PILOT & PILOT (SUBPOENA TO TRUSTEE)

[2012] FamCA 123

FAMILY COURT OF AUSTRALIA

PILOT & PILOT (SUBPOENA TO TRUSTEE) [2012] FamCA 123

FAMILY LAW - PRACTICE AND PROCEDURE – Subpoena filed by husband for production of the Trustees file relating to his role as Trustee and proceedings between the parties – application by Trustee to have subpoena set aside – subpoena set aside

FAMILY LAW - COSTS - Application by Trustee for costs – order that husband pay Trustee’s costs in respect of the subpoena

Family Law Act 1975 (Cth) ss 117(2), 117(2A), 117(2A)(c), 117(2A)(f), 117AA, 118
Family Law Rules 2004 (Cth) rr 15, 15.26

Sharp v Dalton (1990) FLC 92-167
Botany Bay Instrumentation and Control Pty Ltd and Anor v Stewart and Anor (1984) 3 N.S.W LR 98
Hatton v Attorney General of Commonwealth of Australia, Commonwealth Bank of Australia, and the Commonwealth Development Bank of Australia [2000] FamCA 892
Woodley & Time and Anor [2008] FamCA 162
Greedy v Greedy (1982) FLC 91-250
Oliver v Oliver (No 2) [2010] Fam CAFC 174

APPLICANT: Mr Pilot

RESPONDENT: Ms Pilot

FILE NUMBER: HBF 1990 of 1999

DATE DELIVERED: 15 March 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Launceston

JUDGMENT OF: Benjamin J

HEARING DATE: 22 February 2012

REPRESENTATION

COUNSEL FOR THE HUSBAND: Roger Murray

SOLICITOR FOR THE HUSBAND: Murray & Associates

COUNSEL FOR THE WIFE: Mr Michael Foster

SOLICITOR FOR THE WIFE:	Murdoch Clarke
COUNSEL FOR THE TRUSTEE:	Mr John Lewinski

SOLICITOR FOR THE TRUSTEE: Butler McIntyre & Butler

Orders

1. The subpeona issued 6 February 2012 and addressed to Mr CC is set aside.

2. The husband pay the legal costs of Mr CC in respect of the subpoena.

3. Reasons for these orders be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pilot v Pilot (Subpoena to Trustee) 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: 1990 of 1999

Mr Pilot

Applicant

And

Ms Pilot

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Pilot (“the husband”) and Ms Pilot (“the wife”) have been engaged in property proceedings over many years.  The final hearing of their property proceedings ran over many weeks and property orders were made in late 2010.  Those property orders included the appointment of a trustee for the sale of a financial asset.  Initially that trustee was Mr E however, by way of a subsequent order, Mr CC became the trustee pursuant to the orders.

2. On 13 December 2011 the husband filed an application in a case seeking:-

   (a)an order setting aside the acceptance of a tender by the Trustee for the sale of the U Street properties to the wife;

   (b)a declaration that the Trustee accept the husband’s tender;

   (c)an order that the husband settle the purchase of that tender;

   (d)an order that the Trustee proceed with the auction sales of Lots 8 and 9 at K;

   (e)an order that the wife make available for collection by the husband personal property at W Property;