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MORROW & STEELE (No.2)

MORROW & STEELE (No.2)

Case [2015] FCCA 1259 20 May 2015

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FEDERAL CIRCUIT COURT OF AUSTRALIA

MORROW & STEELE (No.2)

[2015] FCCA 1259

Catchwords:
FAMILY LAW – Property dispute – draft orders published – parties to confer – parties wholly failing to confer – both parties seeking to revisit earlier judgment and/or to re-open their case – whether court has power to reconsider earlier judgment when orders not yet entered – court revising outcome in light of further submissions – orders made in an endeavour to produce a workable just and equitable outcome.

Legislation:
Federal Circuit Court Rules 2001, r.16.05(1)

IABH & HRBH [2010] FamCA 110
Rosati v Rosati (1998) FLC 92-804
Ashby v Slipper (No.2) [2014] FCAFC 67
Blank v Commissioner of Taxation (No.2) [2014] FCA 517

Applicant:

MS MORROW

Respondent:

MR STEELE

File Number:

MLC 4205 of 2013

Judgment of:

Judge Burchardt

Hearing date:

25 March 2015

Date of Last Submission:

25 March 2015

Delivered at:

Melbourne

Delivered on:

20 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Sweeney

Solicitors for the Applicant:

Pearsons Lawyers Pty Ltd

Counsel for the Respondent:

Mr Robinson

Solicitors for the Respondent:

Blackwood Family Lawyers

ORDERS

The husband and wife forthwith do all acts and things required of them to instruct Tisher Liner, solicitors, to pay the following sums from the funds held on trust for the parties:
(a)The sum of $143,267 to (omitted) accountants, to be held on trust for the parties to be applied in the following priority:
(i)To pay to the Commissioner of Taxation any unpaid tax of the wife related to the years ended 30 June 2013;
(ii)To pay to the Commissioner of Taxation any personal taxation of the husband and the wife assessed as payable by her or him on any distributions or payments from the (omitted) Trust.
(iii)The balance to be paid to the husband, or at his direction, to meet any taxation liability incurred in his name.
(b)The balance to be paid to the wife.
The husband sign all documents and do all acts and things required of him personally and his capacity as a director, to transfer to the wife at the expense of the transferring entity, the whole of his right, title and interest in the BMW motor vehicle currently driven by the wife.
That the husband pay to the wife the sum of $500,000 (“the payment”) on or before 31 July 2015 (“the date”).
Contemporaneously with the payment in paragraph 3 hereof, the wife relinquish any and all interest she has or may have had in:
(i)The (omitted) Trust;
(ii)(omitted) Pty Ltd;
(iii)(omitted) Pty Ltd;
(iv)(omitted) Unit Trust;
(v)(omitted) Pty Ltd;
(vi)The (omitted) Trust;
(vii)(omitted) Pty Ltd;
(viii)(omitted) Pty Ltd;
(ix)(omitted) Partnership;
(x)(omitted) Pty Ltd;
(xi)(omitted) Pty Ltd;
(xii)(omitted) Pty Ltd;
(xiii)(omitted) Investment Trust;
(xiv)Steele Investments Pty Ltd –
(“the Steele Group”).
The husband pay and indemnify the wife against any and all liabilities of whatsoever nature and kind of the Steele Group and including any liability of the parties personally howsoever arising from their involvement in the Steele Group including but…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading MORROW & STEELE (No.2)

Details

AGLC: Morrow and Steele (No.2) [2015] FCCA 1259
Case: [2015] FCCA 1259
Decision Date: 20 May 2015

CaseChat Overview and Summary

This matter concerned orders made by Judge Burchardt in a family law proceeding between a husband and wife. The dispute involved the division of property and the resolution of financial liabilities between the parties.

The court was required to determine the terms of the final property settlement, including the distribution of funds held on trust, the transfer of a motor vehicle, a significant monetary payment from the husband to the wife, and the wife's relinquishment of interests in various entities. Further issues included the husband's indemnification of the wife against liabilities of a group of companies, the splitting of superannuation interests, and the allocation of costs.

Judge Burchardt ordered that specific sums be paid from trust funds, with priority given to tax liabilities of both parties. The husband was also ordered to transfer a BMW motor vehicle to the wife and to pay her $500,000 by a specified date. Contemporaneously with this payment, the wife was to relinquish all interest in a list of named entities, referred to as the "Steele Group." The husband was further ordered to indemnify the wife against all liabilities of the Steele Group, including any personal taxation liabilities arising from their involvement. The court also ordered a split of the husband's superannuation interest, with specific provisions to bind the trustee and protect the wife's entitlement in the event of the husband's death. Each party was to bear their own costs, except for the costs of a specific expert report, which were to be shared equally. The orders also stipulated that each party was solely entitled to property in their possession, with specific provisions for bank accounts, superannuation, insurance policies, and the severance of any joint tenancies.

Orders

Orders of the court

The husband and wife forthwith do all acts and things required of them to instruct Tisher Liner, solicitors, to pay the following sums from the funds held on trust for the parties:

(a) The sum of $143,267 to (omitted) accountants, to be held on trust for the parties to be applied in the following priority:

(i) To pay to the Commissioner of Taxation any unpaid tax of the wife related to the years ended 30 June 2013;

(ii) To pay to the Commissioner of Taxation any personal taxation of the husband and the wife assessed as payable by her or him on any distributions or payments from the (omitted) Trust.

(iii) The balance to be paid to the husband, or at his direction, to meet any taxation liability incurred in his name.

(b) The balance to be paid to the wife.

The husband sign all documents and do all acts and things required of him personally and his capacity as a director, to transfer to the wife at the expense of the transferring entity, the whole of his right, title and interest in the BMW motor vehicle currently driven by the wife.

That the husband pay to the wife the sum of $500,000 (“the payment”) on or before 31 July 2015 (“the date”).

Contemporaneously with the payment in paragraph 3 hereof, the wife relinquish any and all interest she has or may have had in:

(i) The (omitted) Trust;

(ii) (omitted) Pty Ltd;

(iii) (omitted) Pty Ltd;

(iv) (omitted) Unit Trust;

(v) (omitted) Pty Ltd;

(vi) The (omitted) Trust;

(vii) (omitted) Pty Ltd;

(viii) (omitted) Pty Ltd;

(ix) (omitted) Partnership;

(x) (omitted) Pty Ltd;

(xi) (omitted) Pty Ltd;

(xii) (omitted) Pty Ltd;

(xiii) (omitted) Investment Trust;

(xiv) Steele Investments Pty Ltd –

(“the Steele Group”).

The husband pay and indemnify the wife against any and all liabilities of whatsoever nature and kind of the Steele Group and including any liability of the parties personally howsoever arising from their involvement in the Steele Group including but not limited to any taxation arising in the name of the wife or on her behalf.

Pursuant to s.90MT(1) of the Family Law Act 1975, there be the sum of $67,481 shall be “split” from the superannuation interest held by the husband in the (omitted) Retirement Fund and paid to the Trustee of a fund nominated in writing by the wife and there shall be a corresponding reduction in the entitlement that the husband would have had in the said Fund and which he would have received but for this Order;

That this Order binds the Trustee of the Fund and takes effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee;

That the Trustee of the Fund in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, shall do all such acts and things and sign all such documents as are necessary to make payments to the wife in accordance with this Order.

The Trustee of the Fund be forthwith served with a sealed copy of this Order.

10.

That until the happening of any of:

(a) The split and transfer referred to in paragraph 8 hereof;

(b) The transfer or “rolling over” into another superannuation fund of the payment split created by this Order hereof; or

(d) The wife executes a waiver of rights within the meaning of the s.90MZA of the Family Law Act 1975 in relation to the payment split created by paragraph 8 hereof; the husband nominate the wife as the sole beneficiary of the entitlements payable by the Fund in the event of his premature death and he be and is hereby restrained by himself, his servants and/or agents from executing a death benefit nomination in favour of any person or from nominating any beneficiary under the fund other than the wife or doing any other acts or things which would render any part of his interest in the Fund a “non-splittable payment” within the meaning of Regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001 including executing any death benefit nomination in favour of any child or other person.

11.

Each party shall be equally liable to pay the costs of Mr F for the preparation of his report to the Court and for his attendance at the Court to give evidence.

12.

Unless otherwise specified in these Orders:

(a) Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.

(b) Monies standing to the credit of the parties in any bank account are to become the property of the owner of the bank account;

(c) Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other, save as is provided herein;

(d) All insurance policies to become the sole property of the beneficiary named therein;

(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Agreement;

(f) Any joint tenancy of the parties in any real or personal property to be otherwise expressly severed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Morrow and Steele (No.2) [2015] FCCA 1259

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MORROW & STEELE
[2015] FCCA 251

…My Reasons for Judgment in the property matter (citation [2015] FCCA 251)…
MORROW & STEELE
[2014] FCCA 1738 Para 4

