Amble and Amble

[2008] FamCA 521

FAMILY COURT OF AUSTRALIA

AMBLE & AMBLE [2008] FamCA 521

FAMILY LAW – ORDERS – Interpretation

Family Law Act 1975 (Cth)

APPLICANT: Mrs Amble

RESPONDENT: Mr Amble

FILE NUMBER: SYC 8828 of 2007

DATE DELIVERED: 8 May 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 8 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Vindin

SOLICITOR FOR THE APPLICANT: Beilby Poulden Costello

COUNSEL FOR THE RESPONDENT: Mr Colefax

SOLICITOR FOR THE RESPONDENT: JC Walsh & Sons

Orders

1. To the extent that it is necessary, I grant leave to the wife to make an oral application in precisely the same terms as the application filed on 21 December 2007.

2. On or before 4.00 pm on 22 May 2008 the husband pay the wife all moneys owing to her under order 5 made on 10 November 2006.

3. The husband’s application for costs be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Amble & Amble is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8828 of 2007

MRS AMBLE

Applicant

And

MR AMBLE

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application for Final Orders sought by the wife and filed 21 December 2007.  Both parties agree that the wrong form was used, however  no point is taken.  To the extent that it is necessary I grant leave to the applicant wife to make an oral application in precisely the same terms as the application filed on 21 December 2007  (in the correct form), and I waive all the rules which would prevent me dealing with the application today.

2. The respondent filed a response on 12 March 2008 seeking the dismissal of the wife's application and requesting alternate orders. 

Background

1. On 10 November 2006 final orders were made by O'Ryan J in property proceedings between the parties.  Orders 4, 5 and 6 of those orders are relevant to the dispute between the parties being determined by me.  I here incorporate those orders into these reasons. Following the orders being made on 10 November 2006, the husband appealed to the Full Court of the Family Court.  That appeal was determined by orders made on 22 October 2007.  No stay of the orders made 10 November 2006 was sought or granted.  Orders 4 and 6 were not sought to be activated by either party prior to 22 October 2007, the date  the decision of the Full Court was handed down.

2. By letter dated 15 November 2007 the wife's solicitor wrote to the husband's solicitor purporting to exercise her option under order 6 of the orders of 10 November 2006.  By letter dated 3 December 2007 the husband's solicitors wrote to the wife's solicitors to establish a settlement date of 21 December 2007 at which time the husband would satisfy orders 4 and 5 of 10 November 2006. He calculated the amount owing at the settlement date to be $305,479.51.  There is no issue about the figure which was owing to the wife at that date.  Needless to say, the letter of 3 December 2007 ignored the purported election of the wife notified via her letter of 15 November 2007. 

3. On 21 December 2007 the husband's solicitors sent a letter and cheque to the wife's solicitors.  The cheque was for $305,479.51.  It was expressed to be in satisfaction of orders 4 and 5 of 10 November 2006.  The money was returned to the husband's solicitors, and the wife pressed for her selected shares.  The husband says that the present day value of the shares selected by the wife is about $725,919.  He says the value of the shares at 15 November 2007 was $675,351.  He does not have all of the shares selected by the wife.  He has sold some shares.  He was not prevented from doing so by Court order.  There does not appear to be any issue that the shares selected by the wife in her letter of 15 November 2007 had a value at 5 May 2006 of approximately $275,628, as was required by order 6 of 10 November 2006.

4. This is an enforcement application. As such, the Court has a discretion to enforce the order sought to be enforced (see section 105 of the Family Law Act 1975 (Cth)). The dispute centres on a matter of interpretation of the orders made on 10 November 2006. The husband says the wife's right to exercise the option provided in order 6 expired at 4:00 pm on 22 December 2006. The wife says it does not expire until the husband has tendered all moneys due under orders 4 and 5 and she accepts that payment.

Determination of Construction

1. To determine this matter it seems to me the Court has to carry out that exercise armed with all the knowledge of the Full Court decisions and the law relevant to the making of orders in property matters.  For example, the following would be included as stand-out matters to be considered:

   (a) Once a property order has been made, there is no jurisdiction to make a further property order, or to vary a property order other than pursuant to section 79A of the Act;

   (b)The only orders made as part of a final property order which could be varied by the Court are machinery orders.

2. In determining meaning in the orders under consideration, I consider I should approach the matter by firstly looking at the actual words of the order, and see if it is possible to determine a clear meaning.  If there is more than one possible interpretation,  each equally capable of being correct, then I should look to his Honour's judgment to see if I can find any assistance in supporting one interpretation over another.

The Meaning of the Words in the Orders

1. It is my view that at 4:00 pm on 22 December 2006 order 4 expired.  Thereafter order 5 commenced to be operative.  Order 5 incorporates into it the requirement for the husband to pay $275,628, together with interest, on that sum.  That is, the husband's opportunity to pay the wife only the sum of $275,628 expired at 4:00 pm on 22 December 2006.  Thereafter another order commenced to operate, and it was a substantive order.  A test of whether or not it is a substantive rather than a machinery order is "Could the Court vary order 5 as at today's date or any date after 10 November 2006?" I think the answer to that question is clearly no. 

2. It is only machinery orders which can be varied.  Order 5, in my view, is not simply a machinery order.  If I be correct in the above, then in relation to order 6 the wife's ability to elect to take shares also must expire on 22 December 2006.  That is because it is directly connected to order 4 in its initial words.

3. In stating the above I must acknowledge that one interpretation might be that the wife's option does not expire on 22 December 2006 but, rather, at the time the husband tenders the money to the wife as required by order 5 of the orders.  I do not think this interpretation ranks anywhere as highly as the first interpretation identified by me.  Nevertheless, accepting that there are two possible interpretations, I should look to the judgment for assistance.  Firstly, I note the trial judge has not specifically stated what he intended by the order.  Then the following can be seen:

   (a)Identification of the orders sought by each party.  The orders sought by the wife were tendered before me as exhibit H1.  They are referred to in the judgment of the trial judge. The wife specifically sought the husband effect any property adjustment which may be required after division of property in favour of the wife and selection of the specific pieces of property she sought (real estate and the like) by a transfer of shares in public companies as determined in accordance with value by having regard to the Sydney Morning Herald on 3 May 2006.

   The wording in exhibit H1, which was before the trial judge and which  is relevant to this application under consideration, is contained in paragraph 5.  It states as follows:

   That the husband do all things and acts as are necessary to assign to the wife publicly listed shares currently held by him of his choosing, inclusive of those [C Business] shares held by him to the value of $1,740,000, such value to be determined by reference to the value of such shares as published in the Sydney Morning Herald on 3 May 2006.

   (b)On the top of page 62 of the judgment, which I was permitted to read   with the agreement of the parties, the trial judge concludes a list of property which the wife was to receive by a split of 35 per cent to her of the net assets as follows:

   Payment by husband/transfer of shares, $275,628.

   (c)The property of the parties was determined by the trial judge at page 57 of his judgment.  Included in the pool was the following:

   Shares in other corporations (H), $6,477,900.

   Paragraph 344 of the judgment clearly shows that the pool of shares was agreed and the trial judge did not have a list of specific shares in the husband's portfolio.  It was therefore not possible for the trial judge to name specific shares and the number of same to be transferred to the wife to make up the appropriate adjustment.

4. I note at this stage exhibit H2 which is one page of the transcript of the proceedings before the trial judge.  In fact, it was the last event in the case.  It shows that during submissions the trial judge asked the husband's counsel:

   On the opposite side, Mr Lethbridge, if I found that the wife had an entitlement of a value greater than the two items of real estate, [H property] and [P property], and assets are sold, she is seeking a transfer of some shares?

   MR LETHBRIDGE:  Yes.  We are not troubled by the specific parcel she seeks.

   HIS HONOUR:  Okay.  But you would be content that it was satisfied by a transfer of shares rather than your client have to sell and pay cash?

   MR LETHBRIDGE:  Yes.  On the basis as my learned friend's order reads, my client would determine it.

   Now, clearly, the order referred to there can in context only be identical to exhibit H1 as tendered in these proceedings.

5. No appeal point was taken on the order made by his Honour in relation to the shares and currently under consideration by me.  It is my conclusion, having regard to all those matters, that on balance the interpretation which stands out as the most probable is that contended for by the husband.

Further Matters

The Discretion

1. As mentioned earlier, enforcement of Court orders in this Court is a discretionary matter.  If I be wrong about the interpretation of the order as determined by me so far in these reasons then I would not exercise my discretion to grant the orders sought by the wife.  It seems to me to potentially give rise to an injustice.  The wife had asked for shares to be transferred to her in her minute of order as sought in the trial (see exhibit H1).  That order gave the husband the option to choose the shares to be transferred to the wife.  The exchange between counsel for the husband and the trial judge as set out at exhibit X2 shows a point of consensus between the parties. They were effectively asking for a consent order for there to be an election on the husband's part, not the wife's, to pay the wife cash, or in lieu thereof, to pay for any adjustment which may prove necessary by selection and transfer of shares to the wife to the value of the adjustment required. 

2. The trial judge gave no reason as to why he did not frame the order in the manner consented to.  The fact that there was no appeal on this point does not prevent me taking that matter into account.  There is no evidence to suggest that prior to the Full Court judgment in October 2007 either party had raised with the other their interpretation of the orders 4, 5 and 6, and those interpretations as pressed in my Court today.  Thus, they did not apparently understand that they had any dispute at the time the appeal was heard and determined.

3. The shares now selected by the wife had at the time of the hearing before Justice O’Ryan a value of $275,628 in a pool of $6.4 million worth of shares.  I have not been told, but it is reasonable to assume, there were a range of shares across many public companies.  The wife now chooses from that list.  She has the opportunity to select the shares which have done the best in terms of capital growth since May 2006.  I am not told what the value of the entire portfolio is today had it remained intact.  I assume in favour of the wife she has been very selective and prudent in her choice of shares which now have a value of $725,919.  I have no idea what value the other assets retained by each party under the orders of the 10 November 2006 might now be . 

4. The wife's counsel in the hearing before me conceded that the wife's real estate which she received in the orders of 10 November 2006 could be now worth in the order of $10 million.  At the time of the order it was worth a little over $8 million.  In short, it is not possible for me to see that granting the orders sought by the wife would continue the just and equitable conclusion/result considered by the trial judge when he made the orders on 10 November 2006.  It seems to me that the possibility of maintaining the just and equitable result is more likely to be achieved by making the orders sought by the husband. 

5. In reaching this conclusion I have not dealt with the issue of lachies which  has been raised by the husband in relation to the late election by the wife, to take shares as opposed to the cash payment but I do not, in light of the decision I have reached thus far, consider it necessary to consider those matters further.  In any event, it appears to me that consideration of that issue, on balance, would favour again an interpretation of the orders and a making of an order as sought by the husband as opposed to the wife. 

What Orders Should be Made

1. The husband seeks that I cap the interest payable under order 5 of 10 November 2006 at the sum payable on 21 December 2006.  He says at that time the husband tendered the sum required to the wife, and the wife rejected it.  The fact that the wife rejected the funds means, of course, that the husband has had the use of them to invest and/or use in any way he chooses since that time and the wife has not.  In the circumstances I do not see why the husband should not pay all of the interest to the date of the payment.  I propose to allow the husband 14 days to make the payment.  If he fails to make the payment then the wife will need to fall back on her normal remedies of enforcement.

2. At the conclusion of the judgment I have just delivered in this matter, an application for costs was made by the husband.  A number of grounds are relied on, the most meritorious ground being the ground under paragraph (e) of s.117(2A) of the Act, that being whether any party of the proceedings has been wholly unsuccessful in the proceedings.  In this case it is fair to say that the wife has been wholly unsuccessful.  This is a matter where each of the parties has very substantial assets and it is not a matter where the financial circumstances of each party would impinge on me either making or refusing to make a costs order.  This was not, as I saw it, a straightforward case.  It was, for me, a difficult case to decide.  The arguments provided by counsel for the wife were cogent and thought-provoking, and it could not be said, in my view, that the application of the wife was an application without merit.  That being the case, it seems to me that the general provision of the Act that each party should bear their own costs should apply, and I would accordingly dismiss the husband's application for costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  2 June 2008