Abbe and Haines
[2010] FMCAfam 147
•15 February 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABBE & HAINES | [2010] FMCAfam 147 |
| FAMILY LAW – Property – enforcement of property orders – costs. |
| Family Law Act 1975 (Cth) s.117(2A) |
| Applicant: | MS ABBE |
| Respondent: | MR HAINES |
| File Number: | SYC 5372 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 February 2010 |
| Date of Last Submission: | 15 February 2010 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2010 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Karras |
| Solicitors for the Applicant: | Karras Partners Lawyers |
| Respondent: | Appeared in person |
| Solicitors for the Respondent: | Staunton & Thompson |
ORDERS
That by way of implementation of the adjustive property Order made between the parties on 16 August 2006 (“the Order”); the husband transfer to the Wife the following within three days:-
1.1All shares held by him personally in Telstra Limited.
1.2The sum of $4,000.00 to be withdrawn by him from his personal Westpac account.
1.3His Porsche Boxster motor vehicle registration [omitted].
1.4The legal and beneficial ownership in the Husband’s loan account in [F] (NSW) Pty Limited ACN [1] (being an amount of approximately $194,771.00) (“[F]”).
1.5A payment of $23,000.00 which the Husband shall today seek a release of from his allocated member benefit with the Haines Superannuation Fund.
The Wife shall do all acts and things to realise the Telstra shares, motor vehicle and loan account referred to in the preceding Order and shall thereafter retain such proceeds and credit them to the amount outstanding to the Wife pursuant to the Order and thereafter inform the Husband of the amounts so realised and credited.
The Wife is forthwith appointed trustee to hold and sell the Husband’s shareholding in [F] such sale not to be undertaken by the Wife before 15 April 2010.
Upon the Wife undertaking any sale of the shares referred to in Order 3 hereof, she shall credit the sale proceeds to the amount outstanding to her pursuant to the Order and thereafter inform the Husband of the amount so realised and credited.
In the event that the Husband provides to the Wife full satisfaction of the amount outstanding to her pursuant to the Order on or before
15 April 2010, or the Husband otherwise secures the amount outstanding to the satisfaction of the Wife in writing, the Wife’s appointment as trustee shall be discharged.
The Respondent Husband is to pay the Applicant Wife’s costs fixed in the sum of $3,700.00.
I allow four (4) months to pay.
IT IS NOTED that publication of this judgment under the pseudonym Abbe & Haines is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 5372 of 2009
| MS ABBE |
Applicant
And
| MR HAINES |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the former wife to enforce the payment of sums of money due to her arising from orders made by consent in the Family Court of Australia at Sydney on 16th August 2006.
The specific order that she seeks to enforce is Order 8.1, which states that the Husband shall:
pay to the wife, within four years of the date of making these Orders, the sum of $1,140,000 together with interest instalments on a monthly basis calculated at the rate of 5.4% per annum, the first such instalment to be on the settlement date, provided that in the event that any instalment remains unpaid for a period of 30 days or there is a share issue, equity restructure or assignment of any share in [R], then the whole of the amount payable to the wife pursuant to this Order shall forthwith fall due for payment by the husband;
The Applicant deposed in her affidavit sworn on 5th September 2009 she was due under the Order to receive monthly interest payments of $5,130.00 but had not received any payments since April 2009. Thus, at the date of swearing her affidavit, the interest payments were four months in arrears, amounting to $20,520.00. As it follows that the capital sum now falls due, because at least one interest payment is more than 30 days in arrears, the Applicant now seeks to enforce the payment of the capital sum together with unpaid interest.
She has issued an application in a case and an enforcement summons. The Respondent has not filed any affidavit or other document in reply, although his solicitor, Mr Tocchini, filed a Notice of Address for Service on 14th December 2009.
On 14th October 2009 Baumann FM made orders by consent until; further order, restraining the Respondent from causing a company called [W] Pty Ltd from encumbering, assigning, transferring, selling or further alienating its interest in a property at Property M New South Wales without giving the Applicant 21 days notice of his intention to do so.
On 9th December 2009 I listed both the application and the summons for hearing and ordered the Respondent to file a Notice of Address for Service, which he did. I also ordered the parties to file and serve any further affidavit material by 1st February 2010. No further material was filed by either party.
Evidence
The Respondent attended Court on the day of the hearing. He was not accompanied by his solicitor, although the Court was told he was elsewhere in the building. He conceded that he had not paid the capital sum of $1,140,000 and said that he did not have the funds to do so. He said that he had an interest in a company called [R] Pty Limited, in which he had an equity of about $1,000,000. [R] continued to trade and took on a joint venture partner, [E] Limited, owned by the [P] and [K] families. [R] took a 50% interest in a business called [M]. It transferred machinery to [M] with a net value of $1.8 million. They had bought more machinery for $600,000.00, which sum was borrowed from the Westpac Bank
[R] had a 50% share in a company called [F] (NSW) Pty Limited, which supplied fencing to the building industry. The Respondent said that his business partner had offered him the sum of $520,000.00 for his shares in [F] and also owed him $60,000.00. The price of $520,000.00 which he was offered for his shares was greatly undervalued and he felt that an attempt was being made to take advantage of him because of his financial position. Since the year 2006, all the cash earned had gone into the business, and the stock of [equipment omitted] had gone from 24 kilometres to 80 kilometres over that time. He also has a loan of $194,000.00 odd that stood to his credit in the business.
The Respondent described his negotiations to buy the business back and said that he had an option to do so which had to be exercised by 16th March 2010. He had given notice that he wished to exercise that option and hoped to have arrangements in place to obtain financial backing to do so by the beginning of March. His current partner will sell her current property to assist him.
The Respondent said that his other assets amounted to a Porsche Boxster motor car which he was attempting to sell privately, some money in superannuation fund, two personal bank accounts, and real estate in [L], [N] and [D]. He also had 3,500 Telstra shares. He had placed a value of $25,000.00 on the car and had refused an offer of $19,000.00.
Mr Karras, for the Applicant, sought orders that the Respondent transfer certain funds and assets to her in order to secure the payment of the capital sum and interest. He also sought an order that the Respondent pay the Applicant’s costs in the sum of $3,500.00.
The Respondent submitted that the orders sought would have the effect of preventing him from securing the finance that he needed for the transaction and then would not be in a position to make any payment to the Applicant. He also said that he had no funds to meet any costs order.
Conclusions
The Respondent did not dispute that the capital sum and interest payments were outstanding. He put forward no proposal to pay the amounts and merely asserted that any orders to enforce payment would frustrate his attempts to raise funds buy back the business.
I am satisfied that the Respondent has assets worth nearly $49,000.00 which could be made immediately available to meet the amounts owing. I am not satisfied that orders to enforce payment of the amounts owing would frustrate the business negotiations in which the Respondent has confidence.
Accordingly, I have made orders that amounts of cash, some shares and the Porsche Boxster should be transferred to the Applicant for her to realise to provide cash to meet some of the outstanding capital sum and interest.
The Applicant is to be appointed trustee to hold and sell the Respondent’s shareholding in [F] (NSW) Pty Limited but, in order to give the Respondent time to complete his business negotiations, this should not take place before 15th April 2010.
In my view, this is a clear case for a costs order in favour of the Applicant. The proceedings were necessitated by the failure of the Respondent to comply with a previous Court order. The Respondent has been wholly unsuccessful in these proceedings.[1]
[1] Family Law Act 1975 (Cth) s.117(2A)
I am satisfied that the sum of $3,700.00 is an appropriate figure. The Respondent will have four months to pay the costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 19 February 2010
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