JANTSZ & DENNIS

[2015] FamCA 370

FAMILY COURT OF AUSTRALIA

JANTSZ & DENNIS [2015] FamCA 370

FAMILY LAW – PROPERTY – Injunctions – where previous interim consent orders as to certain payments – where such consent orders clearly note that the wife does not admit that such payments are payable – where wife now seeks that orders as to such payments be discharged – where factual basis for her seeking such orders are a matter of dispute that can not be resolved on an interlocutory basis – where asset pool is of significant value and subject to determination at final hearing an appropriate adjustment can be made if the payments ordered are found to be not payable – wife’s application dismissed.

Family Law Act 1975 (Cth) s 114

APPLICANT: Mr Jantsz

RESPONDENT: Ms Dennis

FILE NUMBER: SYC 4696 of 2013

DATE DELIVERED: 20 May 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Sydney

JUDGMENT OF: Foster J

HEARING DATE: 30 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC

SOLICITOR FOR THE APPLICANT: Cameron Gillingham Boyd

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. That the wife’s Response to an Application in a Case filed 27 April 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jantsz & Dennis 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 PARRAMATTA

FILE NUMBER: SYC 4676  of 2013

Mr Jantsz

Applicant

And

Ms Dennis

Respondent

REASONS FOR JUDGMENT

1. In an application in a case filed on 22 October 2014 the applicant husband, being the respondent in primary proceedings as between himself and his wife as to property settlement, sought various interlocutory financial orders. That application in a case was amended by reason of an amended application in a case filed on 27 April 2015.

2. The wife filed a response to the husband’s application in a case on 27 April 2015 seeking for her part various interlocutory financial orders.

3. All but one of the interlocutory orders sought by the parties were resolved by reason of consent orders made on 29 and 30 April 2015.

4. Remaining at issue was an interim order sought by the wife in summary as follows:

   a)That order 12.2 of the orders made on 3 February 2014 be discharged; or

   b)That in the alternative and without concession the operation of order 12.2 of the orders made on 3 February 2014 be suspended pending the appointment of the liquidator of B Pty Ltd and determination by the liquidator of any entitlement of Mr C Jantsz and any obligation of Mr C Jantsz to account to the liquidator.

5. B Pty Ltd is the company of which the husband and wife are sole directors and sole ordinary shareholders.

6. Relevantly Order 12 made on the 3 February 2014 provides as follows:

   12. Upon the completion of the sale of the factory premises in [City E] the net proceeds of sale, the parties in their capacity as directors of [D Pty Ltd] and [B Pty Ltd] do all acts and give all necessary directions so that the proceeds of sale are dealt with in the following manner and priority:

   12.1 all costs and expenses of sale, including legal costs and disbursements,

   12.2 an amount equivalent to AU$50,000 be paid to Mr C Jantsz,

   12.3 the balance be paid to [B Pty Ltd].

7. D Pty Ltd is the company D Pty Ltd (Private) registered in Country F in respect of which the husband and wife are sole directors and shareholders. The company owned the factory premises at City E.

8. The husband opposes the order sought by the wife.

9. By consent on 29 April 2015 orders were made requiring the parties in summary to do all things necessary to commence a voluntary winding up of the company B Pty Ltd no earlier than 1 July 2015 and no later than 14 days thereafter.

10. Relevantly Order 11 made by consent on 3 February 2014 provided that:

    a)The husband and wife instruct Mr C Jantsz to negotiate with potential purchasers and to provide the parties with any offers from potential purchasers;

    b)That the parties in their capacity as directors of B Pty Ltd provide to Mr C Jantsz for a period of three months from the date of orders a monthly salary of AU$6,900 such payment to be made to him for the purpose of ensuring the factory property remains secure and appropriately maintained until the sale is completed.

11. Importantly the orders of 3 February 2014 incorporate a notation to the following effect:

    13. Noted that the wife consents to orders in accordance with paragraphs 11 and 12 on the basis that:

    13.1 the wife does not accept that expenses are incurred in the amounts asserted by the husband,

    13.2 the wife does not accept that the amount in paragraph 12.2 (or any amount) is payable to Mr C Jantsz in respect of the sale or at all.

12. The sale of the subject factory premises was completed on 22 August 2014.

13. Notwithstanding the terms of the consent orders made on 3 February 2014 the wife has not authorised the payment to Mr C Jantsz of AU$50,000.

14. The wife makes complaint about the circumstances relating to the sale of another property owned by D Pty Ltd comprising waterfront land at City E in Country F. The wife asserts that the property was purchased in 2004 in the name of a third party but with funds advanced by D Pty Ltd so as to avoid the imposition of local taxes on property held by foreigners.

15. On making enquiries in relation to this property the wife was informed by Mr C Jantsz that he considered the property to be his, it having been given to him by the husband. The wife says she did not consent to the property being transferred or being given to Mr C Jantsz.

16. The wife asserts that the claim by Mr C Jantsz in relation to the property is fraudulent and further asserts an unauthorised retention of AU$29,000 by him from the accounts of D Pty Ltd.

17. She thus seeks an order that he not be paid funds payable to him under orders of 3 February 2014.

18. The husband for his part contends that in 2008 in a conversation with Mr C Jantsz of which the wife was aware and in the context of an issue about outstanding salary owed to Mr C Jantsz he said to Mr C Jantsz words to the effect of “you can regard the land as yours”. The husband says he has no direct knowledge as to the circumstances of the sale of the land nor what happened to the proceeds of sale. His only information is from a conversation with Mr C Jantsz to the effect that the proceeds of sale were retained by the third party in whose name the land was registered or another Country F man.

19. Third party enquiries made by the wife provided information that the subject land was sold in November 2013 and that the proceeds of sale were retained by Mr C Jantsz.

20. It is common ground that the matrimonial asset pool the subject of proceedings is in the order of about $45 million including superannuation.

21. The wife’s position in relation to the payment to Mr C Jantsz as provided for in order 12.2 is noted in the orders of 3 February 2014. The basis for her present position is made clearer by reason of her assertions in the context of the present application.

22. However the court is unable to determine the entitlement or otherwise of Mr C Jantsz to the funds payable to him other than by reason of the consent orders voluntarily entered into by the parties. Her non-admission to that entitlement was noted then.

23. Notwithstanding that the wife raises issues in the context of the present interlocutory application such issues are clearly in dispute and they remains a matter for judicial determination at final trial.

24. Although not expressly stated, the wife’s application for relief enlivens consideration of the court’s power under s 114 of the Family Law Act 1975 (Cth) to make such order or grant such injunction as it considers proper in relation to the property of the parties. If the relief sought by the wife is granted the result would be that the impugned payment could not be made absent agreement between the husband and wife.

25. Overwhelmingly there is sufficient in the substantial matrimonial asset pool to permit an adjustment as between the husband and wife upon resolution of the issue at trial notwithstanding the payment to Mr C Jantsz as provided for in the orders of 3 February 2014. The wife’s position in relation to that payment is clearly preserved by the terms of those orders.

26. Accordingly it is appropriate that the wife’s application be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 20 May 2015.

Associate: 

Date:  20 May 2015