PEROT & PEROT - [2013] FamCA 137

FAMILY COURT OF AUSTRALIA

PEROT & PEROT

[2013] FamCA 137

FAMILY LAW – ENFORCEMENT – where the husband failed to comply with the terms of consent orders – where the wife seeks interest on the amount due to her – where it was held to be in the interests of justice that interest be payable – where the husband seeks interest should be prescribed at a rate lower than the statutory rate – where the wife is entitled to calculate interest at the statutory rate

FAMILY LAW – COSTS – where there is a previous costs order – where it was held a sum of money should be placed in trust in order to satisfy the wife’s costs pending agreement or assessment for costs – where the orders prescribed a method for appointing a valuer in the event of disagreement – where the husband unilaterally appointed his own valuer and seeks the wife pay half of the valuation costs – husband’s application dismissed

Family Law Act 1975 (Cth)

Stephens & Stephens & Anor (Enforcement) (2009) FLC 93-425

APPLICANT:

Ms Perot

RESPONDENT:

Mr Perot

FILE NUMBER:

SYC

5596

2011

DATE DELIVERED:

6 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

13 February 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Karras Partners

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

The wife be declared to be entitled to calculate and receive interest on the capital sum which she was otherwise entitled to receive pursuant to order 2 of 12 June 2012 at the rate of interest provided in rule 17.03 Family Law Rules 2004 (Cth) calculated from 10 September 2012 and that the husband’s application that she not do so be dismissed.
An amount in the sum of $3,500 is to be placed into trust in relation to any agreement or assessment of costs pursuant to order 6 made 14 November 2012 and any further order for costs in respect of that assessment.
The husband’s application that the wife pay the sum of $385 in respect of the valuation by Mr K dated 15 October 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perot & Perot has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5596 of 2011

Ms Perot

Applicant

And

Mr Perot

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The primary matter of controversy before me is whether or not the wife is entitled to interest on unpaid monies under a property order and if so, at what rate that interest should be calculated.
In her application in a case filed 29 August 2012, the wife sought:
5. That in the event that contracts for the sale of [S suburb] have not been exchanged by 10 September, 2012, the husband shall pay interest on the capital sum outstanding to the wife in the sum of $289,140.00 at the rate of 9.5% per…

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 PEROT & PEROT

Details

AGLC: PEROT & PEROT [2013] FamCA 137
Case: [2013] FamCA 137
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered a dispute between Ms Perot (the wife) and Mr Perot (the husband) concerning the enforcement of consent orders made on 12 June 2012. The wife sought interest on a capital sum that the husband had failed to pay within the stipulated timeframe. The husband, in turn, sought to avoid paying interest and also applied for the wife to contribute to the costs of a property valuation.

The court was required to determine whether the wife was entitled to interest on the unpaid capital sum and, if so, at what rate. It also needed to consider the husband's application to prevent the accrual of interest and his claim for the wife to contribute to valuation costs. Furthermore, the court had to address the outstanding issue of costs, specifically a previous costs order made on 14 November 2012, and how a sum of money should be secured to satisfy the wife's entitlement to costs pending agreement or assessment.

In relation to the interest claim, the court applied the principles established in *Stephens & Stephens & Anor (Enforcement)*, which affirmed that section 117B of the *Family Law Act 1975* (Cth) provides for statutory interest on money orders unless a court exercises its discretion under s 117B(2) to vary or waive this. The court found that the husband had failed to comply with the property orders and had deliberately chosen a course of action that delayed the sale of the property, thereby benefiting himself. The court determined that it was in the interests of justice for interest to accrue at the statutory rate prescribed by Rule 17.03 of the *Family Law Rules 2004* (Cth), noting that this rate serves not only a compensatory purpose but also encourages compliance with court orders. The husband's application to pay a lower rate of interest was dismissed. Regarding the valuation costs, the court found that the husband had unilaterally appointed a valuer, contrary to the agreed process, and dismissed his application for the wife to pay half of those costs.

The court ordered that the wife was entitled to calculate and receive interest on the capital sum at the statutory rate from 10 September 2012, and the husband's application to prevent this was dismissed. A sum of $3,500 was to be placed in trust to satisfy the wife's costs pending agreement or assessment, and the husband's application for the wife to pay half of the valuation costs was also dismissed.

Orders