…I note that in my first judgment (the parenting judgment citation [2014] FCCA 1738) I observed at paragraph 1: “This is a parenting and property dispute between two parties who have all the appearance, at least for present purposes, of being well financially resourced. The property pool is asserted to be in excess…
Ashby v Slipper (No 2)
[2014] FCAFC 67 Para 5

…In Ashby v Slipper (No.2) [2014] FCAFC 67 the Full Court of the Federal Court said at [12] and following: “[12] Rule 39.04 provides that the court “may vary or set aside a judgment or order before it has been entered.” The power is discretionary. [13] The exercise of the discretion to vary or set aside orders, inc…
Blank v Commissioner of Taxation (No 2)
[2014] FCA 517 Para 6

…In Blank v Commissioner of Taxation (No.2) [2014] FCA 517, Edmonds J said at [9]: “[9] In De L v Director-General, New South Wales Dept of Community Services (No 2) (1997) 190 CLR 207 at 215, Toohey, Gaudron, McHugh, Gummow and Kirby JJ said: “The power of this Court to reopen its judgments or orders is not in do…
Wenkart v Pantzer (No 3)
[2013] FCAFC 162 Para 5

…[No 2] (1993) 176 CLR 300 at 302; Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 at [772]; and see generally Wenkart v Pantzer (No 3) [2013] FCAFC 162. [14] The discretion is exercised to cure injustice, particularly where it would otherwise be irremediable: see, e.g., De L v Director-General, New South W…
Grimaldi v Chameleon Mining NL & Anor [2012] HCATrans 187
[2012] HCATrans 187 Para 5

…In Ashby v Slipper (No.2) [2014] FCAFC 67 the Full Court of the Federal Court said at [12] and following: “[12] Rule 39.04 provides that the court “may vary or set aside a judgment or order before it has been entered.” The power is discretionary. [13] The exercise of the discretion to vary or set as…
Maritime Union of Australia v Geraldton Port Authority
[2012] FWA 3447 Para 5

…7) 190 CLR 207 at 215. Grounds upon which a variation can be made are varied: see, e.g., Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 at [20]. They include error, oversight, a misapprehension of the law, or a decision given in ignorance or forgetfulness of a statutory provision. [15] As K…
Grimaldi v Chameleon Mining NL (No 2)
[2012] FCAFC 6 Para 5

…e public interest in the finality of litigation: Autodesk Inc. v Dyason [No 2] (1993) 176 CLR 300 at 302; Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 at [772]; and see generally Wenkart v Pantzer (No 3) [2013] FCAFC 162. [14] The discretion is exercised to cure injustice, particularly where it would othe…
IABH & HRBH
[2010] FamCA 110 Para 6

…referred to what he described as the Rosati principle. He handed to the Court part of his written submissions containing an extract from IABH & HRBH [2010] FamCA 110. The relevant text of the judgment at [199] and following was set out as follows: “199. Everybody agreed that the statement made by the Full Court on…
Inspector-General in Bankruptcy v Bradshaw
[2006] FCA 22 Para 5

…r a decision given in ignorance or forgetfulness of a statutory provision. [15] As Kenny J stated in Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24]: “[i]n every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the applica…
Maritime Union of Australia v Geraldton Port Authority
[2001] FCA 236 Para 5

…, New South Wales Department of Community Services (1997) 190 CLR 207 at 215. Grounds upon which a variation can be made are varied: see, e.g., Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 at [20]. They include error, oversight, a misapprehension of the law, or a decision given in ignorance or forgetfulness of a statutory provisio…
De L v Director-General, NSW Department of Community Services (No 2)
[1997] HCA 14 Para 5

…ce, particularly where it would otherwise be irremediable: see, e.g., De L v Director-General, New South Wales Department of Community Services (1997) 190 CLR 207 at 215. Grounds upon which a variation can be made are varied: see, e.g., Maritime Union of Australia v Geraldton Port Authority (2001) 111 FCR 434 at [20]…
Autodesk Inc v Dyason (No 2)
[1993] HCA 6 Para 5

…nly sparingly, with great caution and rarely, having regard to the public interest in the finality of litigation: Autodesk Inc. v Dyason [No 2] (1993) 176 CLR 300 at 302; Grimaldi v Chameleon Mining NL (No 2) (2012) 200 FCR 296 at [772]; and see generally Wenkart v Pantzer (No 3) [2013] FCAFC 162. [14] The discretion…

Legislation cited in this decision · 3

Family Law (Superannuation) Regulations 2001 (Cth)
1 mention (from Para 8)
Family Law Act 1975 (Cth)
1 mention (from Para 6)
Federal Circuit Court Rules 2001 (Cth)
16.05(1) 1 mention