Hellemans and Bent

FAMILY COURT OF AUSTRALIA

HELLEMANS & BENT

[2009] FamCA 332

FAMILY LAW – PROPERTY SETTLEMENT – Dispute relating to interpretation of Final Orders made by consent

Family Law Act 1975 (Cth)

APPLICANT:

Ms Hellemans

RESPONDENT:

Mr Bent

FILE NUMBER:

SYF

3065

2006

DATE DELIVERED:

1 May 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

Dealt with by way of written submissions and a short hearing on 30 April 2009

REPRESENTATION

APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Mr Twigg

Orders

Pursuant to the Final Orders entered into by consent on 11 September 2008 it be declared that the wife is liable to pay the sum of:
(a) $36,459.64 to the husband and
(b)$60,781 into the S Superannuation Fund.
In relation to interest it is ordered that:
(a)interest not accrue on the sums outstanding from 11 September 2008 up until and including 10 February 2009
(b)interest accrue at the rate of 5.5 per cent per annum from 11 February 2009 up until and including the date of this judgment
(c)interest accrue at the rate specified under the Family Law Rules 2004 as from this day.
Each party shall pay and bear their own costs of and incidental to these proceedings.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3065 of 2006

MS HELLEMANS

Applicant

And

MR BENT

Respondent

REASONS FOR JUDGMENT

Introduction

On 11 September 2008 Final Orders were made by consent before me (hereinafter referred to as “the Final Orders”) resolving proceedings in relation to children and property. The intention of the financial orders was to effect a division of the parties’ net property, excluding superannuation, in the proportion of 60% to the husband and 40% to the wife.
Since the making of the abovementioned Final Orders there has arisen between the parties disagreement as to their interpretation, as they relate to financial matters. In particular, the issues in dispute relate to the B Unit Trust (hereinafter referred to as “the Trust”), which the husband, wife and the parties’ self-managed superannuation fund, the S Superannuation Fund (hereinafter referred to as “the Superannuation Fund”), hold units in. The B Unit Trust was the subject of valuation by a single expert, and a balance sheet was prepared for that purpose.
The husband seeks an order that the wife be required to pay to the husband $73,623.48 if the amount already paid by the wife into the Superannuation Fund is correct; or if the wife has underpaid the superannuation then it is sought that she pay the sum of $36,459 to the husband with a further payment of $60,781 into the Superannuation Fund.
The wife seeks an Order that she pay to the husband $64,713.78 if the amount paid into the Superannuation Fund is correct; or if the amount paid into the Superannuation Fund has been underpaid, that the sum of $37,835.56 be paid to the husband in addition to a further sum of $46,262 into the Superannuation Fund.
Orders are sought in relation to interest and the husband seeks that the costs of this application be met by the wife, as agreed or assessed.
The matter was considered by me on the written submissions of the parties and following brief oral argument on 30 April 2009.

