MacDougal and Benson & Anor

[2015] FamCA 606

FAMILY COURT OF AUSTRALIA

MACDOUGAL & BENSON AND ANOR [2015] FamCA 606

FAMILY LAW – PROPERTY – Wife’s application for interim property orders including payment of outstanding debts – where the husband opposes the wife’s application – where a final hearing is imminent.  

FAMILY LAW – PRACTICE AND PROCEDURE – wife’s application consolidated with the applications for final orders in circumstances where the final hearing is imminent.

Family Law Act 1975 (Cth)

APPLICANT: Mr MacDougal

FIRST RESPONDENT: Ms Benson

SECOND RESPONDENT: Mr Benson

FILE NUMBER: MLC 1674 of 2013

DATE DELIVERED: 10 February 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 10 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Stoikovska

SOLICITOR FOR THE APPLICANT: Forte Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Cummings

SOLICITOR FOR THE FIRST 

RESPONDENT:

Lennon Mazzeo

COUNSEL FOR THE SECOND RESPONDENT: Mr Perl

SOLICITOR FOR THE SECOND

RESPONDENT:

HWL Ebsworth Lawyers

Orders

IT IS ORDERED THAT

1. The Wife’s Application in a Case filed 5 February 2015 be consolidated with the applications for final orders and be adjourned for hearing at 10.00 am on
   27 April 2015.

IT IS ORDERED BY CONSENT AS BETWEEN THE HUSBAND AND WIFE THAT

a)The Applicant and the First Respondent forthwith do all things necessary to instruct the single expert property valuer to prepare updated sworn valuations and be made available to the parties no later than 4.00 pm Monday 2 March 2015 in respect of the following properties:

CC Street, Suburb G;
DD Street, Suburb EE (not by consent);
FF Street, Suburb GG (not by consent);
K Street, Suburb S (not by consent);
X Street, Suburb W (not by consent).

b)The cost of the updated valuations shall be met at first instance jointly by the Applicant and First Respondent from the funds held on trust on behalf of Company U by Forte Family Lawyers and reserve the question of whether either party shall be liable for the costs of valuation of the properties or any of them.

1. a) Within 7 days each of the Applicant and First Respondent individually instruct, and forthwith provide a copy of the letter of instruction to the solicitor for the other, HH Accountants, to prepare assessments of estimated tax liabilities in respect of the Applicant and First Respondent and their entities in accordance with the assertions by each of them in their respective cases, and, updated CGT calculation in respect of the Suburb B property.

b) The respective assessments to be provided and filed by the Applicant within one Affidavit, and
c) The costs of preparation of the assessment to be paid for jointly by the Applicant and First Respondent from funds held in trust by Forte Family Lawyers on behalf of Company U.

1. The Applicant and First Respondent file and serve an updated Statement of Financial Circumstances no later than 4.00 pm on 2 April 2015.

IT IS NOTED that publication of this judgment by this Court under the pseudonym MacDougal & Benson & Anor 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 MELBOURNE

FILE NUMBER: MLC 1674 of 2013

Mr MacDougal

Applicant

And

Ms Benson

Respondent

Mr Benson
2^nd Respondent

REASONS

1. This matter was listed for hearing before me as a 10 day matter commencing on 8 September 2015.  It became clear at the commencement of that hearing that Ms II, who had prepared a family report in anticipation of the trial, was not available for cross-examination at that trial.  There were also issues with respect to the orders sought by the husband and whether notice had been provided to possible third parties affected by the orders that he sought.

2. Ultimately, I acceded to an application to adjourn the matter and having done so, the parties, to their credit, were able to resolve the parenting issues and I made parenting orders and otherwise adjourned the matter for a final hearing as a five day matter commencing on 16 March 2015,  that hearing being limited to financial issues.  For reasons which are not relevant for the purposes of the decision I must make today  the trial was re-listed to 27 April 2015.  The matter had been listed for mention before me this day in anticipation of the hearing on 16 March 2015 to determine the matter’s readiness for trial and to make any orders that might be necessary to make sure the matter was ready for the trial, now listed on 27 April. 

3. On 5 February 2015, the wife filed an application in a case together with an affidavit which, including annexures, runs to some 165 pages.  That application was made returnable before me this day.  The wife in that application seeks, amongst other things, an order that the parties instruct HH Accountants to prepare final tax returns and annual accounts for Company U and the BI Trust for the 2013 financial year  as prepared in draft by HH Accountants and sent to the parties on 18 September 2014, save that they be amended as follows: that the $333,000 paid to T Pty Ltd in that financial year be deducted only from the wife’s unpaid present entitlements in the BI Trust and the $400,000 loan advance made by Company U be identified as an investment loan to MTI Pty Ltd. 

4. The wife further sought orders that she and the husband do all acts and things necessary to jointly instruct HH Accountants to prepare:

   ·tax returns and financial statements for Company EE, the EE Unit Trust, Company U and the BI Trust for the financial year ending 30 June 2014;  

   ·all outstanding personal tax returns for the parties;

   ·a letter of report wherein an estimate is made by HH Accountants of the present unpaid income tax liability of each of the said entities and the husband and the wife; an

   ·an updated capital gains tax calculation for the property at JJ Street, Suburb B, reflecting the sale price obtained at auction.

5. The wife also seeks orders that the sum of $94,561 and such additional amount as may be necessary be forthwith paid to the Australian Taxation Office from the Trust Account to meet the presently assessed and outstanding obligations of Company U, inclusive of all costs, penalties and interest, and that there be an updated written valuation of CC Street, Suburb G. 

6. In paragraph 9 of her application, the wife sets out a number of debts which she says should be forthwith met from the moneys held in trust.  It is this last order that the wife seeks which seems to be the order which she says requires that the matter be dealt with as a matter of urgency prior to the trial on 27 April 2015.

7. The wife’s affidavit was sworn on 29 January 2015 but not filed until 5 February and was served upon the husband’s solicitors on the afternoon of 5 February 2015.  However, the urgent expenses are the same expenses which were included in an interim application made by the wife on 3 July 2014.  That application was listed for hearing before Johns J on 1 August 2014 and the wife deposes, although I do not know whether or not this is accurate, that because of the pressure of business, the Court did not have time that day to determine those issues and, given that the case was then to proceed to a final hearing on 8 September 2014, the application of 3 July 2014 was not pursued.

8. The wife then deposes that “whilst I continue to say all of the amounts stated in my application filed on 3 July 2014 must be paid, I specifically seek now that the following debts be paid prior to the final hearing”.  There is no explanation as to why, if these accounts are urgent, nothing has been done about an application to seek payment of them until 5 February 2015.  It may be that the debts do need to be paid but in any event, if I were to deal with this application, I would need to allow the husband time to respond to that application.  There is clearly, based upon the submissions made by Ms KK, likely to be a dispute as to what, if any, of these amounts should be paid and, for the husband’s part, amounts that he says should be paid.  There would also appear to be likely to be a dispute as to whether the wife, in any event, has the capacity to pay these amounts. 

9. I am not satisfied that there is any such urgency that would require a hearing of this matter which, by the time the husband is given an opportunity to respond to the material, a date is found for a hearing and judgment is delivered, is likely to be within a month, if not less, of the final hearing.  This case has taken a lot of court time.  It does have a final hearing.  It would also appear, simply on a reading of the wife’s affidavit, that the question of the payment of these amounts is itself tied into the issues that I will be required to determine at the trial.

10. In all of the circumstances, I propose to adjourn this application to be consolidated with the other applications at the final hearing on 27 April 2015.

11. I add for the sake of completeness with respect to the taxation returns and the order the wife seeks with respect to the payment of what she says were loans totalling $400,000 to MTI Pty Ltd and what the husband says was moneys advanced to the wife’s brother, , and notwithstanding, as submitted by Mr Z that the tax returns could be submitted and later amended, that this issue lies at the very heart of the dispute in this case. I am certainly not going to be in a position, at an interim hearing when the evidence cannot be tested and clearly on an issue that is likely to go to credit, to make findings in relation to this issue.

12. In the absence of evidence which says that it is absolutely essential that the tax returns be filed, the Court will require evidence as to the possible assessments given the two scenarios. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 10 February 2015.

Associate: 

Date:  12 March 2015