Catlin and Catlin
[2017] FamCA 818
•13 October 2017
FAMILY COURT OF AUSTRALIA
| CATLIN & CATLIN | [2017] FamCA 818 |
| FAMILY LAW – PROPERTY – Final orders – Spousal maintenance – Where wife seeks payment of spousal maintenance pursuant to a binding financial agreement – Where husband claims set offs – Consideration of whether there is a set off – Where partial set offs allowed in respect of the children’s health insurance and conveyancing costs – Where set offs not allowed in respect of a swimming pool fence and speculative audit fees – Where wife further claims monies in respect of outgoings relating to the former home paid by her – Where it is appropriate for the Court to enforce interest on spousal maintenance arrears – Where Court adjusts the amount of spousal maintenance payable to the wife – Where an order is made for the husband to pay spousal maintenance to the wife – Application upheld. |
| Child Support (Assessment) Act 1989 (Cth) ss 116, 123 | |
| Barrington & Downton [2015] FamCA 426 | |
| APPLICANT: | Ms Catlin |
| RESPONDENT: | Mr Catlin |
| FILE NUMBER: | ADC | 748 | of | 2014 |
| DATE DELIVERED: | 13 October 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 21 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Tinning of counsel |
| SOLICITOR FOR THE APPLICANT: | Tindall Gask Bentley |
| COUNSEL FOR THE RESPONDENT: | Mr Ower SC |
| SOLICITOR FOR THE RESPONDENT: | 1878 Elix Lawyers |
Orders
That the husband do pay to the wife within twenty eight (28) days the sum of EIGHTEEN THOUSAND SIX HUNDRED AND THIRTY DOLLARS AND SIXTY TWO CENTS ($18,630.62).
That the husband be restrained and an injunction granted restraining him from pursuing any litigation in respect of the cost of the pool fence erected by him in the sum of THIRTEEN THOUSAND SEVEN HUNDRED AND FIFTY DOLLARS ($13,750).
That all proceedings do stand dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Catlin & Catlin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 748 of 2014
| Ms Catlin |
Applicant
And
| Mr Catlin |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Amended Application in a Case filed 10 July 2017 Ms Catlin (“the wife”) seeks to enforce the provisions of a binding financial agreement (BFA) executed by the parties on 22 July 2016. On 5 June 2017 the wife issued a third party debt notice to B Pty Ltd (“the husband’s employer”) seeking that they pay to the wife the sum of $18,018.66 inclusive of interest and costs of the application for enforcement warrant or such lesser sum as may be owed to the husband.
By Response filed 5 July 2017 Mr Catlin (“the husband”) sought orders that the third party debt notice be either discharged or the operation of the notice suspended until further order.
Background
The parties were married in 1994 and separated on 12 April 2013. A divorce order was granted on 11 April 2015.
There are three children of the marriage namely C born in 2002, D born in 2005 and E born in 2006 (“the children”).
Following their separation the parties entered into negotiations with the assistance of their separate legal representatives which resulted in the parties agreeing to settle all outstanding financial issues between the parties in respect of division of property, spousal maintenance and an assessment in respect of child support.
The parties entered into a s 90D financial agreement on 20 July 2016 which has the effect of settling and discharging all claims that either party has against the other for spousal maintenance.
On 22 July 2016 and following the execution of the BFA the parties made orders by consent in full and final settlement of all claims between them for settlement of property, parenting orders and child support by way of periodic payments pursuant to s 116 Child Support (Assessment) Act 1989 (Cth) and non-periodic child support pursuant to s 123 of the said act.
Property orders
Central to the dispute is the transfer of the wife’s interest in property at F Street, Suburb G (“the Suburb G property”) to the husband and the transfer to the wife of the interest held by H Pty Ltd in a marina berth at Suburb J.
The parties also agreed that there should be a superannuation split such that K Pty Ltd being the trustee of the Catlin Superannuation Fund do pay to the wife a lump sum using a base amount of $130,623 plus 6 per cent interest to be calculated form 18 November 2015 to the rollover date on or about 30 June 2018 less the amount of the wife’s member entitlements as at that date. Upon the wife receiving a transfer of her superannuation entitlement she shall resign as trustee of the fund and if necessary as director of K Pty Ltd and transfer all of her shares to the husband. The detail of the orders to give effect to the transfer of the Suburb G property are as follows:-
[9]That subject to the payment of monies to give effect to paragraphs 8.2 and 8.4 and the transfer of the marina in paragraph 14 on the settlement date, the wife shall transfer to the husband all her estate and interest both at law and in equity in the whole of the land and premises situate at [F Street, Suburb G] in the state of South Australia (here and after referred to as “the [Suburb G] property”);
[10]That it be a condition of the transfer referred to in order 9 herein that the husband shall on or before the settlement date at the husband’s expense in all things have obtained for the wife a full and complete release from any financial accommodation and/or loans secured by Memorandum of Mortgage registered over the said [Suburb G] property and any personal guarantee of the wife in respect of the financial accommodation, loan and/or mortgage and in any event thereafter fully indemnify the wife in relation to all liabilities relating to same;
[11]That on the settlement date, the wife shall vacate the [Suburb G] property;
[12]That the wife shall provide access to the [Suburb G] property at all reasonable times to any valuer for the purpose of the husband’s refinance;
[13]That as and from the date of these orders, the husband shall be solely responsible for in relation to the [Suburb G] property:
[13.1]All payments both present and future and any arrears under and pursuant to any registered Memorandum of Mortgage over the said property;
[13.2]All past, present and future rates, taxes and insurance and other like outgoings and arrears thereof of and incidental to the said property;
[13.3]And shall fully indemnify and keep indemnified the wife in relation to such payments;
The parties acknowledge that they each intended that the orders as they relate to settlement of property operate to finalise all claims between them and to give effect to s 81 of the Family Law Act 1975 (Cth) (“the Act”).
Child support
Paragraph 47 of the BFA provides as follows:-
Pursuant to section 123 Child Support (Assessment) Act 1989 (Cth) that in addition to the periodic payment of child support by the husband to the wife as set out in Order 46 herein, the husband pay by way of non-periodic child support for each of the children:-
47.1 Private medical health insurance at its current level;
47.2All reasonable medical, dental and allied health gap expenses for the children including cord blood storage and orthodontic and podiatrist expenses;
47.3The children’s private education cost for their attendance at [L School] and [M School] (or such other school as may be agreed between the parties) including stationary, books, fees, excursions, IT devices, uniforms and such other expenses as agreed in writing;
47.4The expenses of the children’s participation in extra-curricular activities as agreed between the parties in writing or as permitted by the Order of a Court with such costs to include the costs of equipment and subscription;
47.5And subject to the relevant schools consent, by way of consequential arrangement that the parties do all things and execute all documents to cause the school accounts to be issued in the husband’s name.
Spousal maintenance
In addition to the parties agreement in relation to property settlement and child support the BFA was intended to “settle and discharge all claims of any nature relating to spousal maintenance that either party may have against the other”.
The BFA provides that the husband will pay to the wife by way of spousal maintenance the sum of $55,400 in the following manner:-
(1)From 14 October 2016 to 31 December 2017 at the rate of $500 per week;
(2)From 1 Jan 2018 until 30 June 2019 at the rate of $300 per week with the last payment to be received on or before 28 June 2019;
The wife’s claim
The wife’s original claim was that the husband was in arrears in respect to spousal maintenance in the sum of $17,411.81, that he had not paid non-periodic payments relating to the children in the total sum of $719.45 and that there were outstanding outgoings in relation to the Suburb G property calculated at $1,150.87.
A subsequent issue arose in respect of outstanding payments by the husband relating to the children’s private school fees namely $14,664.68 overdue to M School and $29,856.25 overdue to L School.
As at the date of the hearing the husband has entered into arrangements in respect of the outstanding school fees and whilst the application of the wife’s counsel is that that part of the proceedings be adjourned until November with liberty to vacate in the expectation that the husband will satisfy the arrears, I propose to dispose of the entirety of the application.
The husband acknowledges that the amount outstanding by way of spousal maintenance is $17,992.40. Of recent date the husband has made two payments of $6,004.60 on 14 September 2017 and a further $500 on 16 September 2017.
There is a claim by the wife in respect of interest in the total sum of $726.99. The husband argues that the wife’s claim for interest should be dealt with after a decision has been made in respect of his claimed set off.
On 13 September 2017 the husband paid the non-periodic child support expenses of $719.45. As against the sum of $17,992.40 (plus interest) as claimed by the wife the husband seeks to set off the following amounts:-
(1)
The proportion of health insurance premiums paid by the husband that relate to the wife
$ 1,625.40
(2)
The wife’s share of the conveyancing costs in respect of the marina transfer
$ 817.00
(3)
Pool fence installation
$13,750.00
(4)
Anticipated additional audit fees for superannuation fund
$ 1,800.00
(5)
TOTAL
$17,992.00
Enforcement
Section 90KA states:-
The question whether a financial agreement or a termination agreement is valid, enforceable or effective is to 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 relating to such an agreement, the court:
(a)subject to paragraph (b), has the same powers, may grant the same remedies and must 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; and
(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 under the agreement, from the time when the amount became or becomes due and payable, at a rate not exceeding the rate prescribed by the applicable Rules of Court; and
(c)in addition to, or instead of, making an order or orders under 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.
Section 90KA applies to the application with the following enforcement options available:-
(1)Contractual remedies at common law;
(2)Bankruptcy;
(3)Contempt and related proceedings;
(4)Chapter 20 of the Family Law Rules 2004 (Cth);
(5)Section 106A Empowering a Court Officer to execute a document.
Rule 20.02(b) provides that to enforce a financial agreement an order must be obtained under s 90KA(c) which states the amount owing pursuant to the agreement, see Stelzer & Wallace [2017] FamCA 39.
Section 90G(2) provides that the Court “may make such orders for the enforcement of a financial agreement that is binding on the parties to the agreement as it thinks necessary”. This supports that there is judicial discretion as to whether a term of an agreement or order should be enforced.
The decision of Yilmaz & Yilmaz [2014] FamCA 663 and Barrington & Downton [2015] FamCA 426 consider the exercise of discretion to enforce s 79 orders bringing to account the conduct of the parties.
Is there a set off?
The doctrine of an equitable set off relies upon the “impeachment of title test” that is whether there is sufficient connection between the claim and the cross claim such that the cross claim can be said to impeach the claim; see Hawesv Dean [2014] NSWCA 380.
The equitable nature of the relief is that there must be some form of conduct which makes it unconscionable for one party to insist on its legal right without first accommodating the other party’s countervailing rights.
The focus in the present case is whether there is a sufficient connection between the wife’s claim to spousal maintenance and the husband’s claim to the costs of erecting the pool fence, the payment by the husband of the component of health insurance referable to the wife, the conveyancing costs associated with the marina transfer and the anticipated audit fees associated with the superannuation orders.
Equity allows set offs where there are cross demands that should compensate each other thereby leaving the difference which is the only sum due. Equity does not allow set offs as between mutually independent debts generally.
The test is whether having regard to the relationship and closeness of connection between two claims, it would be unjust or inequitable that a party should be allowed to proceed with its claim without regard to the claim of a party seeking a set off. The question is therefore whether the cross claim or set off would impeach the claim.
The following factors need to exist in order to establish a set off:-
(1)The parties must be those who entered into the original transaction (or their successors in title or personal representatives) see Hamilton Ice Arena Ltd v Perry Developments Ltd [2002] 1 NZLR 309 at 312;
(2)The counter claim must contradict an assumption that is necessary to the establishment of the case of the plaintiff or reveal that wrongful actions of the plaintiff have facilitated, fostered or contributed to the claim which that party prosecutes:-
(a)The defendant must demonstrate that the plaintiff is responsible for the loss sustained; or
(b)The counter claim must contradict or qualify the premise underlying the demand.
In HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 at [136] Emmett JA said;
For there to be an equitable set-off, the set-off must essentially be bound up with and go to the root of, challenge, call in question, or impeach the title of the claimant. Equitable set-off is available where the party seeking it can show a recognised equitable ground for being, to the relevant extent, protected from its adversary’s demand. The mere existence of a cross-claim is not sufficient. There must be some ground for equitable intervention beyond the mere existence of a cross-claim, such that it can be said that the equity of the defendant impeaches the claimant’s title to the legal demand being enforced.
A right to set off is a substantive defence which allows a defendant to reduce a claim which the plaintiff brings against him. It is not a denial of a debt but rather a plea against the enforcement of the plaintiff’s claim to the extent of the defendant’s claim.
A counter claim however merely refers to a procedure which allows for cross actions. Such cross actions may be completely different to the subject matter to be determined at the same time. Although the economic result will often be the same as that achieved by set offs, the result of a hearing involving claim and counter claim is separate judgments for each party against the other whereas only a single judgment is issued where a set off is pleaded.
The nature of the proceedings
The wife’s claim for spousal maintenance arises in respect of the BFA. Whilst the BFA is the subject of notation in the preamble to the consent minute of order it is not otherwise connected save that the combination of the consent minute of order and the BFA resolves all outstanding issues between the parties.
The orders for settlement of property are made pursuant to s 79 and s 81 of the Act. The terms of the BFA are intended to oust the jurisdiction of the Court. The process and procedure are therefore entirely separate.
The husband’s attempt to set off a proportion of the health insurance premiums paid, conveyancing costs in respect of the marina transfer, costs of the pool fence installation and anticipated audit fees would seem to be misguided. Neither party objects to the jurisdiction of the Court either in terms of its original jurisdiction or its acquired jurisdiction as may be necessary to deal comprehensively with all claims.
Whilst it is arguable that the husband is not able to set off claims that arise from the general property proceedings between the parties, there is agreement that the Court should resolve all outstanding matters to finality. Accordingly whether it be by way of set off or more likely a consideration of whether a counter claim exists I propose to deal with all outstanding matters to avoid the need for further litigation.
Health insurance premiums
The orders provide for the husband to be liable to pay both periodic and non-periodic child support for the children of the marriage.
Paragraph 41.1 provides that the husband will pay by way of non-periodic child support for each of the children the private medical health insurance at its current level. The complexity arises because the order as currently drafted does not provide a default amount if the order as currently drafted is unenforceable. It is conceded that the children are not able to access nor hold private medical health insurance in their own right. There is no separate policy. The wife has health insurance which includes the children. Whilst it was probably intended that the husband would cause the children to be included on his private health insurance that is not how the paragraph is framed.
The husband contends that his enquiries reveal that a standalone policy for the wife assuming premium hospital cover and gold extras would cost $41.50 or $180.60 per calendar month. As at the date of the hearing the husband has paid nine months of premiums and quantifies the wife’s proportion in the sum of $1,625.40. No evidence was presented that the methodology adopted by the husband produces an outcome that is able to accurately separate the components of the health insurance premium in so far as they relate to the wife and the children. The wife argues that premium hospital cover and gold extras would be the maximum premium. It is also suggested that there may be a more complex algorithm that calculates a separate component in respect of the inclusion of children in a policy. Even were there to be a consideration that the differing ages of the children on one part and the wife on the other, may represent a significant difference in the attendant medical risk that would speak against the arithmetical outcome as argued by the husband.
It cannot be argued that there is no merit in the husband’s claim that some proportion of the health insurance premiums must relate to the wife. The difficulty is determining the breakdown not the general contention.
A further complication is that in its current form, paragraph 47.1 of the orders is at best unenforceable and at worst unintelligible. It could be argued that no liability arises in respect of the order.
The outer limit of the claim is $1,625.40. The matter needs to be kept in perspective and I am urged by the husband’s counsel to consider a pragmatic approach. There is merit in that submission. The concern for the parties may be the manner in which effect is given to the medical health insurance for the children going into the future in circumstances where the order as currently drafted is at best likely to provide an indicator of the intention of the parties but is unlikely to create the obligation that the wife intended.
I propose to allow a counter claim of one half of the amount as claimed by the husband namely the sum of $812.70.
Conveyancing costs
Paragraph 44 of the orders provides “the transferees in each case shall pay the costs and disbursements of and incidental to any transfer, assignment or conveyance necessary to give effect to the terms of this order.”
The orders provided for a transfer of the estate and interest of the wife in the Suburb G property from her sole name to the husband. The orders also required that the parties do all things necessary to transfer a marina berth from H Pty Ltd as trustee of the Catlin Family Trust No 1 to the wife.
Significant legal fees were apparently incurred in giving effect to the transfer of the Suburb G property to the husband and the marina berth to the wife. The husband relies on annexure “NDC 6” to his affidavit filed 18 September 2017 which is a copy of an invoice from N Lawyers dated 22 November 2016. The amount claimed including GST is $3,488.10 together with disbursements of $314. For reasons that are not explained N Lawyers then applied a discount of $2,168.10 leaving a balance payable of $1,634. The husband seeks one half of the conveyancing costs being $817.
No attempt was made to seek a breakdown of the work undertaken to support the husband’s contention that the transfer of the Suburb G property was routine whereas the transfer of the marina was more complex. The invoice refers to the description of various attendances that relate to both transfers. The husband argues that the discount was so generous that it is reasonable for the parties to be responsible for one half of the amount charged.
If the matter remained as stated by the husband there would be some merit in his proposition.
The wife however tendered a trust receipt from N Lawyers dated 14 October 2016 which is exhibit 2 in the proceedings. It purports to relate to the costs and disbursements of the marina berth and seeks an amount payable by the wife of $857.90. The wife paid that amount. The breakdown brings to account the adjustment of rates and taxes of $590.90 together with conveyancing fees, GST and LTO transfer registration fees of $157. The first difficulty is that there appears to be a double counting in respect of the LTO transfer fee in both the invoice as rendered to the wife and also in the invoice to the husband dated 22 November 2016.
The simple argument on behalf of the wife is that she has effectively paid all that was required by N Lawyers.
The inclusion of an adjustment for rates and taxes is an advantage to the husband in circumstances where the orders do not
obligate the wife to pay both the costs of transfer and the rates and taxes by way of adjustment. I propose to deal with the matter by acceding to the husband’s application that there be a counter claim in the sum of $817 payable by the wife but to reduce that sum by the rates and taxes adjustment that the wife was not obligated to pay. Accordingly the amount to be brought to account is the difference being $226.10.
Pool fence
The orders provided for the wife to transfer her interest in the Suburb G property to the husband. The property had been purchased by the parties (the wife) in or about 2006. It is common ground that there has been at all material times an unfenced swimming pool on the property.
I am satisfied that the parties were aware that the pool was likely to be non-compliant in that it did not have an appropriate pool fence.
There is some uncertainty as to whether the regulations that were in place at the time obligated the owner to install a pool fence or if the pool was installed before 1 July 1993 the regulations may only require an owner to ensure the pool has a fence before the transfer of title but relieves the owner of the obligation to ensure a fence is installed.
The husband alleges that the wife knew there was an obligation to transfer the property with a pool fence, that she did not do so and that as a result of the provisions of the Development Act 1993 (SA) and in particular the insertion of s 71AA into the Act, that the wife may be guilty of an offence and that the husband was required to install a fence. He caused an invoice dated 31 January 2017 to be sent to the wife seeking $13,750 being the cost of the erection of a complying pool fence.
I find that no notice was given to the wife of the issues now raised by the husband and in particular no opportunity was given for the wife to challenge the type of pool fence that was ultimately erected. It is a reasonable contention that the fence as arranged by the husband was at the high end of the various options for a compliant pool fence.
As part of the negotiations leading to a settlement of property the parties jointly instructed a valuation report of the Suburb G property dated 6 November 2015. The report is exhibit 1 in the proceedings. It notes that the purpose of the valuation was for settlement purposes. The parties relied upon the report and brought to account in their discussions the value as determined by the valuer in the sum of $1,600,000. The following appears as the executive summary of the valuation:-
Based on the direct comparison approach, we have assessed the market value of the subject property to fall within a range of $1,550,000 to $1,650,000. To achieve a price at the upper end of this range some expenditure over and above general presentation expenses would be necessary. This would include modern pool fencing and attention to landscaping of the grounds.
The implication is that following the erection of the pool fence the value of the property may be enhanced by up to $50,000.
I find that the husband only raised the issue of the pool fence as a counterfoil to the wife’s action in attempting to enforce the arrears of spousal maintenance. Subject to the third party notice, there is no evidence to suggest that the husband had given any notice to the wife following the transfer of the property pursuant to the orders that there would be a subsequent or attendant claim in relation to the pool fence.
In Henderson v Henderson [1843] EngR 917 the following well known statement is attributed to Wigram VC:-
…where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in context, but which was not brought forward only because they have, from negligence, in advertence, or even accident, omitted part of their case.
The principle was applied by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45.
Whilst the High Court did not consider that to raise a matter in subsequent proceedings which “could and therefore should” have been brought to consideration in the earlier proceedings was not an abuse of process the following appears at pages 602-3:-
In this situation we would prefer to say that there will be no estoppel unless there appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise a defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in earlier cases, why a party may justify refrain from litigating an issue in one proceeding yet wish to litigate this issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention a few.
Dixon J in Blair v Curran [1939] HCA 23 said:-
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared.
I consider that the issue in respect of the pool and its unfenced status was well understood by the parties and in particular the husband. The most substantial transaction involved in the property settlement was the transfer of the wife’s interest in the Suburb G property. The valuation report brought to account that the value of the property had been adversely affected by the lack of a compliant pool fence. The parties accepted the valuation and I consider that the husband should be estopped from seeking to litigate by way of set off or counter claim the attendant cost of the pool fence. The link between the husband’s claim and the wife’s third party notice is unavoidable.
I reject the husband’s counter claim in respect of its entirety and consider that the husband should be estopped from pursuing his claim.
Outgoings
The wife seeks the sum of $1,150.87 by way of outgoings that she contends relates to usage at the Suburb G property prior to 14 October 2016. In final submissions counsel did not pursue the last of the claims namely $70 in respect of a Telstra account dated 29 October 2016. Accordingly the total claim by the wife was $1,080.87. There is no challenge to the period in respect of each of the remaining four invoices. There could be no contention in relation to the invoice for Origin Gas dated 29 September 2016 and the Telstra invoice dated 28 September 2016 given that the entire period predates 10 October 2016.
There are however seven days in relation to the Momentum Energy invoice of 22 October 2016 and four days in respect of the Origin Energy invoice of 18 October 2016 which may be disputed. I propose to adjust the amounts to reflect the following:-
(1)28 September 2016 Telstra $ 74.35
(2)29 September 2016 Origin Gas $435.28
(3)18 October 2016 Origin Gas $ 43.40
(4)22 October 2016 Momentum Energy $397.00
TOTAL $950.03
Audit fees
The parties are the directors of K Pty Ltd which acts as the trustee of the self-managed superannuation fund namely the Catlin Superannuation Fund.
The orders provide that there is to be a superannuation split in favour of the wife and that as at 30 June 2018 she will roll out her superannuation member entitlement into a nominated fund.
The husband argues that in relation to the financial years from 30 June 2010 – 30 June 2013 the wife signed the trustee declarations as required. The husband understands that the wife may have signed the 2014 declaration but he contends that she has not signed the declaration for 2015, 2016 and 2017.
He alleges that as a result of the wife’s refusal to sign the trustee declarations an auditor will need to be appointed to undertake an audit which is unnecessary in circumstances where the trustees sign the required declarations.
Given that the orders provide for the manners in which the superannuation split is to occur and then upon the operative date the wife’s entitlement to roll out her benefit can occur is not in any way affected by the fees incurred by the fund, the husband contends that necessarily what is left is his member entitlement and that would be adversely affected by the audit fees.
As yet no audit fees have been incurred. It may be the case that the wife will sign the necessary trustee declarations and it may also be argued by her that there is good reason why she should not sign the trustee declarations.
I have not heard evidence in relation to her refusal to sign the necessary declarations but at paragraph 102 of her affidavit filed 10 July 2017 she contends that the husband has failed to properly prepare the financial statements in that they did not record a loan agreement for $130,000 and that until this issue is resolved it would not be proper to execute the trustee declarations.
There may be a number of ways that the issue can be resolved. If the husband considers that there is no reasonable opposition by the wife he can bring the matter back by way of an application seeking a registrar sign in circumstances where the wife refuses or neglects to do so. It may also be possible for an order to be made that an independent accountant provides a report as to whether the opposition of the wife is reasonable in the circumstances.
At this stage no charge has been incurred and I do not propose to deal with the husband’s set off or counter claim on the basis of mere speculation.
Interest claimed on the spousal maintenance arrears
Given my findings I consider that it is reasonable for interest on the outstanding spousal maintenance to be claimed in the sum of $726.99.
Conclusion
The wife claims the following:-
(1)Arrears of spousal maintenance $17,992.40
(2)Interest $ 726.99
(3)Amount of unpaid outgoings $ 950.03
Total $19,669.42
I allow a set off in favour of the husband in favour of the following:-
(1)Private health insurance $ 812.70
(2)Contribution to conveyancing costs $ 226.10
Total $ 1,038.80
Accordingly judgment is entered in favour of the wife in the sum of $18,630.62. The said sum is to be paid within twenty eight (28) days.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 13 October 2017
Associate:
Date: 13 October 2017
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