Background

On 29 May 2006 the wife filed an Application for Final Orders, seeking orders in relation to children and property.
On 10 August 2006 a Response to an Application for Final Orders was filed by the husband, and an Amended Response was later filed on 5 September 2008.
The matter was set down for hearing for three days, in respect of those applications, commencing 9 September 2008.
On 10 September 2008, the second day of the hearing, the matter was adjourned part-heard. Consent Orders were subsequently entered into before me the following day, on 11 September 2008. Orders 1 to 8 inclusive of those Orders related to financial matters whilst Orders 9 to 18 inclusive related to children’s issues. The orders relating to financial matters are relevantly set out as below:
CONSENT ORDERS
BY CONSENT, ORDERS AND NOTATIONS:
NOTATIONS
A.The Court notes that the intention of the financial orders below is to effect a division of the parties’ net property in the proportions 60% to the Husband, and 40% to the Wife and leaves the parties with their current superannuation entitlements.
B.The Court further notes that the parties intend to enter into a binding Child Support Agreement contemporaneously with this agreement.
ORDERS:
1.That within 6 weeks the wife shall do all acts and things necessary to lend to the [B] Unit Trust (hereinafter referred to as “the Trust”) the sum of $230,000.
2.That contemporaneously with order 1 hereof, the husband and wife do all acts and things necessary within 6 weeks of the date of these orders to:
a.Cause to be assigned to the Husband, the Wife’s loan account (including the increased amount as a consequence of the payment by the wife in order 1 hereof) in her name in the Trust, together with the joint loan account in the Trust.
b.Cause any loan owing to the [S] Superannuation Fund (hereinafter referred to as “the Super Fund”) to be repaid and the units in the Trust by the Super Fund to be redeemed, such redemption recognising the market value of the property referred to in (c) below;
c.Cause the [B] Unit Trust to transfer to the husband all of the Trust’s right title and interest in the property situate at and known as [C property] being the whole of the land in Certificate of Title Folio identifier […] (hereinafter referred to as “[C property]”). For accounting purposes, the loan account payable to the Husband will be reduced by the book value of the property.
d.Cause the winding up of the Trust and distribute the available corpus and any income earned by the Trust (after payment out of any transfer costs on [C property] and in payment of the mortgage secured on [C property]) as follows:
i.To pay any costs associated with the winding up of the trust;
ii.In payment out of the amount required to discharge the mortgage on [the A property] (hereinafter referred to as “the home”) to St George Bank and the parties shall thereafter do all acts and things required to discharge such mortgage. This payment will be debited against the loan payable to the Husband for accounting purposes.
iii.In payment out of any amounts due to the husband representing the loan accounts of the parties or either of them in the Trust (including the increased amount of the wife’s loan account as a consequence of the payment pursuant to order 1 hereof);
iv.In payment to the Husband of such further sum in accordance with the formula S = (60% x P) – (H)
Where:
S is the amount the Husband is to receive;
P is the value of the non-superannuation
pool of the parties comprising the following assets and values:
(1)The net value of the parties’ units in the Trust;
(2)Any loan accounts of the parties in the Trust (including the increased loan of the wife as a consequence of the payment referred to in order 1 hereof);
(3)$780,000 representing the value of the property at [A];
(4) $52,181 representing the net value of the Husband’s other property in his name solely;
(5)$100,462 representing the net value of the Wife’s other property in her name solely.
And H is the aggregate of the amounts received by the Husband pursuant to Orders 2~~(c)(v)~~ (d)(iii) ~~and (vi)~~ plus the sum of $52,181 plus $408,000 being the agreed value of [C property].
v.In payment of any balance, if any, then remaining to the wife. For accounting purposes, the payments at iv and v are to be debited against the loan account payable to the Husband and any amounts in excess of the loan payable to the Husband would be considered a return of capital.
3.That simultaneously with the payment referred to in order 1 hereof, the Husband shall transfer to the Wife all of his right title and interest in the home at [A] being the whole of the land in Certificate of Title Folio Identifier […] (hereinafter “the home”).
4.To the extent that the amount paid to the Husband pursuant to Order 2(c)(d)(iv) is less than the sum represented by S in 2(c)(d)(iv), then the Wife shall pay to the Husband the difference between the two amounts within 14 days thereafter.
5.The Wife shall, pending the payment to the Husband of all monies due to him pursuant to these orders, not encumber or further encumber, or otherwise deal with the home [other than in compliance of these orders], without giving the Husband 14 days’ notice (including providing details of the proposed transaction) of her intention to do so.
6.The husband shall be responsible for and pay as and when they fall due, all repayments on the mortgage presently secured on the [C] property.
7.That the husband be entitled to and the wife make available for collection by the husband the following items:
a.A selection of photo collection;
b.All jewellery from and/or belonging to the husband’s mother;
c.All [Bent] and/or [L] family photos;
d.All paintings painted by the husband’s mother;
e.Half of all the African and Madagascan artifacts;
f.3 pieces of the husband’s Murano glass collection;
g.All [Designing and Printing] property.
But that otherwise the Wife retain the furniture and contents situated in the property at [A].
8.That except as is specifically dealt with by these orders, each party shall be entitled to retain as against the other all other property including but not limited to furniture, motor vehicles, superannuation entitlements, insurances, choses in action, personal possessions or other property that is in the parties’ name, custody, control or possession as at the date of these orders.
Between 23 October 2008 and 17 November 2008 a number of communications, primarily by email, relating to the interpretation of the Final Orders took place between the wife and the solicitor for the husband. The wife annexes copies of the correspondence to her submissions.
On 17 November 2008 email correspondence was sent from the wife to the husband’s solicitor, by way of a response to previous communications. The husband says that on 10 December 2008 he wrote seeking that the matter be

re-listed, as the parties had reached a “stalemate” in their discussions. The wife contends that the she did not receive a reply to her email of 17 November 2008, and that she received no further communications on the matter until receiving a letter from this Court, dated 20 January 2009, informing her that the matter had been re-listed before me.
On 10 February 2009 the matter came before me in relation to the interpretation and amendment of the Final Orders, and I made the following Orders:
1.The matter is adjourned for short hearing at 4.00 pm on Wednesday,
25 March 2009.
2.Mr Twigg file written submissions by 4.00 pm on Friday,
13 February 2009.
3.The wife file written submissions by 4.00 pm on Friday,
20 February 2009.
On 13 February 2009 the solicitor for the husband filed written submissions, which were dated 13 February 2009 (hereinafter referred to as “the husband’s submissions”).
On Sunday, 15 February 2009, the wife says in her written submissions that she advised the husband’s lawyer by email that she would settle the payments on Monday, 16 February 2009. She says she intended to make payments of amounts consistent with those which are set out in her submissions.
On 20 February 2009, the wife says that her offer to settle the payment was rejected by the husband.
On 23 February 2009 I made a direction in chambers, by consent, extending the time for the filing of written submissions by the wife to 4.00 pm on

26 February 2009
.
On 25 February 2009 the wife filed written submissions, which were dated

24 February 2009
(hereinafter referred to as “the wife’s submissions”).
Submissions in Reply were prepared by the solicitor for the husband, and dated 31 March 2009 (hereinafter referred to as “the husband’s submissions in reply”).
The matter was set down for oral argument before me on 25 March 2009 and subsequently on 23 April 2009. Those dates were administratively adjourned.
On 30 April 2009 the matter was listed before me for oral argument, with the wife and solicitor for the husband appearing by telephone. The wife filed written submissions (hereinafter referred to as “the wife’s submissions in reply”), in response to those filed by the solicitor for the husband on 31 March 2009.

The Orders of 11 September 2008

The operation of the Final Orders required contemporaneous performance involving the following:
a)the wife lending to the Trust $230,000;
b)the assignment to the husband of the wife’s loan account in her name in the Trust, inclusive of the $230,000 together with the joint loan account in the Trust;
c)repayment of any loan owing to the Superannuation Fund and the redemption of its units in the Trust;
d)the transfer of the Trust’s right title and interest in the property at C to the husband. For accounting purposes the loan account payable to the husband would be reduced by the book value of C property;
e)the winding up of the Trust as set out under the Orders, which involved;
i)payment of transfer costs and payment of the mortgage on C property. The husband’s submissions at paragraph 7(e)(i) give a total figure of $121,514;
ii)payment of costs associated with the winding up of the Trust. The husband’s submissions at paragraph 7(e)(ii) provide the figure of $1,373.18;
iii)payment of the amount required to discharge the mortgage on
the A property. The husband’s submissions at paragraph 7(e)(iii) provide the figure of $14,973;
iv)payment to the husband the amount of the loan accounts of the parties or either of them in the Trust;
v)payment of a further sum to the husband, calculated using a formula set out in the Final Orders;
vi)payment of any balance to the wife. The husband’s submissions at paragraph 7(f) note that there was no such amount remaining;
f)simultaneously with the wife lending $230,000 to the Trust, that the husband transfer the A property to the wife.
In the event there was a shortfall in calculating the payment to the husband using the formula set out in Order 2(d)(iv), then the wife was to pay the husband the difference within 14 days.
In this matter Mr G had been appointed as single expert and prepared a balance sheet for the Trust. This balance sheet is Attachment “B” to the husband’s submissions, and provides a valuation of the Trust and the Superannuation Fund based on the respective financial statements as at 30 June 2007. The husband’s submissions further note that the final orders included amendments suggested by Mr G, and the husband annexes the document which sets out those suggestions.

Issues in Dispute

The issues in dispute and giving rise to disagreement as to the operation of the Final Orders as raised in each parties’ written submissions, are in relation to:
a)the balance sheet prepared by Mr G, including adjustments to be made which reflect changes occurring between the date of the preparation of the balance sheet and the winding up of the Trust;
b)whether the wife’s calculations are incorrect as a result of undertaking a re-writing of the balance sheet of the Trust, with the effect of reducing the value of the units;
c)the wife’s assertion that the husband is entitled to 58.1% of the Superannuation Fund, and her assertion that therefore the wife is not required to pay 60% of the amount required to restore the Superannuation Fund to liquidity; and
d)the payment of interest.
It is the wife’s position that her intention from the outset was to make the payments in accordance with the timeframe set out in the Final Orders. At paragraph 3 of her submissions the wife contends that she provided calculations to the husband’s solicitors and that, among other things, delay in receiving a reply frustrated her attempts at compliance. The wife annexes copies of correspondence between the parties which, she says, demonstrate attempts by her to resolve disagreement as to the calculations, to give effect to the Final Orders.
In addition, it is the wife’s position that it was not until she received the husband’s submissions which contained Mr G’s balance sheet, that she was able to revise her calculations. Upon doing so, the wife says at paragraph 8 and B(1) of her submissions that aside from some differences, she believed the calculations of the husband’s solicitor to be correct. She maintains however, that the husband’s solicitor did not undertake to show the wife why her calculations were incorrect until the preparation of the written submissions.
It is the husband’s position that the wife cannot, without consent, re-write the balance sheet provided by the single expert without his consent. At paragraph 5 of his submissions in reply, the husband says that this has been done by the wife in circumstances where the husband did not have control or input into the trustee entity.

Single Expert’s Balance Sheet and Superannuation

It was contended by the husband, at paragraph 8 of his submissions, that the issue between the parties seems to arise on the basis that the wife seeks to present a new and different balance sheet from that prepared by Mr G and, which the husband says, was accepted by the parties. In the husband’s submissions in reply the solicitor for the husband contends that whilst the husband accepts there are some variations to be made to the balance sheet (see paragraph 42), it is his position that the wife cannot re-write the balance sheet.
In response to the abovementioned submission, the wife says she emailed to the husband’s solicitor a balance sheet for the Trust as at 23 October 2008. At paragraph 6 of her submissions, the wife says that these figures were subsequently adopted in the calculations of the husband’s solicitor.
The wife says that the first occasion upon which the husband’s solicitor had produced or referred to Mr G’s balance sheet and provided calculations based on that expert’s balance sheet, was in the husband’s written submissions. In the husband’s submissions in reply, it is his assertion that the husband should not be deprived of his entitlements under the Final Orders because of what he contends were communication difficulties between the wife and her previous legal representatives. The wife goes on to say, in her submissions in reply that neither party used or referred to Mr G’s balance sheet until 13 February 2009.
Upon receipt of Mr G’s balance sheet in the husband’s submissions, the wife says she became aware of an error in her updated balance sheet. This error is said to have arisen because a dollar for dollar loan provided by each of the unit holders, which showed only one amount of $15,050, and which was treated as a unit holding but recorded as a liability. The wife says this was not detected by either party.
It is the further the wife’s contention that the first time that the husband’s solicitor had raised the issue that the amount paid to the Superannuation Fund was incorrect was on 13 February 2009. On 30 April 2009 when the parties made oral submissions before me, the husband’s solicitor says that it was only immediately prior to settlement that he was advised of the amount the wife proposed to pay into the Superannuation Fund.
Attachment “B” to the husband’s submissions is “[Mr G’s] Re-Cast Balance Sheet for [B] Unit Trust and The [S] Superannuation Fund”. The balance sheet provides a valuation of the Trust and in doing sets out the loan accounts of the husband and wife to the total value of $181,088.

The balance sheet attributed to the shares of each the husband and wife in the trust the value of $10,736 – a total of $21,472. This amount forms part of the calculation in Order 2(d)(iv)(1).
The loan accounts of the parties were further to be calculated for the purposes of Order 2(d)(iv)(2). In the husband’s submissions, at paragraph 12, this amount is said to be $191,315.48 - such figure comprising the existing loan accounts of $181,088, plus the wife’s loaned monies of $230,000 and less the book value of C property, of $219,772.52.
In the husband’s submissions at paragraph 12, calculations are provided in setting out the formula under Order 2(d)(iv), which is the basis for the calculation of the sum to be paid to the husband. The calculations adopt the valuations provided in Mr G’s balance sheet, to the effect that, on the husband’s submissions, the amount to be paid by the wife to the husband is $227,077.28. However, it is the husband’s submission, at paragraph 15, that this calculation assumes that the Superannuation Fund would be paid $44,195 for its loan account and $31,528 for the redemption of its units in the Trust. The wife agrees, at paragraph 3(g) in Part B of her submissions that $44,195 should be paid to the Superannuation Fund for its loan account. The parties disagree on the amount to be paid to the Superannuation Fund for the redemption of its units in the Trust. The wife says that the Fund should be paid $17,009 for the redemption of its units in the Trust, whereas the husband says, and with which I agree, that the fund should be paid $31,528 for the redemption of the units.
In contrast to the amount referred to in Paragraph 37 above, the wife says that the amount to be paid by her to the husband should be $225,117.69.
However, the husband contends that the wife has caused to be paid only $14,942 to the Superannuation Fund. The wife agrees that this is the amount she has paid into the Fund. The husband says this amount is not the correct amount to be paid into the Superannuation Fund.
In the husband’s submissions at paragraphs 17 to 18, the amount due to the husband is set out and is calculated on the basis of the correct amount to be paid to the Superannuation Fund by the wife being $14,942. At paragraph 21, it is said that the amount due to the husband would then be $260,905.61. In contrast, the wife at paragraph 3(m) of Part B of her submissions says the total due to the husband would then be $251,995.91.
If the sum paid by the wife into the Superannuation Fund is incorrect, then, on the husband’s calculations, the correct amount to be paid to the husband is $223,741.77 with the wife to pay a further sum of $60,781 into that Fund. As the wife disagrees as to the amount to be paid to the Superannuation Fund, her calculation at paragraph 3(i) in Part B of her submissions is that the residual amount to be paid to the Superannuation Fund is $46,262. It follows then that the wife asserts that the amount due to the husband would then be $225,117.69, at paragraph 3(n) of her submissions. I adopt the calculations as undertaken by the husband.
It was accepted by the husband in his submissions, at paragraph 19, that adjustments were required to represent the differences between the amounts actually paid to discharge the mortgages, and the windup costs. At paragraph B(2)(iv) the wife notes the changes to the C property loan, the A property loan and the windup costs, as set out by the husband. However, in her submissions at paragraph 3(k) in Part B, the wife says that she considers no adjustments are necessary as they have been taken through the balance sheet.
It is submitted on behalf of the husband that in relation to the adjustments referred to in paragraph 42 above, the differences in these figures total $5,559.18 and that 60% of that figure, being the sum of $3,335.51, ought to be deducted from the amount to be paid to the husband. The wife disagrees with this approach and considers that no amount needs to be deducted from the husband’s payment as such adjustments are not necessary.
Thus, the wife also says at paragraph (2)(a) in Part B of her submissions that it is necessary to update Mr G’s balance sheet, which was drawn on

30 June 2007, in circumstances where the Trust not being wound up until

23 October 2008. However, the wife says that the adjustments proposed by the husband are not taken through the balance sheet and overlooks changes which impact the net assets and, in turn, the value of the unit holdings. It was argued before me on 30 April 2009 by the wife that, upon reading Order 2(d) and in seeking to interpret that order, she sought to wind up the trust as at 23 October 2008, and to take into account changes up until that date.
The wife sets out the changes which she says have taken place since 30 June 2007. In brief summary, they involve the a nil cash balance; an increase to the parties’ respective loan accounts and costs paid by M Pty Ltd (hereinafter referred to as “[M Pty Ltd]”) to the C property, which she says should be shown as a loan on the balance sheet.
In relation to a payment of $9,673 which is said by the wife as having been paid by M Pty Ltd for the costs of the C property, the husband in his submissions in reply says this is not supported by evidence and should not be taken into account. In his submissions in reply at paragraph 7, the husband goes on to say that if these purported payments were made before the Final Orders and if the wife established that the Trust owed money to M Pty Ltd, then there is an equivalent increase in the value of M Pty Ltd which has not been taken into account and of which the husband would have been entitled to 60%. I agree with the course set out in the husband’s submission, namely that this purported debt should not be taken into account, and that the amounts are effectively ‘balanced out’, for the reasons referred to earlier in this paragraph, and to follow.
The wife, in her submissions in reply, says that all amounts paid by the Trust were to meet the expenses related to the Trust’s property, including rates, taxes, body corporate levies and bank interest. It is the wife’s assertion that these expenses were only able to be met by utilising the Trust’s cash reserves and the loan from M Pty Ltd.
It was put to me by the solicitor for the husband during submissions on

30 April 2009
that there has been no particularisation of this expenditure, except in the wife’s submissions in reply. It is his position that the wife cannot rewrite the figures in circumstances where the wife has the benefit of the information before her, and seeks the benefit of the claimed loan account. This asserted debt was one which did not exist on Mr G’s balance sheet, although it was the wife’s claim before me on 30 April 2009 that the taxation returns for M Pty Ltd had not been lodged at the time Mr G’s first balance sheet had been prepared.
I do not propose to take the $9,673 sum into account. Indeed, as the solicitor for the husband pointed out before me, the husband and wife were sharing equally in the expenses of the Trust, and that the wife cannot now seek that she or M Pty Ltd receive the benefit of this debt by the value of the Trust being reduced accordingly.
The valuation of the Trust shows a figure of $2,428 under “cash at bank” on

Mr G’s balance sheet. In her submissions the wife has said that the cash balance is now “nil”. The husband, in his submissions in reply, asserts that the wife should not have the benefit of this sum, albeit small, and then claim the reduction against the husband’s entitlements. The removal of this item is said to have not been disclosed to the husband, and is in relation to an entity solely controlled by the wife. With that submission I agree.
In oral submissions before me on 30 April 2009, the solicitor for the husband maintained his position that at all times M Pty Ltd has been a company controlled and operated by the wife, and that source documents have not been provided to confirm or dispel her claims. In her submissions in reply and in oral argument, the wife says that financial statements of the Trust have been provided to the husband.
At paragraph 26 of the husband’s submissions it is said that two payments of $78,937 and $108,345.13 (a total of $187,282.13) have been made by the wife to the husband. If the amount already paid into the Superannuation Fund is correct then it is the husband’s position that he is owed $73,623.48. This is contrasted to the calculations in the wife’s submissions, whereby she says at paragraph 3(p) that the amount still owing to the husband would then be $64,713.78.
The husband contends that if the amount paid into the Superannuation Fund has been underpaid by the wife then $36,459.64 is to be paid to the husband, with a further sum of $60,781 paid to the Superannuation Fund. However, the wife contends that in the case the amount owing to the husband is $37,835.56, with a further amount of $46,262 to be paid to the Superannuation Fund.
In her written submissions the wife says she has paid to the husband the sum of $36,459.64. This amount was slightly less than the wife’s calculation of $37,835.56, and she advised the husband’s solicitor that she would pay the difference between the amounts, in addition to the amount she calculated as the additional payments to the Superannuation Fund, if it were agreed that the wife’s calculations were accurate.
It is the wife’s claim that the husband’s submissions at paragraph 18 are a claim by him that he is entitled to 60% of the amounts paid to the Superannuation Fund. The wife says that the husband’s share of the Superannuation is 58.1%, as it is unaffected by the Final Orders and the overall 60/40 division. This position was maintained in the wife’s submissions in reply. In my view, the husband’s submissions in reply correctly identifies that, in effectively “cashing up” that fund, the wife confuses the fact that the parties’ holdings are not in the proportions of 60/40, with the overall 60/40 split of non-superannuation assets.
This point was further agitated in oral submissions before me on 30 April 2009. The husband’s solicitor expressed this issue in the following terms, namely that if the amount paid into the Superannuation Fund is $60,781 less than what was anticipated at the making of the Final Orders, then by virtue of that same fact the non-superannuation figure would increase by $60,781, with the husband entitled to 60% of that amount.
On the calculations provided by the wife, the husband is entitled to 58.1% of the residual amount to be paid to the Superannuation Fund, that being a total of $26,878.22. Consequently, the wife’s calculations at paragraph 3(j) find that a total of $251,995.91 is owing to the husband if the superannuation payment is correct.
At paragraph 3 in Part B of the wife’s written submissions, she provides a number of recalculations which adopt the variations which she says should be made to Mr G’s balance sheet. In her submissions the wife then applies those adjustments to the steps set out in the husband’s written submission. At paragraph 23 of the husband’s submissions, it is the husband’s position that the wife’s calculations are incorrect, by having undertaken a rewriting of the Trust without regard to the market value of C property and the fact the Trust has a positive, rather than negative, value.
In the wife’s submissions in reply, at paragraph 1(a) the issue relating to the rewriting of the balance sheet is further addressed. As previously discussed earlier in this judgment, the wife contends that, as the Trust was to be wound up as at 23 October 2008, the balance sheet as at that date should be adopted.
The effect of the wife’s recalculations is to reach calculations which are different to those of the husband. Where the parties differ in the following calculations, I adopt the values as set out by the husband:
·The wife asserts that the joint loan accounts are $187,709. The value given by the husband, from Mr G’s balance sheet, is $181,088.
·The wife asserts that the value of the unit holdings of each of the husband and wife is $5,792.50. The husband asserts that Mr G ascribed value to the husband’s and wife’s units of $10,736 each.
·The wife asserts that the net value of the parties’ units is $11,585. The husband says this figure is $21,472.
·The wife asserts that the loan account amount for the purposes of Order 2(d)(iv)(2) is $197,936.48. The husband says this figure is $191,315.48.
·In calculating the formula under Order 2(d)(iv), the wife says the value of “P” is $1,142,164.48, and the value of “S” is $225,117.69. The husband says the value of “P” is $1,145,430.48 and the value of “S” is $227,077.28.

Interest

The husband contends that interest should be calculated from 6 November 2008, at the rate of 12.25 per cent per annum, in accordance with Rule 17.03 of the Family Law Rules 2004 (“the Rules”).
It is the wife’s position at paragraph 3(q) in Part B of her submissions, that no interest should be payable as she asserts that the delays were primarily caused by the husband and his solicitor. The wife says this has occurred in circumstances where her calculations, and the errors contained in them, were not promptly addressed by the husband’s lawyer, which delayed her ability to revise her position and reconsider those calculations.
The husband, whilst disagreeing with the submission of the wife in this regard, says that in any event the wife has had the benefit of the shortfall she has retained and that this should in itself justify interest being calculated in accordance with the Rules.
It is, in essence, the husband’s position that there is no credence to the wife’s complaint that, because the husband did not detect in a timely fashion errors in the wife’s calculations she should not pay interest. In oral submissions before me it was pointed out that the husband had proposed that Mr G act in effect as an arbitrator but that the wife was only willing to agree to this course if the costs were met solely by the husband.
The wife says she expended considerable effort in setting out the calculations and indicated to the husband that if shown where and why those calculations were incorrect, then she was willing to amend them. In these circumstances it is her contention that neither the husband nor his solicitor made any real attempt to resolve the issue.
In her submissions in reply the wife goes on to say that it is her belief there must be an obligation on the recipient to provide reasonable assistance to calculate the amount. With that submission I agree and say that it is the expectation of the Court that the wife will be provided, particularly as a litigant in person, with appropriate assistance and explanation as to where her calculations are in error, in order to avoid costs.
In his submissions, the husband included a “check” method of calculations, and included a simplified asset table with regard to the overall 60/40 division of non-superannuation assets. The husband maintains that the wife made errors in her objections, and says the “check” method was set out in support of this. In turn, the wife provides some criticism of this method and the resulting calculations and also says that her calculations more closely matched those that resulted.
Section 117B(2) of the Family Law Act 1975 (hereinafter referred to as “the Act”) provides that the court that makes an order for the payment of money may order that interest is payable at a rate different to the prescribed rate or that it be payable at a date other than that which is specified in s117B(1).
In considering the husband’s claim for interest to be paid on the outstanding sum, it is my view that up until the matter was first re-listed before me on

