BARRINGTON& DOWNTON
[2015] FamCA 426
•9 June 2015
FAMILY COURT OF AUSTRALIA
| BARRINGTON& DOWNTON | [2015] FamCA 426 |
| FAMILY LAW – ENFORCEMENT – Debt arising under a deed approved pursuant to s 87 of the Family Law Act 1975 – Where the wife seeks a finding that moneys are owing to her under the deed and seeks orders to enforce payment – Where the husband seeks a declaration that the deed is unenforceable – Where proceedings were initially commenced in the Supreme Court and transferred to this Court – Consideration of s 87 of the Family Law Act 1975 – Where the adversarial experts prepared a document identifying the areas of dispute in relation to the amount owing under the deed – Where the parties dispute the attribution of payments made by the husband against his liabilities under the deed – Where the experts were not in a position to express opinions about which of the contentions of the parties should be preferred – Where the Court could not find that the husband owes the wife a specific amount pursuant to his obligations under the deed –Where the evidence suggests that the husband does not have capacity to pay the wife – Where the wife’s delay in taking enforcement action and her agreement to changes in the obligations in the agreement mean that the Court should not make orders to enforce the agreement – Where the Court dismissed the wife’s application and declared that the deed is unenforceable. |
| Family Law Act 1975 (Cth) ss: 87 Family Law Amendment Act 2000 (Cth) Family Law Rules 2004 r: 20.01, 20.03, 20.04, 20.05, 20.06 & 20.07. |
| APPLICANT: | Ms Barrington |
| RESPONDENT: | Mr Downton |
| FILE NUMBER: | PAC | 3420 | of | 2012 |
| DATE DELIVERED: | 9 June 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 10 – 12 December 2014 |
REPRESENTATION
| APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Schonell SC Mr Ahmad |
| SOLICITOR FOR THE RESPONDENT: | Delta Law |
Orders
The Court Noted that the application of the wife for orders in terms of paragraphs 4 and 5 of the orders sought in her Case Outline document dated 5 December 2014 is withdrawn.
Otherwise the application of the wife set out in that document, together with her oral application made on 12 December 2014 for an order in the alternative to the orders sought at paragraphs 1 and 2 of the Case Outline, being an order that the husband pay her $2,500 per week for a period of three years, are dismissed.
The Court declared that the agreement between the parties that was approved under section 87 of the Family Law Act 1975 (Cth) on 11 November 1997 is unenforceable.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barrington & Downton 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 3420 of 2012
| Ms Barrington |
Applicant
And
| Mr Downton |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for the enforcement of financial and other obligations. They arise out of a Deed of Settlement (“the Deed”) which was entered into between the parties and approved by this court pursuant to the provisions of s 87 of the Family Law Act 1975 (Cth) (“the Act”) on 11 November 1997. Although the parties are no longer married, for convenience I will refer to them as ‘the wife’ and ‘the husband’.
The wife contends that moneys are owing to her under the Deed and seeks orders to enforce payment. The husband contends that no moneys are owing under the Deed and in the alternative, that if there are any moneys owing, as a matter of discretion the Court would not enforce that payment. In any event he seeks a declaration that the Deed is unenforceable.
The wife’s application will be dismissed. As to the two elements of enforcement proceedings, it is not possible to find that moneys are owing to the wife under the approved agreement and even if an amount was found to be owing, it would neither be practicable nor appropriate, as a matter of discretion, to enforce payment.
Those propositions will be developed below.
Applications
The wife commenced these proceedings against the husband in the New South Wales Supreme Court in 2012. Those proceedings were transferred to this Court. Ultimately, the wife sought orders by way of enforcement of the Deed in terms of a minute included in her Case Outline document dated 5 December 2014, as follows:
1.That the Husband pay the Wife the sum of $1,302.197.21, which was due on 9 September 2014. That the husband pay the wife the sum of $250,000 forthwith and the remaining $1,052.197.21 on or before 28 February 2015.
2.That the Husband pay the wife interest on the said $1,302.197.21 in accordance with the Family Law Act, interest pursuant to the deed or alternatively pursuant to Section 100 of the Civil Procedure Act as from 9 September 2014 until the above mentioned $250,000 has been paid. And that thereafter the husband pay interest on the remaining amount outstanding until the husband has fulfilled his obligations pursuant to the Deed.
3.That the husband pay damages to the wife.
4.That the Husband provide to the wife during the currency of the Husband´s obligation pursuant to Clause 6, 8, 9, 12 and 16 of the Deed a life insurance policy for a capital sum which will in the event of the Husband´s death prior to the fulfillment of his obligations pursuant to the Deed be sufficient to meet such obligations.
5.That the Husband make available for collection by the Wife the two (2) double Asian textiles that he has yet to make available pursuant to Clause 15 of the Deed.
6.That the wife be awarded her costs that she has entered into in relation to this matter and that she has already paid or are still outstanding.
7.Such further or other order as the Honourable Court thinks fit.
In the course of cross-examination the wife agreed that the parties had reached agreement about the Asian textiles referred to in her proposed order 5 and that she had been advised that the items were available for collection at the husband’s chambers. The wife also said that she would not press proposed order 4, accepting that it was likely that the husband could not comply with such an order. I will note that the wife withdrew those claims.
The wife confirmed that the claim at proposed order 3 was a claim for unquantified damages and that she had not and would not be able to quantify that claim.
In the course of final submissions the wife said that she sought an order that the husband pay her $2,500 per week for a period of three years. I understood that the wife intended that order to replace or as an alternative to the orders sought at paragraph 1 and 2 of her Minute of Orders.
The husband sought orders in terms of a minute included in his Case Outline document received 8 December 2014 as follows:
1.The proceedings are dismissed.
2.The applicant pay to the respondent the costs of the application on a standard basis.
At the outset of the hearing the husband’s counsel confirmed that he no longer pressed for the orders sought in his Response filed 23 November 2012, for the revocation of the approval of the Deed or that as an alternate order, that the Deed be set aside.
The husband sought a declaration that the Deed is unenforceable.
Thus, apart from costs, the issues are whether moneys are owing by the husband to the wife under the approved Deed and if so, in what amount; and if an amount is found to be owing, what orders if any, should be made to compel payment of that amount.
