Kruger and Kruger (No. 2)

[2008] FamCA 958

FAMILY COURT OF AUSTRALIA

KRUGER & KRUGER (NO. 2) [2008] FamCA 958

FAMILY LAW – PROPERTY – Interim distribution – Order that trustees of superannuation fund cause the parties’ respective entitlements, the amounts of which are uncontested, to be released as directed.

APPLICANT: Mr Kruger

RESPONDENT: Ms Kruger

FILE NUMBER: PAC 174 of 2007

DATE DELIVERED: 24 October 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Coleman J

HEARING DATE: 24 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dubler SC
Mr Combe

SOLICITOR FOR THE APPLICANT: Macquarie Partnership

COUNSEL FOR THE RESPONDENT: Mr de Robillard

SOLICITOR FOR THE RESPONDENT: Kent Attorneys

Orders

1. That the trustees of the parties’ self-managed Superannuation Fund cause the wife’s entitlement in the said fund to be paid to her upon her entitlement to payment vesting or, at her election, transferred to a superannuation fund nominated by her, and cause to be paid to the husband his entitlement in the said fund, provided that there be retained from such entitlement a sum representing the book value of the plant and equipment of Residential Facility One.

1. That judgment otherwise be reserved.

1. That costs be reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC174  of  2007

MR KRUGER

Applicant

And

Ms KRUGER

Respondent

REASONS FOR JUDGMENT (No 2)

EX TEMPORE

1. In this matter, to the extent that it remains controversial and it has become largely uncontroversial, the Court sees no reason why the parties ought not receive, in possession in the case of the husband, in entitlement in the case of the wife, their respective superannuation interests in their jointly controlled superannuation fund. Although inadvertently transposed in paragraph 205 of the Court’s primary judgment, the figures which reflect the entitlements of the parties are not in contest, nor is there any suggestion that there is any impediment to each party receiving his or her entitlement.

2. There are three trustees of the fund. Two are the parties, who have at all material times been aware of what the other was seeking with respect to superannuation interests. The third trustee, if not on the clearest of notice prior to today, has, it is fairly accepted on behalf of the wife, been put on notice by junior Counsel for the husband today in a telephone conversation, the text of which would be recorded on the transcript of proceedings earlier today. The trustees have thus been afforded procedural fairness. Nothing asserted on behalf of the trustees raises any obstacles in the path of making the orders which the Court proposes.

3. The husband is over 60 years of age. He is entitled to receive his superannuation benefits in cash, unless - and it does not seem to be indicated - he elects to roll over those benefits into an eligible superannuation fund. The wife is not immediately entitled to be paid her entitlement, but before the year is out, she will be. In the meantime, the appropriate Order which her Counsel has indicated his acceptance of is that her entitlement be transferred to an eligible superannuation fund or, if that does not happen before the wife turns 60 years of age later this year, paid to her in cash if she so desires.

4. There is one proviso in the case of the husband's receipt of his entitlement, that being that plant and equipment at book value of Residential Facility One - for reasons which senior Counsel for the husband outlined, and which are ultimately largely uncontroversial - should be offset against the husband's superannuation entitlement when that is paid to him. The reason for that is that if the husband is successful in terms of the final Orders sought on his behalf, he will obtain the plant and equipment in Residential Facility One at book value, that plant and equipment being an asset of a trust which the wife will acquire or retain. In effect, it is a simple and convenient adjustment to do that.  If, as the wife seeks, the husband does not obtain Residential Facility One, either out of other assets or the remaining assets of the superannuation fund, the husband could receive the balance of his superannuation entitlement.

5. For those brief reasons, the Orders are as the Court has indicated.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate: 

Date:  4 November 2008