PILOT & PILOT

FAMILY COURT OF AUSTRALIA

PILOT & PILOT

[2013] FamCA 32

FAMILY LAW - PROPERTY – Injunctive Orders – Procedural Orders – Payment of superannuation monies due to husband and the wife by Trustee

FAMILY LAW - PROPERTY – Application by wife for Trustee to review his decision not to award damages against the husband – Wife’s application dismissed – Application by wife for removal of caveat lodged by husband over the former matrimonial home – Wife’s application dismissed

Family Law Act 1975 (Cth)
Land Titles Act 1980 (Tas) ss 134 and 135

Warby & Warby (2002) FLC 93-091; 28 Fam LR 443; [2001] FamCA 1469
Attorney-General of the Commonwealth of Australia v R.P. Company Pty Ltd & Ors (1957) 97 C.L.R 146
Australian Provincial Insurance Limited v Coroneo (1938) 38 S.R. (N.S.W.) 700
Holland v Hodgson (1872) LR 7 C. P 328
Vaudeville Electric Cinema Limited v Muriset (1923) 2 Ch. 74
Starline Furniture Pty Ltd (in liquidation) (Unreported, Supreme Court of Tasmania, Neasy J, 23 February 1982)

APPLICANT:

Mr Pilot

RESPONDENT:

Ms Pilot

FILE NUMBER:

HBF

1990

1999

DATE DELIVERED:

4 February 2013

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

29 & 30 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Gunson SC, with him Mr Murray

SOLICITOR FOR THE APPLICANT:

Murray & Associates

COUNSEL FOR THE RESPONDENT:

Mr M Foster, with him Mr A Vince

SOLICITOR FOR THE RESPONDENT:

Murdoch Clarke Barristers & Solicitors

COUNSEL FOR TRUSTEE:

Mr Lewinski

SOLICITOR FOR THE TRUSTEE:

Butler McIntyre Butler

Orders

BY CONSENT

(a) The parties be and are restrained from taking any steps (either as trustees and/or members) of the Pilot Superannuation Fund (‘the Fund’) without the specific written approval of Mr CC, the Trustee appointed in respect of the substantive Family Law proceedings;
(b)In accordance with the reasonable directions of M CC, the parties are to sign all documents and do all acts to ensure that the Fund’s administration is regularised (including compliance with the substantive Family Court Orders);
(c)The parties are to ensure, that in accordance with the reasonable directions of Mr CC, the superannuation funds due to the husband are paid in accordance with his lawful requests and the funds lawfully due to the wife are either paid to her independent but complying fund or accounted to her independent but complying fund;
(d)The parties (including the Trustee at the expense of the parties or if agreed and appropriate at the expense of the Fund) have liberty to apply for directions in respect of the administration of the Fund. Such liberty to apply be until 30 August 2013, or such other period determined by the Court ; and
(e)That in any event the Fund is to be wound up then it be by no later than 30 June 2013, or such other period as is ordered by the Court.
(f)That Mr CC facilitate on behalf of and at the expense of the Fund and in accordance with the existing direction and agreement of the trustees of the Fund obtain advice from DBA Butler in respect of regularising the administration of the Fund including the journal role-over of the wife’s contributions and such matters as are needed by Mr CC, and for that purpose, the husband and wife, do all such things as may be required to cause AAA Accountants to obtain that advice and the costs of such advice are to be borne by the Fund.
(g)IT IS NOTED THAT the communication by the wife dated 16 August 2012 is not regarded by the parties, the trustees of the Fund and Mr CC as a resignation by the wife as either or both a trustee or a member of the Fund.
(h)IT IS NOTED THAT if the advice referred to in these orders requires money to be physically paid into, or out of, the Fund, the Trustee of the proceedings, Mr CC, will oversee that task and control such funds in a fresh account to be under the absolute control of Mr CC as the Trustee appointed under the Family Law orders and these orders.
(i)IT IS NOTED THAT these orders are substantially in accordance with an agreement which was signed by the parties and is Exhibit “T-2”.

IT IS ORDERED

The wife’s application for Mr CC to review and/or revise his decision in respect of her claim for compensation or damages in respect of removal of rock from Lot 4 in Suburb K or being her claim to this Court for such compensation for alleged damage to Lot 4 is dismissed.
(a) The wife’s application that the husband withdraws the caveat over the wife’s property ‘W Property’ is dismissed.
(b)IT IS NOTED that this aspect of the wife’s application in a case was not determined on its merits but determined on the basis that the Court did not have the accrued jurisdiction to determine that particular question.

