ARTHURMAN & ARTHURMAN

[2018] FamCA 551

FAMILY COURT OF AUSTRALIA

ARTHURMAN & ARTHURMAN [2018] FamCA 551

FAMILY LAW – PROPERTY – Summary dismissal – Husband seeks that wife’s initiating application for the implementation of orders be summarily dismissed – Where husband claims that the wife’s application is doomed to fail – Where wife seeks various orders that implement final property orders made in 2008 between the parties – Where the parties did not execute the 2008 orders until five years later – Where land tax liabilities have accrued as a result – Where the wife’s application is not wholly doomed to fail – Application dismissed.

Family Law Rules 2004 r 10.12

Arthurman & Arthurman [2008] FamCA 230

Arthurman & Arthurman [2008] FamCAFC 188.

Arthurman & Arthurman [2013] FamCAFC 70
Pelerman & Pelerman (2000) FLC 93-037
Bigg v Suzi (1998) FLC 92-799
Nicholson & Nicholson (1974) 2 NSWLR 59

APPLICANT: Mr Arthurman

RESPONDENT: Ms Arthurman

FILE NUMBER: SYC 399 of 2017

DATE DELIVERED: 25 July 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Sydney via video link to Cairns

JUDGMENT OF: Tree J

HEARING DATE: 7 December 2017; last written submissions filed 16 March 2018.

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Longworth

SOLICITORS FOR THE APPLICANT: Dunn Legal

THE RESPONDENT: In person

Orders

1. The husband’s Application in a Case filed 16 March 2017 is dismissed.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC399/2017

Mr Arthurman

Applicant

And

Ms Arthurman

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Application in a Case filed 16 March 2017, Mr Arthurman (“the husband”) seeks an order that an Amended Initiating Application filed by Ms Arthurman (“the wife”) on 14 March 2017, to which he is the respondent, be summarily dismissed.

2. On 7 December 2017 I heard that Application in a Case, but made a timetable for the filing of further written submissions, at the conclusion of which my decision would stand reserved. This is that decision and the reasons for it.

Background

1. The husband is presently 71 years of age, and the wife 63. They had a ten year relationship commencing in 1991, and finally separated on 31 December 2001. There was one child of the marriage, a son Mr J, presently 23 years of age.

2. In December 2007 and March 2008, the parties conducted a trial in relation to property division before Fowler J. During the course of the trial, the issues in dispute requiring his Honour’s resolution markedly narrowed. Indeed as I understand it, none of the matters resolved by his Honour directly impact upon these proceedings.

3. On 18 March 2008, for reasons delivered on that day,[1] Fowler J pronounced final orders (“the 2008 orders”) by reference to several timelines. Firstly, a number of things were to occur within thirty days of the date of those orders, including;         

   a)The wife was to transfer all her right, title and interest in two properties at Suburb M (“the Suburb M properties”) to the husband;

   b)The wife was to transfer all her right, title and interest in any share in H Pty Ltd (“HPL”) to the husband;

   c)The husband and wife were to do all things necessary to forthwith dissolve the H Pty Ltd Trust (“the HPL Trust”) under the terms of which the husband and wife jointly held the Suburb M properties on trust for HPL.

   [1]Arthurman & Arthurman [2008] FamCA 230.

4. Secondly, within a further fifteen days, the husband was to do all things necessary to sell the Suburb M properties (presumably this was intended to mean to do all things necessary to list the properties for sale).

5. Thirdly, within seven days of the completion of the last of the sales of the Suburb M properties, the husband was to pay the wife $911,009. According to his Honour’s reasons, this reflected 38 per cent of the matrimonial property pool.

6. By order 14 of the 2008 orders, Fowler J gave the parties liberty to apply “in relation to the implementation of these orders.”

7. Thereafter two matters of some importance occurred. The first is that the wife appealed the orders of Fowler J; the second was that she also brought proceedings under s 79A. On 2 December 2008 the Full Court determined[2] that the appeal should await the outcome of the s 79A proceedings which, as it transpired, were ultimately discontinued. The appeal was then heard on 7 December 2012, and dismissed on 1 May 2013 for reasons then delivered.[3] 

   [2]Arthurman & Arthurman [2008] FamCAFC 188.

