Pilot and Pilot (No 2)

[2011] FamCA 522

FAMILY COURT OF AUSTRALIA

PILOT & PILOT (NO 2) [2011] FamCA 522

FAMILY LAW – PROPERTY – Application for replacement Trustee to administer orders

Family Law Act 1975 (Cth)

APPLICANT: Ms Pilot

RESPONDENT: Mr Pilot

FILE NUMBER: HBF 1990 of 1999

DATE DELIVERED: 24 June 2011

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 24 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Foster

COUNSEL FOR THE RESPONDENT: Mr Murray

SOLICITOR FOR THE OTHER PARTY Mr Kimber

Orders

1. The sole appointment of Mr E as trustee pursuant to orders made 6 October 2010 and 22 November 2010 be discharged.

2. Mr E and Mr OO be appointed as joint trustees until 28 July 2011 and thereafter Mr OO be appointed as sole trustee to act in accordance with the orders.

   IT DIRECTED

3. The trustees provide, by 8 July 2011, a short ‘dot’ point report to the parties of issues that remain outstanding.

4. The parties file and serve any affidavit material they have in respect of those issues within a further period of fourteen (14) days.

5. A copy of these reasons be taken out and placed on the court file.

6. These reasons not be published on the world wide web ("the internet") unless appealed or a further order from a court exercising jurisdiction under the Family Law Act 1975 (Cth).

   IT IS FURTHER ORDERED

7. These proceedings be adjourned for further mention at 9.30am on Thursday
   4 August 2011 by telephone by dialling ….

   IT IS CERTIFIED

8. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Pilot & Pilot (No 2) proved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER:  HBF 1990 of 1999

Ms Pilot

Applicant

And

Mr Pilot

Respondent

And

MR E
Other party

REASONS FOR JUDGMENT

1. These are the continuation of proceedings between Mr and Ms Pilot.  I delivered reasons and made orders last year.  I delivered reasons in respect of costs today after lengthy submissions.  One of the orders I made was the appointment of a receiver manager/liquidator in relation to the assets of the parties, and I appointed the single expert Mr E into that role, who appears today.  Mr E has filed an affidavit in the Court indicating that he proposes to retire later this year and needs to be out of this matter by the end of July, although in fairness, he considered he would remain little longer if the Court requested him to do so.  There is no issue about his retirement.  There is an issue about who should replace him.  The wife suggests that one of two partners in Mr E’s firm, Mr PP or Mr OO, take that role.  The husband asked that Mr CC take the role, who is not in the same firm as Mr E.  Alternatively, if Mr CC is not appropriate, then an independent person ought to be appointed.

2. The wife filed an affidavit yesterday indicating that Mr CC had an involvement with the husband and his brother, Mr QQ, and the husband has deposed that that didn’t occur.  Whether or not Mr CC did or didn’t have a relationship with the husband or his brother is not a factor of which I give any weight to in relation to this determination.  I will treat him for the purpose of this determination as an independent expert.  The nub of Mr Pilot’s complaint in relation to the appointment of either of Mr PP or Mr OO is that Mr Pilot says that he is not satisfied with Mr E’s approach, that Mr E has been slow, hasn’t adopted a determinative approach at times and the husband has lost faith in him and sets it out in significant detail in his affidavit.  The other factors in respect of this matter are it seems that the charge-out rate of the partners in Deloitte’s is less than that of Mr CC, and there is no evidence of any other expert at this time.

3. What has been abundantly clear to me in relation to these proceedings over a long period of time is the high level of conflict which exists between these parties and their inability to resolve many issues over a long period of time, which I think next year, in April 2012, it becomes the 10^th anniversary of the parties’ separation.  I am also troubled by the overuse at some stage of experts in these proceedings, and in particular, I refer to comments I made in relation to the employment experts during the course of the hearing, where I think at one stage, there were some four employment experts giving evidence on that aspect of the proceedings. 

4. The husband’s concerns are that he may need to take action against Mr E arising out of the husband’s view of his conduct in the proceedings.  It would seem to me that whoever the single expert is, the husband would need to obtain evidence from some other person, whether it’s his own account or some other expert, and that will involve another set of experts and no doubt another set of proceedings, hopefully not in this Court, hopefully in the Supreme Court of Tasmania, but that will be for another matter for another day.

5. I take judicial notice that there are likely to be significant savings in a transfer of the role in this case as trustee from Mr E to Mr PP or Mr OO, and of course, the fees are less.  At the same time, of course, it is troubling that Mr Pilot has no or expresses no faith in the continuing Trustees.  Notwithstanding that concern, it would seem to me on balance and having regard to the whole history of this matter and the matters contained in the reasons I have referred to from last year, and probably that Mr Pilot made no application before this time, it was on the application of Mr E that this matter came before the Court.

6. I intend to make orders appointing Mr OO and Mr E as joint trustees from today until 28 July, and then from that day, Mr OO will be the sole trustee.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 24 June 2011.

Associate:

Date:              24 June 2011