Cuervo and Cuervo

[2009] FamCA 1060

FAMILY COURT OF AUSTRALIA

CUERVO & CUERVO [2009] FamCA 1060

FAMILY LAW – PRACTICE AND PROCEDURE – Case management

APPLICANT: Ms Cuervo

RESPONDENT: Mr Cuervo

FILE NUMBER: MLC 3701 of 2008

DATE DELIVERED: 4 September 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 4 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Berger Kordos Lawyers

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Fetter Gdanski

Orders

1. That this matter be otherwise listed for mention before me on 20 October 2009 at 9.00 am for directions for final hearing.

2. That within seven days the wife provide to the husband, via their respective solicitors, with a copy of all documents relating to the disposition of the BMW motor vehicle by her in May 2008, including a copy of the transfer document nominating the name and address of the purchaser, together with a copy of the page of the bank account statement into which alleged $42,000.00 proceeds of sale were deposited and subsequently dispersed.

3. That within seven days each party provide to the other, to the extent that they are able to do so, copy bank statements and details of the account into which his, her, or their pension entitlements were paid prior to separation on 31 March 2008.

4. That within seven days the wife provide to the husband, via their respective solicitors, details of the basis upon which she seeks an addback into the asset pool of $400,000.00 being the application of the funds which were deposited by cheque into the account Cuervo & Son Pty Ltd on 31 March 1999 in the sum of $404,931.66.

5. That the account statement of National Australia Bank Ltd for the account in the name of Cuervo & Son Pty Ltd as Trustees of the Cuervo Family Trust, Account Number …, be marked Exhibit “W1” AND IT IS DIRECTED that it remain on the Court file.

6. That within seven days the wife provide to the husband, via their respective solicitors details of the account, or accounts, into which the proceeds of the personal loan taken by the wife after separation from National Australia bank Ltd were paid and then dispersed.

IT IS DIRECTED:

1. That the parties do all acts and things necessary to attend a without prejudice round table conference, the purpose of which is to identify the common areas of fact in the relevant history of the marriage, the conference to be convened by Registrar Riddiford on 8 October 2009 at 11.00 am and the parties should expect to remain at Court until 5.30 pm.

IT IS FURTHER ORDERED:

1. That the documents produced today by the wife for inspection by the husband be inspected by him and his practitioner between now and 1.00 pm today in the precincts of the Court.

2. That the oral application of the husband for costs of this day is hereby dismissed.

IT IS DIRECTED:

1. That my reasons for judgment in relation to the application of the husband for costs be transcribed prior to 8 October 2009.

IT IS FURTHER ORDERED:

1. That within seven days the husband advise the wife in writing, via their respective solicitors, of the facts and matters and historical events which appear relevant to matters identified by Mr F, accountant, in his letter of 28 January 2009 to the practitioners for the wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3701 of 2008

MS CUERVO

Applicant

And

MR CUERVO

Respondent

REASONS FOR JUDGMENT

1. The husband makes an application for costs in an unquantified amount for the appearance today of counsel.  Today is the first listing before me of this property matter which I have taken into my docket.

2. The basis of the application for costs is that on 6 August 2009 Registrar Riddiford made certain directions and orders.  One order was that the wife file and serve, by 26 August 2009, an amended application particularising the orders she seeks, and “in particular, the orders sought in respect to the add back, being the assets or some assets referable to the [building] business.”

3. The solicitor for the husband agrees that, on 31 August 2009, an amended application initiating proceedings was filed and subsequently served.  In that, the wife seeks a transfer to her of the former matrimonial home, being the property at T.  That is by far the largest asset of the parties. 

4. It is agreed, broadly speaking, that the existing assets of the parties are the T property for which there is a joint valuation (as at 26 June 2009) for $1 million.  There is somewhere between $10,000 (on the wife’s case) and $5000 (on the husband’s case) in household contents at the former matrimonial home.  Negligent balances in bank accounts (Commonwealth Bank for the wife and National Australia Bank for the husband).

5. I am satisfied that the application was filed late.  I have not heard any details of what prejudice the late filing and service of the application has brought about.  In any event, it appears it is capable of being construed as the application she seeks having regard to her case as to add backs. 

6. The next basis upon which the applicant husband seeks costs is that a balance sheet, which was required to be completed by the wife and sent on 27 August 2009, was not submitted until yesterday, and then did not include, as it should have, “all details of the add backs sought by the wife in respect of the assets of the [building] business.”  I have seen the balance sheet.  It describes the add backs as Cuervo & Son Pty Ltd $400,000.  I agree that there is not sufficient particularisation there.

7. There has also been tendered today a bank statement from NAB which I have marked as an exhibit W1.  It is in respect of monies which were paid into an account of the business on, I think, 31 March 1999 that the wife seeks an add back, or, more particularly, the application of those monies once they were paid into the account and dispersed. 

8. Next, the husband bases his application on costs on the fact that the wife has not brought to court a contract of sale of a BMW motor vehicle which she sold subsequent to separation, in particular, on May 2008.  The wife alleges that she sold a vehicle for $42,000 to the BMW dealership.  She paid $24,000 for an Astra motor vehicle which was subsequently registered in the name of one of the parties’ daughters.  She alleges she paid $10,000 to her brother by way of repayment of a loan and spent the balance on living expenses.  Ms Kunasko says that the $24,000 is to be treated as a premature distribution of property.  It seems to me that the case for the husband cannot be better than that at least in respect of that $24,000 of the $42,000.  As to the balance of $18,000, there are no details, but the main problem for the husband is that the wife was not required to produce a contract of sale. She was required to produce discoverable documents in her possession about the sale of the vehicle.  Ms Kunasko has brought to court a shopping bag of documents which will now be available for inspection in the precincts of the court until 1 pm today. 

9. The Family Law Act provides that each party bear there own costs except where there is justification in one party paying the costs of the other. Section 117(2) sets out the matters that I take into account in being so justified. 

10. In this case, the wife does not appear to have done all that she has been required to do under the orders.

11. I have already commented to the practitioners who appear today, this case, more than most, is marked by a lack of common ground as to relevant facts, and from the demeanour of the practitioners today, and having to get instructions, or not being able to get instructions, or not knowing the relevant facts, I suspect that neither party has concentrated much on what is relevant in the proceedings. 

12. I am not prepared to order costs of today for the husband.  I do not consider that they are justified by reference to the wife’s compliance with orders or conduct in the proceedings and no other factor is urged upon me by way of justification.  I note that the husband has filed a response to the original application for a property settlement, and that is in an unspecified form.  He has not himself detailed the orders that he seeks by way of a final adjustment of property interests. 

13. I have, as discussed, decided to refer the matter back to Registrar Riddiford.  The parties had agreed to have a round table conference just to examine the history of the matter and where they might be apart on a factual basis.  In my view, they would be assisted if they did that with Registrar Riddiford, because they can be directed to matters which may or may not be relevant.  As I said, these are matters that I would have expected would be done by today.  It is a pity that did not occur.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  7 October 2009