Catipani and Reneri

[2011] FamCA 573

FAMILY COURT OF AUSTRALIA

CATIPANI & RENERI [2011] FamCA 573

FAMILY LAW - PROPERTY

APPLICANT: Ms Catipani

RESPONDENT: Mr Reneri

INTERVENOR: Mr J Reneri

FILE NUMBER: MLC 3712 of 2008

DATE DELIVERED: 11 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 11 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Clarke

SOLICITOR FOR THE APPLICANT: Davis Zucco

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INTERVENOR: Mrs Phelan

SOLICITOR FOR THE INTERVENOR: WMB Lawyers

ORDERS

IT IS ORDERED:

1. THAT leave be granted to the legal representatives of the wife to amend paragraph 1 of her Application in a Case filed 19 May 2011 so that the restraint of monies and interest received from the sale of the property at B Street, Suburb C (“Suburb C”) is sought rather than the release to her of all such monies.

2. THAT paragraph 5 of the Orders of Watts J pronounced 23 September 2008 be discharged.

3. THAT of the monies and interest presently held in a joint investment account with the National Australia Bank…, on behalf of the husband, wife and intervenor (“the investment account”):

   (a)a sum of $205,000 be paid, on or after 12 August 2011, to the solicitors for the intervenor on behalf of the intervenor;

   (b)the balance of monies be retained in that investment account to pay or offset any taxation sum, interest, costs or penalties thereon, that might be assessed on the interest earnt and received thereon in the names of the husband and wife, but otherwise and at the conclusion of these proceedings in this Family Court any balance be then paid out to the intervenor including further interest accrued.

4. THAT the intervenor pay and indemnify and keep indemnified the husband for any capital gains tax that may be assessed, and interest, costs or penalties payable thereon, arising out of the ownership and sale of Suburb C.

5. THAT the intervenor pay and indemnify and keep indemnified the husband and wife for any sum that may be assessed as tax payable upon interest earnt and received, or interest, costs or penalties thereby incurred, by either of the husband or wife on that investment account.

6. THAT the intervenor’s Application in a Case filed 4 May 2011 be otherwise dismissed.

7. THAT the wife’s Application in a Case filed 19 May 2011 be otherwise dismissed.

8. THAT paragraph 5 of the Orders pronounced 15 June 2011 be discharged and no payment of the wife’s costs, as thereunder fixed, be now paid.

9. THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to all parties.

10. THAT a sealed copy of this Order be forthwith served by the solicitor for the intervenor upon the Proper Officer, National Australia Bank, … with a request for payment out of the sum of $205,000 to be made to the intervenor after 12 August 2011.

11. THAT all applications for costs of and incidental to the hearing this day and to all preparation for hearing be otherwise dismissed and there be no costs orders between the parties in respect of these concluded interim proceedings.

12. THAT the application of the wife pursuant to s 79 of the Family Law Act 1975, and the husband’s response thereto be listed for further case management before Young J at 10.00 a.m. on Wednesday 19 October 2011.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3712 of 2008

Ms Catipani

Applicant

And

Mr Reneri

Respondent

And

Mr J Reneri

Intervenor

REASONS FOR JUDGMENT

1. The matter of Reneri & Catipani and Anor. is listed before me for a one-day defended hearing.  Mr Clarke of Counsel appears for the wife and the husband again appears on his own behalf.  Mrs Phelan of Counsel represents the intervenor, the husband’s brother, and her instructing solicitor is in Court and has filed affidavits in the proceedings.  The matter was last before me on 15 June 2011, and on that occasion I noted with the agreement of all parties that the hearing this day – that is, 11 July 2011 – was to proceed upon the papers and there be no cross-examination of deponents. 

2. A preliminary matter has arisen.  I had ordered on that earlier occasion for a further affidavit to be filed by or on behalf of the intervenor as to the ongoing Federal Court taxation proceedings.  The purpose of that order was to inform this Court of any relevant financial or taxation matter that might impact upon the considerations before the Court and, in particular, upon the money secured in an interest-bearing investment arising from the proceeds of sale of the property at B Street, Suburb C (“Suburb C”) and the earlier orders made by Watts J on 23 September 2008. 