   [3]Arthurman & Arthurman [2013] FamCAFC 70.

8. Perhaps in part because, as I understand it, in the appeal the wife sought that the Suburb M properties be transferred to her, she did not comply with the relevant orders of Fowler J until 2013, after her appeal had been dismissed. For instance, her evidence is that she did not transfer her right, title and interest in the Suburb M properties to the husband until 12 July 2013. Further, the HPL Trust, was on any view, not dissolved until 3 October 2013 at the earliest, and indeed the wife contends that the trust has still not been dissolved. That delay occasioned a problem, namely that the HPL Trust accrued land tax liabilities in relation to the Suburb M properties in the 2010, 2011, 2012, and 2013 land tax years, which together with interest and penalties saw a total liability accumulate in the sum of $32, 514.66.  On 10 January 2017, that sum was garnisheed by the Office of State Revenue (“OSR”) from an account in the wife’s name. As well as seeking to recover that sum from the husband in the current proceedings, she is also apprehensive that there may be other liabilities yet to materialise, such as capital gains tax liabilities, arising from the sale of the properties.

9. Her fundamental complaint is that all of this should have been attended to by the husband, or perhaps the parties jointly, in the course of winding up the HPL Trust. Parts of the wife’s material also suggest, perhaps, broader claims are intended to be advanced, for instance in her submissions dated 29 November 2017, the wife asserts that the HPL Trust owed her a debt of approximately $255,000, which later in those submissions, she seems to suggest remains due to her.

10. For his part, the husband contends that the 2008 orders have now been fully performed, and there are no obligations remaining under them. He therefore says that the wife’s attempt to invoke the liberty to apply in relation to implementation of the 2008 orders is futile, or doomed to fail, and hence should be summarily dismissed.

SUMMARY DISMISSAL – RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

1. Family Law Rule 10.12 provides as follows;

   A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that;

   a)The Court has no jurisdiction;

   b)The other party has no legal capacity to apply for the orders sought;

   c)It is frivolous, vexatious or an abuse of process; or

   d)There is no reasonable likelihood of success.

2. In Pelerman & Pelerman [2000] FamCA 881, (2000) FLC 93-037 at [46], the Full Court said in relation to the test for summary dismissal as follows:

   The gravamen of the Appeal is that the trial Judge erred in the exercise of the discretionary power to summarily dismiss the Application.  It is well established that the following principles apply as were recently reviewed and stated in Bigg v Suzi[4]:

   (a)The power for summary dismissal is a discretionary one.

   (b)Relief “is rarely and sparingly provided”.

   (c)The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.

   (d)A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.

   (e)“If there is a serious legal question to be determined, it should ordinarily be determined at a trial.”

   (f)“If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.”

   [4] (1998) FLC 92-799 at 84,974-84,975.

3. In determining an application for summary dismissal, a Court may only have regard to the material relied upon by the respondent to the application for summary dismissal, and further that the onus of persuading the Court that there is no reasonable likelihood of success rests with the applicant for summary dismissal.

FURTHER FACTS

1. By virtue of some matters raised during the course of argument, it is necessary to traverse the facts pertaining to the HPL Trust in a little more detail.

2. The HPL Trust was established by deed of settlement made on 20 April 1994. The settlor was the wife’s brother, the parties were the trustees, and the sole beneficiary of the trust was HPL.

3. The deed contained 21 clauses, the first of which purported to deal with interpretation of the deed, and contains a number of definitions of words and terms, including “the distribution date” and “trust period”. However, notwithstanding those definitions in clause 1, no substantive clause in the balance of the trust deed in fact establishes a trust period, and indeed that term appears only once thereafter in the deed, in clause 2.2, which simply empowers the trustee “during the trust period” to accept additional property.

4. It was this deficiency which caused me to seek submissions as to whether the trust was void as offending the rule against perpetuities, a matter I shall consider shortly.

5. It does not appear contentious that the Suburb M properties comprised two conjoined dwellings on one title of land, which the parties subdivided so that each dwelling was on its own title. During the course of the relationship the parties lived in one of the duplex units, and rented the other out. After separation it appears as though the wife remained in occupation of one of the units, and the husband lived elsewhere.

