Ng and Vilosovic and Anor

[2009] FamCA 543

FAMILY COURT OF AUSTRALIA

NG & VILOSOVIC AND ANOR [2009] FamCA 543

FAMILY LAW – PROPERTY – Undefended Hearing – Property proceedings under the Domestic Relationships Act 1994 (ACT) – Significantly greater contribution of the applicant against the respondent to the pool of assets of the relationship – Unable to take into account the respondent’s apparent illness as a factor necessitating adjustment under s 19(2) of the Act because of a lack of evidence.
HELD – Distribution of property 75 per cent to 25 per cent in favour of the applicant – Costs awarded against the respondent for time thrown away when undefended hearing initially set down and for the proceedings generally

Domestic Relationships Act 1994 (ACT) ss 15(1), 19(2)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 4(3)
Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) s 4(2)

Crellin v Robertson [2004] ACTSC 92

APPLICANT: Ms Ng

RESPONDENT: Mr Vilosovic

SECOND RESPONDENT: Mr Tene

FILE NUMBER: CAC 556 of 2009

DATE DELIVERED: 12 June 2009

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 12 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: No appearance

SOLICITOR FOR THE APPLICANT: Ms Campbell

COUNSEL FOR THE RESPONDENT: No appearance

SOLICITOR FOR THE RESPONDENT: No appearance

COUNSEL FOR THE SECOND

RESPONDENT:

No appearance

SOLICITOR FOR THE SECOND

RESPONDENT:

No appearance

Orders

1. The applicant be declared sole owner of all money held in the trust account at William Heague Barristers & Solicitors and Mr Heague be directed to release the money to Ms Ng within seven days from the date of these Orders.

2. Within seven days of the date of these Orders, the first respondent sign all documents to transfer to the applicant the Honda CRV motor vehicle, registration number … from either the original purchaser or from the first respondent. 

3. The first respondent will do all things to sign all documents to transfer to the second respondent a truck, registration number Y… and the applicant will cause her brother to transfer to the second respondent the second truck, registration number A…

4. Within 14 days of the date of these Orders the second respondent pay to the applicant the sum of $7,500 and upon payment of such money the applicant will sign all documents to transfer the Ford Falcon Utility, registration number 3… to the first respondent. 

5. Simultaneously with Order 4 above the second respondent will re-register the Ford Falcon Utility referred to in Order 4 above and hand to the applicant the registration plates 3… and she will be declared sole owner of those number plates.

6. The applicant be declared sole owner of the Haynes Signature Boat, registration number …, and the boat trailer registered number… and the first respondent will cause his mother to permit the removal of the boat and trailer from the respondent mother's garage at the applicant's cost within 14 days of the date of these Orders and hand to the applicant the boat's keys, receipts and all registration documents associated with the boat and trailer.

7. I note that if this matter had been brought under Pt VIIIAA of the Family Law Act1975 (Cth) it would have provided an opportunity for me to make an Order that would have been binding on the respondent's mother and required her, subject to her receiving appropriate natural justice, to comply with the Order. There is no equivalent provision under the Domestic Relationships Act 1994 (Cth) and I am accordingly not able to make a facilitating Order of that sort.

8. As soon as practicable after her obtaining possession of the boat, the applicant will cause the boat, including the trailer, to be sold and will pay there from to the respondent, as soon as that sale has been completed and she has received the funds, the sum of $19,000.  The balance of money received from the sale of the boat will be retained by the applicant as her property pursuant to these orders. 

9. The second respondent will, by consent, pay to the applicant $87,500 within 30 days of the date of these Orders.

10. The first respondent be declared sole owner of the money from the sale of the collectable number plates. 

11. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders, each party shall be solely entitled, to the exclusion of the other, to all property including:

    (a)Choses-in‑action in possession of such party as at the date of these Orders.

    (b)Money standing to the credit of the parties in the bank account that has become property of the party in whose name it is deposited, again subject to these Orders. 

    (c)Each party hereby foregoes any claim they may have in any superannuation benefits belonging to or earned by the other. 

    (d)All insurance policies will become the sole property of the owner named there under. 

    (e)Each party shall be solely liable for and shall indemnify the other against any liability, encumbering any item of property to which that party is entitled pursuant to these Orders. 

    (f)If any party refuses or is unable and neglects to sign any documents necessary to give effect to the terms of these orders within 14 days or written request to do so, the Registrar of the Family Court in Canberra is hereby appointed to execute all deeds and documents in the name of the relevant party pursuant to s 26 of the Domestic Relationships Act1994 (ACT).

12. The matter is removed from the pending cases inventory.

IT IS NOTED that publication of this judgment under the pseudonym Ng & Vilosovic and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 556 of 2009

MS NG

Applicant

And

MR VILOSOVIC

Respondent

REASONS FOR JUDGMENT

Introduction

1. The proceedings before the Court were initiated by an application filed in the Federal Magistrates Court in Canberra on 7 April 2009.  That application sought certain orders in relation to the division of property and other facilitating orders arising out of the de facto relationship of the parties, Ms Ng and Mr Vilosovic.

Background

1. The parties had commenced a de facto relationship in about April 2004 at which time the applicant[1] had significantly more property than the respondent and, moreover, after the parties began to live together the parties borrowed against the home of the applicant to buy a business in the respondent's name.  That business failed. 

   [1] I refer to her simply as “the applicant” because she is not the respondent’s wife per se - similarly, my reference to “the respondent” because he is not the applicant’s husband.

2. Subsequently, the respondent received a certain amount of money as compensation for a knee injury and that was contributed overall to the family finances. 

3. There were subdivisions in sale of properties which resulted in a number of other transactions which brought further money into the relationship.  I give these facts shortly simply because this is a matter which proceeded ultimately on an undefended basis and the facts are not significantly in dispute and the history is irrelevant in large measure except to the extent that it reflects upon the contributions made by the parties.

4. Subsequently, the respondent developed with the assistance of the applicant's money and her efforts (to some extent), a business.  However, in 2008, the respondent sold the jointly‑owned part of the property of the business and then dealt with a number of other matters, including transferring certain collectable number plates from joint ownership to himself. 

5. The situation became somewhat more complicated by the fact that the respondent then entered into an arrangement for the sale of some of the business with Mr Tene, the second respondent, who became a party to these proceedings in due course.  I will return to his involvement later in my judgment.

6. The parties separated after their relatively short relationship in February 2009 and the applicant then began to try to unravel the somewhat tangled web of what had happened to the business.  There were various approaches to the Court about other matters, including a Domestic Violence Order granted in the Magistrates Court of the Australian Capital Territory and there were caveats placed upon the property.  Eventually, the property was sold and a certain amount of money was put into a trust account with William Heague, Barristers & Solicitors. 

7. After the initiating application was lodged, the matter came on before me and there was no appearance by or on behalf of the respondent who had substantially disappeared.  Orders were made about forms of service that may have resulted in his being notified of the proceedings.  .

8. The next time the matter came before the Court on 15 April 2009, Mr Nicholl of Nicholl & Co appeared and said he represented the respondent, that the respondent had been severely unwell and that he wanted an adjournment for a short period to enable to him to obtain appropriate instructions.  However, when that short period expired - and we are talking about a few days - he had been unable to obtain any instructions and he sought (and obtained) leave to withdraw from the proceedings. 

9. Accordingly, the matter proceeded on the evidence that had been supplied by the applicant and that necessarily involved a degree of vagueness.  Mr Tene, who was the purchaser of the business of the parties or the respondent[2], became a party to the proceedings but indicated he simply wished to submit to any orders that may be made by the Court about what money he should pay in relation to any sale of the business. 

Proceedings under the Domestic Relationships Act 1994 (ACT)

[2] Depending on which way you want to look at it, it was certainly purchased with joint assets and moneys of the parties.

1. I should add that these are proceedings that were conducted, in the end, unfortunately I think for the applicant, under the terms of the Domestic Relationships Act1994 (ACT) and cross-vested to this Court.[3]  I say, unfortunately, for reasons that I will elucidate below.  However, I do note that the respondent in fact consented, through Mr Nicholl when he was involved, to the proceedings being dealt with under the Family Law Act1975 (Cth) in the light of the amendments to that Act that occurred earlier this year which would have brought into account a number of provisions of that Act which may have been of some assistance to the applicant.

   [3] By virtue of s 4(2) of the of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) and s 4(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

Property of the parties

1. Nevertheless, the situation is this.  There is still some money left in a trust account by William Heague, Barristers & Solicitors, relating to the sale of real estate.  Part of that had already been paid out to the applicant and she sought payment of the balance.  There is a Honda car in her possession which was worth, she said, about $8,000 and I accept that value for the purposes of these proceedings.  The respondent had a Ford Utility that had been passed on to the second respondent which was worth, for these purposes, $21,000 and the proceeds for which had been received by the respondent. 

2. There was the question of the balance of payment for the business known as S Business which Mr Tene now has 48 per cent ownership of - which was agreed to be worth $87,500.  That amount, Mr Tene agreed he would pay to the applicant in accordance with orders to be made by me (at the suggestion of the applicant.) 

3. There was also a boat (and a trailer on which the boat sits I understand), that is currently in the garage of the respondent's mother's house which is worth, according to the applicant, and I accept for these purposes, about $40,000.

4. The respondent had received money, as I suggested previously, from the disposition of some collector's number plates in excess of an amount of $35,000.  There was also some $7,200 in his bank account at or about the time the parties separated. 

Contributions of the parties and factors to be taken into account under the

Domestic Relationships Act 1994 (ACT)

1. The arguments for the applicant were that she had been a contributor in relation to the financial affairs of the parties to the tune of about 80 per cent. These are factors I am to take into account under s 15(1)(b) of the Domestic Relationships Act1994 (ACT).

2. It was agreed that there were no s 19(2) factors under that Act which I might take into account as relating to the physical and mental capacity of each party for appropriate gainful employment[4] or the financial circumstances of the parties.[5]  It would appear that it is possible that the respondent may have been quite ill at the time of the proceedings[6] but the details of his illness and the circumstances of his present finances are not available to me.  It appears, and I am satisfied from the evidence, that he has behaved in a unilateral way disregarding the interests of the applicant.  Although that may have been a factor I might properly have taken into account, I have not done so because I was not asked to do so by the applicant.

   [4] Domestic Relationships Act 1994 (ACT) s 19(2)(b).

   [5] Domestic Relationships Act 1994 (ACT) s 19(2)(c).

   [6] A letter was received by my Legal Associate on 22 May 2009 from Nicholl & Co to this effect.  Mr Nicholl subsequently relayed this to me in the proceedings before me on 25 May 2009.

3. The contributions that each of the parties have made in a non-financial way during the course of their relatively short relationship, were but scantily dealt with in the course of proceedings but I accept that for all practical purposes those arrangements or those contributions should be regarded as being approximately equal. 

4. Taking account of those factors as best I might, it seems to me that notwithstanding that there would be a case for saying that the applicant should receive 80 per cent of the division of property as it is presently set out it is appropriate that I should in fact adjust that arrangement slightly in favour of

   
   

   the respondent. 

5. I do this for a number of reasons, one of which is a practical one relating to the sale of the boat.  In general terms I accept, in accordance with a long line of authority (in the Family Court at least[7]) that notwithstanding that one party may bring more assets to a relationship than the other, the effect of the relationship, even in the course of a short relationship, may have the effect of balancing to some extent the contributions of parties.  I do not make that finding on the basis of a principle which is now somewhat discredited of the erosion of the value of initial contributions but I make it in the context of the parties working together towards common enterprises. 

[7] I note that it seems to be the accepted approach of the ACT Supreme Court that decisions of the Family Court of Australia may (in most instances) be referenced in assessing matters concerning the division of property under the Domestic Relationships Act 1994 (Cth); see Crellin v Robertson [2004] ACTSC 92, para [25] per Crispin J.

Conclusion

1. In these circumstances, if I were to provide to the applicant the balance of the money held on trust by Mr Heague, her own car, and direct that the money for the business for Mr Tene be paid to her (which he agreed he would) and that she have the boat in the garage, this would provide more money to her than what I regard as being appropriate distribution of 75 per cent to 25 per cent.  If she receives the boat, she does not want to keep it as such, although it would be open to her to do so if the valuation provided, I am assuming that from what I am told by Ms Campbell that she wants to sell the boat and the orders that I propose to make would require her to do so. 

2. Upon sale of the boat, I would require that she pay a sum of money to the respondent and that sum of money I round down to the sum of $19,000.  I will explain how I arrive at that figure below.  I also indicate that in accordance with the application made by the applicant I will make two orders for costs; one in relation to the proceedings that were thrown away on the day in which the matter was set down originally for an undefended hearing in the sum of $1,800 and a further order in the sum of $2,000 in relation to these proceedings generally.  I make this order basically on the proposition that the respondent, by his failure to participate, has both shortened the proceedings in one sense but also made them more difficult because he has not provided information which might otherwise have made the task of identifying what is to be divided easier.

3. I shall briefly explain why the sum of $19,000 has been chosen.  The determination, so far as I am able to do so based on the values that I have before me of the pool of property, would suggest that if the respondent were to receive 25 per cent that would represent something in the order of between $20,000 and $24,000.  The sums of money for costs to which I have previously referred would reduce the amount due to him to something a little over $20,000 on my calculations.  I round the sum down to $19,000 to take account of the fact that there will be some costs associated with the sale of the boat and it is unreasonable that those costs should be borne exclusively by the applicant.  I also take account of the fact that the boat may not bring the $40,000 which it has represented but which now the applicant bears the risk of in relation to these proceedings.

4. I contemplated whether it would be appropriate to make an order which would mean that the payout figure to the respondent would be dependent upon the price obtained for the boat but in the end it seemed to me that there was a virtue in certainty which exceeded the possible alternative benefit to the applicant (and possibly the respondent) in the boat bringing a different sum from that which had been agreed or put forward by the applicant during the course of these proceedings.

5. The matter is removed from the pending cases inventory.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Legal Associate: 

Date:  24 June 2009