3. In May of this year and pursuant to affidavit filed on 4 May the intervenor had instructed his solicitor to file an affidavit which exhibited the creditor’s statutory demand for payment of debt issued by the Australian Taxation Office on 13 January 2011.  The schedule of payments required pursuant to that document identified a running balance account for payments of BAS of $131,639.  It further identified a superannuation guarantee charge assessment debt at $65,169.  In total, what was alleged was that as at that date, $196,809 was said to be owing to the Deputy Commissioner of Taxation by the company D Pty Ltd.

4. The intervenor had filed on 10 June of this year an affidavit to which his counsel has referred the Court and in particular, paragraph 31 thereof, which is in response to an affidavit of the wife, paragraph 43.  The intervenor there disclosed the negotiated payment in respected of BAS instalments in a sum of $128,640.  He said in his affidavit that he was arranging for personal finance to pay the amount and was relying on the funds retained by injunction of this Court then being released to him.  He exhibited the letter from the Deputy Commissioner of Taxation as exhibit “JR9” as proof thereof.  That letter supports the matters deposed to by the intervenor in his affidavit. 

5. Subsequently, and what was said to be in compliance with paragraph 4 of my orders on the last occasion the matter was before me, the intervenor’s solicitor has filed a further affidavit confirming payment of that sum of money to the Australian Taxation Office.  The proceedings that previously were in the Federal Court have now been adjourned until 2.15 p.m. on 11 July, coincidently on this day.  That affidavit in paragraphs 5, 6 and 7 otherwise highlights the position of the intervenor’s solicitor being that an affidavit was to be drawn to inform the Federal Court of the status of current Family Court proceedings. 

6. However it was not my intention to provide assistance to the Federal Court.  They can and will manage their own proceedings and do not need orders of this Court for documents be filed in the Federal Court.  Thus, quite clearly to my mind, the orders were directed to a updated affidavit in this Court of and related to the Federal Court taxation proceedings.

7. Mrs Phelan has instructions today and has clearly explained on behalf of the intervenor, who is in Court, that the continuing proceedings are focused upon the balance of moneys to be paid pursuant to superannuation liabilities as alleged.  It has been said in Court on instructions by Mrs Phelan that some $60,000 ‑ $70,000 is the further sum to be paid by the corporate entity pursuant to their statutory claims.  Those matters are now said to be further investigated by the Deputy Commissioner of Taxation.  That perhaps was the information that was identified and sought to be before the Court and would have saved the past hour.  Nevertheless, I am satisfied that there is no proper complaint that can be made against the affidavit filed by the intervenor’s solicitor or the intentional lack of compliance with Court orders.  It does not impinge or prejudice the wife’s evidence or material.  It is an accepted fact that the $128,000 taxation sum has been paid by the intervenor.

8. I raised with both Counsel the opportunity of requesting the intervenor to give oral evidence and be cross-examined on the source of funds, how and when they were paid and his personal circumstances, but only if directly related to matters in dispute between the husband and wife for liability for that taxation payment and the source thereof.  That would have been somewhat contrary to my earlier direction made last month for there to be no cross-examination, but the approach of both Counsel and of the husband is that the intervenor is not sought to be cross-examined.  The information is not to be further explored in this Court, and it is said that there is sufficient material in the affidavits filed by both parties as represented and by the husband personally to enable the Court to deal properly, fairly and accurately with the information before the Court today.  On that basis I will not have the intervenor give evidence.  I will not have cross-examination on those matters.

9. I have taken the opportunity in these brief ex tempore reasons to lay out the basis of what the Court has been told of the Federal Court proceedings, more particularly of the moneys owing to the Deputy Commissioner of Taxation.  The BAS payments have been negotiated and paid, and the ongoing negotiation and dispute is as to superannuation-related assessments and surcharges which are yet to be paid by the company and/or the intervenor.  Those matters I am now advised will be further adjourned by the Federal Court from this day for two weeks to enable negotiations and calculations to be undertaken. 

10. That therefore leaves alive in this Court a number of issues on this defended interim application, including the manner in which the invested moneys are dealt with or released to one or other parties or any consequential orders flowing therefrom.  They are the matters to which I will now hear evidence on the papers and submissions from counsel.

RECORDED:  NOT TRANSCRIBED

1. The proceedings that have occupied the Court this day primarily relate to the balance of moneys and interest in an interest-bearing account with the National Australia Bank lodged in the joint names of the husband, the wife and the intervenor.  The intervenor’s then solicitors organised that lodgment, and the moneys have been held since approximately late 2007 in that account.  The application of the intervenor this day is contained within his application in a case filed 4 May 2011.  He seeks an order that the current court restraint on the dispersal of those moneys be lifted and that all moneys and interests therein be paid to him.  These moneys arise from the sale of Suburb C, which was then registered in the joint names of the intervenor and the husband.  The wife has lodged a caveat on that title.

2. If it is that orders are made largely in accordance with paragraphs 1 and 2 of the intervenor’s application, it would make somewhat redundant the requirement for an undertaking as to damages to be given by the husband and wife.  Otherwise, the intervenor has a costs application before the Court dependent upon his successful outcome of his application.  That application is supported by a financial statement of the intervenor filed 10 June 2011 together with a substantial affidavit and annexures filed that same day.  Additionally, there are two affidavits of the solicitor acting for the intervenor filed 4 May 2011 and 7 July 2011 which I have read and evaluated.

3. A notice to admit facts was also filed on behalf of the intervenor on 12 April 2011 and that document has been identified in the proceedings before the Court.  The notice to admit facts was responded to by an affidavit sworn by the wife’s solicitor on instructions and filed 21 April 2011.  Likewise, that document has been read and evaluated by the Court.  The wife’s application in a case was filed 19 May 2011.  As to the invested funds, she then sought an order that they be released to her.  Subsequently, and in an oral application made during the proceedings this day, her Counsel has sought to vary that order so that no moneys are released to the wife but all moneys are held and restrained within that joint investment account pending further order of the Court.  There was no objection by or on behalf of the husband or the intervenor to that oral application varying the orders sought by the wife and leave was thereby granted to counsel for the wife to conduct her final submission on the basis of the retention of all invested moneys.

4. Otherwise, in her application, the wife sought orders that are seemingly final property orders pursuant to section 79 of the Family Law Act 1975 in that she sought to retain the property in which she currently resides at E Street, Suburb C, free of all encumbrances and otherwise a further equitable division of assets, presumably as between herself and her husband, and as determined by the Court. In support of her orders sought, as they were drafted and as they have been varied by the application of her counsel this day, the wife filed two substantial affidavits. The first of those was filed 19 May 2011, and the subsequent affidavit was filed on 1 July 2011. Each of those affidavits have annexed thereto substantial documents, some of which have been identified and referred to in the proceedings before the Court this day.

5. The background to the application is that there is an earlier court order pronounced 23 September 2008 by Watts J.  The relevant parts (in summary) of those orders are that:

   §the wife be permitted to reside in the former matrimonial home situate at E Street, Suburb C;

   §the husband pay to the wife $600 per week by way of interim spousal maintenance;

   §the husband be and is hereby restrained from dispersing or causing any other person to disperse his share of the proceeds of sale of the property situate at B Street, Suburb C pending final property division between the parties or further order of the Court;

   §the husband pay all mortgage instalments in relation to the E Street unit as and when they fall due, including any arrears.

6. His Honour provided various notations or further orders, but the primary order the subject of challenge by the intervenor’s application is the restraint imposed upon the husband from dispersing or causing any other person to handle and allocate the moneys and interest arising from the settlement of the sale of Suburb C.  The husband himself has no application before the Court for interim orders.  He has, however, filed an affidavit on 9 June 2011, and I have read that affidavit and evaluated matters of relevance to the interim application contained therein.

7. I have earlier this day delivered brief ex tempore reasons in relation to the failure to file an affidavit as was previously ordered on 15 June 2011, and I do not further deal with that matter, and there are no orders made as a consequence thereof. 

8. In his affidavit filed 10 June 2011, the intervenor has, in quite considerable detail, set out the purchase history and funding of the property at Suburb C.  There are various annexures to that affidavit that largely, I find, support his affidavit in that regard.  I record, therefore, that I have carefully read and evaluated that affidavit as to paragraphs 3 – 23 inclusive, and largely I am accepting of the evidence of the intervenor.  I will in the course of these ex tempore reasons for judgment not repeat all of the facts and matters of and related to that purchase and subsequent sale.

9. In summary the intervenor asserts the property was purchased in or about December of 2001 and with assistance from another brother, who paid the deposit of $43,000.  It is said those moneys are still owing to that brother, Mr F Reneri.  If so, that debt is the sole responsibility of the intervenor and not of the husband or wife.  The settlement of the property, when it finally occurred, registered the property in the name of the intervenor and the husband, but on all of the material before the Court and the financial documents, I am comfortable in ascertaining that it was the intervenor who acquired funds or serviced borrowings with no direct financial input by or on behalf of the husband.  I am accepting of paragraph 12 of that affidavit and the moneys payable at settlement.  I am accepting of the evidence of the finance through RAMS Home Loan. 

10. It is a fact that the husband and wife were guarantors by way of a bridging loan taken on their home.  They did assist the intervenor in obtaining the loan, but as best I can read and understand the evidence and having careful regard to the wife’s affidavit, there was no identified financial input from or on her behalf to this particular property.

11. I am aware of the adjoining property and its ownership and what was said to be the reason to acquire B Street, Suburb C.  It is unnecessary for me to make any particular finding in that regard.  It would appear from the balance of evidence that the intervenor expended money on the subject property throughout its ownership and paid the mortgage.  I record that the subject property was rented at arm’s length, and thus there was rental income to assist with the mortgage repayment.  The property was sold in September of 2007.  The net proceeds of sale were $375,000 approximately, and 50 per cent thereof was then paid out to the intervenor pursuant to his one-half joint ownership of the property.  He then received $187,600 approximately.  The balance of the moneys on sale were invested, as the parties could not agree upon the division and allocation of those moneys.

12. I have been referred to the then correspondence and settlement sheets that are annexed to the wife’s affidavit filed 1 July 2011.  They comprise the letter dated 31 October 2007 and the settlement statements of this and the adjoining property.  I concern myself only with the subject property at Suburb C.  First I observed that Hall & Thompson were the intervenor’s solicitors.  Moneys were paid to them to be invested in the interest-bearing account and that was established with National Australia Bank.  Those moneys have been then invested and then restrained pursuant to the order of Watts J.  The moneys remain in that account to this day.  The original invested sum was $187,600 or thereabouts, and the Court is advised, and it is a matter of consent between parties, that the current balance including all accrued interest is $222,000 or thereabouts.

13. There are two significant financial observations to be made about the sale of the subject property and the investment of moneys therefrom.  The first is that the subject property was an investment property and therefore subject to capital gains tax.  It is a matter of agreement between the intervenor and the husband that there has been no calculation of capital gains tax and, more significantly, no payment of tax as a result of the profits made on the sale of that income-earning investment property.  The husband has volunteered to the Court that his accountant, who is also another of his brothers, has recently received correspondence from the Australian Taxation Office.  They must have on their radar the sale of this property and the capital profit made thereon, which has and remains unaccounted for in terms of tax payable.  There are few, if any, documents before the Court on this particular issue, but clearly, no provision was made on the settlement statement and arising on the sale of the subject property for proper tax to then be paid.  Any such tax payable would now incur interest costs and likely penalties as and from the October 2007 settlement date.

14. The other matter is that from the date of the establishment of the investment account, interest has been earned, and no party, the husband, the wife nor the intervenor, have accounted in any taxation returns for any part or whole of the interest earned.  That interest is approximately $35,000 from the date of the opening of the investment account, and subject to all other facts and assessments of income, tax would likely be paid in some amount by one or other of the individuals.  I am not able to assess such tax and know only that the names of each of the three parties are on that account, though, in answer to my question asked of all legal representatives and the husband, seemingly no one directly provided their tax file number.  Both the husband and the intervenor implied that it was their bank and they would have the tax file number and presumed that it may have been applied.

1. The payment of appropriate taxation on interest earned is made more complicated by the failure of all parties to file personal and corporate tax returns over the last few years.  I have not been provided with any up to date information from the intervenor as to that matter but certainly the husband has not filed tax returns for a lengthy period, his concern being that the further lodgement of taxation returns and the subsequent investigation thereof by the Deputy Commissioner of Taxation would crystalise further taxation debts and significant liabilities and create more onerous and pressing immediate issues for himself and his wife.  I make no findings on those issues on the material now before me.

2. What must occur is that the interest income on the investment account be declared by the recipient of the principal sum and accrued interest, proper disclosure be made by the filing of amended or further taxation returns and proper interest be calculated and paid.  That is a matter of primary responsibility for the accountants and solicitors of each of these parties and the intervenor and of the intervenor personally.

3. The total investment monies are approximately $222,000, inclusive of interest accrued over the past four years or thereabouts.

4. An issue is therefore whether any moneys should be preserved from that account to financially protect the husband or the wife, if indeed moneys are found properly to be payable out to the intervenor. The wife’s overall position is to be highly suspicious of the financial dealings of the various Reneri brothers and their business activities and enterprises. She would believe that the subject properties were part of the wider business concerns of the brothers and therefore the husband should have a significant interest in the subject property which should be brought to account in the pool of assets as part of the section 79 proceedings before the Court. On the material before me, that outcome cannot be substantiated.

5. I have carefully read the evidence of the wife.  It is said by her in reliance on paragraphs 23 and 60 of her affidavit filed 1 July 2011 that she did or otherwise that she may have made some financial contribution to the acquisition of the property at Suburb C.  In paragraph 20, she identified an exhibit which is a bank cheque for $10,000 to RAMS Home Loan, and she says that money came from her account.  Leaving aside the particular exhibit and the misspelling of RAMS as “RAMMS”, it nevertheless does not show the individual withdrawal of that $10,000.  Mr Clarke, appearing as Counsel for the wife, highlighted a withdrawal of $25,000 on 22 April 2004 and a subsequent payment of $15,000 to a corporate entity of or associated with one of the hotels or extended businesses of the Reneri brothers.  I have sighted those documents within exhibit “GC7” of the wife’s affidavit.  They are substantially inconclusive and do not necessarily prove, in any way whatsoever, that asserted to by the wife.

6. In paragraph 60 of that affidavit, the wife reinforces that annexure and identifies a further sum of $50,000 that came from her account on 30 September 2004.  She acknowledges that those moneys were paid by bank cheque to the G Hotel, but she endeavours to incorporate the earlier payment of $25,000 made up by a $10,000 and $15,000 payment within the umbrella of moneys paid out from her account to the interests of the husband.  That cannot be supported, and in any event, the wife concludes paragraph 60 of her affidavit with the following:

   I believe that these moneys were used for the payment of mortgages associated with the businesses.

7. Ultimately, I cannot conclude that the wife has presented any evidence to show contribution to the acquisition or retention of the subject property in Suburb C.  Those paragraphs and her exhibits do not support that outcome.  One of the issues that the wife’s counsel has highlighted in these proceedings is the lack of financial disclosure and information made by the husband and perhaps, to a much lesser extent, by the intervenor, who is not the subject of certain of the orders that have previously been made in this Court and directed to the husband.  I have no doubt that there is a complex, somewhat intriguing and very convoluted business and financial structure behind the past business activities of the husband and others.  They involve hotels, gaming machines and commercial ventures.  But ultimately, it may be there are now significant liabilities and very significant but as yet not quantified taxation liabilities.

8. What other assets the husband may own or control, leaving aside the E Street, Suburb C unit property are seemingly unknown to the wife.  I make no findings in that regard, and these are interim proceedings not directed to final property proceedings.  The husband maintains through his financial statement that he is unemployed, a former publican with little or no income and no ability to pay spousal maintenance on an interim basis as ordered.  He has a somewhat casual relationship with the only child of the marriage and sees her spasmodically by arrangement and not by court order. 

9. I am yet to understand that there has been any compliance by the husband with his obligations to pay tax and more particularly to file tax returns personally or of the various corporate entities.  Seemingly the bottom line of his submission is that if and when filed, his returns will crystallise the tax liability and lead to an assessment and to judgment and, perhaps inevitably, the sale of the E Street, Suburb C home.  That may or may not be his intention, but it is not the matter before the Court today.  Otherwise, the financial circumstances and lifestyle of the husband are and remain somewhat of a mystery to the Court and perhaps even to the wife. 

10. I return to the subject matter of the application immediately before the Court.  The intervenor has various taxation assessments and liabilities of his own.  His matter is listed in the Federal Court this day and has been or will be rolled over for a further two-week period.  My general understanding is that he has various taxation assessments of and related to non-payment of BAS or related tax and separately non-payment of superannuation assessments.  The BAS tax is approximately $187,000, and that has been paid by personal borrowings, and the intervenor explains that matter in his affidavit.  Otherwise, he seemingly remains in dispute with the Australian Taxation Office for a sum of up to $70,000 by way of superannuation payments outstanding.

11. At the heart of the application of the intervenor is that he said he urgently needs the invested moneys released to him to repay his personal borrowings, to satisfy his financial obligations and to put him in a position to pay or negotiate with the Australian Taxation Office over his superannuation liabilities.  As he is an intervenor the Court has limited knowledge of his filing of taxation returns or his wider financial business and structure.  I deal with the applications before the Court today on the basis of the evidence, the intervenor’s contribution and financial responsibility to the subject property at Suburb C, and what is a just and proper outcome on that interim application.  I have carefully read the notice to admit as drafted by the intervenor’s solicitor and the various questions asked therein.

12. The answers contained in the affidavit of the wife’s solicitors somewhat dance around the central issue, do not properly contest and otherwise can be seen to partially admit the various property and financial contributions of the intervenor.  To the extent that the wife’s answer incorporates references to paragraphs 23 and 60 of her most recent affidavit, I do not accept the relationship of those withdrawals to the matters in issue now before me.  Mrs Phelan appears as counsel for the intervenor and has taken me to exhibit “JR6” of the affidavit of her client filed 10 June 2011 and, on face value, they show the deposit of salary and the payment of the RAMS mortgage over a substantial period as identified in the documents.  They do not show the rental income from tenants, but nevertheless, they establish through that ANZ Bank account of various mortgage payments for that selective period of 2006.  The accompanying documents thereafter highlight the actual balance and contributions made by way of reduction of that mortgage, including its eventual discharge on settlement in or about October of 2007.

13. In summary, and as these are ex tempore reasons for judgment, I am satisfied that the subject property at B Street, Suburb C was primarily acquired by the intervenor for himself but with the assistance of the husband and wife.  Their assistance was not financial.  They have no direct right to benefit from the proceeds of sale.  Likewise, I would be of the preliminary view that the husband and wife should have no exposure to capital gains tax on the sale of that property. 

14. The wife’s application made orally this day is that the investment bank account be maintained but no moneys be released, that interest continue to accrue in the account and the intervenor simply go without any money and let him manage his own debts, borrow more money and meet the financial consequences thereof.  On the evidence before me, that is unrealistic and I have decided will not occur.

15. I raised with all parties through their counsel or the husband the issue of the interest income on that account earlier.  Seemingly, none of them have had a second thought about the interest and tax thereon, if applicable.  That will, of course, depend upon the financial circumstances of each individual, but it should be that the intervenor be ultimately responsible for interest on the account.  What I propose to do, however, is to set aside and have retained a modest sum in that account in the eventuality of any interest tax being assessed as against the husband or wife.  It is prudent to protect the wife’s financial circumstances in that regard, as she is clearly not protected financially in this regard by the other two co-investors.

16. The majority of the moneys in the account should be released to the intervenor.  I am satisfied of his financial contribution, of his efforts with the property, of the exclusion of the husband and wife therefrom and in all of the circumstances on the evidence presented before me, with all parties having had a long period to present any other matter of fact, that I conclude to be a just and proper outcome.

17. What I intend is to direct $205,000 to be paid out to the intervenor but not until 30 days have elapsed from the delivery of these reasons for judgment.  The balance of moneys, which is approximately $17,000, can there remain in that account pending further order of the Court.  It follows that if the intervenor receives the money, he is responsible for the capital gains tax, the disclosure of the capital gains tax and the payment of the capital gains tax, if any, on that subject property.  Likewise, and subject to any assessment, he must disclose the interest income, and the eventual option may be for the balance of the moneys that I have retained, some $17,000, to be paid in discharge of any taxation assessment on interest.  To be abundantly clear and direct I do not intend the husband or wife will have any moneys of the investment account in its total sum of $222,000 approximately, save they must be protected on taxation exposure.  That is the bottom line effect of what I intend by my orders.

18. As to the question of past costs reserved and any costs of this day, I will deal with those matters within the context of any submission now made or any source of moneys available to pay costs if that be a just outcome.  It would be particularly useful to all of these parties if they, with their accountant brother or others of their choosing, moved to discuss with the Australian Taxation Office all outstanding matters, brought up to date their taxation returns, dealt with assessments, disclosed financial information and had resolved all issues outstanding. 

19. I had reflected upon directing a copy of these ex tempore reasons for judgment being served upon the Australian Taxation Office.  On balance, I think that would be an unwarranted action of the Court at this stage, because all parties, including the intervenor and the husband, have their own obligations to make proper disclosure, and that is a matter which the Australian Taxation Office should follow up on its own timetable.

20. For those reasons delivered ex tempore, I will make orders in accordance with that judgment, but before doing so and on the basis that it is clearly understood of the orders I will make, I will ask each of the parties whether there are any applications that arise.

I certify that the preceding Forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 11 July 2011.

Associate: 

Date: