Frisk and Frisk

[2008] FamCA 1013

FAMILY COURT OF AUSTRALIA

FRISK & FRISK [2008] FamCA 1013

FAMILY LAW – PROPERTY – Registrar’s clause

APPLICANT: Ms Frisk

RESPONDENT: Mr Frisk

FILE NUMBER: BRC 9590 of 2008

DATE DELIVERED: 12 November 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 11 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms N A Martin

SOLICITOR FOR THE APPLICANT: Berck & Associates

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Mr Jones, of Jones Mitchell Lawyers

Orders

1. A Registrar of the Family Court of Australia forthwith sign the mortgage in the form Annexed to the Affidavit of the wife filed herewith in compliance with clause 8.3 of the Binding Financial Agreement entered into between the parties dated 10 March 2008.

2. Costs of and incidental to today’s hearing be paid on a solicitor and client basis.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC9590 of 2008

MS FRISK

Applicant

And

MR FRISK

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of the wife filed on 21 October, in which- - -

   RECORDED  :  NOT TRANSCRIBED

   - - -she seeks an order directing the respondent husband to comply with certain clauses in a financial agreement or, in lieu thereof, should he have failed to do so have the Registrar of this Court sign all necessary documents to comply with the agreement reached between the parties in- - -

2. If I might just briefly précis the full agreement  - and it appears to me to be an agreement that has gone into in a lot of detail, a lot of work has gone into it, I will be making one comment about it at a later stage - but in clause 7 of that agreement it seems to indicate that the respondent, who is at this stage a very successful businessman, is to pay to the applicant, who is his wife, now separated, an amount of 22.5 million in accordance with 7.1, 2, 3 and 4.  In effect, these are instalments which will pay out the 22.5 million over a period up until 10 September 2012.

3. In so far as cl 8 is concerned it says inter alia, but in particular par 8.3 as follows:

   "That as and by way of security for the payments to be made to [the wife], [the husband] shall provide a second mortgage secured over the [S property] to the extent of $10 million such mortgage to remain in place until all payments have been made to [the wife] pursuant to cl 7 above."

4. It appears from the only material that is before me - and that is the affidavit of the applicant wife - that the 2.5 million was paid on the due date, that is 10 March.  Subsequently she has lent back to the respondent an amount of $1 million, which she says has not been paid and she says thereafter the agreement  reached between the parties in 7.2 has not been complied with.

   RECORDED  :  NOT TRANSCRIBED

5. I am now informed from the Bar table that in fact of that one million 500,000 has been paid back subsequent to the affidavit of the applicant of 21 October.  I was not informed of that yesterday, verbally or otherwise.

6. However, 7.2 has not been complied with, that is $10 million to be paid on or before 10 September 2008.  Notwithstanding that - and that may have something to do with another clause in the agreement  - the wife insists upon the respondent complying with 8.3  She has called upon him to sign a second mortgage document, which she has supplied to him.  He has countered, as I understand from Mr Jones who appears on behalf of the respondent husband, a second mortgage with different conditions and/or terms contained therein.

7. As a result thereof Ms Martin of counsel on behalf of the applicant wife submits that cl 29.2 of the agreement comes into force and effect.  Clause 29.2 is as follows:

   RECORDED  :  NOT TRANSCRIBED

   "If either of them fails or neglects to sign or execute any deed or instrument after seven days of being required to do so the Registrar or Deputy Registrar of the Family Court of Australia at Brisbane is hereby appointed, empowered and directed to sign or execute such deed or instrument on behalf of either party upon presentation of such deed or instrument and an affidavit of the legal practitioner acting on behalf of the requesting party as to the failure or neglect."

8. And in 29.3 the parties - it consents to the Family Court making an order that this agreement  is enforceable as if it was an order pursuant to par 90K(c).  I do not understand that there is any difficulty with that.

9. If that was the only clause that I had to consider this matter would obviously not, I would have thought, come to Court.  But, however, Mr Jones refers to cl 38.1, which is under the subheading "dispute resolution" and it says:

   "[the husband] and [the wife] agree and acknowledge that:

   that any and all future disputes under this agreement as to its interpretation, implementation or enforcement, including any claim by one party that it should be set aside or varied, will be determined by an approved arbitrator agreed between them in accordance with the Family Law Rules."

   38.2 says:

   "The issue of Court proceedings will be their last resort and the Court's role limited to determining any such dispute referred to in paragraph 36.1 above."

   RECORDED  :  NOT TRANSCRIBED

10. 36.1 says:

    "[the husband] and [the wife] agree and acknowledge that they have no legal or equitable interest in any other assets or financial resources not otherwise referred to in Schedule A and Schedule B to this agreement whether jointly or separately."

    I have had a brief look at those schedules.  There is an enormous amount of money involved.  There is also an enormous amount of debt involved.  It fell from Mr Jones or was it you, Mr Martin, that there's something like $250-odd million worth of property, but there could be almost an equivalent amount of debt.

11. Further facts I should point out.  The property at S was the former matrimonial home which the wife has now vacated.  It is agreed it being valued at $17.5 million, which at this day and age might be somewhat difficult to get, but it also is mortgaged to a bank in the sum of seven and a half.  Obviously, that $10 million equity, if it is still there, is the equity over which the second mortgage will be granted and this will of course, if in fact it takes place, protect the applicant from the machinations of any creditors other than the creditor first in priority, that being the bank of the first mortgage.

12. I understand, it has fallen once again, that the applicant has filed a caveat which will expire pursuant to the Act in mid December or thereabouts.  The caveat may protect her from the respondent dealing with the property, but should the respondent's companies and himself fall into disarray it would not protect her from the machinations, if I can put it that way, of a trustee in bankruptcy or liquidators or it would not make it immune to the attacks by creditors other than for the 7.5 million for the first mortgage.

13. She is concerned about that.  It has once again fallen from Mr Jones that the husband has gone overseas for a period of two weeks, left last evening, in an endeavour, as I understand, to raise further funds.  It may be in this day and age that he is finding it somewhat difficult to service his loans, although there is no evidence before me to that effect and I make that quite clear.

14. The wife says (1) as a result of his failure to repay the $1 million, (2) as a result of his failure to comply with 7.2 of the agreement, and (3) as a result of in the preamble some mention of the high level of debt, that she is concerned that the respondent's financial position may be a little shaky, but even forgetting that she is of the opinion that he should comply with the agreement .

15. Mr Jones says that this is a jurisdictional question and as a result thereof he did not put any material countering the applicant's material, wherein there is any dispute about the evidence and says that since this is in effect an old Scott and Avery clause, which loomed large in many building dispute, that this Court is unable to hear any matter until such time as the provisions of 38 have been complied with.

16. Regrettably, I do not agree with such submission.  29.2 particularly refers to the failure or neglect to sign or execute any deed or instrument.  Obviously a Bill of Mortgage is an instrument.  I do not think I need to refer to anything other than the common knowledge of that and also it is the Acts Interpretation Act or it might be under the Securities Act.  Anyway, it is quite clearly an instrument.

17. Therefore, 29.2 is specifically referring to the neglect to sign or execute a deed.  It is a specific provision where 38.2 is a general.  Obviously I would have thought that legal interpretation of any form of documents indicates that a specific provision takes precedence over a general provision and I am of that persuasion.

18. However, I had overlooked a submission from Ms Martin of counsel to the effect that there is no dispute if in fact 38 applies.  She says there is no dispute since there is no evidence before the Court that the parties are in dispute.  Mr Jones refers to some correspondence exhibited to the only affidavit before me and further says that if - I infer from his general submissions - that if the respondent sends a document which is different to that which the applicant says is the one that should be complied with that in itself is a dispute.  That may be the case.  I do not think it is necessary for me to determine that. 

19. I am of the opinion that cl 29.2 applies.  That on the evidence before me the respondent has failed and/or neglected to execute the document referred to in 8.3 and consequently, seeing he is out of the country as I am told, I will order:

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

20. In this matter unfortunately I think I now have to give brief reasons for why I am going to order costs.

21. First of all, the respondent has totally failed.  With great respect to the respondent, I do not believe that his argument was worth very much at all.  He has got more than sufficient assets to be able to pay for the costs.

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date: