ALMER & STIERZNOW-ALMER

[2012] FamCA 930

FAMILY COURT OF AUSTRALIA

ALMER & STIERZNOW-ALMER [2012] FamCA 930

FAMILY LAW – PROPERTY - Enforcement of orders – where there was an issue as to the ownership of a repossessed vehicle – where the orders were silent as to who was required to pay the debt associated with the vehicle –  where the husband sought orders that the wife pay the arrears and damages associated with the repossessed vehicle – where the court was satisfied that the order was directed to the liquidator to address the debt associated with the vehicle upon liquidation of the parties’ company – where the husband’s application was dismissed – where the wife sought enforcement of orders in relation to liquidation of the parties’ company – where the final orders were varied to provide for the wife to control the appointment of the liquidator in the event of the parties’ failure to agree.

Family Law Act 1975 (Cth)

APPLICANT: Mr Almer

RESPONDENT: Ms Stierznow-Almer

FILE NUMBER: PAC 777 of 2009

DATE DELIVERED: 13 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 13 August 2012

REPRESENTATION

FOR THE APPLICANT: Mr Almer in person

FOR THE RESPONDENT: Ms Stierznow-Almer in person

Orders

1. That the Application in a Case filed by the applicant, Mr Almer on 26 September 2011 is dismissed.

2. Order 2.1 of the consent orders dated 11 March 2011 is varied as follows:

   a.within seven days the parties shall use their best endeavours to agree upon the person who is to be appointed to liquidate B Pty Ltd;

   b.agreement pursuant to the above order must be in writing and signed by both parties;

   c.in the event the parties have been unable to agree upon the appointment of the liquidator within seven (7) days, Ms Stierznow-Almer (the respondent) is authorised to appoint a liquidator without further reference to the applicant.

3. All outstanding applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Almer & Stierznow-Almer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 777 of 2009

Mr Almer

Applicant

And

Ms Stierznow-Almer

Respondent

REASONS FOR JUDGMENT

1. These reasons are delivered orally.

2. Before the Court is two applications in the nature of enforcement of final property orders that were made by consent on 11 March 2011.  A copy of those orders is attached to the applicant’s affidavit filed on 26 September 2011 in support of his application in a case of the same day.   

3. In broad terms, the application raises two issues. 

4. Firstly, whether the respondent wife should pay arrears in relation to a loan raised to buy a motor vehicle.  The motor vehicle has been repossessed.

5. Secondly, whether the respondent wife should pay penalties and the like in relation to the motor vehicle loan.  It being the applicant husband’s point that an order which restrained him from dealing with that car was made on the basis of her undertaking as to damages, proffered on 30 May 2009. 

6. By her amended response, filed on 23 July 2012, the respondent seeks that the application be dismissed.  By way of enforcement of Order 2.1, and pursuant to Order 2.18 of the 11 March 2011 orders, the respondent wife seeks that Mr C is appointed as liquidator for the parties’ company, B Pty Limited.  Order 2.1 required the parties to bring about that company’s liquidation.  In circumstances where they have been unable to agree on the identity of the liquidator, the respondent wife seeks an order for the appointment of Mr C. 

7. Self-evidently, the primary order for liquidation was made about 17 months ago.  Exhibit “D” and attachments to the parties’ affidavits shows that this issue has been contentious; with it being apparent this morning there is no agreement in sight.

The applicant husband’s Application in a Case

1. The first question is whether the motor vehicle was owned by the parties or B Pty Ltd.  There is no doubt that when the loan instalments were paid by the company, it was in the possession of the respondent and repossessed by the finance company.  Repossession occurred because the company failed to meet instalments in relation to which $5,082.00 was outstanding as at 29 August 2009.  By Order 3 of the orders dated 13 May 2009, it was ordered that the applicant husband, in addition to his capacity as a director or shareholder of the company, pay the instalments in relation to the motor vehicle.

2. It is common ground that neither in the applicant husband’s personal capacity nor through the company were the loan repayments made.  I infer that as nothing has been paid since the car was repossessed the balance outstanding is higher than the $5,082.00 referred to. 

3. It is the respondent wife’s contention that because the motor vehicle was owned and paid for by the company, the debt should be addressed on the companies’ liquidation and not by her.  In circumstances where there is no dispute that the company owned the motor vehicle and it was the company that entered into the contact with the finance company (albeit the parties would seem to have provided some form of guarantee), it is for the company, not the applicant husband in his personal capacity, to seek damages, if there are any, from the respondent wife.

4. If I am wrong, there is no evidence presented by the applicant husband which would enable the Court to conclude that the respondent wife should be liable in damages for the consequences of the injunction against disposal of the car.  The evidence suggests there were a multiplicity of factors, some of which involve the applicant husband, which resulted in the motor vehicle’s repossession. 

5. The next issue relates to payment of the amount due to the lender.  This requires that the Court considers Order 2.12. 

6. Order 2.12 of the 11 March 2011 consent orders, at a time when both parties were represented, provides:

   That all arrears of payments otherwise payable in respect of the motor vehicle referred to in the Orders of the same day be discharged.

Conclusion

1. Plainly, the orders require payment of the motor vehicle debt.  The question to be answered is by whom.  Because the order is silent about who is to pay this amount, this issue must be determined.  In my view, the obvious inference is that the parties would cause their company to discharge this debt, presumably as part of the liquidation process, provided for in Order 2.1 made 11 March 2011.  It will be observed that provision is made in those orders for payment of funds held in a controlled moneys account for specific purposes which notably do not include the motor vehicle arrears.

2. On balance, I am satisfied that Order 2.12 is, in effect, an order directed to the liquidator that on liquidation the motor vehicle debt be addressed.  It follows that the husband’s application in a case will be dismissed. 

The respondent wife’s Amended Response to the Application in a Case 

1. On a plain reading of the 11 March 2011 orders, it is clear that the substantive order in relation to the company is its liquidation.  There follows a series of machinery orders which relate to the appointment of the liquidator and how the parties are to decide who that liquidator might be.

2. There is correspondence passing between the parties for well over a year which shows agreement on that topic has remained elusive.  Quite properly, the applicant husband says cost is an issue and it would be foolish to engage a liquidator who is likely to charge more than a reasonable fee.  He presents as evidence his estimate that the liquidation should cost no more than about $6,000.00, which information he provided to the respondent wife’s solicitors in early 2011.

3. However, as was pointed out by the respondent wife, this estimate is under the hand of a liquidator.  In addition, the estimate is predicated upon a voluntary liquidation that would proceed on the basis that the directors would cooperatively sign a statement that the company has no creditors or debts.  Yet, the applicant husband, in his email (Exhibit “D”), identifies the motor vehicle debt as well as a debt to the ATO.  He puts forward a proposition about settlement of the debts, and that the parties then have the company voluntarily liquidated.  He correctly points out that in relation to their future business affairs, it is advantageous if the liquidation is voluntary rather than court ordered. 

4. However, the point that applicant husband overlooks is that he accuses the respondent wife (which she denies) of embezzlement from the company.  For her part, the respondent wife says there are issues in relation to the company’s failure to provide taxation returns, and how those taxation returns might ultimately be presented.  She too alleges that prior to the May 2011 hearing, the applicant husband diverted company assets to associated entities without proper consideration.  The respondent wife’s allegations are denied by the applicant husband.

5. If these allegations are maintained it is obvious that this will not be an easy liquidation.  It follows that the $6,000.00 estimate is of no relevance to resolution of these proceedings.  There is no doubt in my mind that a cooperative approach to the liquidation of the company would see the most cost effective liquidation.  However, unless there is a meeting of minds about how the liquidation should be approached within in the next seven days it is clear that there will be no agreement and the process of liquidation will be fraught.

6. How then should the primary order for the company’s liquidation be implemented? Mr C has provided his consent to act as liquidator. He does not provide a fee estimate and, to the extent that the Family Law Rules 2004 would suggest such a requirement should be fulfilled, those rules are dispensed with. The point being, at this stage, an estimate of fees by a liquidator would be nothing more than an uninformed stab in the dark.

Conclusion 

1. In circumstances where there is no objection by the applicant husband to Mr C per se the result is to amend the order so as to afford the parties one final opportunity to agree on the liquidator within seven days.  If they are unable to agree, then the amendment will provide that, thereafter, the respondent wife will have control of the appointment of the liquidator. In this regard it is clear that she is more focussed on implementation of the liquidation and compliance with the primary order is more probable if responsibility rests with her.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 13 August 2012.

Associate:

Date:              12 November 2012