6. Under the 2008 orders, which contemplated that the wife would transfer her bare legal interest in the Suburb M properties to the husband, together with her interest in the beneficiary, HPL, order 7 nonetheless provided that the wife would have a right to occupy one of the Suburb M properties on condition, and order 1(f) only required her to give vacant possession of the Suburb M properties “on the day immediately prior to the date appointed for completion of the sale of W Street of the Suburb M property.”

7. Somewhat confusingly, paragraph 7(c) provided that pending the date of completion of the sale of the Suburb M properties “the husband and wife shall each hold the Suburb M property on trust for HPL as tenants in common in shares consistent with these orders.” It is a little difficult to reconcile order 7(c) with order 1(e), but upon balance I accept the husband’s argument that the reference to “tenants in common” was intended to effect the severance of the joint tenancy, such that the joint tenancy was immediately severed and the wife was to then transfer her interest as a tenant in common to the husband within 30 days. The reference to “pending the date of completion of the sale of the Suburb M property” in clause 7 appears likely to be a drafting error.

8. The wife’s evidence is that the husband is a commercial lawyer, and during the course of the relationship, had always dealt with the parties’ land tax issues, including any relating to the HPL trust. She further says that on 9 March 2011, a land tax assessment issued to the parties, which included land tax in respect of the Suburb M properties. The husband then negotiated with the OSR, and a reduced assessment issued in 2012, in part, on the basis that the wife claimed a principal place of residence exemption (presumably for number 48A). The wife then raised her concerns that the revised assessment may be incorrect with the husband’s solicitors, who in their response, denied that the husband had made any misrepresentation to the OSR, but indicated that the husband “will now take steps to communicate with the OSR and correct any misunderstanding they made have.”

9. The wife heard nothing further, and after her appeal was dismissed is early 2013, wrote again on 6 May 2013 to the solicitors, noting:

   As Land Tax matters will need to be finalised prior to the settlement of the sale of the [Suburb M] properties I look forward to hearing from you as a matter of urgency.

10. I have already noted the evidence that the wife transferred her right, title and interest in the Suburb M properties to the husband on 12 July 2013. However it is unclear, given that the 2008 orders contemplated that all of the matters to occur within 30 days would occur simultaneously, why the trust was not then dissolved as well. However neither party contends that it was.

11. It is possible, at that time, that the parties simply overlooked their obligations to dissolve the trust, and rather were more focussed upon the terms of the trust deed itself. I say that because on 20 September 2013, the parties jointly executed a “resolution of trustees” which noted:       

    IT IS HEREBY RESOLVED:

    1.In accordance with clause 1.1(d) of the trust deed the distribution date of the [HPL] Trust be determined as the date of the completion of the sale of the trust property.

    2.Upon satisfaction of all legal obligations and upon the payment of the net proceeds of sale of the trust property to [C] Pty Ltd the [HPL] Trust be wound up.

12. Of course this agreement was inconsistent with the 2008 orders, which required the trust to be wound up within 30 days, and the orders did not make that dissolution conditional upon, or coincident with, the sale of the Suburb M properties.

13. The wife asserts that the 20 September 2013 resolution is “ineffective and void,” however I cannot agree with her argument as to that, as none of her contentions speaks to validity.

14. Also on 20 September 2013, Fowler J made further orders by consent, reducing the amount which the husband would have to pay to the wife by $41,000, in light of some outstanding costs orders in his favour against her, and obligations under the 2008 orders for the wife to pay certain monies in relation to the Suburb M property that she occupied. There was then a consent declaration that, upon payment of the reduced sum, the husband’s obligations to pay the wife the sum of money specified in the 2008 orders would be satisfied.

15. It is not in dispute that on 3 October 2013, the sale of the last of the Suburb M properties settled, and also on that day, the net proceeds of the sale were paid to HPL, and the husband posted a personal cheque to the wife for the balance monies due to her under the 2008 orders, as modified by the September 2013 orders.

16. It seems as though the husband likely acted for the vendor in that conveyance. At paragraph 11 of his affidavit filed 14 March 2017, he says that he obtained “clear land tax certificates from the OSR” in relation to the Suburb M properties.

17. Although it is unclear on the evidence how it came about, on 25 February 2014, a further land tax assessment in relation to the Suburb M properties was issued by the OSR in respect of the 2010, 2011, 2012, 2013 and 2014 land tax years. However it was issued to “[H Pty Ltd] ATF [H Pty Ltd Trust]”. It asserted a land tax liability in the sum of $51,419.45. As I understand it, this pertained only to the land tax liabilities for the Suburb M properties. It was apparently sent to the wife’s address, and she forward it to the husband. 

18. As I say, it is unclear why the assessments that issued on 25 February 2014 did so. The husband appears to contend that it was because the wife, after she received the last of her monies under the 2008 judgment “agitated the Office of State Revenue into reopening an assessment for land tax in respect of the [Suburb M] properties.” However the wife implicitly denies this, and annexed to her affidavit a copy of a letter of hers of 26 February 2014 to the husband’s accountant attaching the 25 February 2014 assessment, and noting that “it is clear that the notices of assessment are incorrect and I presume you will take the appropriate steps to have same corrected…”

19. On 22 April 2014 (although the wife says it was unbeknownst to her) the husband objected to the 25 February 2014 assessment on the grounds that H Pty Ltd was the beneficiary of the trust, and not the trustee. That objection was allowed by the OSR by its letter dated 26 June 2014, on the grounds that the parties were the trustees, and in consequence a further assessment issued dated 25 June 2014 addressed to both parties in the sum of $25,660.80 (after allowing the deduction of a sum which the parties were in credit to the OSR). Again this expressly related to the land tax years of 2010, 2011, 2012 and 2013.

20. Although the wife says that, since the 25 February 2014 assessment was received by her, she has “been contacted by LTO from time to time regarding payment”, she says that she was not aware that the 25 June 2014 assessment was against her personally until 11 January 2017. That was when she obtained from the OSR a copy of correspondence between it and the husband, including negotiations by him with the OSR to settle the outstanding claim for the payment of $5,000.

21. On 20 December 2016, the LTO emailed both the husband and the wife, demanding payment of $32,256.62 in land tax arrears. On 23 December 2016, the husband responded to that demand, indicating that he intended to defend any proceedings, and repeating an earlier offer to settle. In that correspondence he gave the current residential address of the wife, and said in part “I have informed you that the current situation arises out of [the wife’s] actions for which she is and must be held responsible.”

22. On 3 January 2017, the OSR responded to the husband, advising that the husband and wife were jointly and severally liable for the debt, and would be pursued for its recovery.

23. On 5 January 2017 the OSR issued a notice to the E bank, identifying the wife as one of its customers, and giving details of a bank account held by her. Relevant parts of that notice state:

    The Chief Commissioner of State Revenue is advised [E Bank] holds money on behalf of [the wife].

24. It might be that the wife is suspicious that the husband was the source of the information in relation to that account. At all events, as I have indicated, on 10 January 2017 the claimed sum was withdrawn from the bank account in the wife’s name with E Bank, and hence the land tax liability was then discharged. The wife says that in fact the beneficial ownership of those funds lay with the parties’ son, Mr J.

THE WIFE’S NEW CLAIM

1. The wife commenced these present proceedings by initiating application filed 23 January 2017. She says that she selected an initiating application as the commencing process on advice, and indeed it would appear as though there was advice to that effect given to her out of the Registrar’s chambers of the Court on 18 January 2017. Whether an Initiating Application or an Application in Case was the correct procedure was not the subject of any debate before me, and in any event, the Court would have power to rectify any recourse to an incorrect form.

2. In due course the wife issued an Amended Initiating Application on 15 March 2017, in which she sought a variety of orders, all prefaced with the following:

   Pursuant to Order (14) of the Orders made by Fowler J on 18 March 2008 in file … I seek to apply in relation to the implementation of Order 1(j) of the said Orders.

   The Orders I seek are intended to provide a mechanism for the implementation of and enforcement of Order 1(j) of the Orders made by Fowler J on 18 March 2008 in file … and pursuant to Section 81 of the Family Law Act to bring finality to the financial relationship between the parties.

1. The eight substantive orders which she seeks are as follows:

   1.Within fourteen (14) days the husband and wife shall appoint [F Accountants]…, Sydney to do all acts and things necessary to dissolve The [H Pty Ltd Trust] (“the Trust”) including but not limited to determining tax obligations consequent upon the sale of the Trust assets being  [1 & 2 W Street, Suburb M] (“the [Suburb M] Trust properties”).

   2.Within fourteen (14) days the husband shall provide to the wife and [F Accountants] copies of all documents, receipts, trust account ledgers, statements etc evidencing the receipt of and payments from and distribution of the Trust’s assets including but not limited to the proceeds of sale of the Suburb M Trust properties.

   3.Within fourteen (14) days of any request, the husband and/or wife shall provide any documents or information requested by [F Accountants].

   4.Within seven (7) days of these Orders the husband shall pay or cause to be paid the sum of $32,514.66 to the Office of State Revenue, Land Tax Office in respect of outstanding land tax assessed to the parties as Trustees of The [H Pty Ltd] Trust in respect of the Suburb M Trust properties and authorise the Office of State Revenue to refund the sum of $32,514.66 to the parties’ son [Mr J Arthurman].

   5.In the event [F Accountants] recommend the parties seek legal advice in relation to the dissolution of the Trust the parties shall instruct the solicitor recommended by [F Accountants].

   6.The husband pay or cause to be paid all tax assessed in respect of the Trust including:

   6.1Income tax, penalty tax, charges, interest or fines arising from assessments for taxation received up to and including the date of assessment;

   6.2Capital gains tax and distribution tax assessed;

   6.3Land tax, penalty tax, charges, interest or fines arising from assessments or stamp duty assessed;

   6.4Any other taxes, interest or fines assessed as payable by the Trustees.

   7.The husband pay or cause to be paid all or any other liabilities, loan accounts etc properly payable in order to dissolve The [H Pty Ltd] Trusts including but not limited to accountancy fees and legal fees.

   8.The husband pay or cause to be paid all legal costs and expenses incurred by the wife and co-Trustee of the Trust in relation to this Application.

2. Conceptually it seems to me as though the wife says three things, and seeks three species of relief:

   ·The HPL Trust has not been dissolved, and therefore still needs to be;

   ·The husband should have been solely responsible for the payment of the land tax debt which she has (accepting she says it was with the parties’ son’s money) discharged, and hence he should reimburse this;

·The husband should be responsible for any other fees, taxes or imposts for which the HPL Trust may incur or be assessed, as owing, and indemnify her against any such sums.

THE PERPETUITIES POINT

1. During the course of oral argument, I raised with the parties the deficiencies in the drafting of the trust deed, and particularly the absence of any substantive clause establishing the term of the trust. Particularly it will be recalled that clause 1 specifically deals with  interpretation of the deed, including the notion of “the distribution date” and “trust period” but thereafter only uses the phrase “trust period” in a trustee’s power to substitute property. However upon reflection, it seems to me as though the definition of “the distribution date” is different in kind to each other definition in clause 1. The other definitions commence with common language such as “shall mean” and “means and includes..” but the phrase “the distribution date” proceeds differently, in that it says;

   (d)The Distribution Date

   Shall be the earlier of the two following dates, that is to say;

   (i)Twenty one years from the death of the last survivor of the issue now living of Her Majesty Queen Elizabeth II, or;

   (ii)Such a date being earlier than the preceding date as the Trustee may determine.

2. It seems to me as though a proper construction of clause 1(d) is not that it defines a term, but rather it substantively created the trust term.  Therefore the concern which I had in relation to the trust potentially offending the rule against perpetuities, does not in fact arise on a proper construction of the deed.

3. However, in case I am wrong as to that, I should advert to the helpful submissions made by the parties in relation to this issue.

4. Firstly, I accept that because the HPL Trust is a fixed, rather than discretionary, trust and because there is only one beneficiary, there is a cogent argument that the interest of HPL is vested.  The concern behind the rule against perpetuities is in relation to the remoteness of vesting of a future interest, and in this respect I accept the submissions made by the husband at paragraphs [2.16] – [2.19] of his submissions dated 31 January 2018.

5. Further, I accept the submissions of both the husband and the wife that in New South Wales, by virtue of s 7 of the Perpetuities Act 1984 (NSW), the so called “wait-and-see” rule would apply if the deed otherwise would breach the rule against perpetuities, such that, whether or not the trust was void would only finally be considered 80 years after its creation, i.e. 19 April 2074.

6. For the sake of completeness I should reiterate that in my view, the husband is correct that order 7(c) of the 2008 orders did not bring into existence a fresh trust, but was intended to sever the joint tenancy of the parties until such time as, pursuant to those orders, the wife transferred her interest in the Suburb M properties to the husband, and the parties dissolved the HPL Trust.

HAS THE HPL TRUST BEEN DISSOLVED?

1. The husband contends that the orders which the wife seeks in relation to the dissolution of the HPL Trust are doomed to fail, as the trust is already dissolved. He says that the trust was dissolved on 3 October 2014 when the last of the HPL Trust properties sales settled, and the net proceeds of sale were distributed to HPL. He further says that this is what the parties agreed in their resolution on 20 September 2013, in that they specifically identified that the distribution date for the purposes of the trust deed would be the date of the completion of the sale of the trust property, and such a determination under clause 1.1(d) brings forward the distribution date from the fall-back position, being twenty one years after the death of the last survivor of the Queen.

2. The wife does not accept that contention, emphasising the second limb of the trustee’s resolution of 20 September 2013, and particularly that it was only “upon satisfaction of all legal obligations… ” that ..“the [HPL] trust be wound up.”

3. In my view it is important to recognise that a trust does not exist in the abstract, but only attaches to property. Upon the trustee ceasing to own the bare legal interest, and upon the legal and beneficial interest both residing in the beneficiary, any trust ceases to exist.  Using that approach, and accepting that a trust must and can only attach to property, one inevitably asks in this instance, of what property are the parties presently the bare legal owners, such that a trustee/beneficiary relationship exists between them and HPL? The answer is that there is no such property, and no one contends there is.  Particularly, I do not understand the wife to advance a case that she is now joint trustee with the husband of the funds that were paid direct to HPL on 3 October 2014. Whilst the trustees may have had powers to convert the Suburb M properties into cash, and to hold that cash on trust for HPL, that is not what they agreed to do on 20 September 2013. Rather what they agreed to do was to distribute the net proceeds of sale to HPL.

4. The wife places great store upon representation by the husband to the OSR post 3 October 2014 that, on one view, assert that the HPL Trust remained in existence.  Such representations, if made, were incorrect; mistaken representations cannot alter the time legal position.

5. Perhaps what the wife may seek to argue (although it is by no means clear) is that, as part of her rights of indemnity and recourse as a trustee, she has some kind of beneficial interest in the former trust property, which is superior to that of HPL, but such an argument is by no means clear. Moreover, that plainly is not the case which she is at least at present, mounting, nor is it foreshadowed.

6. I am therefore satisfied that the wife’s claim for the dissolution of the HPL Trust is doomed to fail, as the trust has already been dissolved on 3 October 2013.

THE CLAIM FOR REIMBURSEMENT OF THE LAND TAX

1. It seems to me that this claim sits independently of any claim for the dissolution of the HPL Trust. Rather what the wife says is that the husband engineered a circumstance which saw her solely discharge a joint obligation, which, she further says, is an obligation which should have been borne solely by the husband in any event.

2. It is useful to summarise how this situation came about as follows:

   ·The parties did not act consistently with the 2008 orders, and particularly, the wife did not transfer her interest in the Suburb M properties to the husband within thirty days of them, but rather waited until 12 July 2013 to do so, and further, the parties did not dissolve the HPL Trust within thirty days of the 2008 orders, but rather waited until 3 October 2013 to do so;

   ·Had the parties complied with the 2008 orders within their contemplated timeframes, then none of the land tax liability could possibly have been sheeted home to the wife, but rather HPL would have been (at least on one view) the legal and beneficial owner of the Suburb M properties, or alternatively the husband would have held those properties on a bare trust for HPL;

   ·It appears as though the parties treated the wife’s s79A applications and appeal as effecting a stay of the 2008 orders, although the terms of any implied stay were apparently never negotiated;

   ·Until the Suburb M properties were sold in 2013, the wife (it seems) continued to occupy, not on the basis of payment of any rent, one of them;

   ·On the other hand, because, firstly, the wife’s entitlement under the 2008 orders was expressed as a cash sum, rather than a percentage of sale proceeds, and secondly, because she was not successful in having any item of real property awarded to her, including the Suburb M properties, the husband has exclusively had the benefit of any capital growth in the properties between 2008 and their sale in 2013;

   ·Because the obligation of the husband to pay the wife only crystallised upon the sale of the last of the Suburb M properties, the wife has received no interest on her entitlements under the 2008 judgment reflective of the delay in payment to her of those sums (although no doubt the husband would say that is her fault, given that she has actively litigated thereafter).

3. It can therefore be seen that, as the 2008 orders have played out on the ground, they have seen the wife solely shoulder liability for land tax assessed on the Suburb M properties for periods when the 2008 orders did not contemplate that would occur. In effect therefore, her entitlement under the orders, as a matter of practical reality, have reduced by that amount. That was plainly not the intent of the 2008 orders, although all of this has come about because the parties did not comply with them.

4. I am not satisfied that such an outcome is incapable of remedy, in this court whether under the liberty to apply ordered in 2008, or in relation to a general, unstated liberty to apply. As to the latter, the wife correctly refers to Nicholson & Nicholson (1974) 2 NSWLR 59 at [52] as authority that liberty to apply exists, even though not expressly reserved “if the orders are necessary to give effect to the order or to work it out to cover unforeseen circumstances”.

5. Certainly I am not persuaded that such an application is foredoomed to fail, or is frivolous and vexatious.

6. The husband says that the wife may have rights enforceable elsewhere, and indeed he may be correct. She may have a right to seek an accounting as between trustees, or a right to enforce an indemnity against HPL. However the existence of alternative remedies – even more advisable remedies – does not destroy the argument that a remedy exists in this Court as well.

WIFE’S CLAIM THAT HUSBAND PAYS ANY FURTHER LIABILITY

1. In my view, notwithstanding the fact that there is apparently no present claim by any other authority against the trustees, it is by no means impossible to conjecture that such a claim may arise in the future. Particularly the wife points to capital gains tax as a likely prospect.

2. In my view this is indistinguishable from the claim which the wife brings in relation to reimbursement for land tax. By virtue of the trust subsisting for more than five years beyond the time that the 2008 orders contemplated, a different set of circumstances came to prevail. Whilst it is true that all of that is of the parties own making, I am not satisfied that, whether pursuant to an express liberty to apply, or a residual unstated liberty to apply, that is irremediable. Certainly I am not persuaded that such a claim is foredoomed to fail.

3. I am mindful that the husband contends that under the 2008 orders, he was ordered to indemnify the wife in relation to all liabilities including rates, taxes and outgoings in relation to another property, but not in relation to the Suburb M properties, and he seems to contend that omission was deliberate. This was not an issue that was raised for determination in the proceedings before Fowler J and as the Full Court noted in the appeal judgment,[5] it appears as though his Honour substantially adopted the orders contended for by the husband, rather than the wife, without expressing any reasoning as to why particular orders were made. I place little weight upon the fact that the orders contained an express indemnity in relation to one property, but not another.

   [5]Arthurman & Arthurman [2013] Fam CAFC 70 at [31] and [43].

CONCLUSION

1. The husband did not contend that I should only partially strike out or dismiss the wife’s Amended Initiating Application, and I am not of the view, even though I think that her claim in relation to dissolution of the trust is bound to fail, that it should presently be severed from the other relief she seeks. It follows that the only order I will make is that the husband’s application in a case filed 16 March 2017 is dismissed.

I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 July 2018.

Associate: T Ranson 

Date:  25 July 2018