The Hearing
The case was listed for final hearing over three days commencing on 10 December 2014. The wife appeared without legal representation. The husband was represented by senior and junior counsel.
The hearing concluded on 12 December 2014 and judgment was reserved. It is regretted that judgment has been delayed.
Short History
The parties were married in 1972, separated in March 1993 and their divorce had effect from 23 March 1995. They entered into a deed of financial settlement on 11 November 1997 and the Deed was approved pursuant to s 87 of the Act on that day.
Background Facts
The wife was born in 1945 in Country A and is currently 70 years old.
The husband was born in 1946 in Australia and is currently 68 years old.
The parties married in 1972 in Country A.
There are three children of the marriage, all of whom are over the age of 18.
B was born in 1974;
C was born in 1979; and
D was born in 1990.
The parties separated on 9 March 1993 and on 23 March 1995 their divorce became final.
On 23 October 1995 the husband filed an Initiating Application in the Family Court of Australia seeking a property adjustment.
On 11 November 1997 the parties entered into a Deed of Settlement and that Deed was approved pursuant to s 87 of the Act.
On 1 May 2012 the wife filed a Statement of Claim against the husband in respect of the agreement in the Supreme Court of New South Wales. The wife said that she was advised to commence the proceedings in that Court as it would be quicker and less expensive. In mid 2012 the Supreme Court transferred the proceedings to this Court.
The Deed
The order approving the Deed and the attached Deed, both dated 11 November 1997, are part of the Court record and the terms of the Deed will not be set out in full in these reasons. The dispute between the parties mainly centres on two clauses of the Deed – clauses 6 and 12. They provide as follows:
6.The husband shall provide to the wife the sum of $1,050,000 in the manner following:-
a.As to the sum of $135,000 forthwith upon the execution of this Deed of which sum may be applied by the wife towards the acquisition of a property or other asset in her name.
b.As to the sum of $665,000, in the event the wife decides to apply the said sum towards the acquisition of a property or other asset by her, then the husband may raise the said sum by way of mortgage, such mortgage to be secured over the title of the property or other asset to be acquired by the wife in her name and in which mortgage the wife is the security provider and the husband is the debtor principal. The husband shall meet all payments of principal and interest procured under the said mortgage as and when such instalments of principal and interest fall due and shall indemnify the wife against any actions, suits, claims or demands made against her by the mortgagor pursuant to the terms of that mortgage and shall do all things, execute all documents, instruments and cause to be paid all moneys necessary to cause such mortgage to be discharged not later than 10 years from the date hereof. Pending the application of the said sum by the wife to acquire a property or other asset the husband shall pay to the wife interest on the said sum calculated from the date of approval hereof such interest be payable monthly in arrears until payment of the said sum at the variable rate applicable from time to time as set out by the Commonwealth Bank of Australia in respect of housing loan advances. Provided however, in the event that the wife purchases a property for occupation by her and she is unable to move into the property on the date of completion then the husband shall continue to pay interest to the wife notwithstanding that he had paid the sum of $665,000 up to the date on which the wife occupies the property or six weeks from the date of payment of the said sum whichever event shall first occur.
c.As to a further sum of $50,000 the husband is to pay $10,000 within fourteen days of the signing of this Deed, $25,000 on or before 1 July 1998 and $15,000 on or before 30 December 1998.
d.As to the further sum of $200,000 upon the expiration of a period of 10 years from the date hereof, such sum to be escalated annually as at 30 June each and every year in the same proportions as increases in the groups CPI Index, the first of such adjustments to take place on 30 June, 1998 based on the increase in the All Groups CPI Index from 1 March, 1997 to 1 March, 1998 and thereafter annually in the same proportions as annual increases of the March CPI Index.
e.The husband will pay the stamp duty and conveyancing or other charges on the conveyance or transfer of any property referred to in paragraph (a) and (b) hereof, and the wife's removal expenses from her existing address to any such property with such expenses to include the reasonable cost of installation of a washing machine, clothes dryer and dishwasher.
...
12.As and from the date of this Deed the husband shall pay to the wife for her own maintenance the sum of $1,000 per week until D attains the age of 21 years. The said sum shall be adjusted annually as at the 30 June each and every year in the same proportions as increases in the groups CPI Index, the first of such adjustments to take place on 30 June, 1998 based on the increase in the All Groups CPI Index from 1 March, 1997 to 1 March, 1998 and thereafter annually in the same proportions as annual increases of the March CPI Index.
The other relevant operative clauses of the Deed for present purposes are to the following effect:
…
2.The wife was to forthwith transfer her interest in [E Street, Suburb F] to the husband
3.The husband was to meet the ANZ mortgage secured on that property, indemnify the wife in relation thereto and within 2 months of the date of the deed, was to refinance the mortgage to release the wife therefrom.
4.The wife was to forthwith resign as a director of [G Pty Ltd] and transfer her shares to the husband or his nominee.
5.At the husband’s direction, the wife was to assign to him any moneys owing to her from [H Pty Ltd]; [G Pty Ltd] or [I Pty Ltd].
7.During the currency of the husband’s obligations under clauses 6, 8, 9, 12 and 16 he was to maintain insurance on his own life sufficient to meet those obligations in the event of his death.
8.By 1 February 1998 the husband was to provide the wife with a new European motor vehicle by hire purchase or lease.
9.Within 6 months of the date of the deed the husband was to provide with wife with the funds sufficient to discharge identified debts, including her legal costs. However, he was to pay $27,752 towards some of her legal costs and disbursements within 28 days.
10.In the event that the wife later decided to sell the property or asset bought by her as contemplated by clause 6b and she decided to replace that property or asset with another property or asset, the parties agreed to cooperate to transfer to 6b facility and arrangements to the new property.
11.In the event that the wife later decided to sell the property or asset bought by her as contemplated by clause 6b and she decided not to replace that property or asset with another, any facility established to give effect to 6b in respect of the first property or asset was to be discharged and the husband was to continue to pay the equivalent instalments on the discharged facility to the wife, as if the facility had not been discharged. The parties were to cooperate to transfer the original facility and arrangements to a new property
13.If the husband chose to meet his obligations under the deed by trust distributions to the wife he was to meet any resultant tax obligation imposed on her.
