Batsman and Batsman (No 2)

[2010] FamCA 585

FAMILY COURT OF AUSTRALIA

BATSMAN & BATSMAN (NO. 2) [2010] FamCA 585

FAMILY LAW – PROPERTY SETTLEMENT – Section 79(2) just and equitable final orders

APPLICANT: MS BATSMAN

RESPONDENT: MR BATSMAN

FILE NUMBER: MLC 13495 of 2009

DATE DELIVERED: 7 JULY 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 7 JULY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR SWEENEY

SOLICITOR FOR THE APPLICANT: LANDER & ROGERS

COUNSEL FOR THE RESPONDENT: MR GLOVER

SOLICITOR FOR THE RESPONDENT: WISEWOULD MAHONY

Orders

IT IS ORDERED BY CONSENT:

1. THAT all previous orders be and are hereby discharged save the costs order made by this Court on 28th October 2009.

2. THAT the Husband  and the Wife do all acts and things and sign all documents and give all reasonable directions reasonably required of them to:

   a)complete the sale of …, R (“the property”); and

   b)to disburse the monies due to the parties to their respective Solicitors currently on the record.

3. THAT the proceeds of sale of the property be disbursed as follows:

   c)first, in payment of the selling expenses of sale;

   d)secondly, in payment of the conveyancing expenses of sale;

   e)thirdly, in discharge of the Westpac Mortgage encumbering the title to the property; and

   f)finally in payment of the balance then remaining as follows:

   i)to the Wife's solicitors for and on behalf of the Wife  the sum of Five hundred and eighty thousand dollars ($580,000.00) (“the payment”) plus the costs referred to in sub-paragraph (ii) hereof, and

   ii)the balance to the Husband's solicitors for and on behalf of the Husband  save that the Husband shall pay to the Wife from his share the amount of $10,600 payable as costs ordered by Justice Young on the 28th day of October 2009.

4. THAT the Wife forthwith do all acts and things and sign all documents reasonably required:

   g)to transfer to the Husband or his nominee at the expense of the Husband all her right title and interest in:

   iii)M Pty Ltd

   iv)Batsman Family Trust.

   (“the entities”)

   including assigning to the Husband or his nominee any interest she has in any loan account; and

   h)resign all offices she holds in the entities.

5. THAT the Husband pay and indemnify the Wife and keep her indemnified in relation to all liabilities of whatsoever nature and kind arising from her role as an officeholder, shareholder beneficiary or employee of the entities including but not limited to taxation liabilities of the entities or for any distributions or payments made to the Wife by the entities.

6. THAT unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or any subsequent Orders:

   i)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these Orders;

   j)monies standing to the credit of the parties in any joint bank account is to be retained by the Husband;

   k)each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

   l)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

   m)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

7. THAT otherwise all extant applications be and are hereby dismissed and the proceedings be removed from the docket of Justice Young.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

2. THAT all documents produced to the Court pursuant to any subpoena be forthwith returned by the subpoena clerk, Family Court Melbourne Registry to the recipient of the subpoena.

3. THAT the ex tempore reasons for judgment be transcribed and placed on the Court file. 

THE COURT NOTES:

A.THAT pursuant to Section 81 of the Family Law Act 1975 these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

B.       THAT the Husband warrants that:

(a)      the purchaser has bought the property unconditionally;

(b)the insurance claim has been lodged and accepted by the insurance company; and

(c)the rectification works will be done and the insurance company will pay the workers directly.

C.THAT the aide memoirs as to the pool of assets provided by Counsel for the Husband  and Counsel for the Wife  be marked as "Exhibit 1" and retained on the Court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13495 of 2009

MS BATSMAN

Applicant

And

MR BATSMAN

Respondent

REASONS FOR JUDGMENT

1. I will give some brief reasons and make orders finalising this matter.  The matter of Batsman was before me for a defended hearing.  Mr Sweeney of Counsel appeared for the wife.  Mr Glover of Counsel appeared for the husband.  Instructing solicitors were present throughout the part-heard hearing and, of course, clients were in Court at all times.  The case had commenced and the wife had concluded her evidence.  The first of the witnesses to be called on behalf of the wife had also been called.

2. The matter had concluded the first day of hearing and was to commence its second day.  Out of Court discussions between the legal practitioners and the parties had occurred and this matter has resolved and I am now asked to make minutes of orders by consent.  I have read all of the material in this case, and I well and truly understand the orders sought by parties and the disputes over the pool of assets, M Investments Pty Ltd and the various other financial adjustments that would have been sought by the respective parties.

3. The effect of the order is that the available net assets of the parties and excluding M Investments Pty Ltd (“M Investments”) are to be divided close to equally.  There are perhaps some qualifications to that statement, given the minor discrepancies in the asset and composition of the available pool that Mr Sweeney has put to the Court, and Mr Glover has generally accepted that there is a quality in division, leaving aside the corporate assets.

4. I understand the corporate structure and the assets therein.  There is an agreed value of those particular assets to the wife of $658,000.  Those assets were acquired without any direct financial or otherwise contribution by the husband and wife.  The assets within M Investments were initially acquired as to the Y property in the name of the wife, as to 20 per cent, and thereafter within the corporate structure where the wife holds a share and one-fifth of another share, thus equal to 20 per cent in the property portfolio of the company.

5. The parties have agreed to leave aside the assets of M Investments, though perhaps they are incorporated within the discussions and the division of all other assets and liabilities as between them.  It is therefore not for the Court to determine how it may have dealt with the assets of M Investments.  I accept the informed arms‑length discussion of the parties with experienced counsel and solicitors in arriving at the agreement.  I also well understand that a very, very considerable sum of money has been spent on lawyers and counsel in the matter.  I make no comment upon the quantum thereof, though I have read the letters produced to the Court under Family Law Rule 19.04.

6. It was perhaps those costs and the quantum thereof, that continued the proceedings, although that is said with the qualification that there were other issues of failing to file tax returns on time, proper disclosure and understanding the true assets and liabilities of the case.  There are continuing taxation liabilities that are dealt with in the minutes.  The wife retains the right that she has as a shareholder within M Investments and on the other hand, the husband retains the business known as M Pty Ltd and the Trust, and the wife is removed from that business and trust.

7. There is an appropriate indemnity at paragraph 5 of the orders which severs any joint tenancy.  Otherwise these orders are structured on the basis that each of the husband and wife retaining that which they have, including their superannuation and other assets, and for the husband that means the P property equity.  On balance, I will give true and proper weight to the desire of the parties to settle this matter and the advice of experienced counsel.  I say no more about the pool or the division of the pool and it is therefore not necessary for the Court to ultimately deliver a judgment.

8. My obligation under the Family Law Act is to declare pursuant to section 79(2) of the Act that the orders are just and equitable.  On balance, and with some thought, but for the reasons expressed, I will make that declaration. 

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: