Paul and Paul and Ors

[2016] FamCA 157

FAMILY COURT OF AUSTRALIA

PAUL & PAUL AND ORS [2016] FamCA 157

FAMILY LAW – Consequential Order Pursuant To S 80 of the Family Law Act (1975)(Cth)

APPLICANT: Ms Paul

FIRST RESPONDENT: Mr Paul

SECOND RESPONDENT: Ms B

THIRD RESPONDENT: C Pty Ltd (ACN …)

FILE NUMBER: BRC 4278 of 2013

DATE DELIVERED: 15 March 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 15 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Looney QC

SOLICITOR FOR THE APPLICANT: Bourke Legal

SOLICITOR FOR THE FIRST AND THIRD RESPONDENTS: Mrs Bryden, Michael Lynch Family Lawyers

Orders

IT IS ORDERED BY WAY OF CONSEQUENTIAL ORDER PURSUANT TO S 80 OF THE FAMILY LAW ACT (1975) THAT

1. Within 14 days of the date of this Order, C Pty Ltd (ACN …) pay to the Applicant the sum of $19,200.00.

2. The First Respondent do all acts and things and sign all documents necessary to ensure that C Pty Ltd (ACN …) makes the payment to the Applicant referred to above.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Paul & Paul and 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 BRISBANE

FILE NUMBER: BRC 4278 of 2013

Ms Paul

Applicant

And

Mr Paul

First Respondent

And

Ms B

Second Respondent

And

C Pty Ltd (ACN …)

Third Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have before me, in essence, an application seeking the making of orders described as machinery orders to give effect to aspects of orders made by consent between the parties on 8 February 2016 which, as between them, finalised proceedings that were previously on foot in this Court. 

2. The particular issue with which I am asked to deal this morning goes to the parties’ obligations pursuant to clause 4G(ii)(E) and (F) of that Order insofar as it relates to real property located at D Street, Suburb E.

3. It is clear from a perusal of the Orders as agreed between the parties that the Applicant was to receive, as part of a number of other properties, that particular property.  It is also uncontested that the date of settlement or the transfer date, as referred to in the Order, was, in fact, 29 February 2016 as a consequence of an agreement between the parties to extend the same. 

4. The evidence before me establishes that, in relation to the property at D Street, the term of the lease referable to it provides for a rental bond (I think described in the lease itself as a bank guarantee) in an amount of $72,000.00. 

5. It is uncontested that the Applicant has received a cheque in an amount of $52,800.00 referrable to the bond which relates to D Street, Suburb E.

6. The dispute, therefore, is in relation to the balance in an amount of $19,200.00. 

7. Mr Looney QC, who appears on behalf of the Applicant, makes submissions which may be summarised, in essence, that, as a consequence of the Orders agreed between the parties, the First and Third Respondents should be required to ensure that his client receive, in total, the sum of $72,000.00 because, at the time the lease comes to an end, she may well be called upon by the tenant in relation to the bond in that amount. 

8. It appears from the material, including the correspondence and assertions contained within it exhibited to each of the affidavits before me, that, from the perspective of the First and Third Respondents a number of issues have arisen.

9. At first, it was suggested by the legal representatives engaged by those parties to effect the implementation of the Orders - those legal representatives not being the solicitors on the record in these proceedings – that, at first, it was suggested that part of the bond had been retained and put toward certain works on behalf of the tenant.  It then appears from a perusal of the affidavit of the First Respondent, Mr Paul, that the funds are being, in essence, held in order to meet amounts which are said to be outstanding and payable by the tenant to C Pty Ltd for the period from 16 October 2015 until the transfer date, as that term is defined in the Orders.  In addition, it appears they are said to be held so as to offset costs said to be associated with the demolition of premises or an office building at another premise leased by C Pty Ltd to the same tenant. 

10. It appears, therefore, that the argument, at least in relation to some funds, relates to a property unrelated to and different from that to which the bond amount itself relates. 

11. I accept the force of the submissions made by Mr Looney QC on behalf of the Applicant and prefer them.

12. I note also that Mrs Bryden on behalf of the First and Third Respondents submitted that I should adjourn the determination of this issue for six weeks to enable the parties to undertake - with the assistance of their accountant - discussions and/or communications and/or attempts at resolution in relation to adjustments which are said to attach to and should properly be taken into account in the implementation of the Orders insofar as they relate to the entirety of the real property to which the Applicant is entitled. 

13. The fact that I have provided the reasons so far clearly reflects my determination to refuse that Application.  There is nothing before me, I consider, in any evidence to suggest any agreement that that is an appropriate course:  namely, that adjustments in fact need to be made. 

14. The Orders themselves do not provide for this to occur.

15. For these short reasons, I am persuaded that it is appropriate and necessary to make orders which might be described as of a machinery type and/or designed to assist and ensure the implementation of existing Orders.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 15 March 2016.

Associate:                 

Date:    15 March 2016