Helen Lasscock v Peter Ivan Macks: No. SCGRG 96/1986 Judgment No. 6068 Number of Pages 6 Family Law Jurisdiction Cross-vesting

[1997] SASC 6068

IN THE SUPREME COURT OF SOUTH AUSTRALIA

NYLAND J

Family law jurisdiction - cross-vesting - application to transfer proceedings to determine the validity of a mortgage entered pursuant to a family law property settlement in the Family Court - application by receiver and manager of property - consideration of whether proceeding "pending" in Family Court - consideration of whether issue of validity more appropriately dealt with in the Family Court - found that validity of mortgage is a discrete matter which is more appropriately dealt with in the Supreme Court - no reason why plaintiff receiver and manager should become involved in further Family Court actions between the defendant and her former husband - application to transfer proceedings dismissed. Jurisdiction of Courts (Cross-vesting) Act1987 s5; Family Law Act 1975s4; Corporations Law Part 5.3A; Family Law Rules Order 14, Rule 12, referred to. Hallawi v Australian Guarantee Corporation & Anor (1989) FLC 92-045; Lambert v Dean & Anor (1989) FLC 92-037; Skaventzos v Tirimon (1993) 61 SASR 103 per Mullighan J); Mattock v Mattock
(1989) 97 FLR 112, discussed.

ADELAIDE, 12 November 1996 (hearing), 14 March 1997 (decision)

#DATE 14:3:1997

#ADD 24:3:1997

Applicant Helen Lasscock:

Counsel: Mr S A Strickland

Solicitors: Johnson Winter & Slattery

Respondent Peter Ivan Macks:

Counsel: Mr J M Cudmore

Solicitors: Ward & Partners

Application refused.

NYLAND J

1. This is an application by the defendant to transfer the within proceedings to the Family Court of Australia at Adelaide, pursuant to s5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987. The defendant was married to Ian McArthur Lasscock. After they separated in 1989, proceedings ensued between them in the Family Court of Australia for property settlement and maintenance orders pursuant to the provisions of the Family Law Act. At the time of separation, the defendant was a director of most of the companies within the Lasscocks company group and she owned one-third of the shares in those companies. In the period from 1989 until 1993, negotiations took place between the defendant and her former husband to resolve financial matters. In March 1993, an agreement was reached by way of settlement. On 12 March 1993, a consent order was made in the Family Court. A copy of that order is Annexure HL2 to the affidavit of the defendant sworn herein on 14 October 1996. Paragraph 3 of that order provided (inter alia) that by way of settlement of property: "(a) That the husband do pay to the wife on or before the 31st day of July 2002 the sum of ONE MILLION DOLLARS ($1,000,000.00).

(b) That in order to secure the payment by the husband to the wife of the aforesaid sum of $1,000,000.00 the husband shall do all acts and things and take such steps as are necessary to arrange for the provision of security (including the provision by Lasscocks Pty Ltd of satisfactory evidence that it derives a commercial benefit from the proposed transaction and the obtaining of a Certificate from a Director and the Secretary of that Company in satisfaction of the requirements of Section 234(10) of the Corporations Law by way of mortgage over the land owned by Lasscocks Pty Ltd and comprised and described in Certificate of Title Register Book Volume 4372 Folio 644 being the property situate at 121 Main South Road, Morphett Vale in the State of South Australia which said mortgage shall not require the payment of any interest by the husband or the said company to the wife

PROVIDED THAT if the husband or the said company shall refuse or neglect to execute a memorandum of mortgage in the form properly registrable under the provisions of the Real Property Act 1886 as amended and as hereinbefore provided in favour of the wife within seven days after the same shall have been tendered to him or the said company by or on behalf of the wife for that purpose then and in such case a Registrar or Deputy Registrar upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto AND shall execute and do the same accordingly

PROVIDED FURTHER THAT in default of the said Company providing the mortgages hereinbefore stated the husband do forthwith execute a charge over his shares in the said Company and in the Companies listed in paragraph 3(J) hereof, in favour of the wife to the extent of ONE MILLION DOLLARS ($1,000,000.00) upon such terms and conditions as the wife's solicitors might reasonably require."

2. The premises at Morphett Vale referred to in paragraph 3(b) were business premises from which a nursery was conducted. The mortgage referred to therein was duly executed by the defendant and her husband and registered on 27 April 1993. A copy of the mortgage is Annexure PIM4 to the affidavit of Peter Ivan Marks, sworn on 27 September 1996. Paragraphs 3(c) and 3(d) of the order refer to other properties which in due course transferred to the wife pursuant to the terms of the order. Paragraph 6 of the order required the defendant's husband to pay her maintenance at the rate of $4,000 per calendar month, as well as a further sum of $1,000 per calendar month for maintenance of the children. Pursuant to paragraph 7, the defendant's husband was required to pay the maintenance of the wife until such time as he paid to her the $1,000,000 mentioned in paragraph 3(a) of the order. The defendant's husband thereafter complied with his obligations pursuant to the terms of the order. On 26 February 1996, however, a secured creditor of Lasscocks, namely the National Australia Bank Limited, appointed Mr R A Ferguson as receiver and manager of the property of Lasscocks. Lasscocks was placed in voluntary administration under the provisions of Part 5.3A of the Corporations Law on 27 February 1996. At that time, the plaintiff, Peter Ivan Macks, was appointed administrator. At about the same time, the defendant's husband ceased making maintenance payments pursuant to the aforesaid order. On 22 April 1996, the defendant's solicitors sent a letter of demand to Mr Ferguson, drawing attention to the terms of the Family Court order. The letter enclosed a copy of the mortgage and demanded payment of the amount of $1,000,000 as referred to therein.

3. Further correspondence ensued, following which in June 1996, the defendant's solicitors advised the receiver that they intended to apply to the Family Court to vary the order relating to matrimonial property settlement. On 9 July 1996, the plaintiff was appointed as the Deed administrator of a deed of company arrangement pursuant to a resolution of the creditors of the company. There was a request to delay the filing of the application for variation which was acceded to by the defendant's solicitors. It would appear that eventually an application was filed in the Family Court which, by consent, sought to vary the previous order, by adding the words in paragraph 6(a) after the words "paragraph 3(a)" appearing in the third line thereof. The effect of the proposed amendment was to require the immediate payment of the $1,000,000 as a result of the failure to pay maintenance.

4. The application was then dealt with administratively without the attendance of parties, pursuant to Order 14, Rule 2 of the Family Law Rules. Accordingly, on 24 July 1996, an order was made by a judge of the Family Court who signed the minutes of the consent order. The order by way of variation became effective from that date. Pursuant to the terms thereof, as a result of the husband's failure to pay maintenance, the defendant was entitled to enforce the security and require him to transfer to her the whole of his estate and interest in the property which was subject to the mortgage. The order contained a proviso that if either the defendant's husband or the company defaulted in executing the memorandum of the transfer, then, subject to certain conditions, the registrar or deputy registrar of the court was appointed to execute that document. Coincidentally, on the date that the order for variation was made, that is, 24 July 1996, the plaintiff's solicitors sent a letter to the Family Court which asked that as a matter of urgency, the court not seal the proposed minutes of order. The letter queried the effect of the proposed order and suggested that in the light of the circumstances of Lasscocks Pty Ltd that the court did not have jurisdiction to order Lasscocks to transfer the land to the defendant. Accordingly, the court did not have jurisdiction to make the orders sought in the application. It would appear, however, that the letter was not received by the Family Court until the order had been made and sealed.On 27 August 1996, the defendant's solicitors sent a transfer form to the plaintiff for execution by him as administrator of Lasscocks to transfer the land to the defendant. The letter advised that if the executed transfer was not returned by 4 September 1996, steps would be taken to enforce the Family Court order. On 28 August 1996, the plaintiff's solicitors advised the defendant's solicitors that they had been instructed to lodge a caveat over the subject land and that by reason of the caveat, the plaintiff did not propose to comply with the request to execute the transfer. The caveat lodged by the plaintiff is annexed to his affidavit and is annexure PIM3. The plaintiff claimed against the first caveatee, namely Lasscocks Pty Ltd that he was entitled as deed administrator of the deed of company arrangement to have beneficial interest in the land as lienee of the lien on and over the fee simple estate arising by virtue of Part 5.3A of the Corporations Law by virtue of the terms of the provisions of covenant contained in and confirmed by the deed of company arrangement. As against the defendant, the second caveatee, he claimed a right to have the mortgage set aside and removed from the register book as having been granted for no consideration and in circumstances in breach of the duties of the directors of Lasscocks Pty Ltd.

5. On 9 September 1996, the solicitors for the defendant forwarded a standard transfer form to the registrar of the Family Court with a request that it be executed by the registrar to enable the land to be transferred to the defendant as a result of the defendant's husband defaulting in payment of maintenance as required by the Family Court order dated 12 March 1993 as amended by the order of 24 July 1996. In the circumstances, however, the registrar declined to execute the transfer without further direction and of her own motion had the matter re-listed for hearing before a judge of the Family Court on 16 October 1996.

6. On 30 August 1996, the defendant applied to remove the caveat, following which the plaintiff made the application to this court seeking an order that the time for the removal of the caveat be extended until further order.

7. On 27 September 1996, a master of this court made an order extending the time for removal of the caveat until 18 October 1996. On that date he made an order extending the time for removal until further order. The within application to transfer the proceedings to the Family Court was filed on 15 October 1996 and the summons was returnable for 18 October. The Family Court proceedings came on before a judge of that court following the referral to him by the registrar on 16 October 1996. On the basis that the application for transfer of proceedings was to be heard in this court, the Family Court judge ordered that the matter be removed from the pending list but noted that the parties might wish to bring the matter on for determination at a later date.

8. The power to transfer proceedings to another court is contained in s5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 ("the Cross-vesting Act"). That section, in so far as it is relevant to the present application provides as follows: "(1) Where - (a) a proceeding (in this subsection referred to as the 'relevant proceeding') is pending in the Supreme Court; and (b) ... (i) it appears to the Supreme Court that the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court; or (ii) ... (iii) it appears to the Supreme Court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court,the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be."

9. The only reference to 'proceeding' in the Cross-vesting Act is a statement that "proceeding does not include a criminal proceeding". In s4 of the Family Law Act 1975, "proceedings" is stated to mean "a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding". The defendant submitted therefore that proceedings were pending in the Family Court of Australia as it would be necessary for the Family Court to determine the validity and effect of the orders made on 12 March 1993 and 24 July 1996 and that would have a direct and substantial impact on the issues before this court. Accordingly, and also having regard to the interests of justice it was more appropriate for the action to be transferred to the Family Court.Pursuant to the provisions of s5(1)(b)(i)of the Cross-vesting Act there are two criteria to be satisfied, namely, that the action is related to proceedings pending in the Family Court and that it is more appropriate that the proceedings be determined by that Court. The plaintiff submitted that there were not any pending proceedings in the Family Court as the action between the defendant and her husband had been completed and the only issue raised in this court was the issue as to the validity of the mortgage which arises out of the provisions of Corporations Law and the remedy with respect to that matter was exclusively within the ordinary jurisdiction of this court. The plaintiff further argued that it would not be appropriate to make the order pursuant to paragraph 5(1)(b)(iii) of the Cross-vesting Act as that would be an injustice to the plaintiff, who sought to debate a discrete point, that is, whether the execution of the mortgage on 23 February 1992 constituted a proper exercise of the power of the directors and that was an issue which could be conveniently and expeditiously dealt with in this court. An order for transfer, however, would inevitably involve the plaintiff in wider issues between the parties which potentially would be protracted and would involve the plaintiff in increased and unnecessary costs.

10. In Hallawi v Australian Guarantee Corporation & Anor (1989) FLC
92-045, the wife had commenced proceedings in the Family Court under s79 of the Family Law Act for the transfer to her of the husband's interest in property. The husband had obtained an advance from a bank pursuant to a mortgage. The wife brought proceedings in the Supreme Court for the mortgage to be set aside on various grounds, including that her signature had been forged on the mortgage documents and seeking a declaration that the husband held his interest in the property upon trust for her. In that case, Kearney J ordered the proceedings to be transferred to the Family Court as the determination of the section 79 application in the Family Court would cover the same material and would be involved in the wife establishing her claim for a declaration of trust in respect of the husband's interest in the property. Further, that the consideration of the section 85 application in the Family Court would cover the same ground relating to the execution of the mortgage as was involved in the Supreme Court proceedings. He found that the wife had established that the Supreme Court proceedings were related to the Family Court proceedings and it was appropriate that the Supreme Court proceedings be determined by the Family Court and it was in the interests of justice for the proceedings to be transferred.

11. In Lambert v Dean & Anor (1989) FLC 92-037, an order was made transferring proceedings to the Family Court. McLelland J found that the two criteria in s5 of the Act had been satisfied, firstly that the pending Family Court proceedings were related to the Supreme Court proceedings, in that in each proceeding orders were sought affecting proprietary interests in the home and secondly, it was more appropriate that the whole matter be handled by the specialist expertise of the Family Court. In each of those cases, however, the determination as to rights and property had not been resolved by the Family Court. Similarly in Skaventzos v Tirimon (1993) 61 SASR 103 and Mattock v Mattock (1989) 97 FLR 112, the proceedings for determination of the interest in property had not been completed. In this case, however, the order for settlement of property as between the defendant and her husband made on 12 March 1993 as varied by the order of 24 July 1996 is a final order. The only matter of which the Family Court is currently seized is the application to the registrar to execute the mortgage in view of the husband's default. Can that be said to be a pending proceeding? I should interpolate that it was not suggested in argument that the form of the order made by the Family Court judge on 16 October 1996, removing the matter from the pending list was determinative of this issue. The terminology used by the judge makes it clear that the action taken on that occasion was simply a case management procedure which does not affect the question to be determined on this application as to whether there is a proceeding which is pending. In my view, the application by the defendant to enforce the order by her request for the registrar to execute a memorandum of transfer and falls within the definition of "proceedings" within s4 of the Family Law Act. I consider therefore there is a pending proceeding which is related to the proceedings in this court. It is necessary then to consider whether it is more appropriate that this matter be determined by the Family Court.

12. Although the subject mortgage is included in the Family Court order of 12 March 1993, as varied by the order of 24 July 1996, it is not an asset which forms part of the order for property settlement. It is only included by way of security for the payment to the defendant of monies due to her. If the mortgage is not valid the defendant will still have an entitlement to that money but will have to find some other means of enforcing her order. I appreciate that the defendant may not have agreed to the terms of the orders without some security being included but, nevertheless, it seems to me that the issue of the validity of the mortgage is a discrete matter which is more appropriately dealt with by the Supreme Court than the Family Court. If the mortgage is valid the defendant will be able to pursue the enforcement of her order without any difficulty. If the mortgage is not valid then it may well be that the issue of property settlement will be at large between the defendant and her husband. Such proceedings could be protracted and costly. I do not see why they should involve the plaintiff. In my opinion, therefore, this application should be refused.