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Myrtle & Myrtle

Myrtle & Myrtle

Case [2012] FamCA 460 19 June 2012

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FAMILY COURT OF AUSTRALIA

MYRTLE & MYRTLE

[2012] FamCA 460

FAMILY LAW - PROPERTY – Where there was a 24 year cohabitation and two now adult children – Where the Wife has not been employed since the birth of the parties’ first child – Where the Wife has made a significant parenting and homemaking contribution – Where the Wife’s contribution was significant in the context of the Husband’s absence for work purposes – Where both parties have failed to make full and true disclosure – Where there has been concealment of assets – Where there are significant “pool” and “add-back” issues – Where there were substantial gifts from the Husband’s family – Issue of expenditure of available capital – Treatment of substantial gambling losses by the Wife

FAMILY LAW - PROCEDURE – Anton Piller Order – Where the Husband sought and obtained an Anton Piller Order in order to recover two paintings allegedly being secreted by the Wife in the former matrimonial home – Duty of candour in relation to an ex parte application for the Anton Piller Order – Where the Wife applies for the Anton Piller Order to be discharged in defence to an application by the Husband that the Wife bear the Husband’s costs of the Anton Piller proceedings and to seek her costs

Family Law Act 1975 (Cth)

Best & Best (1993) FLC 92-418
C & C [2006] FamCA 528
Chorn & Hopkins (2004) FLC 93-204
Crampton & Crampton (2006) FLC 93-269
Farnell & Farnell (1996) FLC 92-681
Gosper & Gosper (1987) FLC 91-818
In the Marriage of De Angelis [1999] FamCA 1609
Kessey & Kessey (1994) FLC 92-495
Kouper & Kouper (No. 3) [2009] FamCA 1080
Kowaliw & Kowaliw (1981) FLC 91-092
Microsoft Corporation v The Good View Electronics Pty Ltd & Anor (1999) 46 IPR 159
Omacini & Omacini (2005) FLC 93-218
Prince & Prince (1984) FLC 91-501
Stowe (1981) FLC 91-027
Tael & Bonnard Equipment Pty Ltd& Leo (2008) FLC 93-379
Thomas A Eddison Ltd v Bulloch (1912) 15 CLR 679
Townsend & Townsend (1995) FLC 92-569

APPLICANT:

Ms Myrtle

RESPONDENT:

Mr Myrtle

FILE NUMBER:

BRC

11689

2009

DATE DELIVERED:

19 June 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

30, 31 August 2011; 5 September 2011; 6 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamwood

SOLICITOR FOR THE APPLICANT:

Biggs Fitzgerald Pike

COUNSEL FOR THE RESPONDENT:

Mr Baston

SOLICITOR FOR THE RESPONDENT:

Hopgood Ganim Lawyers

Orders

Property Orders

There be an overall division of 50% / 50% between the parties of the net property pool, with the following Orders to give effect to such division.
The Husband and the Wife shall each receive an initial distribution of $120,000.00 from the net proceeds of the sale of the first property to sell, or as the case requires from also the next succeeding settlement, in priority to the retention of capital gains tax, such that if the making of such distribution means that the capital gains…

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 Myrtle & Myrtle

Details

AGLC: MYRTLE & MYRTLE [2012] FamCA 460
Case: [2012] FamCA 460
Decision Date: 19 June 2012

CaseChat Overview and Summary

This case involved a dispute between a husband and wife concerning the division of their property following a 24-year cohabitation and the upbringing of two adult children. The wife had not been employed since the birth of the first child and had made significant parenting and homemaking contributions, particularly in light of the husband's work-related absences. Both parties were found to have failed in their duty of full and frank disclosure, with evidence of asset concealment. The proceedings also addressed issues relating to the "pool" and "add-back" of assets, substantial gifts received from the husband's family, the expenditure of available capital, and the treatment of significant gambling losses incurred by the wife. Additionally, the husband had sought and obtained an Anton Piller Order to recover two paintings allegedly being secreted by the wife.

The court was required to determine the appropriate division of the net property pool, considering the parties' contributions, financial resources, and the impact of undisclosed assets and gambling losses. Key legal issues included the valuation and treatment of assets, the extent to which gambling losses should be "added back" to the property pool, and the consequences of the parties' failure to make full and true disclosure. The court also had to consider the wife's application to discharge the Anton Piller Order and the husband's claim for costs associated with those proceedings, as well as the wife's claim for her own costs in relation to the Anton Piller Order application.

In its reasoning, the court ultimately ordered an equal 50/50 division of the net property pool. The court's orders detailed the sale of numerous properties, with specific instructions regarding listing prices, auction procedures, and the distribution of sale proceeds, including provisions for capital gains tax and outstanding outgoings. The former matrimonial home was to be transferred to the wife, subject to her refinancing the associated mortgage. The court also made specific orders regarding the division of various chattels, bank accounts, superannuation entitlements, and other assets. The husband was ordered to pay adult child maintenance to both adult children and to the wife on their behalf, with provisions for adjustments based on the children's income.

The court made no order as to costs in respect of interim applications or the husband's application for the Anton Piller Order, indicating that each party was to bear their own costs in relation to those matters. The extensive orders also addressed the transfer of shares and loan accounts in a company, X Pty Ltd, and the respective liabilities of each party. Liberty to apply was granted to either party for the interpretation or implementation of the orders.

Orders

Orders of the court

Property Orders

There be an overall division of 50% / 50% between the parties of the net property pool, with the following Orders to give effect to such division.

The Husband and the Wife shall each receive an initial distribution of $120,000.00 from the net proceeds of the sale of the first property to sell, or as the case requires from also the next succeeding settlement, in priority to the retention of capital gains tax, such that if the making of such distribution means that the capital gains tax in respect of the sale of the subject property or part of it cannot be retained, such amount of capital gains tax will be retained from the next or subsequent sales as required.

Pending the settlement of the sale of each of the real properties as provided for, the Husband shall be responsible for ensuring that all payments of mortgage, rates, land tax and other outgoings with respect to such property are met.

Pending the settlement of the sale of the last of the properties to be sold, the Husband shall continue to be responsible for ensuring the payment of the mortgage instalments, rates and other outgoings with respect to the former matrimonial home at … F Street, Suburb W, in the State of Queensland.

The following be sold under Orders 6 and 7:

(a) … E Street, Town P in the State of New South Wales (“Town P”);

(b) … G Street, Town A in the State of New South Wales (“Town A”);

(d) … M Street, Suburb H in the State of Queensland (“M Street”);

(e) … K Street, Town J in the State of Queensland (“Town J”);

(f) … I Street, Suburb L in the State of Queensland (“Suburb L”);

(g) … Q Street, Suburb T in the State of New South Wales (“Suburb T”).

The Husband and the Wife forthwith sell the Town P, Town A, Town J and Suburb T properties as follows:

(a) Within seven (7) days the Husband and Wife list those properties for sale by private treaty with such agent as agreed between the parties and if not agreed, the agent is to be nominated by the Chief Executive Officer (or his or her nominee) for the time being of the Real Estate Institutes of New South Wales and Queensland as appropriate for the location of each property;

(b) The list price for the sale of:

(i) Town P be no less than $1,000,000.00;

(ii) Town A be no less than $650,000.00;

(iii) Town J be no less than $446,250.00;

(iv) Suburb T be no less than $800,000.00;

or as otherwise agreed between the parties and, failing agreement within seven (7) days, at a price to be determined by a valuer nominated by the Chief Executive Officer (or his or her nominee) for the time being of the Real Estate Institutes of New South Wales and Queensland, as appropriate to the location of each of the properties;

(c) If a contract for the sale of Town P and/or Town A and/or Town J and/or Suburb T is not entered into at the nominated price (or such other agreed price) within 14 weeks, such properties not under contract be auctioned as soon as practicable thereafter, the reserve price and auctioneer to be determined by agreement between the parties and, if not agreed, the auctioneer be nominated by the Chief Executive Officer (or his or her nominee) for the time being of the Real Estate Institutes of New South Wales or Queensland as applicable to the location of each property to be sold, and the reserve price be determined by the nominated valuer;

(d) If such property or properties referred to in Order 6(b) above is or are not disposed of by auction, the property or properties will be relisted for sale by private treaty for a further period of twenty-eight (28) days at the reserve price with a further auction, without reserve, to be held immediately at the expiration of the twenty-eight (28) day period, the auction to be conducted by the auctioneer referred to in Order 6(c) subject to agreement between the parties to the contrary;

(e) Either party may bid to purchase any of the properties for sale when they are listed for sale or auctioned;

(f) Either party may buy out the other party’s share at a price agreed between them at any time prior to sale;

(g) Pending the sale of the properties:

(i) The joint tenancies in respect of the Town P, Town A, Town J and Suburb T properties are severed;

(ii) The Husband must meet payments due under:

A. St George loan account number …00 in respect of Town P and secured by a registered bill of mortgage over Town P;

B. SGE Credit Union …74 mortgage loan L7.1 in respect of Town A and secured by a registered bill of mortgage over Town A;

C. Adelaide Bank customer number …85 in respect of Town J and secured by registered bill of mortgage over Town J;

D. AMP Credit Union number …70 in respect of Suburb T and secured by registered bill of mortgage over Suburb T;

E. Any requirement to pay land tax, rates and other outgoings with respect to the properties;

(iii) The parties co-operate with the aforesaid agent(s), auctioneer(s) and/or valuer(s);

(iv) The parties supply the keys to all properties to the aforesaid agent(s);

(v) The parties permit “for sale” signs to be placed on all properties as directed by the aforesaid agent(s);

(vi) The parties ensure all properties, including the grounds, are in a neat and clean condition at the time of inspection by the agents and prospective purchasers;

(vii) The Husband be at liberty to make any and all repairs, maintenance or improvements to the properties necessary to enable the said properties to be presented for sale, with the costs of any and all repairs, maintenance and improvements to be reimbursed to the Husband from the proceeds of sale of the relevant properties upon production by the Husband to the Wife of receipts or tax invoices for such repair, maintenance or improvement costs;

(viii) The parties do and say nothing to hinder or prevent a sale being effected;

(ix) The parties sign all documents and do all acts necessary to give effect to these Orders except signing a contract or agreement for sale which has not been authorised by the parties’ solicitor referred to in Order 6(g)(x) hereof;

(x) The parties engage, for the purpose of the sale of the aforementioned properties, such solicitor as agreed between them and, if not agreed, a solicitor nominated by the Chief Executive Officer of the New South Wales Law Society or the Queensland Law Society (or his or her nominee) as applicable to the location of each of the properties to be sold; and

(xi) The parties make all properties available for inspection at all reasonable times;

(h) The parties have liberty to apply to the Court with respect to the reserve price and the terms, conditions and costs of sale;

(i) Subject to Order 2, upon sale of the properties, the gross proceeds of sale be applied in the following order and manner:

(i) The amount necessary to satisfy the indebtedness of the Husband and the Wife to:

A. St George loan account number …00 in respect of Town P and secured by a registered bill of mortgage over Town P;

B. SGE Credit Union …74 mortgage loan L7.1 in respect of Town A and secured by a registered bill of mortgage over Town A;

C. Adelaide Bank customer number …85 in respect of Town J and secured by registered bill of mortgage over Town J;

D. AMP Credit Union number …70 in respect of Suburb T and secured by registered bill of mortgage over SuburbT;

(ii) In satisfaction of the real estate agent’s commission, advertising costs and auctioneer’s costs (if any) associated with the sale;

(iii) The parties’ taxation liability arising from any capital gains on the sale of the property (“the capital gains tax liability”) and for this purpose, the parties:

A. Will obtain an accountant’s assessment of the likely liability;

B. Pending the issue of Notices of Assessment by the Australian Taxation Office, will set aside sufficient funds from the proceeds of sale to meet each party’s share of the capital gains tax liability, such funds to be invested by the Husband’s solicitors, Hopgood Ganim Lawyers, in a controlled trust account investment at the highest interest rate offered by their trust account bankers;

C. Will cause the funds to be released in payment to the Australian Taxation Office of the assessed capital gains tax liability; and

D. Will indemnify and keep indemnified the other in respect of such share of the capital gains tax liability (including shortfall) in the proportions of 50% to the Wife and 50% to the Husband and each will share in any excess amount after payment of the liability in such said proportions;

(iv) Any arrears of rates, land tax or other statutory charges over the properties;

(v) The legal costs of sale of the properties;

(vi) The amounts paid by the Husband in respect of any necessary repairs, maintenance or improvements to the properties upon production by the Husband to the Wife of receipts or tax invoices for such amounts;

(vii) Subject to agreement otherwise between the parties, the balance will be retained in trust pending settlement of the sale of the last of the parties’ properties to be sold pursuant to these Orders and thereafter the net balance is to be distributed to the parties so as to effect an overall division of the net property of the parties as to 50% to the Wife and 50% to the Husband.

The Husband forthwith sell the properties situated at O Street, M Street and Suburb L as follows:

(b) The list price for the sale of:

(i) O Street be no less than $260,000.00;

(ii) M Street be no less than $260,000.00;

(iii) Suburb L be no less than $400,000.00;

(c) If a contract for the sale of O Street and/or M Street and/or Suburb L is not entered into at the nominated price (or such other agreed price) within 14 weeks, such properties not under contract be auctioned as soon as practicable thereafter, the reserve price and auctioneer to be determined by agreement between the parties and, if not agreed, the auctioneer be nominated by the Chief Executive Officer (or his or her nominee) for the time being of the Real Estate Institute of Queensland, with the reserve price to be determined by the nominated valuer;

(d) If such property or properties referred to in Order 7(b) above is or are not disposed of by auction, the property or properties will be relisted for sale by private treaty for a further period of twenty-eight (28) days at the reserve price with a further auction, without reserve, to be held immediately at the expiration of the twenty-eight (28) day period, the auction to be conducted by the auctioneer referred to in Order 7(c) subject to agreement between the parties to the contrary;

(e) Either party may bid to purchase any of the properties for sale when they are listed for sale or auctioned;

(f) Either party may buy out the other party’s share at a price agreed between them at any time prior to sale;

(g) Pending the sale of the properties:

(i) The Husband must meet the payment of rates, land tax and other outgoings with respect to the properties;

(ii) The Husband must meet payments due to SGE Credit Union in respect of loans numbered …65 L7; …65 L7.1; …65 L7.6; and …65 L7.7;

(iii) The parties co-operate with the aforesaid agent(s), auctioneer(s) and/or valuer(s);

(iv) The parties supply the keys to all properties to the aforesaid agent(s);

(v) The parties permit “for sale” signs to be placed on all properties as directed by the aforesaid agent(s);

(vi) The parties ensure all properties, including the grounds, are in a neat and clean condition at the time of inspection by the agents and prospective purchasers;

(viii) The parties do and say nothing to hinder or prevent a sale being effected;

(x) The parties engage, for the purpose of the sale of the aforementioned properties, such solicitor as agreed between them and, if not agreed, a solicitor nominated by the Chief Executive Officer of the Queensland Law Society (or his or her nominee); and

(xi) The parties make all properties available for inspection at all reasonable times;

(h) The parties have liberty to apply to the Court with respect to the reserve price and the terms, conditions and costs of sale;

(i) Subject to Order 4, upon sale of the properties, the gross proceeds of sale be applied in the following order and manner:

(i) The amount necessary to satisfy the indebtedness of the Husband and the Wife to SGE Credit Union in respect of loans numbered …65 L7; …65 L7.1; …65 L7.6; and …65 L7.7; or such of the loans as SGE Credit Union require to be satisfied to release the title to the relevant property at settlement;

(ii) In satisfaction of the real estate agent’s commission, advertising costs and auctioneer’s costs (if any) associated with the sale;

(iii) The parties’ taxation liability arising from any capital gains on the sale of the property (“the capital gains tax liability”) and for this purpose, the parties:

A. Will obtain an accountant’s assessment of the likely liability;

C. Will cause the funds to be released in payment to the Australian Taxation Office of the assessed capital gains tax liability; and

(iv) Any arrears of rates, land tax or other statutory charges over the properties;

(v) The legal costs of sale of the properties;

Each party is to bear half of the cost of outstanding New South Wales land tax which is in the total amount of $40,301.00.

Upon settlement of the last sale of the real properties referred to in Order 5:

(a) The Husband shall transfer to the Wife all of his right, title and interest in and to the former matrimonial home situate at … F Street, Suburb W, in the State of Queensland;

(b) The Wife shall refinance into her sole name the joint SGE Credit Union loan …74-L7 secured by registered bill of mortgage over the former matrimonial home so as to cause the Husband to be released from all personal covenants, guarantees and liability in respect of same;

(d) There shall be an adjustment in favour of the Husband from the Wife’s share of sale proceeds otherwise provided for in these Orders in the amount of $16,500.40;

(e) Any arrears in rates, charges or land tax paid at settlement from the proceeds of sale of each property shall be added back to the balance for distribution and paid from the Husband’s share on distribution of each property;

(f) Any surplus in rates and charges allowed to the Husband and Wife included in the net proceeds of sale of each property shall (excluding land tax) be paid to the Husband from the balance available for final distribution prior to the said final distribution;

(g) Any rebate of land tax available form any relevant state authority shall be the sole entitlement of the Husband to the exclusion of the Wife and paid to the Husband form the said authority;

(h) Where any balance payout of any mortgage secured by any of the properties is in arrears at the date of settlement of the same of same, then such arrears shall be added to the final balance for distribution and paid from the Husband’s share on the final distribution; and

(i) From each party’s share, as the case requires, adjustment to achieve the parties having paid equally the costs of any single expert.

10.

Pending the transfer to the Wife of the former matrimonial home, the Husband shall continue to cause to be paid:

(a) In respect of the former matrimonial home, any periodic mortgage instalments, rates and other outgoings with respect to the former matrimonial home; and

(b) With respect to the … Volvo …, any lease liability.

11.

Within thirty (30) days of the date hereof, the Wife make available for collection by the Husband or his nominee from the former matrimonial home the following items that the Husband shall retain as his property:

(a) Bijar rug;

(b) Z artwork;

(d) Y artwork;

(e) Stamp and coin collection;

(f) Black sofa; and

(g) Huon pine cupboard.

12.

The Wife retain as her absolute property the title and possession of and the Husband transfer and assign to the Wife and/or relinquish any right, title, interest and/or claim that he may have to or in the following property and financial resources:

(a) The furniture, chattels and items of household adornment in the possession of the Wife not referred to in Order 11 above;

(b) The Wife’s bank accounts (including AMP Credit Union Rediaccess account …03S1) and all monies standing with a credit balance in those accounts;

(d) The Wife’s personal possessions, effects and jewellery;

(e) The Wife’s interest in the estate of her late father;

(f) The sum of $15,000.00 received by the Wife pursuant to paragraph 1 of the Orders of Federal Magistrate Purdon-Sully dated 15 April 2010 (such sum to be characterised as partial property settlement); and

(g) The share of proceeds of … R Street, Suburb S received by the Wife in the sum of $44,176.32.

13.

The Husband retain as his absolute property the title and possession of and the Wife transfer and assign to the Husband and/or relinquish any right, title, interest and/or claim that she may have to or in the following property and financial resources:

(a) The furniture, chattels and items of household adornment in the possession of the Husband and stored at the Husband’s parents’ home;

(b) Pursuant to Order 11, the items mentioned in Order 11;

(i) SGE Credit Union account number …S1; and

(ii) NAB Classic Banking account number …38;

(d) The Husband’s superannuation member entitlements;

(e) The Husband’s personal possessions, effects and jewellery; and

(f) The Husband’s one (1) ordinary share in X Pty Ltd.

14.

Except for the properties and financial resources expressly dealt with otherwise in these Orders, the Husband and Wife each retain as his or her (as the case may be) own property absolutely all assets and financial resources (other than those dealt with herein) of whatsoever description and wheresoever situate both real and person of which that party is the legal owner or which is in their possession or control.

15.

Except as otherwise expressly provided for in these Orders, the Wife forthwith be responsible for the Wife’s personal liabilities, including:

(a) The Wife’s taxation liability;

(b) The Wife’s liability to V Legal Financing funding; and

16.

Except as otherwise expressly provided for in these Orders, the Husband forthwith be responsible for the Husband’s personal liabilities, including:

(a) The Husband’s Westpac Altitude Gold Credit Card account number …01;

(b) The Husband’s taxation liability; and

17.

The Wife and the Husband deliver to the company accountants as requested from time to time the following information and documentation in relation to any real property(ies) of the parties so as to enable the parties to complete the taxation returns in respect of the Income Tax Assessment Act 1936 (Cth) and Income Tax Assessment Act 1997 (Cth) and for which the parties will be responsible and to assist the parties in arriving at the calculation of the tax payable in respect of the capital gains:

(a) Documentation detailing the consideration for which the parties acquired the property or the market value at the date(s) of the acquisition if acquired other than for valuable consideration;

(b) The date(s) of such acquisition;

(c) The legal costs, duty, disbursements and other related costs incurred about the time of acquisition as incidental costs to the acquisition and the dates upon which those amounts were actually paid, together with all supporting documents;

(d) Complete details with supporting documentations detailing all monies spent on the capital improvement on the property and particularly the dates upon which those monies were expended and the nature of the capital improvements so as to enable the improvements to be identified as having altered the state of the property as at the date of final sale or disposal by the parties;

(e) The amount of the Husband and the Wife’s costs of litigation in these proceedings in relation to the relevant property and when those costs were paid;

(f) The amount of incidental expenses incurred by the Husband and the Wife and the dates of such costs together with supporting documents;

(g) All such further information and documentation which the company accountants may call upon the Husband or Wife to reasonably produce from time to time in their possession, control or knowledge in order to calculate the cost base and value of the relevant property for the purpose of determining the liability to the Australian Taxation Office.

18.

The Husband forthwith retain as his absolute property the title and possession of and the Wife forthwith transfer and assign to the Husband and/or relinquish any right, title, interest and/or claim that she may have to or in:

(a) The Husband’s share in X Pty Ltd;

(b) The Husband’s interests as director and secretary of X Pty Ltd; and

(c) Any loan account in the Husband’s name (whether solely or jointly with others), standing with a credit balance in the books of account of X Pty Ltd.

19.

Within seven (7) days, the Wife do the following:

(a) Transfer and assign to the Husband all of her right, title and interest to and in the one (1) ordinary share held by the Wife in X Pty Ltd and the Wife do all acts and sign all documents necessary to comply with the requirements of the constitution of X Pty Ltd to effect the transfer and to cause X Pty Ltd to register the transfer of the shares under the constitution of X Pty Ltd;

(b) Relinquish any and all right, claim and interest to and in the assets (including X Pty Ltd’s AMP Credit Union account number …83) and the income of X Pty Ltd;

(c) Transfer, novate and assign to the Husband all loan accounts in the Wife’s name (whether solely or jointly with others) standing with a credit balance in the books of account of X Pty Ltd and, if required to give effect to same, complete and execute a deed of assignment of the loan account(s);

(d) Resign as director of X Pty Ltd;

(e) If necessary, resign as an employee of X Pty Ltd;

(f) Authorise the financiers and bankers of X Pty Ltd to cancel all of her signatory arrangements, if any, in respect of the financial accommodations and accounts of X Pty Ltd;

(g) Remove herself from having any access (including any internet or telephone banking access) to the financial accommodations and/or accounts of X Pty Ltd; and

(i) For that purpose, this Order shall be taken to be an authority to any bank, financial institution or credit provider to cancel the Wife’s access to any such accounts; and

(h) Return to the Husband or the company accountants any:

(i) Data files (paper or electronic);

(ii) Computer discs or other computerised records;

(iii) Data lists;

(iv) Books of account and financial records;

(v) Client lists;

(vi) Constitutions;

(vii) Company registers; and/or

(viii) Other documents of any other kind (if any);

held by the Wife relating to or belonging to X Pty Ltd, if any, in her possession, power or control.

20.

The Husband and the Wife shall sign all documents and do all acts necessary, if required, to notify the Australian Securities and Investments Commission of the change of officeholder and shareholder in X Pty Ltd and the Husband will cause all documents to be prepared necessary to ensure the parties’ compliance with the requirements of the Australian Securities and Investments Commission.

21.

The Husband and the Wife shall do all acts and sign all documents as advised by the company accountants to ensure the compliance of X Pty Ltd with the requirements of the Australian Taxation Office, the Australian Securities and Investments Commission, the Corporations Act 2001 (Cth), the Income Tax Assessment Act 1936 and the Income Tax Assessment Act 1997 (Cth) in respect of X Pty Ltd.

22.

Within seven (7) days, the Husband do the following:

(a) Become responsible for all and any loan accounts in the name of the Wife (whether solely or jointly with others) standing with a debit balance in the books of account of X Pty Ltd and indemnify and keep indemnified the Wife from all liability howsoever arising therein; and

(b) Except where otherwise provided for, use his best endeavours to procure the release of the Wife from all personal guarantees, indemnities, personal covenants, liabilities and obligations of the Wife, howsoever arising, in respect of X Pty Ltd so as to cause the Wife to be released, discharged and forever held harmless from all liability therein, howsoever arising, except where the Wife has been fraudulent, negligent or both, and in the meantime will indemnify and keep indemnified the Wife from all liability therein, howsoever arising.

Costs

23.

There be no Order as to costs in respect of any interim applications or in respect of any costs reserved as a result of such applications.

24.

There be no Order as to costs with respect to the Husband’s application for an Anton Piller Order.

Adult Child Maintenance

25.

Pursuant to s 66L of the Family Law Act 1975 (Cth), the Husband pay or cause to be paid, by way of adult child maintenance, the following amounts to:

(a) Mr MM Myrtle (“MM”), born … 1992, the sum of $200.00 per week net of tax, to an account nominated by MM;

(b) The Wife the sum of $200.00 per week net of tax, to an account nominated by the Wife.

26.

The payment pursuant to Order 25(a) herein will be adjusted pro rata, dollar for dollar, with any income MM receives from government benefits (for example, Youth Allowance) and/or any casual or part-time employment, and MM is required to provide to the Husband a copy of MM’s pay slip or benefit statement within seven (7) days of the pay slip or benefit statement being receive by MM or otherwise made available to MM.

27.

The payment pursuant to Order 25(b) herein will be adjusted pro rata, dollar for dollar with income received by MM received in excess of $200.00 per week from government benefits (for example, Youth Allowance) and/or casual or part-time employment, and MM is required to provide to the Husband a copy of MM’s pay slip or benefit statement within seven (7) days of the pay slip or benefit statement being received by MM or otherwise made available to MM.

28.

The payments in Order 25 will cease upon:

(a) MM commencing full-time employment; or

(b) In respect of any period exceeding six (6) months when MM is not habitually residing in the Wife’s residence; or

(d) MM failing to pass two or more subjects in one semester forming part of his tertiary study course requirement; or

(e) MM being absent from tertiary study for a period of longer than four months; or

(f) The day on which MM marries or commences residing in a de facto relationship; or

(g) 1 February 2015;

whichever is the earlier.

29.

Pursuant to s 66L of the Family Law Act 1975 (Cth), the Husband pay or cause to be paid, by way of adult child maintenance, the following amounts to:

(a) Ms CC Myrtle (“CC”), born … 1983, the sum of $200.00 per week net of tax, to an account nominated by CC;

(b) The Wife the sum of $200.00 per week net of tax, to an account nominated by the Wife.

30.

The payment pursuant to Order 29(a) herein will be adjusted pro rata, dollar for dollar, with any income CC receives from government benefits (for example, Youth Allowance) and/or any casual or part-time employment, and CC is required to provide to the Husband a copy of CC’s pay slip or benefit statement within seven (7) days of the pay slip or benefit statement being receive by CC or otherwise made available to CC.

31.

The payment pursuant to Order 29(b) herein will be adjusted pro rata, dollar for dollar with income received by CC received in excess of $200.00 per week from government benefits (for example, Youth Allowance) and/or casual or part-time employment, and CC is required to provide to the Husband a copy of CC’s pay slip or benefit statement within seven (7) days of the pay slip or benefit statement being received by CC or otherwise made available to CC.

32.

The payments in Order 29 will cease upon:

(a) CC commencing full-time employment; or

(b) In respect of any period exceeding six (6) months when CC is not habitually residing in the Wife’s residence; or

(d) CC failing to pass two or more subjects in one semester forming part of her tertiary study course requirement; or

(e) CC being absent from tertiary study for a period of longer than four months; or

(f) The day on which CC marries or commences residing in a de facto relationship; or

(g) 1 February 2016;

whichever is the earlier.

33.

For the purposes of the payments at Orders 25 and 29, the Husband may record the payments made as distributions from the Myrtle Family Trust to the Wife, subject to the Husband indemnifying the Wife with respect to any taxation liability associated with those distributions.

Liberty to Apply

34.

Each of the Husband and the Wife shall have liberty to apply as to the interpretation or implementation of these Orders upon the giving of seven (7) days’ notice to the other.

Other

35.

All other outstanding applications be dismissed and removed from the pending cases list.

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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Legal Principle Established

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Actions

Citations

MYRTLE & MYRTLE [2012] FamCA 460

Most Recent Citation

MYRTLE & MYRTLE [2014] FamCAFC 31

Cases Citing This Decision

Rendon and West and Ors [2018] FCCA 3678
Citation 1 (Para 6)

…assage in any of those matters, I have considered each of those decisions. [18] [2007] FamCA 1458. [19] [2008] FamCa 817. [20] [2011] FamCA 388. [21] [2012] FamCA 460. [22] [2014] FamCA 1182. [23] [2015] FamCA 243.…
CAVE & LEVIS [2017] FCCA 2647
Citation 2 (Para 7)

…must ... be such as might have influenced the learned judge upon hearing the ex parte application’. This approach was adopted in Myrtle & Myrtle [2012] FamCA 460 where Kent J said: [334] The duties of litigants and their legal representatives to act with candour on an ex parte application are well-established. All…
DREW & JENSEN [2017] FCCA 656
Citation 3 (Para 4)

…In Myrtle & Myrtle [2012] FamCA 460, Kent J noted at [334]-[335]: 334. The duties of litigants and their legal representatives to act with candour on an ex parte application are well-established. All the facts relevant to the relief sought, whether or not that supports the grant of the relief, must be laid before t…
Ballantyne and Ballantyne [2015] FCCA 500
Citation 4 (Para 13)

…n her Honour’s discretion to make the order that she did.” (at 77,030). 59.We were referred to a single Judge decision of Myrtle & Myrtle [2012] FamCA 460, not as containing any relevant statement of principle, but rather as an example of the sort of order which it was contended ought perhaps have been made here. I…
EVERETT & EVERETT [2014] FamCAFC 152
Citation 5 (Para 4)

…We were referred to a single Judge decision of Myrtle & Myrtle [2012] FamCA 460, not as containing any relevant statement of principle, but rather as an example of the sort of order which it was contended ought perhaps have been made here. In that case the relevant order provided: The payments in Order 25 will ceas…
MYRTLE & MYRTLE [2014] FamCAFC 31
Citation 6

…[2012] FamCA 460…

See all citing cases →

Cases Cited

Kouper & Kouper (No 3) [2009] FamCA 1080
Citation 1

…LC 92-681 Gosper & Gosper (1987) FLC 91-818 In the Marriage of De Angelis [1999] FamCA 1609 Kessey & Kessey (1994) FLC 92-495 Kouper & Kouper (No. 3) [2009] FamCA 1080 Kowaliw & Kowaliw (1981) FLC 91-092 Microsoft Corporation v The Good View Electronics Pty Ltd & Anor (1999) 46 IPR 159 Omacini & Omacini (2005) FLC 9…
C & C [2006] FamCA 528
Citation 2

…Best & Best (1993) FLC 92-418 C & C [2006] FamCA 528 Chorn & Hopkins (2004) FLC 93-204 Crampton & Crampton (2006) FLC 93-269 Farnell & Farnell (1996) FLC 92-681 Gosper & Gosper (1987) FLC 91-818 In the Marriage of De Angelis [1999] FamCA 1609 Kessey & Kessey (1994) FLC 92-495 Kouper & Kouper (No. 3) [2009] FamCA 10…
PMSI Group v Wilson [2003] NSWSC 263
Citation 3 (Para 22)

…approval by Thackray J, sitting as the Full Court of this Court in Tael & Bonnard Equipment Pty Ltd & Leo (2008) FLC 93-379. [25] PMSI Group v Wilson [2003] NSWSC 263, [8] (Campbell J); Television Broadcasts Ltd v Nguyen (1988) 21 FCR 34, 38; Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545, 547.…
Asia Television Limited v Oscar Video Club Pty Ltd (ACN 052 032 381) [2001] FCA 1377
Citation 4 (Para 22)

…& Bonnard Equipment Pty Ltd & Leo (2008) FLC 93-379. [25] PMSI Group v Wilson [2003] NSWSC 263, [8] (Campbell J); Television Broadcasts Ltd v Nguyen (1988) 21 FCR 34, 38; Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545, 547.…
Thomas A Edison Ltd v Bullock [1912] HCA 72
Citation 5 (Para 4)

…o the relief sought, whether or not that supports the grant of the relief, must be laid before the Court.[23] [23] See Thomas A Eddison Ltd v Bulloch (1912) 15 CLR 679, 681-3; R v Kensington Income Tax Commissioner (1917) 1 KB 504 (CA); Mobasser v Mankervis (1983) FLC 91-335.…
Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754
Citation 6 (Para 21)

…identified. That approach is inconsistent with the approach set out by Branson J in Microsoft Corporation v The Good View Electronics Pty Ltd & Anor (1999) 46 IPR 159 at [30] as follows: The service of the order by the supervising solicitor, a neutral appointee of the Court, should assist in ameliorating the shock…
FamCA 127 and De Angelis & De Angelis [1999] FAMCA 1609
Citation 7

…FLC 93-204 Crampton & Crampton (2006) FLC 93-269 Farnell & Farnell (1996) FLC 92-681 Gosper & Gosper (1987) FLC 91-818 In the Marriage of De Angelis [1999] FamCA 1609 Kessey & Kessey (1994) FLC 92-495 Kouper & Kouper (No. 3) [2009] FamCA 1080 Kowaliw & Kowaliw (1981) FLC 91-092 Microsoft Corporation v The Good View…
(1917) 1 KB 504 (1917) 1 KB 504
Citation 8 (Para 4)

…e relief, must be laid before the Court.[23] [23] See Thomas A Eddison Ltd v Bulloch (1912) 15 CLR 679, 681-3; R v Kensington Income Tax Commissioner (1917) 1 KB 504 (CA); Mobasser v Mankervis (1983) FLC 91-335.…

Legislation Cited

Corporations Act 2001 (Cth)
1 mention (from Para 12)
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention (from Para 1)
Income Tax Assessment Act 1936 (Cth)
1 mention (from Para 8)
Income Tax Assessment Act 1997 (Cth)
1 mention (from Para 8)