Bennison and Bennison (No. 2)

[2013] FamCA 247

FAMILY COURT OF AUSTRALIA

BENNISON & BENNISON (NO. 2) [2013] FamCA 247

FAMILY LAW – PROPERTY – Interim orders for the sale of property

Family Law Act 1975 (Cth)

APPLICANT: Mr Bennison

RESPONDENT: Ms Bennison

FILE NUMBER: BRC 338 of 2011

DATE DELIVERED: 17 April 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 19, 20 and 21 March and 5 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hackett

SOLICITOR FOR THE APPLICANT: Hirst & Co

COUNSEL FOR THE RESPONDENT: Mr Wilson SC

SOLICITOR FOR THE RESPONDENT: Murdoch Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER

The Bennison Superannuation Fund

Bank Account

1. That the Husband and Wife as the joint trustees of the Bennison Superannuation Fund, forthwith upon the making of these orders:

   (1.1)Open a joint bank account for the Bennison Superannuation Fund to be operated only with joint signatures (‘the Bennison Superannuation Fund bank account’);

   (1.2)Cause all funds held in the Westpac account BSB … Number …19 as at 4 March 2013 to be transferred into the account opened per order 1.1;

   (1.3)Cause the Westpac account BSB … Number …19 to be closed.

2. That the Husband provide to the Wife a statement of the Westpac account BSB … Number …19 from 4 March 2013 to the date that the account is closed, such statement to include the closing balance.

3. That the Husband and Wife cause the Bennison Superannuation Fund to pay the rates, land tax and any other outgoings for the property at V Street, W Suburb from the Bennison Superannuation Fund bank account as and when they fall due.

4. The Husband and Wife are restrained by injunction from withdrawing any funds from the Bennison Superannuation Fund bank account other than for the purpose of paying items in order 3, 5.10 and 5.12 (as agreed), and the rollout and payment of any taxes and outgoings contemplated in orders 6.3, 6.4 and 7.1, without the other party’s prior written consent.

Sale of V Street, W Suburb

1. That the Husband and Wife as the joint trustees and custodian trustees of the Bennison Superannuation Fund  and in their personal capacities forthwith cause the property at V Street, W Suburb in the State of Queensland (“the W Suburb property”) to be sold by auction as follows:

   (5.1)That within 7 days of these orders, the Husband and Wife shall do all acts and things and sign all necessary documents to list the W Suburb property for sale by auction with such real estate agent as may be agreed between the parties and failing agreement, the Wife shall provide to the Husband a panel of three commercial real estate agents registered with the REIQ for his nomination within 7 days, failing the Husband’s nomination the agent shall be appointed by the wife (‘the nominated agent’);

   (5.2)The parties shall sign an exclusive listing form with the nominated agent within 7 days of the agent’s appointment, with a copy of these orders to be annexed to the listing form;

   (5.3)That within 7 days of the parties signing an exclusive listing form with the nominated agent, they shall appoint an auctioneer independent to the real estate agency with whom the parties have listed the W Suburb property, such auctioneer to be as agreed between the parties and failing agreement, the Wife shall provide to the Husband a panel of three independent auctioneers for his nomination within 7 days, failing the Husband’s nomination the auctioneer shall be appointed by the Wife;

   (5.4)The parties cooperate with the nominated agent and auctioneer;

   (5.5)The parties communicate with the agent and auctioneer in writing only (unless otherwise agreed or in circumstances where both the Husband and Wife are present in person), and contemporaneously provide all such communication to the other party;

   (5.6)The parties do and say nothing to hinder or prevent a sale being effected;

   (5.7)The parties only communicate with the tenant of the W Suburb property jointly in writing (save for notice to be given for inspections) and do and say nothing to the tenant to hinder or prevent a sale being effected;

   (5.8)The auction date and venue shall be set by the nominated agent in conjunction with the auctioneer;

   (5.9)The nominated agent is authorised and the Husband and Wife permit the nominated agent to undertake an advertising campaign for the W Suburb property at a cost of no less than $10,000 with such advertising campaign to include but not be limited to:

   (5.9.1)A listing on realestate.com.au and such other internet site/s as may be recommended by the nominated agent for a commercial property of this nature;

   (5.9.2)Prominent weekly advertisements in local newspapers, including The Courier Mail;

   (5.9.3)Premium ‘for sale’ display board/s printed and erected at the W Suburb property with a detailed description of the property and auction date;

   (5.9.4)Such other advertising methods as may be recommended by the nominated agent.

   (5.10)The parties shall cause the nominated agent to be paid from the Bennison Superannuation Fund bank account all sums requested by the nominated agent for advertising or auction expenses as and when they fall due.

   (5.11)The parties:

   (5.11.1)Allow inspection of the W Suburb property on no less than two occasions per week during business hours (and upon the nominated agent giving the parties and the tenant 24 hours’ notice of such inspection); and

   (5.11.2)Make the key/s readily available to the nominated agent or auctioneer; and

   (5.11.3)Ensure that the W Suburb property including the grounds is clean, neat and in good order and repair at the time of any inspection and on the day of auction.

   (5.12)The Husband and Wife make any and all repairs, maintenance or improvements to the properties only as agreed, with such costs to be paid from the Bennison Superannuation Fund bank account (as defined).

   (5.13)The reserve price of the W Suburb property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer having regard to the valuations obtained by Husband and Wife in the Family Court proceedings from X valuers dated 8 March 2013 and Y Associates dated March 2013, without further instruction or direction to be given to the auctioneer by either party save that the parties will cause the said valuations to be provided to the auctioneer.

   (5.14)Either party may buy the W Suburb property at a price agreed between them at any time prior to sale.

   (5.15)The parties will not accept a bid for the W Suburb property unless the bidder has registered their name and address (by the nominated agent having cited the bidder’s driver’s license) with the nominated agent or auctioneer;

   (5.16)The contract of sale must:

   (5.16.1)Provide for completion at least 30 days after the date of the contract or any other time period as agreed by the parties;

   (5.16.2)List a solicitor to act on the conveyance of the property, such solicitor to be as agreed between the parties and failing agreement, the Wife shall provide the Husband with a panel of 3 solicitors for the husband’s nomination within 7 days, failing the Husband’s nomination the solicitor shall be appointed by the Wife.

   (5.17)The Husband and Wife will only communicate and provide instructions to the solicitor appointed pursuant to order 5.16 in writing, with all communication to be provided contemporaneously to the other party.

   (5.18)The Husband and Wife provide to the solicitor appointed pursuant to order 5.16 a copy of these orders.

   (5.19)The proceeds of sale of the W Suburb property shall be paid in the following manner and priority:

   (5.19.1)Payment of the agent’s commission and advertising or other expenses, if any, payable on the sale;

   (5.19.2)Payment of the legal costs and outlays relating to the sale;

   (5.19.3)The balance to be paid to the Bennison Superannuation Fund bank account (as defined in order 1).

   (5.20)The parties have liberty to apply to the Court with respect to the terms, conditions and costs of the sale or in the event that the W Suburb property does not sell at auction.

Roll out, separation and cessation of joint membership

1. That following settlement of the sale of the W Suburb property pursuant to order 5, at which time the Bennison Superannuation Fund will hold the proceeds from that sale, the Husband and Wife as the joint trustees and custodian trustees of the Bennison Superannuation Fund and in their personal capacities will jointly do all things and sign all documents necessary to:

   (6.1)Instruct Z Accountants to prepare an updated balance sheet for the Bennison Superannuation Fund to determine the member balances for each of the Husband and Wife, and to calculate the outstanding and anticipated liabilities, taxes and costs, if any, of the Bennison Superannuation Fund;

   (6.2)Set aside an amount representing the outstanding and anticipated liabilities, taxes and costs, if any, of the Bennison Superannuation Fund;

   (6.3)Cause the Wife’s membership entitlement from the Bennison Superannuation Fund to be rolled out to her separate account, in another complying superannuation fund nominated by her;

   (6.4)Following that setting aside of funds and roll out of the Wife’s entitlement, cause the balance of the assets in the Bennison Superannuation Fund representing the Husband’s membership entitlement, to be rolled out from that Fund to another complying superannuation fund nominated by him.

Separation and cessation of joint responsibilities, obligations and liabilities

1. That following the roll out of their membership interests in the Bennison Superannuation Fund, the Husband and Wife will do all things and sign all documents necessary to:

   (7.1)Cause the Bennison Superannuation Fund to pay all of its outstanding and anticipated liabilities, taxes and costs; and

   (7.2)Cause the Bennison Superannuation Fund to be wound up.

2. That for the purpose of orders 6 and 7, the Husband and Wife are to jointly instruct the accountant for the Bennison Superannuation Fund, X Accountants, in writing only and neither party shall unilaterally communicate with the accountant for the fund in respect of the implementation of these orders without the consent in writing of the other party.

Pending Final Determination

1. The Wife is restrained by injunction from drawing on her superannuation entitlement rolled out of the Bennison Superannuation Fund pursuant to order 6.3 until further order of the court or with the written consent of the Husband.

IT IS NOTED

That the Husband and Wife:

(a)are the joint trustees of the Bennison Superannuation Fund, a self managed superannuation fund regulated by the Commonwealth Superannuation Industry (Supervision) Act (1993) (“the SIS Act”);

(b)in their capacity as joint trustees of the Bennison Superannuation Fund, have acquired and hold jointly a one third interest in property located at V Street, W Suburb in the State of Queensland (“the W Suburb property”);

(c)also in their capacity as trustees, both hold a separate one third interest in the W Suburb property in their individual names, in each case as custodian trustee for the Bennison Superannuation Fund;

(d)in their capacity as joint trustees and custodian trustees of the Bennison Superannuation Fund, are charged with joint responsibilities, and have incurred obligations and liabilities jointly;

(e)wish to separate their existing and future responsibilities, obligations and liabilities, both as joint trustees and as custodian trustees, of the Bennison Superannuation Fund;

(f)wish for the wife to cease to be a joint trustee and to cease to be a member of the Bennison Superannuation Fund;

(g)are the only members of the Bennison Superannuation Fund;

(h)in their capacity as members, have each accrued significant entitlements in the Bennison Superannuation Fund;

(i)wish to separate their existing and future entitlements and participation as joint members of the Bennison Superannuation Fund;

(j)wish to realise and convert sufficient assets of the Bennison Superannuation Fund in order to facilitate this separation and cessation, in particular to allow the roll out of the Wife’s entitlement as a member out of the Bennison Superannuation Fund into a fund that is separate from the Husband, after which the Wife will retire and cease to act as joint trustee and as custodian trustee;

(k)acknowledge that the W Suburb property is the only asset of the Bennison Superannuation Fund that, on its realization, would raise sufficient liquid funds to permit that roll out, separation and cessation to be effected;

(l)intend that such roll out, separation and cessation at all times be effected in compliance with the requirements imposed by the SIS Act; and

(m)intend to effect that rollout, separation and cessation by paragraphs 1 to 9 of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bennison & Bennison (No. 2) 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 BRISBANE

FILE NUMBER: BRC 338  of 2011

Mr Bennison

Applicant

And

Ms Bennison

Respondent

REASONS FOR JUDGMENT

1. At the outset of the trial of the property adjustment proceedings between the parties pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) an issue foreshadowed was a dispute between the parties as to the proper value of their self-managed superannuation fund known as The Bennison Superannuation Fund.

2. More particularly, the issue centred upon the proper value of the asset of that fund being the real property situate at V Street W Suburb (“the W Suburb property”).

3. For the purpose of the trial a single expert valuer appointed for the purpose, Mr BB of X valuers, had provided a valuation of the W Suburb property at $2.9 million. The Husband had obtained a valuation of the W Suburb property from Mr AA of Y Associates placing its value at $2.2 million. It was foreshadowed that the Husband would seek leave to rely upon the evidence of Mr AA if the value of the W Suburb property remained in issue and was to be determined as part of the overall determination of the substantive s 79 proceedings.

4. However, by the conclusion of the trial both parties had adopted the position that the W Suburb property would have to be sold to enable the parties’ interests in the Bennison Superannuation Fund to be divided or realised and it would therefore not be necessary for the Court to determine any valuation issue in respect of the W Suburb property.

5. Pending delivery of final orders and reasons both parties sought that orders be made providing for the sale of the W Suburb property to be effected.

6. The parties were able to agree upon the orders they sought to have made to effect sale save in two main respects. First, the Husband sought the ability to be at liberty to bid at the public auction proposed for the W Suburb property. Second, the Husband ultimately sought that there be no reserve price set for the purpose of the auction. Both of these proposals were opposed by the Wife. She sought that neither party be able to bid at the auction and she also sought orders to include mechanisms for a reserve price to be set either by agreement by the parties or, failing agreement, by the nominated auctioneer having regard to the expert valuations earlier referred to.

7. At the time of final submissions when the parties, via their respective Counsel, argued these respective propositions, I intimated my inclination to accede to the Husband’s propositions on both of the points in issue. On that basis it was agreed that the parties would jointly submit a form of orders reflecting their agreement of the machinery otherwise and also what I had intimated was my intention to order as to the two points in issue referred to.

8. Subsequently the parties provided via my associate a set of orders said to be “agreed” by them, I assume meaning the agreed form of orders reflecting my intimation on the points in issue as well as their agreement otherwise.

9. However, I note that whilst the form of orders submitted enables (as per 5.14) either party to buy the W Suburb property at a price agreed between them “at any time prior to sale” there is no specific provision enabling either party to bid at auction.

10. I assume the parties have determined it unnecessary to include a specific order permitting either of them to place bids at the proposed public auction. I remain of the view, as intimated when the point was argued, that both parties or either of them ought be at liberty to bid at auction. It seems to me that competition from whatever source maximises a sale being effected at the highest available price and on that basis it seems to me appropriate that either party be at liberty to bid at the auction. I adopt the approach, apparently taken by the parties, that it is unnecessary to make a specific order permitting this absent any injunction restraining either party in this respect.

11. So far as the reserve price is concerned, upon reflection and taking into account the ability of either party to bid to purchase the property I am of the view that it is appropriate for a reserve price to be set. It is in the interests of both parties that the price achieved from sale be maximised. It seems to me there is a potential conflict created if there is no reserve set but moreover the obvious concern is that with no reserve price set a sale might take place of this significant asset at or below what might be described as a bargain basement price.

12. I have therefore determined to make an order in the terms sought by the Wife concerning the setting of a reserve price for the public auction.

13. The proposed orders contain a liberty to apply provision for further orders in respect of the sale if the proposed auction is not successful so that the concerns expressed on behalf of the Husband that an auction may not even achieve the lower of the valuations obtained as referred to above can be dealt with by way of further orders once an auction has taken place and there is evidence available to determine any appropriate further orders to effect the sale of the W Suburb property.

14. I therefore Order in terms of the Orders set out at the commencement of these reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 17 April 2013.

Associate:

Date:  17 April 2013