10 February 2009, there remained on both sides an unresolved and genuine dispute as to the interpretation of the Final Orders and that such disagreement was not unilateral. The wife and solicitor for the husband each claim that the other side has, at various times, presented a number of differing calculations.
For those reasons, I intend to make an order that no interest should accrue on the sums outstanding from the date of the Final Orders up until and including 10 February 2009.
It is my intention to exercise my discretion under s117B(2)(a) to substitute interest calculated at a rate of 5.5 per cent per annum in lieu of the rate prescribed by the Rules. I will order that from 11 February 2009, to the date of this Judgment, interest is to accrue at the rate of 5.5 per cent per annum, in lieu of the rate prescribed in the Rules. I will order that the rate specified under the Rules should then accrue as from this day.

Conclusion

The wife has sought to proffer before the Court valuations which are different from those contained in the balance sheet prepared by Mr G, a Court appointed expert. As submitted by the husband, and subject to some agreed variations which are the subject of the orders as previously discussed, the valuations adopted by Mr G should be relied upon, in accordance with the husband’s submissions. Indeed, the parties adopted the suggestions provided by Mr G in an email he sent to the parties on 11 September 2008, and which is annexed to the husband’s submissions. I accordingly accept the figures provided by the husband as being more probable and likely to be correct.
The wife’s obligations under the Final Orders are to windup the Trust. However, the amount payable to the Superannuation Fund is calculated on a different figure, namely that adopted in Mr G’s balance sheet. If there is a diminution of the general pool of assets by virtue of that payment then the husband is entitled to 60 per cent. To add the debt of M Pty Ltd, which was not consented to at the time of the hearing or when the Final Orders were made and which is a company in the wife’s control (and for which debt or debts the wife does not provide evidence in the form of source documents in support), I find to be erroneous.
The wife has caused to be paid $14,942 to the Superannuation Fund. The parties agree that the Superannuation Fund would be paid $44,195 for its loan account. In relation to the redemption of the units, I adopt the value provided by Mr G in his balance sheet, and subsequently relied upon by the husband in his submissions. Accordingly, the Superannuation Fund is to be paid $31,528 for the redemption of its units in the Trust. Taking into account the amount already paid by the wife, then the wife is to pay the Superannuation Fund a further sum of $60,781.
I find that the total amount due to the husband is $223,741.77. Taking into account the payments already made by the wife to the husband, namely $78,937 and $108,345.13, I find that the wife is to pay to the husband a further $36,459.64 in addition to a further payment to the Superannuation Fund of $60,781 as referred to above.

Costs

The husband in these proceedings seeks an order that the wife pay costs as agreed or taxed, of the costs of the resolution of the issues referred to in this judgment. I have a broad discretion as to costs under s117 of the Act. The scheme of that section is that s117(1) prescribes that each party to the proceedings shall bear his or her own costs, unless I am of the opinion that there are circumstances that justify me making an order for costs, in which case I can make an order that I consider just.
The resolution of this matter by the Court has not been occasioned by a lack of willingness of the wife to make concerted attempts to resolve the differences between herself and the husband, saving that the wife declined to adopt, on terms that might otherwise be considered reasonable, mediation at the parties’ joint expense by Mr G, the single expert accountant in these proceedings.
Under the terms of the property settlement the wife receives sums of a significant amount, as does the husband. The husband’s financial position as created by the Final Orders appears superior to that of the wife. Neither has filed any current statement of their financial affairs.

Whilst I have found significantly in the husband’s favour in relation to the amount due to the husband, I have acceded to the wife’s request for relief in relation to interest.
Whilst the proceedings raised questions of compliance with a previous order I note that it was complex and there was a genuine disagreement between the parties and that the wife, being a litigant in person, could not without assistance comprehend the errors in her calculations. The husband did not as promptly as he might have done point out to the wife the errors in her calculations. Those errors having been pointed out to her however, she was immediately prepared to make some concessions.
In view of these matters and where the wife was representing herself, it is not my intention to depart from the usual order that each party pay their own costs of and incidental to the proceedings.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date: 1 May 2009

[2009] FamCA 332

1 May 2009

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Costs

Remedies