shares have been issued. The 7,000 "A" class shares are registered in the name of the husband; the "B", "C" and "D" class shares are held respectively by the three adult children who are directors, and the "E", "F", "G" and "H" class shares are held by one Margaret McGregor in trust respectively for each of the four other children of the marriage, who, when the trusts were created, were infants, but some of whom, it appears, have now come of age.

Clause 4 of the memorandum of association of Ascot Investments provides as follows:

"The Company shall be a proprietary company within the meaning of Section 130 of the Companies Act 1928 and the following provisions shall have effect, viz. -

(a)

The right of the members to transfer shares in the Company shall be restricted in that the Directors of the Company may decline to register any transfer without assigning any reason therefor...."

Article 11 of the articles of association provides as follows:

"Save as herein otherwise provided and subject to the provisions of the Act, the Company shall be entitled to treat the registered holder of any share as the absolute owner thereof and accordingly shall not, except as ordered by a Court of competent jurisdiction or as required by Statute, be bound to recognise (even when having notice thereof) any equitable or other claim to or interest in such share on the part of any other person."

Article 143 of the Articles provides as follows:

"The Company is a proprietary company and accordingly the following provisions shall apply: -

(a)

The right of the members to transfer shares in the Company is restricted in that the Board may at any time in its absolute discretion decline to register any transfer of shares."

Frederico J. found that Ascot Investments is "what has been described as a family company and it is quite clear that the husband exercises effective control over that company." The Full Court appears to have accepted the correctness of this finding for after referring to it their Honours added:

"Certainly it appears in the material that the husband exercises significant day to day control in relation to the company and the material also indicates that for the financial year 1977/78 $23,000 in dividends were paid by the company to the husband but nothing to the other shareholders."

It will be necessary later to discuss whether the finding is supportable, and if so its significance.

It does not appear to be disputed that the shares in the company constituted the husband's most substantial asset.

One cannot fail to share in the sympathy which was felt by the Family Court for the wife in her difficulty in enforcing the orders which she had obtained against the husband. But the question for our decision is whether the Family Court had power to order Ascot Investments to register the transfer from the husband to the wife of the 7,000 "A" class shares. The restrictions contained in cl. 4 (a) of the memorandum and art. 143 of the articles, which satisfy the requirements of s. 15 (1) (a) of the Companies Act 1961 (Vict.), as amended, confer on the directors of the company a wide discretion to refuse to register a transfer. The directors are bound to exercise their discretion bona fide in what they consider to be in the interests of the company, and not for any collateral purpose, but subject to that qualification their discretion is absolute and uncontrolled: In re Smith & Fawcett Ltd (1942) Ch 304, at pp 306-308 ; Charles Forte Investments Ltd. v. Amanda (1964) Ch 240, at pp 252-254, 260-261 ; Australian Metropolitan Life Assurance Co. Ltd. v. Ure (1923) 33 CLR 199 , at pp 205-206, 217-220, 223. This rule is an application of the general principles governing the exercise by directors of their powers; those principles are discussed in Ngurli Ltd. v. McCann (1954) 90 CLR 425 , at pp 438-440. The cases cited establish that the onus of proving that the directors in refusing registration did not act in good faith in what they considered to be the interests of the company lies on those who challenge their decision.

In the present case it was not proved that the directors of Ascot Investments acted in bad faith or for an ulterior purpose; indeed the transfers of the shares have not been submitted for registration and the directors have not been called upon to exercise their discretion to register or decline to register them. However, Mr. Goldberg, who appeared for the wife, submitted that the Family Court has power to order the company to register the shares, and that such power is conferred by s. 80 (d), or alternatively by s. 80 (k), or in the further alternative by s. 114 (3), of the Family Law Act 1975 (Cth), as amended ("the Act"). Those sections provide as follows:

"80.

The court, in exercising its powers under this Part, may do any or all of the following: -

...

(d)

order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

...

(k)

make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice...

114.(3)

A court exercising jurisdiction under this Act in proceedings other than proceedings to which sub-section (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court thinks appropriate."

Mr. Goldberg submitted that the Family Court in the present case was exercising its powers under Pt VIII, particularly under s. 79 which deals with proceedings with respect to the property of the parties to a marriage or either of them, and that the orders now subject to appeal were necessary to enable the orders made by Barber J. to be carried out effectively or to provide security for the due performance of those orders, or were orders which the Full Court thought it necessary to make to do justice. Alternatively, he submitted, they were orders in the nature of mandatory injunctions granted in a case in which it appeared to the Family Court to be just or convenient to do so. It may be accepted that the orders fall within the literal words of s. 80 and s. 114 (3), and that they were made in aid of the jurisdiction of the Family Court. The question that then arises is whether the powers conferred by those sections, wide as they admittedly are, extend to enable the Family Court to make an order which will impose new duties on persons who are not parties to the marriage ("third parties"). The question arises equally under both sections, and does not depend on the particular words of either section.

In answering this question it is first convenient to refer to the authorities upon which Mr. Goldberg particularly relied. In two cases which arose under the Matrimonial Causes Act 1959 (Cth), as amended, this Court held that a court exercising jurisdiction under that Act had power to grant an injunction which affected the position of third parties, provided that the power was exercised in a proceeding properly brought under that Act, and that the injunction was granted in aid of the exercise of the court's jurisdiction in those proceedings: Sanders v. Sanders (1967) 116 CLR 366 ; Antonarkis v. Delly (1976) 51 ALJR 21. In Sanders v. Sanders it was held that the Supreme Court of Norfolk Island, in proceedings between husband and wife, had power first to grant an interlocutory injunction restraining an insurance company from paying to the husband or any person any moneys in respect of any claim arising out of fire damage to the matrimonial home which had belonged to the husband and had been insured in his name, and then a permanent injunction restraining the company from paying the money otherwise than to the wife or her solicitor (1967) 116 CLR, at pp 368-369. Barwick C.J. (1967) 116 CLR, at p 372, speaking of the interlocutory order, said, in a passage cited with approval in Antonarkis v. Delly (1976) 51 ALJR, at p 24, that the power to grant an injunction given by s. 124 of the Act of 1959 "may be exercised to maintain an existing situation until the Court can decide what should be done upon the substantive application for maintenance, even though its exercise involves third parties, and the rights of any such party or parties in relation to one or both of the parties to the matrimonial cause, or in relation to the property of one or both of those parties." Although this passage referred to the "rights" of third parties, it was only in the most general sense of the word that it could be said that the rights of a third party were affected in that case. The Court did not order the insurance company to make any payment; its order went no further than to restrain the insurance company from paying such moneys as it decided to pay under the policy, first to any person, and then to any person other than the wife (1967) 116 CLR, at p 378. In Antonarkis v. Delly the mother and stepbrother of the husband were occupying the matrimonial home, which, according to the wife's evidence, the wife had been forced to leave. The mother claimed to be the equitable owner of a half share in the home and the stepbrother claimed to be a tenant of the mother. An order was made requiring the mother and the stepbrother to vacate the matrimonial home and requiring the mother to withdraw a caveat lodged by her upon the title of the premises. Before the appeal to this Court was heard the mother had died, and the appeal had abated so far as the order requiring her to vacate the home was concerned. It was therefore unnecessary to consider whether that order could be supported. In relation to the order directing removal of the caveat, this Court said (1976) 51 ALJR, at p 24:

"Although Joske J. in fact concluded that the mother had no interest in the subject premises, the order requiring the removal of the caveat did not determine that question. It went no further than was necessary to make effectual the substantive order for a settlement under s. 86, and did not in any way affect any interest which the mother might have had in the subject premises - such an interest, if it existed, remains enforceable."

As to the position of the stepbrother, this Court said (1976) 51 ALJR, at p 24:

"No doubt, as a general rule, the question whether a stranger to a marriage has a leasehold interest in property of which a party to the marriage is the legal owner would not appropriately be determined under s. 124. However, the lease granted by the mother to" (the stepbrother) "was plainly a device to enable him to defeat the attempt which the wife was making to obtain vacant possession of the matrimonial home. Moreover, even if the version of the facts put forward by the mother but rejected by Joske J. were correct... the mother did not have a sufficient interest in the property to enable her to grant a lease which would be valid against the legal owner, the husband."

It is apparent that neither of these decisions provides authority for the view that any right or interest of a third party may be adversely affected by an order made in the exercise of matrimonial jurisdiction, although Antonarkis v. Delly suggests that a court in the exercise of that jurisdiction may treat as null a pretended claim of right made by a third party in collusion with one spouse for the purpose of defeating matrimonial proceedings brought by the other spouse.

The question arose again in Reg. v. Dovey; Ex parte Ross (1979) 141 CLR 526 . In that case the matrimonial home was owned by a company which was effectively controlled by the husband. The Court granted an injunction restraining the husband from exercising his voting rights as a shareholder and/or as a director of the company in favour of any proposed resolution whereby the matrimonial home might be sold or encumbered. This Court held that the order made was within jurisdiction. I said (1979) 141 CLR, at p 533:

"It was said that there is no jurisdiction in the Family Court to restrain a third party (even a family company) from dealing with its own property, and no jurisdiction to achieve that object by restraining a husband, in his capacity as a director or shareholder, from exercising his voting power as such in a particular way. However, it is not right to say that the order sought by the wife and made by the learned judge in the present case prevents the company from dealing with its own property. The order is not directed to the company and does not bind it. It is true that the practical effect of the injunction will be that there will be no sale, but that will be because the husband, who controls the company, is prevented from exercising his control in such a way as to bring about a sale, and not because the company is forbidden to do anything which those who control it have resolved to do. Even if the injunction did indirectly affect the rights of the company, that would not mean that it was beyond power: see Sanders v. Sanders (1967) 116 CLR 367 ... and Antonarkis v. Delly (1976) 51 ALJR 21. .. which, although decisions on the Matrimonial Causes Act 1959 (Cth.), provide a guide to the meaning of the present Act."

The concluding sentence of this passage was unnecessary for the purposes of the decision of that case, since it does not appear that the rights of the company were in any way affected by the order made against the husband. However, the use of the word "rights", which is taken from the two earlier cases, was not strictly accurate.

Finally reference may be made to Reg. v. Ross Jones; Ex parte Beaumont (1979) 141 CLR 504 . In that case a wife made application to the Family Court for orders for the appointment of a receiver of a partnership between the husband and the wife and the taking of partnership accounts. The Family Court, by consent, formally held that it had no jurisdiction to hear the application and the wife sought mandamus. This Court refused mandamus on discretionary grounds but all the judgments discussed the jurisdiction of the Family Court to make orders of the kind sought. It is unnecessary for present purposes fully to consider the various expressions of opinion in relation to that question, but it appears from the judgments that the majority of the Court considered that the Family Court, in making orders with respect to the interests of the parties to a marriage in partnership property could not affect the interests of third parties. I said (1979) 141 CLR, at p 512:

"... it seems to me that the court, in making an order under s. 79, could affect the beneficial interests of the partners in a particular item of partnership property, provided that the interests of creditors were not affected."

Later I said (29):

"I agree with the view of Jacobs J. that the Family Court cannot dissolve a partnership with the consequences attendant upon such a dissolution in the way in which the Supreme Court of a State can do so; although it could appoint a receiver of that property of the parties to a marriage which they, and they alone, hold as partners, it cannot appoint a receiver of the assets of a partnership as such; although it could order accounts of the property of the parties to a marriage with particular reference to an account of their property as partners, it cannot order partnership accounts as such."

Stephen J. (1979) 141 CLR, at p 513 referred to the application for orders for the appointment of a receiver of the partnership, the delivery of partnership books of account and assets and the preparation of partnership accounts, and said:

"If these prayers for relief mean what they say, they ask the Family Court to exercise a jurisdiction which it does not possess; my brother Aickin has explained that want of jurisdiction."

Jacobs J. said (1979) 141 CLR, at p 517:

"The Family Court cannot appoint a receiver of the assets of a partnership as such. However, in this case it could appoint a receiver of that property of the parties to a marriage which they, and they alone, hold as partners. Likewise the Family Court cannot order partnership accounts as such, but it can order accounts of the property of the parties to the marriage with particular reference to an account of their property as partners. So also it could order that books of account and assets of the parties to a marriage be handed over to a named person so that he may act as a receiver. Whether it would see fit to do so is a different question, particularly as such a receiver would be in a quite different position to a receiver appointed by a court to wind up the affairs of a partnership. He would have no right to determine claims against the partnership or anything of that kind."

Aickin J. said (1979) 141 CLR, at p 523:

"In so far as the Family Court may have power to appoint a receiver as part of the exercise of its powers under ss. 78 and 79, its orders can only effect the interest of a husband or wife in the partnership and will not extend to orders with respect to partnership assets properly so called."

His Honour later said (1979) 141 CLR, at p 525:

"The Family Court has been asked to appoint a receiver of the partnership (not of the interests of the partners therein) and to deal with the partnership property as such. That, in my opinion, it has no jurisdiction to do."

The authorities to which I have referred establish that in some circumstances the Family Court has power to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party. They do not establish that any such order may be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform. The general words of ss. 80 and 114 must be understood in the context of the Act, which confers jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words. It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties. There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform. It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on the position of third parties, but it is quite another to order third parties to do what they are not legally bound to do. If the sections had been intended to prejudice the interests of third parties in this way, it would have been necessary to consider their constitutional validity.

The position is, I think, different if the alleged rights, powers or privileges of the third party are only a sham and have been brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act. Sham transactions may always be disregarded. Similarly, if a company is completely controlled by one party to a marriage, so that in reality an order against the company is an order against the party, the fact that in form the order appears to affect the rights of the company may not necessarily invalidate it.

Except in the case of shams, and companies that are mere puppets of a party to the marriage, the Family Court must take the property of a party to the marriage as it finds it. The Family Court cannot ignore the interests of third parties in the property, nor the existence of conditions or convenants that limit the rights of the party who owns it. To take two obvious examples, the Family Court could not compel a husband to asign to his wife a lease without obtaining the necessary consent of the lessor, and could not order the transfer to a wife of land owned by a husband free of mortgage, when in fact the land was mortgaged to a third party. Thus, in the present case, the Court must deal with the husband's shares in Ascot Investments as they in fact are, that is, as shares in a company whose memorandum and articles contain a restriction on transfer.

In the present case the provisions of cl. 4 (a) of the memorandum of association and art. 143 (a) of the articles were of a common enough kind, and there is no evidence that they were adopted as a sham or device. (Article 11, upon which some reliance was also placed, does not appear to add much to the strength of the directors' position.) They give to the directors the discretionary power whose nature I have described. If the directors refused to register a transfer, and it were proved that they had failed to act in good faith in what they considered to be the interests of the company, there would be a remedy in the ordinary courts, but, subject to a possible qualification which I shall state, the Family Court has no jurisdiction or power to direct them as to the manner in which their discretion should be exercised. Of course, in the present case the directors have never been asked to exercise their discretion, because the transfers were never submitted to them for registration, so that on any view the proceedings, so far as they concerned the orders sought against the company and the directors, were premature.

The position might have been different if it had been proved that the directors had refused to register a transfer for the sole reason that the husband had asked them not to do so. I would leave open the question whether in such a case the wife would have a remedy in the Family Court, because it seems wise in this difficult area to avoid unnecessary dicta , and to allow the courts to explore the outer limits of the powers of the Family Court step by step as cases calling for a decision arise.

In the present case, since the directors did not refuse a transfer the question whether they acted at the husband's bidding obviously does not arise. But it seems to me, with all respect, that the finding that the husband exercises effective control over the company is not supported by any very cogent evidence. For all that appears, the company was formed by the husband for legitimate family purposes, the interests of the children are real interests and the powers of the directors are real powers. The husband holds only 7,000 of 21,000 issued shares, and his shares carry no special voting rights. It is true that Miss McGregor, who holds 8,000 shares as trustee, may formerly have acted at the husband's direction, but she has not spoken to him for over a year, and wishes to be replaced as trustee, so that it cannot be assumed that she would now exercise her voting power in accordance with his wishes. The husband is one of four directors, and has one of four votes at a meeting of the board. It is possible that he still holds the position of managing director (the evidence is not clear on this point) but it has not been proved that the board has exercised the power given to it by art. 107 to confer on him as managing director the power to decline to register any transfer of shares. It has not been proved that the other directors would fail to exercise their discretion properly if the husband asked them to decline to register a transfer.

The orders made against Ascot Investments, and against the directors, imposed on them a duty which they did not owe under the general law, and which was inconsistent with the memorandum and articles of association which bound the husband as a shareholder in that company. They gave to the wife rights, not merely against the husband, but against third parties who were not proved to have been parties to a sham or device. The orders in my opinion went beyond the powers of the Family Court.

To say this is not to cast any doubt on the power of the Family Court to make orders against the husband himself. The order that the husband do everything necessary to register the transfer of the shares was valid provided that it is understood, as it must be understood, as requiring the husband only to do everything within his power to achieve that result; he cannot be expected to perform the impossible. If it is proved that in truth he has it within his power to procure the registration of the transfer, and he does not do so, he will be in breach of the order.

The provisions of s. 92 (3) of the Act, upon which Mr. Goldberg placed some reliance, do not advance the argument put on behalf of the wife. By s. 92 (1) it is provided that in proceedings other than proceedings for principal relief, a person may apply for leave to intervene in the proceedings and the court may make an order entitling that person to intervene. Section 92 (3) provides as follows:

"Where a person intervenes in any proceedings by leave of the court he shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party."

It is obvious that this sub-section msut be read down; it cannot mean that any intervener, whatever his her or its situation, is to have all the rights and liabilities of a party to a marriage. For example, if the Registrar-General were to intervene in proceedings in the Family Court (as he did in In the Marriage of Harrison (1978) 18 ALR 689 ; 4 Fam LR 18; (1978) FLC 77,088 he would not thereby assume the liabilities of a party to the marriage, such as the liability to maintain the wife. Section 92 (3) enables the court to make an order either in favour of or against an intervener if such order is one that can properly be made as a matter of substantive law; the sub-section removes a possible procedural obstacle, but does not alter substantive rights and duties. It does not give the Family Court power to impose new duties upon, or to annul the rights of, third parties who are interveners. If the court had no power, apart from s. 92 (3), to order Ascot Investments to register the transfers, that sub-section did not confer that power on it.

Notwithstanding my sympathy for the position of the wife, I conclude that the orders made by the Full Court on the cross appeal, except that made against the husband himself, were wrongly made.

I would allow the appeal.