FAMILY COURT OF AUSTRALIA
| MALLOY & STOPFORD MALLOY | [2019] FamCA 986 |
| FAMILY LAW – PROPERTY – Where the wife asserts that there are unpaid present entitlements due to be paid to the husband as a beneficiary under a number of trusts of which some of the third respondents’ companies are trustees – Where the wife seeks to identify the entities that presently hold the unpaid present entitlements – Where the husband is in arrears for spouse maintenance payments to the wife – Where orders were made by Bryant CJ to appoint receivers – Where from those orders the father appealed – Where the Full Court found that the enforcement orders appointing receivers should not have been made – Where the receivers seek an order that the husband pay their fees – Where established principle that receivers are entitled to their fees from the assets under the receivership – Where the court is satisfied that the effect of the Full Court’s orders is not to disentitle the receivers from remuneration for their work – Where the husband seeks that the wife indemnify him for any sum recovered in respect of the receivers’ fees – Where the court is satisfied that r 20.51 does not provide a sufficient basis to order the wife to be made responsible for the receivers’ remuneration – Order that the husband pay the fees and costs of the receivers – Whether a receiver should be appointed – Where Malloy and Ors & Stopford Malloy (2017) FLC 93-804 applied – Where the court declines to appoint receivers – Where the wife seeks a dollar-for-dollar order – Where disparity between the parties’ financial positions – Where merit in the wife’s case – Order for litigation funding order |
| Acts Interpretation Act 1901 (Cth) s 13 Evidence Act1995 (Cth) s 75 Family Law Act 1975 (Cth) (1975) ss 80, 83 and 117 Legislation Act 2003 (Cth) s 13 Family Law Rules 2004 (Cth) rr 1.12, 5.09, 9.08, 15.52, 20.47 and 20.51 |
| Barnes v Addy (1874) LR 9 ChApp 244 Battenberg v Union Club (2005) 215 ALR 696 Boehm v Goodall [1911] 1 Ch 155 Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220; [1935] HCA 45 D Pty Ltd and Ors & Sadler and Ors (2016) FLC 93-736; [2016] FamCAFC 187 Fuller and Anor & Sadler and Anor (2017) 56 Fam LR 495; [2017] FamCA 243 Harman v Home Department State Secretary [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125; [2008] HCA 36 Kachmarik & Gebel [2019] FamCAFC 224 Malloy and Ors & Stopford Malloy (2017) FLC 93-804; [2017] FamCAFC 204 Mellor v Mellor [1992] 1 WLR 517 National Australia Bank v Bond Brewing Holdings Ltd [1991] 1 VR 386 Nationwide News Pty Ltd v Samalot Enterprises Pty Ltd (No 2) (1986) 5 NSWLR 227 Paris King Investments Pty Ltd v Rahill [2006] NSWSC 578 Re Application of Central Commodities Services Pty Ltd [1984] 1 NSWLR 25 Sinclair v Glatt & Ors [2009] EWCA… |
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- AGLC
- Malloy & Stopford Malloy [2019] FamCA 986
- Case
- [2019] FamCA 986
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether to grant leave for the Receivers to intervene, approve their remuneration and expenses, and declare their right to indemnity and a lien over the husband's property. Further issues included whether to order the production of un-redacted financial accounts by certain trusts, the disposition of a Rolex watch and wedding ring to satisfy maintenance arrears, and the terms of litigation funding to be provided by the husband to the wife.
Tree J granted the Receivers leave to intervene and approved their remuneration, expenses, and legal costs, declaring their entitlement to be indemnified from the husband's property and a lien over it. The court ordered the trustees of the Malloy Trust and FF Management Trust to produce un-redacted financial accounts to the wife's solicitors, with restricted publication. The husband was ordered to deliver up a Rolex watch and wedding ring for sale to satisfy maintenance arrears, with provisions for insurance claims if delivery failed. Significant orders were made regarding litigation funding, requiring the husband to pay monies received for his legal and expert costs to the wife's solicitors to fund her legal expenses, with specific trust and payment conditions. Many of the other applications made by the parties were dismissed.
Orders
Orders of the court
Arising from Application in a Case filed 16 November 2017
1.
The Receivers are granted leave to intervene in this Action as a party.
2.
The Receivers’ remuneration for acting as joint and several receivers of the income and the property of the Respondent Husband pursuant to the orders made in this Honourable Court on 5 September 2016 (Orders of Appointment) be approved in the sum of $34,640.93 including GST.
3.
The Receivers’ expenses and legal costs for acting as Court appointed joint and several receivers pursuant to the Orders of Appointment be approved as follows:
3.1 expenses in the sum of $644.73 including GST; and
3.2 legal costs for acting as Court appointed joint and several receivers in the sum of $15,093.14 including GST.
being a total of $15,737.14 (including GST).
4.
A declaration that the Receivers are entitled to be indemnified from the property of the Respondent Husband in respect of their remuneration, expenses and costs.
5.
A declaration that the Receivers have a lien over the property of the Respondent Husband as security for payment of their remuneration and proper expenses, together with costs of and incidental to the Application in a Case filed by the Receivers on 16 November 2017 in the Action and of the reasonable costs and expenses of enforcing their right of indemnity.
6.
That otherwise the Application in a Case filed 16 November 2017 and Amended Response filed 19 July 2018 be dismissed.
Arising from Application in a Case filed 11 July 2017
7.
That the trustees of the Malloy Trust and the FF Management Trust produce to the wife’s solicitors un-redacted versions of their financial accounts as previously provided in a redacted form (“the accounts”).
8.
That the publication or inspection of the accounts be restricted only to the wife’s legal advisors from time to time, and any expert accountant retained by her solicitors.
9.
That otherwise the Applications in a Case filed 11 July 2017 and 2 November 2017 be dismissed.
Arising from Application in a Case (for enforcement) filed 21 September 2018
10.
The wife’s Application in a Case filed 2 May 2019 be dismissed.
11.
That the husband do all things and execute all documents necessary to cause to be delivered up to the wife’s solicitors:
11.1 the husband’s Rolex watch;
11.2 the husband’s white gold and diamond wedding ring; and
11.3 all and any documents to permit the wife to sell the said watch and ring within fourteen (14) days and so cause the net proceeds of each of such sales to be applied in respect to the arrears of spouse maintenance owing to the wife.
12.
That in the event that the husband fails to deliver up or cause to be delivered up the said watch and/or ring within fourteen (14) days, the husband, in the event of an insurable event (such as, but not limited to, loss, damage, or theft) having occurred or having likely to have occurred, then shall execute all documents and do all things necessary to cause an insurance claim to be made in respect of the said watch and/or ring and to case the net proceeds of such claim to be paid to the wife in respect of the arrears.
13.
That the husband:
(a) Attend an enforcement hearing to answer questions on a date to be fixed by this Honourable Court; and
(b) The husband make, file and serve upon the wife at least seven (7) days before the time fixed for the enforcement hearing, as fixed pursuant to paragraph 13(a) herein, a financial statement setting out the husband’s financial circumstances.
14.
That otherwise the wife’s Application in a Case filed 21 September 2018 (seeking enforcement) be dismissed.
15.
That the husband’s Response to Application in a Case filed 12 December 2018 be dismissed.
Arising Application in a Case (for litigation funding) filed 21 September 2018
16.
Pursuant to s 117 of the Family Law Act 1975 (Cth), from the date of these orders and within seven (7) days after the payment by or on behalf of the husband any monies in payment of accounts:
16.1 rendered by solicitors or counsel for the husband in connection with these proceedings;
16.2 rendered by accountants engaged by the husband or the solicitors for the husband, or on his or their behalf, to value or express an opinion or comment on the interest of the husband and/or the wife in any business, company, trust or entity or the husband’s income or loan accounts or unpaid present entitlements of the husband or to examine any document for the purposes of these proceedings; and
16.3 rendered by any expert engaged by the husband or the solicitors for the husband, to report on the interest the husband has in any business, company, trust or entity in which he has an interest or to express an opinion or comment on the interest of the husband and/or the wife in any business, company or trust or entity or the husband’s income or loan accounts or unpaid present entitlements of the husband or of any associated entity or examine any document for the purposes of these proceedings;
the husband pay or cause to be paid the same amount/s to the trust account of the solicitors for the wife, to be applied to her legal costs and expenses in connection with these proceedings.
17.
Within twenty-four (24) hours after the payment by or on behalf of the husband of any amount/s referred to in order 16, the husband cause to be given to the wife’s solicitors a memorandum stating the amount or amounts so paid to the solicitors or accountants or expert/s.
18.
The husband instruct his solicitor that all monies paid to them including on his behalf, as referred to in order 16, should be held in trust by them and not applied in payment of any outstanding legal fees until such time as the same amount has been paid by or on behalf of the husband to the solicitors for the wife on the court record from time to time in these proceedings.
19.
In the event that the payment to the wife referred to in Order 16 is not made within seven (7) days thereafter, the husband is to instruct his solicitor to pay 50 per cent of whatever amounts have been received by them (as referred to in order 18 and held by them in trust) to the solicitors for the wife on the court record from time to time in these proceedings.
20.
That the wife instruct her solicitor that the amounts paid, or caused to be paid by the husband to the solicitors for the wife pursuant to the preceding orders be applied by the solicitors for the wife in payment of the legal costs and disbursements incurred or to be incurred by the wife in the conduct of these proceedings, including but not limited to the reasonable costs and disbursements:
20.1 rendered by the solicitors or counsel for the wife;
20.2 rendered by accountants (engaged by the wife or the solicitors for the wife), to value the interests of the husband in any business, company, trust or entity or comment upon the husband’s income, loans, or unpaid present entitlements; or
20.3 rendered by valuers (engaged by the wife or the solicitors for the wife) to report on and value the real and personal property relevant in these proceedings and the income and loan accounts or unpaid present entitlements of the husband relevant in these proceedings.
21.
The question of how payment of costs to the wife pursuant to these orders are to be treated at the final hearing be a matter for determination by the trial judge.
22.
That otherwise the wife’s Application in a Case filed 21 September 2018 (seeking litigation funding) and the husband’s Response filed 12 December 2018 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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