Kent and Marshall
[2012] FamCA 1038
FAMILY COURT OF AUSTRALIA
| KENT & MARSHALL | [2012] FamCA 1038 |
| FAMILY LAW - PROPERTY – Proceeds of sale – The remainder of the proceeds to be kept on trust by the Wife’s solicitors – Where payment for the costs of a subpoena has been demanded – Where it was legitimate for such costs to be demanded – Where it was necessary in the circumstances for the Wife to issue the subpoena – Costs of the subpoena to be paid out of the remainder of the proceeds of sale |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Zova & Elliot and Anor [2008] FamCA 166 |
| APPLICANT: | Ms Kent |
| RESPONDENT: | Mr Marshall |
| FILE NUMBER: | BRC | 9692 | of | 2010 |
| DATE DELIVERED: | 10 December 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 10 December 2012 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Littles Lawyers |
Orders
That the sum of $7,893.60, being part of the net proceeds of the sale of the former matrimonial home at B Street, Suburb C, currently held in the trust account of Gadens Lawyers be paid to Gadens Lawyers in satisfaction of their tax invoice number 121829 addressed to HSBC Bank Australia Limited.
That the sum of $30,640.23 being part of the net proceeds of sale of the former matrimonial home at B Street, Suburb C, currently held in the trust account of Gadens Lawyers be paid into the trust account of the applicant wife’s lawyers, Littles Lawyers, to be held in trust on behalf of the applicant and respondent pending either the written agreement of both parties or further order of the court.
Costs of and incidental to this application be reserved.
All other outstanding applications interim be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kent & Marshall 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 BRISBANE |
FILE NUMBER: BRC 9692 of 2010
| Ms Kent |
Applicant
And
| Mr Marshall |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
In this matter the parties married in 2000 and separated on 12 September 2010. The Husband is aged 52 years and is an airline pilot and the Wife is aged 44 years and is responsible for home duties. The family immigrated from Asia in 2008 and the Husband remained employed in the Middle East for D Pty Ltd. The Wife commenced both property and parenting proceedings on 29 October 2010.
The property at B Street, Suburb C (“the Suburb C property”) is the former matrimonial home. On the 28 March 2011, Justice Barry made a number of orders including, in relation to the property that, one; the Husband was to be restrained from dealing with the Suburb C property and two; the Husband was to continue to pay all amounts due under the Hong Kong Shanghai Banking Corporation Bank mortgage until settlement of any sale of the property, and pay all premiums as and when they fell due and provide evidence of such payments to the Wife and the trustee for sale, Mr E, who was appointed pursuant to paragraph 4 of those Orders. Paragraph 10 of those Orders provided that on settlement of the sale of the property, the net proceeds of the sale, after normal adjustments at settlement, be paid in a variety of manners and priorities. Those Orders have been carried into effect with the end result that the remaining fund is currently held and the Wife seeks that fund be held by her present solicitors on trust.
As was explained to the Husband in the course of this hearing who sought that the money either be held by the trustee, Mr E, or by the Court as trustee, the solicitors for the Wife are first and foremost officers of the court, that is, if they receive moneys on trust and are bound to retain the moneys on trust until there is a further Order of the Court, they can be dealt with for breach of trust if they act otherwise than in accordance with that Order. On that basis, and given that understanding, the Husband withdrew his opposition to the amount being received by the Wife’s current solicitors to be held in their trust account. I will therefore make that Order.
The remaining issue concerns the amount claimed by the Hong Kong Shanghai Bank in respect of their costs and expenses of addressing the requirements of the subpoena that was issued to them. The sum claimed is $7,893.60.
The Order that was made by Justice Barry, as referred to, on 28 March 2011 was one made when the Husband was represented by his then solicitors. The Husband agitates before me today that he was never in a position to meet the payments that were ordered to be paid having notified the bank in January that he would not be able to do so. However, the fact is that an Order was made by this Court in the terms as referred to on 28 March 2011. No appeal was made or was lodged from that Order. The Order applies.
In those circumstances I am satisfied that it was legitimate for the Wife to issue a subpoena to the Hong Kong Shanghai Bank, given that she needed to obtain documents from the bank to verify the loan in circumstances where the loan and the property was in the sole name of the Husband. I am satisfied on the material before me that the bank incurred the costs that are now claimed in respect of the amount of $7893.60 of complying with the subpoena.
Pursuant to rule 15.23 of the Family Law Rules 2004, the recipient of a subpoena may apply to be reimbursed if it incurs a substantial cost or expense that is greater than the amount of the conduct money provided and it is clear on the material before me that demand has been made by the Hong Kong Shanghai Bank, by their lawyers, Gadens, for reimbursement of the amount. Reference has been made in the Wife’s submissions to the case of Zova & Elliot and Anor [2008] FamCA 166 at paragraph 63 where the Court held that rule 15.23(3) provides that a named person may apply for the reimbursement of “substantial loss or expense” that is greater than the amount of conduct money or witness fees payable under the Rules, albeit the discretion must be exercised and the discretion is not fettered by the requirement that the reimbursement may be sought or only ordered against the issuing party. I am satisfied in the circumstances here that it is legitimate for the amount to be paid.
The Husband argues as to the merits of the Wife issuing the subpoena suggesting he had no knowledge at the time of the issuing of the subpoena. However I accept the submission on the behalf of the Wife that the subpoena was necessary in circumstances where the Husband had failed in his duty to provide full and frank disclosure pursuant to rule 13.01 of the Family Law Rules 2004 in relation to issues surrounding the relevant payment of outgoings with respect to the property, and in particular the mortgage, and in respect of the bank’s position vis-à-vis that property.
I therefore make Orders in terms of the application in a case filed on behalf of the Wife and in particular I order as follows; that the sum of $7,893.60, being part of the net proceeds of the sale of the former matrimonial home at B Street, Suburb C, currently held in the trust account of Gadens Lawyers be paid to Gadens Lawyers in satisfaction of their tax invoice number 121829 addressed to HSBC Bank Australia Limited. I further order that the sum of $30,640.23 being part of the net proceeds of sale of the former matrimonial home at B Street, Suburb C, currently held in the trust account of Gadens Lawyers be paid into the trust account of the applicant wife’s lawyers, Littles Lawyers, to be held in trust on behalf of the applicant and respondent pending either the written agreement of both parties or further order of the court. I further reserve each party’s costs of this application.
I otherwise dismiss all outstanding interim applications.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 10 December 2012.
Associate:
Date: 10 December 2012
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