PAYNE & SILVER

[2013] FamCA 165

FAMILY COURT OF AUSTRALIA

PAYNE & SILVER [2013] FamCA 165

FAMILY LAW – PRACTICE AND PROCEDURE – interim order with respect to who should bear the cost of obtaining replacement duplicate certificates of title.

Family Law Act 1975 (Cth)

APPLICANT: Ms Payne

RESPONDENT: Mr Silver

FILE NUMBER: MLC 8313 of 2011

DATE DELIVERED: 20 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 15 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Atkinson

SOLICITOR FOR THE APPLICANT: Tribeca Legal

COUNSEL FOR THE RESPONDENT: Mr Whitchurch

SOLICITOR FOR THE RESPONDENT: Samantha Ward Solicitors

IT IS NOTED that publication of this judgment by this Court under the pseudonym Payne & Silver 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 8313  of 2011

Ms Payne

Applicant

And

Ms Silver

Respondent

REASONS FOR JUDGMENT  

1. On 15 March 2013 I made the following order:

   That the husband and the wife, in furtherance of their obligations pursuant to paragraph 4 of the said orders, cooperate forthwith upon all or any requests of them from [Mr A], solicitor, to enable the production of replacement duplicate Certificate of Title relating to the property at [B Street, C suburb] including but not limited to the completion and execution of statutory declarations, providing detailed instructions for preparation and swearing/affirming of affidavits as to the chain of events as to the allegedly lost title and making application for expedition of the processing of the application for replacement title (based on urgency or as [Mr A] may advise the parties); all such costs of [Mr A] in performing such work and including all applicable expedition and other fees payable to the Titles Office arising out of the alleged loss of the title to be (at first instance) at the equal shared expense of the husband and wife.

2. I reserved my reasons for making that order and now publish those reasons.

3. The application before me was the wife’s Application in Case filed 31 January 2013. The husband filed a Response to that Application in a Case on 7 February 2013. The wife in her Application sought orders that the husband forthwith do all things necessary to comply with the orders made 23 December 2011 and in particular that he pay the sum of $500,000 payable pursuant to paragraph 7 of those orders. She also sought an order that the husband pay her costs of the Application and reimburse her for the interest she has incurred, she would say by virtue of the husband’s failure to comply with the orders. The husband disputes that he has failed to comply with the orders and it is his case that it is the wife who has failed to take the necessary steps to enable the matter to be finalised in accordance with the orders.

4. The matter was listed for hearing before me in the Judicial Duty List on the 8 February 2013. The matter was adjourned for further hearing before me on 15 March 2012 and orders were made which were intended to give effect to the orders of 23 December 2011.

5. Unfortunately that has not occurred as the parties have been unable to locate the duplicate certificates of title for four properties which were the subject of the orders made 23 December 2011. The parties each asserted that the other is responsible. That is not a matter which I can determine without their evidence in relation to this issue having been tested.  

6. The parties agreed upon orders which make provision for them to co-operate in obtaining replacement duplicate Certificates of Title for the properties at: D Street, C suburb; 1 E Street, F suburb; and  2 E Street, F suburb   The E Street properties are registered in the joint names of the parties and are to be transferred to the wife pursuant to the orders made 23 December 2011 and the property in C suburb is registered in the name of H Pty Ltd. The husband and the wife were both directors and shareholders of H Pty Ltd. The orders of 23 December 2011 required the wife to resign as a director of H Pty Ltd and transfer her shareholding to the husband which she has done. I have made orders by consent in the terms agreed upon by the parties.   

7. The husband also sought an order with respect to the replacement of the duplicate certificate of title for the property at B Street, S suburb which is the fourth of the missing duplicate certificate of titles. The parties have agreed that at first instance they will share the cost of obtaining the replacement duplicate certificates of titles for the three properties and the dispute in relation to B Street is in reality a question of who should bear the cost of obtaining the replacement duplicate certificate of title for that property.

8. As the wife is no longer a director of H Pty Ltd it was her case that her co-operation is not necessary to enable the husband to obtain a replacement duplicate certificate and as H Pty Ltd is an entity controlled by the husband it is a matter for him. It was further submitted on her behalf that as these proceedings are as a result of the husband’s failure to comply with the orders that she should not be required to meet half the cost of obtaining a replacement duplicate certificate of title for B Street. It was submitted on behalf of the husband that although he may be able to do what is necessary to obtain a replacement duplicate certificate of title and may not need the wife’s co-operation to do so the property in question is one of the properties which formed part of the pool for the purposes of their property settlement and that which ever property or properties they retain in so far as the duplicate certificate of title for any of those properties is missing a replacement should be obtained and that that should be at their joint expense.  I agree that this is the case. In my view it is artificial to single out one property because it is registered in the name of a company of which the wife is no longer an officeholder or in which she no longer has an interest, particularly in circumstances where one of the properties in relation to which the parties have agreed to share the cost of obtaining the replacement duplicate certificate of title is also registered in the name of that company, albeit that it is to be transferred to the wife.

9. In my view who should meet the cost of obtaining replacement duplicate certificates of title does not depend upon who legally owns the property or whether the property is to be transferred to the other party, the real question in this case, if the parties are not to share the cost of obtaining replacement duplicates, is whether one or other party is found to be responsible for the removal or loss of the duplicate certificates of title. That is not a matter I can determine on the basis of the contested evidence without that evidence being tested.

10. It is on this basis that I have determined that at least at first instance the parties should do all that is necessary and share equally the cost of obtaining replacement duplicate certificates of title for all four properties for which the duplicate certificate of title is missing and have ordered accordingly. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 19 March 2013.

Associate: 

Date:  20 March 2013