May and Jonas and Ors

[2012] FamCA 1128

FAMILY COURT OF AUSTRALIA

MAY & JONAS AND ORS [2012] FamCA 1128

FAMILY LAW – Leave granted to make oral application for variation of earlier injunction requiring investment of funds pending final determination of de facto and third party property dispute– application granted – oral application for adjournment of final hearing - final hearing adjourned pending outcome of County Court proceedings between a party and the Australia Taxation Office

APPLICANT: Ms May

RESPONDENT: Mr Jonas

SECOND RESPONDENT:	Mr B
THIRD RESPONDENT	B Pty Ltd

FILE NUMBER: MLC 2485 of 2010

DATE DELIVERED: 19 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 19 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr O’Shannessy

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Dr Ingleby

SOLICITOR FOR THE RESPONDENT: ICA Legal

COUNSEL FOR THE SECOND AND THIRD RESPONDENT Ms Durai

SOLICITOR FOR THE SECOND AND THIRD RESPONDENT Roberts Daniels & Associates

Orders

IT IS ORDERED THAT:

1. In lieu of the investment of funds provided for in paragraph 1(c) of the Order made on 18 October 2011, the parties do all acts and things necessary to ensure the proceeds of the sale of the property  known as C Street, D Town in the State of Victoria in the sum of approximately $256,752 be invested in an interest bearing account in the name of the wife’s solicitors to abide further of the Court and upon the investment being made the wife’s solicitors provide proof of the investment to each other party to the proceedings.

2. The final hearing set down for 10 July 2012 be vacated and in lieu thereof I set this matter down for final hearing before me, subject to part-heard cases only, to commence on 21 November 2012 at 10.00 am and to continue until 13 December 2012 subject only to the hearing of the matter of Tournier & Ford, MLC11377/2009.

3. The time for compliance by the applicant with paragraphs 2 and 3 of the Order made on 11 January 2012, as to the filing of any amended application and any and all evidence be extended to 4.00 pm on Wednesday 4 July 2012.

4. The time for compliance by the first respondent with paragraph 4 of the Order made on 11 January 2012, as to the filing of all evidence, be extended to 4.00 pm on Wednesday 25 July 2012.

5. The time for compliance by the second and third respondents with paragraph 5 of the Order made on 11 January 2012, as to the filing of any evidence, be extended to 4.00 pm on Wednesday 22 August 2012.

6. The respondents may file and serve any amended applications or responses at the same time as they are required to file evidence.

7. The applicant advise, and keep advised, the other parties to the proceedings and the Court, through either Registrars Riddiford or Sikiotis, of the progress of the proceedings in the County Court in which she, is the defendant, and the Australian Taxation Office’s as the plaintiff is set down for 25 September 2012 and provide a copy of any reasons for decision and any orders of the County Court in those proceedings.

8. The question of the costs of all parties of and incidental to this day be reserved.

9. The reasons for decision this day be transcribed and when settled copies be made available to the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym May & Jonas & Ors 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 2484 of 2010

Ms May

Applicant

And

Mr Jonas

Respondent

And

Mr B

And

B Pty Ltd

REASONS FOR JUDGMENT

ex tempore

1. This is an oral application by the applicant de facto wife to vary an order made by me on 18 October 2011, which provided in paragraph 1 for the investment in a specified interest bearing account of proceeds of sale of real property, which ultimately were realised in the sum of $256,752.  There is no objection by either party to the application being made orally.  It is supported by an affidavit sworn on 15 June 2012.  That affidavit evidence was served yesterday upon the second and third respondents.  They do not seek an adjournment in order to answer the affidavit, and do not seek to rely on any evidence in response to the affidavit. 

2. I grant leave for the applicant to make an oral application.

3. Ms Davey, solicitor for the applicant deposes that on 6 May 2012 a letter was sent to the solicitors for the second and third respondents requesting written consent to deposit the moneys. Tax file numbers were also requested, such information being necessary for the investment to be made, as ordered. 

4. The applicant’s solicitor deposes that on 17 April 2012 the solicitors for the second and third respondents wrote, requesting confirmation as to the current status of the net proceeds of sale.  It is further deposed that on 30 April 2012 Ms Davey spoke with “Ms E” of the office of the solicitors for the second and third respondents. Ms Davey deposes that she advised Ms E verbally by telephone that the consent and tax file numbers of the second and third respondent were required, to lodge the moneys for investment and says that:

   [Ms E] indicated to me that she would obtain same.

5. Ms Davey further deposes that on 7 May 2012 a further letter was sent to the solicitors for the second and third respondent asking for the information as a matter of priority and that:

   At the date of swearing this affidavit [16 June 2012] the respondent, and second respondent, and third respondent of each failed, refused, or otherwise neglected to provide the information sought by Taussig Cherie Fildes to enable the net proceeds of sale of property to be invested in accordance with paragraph 1C of the orders.

6. Where Ms Davey referred to correspondence in her evidence, that correspondence is annexed to her affidavit. 

7. There is no opposition by or on behalf of the respondent de facto husband to the further orders sought by the applicant de facto wife, which will facilitate the investment. 

8. There is opposition from the second and third respondents.  There is no evidence, however.  It was submitted by counsel on behalf of the second and third respondents that they would provide their tax file numbers now, but they haven’t.

9. The respondents also seek that any interest bearing account should note their interest in the moneys. The order sought is that the proceeds of sale be invested in an interest bearing account in the name of the wife’s solicitors to abide further order of the court.  That is apparently sufficient to implement the investment.  Who lays claim to the funds is not a matter that the bank need to be aware. As was my original ruling, I am confident that the wife’s solicitors as officers of the court will abide further order of the court.

10. The purpose of the order which I made on 18 October 2011 was that the moneys be invested as soon as practicable so that interest can be earned, albeit modest interest. 

11. I will accede to the application of the applicant de facto wife and make the order sought.  I am satisfied that it is an outcome which is proper, just and convenient and reasonably necessary within the terms of the legislation. I am satisfied the second and third respondents have been accorded procedural fairness and are in no way prejudiced. Indeed, the investment may well be made sooner by making this order.

RECORDED  :  NOT TRANSCRIBED

1. The matter is listed for final hearing on 10 or 11 July 2012.  This is at least the second final hearing listing that the matter has been allocated.  The most recent one was in February 2012. 

2. The applicant seeks an adjournment of the final hearing, on the basis that there are related and relevant proceedings before the County Court, in which she is the defendant and the Australian Tax Office is the plaintiff for recovery of PAYE tax, which was deducted by the company F Pty Ltd but not paid to the Australian Taxation Office.  The liability is said to be approximately $104,000 plus interest, plus costs, and I presume plus penalties as well. 

3. It is submitted on behalf of the applicant de facto wife that her case in the County Court will be that she ought not be liable in her capacity as a director of the entity for payment of the PAYE tax deductions. 

4. In this court, the applicant’s case it is that, in the event that she is unsuccessful in her litigation with the Australian Taxation Office and is left with the liability associated with F Pty Ltd, the de facto husband ought indemnify and hold her harmless in relation to that liability, with the effect that she will be entitled to 100 per cent of any assets which are divisible between the parties, which is the net proceeds of sale of $257,000 previously referred to. 

5. Of course, it is the case of the second and third respondents, as well as the husband, that the $257,000 is due and payable to the second and third respondents. 

6. The respondents seek that the matter proceed as soon as practicable.  Very sensibly, on behalf of the respondent de facto husband, Dr Ingleby submits that it would not be prudent to deal with the matter prior to the conclusion of the County Court proceedings.  That is obviously correct.  To do otherwise, is likely to lead to further delays and truncated hearing, and a significantly delayed resolution of the matter. 

7. On behalf of the second and third respondents, Ms Durai originally sought a date early than the dates in November and December that I could make available, but then abandoned that position.  It is clear that her client presses his claim and that of the third respondent.   Ms Durai made submissions as to the substance of her clients’ claim but they are submissions and arguments which will be considered at a final hearing and don’t sound in an application for an adjournment. 

8. I will grant the adjournment.

9. I will make further provision for documents to be filed by all parties for the trial.  In this respect, I note that the wife should have filed her documents in April – 10 April 2012, and failed to do so, and could not have filed them before Friday of this week.  It is an extensive period of noncompliance of which I have been critical this morning.   

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 19 June 2012.

Associate: 

Date:  5 February 2013