Gray and Samuel and Anor

[2010] FamCA 962

FAMILY COURT OF AUSTRALIA

GRAY & SAMUEL AND ANOR [2010] FamCA 962

FAMILY LAW – PROPERTY – Release of funds – Interim distribution of monies – Case management orders

APPLICANT / INTERVENOR: M Gray

WIFE: Ms Samuel

HUSBAND: Mr Gray

FILE NUMBER: MLC 5770 of 2009

DATE DELIVERED: 16 SEPTEMBER 2010

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 16 SEPTEMBER 2010

REPRESENTATION

COUNSEL FOR THE WIFE: MR KIERNAN

SOLICITOR FOR THE WIFE: GRIFFIN SWEENEY LAWYERS

COUNSEL FOR THE HUSBAND: MR CLARK

SOLICITOR FOR THE HUSBAND: ZERVOS LAWYERS

COUNSEL FOR THE APPLICANT/INTERVENOR: MR MORT

SOLICITOR FOR THE APPLICANT/INTERVENOR: PHILLIPS & WILKINS

Orders

IT IS ORDERED:

1. As to the undertakings provided to the Court and contained within the Orders pronounced 3 September 2010 the following shall continue to apply:

   i.Pursuant to paragraph 2 thereof, the Second Named Respondent and the Third Named Respondent Intervenor (“the Intervenor”) be released from their respective undertakings which shall then be discharged;

   ii.Pursuant to paragraphs 1 and 3 thereof, the undertakings there provided by the husband are to continue in full force and effect.

2. THAT the husband be released from his undertaking given by him to the Court on 14 September 2010 and such undertaking be otherwise discharged.

3. PURSUANT to the Orders made 14 September 2010 paragraph 3 thereof be varied so as to provide that the requirement of the husband to file and serve his Response and affidavit be extended to 4 October 2010 and such affidavit respond in detail to the affidavits now filed on behalf of the Intervenor and the wife and provide all facts relied upon by the husband as to the financial and commercial matters in dispute in these proceedings.

4. THAT each of the husband and wife make, file and serve an updated financial statement on or before 4 October 2010.

5. THE husband and the Intervenor forthwith instruct and authorise the proper officer of the Laiki Bank (Australia) Limited to release the total funs credited in the account in the name of the Second Respondent (acc no. …24) and any accrued interest thereon, to the trust account of the solicitors for the Intervenor and there to be dispersed as follows:

   iThe sum of $10,500.00 to the Intervenor;

   ii.the sum of $10,500.00 to the solicitors for the husband, but always subject to the requirements of Order 6 hereof;

   iii.in payment of the corporate accounts outstanding as follows:

   ·Land tax $5,167.00;

   ·GST payable on behalf of the Second Respondent and for the months of March, June and September 2010;

   ·all fees and monies owing to ASIC;

   ·the accounting fees payable to Mr G;

   ·the council rates for the first floor apartment at S;

   ·the building and structural insurance on the whole of that S property.

   iv.And with the balance of any and all monies remaining to be retained on trust by the Intervenor’s solicitors pending further Order of the Court or agreement of all parties.

6. PURSUANT to paragraph 5.2 hereof, and from the monies that were to be payable to the husband’s solicitors, there first be paid the following:

   i.The sum of $2,900.00 to the wife’s solicitors pursuant to paragraph 8 of the Orders of this Court pronounced 7 January 2010;

   ii.the sum of $3,400.00 to the wife’s solicitors pursuant to paragraph 3 of the Orders pronounced 20 August 2010;

   iii.the further sum of $2,750.00 to be paid to Mr R, Registered Valuer, pursuant to the Consent Orders pronounced 7 January 2010;

   iv.the balance of monies to be retained by the husband’s solicitors on his behalf.

7. THAT the intervenor make, file and serve a further affidavit prior to the adjourned hearing setting out all accounts paid by him on behalf of the Second Respondent or pursuant to these Orders.

8. THAT the husband pay the wife’s costs of this day fixed in the sum of $900.00 and the costs of the Intervenor fixed in the sum of $1,500.00.

9. ALL extant applications be otherwise adjourned and consolidated with proceedings listed before Cronin J on 12 October 2010 at 10:00 a.m.

10. THAT the ex tempore reasons for judgment be transcribed, be placed upon the Court file and made available to all parties.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the wife, husband and Intervenor.

IT IS NOTED

A.The Intervenor has advised the Court and the other parties that, pending the further hearing on 12 October 2010 he will refrain from taking any action or giving any directions pursuant to his position as the sole appointer and legal guardian of the Gray Family Trust.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5770 of 2009

MS SAMUEL

Wife

and

MR GRAY

Husband

and

M GRAY
Applicant/Intervenor

REASONS FOR JUDGMENT

1. The matter of Gray & Samuel and others is before me by way of a referral from Cronin J who had the matter before him on Tuesday of this week.  On that occasion his Honour was in a busy Duty List and he accepted an undertaking from the husband as to damages in the form recorded in his order, and otherwise paragraphs 3, 4, and 5 of the application of the intervenor was adjourned to me to be heard this day.  I have read those Orders of his Honour, and the Notation to the Order in respect of the undertaking.  In the matter before me today, Mr Kiernan of Counsel appears for the wife;  Mr Mort of Counsel appears for the brother M Gray, who pursuant to a previous order of Registrar Kaur of this Court is an Intervenor in these proceedings and will be shown as such on the Orders rather than now being described as the Third Respondent. 

2. The Second Respondent is the investment company of the husband and the Intervenor, and they are not represented in these proceedings before me today.  I note that previously they had been represented by Counsel who had, from time to time, appeared for the husband, but that situation has seemed now to have changed.  Mr Clark of Counsel represents the husband.  Neither the husband nor wife were in Court this day.  The Intervenor was in court.  There was no issue of service, given the representation of the husband, and on that basis I had the Application in a Case filed 9 September 2010 on behalf of the Intervenor before me for determination. 

3. On behalf of the husband, Mr Clark foreshadowed an adjournment.   His client has not filed an affidavit with the court and has not responded to the matters urgently adjourned for hearing this day.  Of some significance is the fact that even by the order of Cronin J of last Tuesday the husband was given until 30 September to make, file, and serve a response in affidavit.  On that basis, it is somewhat difficult to criticise the lack of filing of any response affidavit by this day and thus I do not have the basis of the husband’s objections to the orders sough on an urgent basis on behalf of the Intervenor.  Curiously those Orders sought are for an urgent hearing, but otherwise, the Orders were not drafted on an interim basis or sought until further order.

4. Paragraphs 3, 4, and 5 and subsequent orders can and should have been sought on an interim basis, pending determination of the matters in a more structured and final form.  I have had submissions from Counsel for all parties today.  I have read the affidavit of the Intervenor and the annexures thereto. In particular, it has been identified to the Court that the orders sought are more fully detailed in paragraphs 25 and 29 of that affidavit.  What I intend to do on an interim basis is to make certain orders sought on the basis of the application in paragraph 29 of that affidavit.  I do so on the basis that either they are a matter of agreement or not the subject of opposition from the husband, or Counsel for the wife does not oppose or otherwise does not address those issues. 

5. I will make no ongoing orders at this stage of the proceedings as to the conduct of the case on behalf of the company.  That is a defended matter;  it is a matter that is opposed by the husband as to the orders sought and his material will need to be filed.  I will grant an extension to the husband to 4 October to make, file, and serve his detailed and full affidavit and response and I have taken the time to emphasise to his counsel that the affidavit that he is to file must respond to all matters and facts in the Intervenor’s affidavit and must identify all financial, commercial, and like matters in dispute and support any and all orders which may hereafter be sought by the husband. 

6. As to the matters in paragraph 29(b) of the intervenor’s affidavit what I propose to do is to release to each of the husband and the Intervenor a sum of money from that nominated bank account.  I am instructed that no moneys have been paid from and including March of this year until this month.  Previously, the submission of Counsel is that the husband and his brother each received $1,500 per calendar month.  The current credit balance of that bank account is $54,000 or thereabouts.  I direct each of the husband and the Intervenor to instruct and authorise the Laiki Bank to pay out to each of their solicitors, but otherwise subject to the further directions of the Orders that are to be engrossed, a payment of $10,500.  For clarity, those moneys are to be paid, as to his share, to the Intervenor.

7. As to the husband’s share of $10,500 and before the moneys are received by him or, on his behalf, by his solicitor, the previous costs orders of this Court, which were made as against the husband and in favour of the wife, and which were either the subject of a consent order or have not been appealed, are to be first paid to the wife.  That is a sum of $2,900 pursuant to the orders of Senior Registrar FitzGibbon of 20 August 2009, and an additional sum of $3,400 paid pursuant to paragraph 8 of the orders of 7 January 2010 pronounced by Registrar Kaur.  Additionally, pursuant to those orders of the Registrar, the husband and wife were to be responsible for the equal shared fees of the registered valuer, Mr R, appointed for the purposes of a sworn valuation of the subject property at S.  

8. I am advised from the bar table that the wife has paid and the husband has not paid their respective fees.  The husband owes a sum of $2750, and those moneys must be paid to Mr R prior to the receipt by the husband or his solicitors of the balance of moneys.  That is, therefore, and in summary, from the $10,500 to be paid to the husband, he or his solicitor are to receive $1,450, with the balance of the $9,050 paid pursuant to the directions which I have included in these brief ex tempore reasons.  Dealing now with paragraph 29(c) of the affidavit, from the moneys in that bank account are to be paid, in the sum owing: the land tax; GST for the three quarters, including this current September instalment when due; the fees to ASIC; and the fees to the accountant.

9. Additionally and with no opposition from Counsel for the husband and on a pragmatic commercial basis, the insurance fees for the S property and council rates as are outstanding are to be paid.  I was advised that the insurance and rates are relevant also to the first floor apartment.  For clarity, all structural insurance on the building is to be paid, so that there is no commercial risk to any party in these proceedings in respect of that property.  Otherwise as to the orders that were sought in paragraph (d) and (e) of paragraph 29 of the affidavit, they are matters adjourned to the further hearing date, as Cronin J has fixed before him on 12 October of this year.

10. I have indicated to all Counsel that I will not deal on this urgent interlocutory basis with issues that go to the management or direction of the company.  Mr Mort advised the Court that the Intervenor is the sole appointor and the legal guardian of the family trust, on whose behalf the trustee company, the second respondent, owns the property in S.  I make no injunctive orders directed to the Intervenor, but that is on the basis that there will be a notation to orders prepared;  that until the further hearing on 12 October 2010, the Intervenor has advised the Court and will honour the commercial circumstances that he will not act pursuant to any trust deed to the detriment of his co-director of the Second Respondent, and that is a matter that will be further developed in argument in Court on that day.

11. Finally, I am asked to make an Order as to costs. Section 117 of the Family Law Act requires each party to pay their own costs, save in circumstances where it is just that an order for costs be made.  I am always conscious of the fact that mere reservation of costs postpones to another day and often another judge the requirement to assess the payment and quantum of past costs.  Often different Counsel or even different firms of solicitors are involved and it becomes both a difficult and costly exercise.  Ultimately the parties pay more in terms of assessment of costs, preparation of bills of costs for taxation, or otherwise Court argument as to the assessment of costs when those at Court may not know the true circumstances and – the true circumstances of the hearing and the time spent.

12. By way of background, I observe that his Honour reserved costs on 14 September, presumably to him on 12 October of this year. Mr Mort, on behalf of his client, has foreshadowed costs to Counsel of $1,800 and solicitors of $1,200, a total of $3,000. Counsel for the wife has foreshadowed costs on brief at $1,800 with no instructing solicitor at Court. Mr Clark on behalf of the husband seeks no costs order, and his submission is that there should be no order as to costs of and incidental to this day. Ultimately costs orders can only be made on the basis of the factors identified in section 117(2A). The financial circumstances of all parties are largely unknown to me, on the material now before the Court, and on the interim issues under consideration.

13. The conduct of the proceedings are more the issue for costs and/or the outcome, given the partial success of the intervenor by way of certain orders to be made this day.  The wife had instructed her legal practitioners to largely support the orders sought by the Intervenor.  The hearing itself has taken approximately one and a half hours.  It is somewhat curious to me that there was no requirement of the husband to file any responding affidavit prior to this hearing, but that his response date was 30 September to documents to be filed, notwithstanding the alleged urgency and interim issues.  I balance that with the fact that he was able to convey some instructions to his Counsel to consent to some outgoings and payments.  It may or may not have been that the matter would have been before the Court on a continuing basis if those matters had have been able to be discussed by practitioners out of Court yesterday or earlier.

14. I balance all matters.  What I propose to do is to make an Order that the husband pay the Intervenor’s costs, fixed in the sum of $1,500, and pay the wife’s costs fixed in the sum of $900.  I have deliberately selected 50 per cent of costs as sought.  I determine that to be a just and equitable outcome, and more particularly, it involves any further consideration of the taxing of costs, preparation of bills of taxation or further legal proceedings where practitioners are seeking their own costs and extending the length and duration of proceedings for that purpose.  Otherwise, all extant applications are adjourned to 12 October, before Cronin J, and in particular, if I cross-reference to the application of the Intervenor, that is as to the remaining matters in paragraphs 3, 4, and 5 thereof.

15. In due course I will certify for Counsel in the proceedings, though largely that is somewhat academic given the costs orders that I have already pronounced.  I will stand the matter down for Counsel to draft orders dealing with the past undertakings and the release or continuation thereof, the orders arising out of the hearing today, the future direction and management orders, and the costs orders.  I will have these ex tempore reasons transcribed, placed upon the court file, and made available to the parties, and that order needs to be incorporated within the orders.  I will pronounce the subsequent orders by the court and not by consent.

I certify that the preceding fifteen
(15) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
on 16 September 2010.

Associate: ……………………………………………………………

Date:  …………………………………………………………………