Daniels and Findlay (No 4)

FAMILY COURT OF AUSTRALIA

DANIELS & FINDLAY (NO 4)

[2012] FamCA 864

FAMILY LAW – ENFORCEMENT OF ORDERS

Family Law Act 1975 (Cth)

Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FLR 225
Yunghanns and Yunghanns (2000) FLC 93-029).

APPLICANT:

Mr Daniels

RESPONDENT:

Ms Findlay

FILE NUMBER:

MLC

1996

2008

DATE DELIVERED:

4 October 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

11 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A Combes

SOLICITOR FOR THE APPLICANT:

Holt & MacDonald

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Orders

That the amount outstanding in the husband’s favour owed by the wife pursuant to the final orders dated 9 March 2010 is declared to be $188,087, plus interest of 5% per annum on the sum of $253,192.13 from 12 September 2012 until the date of payment.
That the husband is hereby permitted to instruct Messrs L & M solicitors of R Street, R suburb, that from monies held on behalf of the parties in their trust account, they must:
(a)Pay to him the sum of $28,970 towards the sum owing to him by the wife pursuant to paragraph 1 of these orders;
(b)Pay to him the costs owing to him by the wife pursuant to the order of the Full Court of the Family Court of Australia on 25 June 2012, in such sum as agreed or assessed; and
(c)Thereafter pay to N Firm any outstanding fees arising from the orders of 9 March 2010.
That the wife is hereby ordered to pay to the husband costs on an indemnity basis in relation to the preparation for and appearances at hearings before this Court on:
(a)11 May 2012;
(b)25 May 2012;
(c)29 May 2012;
(d)30 May 2012; and
(e)8 June 2012;
(f)11 September 2012; and
(g)5 October 2012;
the quantum of such costs to be agreed within 14 days of these orders, and failing agreement to be assessed by a Registrar of the Family Court of Australia.
That upon the written undertaking of the husband to pay all reasonable fees and expenses associated with the enforcement, if they are greater than the amount recovered on the enforcement, an enforcement warrant shall hereby be issued directed to the Marshal of the Family Court of Australia or his nominee to sell the real property known as C Street, M Town being the property more particularly described in Certificate of Title Volume … Folio … (“the [M Town] property”) and to deal with the sale proceeds as follows:
(a)To meet all the fees and expenses associated with the enforcement;
(b)To meet all the fees and expenses associated with the sale;
(c)To pay to Messrs Holt & MacDonald solicitors to disburse to the husband the sum of $159,117 plus interest of 5% per annum on the sum of $253,192.13 from 12 September 2012 until the date of payment;
(d)To pay the balance into the trust account of Holt & MacDonald to be dealt with as follows:
i. To pay to the husband all costs owing to him by the wife under these orders forthwith upon their agreement or their assessment, whichever occurs first; and
ii. Then forthwith to pay to the wife the balance.
That in the event the wife pays the total amount declared outstanding to the husband in paragraph 1 of these orders (less the sum of $28,970 that he shall receive pursuant to paragraph 2(a) of these orders) before the enforcement warrant is executed, but before the costs in paragraph 3 of these orders have been agreed or assessed, execution of the enforcement warrant shall be stayed pending further Court order which may be obtained by the husband on short written notice.
That pending the sale of the M Town property the wife is hereby by herself, her servants or agents, restrained from selling, encumbering, damaging or in any way interfering with the M Town property, or attempting to sell, encumber, damage, or in any way interfere with the M Town property.
That the husband shall forthwith do all acts and sign all documents to register the enforcement warrant on the Certificate of Title of the M Town property.
That pending the conclusion of the enforcement of the property orders in accordance with the warrant of enforcement, the husband shall be entitled to insure any buildings including any sheds and fencing situate at the M Town property and to satisfy an insurance company that he has an insurable interest in that property.
That for the purposes of the preceding paragraph of these orders, the husband may serve a copy of these orders upon any insurance company with which he is endeavouring to arrange insurance over the M Town property.
That otherwise all existing applications shall be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daniels & Findlay 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: MLC 1996 of 2008

Mr Daniels

Applicant

And

Ms Findlay

Respondent

REASONS FOR JUDGMENT

BACKGROUND

Mr Daniels is trying to enforce final property orders that date back to 9 March 2010.
Ms Findlay has obstructed their implementation at almost every turn, resulting in a number of enforcement applications by Mr Daniels in 2010, 2011 and 2012, and orders and judgments broadly directed to her doing or not doing certain things, in order to implement those final orders.
Along the way, Ms Findlay has launched several unsuccessful appeals, most recently against orders once again directed to the orderly winding up of companies in accordance with the final property orders. The Full Court dismissed that appeal on 25 June 2012, with an order that Ms Findlay pay Mr Daniels’s costs.
I will not repeat the history here. It can be read in the final hearing Reasons for Judgment of 22 December 2009, and then Reasons on 9 March 2010, 26 July 2010, 6 August 2010, 21 January 2011, 17 February 2011, 7 April 2011, 11 May 2012, and 25 May 2012, along with the Reasons of Macmillan J of 29 May 2012.

THE CURRENT ENFORCEMENT PROCEEDINGS

The current round of enforcement was started by the husband with his Application in a Case filed 2 April 2012.
In short, he was trying to arrange – as he had been for many months – the release of a Westpac term deposit of about $250,000 in the name of A-P Pty Ltd, for payment of certain expenses and then distribution between the parties, in accordance with Paragraph 9 of the final orders. To that end, on 24 April 2012, Mr Daniels’s solicitor, Mr Ryan , had a subpoena issued to Westpac, seeking correspondence and transactions in relation to that term deposit account.
On 11 May 2012, Ms Findlay submitted that Mr C and Ms H, described by her as “independent” directors of the company, would object to the release of the Westpac material. The subpoena argument was thus adjourned to 25 May 2012. Although Ms H did file a Notice of Objection, she did not appear on 25 May 2012. Mr C neither filed an objection nor appeared. On 25 May, I ordered the release of the Westpac documents, and adjourned the husband’s application for enforcement until 18 July 2012.
Mr Ryan immediately inspected the Westpac file. The subpoenaed material divulged that the A-P Pty Ltd term deposit monies had in fact been removed. It showed that on 29 April 2012 – well into this round of enforcement proceedings – the relevant Westpac account had been closed, and the funds transferred to an account at the Commonwealth Bank. Although for some reason the funds were recalled by Westpac on 23 May 2012, by the time of the subpoena hearing on 25 May 2012, the funds were no longer in the Westpac account.
Four days later, in my absence from the Registry on 29 May 2012, Macmillan J made an urgent ex-parte order to restrain Ms Findlay from leaving Australia pending compliance with the orders for the property settlement, Ms Findlay having previously told the Court that she was leaving Australia around 31 May 2012, to visit Mr C in Europe.
The case returned before Macmillan J on 30 May, after Ms Findlay was served. Her Honour adjourned the case back to me on 8 June, ordering that Ms Findlay cause the funds of A -P Pty Ltd, being $253,192, to be paid into the Holt & MacDonald trust account, and giving her leave to apply at short notice to lift the Airport Watch List Order against her. Her Honour also made orders directed towards finding the funds, and restraints against Ms Findlay in any way interfering with them.
When the matter came before me on 8 June, Ms Findlay told me that she knew the money was not in Australia, and that the director, Mr C, had arranged for it to be transferred (it seems to Europe, where he lives, and she was heading). According to her, the directors Mr C and Ms H felt very strongly that this Court had removed their entitlement to appoint an auditor of the company and, as directors, they had rights and obligations “under the Corporations Act”. Although Ms Findlay knew that the money was not in Australia, she denied knowing where it was being held, and denied playing any role in forwarding the money to Mr C.
Ms Findlay gave evidence and was extremely evasive as to Mr C’s whereabouts or address, including where he might be hospitalised, even though she had argued she was urgently leaving Australia to be with him as he was seriously unwell with cancer.
The case was adjourned for Mr Daniels to file contravention proceedings.
When it was next listed on 17 July 2012, Mr A Combes, counsel for Mr Daniels, reported that Ms Findlay had continued to refuse to return the missing funds and was prepared to go to prison. Mr Daniels had instructed that he did not want to see her go to prison. He had decided not to pursue contravention proceedings. Instead, he would seek enforcement orders for the sale of Ms Findlay’s home, in order to pay him the outstanding sum, as well as costs. The case was adjourned for the new application to be prepared, and to allow Ms Findlay time to respond.

THIS APPLICATION

On 30 July 2012, Mr Daniels filed the current Application in a Case, and the following day his affidavit and the supporting affidavits of his solicitor Mr Ryan, and Mr S of N Firm.
On 20 August 2012, Ms Findlay filed an affidavit in response. Although she did not file a response, Mr Combes did not take the point. It was clear enough on the face of her affidavit, and subsequently from her submissions, that she sought an order that the husband’s application be dismissed.
Mr Combes did take the point though that Ms Findlay filed her affidavit several days after the 17 August deadline set in the orders of 17 July. Although I had warned Ms Findlay that if she were late, she risked having the matter proceed unopposed, I was satisfied there was no prejudice to Mr Daniels and I allowed the affidavit.
In his application, Mr Daniels sought to establish the sum remaining outstanding to him pursuant to the 9 March 2010 final orders. The sum he ultimately sought Ms Findlay to pay into the Holt & MacDonald trust account within seven days was $175,793.31. In submissions, the final figure sought was just over $173,000. I shall come to how it was calculated.
He sought the seizure and sale of Ms Findlay’s home at C Street M Town, if the balance of the sum owed was not paid within seven days. He sought that the costs of enforcement, N Firm’s fees, the monies outstanding to him and interest on the missing bank funds, be paid from the sale proceeds.
He also sought his costs of the application.
In his affidavit, Mr Daniels set out his calculations of the monies owing, and that Ms Findlay’s home was valued at $300,000, according to the agreed evidence at the property hearing.
Mr Ryan detailed the monies received and paid from the L & M trust account, and dealt with issues of outstanding fees to N Firm, as well as outstanding legal costs pursuant to various orders.
Mr S from N Firm set out the costs bills rendered by N Firm, and referred again to efforts made by the accountants to obtain the Westpac monies.
Although Mr S’s affidavit finished with a reference to N Firm being prepared to refund any monies to the trust account of Holt & MacDonald, in the event the Court decided that N Firm had been over-paid for any work, I am not persuaded that is an issue before the Court. It arose only because of Ms Findlay’s constant complaints about N Firm’ work, including the fees.
The final property orders provided for N Firm to have full responsibility for the winding-up of the parties’ entities, instructed solely by Mr Daniels. Accordingly, Mr Daniels has the full control of that process, including the payment of N Firm’s fees. He also has a vested interest in paying only proper amounts to them. The payment of fees reduces the asset pool, from which he stands to gain an equal division.
Sadly, N Firm’s costs have continued to rise because of the many obstructions created by Ms Findlay, referred to throughout all the enforcement proceedings. But a questioning of those fees by the Court would be an unnecessary digression, and yet another impediment to the conclusion of a long overdue property settlement.
When it comes to Ms Findlay’s affidavit, it contained much of the unhelpful material that has been repeated in her affidavits in the years since the final orders.
The first paragraph gave the flavour. It stated as follows:
1. So, of what am I accused? There is nothing specified. Allegations, assumptions, and perjured Affidavits are NOT evidence;
Throughout her affidavit, Ms Findlay accused Mr S and/or N Firm of “sloppiness”, a lack of independence, defamatory comments, computer hacking, and, as between the accountants, the husband, and/or his solicitors Holt & MacDonald, conspiracy, fraud and defalcations. None of those bald allegations were substantiated.
Otherwise, Ms Findlay’s affidavit dealt with various grievances and allegations that have wound their way through these entire proceedings, either dealt with by the final property orders, or subsequently by me in enforcement proceedings and, in some instances, by the Full Court.
She has now added a claim that her friend Mr C has an interest in the assets of the A Superannuation Fund, an asset fully dealt with by agreement at trial as the parties’ own self-managed fund. She claims Mr Daniels interfered in Mr C’s divorce and property matter in Europe. She claims Mr Daniels was “vindictive” in obtaining an order that she not travel to Europe to see Mr C, who is unwell.
She again called for an independent audit of the A Superannuation Fund, although that option has been clearly ruled out by me, and by the Full Court.
Finally, Ms Findlay said that she loves her home and she intends to “gift” it to a charitable association. She said that she cares about “honesty and justice” but she has seen that “neither exists in the Family Court.” She claimed that Mr Daniels’s partner, and the solicitor Mr Ryan, have subjected her to “a vendetta” for the past four years.
Before I proceed further, I note that shortly before lunchtime during this hearing before me on 11 September 2012, Ms Findlay referred to a man sitting behind her in court. She told me that it was “Mr J” from the named charitable association. I made it clear then that, although I had not recognised him, once he was named and placed by her, I realised I had met him several times in my role as one of a group of Patrons of the association. I do not have a close association with him.
Having made that disclosure at the earliest opportunity, I indicated to the parties that I felt no embarrassment in continuing to hear the case. Mr Combes for Mr Daniels said that his client had no difficulty with my continuing.
Ms Findlay indicated that she had a difficulty on the basis that she wants to leave her home to the named association.
I was satisfied that there was no actual or reasonable apprehension of bias, or any basis upon which I should disqualify myself. As I explained to Ms Findlay, she may want to leave her home in due course to that charity, another charity, or indeed to an individual. If I am satisfied however that monies are outstanding pursuant to the final orders, and I conclude that the real property in her name should appropriately be sold to meet the outstanding sum, her desire for a particular gifting or bequeathing of the property would not in itself dissuade me.
Finally, in her affidavit, Ms Findlay apologised for her mental confusion in preparing the affidavit, saying she was on a lot of strong pain killers and that she “expected” her poor health “to be taken into consideration.”
It is timely to note here that I am satisfied she has had health issues. I note too that her conduct has been at times unreasonable, at times dishonest, and often obstructive. However, there is no expert evidence to satisfy me that her health has caused that conduct, or in any way impeded her understanding of orders or her capacity to comply with them. To the contrary, her conduct, submissions and affidavits have shown a detailed understanding of orders and her deliberate and wily attempts to avoid finalisation of them.

THE SUM OUTSTANDING

Mr Daniels seeks a declaration as to the sum outstanding under the final orders. I shall deal separately with outstanding costs, below.
Mr Daniels and his legal representatives say that he has so far received cash of $1,230,214, as set out in the Holt & MacDonald L & M trust account records. I accept that. Although Ms Findlay questioned the records, she did so without substance, and with the same unsubstantiated assertions, criticisms and suspicions that she has brought to almost every action of the solicitor, the accountant or husband.
Mr Daniels and his legal representatives say that Ms Findlay has received $1,403,484, comprised as follows:
·The assets retained by her, as set out in paragraph 1
of the final orders  $   389,371
·The value of shares transferred to her pursuant to
the property orders  $   742,216
·An additional parcel of IOOF shares retained by
her  $     13,354
·The term deposit monies from the Westpac account $   253,192
·Interest to date on the Westpac term deposit
monies  $      5,350
Total:  $1,403,484
Ms Findlay agrees that she retained assets to the value of $389,371, pursuant to paragraph 1 of the property orders.
She agrees that she received personal and A Superannuation Fund shares to the value of $742,216, save that she disputes a sum of $2,649.14 in relation to AWB shares. She also disputes retaining the additional $13,354 worth of IOOF shares. She disputes having anything to do with the removal of the Westpac term deposit monies, and says that the interest of $5,350 is not calculated at a fair rate.
Save for the brief evidence of Mr S as to the IOOF and AWB shares, and brief evidence of Ms Findlay on 8 June 2012 as to Mr C’s address, the case has proceeded by affidavit and upon submissions.

AWB Shares

Ms Findlay’s case is that she never received a transfer of the AWB shares. She said that AWB was bought out, and the trading of shares was suspended, before the parties’ personal and A Superannuation shares were transferred to her.
Mr S from N Firm gave evidence about these shares. He was uncertain as to the precise timing of the suspension of trading, vis a vis the transfer of the shares to Ms Findlay. I am satisfied that the timing was not in fact material, in that Ms Findlay admitted she received a cheque for those shares in any event.
Ms Findlay said that she paid the cheque into the Westpac account. She produced no evidence of the payment into that account, and I find it improbable that she would have paid money into an account she knew was to be controlled by Mr Daniels under the orders.
I am satisfied that she has received and retained for her own use that small sum of $2,649.14, as claimed by N Firm.

IOOF Shares

Mr Daniels says that in addition to the shares transferred to Ms Findlay, she retained a parcel of 1837 IOOF shares in her own name, valued at $13,354.99.
She disputes that, pointing out that a chart prepared by Mr S, headed “Personal Shares” and “Mr Daniels and Ms Findlay” (Exhibit H5) showed one parcel of 1837 IOOF shares valued at $13,354.99, as at 23 November 2010, as part of the reckoning of the $742,216 worth of shares transferred to her. That is, she argued it was already included in the transferred shares, and not an additional parcel or sum retained by her.
Mr S said that he recalled there was a parcel of shares in Mr Daniels’s name that was transferred to Ms Findlay, but also a parcel in her name that she had retained.
Mr S did not have supporting documents in court to support his memory of the second parcel. It seemed that I could not be satisfied that Ms Findlay had the benefit of an additional sum of $13,354.
However, I now note that at paragraph 23 of Reasons given by me on 26 July 2010, I refer to those IOOF shares as follows:
…So far as the share transfers are concerned, she [Ms Findlay] says that some are not accurate. She refers in particular to an IOOF transfer saying that the husband owns some IOOF shares. She wants him to retain those and for her to retain IOOF shares in her name...
It is clear that Mr S’s recollection was accurate. There were two lots of IOOF shares. Ms Findlay herself referred to them at that earlier hearing. I am satisfied she received the transfer of the husband’s IOOF shares, in addition to the benefit of retaining her own.
In those circumstances, I am satisfied that Ms Findlay received the equivalent of $742,216 via share transfers, plus $13,354 referable to her own IOOF shares, a total of $755,570 as claimed by Mr Daniels.

The Westpac Term Deposit Monies

At the time of the final hearing, there was a term deposit in the name of A-P Pty Ltd, the trustee company for the A Superannuation Fund. By the time it was removed in May this year, it stood at $253,192.
As noted, it was only at the end of May 2012 that Mr Daniels, his solicitors and N Firm discovered that the term deposit monies had been withdrawn from the Westpac account.
The Court has given Ms Findlay several opportunities since then to have the monies returned. They have not been, even though she admits that she knows that the money is held by or for Mr C, it seems in Europe.

Ms Findlay’s Case

Ms Findlay’s case, piecing together what she has said in submissions, and the scant relevant parts of her affidavit, is that Mr C and Ms H are now the independent directors of A-P Pty Ltd. She argues that the monies were held in the name of that company, and not on trust for the parties’ superannuation fund even though that company was the trustee of the fund. Her case is effectively that the directors are “protecting” the monies.
In her affidavit, she referred to various concerns for the directors, including:
·that Mr Daniels may take legal action against the trustee to claim that he has not received everything that he is entitled to when he has received “more than his fair share”;
·that the trustees’ wide powers include that they can hold “reserves against any contingent liabilities”;
·that there are real risks to the trustee “including me taking legal action against the Trustee”;
·a raft of complaints against Mr S;
·a criticism of Mr Daniels for not withdrawing the Westpac monies in 2010, and the on-going need to have an independent auditor of the entities being wound up by N Firm;
·that Mr Daniels has committed various “contraventions”; and
·that Mr Daniels “breached his financial duty and legal obligation to the fund and lost” the term deposit (see para 52).
Even putting her case at its highest, these assertions make little sense.

Mr Daniels’s Case

Mr Daniels’s version, supported by Mr Ryan and Mr S, is straightforward. The Westpac Term Deposit monies were the last sum requiring withdrawal from the bank for the winding up of the parties’ entities, including A-P Pty Ltd, as required under the final orders. The monies were an agreed part of the pool of assets at the final hearing, and were to be distributed to the parties after the payment of certain fees and expenses.
The monies were removed, unbeknownst to Mr Daniels, and the evidence points to Ms Findlay’s involvement as a deliberate attempt to thwart the final property orders. He points to a number of factors set out below.
First though, I need to assess the respective versions against the background of these proceedings.

The Background of Ms Findlay’s Conduct

I have referred many times to what was shocking conduct on Ms Findlay’s part, when she took documents from Ms Molyneux QC’s brief in the course of the trial. Based on that and all the trial evidence, I ultimately decided that she could not be trusted to have any role in the winding up of the parties’ entities and the distribution of assets and monies required to effect the final property orders.
Ms Findlay was very unhappy with the decision, that sidelined her from any involvement in the finalisation of the property orders. It is apparent that she has never accepted it. Her behaviour has worsened since the final orders.
In summary, she has continued to send offensive, obstructive and irrelevant emails to Mr Daniels’s solicitors, and N Firm. Her actions have made it clear that, despite protestations to me that she is cooperative and keen to bring about a conclusion to the property proceedings, it is not the case.
It is no coincidence that the proper withdrawal of the Westpac funds by Mr Daniels, had it occurred, was described in affidavit material by Mr S as the last step required in order to bring the matter to conclusion. That would have meant that Ms Findlay could not continue her crusade against Mr Daniels, his new partner, Holt & MacDonald, or N Firm, or at least she would have had less leverage in that crusade.
Throughout my Reasons for Judgment since the final hearing, I have referred to Ms Findlay’s lack of cooperation, her obstruction, and the irrelevancies of her material, largely centred upon an attempt to re-argue the substantive issues already resolved in the final property orders.
For example, at paragraph 7 of my Reasons for Judgment on 26 July 2010, when Ms Findlay was required to sign bank documents (including in relation to this term deposit) and hand over share details, I noted in relation to an email sent by Ms Findlay to Mr Daniels’s solicitor:
Unfortunately, that email is of a tenor common to many of the previous communications from Ms Findlay. There is no sign that she will cooperate in signing documents. This conduct is consistent with conduct referred to by me in previous Reasons for Judgment.
I note my orders of 21 January 2011, permitting the Registrar to sign various documents on Ms Findlay’s behalf, to remove her as a director of various entities, to effect a withdrawal of any bank funds (again including this term deposit) held in the parties’ joint names or the names of particular entities, and restraining Ms Findlay from appointing Mr Z to undertake or continue audit work of A-P Pty Ltd and the superannuation fund. I also ordered, pursuant to s 118 of the Family Law Act, that she not be permitted to file any applications without the leave of the Court.
Ms Findlay’s repeated claim that it is Mr Daniels and his solicitor and N Firm who have been delaying the distribution of assets, is nonsense. Mr Daniels has no reason to want it delayed. To the contrary, he has expended considerable time, energy and money in trying to bring matters to a conclusion.
I have noted at various times errors or “bungles” on his side. Ms Findlay has clung to them as an indication of bad faith on his part or the part of his solicitors. I find however that small but distracting errors have often arisen when Ms Findlay, who controlled the parties’ finances in the course of the marriage, could have and should have provided the relevant documents or details that could have corrected or averted such errors.
The reality is that it was only after Court orders that Mr Daniels was able to have Ms Findlay sign bank withdrawal forms to withdraw all funds held for the parties or their entities (including the Westpac monies), that she finally gave banks the points of identification they required from her before monies could be released, that proof of the accurate names in which certain shares were held could be obtained, and that other details required for share transfers were chased down.
In the course of May 2012, before it was ascertained by Mr Daniels that the monies had been removed from the Westpac account, I made a number of orders, all directed towards restraining Ms Findlay from making changes to the structure of A-P Pty Ltd, changes that were obstructing Mr Daniels from being able to obtain the Westpac monies or to obtain information from Westpac, information which, as it happens, would have led to the discovery by him that the monies were gone.
On 11 May 2012, I specifically restrained Ms Findlay from interfering with or moving the Westpac Term Deposit monies. The order was as follows:
2.That the wife, by herself or her servants or agents shall be and is hereby restrained from either directly or indirectly making or attempting to make any change to the shareholders, directors, secretary, addresses or any other office-bearers or registered details of the company [A-P Pty Ltd] or interfering and/or moving monies or providing any directions to Westpac Bank in relation to Account No. …or any account in the name of A-P Pty Ltd save for an order of this Honourable Court or direction from N Firm Accountants.
In her submissions, Ms Findlay referred to the fact that the monies in the Westpac account were in the name of A-P Pty Ltd, but not as the trustee for the A Superannuation Fund. That is, she was effectively trying to argue that these funds were outside the scope of the final property orders. It was a disingenuous and opportunistic argument.
Until raised just recently by her, this case has always proceeded on the agreed basis that the Westpac monies were part of the shares and cash in the parties’ A Superannuation Fund, referred to in paragraph 15 of the 22 December 2009 Reasons for Judgment after the final property hearing.
Paragraph 5 of the final property orders provided for the husband to engage N Firm to effect a transfer of the shares held in the A Superannuation Fund to the wife, and for the equivalent from monies held by A-P Pty Ltd as trustee for the A Superannuation Fund to be paid out to the husband.
Paragraph 9 of the orders provided that after the wife had received the share transfers, and the husband had received the bank deposit forms, Mr Daniels would do everything necessary to transfer any funds “remaining in the accounts of the [A Superannuation Fund]” into the Holt & MacDonald trust account, to pay various costs and expenses, before an equal division between the parties.
It became apparent from the recent production of Westpac documents that this particular term deposit account was in fact in the name of A-P Pty Ltd, without the reference to the superannuation fund of which the company was the trustee.
The agreed evidence has always been that the Westpac monies were part of the funds held by A-P Pty Ltd as trustee for the parties’ superannuation fund. A very belated reference by Ms Findlay, in submissions, to those monies being referable in any way to Mr C, Ms H or any other person or party is simply contrary to the concluded evidence.

The “Independent Directors”

That brings me to the issue of the “independent” directors. Ms Findlay has pursued a line throughout the enforcement proceedings, to the effect that A-P Pty Ltd, and latterly X Pty Ltd – and I shall trace the relationship between the two in a moment – have independent directors, beyond her control, who have their own fiduciary duties in relation to the company.
Ms Findlay’s “fingerprints” are all over the supposedly “independent” actions of Ms H and Mr C.
It is notable that I have heard of the directors’ independence primarily through Ms Findlay, not them. Mr C’s participation in these proceedings has been non-existent, Ms H’s minimal. Neither has sought to intervene, the only participation being in relation to an attempt to thwart the release of the Westpac documents that would have exposed that the term deposit monies were missing. Even then, Ms Findlay primarily took the running on that.
Unlike Mr C, Ms H has filed documents in the course of proceedings. There are four in total.
The first is her affidavit, filed on behalf of Ms Findlay on 4 August 2010. It contained not one reference to her responsibilities as a director, nor a reference to either A-P Pty Ltd or X Pty Ltd. The entire affidavit focussed upon Ms V, Mr Daniels’s partner, frequently the focus of Ms Findlay’s own affidavits.
Sadly, Ms Findlay has not recovered from the fact that Mr Daniels is in a relationship with Ms V. Just as her material has been peppered with irrelevancies about Ms V, including vindictive assertions, repeated on many occasions, that Ms V has genital herpes, and that she was connected with crime figures, Ms H’s affidavit made similar assertions. The affidavit gave no sense at all of Ms H’s independence from Ms Findlay, and contained nothing to suggest that Ms H had any concern about the companies or money held by the companies.
Ms H also filed an affidavit on 18 July 2012, after the discovery that the term deposit monies were missing.
In that affidavit, Ms H swore that she was appointed a director of A-P Pty Ltd in December 2011, with a set of specific objectives, all of which seem to mirror Ms Findlay’s objectives. She said the objectives included ensuring that “everything done by the company complied with the Corporations Act 2001 and the Superannuation Investments Act 1994.” She said it was to appoint an independent auditor to audit accounts prepared by N Firm, not only for that company, but also for the parties’ other entities, E International Pty Ltd, E Pty Ltd, and the A Superannuation Fund. I note that they are objectives that specifically cut across the final orders.
Ms H also swore that it was to ensure that the superannuation fund assets were divided equally between the husband and wife and that decisions were made independently and “based upon facts”. She said she was guided by Mr Z, the independent auditor:
UNTIL HIS PEREMPTORY [SIC] REMOVAL (I RECALL THAT THIS MAY HAVE BEEN AROUND FEBRUARY 2012 BUT THIS WOULD HAVE BEEN WHEN I WAS ADVISED BY [MS FINDLAY] THAT SHE WAS MAKING AN APPEAL AGAINST THE ORDERS).
Quite simply, in that affidavit, Ms H was doing Ms Findlay’s bidding. There was nothing to satisfy me that she was doing anything beyond that, and indeed her appointment and the role she said she was fulfilling were contrary to the final orders that had N Firm firmly in control of the distribution of assets between the parties. Her references to Mr Z being appointed to audit accounts were references to someone whose involvement had been specifically stopped by the Court, as an interference with the final orders.
Ms H's affidavit then went on to deal with the actual allocation of the parties’ assets, and referred to various items of contention between the parties, irrelevant in the sense that final property orders already existed.
As to a subpoena issued to her by Mr Daniels, she swore:
6. I HAVE NEVER SEEN AND DO NOT HAVE ANY BANK STATEMENTS OR OTHER DOCUMENTS RE [A-P PTY LTD] OR [X PTY LTD]. THE SUBPOENA ISSUED TO ME APPEARS TO BE A FISHING EXPEDITION AS IT IS IMPRECISE. NONETHELESS, I HAVE NOT RELEVANT DOCUMENTS AND REQUEST THAT [MR DANIELS] BE MORE SPECIFIC IF HE IS AWARE OF ANY DOCUMENTS (WITH DATES) THAT HE BELIEVES I HAVE, [sic]
7. MYSELF AND [MR C] WERE THE ONLY SIGNATORIES ON THE WESTPAC BANK ACCOUNT AND THE MONEY WAS TRANSFERRED TO [X PTY LTD] AS THE REPLACEMENT TRUSTEE OF A SUPERANNUATION FUND. THE FAMILY COURT WAS AWARE THAT THE FORMER TRUSTEE WAS REPLACED.
Otherwise, Ms H filed an objection to each of two subpoenas to the Westpac Bank (one to the Manager, one to “the Proper Officer”), on 22 May 2012. The objection to each subpoena was in the following form:
1.I am a director of [A-P Pty Ltd] and to my knowledge the company is not enjoined in the proceedings.
2.Documents re the subpoena were posted to the company’s registered office and have not been properly served.
3.The directors object to any person examining, copying or having any access to the bank statements, which are confidential to the company and refer the Court to the Privacy Act, Corporations Act 2001 and Companies law.
I noted in my Reasons for Judgment on 25 May 2012 that Ms H failed to appear on the day the objections were heard. I noted too (at para 13) that:
…Ms Findlay, who appears to be in close contact with [Ms H], tells me that Ms H had a very late night last night, ‘attending to various matters’, and it was unlikely that she would be available, even by telephone, until this afternoon…
I noted that Ms H’s failure to attend in itself would have been a sufficient end to her objections, but I went on to find that even had Ms H appeared to prosecute her objections, she had no valid grounds.
I noted then that throughout the property case, A-P Pty Ltd had been described as the trustee of the parties’ superannuation fund. That fund contained assets derived by the parties, and agreed as their assets at trial. They were to be distributed according to the final orders. Obstacles had been put in the way of that distribution. The subpoenas were served to aid the enforcement of the orders so that the remaining monies held by Westpac in the name of A-P Pty Ltd could be distributed to the parties and the company wound up as ordered.
I noted that the only impediment appeared to be the bank’s concern that Mr Daniels was no longer a director – something that needed to be unravelled – and that the bank’s documents might have cast light on that. I found it was pressing for Mr Daniels to have the right to inspect that material, and that there was no genuine basis of objection.
Of course, what I did not know then was that the money had already been taken. That was also not known to Mr Daniels. I am satisfied though that it was known to Ms Findlay, but she did not tell the Court.
As noted, Mr C has never appeared nor filed a document in this case. Although currently referred to by Ms Findlay as her friend, there was, at least in the past, a romantic attachment between them. Although she said that she urgently needed to travel to Europe to be with him because he was unwell, when pressed by me on 8 June 2012, she was evasive, and could not tell me of any address for service of documents on him. It did not ring true, that she was going to travel to spend time with him in Europe but did not know his address, the name of any hospital in which he was being treated for cancer, or where his motor home would be parked – when she said that is where she would be with him.
Exhibit H3 in this case is an email from Ms Findlay to Mr Ryan on 7 June 2012, the day before the case was due before me after it had been discovered that the term deposit monies had been removed. First, I note that the email reflected the abusive and incoherent manner of many of Ms Findlay’s emails, starting:
Sir,
Your client has been poorly served by you and your cohorts. I think he should sue you for your Calderbank ‘stuff up’!
Secondly, it asked if Mr Daniels would agree on a final settlement “or continue down the adversarial path you have set him on”, still showing no acceptance on her part that the “final settlement” had already been made by the Court orders in 2010.
Most pertinently though, her email cast light on her close relationship with Mr C, his lack of independence, and above all, the whereabouts of the funds, when she wrote:
Frankly, I am past caring. Money never meant anything to me. But I do care about my dear friend [Mr C]. He has said that he is so angry at [Daniels’s] interference in his divorce (and the evidence of multi rip-offs by your client that even your lap-dog [Mr U] couldn’t hide!) that he would rather die without seeing me again than to release $1 to [Daniels]. Don’t worry, the A Superfund money wouldn’t come to me!” [Emphasis added]

Exhibit H2 is the ASIC printout in relation to A-P Pty Ltd, as at 10 May 2012. It shows the company’s registered office at Ms Findlay’s home address, since 19 January 2011. It shows her as the secretary since 6 May 2011 (she was already the secretary, but under the name of Ms Daniels). It shows Mr C as a director from 13 February 2008, although that fact was of no prominence in the trial before me. His address is given as Ms Findlay’s home address.
Although at the time of the final property hearing, Mr Daniels and Ms Findlay were both directors, that changed after the property orders.
According to Mr S’s affidavit filed 2 April 2012, when Westpac told him that they would only release monies or deal with directors of the company, Mr S ascertained that Mr Daniels, unbeknownst to Mr Daniels or N Firm, had been removed as a director on 14 December 2010. The ASIC printout supports that, and shows that Ms H was appointed as a director, just some days later, on 20 December 2010.
On 6 May 2011, Mr S had Mr Daniels reinstated as a director. On that same day, again unbeknownst to either Mr Daniels or Mr S, he was again removed as a director. Also on that same day, Ms Findlay ceased as a director, although she had been one since May 1985. She was also reappointed as secretary that day.
To complete the picture of ASIC details, on 12 January 2011, a company X Pty Ltd, was added as a shareholder with Mr Daniels, with the address of both of the shareholders being Ms Findlay’s post office box in M Town.
X Pty Ltd was incorporated on 29 June 2010. Its registered office is at Ms Findlay’s address. She is the company secretary. On 28 December 2010, Mr C (again at Ms Findlay’s address) and Ms H were registered as directors. Ms Findlay was the previous director. She was the previous shareholder, but her share was transferred to Mr C on 22 February 2012, care of her post office box in M Town.
X Pty Ltd is the trustee of Ms Findlay’s superannuation fund into which her share of the parties’ superannuation fund was rolled over.
Ms Findlay denies anything to do with Mr Daniels’s removal as a director of A-P Pty Ltd in December 2010 and May 2011. The strong inference is to the contrary.
Mr Daniels certainly stood nothing to gain by his own removal. To the contrary, his status as an office-bearer had become a necessity in order to get the Westpac monies.
There is no material before me to suggest that Mr C in Europe or Ms H took any part in his removal. The company secretary role was held by Ms Findlay. Although in that role it is expected that she would be the holder of the corporate key – the electronic password for ASIC lodgement purposes – in April 2012, at the start of this round of enforcement, she professed ignorance about it. That did not ring true.
It seems in any event that she subsequently admitted having access to the corporate key, as one of the “authorised company officers”, when she swore at paragraph 36 of her affidavit filed on 20 August 2012:
How does [S] come to ‘believe’ that I possessed ‘the Corporate Key’? I sent him an email on 20^th December 2010 TELLING HIM that a new Corporate Key had been requested [Annexure 11 20^th Dec 2010] The Corporate key is available to all authorised company officers. He has just been wasting time. Winding up the companies has nothing to do with ASIC. It is a matter for the owners and directors. So, it is up to [X Pty Ltd ATF A Superannuation Fund]. I believe that C disputes any authority of the Family Court;
In any event, clearly under the final property orders, only N Firm should have been dealing with any changes to company office-bearers, as part of their role in the winding up of the company.

The Westpac File

Ms Findlay’s prominent involvement in the removal of the Westpac monies can also be seen from Exhibit H1, a bundle of Westpac correspondence from the subpoenaed material, tendered on 29 May 2012.
On 15 January 2012, an email was sent from the “Directors [A-P Pty Ltd] […@gmail.com]”, signed off by “[Ms] Findlay (Company Secretary) on behalf of the Board of Directors”. Interestingly, although Ms Findlay has now tried to take the point that the monies in the Westpac term deposit were not held for the parties’ superannuation fund, the subject-line was “[A-P Pty Ltd ATF A Superannuation Fund].” That is, in line with how the case was always run before me, that A-P Pty Ltd held these funds as trustee for the parties’ superannuation fund.
The email, to Ms B, showed that Ms Findlay was endeavouring to make arrangements with the bank about this term deposit. She wrote:
The 3 month term matures today (Sunday) so $240,000 is to be rolled over for a further 3 months and the balance to be at call…..Is it possible to set the call account up on the internet so that Directors can authorise direct transfers to pay Accountants and Auditors?
She then wrote:
If you need another account application form done for the new account just let me know and I will organise to get it done.
Can you let me know the amount over $240k to be withdrawn from the Term Account and I can get the withdrawal form completed and dropped in to you.
Not only does it show Ms Findlay’s direct involvement with these monies, but it was absolutely contrary to the Court’s final property orders. Neither Ms Findlay nor anyone else, except N Firm instructed by Mr Daniels, had any place at all to be involved with the company assets.
On 17 January 2012, Ms B replied to Ms Findlay, explaining that the bank could not act on instructions received by email, and recommending that one of the directors come down to the local Westpac branch “to discuss the requests”.
The “directors” of A-P Pty Ltd again wrote to Westpac on 25 January 2012. It was a terse email, written very much in the tone of Ms Findlay’s emails throughout the long history in this case, including with various capitalisations for emphasis. It advised that “the full balance will be withdrawn IN CASH on maturity.” It advised that the company secretary Ms Findlay would attend at the branch with directors’ authority to collect the “CASH”.
Clearly the bank understood it was corresponding with Ms Findlay, Ms B replying, “Hi [Ms Findlay],” on that same day, reiterating her advice that one of the directors would need to attend at the branch for requests to be actioned or funds disbursed.
On 26 April 2012, again from the same email address for the directors of A-P Pty Ltd, an email signed off as being from Mr C was sent to the bank, purporting to be his authority for money from the Westpac account to be transferred to the Commonwealth Bank on the following day.
I note the timing of this email: two days after the matter was in Court before me on 24 April 2012, in a hearing directed specifically towards these monies being released to N Firm. The case had just been adjourned until 11 May 2012 for the filing of new material.
On 29 April 2012, the directors of A-P Pty Ltd made a complaint to the Banking Ombudsman headed, “URGENT COMPLAINT FROM [A-P PTY LTD] RE WESTPAC BANK WITHHOLDING NEARLY $250K”, with a copy to Westpac. Nearly all of the email is typed in uppercase. It is a complaint as to how Westpac had not transferred the term deposit monies to the nominated bank, despite instructions from Ms H and Mr C.
Importantly for present purposes, it said at paragraph 7:
THE COMPANY SECRETARY [Ms Findlay] DELIVERED THE ORIGINAL FORM (SIGNED BY [MR C]) TO WESTPAC [M TOWN] WHERE THE SIGNATURE WAS VERIFIED AND THE DOCUMENTS WERE FAXED BY WESTPAC [M TOWN] TO WESTPAC [SUBURB 1]27 APRIL 15.26;
The email demanded that the monies be “IMMEDIATELY TRANSFERRED TO X Pty Ltd (ATF A SUPERANNUATION FUND)” in the Commonwealth Bank.
The email noted that “an ‘EX-DIRECTOR’ of A-P Pty Ltd opened the original term deposit account without any authority of the Board of Directors.” It described Mr Daniels as having been “legitimately removed” as a director at an AGM. It referred to “unauthorised accountants of [Daniels] attempted to reinstate him but ASIC had been forewarned.” It said the accountants were under investigation by ASIC.
The email also described a “matrimonial property dispute before the Family Court between [Daniels and Findlay]” but that “A-P” had not been “enjoined” and the matter had nothing to do with Westpac.
Although signed by the directors of A-P Pty Ltd, it noted at the foot “NB the complaint and this email are authorised by the directors.”
Ms Findlay clearly knew that Mr Daniels had been removed as a director of A-P Pty Ltd and knew that N Firm had tried to reinstate him. It was misleading, referring to N Firm as “unauthorised accountants”, and to suggest that there was “a matrimonial property dispute before the Family Court”. The matrimonial property dispute had already been resolved with final orders. By April 2012, there was no matrimonial property dispute, only enforcement proceedings. And, under the orders, N Firm were the authorised accountants to achieve the winding up. It was also simply untrue, on all the evidence at the final hearing, that the original term deposit account was opened by an “ex-director…without any authority…”.
On 30 April 2012, the office of the Financial Ombudsman wrote to Ms Findlay, confirming that the dispute she had lodged against Westpac, with Ms H and Mr C as the applicants, had been registered.
I note then that on 5 May 2012, the directors of A-P Pty Ltd sent an email to Westpac. They acknowledged the receipt of the monies into the A Superannuation Trust Account with the Commonwealth Bank, but referred to costs incurred, including “Ms Findlay’s time (charge 4 hrs @ $260 per hour = $1250)”. This email was signed:
Director, [A-P Pty Ltd] and [X Pty Ltd] (ATF [A Superannuation Fund])
A little later on 5 May 2012, the “Directors [A-P Pty Ltd]” wrote to Westpac with an email that started “WOW! DID YOU MAKE WESTPAC JUMP. THE MONIES WERE TRANSFERRED TO THE TRUSTEE OF [A SUPERANNUATION] FUND ON 30^TH APRIL.”
Before me, Ms Findlay admitted that, although signed off from “the Directors”, she had written that email on their behalf.
Conclusion re: Westpac Deposit Monies
Ms Findlay’s account, that she is not behind the removal of the Westpac monies, is simply not a credible one.
Despite her direct involvement, when the matter was back in court before me on 11 May 2012, Ms Findlay gave no indication whatsoever that these monies were to be or had been withdrawn, and was silent about it while I made the specific order (in paragraph 2) to restrain her by herself or her servants or agents from changing any of the office bearers in A-P Pty Ltd “or interfering and/or moving monies or providing any directions to Westpac Bank in relation to account number …or any account in the name of [A-P Pty Ltd] …”.
Ms Findlay has at numerous times made it clear by her words and her conduct that she would obstruct these court orders. As I have noted, it is telling that the payment of this sum is the last major step before these orders can be finalised and the connection between the parties severed once and for all.
There was no suggestion in the final hearing that these monies did not belong to the parties. There was no such suggestion throughout enforcement proceedings when Ms Findlay was required to sign bank documents or attend to bank needs for the monies to be distributed to the parties. It is a recent invention on her part, to suggest that these monies belong to other people, and her efforts to direct the funds to them are contrary to the final orders.
She has been integrally involved with the relevant documents and correspondence to affect the withdrawal of the term deposit, and although she claims to have been participating as company secretary “on behalf of directors”, this Court has seen little of any active involvement of those two other people. Most importantly, Ms H, in simply rehearsing the arguments put elsewhere by Ms Findlay, has failed, just like Ms Findlay, to appreciate the long-standing final orders.
Despite Ms Findlay’s cunning manoeuvres so as to appear to have moved the control of these monies to Ms H and Mr C, I am satisfied that she has complete access to them, that they are probably in Europe where she herself was heading until stopped by the Court, and she has deliberately attempted to retain the monies outside the pool for distribution.

Interest on the Westpac Deposit Monies

Mr Daniels claimed lost interest on the term deposit monies, being $5,350 as at the day of hearing. He applied a notional interest rate of 5 per cent from 15 April 2012, when the deposit matured but was not renewed. Ms Findlay said that the interest rate was too high, but offered no material to support an alternative rate.
I accept Mr Daniels’s assessment as reasonable. I note that when the term deposit was lodged on 15 January 2012, the interest rate was 5.5 per cent for the three months until maturity. Although Ms Findlay said that the interest rate would always be higher for a period between one and three months, Mr Daniels attached a Commonwealth Bank interest rate document, as at 11 May 2012, showing interest rates quoted for a sum in the vicinity of this investment, at about 5 per cent if invested for 12 months, six months or three months.
As the monies were not reinvested on maturity on 15 April 2012, as they should have been, I am satisfied that interest as at the day of the hearing was $5,167. I have accepted 5 per cent as a fair interest rate, but arithmetically, the calculation is a little lower than submitted by counsel.

Conclusion re the Sum Outstanding

Ms Findlay claims she is owed money by Mr Daniels, it seems around $200,000, but neither in her affidavit nor in her submissions was there a cogent account as to how that could be sustained. Similarly, she was complaining about motor vehicles retained by the parties. Such complaints traversed the matters already determined with final orders.
I am satisfied that Ms Findlay has retained assets to the value of $389,371, shares to the value of $755,570, the term deposit monies of $253,192, and interest as at the date of hearing of $5,167, a total of $1,403,301.
Mr Daniels has so far received a distribution of assets in the sum of $1,230,214.
For the parties to receive an equal distribution as required under the orders, he needs to receive the sum of $173,087. The interest component continues to mount. There are also outstanding costs to which I will now turn.

OUTSTANDING COSTS

The costs outstanding fall into several categories.

From the Final Orders

Mr Daniels is still owed $15,000 from a costs order that was part of the final property orders.
Under paragraph 19 of those orders, Ms Findlay was to pay $50,000 towards his costs. He received $35,000 via paragraph 9(a) of the orders, which directed that a sum of $35,000 due to Ms Findlay be directed towards those costs. I accept that the balance of $15,000 remains outstanding.

Fixed Costs Since the Final Hearing

Since the final hearing, fixed costs to a total of $15,272 have been ordered in Mr Daniels’ favour. They have been paid.

Full Court Costs

On 25 June 2012, the Full Court ordered the wife to pay the husband’s costs on appeal, on a party/party basis, to be assessed if not agreed. They have not been agreed, and now await assessment.
Mr Combes for Mr Daniels says that a sum of $20,000 would be sufficient to cover those costs, as well as a small amount remaining outstanding to N Firm.

Reserved Costs

Mr Daniels seeks costs for the hearings, reserved by me or Macmillan J, on 11 May, 25 May, 29 May, 30 May, 8 June and 17 July 2012.
Mr Ryan reckons that costs for preparation and the appearances on an indemnity basis total $36,652.93, or a sum of $32,152.42 on scale. He attaches to his affidavit relevant statements of account.
Costs are determined under s 117 of the Family Law Act. Section 117(2A) sets out the matters that the Court should consider in exercising its discretion as to an order for costs.
There is a strong argument in favour of Mr Daniels receiving his costs of the reserved hearings. They have been brought about predominantly by the course of conduct on Ms Findlay’s part, designed to obfuscate, delay, and interfere with the finalisation of the orders. Her poor conduct has culminated in monies being removed, and appearances at court during which she was clearly conscious of the steps being taken to remove them. Nevertheless, she allowed expensive enforcement proceedings to continue, without any proper disclosure being made to the Court. And since the removal of the monies has been ascertained, she has not responded to orders for them to be returned.
In Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FLR 225, the Federal Court held that the circumstances for indemnity costs include the wilful disregard of known facts, the making of allegations which ought never have been made, or the undue prolongation of a case by groundless contentions. It is however a discretionary matter as to whether the facts and circumstances of the case warrant the making of an order for the payment of costs other than on a party-party basis (see the Full Court of the Family Court decision in Yunghanns and Yunghanns (2000) FLC 93-029).
I need to take into account the parties’ financial positions. In particular, I note that Ms Findlay has already received almost $1.5 million by way of property settlement, so she has received the resources from which to pay a costs order.
When it comes to Ms Findlay’s conduct, for reasons set out above, I am satisfied that Mr Daniels is entitled to costs, and those costs should be on an indemnity basis.
I am conscious that there have been various amendments to the applications brought by Mr Daniels since this round of proceedings started in early April 2012. From time-to-time, I have been critical of poorly conceived applications. That said, even when part of an application was poorly conceived, I have still made some orders in Mr Daniels’s favour. For example on 11 May 2012, I acceded to a part of his application, making a restraining order against Ms Findlay, ironically in relation to the funds that she had already had a role in removing.
The difficulty for Mr Daniels and his legal representatives, in deciding upon appropriate applications, has been compounded by the “ducking and weaving” on Ms Findlay’s part, including her claims of no proper service when she has clearly known the detail of applications, her very late filing of documents, her lack of honest disclosure, and her wilful obstruction of the final orders.
I conclude that Mr Daniels is entitled to indemnity costs in relation to the proceedings since his application filed 2 April 2012, including each of the reserved hearing dates, save for the hearing on 17 July 2012. On that day, the Court was advised by counsel that Mr Daniels would proceed with enforcement rather than contravention proceedings and the case was adjourned for that to occur. I have no criticism of the decision, but received no substantial explanation as to why the enforcement proceeding could not have been prepared between 18 June and 17 July, rather than requiring another adjournment.
In the absence of agreement, the indemnity costs should be assessed by the Registrar. I shall allow Ms Findlay a short time to agree on costs. It would be in her interest to save the costs of assessment, if that can be done.

THE WARRANT OF ENFORCEMENT

Part 20.3 of the Family Law Rules2004 deals with enforcement warrants. Although Mr Daniels has filed the appropriate affidavit material to support an enforcement warrant, he has not filed the proposed warrant itself, as he was first seeking the declaration from the Court as to the sum outstanding, it having been a matter of conjecture between the parties.
The Court has the discretion to vary the Rules to ensure that cases are dealt with in a fair, timely and proportionate manner. I am satisfied that Ms Findlay has had ample notice of the material relied upon by Mr Daniels in support of the enforcement warrant, and that the appropriate course now is to proceed with the issuing of that warrant which should be directed to the Marshal of the Family Court of Australia or his nominee.

Although Mr Daniels’s application proposes that Ms Findlay be given seven days to pay the amount outstanding before execution under the Enforcement Warrant, I do not propose to make that order. She has so far not responded to ample opportunities to pay. Her attitude and conduct give no confidence. Of course she can still pay, and if she chooses to do so forthwith, she may retain her home.
I have set out above that I am satisfied Ms Findlay owes Mr Daniels $173,087 pursuant to the final property orders. She also owes $15,000 in the costs unpaid from those final orders. That is a total of $188,087.
There is currently a balance of $48,970 held in the L & M trust account for the parties. I accept the proposal on behalf of Mr Daniels that a sum of $20,000 should be retained in that account to cover the appeal costs ordered to be paid to him on 25 June 2012 but not yet assessed, and a small balance of fees outstanding to N Firm. That is a practical way to ensure that those uncertain amounts can be met. I am satisfied that $20,000 is a reasonable reckoning to cover them both. If any small sum remains, it shall be distributed equally between the parties in due course in accordance with the final orders.
The balance of $28,970 in the Holt & MacDonald trust account should, as proposed by Mr Daniels, be paid out to him.
That then leaves the sum of $159,117, to be paid to him from the sale proceeds of the wife’s property. That sum will be paid after all the expenses of sale have been met, including all costs associated with the enforcement of the warrant, all agents’ and selling expenses, and any reasonable expenses associated with the presentation of the property, upon the advice of the agent appointed by or on behalf of the enforcement officer.
I can have no confidence that Ms Findlay will comply with orders to pay outstanding costs. Accordingly, I am satisfied that the proceeds of sale of the real property, after the payment of the sums just set out, should be paid by the enforcement officer into the Holt & MacDonald trust account to pay to Mr Daniels any outstanding agreed or assessed costs as ordered, and then the balance to be paid to Ms Findlay.
In the event that Ms Findlay pays the specified sum outstanding before the warrant is executed, but the costs have not yet been agreed or assessed, the execution of the enforcement warrant shall be stayed pending such agreement or assessment, and if not paid by Ms Findlay within seven days of such agreement or assessment, the husband may apply to the Court at short notice for an order for the stay to be lifted and the execution of the enforcement warrant to proceed.
For completeness, I shall restrain Ms Findlay from in any way encumbering, damaging or dealing with the property pending its sale. Mr Daniels shall be entitled to insure the property, and for that purpose he may give a copy of these orders to any proposed insurer.

THE ORDERS

Rule 20.24 of the Family Law Rules applies to the sale of real estate. Under that rule, a payee, payer or enforcement officer may apply for an order to cover the various conditions and details of sale, including as to the possession or occupancy of the property until its sale. I have not heard detailed submissions about that. I should do so before making the final orders.

In addition, counsel for the husband is entitled to make a submission as to costs arising from this application, filed on 30 July 2012.

Otherwise, the orders I propose, subject to submissions as to form, are as follows:
1.That the amount outstanding in the husband’s favour owed by the wife pursuant to the final orders dated 9 March 2010 is declared to be $188,087, plus interest of 5% per annum on the sum of $253,192.13 from 12 September 2012 until the date of payment.
2.That the husband is hereby permitted to instruct Messrs Holt & MacDonald solicitors of R Street, R suburb, that from monies held on behalf of the parties in their trust account, they must:
(a)   Pay to him the sum of $28,970 towards the sum owing to him by the wife pursuant to paragraph 1 of these orders;
(b)   Pay to him the costs owing to him by the wife pursuant to the order of the Full Court of the Family Court of Australia on 25 June 2012, in such sum as agreed or assessed; and
(c)   Thereafter pay to N Firm Accountants any outstanding fees arising from the orders of 9 March 2010.
3.That the wife is hereby ordered to pay to the husband costs on an indemnity basis in relation to the preparation for and appearances at hearings before this Court on:
(a)   11 May 2012;
(b)   25 May 2012;
(c)   29 May 2012;
(d)   30 May 2012; and
(e)   8 June 2012;
the quantum of such costs to be agreed within 14 days of these orders, and failing agreement to be assessed by a Registrar of the Family Court of Australia.
4.That upon the written undertaking of the husband to pay all reasonable fees and expenses associated with the enforcement, if they are greater than the amount recovered on the enforcement, an enforcement warrant shall hereby be issued directed to the Marshal of the Family Court of Australia or his nominee to sell the real property known as C Street, M Town being the property more particularly described in Certificate of Title Volume … Folio … (“the [M Town] property”) and to deal with the sale proceeds as follows:
(a)   To meet all the fees and expenses associated with the enforcement;
(b)   To meet all the fees and expenses associated with the sale;
(c)   To pay to the husband the sum of $159,117 plus interest of 5% per annum on the sum of $253,192.13 from 12 September 2012 until the date of payment;
(d)   To pay the balance into the trust account of L & M to be dealt with as follows:
i.To pay to the husband all costs owing to him by the wife under these orders forthwith upon their agreement or their assessment, whichever occurs first; and
ii.Then forthwith to pay to the wife the balance.
5.That in the event the wife pays the total amount declared outstanding to the husband in paragraph 1 of these orders (less the sum of $28,970 that he shall receive pursuant to paragraph 2(a) of these orders) before the enforcement warrant is executed, but before the costs in paragraph 3 of these orders have been agreed or assessed, execution of the enforcement warrant shall be stayed pending further Court order which may be obtained by the husband on short written notice.
6.That pending the sale of the M Town property the wife is hereby by herself, her servants or agents, restrained from selling, encumbering, damaging or in any way interfering with the M Town property, or attempting to sell, encumber, damage, or in any way interfere with the M Town property.
7.That the husband shall forthwith do all acts and sign all documents to register the enforcement warrant on the Certificate of Title of the M Town property.
8.That pending the conclusion of the enforcement of the property orders in accordance with the warrant of enforcement, the husband shall be entitled to insure any buildings including any sheds and fencing situate at the M Town property and to satisfy an insurance company that he has an insurable interest in that property.
9.That for the purposes of the preceding paragraph of these orders, the husband may serve a copy of these orders upon any insurance company with which he is endeavouring to arrange insurance over the M Town property.
10.That otherwise all existing applications shall be dismissed.

I certify that the preceding one hundred and eighty one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 4 October 2012.

Associate:

Date:

[2012] FamCA 864

Key Legal Topics

Areas of Law

Civil Procedure

Equity & Trusts

Contract Law

Legal Concepts

Abuse of Process

Breach

Costs

Damages

Injunction

Remedies