Cook and Cook

[2012] FamCA 984

FAMILY COURT OF AUSTRALIA

COOK & COOK [2012] FamCA 984

FAMILY LAW – S 79 property proceedings – Part-heard from July 2009 after 14 day property hearing – Subsequent proceedings in Supreme Court of Victoria – Receiver and Liquidator appointed – Sale of assets – Determination of remaining net asset pool available for division by agreement between parties – Lengthy out of court negotiations – Matter resolved – Both parties aware of all commercial and financial issues – Advice of legal practitioners including Senior Counsel – Understanding by parties of agreed consent orders – Assurances given to Court by Counsel of a just and equitable settlement

Family Law Act 1975 (Cth)

APPLICANT: Ms Cook

RESPONDENT: Mr Cook

FILE NUMBER: MLF 1997 of 2003

DATE DELIVERED: 31 October 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 31 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr St John SC

SOLICITOR FOR THE APPLICANT: Marshalls & Dent

COUNSEL FOR THE RESPONDENT: Mr Nasimi

SOLICITOR FOR THE RESPONDENT: Madgwicks Lawyers

Orders

IT IS ORDERED BY CONSENT:

THAT within 7 days:-

(a)the husband pay or cause to be paid to the wife any and all arrears of interim spousal maintenance pursuant to Orders made 24 March 2003, 11 June 2003 and 9 March 2012, save that he not be liable for any arrears relating to the service costs of the wife’s European motor vehicle (“the payment of spousal arrears”) and upon the husband confirming in writing that all payments have been made and the wife receiving the payment of spousal arrears, all interim orders in relation to spousal maintenance be discharged;

(b)the wife do all things necessary and sign all such documents as are required to transfer to the husband all of her right title and interest in the B timeshare, at his expense, and the Husband indemnify the Wife absolutely in relation to all liabilities (presently outstanding or hereafter arising) relating to the timeshare including but not limited to ongoing maintenance fees;

(c)that the parties do all things necessary and sign all such documents as are required to transfer the various utility accounts in relation to the former matrimonial home at C Street, Suburb D, into the wife’s name; and

1A. THAT forthwith all existing injunctive orders made by this Honourable Court in these proceedings against the husband be and are hereby discharged.

1. THAT E Pty Ltd pay or cause to be paid to the wife any and all payments and/or entitlements and/or consideration that would otherwise have been paid or caused to be paid to the husband and/or on his behalf from E Pty Ltd (approximately of $148,797) due to be received by him on or about 9 March, 2015 pursuant to the F Purchase Deed between E & E Ltd and the various named vendors and covenantors dated 16 December, 2009 (“the E Entitlement”).

2. THAT in the event the husband receives any part of the E Pty Ltd Payments (or it is received on his behalf) the husband forthwith pay or cause it to be paid to the Wife within 48 hours of receipt, by way of spousal maintenance for the wife.

3. THAT the Husband be and is hereby restrained from electing, accepting or otherwise dealing with any proposed allotment of shares in E Pty Ltd (ACN …) in substitution of the cash payment to be received pursuant to paragraph 3.3 of the F Purchase Deed, save with the written consent of the wife first had and received.

4. THAT the Husband write to E & E Ltd irrevocably directing E & E Ltd to alter their records to cause all correspondence directed to him pertaining to the F Purchase Deed and /or his registered shareholdings in E Pty Ltd to be forwarded to the wife’s postal address (as nominated by her in writing from time to time) and otherwise agrees to sign such other documents as may be requested by E & E Ltd to give effect to the irrevocable direction, and forthwith provide the wife’s solicitors copies of his irrevocable direction and other such documents as requested by E & E Ltd.

5. THAT the husband forthwith provide to the wife’s lawyers, Marshalls + Dent Lawyers (“the Wife’s lawyers”), copies of all documents, records and things that he has received to date in relation to the E Entitlement (including but not limited to all such documents, records and things received by him since 9 December, 2009) and which are still in his possession, AND FURTHER PROMPTLY PROVIDE on an ongoing basis  all such documents records and things received by him from the date of these Orders until the E Pty Ltd Payments and/or full consideration referred to in paragraph 2 herein is received in full by the wife.

6. THAT the Husband meet and otherwise indemnify and keep indemnified the Wife against any all liabilities and / or claims of whatsoever nature and kind , past, present and future, and howsoever arising upon or pertaining to the E Entitlement and / or the F Purchase Deed  (including all damages, costs, interest, penalties, fines, charges, and capital gains tax assessed) save that the Husband will not be liable for any income tax (if any) from the date of this Order arising from the receipt by the wife of E Entitlement.

7. THAT the parties do all things necessary and sign all such documents as are required, at the Husband’s expense (save that the wife pay the costs of her legal advice), for the Wife to renounce all of her legal and / or beneficial entitlements (if any) in the companies, trusts and joint ventures listed in Annexure A of these Orders (“the Entities”) and to forthwith assign to the Husband any loan account or other amount owed to her credit by any of the Entities.

8. THAT the Husband be liable for, promptly meet and keep the Wife indemnified against any liability, past, present and future, and of whatsoever nature and kind arising from or in relation to any office-holding, shareholding and/or involvement (if any) she has had in the Entities including but not limited to loan accounts owing to any of the Entities, taxation (including capital gains taxation), interest, penalties, fines, charges and associated legal costs), save that the Husband will not be liable for any income tax (if any) from the date of this Order payable by the Wife in relation to any payment received by the wife in respect of any office holding, shareholding or involvement (if any) in the Entities.

Strategy Retirement Fund

1. THAT paragraphs 11 to 15 of these Orders are binding on the Trustee of the G Fund.

2. THAT in accordance with section 90MT(4) of the Family Law Act 1975, a base amount of $220,000 is allocated to the Wife out of the interest of the Husband in the G Fund.

3. THAT in accordance with section 90MT(1)(a) of the Family Law Act1975:

   (a)the Wife is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

   (b)the entitlement of the Husband in the G Fund is correspondingly reduced by force of this Order.

4. THAT the Trustee of the G Fund shall do all such acts and things and sign all such documents as may be necessary to:

   (a)calculate, in accordance with the requirements of the Act, the Wife’s entitlement created by paragraph 11 of this order; and

   (b)pay the entitlement whenever a splittable payment becomes payable out the of the Husband’s interest in the G Fund.

5. THAT paragraph 11 of this Order shall have effect from the operative time.

6. THAT this Order has effect from the operative time and the operative time for this Order shall be 4 business days after service of a copy of this Order upon the trustees of the G Fund.

7. THAT, in the event that the Trustee pursuant to r.7A.03B of the Superannuation Industry (Supervision) Regulations 1994, creates a new interest in the G Fund, the Wife shall do all things necessary, including but not limited to, exercising the request pursuant to r.7A.03D of the Superannuation Industry (Supervision) Regulations 1994 to roll over or transfer the withdrawal benefit in the Wife’s interest in the G Fund to another fund of the Wife’s choosing.

8. THAT the Husband do all such acts and things and sign all such documents, and make any necessary elections to give effect to paragraphs 10 to 16 hereof, including but not limited to electing to convert the allocated pension in the G Fund to a lump sum benefit.

H Fund

1. THAT paragraphs 19 to 23 of these Orders are binding on the Trustee of the H Fund.

2. THAT pursuant to section 90MT(4) of the Family Law Act 1975, a base amount of $50,000 is allocated to the Wife out of the Husband’s interest in the H Fund (Investment Number …).

3. THAT pursuant to section 90MT(1)(a) of the Family Law Act1975:

   (a)the Wife is entitled to be paid, using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and

   (b)the Husband’s entitlement in the H Fund, is correspondingly reduced.

4. THAT the Trustee of the H Fund shall do all such acts and things and sign all such documents as may be necessary to:

   (a)calculate, in accordance with the requirements of the Family Law Act 1975, the entitlement created by paragraph 19 of this order; and

   (b)pay the entitlement whenever a splittable payment become payable out the of the Husband’s interest in the H Fund.

5. THAT paragraph 19 of this Order shall have effect from the operative time.

6. THAT this Order has effect from the operative time and the operative time for this Order shall be 4 business days after service of a copy of this Order upon the Trustees of the H Fund.

7. THAT, in the event that the Trustee pursuant to r.7A.03B of the Superannuation Industry (Supervision) Regulations 1994, creates a new interest in the H Fund, the Wife shall do all things necessary, including but not limited to, exercising the request pursuant to r.7A.03D of the Superannuation Industry (Supervision) Regulations 1994 to roll over or transfer the withdrawal benefit in the Wife’s interest in the H Fund to another fund of the Wife’s choosing.

8. THAT the Husband do all such acts and things and sign all such documents, and make any necessary elections to give effect to orders 18 to 24 hereof, including but not limited to electing to convert the allocated pension in the H Fund to a lump sum benefit.

9. THAT the Wife shall appoint Mr I and Mr J as her general proxy to vote in favor of the Personal Insolvency Agreement signed by the Husband and dated 2 July 2012 that is to be put forward by the Husband at the final creditors meeting held to vote on the Husband's Part X proposal.

10. THAT this is an Order to which section 77A of the Family Law Act 1975 applies and that the E Entitlement the Wife is to receive pursuant to paragraph 2 of these Orders is attributable to the provision of spousal maintenance for the Wife.

11. THAT all orders in relation to Costs including reserved costs, in these proceedings be and are hereby discharged.

12. THAT all extant Applications and Responses in relation to these part heard proceedings be dismissed with no orders as to costs.

13. THAT unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:

    (a)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;

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

    (c)monies standing to the credit of the parties in any bank account are to become the property of the party/parties in whose name the account is registered;

    (d)all insurance policies to become the sole property of the named owner;

    (e)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

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

14. THAT all exhibits tendered at the Final Hearing that commenced in July 2009 and remains part heard be forthwith returned to the party who tendered such documents.

15. THAT all documents produced to the Court pursuant to Subpoenae issued by the Court in these proceedings be returned to the organisations and/or persons so produced by.

16. THAT all extant Applications are dismissed and to be removed from the docket of Justice Young.

17. THAT the ex-tempore reasons be transcribed and place on the Court file and made available to the parties.

IT IS NOTED

A.THAT this matter was part heard before Justice Young in July 2009 for 12 days and these Orders are inclusive of all matters raised in those proceedings.

B.THAT the parties have taken into account all property they have received by way of part property settlements including pursuant to Orders made on 27 January 2010, when entering into these Orders.

C.THAT the parties intend these Orders shall as far as practicable finally determine the financial relationships between them and avoid further proceedings between them.

D.THAT the parties have entered into a Section 90D Financial Agreement in relation to future spousal maintenance for each of them.

“ANNEXURE A”

“The Entities”

1. K Pty Ltd (ACN …)

2. K Trust

3. L Pty Ltd (…)

4. M Pty Ltd (…)

5. N Pty Ltd (…)

6. O Pty Ltd (…)

7. P Pty Ltd (…)

8. Q Pty Ltd (…)

9. R Pty Ltd (…)

10. F Investments Pty Ltd (…)

11. S Pty Ltd (…)

12. T Pty Ltd (…)

13. F Pty Ltd (…)

14. U Pty Ltd (ACN …)

15. K Developments Pty Ltd (ACN …)

16. V Pty Ltd (ACN …)

17. W Pty Ltd (ACN …)

18. X Pty Ltd (ACN …)

19. Y Pty Ltd (ACN …)

20. Y2 Pty Ltd (ACN …)

21. Y3 Pty Ltd (ACN …)

22. Z Pty Ltd (ACN …)

23. AA Pty Ltd (ACN …)

24. Z2 Pty Ltd (ACN …)

25. BB Pty Ltd (ACN …)

26. CC Pty Ltd (ACN …)

27. DD Pty Ltd (ACN 095 372 491)

28. EE Pty Ltd (ACN 137 917 456)

29. K Joint Venture

30. K Trust

31. FF Pty Ltd ATF FF Trust

32. Cook Partnership

33. Cook Trust

34. Cook Family Trust

35. GG Trust

36. Mr Cook Family Trust No 1

37. HH Pty Ltd (ACN …)

38. II Pty Ltd (ACN …)

39. JJ Pty Ltd (ACN …)

40. KK Pty Ltd (ACN …)

41. LL Pty Ltd (ACN …)

42. MM Pty Ltd (ACN …)

43. NN Pty Ltd (ACN …)

44. NN Trust

45. OO Pty Ltd (ACN …)

46. PP Pty Ltd

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cook 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 MELBOURNE