IT IS DECLARED

The shelving and pallet racking and hoist referred to in Annexure “B” of the orders of this Court made 22 October 2010 are not fixtures and the wife is directed to make available reasonable access for the husband and/or his workers to attend the former matrimonial home, ‘W Property’, to enable collection of these items in accordance with order 34 of those orders, except that the time is extended for a period of sixty (60) days from the date of this order.
The balance of the various applications by the parties, namely:-
(a)       the Z Street debt;
(b)       the interest adjustment;
(c)       the nature of the sale of Lots 8 and 9 in Suburb K;
(d)       the balance of the chattels;
(e)       final accounting; and
(f)       the V Pty Ltd litigation.
are adjourned for mention at 4.15pm on the 7 February 2013.
The parties equally pay the legal costs and disbursements of the Trustee in respect of this part of the applications in a case, on a trustee basis, from the funds otherwise payable to the parties.
This costs order is without prejudice to either party seeking a greater or lesser contribution by the other to the cost of the trustee in any subsequent party/party cost application in accordance with the Family Law Rules.

IT IS DIRECTED

The legal associate of Benjamin J forward a copy of these reasons and the transcript of the relevant cross-examination of Mr BB to the Legal Professional Board of Tasmania to consider whether the wife’s legal practitioner breached any rule of practice or ethics.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pilot & Pilot 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 HOBART

FILE NUMBER: HBF 1990/1999

Mr Pilot

Applicant

And

Ms Pilot

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Ms Pilot (‘the wife’) and Mr Pilot (‘the husband’) have been engaged in Family Court litigation for over a decade. They had accumulated significant assets over the period of their long marriage and were unable to agree on the issues of property and spouse maintenance. The substantive proceedings were heard before me between July 2008 and October 2010. Final orders were made on 22 November 2010.
As a consequence of the complexity of those orders leave was granted to the parties to apply. In addition a Trustee had been appointed and leave was given to the Trustee to apply for guidance.
In August 2011 further orders were made reflecting, in part, an agreement with regard to some of the parties’ properties. One of the orders related to the transfer of Lot 4 in Suburb K to the wife (orders 4 and 12). That order was varied by a consent order made 22 February 2012 to extend the time for the removal of rock from Lot 4 in Suburb K. Unfortunately various issues have arisen in respect of the winding up and division of the parties’ property.
An Application in a Case was filed by the husband on 12 June 2012 seeking various orders and relying on a number of affidavits. Proceedings came before me on 12 July 2012 and I directed that the husband file an Amended Application in a Case on 1 August 2012. At the hearing of the case applications the husband sought to rely upon his three affidavits filed 8 June 2012, 1 August 2012 and 29 November 2012. In addition he relied upon an affidavit of an engineer, Mr UC, filed 29 November 2012 and four affidavits of his accountant, Mr SD, dated 14 June, 2012, 12 July 2012, 1 August 2012 and 29 November 2012. Also tendered in evidence at the hearing were the orders referred to above namely the 22 November 2010, 1 August 2011, 22 February 2012 and the directions of 16 July 2012.
For some inexplicable reason the wife did not file a Response to the husband’s Application. After the commencement of the hearing a Response to the Application was filed on 29 November 2012. The wife relied upon her affidavit filed 31 August 2012, an affidavit of her accountant, Mr R, filed 3 September 2012 and an affidavit of an engineer, Mr BB, filed 3 September 2012.
One of the orders made by me in November 2010 was the appointment of a Trustee to facilitate the orderly sale of some properties and the management of the proceeds of sale, there being significant and continuing conflict between the parties. The present trustee is Mr CC (‘the Trustee’) and he appeared, quite properly, via legal practitioner at the hearing of these various applications. At the conclusion of the proceedings I asked if the parties objected to the making of orders subject to the parties’ rights to seek reimbursement from one or the other in respect of the Trustee’s costs. No objection was raised and subject to the parties being at liberty to make applications in accordance with the rules in terms of the parties’ respective contributions to such costs, I made that order.

THE ISSUES

Senior counsel for the husband prepared a list of issues to be determined over the two days of hearing.[1] A number of the issues were resolved either prior to or during the hearing. The accountants for the parties gave brief joint evidence in relation to the issues regarding the parties’ superannuation fund which were determined in a way that can, hopefully, put into effect the orders made in November 2010.
[1] Exhibit H2.
Three of the outstanding applications were dealt with namely:-
(1)whether the removal of the blown and crushed rock by the husband from Lot 4 in Suburb K gave rise to an entitlement to damages by the wife;
(2)whether a caveat lodged on the wife’s W Property could be removed by order of this Court exercising its accrued jurisdiction;

(3)whether a hoist and some shelving in the garage of the wife’s W Property were non fixtures in which case they vest to the husband pursuant to the 2010 orders or if they were fixtures, in which case they would vest to the wife.

There were a series of matters which remained to be determined as time did not permit their determination in the time allocated and it may well be that some of those issues will be resolved by the passing of time. Those issues being:-
a)        The Z Street debt;
b)        The interest adjustment;
c)        The nature of the sale of Lots 8 & 9 in Suburb K;
d)        The balance of the chattels;
e)        Final accounting; and
f)         The V Pty Ltd litigation.
I have adjourned those proceedings to a date for hearing in the first half of 2013. This is not an easy process as the time needs to fit into the schedule of the Court and the legal practitioners of the parties.

Lot 4 in Suburb K

One of the properties owned by the parties through various trusts and corporations was Lot 4 in Suburb K. In the orders made by the Court on 22 November 2010 a trustee was appointed for the sale of that, and other properties.
The parties came back to the Court in August 2011 and sought a consent order for the transfer of that property to the wife for the consideration of $1,485,000 but with the following provision: -

4. …Leave be given to the husband to remove from the land all the blown and crushed rock contained on [Lot 4 in Suburb K] subject to:
(a)there being no damage to the land and the court request that the trustee manage that aspect of the sale and give a direction to the parties in respect of that aspect subject to order 12.
(b)The rock is removed within 130 days from the date of this order;
(c)The trustee visit the land with engineer, [Mr UC], and the husband and the husband be restrained from removing rock for a period of 21 days from the date of this order to enable inspection of it.

(d)The rock may only be moved in accordance with an agreement between the trustee and the husband subject to similar overall aspect of it if there were disagreement written submissions can be made to the court as set out in order 12. order 12 made provisions for the trustee to make recommendations that if the parties are unable to agree to enable the parties to make application to the court that leave to expire 18 months from 1 July 2011. Further that the recommendations or determinations made by the trustee pursuant to the orders are not accepted by the parties and the parties have leave to apply and also apply in relation to the process.

By consent order made 22 February 2012 the time for the removal of the rock was varied to 30 April 2012 with a notation that the removal of rock is an election of the husband and is not a mandated requirement.
The Trustee provided an affidavit to the Court filed 13 September 2012 and a number of uncontentious matters arose from that affidavit (at least in relation to Lot 4 in Suburb K). This is also in addition - some of this uncontentious material is drawn from the affidavit of Mr UC.
In accordance with the orders made 11 August 2011 a plan was prepared for the removal of the crushed and blasted rock.[2] In that report Mr UC observed:-[3]
4.3Solid rock “C” [original emphasis]
This rock has been blasted but is still in place. It is noted that the blasting patterns employed by the Blasting Contractor resulted in crushable rock being produced in the lower blast zone, with residual massive semi-solid rock remnant overburden.
The overburden is 2-3 metres thick; the crushable zone is 3-4 metres thick. It is noted that the remnant overburden consists of fractured in-situ rock of 1-4 metre diameter. This rock is too large to fit into the entrant jaw section of the crusher. It is intended to remove this rock, and place it in whole ‘D’.
Having done that, the more fractured rock can be accessed and fed into the crusher, to produce a crushed rock of controlled maximum size. This will be removed off site.
[2] Exhibit H3 Report of Mr UC dated September 2011.
[3] Ibid at page 5.
The finished appearance was said by Mr UC to:-[4]
[4] Ibid at page 6.
With the foregoing in mind, the finished appearance of the site is best described by reference to the projected plan, shown on Figure 2.
(i)All existing crushed rock heaps have gone;
(ii)Heap ‘A’ is removed to ground level.
(iii)    Hole “B” is essentially as is at present. It will have some more larger rocks placed in it, which are the ones to be removed as overburden from the lower blasted rocks referred to in Section 4.3 above.
(iv)Knob ‘C’ is substantially removed.
(v)   Hole ‘D’ is partially filled with large rocks, some of which come from ‘C’.
(vi)    Heap ‘E’ is left as is at present - most of this heap is larger rock size which is too large to crush.
The site will be left in a tidy condition, with finished surface made eye-sweet with an excavator and blade, no isolated or unsightly rock, clay or debris left behind.
It is clear that that plan was approved by the Trustee.[5] It appears not to be an issue that this was approved by the wife. In his email dated 4 April 2012 Mr UC provided an update in relation to the work and then in his report dated 12 July 2012[6] and noted that Knob C had been substantially removed and that there needed to be further tidying up of the site.
[5] Exhibit H3 at page 27(E).
[6] Ibid at page 20.
Finally by email of 27 September 2012 Mr UC confirmed that the works had been completed and that the work was completed in accordance his report of 12 July 2012.
There was no doubt that rock has been removed which included the blown and crushed rock in accordance with the earlier report of Mr UC. In her affidavit filed 3 September 2012 the wife complained that the husband had excavated a substantial hole in the property and removed rock he extracted from the hole. She said that the material is valuable and in due course the husband would sell it. She said that Lot 4 was left with a substantial hole that would require remedial work and said that there was some 2800 square metres contained in the hole that would need to be filled.[7]
[7] At paragraphs 27 – 30 of the wife’s affidavit filed 3 September 2012.
The Trustee made comments on the removal of rock in his report dated 11 April 2012. In his report of the 12 September 2012 he determined that the husband must undertake the additional work as outlined by Mr UC in his report of 12 July 2012 (which apparently has been done) and determined that there ought to be no compensation to the wife. The question is whether the husband took more rock than he was entitled to take pursuant to the August 2011 order. The wife asserts, through her expert report, that Knob C has “been removed but additional excavation has taken place to the extent that there is now a deep hole in its place”.[8]
[8] At 3 of Annexure A to the Report of Mr BB dated 29 August 2012.
There were concessions made by the trustee before Mr UC gave evidence, namely that:-
As to the rock removal it was conceded by the trustee that he accepted that the work done by the husband to remove the rock from [Lot 4 in Suburb K] was done in accordance with the plan by [Mr UC] and the work was done to the satisfaction of the trustee.
Mr UC’s report and affidavit were read into evidence.[9]
[9] Affidavit of Mr UC filed 29 November 2012.
Mr UC was an impressive witness. He gave evidence frankly without affect. He was careful in his evidence and made no criticisms of the qualifications of Mr BB and in fact said that he was a highly qualified engineer. He observed that Mr BB’s report provided that he estimated the cost of the making the site suitable for development would be $250,000. There was nothing in the report of Mr BB that changed Mr UC’s observations or the opinions contained in his report dated September 2011. Mr UC said that it was not his task to make the site suitable for development.
In relation to the removal of Knob C he said that the blown rock went down about 4 metres below normal ground level. He said this needed to be removed as it was part of the material which the husband was able to take pursuant to the orders to which assessment I accept. In addition Mr UC said, and I accept, that the blasted rock would not be secure for building on the top of it.
He said that there was no need to have the holes filled to ground level. Mr UC said that he observed no signs or indications of further blasting. The rock which was removed had already been blasted. His view was that the removal of Knob C left the block in better condition than prior to its removal and in an engineering sense it was the better position to be developed after the work had been undertaken than before the work had been undertaken.
Mr BB gave evidence in accordance with his affidavit filed 31 August 2012. That material was read into evidence.
Mr BB said he did not agree that the blown rock at the lower level needed to be removed. Mr BB was asked about the relative skills of himself and Mr UC. He said that Mr UC was a qualified engineer with similar skills to his own. I accept there is no issue as to the qualifications of either witness.
Mr BB conceded in cross-examination that he did not know the state of the blown rock prior to its removal and that his assessment of it was an estimate. On that basis I prefer the evidence of Mr UC who had observed the rock before and after the work was undertaken.

Mr BB said that the larger rocks had been placed in holes in a manner which was unsupervised by an engineer. When pressed, he said he had no objective evidence to support that assertion and that engineers may have different approaches in relation to those larger rocks. The larger rocks left on site were dealt with according to the plan prepared by Mr UC.
Mr BB opined that that the holes are now larger. Having agreed to the removal of the blown rock, that result was inevitable. Mr BB estimated the depth of the hole to be about eight metres. He said this was measured from some arbitrary level and when pressed in cross-examination he said it could be up to five metres deep. There was no independent assessment of the depth. Mr BB relied upon some evidence of the wife and an annexure to her affidavit[10] being an email from a surveyor, Mr ZA who observed:-
…Area contoured by survey approx. 78m x 35m (+\- 2800m2).
Depth of rock 2-8m.
Aerial photograph flown 28 December 2011. Photograph has been shown for indicative purposes only as site has changed since this date.
[10] Annexure E of the wife’s affidavit filed the 3 September 2012.
A plan attached to the email indicated that the contours below water level were approximate only. The whole underlying approach of Mr BB was that there was rock on the site which could have been used to fill the hole. Which, of course, there was, but the wife agreed to that removal of rock when the consent orders were made on 11 August 2011.
The large rocks were left on site in accordance with Mr UC’s plan of September 2011.
Mr BB opined that the site had been excavated below a ground or natural level and the area needed to be filled. He said having regard to his earlier view that the hole in that area only represented a third of the area, but the hole was deep, and therefore his “best guess” was that the cost of filling that hole was $125,000. I do not accept this evidence, as it was just a guess. In addition it was not the task of the husband to bring the site to a state for commercial development.
As a witness Mr BB was argumentative and made unnecessary rude, and at times, snide remarks about senior counsel for the husband and lawyers generally. Mr BB’s evidence needs to be treated with great care. He guessed the depth of the holes and at times it was clear he exaggerated. When describing the holes on the site prior to the work Mr BB called them “a couple of small holes”. He moved from this to “a couple of holes” when pressed but he clearly minimised the size of those holes. In terms of the depth of the water and the depth of the hole, he seemed to exaggerate. His demeanour was that of an advocate for the wife rather than an expert having responsibilities to the Court.
Mr BB could not give an accurate estimate of the cost of taking the property from the state it was in in August 2011 to the state which he now says it ought to be brought to following the work having been undertaken. Having regard to his evidence, I generally prefer Mr UC’s evidence to that of Mr BB.
There was an issue raised during the cross-examination of Mr BB as to whether he may or may not have been advised or assisted by the wife’s legal practitioner during a breaking when he was under cross examination. It is a concern to the administration of justice if a witness says, under oath, that he had been provided with a document and some advice or comment on relevant evidence during cross-examination on a contested issue. However, it is not a matter for me to resolve that question in the context of these proceedings. The obvious step is for me to have my associate forward a copy of these reasons and the relevant transcript of evidence to the Legal Professional Board of Tasmania for their investigation and consideration. This extrinsic issue has not impacted on the findings of fact or determinations made by me in these proceeding.
In her Response filed 29 November 2012, the wife seeks an adjustment in her favour of $250,000 in respect of the damage [allegedly] caused to Lot 4 in Suburb K as a consequence of the rock removal by the husband. This claim was later reduced to $125,000. My order of 11 August 2011 provided for the transfer of Lot 4 in Suburb K to the wife and that leave be given to the husband to remove from that land all of the blown and crushed rock, subject to certain conditions. One of those conditions was that there would be no damage to the land and that the Trustee would manage that aspect of the transfer and further, that Mr UC attended the land. Mr UC did so and prepared a plan which was approved by the Trustee. Order 12 of those orders provided that the Trustee should make a recommendation to the parties, which he had, in the form of a determination and that the parties were at the liberty to apply to the Court. It was pursuant to that liberty provision that the wife applied. I am satisfied that the removal of the rock was in accordance with the order made by me and that the determination by the Trustee, on the advice of Mr UC, was a valid exercise of that power. I accept the evidence of Mr UC that the property is in a commercially better position following the removal of the rock than it was prior to the removal of the rock.
I accept the evidence of the husband and Mr UC that there was no evidence of blasting on the site subsequent to the order of 11 August 2011 and that the rock taken from Lot 4 in Suburb K was either blasted (blown) or crushed.
Part of the evidence of Mr UC was in relation to the assertion by Mr BB that the land would need to be made ready for structural development on it. Mr BB had said in his report that the hole was partly filled with rocks which had been dumped in place without compacting or having them placed in accordance with an engineering plan (there was no obligation for and to remove the rocks or compact them). These will have to be moved and mixed with finer materials to allow proper compaction in accordance with the requirements of the SAA code for commercial sites. Mr BB went on to say:- [11]
We also consider that it is necessary to make a drain to the hole so the fill cannot become saturated due to water being trapped in the hole in the base rock, thus causing instability in the fill.
[11] At page 5 of Mr BB’s Report dated 29 August 2012.
In terms of this approach, Mr UC agreed that it was one option to rectify the problem. He said another option was to put large rock at the base and then have draining crushed large rock, as is designed for some roads and airports, with the drainage at a higher level. He said that approach was sufficient.
The task of the Trustee was not to create a site which met the SAA codes for commercial sites. It was to enable the husband to remove the blown and crushed rock and not cause further damage to the land. This was left to be determined by the Trustee in accordance with my orders with supervision by the Court. I am satisfied that the determination that the Trustee made in respect of the work was appropriate. The Trustee required a plan to be prepared and disclosed the details of that plan to the parties. The work was done in accordance with that plan. The Trustee was satisfied with the plan and the work, as am I. Accordingly, there is no basis for the claim by the wife
In submissions, counsel for the wife said that the question of whether the husband took the rocks or didn’t take the rocks was a matter of election. That is a somewhat obtuse description of the orders. The orders were designed to enable the husband to take, if he wanted, the blown rock and the crushed rock but not impose upon him an obligation to remove rock determined by the wife.
Counsel for the wife confirmed that the plan prepared by Mr UC in relation to the removal of the rock was approved by the Trustee, Mr CC, and both the husband and wife. That work involved the removal of Knob C. The issue, insofar as the wife was concerned, was that the husband removed far too much of the rock from Knob C and as a consequence has an obligation to fill that, and if he does not do so then damages arise in the sum of $125,000.
Senior Counsel for the husband submitted that the works undertaken by the husband were in accordance with the plan prepared by Mr UC and were, to all intents and purposes, completed and referred me to Mr UC’s letter dated 27 September 2012.[12] I accept that that is the case.
[12] Annexure D to Mr UC’s September 2011 Report.
Counsel for the wife seems to have submitted that it was the obligation of the husband to restore the land so that it was suitable for commercial development. That was not a requirement. I accept the evidence of Mr UC that he designed the plans, supervised the work and that the land was enhanced and the property improved, albeit there was a large hole left behind. I accept the submission of senior counsel for the husband that the evidence of Mr BB was aggressive but notwithstanding he grudgingly accepted that the work was completed as in accordance with the September 2011 plan.
Even if the wife was successful, there was no evidence before me as to the real cost of any such rectification work. The evidence of Mr BB in respect of this was a guess and having regard to the evidence of Mr UC the overall value of the land was enhanced by the work done by the husband.
The question for me to determine is whether the Trustee has, in the exercise of his powers, incorrectly determined that there has been no damage to the property and as such the wife is not entitled to any compensation for such damage.
The order made in August 2011 enabled the husband to remove from Lot 4 in Suburb K “all of the blown and crushed rock” contained on that land. Consequent to that order the September 2011 a report was prepared by Mr UC setting out the proposed rock removal from Lot 4. Mr UC identified five forms of rock on the land, namely:-[13]
a)Rock already blasted, crushed and stockpiled on the site;
b)Rock which had been blasted and stockpiled for crushing;
c)Rock which had been put aside because it is too large to crush;
d)Rock which has been blasted, but still in its natural position; and
e)Solid rock not blasted.
[13] Ibid at page 4.
In terms of solid rock “C”, Mr UC observed at 4.3 of his report:-
[T]his rock has been blasted, but is still in place. It is noted that the blasting patterns employed by the Blasting Contractor resulted in crushable rock being produced in the lower blast zone, with a residual massive semi-solid rock remnant overburden.
The overburden is 2-3 metres thick, and the crushable zone is 3-4 metres thick. It is noted that the remnant overburden consists of fractured in-situ rock of 1-4 metres diameter. This rock is too large to fit in the entrant jaw section of the crusher. It is intended to remove this rock, and place it in hole ‘D’.
Having done that, the more fractured rock can be accessed, and fed into the crusher, to produce a crushed rock of controlled maximum size. This will be removed offsite.
The Trustee, the husband and the wife agreed with and approved this plan. The work was done substantially in accordance with the plan. The Trustee had approved the work.
The wife’s claim in this respect must fail.

THE CAVEAT

In her affidavit filed 3 September 2012 the wife said:-[14]
35. In approximately June 2012 [the husband’s] solicitors registered their caveat over the title to my home [W Property] …, claiming an interest as judgment creditor under orders dated 24 June 2011 which relate to the costs which have yet to be quantified. The lodgement of this caveat is mischievous and is intended to inhibit my capacity to deal with lenders. I have substantial property holdings in [Tasmania] which I am developing and it has never been suggested, nor could it, that I have demonstrated an intention to liquidate my assets in an effort to frustrate any liability to pay costs. Moreover, the court has ordered that [the husband] pay costs to me and no assessment has yet been made of the costs which I owe to [the husband] or the costs which he owes me. My advice is that in the property settlement calculations [the husband] is likely to be required to make payment to me in excess of $100,000.00 as the final adjusting payment to give effect to the court’s property orders.
36.I seek an order that [the husband] remove the caveat over the title of my home and that he be restrained from lodging any further caveats over property owned by me. My solicitors have written to [the husband’s] solicitors requesting that he remove the caveat and he has refused to do so.
[14] Wife’s affidavit filed 3 September 2012.
This was be followed up by a response to an Application in a Case, filed 29 November 2012 where the wife sought an order “That the husband withdraw his caveat over the wife’s property forthwith.”
Senior counsel for the husband submitted that there was no jurisdiction to make that order under the accrued jurisdiction of this Court. There was no evidence relied upon by the husband in relation to this aspect of the notice of motion.
Senior counsel for the husband submitted that section 135 of the Land Titles Act 1980 (Tas) sets out the power of the Supreme Court of Tasmania to remove a caveat:-
135. Proceedings to remove caveat
(1) Any person, other than the caveator, who claims an estate or interest in land affected by a caveat under this Act may summon the caveator to attend before the Supreme Court to show cause why the caveat should not be removed.
(2) The Supreme Court, on proof that the caveator has been summoned, may make such order, either ex parte or otherwise, as it considers necessary and may determine by whom the costs of, and incidental to, the summons and the proceedings on the summons, and the entering and removal of the caveat shall be borne.
Section 134 of the Land Titles Act 1980 (Tas) empowers a judgment creditor to lodge a caveat subject to some limitations and conditions:-
134. Caveat may be lodged by judgment creditor
(1) A judgment creditor of a person registered as the proprietor of registered land may lodge a caveat in an approved form.
(2) A caveat under this section shall –
(a) be accompanied by a copy of the judgment or order upon which it is founded; and
(b) identify, to the Recorder's satisfaction, the judgment debtor with the registered proprietor named in the folio of the Register or registered dealing affected by the caveat.
(3) The practice, procedure, and mode of dealing with a caveat under this section shall in all other respects be the same as if the judgment creditor referred to in subsection (1) claimed an estate or interest in that person's land within the meaning of section 133
…
The submission by senior counsel on the part of the husband is that this is a matter for the Supreme Court of Tasmania and was not a matter for the Family Court of Australia as the claim is not part of a single justiciable controversy.
In response, I invited counsel for the wife to make submissions as to the principles to apply in regard to whether the Court should exercise this accrued jurisdiction. The submissions related to the substance of the caveat and not the matters that the Full Court identified in Warby & Warby (2002) FLC 93-091.
Paragraph 95 of the reasons in Warby (supra) provide as follows:-
95.Thus, we would answer the second question as follows:
Relevant to whether the Family Court of Australia will exercise the Court’s accrued jurisdiction in the circumstances posited in question 1 are:
1.what the parties have done;
2.the relationships between or among them;
3.the laws which attach rights or liabilities to their conduct and relationships;
4.whether the claims are part of a single justiciable controversy and in determining that question whether the claims are “attached” and not “severable” or “disparate”;
5.whether the claims are non-severable from a matrimonial cause and arise out of a common sub-stratum of facts; and
6.whether the Court has the power to grant appropriate remedies in respect of the “attached” claims.”
In this case the parties, after a lengthy hearing in the Family Court, sought orders against each other. Costs orders were made and it is not in issue that there has been no determination of the costs as between the parties. That will be a matter for agreement between the parties and in the likely event that they do not agree then determination by a Registrar under the Family Law Rules 2004 (Cth). The husband has lodged a caveat pursuant to section 134 of the Land Titles Act 1980 (Tas). There is a question as to whether in that factual circumstance, the husband is entitled to lodge and/or maintain a caveat.
The relationship between the parties is that of being married and having been separated for a period in excess of ten years.
The laws which attach to their rights or liabilities to their conduct with respect of the caveat is the law relating to property and caveats on real property in the State of Tasmania.
The issues which are being determined by me in these proceedings do not have the same issues of fact as with the caveat, although the parties are the same. The issues I am determining relate to damage or otherwise to Lot 4 in Suburb K and whether some items at the former matrimonial home are fixtures or not. There are some parts of the application which have been adjourned for hearing to a later date which involve calculations of a Z Street debt, interest on some monies which may be payable to the wife, the sale of Lot 8 and Lot 9 in Suburb K, the determination of the claim in respect of alleged non-provision of chattels and a request that the husband take proceedings against a company called V Pty Ltd. There is also an issue as to the final adjustment between the parties but that will not be finalised for some time. These proceedings, by consent, solve some of the accounting problems and no doubt there will be further problems ahead.
The issues with regard to the caveat are different and if attached, are severable. I am not satisfied that there was, in any event, a common sub-stratum of facts. The proceedings in the Family Court are as set out earlier and are not the same facts as is necessary in the proceedings for the removal of the caveat under the State Act.
The Supreme Court of Tasmania has the power to deal with that caveat and it is not a matter to which the accrued jurisdiction of the Family Court of Australia applies in the circumstances of this proceeding.
Accordingly, the wife’s application in that regard is dismissed.

FIXTURES

Order 34 made by this Court on 22 November 2010 provided:-
(34)
(a)That within sixty days of the date of these orders, at a date and time to be agreed, the wife shall permit the husband and/or his agents to collect from “[W Property]” at his expense the chattels identified in annexure “B” hereto (not being fixtures to [W Property] [emphasis added] and not having previously been delivered to the husband) to the effect that the husband shall be the sole and absolute owner thereof.
Two of the items referred to in annexure B are: -
Item (1) shelving and pallet racking; and
Item (4) hoist
In the garage of the wife’s W Property there is a hoist and high shelving and pallet racking. There is no issue that these are the items of property which were referred to in the orders.
The husband asserts that they are not fixtures and the wife asserts they are fixtures. In his affidavit filed 29 November 2012, the husband refers to these items and says:-
16.In paragraph 19 [the wife] refers to the electric hoist and steel shelving as fixtures in the [W Property] garage. This is vigorously disputed. Annexed hereto and marked with the letter “F” is a copy of a photograph of a very similar hoist. As can be seen from the photograph, the hoist is freestanding and is simply held by 4 dynabolts to the ground so that it does not fall over.
17.Annexed hereto and marked “G” is a photograph of shelving similar to the shelving at [W Property]. As can be seen from the photograph, the shelving is freestanding and does not need to be affixed to the walls or floors. The shelving at [W Property] was never affixed to the walls or floors.

In her affidavit filed 3 September 2012 the wife, in respect to this issue, deposed as follows:-
19.The electric hoist and shelving are fixtures in the [W Property] garage and have been there since the garage was constructed in 1995.
…
Objection was taken to that sentence by senior counsel for the husband. I allowed that evidence to be admitted on the basis that it was evidence of the wife’s view of the items, not evidence of their fundamental nature, which was ultimately a matter for me.
Counsel for the wife sought to cross-examine the husband in relation to that aspect of his evidence. The husband was clear in his evidence, firstly that, the hoist was fixed to the ground so that it would not fall over when it was used. He said that when he last saw the shelving, it was not bolted to the ground. The wife was given leave to give evidence in relation to the shelving and she said that the shelving had been bolted to the ground throughout the time that the garage had been operated. She produced a recent photograph.
This is not a commercial garage, it is a large, private garage built under a tennis court at the former matrimonial home, ‘W Property’. There is no evidence that it is used for other than domestic purposes. In terms of the respective onus of proof, once the wife raised the question as to whether the hoist and/or the shelving were fixtures, the onus fell to the husband to prove that they were not.
Fullagar J in Attorney-General of the Commonwealth of Australia v R.P. Company Pty Ltd & Ors (1957) 97 C.L.R 146 discussed, amongst other things, whether two printing presses, which each weighed about 45 tonnes and which were attached by nuts and bolts to concrete foundations in a building were fixtures or otherwise. His Honour formed the view that they were not fixtures, saying:-[15]
Here, I think that the only proper inference is that the affixing of the presses by nuts and bolts was effected for the purpose of holding them steady when in operation and for more efficient use of them as presses.
[15] At page 156.
This decision seems to have been determined on its own facts.
In Australian Provincial Insurance Limited v Coroneo (1938) 38 S.R. (N.S.W.) 700, Jordan CJ said at page 712:-
A fixture is a thing once a chattel which has become in law land through having been fixed to land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so for what purpose. If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is …
In Holland v Hodgson (1872) LR 7 C. P 328 that court asserted that the test is whether a chattel which has been, to some extent, fixed to the land is a fixture is whether it has been fixed with the intention that it shall remain in the position permanently or for an indefinite or a substantial period or whether it has been fixed for the intent that it shall remain in position for some temporary purpose. Vaudeville Electric Cinema Limited v Muriset (1923) 2 Ch. 74 at 87. In the former case, it is a fixture, whether it has been fixed for the better enjoyment of the land or building, or fixed merely to steady the thing itself, for the better use or enjoyment of the thing fixed.
Senior counsel for the husband took me to the judgment of Neasey J in the Supreme Court of Tasmania in Starline Furniture Pty Ltd (in liquidation) (Unreported, 23 February 1982). In that case his Honour carefully analysed the law relating to whether an item is a fixture or not a fixture.
In terms of the electric hoist, I accept the evidence of the husband. The hoist is a device designed to lift cars off the ground to enable work on the underside of such vehicles. I am satisfied that it falls into the category to hold the hoist steady when a car or other vehicle is placed upon it. It was fixed to the land for some temporary purpose (albeit it it has been in position for many years – 10 of which have been the present time of the matrimonial conflict between these parties). It can be easily moved and it is significant that this is not a commercial garage but a private garage (albeit a very large one). The purpose of the fixing of the hoist is to stop it falling over. There is no evidence that it is hard wired into the structure nor is there evidence that it has any plumbing attaching it to the structure. It is designed to lift a car safely. On balance, having regard to the state of the evidence I find that that the hoist is not a fixture of the property and as such is a chattel available to the husband in accordance with the orders made in 2010.
As to the shelves and pallet racking, the husband provided evidence that they stood by their own weight on the floor and provided photographs of similar types of pallet racking.[16] It was clear the wife knew of the husband’s claim that the shelving was free standing for a number of weeks before the hearing that the husband asserted that this was a freestanding set of shelves.
[16] Annexure “G” to the affidavit of the husband sworn 12 November 2012.
The wife sought to give oral evidence and, over the objection of senior counsel for the husband, she was allowed to do so. In that oral evidence she asserted that the shelving was affixed to the floor by bolts and had been fixed to the floor for the whole of the time that it was in place, over many years, including prior to separation. In support of that assertion of fact, she provided a very recent photograph of the inside of the garage taken by her.[17] Unfortunately, the photograph only caught a small part of the shelving on the left-hand side and it was not possible to discern from this whether the shelving was in fact fixed or bolted to the ground or not. This was a factual issue which was to be determined by this Court.
[17] Exhibit W3.
The husband’s evidence was that there were no bolts holding the shelving to the floor. It would have been easy for the wife to produce photographs of the shelving showing it bolted to the ground. She did not do so. Having regard to the submissions of senior counsel for the husband, I am satisfied that the shelves, at all relevant times, were fixed to the floor by their own weight and as such they are not fixtures.
If I am wrong in terms of that determination, I am still satisfied that these shelves would not be fixtures. The evidence of the shelves shows that they are industrial-style shelving which go up some level of the wall, although not to the roof. The wife, in her evidence, talked about occupational health safety, albeit in terms of the shelving going all the way to the roof, which it does not. It would seem to me, on the evidence before me, that if there was any bolts securing the legs of the shelving to the floor, that it would be to support the shelving and enable it to carry loads up high and any fixing is for a temporary purpose and not for the purpose of affixing it permanently to the building.
On balance, having regard to the state of the evidence I find that that the shelving is not a fixture to the property and as such is a chattel available to the husband in accordance with the orders made in 2010. The wife must make that shelving available for collection by the husband in accordance with the Court orders of 2010.

I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 4 February 2013.

Associate:

Date: 4 February 2013

[2013] FamCA 32

4 February 2013

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Procedural Fairness

Jurisdiction

Remedies

Costs