14.The husband was to generally indemnify the wife in relation to any demands, assessments etc. arising in respect of the companies and entities; compliance with the terms of the deed and her obligations as a company officer or shareholder.
15.The husband was to provide to the wife certain furniture and other items of personalty.
16.The husband was to establish a trust fund for the children, with the husband and wife as directors of the corporate trustee, established with $20,000 from the husband each year from 1998 to 2007 adjusted for movements in the CPI.
17.Otherwise the parties were to retain what they had or owned.
The relevant legislation and the principles to be applied
Section 87(1) of the Act provides that:
… a maintenance agreement may make provision to the effect that the agreement shall operate, in relation to the financial matters dealt with in the agreement, in substitution for any rights of the parties to the agreement under [Part VIII of the Act].
Section 87(3) requires a court to approve a “maintenance agreement” if satisfied its provisions dealing with financial matters are “proper”. By virtue of the Family Law Amendment Act 2000 (Cth), which came into effect on 27 December 2000, such agreements can no longer be approved but the Deed between the parties was approved before the commencement date of that amendment.
Among other consequences, an agreement that has been approved under s 87 may be enforced as if the operative terms were in the form of orders of this Court.
Section 87(11) provides that:
(11) Apart from the provision made by subsections (2), (4A), (4C), (5), (9) and (10), the validity, enforceability and effect of an approved maintenance agreement shall be determined by the court according to the principles of law and equity that are applicable in determining the validity, enforceability and effect of contracts and purported contracts, and, in proceedings of the kind referred to in subparagraph (ea)(iii) of the definition of matrimonial cause in subsection 4(1), being proceedings instituted in a court in which the approved maintenance agreement is registered or deemed to be registered, the court:
(a) subject to paragraph (b), has the same powers, may grant the same remedies and shall have the same regard to the rights of third parties as the High Court has, may grant and is required to have in proceedings in connection with contracts or purported contracts, being proceedings in which the High Court has original jurisdiction;
(b) has power to make an order for the payment, by a party to the agreement to another party to the agreement, of interest on an amount payable pursuant to the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the Rules of the Court; and
(c) in addition to, or instead of, making an order or orders pursuant to paragraph (a) or (b), may order that the agreement, or a specified part of the agreement, be enforced as if it were an order of the court.
The Family Law Rules 2004 (“the Rules”) make provision for the enforcement of obligations to pay money. The obligations that can be enforced include obligations to pay money under a maintenance agreement approved under s 87 of the Act (see Rule 20.01):
Under the Rules, the general range of powers in respect of money enforcement is described at Rule 20.07:
RULE 20.07
General enforcement powers of court
The court may make an order:
(a) declaring the total amount owing under an obligation;
(b) that the total amount owing must be paid in full or by instalments and when the amount must be paid;
(c) for enforcement (see rule 20.05);
(d) in aid of the enforcement of an obligation;
(e) to prevent the dissipation or wasting of property;
(f) for costs;
(g) staying the enforcement of an obligation (including an enforcement order);
(h) requiring the payer to attend an enforcement hearing;
(i) requiring a party to give further information or evidence;
(j) that a payer must file a Financial Statement;
(k) that a payer must produce documents for inspection by the court;
(l) dismissing an application; or
(m) varying, suspending or discharging an enforcement order.
Note: For the collection of child support, the court has general powers set out in section 111B of the Registration Act.
The Wife’s Claim
It falls to the wife to establish that the husband has a debt under the Deed and to assist the Court in making a finding as to the quantum of that debt. Enforcement is discretionary but if the Court finds that a particular amount is owed, it would normally make orders to compel compliance with the obligation. That leaves open the question of what enforcement mechanism would be appropriate and effective.
The wife seeks orders in the alternative for a payment of the debt or part payment, in each case, by instalments. Perhaps understandably, she does not seek a self-executing remedy such as those provided for in Parts 20.3 (enforcement warrant), 20.4 (third party debt notice), 20.5 (sequestration of property) or 20.6 (receivership) of the Rules.
At the conclusion of the trial, the orders sought by the wife were, in the alternative – a payment to her in two instalments of the sum of $1,302,197.21 plus interest on the principal amounts at the rate fixed by reference to the Rules from 9 September 2014 to date OR a payment to her by the husband of $2,500 per week for a period of three years.
As to the calculation of $1,302,197.21, - in the wife’s affidavit sworn 9 September 2014 she described at paragraph 6 the components of her claim. By reference to the paragraphs of the Deed, the wife claimed:
6b - $684,694.13 made up of $369,593 in principal; plus $191,690.60 by way of the interest provided for in 6b of the Act; plus $123,410.53 in interest under the Rules of Court to 9 September 2014;
6c - $1,084.93 for interest under the Rules of Court to 9 September 2014;
6d -$399,076.19 made up of $236,504.73 by way of principal (adjusted for movements in the CPI) plus $162,571.46 in interest under the Rules of Court to 9 September 2014;
12 - $217,341.96 made up of $106,321.00 in spouse maintenance and $111,020.96 in interest under the Rules of Court to 9 September 2014.
From the wife’s submissions I understood that the alternate claim of $2,500 per week for three years was calculated without regard to the asserted arrears under the Deed but at least in part, to recoup the costs said to have been incurred by her in these proceedings. The claim would amount to $390,000 in periodic payments. At the conclusion of her submissions in reply, the wife asserted that her costs, including disbursements for accountants’ fees, were of the order of $350,000. I understood her to mean that although her alternate claim would not bear any relationship to the asserted debt, at least she would not have been out of pocket for the costs of the enforcement action.
How much was the husband obliged to pay the Wife, under the Deed?
The first step in the enforcement process is to identify the amount of any arrears under the Deed. That means making findings about what was owing and what, if anything, was paid. In this case the first of the obligations commenced in late 1997.
For obvious reasons, much of the parties’ efforts during what was an inordinately long pre-trial period were aimed at joinder of issue on those points. Each of the parties instructed accountants to attempt to collate the available records. The wife instructed an accountant, Ms J of J Group to collate her records in relation to the payments made by the husband over time and to attribute them to the obligations under the Deed. I understand that work lead to the quantum of the wife’s primary claim.
The husband instructed an accountant Mr L to collate the payments made by the husband over time and to attribute them to the obligations under the Deed. Later the husband instructed Mr M.
The experts provided reports. As is the usual practice with the evidence of adversarial experts, an order was made that the parties’ experts confer and that in the event that after their conference there remained differences of opinion between them, that they prepare a document identifying the areas of dispute and specifying the reasons why the opinion of one expert should be preferred to that of the other. The experts (Ms J and Mr M) prepared such a document. It is dated 4 December 2014 and is reproduced at the conclusion of these reasons as Appendix 1. The experts largely agreed about what was owing.
As to particular issues identified by the experts:
Clause 6(b)
The statement of the experts has $665,000 due and payable under clause 6(b). The Deed did not specify a period or date for the payment by the husband to the wife of $665,000. In the normal course one would import “as soon as practicable” to an agreement that does not specify a time for payment. That appears to be the shared understanding of the parties.
Given that the Deed gave the husband the option of borrowing that sum if the wife decided that she would apply it to purchase a property or asset, there is also an inference that the time for payment was intended to be affected by the timing of that decision. In fact the time for payment was probably intended to be effected by the communication to the husband of any such decision. If the husband borrowed the money, he was obliged to service the borrowing and discharge it within 10 years of the date of the approval of the Deed.
It is an agreed fact that the parties intended that the husband would provide the wife with $800,000 that she might apply to the purchase of her own accommodation. Although consistent with the terms of the Deed, there is no specific reference to that precise agreement in the recitals or the terms of the Deed.
Interest under clause 6(b)
A significant dispute between the parties is whether the husband was obliged to pay interest on the unpaid interest accruing under clause 6(b). According to the experts’ document, the dispute accounts for $123,410.53 of the variance between the contentions of the parties.
Section 87(11) sets out the Court’s power to make an order for the payment of interest on an amount payable under an agreement from the time the payment was due and provided that the rate is not greater than the rate prescribed in the Rules. As a general proposition interest is the price of default of a money order. It compensates the payee for the lost benefit of timely payment. In the case of the obligation in clause 6(b) the parties included a provision for interest in the agreement as follows:
.. Pending the application of the said sum by the wife to acquire a property or other asset the husband shall pay to the wife interest on the said sum calculated from the date of approval hereof such interest be payable monthly in arrears until payment of the said sum at the variable rate applicable from time to time as set out by the Commonwealth Bank of Australia in respect of housing loan advances…
No argument was advanced in the case for the imposition of a further interest payment on default of the prescribed interest payment.
Clause 6(c)
Under clause 6(c) the husband was to pay $50,000, made up of $10,000 within fourteen days of the signing of the Deed, $25,000 on or before 1 July 1998 and $15,000 on or before 30 December 1998.
Clause 6(d)
Under clause 6(d) the husband was to pay a further sum of $200,000 upon the expiration of a period of 10 years from the date of the Deed, such sum to be adjusted annually for movements in the CPI.
Clause 12
Pursuant to Clause 12, the husband was to pay spousal maintenance starting at $1,000 until 19 March 2011, when D turned 21 years of age. The payments were to be annually adjusted in accordance with movements in the CPI. It is agreed that a total of $912,237.02 was to be paid under this clause of the Deed.
What did the husband pay under the deed?
Clause 6(b)
$135,000 was to be paid immediately and the additional $665,000 was to be paid or secured to make up the balance. The $135,000 was in fact paid on 29 January 1998.
The parties’ experts agree that the husband paid $295,407 off the principal debt. Apart from interest on interest and the interest on any amount in default, the major dispute between the parties, as identified by their experts, is whether the amount to be credited to the husband against his obligation under this clause is $649,443.47, as contended for by the husband or $85,901.33 as contended for by the wife. The parties’ experts were not able to offer an opinion as to a basis for preferring one contention over the other.
Clause 6(c)
The experts have identified the dispute in respect of compliance with this clause as amounting to $1,084.93. Presumably that was the figure as at the date of the experts’ statement.
Clause 6(d)
Apart from the consequential arguments about CPI adjustments and interest, the dispute identified by the experts is as to the payments made by the husband. He contends that he paid $82,996.19 and the wife concedes that he paid $42,153.13.
The parties’ experts were not able to offer an opinion as to a basis for preferring one contention over the other.
Clause 12
Apart from the consequential arguments about CPI adjustments and interest, the dispute identified by the experts is as to the payments made by the husband. He contends that he paid $848,849.33 and the wife concedes only $805,916.02.
The parties’ experts were not able to offer an opinion as to a basis for preferring one contention over the other.
In respect of the major disputes, the experts agreed that they did not have sufficient evidence or were otherwise unable to express a reason for preferring one opinion over the other.
The Evidence of the Witnesses
Ultimately the outcome of these proceedings hinges on other issues but credit assumes some significance in the proceedings as many of the factual disputes fall to be determined without any written record or independent corroboration. The factual disputes between the parties were largely as to the detail and import of their financial interaction over the years.
The human brain is not a computer and even the memory of a witness who is otherwise motivated to give careful and frank testimony, is not always reliable. In the process of storing and recalling events, a witness is likely to innocently colour the recollection with his or her perceptions about an event. Two otherwise reliable witnesses can recall the same event in very different terms. The issue is not whether a witness could remember certain facts, including events many years ago in the witness box but rather, whether his or her evidence is reliable.
The accuracy of the wife’s recollection and therefore, of her evidence was challenged on behalf of the husband. Something was sought to be made of the inaccuracy of the wife’s unaided recollection of events and transactions over the past 17 years. The effect of the wife’s evidence about that issue was that, when prompted by the applicable credit card or other records, her memory was accurate and reliable.
Unremarkably, the wife does not have total recall of all relevant financial transactions conducted over the 17 years since the Deed was approved. To my observation, the wife’s memory is no worse and in some circumstances, it seems better than the average. Importantly, at no time did I detect any attempt by her to mislead the Court. That is not to say that she has total and reliable recall of all of the subject events.
Although no credit finding adverse to the husband was pressed on me by the wife, as with the wife, and unremarkably, his unaided recall was not complete. However, when confronted with particular circumstances during cross-examination, to my observation he made proper concessions. For example, he could not recall the particular incidents but conceded that expenses incurred on a Gold Visa Credit Card at Resort N and in Japan were made by him on the basis that he and not the wife, travelled to those destinations. He could not recall the transactions but conceded that internet transfers on that account – including transfers of $6,000 were made by him or at his direction because the wife did not have internet access to the account. He thought that it was likely that the transactions were made by his secretary on his behalf.
In their very extensive affidavits the parties agree about some matters but generally disagree as to the fact or import of things said or done many years ago. Neither of the parties resiled from the thrust of their testimony and particularly as much of the dispute is as to the import of various communications or as to what was meant or agreed by them at the time, no probative findings are possible about those disputed matters.
The issues in dispute
For the purposes of the enforcement proceedings the main dispute between the parties relates to the nature of certain expenditure by the husband or by the wife with funds provided by the husband and the attribution of payments made by the husband against his liabilities under the Deed. In each case, some of those disputes are insoluble. In my view the issues about the enforcement of the Deed are more fundamental but I will say something about the particular disputes.
The Gold Visa Credit Card
The husband provided a Gold Visa Credit Card for the wife’s use from 2001. She said that she mainly used the card for expenses in relation to the children but that her arrangement with the husband was that it could be used for her, for example for accommodation if she and the children stayed in a hotel. She said that when the card was used for her own purposes, she would write to the husband and apologise that she had spent money on the card, and request that the money spent was deducted from her maintenance payments. Although the wife gave evidence about her usual practice in relation to her personal expenditure on that credit card, she did not suggest or extract from the husband a concession that that was her invariable practice.
The wife’s affidavit sets out a schedule of expenses referable to herself and D from June 2003 to July 2009. Between those years she detailed three items of expenditure for her benefit herself being two purchases from an establishment called something like Store O in Suburb P and one from Australia Post. The wife provided no records for any expenses incurred by her prior to 2001.
There was an issue addressed during her cross-examination about expenditure at David Jones for which there was no satisfactory conclusion.
No probative findings can be made about the wife’s use of the husband’s credit card beyond the general arrangement.
The 4WD
The approved Deed required the husband to obtain a Mercedes motor vehicle for the wife. That was complied with.
In 2003 the wife asked the husband to help her to acquire a stronger motor vehicle so she could more safely pull a horse float and the husband agreed. She agreed to that help being credited against the husband’s obligations under the Deed. The husband leased a 4WD motor vehicle for the wife and she used the car for four to five years. She deposed that the husband used the car three to four times during this period. The wife conceded the husband made all lease payments on the vehicle. The husband claims credit for $53,080.60 against his obligation under clause 6(d). The wife says that the allowance should be $39,210.65.
The main part of the dispute relates to the cost of the lease, in the sum of $10,460. It is the wife’s evidence that the husband elected to lease the vehicle and he should not have credit for the cost of that election. The husband deposed that he told the wife that the only way he could acquire the vehicle was by lease. The wife deposed that he said: “… it’s easier for me to get it on lease, instead of buying it outright.”
In 2003 the parties said things to each other but neither of them contends that they agreed about the treatment of the cost of the 4WD. Even if they had agreed, that agreement would not have been enforceable but it may have been of assistance in the exercise of taking accounts as to what of the obligation under clause 6(d) of the 1997 Deed remains unpaid. There was no agreement.
The Wife’s Rental Arrangements
In 1999 the husband acquired a property at Q Street, Suburb R for $1.25 million. The wife agreed to live in the property at a notional rent of $650 per week to be set off against the husband’s obligations to the wife. On 1 June 1999 the wife entered into a formal lease for the Q Street property although in fact, no money changed hands. On 2 June 1999 D, C and the wife moved into the property. The parties disagree about whether the set off was against his obligation to pay interest or his obligation to pay principal and interest. The husband deposed that the wife continued to live in that property until 2006. Although challenging much of the husband’s deposition, the wife did not directly challenge that last proposition.
From mid April 2003 until April 2004 D and the wife lived in a rental property situated at S Street, Suburb T while D attended boarding school at U School, a secondary school for girls. The husband paid the rental fees on the property which were $2,600 per month. The wife conceded this property was rented by the husband while the Q Street property was also available for her to occupy.
On 2005 D moved to Victoria and commenced at V School. In January 2006 D commenced at W School as a boarder. After the first term in 2007 D became a day girl at W School. On 6 April 2007 the wife moved to a rental property situated at X Street, Suburb Y to support D while she completed her Victorian Certificate of Education at W School. The rent was $1,600 per week with the husband paying $1,100 and the wife paying $500. D and the wife lived at this property until 6 January 2008. The wife conceded that the husband paid rent of $35,000 for her occupation of the property. The husband says he told the wife that his payments were a continuation of the arrangement with Q Street (counted against the husband’s obligations to the wife under the Deed). The husband deposed that the wife rejected that proposition. Thus it is common ground that there was no agreement between the parties at that time or since, as to how the Suburb Y rental payments should be treated.
On 15 December 2007 the wife entered into a 12 month lease for a property situated at Z Street, Suburb AA for $1,554 per week. The parties agreed that D and the wife would live in the property and the husband would pay $1,000 per week rent and the wife would pay $554 per week. The wife deposed that she paid the full rent for four to five months and that the husband paid the rent for three months while the children were living in the property. The husband also paid the costs associated with transporting the wife’s furniture from Melbourne to Sydney.
On 15 December 2009 the wife and D moved into a rental property at BB Street, Suburb CC. The property was rented for $2,005 per week with the wife contributing $400 and the husband paying $1,605. D and the wife lived in the property until July 2011.
As with the arrangement in respect of the 4WD motor vehicle, the 1997 Deed made no provision for the husband to pay rent for the wife or for some or all of the husband’s obligations to the wife to be set off against rental payments or notional rental payments. There is no doubt that the wife lived in the properties and that the payments of rent were as deposed but it is clear that the parties did not agree on the precise import of rental payments made or foregone by the husband, in respect of his obligations under the approved Deed.
It is clear from the document issuing from the conference of the parties’ experts, that much of the parties’ dispute relates to the import of those arrangements.
Conclusion in respect of the amount owing by the husband under the 1997 Deed
I have referred to the issues identified by the parties’ experts. The experts were not in a position to express opinions about which of the contentions of the parties should be preferred.
The variance between the parties’ contentions is about $1,360,000. Apart from the question of interest on interest, CPI adjustments and interest to which I have referred, the fundamental dispute is whether the husband should be credited with payments of $647,288.51, over and above those which the wife concedes. There are some disputes about whether all of those additional payments were made but the main issue between the parties is as to the implications of those payments.
The problem is that in virtually no instance did the parties reach, let alone record an agreement about the impact on the obligations under the Deed of the hundreds of financial transactions between and affecting them over the 17 years since the Deed was made.
The experts were not in a position to express opinions about which of the contentions of the parties should be preferred. Neither is the Court.
The wife attempted to address the inconsistencies between her contentions and those of the husband in her oral evidence. She conceded during cross-examination that there was an inconsistency between the assertions contained in her August 2013 affidavit and the position contended for her now about the attribution of certain payments against principle or interest. The wife conceded that unlike later periods, for charges before June 2003 she had not undertaken an exercise of apportioning expenditure on the Gold Visa Card between her own expenditure and expenditure for the parties’ children.
In relation to the apportionment of expenditure between the wife and the children, the wife said she was assisted by Qantas statements and frequent flyer records. I assume she meant that she could thereby make an assessment as to whether D, for instance, was with her when a particular expense was incurred. As to expenditure at David Jones the wife’s evidence was to the effect that she used her own David Jones card for her expenses and prior to D having her own card, the wife sometimes used her card for purchases for D. The wife could not exclude the possibility that some purchases on the Gold Visa Credit Card were for her own benefit. The wife was taken to an expenditure at Shop DD. She said that it is an enterprise selling linen and said that there were a number of items for D. Learned senior counsel for the husband put that the wife’s answer in that regard involved her making a judgment about those expenses. The wife responded to the effect: “Yes and no, I remember purchasing towels for D as all my towels had been ruined with tanning.” The wife then agreed with the proposition that some or all of the towels might have been for D.
I explained to the wife that I was required to make findings about the amounts owing and needed a degree of confidence in the evidence. I said that the evidence about her expenditure sounded very hit and miss. The wife responded to the effect: “I guess that is not unfair.”
The wife conceded that she had not dissected her expenditure at Coles. She conceded that that expenditure involved food and household supplies although it was described as food in the documents, it was just her way of classifying the expense.
The wife was asked about making cash withdrawals on a credit card and said that she had no PIN for the card and did not make any cash withdrawals; that she hoped she was right about that; she did not think she withdrew cash and repeated “I don’t think I did.”
She agreed that the husband made payments for her benefit in respect of occupation or rent for Suburb CC, EE Town and Melbourne premises and agreed that she and the husband disagreed about those payments being set off against the husband’s obligations. The wife agreed that some of her removal expenses paid for by the husband had been taken off the husband’s obligations. She agreed that she had attributed some payments on the 4WD lease to herself but that on her working documents, they were not accounted for.
The wife agreed that $56,000 had been paid to the parties’ son by the husband but did not agree that the husband opposed him entering into a business; that the husband told her of that opposition or that any money he paid should therefore come off her entitlements. She said that she had allowed some expenses in relation to B’s business but would not agree that that was consistent with the husband’s evidence about her agreement to allow payments to B against her entitlement.
There are scores of small factual disputes about what the parties did or said to each other and except for a few concessions, the result of the oral evidence was that no probative findings are possible on most of them. The Court is not able to find that the husband owes the wife an amount pursuant to his obligations under the Deed approved on 11 November 1997.
The Husband’s Capacity to Pay
I have found that the wife has not established that the husband owes her any money under the Deed. If I am wrong about that I will say something about the practicability of making orders for payment against the husband.
The husband is 68 years of age and works as in professional capacity. He is separated from his wife, Ms FF. There are as yet no proceedings between the husband and his current wife. The husband is in a relationship with Ms GG, who is in her 50’s and she has no children. As at March 2013 the husband was living alone in rented premises at Darlinghurst and sometimes lived with Ms GG.
The husband was successfully treated for prostate cancer in 2004. In 2011 his PSA level began to rise but happily no further cancer had been identified.
The husband earns $33,115 per week made up of $32,875 in income from his business and $240 in the form of a superannuation pension. He spends $41,967 per week. His main expenses are $14,897 in income tax; $500 in superannuation contributions; $400 in motor vehicle and home and contents insurance; $50 in car registration; $3,438 in payments to reduce his outstanding tax; $850 in minimum payments on two Visa cards; and $21,736 in other payments. Of his expenses, the husband estimates that $3,351 per week is for the benefit of his current wife and their children; and that $1,500 per week is for the benefit of the parties’ daughter, D.
The husband owns assets worth an estimated $6,771,571. They include the E Street property which he assesses to have a value of $6,000,000. He has $18,900 in the bank and an insurance policy worth $4,000. He owns two motor vehicles worth a combined $25,000 and household contents worth $20,000. His art works and the outstanding fees in his practice are $683,667. The husband estimates his superannuation at $250,000.
The husband owes $9,882,772. His debts include mortgages standing at $6,755,190; $146,120 in unpaid tax for 2012/2013 financial year and $2,772,099 in assessed and unpaid taxes for earlier years; a private loan in the sum of $110,000; over $79,000 in credit card debts and $20,000 in other practice liabilities. The husband said that he had entered into a deed of composition with the ATO requiring him to pay $250,000 per quarter but he had not been able to maintain that commitment.
The husband is owed $2,700,000 in fees in relation to litigation referred to as Suburb HH. In addition he has done some additional work in respect of which he has yet to render a bill. He is not sanguine about recovering those fees. Those proceedings were to go to arbitration in April 2015.
The wife cross-examined the husband in relation to his financial circumstances. She did not challenge his evidence, no contradictory evidence was adduced and the husband did not resile from the thrust of his disclosure. In summary, the husband earns nearly $9,000 a week less than he spends. He owns over $3,000,000 less than he owes. If he is paid what he is owed for the Suburb HH litigation, his assets might increase to approximate the value of his debts.
Even if there was an identified amount owing by the husband to the wife, there is no prospect, on the known facts, of him having any capacity to pay her. The matter is further complicated by the fact that the husband’s debts exceed his assets. Before orders were made establishing a regime of payments, notice should be given to the other creditors. In particular, notice should be given to the mortgagee, the ATO and the other substantial creditors.
For completeness I should note that the background facts suggest that, whether enforcement action was warranted or not, there may have been periods when a level of enforcement may have been possible. Neither of the parties suggests that the Deed could have been effectively enforced on the day it was approved. That makes sense of the scheme of the Deed including deferred payments and contemplating borrowed payments. However, very extensive renovations were undertaken at the E Street property in 2007 and 2008. The husband deposes that the improvements were quoted at about $2.1 million but ultimately cost about $4 million. I gather that, if not in total, they were in the main funded by the husband. It follows that prior to incurring that expenditure the husband’s financial circumstances were probably more robust than at present. The wife could have taken enforcement action prior to that time. For her part the wife asserts that the husband was in arrears for most of the period since November 1997. She wrote to the husband on 3 October 2006[1] asking him to tell her how much he thought he owed her under the Deed. On 23 October 2007 the wife wrote to the husband asserting that he owed her $282,475.10 under clause 6(d).
[1] Exhibit 7
The Exercise of Discretion in Relation to Enforcement of the Deed
I have not identified an unmet obligation of the husband to the wife under the approved Deed. In any event I have found that the husband does not have the capacity to meet any meaningful order to enforce a financial obligation to the wife. If I am wrong about both those things, enforcement is discretionary and it would be necessary to consider whether the Deed should be enforced.
Importantly, the wife sat on her rights and did not take timely action to enforce the Deed. The evidence includes references to demands for compliance in communication between the parties and much later, involving solicitors at various times over the years but formal enforcement action did not commence until 2012 – some 14 years after the first asserted default. As might be expected the delay in commencing enforcement action has meant that the memories of the parties are tested and that some objective / corroborative material is no longer available.
The written submissions of the wife highlight the problem. They record that on the day the Deed was approved the husband asked the wife to permit the late payment of the $135,000 payable under clause 6(a). It is the unchallenged evidence of the wife that the payment under that clause was not made until the end of January 1998. And so it went. It might be said that in relation to that first default, the wife acquiesced or was able to rely on the interest accruing on default. However, on the wife’s version of events the husband did not cooperate with her efforts to buy a property. If that was his obligation, she did not seek to enforce it. In particular the wife was and is greatly aggrieved by the husband’s conduct in respect of the acquisition of the Q Street property in 1999. As she recalls it, she identified the property and proposed that it be bought in her name. Nevertheless, she did not commence any enforcement action until 2012.
In any event the wife was on notice of the husband’s default. The statement issued from the conference of the parties’ experts[2] reveals that although other payments are asserted, it is an agreed fact that many of the payments due under the agreement were not made or were in arrears. That statement is annexed to these reasons.
[2] Exhibit 10
Laches can understandably be a bar to enforcement. Memories fade, records are lost and the defaulting party can assume that the other party has waived or agreed to the default. Importantly, the defaulting party may make other decisions relying on the fact that the obligation has not been enforced.
The wife was asked about the issue of enforcing the Deed at an earlier stage and the effect of her evidence was:
·That she trusted the husband to ultimately make good on his obligations;
·He told her on many occasions that he simply could not afford to meet his obligations at that time;
·That this was the way family finances had always worked during the marriage, with the husband having a gift for finding funds when they were needed; and
·That the wife did not want to upset the husband or cause conflict with him. She wanted to continue the good relationship she had with him for the sake of their children and for her own peace of mind.
Although not relevant for present purposes, the husband gave evidence to a similar effect in relation to his failure on some occasions to press for the wife’s agreement about the attribution of certain payments made by him. He did not want to create conflict.
It should be recorded that the wife’s judgment in delaying enforcement action for the sake of harmonious relations with the husband or for the sake of the children may have been the right one for the family. It may be that the original Deed was a triumph of hope over experience – that on the day the agreement was struck, it was unenforceable. In any event, it is likely that by the ‘changes’ agreed to or acquiesced at by the wife, there was such a departure from the agreement that whatever remained to be enforced, was not the original approved Deed. Unlike agreements approved by the Court pursuant to section 87, oral agreements are not enforceable.
In my opinion, the wife’s delay in taking enforcement action and her agreement or acquiescence to changes in the obligations contained in the Deed mean that the Court should not now make orders to enforce that Deed.
Conclusion
The wife needed to establish arrears under the Deed and she could not. In any event the evidence suggests that the husband has no capacity to pay. The wife said something to the effect that she had no intention or prospect of challenging the husband’s evidence about his circumstances. The wife said something like:
We could never work together to try and raise the mortgage
That comment highlights one of the problems of the enforcement action. The approved Deed did not require the parties to work together in such a way. Albeit not fully expressed in the Deed, the parties had a plan about the wife buying a house and the husband providing $800,000. No property was ever identified by the wife at about that price. The wife later identified more expensive properties but she was not able or was not willing to raise the additional finance and could not secure the husband’s agreement to fund the shortfall himself. Much later, the husband too encouraged the wife to purchase a more expensive property and to make up the necessary shortfall with her own funds. The wife did not take up that proposal. The husband said that he suggested that the wife defray the impact of the notional rent she paid on the Q Street property by buying another property and renting it out. Such a purpose was not dissimilar to the intent of the parties’ agreement but whatever the circumstances, the wife did not identify or propose to the husband, a purchase that could be achieved without funding in addition to that identified in the Deed. In addition to the husband’s poor financial position, the failure of the parties to agree on the effect on various changes to the agreed arrangement, such as the notional Q Street rent and the wife’s delay in enforcing the Deed, contributed to making the Deed unenforceable.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 9 June 2015.
Associate:
Date: 9 June 2015
Annexure 1
Exhibit 10
Document setting out in relation to the matters in respect of which they do not agree which in the opinion of one is to be preferred over the opinion of the other
Dated 4th December, 2014
Mr M, of II Street, Sydney, NSW
for [Mr Downton]
Ms J, of JJ Street, Sydney
for [Ms Barrington].
dated 4th December 2014
With Reference to Exhibit 1
Summary of Variance between [Mr Downton] & [Ms Barrington] Affidavit Claim.
The Following is noted as a summary of the matters due and then remaining in dispute under Clause 6(b):
| PAYMENT UNDER CLAUSE 6(b) | [Mr Downton] | [Ms Barrington] | In Dispute |
| Principal amount |
|
|
|
Less: | |||
Capital payments | (295,407.00) | (295,406.00) | - |
Rental payments | - | - | |
| Error in spreadsheet principal reduction calculation |
|
| |
Balance of principal amounts owing | 369,593.00 | 369,593.00 | - |
Add: | |||
Accrued interest on loan | 318,648.86 | 623,731.92 | (305,083.06) |
| Interest owing on unpaid interest debt |
|
|
|
| (676,934.61) | 747,142.45 | (428,493.59) |
Less: | |||
Payments attributed to interest | (64,473.00) | (64,473.00) | - |
Rental payments | (281,667.00) | (281,667.00) | - |
| Other payments (ANZ, other rents, etc) |
|
|
|
| (676,934.61) | 315,101.12 | (992,035.73) | |
| Total Clause 6(b) principal & interest owing/(overpaid) per Affidavit |
|
|
|
The Following is noted as a summary of the amounts due and then remaining in dispute under Clause 6(c):
| PAYMENT UNDER CLAUSE 6(c) | [Mr Downton] | [Ms Barrington] | In Dispute |
| Interest on late payment | - | 1,084.93 | (1,084.93) |
| Total Clause 6(c) interest owing per Affidavit |
|
|
|
The Principal Amount of $50,00.00 as stipulated in the Deed (Family Law court order of 11th November 1997) (exhibit 19) is not in dispute. The payments received are not in dispute. Interest accrued on the late payment of this clause is not in dispute.
The Following is noted as a summary of the matters due and then remaining in dispute under Clause 6(d):
| PAYMENT UNDER CLAUSE 6(d) | [Mr Downton] | [Ms Barrington] | In Dispute |
|
|
|
| Nil |
| CPI adjustments | 69,76.09 | 78,657.86 | (9,281.77) |
| 269,376.09 | 278,657.86 | (9,281.77) | |
| Payments made | (82,966.19) | (42,153.13) | (40,813.06) |
| 186,409.90 | 236,504.73 | (50,094.83) | |
| Add interest accrued on unpaid balance | - | 162,571.46 | (162,571.46) |
| Total Clause 6(d) principal & interest owing per Affidavit |
|
|
|
The Following is noted as a summary of the matters due and then remaining in dispute under Clause 12:
| PAYMENT UNDER CLAUSE 12 | [Mr Downton] | [Ms Barrington] | In Dispute |
| Spousal maintenance payment due (calculated to 19 Mar 2011) |
|
|
|
| Payments made | (848,849.33) | (805,916.02) | (42,933.31) |
| Payments owing | 63,387.69 | 106,321.00 | (42,933.31) |
| Interest on overdue payments | - | 111,020.96 | (111,020.96) |
| Total Clause 12 principal & interest owing per Affidavit |
|
|
|
Clause 6(b)
With respect to the amounts paid in Clause 6(b), [Mr Downton]: $649,443.47; [Ms Barrington]: $85,901.33) it is noted and agreed by both parties that evidence has not been provided such that the parties are able to come to an opinion as to why either [Ms Barrington] or [Mr Downton's] statements are to be accepted over the other's statements and therefore the full amount of $563,542.14 remains in dispute.
It is noted that the charging of primary interest in Clause 6(b) is agreed, and it is noted that methodology used by [Ms Barrington] in the determination of the primary interest due is correct, but the amount as quantified cannot be agreed due to the interaction with the differences set out in other payments – [Mr Downton]; $649,443.47, [Ms Barrington] $85,901.33
Clause 6( c)
The parties agree that evidence has not been provided such that the parties are able to come to an opinion as to why either [Ms Barrington] or [Mr Downton] statements are to be accepted over the other’s statement and therefore the amounts as shown in dispute continue to be in dispute. The payments made and accepted has, in turn, a direct effect on the calculation of the adjustments due pursuant to CPI changes. Accordingly, the adjustments amount remains in dispute
Clause 12
The parties agree that evidence has not been provided such that the parties are able to come to an opinion as to why either [Ms Barrington] or [Mr Downton] statements are to be accepted over the other's statement and therefore the amounts as shown in dispute continue to be in dispute.
It is noted that interest charged and claimed under S87 of the Family court rules is awarded at the discretion of the court. Should the court award interest pursuant to s(87), and it is based on a calculated rather than an arbitrary amount, then such amount is accepted subject to the calculation of the financial amounts determined as payable.
This applies to the s87 interest referred to in
In clause 6(b) ([Mr Downton]:0, [Ms Barrington]: $123,410.53)
In clause 6(c) ([Mr Downton]: 0; [Ms Barrington]: $1084.93)
In clause 6(d) ([Mr Downton]: 0; [Ms Barrington]: $162,571.46)
In clause 12 ([Mr Downton]: 0; [Ms Barrington]: $111,020.96)
In summary,
It is agreed that the two areas of dispute are
the payments that have been made and the allocations of various payments under the various clauses and the calculation of the primary interest due and
the acceptance and then the calculation of the Section 87 interest due
As both parties agree that they have not been provided with evidence by either the applicant ([Ms Barrington]) or the respondent ([Mr Downton]) in this matter, both parties agreed that they are not able to accept the statements of one party against the statements of the other party.
The amount of the payments made directly affect the primary interest claim in clause 6(b), and the CPI adjustments in clause 6(c) and the resultant amount that remains in dispute at clause 6(b), clause 6 (d) and at clause 12.
There is also a direct effect on the calculation of the interest pursuant to Section 87.
0
0