FILE NUMBER: MLF 1997 of 2003

Ms Cook

Applicant

And

Mr Cook

Respondent

REASONS FOR JUDGMENT

1. The matter of Cook is listed before me, and Mr St John of Senior Counsel appearing for the wife and Mr Nasimi, Solicitor appearing for the husband, are in court and have presented minutes of consent orders.  The husband is present in court.  I am advised that the wife is overseas but that she has been given very lengthy and detailed advice by Senior Counsel and by her solicitors and that she fully knows and understands the proposed settlement.

2. This matter is part heard before me.  I have had 14 days of evidence in mid July, or thereabouts, 2009.  The matter was adjourned, part heard, and there are various judgments that I have delivered on matters that were related to the reason for the adjournment and the subsequent events and various applications that have been before this court. 

3. The orders today are intended to be final and are to be made pursuant to section 79 of the Family Law Act 1975 (Cth). They contemplate a final settlement between the parties. The basis of the settlement is explained in the orders, but in general terms the wife receives the payment in paragraph 2 and abandons her rights to any future spousal maintenance. Otherwise there are superannuation splitting orders in favour of the wife.

4. Additionally I have been told by Senior Counsel that a third party is to make a payment to her that is the subject of an agreement that is to be entered into following upon my pronouncement of these orders as being just and equitable within the umbrella of s 79 (2) of the Act.

5. The intent is that these orders resolve all proceedings.  There is a s 81 notation as part of these orders.  The orders require all existing injunctions to be discharged.  The orders further require all previous cost orders, other than those that have been acted upon, to be otherwise discharged, including as to the discharge of reserved costs.  The intent of the order otherwise is that each party keep what they have in their possession, that is not dealt with in these orders, and each party retain their current liabilities.

6. The previous interim property orders including the transfer of the Suburb D property to the wife, are to remain; and that is part of this final settlement.  I have carefully asked Senior Counsel for the wife and solicitor for the husband, that each of them – particularly the solicitor for the husband, assure the court that their client has legal capacity to enter in to these orders today; to sign orders that are effective and do so on proper disclosure to the court. I have received those assurances which I accept.

7. Otherwise, I note the parties have entered into an agreement pursuant to s 90 D of the Act in relation to future spousal maintenance, and that is recorded in notation D to the agreement. I am therefore asked to discontinue the part-heard proceedings, make these orders which will lead to all extant applications being dismissed – therefore there will be no proceedings before the court and all matters will have been finalised by consent.

8. I have a very detailed knowledge of all of the facts and issues in this matter, as at July 2009, and a somewhat sketchy, but nevertheless sizeable knowledge of events thereafter arising out of the many subsequent hearings and judgments that I have delivered. I am prepared to declare under s 79 (2) that these orders represent a just and equitable determination of the remaining and available property to be divided between the husband and wife.

9. The orders that I have been presented have been signed by the husband and wife.  I record again, that the court inquired of and is satisfied that each party has a proper understanding of the available property and the settlement and each of them wholly accepts that the settlement is just and equitable.  The minutes that I have are currently undated but presumably will be dated this day.

RECORDED  :  NOT TRANSCRIBED

1. I will have Senior Counsel date the orders when I hand them back to him, briefly and thereafter the orders are to be retained upon the court file.

2. I require the solicitor for the applicant wife to forward a completed final set of orders, by email transmission, to my associate this day. 

3. For those very brief reasons and based upon my substantial knowledge of the matter and the consent of the parties willingly and openly given on all matters, I pronounce final property division orders

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 31 October 2012.

Associate: 

Date: